Symposium on International Relations in the Nuclear Era

 On 28 August 2018, I was invited by International Student Conference to speak at its symposium on International Relations in Nuclear Era – with focus on human dignity.

The life story of a survivor of Hiroshima, Mr. Miyake, was still incredibly powerful after more than 70 years. Mr. Kawasaki from ICAN spoke about ICAN’s movement and the recent progress on Nuclear Weapons Convention. His story carried a message that such an important movement was completely people-led and is a product of  every person involved in the movement to push it forward. Below is my part.

Nuclear Weapons under International Security

There are three themes that I am asked to deliver today. The first one is on nuclear weapons from security perspective, the second one is nuclear weapons under international law, and the third one is on the inhuman nature of nuclear weapons. I will speak about these three themes in turn, but my expertise lies in the second one: international law and nuclear weapons.


First, on nuclear weapons from security perspective, normally this means state security. This is, in international relations, states consider protecting their territories and political independence through restraining threats by military means. Nuclear weapons can be part of this means.


This means that achieving security through nuclear umbrella, i.e. through a state appealing to other states that it has nuclear weapons and thereby deterring attacks. As you know, Japan is under the umbrella of the US. This tool is the main tool used, together with economic sanctions, against North Korea.


There is dilemma in security based on the threat of nuclear weapons. This dilemma exists in collective self defence. If a state feels threatened by another state, that state tends to expand armament, to strengthen relationships with allies or to find new allies. That further threatens the other state and that state also resort to expanding armament or strengthening alliance. This makes a negative spiral, fuels the competition of armament expansion and strengthening alliance. This spiral is not limited to nuclear weapons, but in the case of nuclear weapons, the damage that they can cause is enormous, and therefore it takes a significant risk.


There are, of course, as Mr. Kawasaki said, disarmament and antinuclear movements, but states have different interests, and the processes are slow. There are largely two streams of antinuclear movements. One is to leave the states with nuclear weapons as they are and to prevent nuclear weapons proliferating. This is represented in the Treaty on the Non-Proliferation of Nuclear Weapons. This year is its 50th anniversary, and 190 states including those armed with nuclear weapons have ratified it. Japan has been submitting draft resolutions to the UN General Assembly’s First Committee on disarmament, jointly with many other states, 24 times consecutively since 1994. The other movement is to ban nuclear weapons. This is represented by the Comprehensive Nuclear-Test Ban Treaty: CTBT and Nuclear Weapons Convention. CTBT has 188 signatories and 166 ratifications, but has not entered into force as eight of the states, whose participation was set to be a prerequisite for the Treaty to enter into force. Nuclear Weapons Convention was adopted in July last year. The central concept is the inhuman nature of nuclear weapons, and the Convention legally bans nuclear weapons as such. Japan has not attended the meeting, and has made its intension of non-participation clear.



Here, if we consider human dignity, as is in the theme today, human security, with people in the center, may be important.


Human security is a concept that emerged in the 1990s. It focuses on individual persons, not states, and aims at individual persons enjoys security. How they feel secure, that is subjective aspect, and to ensure security, that is objective aspect, both exist. For people to feel secure, it is not enough to sustain the existence of the state, but to guarantee a number of elements under the three pillars: freedom from want, freedom from fear and human life with dignity. This concept deals with security in a comprehensive way. To look into how individuals feel secure, in many occasions, means to focus on vulnerable and disadvantaged groups. In relation to nuclear weapons, the threat of nuclear weapons may affect different people and groups differently. By paying attention to vulnerable groups, human security delivers fairer and more comprehensive policy and to consider steps for all. At the same time, this means to safeguard physical security of all members of the society, and to ensure water, food, medical care, education and other social rights, and by doing so, to build a more stable and sustainable peace.


Nuclear Weapons under International Law

Now, on international law regarding nuclear weapons, there are two particularly relevant international law branches. The first one is what is called jus ad bellum, which determines the condition that allows the use of force. The other is international law that determines the means and methods of combat, as well as who should be protected from effect of it, once an armed conflict occurs. This branch of international law is called International Humanitarian Law, or the Law of Armed Conflict.


The first part, on jus ad bellum, is founded on Articles 2-4 and 2-7, as well as Chapter 7 of the United Nations Charter. Under these provisions, use of force is prohibited with two exceptions: self defence including collective self defence, and use of force based on a Security Council resolution. This non-use of force principle also forms part of customary law, and thus all states, even non-UN member states must abide by it. This means, in relation to nuclear weapons, that no state is allowed to use nuclear weapons to attack another state. However, some argue that preemptive self-defence is contained within the right to self defence, if there is an imminent threat. Even in that case, the action taken to defend the state must be proportionate to the threat posed in the first place. Therefore it maybe only threat of imminent attack by nuclear weapons that may be relevant to consider.


International Humanitarian Law sets limit on weapons that can be used in combats. There is a principle of distinction, which demands civilians not participating in hostilities, as well as combatants or fighters who laid down their arms must not be intentionally killed. Another principle is one of proportionality. This principle requires that the casualties among civilians do not exceeds the concrete military advantages anticipated. The principle of precaution means that those participating in hostilities must make precautions not to affect civilians and to give advance warning to civilians if they attack an area with civilians. Another important principle prohibits them to cause unnecessary human suffering. According to these principles, some weapons are prohibited as such.


