10.2.1 The Initial Set-Up: Sovereign Consent and Technical Expertise As Historical Legitimation Narratives in the Nineteenth Century

The original blueprint for IOs, including the first scholarly reflections on the legitimacy of their lawmaking activities stems from the nineteenth century. Industrialization, scientific, and technical inventions, European imperialism and the associated first wave of economic globalization in the nineteenth century created the perceived need of European national administrations to co-ordinate technical and humanitarian standards. Under the leadership of specific European powers and industrial or philanthropic elites, public international unions and commissions were created by international treaty law, such as the World Telegraph Union, the World Postal Union, or the river commissions for the navigation on the Danube and the Rhine; but also the late nineteenth century international debt commissions which regulated the Egyptian, Turkish, and Chinese debt restructuring programmes or the International Sugar Commission are cases in point. In the field of institutionalized humanitarian and social regulation the Office for the Prevention of Maritime African Slave Trade and Liquor Traffic based in Zanzibar, the Institute for Agriculture in Rome, the International Labor Office in Basel could be added as examples.Footnote ⁷

The original blueprint of these forms of cooperation is the harmonization of administrative action between European countries on certain issues which in the eyes of Europe’s great powers seemed to require international regulation. Particularly obvious was this need for coordinated administrative action in the field of new (communication‑) technologies, which had only been invented during that period. The International Telegraphic Union, which later became the International Telecommunications Union (ITU), served as a precedent for the subsequent creation of other permanent forms of administrative cooperation of States.Footnote ⁸ When major European powers, which were particularly advanced in the development of telegraphic technology, realized that the envisaged global expansion of this technology needed international cooperation, they invited twenty States in 1865 to Paris for a first international conference. States were represented diplomatically by their ambassadors in Paris and by expert delegates from the respective national administrations. The aim of the conference was a continuous harmonization of telegraph administration in the respective countries. Negotiators in Paris differentiated between the convention as a basis for further cooperation and specific harmonized regulations. Even though the convention had to be signed by the ambassadors, the concrete regulations were negotiated by the experts from the national administrations.Footnote ⁹

In the eyes of great power political elites, legitimacy was formally provided by sovereign consent and substantially by technical expertise. The initial convention foresaw regular conferences of the parties to formally amend its rules and regulations. Conferences would be organized by national administrations on a rotating basis. Only later was a permanent secretariat added to the organizational structure of the ITU with the task to facilitate the application of the convention by national administrations.Footnote ¹⁰ At an even later stage the organization decided to establish an executive council, consisting of a limited number of Member State-representatives with the task to represent the plenary organ between the regular plenary conferences.

With this organizational set-up, consisting of a plenary of diplomatic representatives, a smaller executive body of diplomatic representatives elected by the plenary, and a secretariat with international civil servants, a model for further IOs had been created: the convention usually established a main diplomatic plenary organ, in which legitimate rule-making in form of resolutions and standard-setting could take place. The plenary organs usually decided on the basis of the ‘one State one vote’ principle, hereby basing the authority and legitimation of new rules on the principle of sovereign equality. Voting under the unanimity-rule was therefore the standard procedure. The unions also often established a permanent secretariat as a facilitator of future conferences and for enhancing the application of standards. In the more mature organizations we can then observe the creation of an executive board or council as an executive supervisory organ usually consisting of a limited number of national representatives, elected by the plenary organ and representing the membership.Footnote ¹¹

In all international unions and commissions, the permanent secretariats not only started to employ international civil servants, but they also involved private expertise in their knowledge-creation and dissemination activities.Footnote ¹² The latter of which was not only the case for unions dealing with technical innovations but was also very common in the financial, humanitarian, and cultural field. Often private technical innovation or philanthropic projects driven by elite-networks led to privately organized international conferences, which preceded the initiation of international diplomatic conferences on the respective matters.Footnote ¹³ Those private associations, scientific institutions, and industry representatives, which had spearheaded technical or humanitarian cooperation, later usually remained an integral part of the knowledge and policy network, at the very heart of the respective international organization. The Egyptian Debt Commission of 1880 for instance consisted of national representatives from the major European creditors, which were in constant contact with the involved banks and their national financial stakeholders. Without the consent of the representatives of the creditor nations in the Commission, the Egyptian government could not incur any expenditures not authorized under the Convention.Footnote ¹⁴

