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.