Ray Acheson / Inter Press Service & Josh Butler / Inter Press Service – 2015-03-07 19:05:24
Opinion: A Legally-Binding Treaty to Prohibit Nuclear Weapons
A Legally-Binding Treaty to Prohibit Nuclear Weapons
Ray Acheson / Inter Press Service
“By side-stepping the case on jurisdictional grounds, the US is essentially saying they will do what they want, when they want, and it’s not up to the rest of the world whether they keep their obligations.”
— David Krieger
NEW YORK (March 6 2015) — Five years after the adoption of the NPT (Nuclear Non-Proliferation Treaty) Action Plan in 2010, compliance with commitments related to nuclear disarmament lags far behind those related to non-proliferation or the peaceful uses of nuclear energy.
Yet during the same five years, new evidence and international discussions have emphasised the catastrophic consequences of the use of nuclear weapons and the unacceptable risks of such use, either by design or accident.
Thus the NPT’s full implementation, particularly regarding nuclear disarmament, is as urgent as ever. One of the most effective measures for nuclear disarmament would be the negotiation of a legally binding instrument prohibiting and establishing a framework for the elimination of nuclear weapons.
Not everyone sees it that way.
In fact, ahead of the 2015 Review Conference (scheduled to take place in New York April 27-May 22), the NPT nuclear-armed states and some of their nuclear-dependent allies have argued that any such negotiations would “undermine” the NPT and that the Action Plan is a long-term roadmap that should be “rolled over” for at least another review cycle.
This is an extremely retrogressive approach to what should be an opportunity for meaningful action. Negotiating an instrument to fulfill article VI of the NPT would hardly undermine the Treaty.
On the contrary, it would finally bring the nuclear-armed states into compliance with the legal obligations.
Those countries that possess or rely on nuclear weapons often highlight the importance of the NPT for preventing proliferation and enhancing security.
Yet these same countries, more than any other states parties, do the most to undermine the Treaty by preventing, avoiding, or delaying concrete actions necessary for disarmament.
It is past time that the NPT nuclear-armed states and their nuclear-dependent allies fulfill their responsibilities, commitments, and obligations — or risk undermining the very treaty regime they claim to want to protect.
Their failure to implement their commitments presents dim prospects for the future of the NPT. The apparent expectation that this non-compliance can continue in perpetuity, allowing not only for continued possession but also modernisation and deployment of nuclear weapon systems, is misguided.
The 2015 Review Conference will provide an opportunity for other governments to confront and challenge this behaviour and to demand concerted and immediate action. This is the end of a review cycle; it is time for conclusions to be drawn.
States parties will have to not only undertake a serious assessment of the last five years but will have to determine what actions are necessary to ensure continued survival of the NPT and to achieve all of its goals and objectives, including those on stopping the nuclear arms race, ceasing the manufacture of nuclear weapons, preventing the use of nuclear weapons, and eliminating existing arsenals.
The recent renewed investigation of the humanitarian consequences of nuclear weapons is a good place to look for guidance. The 2010 NPT Review Conference expressed “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons.”
Since then, especially at the series of conferences hosted by Norway, Mexico, and Austria, these consequences have increasingly become a focal point for discussion and proposed action.
Governments are also increasingly raising the issue of humanitarian impacts in traditional forums, with 155 states signing a joint statement at the 2014 session of the UN General Assembly highlighting the unacceptable harm caused by nuclear weapons and calling for action to ensure they are never used again, under any circumstances.
The humanitarian initiative has provided the basis for a new momentum on nuclear disarmament. It has involved new types of actors, such as the Red Cross and Red Crescent Movement, the United Nations Office for Coordination of Humanitarian Affairs, and a new generation of civil society campaigners.
The discussion around the humanitarian impact of nuclear weapons should be fully supported by all states parties to the NPT.
The humanitarian initiative has also resulted in the Austrian Pledge, which commits its government (and any countries that wish to associate themselves with the Pledge) to “fill the legal gap for the prohibition and elimination of nuclear weapons.”
As of February 2015, 40 states have endorsed the Pledge. These states are committed to change. They believe that existing international law is inadequate for achieving nuclear disarmament and that a process of change that involves stigmatising, prohibiting, and eliminating nuclear weapons is necessary.
This process requires a legally-binding international instrument that clearly prohibits nuclear weapons based on their unacceptable consequences. Such a treaty would put nuclear weapons on the same footing as the other weapons of mass destruction, which are subject to prohibition through specific treaties.
A treaty banning nuclear weapons would build on existing norms and reinforce existing legal instruments, including the NPT, but it would also close loopholes in the current legal regime that enable states to engage in nuclear weapon activities or to otherwise claim perceived benefit from the continued existence of nuclear weapons while purporting to promote their elimination.
