IALANA board members Dr. John Burroughs and Amela Skiljan as well as IALANA consultant and member of Aotearoa Lawyers for Peace Alyn Ware and Prof. Nick Grief were interviewed by Gabriela Maier Tolic for the podcast Youth Fusion International Law Series.
This podcast was established to help anyone interested in finding out more about nuclear weapons issues and how they are regulated in international law by providing an overview of the status of international law connected to nuclear weapons. This episode explores questions surrounding the possession of nuclear weapons and the disarmament obligation.
The text was first published in German in December 2021 and updated in October 2022.
Summary: In keeping a decades-old tradition, Germany continues to maintain delivery systems for U.S. nuclear bombs stationed in the country. In case of deployment, the nuclear bombs are transported and dropped by Bundeswehr soldiers using Tornado fighter-bombers. This nuclear sharing is part of NATO’s strategic concept, which has been agreed upon by the member countries without a legal basis. The use of nuclear bombs and the threat of the use of nuclear weapons are prohibited by international humanitarian law and the human right to life. In addition, the use violates the Non-Proliferation Treaty (NPT), which prohibits Germany, a non-nuclear-weapon state, from any co-disposal of nuclear weapons. With the development of nuclear Trident missiles with small explosive power for the Ohio-class U.S. nuclear submarines, the tactical nuclear bombs stationed in Germany have lost their military significance anyway.
The United Nations Office for Disarmament Affairs published the papers to the First Meeting of State Parties to the TPNW. IALANA and its Japanese affiliate JALANA submitted papers on
This compact commentary article-by-article is intended to explain in a nutshell all the provisions of the Treaty on the Prohibition of Nuclear Weapons (TPNW). Written in an accessible language by three recognised international law experts, it is meant to assist a large readership in analysing and implementing this new instrument.
Данный компактный постатейный комментарий призван в краткой форме растолковать все положения Договора о запрещении ядерного оружия (ДЗЯО). Написанный доступным языком тремя признанными экспертами в области международного права, он будет полезен широкому кругу читателей при анализе и практическом применении этого нового соглашения.
Dieser kompakte Kommentar soll Artikel für Artikel alle Bestimmungen des Vertrags über das Verbot von Kernwaffen (TPNW) in aller Kürze erläutern. Er wurde von drei anerkannten Völkerrechtsexperten in einer verständlichen Sprache verfasst und soll einer breiten Leserschaft bei der Analyse und Umsetzung dieses neuen Instruments helfen.
The nuclear weapons policies of the UK and the Netherlands have been challenged in the UN Human Rights Council this week as being in violation of the Right to Life, a right enshrined in Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
The challenges have been made in reports submitted to the Human Rights Council by the Basel Peace Office, in cooperation with other civil society organisations, as part of the UN periodic review of the obligations of the United Kingdom and the Netherlands under international human rights law including the ICCPR. (See submission on the Netherlands and the submission on the United Kingdom).
Coming at a time when Russia has made nuclear threats to the USA and NATO if they intervene in the Russian invasion of Ukraine, the submissions are a reminder of the importance to address the risks of nuclear deterrence policies, and that Russia is not the only country that possesses nuclear weapons and maintains options to initiate nuclear war.
“In times of high tensions involving nuclear-armed and/or allied states, plans and preparations for the use of nuclear weapons elevate the risk of nuclear war which would be a humanitarian catastrophe, severely impacting rights of current and future generations,” says Alyn Ware, Director of the Basel Peace Office. “Compliance with the Right to Life with respect to nuclear weapons is therefore an urgent matter, impacting not the rights of all humanity and of future generations.”
The UK deploys about 160 nuclear warheads (40 on each of their 4 strategic nuclear submarines) which are ready to be fired at any time under policy options to potentially use the nuclear weapons in a wide range of circumstances, including in response to threats from chemical and biological capabilities or emerging technologies that could have a comparable impact.
