Undirritun og fullgilding samnings Sameinuðu þjóðanna um bann við kjarnorkuvopnum

Umsögn í þingmáli 70 á 150. þingi

Þingmál lagt fram: 12.09.2019 Tegund þingmáls: Þingsályktunartillaga Fjöldi umsagna við þingmál: 11 Fjöldi umsagnarbeiðna við þingmál: 22 Ferill þingmálsins á althingi.is Sendandi: International Committee of the Red Cross (ICRC) Viðtakandi: Utanríkismála­nefnd Dagsetning: 15.01.2020 Gerð: Umsögn
Geneva, 14 January 2020 DP JUR ARMES 20/00001 HDUR/mlov Dear Sir, Dear Madam, Please find enclosed the submission of the International Committee of the Red Cross (ICRC) to the Alþingi Inquiry into Resolution 70/150, “Bann við kjarnorkuvopnum” ("Prohibition of nuclear weapons"). Yours sincerely, Helen Durham Director of International Law and Policy International Committee of the Red Cross Utanrikismalanefnd Austurstraeti 8 - 10 101 Reykjavik Encl.: Factsheet Treaty on the Prohibition of Nuclear Weapons (TPNW) ICRC responses to key TPNW challenges ICRC Treaty on the Prohibition of Nuclear Weapons: Responses to key challenges This memorandum presents the views o f the International Committee o f the Red Cross (ICRC) on some key concerns and criticisms that have been raised about the Treaty on the Prohibition o f Nuclear Weapons (TPNW). The ICRC will also provide briefing papers on more technical and legal matters on www.icrc.org and through its partners in the Red Cross and Red Crescent Movement. Since 1945, the International Red Cross and Red Crescent Movement, of which the ICRC is a part, has been calling for the prohibition and elimination of nuclear weapons. Our call was first driven by the unspeakable suffering caused by the atomic bombs in Hiroshima and Nagasaki, which the ICRC and the Japanese Red Cross witnessed first-hand while attempting to bring relief to the dying and injured. The nuclear blasts had wiped out these cities, instantly killing tens of thousands of people, obliterating medical facilities, and leaving behind appalling conditions for survivors. Tens of thousands more died in the following years due to radiation poisoning. And seven decades on, we still bear witness to the long-term effects of nuclear weapons, as Japanese Red Cross hospitals continue to treat many thousands of victims of cancers caused by radiation exposure. The International Red Cross and Red Crescent Movement’s call to prohibit and eliminate nuclear weapons has also been guided by the fact that we would be unable to provide any meaningful humanitarian response in the event of the use of nuclear weapons. The reality is that if a nuclear weapon were to detonate in or near a populated area, there would be an overwhelming number of people in need of treatment, while most of the local medical facilities would be destroyed. Assistance providers would also face serious risks associated with exposure to ionizing radiation. The ICRC’s own studies, and those of UN agencies, have found that in most countries and at the international level, there is little capacity and no realistic or coordinated plan to deal with these tremendous challenges. Our Movement has also expressed deep concern at the increasing risks of use of nuclear weapons by intent, miscalculation or accident1. Nuclear weapon States are modernizing their arsenals, developing new kinds of nuclear weapons, and making them easier to use. Military incidents involving nuclear-armed States are occurring with disturbing frequency. At the same time, we see previous restraints steadily falling away, and a deeply concerning erosion of the international framework governing nuclear disarmament and arms control. The horrific immediate and long-term consequences of nuclear weapons, some of which are described above, can hardly be reconciled with the fundamental rules of international humanitarian law that bind all States. On this basis, in 2011, our Movement appealed to all 1 See most recently: Nuclear Weapons: Averting a Global Nuclear Catastrophe, Appeal by Peter Maurer, President of the ICRC, 23 April 2018 (https://www.icrc.org/en/document/nuclear-weapons-averting-global- catastrophe). 2 http://www.icrc.org https://www.icrc.org/en/document/nuclear-weapons-averting-global- States to ensure that these weapons are never again used and are eliminated through a legally binding international agreement, based on their existing obligations and commitments. Our Movement has therefore welcomed and called on all States to promptly sign, ratify or accede to, and faithfully implement the 2017 Treaty on the Prohibition o f Nuclear Weapons (TPNW) and other key nuclear disarmament and non-proliferation weapons agreements.2 A large number of States, including the 122 States that adopted the Treaty and some others, are currently considering whether to join the 80 States that have already signed and 34 that have ratified or otherwise acceded to the TPNW. 1. Defense with weapons that are incompatible with international humanitarian law is never an option. A number