The Vienna Conference on the humanitarian impact of nuclear weapons (Part II) – The obvious disproportionality of nuclear weapons under international law

In our previous post on the Vienna Conference on the humanitarian impact of nuclear weapons, we compared the ongoing process focusing on the disastrous effects of nuclear weapons on the human being and its natural environment with the Ottawa and Oslo Processes, which were both crowned by the successful conclusion of the respective international treaties prohibiting anti-personnel mines and cluster munitions. One of the common features of these developments is the fact that the humanitarian aspect is at the heart of the debate, more than abstract considerations of national security.

The NWS oppose the deterrence doctrine and their national security interests against their elimination of nuclear weapons. From our point of view, such allegation are clearly outweighed by the human suffering caused by the use of such weapons and the long-lasting effects on future generations, as will be shown below. Like anti-personnel mines, which turned out to have no significant military value, but kill and injure the « wrong » persons, namely the innocent civil population, women and children, a use of nuclear weapons would be in clear violation of the proportionality principle, that is one of the underlying pillars of international law. Several aspects can be distinguished in this regard:

1.  Jus ad bellum

The UN Charter prohibits the use of force as a means of resolving disputes between States (Article 2 § 4). The only exception authorized by the Charter consists in the inherent right to self-defence, within the meaning of Article 51. We recall that the International Court of Justice (ICJ), in its 1996 Advisory Opinion, in other words more than 18 years ago, did not “conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of the State would be at stake.” (dispositive, paragraph E, second part). It derives from the jurisprudence of the ICJ that an act of self-defence has to be proportionate and necessary in order to be lawful (Military and paramilitary activities in and against Nicaragua, ICJ Report 1986, par. 194). During the Vienna Conference, a lot of evidence has been presented in favor of the thesis that any use of nuclear weapons, including in self-defence and even using so-called low-yield or earth-penetrating nuclear weapons, would in any event violate core principles and norms of international law, in particular jus in bello.

2. Jus in bello

The proportionality principle is also underlying the body of jus in bello, the law of armed conflicts, whose principles were consider by the ICJ in the Opinion mentioned above as “intransgressible principles of international customary law.” (par. 79). It is clear that through this language, these principles take nowadays the nature of imperative norms of international law, of jus cogens norms. The prohibition to cause unnecessary suffering to combatants (Article 35 of the First Protocol to the 1949 Geneva Conventions) and the principle of military necessity, according to which an attack that is expected to cause incidental loss of civilian life or property that would be excessive in relation to the concrete and direct military advantage anticipated (Article 50 par. 5 b) of the First Protocol), derive both from the logic of proportionality. The prohibition to use methods of warfare that would cause serious damage to the natural environment (Article 35 § 3 of the First Protocol) adds another, more recent layer of limits to what is permitted in armed conflict. The experience of Hiroshima and Nagasaki – where very small nuclear weapons were used compared to those that can be found in today’s stockpiles of NWS – demonstrates that these principles can hardly be respected in case of a use of nuclear weapons.

3.   Human Rights law

In its 1996 Advisory Opinion, the ICJ expressly affirmed the continuing applicability of the International Covenant on Civil and Political Rights (ICCPR) in a situation of armed conflict (par. 25). Therefore, in particular the right to life within the meaning of Article 6 turns out to be a limit to the use of nuclear weapons. This article prohibits the arbitrary deprivation of life. It is now up to the NWS to demonstrate how a nuclear weapon could possibly be used without arbitrarily – because indiscriminately – kill thousands of innocent people?

One should not forget that the actual use of nuclear weapons is not the only activity related to this weapon that is said to violate basic human rights. Already at the very beginning of the production line, namely during mining and milling of uranium, the rights of workers and their families, the local population and indigenous peoples, are violated on a daily basis due to the radiation to which they are exposed and that contaminates their lands and the drinking water (click here for a recent report). The testing of nuclear weapons has similar effects. The deadly legacy left behind on the Marshall Islands, in the Semipalatinsk region, etc., witness of the disastrous impact that nuclear weapons tests have on the health of local people, its natural environment and, in the long run, for the survival of future generations (see, for more information, the homepage of the Preparatory Commission of the CTBT). Last but not least, not only the research and production of new nuclear weapons, but also the maintenance and modernization of the existing stockpiles, consume huge sums of money that could be used for more useful and peaceful purposes, such as the development and education of less privileged people and countries.

In short, nuclear weapons – their production, testing, possession and use – have a direct human rights dimension.

