The nuclear ban treaty needs work if it’s to deliver on the environment

The current diplomatic process towards a convention banning nuclear weapons is a remarkable breakthrough. It’s also an opportunity to reset the difficult historical relationship between nuclear weapons, and the international law intended to protect the environment in relation to armed conflicts. This blog analyses the environmental elements of the newly published draft ban treaty but in doing so it finds that there is room for improvement, if states and civil society hope to truly deliver on their humanitarian and environmental objectives.

In March this year, 132 states began negotiations on a treaty banning nuclear weapons, seeking to resolve an anomaly that had seen other forms of weapons of mass destruction or indiscriminate effect banned, while leaving the most destructive and indiscriminate largely unaddressed. The second round, which will take place in July, will consider a draft treaty text that was released this week. The text is similar in structure to those developed for other forms of indiscriminate weapons, with a strong focus on the humanitarian imperative for prohibition. In bizarre scenes during the negotiations, the nuclear weapons states (NWS) have been outside the room protesting, while civil society has been inside, contributing constructively to the process with states tired of the lack of progress towards nuclear disarmament under the Nuclear Non-Proliferation Treaty.

The draft text and the ban process are of relevance to anyone with an interest in the environmental and derived humanitarian consequences of armed conflicts and military activities. Nuclear weapons have an unmatched potential to damage human health and the environment throughout their lifecycle, from production and testing, to their use or disposal, and it is vital that the eventual treaty text reflect these harms. Should this be achieved, the normative value of the treaty could prove beneficial for the developing debate on the Protection of the Environment in Relation to Armed Conflicts (PERAC) – a topic currently being studied by the International Law Commission (ILC).

The justification for the ILC’s PERAC study is that, while a range of different bodies of law have the potential to protect the environment before, during and after armed conflicts, they are in places poorly defined and in others weak or untested. As a result, implementation is patchy and, because of their diverse sources, and the shear scope of “the environment”, at times the principles that should guide protection are unclear. Moreover, while peacetime environmental laws have flourished and proliferated since the 1970s, those applicable to armed conflicts have remained largely static. The bottom line is that, while we have a fairly clear idea how the environment should be protected in relation to armed conflicts, and the environmental, human rights and criminal law norms that could guide us, we’re missing a clear framework to deliver the protection that is urgently needed.

Because of the cachet that the NWS attach to their arsenals, and their massive destructive potential, the relationship between nuclear weapons and the existing provisions for environmental protection under international humanitarian law (IHL) has long been awkward. For example, during negotiations on Additional Protocol 1, which resulted in Articles 35(3) and 55, both of which provide some protection to the environment, the NWS argued that they did not apply to nuclear weapons. This was not a view shared by all but which was nevertheless reflected by France and the UK at ratification.

The environmental consequences of nuclear weapons use was also a major element of the 1996 International Court of Justice’s Nuclear Weapons Opinion, which found that the articles above were general in character and did not exclude the effects particular weapons. More recently, the long shadow cast by nuclear weapons has fallen on the PERAC debate itself, with the UK and others arguing that PERAC should not address the effects of particular weapons and that Article 55’s prohibition on reprisals against the environment has not attained customary status.

Like the anomaly of prohibition itself, nuclear weapons have appeared to exist outside the norms of environmental protection – or rather the nuclear weapons states have ceaselessly promoted this view, doubtless because their use would inevitably be contrary to them, just as it would with the broader principles of humanitarian law. And, just as the ban treaty could help remedy the humanitarian anomaly, so it is that the text could help destroy the special status of nuclear weapons under the laws intended to protect the environment.

The draft text

The environmental consequences of nuclear weapons feature in two parts of the draft text, in the preamble, and in Article 6 on assistance. These are reviewed below, together with a suggestion for the inclusion of an additional environmental principle relating to the elimination of stockpiles. A key consideration for states and civil society must be that, while the law has often defined the environment as a concept distinct from humans, for example by the use of the term “natural environment”, this distinction is scientifically dubious. Humanity is entirely dependent on the environment, be it for the resources necessary for survival and the enjoyment of fundamental human rights, for livelihoods or even its amenity or spiritual value. Protecting civilians in relation to conflicts, and certainly in relation to the lifecycle impacts of nuclear weapons, therefore first requires that the environment also be protected. How it is defined, matters.

Preamble

Cognizant that the catastrophic consequences of nuclear weapons transcend national borders, pose grave implications for human survival, the environment, socioeconomic development, the global economy, food security and for the health of future generations, and of the disproportionate impact of ionizing radiation on maternal health and on girls,

As noted above, this is a good start. The use of the term “environment” breaks from the historical use of the “natural environment” and with it the idea that the environment is somehow distinct from humanity. The reference to the specific gendered impacts of ionizing radiation is also welcome.

Mindful of the suffering of the victims of the use of nuclear weapons (Hibakusha) as well as of those affected by the testing of nuclear weapons,

This is the first example of where the text would be strengthened by consideration of the lifecycle of nuclear weapons. For example the environmental legacy of uranium mining is a global issue, most notoriously in Central Asia, where Soviet era mining for its nuclear weapons programme still impacts communities – in addition to the legacy of testing. Inserting “production and” in this paragraph would help reflect these harms, and enhance the later article on assistance.