Formal legitimation for lawmaking and standard-setting was taken to be provided by sovereign consent, substantively by technical expertise, and culturally by a strong ideology of universal cooperation in a perceived ‘common interest’. Decisions by executive bodies would be confined to less fundamental, that is administrative decisions, deriving their legitimacy indirectly from the plenary as an elected body. It goes without saying that colonized societies had no representation in the deliberations of these institutions being excluded from the legal privileges of European sovereignty as so-called ‘non-civilized’ entities. Colonies of the metropoles, such as the British crown-colony India, were usually represented by colonial administrations adding hereby to the numerical weight of European empires in these institutions, thus introducing the very first weighted voting procedures. European nineteenth-century observers of this early phase of international organization often waxed lyrical about these new organs, which are seen as an expression of the solidarity between ‘civilized’ nations in tackling practical questions raised by a rapidly advancing ‘European civilization’. Many of these co-operative endeavors in the eyes of European elites had become necessary in order to better administrate and enforce European economic and military imperialism in what contemporaries called ‘non-civilized’ areas of the world. In that sense European imperialism was not only facilitated by these first international institutions, but Europe’s ‘civilizing mission’ also provided a legitimation for enhanced cooperation between the metropoles. Contemporary literature abounded with the rhetoric of an ‘international community’ based on common interests. In 1907 the influential American commentator of the move to institutionalized cooperation Paul Reinsch, looking back to this first phase of institutionalization, expressed this optimistic liberal sentiment in the American Journal of International Law in the following words:

10.2.2 Weighted Versus Majority Voting in the UN System and the First Rebellion of the Third World

While the League of Nations had preserved the basic nineteenth-century structures of legitimation and decision-making in international institutions, including the ‘one State one vote’ principle and the unanimity-rule, the UN era introduced both majority voting and weighted voting in various international institutions and organs. The unanimity-rule had been identified by practitioners and scholars as one of the main obstacles to ‘getting things done’ in international institutions already before and during the Interbellum. Nicolas Politis in 1928 held that ‘to lay down the principle that in international organizations every important decision must be taken unanimously … is to admit that among nations no real organization is possible, for the rule of unanimity may lead to paralysis and anarchy’.Footnote ¹⁶ Considering that functionalist aspirations, understood as the common aim of elite-representatives to solve international co-ordination problems, had always been a driving force of the move to institutionalization, the frustration created by small minorities blocking institutional action was felt in various institutional settings since the late nineteenth century.

It may nonetheless seem surprising that in 1945 the US, the USSR, and the still existing European empires could agree on majority voting becoming the default rule in the UN and its specialized agencies; a development described by Wilfred Jenks as ‘a revolution of decisive importance’ for the future of international organization.Footnote ¹⁷ For majority voting always comes with the risk of being outvoted by coalitions of smaller States. One explanation for this great power acceptance of majority voting was the new combination with weighted voting procedures understood in a broad sense of the term. A pertinent if not infamous example are the veto rights of the five permanent members of the UN Security Council, entrenching a hegemonic position within a particularly powerful organ of the UN. But not only in the field of international security weighted voting procedures reflected a particular post–Second World War hegemonic status quo. In the Bretton Woods institutions, weighted voting rights equally translated the dominant position of the US and the European empires in the post-War world economy into institutional procedures and the composition of executive bodies. Democratic ideals as well as the principle of sovereign equality in many organs of international institutions gave way to forms of weighted representation according to material contributions, capabilities, and power resources.Footnote ¹⁸ Formally, unequal representation could of course always be legitimized by small States ‘consenting’ to accede to the respective regimes, reminding us of Karl Marx criticizing the notion of ‘free consent’ in the context of a starving worker signing an exploitative labour contract.

