What Nuclear Weapons-Related Activities Are Covered by the Environmental Remediation obligation of the Nuclear Ban Treaty? Part 2: Policy Considerations and Ways Forward
Posted: June 25, 2022 Filed under: Nuclear 1 CommentBy: Dr. Christopher Evans
In the first part of this post, I discussed the lack of clarity concerning the scope of activities captured by the environmental remediation provision of the Treaty on the Prohibition of Nuclear Weapons (TPNW) contained in Article 6(2) based on an examination of this provision from a treaty interpretation perspective applying Articles 31 and 32 of the Vienna Convention on the Law of Treaties. Having illustrated how continuing ambiguity exists, Part 2 of this post identifies certain policy/practical questions that states parties may wish to consider before deciding whether to endorse a broad or narrow interpretation of Article 6(2), and looks at some ‘ways forward’ whereby TPNW parties themselves could provide further clarification on this issue within the institutional settings of the first meeting of States parties (1MSP) of the TPNW.
Reinforce the humanitarian objectives of the TPNW?
To begin with, it could be argued that a broader interpretation of nuclear weapons-related activities covered under Article 6(2) would support the underlying humanitarian objectives of the treaty. Indeed, environmental remediation involves ‘measures that may be carried out to reduce the radiation exposure from existing contamination of land areas through actions applied to the contamination itself (the source) or to the exposure pathways to humans’ (here, page 28). As such, stepping beyond only the testing and use to address environmental harms caused by other nuclear weapons-related activities could positively impact human health and well-being by reducing sources of exposure. This would align with the TPNW’s overarching purpose as a ‘Humanitarian Disarmament’ treaty, which ‘focuses on preventing and remediating human suffering and environmental harm’ caused by problematic weapons, while equally remediating the environment as a specific objective.
At the same time, it may perhaps be worth recalling how environmental concerns have been framed previously in connection with nuclear weapons during the TPNW’s development process. For example, throughout the ‘Humanitarian Conferences on the Impact of Nuclear Weapons’ held in Oslo, Nayarit, and Vienna between March 2013–December 2014, most presentations stressed the devastating effects of past nuclear weapon testing and use for the environment, alongside the predicted environmental and climatic impact of any future use of nuclear weapons (see here, here, and here). Accordingly, a narrow interpretation of Article 6(2) would align with how environmental damage has previously been contextualised throughout the TPNW negotiation process, primarily in relation to the testing and use of nuclear weapons rather than additional activities.
Overburdening ‘Affected States parties’ under a broad interpretation?
A second issue is the need to display caution about creating overly arduous commitments under Article 6(2) upon TPNW parties. Indeed, as primary responsibility to implement Article 6 rests on ‘affected’ states parties rather than user/testing states (see here, pages 71-80 and here, pages 346-347), there remains a risk that affected states could be overburdened by the obligations under Article 6(2) if the phrase ‘activities relating to testing or use of nuclear weapons’ is interpreted broadly. To take one example, a state such as Kazakhstan, already heavily affected by former Soviet nuclear testing during the Cold War, would be required to extend its remediation efforts to cover its extensive uranium mining activities, not to mention other sources of contamination from the storage of nuclear weapons on Kazakh territory by the former Soviet Union. In essence, Kazakhstan would be ‘doubly’ affected by a broader interpretation of Article 6(2).
On the other hand, many others have only previously experienced a single, specific type of harm. For example, amongst current TPNW parties where uranium mining occurs including Namibia, and signatories like Niger, Malawi, no other significant ‘activities relating to the use or testing of nuclear weapons’ have previously taken place. Similarly, states that have been subjected to nuclear weapons testing, such as the Marshall Islands, Algeria, and Kiribati, do not also have a history of uranium mining or fissile material production. While this does not seek to downplay the challenges posed by remediating contaminated sites within these ‘singly’ affected states, it does indicate that resources will not always be overly stretched in every case if a broad interpretation of activities is endorsed by TPNW parties.
