Nuclear weapons and their third parties

ILPI Publications > Background Papers

Legal remedies for addressing the indirect consequences of nuclear weapons

By Annie G. Bersagel

In this background paper, ILPI’s Annie Golden Bersagel discusses the potential legal remedies available for third party states affected by a nuclear weapons attack. The humanitarian consequences of nuclear weapons challenges traditional international law notions of transboundary harm. Seeking legal redress for indirect consequences of the use of nuclear weapons is far from straightforward, and even states that are parties to a nuclear-weapons-free zone would face the same difficulties.

Background Paper No 9/2014 Published: September 2014

Introduction

Legal scholarship on nuclear weapons has thus far concentrated mainly on the direct impact of a nuclear weapons attack. This is perhaps unsurprising given that the International Court of Justice in its Nuclear Weapons Advisory Opinion considered the legality of the threat or use of nuclear weapons use within the framework of an armed attack.[1] Nevertheless, this approach ignores the legal implications arising from the indirect impact of nuclear weapons accruing to third states not party to the conflict. The March 2013 Oslo Conference on the Humanitarian Impact of Nuclear Weapons highlighted these indirect effects. Then Norwegian Foreign Minister Espen Barth Eide noted that ‘The effects of a nuclear weapon detonation, irrespective of cause, will not be constrained by national borders, and will affect states and people in significant ways, regionally as well as globally.’[2]

Although the exact impact of a nuclear detonation on states not hit directly in the blast depends on such factors as the size and number of weapons detonated, as well as weather patterns and wind conditions, the risk of widespread environmental damage is significant.[3] A 2012 report published in the Bulletin of the Atomic Scientists estimates that even a limited nuclear war involving the detonation of 100 ‘Hiroshima-size atom bombs’ could release enough smoke in the atmosphere to cool global temperatures, an effect known as nuclear winter.[4] Similarly, in “Nuclear Famine: Two Billion People at Risk”, Helfand summarizes studies estimating that the environmental impact of a limited nuclear war between India and Pakistan on global food production could put over two billion people at risk of starvation and disease.[5]

If the predicted indirect effects occur, what legal remedies would be available for affected third party states?

Studies of the impact of the Chernobyl accident on the environment in the surrounding region highlight the dangers associated with radioactive fallout. In particular, residents of Ukraine, Belarus, and Russia almost certainly faced an increased risk of thyroid cancer through the consumption of contaminated milk products.[6] The effects were especially pronounced among children. Precautionary measures post-contamination can significantly reduce the risk; such as eliminating from the food supply milk from cattle that have grazed on contaminated pastures, as well as fish from contaminated lakes.[7] Nevertheless, measures such as this, which limit the available food supply, are likely to be extremely difficult to implement in states with populations already at risk of undernourishment.

The author of the present article is not a scientist, and makes no claim to predict the physical outcome of a nuclear weapons detonation. Instead, this article asks: If the predicted indirect effects occur, what legal remedies would be available for affected third party states?

Consider this grim thought experiment. Imagine a limited nuclear war occurs in Asia, resulting in the detonation of approximately 100 Hiroshima-size nuclear weapons. The indirect environmental effects reach Africa, resulting in lower temperatures, reduced precipitation, and a resulting widespread decline in agricultural production. Many of the least developed states, including many African states, are members of a nuclear-weapons-free zone (NWFZ). An NWFZ is a geographic region established by treaty in which states are prohibited from possessing, transferring, using or testing nuclear weapons.[8] Although, under this hypothetical scenario, the states affected would include members of the African nuclear-weapons-free zone established by the Treaty of Pelindaba, this fact alone would be irrelevant from a legal standpoint unless the party or parties responsible for the detonations were also bound by the terms of the treaty or its protocols.[9] This is unlikely considering the Protocols to the Treaty of Pelindaba that establish negative security assurances are open to signature only from the five recognised nuclear-weapon states under the NPT.[10]

Although, for the reasons stated above, membership in an NWFZ is unlikely to be relevant legally for an affected state’s opportunity to access a remedy, it is relevant politically and morally, as NWFZ states have registered their clear disavowal of nuclear weapons as an unacceptable weapon. Moreover, NWFZ states tend to be disproportionately poor, and therefore, less able to cope with the humanitarian consequences of a nuclear weapons detonation than their industrialized state counterparts.

This article analyses the potential avenues for legal redress a third party state might take, based on the law of state responsibility, relevant international environmental law, as well as human rights law and international humanitarian law. The article focuses on the possible legal avenues available in response to third party effects resulting from a nuclear attack, recognising, however, that an accidental nuclear weapons detonations could be equally devastating.