Be that as it may, post-war plenary organs of universal organizations by and large had moved from unanimity to majority voting on a ‘one State one vote’ basis. That plenary organs with majority voting rules could be used against executive bodies with privileged veto rights had been famously demonstrated in the 1950s by the Uniting for Peace Mechanism, which the US had invented to counter Soviet vetoes in the UN Security Council by UNGA resolutions on matters of war and peace. Unexpectedly, however, during the post-Bandung decolonization era, the US and the other Western great powers increasingly lost control of these plenary organs. The first Third World ‘rebellion’ started in the UNGA and developed into a broader ‘Battle for International Law’ in the decolonization era.Footnote ¹⁹ Legally, the crucial issue for the Third World represented by the Non-Alignment Movement was how to give non-binding majority resolutions of the UNGA, often adopted against the will of great powers, more weight in international legal discourse. It is the time of the debates on ‘instant custom’, the latter being allegedly created by non-binding resolutions over a short period of time.Footnote ²⁰

Reactions by Western scholars to this rebellion are revealing. Resolutions sponsored by a Third World majority in the context of decolonization and international economic cooperation were criticized by Western politicians, diplomats and scholars as ‘reckless’, ‘irresponsible’, and ‘undemocratic’.Footnote ²¹ New proposals for weighted voting in plenary organs countering the now deplored ‘automatic’ majority of Third World States suddenly abounded.Footnote ²² Particularly harsh were the reactions in US foreign policy circles given that up until the mid-1950s, the US had dominated the UNGA and practically all other organs of the UN, except for the Security Council where it had to cope from day one with the veto right of the Soviet Union. A US senator in a publication on the future of the UN pointed to the problem of unequal democratic representation because of diverging population-sizes behind the veil of the ‘one State one vote’ principle. He did so in racialized terms: ‘In this grotesque United Nations calculus one African bushman becomes the equivalent of 100 Frenchmen or 400 Americans’.Footnote ²³ In his very influential monograph on the emergence and structures of international institutions published in the 1950s, US scholar Inis L. Claude also warned his readers to be ‘on the guard’ against those who praise the turn to ‘equalitarian’ majority voting in international institutions:

The main problem for the Third World, however, was that the (non-binding) majority resolutions passed in the UNGA against the declared will of the great powers could not lead to new legal obligations under the prevailing doctrine of voluntarist positivism and the mainstream doctrine of sources. Joint Third World efforts during contemporary codification projects, such as the UN Conference on the Law of the Sea, were also only partially successful because of entrenched resistance by great powers in the respective negotiations.Footnote ²⁵ As to the claimed new customary rules emerging from UNGA resolutions, the ICJ would confirm new customary rules only in the case of norms from important and unanimous UNGA resolutions, hereby confirming the doctrinal requirement of sovereign (tacit) consent for new international law to emerge.Footnote ²⁶ Apart from the gradual incrimination of colonialism, the aspired international legal, political, and economic revolution was eventually thwarted by Western States and their scholars.Footnote ²⁷

One of the main reactions of Western powers during and after decolonization was to sideline those institutions or organs which were now perceived as ‘unruly’ and difficult to control because of majority voting on a ‘one State one vote’ basis. Instead, Western great powers enhanced cooperation through institutions, which remained under their political control, such as the G7, the North Atlantic Treaty Organization (NATO), the Security Council, and the Bretton Woods Institutions, often using also informal standard-setting and cooperation mechanisms such as the Basel Committee on banking-regulation. As to formal multilateral treaty-making, treaty projects were usually welcomed by great powers once they could help to cement their dominant or advanced position in certain sectors of global politics, be it global trade, investment, armaments, security, health, or communication technologies. Typical examples are the NPT for nuclear weapons, safeguarding an exclusive right of some States to possess nuclear weapons, or the TRIPS Agreement adopted under the WTO roof in the 1990s protecting technical innovations and thus the central position of the largest and most competitive domestic economies in global markets.

