November 22, 2016

The Vancouver Declaration and the Humanitarian Imperative for Nuclear Disarmament

The Vancouver Declaration, “Law’s Imperative for a Nuclear-Weapon-Free World”, 1Available at http://www.lcnp.org/wcourt/Feb2011VancouverConference/vancouverdeclaration.pdf is included as an appendix to this issue of the Nuclear Abolition Forum. It serves two main purposes. It places the imperatives of non-use and elimination of nuclear weapons in a broad humanitarian perspective, and it articulates the current state of the law applicable to nuclear weapons in light of developments since the 1996 International Court of Justice (ICJ) advisory opinion on nuclear weapons. Released on March 23, 2011, the declaration was endorsed by numerous eminent experts in international law and diplomacy, including former ICJ judges, international law scholars and lawyers, and former diplomats and officials, as well as by representatives of leading civil society organizations and by parliamentarians.2A full list of signatories is available at http://www.lcnp.org/wcourt/Feb2011VancouverConference/signatories32211.pdf

The Simons Foundation and the International Association of Lawyers Against Nuclear Arms (IALANA) developed the declaration with the input of a conference convened by the two organizations in Vancouver, Canada, on February 10-11, 2011.3For the conference agenda, statement of intent, participant profiles, and papers by participants, see www.lcnp.org Entitled “Humanitarian Law, Human Security: The Emerging Paradigm for Non-Use and Elimination of Nuclear Weapons,” the conference brought together some 30 experts in international law, diplomacy, and nuclear weapons, including representatives of the International Committee of the Red Cross (ICRC), the United Nations, and several governments, Austria, Switzerland, and Norway.

Dr. Jennifer Simons, President of The Simons Foundation, proposed a conference to IALANA in order to build upon the 2010 Nuclear NonProliferation Treaty (NPT) Review Conference expression of “deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons,” and reaffirmation of “the need for all states at all times to comply with applicable international law, including international humanitarian law.” As the Conference Statement of Intent declares, the “resurgence of international humanitarian law in the nuclear context presents an opportunity that must not be missed to demand that governments definitively rule out use and possession of nuclear weapons.” 4Available at http://www.lcnp.org/wcourt/Feb2011VancouverConference/statementofintent.pdf

The conference produced rich discussion on three themes of a humanitarian approach to nuclear disarmament: the risks to human security arising out of the possession as well as possible future use of nuclear weapons; the lessons to be learned from the disarmament processes on landmines and cluster munitions; and the current state of international law, especially international humanitarian law (IHL), applicable to nuclear weapons. The declaration reflects that discussion.

The humanitarian perspective informing the declaration is conveyed by its first sentence: “Nuclear weapons are incompatible with elementary considerations of humanity.” The phrase “elementary considerations of humanity” was employed by the ICJ in its nuclear weapons advisory opinion. The Court stated that extensive state participation in the Hague and Geneva treaties is “undoubtedly” because “a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and elementary considerations of humanity.” 5Legality of Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 2006, I.C.J. Reports 1996, p. 226 (hereafter ―Nuclear Weapons Advisory Opinion), para. 79. Available at http://www.icj-cij.org/docket/files/95/7495.pdf The ICJ had first used the phrase in the 1949 Corfu Channel Case, holding that “elementary considerations of humanity, even more exacting in peace than in war”, obligated Albania to notify British warships about the dangers posed by a minefield in its waters. 6I.C.J. Reports 1949, p. 4, at p. 22. Emphasis supplied.