of critics of the TPNW cite the existing international security environment or current/potential membership in nuclear weapon-based security arrangements as cause for remaining outside the treaty. This can hardly be reconciled with the recognition by all States Parties to the Treaty on the Non-proliferation of Nuclear Weapons (NPT) in 2010 of the "catastrophic humanitarian consequences of any use of nuclear weapons", with States’ commitment in the NPT 2010 Action Plan to reduce the role of nuclear weapons in security policies” and the need to comply with international humanitarian law (IHL). Citing security conditions or “security concerns” as justification for use or threat of use of a weapon the use of which is generally seen as illegal undermines the requirement that States respect IHL in all situations of conflict. It also provides an incentive for other States, many facing immediate security threats, to seek nuclear weapons and/or participation in nuclear alliances for “self- defence” purposes. The argument would thereby justify nuclear proliferation. 2. The best way to safeguard the NPT is to implement it. Many critics have expressed concern about the impact of the TPNW on the NPT. Yet the TPNW explicitly affirms that the NPT is “the cornerstone of the nuclear disarmament and non- proliferation regime” and that its “full and effective implementation” has “a vital role to play in promoting international peace and security”. The TPNW complements and supports the NPT’s nuclear disarmament and non-proliferation objectives. Indeed, the TPNW’s clear and comprehensive prohibition of nuclear weapons creates a further disincentive for the proliferation of nuclear weapons, and represents a concrete step towards implementing the NPT's Article VI obligation to pursue negotiations on effective measures for nuclear disarmament. Concerns about safeguarding the NPT as the cornerstone of nuclear disarmament efforts should focus on ensuring the full and effective implementation of its article VI obligations and, in particular, the far-reaching disarmament commitments undertaken in the Action Plan of the 2010 NPT Review Conference. 2 Council of Delegates resolution CD/17/R4 “Working towards the elimination of nuclear weapons”, adopted by consensus. 3 The absence of an obligation on States Parties to the TPNW to accept safeguards3 of the lAEA's Additional Protocol is often cited as a weakness of the Treaty. Yet this perceived weakness also exists under the NPT. It is also important to note that the TPNW foresees the future adoption by States Parties of verification agreements with States that possess nuclear weapons as well as other “measures for the verified, time-bound and irreversible elimination of nuclear-weapon programmes, including additional protocols to this Treaty” . In this regard, its provisions are stronger than those of the 1972 Biological and Toxin Weapons Convention that still has neither verification provisions nor commitments to develop them. Yet it has attracted 183 State Parties. 3. National vs human security: a false dilemma. All States face their own security concerns. Those that negotiated, adopted, signed and ratified the TPNW face the same unstable international security environment as others. Some are also in security partnerships or alliances with nuclear weapon States or face immediate security threats. Yet most countries see the continuing existence of nuclear weapons as a major source of insecurity for their populations and for future generations, and view the past failure to fulfil nuclear disarmament obligations as a driver of current nuclear proliferation challenges, interstate confrontations and the increasing risk of catastrophic conflict. 4. Concerns about impact of the TPNW, but where is an alternative strategy? Critics of the TPNW offer valid but unanswerable questions about the impact of the TPNW, over time, in promoting nuclear disarmament. Some suggest that adherence to the TPNW is divisive and undermines the unity of purpose needed to achieve the objective of nuclear disarmament. This misrepresents the essential character of the Treaty - namely its moral and legal stance against nuclear weapons and against a potential global nuclear conflagration that could impact all human beings and societies. It establishes a new global norm of international humanitarian and disarmament law that nuclear weapons are not only morally unacceptable but also illegal. Regardless of the time frame one believes is needed to achieve nuclear disarmament, an unambiguous norm establishing the illegality of nuclear weapons will be needed. The TPNW provides this clarity and a vision for all States of the end-state towards which they must move. The disappointing historical record of implementation of nuclear disarmament obligations and commitments, recent threats of nuclear weapons use and ongoing modernization of arsenals suggest that nuclear weapon States have been unable to make