I’m pleased to introduce the below guest post by Olha Bozhenko. She is an LL.M student in International Litigation (Public International Law) at the Institute of International Relations Kyiv National Taras Shevchenko University. She holds a BA (Hons) in International Relations from the same university. She is an Associate at Marchenko Danevych law firm (Ukraine).
I like this piece because I think it address some timely dynamics in nuclear arms control, and then provides an interesting and meaningful discussion of some of the implications of these dynamics for international law. Comments welcome.
Is the Conventionalization of Nuclear Weapons Detrimental to the Associated International Legal Regime?
By Olha Bozhenko
Nuclear weapons enjoy a separate and unique regime under international law. The majority of states struggle to establish a complete prohibition of nuclear weapons, as in the case of other categories of WMD. In fact, in its only authoritative pronouncement on the matter, the ICJ stressed ‘the unique characteristics of nuclear weapons, and in particular their destructive capacity’ (para 36).
Yet in view of some recent developments, to be discussed below, this distinction has been gradually disappearing, with the line between nuclear and conventional weapons becoming blurred. This means that nuclear weapons are not stigmatized as their WMD counterparts, but rather conventionalized.
This piece is an attempt to, first, ascertain the progressing conventionalization among the current trends related to nuclear weapons and, second, delineate its consequences for the international legal regulation of armaments.
Paths of conventionalization
Nuclear weapons conventionalization has been referred to as ‘nuclear entanglement’, which essentially means the merger of nuclear and conventional weapons. Broadly understood, it manifests itself in the following ways.
Increased reliance on non-strategic (tactical) nuclear weapons
As early as in his Dissenting Opinion to the Nuclear Weapons Advisory Opinion, Judge Shahabudeen suggested that assuming tactical nuclear weapons could be no more destructive than conventional weapons, they should not be less lawful than the latter (p. 159). Hence, placing nonstrategic nuclear weapons (NSNW) at the top of ‘conventionalization agenda’ is not a brand-new idea. Besides, it has recently been emphasized in national strategies.
The most striking example is, of course, the US 2018 Nuclear Posture Review (NPR), which radically departs from its predecessor in mandating the development of a range of nonstrategic low-yield nuclear options (p. 52). The Trump Administration considers this departure necessary as a response to Russia’s substantial reliance on and expansion of non-strategic nuclear arsenal, which considerably outstrips that of the US (p. 53). At face value, this means that the two most powerful nuclear-weapon states have embarked upon the rapid expansion of their non-strategic nuclear options.
Such an approach depicting NSNW as quite a usable tool to advance military and non-military goals significantly lowers the threshold for the actual use. Such reliance on a limited nuclear strike can well lead to the full-blown nuclear escalation, which the ICJ considered among the possible consequences of using low yield nuclear weapons (para 94).
Integration of nuclear and conventional planning and operations
The integration of nuclear and conventional capabilities also contributes to the conventionalization. This is ‘nuclear entanglement’ in the original meaning of the term. The integration includes equipping dual use means of delivery with nuclear and non-nuclear warheads, merging nuclear and conventional support facilities, as well as integrating planning and training for both nuclear and non-nuclear forces. China and Russia are said to pursue this strategy whether deliberately or as a matter of historical legacy. Furthermore, the US’ NPR specifically mandates ensuring ‘the ability to integrate nuclear and non-nuclear military planning and operations’ (p. 21) to ‘deter limited nuclear escalation and nonnuclear strategic attacks’ (p. 58).
These developments are frowned upon for a number of reasons. They tend to erode the line between nuclear and conventional forces in the most palpable manner. They also increase the risk of adversary’s misinterpretation of the nature of an attack, which can simultaneously target ‘entangled’ capabilities.
Expanding range of scenarios for the use of nuclear weapons
Much has been said on the expanded range of scenarios where the US contemplates first use of nuclear weapons, also in response to non-nuclear threats (2018 NPR, p. 21). Although the US strategy is most widely discussed owing to its considerable departure from the previous pattern, other nuclear-weapon states either preserve deliberate ambiguity with regard to the possible use of nuclear weapons (e.g. the UK and France) or explicitly declare their readiness to balance an adversary’s conventional superiority with a nuclear strike (e.g. Russia and Pakistan).