10.3.1 Participation of ‘the Most Affected’

Let me start by explaining the argued recent shift towards enhanced participation of the ‘most affected’ in international institutional law. On an empirical level this trend is rather obvious for civil society participation in international institutions. If we look back to the 1990s, ‘civil society’-participation in ‘Global Governance’ through involving NGOs was seen as a panacea-like concept to ‘democratize’ international institutions and to facilitate the realization of ‘common interests’ in international law. This idea of NGO-representation of abstract common interests, such as environmental protection or fighting impunity from human rights violations, however, has arguably given way to the more recent principle of participation of the ‘most affected’ in international institutions – the rise of ‘affected persons organizations’.Footnote ²⁸ Classic NGOs in various fields of law- and policy-making are increasingly replaced by local and transnational social movements, so called ‘affected persons’ organizations’ (APOs) as a reaction to a perceived crisis of legitimacy and a backlash against both international institutions and international NGOs.

This trend has, over the last ten years, already transformed rules of civil society participation in more than twenty prominent IOs. For example, members of indigenous groups and peasant organizations have successfully lobbied for new rights instruments and institutional reforms to ensure protection, participation, and influence in international institutions.Footnote ²⁹ Persons affected by HIV/AIDS, tuberculosis, and malaria have been accorded designated seats on decision-making bodies in the Global Fund, UNITAID, and other institutions of global health governance.Footnote ³⁰ Organizations of persons with disabilities took on a strong role in the negotiations of the UN Convention on the Rights of Persons with Disabilities. Working children movements from the Global South challenged the Western understandings of child labour in various intergovernmental organizations.Footnote ³¹ Among the first institutions which modified their rules of procedure accordingly were the FAO of the UN in Rome, the Monitoring Mechanism of the Convention on the Rights of Persons with Disabilities, and the WHO. In the FAO, Via Campesina, a global peasant movement, has for instance replaced Oxfam and ‘Friends of the Earth’ in the civil society mechanism.

Classic international NGOs and also States increasingly see political benefits in co-operating with social movements representing the ‘most affected’. In the fight against climate change, international institutions are also experimenting with new forms of participation of the most affected from small island States in the form of affected persons organizations and States.Footnote ³² In the same field young climate activists claim intergenerational justice as an age group that will be more affected by global warming than the rest of the population. Activists involved in these movements do not want to exercise formalized decision-making powers in these institutions. Rather, the general idea is to participate in institutionalized deliberations in order to influence the content of adopted decisions. For social movements participation in international institutions is one strategy among others aimed at fostering the transnational mobilization of political resistance against perceived hegemonic networks of powerful national administrations, scientific expertise, and influential corporate actors.

The status of speaking for those who are being negatively affected on the ground by certain norms and policies, if credible and well-coordinated, gives these voices moral and sometimes also empirical persuasiveness in these institutional settings. Usually, their positions are more radical and uncompromising than those of classic NGO representatives. Even without formal voting rights, APOs can have a considerable impact on the content of new international norms, standards and decisions; one example being the negotiations on the UN Convention on the Rights of Persons with Disabilities, during which many persons with disabilities representing disability-organizations participated and exerted considerable influence on the content of the convention adopted in 2006.Footnote ³³