4.   International environmental law

Any activity involving nuclear weapons may incidentally cause radioactive contamination of the environment or release hazardous chemicals into the atmosphere, the hydrosphere, the lithosphere and the biosphere, and disrupt entire ecosystems (“Article36”, The effects of nuclear weapons under international law, Briefing paper, December 2014, p. 3, for the whole paper click here). Nuclear weapons reveal themselves problematic in the light of the core principles of international environmental law. Under the principle of prevention, NWS are under the duty to prevent, minimize and control the risk of causing significant transboundary harm. As the detonation of a nuclear weapon would cause harm that is likely not to be contained to national border, a use could hardly be conceivable with this principle (ibid.). Another fundamental principle of international environmental law is the sustainability principle. It implies, inter alia, that adequate food and safe water must be accessible for the present and future generations (ibid., p. 4). In the light of what has been observed above under point 4 (human rights law) in relation to contamination by radioactivity, nuclear weapons testing or the use of these weapons as a method of warfare would be hardly reconcilable with this principle.

5.   International criminal law

Contrary to other weapons, in particular asphyxiating, poisonous and other gases, within the meaning of the 1925 Geneva Convention, the use of nuclear weapons has not be included in the list of war crimes in the 1998 Rome Statute, due to the heavy resistance of certain States, in particular the NWS. Later, in the Review Conference in Kampala in 2010, the Mexican delegation proposed, in vain, to include such a war crime in the Rome Statute (Article 8 § 2 b). This does nevertheless not mean that the persons responsible for the use of a nuclear weapon would be immune against prosecution by the ICC. In particular, taking the highly indiscriminate nature of nuclear weapons into consideration, coupled with their incomparable destructive power and if used against inhabited areas, they could easily cause harm amounting to “grave breaches” within the meaning of Article 147 of the Fourth Geneva Convention and, as a result, constitute war crimes in the sense of Article 8 § 2 a) of the Rome Statute. From our point of view, a use of nuclear weapons, directed intentionally against an inhabited town, as it was the case in Hiroshima and Nagasaki in August 1945, could moreover result in a crime against humanity, since it is likely to constitute “murders” committed as part of a “widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7 of the Rome Statute).

6.  The disproportionality ratione personae of the present nuclear weapons situation: The principle of sovereign equality of States and pacta sunt servanda

The few NWS invoke the deterrence doctrine and the protection of national security against nuclear disarmament. One of the fundamental principles of modern international law is the sovereign equality of States, enshrined in Article 2 par. 1 of the UN Charter. In the light of this principle, and the principle of pacta sunt servanda (Article 26 Vienna Convention on the Law of Treaties), the question is allowed on which basis a handful of States can still insist on their historic privilege to possess nuclear weapons, vis-à-vis more than 160 States that respect their international treaty obligations, in particular the duty under the NPT not to acquire nuclear weapons (Articles II and III NPT). Article VI NPT imposes on the States Parties, in particular the NWS, to negotiate in good faith towards nuclear disarmament. It is well known that, in this field, no significant progress has been achieved yet. The three pillars of the NPT being considered equal – the so-called “bargain” –, it will be interesting to see whether the ICJ, in the pending cases introduced by the Marshall Islands against all NWS (click here for more information), will endorse the obvious imbalance that exists in practice in the execution of the different NPT duties. From our point of view, the present constellation with regard nuclear weapons constitutes an obvious disproportionality ratione personae in international relations.

Conclusions: To sum up, it can be claimed that nuclear weapons seem hardly conceivable with basic principles of jus ad bellum, jus in bello, human rights, environmental law and the sovereign equality of States. It has to be stressed, too, that not only the actual use of nuclear weapons, but also its production, testing and possession raise problems under these norms. Moreover, it is not excluded that the persons responsible of a use of such a weapon could be prosecuted for war crimes and crimes against humanity. In these circumstances, still justifying the possession and possible use of these weapons in the interest of national security – of a handful of States – cannot be regarded proportionate or reasonable any longer!

The international community as a whole, NWS as well as NNWS, has to work efficiently and in good faith towards a world without nuclear weapons. The humanitarian approach might offer a convincing avenue and seem to be an almost unanimously shared alternative. Common Article 1 of the Geneva Conventions, one of the key articles of jus in bello but often disregarded and underestimated, is fully applicable to the use of nuclear weapons and might serve as a legal starting point, insofar as it stipulates: “The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.

These were only some rather spontaneous reactions to the Vienna Conference on the humanitarian impact of nuclear weapons. Certain aspects deserve further discussion. We are convinced that this is only the beginning of longer development with a view to achieving a nuclear weapons-free world. Our association will follow this trend closely.

Daniel

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