Humanization of Arms Control: Paving the Way for a World free of Nuclear Weapons (Routledge, 2017) – A short book presentationPosted: February 14, 2018
The following is a guest post by my friend Daniel Rietiker, who is a Lecturer at the University of Lausanne. It provides an review of his newly published book.
I think the issue of international human rights law and its application to the possession and potential use of nuclear weapons is worth discussing, so I welcome Daniel’s new book. I personally have some reservations about the scope of the application of human rights law to these subjects. And I’ll maybe post a comment or two in that vein, and encourage others to comment as well. But first, I welcome Daniel’s guest post. DJ
Humanization of Arms Control: Paving the Way for a World free of Nuclear Weapons (Routledge, 2017) – A short book presentation
BY: Daniel Rietiker
- Introductory remarks
The new book takes a new approach to arms control, by placing the victim of the relevant weapons at the centre of attention. It consists of two main parts. The first one is devoted to conventions dealing with weapons others than nuclear weapons (CWC, Ottawa Convention on anti-personnel mines and Oslo Convention on cluster munitions, and ATT). It is divided into three parts, namely the preparatory history of the relevant treaties, in particular the role played by civil society, the contribution of the relevant treaties to the protection of the human being and the implementation and verification of the treaties by human rights actors and institutions. The first part concludes that, within those treaties, the human-based approach is well established.
The question remains whether the same can be said for the field of nuclear weapons – question dealt with in the second part of the book. This part follows a similar structure to the first one. One of the main purposes of this part is to demonstrate the illegality of nuclear weapons under humanitarian and human rights law.
In this short presentation, I will concentrate on only one aspect of the book, namely the relevance of human rights to nuclear weapons, in particular to their actual use. I devoted quite a substantive part of my book to this aspect since I always had the impression that human rights law, contrary to humanitarian law, had been neglected in the doctrine of international law in respect of nuclear weapons, in spite of its advantages, which I will mention further below.
Moreover, the book distinguishes between the rights of direct victims of use of nuclear weapons attack, on the one hand, and those who are not directly exposed to such an attack, but suffer from the consequences of ionizing radiation, often years and decades later. Those consequences concern basically all nuclear activities, including the production of nuclear energy (and waste management), uranium mining and the scenario of nuclear accidents, as well as testing of nuclear weapons. In my book, I illustrate the example of a regional nuclear war, for instance between India and Pakistan, and I analyze its global human rights impact in terms of health, environment, climate and development.
In the present summary, however, I will for practical reasons limit my considerations to the direct victims of an attached launched by nuclear weapons.
The relevance of human rights to nuclear weapons has very recently been acknowledged officially, namely through the adoption of the new Treaty on the prohibition of nuclear weapons, in New York on 7th July 2017. Indeed, on several paragraphs, this treaty refers explicitly to human rights; first of all, in its preamble, where it states that:
“The States Parties to this Treaty (…) Reaffirming the need for all States at all times to comply with applicable international law, including international humanitarian law and international human rights law” (§ 8 of the preamble).
Moreover, its Article 6 deals with “victim assistance and environmental remediation” and, apart from explicit references to human rights law, there are many other uses of language, such as “victims” of nuclear weapons, including “hibakusha”, that are closely linked to human rights violations.
In brief, the new treaty prohibiting nuclear weapons confirms the close link between human rights law and nuclear weapons and related activities, in particular testing of nuclear weapons.
- The added value of human rights law in the nuclear age
What is the relevance of human rights law and what makes it worth being analyzed in the nuclear field? I only mention three of many more aspects that I have discussed in my book.
First of all, human rights law is applicable in all circumstances, contrary, inter alia, to international humanitarian law that only applies in times of armed conflict. It is true that all major human rights instruments contain clauses allowing to derogate from certain rights in times of emergency. Those derogations clauses have only rarely been used (recently by Turkey and France applying Article 15 of the ECHR), contain significant substantive and formal conditions that have to be met and, moreover, do not apply to particularly important rights, in particular the right not to be subject to torture, inhuman or degrading treatment.
Second, the particular nature of certain human rights has to be stressed. Certain fundamental rules of human rights law have to date attained customary law status and, therefore, apply also to States that have not ratified the relevant treaties. Moreover, the normative supremacy of certain norms of international law has to be stressed too. They belong to the peremptory norms of international law or norms of jus cogens in the sense of Articles 53 and 64 of the VCLT. For instance, if we take the example of the prohibition of genocide, one of the undisputed norms of jus cogens, it means that a genocide could not justify a counter-genocide. Also the prohibition of torture, inhuman and degrading treatment falls under this definition, which is of relevance for nuclear weapons, as will be shown below.