The Netherlands hosts approximately 20 United States B61 nuclear weapons at its Volkel airbase, and maintains operational measures to ‘deliver’ those nuclear weapons by Dutch Airforce F-16 planes to potential targets for use in wartime.
In 2018 the UN Human Rights Committee affirmed that the threat or use of nuclear weapons is incompatible with the Right to Life, and that States parties to the ICCPR have obligations to refrain from developing, acquiring, stockpiling and using them, and also have obligations to destroy existing stockpiles and pursue negotiations in good faith to achieve global nuclear disarmament. The submissions argue that the nuclear weapons policies of the UK and Netherlands are in violation of these obligations.
The submissions make a number of recommendations of policy actions the governments could take in order to conform to the Right to Life. These include adopting no-first-use policies, cancelling plans to renew nuclear weapons systems, taking measures to phase out the role of nuclear weapons in their security doctrines and advancing at the 2022 Non-Proliferation Treaty (NPT) Review Conference a goal for the global elimination of nuclear weapons by 2045, the 75th anniversary of the NPT.
The submissions also include sections which highlight the connections between nuclear weapons and climate change, and includes recommendations to the United Kingdom on re-allocating nuclear weapons budgets to renewable energy development and climate action financing, and to the Netherlands to support the initiative to take the issue of climate change to the International Court of Justice.
If the UN Human Rights Council decides to pick up on the challenges and recommendations in the submissions and direct these to the UK and the Netherlands, the two countries are required to respond.
Similar submissions were made in 2020 and 2021 the Human Rights Council and other UN human rights bodies with regard to the nuclear policies of Russia, the USA, France, Canada, Denmark, Iceland and North Korea, (see Nuclear weapons and the UN human rights bodies), but the issues were not taken up in earnest by the relevant bodies. The increased threat of nuclear war arising from the Ukraine conflict might stimulate the Human Rights Council to make this a much higher priority for the current review cycle.
The International Association of Lawyers Against Nuclear Arms (IALANA) strongly condemns Russia’s attack on Ukraine. The Russian invasion is in clear violation of international law, and is causing the people of Ukraine to experience terror, suffering, and death. Given the increased risk of nuclear weapons use, whether intentionally or by miscalculation, it also exposes the peoples of the region and the world as a whole to harm on a vast scale.
I. Russia’s invasion of Ukraine is an illegal war of aggression.
The invasion is a violation of the United Nations Charter, Article 2(4), which prohibits the “threat or use of force against the territorial integrity or political independence of any state.” It cannot be justified as an act of self-defense under Article 51 of the Charter. Nor do any of the rationales offered by Putin withstand even minimal scrutiny. Thus there is no basis for claiming that the invasion will prevent “genocide.”
The invasion constitutes an act of aggression under general international law. The Rome Statute of the International Criminal Court defines a state act of aggression as “the use of armed force by a state against the sovereignty, territorial integrity or political independence of another state, or in any other manner inconsistent with the Charter of the United Nations.” The leaders of an aggressor state may be individually responsible for the crime of aggression, one of the core crimes set out in the Rome Statute. Under the Charter of the International Military Tribunal (Nuremberg Charter), waging a war of aggression is a crime against peace, and leaders of the Third Reich were convicted of that crime.
II. Putin’s thinly veiled references to resort to nuclear weapons should other states intervene militarily are unlawful threats of force under the UN Charter, Article 2(4), because they are an element of the unlawful invasion. They are also contrary to general international law because they threaten the commission of an illegal act—here the use of nuclear weapons.
In its 1996 Advisory Opinion (para. 78), the International Court of Justice stated that if use of a weapon would not meet the requirements of international humanitarian law governing the conduct of warfare, the threat of such use would be contrary to that law. It is now widely recognized that use of nuclear weapons is illegal under humanitarian law, most centrally because they cannot meet the requirement of discrimination between military targets and civilian persons/infrastructure. More than 25 years ago, the Court found such use, or threatened use, to be illegal. The main circumstance in which the Court could not reach a conclusion, when the survival of a state is at stake, is not at issue for Russia in the present crisis.