Basing themselves on the principles and rules of international humanitarian law, in particular the principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited and the rule that care shall be taken in warfare to protect the natural environment against widespread, long term and severe damage, including a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population,

This paragraph is a hybrid of Articles 35(3) and 55 of Additional Protocol 1 – note the “natural environment”. As their customary status is still disputed by several NWS – in part because of nuclear weapons themselves – their inclusion would help reinforce their status. However, the cumulative triple threshold of Article 55 – the prohibition of damage that is widespread and long-term and severe – has been widely criticised as being both poorly defined and too high to prevent all but the most egregious damage. During negotiations, the reference point for states was damage caused on the First World War battlefields of Europe – which even today remain contaminated by heavy metals. Meanwhile the Convention on Environmental Modification Techniques, ENMOD, negotiated just prior to Additional Protocol 1 and inspired by the warfare technologies of the Viet Nam War, uses widespread or long-term or severe, providing a greater degree of protection but only against practices that are intended to modify the environment.

A 2009 study of the corpus of law protecting the environment from armed conflict, which was undertaken by UN Environment, recommended that:

“The terms widespread, long-term and severe within Articles 35 and 55 of Additional Protocol 1 to the 1949 Geneva Conventions should be clearly defined: To improve the effectiveness of Articles 35 and 55, clear definitions are needed for “widespread,” “long-term,” and “severe.” As a starting point in developing these definitions, the precedents set by the 1976 ENMOD convention should serve as the minimum basis, namely that “widespread” encompasses an area on the scale of several hundred square kilometres; “long-term” is for a period of months, or approximately a season; and “severe” involves serious or significant disruption or harm to human life, natural economic resources or other assets.”

Clearly, helping to defining these terms is beyond the scope of the treaty text but it may well be an issue addressed by the ILC in its PERAC project. And with fewer signatories, and a focus on methods intended to modify the environment, inserting ENMOD’s lower threshold seems unrealistic. However, the inclusion of Articles 35(3) and 55 in the treaty should serve as a reminder of the limits of current protection for the environment under IHL and the urgent need for its progressive development.

Declaring that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law,

Naturally the principles of distinction, proportionality, necessity and humanity are all relevant to environmental protection but it’s worth noting that the complexity of their application poses a challenge to their utility as far as general protection for the environment is concerned, as UN Environment observed:

“The general humanitarian principles of distinction, necessity, and proportionality may not be sufficient to limit damage to the environment: The practical difficulty of establishing the threshold of these principles, which lack internationally agreed standards, makes it easier to justify almost any environmental damage if the military necessity is considered to be sufficiently high. This limits the practical effectiveness of these principles for preventing damage to the environment. The ICRC emphasizes the importance of taking a precautionary approach in the absence of scientific certainty about the likely effects of a particular weapon on the environment.”

Worded as it is, the draft treaty paragraph also leaves open consideration of international environmental law, which a previous ILC study concluded does not necessarily terminate at the outbreak of hostilities – unless the specific convention states otherwise. Needless to say, those states opposed to the ILC’s PERAC work, including NWS, have repeatedly argued that IHL is lex specialis during hostilities. So this is language worth protecting, both for the applicability of human rights law, and environmental law.

Article 6 – Assistance

Victim assistance principles form a core element of the land mine and cluster munitions bans. However those in the draft text have a more explicit environmental dimension, insofar that beyond the immediate humanitarian impact of nuclear blasts, they must also consider the long-term health legacy of environmental contamination, both from the use, and testing of nuclear weapons. As it is, the draft divides the principles on assistance into traditional victim assistance (6.1) and the more novel – for a disarmament treaty at least – environmental assistance (6.2, 6.3).

6.1 Each State Party in a position to do so shall with respect to individuals affected by the use or testing of nuclear weapons in areas under its jurisdiction or control, in accordance with applicable international humanitarian and human rights law, adequately provide age- and gender-sensitive assistance, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.

Here again the text could be strengthened with a reference to the life-cycle impacts of nuclear weapons, the inclusion of “affected by the production, use or testing” would extend the principle of assistance to the many communities affected by uranium mining and other parts of the weapons production process. Although many mines and processing facilities may have seen a mixture of civil and military production, it may be possible to identify examples of military-specific facilities.

One example of harm from a military site, and which would not come under the draft treaty’s current scope is Iraq’s Tuwaitha nuclear facility, which was part of its Saddam era nuclear weapons programme. Hundreds of people were exposed to uranium in 2003 when the site was looted after security collapsed in the wake of the US invasion. In 2008, the US later assisted the Iraqi government in removing its uranium stocks, primarily for security reasons. It is unclear whether the government has ever targeted specific health interventions at the community affected by the incident and who are victims of the nuclear weapon production process. While this is an extreme case, it does serve as a reminder of the potential environmental and health risks associated with the production of nuclear weapons, the contamination footprint of which may be significant even under benign conditions.