The general concept of affectedness of course, is neither new, nor has it remained unobserved by researchers in social sciences. It is a basic and long-standing democratic ideal that those who are affected should have a say on issues that concern them.Footnote ³⁴ In traditional Western democratic theory, from Emmanuel Kant to John Rawls, being affected by rules enforced in a certain delineated territory has been conceptualized as requiring elections of representative bodies on a ‘one citizen, one vote’ basis, in order to ensure equal influence of affected individuals on the composition of parliaments and executive bodies. More recently, global justice scholars have sought to conceptualize an ‘all-affected principle’ as a normative expectation for law- and policy-making with transnational effects, and discussed its potential implications from the perspective of political philosophy.Footnote ³⁵ Even more relevant for the phenomenon under scrutiny here, Nancy Fraser proposed to replace the ‘all-affected principle’ by a more specific principle of involving all those groups ‘subjected’ to a given transnational governance structure (‘all-subjected principle’).Footnote ³⁶

Participation of ‘the most affected’ also has a constructivist and self-mobilizing dimension, which in this context should not be overlooked. By rallying and articulating their demands on the streets and in conference halls, affected individuals also constitute themselves as a specific collective entity. This self-constitutive mechanism is well known in democratic theoryFootnote ³⁷ – but now it is no longer ‘we the people’ but rather ‘we the 1.2 billion smallholders’ or ‘we the 600 million persons with a disability’. Reflected here on a global level is what Pierre Rosanvallon ascertained for the Nation-State: the people (peuple) nowadays is only a ‘litany of minorities and situations’.Footnote ³⁸ Given that organizations representing the ‘most affected’ do not primarily claim to advance universal or common interests, the question of how they actually managed to be regarded as an actor that can render the work of international institutions more legitimate is not easy to answer. One reason certainly is that under postmodern conditions ‘speaking for others’ generally has fallen under the suspicion of being another form of hegemonic paternalism. We are also witnessing a widely perceived crisis of representation in Western societies, which arguably comes with the perception that the articulation of one’s own interests as a general rule has to be as direct as possible. According to this concept, affected individuals should speak for themselves.

And yet ‘representation’ in the sense of ‘making present’ something that is literally absent is unavoidable even when the most affected take the floor in international institutions. The small holder-farmer from India is precisely being heard and included because she also claims to speak on behalf of similarly affected persons out there. Employing the categories of representation developed in Hanna Pitkin’s seminal monograph, participation of the most affected would fall under forms of ‘descriptive’ representation resting essentially on the resemblance between the group and its representative.Footnote ³⁹ The move to affectedness also has a related performative dimension that is connected to opportunities offered by new media. The authentic testimony of the speaker’s own experiences of discrimination, rising sea-levels, violence, or impoverishment is now crucial to have an impact on deliberations in and around international institutions.

Current media-driven campaign concepts, even those of classic NGOs, seem to require the authentic and tangible testimony of affected individuals in order to deliver their own message effectively. Affectedness in that sense has become an element of the political economy of civil society activities, which are always dependent on external donors. The existence of multifaceted relationships between large NGOs and most affected peoples’ organizations is therefore not surprising.Footnote ⁴⁰ Allow me one further remark on the political context, in which the rise of the ‘most affected principle’ takes place: the system of global governance structures, which was erected over the last thirty years, has proven to be quite efficient in creating globalized market structures, but it is increasingly seen as being more or less dysfunctional with regard to the protection of central social, humanitarian, and environmental values of human beings and all other living species inhabiting our planet.

Interestingly, in the nuclear non-proliferation field analysed as an example in more detail in the remainder of my contribution (Ban Treaty), a broad coalition of small and middle powers cooperating with most affected person’s organizations and classic NGOs successfully launched a new treaty project in order to correct the old NPT. Interestingly this initiative used majority decisions in the UNGA to create a new dynamic previously blocked by the great powers within the consensus-oriented NPT treaty organs. Creating more progressive treaties alongside existing multilateral regimes is perhaps the most formal approach to launching a rebellion against status quo-oriented great powers.