lasting progress on long- standing nuclear disarmament undertakings. There is no reason to believe this will change without countervailing normative pressure from the international community. Many important States also took years, even decades, to adhere to the 1925 Geneva Protocol banning the use 3 “Safeguards” are a set of technical measures (e.g. on-site inspections, visits, and ongoing monitoring and evaluation) applied by the International Atomic Energy Agency (IAEA) pursuant to bilateral agreements concluded with States, that aim to ensure that the State is using nuclear material and technology solely for peaceful purposes, and to confirm that these are not being misused or diverted for nuclear weapons activities. There are two principal types of safeguards agreements administered by the IAEA: (1) the Comprehensive Safeguards Agreement (CSA), which is the minimum standard that all non-nuclear weapon NPT States Parties are required to adhere to pursuant to Article III of the NPT, and (2) the Additional Protocol (AP), which these States may voluntarily enter into and which contains safeguards that are more intrusive than those of the CSA. 4 of chemical and biological weapons. Yet the Protocol helped prevent the use of such weapons in most subsequent conflicts, even though not all major military powers had adhered to it. In light of the above, it is unfortunate that the TPNW is often criticized without providing an alternative strategy for addressing the current trend of steadily increasing risks of nuclear weapon use, for reversing modernization programs that are making nuclear weapons more useable or for time-bound implementation of the many crucial commitments made by State Parties to the NPT in its 2010 Action Plan and on many previous occasions. Criticism without alternatives simply reinforces an increasingly dangerous status quo. In reality, the TPNW's overall success and impact depend on the broadest possible adherence by a wide variety of States including neutral States, developing countries, regional leaders, those associated with nuclear weapon-based military arrangements and, eventually, by all States. The concrete evidence now available of the massive, indiscriminate and irreparable health, environmental and societal impacts of nuclear weapons and of their inconsistency with international humanitarian law should not be weighed against unpredictable security scenarios or questions about impacts of the TPNW that will only be answered by historians. Judgments about the TPNW should be based on the responsibility of all States to protect humanity from the scourge of a nuclear catastrophe that would add extraordinary levels of human suffering to current unmet needs, and on States’ long standing obligations under international humanitarian and disarmament law. +++ “We know now more than ever before that the risks are too high, the dangers too real. It is time for States, and all those in a position to influence them, to act with urgency and determination to bring the era o f nuclear weapons to an end." Peter Maurer, President o f the ICRC Statement to the Geneva diplomatic corps, 18 February 2015 5 ADVISORY SERVICE ON INTERNATIONAL HUMANITARIAN LAW 2017 Treaty on the Prohibition of Nuclear Weapons The Treaty on the Prohib ition o f Nuclear W eapons (TPNW ) is the first globally applicable m ultilateral agreem ent to com prehensively prohibit nuclear weapons. It is also the first to include provisions to help address the humanitarian consequences o f nuclear weapon use and testing. The Treaty com plem ents existing international agreem ents on nuclear weapons, in particular the Treaty on the Non-Proliferation o f Nuclear W eapons, the Com prehensive Nuclear-Test-Ban Treaty and agreem ents establishing nuclear-weapon-free zones. The TPN W was adopted by a United Nations dip lom atic conference on 7 July 2017 and opened for signature on 20 Septem ber 2017. It w ill enter into force once 50 States have notified the UN Secretary-G eneral tha t they agree to be bound by it. W hat is the purpose and scope o f the TPNW ? The TPN W was developed in response to long-standing concerns about the catastrophic hum anitarian consequences tha t any use o f nuclear weapons would entail. The Treaty recognizes tha t the use of nuclear weapons would be abhorrent to the principles of hum anity and the dictates of public conscience, and it com prehensively prohibits nuclear weapons on the basis of international hum anitarian law (IHL) - the body o f law that governs the use o f all weapons in arm ed conflict. It contains strong com m itm ents to assistance of the victim s of nuclear weapon use and testing, and to the rem ediation of contam inated environm ents. The T reaty also provides pathways fo r adherence by all States, including those that possess, or are associated with, nuclear weapons. A ren 't nuclear w eapons already prohibited under international law? In a 1996 A dvisory O pin