Finally, while Kazakhstan would be ‘doubly’ affected by a broader interpretation of Article 6(2), it nonetheless remained one of the few states that called for a broader range of activities to be addressed through environmental remediation at the 2017 negotiation conference (see here at 16:30-16:48). This may indicate that Kazakhstan is less concerned with the possibility or implications of becoming overburdened if Article 6(2) is extended broadly in the manner described.
Operational Challenges and Questions
RelatedLY, if a broad interpretation is endorsed, this could give rise to complex operational questions and challenges when implementing Article 6(2), particularly in terms of prioritising remediation efforts. For example, should affected parties address environmental damage from the testing and use of nuclear weapons and other related activities simultaneously, and thus divide their (often limited) resources? Alternatively, should environmental harms from a broader range of nuclear weapons-related activities could be addressed based in order of severity as opposed to the source of the harm? Or could a ‘stepped’ approach be adopted whereby contamination from past testing and use of nuclear weapons is addressed first, before attention turns to other sources of environmental damage? While a ‘stepped’ approach may prove a pragmatic solution, this prioritisation process could unintentionally create an implied ‘hierarchy’ of environmental harms, whereby the contamination from nuclear weapon testing and use are afforded priority over other, often equally devastating, forms of environmental damage (though equally, an implied hierarchy could arise under a narrow interpretation of activities captured by Article 6(2) by States parties, as this would reflect a conscious decision to address environmental harms solely from the use or testing of nuclear weapons above other sources).
Admittedly, these practical questions and concerns arising from how environmental harms under a broader interpretation of Article 6(2) would only arise in the case of States that are ‘doubly’ affected by various sources of nuclear weapons-related contamination that, as noted, may be the expectation rather than the norm. Moreover, it is worth noting that standards of best practice to assist with the remediation of contaminated areas following uranium mining, nuclear accidents, and other nuclear weapons-related forms of environmental harms have been developed by the International Atomic Energy Agency, and jointly by the Nuclear Energy Agency and the Organisation for Economic Co-Operation and Development. Although these represent non-binding guidelines, this illustrates that affected states parties could use existing frameworks, guidance, and practices to address a wider range of nuclear weapons-related environmental harms if additional activities are caught by a broader interpretation of Article 6(2). Accordingly, while questions may arise in terms of prioritising sources of contamination to be addressed under a broader interpretation, existing standards of practice could help facilitate implementation of Article 6(2) on the ground.
Ways Forward
Given the inconclusiveness of the scope of activities captured by Article 6(2) after applying the rules of treaty interpretation, coupled with the above policy/practical questions identified, it is apparent that determining the precise scope of activities captured by Article 6(2) represents an important, though complex issue that requires further deliberation by TPNW parties. Because the operationalisation of Article 6 will likely constitute a high priority aspect of the TPNW for states parties (see generally the ‘Special Section’ of Volume 12(1) of Global Policy and here), it is recommended that this issue concerning the scope of nuclear weapons-related activities caught under Article 6(2) should form the basis of an agenda item to be considered further during (1MSP) established pursuant to Articles 8(1) and (2) scheduled to be held in Vienna between 21-23 June 2022.
In addition, it is suggested that 1MSP should establish an inter-sessional working group on this topic to provide TPNW parties and appropriate civil society and non-governmental organisations with an opportunity to advance positions on, and consider the implications of this issue more comprehensively. There have already been calls to create an inter-sessional working group in relation to the positive obligations under Article 6 generally, and this issue concerning the scope of activities caught by Article 6(2) could be situated within this, or its own, group.