Expanding the role of nuclear weapons beyond deterring nuclear threats alludes to an increased rationality and military utility of a nuclear strike. This further undermines the arguments that there exists opinio juris prohibiting recourse to nuclear weapons, except for the purposes of deterrence (para 65). In view of such developments it is understandable why the ICJ refused to acknowledge that the non-recourse to nuclear weapons since 1945 had been due to such opinio juris rather than the absence of military necessity (para 67).
Nuclear saber rattling
Finally, never before has it been so common for political leaders to boast of their states’ nuclear capacities. One may recall Vladimir Putin’s threats to deploy nuclear weapons in the course of Crimea crisis and against Baltic states, or his most recent brandishing cutting-edge nuclear technology with animated nukes striking Florida in an address to the Parliament. Along the same lines, Donald Trump publicly threatened North Korea with ‘fire and fury’ and even with ‘total destruction’.
Although the ICJ refused to differentiate between nuclear and conventional weapons, when assessing the legality of the threat of nuclear weapons use (para 48), the state practice seems to have accepted a special standard for nuclear threats which is measured against the strategy of deterrence. For instance, the UK’s High Court of Justiciary stated that ‘deployment of nuclear weapons in time of peace … is utterly different from the kind of specific ‘threat’ which is equated with actual use’ (p. 452). Under this approach, states would only cross the line of nuclear deterrence and resort to the threat of using nuclear weapons if such a threat is specific enough, i.e. directed against a specific target.
Considering that the arbitral tribunal went so far as to equate the phrase ‘to face consequences’ to a threat of the use of force in Guyana v Suriname (para 439), it is doubtful that states are still within the safe harbor of deterrence when directing their nuclear threats explicitly and specifically against other states.
Consequences for international law
Driven by analogy with other types of WMD, international law seeks to raise the threshold for using of nuclear weapons (or even contemplating such use) as high as possible. The adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW) is among the most notable developments to this end. Still, there is an observable tension between the movement towards nuclear weapons ban as enshrined in the TPNW and the trends described above. International legal instruments like the TPNW are grounded on humanitarian considerations. In this particular case, the TPNW is meant to stigmatize nuclear weapons to the extent of their total abandonment by nuclear-weapon states. Considering that nuclear-weapon states refused to take any part in the ‘ban campaign’ leading to the adoption of the TPNW, it is reasonable to assume that such progressive stigmatization (which can eventually generate a parallel customary prohibition) is the only way to endow the TPNW with normative force. Analogy may be drawn with other disarmament treaties such as Convention on Anti-Personnel Mines Ban and Convention on Cluster Munitions: they contributed to the establishment of the customary prohibition of respective armaments even without directly binding all states possessing them.
However, when nuclear weapons are postured to be as usable as conventional ones, the normative boundary between the two is not hardened at all. No stigma is likely to appear for weapons possessing which is dictated and justified by strong military utility. As long as the conventionalization of nuclear weapons is taking place, no binding obligations will probably proceed from the newly established TPNW regime, either as treaty rules or as a crystallizing custom.
Along with the TPNW, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) is to bear a major part of ramifications. The core obligation of non-proliferation under Article II is likely to be affected, since nuclear weapons, if conventionalized, make their acquisition by non-nuclear-weapon states more conceivable. Additionally, the deployment of tactical nuclear devices makes nuclear weapons more accessible and ‘proliferable’ in the technical sense, spurring their acquisition by non-state actors, particularly, by terrorist groups. This is an alarming possibility considering that the non-proliferation to non-state actors still constitutes a legal gap largely left to Security Council Resolution 1540.
Besides, the conventionalization of nuclear weapons invites their advancement, which is hardly in line with the (allegedly customary) obligation of nuclear disarmament under Article VI of the NPT. States are not in compliance with their disarmament obligation ‘to achieve a precise result – nuclear disarmament in all its aspects’ (para 99) when they engage in the ‘vertical proliferation’ (i.e. modernizing their nuclear arsenals or expand the range of scenarios to deploy nuclear weapons).
Should the described trends gain traction, their impact will in no way be limited to nuclear weapons regulation, but extend to the whole set of rules on the use of force. In particular, the gradually vanishing line between the threat of use of force and nuclear deterrence will further blur. It is questionable whether teetering on the brink of threats to use nuclear weapons is still justifiable under the concept of nuclear deterrence, which the ICJ was careful to characterize as practice ‘adhered to by states’ (para 67). Consequently, it is doubtful whether nuclear deterrence should enjoy such leniency with respect to the standard of the threat of use of force.