Part 2 outlines how the law of state responsibility would apply to a nuclear attack that affects third party states. Part 3 details the specific substantive law that may be applied, including the viability of potential claims under international environmental law, international humanitarian law, the laws regulating the use of force under the UN Charter, international human rights law, and domestic causes of action. Part 4 explores the possible forums for advancing such a claim, including the International Court of Justice, human rights treaty bodies, the International Criminal Court, the UN Security Council, and ad hoc judicial or non-judicial forums established by treaty. The article concludes that existing conventional and customary international law rules provide insufficient avenues for third party states negatively impacted by a nuclear weapons attack to seek redress. Given the devastating long-term and large-scale health and environmental impacts of nuclear weapons detonations, the existing legal framework is insufficient to redress the harm caused not only to the direct victims of an armed attack, but also victims in states indirectly affected by the attack.

Law of state responsibility

Attribution

Direct attack from one state against another

The first requirement for state responsibility is that there has to be a violation of an international obligation. Assuming that this condition is met, The simplest case for attributing legal responsibility to a state for a nuclear weapons detonation would be if the state or states involved launched an attack on their own initiative, through a clearly recognisable state organ such as the military.[11] Put more simply: State A, through its military, launches a nuclear attack against State B. Responsibility for the detonation would then be attributable entirely to State A.

Attacking state’s military under control of another state

The situation becomes more complicated if a third state or a non-state actor engages in or is closely linked to the detonation. For example, if State A sends military forces to State B, to be placed under B’s control, and these State A forces subsequently launch a nuclear attack against State C, then responsibility could be attributed to State B by virtue of its control over the State A forces.[12] Admittedly, it is perhaps unlikely that a state would send military forces to another state and place those forces entirely under the receiving state’s command, but it is a theoretical possibility.

One state provides nuclear weapons to another state

What about the scenario under which a state provides nuclear weapons to another state with a history of violating international humanitarian or human rights law? Could any measure of responsibility be attributed to the exporting state for the importing state’s subsequent launch of a nuclear attack, for example, under some kind of negligence theory? The ILC Articles do not provide for any such theory of liability for a state that provides nuclear weapons to another state.[13]

Nuclear attack by proxy: non-state actors

If a non-state actor launches an attack, there are of course potential avenues for criminal prosecution of the individuals involved under domestic and international criminal law. Attributing the non-state actor’s conduct to a state, however, requires application of the effective control test:

Conduct directed or controlled by a state.
The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.[14]

The Commentary to the ILC Articles further clarifies the limited circumstances under which this standard is met: 1) when a state specifically authorises a non-state actor to carry out the act; or 2) when the non-state actor acts ‘under the direction or control’ of the state, without receiving explicit instructions.[15] In the context of a nuclear weapons attack, the first category could include, for example, the case in which State A sends a mercenary group to State B in order to launch an attack against State C. Although the attack would thus be launched by a group that is not a regular organ of State A, and from the territory of State B, the act could nevertheless be attributed to State A.

The second category, involving acts committed ‘under the direction or control’ of the state, is more difficult to define. As the Commentary to the ILC Articles state, the case most on point in this respect is the International Court of Justice (ICJ) judgement on the merits in Military and Paramilitary Activities in and Against Nicaragua.[16] In that case, the Court ruled that the militants’ dependence on the United States was insufficient to establish attribution. Rather, the test was whether the ‘State had effective control of the military or paramilitary operations in the course of which the alleged violations were committed.’[17] Thus, for example, a state that financed a terrorist group that subsequently launched a nuclear attack would not necessarily thereby become responsible for the terrorist group’s conduct. A more detailed analysis of the facts giving rise to the inference that the non-state actors were under the state’s effective control would be required.

Obligation to make Reparations

Provided the act of launching a nuclear weapons attack can be attributed to a state, the duty to make reparation to states harmed by any resulting breach of international law flows from general principles of international law. As the Permanent Court of International Justice stated in the Chorzów Factory case:

It is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form. Reparation therefore is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself.[18]

In other words, the obligation to make reparations applies regardless, even if the instrument breached is silent on the matter. Although the Chorzów Factory case refers to violations of a treaty, the same principle applies for violations of customary international law.

the obligation to make reparations applies regardless, even if the instrument breached is silent on the matter.

In the context of a nuclear weapons detonation, the type of response demanded is likely to involve compensation and potentially additional measures available under international law to hold those responsible to account and to mitigate damage to health, property, and the environment. Requests for injunctive relief – cessation of the act that violates international law – might not be relevant for a one-time detonation where repetition is highly unlikely. If the attack triggers a prolonged nuclear weapons exchange, however, injunctive relief would be appropriate.

Applicable substantive law

Environmental law

Treaty law

When considering the applicability of environmental treaty law to the effects of a nuclear weapons detonation, a threshold question concerns whether the treaty remains in effect during armed conflict.[19] The Vienna Convention on the Law of Treaties (VCLT) sidesteps this question in Article 73, which provides that ‘The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty … from the outbreak of hostilities between States.’[20] The International Law Commission (ILC) thus attempted in its Draft Articles on the Effects of Armed Conflict on Treaties to address the question VCLT Article 73 leaves unanswered.[21] Although it is unclear whether these Draft Articles have achieved the status of customary international law, they are the most directly on point source available.

