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 | Author: Dan Joyner | Filed under: Nuclear |1 Comment

By: 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).

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