The declaration indeed next outlines how nuclear weapons are contrary to elementary considerations of humanity in time of peace as well as war, referring to the risks and harms related to health, the environment, economy, and security arising out of the production, storage, transport, and deployment of nuclear weapons. On the security aspect, as is reported separately in this issue, Dr. Bruce Blair, President of the World Security Institute and CoCoordinator, Global Zero, gave a riveting talk at the conference highlighting four risks associated with peacetime nuclear operations: unauthorized launch, mistaken launch on warning, terrorist theft of weapons, and inadvertent escalation. Blair observed that the United States and Russia have been “minutes away” from nuclear war involving hundreds or thousands of bombs numerous times already. Other countries are “following suit, shortening the fuses as well”. Blair called it a “hydraheaded risk of unacceptable proportions” one that he cannot quantify, but, he said, it is “reasonable to expect a nuclear disaster. Blair concluded his remarks by warning of nuclear weapons, “if we don‘t eliminate them in our lifetime, there‘s a very strong probability that they will be used in our lifetime.”

The declaration also draws upon conference presentations regarding the campaigns and negotiations to ban landmines and cluster munitions. Involved experts and diplomats explained that a humanitarian approach citing but not limited to IHL was what worked to engage the public and a critical mass of governments. The focus moved from national security to human and environmental security, from military requirements and doctrines to effects on human beings, their societies, and their environments, and from controlling the weapons to abolishing them.

While military experts could make a case that in particular theoretical instances use of landmines or cluster munitions has military utility and does not harm or unduly harm non-combatants, this argument could not withstand the overwhelming evidence of “unacceptable harm” in actual situations, the emotional impact of testimony from victims, and the existence of military alternatives. Peter Herby, Head of the Arms Unit, Legal Division, ICRC, noted that while cluster munitions could be used in compliance with legal requirements, they were not being used, or likely to be used, in this way. John Borrie, Senior Researcher, UN Institute for Disarmament Research, explained that the concept of unacceptable harm encompasses weapons whose use is difficult to make consistent with IHL and whose effects in any case are morally and politically intolerable.

Though they are much weaker, arguments comparable to those made in defense of landmines and cluster munitions are made regarding the utility and lawfulness of particular uses of nuclear weapons in atypical scenarios, e.g. in remote areas, or in scenarios in which the military value of a target is extremely high. The declaration accordingly states: “Reasons advanced for the continuing existence of nuclear weapons, including military necessity and case-by-case analysis, were once used to justify other inhumane weapons. But elementary considerations of humanity persuaded the world community that such arguments were outweighed by the need to eliminate them. This principle must now be applied to nuclear weapons, which pose an infinitely greater risk to humanity.” The declaration also quotes the hibakusha, survivors of the atomic bombings of Hiroshima and Nagasaki: “No one else should ever suffer as we did.”

Regarding the application of IHL to nuclear weapons, the declaration observes that with their uncontrollable blast, heat, and radiation effects, nuclear weapons are indeed weapons of mass destruction that by their nature cannot comply with fundamental rules forbidding the infliction of indiscriminate harm and unnecessary suffering. In addition to the ICJ opinion, analyzed at the conference by Professor Nicholas Grief,7A paper by Grief based on his remarks appears in this issue of the Nuclear Abolition Forum. He is a professor at Kent Law School, United Kingdom. the law as formulated in the annex to the declaration draws on a major study first released by the ICRC in 2005, Customary International Humanitarian Law,8Jean-Marie Henckaerts & Louise Doswald-Beck, Interna-tional Committee of the Red Cross, Customary International Humanitarian Law, Vol. I, Rules (Cambridge University Press, 2009, first published 2005), available at http://www.icrc.org/eng/resources/documents/publication/pcustom.html and on the work of Professor Charles J. Moxley, Jr., another conference speaker.

