I attended the third Conference on the “Humanitarian Impact of Nuclear Weapons”, perfectly organized by the Austrian Government in the fantastic premisses of the Hofburg on 8 and 9 December 2014.
For the results of the Conference and the progressive “pledge” of the Austrian Government, please click here.
What are my personal ideas and conclusions of this Conference?
On the one hand, it is undeniable that all the delegations – including the two NWS that were present in Vienna (US and the UK) – agreed on the « what ? », namely a world without nuclear weapons. On the other hand, it appeared that the views among the delegations are still very divided as regards the « how ?» to achieve this goal. The most progressive voices, expressed in particular by the ICRC (expressed by its President, Peter Maurer) and Mexico, seem to support clearly the idea of a ban on nuclear weapons through a legally binding international instrument. Others seem to favor the strengthening of existing instruments, such as the NPT and the 1996 Comprehensive Test Ban Treaty (CTBT), that is awaiting its entry into force for over 18 years due to its very unfortunate entry into force clause giving a « veto » to all NWS, « threshold States » as well as « nuclear capables » (Article 14 CTBT).
There was also large agreement that the debate on the humanitarian impact of nuclear weapons constitutes a significant change in the discussion, away from an abstract and sober debate on pure interests of national security towards a more emotional and human discourse on the grave harm that cause the use and testing of nuclear weapons. Certain delegations claimed that the burden of proof has shifted and that it is now up to the NWS to demonstrate that nuclear weapons can possibly be used in a manner that would not violate core principles of international humanitarian law, which are fully applicable to the use of nuclear weapons and being of jus cogens nature.
From my point of view, the ongoing process is very much alike what could be observed in the « Ottawa » and « Oslo » Processes that lead in record time to legally binding instruments banning anti-personnel mines and cluster munitions. What are these common features ?
- Frustration about the lack of significant progress : Many delegations are frustrated about the unfulfilled promises by the NWS concerning nuclear disarmament deriving from Article VI NPT. It is interesting to recall, in this regard, that the Ottawa and Oslo Conventions have been negotiated and adopted outside of the traditional arms control fora (in particular the Conference on Disarmament and the Review Conference of the CCW) as a result of their long deadlock. A lot will depend on the outcome of the 2015 NPT Review Conference whether the dynamic process will feed the negotiations within the NPT regime or whether it will be pursued outside this forum.
- Broad support by civil society : As has been observed in the case of the Ottawa and Oslo Conventions (International Campaign to Ban Landmines (ICBL) and the Cluster Munition Coalition (CMC), the actual movement in favor of nuclear disarmament is largely based on the initiatives and efforts by the civil society, in particular the ICAN coalition.
- Support by certain like-minded States : In the Ottawa and Oslo Processes, the civil society could gain decisive support by like-minded States, such as Austria, Ireland, Mexico, New Zealand, Norway, Peru and the Holy Sea. This is the case today as well, with Norway, Mexico and Austria having organized the three conferences, and many other States expressing their clear desire for concrete and efficient measures towards nuclear disarmament in the near future, including the possibility of the adoption of an additional legally binding instrument.
- Involvement of professional groups : Already in the case of landmines and cluster munitions, the medical personnel and the surgeons, confronted with new types of injuries caused by the explosion of these weapons, were instrumental in generating the momentum that led to their ban. A similar phenomenon can be observed now : nuclear weapons being of a complex nature, different groups are involved, such as medical doctors explaining the detrimental impact of radiation on the human health, as well as climate experts studying the impact of nuclear explosion on the local, regional and global environment and climate. Lawyers, in particular represented through IALANA (International Association of Lawyers against Nuclear Arms), an organization that has been active for many years in the fight against nuclear weapons, are involved, too.
- Involvement of actual victims : One of the successful ingredients of the Ottawa and Oslo Processes was the involvement of the actual victims of these weapons. The new nuclear movement follows this practice by giving victims of nuclear weapons a voice, too. In Vienna, these comprised survivals of the bombing of Hiroshima and Nagasaki in August 1945, the so-called « Hibakusha », but also victims of the testing of nuclear weapons on the Marshall Islands, the US and Australia.
- Gender- and age- sensitive victimization : As in the case of landmines, a nuclear weapons explosion, including in the framework of a test program, is gender- and age-sensitive. Whereas the women and children are particularly endangered by landmines through their work in agriculture or their plays in the fields, they are also especially affected by radiation. In fact, studies in Semipalatinsk, the major test site of the former Soviet Union, witness of a gender difference in cancer rates, in particular esophagus cancer and higher rates of breast cancer. Moreover, they show that pregnant women are particularly susceptible to thyroid cancer, a fact that affects also their infants. In addition, the phenomenon of jelly fish babies on the Marshall Islands, born basically without bones, is another legacy of the nuclear weapons testing.
- Placing the human being and the survival of the future generations in the center of concern : The present movement on the humanitarian impact on nuclear weapons focuses, as did already the Ottawa and Oslo Processes, on humanitarian concerns and the protection of the individual – one may call it « human security » – and not exclusively on national security interests. This constitutes nothing less than a real paradigm shift in the sphere of nuclear weapons discourse. The NWS might invoke, of course, the deterrence doctrine going back to the dark ages of the Cold War, but which is clearly displaced by the human suffering caused by the use of such weapons and the long-lasting effects on the environment and on future generations. As landmines, which turned out to have no significant military value, but kill and injure the « wrong » persons, namely the civil population, a use of a nuclear weapon would be completely disproportionate in the light of international law. I will come back to this aspect in a later post.
The outcome of the Ottawa and Oslo Processes are well known : comprehensive, legally binding instruments that prohibit not only to use, develop, produce, acquire, stockpile, retain and transfer the weapons concerned, but also oblige the States Parties to destroy them (Article 1). Moreover, their implementation is generally regarded as satisfactory and they aim at universality of membership. As I wrote in a recent article on Article VI NPT (Daniel Rietiker, The Meaning of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons : Analysis Under the Rules of Treaty Interpretation, in : J.L. Black-Branch/D. Fleck, Nuclear Non-Proliferation in International Law, Vol. I, Asser Press, 2014, pp. 47-84), I consider that this treaty could basically constitute a sufficient basis for nuclear disarmament, provided that the good faith in the execution of this treaty in the light of the principle of pacta sunt servanda (Article 26 Vienna Convention on the Law of Treaties) is respected. In the absence of concrete and effective measures towards nuclear disarmament by certain States, an additional treaty, prohibiting certain activities, including the use of nuclear weapons, could contribute to the noble cause of a world without nuclear weapons and, moreover, have a triggering effect on NWSs’ approach to nuclear disarmament. Moreover, it could even contribute to the creation – or fortification in case such a role already exists – of a customary rule in the field of nuclear disarmament.
How foolish the comparison between landmines and nuclear weapons might be considered and wherever the present development may lead to, many delegations concluded, after the two intensive days in Vienna, that this Conference has generated an important momentum towards nuclear disarmament. The view expressed, inter alia, by the Ecuadorian delegation, according to which a world without a nuclear weapons is not only a dream – as expressed by President Obama in Prague (2009) and Berlin (2013) – but a legal obligation imposed on all States and therefore clearly of erga omnes nature, is fully shared here.
It is now up to the States, NWS as well as NNWS, to give this humanitarian initiative a rational dimension and to turn the findings of the three conferences into legal reality!