The jus ad bellum requirements for self-defense may also be affected by nuclear entanglement. For instance, it is highly questionable whether a limited strike with tactical nuclear weapons to preclude a massive conventional attack fails to meet the standard of proportionality. Similarly, it is not that clear whether anticipatory nuclear strike against a missile equipped with non-nuclear warhead is unlawful, since a state intercepting such a missile can be misled by its dual-use capacity in view of nuclear entanglement.
The questions of similar nature will arise with respect to jus in bello. With the gap between nuclear and conventional weapons narrowing, there is less room to assert that employing nuclear weapons should ab initio be contrary to the proportionality principle. Correspondingly, what concerns the lawfulness of belligerent reprisals conducted with the use of nuclear weapons, a pre-defined approach exclusively based on the ‘nuclear element’ is likely to give ground to the qualification irrespective of the type of weapons. To put it bluntly, the ICJ’s reasoning that the legality of the use of nuclear weapons shall be considered on the basis of case-to-case compliance with jus in bello (para 2D) seems to be regaining relevance.
While any radical transformation of the international legal regime governing nuclear weapons is still unlikely, there is definitely room for considering its adequacy for current challenges. In the near future we should be ready to make a choice of either raising the bar on the conventionalization of nuclear weapons or easing this process. Simply put, international law may find itself in need of deciding whether it is better to ban nuclear weapons altogether rather than to regulate them.
Readers may have seen reports in the media about IAEA Director General Yukiya Amano’s most recent report to the IAEA Board of Governors on Iran. Jonathan Tirone has a good one here, as usual. Although the BOG report itself is restricted distribution, once again in the interests of transparency a Vienna source has provided a copy of the report to Arms Control Law for public dissemination. You can find it at the link below.
Generally speaking, this report is consistent with the other recent DG reports on Iran’s compliance with the terms of the JCPOA and the IAEA’s monitoring and verification activities pursuant to Iran’s comprehensive safeguards agreement and its additional protocol agreement, which Iran is provisionally applying according to the terms of the JCPOA.
This report, as previous reports have done, finds Iran in compliance with its various safeguards commitments and with the terms of the JCPOA. It’s worth reiterating in that context some of the facts of the IAEA’s extensive and really unprecedented monitoring activities in Iran, as the IAEA itself reported in its 2017 Safeguards Implementation Report which I recently posted here.
In 2017, the IAEA conducted 419 safeguards inspections in Iran. This is far and away more than in any other safeguarded state. Added to this, the IAEA conducted a total of 35 complementary access inspections in Iran, pursuant to the terms of Iran’s additional protocol agreement. These are sometimes referred to as “snap” inspections because of the shorter notice period given to the state prior to the inspection. These complementary access inspections can also be requested at a broader range of sites than normal inspections under the comprehensive safeguards agreement. Again, the number of complementary access inspections conducted by the IAEA in Iran in 2017 was significantly higher than in any other state.
Back in March, Amano said that the IAEA “has the world’s most robust verification regime in place in Iran” and has access to “all the locations” that it needs within Iran.
So it is a bit surprising that in this most recent Iran report to the BOG, while again confirming Iran’s compliance with the terms of both the JCPOA and its safeguards agreements, Amano chose to editorialize by saying:
The Agency has continued to evaluate Iran’s declarations under the Additional Protocol, and has conducted complementary accesses under the Additional Protocol to all the sites and locations in Iran which it needed to visit. Timely and proactive cooperation by Iran in providing such access would facilitate implementation of the Additional Protocol and enhance confidence.
Timely and proactive cooperation? The 419 completed inspections and 35 granted complementary access requests weren’t good enough for you? Geesh. There’s just no pleasing some people!
It’s pretty obvious what the motivation for this superfluous editorializing was. It was almost certainly to throw a bone to the state that brought Amano to the DG dance in the first place, and then got him his second and now third terms in the job. Remember those Wikileaks docs on the “cozy” relationship between Amano and the U.S. delegation to the IAEA? Well this appears to be him doing his part by inserting this unnecessary language that allows the Trump administration to have a small but useful negative talking point about the IAEA report.