10.3.2 Rebel Treaties

Surabhi Ranganathan in her pathbreaking work on ‘strategically created treaty conflicts’ has shown how hegemonic powers (the US in particular) managed to exercise and indeed change multilateral treaty-regimes by a strategic move into bilateral treaty making. These moves served to counter the objectives of lawmaking conventions, such as the UN Convention on the Law of the Sea (UNCLOS) or the Rome Statute.Footnote ⁴¹ In a similar albeit reversed way broad coalitions of small and medium sized States together with Civil Society groups are currently trying to create new multilateral treaty law in order to put pressure on a small number of hegemonic powers to reform existing treaty regimes, if necessary by creating new complementary treaties. Arguably such rebel treaties are processes of lawmaking, which often aim at turning vaguely termed goals of existing regimes into specific (cross-sectorial) and thus now effective obligations of States in the form of new binding law. The resulting legal rules amount to substantial reforms and as such tend to be in tension with the existing (old) regimes even though they attempt to conceal potential collisions by somewhat euphemistically calling themselves ‘complementary’ or merely ‘concretizing’ instruments. One of the first examples of these forms of counter-hegemonic treaty making in the 2000s arguably was the International Treaty on Plant Genetic Resources for Food and Agriculture called ‘the seeds treaty’. This treaty set out to correct a hegemonic Western dominated intellectual property protection regime for agricultural seeds established in the 1990s by the Union for the Protection of New Varieties of Plants (UPOV) and the TRIPS regime. Its provisions aim at regulating biodiversity and intellectual property rights’ issues through a cross sectorial approach.Footnote ⁴²

From a legal perspective, such rebel treaties complementing the old treaty regime are not able to formally modify another existing treaty with a different set of States parties.Footnote ⁴³ Nonetheless rebel treaties can add a number of new obligations and institutional structures to the existing ones and change the overall legal landscape, in which the regime operates.Footnote ⁴⁴ Six characteristics of such forms of ‘rebellious treaty-making’ can be discerned:

1. - Rebel treaties are conceptualized and put forth as a reaction to ‘a failure of the international community in showing solidarity and equity’Footnote ⁴⁵ through existing legal regimes in face of planetary threats and catastrophes;

2. - These initiatives foresee a special (also performative) role and respect for both States and private groups who are particularly vulnerable or affected (‘the most affected’) by the failure of the international community to take action on the respective regulatory issue;Footnote ⁴⁶

3. - Rather than using only informal policy mechanisms to challenge the status quo through UNGA or other fora, these initiatives aim at formal and ‘complementary’ treaty-making hereby nonetheless substantially reforming existing international legal regimes without formally replacing or amending treaties already in force. They can be seen as a new counter-hegemonic version of ‘strategically created treaty conflicts’;Footnote ⁴⁷

4. - They also usually go beyond the Framework-Protocol approach known from international environmental law by challenging fundamental norms of the existing regime rather than concretizing regime-goals through new protocols, decisions, and regulations (framework-protocol approach);

5. - In their cross-sectorial approach, which reacts to the nature of the crisis phenomena addressed, these treaty projects disregard prior legal boundaries drawn by a deliberately fragmented institutional landscape;

6. - The new treaty instruments can create new organs but also use existing institutional infrastructures for oversight and monitoring as well as administrative capacities of the pre-existing treaty regime, while delegating new tasks to these bodies.

It is the TPNW which fulfils all of these rebel treaty-characteristics in an exemplary fashion. More than forty years after the adoption of the NPT, a broad coalition of non-nuclear weapons States created a new UN treaty on a general prohibition of nuclear weapons (TPNW) alongside the NPT.Footnote ⁴⁸ This initiative had been launched by a broad coalition of civil society organizations and small and middle-sized States.Footnote ⁴⁹ Within the coalition Japanese civil society organizations and representatives of small island States from the Pacific, which had suffered from nuclear testing activities by the US and France in the second half of the twentieth century, played a prominent role. At the first Meeting of States Parties to the TPNW in June 2022 Member States declared that the comprehensive legal prohibition of nuclear weapons had been established by the treaty as a necessary measure to implementing the disarmament pillar of the NPT. The aim of the treaty project was to ‘further stigmatizing and delegitimizing nuclear weapons and steadily building a robust global peremptory norm against them’.Footnote ⁵⁰