In terms of composition, the inter-sessional working group should encourage participation from both ‘affected’ states and other TPNW parties that have prior experience in dealing with contamination from past nuclear weapons testing and use, nuclear-related accidents, or sources contamination caused by nuclear energy. Civil society, international organisations, engaged non-governmental organisations, and the academic and scientific community should also be permitted to participate in the discussions in order to provide valuable technical, scientific experience, and expertise on the wider challenges associated with environmental remediation (similar to the three Humanitarian Conferences and civil society input during the 2017 negotiation conference, see here page 108-109).
Finally, in terms of substantive outcomes of the inter-sessional working group, participating actors in the group could develop a draft discussion/issue paper to be shared at the next MSP. This may even advance some tentative recommendations as to how this ambiguity with Article 6(2) and the policy questions identified above could be addressed in due course. Such a broad composition, coupled with substantive outcomes, would allow participants in the inter-sessional working group to contribute substantively to discussions in order to resolve the ambiguity surrounding the phrase ‘activities related to the testing and use of nuclear weapons’ under Article 6(2).
Guest Post: What Nuclear Weapons-Related Activities Are Covered by the Environmental Remediation obligation of the Nuclear Ban Treaty? Part 1: A Question of Interpretation?
Posted: June 25, 2022 Filed under: Nuclear Leave a commentIn honor of the recently completed first meeting of state parties to the Treaty on the Prohibition on Nuclear Weapons, I’m pleased to host a two-part guest post by Dr. Christopher Evans. Chris is a Postdoctoral Research Fellow in International Law at the University of Auckland. He completed his PhD at the University of Reading in February 2022, which received a full studentship from the AHRC South, West and Wales Doctoral Training Partnership. His research focuses on contemporary nuclear non-proliferation and disarmament law issues has been published in various journals and is available here.
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What Nuclear Weapons-Related Activities Are Covered by the Environmental Remediation obligation of the Nuclear Ban Treaty? Part 1: A Question of Interpretation?
By. Dr. Christopher Evans
The Treaty on the Prohibition of Nuclear Weapons (TPNW) TPNW represents a controversial development in nuclear non-proliferation and disarmament law that has been met with widespread opposition from the nuclear weapon-possessing states. Despite the fact that some commentators have questioned the contribution of the TPNW to nuclear disarmament efforts (see here and here), the forthcoming first meeting of states parties (1MSP) of the TPNW scheduled for 21-23 June 2022 constitutes the beginning of efforts to operationalise the ‘positive obligations’ contained in Article 6, which require affected states parties – rather than those states that had used or tested nuclear weapons (e.g. the nuclear weapon possessing states) – to address existing harms and damage to both affected individuals and the environment caused by the testing or use of nuclear weapons (see here, here, and here).
This two-part post examines a particular issue relating to the environmental remediation obligation established by Article 6(2) of the TPNW; specifically what nuclear weapons-related activities are covered by the remediation obligation imposed upon affected states parties under Article 6(2). In full, Article 6(2) reads:
‘Each State Party, with respect to areas under its jurisdiction or control contaminated as a result of activities related to the testing or use of nuclear weapons or other nuclear explosive devices, shall take necessary and appropriate measures towards the environmental remediation of areas so contaminated.’
This two-part post explores this question from two perspectives. Part 1 first considers the scope of activities captured under Article 6(2) by employing the rules of treaty interpretation contained within Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT) and which reflect customary international law (here, para. 99). Part 2 then identifies some policy/practical considerations stemming from a broad interpretation of Article 6(2), and provides some recommendations as to how states parties could proceed to clarify this question within the institutional framework of the TPNW.
A Matter of Interpretation?
As a first port of call, it is suggested that the scope of nuclear weapons-related activities captured by Article 6(2) could be interpreted either ‘narrowly’ to address only environmental contamination arising from the testing and use of nuclear weapons (see here, here, and here); or ‘broadly’ to capture additional activities ‘related to’ the nuclear weapons lifecycle, for example, uranium mining, fissile material production, and radioactive waste storage, each of which can cause environmental harm (see respectively, here, here, and here). Determining the scope of activities covered by the environmental remediation obligation in Article 6(2) rests on interpreting the provision in accordance with Articles 31 and 32 of the VCLT. Ultimately, however, it will be revealed that the application of treaty interpretation rules does not provide a clear answer as to whether a broad or narrow approach to the activities captured by Article 6(2) can be reached with any certainty.