In many years of research and analysis, Moxley has concentrated on the assessment of US policy regarding use of nuclear weapons under the rules of IHL as stated in US military manuals on the law of armed conflict, notably the requirements of necessity, discrimination (or distinction), and proportionality.9His publications include Nuclear Weapons and International Law in the Post Cold War World (Austin & Winfield, 2000); and Charles J. Moxley, Jr., John Burroughs, and Jonathan Gra-noff, “Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty,” 34 Fordham International Law Journal (April 2011, no. 4), available at http://lcnp.org/wcourt/Fordhamfinaljoint.pdf. The quota-tions from US armed services manuals in the text are set forth and discussed in the Fordham International Law Jour-nal article. Moxley is an adjunct professor at Fordham Uni-versity School of Law, United States. For example, regarding necessity, a US Navy manual explains that the “goal is to limit suffering and destruction to that which is necessary to achieve a valid military objective.”10US Department of the Navy, Naval War Pub. No. 1-14m, The Commander‘s Handbook On The Law Of Naval Opera-tions (2007) § 5.3.1. Regarding discrimination, a 2010 US Army manual states: “Distinction requires parties to a conflict to engage only in military operations the effects of which distinguish between the civilian population (or individual civilians not taking part in hostilities) and combatant forces, directing the application of force solely against the latter.”11International and Operational Law Department, US Army Judge Advocate Generals‘ Legal Center and School, Opera-tional Law Handbook (2010) at 350 n.81 (citing Protocol II to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Excessively Injurious or Have Indiscriminate Effects, art. 3). Regarding proportionality, a US Air Force manual states that it requires that “the anticipated loss of civilian life and damage to civilian property incidental to attack is not excessive in relation to the concrete and direct military advantage expected from striking the target.”12US Department of the Air Force, Doctrine Doc. No. 2-1.9, Targeting (2006) p. 89.

Moxley emphasizes that the effects of military operations must be controllable in order to meet the requirements of necessity, discrimination and proportionality, and notes that the US manuals recognize this implication. Thus a Joint Chiefs of Staff manual states: “Attackers are required to only use those means and methods of attack that are discriminate in effect and can be controlled, as well as take precautions to minimize collateral injury to civilians and protected objects or locations.”13US Joint Chiefs Of Staff, Joint Pub. No. 3-60, Joint Target-ing (2007) E-2. Emphasis supplied. Moxley‘s assessment is that especially but not only due to radiation, the effects of a nuclear explosion cannot be controlled and use of nuclear weapons is therefore unlawful. This point also underlies the ICJ conclusion that the use of nuclear weapons is generally illegal, the Court having observed that the “destructive power of nuclear weapons cannot be contained in either space or time.”14Nuclear Weapons Advisory Opinion, para. 34. In line with this analysis, the declaration three times refers to the uncontrollability of the effects of nuclear weapons as the reason why the weapons cannot be used in compliance with IHL requirements.

The declaration also takes firm positions on several issues which the ICJ did not resolve:

1) The declaration states: “Use of nuclear weapons in response to a prior nuclear attack cannot be justified as a reprisal. The immunity of noncombatants to attack in all circumstances is codified in widely ratified Geneva treaty law and in the Rome Statute of the International Criminal Court, which provides inter alia that an attack directed against a civilian population is a crime against humanity.” This recalls the position taken by Mexico before the ICJ in 1995: “Torture is not a permissible response to torture. Nor is mass rape acceptable retaliation to mass rape. Just as unacceptable is retaliatory deterrence “You have burnt my city, I will burn yours.”” 15Verbatim Record of Proceedings Before the ICJ, 3 No-vember 1995, p. 64. Available at http://www.icj-cij.org/docket/files/95/5931.pdf

Protocol I to the Geneva Conventions, Article 51(6), prohibits reprisals against civilians, but the question remains whether this prohibition is a matter of customary law, binding states that are notparty to Protocol I. On this question, the ICRC study states that “there appears, at a minimum, to exist a trend in favour of prohibiting such reprisals.”16Customary International Humanitarian Law, vol. I, p. 523. It notes decisions of the International Criminal Tribunal for the Former Yugoslavia finding that there was such a prohibition already in existence, based largely on the imperatives of humanity or public conscience. The declaration states the judgment that law can now join with conscience in condemning reprisals. The Martens Clause, quoted in the declaration, supports this judgment. In its modern form, it provides that in cases not covered by international agreements, “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”17Protocol I to the Geneva Conventions, Article 1(2). Em-phasis supplied.