One of the examples is Cluster munitions. Cluster munitions have hundreds of small explosives within a large bomb, and when they explode, the pieces of small explosives go everywhere covering a wide area. As such, it is impossible to distinguish whom the weapon is targeting.


Other examples are gas, chemical weapons and dumdum bullets, which expands once they hit the target.


Regarding nuclear weapons, the advisory opinion by the International Court of Justice is the most authoritative. In the advisory opinion on the legality of the use or threat of nuclear weapons, the Court stated that the use of nuclear weapons, especially taking into account their destructive nature, their ability to cause unspoken human suffering, and their capacity to cause injuries to generations, in fact seems ‘scarcely reconcilable with respect for the requirements of the law applicable in armed conflict’. It concluded, nevertheless, that it did not ‘have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance’, particularly considering the state’s fundamental right to survive. Furthermore, the Court said it could not ignore the practice referred to as ‘policy of deterrence’. One can see that many of the judges found this conclusion undesirable even if legally correct. This is indicated by the majority’s opinion, which added at the end the desirability of complete disarmament of nuclear weapons. That seven out of fifteen judges opposed to the majority judgement is also indicative of the fact.


If one considers that it is virtually impossible to limit the killing to combatants, that victims continue to suffer for generations, and that victims appear to suffer unnecessary suffering through exposure to radiation, I would think it is more accurate to consider that the use of nuclear weapons would infringe International Humanitarian Law. How about possessing nuclear weapons and use them as a deterrent? The ICJ’s majority opinion explained that the threat of a weapon, the use of which is against the law, would be against the law. According to this argument, the threat of nuclear weapons would contradict the law.


I consider that, because of the characteristics of nuclear weapons, especially the extent of destruction they can cause, their inhuman effects and the impossibility to distinguish combatants and civilians, nuclear weapons should be banned all together. It is also because of the system of the international community, which works with states as supreme bodies. It is difficult to control how states should make decisions. It is also difficult to limit the ways to keep and manage nuclear weapons.


Under another branch of international law, Human Rights Law, there may be many rights that can be affected: the right to life, freedom from torture and ill-treatment, the right to health and many more. However, Human Rights Law deals with how state A deals with nationals of its own state and others under state A’s jurisdiction. Therefore, it is not useful to determine the relationship between state A against people in state B. International law works on lex specialis, which means that more specific law prevails. This means, during an armed conflict, International Humanitarian Law prevails. In such a case, International Humanitarian Law can help determining the scope of rights.


Inhuman Nature of Nuclear Weapons

Finally, inhuman nature of nuclear weapons relates to the capacity of destruction, the level of cruelty that nuclear weapons can cause, and unnecessary suffering suffered by victims. It is more than likely that a nuclear weapon will victimize civilians if it is used, as it can not target at specific targets. One nuclear weapon can cause hundreds of thousands of victims, environment gets destroyed for many years, and radiation haunts generations to come. These elements as a whole do appear to sufficiently indicate the inhuman nature of nuclear weapons.


As the Nuclear Weapons Convention is being agreed by many States, with the very nature of nuclear weapons are being questioned by more and more States, the legality of the use or threat of nuclear weapons may have moved a few decades after the ICJ Advisory Opinion.

Discussion with the Deputy High Commissioner for Human Rights

The brief record of the discussion between East Asian scholars and the Deputy High Commissioner and officials at the UN Office of the High Commissioner for Human Rights, conducted on 17 July 2018, is now cleared by the Deputy High Commissioner’s office. It will also be published on the ACUNS (Academic Council on the United Nations System) site.

Human Rights is NOT in Retreat insisted the Deputy UN High Commissioner for Human Rights Kate Gilmore, while Importance of Universal Periodic Review emphasized by UPR Chief Mr. Gianni MAGAZZENI


Deputy High Commissioner Gilmore saw real benefit in the academic collaboration with East Asian scholars and first opened the floor for the commentators.


Prof. Ai Kihara-Hunt of the University of Tokyo, Japan, inquired with the Deputy High Commissioner how the UN-OHCHR was dealing the global trend of retreat of human rights, and what its strategy is in tackling the issue of globally shrinking space to speak up for human rights. In particular, the speaker asked if there was a way of collaborating with the group, who share two common features: they are East Asians, and they are academics.


In presenting the trend of retreat, Prof. Kihara-Hunt mentioned that examples of the rise of populism needed no mention among the informed participants. In more States, vindictive and xenophobic rhetoric of populism were more apparently and bluntly in the face of the general population. It was at multiple levels, from the government policies to the public’s attitude toward outsiders, and worryingly, this trend was even in the laws and regulations, through which more discrimination appears to be legitimized.


In the case of Japan, too, the government’s survey on the public awareness of human rights, suggested that the vast majority of the Japanese population are aware of human rights, noting that the topics that they inquired about were mostly concerning categories of persons who may face discrimination but did not other substantive topics, such as death penalty, freedom of opinion and expression, sexual violence, ill-treatment against foreign workers, immigration. Rights and freedoms are necessary to create democratic space for everyone’s human rights.