Ordinary Meaning
Article 31(1) of the VCLT states that a treaty shall be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose’. Both the International Law Commission (here, page 220) and the International Court of Justice (here, para. 41) have emphasised that the ordinary meaning should be ‘starting point’ for interpretation and must be presumed ‘to be the authentic expression of the intentionof the parties’.
Applying this starting point, the ordinary language of Article 6(2) introduces the uncertainty surrounding the scope of activities covered. First, the fact that Article 6(2) only explicitly references nuclear weapons testing and use suggests that a narrower scope is implied. This view gains further support when one considers the comprehensive range of prohibitions included within Article 1. Indeed, as Article 1 forms part of the TPNW’s ‘context’ pursuant to Article 31(2) of the VCLT, the fact that only the use and testing of nuclear weapons are explicitly mentioned in Article 6(2) out of the comprehensive prohibitions established by Article 1 supports a narrow interpretation.
Furthermore, Article 6(2) contrasts with the comparable ‘Environmental Security’ provision of the 2006 Treaty on a Nuclear-Weapon-Free Zone in Central Asia (Treaty of Semipalatinsk), where states parties undertake:
‘to assist any efforts toward the environmental rehabilitation of territories contaminated as a result of past activities related to the development, production or storage of nuclear weapons or other nuclear explosive devices, in particular uranium tailings storage sites and nuclear test sites.’
Evidently, whereas the scope of activities captured by Article 6 of the Treaty of Semipalatinsk could be expanded without over-extending the ordinary language of the provision, such a broader interpretation would be more difficult to reconcile with Article 6(2) of the TPNW, which instead refers only to nuclear weapons testing and use.
Nevertheless, the inclusion of the preceding phrase ‘activities related to…’ does seem indicate a broader scope that would encompass additional activities that are closely connected to either nuclear weapons use or testing. Indeed, some commentators have suggested that Article 6(2) ‘covers contamination resulting from, for example, production, transport or stockpiling of nuclear weapons, as these are “activities related to” testing and use’ (here page 9). Moffatt has likewise argued:
‘it may seem arguable to perhaps interpret Article 6(2) as requiring environmental remediation of areas where activities such as mining, milling or disposal have taken place, those activities have in fact resulted in contamination and these activities were exclusively performed not for peaceful purposes, but only “related to […] testing or use”.’ (page 39).
Moreover, when one considers the entirety of Article 6, paragraph 1 addressing victim assistance only refers to ‘individuals under its jurisdiction who are affected by the use or testing of nuclear weapon’, thus omitting the preceding phrase ‘activities related to’. This could suggests that whereas victim assistance should be provided more limitedly to individuals affected specifically by the testing or use of nuclear weapons, Article 6(2) has a broader ambit capturing additional activities related to testing and use. At the same time, however, if participating states desired a broader range of activities to be covered under Article 6(2), it is unclear why additional activities were not expressly incorporated in the text in a similar manner to the language adopted by the Treaty of Semipalatinsk.
For the above reasons, therefore, it seems the ordinary meaning fails to clarify the scope of activities requiring environmental remediation under Article 6(2).
Negotiation History
This ambiguity means that it is necessary to examine whether the negotiation history (travaux préparatoires) of the TPNW during the 2017 negotiation conference (2017 Conference) can shed any further light on the scope of Article 6(2). Under Article 32 of the VCLT, recourse to the travaux préparatoires is permissible when the interpretation under Article 31 of the VCLT either a) ‘leaves the meaning ambiguous or obscure’; or b) ‘leads to a result which is manifestly absurd or unreasonable’. Again, however, the travaux préparatoires offers little assistance in clarifying the scope of activities captured by Article 6(2).
