Translation from German of the Editorial by Prof. Malinverni and Dr. Daniel Rietiker published in Wochenzeitung WoZ, no 41, 11 October 2018. The authors thank Marc Finaud (GCSP) for his assistance in this translation.
The Federal Council has decided not to sign the international Treaty on the Prohibition of Nuclear Weapons (TPNW). The lawyers Daniel Rietiker and Giorgio Malinverni explain why this decision contradicts Switzerland’s very own interests.
After decades of stagnation in the area nuclear disarmament a historic event occurred on 7 July 2017 in New York, namely the adoption of the TPNW. The Swiss Federal Council has published a press release in August 2018 announcing that, at the moment, it would not sign the Treaty. This position results from the report of a working group under the leadership of the Federal Department of Foreign Affairs (FDFA).
According to the Federal Council, the Treaty may have a negative impact on the bilateral relations of the Swiss army with other armed forces and would in extreme cases restrict the scope of action for national defence. According to the report, it would be illegal for Switzerland to work with a defence alliance which is based on nuclear deterrence, like NATO. The humanitarian dimension of the Treaty, however, rather speaks for signing it, says the report. Switzerland got involved during the Treaty negotiations in strengthening a clause that commits the parties to assist the victims of nuclear weapons use or testing. Indeed, during the Cold War, the testing of bombs surpassed thousands of times the destructive power of Hiroshima and Nagasaki bombs.
This position of Switzerland corresponds to its humanitarian tradition. How can it now be a reason to slow down the entry into force of the Treaty?
Under the nuclear umbrella of NATO?
We see an intrinsic contradiction in the position of Switzerland: on the one hand it acknowledges the conviction that nuclear weapons are not legal and could only be used by causing mass violation of international law; on the other hand, it would exactly do this in case of aggression and reserves itself the right to seek protection under the nuclear umbrella of NATO.
This option is very surprising and should be discussed publicly. It also raises the question of being out of line with Switzerland’s role and reputation as the Depositary and guardian of the Geneva Conventions, as a promoter of International Humanitarian Law, which cannot compromise the Charter of the United Nations and the International Committee of the Red Cross (ICRC). At least damage to the image of Switzerland cannot be excluded.
Only symbolic effect?
The Federal Council further asserts that the positive effects of the Treaty remain limited, especially because there is little hope that the nuclear-weapon states would sign the Treaty in the near future. This view is not sustainable for the following reasons. First, the new Treaty is no longer and nothing less than an implementation measure of Article VI of the Nuclear Non-Proliferation Treaty of 1968. This article commits every State Party – whether nuclear-weapon state or not -, to negotiate in good faith effective disarmament measures. This promise has not been fulfilled by the nuclear powers for decades. In this regard, this is the best that could happen with the new Treaty. That’s why it should be adopted and supported by all progressive states. Second, the TPNW has brought new momentum to a deadlocked discourse. The nuclear disarmament debate, virtually non-existent since the fall of the Iron Curtain, is going through a renaissance experience. Third, the Treaty fills a gap of international law by providing, for the first time, for a general, universally valid ban of the use and threat of use of nuclear weapons. And fourth, once the Treaty is ratified by many states, nuclear weapons will increasingly be delegitimized and the negotiating position the few nuclear-weapon states weakened.
All in all, there is hardly any treaty that envisions the values and interests of Switzerland better than the present Treaty: it is based on international law, which is precisely eminently important for the independence of neutral small states. It is representative of the humanitarian tradition of Switzerland, with Geneva and the ICRC as figureheads, for respect and promotion of human rights and the protection of the environment. It provides for the same obligations for all States Parties and guarantees the same rights to all without discrimination unlike older treaties. It also has a highly democratic legitimacy because it comes “from below”, that is to say from civil society that mobilized itself, and because he does not put at the centre of its provisions the national security of the great powers, but the victims of past and future nuclear weapons use and testing. Finally, it promotes the neutrality, sovereignty and credibility of Switzerland and its position as an independent mediator in future conflicts.
Only the total elimination of nuclear weapons brings the certainty that these weapons of mass destruction will never be used again not even by terrorist actors or by accident. A rapid approval of the Treaty by Switzerland would not only be in its own interest, but also in that of future generations worldwide.