In a 5 January 2022 joint statement, Russia and the other four nuclear weapon states acknowledged by the Non-Proliferation Treaty affirmed the Reagan-Gorbachev principle “that a nuclear war cannot be won and must never be fought.” Putin’s recent references to possible Russian use of nuclear arms cannot be reconciled with that affirmation.
III. Several US and NATO actions in relation to Russia since the mid-1990s, in particular opening the door to Ukraine’s membership in NATO in 2008, were unwise and even reckless in their disregard of the security concerns of Russia. That in no way, legally or morally, serves to justify Russia’s war of aggression against Ukraine.
IV. In the months preceding the invasion, the United Nations and states involved in the crisis failed to achieve a purpose of the UN set out in Article 1(1) of the Charter, “to bring about by peaceful means, and in conformity with the principles of justice and international law, … settlement of international disputes … which might lead to a breach of the peace.” It is now the duty of those states to bring about a cease-fire, and to resolve differences in accordance with Article 2(3) of the Charter, which requires member states to settle “international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.” It is also the responsibility of the UN Security Council to restore international peace and security. Should the Security Council not be able to act due to the veto afforded Russia as a permanent member of the Council, the General Assembly should act, as it has numerous times over the decades, under the Uniting for Peace resolution (377A, 3 November 1950).
IALANA stands against Russia’s unlawful acts of war and threats of nuclear force. We call for both sides to comply with international humanitarian law, respect human rights, and provide access to humanitarian aid. We further call for an immediate cease-fire, dialogue and diplomacy, and fulfilment of the requirements of the UN Charter.
By Amela Skiljan, LL.M.Eur Vice-Chair IALANA Deutschland e.V. – Vereinigung für Friedensrecht – Deutsche Sektion der International Association of Lawyers Against Nuclear Arms, Marienstr. 19-20, 10117 Berlin, amela.skiljan@ialana.de
This article was first published in “Die Friedens-Warte Journal of International Peace and Organization”, December 2021, Issue 3-4, pp 418-444 DOI 10.35998/fw-2021-0020 ISBN 2009460321D The Issue may be bought as print version or E-Book here: https://www.bwv-verlag.de/detailview?no=2009460321D
Abstract
Humanity has been developing legal responses to the threat of nuclear weapons since 1945. These responses are not only reflected in international treaties like the NPT or the TPNW, but also in the many norms derived from international humanitarian law, human rights law, environmental law and international criminal law. Many of them are of a customary nature, which makes them binding for all states, such as the general prohibition on the use and threat of use of nuclear weapons. This paper shows that many norms from different fields of international law reinforce each other in confirming the illegality of nuclear weapons in various aspects. In this regard, the TPNW is a landmark in nuclear disarmament, which not only confirms existing law, but develops it further.
Seit 1945 ist die Menschheit mit der Bedrohung durch Atomwaffen konfrontiert, und seither gab es rechtliche Antworten auf diese Bedrohung. Diese spiegeln sich nicht nur in internationalen Verträgen wie dem NVV oder dem AVV wieder, sondern auch in vielen Normen, die sich aus dem humanitären Völkerrecht, den Menschenrechten, dem Umweltrecht oder dem internationalen Strafrecht ergeben. Viele dieser Normen haben Gewohnheitscharakter, was sie für alle Staaten verbindlich macht, wie das generelle Verbot des Einsatzes und der Androhung des Einsatzes von Kernwaffen. Dieser Beitrag zeigt, dass viele Normen aus verschiedenen Bereichen des Völkerrechts sich gegenseitig in der Bestätigung der Illegalität von Atomwaffen in verschiedenen Aspekten bekräftigen. In dieser Hinsicht ist der AVV ein Meilenstein der nuklearen Abrüstung, der nicht nur bestehendes Recht bestätigt, sondern es auch weiterentwickelt.
