International Law Working Group

Introduction

The working group’s purpose is to make available to activists and the public, the legal elements and processes involved in the abolition of nuclear weapons.

The group, which includes lawyers and non-lawyers, works to raise the profile of International Humanitarian Law (IHL), laws of peace and security, environmental law, human rights law, rights of future generations and other sources of law applicable to nuclear weapons.

The group also considers legal mechanisms for abolishing nuclear weapons such as national legislation, legal challenges in courts, and treaty negotiations including on a ban treaty, nuclear weapons convention and/or a framework of legal agreements.

Background:

The general illegality of the threat and use of nuclear weapons was affirmed by the International Court of Justice in 1996, following a successful civil society campaign to get the issue before the court.

The court concluded that ‘…the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;’ but that ‘the Court cannot 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 a State would be at stake.’

The court also concluded that ‘There exists an obligation 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.’

Since 1996, a number of civil society declarations and events have affirmed a more comprehensive prohibition on nuclear weapons. These include:

Vancouver Declaration: Law’s Imperative for the Urgent Achievement of a Nuclear-Weapon-Free World (2011)
International People’s Tribunal on Nuclear Weapons and Human Civilisation which was held in Sydney, Australia July 8-9, 2016;
Basel Declaration on trans-generational crimes of nuclear weapons & nuclear energy, adopted in Basel on September17, 2017.

In addition the International Red Cross and Red Crescent Movements have adopted resolutions in 2011 and 2013 on the irreconcilability of nuclear weapons with international humanitarian law.

And in 2018, the the UN Human Rights Committee adopted a new General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights (ICCPR), on the right to life, which concluded that the threat or use of nuclear weapons is incompatible with the Right to Life and may amount to a crime under international law. (See Nuclear Weapons and the Right to Life below)

IHL provides the context for the Criminality of Nuclear Weapons Campaign which also invokes the moral dictates of the Public Conscience.

Recent resources:

Nuclear weapons violate the Right to Life: Using UN Human Rights Committee General Comment 36 in grassroots actions and campaigns.
UN Human Rights Committee concludes that the threat or use of nuclear weapons violates the Right to Life by UNFOLD ZERO
Threat and use of nuclear weapons contrary to right to life, says UN Human Rights Committee by Daniel Rietiker.
Humanization of Arms Control Paving the Way for a World free of Nuclear Weapons by Daniel Rietiker, a member of the working group.

International governmental processes

The 2010 Nuclear NPT Review Conference expressed its “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons” and reaffirmed “the need for all states at all times to comply with applicable international law, including international humanitarian law”.

At the 2012 Vienna Nuclear Non-Proliferation Treaty Preparatory Committee, Switzerland presented a joint statement on the “humanitarian dimension of nuclear disarmament” sponsored by 16 governments which insisted that all NPT parties, “especially the nuclear weapon States, [should] give increasing attention to their commitment to comply with international law and international humanitarian law.” Over the next few years, this statement continued to gather endorsers, the number of which increased to more than 150.

From 2013-2016, a series of international conferences on the humanitarian impact of nuclear weapons was hosted by Norway, Mexico and Austria. These conferences included a strong focus on international law and nuclear weapons.

In 2013 and 2016, the United Nations held an Open Ended Working Group on Taking Forward Multilateral Nuclear Disarmament Negotiations. A key focus of the OEWGs was on legal measures to achieve nuclear disarmament. The 2016 OEWG decided to initiate, through the UN General Assembly, negotiations on a treaty to prohibit nuclear weapons.

In 2017, the United Nations held a negotiating conference which on July 7 adopted the Treaty for the Prohibition of Nuclear Weapons. For a legal analysis of the treaty, see IALANA Statement Regarding the Treaty on the Prohibition of Nuclear Weapons on the Occasion of its Opening for Signature on 20 September 2017

Nuclear weapons and the Right to Life

On October 30, 2018, the UN Human Rights Committee adopted a new General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights (ICCPR), on the right to life, which concluded that the threat or use of nuclear weapons is incompatible with the Right to Life and may amount to a crime under international law. In addition, the Human Rights Committee affirmed an obligation of States Parties to the Covenant to end the production of WMD, destroy existing stockpiles and provide adequate reparation to victims of their testing or use, and the Committee affirmed that the Right to Life is ‘the supreme right from which no derogation is permitted even in situations of armed conflict and other public emergencies which threatens the life of the nation.’

The significance of this development is five-fold: a) it applies directly to the nuclear-armed States all of whom are States Parties of the ICCPR (although China has yet to ratify the Covenant); b) it comprehensively prohibits the threat or use of nuclear weapons with no exception, c) it applies personal responsibility (criminality) to nuclear weapons policies, d) it applies human rights law and enagages human rights constituencies, e) it affirms that human rights law, and in particular the Right to Life, applies even during armed conflict and when the survival of the State is at stake (the International Court of Justice was inconclusive on this in 1996).

Grass roots activists are now using this devlopment to supplement their campaign arguments against any threat or use of nuclear weapons, against the production and modernisation of nuclear weapons, and for their complete elimination. The working group has produced a flyer Nuclear weapons violate the Right to Life: Using UN Human Rights Committee General Comment 36 in grassroots actions and campaigns to assist.

See: UN Human Rights Committee concludes that the threat or use of nuclear weapons violates the Right to Life

Submissions to UN Human Rights bodies on implementation by nuclear armed and allied states of their obligations under the Right to Live to refrain from any threat or use of nuclear weapons, achieve the complete elimination of nuclear weapons and address the humanitarian impact of the production and testing of nuclear weapons: Russia, the USA, France, Canada, Denmark, Iceland, Japan and South Korea, North Korea, Netherlands and the United Kingdom.

International Criminal Court

The definition of war crimes, over which the ICC has jurisdiction, includes the use of poison or poisonous weapons, and the use of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices. There was a proposal to specifically include the use of nuclear weapons as a crime under the jurisdiction of the ICC, but this was rejected by nuclear armed States (with the exception of India) and other nuclear reliant States (NATO allies) and so was not included.

Following the adoption of the ICC Statute there have been a series of Assemblies of States Parties to the ICC. At the Eighth Assembly, Mexico proposed an amendment that would include the use or threat of use of nuclear weapons as a crime under the jurisdiction of the ICC. This proposed amendment has not yet been adopted. The adoption in 2017 of the Treaty on the Prohibition of Nuclear Weapons and the UN Human Rights Committee General Comment 36 (see above) are expected to provide additional momentum to move this proposal forward.

Domestic cases and initiative using international law

Citizens Petition Officers Wurtsmith Air Force Base for preparations for threat or use of nuclear weapons

Reports:

Members:

John Burroughs. Lawyers’ Committee on Nuclear Policy
Emilie Gaillard, International Association of Lawyers Against Nuclear Arms
Aaron Tovish, Zona-Libre
Rob van Riet, World Future Council
Andrew Lichterman, Western States Legal Foundation
Manfred Mohr, International Association of Lawyers Against Nuclear Arms
Roslyn Cook,
Matt Robson, Aotearoa Lawyers for Peace
Daniel Rietiker, Association of Swiss Lawyers for Nuclear Disarmament
Waheed Ahmad, Lahore Bar Association
Muna Makhamreh, Parliamentarians for Nuclear Non-proliferation and Disarmament
Alyn Ware, Aotearoa Lawyers for Peace

Contacts:

For further information or to join the group, contact Daniel Rietiker or Alyn Ware