She encouraged East Asian scholars to contribute to the endeavor of maintaining and regaining space for human rights.


Prof. Sheng of China asked if there is a gap between the Office and the people in the field, referring to the human rights situation of women and children in Central African Republic. He also asked how much impact the US’s withdrawal from the Human Rights Council has.


Professor Changrok Soh of Korea University thought there should be an East Asian dialogue about human rights, even if this does not happen at the State-level. He recommended that Universal Periodic Review (UPR) be used as a topic of discussion among the East Asian scholars.


Mr. Inuzuka, former member of the Japanese Diet, wondered what the Responsibility to Protect concept would be in relation to peacekeeping in the era of President Trump.


Deputy High Commissioner questioned whether human rights are really in retreat, and if so, by what measure would we assess this to be the case? After all, the Universal Declaration of Human Rights, signed 70 years ago, has since been included in almost every new national constitution established subsequently; the majority of UN member states being constituted post-WW2. There are now laws in countries all over the world that reference the contents and/or values and/or purposes of the Declaration enabling the cascade of human rights from the universal and the global to the national and the local.


The Universal Periodic Review (UPR) is concrete evidence of this universal engagement in human rights, having now passed through two cycles with which all States cooperated while, for example, the Rome Statute establishing the International Criminal Court with jurisdiction over international crimes, is further evidence that never before has the world been so aware of human rights; of those who are lost to human rights violations and of States’ potential for abuse of power and their obligations to relative powerlessness.  Never before have we known so much about the nature and causes of preventable human suffering; never before has so much evidence been collected about the violations/abuses of human rights; never before has there been so many forums in which evidence of these matters can be put before member states. These are not the circumstances of defeat or of retreat. That being said, there is no question that political discourse has deteriorated: political narrative about universal rights has worsened as has the moral character of that political discourse.


She further emphasized that claims for rights to be upheld were not in retreat. Human rights defenders continued to demand for human rights. The number of people documenting human rights evidence has increased.  There is a broader based clash between people’s demand for rights and the State’s efforts to “supply rights”. She expressed her opinion that it was important to challenge current negative political narratives, by building coalitions to amplify the demand for rights. She noted specifically that what is under assault are not only values, but also the place of fact and of evidence. The norm that public policy should be based on evidence and on impartial standards was under assault.


How this retreat from the disciplines of standards, norms and evidence-based policy making has an impact is clear in peacekeeping. The UN is overdependent on certain donors; it has its political economy that affects its policy making including in respect of fulfilling its mandate in times of conflict.


Times are changing.  There are more people than ever on the move. Climate change is a local problem with only global solutions. Inequality is the gravest threat to enduring peace. There are alive today more young people than ever before in human history. All of these – and many more – directly concern people and where ever people are concerned there are inevitably human rights concerns.  We all must do more to elevate the demand for rights, including in East Asia. Geneva itself – alone – is not the answer. The answer will always involve a key role for local social movements. She concludes that we all have rights – without exception – but that not everyone has the same degree of responsibility for rights. The more power one has, the more responsibility we have to defend, protect and uphold rights.


Concerning the Universal Periodic Review, Mr. Gianni MAGAZZENI, Chief of the UPR Branch, Council and Treaty Mechanisms Division (CTMD), explained that while the Universal Periodic Review (UPR) takes place in Geneva its main objective is to improve the human rights situation at country level. It is a peer review of every member state, which benefits from the contribution of other stakeholders as well, including independent national human rights institutions and human rights associations active in country as well as regional organizations, if they  submit  information within given deadlines. For the UPR, hundreds of pages are considered and then summarized in a report of maximum 10 pages. In addition, OHCHR prepares also a compilation of UN documentation, received from UN Treaty Bodies, Special Procedures Mandate Holders, which complement state reports. The UPR has entered its third cycle in May 2017. On average, each delegation is led by one or more ministers with an average number of 20 state officials, and about 100 states making an average of 2.4 recommendations (i.e. more than 200) for each review. The review takes place in Geneva but the UPR focuses on the implementation and follow up of recommendations – especially those that are accepted – in each Member State. By strengthening national coordination and follow up mechanisms and enhancing the links between human rights requirements and the SDGs States will be able to better address root causes and prevent emergency situations. The UPR has 100% participation record so far: i.e. it is a mechanism accepted by all member states, which come to Geneva for the review. The main challenge in this third cycle is implementation which – if systematically ensured – will greatly enhance prevention and the success and sustainability of the Agenda 2030 and the Sustainable Development Goals (SDGs). The entire UN system, in addition to OHCHR needs to work more with Governments and other national stakeholders in order to support at least accepted UPR recommendations leading to the strengthening of the national protection system and relevant changes in laws and practices. Thus, if human rights are at the core of efforts at the SDGs, all the three pillars of the UN Charter (peace and security, development, and human rights) will be significantly strengthened.

 [Report drafted by Mr. Simon Panchaud and Ai Kihara-Hunt, edited by the Office of the High Commissioner for Human Rights]