NPT states parties need to ask themselves how long we can wait for disarmament. Several initiatives since the 2010 Review Conference have advanced the ongoing international discussion about nuclear weapons.
States and other actors must now be willing to act to achieve disarmament, by developing a legally binding instrument to prohibit and establish a framework for eliminating nuclear weapons. This year, the year of the 70th anniversary of the US atomic bombings of Hiroshima and Nagasaki, is a good place to start.
Ray Acheson is the Director of Reaching Critical Will, the disarmament programme of the Women’s International League for Peace and Freedom (WILPF).
Marshall Islands Nuclear Proliferation Case Thrown Out of US Court
Josh Butler / Inter Press Service
UNITED NATIONS (February 12, 2015) – A lawsuit by the Marshall Islands accusing the United States of failing to begin negotiations for nuclear disarmament has been thrown out of an American court.
The Marshall Islands is currently pursuing actions against India, Pakistan and the United Kingdom in the International Court of Justice, for failing to negotiate nuclear disarmament as required in the 1968 Nuclear Non-Proliferation Treaty. Action against the US had been filed in a federal court in California, as the United States does not recognise the compulsory jurisdiction of the ICJ.
David Krieger, president of the Nuclear Age Peace Foundation, said the US conducted 67 nuclear weapons tests in the Marshall Islands between 1946 and 1958, the equivalent of 1.6 Hiroshima bombs detonating daily for 12 years.
Despite documented health effects still plaguing Marshallese islanders, US Federal Court judge Jeffrey White dismissed the motion on Feb. 3, saying the harm caused by the US flouting the NPT was “speculative.”
White also said the Marshall Islands lacked standing to bring the case, and that the court’s ruling was bound by the “political question doctrine” — that is, White ruled the question was a political one, not a legal one, and he therefore could not rule for the Marshalls.
Krieger, whose Nuclear Age Peace Foundation supports Marshall Islands in its legal cases, called the decision “absurd.”
“I think it was an error in his decision. There were very good grounds to say the Marshall Islands had standing, and this shouldn’t have been considered a political question,” he told IPS. “The Marshall Islands know very well what it means to have nuclear bombs dropped on a country. They’ve suffered greatly, it’s definitely not speculative.”
The foundation of the multiple cases brought by the Marshall Islands was that the US, and other nuclear powers, had not negotiated in good faith to stop the spread of nuclear weapons. White ruled it was “speculative” that the failure of the US to negotiate nuclear non-proliferation was harmful.
Krieger said the Marshalls would appeal the decision to the Ninth Circuit of Appeals. He said the decision set a troubling precedent regarding US adherence to international agreements.
“The US does not accept the jurisdiction of the ICJ, and in this case, the judge is saying another country does not have standing [in an American court]. In essence, it means any country that enters into a treaty with the US should think twice,” he said.
“Another country will be subject to the same decision of the court. Where does that leave a country who believes the US is not acting in accordance with a treaty?
“By side-stepping the case on jurisdictional grounds, the US is essentially saying they will do what they want, when they want, and it’s not up to the rest of the world whether they keep their obligations.”
Krieger said that the judge’s comments about the “speculative” nature of the case meant essentially that a nuclear accident or war would have to break out before such a case for damages could be heard.
“It’s saying a state must wait until some kind of nuclear event, before damages won’t be speculative,” he said. “It’s absurd that the claim that the US has not fulfilled its obligations to negotiate in good faith to end the nuclear arms race, is called ‘speculative’ by the judge.”
Marshall Islands had intended to pursue all nine nuclear powers — the US, China, Russia, Pakistan, India, the UK, France, North Korea and Israel — in the ICJ on their failure to negotiate for nuclear non-proliferation.
The Marshall Islands is still pursuing cases in the ICJ against Pakistan, India and the UK, but John Burroughs, executive director of the Lawyers Committee on Nuclear Policy, said the other cases had stalled as those nations did not accept the compulsory jurisdiction of the ICJ.
“The other six states, the Marshall Islands invited and urged them to come before the court voluntarily, which is a perfectly normal procedure, but none of them have done so,” Burroughs told IPS.
Burroughs, also a member of the international team in the ICJ, said China had explicitly said it would not appear before the court. “Any of those countries could still agree to accept the court’s jurisdiction,” he said. He said preliminary briefs had been filed in the India and Pakistan cases, with responses due by mid-2015. A brief will be served on the UK case in March.
Burroughs said he doubted the decision in US federal court would impact the cases in The Hague. “I don’t see the decision having any effect at all,” he said.
Related IPS Articles
Civil Society Support for Marshall Islands Against Nuclear Weapons
Faiths United Against Nuclear Weapon
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