2) The declaration holds that nuclear weapons are subject to the prohibition found in Protocol I, Article 35(3), of use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. The ICRC study found that this prohibition has now become part of universally binding customary law.18Customary International Humanitarian Law, vol. I, pp. 151-155. Obviously many if not all uses of nuclear weapons come under it.

3) And, the declaration states: “Threat as well as use of nuclear weapons is barred by law. As the ICJ made clear, it is unlawful to threaten an attack if the attack itself would be unlawful. This rule renders unlawful two types of threat: specific signals of intent to use nuclear weapons if demands, whether lawful or not, are not met; and general policies (‘deterrence’) declaring a readiness to resort to nuclear weapons when vital interests are at stake. The two types come together in standing doctrines and capabilities of nuclear attack, preemptive or responsive, in rapid reaction to an imminent or actual nuclear attack.” The ICJ had indeed clarified the law regarding threats of unlawful attack,19Nuclear Weapons Advisory Opinion, paras. 47, 48, 78. but declined to pass judgement on ‘deterrence’.20Id., paras. 67, 73, 96. The declaration draws the unavoidable implication.

Finally, the declaration addresses a question that the UN General Assembly had not posed to the ICJ: whether possession of nuclear weapons is lawful. Dr. Simons‘ view in planning the conference was that it is time to go beyond issues regarding the threat and use of nuclear weapons and examine their possession, both in terms of its consequences for human security (addressed at the beginning of the declaration) and in terms of its legal status. As she noted in opening the conference, the illegality of possession had been argued to the Court, by the then Australian Foreign Minister, Gareth Evans.

Evans told the Court that the NPT obligation of non-possession of nuclear weapons must now be regarded as customary international law applying to all states.21Verbatim Record of Proceedings Before the ICJ, 30 Octo-ber 1995, p. 51. Available at http://www.icj-cij.org/docket/files/95/5925.pdf. Further, he said: “If humanity and the dictates of the public conscience demand the prohibition of such weapons for some states, it must demand the same prohibition for all states.”22Id. at p. 52. For states still possessing such weapons, they “must within a reasonable timeframe take systematic action to eliminate completely all nuclear weapons,” and are subject to a “duty to negotiate” to that end under customary international law.23Id. at pp. 53, 54. The ICJ appears to have taken Evans‘ argument to heart. While the Court did not analyze the legality of possession as such, it did examine the nature of the disarmament obligation found in NPT Article VI and other international law, concluding unanimously: “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.”24Nuclear Weapons Advisory Opinion, para. 105(2)F.

In his remarks at the conference, included in this issue, Peter Weiss, Co-President of IALANA, took on the challenge of analyzing possession. Their import is that since possession is closely linked to threat, and threatened use of nuclear weapons is unlawful, there is a case on that basis for the illegality of possession.

The declaration ties all of these elements together, stating: “The unlawfulness of threat and use of nuclear weapons reinforces the norm of nonpossession. The NPT prohibits acquisition of nuclear weapons by the vast majority of states, and there is a universal obligation, declared by the ICJ and based in the NPT and other law, of achieving their elimination through good-faith negotiation. It cannot be lawful to continue indefinitely to possess weapons which are unlawful to use or threaten to use, are already banned for most states, and are subject to an obligation of elimination.”

It is the hope of the initiators of the Vancouver Declaration that it will contribute to the growing understanding that the existence, let alone the use, of nuclear weapons is incompatible with law and human security.

 

ABOUT THE AUTHOR

  • DR. JOHN BURROUGHS is Executive Director of the Lawyers Committee on Nuclear Policy, the UN Office of the International Association of Lawyers Against Nuclear Arms. He is author of The Legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice (1997). He was a drafter of the Vancouver Declaration and an organizer of the conference giving rise to the declaration.

