Banning the Bomb: Reflections on the UN Negotiations for the Nuclear Weapon Ban Treaty

Publication Date: 
Friday, September 8, 2017

 

This guest blog comes to us from students in Harvard Law School’s International Human Rights Clinic. It is based on a previous version written by Carina Bentata Grytin, Molly Doggett, Lan Mei, and Alice Osman which appeared on the Human Rights@Harvard Law blog here.

 

In December of 2016, the United Nations General Assembly decided in a historic vote to conduct negotiations on a treaty banning nuclear weapons. Momentum for such a treaty had been building for years, with UN member states and civil society participating in a series of humanitarian conferences leading up to the General Assembly vote. The treaty negotiations took place in two separate sessions, the first of which was held in March 2017. In the second session, taking place over several weeks in June and July 2017, member states engaged in intense discussions surrounding major issues of the treaty, including environmental remediation, victim assistance (known collectively as positive obligations), and the scope of the ban. Ultimately, on July 7, the final version of the negotiated treaty passed by a vote of 122-1-1, with only the Netherlands (a NATO member with US nuclear weapons on its territory) voting against and Singapore abstaining.

It is at times difficult to explain to those not involved in the negotiations why the ban treaty was an important or even a sensible cause. Many have questioned the impact of a treaty being boycotted by the nuclear-armed states and their allies. For those of us participating in the negotiations, however, the purpose behind the treaty was complex but clear. Nuclear weapons should no longer be the only weapon of mass destruction not prohibited by international law. A categorical ban on nuclear weapons would increase the stigma surrounding the weapons and ramp up pressure on nuclear states to work towards eliminating their arsenals.

Moreover, a strong humanitarian motivation drove the treaty. Prior conferences on the impact of nuclear weapons had led many countries to declare the catastrophic effect of nuclear weapons incompatible with any legal or practical purpose. Countries like the Marshall Islands, Algeria, and Kazakhstan have suffered from years of testing and their populations have experienced decades-long harm. In the case of the Marshall Islands, for example, entire islands were evacuated to allow for nuclear weapons testing by the US in the 1940s and 1950s. A UN report in 2012, over five decades after testing ended, revealed that the tests had created irreversible environmental damage which led to the uninhabitability of several islands. Similarly, survivors of the Hiroshima and Nagasaki bombings in 1945, known in Japan as “Hibakusha”, along with their children and grandchildren, still deal with the health and environmental consequences of atomic bombs today. At the treaty negotiations, some of the survivors of this use and testing offered compelling testimony for why nuclear weapons should be banned.

Our team from the International Human Rights Clinic focused on ensuring that the treaty not only prohibited nuclear weapons, but also held true to its humanitarian purpose by directly addressing the horrific effects of nuclear weapon use and testing. Throughout the spring semester, we prepared papers - released at the negotiations - that made the case for including relevant provisions in the treaty. We argued that states parties should have the obligation to remediate environments affected by nuclear explosions and to provide assistance to victims within their territories. Other states parties should in turn help affected states implement their responsibilities. These “positive obligations” would not merely mitigate hypothetical future instances of nuclear weapon use, but would require states to deal with the significant ongoing impact of historic detonations.

Humanitarian disarmament treaties have increasingly included robust provisions regarding positive obligations. Beginning with the Convention on Conventional Weapons (CCW) Protocol V and the Mine Ban Treaty, which each briefly addressed positive obligations, they have become a crucial aspect of effective humanitarian disarmament. The groundbreaking CCW provides the gold standard for positive obligations, addressing in great detail both the rationale and the procedure for engaging in victim assistance and environmental remediation measures. By addressing victim assistance and environmental remediation in standalone articles, the nuclear weapons ban treaty continued to build upon this international precedent.

The inclusion of strong language on positive obligations was not necessarily a given during the treaty negotiations. For example, a primary tenant of victim assistance is that the obligation falls upon the territorial state - i.e. the state on whose territory the weapons were used - to provide for survivors. As a small number of states pointed out during the negotiations, some may view it as unfair that a state that has been the victim of the attack is then the one responsible under international law for meeting the needs of individual victims, at a time when they may be strapped for resources and capacity to provide aid. Nevertheless, we argued that the territorial state should bear this burden for several reasons. First, it is a basic premise of international human rights law that each state is responsible for fulfilling the rights of individuals within its own territory; the duty to uphold human rights cannot be outsourced to an external state. Second, territorial states are in the best position to identify and address the needs of their own citizens. Third, placing the burden on user states - which are unlikely to join the treaty in the near future - creates a significant risk that the needs of victims will not be fulfilled. Fourth, affected state responsibility follows the international precedent set by the above-mentioned treaties, including the CCM. Finally, the treaty’s inclusion of a strong international cooperation and assistance provision ensures that victim states will not be alone in bearing this burden, and that members of the international community will be obligated to provide assistance.

Suffice it to say, a lengthy discussion ensued between states at the negotiations as to who should bear the primary responsibility for positive obligations. Ultimately, through our advocacy efforts and discussions with state representatives, the final treaty text language included strong positive obligations provisions that resolved the issue of primary responsibility in a way consistent with international law; namely, that territorial states are responsible for undertaking positive obligations, and that they are not only entitled to receive international assistance, but that the international community is obligated to give it.

While non-governmental organizations (NGOs) had a limited status at the negotiations, civil society groups nonetheless had a tangible impact on the treaty; indeed, the president of the conference, along with many states, thanked civil society for its contributions and acknowledged that the negotiations likely would not have come about without its efforts. A year ago, few people were thinking about including positive obligations in the prohibition convention, and the first draft of the text, released in May, was weak. But the final version included all the obligations for which we had advocated, marking significant progress in the development of positive obligations toward victim assistance.

The last moments of the negotiations on July 7 were a dramatic affair. Against the hopes of most governments and civil society, the Netherlands objected to adopting the new treaty by consensus. In the final vote, though, overwhelming support for the treaty bolstered its credibility equally well: 122 states voted in favor of the convention, with only the Netherlands voting against and Singapore abstaining.

Despite some shortcomings, this was a major moment in the history of efforts to eliminate nuclear weapons. The adoption of the nuclear weapons ban treaty sends a message to the international community at large that nuclear weapons are unacceptable. While the Nuclear Non-Proliferation Treaty (NPT) of 1968 provides that states will negotiate nuclear disarmament in good faith, many in the international community felt disillusioned by the failure to do so in the nearly five decades since the NPT’s passage. Therefore, the new treaty not only reiterates the intolerance of nuclear weapons, but heightens the stigma against those states that continue to possess them. Such stigma has proven influential with respect to past humanitarian disarmament treaties; for example, although the US has not signed the Mine Ban Treaty of 1997, it has nevertheless aligned its landmines policy to comply with the contents of the treaty. The treaty also provides avenues for nuclear weapons states to destroy their stockpiles and join the treaty, should they choose to do so in the future. Furthermore, the treaty acknowledges the human element of nuclear weapons; that there are generations of victims who have suffered from use and testing and who will continue to suffer, and yet the source of their indescribable harm remains in existence.

While the passage of the treaty was a historic step, there remains work to be done. On September 20, 2017, the treaty will open for signature. Even states that did not participate in negotiations may sign the treaty. Furthermore, state signatories and civil society alike must continue to engage in global advocacy regarding the humanitarian consequences of nuclear weapons. While the hope is to someday see a nuclear-free world, nuclear weapons states are not expected to sign the treaty any time soon. Nevertheless, the rest of the world has made a clear statement: nuclear weapons and the horrific damage they cause is unacceptable.

 

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