According to the Draft Articles on the Effects of Armed Conflict on Treaties, the general rule is as follows: If a treaty addresses its application during armed conflict specifically, those provisions apply. Alternatively, if the treaty is silent on the effect of armed conflict, Article 6 of these Draft Articles lists a variety of factors to consider in determining whether the treaty continues to apply.[22] For environmental treaties in particular, in the absence of any provisions regarding the treaty’s application during armed conflict, the treaty is presumed to remain in effect.[23]

In terms of the specific environmental treaties that might be relevant in the event of a nuclear weapons detonation, a few merit particular mention. The Convention on Long-Range Transboundary Air Pollution (LRTAP), designed to both limit pollution and encourage international scientific cooperation and information exchange is perhaps one obvious example of an environmental convention that would apply to nuclear weapons use. Article 2 of the convention, ‘Fundamental principles’ provides:

The Contracting Parties, taking due account of the facts and problems involved, are determined to protect man and his environment against air pollution and shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution.[24]

There is, however, not a single state party to LRTAP from the Asian or the African continents.[25] The overwhelming majority of states parties are European states. By contrast, the Ramsar Convention on Wetlands, which requires states parties to ‘formulate and implement their planning so as to promote the conservation of the wetlands included in the List…’[26] has 168 states parties.[27] The Ramsar Convention ‘List’ is comprised of wetlands designated for protection by the states parties.[28] This convention could, for example, apply in the event of a nuclear weapons attack carried out by a state party that harms wetlands on the Ramsar Convention List. Additional conventions that could prove relevant, depending on the nature of the damage, include, inter alia, the Convention on Biological Diversity,[29] the World Heritage Convention,[30] and the UN Convention on the Law of the Sea.[31]

Customary environmental law

In the Trail Smelter arbitration, an ad hoc panel awarded the United States injunctive relief in a dispute with Canada over transboundary air pollution.[32] Operation of a smelter in British Columbia spewed sulphur dioxide across the border, resulting in property damage in the state of Washington. In awarding injunctive relief and damages to the United States, the ad hoc panel enunciated the following principle, which is now recognized as a basic rule of customary international environmental law:[33]

…[N]o State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence….[34]

The Trail Smelter case is an extension of the principles contained in the law of state responsibility to the field of international environmental law.[35] The ICJ expressed support for this principle in the Nuclear Weapons Advisory Opinion:

The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.[36]

There are in addition several international ‘soft law’ instruments, such as Principles 21 and 22 of the 1972 Stockholm Declaration[37] and Principles 2 and 13 of the 1992 Rio Declaration, that form additional evidence of customary international law.[38] Principle 21 of the Stockholm Declaration provides that ‘States have… the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’[39] While Principle 21 thus addresses the obligation to refrain from causing transboundary environmental damage, Principle 22 addresses reparations for victims of such damage:

States shall cooperate to develop further the international law regarding liability and compensation for the victims of pollution and other environmental damage caused by activities within the jurisdiction or control of such States to areas beyond their jurisdiction.[40]

Principle 22 can thus be read as evidence in favour of states’ support for providing victims of environmental harm with a remedy, but not as an actionable legal rule. Rather, Principle 22 urges states to take further action on liability and compensation.

Principle 2 of the Rio Declaration, adopted in 1992, restates the customary rule against transboundary environmental damage:

States have, in accordance with the Charter of the United Nations and the principles of international law, the sovereign right to exploit their own resources pursuant to their own environmental and developmental policies, and the responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.[41]

Like the Stockholm Declaration, however, the Rio Declaration does not propose any binding rules for international liability and compensation. Instead, Principle 13 merely encourages states to further develop this area of law:

States shall develop national law regarding liability and compensation for the victims of pollution and other environmental damage. States shall also cooperate in an expeditious and more determined manner to develop further international law regarding liability and compensation for adverse effects of environmental damage caused by activities within their jurisdiction or control to areas beyond their jurisdiction.[42]

The above Principles in the Stockholm Declaration and the Rio Declaration thus echo the two main elements of the Trail Smelter arbitral award: 1) state responsibility for transboundary environmental harm, and 2) the ‘polluter pays’ principle.[43] In the event of a nuclear attack that caused indirect environmental harm to a third state, these principles provide a basis for state liability and compensation for damage.

In addition to the above principles, the International Law Commission has adopted a set of Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities.[44] Although the title suggests these Draft Articles would be highly relevant to the health and environmental impact of a nuclear attack, the Draft Articles in fact apply only ‘to activities not prohibited by international law….’[45] Although one might argue to the contrary, it would be difficult to conceive of a nuclear weapons attack conducted in conformity with – at a minimum – the international humanitarian law rule of proportionality; that is also of a significant enough scale to negatively impact states surrounding the target state. Thus, it is unlikely that the Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities would be applicable in the scenario outlined in this article.