Third, there is also recognition, in international human rights law, of certain groups of victims that are particularly vulnerable, for instance indigenous peoples, children and women. Certain instruments, treaties as well as non binding declarations, have been adopted specifically for their protection, such as the or the UN Declaration on the rights of indigenous peoples (2007), the UN Convention on the rights of the child, or the UN Convention on the Elimination of Discrimination against Women (CEDAW). Interestingly, the TPNW also refers to such groups, namely in paragraphs 4 and 7 of the preambular.
- Most relevant human rights for victims of direct attacks by nuclear weapons
- The right to life
The most obvious human right when talking about the use of nuclear weapons is the right to life. The ICJ, in its 1996 Advisory Opinion on the Legality of Use and Threat of Nuclear Weapons, confirmed the applicability of the right to life (Article 6 ICCPR) in time of armed conflict and, moreover, observed that the test of what is an “arbitrary deprivation of life” has to be determined in light of international law governing armed conflict, in particular humanitarian law (ICJ Reports 1996, § 25).
It is interesting that, contrary to the ICCPR (Article 4 and 6), within the ECHR, the right to life can be derogated from, in particular for “deaths resulting from lawful acts of war.” (Article 15 § 2). From my point of view, such a derogation would not be relevant in the case of use of nuclear weapons since its effects are so devastating, disproportionate and indiscriminate that the damage and harm caused to civil populations would be unacceptable and illegal under international humanitarian law. Therefore, the acts of war would not be “lawful”.
The ECtHR had to deal with cases introduced by relatives of civilians who died during combat operations against rebel groups. In order to ensure that the use of force was no more than “absolutely necessary”, the test under Article 2 ECHR, the Court examined whether the planning of the operation was such as to “avoid” or at least “minimise deaths”. In a case against Russia concerning air operations against rebels during the Second Chechen War, the ECtHR concluded that there had been a violation of the right to life, in particular for having exceeded what was necessary in the concrete situation:
“180. … the Court may be prepared to accept that the Russian authorities had no choice other than to carry out aerial strikes in order to be able to take over Urus-Martan, and that their actions were in pursuit of the aim set out in paragraph 2 (a) of Article 2 of the Convention, as alleged by the Government. It is, however, not convinced, having regard to the materials at its disposal, that the necessary degree of care was exercised in preparing the operation of 19 October 1999 in such a way as to avoid or minimise, to the greatest extent possible, the risk of a loss of life, both for the persons at whom the measures were directed and for civilians” (Khamzayev and Others v. Russia, no. 1503/02).
In this case, the Russian operation resulted in 6 deaths, 16 injuries, and 13 houses destroyed, caused by the use of high-explosive fragmentation bombs of caliber 250-270 kg. These weapons were considered “indiscriminate weapons” by the Court, which concluded that the use of such bombs in inhabited areas was “manifestly disproportionate” to the aim of dislodging the extremists (§ 189).
In light of this jurisprudence, the large number of deaths likely to be caused by a nuclear explosion would not meet the high standards of the ECHR and the ICCPR regarding the right to life. In light of the uncontrollable effects of a nuclear weapons use and the numerous victims, it seems impossible to administer the proof that sufficient precaution had been taken to “avoid or minimize” incidental loss of life.
Moreover, the presence of radiation after an attack would also hamper the ability to search for, rescue, and care for wounded, which could amount to further violations of the right to life. Indeed, recent studies have shown that one of the aspects that make nuclear weapons so special and fatal is the fact that no adequate rescue and medical response is possible due to the complete destruction of infrastructure, the death of medical personnel, and the long-lasting radioactivity rendering access to the are very difficult. In my book, I have mentioned several cases decided by the ECtHR that may illustrate the positive duties after a life-threatening incident in the aftermath of a nuclear explosion.
Finally, one ongoing aspect on the right to life is noteworthy: The UN Human Rights Committee (HRC), the body implementing the ICCPR, after having already issued two so-called General Comments (GC) on the right to life referring explicitly to the danger of nuclear weapons, has started its considerations of a new GC no. 36 on the right to life some year ago. For the time being, a second draft has been adopted for further consideration. Contrary to the first draft, this draft contains quite a useful paragraph on nuclear weapons (without references):
“13. The [threat] or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate in effect and can destroy human life on a catastrophic scale, is incompatible with respect for the right to life and may amount to a crime under international law. States parties must take all necessary measures to stop the proliferation of weapons of mass destruction, including measures to prevent their acquisition by non-state actors, to refrain from developing, producing, testing, stockpiling and using them, and to destroy existing stockpiles, all in accordance with their international obligations. They must also respect their international obligations to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective international control [and to afford adequate reparation to victims whose right to life has been adversely affected by the testing or use of weapons of mass destruction]. ”
- Other “civil” rights affected by the use of nuclear weapons
In order to fall within the ambit of Article 3 ECHR, ill-treatment must attain a certain minimum level of severity (so-called “threshold-theory”). Once this level is reached, the ECtHR usually determines which of the three categories of treatments is involved (torture, inhuman or degrading treatment).
