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 comment
In 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.
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.
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).
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.
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.