International Humanitarian Law – Law of Neutrality

Although there exist international humanitarian law (IHL) rules directly applicable to the environment, most notably, Article 35(3) of the Additional Protocol I to the Geneva Conventions,[46] the general rule is that between a state party to an armed conflict and a state party that is not party to the armed conflict, the laws of peacetime are presumed to apply. As a result, for a third party state harmed by a nuclear weapons attack, the more appropriate subset of IHL rules is the law of neutrality, as codified in particular in Hague Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land.[47] As an example, Michael Bothe observes that the Allied governments provided Switzerland with compensation after World War II for damage to that state resulting from the Allied forces’ attacks on Germany.[48] Bothe also explicitly names the negative impact of a nuclear weapons attack on neutral state as an example of a violation of the law of neutrality.[49]

Allied governments provided Switzerland with compensation after World War II for damage to that state resulting from the Allied forces’ attacks on Germany.

United Nations Charter

One might ask whether the indirect health and environmental effects of a nuclear weapons attack could be considered a violation of the prohibition on the use of force contained in Article 2(4) of the UN Charter.[50] For example, could an attack that results in radioactive fallout over a third state be classified as a use of force?  Most likely, the answer is ‘no.’ The general consensus is that the reference in Article 2(4) to the use of force refers to armed force.[51] Although the use of a nuclear weapon would obviously qualify as a resort to armed force, the indirect effects of that weapon’s use might not be – particularly if the impacts result from a less straightforward chain of causality, such as the cooling of global temperatures due to the amount of ash deposited in the atmosphere. Thus, although the UN Charter’s prohibition on the use of force would almost certainly apply to the direct attack on the state targeted, it is likely of less utility when looking to avenues for redress for states indirectly affected by a nuclear attack.

A more likely alternative is to view the indirect effects of a nuclear weapons attack as a threat to international peace and security, to be addressed through UN Security Council intervention. This option is discussed in more detail in Section 4.4.

Human Rights Law

Another area of substantive law upon which a third party state could base a claim for negative environmental and health impacts resulting from a nuclear weapons attack is through human rights law. Depending on the scale and impact of the attack, relevant human rights that may potentially be violated through effects upon third states include, inter alia, the right to life, as embodied in the International Covenant on Civil and Political Rights (ICCPR),[52] and the rights to health[53] and to food[54] under the International Covenant on Economic, Social and Cultural Rights (ICESCR). On the right to life, the treaty body for the ICCPR, the Human Rights Committee, has stated in its General Comment 14 that ‘It is evident that the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today.’[55]

The ICESCR contains no limit on its extraterritorial application, and the ICCPR has been interpreted to also apply extraterritorially. Although Article 2(1) of the ICCPR states that states parties shall ensure the rights contained in the convention are upheld for ‘all individuals within its [the state party’s] territory and subject to its jurisdiction’, the UN Human Rights Committee has since interpreted this provision to apply extraterritorially, to individuals under a state party’s effective control.[56]

In the case of a nuclear weapons attack that causes negative health and environmental impacts in third party states, for example through radioactive fallout, would the effective control standard be met? The Inter-American Commission on Human Rights has upheld jurisdiction over a state for an extraterritorial attack, on the grounds that the attack itself places the victims under the attacking state’s effective control.[57] The European Court of Human Rights has ruled to the contrary, but ‘has not been totally consistent.’[58] Those cases involved the commission of a direct armed attack on the victims, however, whereas the present scenario involves the indirect effects of the attack for surrounding states. Nevertheless, provided the chain of causality could be clearly established, the same rationale would that undergirded the exercise of jurisdiction in the Inter-American Commission case would be applicable to indirect effects as well. The primary consideration would likely involve determining whether the health and environmental effects were sufficiently closely connected to the attack and did not depend, rather, on intervening factors.

Domestic Law

According to the passive personality principle, a domestic court may exercise jurisdiction in a case involving conduct that occurs abroad, provided that the effects of said action occur within the territory of the state in which the court is seated.[59] As a result, the domestic courts of a third party state harmed by a nuclear weapons attack could in theory hold the perpetrators to account. Practically, however, obtaining jurisdiction over those responsible for the attack would almost certainly prove highly problematic. Moreover, domestic courts are often barred from exercising jurisdiction over a foreign state (as opposed to an individual), due to the principle of sovereign immunity.[60] Accordingly, domestic legal remedies – while available in theory – are unlikely to be feasible as a means of holding the responsible parties accountable or of obtaining compensation. Nevertheless, exhaustion of domestic remedies may be a precondition for the submission of a case to an international tribunal or treaty body, so recourse to domestic law should be pursued regardless of its expected utility.

the domestic courts of a third party state harmed by a nuclear weapons attack could in theory hold the perpetrators to account.

Forum

International Court of Justice

The International Court of Justice (ICJ) would have jurisdiction over a dispute between states regarding the indirect effects of a nuclear weapons detonation under any one of the following three bases: First, if both states have accepted the compulsory jurisdiction of the Court.[61] Only a minority of UN member states currently do so, and only three nuclear-armed states: India, Pakistan, and the United Kindgdom.[62] Alternatively, jurisdiction is proper if the parties both decide to submit the dispute to the Court through a special agreement, known as a compromis.[63] Lastly, jurisdiction over the parties may be established by virtue of a treaty provision requiring parties to submit disputes about the treaty’s application or interpretation to the ICJ.

