Implementing the legal norm for abolition

Presentation to the United Nations Open-ended Working Group on Taking Forward Multilateral Nuclear Disarmament Negotiations

Delivered by Dr Daniel Rietiker PhD President of the Association of Swiss Lawyers for Nuclear Disarmament (Swiss affiliate of IALANA)

Your excellencies,

I have the honour to make an intervention on behalf of the International Association of Lawyers Against Nuclear Arms, an organisation of lawyers and law organisations that has been active on nuclear disarmament since 1988.

IALANA welcomes the establishment of the 2016 Open-ended Working Group and supports your vital work on the legal measures and norms to achieve and maintain a nuclear weapon free world.

In IALANA’s assessment, because of their very nature, the use of nuclear weapons is and always has been illegal under customary international law. They cannot be used in compliance with fundamental principles protecting civilians and neutral states from the effects of warfare, protecting combatants from unnecessary suffering, protecting the environment from severe and irreversible damage, and safeguarding the interests of future generations. Use of nuclear weapons would constitute war crimes under the Rome Statute of the International Criminal Court, and in many circumstances, crimes against humanity as well. For more analysis, please see the 2011 Vancouver Declaration appended to this statement.

The 1996 Advisory Opinion of the International Court of Justice supports this assessment. The Court stated that “the use of [nuclear] weapons in fact seems scarcely reconcilable with respect for [the strict] requirements” of “the principles and rules of law applicable in armed conflict — at the heart of which is the overriding consideration of humanity.” (ICJ Reports 1996, § 95).

Though nuclear weapons have not been used in war since World War II, the nuclear-armed states and states in nuclear alliances have yet to squarely accept the illegality of use of nuclear weapons. Indeed, the use of nuclear weapons has been threatened, directly or implicitly, on numerous occasions, to say nothing of doctrines of ‘deterrence’. It is therefore desirable to codify the prohibition of use and threat of use in a legal instrument. The best way to do so would be through negotiation of a nuclear weapons convention that would codify the prohibition of use and threat of use from entry into force and provide for verified elimination to occur over a phased period. In so doing states would fulfil their obligation under NPT Article VI and customary international law, as stated by the International Court of Justice, “to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

In 1997, IALANA led a group of experts to prepare a Model Nuclear Weapons Convention to outline the legal and technical elements required for complete nuclear disarmament. This Model, updated in 2007, has been circulated as a UN document, and was described by UN Secretary-General Ban Ki-moon as a “good point of departure” for negotiations. We encourage you to make use of the Model Convention in your deliberations.

Thank you for your attention.

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