I’ve been in reading and thinking (and despairing) mode for the past couple of weeks since the Madness of King Donald resulted in the U.S. withdrawing from the JCPOA. I have lots of thought on that and will try to write something soon. If you’re interested in my day to day thoughts (read anguishings) on that subject and its relevance to the bumbling U.S. approach to North Korea, consider following me on Twitter at @DanJoyner1
For now, find at the below link the IAEA’s 2017 Safeguards Implementation Report, which was provided by a source in Vienna promoting greater transparency in reporting on IAEA nuclear verification. These annual SIRs make extremely interesting reading about how the IAEA views safeguards agreement implementation and compliance by the 181 states that have safeguards agreements in place with the IAEA. There’s also a lot of information in there about the IAEA’s budget and verification activities. It can be usefully read alongside Jonathan Tirone’s excellent analysis here of IAEA monitoring and verification activities in Iran.
With regard to Iran specifically, the 2017 SIR puts Iran, correctly, in a category alongside 56 other states which have a comprehensive safeguards agreement AND an additional protocol agreement in force, but for whom the agency has yet to issue a “broader conclusion” on the absence of undeclared nuclear material in the country. This is a considerable improvement in the consistency with which the IAEA has handled the Iran case, as compared to previous SIRs. I examined the problems of this inconsistency in Chapter 5 of my book accessible here.
I’m very pleased to host a guest post by Dr. Eirini Giorgou. I think she does a really excellent job in the piece of explaining the safeguards provisions in the TPNW, and the debates that led to their adoption, and then responding to a number of criticisms that have been leveled against how these provisions were crafted. I think this is really exemplary legal work. I also don’t find anything in it with which I disagree. So I highly recommend it to readers.
Dr. Giorgou is a legal adviser on weapons law in the International Committee of the Red Cross (ICRC), with experience in multilateral disarmament diplomacy. She was previously Disarmament adviser in the Department of Foreign Affairs and Trade of Ireland. In that capacity she participated in the negotiations on the Treaty on the Prohibition of Nuclear Weapons, including by facilitating negotiations on the Treaty’s Safeguards provisions. Dr Giorgou is a licensed lawyer and holds a PhD in International Law from the University of Geneva, Switzerland.
The views expressed herein are of the author and do not necessarily reflect the position and views of the ICRC or of the Department of Foreign Affairs and Trade of Ireland
Safeguards Provisions in the Treaty on the Prohibition of Nuclear Weapons
By: Eirini Giorgou
Since its adoption by 122 states on 7 July 2017, the Treaty on the Prohibition of Nuclear Weapons (TPNW) has frequently been made the target of criticism as regards its Safeguards provisions. The following provides an analysis of these clauses as contained in the Treaty’s Articles 3 and 4, outlines the main arguments that have been leveled against the Treaty in this regard, and responds to these.
What does (and what doesn’t) the TPNW have to say on Safeguards – and why.
To Safeguard or not?
It did not take long for negotiators to agree that Safeguards provisions were necessary and could not be omitted without sending a dangerous political message: that the new Treaty undermined the existing Safeguards regime and that, by creating a loophole, it encouraged states to withdraw from the NPT and from their existing Safeguards obligations. Once the decision to include such provisions was made, negotiating parties were faced with two major difficulties: agreeing on how strict a Safeguards standard they should adopt; and ensuring that this standard would neither undermine the existing IAEA Safeguards regime, nor create an unwanted legal status quo by subordinating the new Treaty to other instruments or international organizations.
Throughout the negotiations, the issue of Safeguards was closely linked to that of the ratification of or accession to the Treaty of states having possessed (at any time after the date set for its adoption, namely 7 July 2017) nuclear weapons. Very soon there was consensus around the fact that the Safeguards standard to be imposed by the TPNW, whatever that was, should be different – and higher – for this category of states, compared to those that had never possessed nuclear weapons, or had eliminated them prior to the cut-off date.
It was therefore agreed that a distinction be drawn clearly between those states who did not possess nuclear weapons after 7 July 2017 and those who did, and that the respective Safeguards rules and obligations be contained in different articles. Hence Article 3 only applies to the first category of states, while Safeguards provisions applicable to the second category are contained in Article 4.
