The year 2022 was undoubtedly marked by a strong prominence of the debate related to nuclear weapons, driven by a series of institutional events such as the Tenth Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the plenary United Nations (UN) meeting against nuclear testing and the first World Conference of States Parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW).
A geopolitical framework strongly impacted by the Russia-Ukraine conflict spurred the return of nuclear rhetoric, accelerating the historic stalemate of the NPT and jeopardizing its pillars of disarmament, non-proliferation and the peaceful use of nuclear power.[1] In this note, the Italian position regarding each of these subjects is outlined.
The Tenth Review Conference of the Parties to the NPT
The NPT opened for signature in 1968 and has been ratified by 191 countries. It is the cornerstone for cooperation on peaceful uses of nuclear energy, non-proliferation and disarmament.[2] On 2 August 2022, during the Tenth Review Conference of the Treaty, Italy’s Permanent Representative to the UN, Ambassador Maurizio Massari, issued a statement aimed at underscoring Italy’s renewed commitment to the strategic vision and to the disarmament goals advocated for by the Treaty.[3] Mr. Massari stated:
First, Italy reaffirms its strong belief in the Treaty as the cornerstone of the global nuclear non-proliferation regime, as the essential component of nuclear disarmament efforts and as a key component of the multilateral architecture. In this regard, we join others in calling upon all States that have not yet done so to join the Treaty as non-nuclear weapon States and to fully adhere to its terms. Italy views the three pillars of the NPT as complementary and mutually reinforcing and calls upon the full implementation of commitments taken during previous Review Conferences.
Referring specifically to the dangers represented by the nuclear rhetoric used during the Russia-Ukraine conflict, the Italian Ambassador expressed a firm condemnation of the Russian unjustified aggression that threatens the pillars of security and international law:
It is also our duty to condemn the intimidating use of nuclear rhetoric by a nuclear-weapon State associated with the invasion of a non-nuclear-weapon State; the betrayal of the security assurances given at the time of Ukraine’s accession to the NPT; and the threat posed to Ukraine’s nuclear infrastructures. […] Italy believes in the ultimate goal of a world free of nuclear weapons, and fully supports disarmament efforts in accordance with Article VI of the Treaty.[4]
This statement seems to fit into the debate that has been ongoing, since the beginning of the crisis between Ukraine and the Russian Federation in 2014, on the nature – legal or rather political – of the Budapest Memorandum on Security Assurances in Connection with Ukraine’s Accession to the NPT as a non-nuclear-weapon State.[5] With the Memorandum, signed on 5 December 1994, the United States (US), the Russian Federation and the United Kingdom provided Ukraine with assurances regarding its security and the maintenance of its existing borders. In exchange Ukraine gave up its nuclear arsenal – the third largest in the world.
The ambiguity of the language used in the Memorandum, expressed in the difference between the meaning of the words “guarantees” and “commitments” in English and in Ukrainian, was functional to, and necessary for, the actual achievement of the agreement. As stated by Mr. Steven Pifer, a US diplomat who participated in the negotiations for the Memorandum, “Kyiv treated the [Budapest] memorandum as, in effect, an international treaty, including by publishing the document in a compendium of Ukraine’s international treaties”.[6] However, in the words of the US ambassador to Ukraine, Mr. Roman Popadiuk, who was also involved in the negotiations: “[w]hile the United States was willing to entertain the idea of security assurances, it was not willing to provide ones that would be legally binding”.[7] The Memorandum, therefore, must be approached with the awareness that we are dealing with an instrument of lawfare, whose deliberately ambiguous nature[8] has been functional in reaching an agreement necessary to regulate the end of a world and to make Russia, as Washington wanted,[9] the sole nuclear heir of the Soviet Union, according to a true model of denuclearisation.[10]
The use of the term “betrayal” instead of “violation” in Mr. Massari’s statement, in fact, may suggest that, despite the position of Ukraine, the Budapest Memorandum is to be considered a political document, containing commitments that can be betrayed rather than – to use a more legally pregnant term – violated. Ukraine’s participation in the NPT could even be called into question if the Memorandum were not replaced in the future by an agreement universally perceived as legally binding.[11] At any rate, irrespective of the nature of such commitments, disregarding them negatively impacts on both the achievement of the objectives of the NPT and the maintenance of the international order.