Keywords: nuclear weapons, international law, customary law, disarmament, NPT, TPNW
Date / Time 14 March 2022 from 10:00 to 12:10, CET
Introduction
The debate on and arguments against nuclear weapons have been reframed with the introduction of the concepts of humanitarian and environmental consequences of nuclear weapons. The TPNW as well as recent rulings like the Human Rights Committee General Comment No 36 on the right to life enlarged the legal tools in the struggle against nuclear weapons and in giving justice to the victims of the nuclear complex.
This webinar will reflect on the legal framework – legal arguments, rights and remedies – linking existing experience with future options. Thus, the webinar aims at highlighting new paths to protect nuclear victims and the environment. For more detailed background information on various topics of the webinar, please see a list of references.
1st Session
Looking Back: Learning from the experience of lawyers who have supported victims of the atomic bombs and nuclear testing
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Concluding Remarks Hiroko Takahashi, Professor of Department of History, Faculty of Letters, Nara University, Japan (Speech)
Q+A
Short Break
2nd Session
Looking Ahead: The future of victim assistance and environmental remediation – making use of the TPNW and existing international, esp. human rights law
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Moderator: Toshinori Yamada, Lecturer of International Law, Meiji University, Japan (Introduction)
Implementation of Article 6 and 7 of the TPNW ahead of the first Meeting of States Parties Manfred Mohr, Professor of Public International Law, Academy of Sciences, Board member of IALANA, Germany (Presentation)
Human Rights Approach for Nuclear Disarmament Daniel Rietiker, Adjunct Professor at Lausanne University and Suffolk University Law School, IALANA co-president, France (Presentation)
Framework of Environmental Remediation Emilie Gaillard, lecturer in private law, director of the master degree GENFUT (Future Generations and Legal Transitions) at SciencesPo Rennes, general coordinator of the Normandy Chair for Peace, board member of IALANA, France
The following is some examples of national court cases that JALANA supports:
① No More Hibakusha Lawsuits (A-Bomb Illness Certification Lawsuits) – The A-Bomb survivors are fighting court cases against Japanese government maintaining a practice of administration on assistance for A-Bomb survivors very limitedly. The Supreme Court recently made an unjust judgment that upheld the government’s practice.
② “Black Rain” Lawsuit – 84 plaintiffs, who were outside the target area for state assistance but suffered health damage owing to the “black rain” containing radioactive substances that fell immediately after the atomic bombing, filed a lawsuit against the government, Hiroshima Prefecture, and Hiroshima City, demanding issuance of A-Bomb Survivor Health Handbooks. On July 29, 2020, Hiroshima District Court ruled in favour of all plaintiffs, but the defendants appealed. On July 14th, 2021, Hiroshima High Court upheld the District Court’s ruling that recognized the plaintiffs as hibakusha, and further expanded the “black rain area.” On July 26th, 2021, Japan’s then Prime Minister Yoshihide Suga said that the government had decided not to file a final appeal. He said his administration would further examine the issue so that relief measures could be extended to others who were exposed to the radioactive rain.
For more information on the “Black Rain” Lawsuit read the newspaper articles in THE ASAHI SHIMBUN and Japan Times.
③ Bikini Occupational Accidents Lawsuit – Owing to the 1954 US hydrogen bomb tests, fishermen and crews on fishing boats and cargo ships operating around the Bikini Atoll were irradiated and developed diseases such as cancers. We support a lawsuit which they filed to claim certification of occupational accidents, payment of insurance, and national compensation for having lost their rights to claim it to the US by the US-Japan Agreement.
④ Fukushima Nuclear Disaster and Lifework Lawsuits – The accident of Fukushima Nuclear Power Plant that occurred on March 11, 2011, deprived many residents of their places to live and livelihood. Lawsuits are pending to hold accountable the electric power company (operator of the nuclear plant), who has failed to take measures to counter disasters even after being informed of possibility of tsunami and earthquakes, and the government, who did not play a role of regulation authority. So far three of four high court decisions recognized a responsibility of the electric power company and the government. All the four cases are now pending at the Supreme Court.
