By Alyn Ware

The author is Coordinator of the World Future Council Peace and Disarmament Program, Global Coordinator of Parliamentarians for Nuclear Non-proliferation and Disarmament, and International Representative of Aotearoa Lawyers for Peace (the New Zealand affiliate of the International Association of Lawyers Against Nuclear Arms).

GENEVA (IDN) – The threat or use of nuclear weapons is “incompatible with respect for the right to life” and “may amount to a crime under international law,” warns the UN Human Rights Committee’s new General comment No. 36 (2018) on Article 6 of the International Covenant on Civil and Political Rights (ICCPR), on the right to life, adopted on October 30, 2018.

According to paragraph 3 of the General Comment, the Right to Life, as codified in Article 6 of the Covenant, is an “entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity”.

Besides, the Right to Life is a “supreme right from which no derogation is permitted even in situations of armed conflict and other public emergencies which threatens the life of the nation.” This right is “the prerequisite for the enjoyment of all other human rights.”

The General Comment replaces earlier Comments on the Right to Life adopted by the Committee in 1982 and 1984.  (See UN Human Rights Committee concludes that the threat or use of nuclear weapons violates the Right to Life).

The Human Rights Committee referenced in footnote 273 the Treaty on the Prohibition of Nuclear Weapons (TPNW) – as well as the Non-Proliferation Treaty (NPT), Comprehensive Nuclear Test Ban Treaty (CTBT), Chemical Weapons Convention and Biological Weapons Convention – as important treaties contributing to obligations on the non-proliferation and disarmament of weapons of mass destruction (WMD).

The Committee referred to the 1996 International Court of Justice Advisory opinion, in affirming that nuclear powers “respect their international obligations to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective international control.” This reinforces the customary nature of the nuclear disarmament obligation, i.e. its application regardless of whether or not a State is party to the NPT or the TPNW.

And the Committee affirmed that there is an obligation of States parties to the ICCPR to “afford adequate reparation to victims whose right to life has been or is being adversely affected by the testing or use of weapons of mass destruction, in accordance with principles of international responsibility.”

The Human Rights Committee rejected the proposal of the Women’s International League for Peace and Freedom that the General Comment require “States parties [of the ICCPR] to support the Treaty on the Prohibition of Nuclear Weapons.” Nor did it call on States not parties to other related treaties (NPT, CTBT…) to join them. In this, the Committee reflected the general understanding that States should be free to join, or remain outside of, treaties as they so choose.

However, in reflecting key elements of the TPNW, the General Comment provides an example of how to bring these elements to bear on nuclear armed and allied States, none of which have joined the TPNW or are likely to do so in the near future.

The drafting and adoption of the General Comment took three years, a year longer than originally expected, due to the high level of interest from governments, academia and NGOs – and due to the fact that it dealt with a number of contentious issues, including abortion, assisted suicide, non-lethal weapons, protection of sexual minorities from violence, asylum, death penalty, weapons of mass destruction and responsibility for reparations.

A few of the NGOs involved in the process, in particular the International Association of Lawyers Against Nuclear Arms (IALANA) and its Swiss Affiliate the Swiss Lawyers for Nuclear Disarmament (SAFNA), were specifically engaged in the deliberations on nuclear weapons and other weapons of mass destruction.

In submissions and statements to the Human Rights Committee, IALANA and SAFNA argued that the General Comment should:

• Condemn both the use and the threat to use nuclear weapons and other WMD, as being incompatible with the right to life;
• Affirm the obligation to achieve complete nuclear disarmament, in accordance with Article VI of the NPT and customary international law;
• Include the obligation to afford adequate reparation to victims of the testing or use of WMD, in line with the growing recognition of the rights of such victims in various treaties including the Cluster Munitions Convention, Landmines Treaty and the Treaty on the Prohibition of Nuclear Weapons – though TPNW focuses more on victim assistance by states parties in which victims reside than on the responsibility of states that caused the harm.

The inclusion of these three elements in the 2018 General Comment reflects a significant step forward from the 1984 General Comment which affirmed that “The production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity.”

“Reflecting the times, the 1984 General Comment was a clarion call to recognize and eliminate the incredible dangers posed by nuclear weapons,” says Dr John Burroughs, Director, UN Office of International Association of Lawyers Against Nuclear Arms.

“In contrast, building on legal developments since 1984, the 2018 General Comment is a sober legal assessment, beginning with the unambiguous statement that the threat or use of nuclear weapons is incompatible with the right to life,” he adds.

The statements from the nuclear-armed States with regard to nuclear weapons indicate they will most likely continue to reject, or resist implementation of, the nuclear-weapons-related obligations clarified in the new comment. Regardless, the new General Comment makes at least five very important contributions to nuclear disarmament:

Firstly, the General Comment makes strong links between human rights law and nuclear non-use and disarmament obligations.

Subsequently, says Dr Daniel Rietiker, President of the Association of Swiss Lawyers for Nuclear Disarmament The Human Rights Committee: “The bridge between arms control and human rights should now be used by civil society in its efforts against nuclear weapons before the Human Rights Committee and other UN bodies dealing with human rights, especially those dealing with the rights of women, children or indigenous peoples, all particularly vulnerable to nuclear weapons,.” (For more information and analysis see Threat and use of nuclear weapons contrary to right to life, says UN Human Rights Committee by Daniel Rietiker.)

Secondly, the General Comment highlights obligations of the nuclear armed and allied States rooted in Article VI of the NPT, UN resolutions and other international law.

Thirdly, the General Comment demonstrates an approach to advancing nuclear disarmament and non-use obligations by bringing them into related treaties to which at least some of the nuclear armed States and their allies are already parties. One such treaty in which this approach is being tried is the Rome Statute on the International Criminal Court.

Fourthly, in affirming the obligation to “afford adequate reparation to victims whose right to life has been or is being adversely affected by the testing or use of weapons of mass destruction,” the General Comment gives support to humanitarian initiatives relating to WMD and to victim assistance. These aspects are reflected strongly in Article 6 of the Treaty on the Prohibition of Nuclear Weapons, but are absent in the NPT, Chemical Weapons Convention, CTBT and Biological Weapons Convention.

Fifthly, the General Comment parallels and complements elements of existing nuclear arms control and disarmament agreements providing additional impetus to their implementation. [IDN-InDepthNews – 27 November 2018]

Photo: UN Human Rights Committee. Credit: Australian Human Rights Commission

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