By Prof. Manfred Mohr (Professor of Public International Law, Academy of Sciences, Berlin, Board member of IALANA) and Prof. Daniel Rietiker (Adjunct Professor at Lausanne University and Suffolk University Law School, Boston MA, Co-president of IALANA)
I. On the commitments, their relevance and nature (1MSP’s declaration)
- Articles 6 and 7 contain positive obligations which are of specific relevance, as distinct from negative, or banning, stipulations contained in the Treaty. Implementing these obligations is a priority, and has immediate practical effects for victims and the natural environment affected by the (past) use or testing of nuclear weapons. Those commitments are of relevance even without the joining of Nuclear Weapon States to the Treaty – thus underlining the great, overall importance of the instrument. According to Article 6, the point of departure for victim assistance and environmental remediation lies with the jurisdiction of affected States Parties, which may not be Nuclear Weapon States.
- The commitments and respective parts of the Treaty echo the present general tendency of dealing with the subject of war and the environment. This is indicated, among other things, by the draft of the International Law Commission (ILC) on principles on the protection of the environment in relation to armed conflict (PERAC) (A/74/10), or the 2020 Guidelines of the International Committee of the Red Cross on the Protection of the Natural Environment in Armed Conflict. The trend – which also establishes a connection to the global issue of climate change – is reflected through endeavors like the one of the Harvard Law School’s International Human Rights Clinic and the Conflict and Environment Observatory (CEOBS) outlining 14 principles for assisting victims of toxic remnants of war (Confronting Conflict Pollution, 2020).
- The special relevance and strength of art. 6 and 7 commitments result from the fact that they are linked to, or rooted in, existing international law. As Para. 8 of the Treaty’s preamble reaffirms: “…the need for all States at all times to comply with applicable international law, including international humanitarian law and international human rights law”. The three main branches of law pertinent here are International Humanitarian Law (IHL), Human Rights, and Environmental Law – while Para. 10 of the preamble puts a focus on IHL as did the International Court of Justice in its 1996 Advisory Opinion on the (Il)Legality of the threat or use of nuclear weapons. There is a multitude of legal arguments – many of them of a customary character – available to further victim assistance and environmental
remediation in the case of testing or use of nuclear weapons, standards existing outside of, and being confirmed by, the Treaty, in particular Articles 6 and 7.
- The language of the MSP’s declaration should emphasize that the respective commitments are an expression of the humanitarian disarmament concept: to pursue a victim-centered approach which is concentrating on practical, or pragmatic solutions and help for the people negatively affected by nuclear weapons – human security complementing national security. This is, as Para. 6 of the Treaty’s preamble has put it, being “…Mindful of the unacceptable suffering of and harm caused to the victims of the use of nuclear weapons (hibakusha) as well as those affected by the testing of nuclear weapons…”
Again, efforts and proclamations by non-State actors may have an instructive value. An example in point is the Declaration of the World Nuclear Victims Forum in Hiroshima, containing Draft Elements of a Charter of World Nuclear Victims’ Rights (2015).
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