In the 1973 Nuclear Tests cases, New Zealand challenged French nuclear testing in the South Pacific region.[64] At the time, both states accepted the compulsory jurisdiction of the ICJ. New Zealand sought interim relief to bar France from continued testing pending the outcome of the case.[65] Although the legal claims in that case were grounded primarily on opposition to the practice of nuclear testing,[66] New Zealand’s claims relating to customary international environmental law based on, inter alia, the Stockholm Declaration, would be relevant to third states seeking reparation for the indirect environmental effects of a nuclear weapons attack.

Lastly, in terms of the remedies available, the ICJ may issue declaratory judgements and it may also determine the amount of reparations owed for a state’s wrongful act.[67] For the scenario at hand, this means that third party states affected by a nuclear weapons attack could petition the Court for a declaratory judgment asserting the wrongfulness of the attacker’s act. They could also claim compensation for the damage incurred. Note, however, that such a contentious case would be between states only. Thus, any compensation received would accrue to the state, which could then choose to distribute funds to the individual victims. In other words, individual victims or NGOs could not bring a case to the ICJ for compensation.

Human rights treaty bodies

Another possible avenue for seeking redress in response to a nuclear weapons attack that affects a third party state would be through the various human rights treaty bodies established to monitor compliance with their respective conventions. For example, Article 28 of the ICCPR establishes the Human Rights Committee, which receives communications from states parties on their progress in implementing the ICCPR and provides concluding observations on the same.[68] The ICCPR may also, under certain circumstances, receive a complaint from one state party that another state party is not fulfilling its obligations under the Convention.[69] This complaint mechanism functions on a reciprocal basis: Only states parties that grant the Human Rights Committee the authority to handle any complaints submitted against them are permitted to submit complaints regarding any other state party.[70] States parties to the Optional Protocol to the ICCPR also grant the Human Rights Committee the competence to receive complaints from individuals against a state party to the Optional Protocol.[71] For both types of complaint procedures, parties submitting a complaint must have exhausted all available domestic remedies first.[72] If, after reviewing submissions from both parties, the Human Rights Committee determines in favour of the complainant, the Committee may make a written recommendation outlining the steps that should be taken to redress the violation. The Committee may also offer to mediate a dispute concerning two or more states parties.

The Committee on Economic, Social and Cultural Rights (CESCR) follows a similar approach, allowing the submission of complaints from one state party against another only on a limited basis and hearing complaints from individuals only against states parties to the ICESCR’s Optional Protocol.[73] Only twelve states are party to the ICESCR’s Optional Protocol, however.[74] Similar to the Human Rights Committee, the CESCR may issue recommendations, but implementation depends on the willingness of the state party involved to comply with the recommendation. At a minimum, however, a recommendation in favour of the complainant places a certain degree of moral pressure on the offending state party.

Depending on which state launched the nuclear attack, a regional human rights court or commission may be an appropriate forum for a human rights complaint grounded on the relevant treaty. Regional human rights bodies vary considerably in the court or commission’s level of activity, and in the extent to which its decisions are implemented. Moreover, not all regions currently have a functioning regional human rights treaty body.

International criminal tribunals

Recourse to an international criminal tribunal assumes, at a minimum, that responsibility for a nuclear weapons detonation can be traced to one or more individuals. As international criminal law concerns the punishment of individual offenders, rather than providing compensation for the victims, it is unnecessary to focus solely on third party states impacted by a nuclear weapons attack – the tribunal’s assessment would naturally include the impacts on the state directly targeted as well. As a result, the full panoply of international humanitarian law violations, as codified in the relevant international criminal tribunal statute, would be applicable. That is, there is no need to rely on the law of neutrality alone.

In relation to the International Criminal Court (ICC), the only nuclear-armed states parties to the Rome Statute are the United Kingdom and France.[75] Nevertheless, the UN Security Council may refer a potential case to the ICC prosecutor, even in the absence of a jurisdictional basis grounded on the nationality of the offender or the state in which the crime took place.[76] Also, if a non-state actor were responsible for the attack, jurisdiction may be proper if the actor is a national of a state party to the Rome Statute or the crime was committed on the territory of a state party, subject to the principle of complementarity.

In terms of the substantive basis for prosecution under the Rome Statute, the ICC has jurisdiction over war crimes, crimes against humanity, genocide, and aggression.[77] The Rome Statute does not criminalise the use of nuclear weapons, per se, although this was a point of contention during the drafting negotiations. Nevertheless, the Rome Statute is progressive in codifying Article 35(3) of Additional Protocol I to the Geneva Conventions, cited above, relating to environmental damage. Article8(2)(b)(iv) classifies as a war crime:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated….[78]

This more expansive codification of the rule of proportionality would be especially relevant to a nuclear weapons attack, in which long-term and severe damage to the natural environment is one of the main features that distinguishes the effects of nuclear weapons use from those of conventional weapons. There is also nothing to prevent the establishment of an ad hoc international criminal tribunal to prosecute cases outside of the ICC system. The Special Court for Sierra Leone (SCSL), the International Criminal Tribunal for the former Yugoslavia (ICTY), and the International Criminal Tribunal for Rwanda (ICTR) comprise just a few examples of such ad hoc tribunals.

