Posted by Alice Osman and Molly Doggett
Member states of the UN General Assembly are currently engaged in historic negotiations of a treaty to ban nuclear weapons. At this point, nuclear weapons are the only weapons of mass destruction not subject to a categorical prohibition in international law. A team from the International Human Rights Clinic, which is participating in the negotiations in New York, has joined the International Campaign to Abolish Nuclear Weapons (ICAN) in urging countries to adopt a strong treaty that is focused on preventing and remediating the catastrophic humanitarian consequences of nuclear weapon use and testing.
Prohibitions on the use, production, transfer, and stockpiling of nuclear weapons are necessary but insufficient components of the new treaty. In order to address the humanitarian impact of nuclear weapons effectively, states parties must also adopt positive obligations to provide assistance to victims in their territory and to remediate environmental contamination caused by nuclear weapon use and testing. In partnership with London-based NGO Article 36, our clinical team has released papers arguing for the inclusion of victim assistance and environmental remediation treaty provisions.
We have been encouraged to see that the draft text of the treaty contains provisions on victim assistance and environmental remediation. However, stronger and more comprehensive provisions are necessary to ensure that the needs of victims and the environment are effectively met. We are advocating for a clear obligation on affected states parties to remediate contaminated areas; currently environmental remediation measures are merely optional. In addition, the draft text does not require all affected states parties to assist victims in their territory, and thus is inconsistent with human rights law. We are calling for strong obligations on other states parties to help affected countries meet their positive obligations.
Many countries have agreed on the need for victim assistance and environmental remediation. The main point of debate has centered on the question of who should bear the responsibility for these obligations. Some delegations have suggested that states that use or test nuclear weapons (“user states”) should bear primary responsibility for providing assistance to victims and remediating the environment. By contrast, a number of other states, the International Committee of the Red Cross (ICRC), and ICAN have argued for placing primary responsibility for these activities on affected states.
We believe that responsibility for positive obligations must lie with affected states for both legal and practical reasons. First, victim assistance and environmental remediation obligations aim to ensure that the rights of people living in affected areas are protected and realized. It is a basic premise of international human rights law that each state is responsible for protecting and fulfilling the rights of individuals within its own territory. This allocation of responsibility also respects the sovereignty of affected states parties, who can set priorities and develop plans for victim assistance and environmental remediation within their territories.
Second, because of their proximity and access to victims and contaminated areas, affected states are in the best position to deliver aid to victims and to undertake environmental remediation. Moreover, there is a serious risk that placing the primary responsibility on user states, which are unlikely to join the treaty in the immediate future, will leave the needs of victims and the environment unaddressed.
Finally, affected state responsibility for victim assistance and environmental remediation follows the precedent of other humanitarian disarmament treaties, such as the Convention on Cluster Munitions and the Mine Ban Treaty.
Some countries have expressed concerns that heavily affected states with limited resources would be unable to meet their positive obligations. But affected states should not face the task of implementation alone. The strong international cooperation and assistance provision for which we are advocating would require other countries party to the treaty (including user states) to contribute to victim assistance and environmental remediation efforts. This arrangement would ensure that the treaty does not place an undue burden on affected states, while guaranteeing that the needs of the victims are in fact met.
Only seven days of negotiations remain. We will continue to engage with delegates to ensure that states fully understand the importance of positive obligations and that international assistance can decrease the burden on affected states. We are hopeful that the next version of the text will address these issues and better meet the humanitarian goals of the convention.
The Clinic’s nuclear weapons team includes: Carina Bentata Gryting, JD ’18, Molly Doggett, JD ’17, Lan Mei, JD ’17, and Alice Osman, LLM ’17. The team was supervised by Bonnie Docherty, Associate Director for Armed Conflict and Civilian Protection, and Clinical Instructor Anna Crowe.
For a full discussion of victim assistance and environmental remediation obligations, see:
Victim Assistance in the Nuclear Weapon Ban Treaty: A Comprehensive and Detailed Approach
(June 2017, Briefing paper)
Environmental Remediation in the Nuclear Weapon Ban Treaty: A Comprehensive and Detailed Approach (June 2017, Briefing paper)
For a summary of our arguments and recommendations:
Key Points: Victim Assistance in the Nuclear Weapon Ban Treaty (June 2017, Working paper)
Key Points: Environmental Remediation in the Nuclear Weapon Ban Treaty (June 2017, Working paper)