What was the prior status quo legalized by the NPT and in which way can the new TPNW with its sixty-eight Member States be seen as a fundamental challenge or correction of the previous legal regime? In 1968 with the adoption of the NPT a compromise had been struck between the then five nuclear powers and the rest of the world. All Member States not belonging to the exclusive group of nuclear powers at that point in time were obliged not to acquire nuclear weapons in the future. In return for taking on this obligation, Member States were allowed to develop civilian usages of nuclear energy facilitated by the nuclear powers. Moreover, Article VI of the NPT requires:

Additionally, the NPT came with a complex verification system based on differentiated monitoring activities carried out by the International Atomic Agency (IAEA). At the heart of the political mobilization for the new treaty was a sense of frustration among non-nuclear powers that the stockpiles of the five nuclear States had steadily expanded and diversified and that disarmament activities despite certain bilateral disarmament initiatives in the 1980s and 1990s had largely failed. Article 1 of the TPNW fundamentally challenges the NPT-distinction between privileged nuclear States and the ‘rest’ by generally prohibiting the development, deployment, possession, use, and the threat of use of nuclear weapons. As to its cross-sectorial implications, the TPNW takes a clear stance in the fifty-years-old struggle to ban nuclear weapons as a legitimate means of warfare in international humanitarian lawFootnote ⁵¹ holding in its preambular part that ‘any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law’. No wonder that the five nuclear States privileged by the NPT did not become parties to the TPNW claiming time and again that the new treaty was a dangerous development weakening the existing NPT regime.

But how does the new treaty itself deal with the NPT regime and with potential collisions between the two treaties? It is noteworthy in this context that the coalition driving the drafting process took care to avoid a confrontational stance regarding the NPT regime. Quite the contrary was the case as is reflected in numerous statements by delegations over time and more importantly in various norms of the TPNW. The preamble of the TPNW reaffirms that ‘the full and effective implementation of the [NPT], which serves as the cornerstone of the nuclear disarmament and non-proliferation regime, has a vital role to play in promoting international peace and security’. Rather than challenging the NPT explicitly, the Ban Treaty is thus portrayed as being a complementary regime enhancing the implementation of the above cited Article VI of the NPT, which indeed already in 1974 foresaw the conclusion of a disarmament treaty in the future. Not everybody agrees of course. France for example argued that the Ban Treaty created an ‘alternative, incompatible and incomplete norm’Footnote ⁵² undermining the existing non-proliferation regime. Interestingly, Article 18 of the Ban Treaty also holds that ‘[t]he implementation of this Treaty shall not prejudice obligations undertaken by States Parties with regard to existing international agreements, to which they are party, where those obligations are consistent with the Treaty’. While the first half-sentence of the provision strikes a conciliatory tone (‘not prejudice obligations … ’), the second half-sentence establishes a general collision-rule in favour of the provisions of the Ban Treaty hereby implicitly claiming that the Ban Treaty is lex specialis vis-à-vis other regimes on nuclear weapons.

As mentioned above, another characteristic feature of these exercises of rebellious treaty-making is the use of organs and institutional features created by the pre-existing regime. The new treaty inserts itself into the existing institutional set-up and monitoring mechanisms extending as a result the old regime without formally amending it. For example, Article 3 not only requires States parties to maintain their existing IAEA safeguards ‘without prejudice to any additional relevant instruments’ but the treaty also sets the IAEA Comprehensive Safeguards AgreementFootnote ⁵³ as a minimum non-proliferation verification requirement, herewith drawing heavily on the existing institutional infrastructure.Footnote ⁵⁴ At the same time this minimum-requirement for all Member States goes beyond the obligations set out in the NPT and from that angle the Ban Treaty strengthens the overall regime.