According to Pace University, ‘16 states plus CARICOM expressed support in their statements for environmental remediation of areas contaminated by the use (including testing) of nuclear weapons’ during the March 2017 session (para. 9). Other participants, called for a broader range of nuclear weapons-related activities to be explicitly included in any environmental remediation obligation established. Papua New Guinea, for instance, suggested that the phrase ‘activities related to the use, testing, production or storage of nuclear weapons in their territory’ could be included in connection with environmental remediation (para. 9). Civil society too argued for a broader scope. For example, the Women’s International League for Peace and Freedom argued that:
‘The ban treaty should reflect the need to rehabilitate territories that have been contaminated as a result of activities related to the use, development, testing, production, transit, transshipment, or storage of nuclear weapons in their territory.’ (para. 5).
Facing these differing viewpoints, conference President Whyte Gómez included an environmental remediation provision in the initial Draft Convention released on 22 May 2017, which read as follows
‘Each State Party with respect to areas under its jurisdiction or control contaminated as a result of activities related to the testing or use of nuclear weapons or other nuclear explosive devices, shall have the right to request and to receive assistance toward the environmental remediation of areas so contaminated.’
Accordingly, despite proposals to explicitly include additional nuclear weapons-related activities in the March 2017 session, no such language was included in the 22 May Draft. This draft environmental remediation provision was not discussed again until the 17th plenary session held on 20 June 2017, though no participating state sought to clarify the meaning of the phrase ‘contaminated as a result of activities related to the testing or use of nuclear weapons or other nuclear explosive devices’.
Following the 20 June 2017 plenary session, further consideration of Article 6 shifted to behind closed doors negotiations facilitated by Ambassador Labbé of Chile. Although no public records of the discussions are available, the final recommendations adopted by Ambassador Labbé on 30 June 2017 did not expand or clarify the meaning of the phrase ‘activities related to the testing and use of nuclear weapons’. This is despite suggestions by the International Association of Lawyers Against Nuclear Arms (para. 9) and the Italian branch of the International Campaign to Abolish Nuclear Weapons (para. 14) to include the ‘production’ stage of nuclear weapons in both the victim assistance and environmental remediation obligations.
However, on 5July 2017, during the final stages of the negotiations, Kazakhstan suggested adopting the phrase ‘past activities associated with the development, production, storage of nuclear weapons or other nuclear explosive devices, for instance uranium tailings’ within Article 6 generally (see here at 16:30-16:48). While this represented a last-ditch attempt to expand the range of nuclear weapons-related activities captured under Article 6, the limited remaining mandated time meant that other issues required more urgent discussion, notably disagreement on the primary/fundamental responsibility of user states for implementing the positive obligations. Accordingly, the text complied by the informal group on 30 June 2017 remained unchanged, while the scope of the phrase ‘activities related to the use or testing of nuclear weapons’ remained unelaborated and unaddressed.
Summary
Overall, the application of Articles 31 and 32 of the VCLT does not provide any decisive clarification on the scope of activities covered under Article 6(2), suggesting in turn that either a narrow or broad interpretation could be endorsed by States in the future. Part 2 of this blog turns to consider various policy and practical considerations arising from both a broad and narrow interpretation of activities captured by Article 6(2), and provide some suggestions on how to address this ambiguity within the framework of the TPNW.
Podcast on AUKUS
Posted: June 12, 2022 Filed under: Nuclear 2 CommentsI wanted to post a podcast I was recently invited to do by my friend, Professor Don Rothwell of the Australian National University. We actually recorded it back in December 2021, but the legal issues haven’t significantly changed. I’m guest teaching a course right now at the ANU on Nuclear Security Law, and it brought this podcast back to mind. Anyway, it’s not long – only about 18 minutes. Enjoy!
Rothwell/Joyner Interview on AUKUS
Arms Control Law 