Jack Beard and I recently sat down for a discussion about the recently adopted Treaty on the Prohibition of Nuclear Weapons (TPNW), and recorded it as a podcast. I think the discussion was good, as Jack can fairly be described as a bit of a skeptic about the TPNW, and I can fairly be described as essentially a proponent of the TPNW. We of course agree on a lot of things, but we were able to tease out some differences too. I hope those of you out in listening land find it interesting. Comments are open.
Listen to the podcast here.
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 EJIL:Talk!)
On July 7, 2017 a vote was held by a United Nations treaty conference to adopt the final text of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Of the 124 states participating in the conference, 122 states voted for adoption, one state (the Netherlands) voted against adoption, and one state (Singapore) abstained. This vote brought to a successful close the second and final negotiating session for a United Nations nuclear weapons prohibition convention, the mandate for which had been given by the General Assembly in December 2016. The treaty will now be opened for signature by states on September 20, 2017, and will come into force 90 days after its 50th ratification.
The TPNW provides for a complete ban on development, possession, and use of nuclear weapons by its parties. It is difficult to overstate the significance of the TPNW within the framework of treaties on nuclear nonproliferation. It is the first multilateral nuclear weapons disarmament treaty to be adopted since the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 1968. So we are witnessing a generational event of significance.
The essential obligations of the TPNW for any state that becomes a party thereto, are listed in Article 1, which provides as follows:
Each State Party undertakes never under any circumstances to:
(a) Develop, test, produce, manufacture, otherwise acquire, possess or stockpile nuclear weapons or other nuclear explosive devices;
(b) Transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly or indirectly;
(c) Receive the transfer of or control over nuclear weapons or other nuclear explosive devices directly or indirectly;
(d) Use or threaten to use nuclear weapons or other nuclear explosive devices;
(e) Assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Treaty;
(f) Seek or receive any assistance, in any way, from anyone to engage in any activity prohibited to a State Party under this Treaty;
(g) Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.
The TPNW is the ultimate product of two main trends in international relations that, to the surprise of many observers, came together successfully within just the past few years. The first trend is the longstanding frustration of most of the states parties to the NPT with the noncompliance of nuclear-weapon-possessing states with the NPT’s disarmament provisions, located in Article VI.
The second, and more recent trend, is what has been dubbed the humanitarian initiative; an effort that took shape in 2012, and that brought together more than 150 states and myriad civil society groups to focus on the unacceptable harm to human life, health, and environment that would be caused by any use of nuclear weapons.
These two trends coalesced in August, 2016 at a special United Nations working group on nuclear disarmament, held in Geneva. This working group recommended the negotiation of a treaty comprehensively banning nuclear weapons. That Autumn, the First Committee of the General Assembly adopted a resolution approving the mandate for such a conference, leading to the December 16, 2016 General Assembly resolution.
Noticeably absent throughout the negotiations on the TPNW – including in General Assembly debates, the formal treaty negotiation sessions, and the voting on the final treaty text – have been all nine states known to possess nuclear weapons (the United States, the United Kingdom, France, China, Russia, Israel, India, Pakistan, and North Korea). These states, and a number of others, boycotted the negotiating process entirely. As Niki Haley, the U.S. Ambassador to the United Nations, explained: “In this day and time we can’t honestly say that we can protect our people by allowing the bad actors to have [nuclear weapons] and those of us that are good, trying to keep peace and safety, not to have them.” Similarly, the British Ambassador to the United Nations, Matthew Rycroft has stated: “The UK is not attending the negotiations on a treaty to prohibit nuclear weapons because we do not believe that those negotiations will lead to effective progress on global nuclear disarmament.”
Notwithstanding the non-participation of the nuclear-weapons-possessing states, the states negotiating the TPNW have expressed the view that the possession and potential use of nuclear weapons is an existential threat to humanity, and one that cannot be ignored simply because the few states that possess nuclear weapons are not yet ready to take meaningful steps to disarm themselves. They also see the TPNW as an important normative statement, by a supermajority of the states in the world, that the development, possession and use of nuclear weapons is immoral and must be prohibited, just as other weapons of mass destruction including chemical and biological weapons have been the subject of comprehensive prohibition treaties. And some states have expressed hope that this normative statement might contribute to the development of parallel customary international law.