Ambassador Massari added:
We urge Iran to return to fully implement its obligations under the [Joint Comprehensive Plan of Action] without delay. Likewise, we urge the [Democratic People’s Republic of Korea] to refrain from further provocations and to take concrete steps towards a complete, verifiable and irreversible denuclearization, and to return to the Non-Proliferation Treaty (NPT). […] Italy supports the inalienable right of all NPT Parties to develop research, production and use of nuclear resources for peaceful purposes in conformity with the Treaty, also in the light of a swift and sustainable energy transition. Italy strongly believes that any project involving nuclear energy, as well as any technology or application making use of radioactive materials, should provide and integrate elements of safeguards, safety, security, emergency preparedness and response. […] Italy’s overarching priorities at the Conference are to reaffirm the central, enduring role of the NPT in the multilateral architecture; to support the full implementation by all Parties of their commitments; and to make concrete progress towards achieving the disarmament and non-proliferation goals enshrined in the Treaty.
Mr. Massari’s statement, therefore, seems to be consistent with the obligations undertaken by Italy so far, reaffirming that the country’s commitment to the goal of nuclear disarmament is being pursued through a multilateral approach and the allegiance to the NPT and its Article VI.
The First World Conference of States Parties to the TPNW
The debate on nuclear security has been enriched in recent years by the emergence of an additional legal tool, the TPNW, which has raised numerous points of interest. This treaty, which entered into force on 21 January 2021, prohibits nuclear weapons and mandates their total elimination. Despite the dissatisfaction towards the achievement of the goal of nuclear disarmament among the States Parties to the NPT, the entry into force of the TPNW has provoked different reactions by international actors as well as scholars. Many see the TPNW as a response to a regulatory gap and the practical realization of Article VI of the NPT, whereby “[e]ach of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control”.[12] Others have raised concerns about the mutual compatibility of the two treaties.[13] According to NATO, in particular, the TPNW does not reflect current security obligations and risks undermining the effectiveness of the NPT towards wider cooperation on nuclear disarmament, also allowing treaty shopping.
In accordance with all other NATO Member States, except for the Netherlands, the Italian Government did not participate in the 2017 negotiating conference, supporting the Allies’ opposition to the TPNW.[14]Subsequently, the first Meeting of the Parties to the TPNW was held in Vienna from 21 to 23 June 2022. On that occasion, to overcome NATO’s overt opposition and engage nuclear-weapon States, the opportunity was granted to non-parties to assume the status of observers.[15] In this respect, on 18 May 2022, the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies approved Resolution No. 7-00766, committing the Government:
to considering, in consultation with the Allies, the possibility of participating as an ‘observer State’ in the First Meeting of the States Parties to the Treaty on the Prohibition of Nuclear Weapons (TPNW) to be held in Vienna in June 2022, taking into account the participation of the Governments of NATO countries, such as Norway and Germany.[16]
Nevertheless, such a request was rejected by the Italian Government. During the session of the Committee on Foreign and European Community Affairs held on 6 July 2022, the Undersecretary of State for Foreign Affairs and International Cooperation, Mr. Manlio Di Stefano, stated as a reply to Question No. 5-08329:
In the months and weeks leading up to the first Meeting of the States Parties to the Treaty on the Prohibition of Nuclear Weapons, the Italian Government held consultations with Allied and partner countries, and closely monitored the preparatory work. […] In 2016, we did not vote in favour of the Resolution by which the UN General Assembly initiated the Treaty process, and we did not take part, the following year, in the Conference that discussed the text. This is because Italy has always espoused a progressive and verifiable path toward disarmament, with the involvement of military nuclear States, as enshrined within the Non-Proliferation Treaty, the so-called NPT. Moreover, the Italian position is well known, and reflected in the communiqué issued by the Farnesina [the Ministry of Foreign Affairs and International Cooperation] on the occasion of the entry into force of the Treaty on the Prohibition of Nuclear Weapons. The two paths are parallel, and Italy’s assessment is that the one that passes through the NPT is more effective, as it precisely involves the major nuclear Powers.