United Nations Security Council resolution

Under its Chapter VII mandate, the UN Security Council could address the impact of a nuclear weapons attack in the context of a threat to international peace and security. The Security Council has a variety of tools at its disposal, including, but not limited to, the use of force. In order to address the damage caused by a nuclear weapons attack, one example of a relevant measure the Security Council could take is to establish a compensation commission to provide individuals harmed with reparation. For example, following the Iraqi invasion of Kuwait, the Security Council through Resolution 687, inter alia, established a claims resolution council to process claims from individuals harmed by the Iraqi invasion.[79] Iraq provided the funding out of which successful claims were paid.

Security Council action in establishing a claims commission in response to a nuclear weapons attack would have the advantage of allowing for greater flexibility in the types of claims and claimants allowed, and would permit tailoring to the specific types of damage incurred. Nevertheless, such action would depend upon a favourable constellation of political interests among the permanent UN Security Council members.

Ad hoc forum established by treaty

An alternative forum in which a state indirectly affected by a nuclear weapons detonation might seek a remedy is through an ad hoc tribunal established by treaty for that purpose. For example, the Marshall Islands Nuclear Claims Tribunal was developed through a bilateral treaty concluded in 1983 between the United States and the Marshall Islands, designed to compensate residents of the Marshall Islands who were harmed by US nuclear testing.[80] From 1946 to 1958, the United States conducted 67 atmospheric nuclear tests in the area, including a 15-megaton detonation in 1954.[81] Under the terms of the treaty, the United States agreed to provide the Marshall Islands with an annual payment to be distributed through the tribunal. The tribunal accepted claims based on damage to life, health, and property.

In order for this type of ad hoc tribunal to be a viable option, the state responsible for the attack and the state or states harmed would have to come to agreement. As a result, existing power dynamics between the two states would likely affect the outcome. If a state harmed by a nuclear weapons attack were able to receive a more favourable compensation mechanism through UN Security Council action, then the latter avenue would be preferable.

Conclusion

This article has attempted to catalogue in broad strokes the legal options available to a state indirectly harmed by a nuclear weapons attack – that is, a state other than the one targeted. The nature of nuclear weapons harm, in terms of its scope and threat to life, health, and the environment, challenges traditional international law notions of transboundary harm. As the above sections illustrate, seeking legal redress for these consequences is far from straightforward, and even states that are parties to a nuclear-weapons-free zone would face the same difficulties. Moreover, the challenge of establishing a chain of causality would depend on a resource-intensive fact-finding process, particularly with effects such as a lowering of regional or global temperatures, or the development of latent cancers as a result of radioactive fallout. For the poorest states, this type of evidence gathering could be prohibitively expensive. In sum, this article is intended to highlight the gaps in the system of legal protection available to victims of a nuclear weapons attack located outside the initial blast area, to illustrate that not only are the humanitarian consequences of nuclear weapons use unacceptable, but the existing means of remediation available are insufficient.


Endnotes

[1]        International Court of Justice (ICJ) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 34 (‘In the light of the foregoing the Court concludes that the most directly relevant applicable law governing the question of which it was seised, is that relating to the use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the con- duct of hostilities, together with any specific treaties on nuclear weapons that the Court might determine to be relevant.’)

[2]       Statement to the Conference on the Humanitarian Impact of Nuclear Weapons, Espen Barth Eide, Foreign Minister of Norway, Oslo, 5 March 2013, available at: http://www.regjeringen.no/en/archive/Stoltenbergs-2nd-Government/Ministry-of-Foreign-Affairs/taler-og-artikler/2013/nuclear_summary.html?id=716343 (last visited 11 February 2014).

[3]       Douglas Holdstock and Lis Waterston, ‘Nuclear weapons, a continuing threat to health’, in The Lancet, Vol. 355, 2000, p. 1544.

[4]       Alan Robock and Owen Brian Toon, ’Self-assured destruction: The climate impacts of nuclear war’, in Bulletin of the Atomic Scientists, Vol. 68, No. 5, pp. 68–69.

[5]       Ira Helfand, Nuclear Famine: Two Billion People at Risk, 2nd ed., International Physicians for the Prevention of Nuclear War and Physicians for Social Responsibility, November 2013, available at: http://www.psr.org/assets/pdfs/two-billion-at-risk.pdf (last visited 11 February 2014).

[6]       The Chernobyl Forum 2003–2005, Chernobyl’s Legacy: Health, Environmental and Socioeconomic Impacts, 2nd ed., International Atomic Energy Agency, Vienna, April 2006, pp. 16–18.

[7]       Ibid., pp. 27–29.