While by necessity the text doesn’t expand on what constitutes appropriate medical care, states and civil society may wish to consider similar health assistance norms in environmental agreements, such as Article 16 of the Mercury Convention.

6.2 Each State Party with respect to areas under its jurisdiction or control contaminated as a result of activities related to the testing or use of nuclear weapons or other nuclear explosive devices, shall have the right to request and to receive assistance toward the environmental remediation of areas so contaminated.

6.3 Such assistance may be provided, inter alia, through the United Nations system, international, regional or national organizations or institutions, non -governmental organizations or institutions, or on a bilateral basis.

Whereas the elements discussed above are broadly welcome, or at least in line with expectations, articles 6.2 and 6.3 are underwhelming. While they reflect the existing international framework for environmental assistance for pollution caused by conflicts, which at present is almost entirely ad hoc, the treaty text is an opportunity to set a higher standard, one that reflects both peacetime norms and disarmament law. The Convention on Cluster Munitions and the Mine Ban Treaty both place a positive obligation on affected states to clear affected areas in order to protect their populations. As signatories, affected states bear duties and obligations. Yet 6.2 provides only for the affected state to be able to seek assistance, without obliging it to protect its own population.

Clearly, tackling contamination from nuclear weapons production or testing is far more difficult and costly than for explosive remnants of war, indeed in many cases it will be impossible to remove the source of harm entirely, in turn posing a direct challenge to article 6.1. Nevertheless, there are steps that could be taken to help mitigate the risks that contaminated areas may pose. Firstly, affected states should be obliged to conduct environmental assessments of affected areas, which can then be used to inform both harm reduction measures, such as awareness-raising or changes in agricultural practices, and health assessments. Secondly, where practicable and cost effective, parties should also be obliged to undertake environmental remediation programmes or other policies aimed at minimising exposures. International technical and financial assistance should be made available to assist them, as outlined in 6.3.

As currently drafted, the text lacks a positive obligation on affected states to undertake the measures necessary to protect human and ecosystem health, and protect the fundamental rights of their populations. Compared to the mine and cluster munitions treaties, it is akin to ensuring victim assistance without also addressing the source of harm through clearance. Correcting this imbalance between the traditional victim assistance principles in 6.1, with the voluntary obligation in 6.2, should be a priority for states and civil society in July’s negotiations.

Environmental standards in stockpile disposal

While the draft does not deal specifically with that stalwart of the mine and cluster munitions treaties, stockpile destruction, it is alluded to under Article 4’s Measures for States that have eliminated their nuclear weapons. Article 4 primarily addresses verification measures and the role of the IAEA but could be strengthened by the addition of a reference to the need to observe environmental norms in the disposal of stockpiles. Since 1995, a UN General Assembly resolution on this theme has been adopted by consensus annually. Originally tabled by Colombia and promoted by the Non-Aligned Movement, the resolution on The observance of environmental norms in implementing disarmament and arms control regimes has addressed environmental standards in the disposal of both WMD and conventional weapons:

“The resolution invited the Conference on Disarmament to take every necessary measure to include in negotiating treaties and agreements on disarmament and arms limitation the corresponding environmental norms, with a view to ensuring that the process of implementation of such treaties and agreements is environmentally sound, in particular the destruction of weapons covered by them. The resolution also put particular emphasis on the need to ensure that the environment is protected in the process of implementing Chemical Weapons Convention destruction activities. Subsequent resolutions placed emphasis on radiological weapons and radiological waste and called for environmentally sound measures to be adopted in association with any activities in Antarctica, the seabed and outer space.”

Our review of annual reports submitted by states on the resolution shows that many support the application of international environmental norms to the management of parts of the lifecycle of nuclear weapons. To reflect this, and to ensure that any environmental risks arising from the destruction of stockpiles are minimised, states and civil society should consider including an environmental standard under Article 4.

Conclusion

The relationship between nuclear weapons and the legal framework protecting the environment in relation to armed conflicts has inevitably been problematic. Conscious that the use of the weapons would be a clear breach of the spirit and letter of the law, the NWS have sought exclusion after exclusion and the impact of this strategy continues today in the current debates on PERAC. The nuclear ban treaty is an opportunity to directly challenge this paradigm and in doing so, highlight both the environmental consequences of the weapons and help reaffirm the customary status of IHL’s environmental provisions, weak as they are.

As with any assessment of the environmental footprint of products or policies, the nuclear ban treaty should address the entire lifecycle of nuclear weapons, particularly when it comes to remedying the harms it causes to the environment and human health. However, to achieve this, states and civil society must commit to re-balancing the environmental and humanitarian elements of Article 6. International assistance must be made available but state parties must also accept the obligation to protect their own communities from the legacy of nuclear weapons.

 

Doug Weir manages the Toxic Remnants of War Project @detoxconflict

 

Should you wish to delve deeper into nuclear weapons and environmental law, a good starting point is Erik Koppe’s The use of nuclear weapons and the protection of the environment during international armed conflict.

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