As stated by Mr. Di Stefano, Italy’s position on the NPT has not changed since 2016. The decision not to participate as an observer State in the first Meeting of the Parties to the TPNW shows the perfect consonance between the stances of Italy – which hosts tactical nuclear weapons under nuclear sharing agreements[17] – and of NATO, which adheres to the defence and disarmament model inspired by the NPT. However, it should be noted that the Undersecretary of State did not dwell on the problem of the TPNW’s compatibility with the system of deterrence and armed interdependence on which the TPN is based, but rather affirmed that the two treaties, far from posing problems of incompatibility – if not legal, at least strategic – are “parallel paths”.
Italy’s non-participation as an observer State was criticized by the author of Question No. 5-08329, Ms. Laura Boldrini, who stressed the strategic and programmatic importance of Italy’s participation in the conference, pointing out that other States, which, like Italy, host nuclear weapons, had also participated as observers, even though they had not signed the TPNW. In this respect, the refusal of the Italian Government to take part in the conference may be said to reveal a political fact: Italy will align itself completely to the position of NATO, which, given its nature as a defensive alliance, has officially affirmed its opposition to the TPNW, seen as a threat to the framework of international security and to the architecture of non-proliferation and disarmament.[18]
The UN High-Level Plenary Meeting to Commemorate and Promote the International Day Against Nuclear Tests
The Comprehensive Nuclear-Test-Ban Treaty (CTBT), which prohibits any nuclear weapons test explosion or other nuclear explosion, has yet to enter into force more than 25 years after it was opened for signature. In this regard, on 7 September 2022, Ambassador Massari spoke as co-chair of the Conference on the Entry into Force of the CTBT, at the UN General Assembly Plenary Meeting on the International Day Against Nuclear Testing. He stated that “progress on the way to disarmament and non-proliferation requires that the current voluntary moratoria on nuclear test explosions be translated into a binding norm, through the entering into force of the CTBT”, adding that Italy supports any initiative aiming at facilitating this outcome.[19] Referring to how Russia prevented consensus from being reached on the final document of the Non-Proliferation Treaty Review Conference, which could have been of crucial importance for the entry into force of the CTBT, Mr. Massari noted that “[t]he current threats to global peace and security make it more urgent than ever to renew all efforts for the universalization and entry into force of the CTBT”.[20] Subsequently, he also mentioned the position of North Korea: “[w]e urge Pyongyang to engage in credible negotiations and to respect the resolutions of the United Nations Security Council, to rejoin the Treaty on the Non-Proliferation of Nuclear Weapons, and to sign and ratify the CTBT”.[21]
It should be noted, however, that it is not certain whether North Korea is legally prohibited from conducting nuclear tests, as it announced its withdrawal from the NPT in 2003 and has never ratified the CTBT.[22] Despite the absence of a positive prohibition, some authors have pointed to the rise of a customary rule prohibiting nuclear testing, based mainly on the reaction of States and the Security Council to all tests conducted since 1996, as well as on the moratorium on nuclear testing by all parties to the NPT, including nuclear-weapon States.[23] The consolidation of a rule of customary law would have been favoured also by the reaction of States to the Marshall Islands case.[24]
Within this wider context, the words of the Italian Ambassador seem to express an opinio juris that is contrary to the existence of a rule of customary law prohibiting nuclear tests. The emphasis on the need for binding rules, coupled with the encouragement to ratify the CTBT, implies that Italy does not consider the prohibition of nuclear tests to have achieved the status of a customary rule.