[8]       In addition to the NWFZs established for unpopulated areas, such as that for the Outer Space Treaty, NWFZs exist for Africa (Pelindaba), former Soviet states (Semipalatinsk), Southeast Asia (Bangkok), Latin America (Tlatelolco), and the South Pacific (Rarotonga). Mongolia and Austria have also declared nuclear-free status.

[9]       Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980), Art. 34 (‘A treaty does not create either obligations or rights for a third State without its consent.’)

[10]      Protocol I to the African Nuclear-Weapon-Free Zone Treaty (Treaty of Pelindaba), 35 ILM 698, 11 April 1996, (entered into force 15 July 2009), Art. 4.

[11]       See, e.g. International Law Commission (ILC), Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, Art. 4 (‘1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.’)

[12]      Ibid., Art. 6 (‘The conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed.’).

[13]      The Arms Trade Treaty addresses this situation explicitly with respect to conventional arms, providing that states may not export to a state that the exporting state determines there is an ‘overriding risk’ that the importing state will use the arms, inter alia, to commit ‘serious’ violations of international human rights or humanitarian law. Arms Trade Treaty, 2 April 2013 (not yet entered into force), Art. 7.

[14]      ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, above note 11, Art. 8.

[15]      Ibid., Art. 8, para. 1.

[16]      Cited in ibid., Art. 8, para. 4.

[17]      International Court of Justice (ICJ), Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, ICJ Reports 1986, para. 115, cited in ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, above note 11, Art. 8, para. 4.

[18]      Permanent Court of International Justice (PCIJ), Chorzów Factory (Jurisdiction), 1927, Ser. A, no. 9, p. 21 (quoted in Ian Brownlie, Principles of Public International Law, 7th ed., Oxford University Press, Oxford, 2008, p. 435).

[19]      See, Jorge Viñuales and Martina Kunz, ‘Environmental approaches to nuclear weapons’, in Gro Nystuen, Stuart Casley-Maslen, and Annie Golden Bersagel (eds.), Nuclear Weapons Under International Law, Cambridge University Press, Cambridge, forthcoming 2014.

[20]     Vienna Convention on the Law of Treaties, above note 9, Art. 73.

[21]      ILC, Draft Articles on the Effects of Armed Conflict on Treaties, 2011 (United Nations, 2011).

[22]      Ibid., Art. 6.

[23]      Ibid., Art. 7 and Annex.

[24]      Convention on Long-Range Transboundary Air Pollution, 13 November 1979, 1302 UNTS 217 (entered into force 16 March 1983), Art. 2.

[25]      Convention on Long-Range Transboundary Air Pollution, Status of Ratifications, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XXVII-1&chapter=27&lang=en (last visited 24 February 2014).

[26]      Convention on Wetlands of International Importance especially as Waterfowl Habitat (‘Ramsar Convention on Wetlands’), as amended by the Protocol of 3 December 1982 and the Amendments of 28 May 1987, 2 February 1971, 996 UNTS 245 (entered into force 21 December 1975), Art. 3(1).

[27]      Contracting Parties to the Ramsar Convention on Wetlands, http://www.ramsar.org/cda/ramsar/display/main/main.jsp?zn=ramsar&cp=1-36-123^23808_4000_0__ (last visited 24 February 2014).

[28]      Ramsar Convention on Wetlands, above note 26, Art. 2.

[29]      Convention on Biological Diversity, 5 June 1992, 1760 UNTS 79 (entered into force 29 December 1993);

[30]     Convention Concerning the Protection of the World Cultural and Natural Heritage (‘World Heritage Convention’), 23 November 1972, 1037 UNTS 151 (entered into force 15 December 1975).

[31]      United Nations Convention on the Law of the Sea, 10 December 1982, 1836 UNTS 42 (entered into force 16 November 1994).

[32]      Arbitral Tribunal, Trail Smelter Case (United States v. Canada), 1941, III UN Rep. Intl. Arb. Awards 1905, 1962-1966 (1950), pp. 1912–1919.

[33]      See, e.g. I. Brownlie, above note 18, p. 276.

[34]      Trail Smelter Case, above note 32, p. 1965.

[35]      Barry E. Carter, Phillip R. Trimble, Allen S. Weiner, International Law, 5th ed., Aspen Publishers, New York, 2007, p. 928.

[36]      ICJ, Legality of the Threat or Use of Nuclear Weapons, above note 1, para. 26.

[37]      Declaration of the United Nations Conference on the Human Environment (‘Stockholm Declaration’), Stockholm, UN Doc. A/Conf.48/14/Rev. 1(1973), 16 June 1972.

[38]      Rio Declaration on Environment and Development, Rio de Janeiro, UN doc. A/CONF.151/26 (vol. I), 13 June 1992.

[39]      Stockholm Declaration, above note 37, Principle 21.

[40]     Stockholm Declaration, above note 37, Principle 22.

[41]      Rio Declaration, above note 38, Principle 2.

[42]      Ibid., Principle 13.

[43]      See, Rebecca M. Bratspies and Russell A. Miller, ‘Introduction’, in Rebecca M. Bratspies and Russell A. Miller (eds.), Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration, Cambridge University Press, Cambridge, 2010, 5–6.