In my book, I argue that the use of nuclear weapons could amount at least to “degrading treatment”, since it deprives the victims of their basic dignity. The standard formula developed and applied by the Court for this level is treatment “such as to arouse in the victims feelings of fear, anguish and inferiority capable of humiliating and debasing them” (see for instance Kudla v. Poland [Grand Chamber], 26 Occtober 2000, § 92).
For the reasons indicated in my book, I also suggest that the use of nuclear weapons could amount to “inhuman” treatment, and maybe even to “torture”.
It is also noteworthy that, in the case of Selçuk and Sker v. Turkey, the ECtHR held that there was “inhuman” treatment when, as a part of a security operation, the security forces destroyed the elderly applicants’ home and property in a contemptuous manner and in their presence, without regard to their safety or welfare, depriving them of their livelihood and shelter and causing them great distress (in particular § 77). It is obvious that the destruction of one’s home by a nuclear blast is very likely to have a similar effect and could amount, on its own, to a breach of Article 3 ECHR.
Essentially for the same reason, namely destruction of homes and property, a nuclear attack would affect the victims’ right to respect for private life and home (in Europe, Article 8 ECHR) as well as the right to property (Article 1 of Protocol 1 to the ECHR). These rights are less protected than the values under Article 2 or Article 3, since they can be restricted and derogated from under Article 15 ECHR.
I have to stress that the rights chosen for the sake of this summary is only a selection. In my book, I draw the conclusion that, in the end of the day, the use of a nuclear weapon would certainly constitute the total denial of all basic human rights.
- Economic, social and cultural rights, considered with special regard to vulnerable groups of people
The rights of victims of use of nuclear weapons have also to be assessed in light of economic, social and cultural rights, which are likely to be breached by such an attack. In the book, the relevance of the following rights, in the context of nuclear weapons, is assessed: the right to development and the right not to be discriminated against, the rights to the highest standard of health and to a healthy environment, as well as the right to an adequate standard of living, in particular the rights to food and to water.
Concrete examples are, in particular, the cases decided by the ECtHR in environmental matters, including the right to water, a more recent human right that, for the reasons indicated in my book, are very relevant in the nuclear field.
The particular vulnerability of certain groups of people deserves special attention in the context of economic, social and cultural rights. The victimization of women and children also raises the topic of rights of future generations, in light of the fact, for instance, that after Chernobyl, many children were born with congenital deformations and considering that the latency period for many types of cancers is 25-30 years. As mentioned in the introductory part, the particular vulnerability of women, children and indigenous peoples is explicitly recognized in the TPNW.
- Concluding remarks
In light what precedes, it can be summarized that human rights are applicable in armed conflict and impose significant limits to the use of nuclear weapons, together with international humanitarian law. Moreover, human rights law has important advantages compared to humanitarian law, for instance the fact that certain rights cannot derived from under any circumstances. It is also worth repeating that a human rights approach to nuclear weapons has to be done in the broad sense, including the relevant civil rights as well as economic, social and cultural rights.
I am glad that the TPNW was adopted so quickly last summer, since it constitutes a kind of “blessing” of the suggestions and ideas that I made in my book. It is obvious, for me, that human rights have penetrated into the nuclear weapons field at latest in July 2017. The opposite seems, by the way, also to be more and more the case, recalling the example of the HRC, a human rights body, adopting a new GC on the right to live where it explicitly refers to the danger and risk of nuclear weapons.
[Cross-posted from The Trench]
In my blog posting of 16 January entitled ‘Palestine: From a “will-be” party to the CWC to a “would-have-been”?’, I described how Palestine submitted its instrument of accession to the Chemical Weapons Convention (CWC) with the UN Secretary-General on 29 December, only to withdraw it on 8 January. Since having achieved the status of ‘UN non-member observer state’ in 2012, Palestine has joined over 50 international agreements, including the Biological and Toxin Weapons Convention, to which it became formally a party on 16 January. The CWC is the only treaty on which it reversed its position.
Retracting an instrument of accession is a highly unusual and the motivation behind the step was unclear. Since the blog posting, still nobody is able to offer even a beginning of an explanation for the step.