Amelia Fiore
A quotable version of this post was published in the Italian Yearbook of International Law: Fiore, “On Some International Agreements Concerning Nuclear Weapons in Light of the New Challenges Posed by the Russian Invasion of Ukraine”, IYIL XXXII (2022), 2023, pp. 540-545; available here.
[1] Trezza, “Il Tnp e il rischio della corsa agli armamenti nucleari”, Affari Internazionali, 1 September 2022.
[2] United Nation Tenth Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, 1-26 August 2022.
[4] Ibid.
[5] Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons, Budapest, 5 December 1994.
[6] Yost, “The Budapest Memorandum and Russia’s intervention in Ukraine”, International Affairs, 2015, p. 505 ff., p. 513.
[7] Popadiuk, “American-Ukrainian Nuclear Relations”, Institute for National Strategic Studies, McNair Paper No. 55, October 1996, pp. 59-60.
[8] Soldatenko, “Constructive Ambiguity of the Budapest Memorandum at 28: Making Sense of the Controversial Agreement”, LawfareBlog, 7 February 2023.
[9] Budjeryn, “The Breach: Ukraine’s Territorial Integrity and the Budapest Memorandum”, Wilson Center Nuclear Proliferation International History Project, September 2014.
[10] Garnett, “The ‘Model’ of Ukrainian Denuclearization”, in Knopf (ed.), Security Assurances and Nuclear Non-proliferation, Stanford, 2012, p. 246 ff.
[11] Grant, “The Budapest Memorandum of 5 December 1994: Political Engagement or Legal Obligation?”, Polish Yearbook of International Law, 2014, p. 89 ff.
[12] Sossai, “Il rapporto tra il trattato sul divieto di armi nucleari e gli altri accordi in materia di non-proliferazione e disarmo”, RDI, 2018, p. 185 ff.
[13] For an overview see: Hill, “NATO and the Treaty on the Prohibition of Nuclear Weapons”, Chatham House Research Paper, 29 January 2021, p. 12 ff.; Kimball and Bugos, “The Treaty on the Prohibition of Nuclear Weapons at a Glance”, Arms Control Association, September 2022; Onderco, “Nuclear Ban Treaty: Sand or Grease for the NPT?”, in Sauer, Kustermans and Segaert (eds.),Non-Nuclear Peace: Beyond the Nuclear Ban Treaty, Cham, 2020, p. 131 ff.; Mukhatzhanova, “The Nuclear Weapons Prohibition Treaty: Negotiations and Beyond”, Arms Control Today, September 2017, p. 12 ff.; Mount and Nephew, “A Nuclear Weapons Ban Should First Do No Harm to the NPT”, Bulletin of the Atomic Scientists, 7 March 2017.
[14] Castelli, “L’Italia e il Trattato per la Proibizione delle Armi Nucleari”, Affari Internazionali, 18 July 2022.
[15] Ibid.
[16] Sweden, Belgium and the Netherlands also announced their participation as observer States.
[17] Sossai, cit. supra note 12.
[18] North Atlantic Council Statement as the Treaty on the Prohibition of Nuclear Weapons Enters Into Force.
[19] The statement delivered by the Permanent Representative is available here.
[20] Ibid.
[21] Ibid.
[22] Tabassi, “The Nuclear Test Ban: Lex Lata or de Lege Ferenda?”, Journal of Conflict & Security Law, 2009, p. 309 ff.
[23] Ibid.
[24] Mock, “The Legality of North Korea’s Nuclear Position: Lessons Regarding the State of Nuclear Disarmament in International Law”, New York University Journal of International Law and Politics, 2018, p. 1093 ff.
Italy's Diplomatic and Parliamentary Practice on International Law 