Critics of the treaty, however, contend that without the participation and buy-in of the nuclear weapons states, the TPNW is little more than an idealistic statement of disapproval by states that do not themselves possess nuclear weapons. They argue that the TPNW will not be effective in convincing states that possess nuclear weapons to disarm, and that it may in fact do harm to the existing legal framework governing nuclear weapons proliferation, by undermining the centrality of the NPT as the nearly-universally-subscribed-to cornerstone of the regime.
The hope of states supporting the TPNW is that the treaty will constitute a normative nucleus around which efforts may be made by both states parties and international civil society to persuade nuclear-weapons-possessing states to join the treaty. The issue of verification of a former nuclear armed state’s implementation of the treaty’s disarmament provisions, once it becomes a party to the treaty, was one of the issues subject to heavy negotiation. The resulting provisions of Article 4 of the TPNW allow for former nuclear-weapons-possessing states to join the treaty as parties either after they have fully disarmed, or while still in possession of nuclear weapons, subject to a “legally binding, time-bound” plan for their destruction by a deadline to be determined by a meeting of the states parties.
From a legal perspective, there are many issues of analysis and interpretation that will keep scholars – well, me anyway – busy writing about the TPNW for years to come. These include the tension that will exist between the obligations of the TPNW, and the nuclear weapons commitments of NATO members. This, by the way, explains the Netherlands’ rather uncharacteristic vote against a nuclear disarmament treaty. NATO defense policy includes a longstanding commitment to nuclear weapons sharing agreements. At present, five NATO countries have such agreements with the United States, pursuant to which U.S. nuclear weapons are stationed on the territory of the host state, and are to be used by the host state’s military in the event of an armed conflict. The Netherlands is one of those states, along with Belgium, Germany, Italy, and Turkey. It is estimated that a total of 180 U.S. B-61 thermonuclear weapons are currently stationed on the territory of these five NATO host countries, the largest number of which are stationed at Aviano air base in Italy, and Incirlik air base in Turkey
But recall that Article 1(g) of the TPNW provides that no state party shall “Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.” This paragraph was very intentionally added to the TPNW in order to close a controversial loophole in Article II of the NPT, that NATO has long argued allows for such nuclear sharing agreements. So what happens if any member of NATO joins the TPNW? Can this provision of the TPNW be reconciled with the nuclear weapons sharing commitments of NATO members? Most NATO countries, clearly including the Netherlands, appear to think that it cannot be.
Other issues that require careful interpretation and analysis include the relationship between the TPNW and the NPT on matters such as safeguards of nuclear materials and facilities, and the role of the International Atomic Energy Agency. This is a subject that was contentious during the drafting of the treaty, and one on which I have already provided some preliminary commentary over at my blog.
From a political perspective, even without the buy-in of the nuclear armed states – and indeed precisely because of it – the TPNW will undoubtedly have an impact on nuclear weapons diplomacy going forward, particularly in the context of diplomacy surrounding the NPT. The next NPT Review Conference is scheduled for 2020, and the Preparatory Committee meetings for that conference have already begun. It will be important to see how the states parties to the TPNW seek to bring the treaty’s existence and implications into those already highly fraught negotiations about the health and relevance of the NPT. Many states parties to the TPNW see the new treaty as an implementation of Article VI of the NPT on nuclear disarmament, and will seek to have it acknowledged as such in the Review Conference’s final document. This will be heavily opposed by the nuclear armed states and those under their “umbrella” of nuclear protection. But negotiations on a consensus Review Conference final document are always unpredictable, and if some acknowledgment of the TPNW can be worked into it, that will represent a major political and potentially legal coup for the TPNW parties.
While much remains to be addressed both legally and politically concerning the TPNW, my own view is that the adoption of the TPNW is an event to be welcomed. It is a very useful legal supplement to the increasingly marginalized NPT, and represents a welcome shakeup of stagnant NPT politics. It very forcefully puts the issue of disarmament front and center in international nuclear weapons diplomacy. The nuclear-weapons-possessing-states can of course avoid signing the treaty. But it is now much more difficult for them to avoid seriously addressing the expressed will of the international community that nuclear weapons should be understood to be just as immoral as any other banned weaponry, and that as such their development, possession, and use should be prohibited in international law.