A rare step nonetheless
Prof. Masahiko Asada of the Graduate School of Law at Kyoto University responded to the blog posting by pointing out that there are in fact precedents involving the withdrawal of an instrument of ratification before the entry into force of a treaty. He specifically pointed to the 1995 UN Fish Stocks Agreement. Italy and Luxembourg ratified it in 1999 and 2000 respectively. Both countries withdrew their instruments ratification and re-ratified it in 2003 along with other European Union (then still the European Communities) members with declarations.
He also referred me to a publication prepared by the Treaty Section of the UN Office of Legal Affairs, Summary of Practice of the Secretary-General As Depositary of Multilateral Treaties. Section H (p. 47) describes circumstances and gives more examples:
157. A State that had deposited an instrument of ratification or of a similar nature may subsequently decide to withdraw its instrument. The Vienna Conference on the Law of Treaties did not address this question. The practice of the Secretary-General has been to allow such a withdrawal until the entry into force of the treaty, on the understanding that, until that time, States are not definitely bound by the treaty.
158. In some cases, States that had thus withdrawn an instrument subsequently deposited a new instrument, but this time with reservations. In this manner, they were in compliance with the rule according to which reservations must be made at the time of deposit of the instrument (see para. 204). Thus, for example, the Government of Greece, which on 6 December 1950 had deposited an instrument of acceptance of the Convention on the Intergovernmental Maritime Organization of 6 March 1948, withdrew that instrument on 26 March 1952 (before the entry into force of the Convention, which took place on 17 March 1958), but reaccepted the Convention on 31 December 1958, with a reservation. And the Government of Spain, which on 29 July 1958 had deposited an instrument of accession to the Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats, and Protocol of Signature, signed at Geneva on 18 May 1956, withdrew the said instrument on 2 October 1958 (before the entry into force of the Convention, which took place on 1 January 1959) and then deposited a new instrument with a reservation.
So, while there have been a few withdrawals of instruments of ratification, countries seem to have taken this step (1) when the treaty had not yet entered into force for anybody; and (2) possibly with the intention to re-ratify at a later stage but with the addition of reservations.
Palestine’s action does not seem to fit this practice.
First, none of the treaties in the examples concern international security or weapon control.
Second, Article XXII of the CWC stipulates that ‘The Articles of this Convention shall not be subject to reservations’. In other words, Palestine cannot retract its instrument of accession with a view of re-submitting it with a reservation. It could, however, express some reservations with respect to the annexes to the CWC provided these are not incompatible with the object and purpose of the convention.
Third, the UN Office of Legal Affairs also noted that ‘the withdrawal of instruments is accepted until the entry into force of the corresponding treaty’ (para. 159). The CWC has now been in force for over 20 years.
The UN Office of Legal Affairs primarily assessed the implications of such withdrawal on when a treaty takes legal effect. It did not delve into the question of withdrawal of accession. Yet, it seems to have left the door open for scenarios involving accession or succession (implying that the treaty would already have entered into force) when it referred to ‘instrument of ratification or of a similar nature‘. However, the lack of concrete examples may suggest that UN Secretary-General Guterres’ acceptance of the Palestinian retraction may yet have set a precedent in international legal history.
Answers? Questions! Questions? Answers!
Literally nobody has an explanation for Palestine’s withdrawal of its instrument of accession or an idea what the Palestinian Authority’s next move might be.
Senior staff within the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) were as confounded as anyone else. This puts to rest my benign suggestion that the OPCW might have alerted the UN Secretary-General to possible complications of Palestine joining the CWC without any formal preparations. No such steps or similar types of communication were undertaken.
Representatives from CWC states parties expressed similar surprise. One rumour circulating in The Hague suggested that Egypt had persuaded the Palestinian Authority in Ramallah to withdraw from the treaty. However, as one ambassador from a Western country told me, ‘this is all what it is, a rumour’. Some persons pointed to the prospect of US financial retaliation (which I explained, but discounted in the original blog posting), but nobody heard an American official even suggest such a possibility.
A former Arab ambassador reached out to colleagues and friends in the Middle East. He replied that nobody was able to provide answers to my questions. Palestinians reached out to the Authority and Palestinian diplomats in disarmament capitals, but again the answer was that ‘no one either knows or wants to talk about it’.
No explanation as to why Palestine withdrew its instrument of accession to the CWC is forthcoming at present. The questions raised in my initial blog posting remain open. Particularly vexing is: why the CWC, and not also one of the 54 other treaties that Palestine has joined over the past three years?
I would like to thank Prof. Masahiko Asada for having pointed me to the broader context of withdrawal of instruments of ratification. My great appreciation also goes to research colleagues and present and former diplomats who brought me in contact with relevant personalities and/or have tried to receive answers from relevant policy makers and implementers.