[44]      ILC, Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities (United Nations, 2001).

[45]      Ibid., Art. 1.

[46]      Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1978), Art. 35(3) (‘It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.’)

[47]      Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land, 18 October 1907, USTS 540 (entered into force 26 January 1910).

[48]      Michael Bothe, ‘The law of neutrality’, in Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd ed., Oxford University Press, Oxford, 2013, p. 560, para. 1108(2).

[49]      Ibid., para. 1108(2).

[50]     Charter of the United Nations, 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945), Art. 2(4).

[51]      Albrecht Randelzhofer, ‘Article 2(4)’, in Bruno Simma et al. (eds.), The Charter of the United Nations: A Commentary, Vol. I, 2nd ed., Oxford University Press, Oxford, 2002, p. 117.

[52]      International Covenant on Civil and Political Rights (‘ICCPR’), 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), Art. 6(1). This is a right from which no derogation is permitted. Ibid. Art. 4(2).

[53]      International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976), Art. 12.

[54]      Ibid., Art. 11.

[55]      UN Human Rights Committee, General Comment No. 14, UN Doc. HRI/GEN/1/Rev.1, 9 November 1984, para. 4.

[56]      UN Human Rights Committee, General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/Add. 13, 26 May 2004, para. 10 (‘This [Article 2(1)] means that a State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.’).

[57]      See Louise Doswald-Beck, ‘Human rights law and nuclear weapons’, in Gro Nystuen, Stuart Casley-Maslen, and Annie Golden Bersagel (eds.), Nuclear Weapons Under International Law, Cambridge University Press, Cambridge, forthcoming 2014 (discussing Inter-American Commission on Human Rights, Alejandre and others v. Cuba (Brothers to the Rescue case), Case 11.589, Report No. 86/99, 29 September 1999, para. 25.)

[58]      Ibid. (discussing European Court of Human Rights, Bankovic and Others v. 17 NATO States, Admissibility Decision (Grand Chamber), 12 December 2001, para. 75 and European Court of Human Rights, Mansur Pad and Others v. Turkey, Admissibility Decision, 28 June 2007, paras. 54-5).

[59]      See, e.g. Restatement of the Law Third, The Foreign Relations Law of the United States (1987), § 402.

[60]     See, e.g. I. Brownlie, above note 18, pp. 323–324.

[61]      Statute of the Court, Art. 36(2).

[62]      International Court of Justice (ICJ), Declarations Recognizing the Jurisdiction of the Court as Compulsory, available at: http://www.icj-cij.org/jurisdiction/?p1=5&p2=1&p3=3 (last visited 13 February 2014).

[63]      Statute of the Court, Art. 36(1).

[64]      Pleadings, International Court of Justice (ICJ), Nuclear Tests cases, 2 vols. (New Zealand v. France), II, 9 May 1973, p. 3–9.

[65]      International Court of Justice (ICJ), Nuclear Tests (New Zealand v. France), Request for the indication of Interim Measures of Protection Submitted by the Government of New Zealand, 14 May 1973, p. 59, para. 51.

[66]      Ibid., Annexes I–VI.

[67]      See Christian Tomuschat, ‘Article 36’, in Andreas Zimmermann, Christian Tomuschat, Karin Oellers-Grahm, and Christian J. Tams (eds.), The Statute of the International Court of Justice: A Commentary, 2nd ed., Oxford University Press, Oxford, 2012, p. 659–660. See also, Statute of the Court, Art. 36(2)(d) (‘2. The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and without special agreement, in relation to any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning: …d. the nature or extent of the reparation to be made for the breach of an international obligation.’).

[68]      International Covenant on Civil and Political Rights, above note 52, Art. 40.

[69]      Ibid., Art. 41.

[70]     Ibid., Art. 41(1).

[71]      Optional Protocol to the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 302 (entered into force 23 March 1976), Arts. 28 and 40.

[72]      Ibid., Art. 5(2)(b); International Covenant on Civil and Political Rights, above note 52, Art. 41(1)(c).

[73]      Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 10 December 2008, UN Doc. Doc.A/63/435 (entered into force 5 May 2013).

[74]      Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, Status of Ratifications, https://treaties.un.org/pages/viewdetails.aspx?src=ind&mtdsg_no=iv-3-a&chapter=4&lang=en (last visited 28 February 2014).

[75]      International Criminal Court, The States Parties to the Rome Statute, http://www.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx (last visited 13 February 2014).

[76]      Rome Statute of the International Criminal Court, 17 July 1998, entered into force 1 July 2002, UN Doc. A/CONF.183/9, Arts. 12 and 13.

[77]      Ibid., Art. 5.

[78]      Ibid., Art. 8(2)(b)(iv).

[79]      UN Security Council Resolution 687, 3 April 1991.

[80]     Republic of the Marshall Islands, Nuclear Claims Tribunal, http://www.nuclearclaimstribunal.com (last visited 14 February 2014).

[81]      Ibid.

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