References   [ + ]

1. Available at http://www.lcnp.org/wcourt/Feb2011VancouverConference/vancouverdeclaration.pdf
2. A full list of signatories is available at http://www.lcnp.org/wcourt/Feb2011VancouverConference/signatories32211.pdf
3. For the conference agenda, statement of intent, participant profiles, and papers by participants, see www.lcnp.org
4. Available at http://www.lcnp.org/wcourt/Feb2011VancouverConference/statementofintent.pdf
5. Legality of Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 2006, I.C.J. Reports 1996, p. 226 (hereafter ―Nuclear Weapons Advisory Opinion), para. 79. Available at http://www.icj-cij.org/docket/files/95/7495.pdf
6. I.C.J. Reports 1949, p. 4, at p. 22. Emphasis supplied.
7. A paper by Grief based on his remarks appears in this issue of the Nuclear Abolition Forum. He is a professor at Kent Law School, United Kingdom.
8. Jean-Marie Henckaerts & Louise Doswald-Beck, Interna-tional Committee of the Red Cross, Customary International Humanitarian Law, Vol. I, Rules (Cambridge University Press, 2009, first published 2005), available at http://www.icrc.org/eng/resources/documents/publication/pcustom.html
9. His publications include Nuclear Weapons and International Law in the Post Cold War World (Austin & Winfield, 2000); and Charles J. Moxley, Jr., John Burroughs, and Jonathan Gra-noff, “Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty,” 34 Fordham International Law Journal (April 2011, no. 4), available at http://lcnp.org/wcourt/Fordhamfinaljoint.pdf. The quota-tions from US armed services manuals in the text are set forth and discussed in the Fordham International Law Jour-nal article. Moxley is an adjunct professor at Fordham Uni-versity School of Law, United States.
10. US Department of the Navy, Naval War Pub. No. 1-14m, The Commander‘s Handbook On The Law Of Naval Opera-tions (2007) § 5.3.1.
11. International and Operational Law Department, US Army Judge Advocate Generals‘ Legal Center and School, Opera-tional Law Handbook (2010) at 350 n.81 (citing Protocol II to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Excessively Injurious or Have Indiscriminate Effects, art. 3).
12. US Department of the Air Force, Doctrine Doc. No. 2-1.9, Targeting (2006) p. 89.
13. US Joint Chiefs Of Staff, Joint Pub. No. 3-60, Joint Target-ing (2007) E-2. Emphasis supplied.
14. Nuclear Weapons Advisory Opinion, para. 34.
15. Verbatim Record of Proceedings Before the ICJ, 3 No-vember 1995, p. 64. Available at http://www.icj-cij.org/docket/files/95/5931.pdf
16. Customary International Humanitarian Law, vol. I, p. 523.
17. Protocol I to the Geneva Conventions, Article 1(2). Em-phasis supplied.
18. Customary International Humanitarian Law, vol. I, pp. 151-155.
19. Nuclear Weapons Advisory Opinion, paras. 47, 48, 78.
20. Id., paras. 67, 73, 96.
21. Verbatim Record of Proceedings Before the ICJ, 30 Octo-ber 1995, p. 51. Available at http://www.icj-cij.org/docket/files/95/5925.pdf.
22. Id. at p. 52.
23. Id. at pp. 53, 54.
24. Nuclear Weapons Advisory Opinion, para. 105(2)F.
Rob van Riet

About Rob van Riet

Rob van Riet is Coordinator of the Disarmament Programme at the World Future Council. In addition, he has been U.K. Coordinator of Parliamentarians for Nuclear Nonproliferation and Disarmament (PNND) since 2011 and has served as the Director of the Nuclear Abolition Forum since its founding in 2011. He was a co-author of the InterParliamentary Union/PNND Parliamentary Handbook Supporting Nuclear Non-Proliferation and Disarmament, released during the 127th Inter-Parliamentary Union Assembly in Quebec City, Canada, in October 2012.

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