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Op-Ed: The Case for Positive Obligations in the Nuclear Weapons Ban Treaty


Bonnie Docherty (left) of Harvard Law School’s International Human Rights Clinic and Matthew Bolton (right), Director of Pace University’s International Disarmament Institute on a panel regarding positive obligations in the proposed nuclear weapons ban treaty at the UN in March 2017.

Republished from Nuclear Ban Daily, 1(4), pp. 2-3.

The case for the nuclear weapons ban treaty has been rooted in the traditions of international humanitarian law and humanitarian disarmament law, which bind states to acknowledging the suffering caused by war, establishing prohibitions on inhuman methods and means of warfare and taking positive harm-limiting measures.

The Geneva Conventions – the most well-known treaties forming the core of international humanitarian law – prohibit states from targeting civilians, wounded soldiers, prisoners of war, the shipwrecked and relief workers. But they also commit states to a positive “duty to ensure respect” for the conventions (Common Article 1). And they mandate the International Committee of the Red Cross and the National Societies to provide relief and to raise awareness of humanitarian norms.

The international community will lose an important opportunity if the nuclear weapons ban treaty does not include positive obligations beyond its prohibitions. These measures should reflect the object and purpose of the treaty – to prevent the catastrophic humanitarian and environmental consequences of nuclear weapons.

Positive obligations would make would make the process of stigmatizing and limiting the harm of nuclear weapons the responsibility of all states, including those affected and not directly affected by nuclear detonations. Such provisions would encourage states to engage directly in extending and universalizing the norm, and work toward a nuclear weapons free world.

There is important precedent for positive obligations in humanitarian disarmament law, which emerges from international humanitarian law but establishes rules regarding specific weapons. These tend to come in three categories:

  • Rights and remedial measures (e.g. environmental remediation, risk education, victim assistance and stockpile destruction),
  • Promotion of the treaty and of its norms (e.g. universalization, norm dissemination, and disarmament education),
  • International cooperation and assistance to implement the above two sets of obligations.

The following discusses each of these categories in more depth and argues that they offer a foundation on which to build positive obligations in the nuclear weapons ban treaty.

Rights and remedial measures 

Humanitarian disarmament treaties obligate states to recognize the rights of those who are harmed by weapons and take steps to limit any ongoing harm. With regards to the nuclear weapons ban treaty, there have been a variety of proposals for such obligations, including stockpile destruction, environmental remediation, risk education and victim assistance. All of these suggested provisions are well-grounded in existing humanitarian law on other weapons.

When weapons cause lasting danger in the environment, humanitarian disarmament treaties include provisions for its remediation. Protocol II of the 1980 Convention on Certain Conventional Weapons (CCW) calls for cooperation in the removal of landmines (Articles 8 & 9). The 1997 Mine Ban Treaty (MBT) is much stronger, requiring affected states to clear all minefields from their territories. Other states and international organizations are encouraged to help them (Articles 5 & 6). Similar obligations are found in the 2003 CCW Explosive Remnants of War (ERW) Protocol (Article 3) and 2008 Convention on Cluster Munitions (CCM) (Article 4).

The MBT (Article 5.2, Article 6.3 & 6.7), ERW Protocol (Article 4, 5 & 8) and CCM (Article 4, 6 & 7) all call on states to inform people of the dangers of mines, ERW and cluster munitions, through fencing and marking contaminated areas, offering warnings and “risk education to the civilian population” (ERW Protocol, Article 5).

These same instruments also include provision of victim/survivor assistance. In the MBT, states “that are in the position to do so” are required to “provide assistance for the care and rehabilitation, and social and economic reintegration, of mine victims”, supported by other states, international organizations and civil society (Article 6.3). The ERW Protocol has a very similar provision (Article 8.2). The CCM offers much more detail, recognizing the relevance of “human rights law”, the importance of “age- and gender-sensitive assistance” and “psychological support.” States are also expected to “make every effort to collect reliable relevant data with respect to cluster munition victims” (Article 5).

Destroying weapons so that they cannot be used for further harm removes temptations for states to violate the norm. For example, Article 4 of the MBT requires states “to destroy or ensure the destruction of all stockpiled anti-personnel mines it owns or possesses, or that are under its jurisdiction or control, as soon as possible.” A similar obligations is found in Article 3 of the CCM.

Promotion of the treaty and of its norms

Humanitarian disarmament law often includes obligations on states to promote universalization of the treaty and discourage violations of its norms. For example, the CCM requires states to “promote the norms it establishes”, by encouraging accession of states not party and discouraging them, “from using cluster munitions” (Article 21.1 & 2). Similarly, the 2013 Arms Trade Treaty (ATT) establishes that its annual Conferences of States Parties will “consider and adopt recommendations regarding the…promotion of its universality” (Article 17.4.b).

In addition to promoting the norm among states, several instruments call on states to educate their citizens and militaries about the norms embedded in it. The CCW requires states to disseminate the treaty “as widely possible” and to include it in the curriculum of their “programmes of military instruction” (Article 6). Similarly, the 2001 UN Programme of Action on Small Arms and Light Weapons endorses education for a “culture of peace”, including public awareness of the illicit trade in small arms; the 1999 Programme of Action on a Culture of Peace calls for education to promote general and complete disarmament.

With the nuclear weapons ban treaty, states should consider building on this to develop a positive obligation to promote disarmament education. The conferences on the humanitarian impact of nuclear weapons showed there is a clear need for citizens to understand the catastrophic risks of nuclear weapons and to promote a stigmatizing norm against them. The “importance” of disarmament education was emphasized in the Report of the Open-Ended Working Group on Nuclear Disarmament in 2016, particularly regarding “the humanitarian consequences of nuclear weapons” (para 59, 63 & Annex 1, para 3). Disarmament education was endorsed by the 2010 Nuclear Non-Proliferation Treaty Review Conference Outcome Document (Action 22).

International cooperation and assistance

The humanitarian disarmament treaties mentioned above – the MBT (Article 6), ERW Protocol (Article 8), CCM (Article 6), and ATT (Articles 15 &16) – have provisions encouraging international cooperation and assistance to implement the commitments they establish. This will be crucial in the nuclear weapons ban treaty, so that the burden of positive obligations is shared collectively and all states parties play a role in ensuring that the new norms are implemented.

Positive obligations must be operative

All the examples of humanitarian disarmament law offered here include positive obligations in the operative parts of the treaty. The same should be true for the nuclear weapons ban treaty. To place them only in the preamble would represent backsliding from progress made in other parts of international humanitarian law and disarmament law.

— Matthew Bolton, Director, International Disarmament Institute.

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