ion,1 the International Court o f Justice concluded that the threat or use o f nuclear weapons would generally be contrary to the requirem ents o f the international law applicable in armed conflict, particularly the princip les and rules o f IHL. However, it left open the question of the lawfulness of threatening to use or using nuclear weapons in an extrem e situation o f self- defence in which the very survival of a State is at stake. Thus, the Court did not construe IHL to categorically prohibit the use o f nuclear weapons. In addition to the princip les and rules o f IHL, there are a num ber o f m ultilateral agreem ents tha t regulate nuclear weapons. However, none o f these establishes a com prehensive set o f prohibitions applicable at the global level. The Treaty on the Non-Proliferation o f Nuclear W eapons (NPT) is a cornerstone of international law governing nuclear weapons. It prohibits State Parties tha t do not a lready have nuclear weapons from developing or acquiring them. State Parties tha t possessed nuclear weapons at the tim e o f the NPT's adoption are allowed to retain the ir weapons but are barred from transferring them or helping others to develop or acquire them. A ll NPT States Parties are required to pursue negotiations on effective m easures to advance nuclear disarm am ent. A num ber o f treaties also establish parts o f the world as nuclear-weapon-free zones. These treaties generally contain 1 International Court o f Justice, “Legality o f the threat or use o f nuclear weapons”, Advisory Opinion, I.C.J. Reports 1996, 1996, pp. 226-267. prohibitions on a w ide range of nuclear-weapon-re lated activities tha t are applicable in tha t region. Such treaties are in force in Africa, Latin Am erica and the Caribbean, and Central and South-East Asia. Until now, nuclear w eapons had not been the subject o f a globally applicable prohibition treaty tha t all S tates could join. The adoption o f the TP N W has filled th is gap. W hat are the main obligations o f the TPNW ? Prohibition It is prohibited under any circum stances to use or threaten to use nuclear weapons (or other nuclear explosive devices). It is equally prohibited to develop, test, produce, manufacture, otherw ise acquire, possess or stockpile them (Art. 1.1 (a) and (d)). It is also prohibited fo r a State Party to transfer nuclear weapons, to receive the transfer o f or control over nuclear weapons or to allow the stationing, installation or deploym ent o f nuclear w eapons in its territory or at any place under its jurisd iction or control (Art. 1.1(b), (c) and(g )). Furthermore, it is prohibited to in any w ay assist, encourage or induce anyone to engage in any activ ity prohibited by the Treaty (Art. 1.1 (e)). Elimination ofnuclear weapons W ithin 30 days of becom ing a party to the Treaty, a State must subm it a declaration to the UN Secretary-G eneral indicating if: • it has previously possessed nuclear weapons, • it currently possesses such weapons, or • there are nuclear weapons o f another State in any place under its jurisd iction or control (Art. 2). The answers to these questions determ ine the next steps a State Party m ust take to ensure the elim ination o f nuclear weapons: • A State Party tha t did not possess nuclear w eapons on the date that the Treaty was adopted (7 July 2017) and has an existing safeguards agreem ent w ith the International A tom ic Energy Agency (IAEA) must maintain tha t agreem ent (Art. 3.1). If the State does not have safeguards ob ligations in force, it m ust conclude a com prehensive safeguards agreem ent w ith the IAEA. This agreem ent m ust enter into force w ith in 18 months from the date on which the State becam e a State Party (Art. 3.2). • A State Party that possessed nuclear w eapons after 7 Ju ly2017 and destroyed them prior to jo in ing the Treaty must cooperate w ith an international authority mandated to verify the irreversib le elim ination of the S tate's nuclear weapon programme. This authority w ill be designated by a m eeting o f S tates Parties. The State Party m ust also conclude a safeguards agreem ent w ith the IAEA (Art. 4.1). • A State tha t possesses or contro ls nuclear w eapons at the tim e that it becom es a State Party must im m ediate ly remove its weapons from operational status. It m ust also destroy them as soon as possible but not la ter than a deadline to be established by the first m eeting o f States Parties, in accordance w ith a legally binding, tim e-bound plan for the verified and irreversible elim ination o f the State Party's nuclear weapon program m e (Art. 4.2). The State Party m ust also conclude a safeguards agreem ent w ith the IAEA (Art. 4.3). • A State Party tha t has the nuclear w eapons o f another State on its territory (via stationing, installation or deploym ent) must ensure tha t such weapons are removed as soon as possible but not later than a deadline to be determ ined by the first meeting o f S tates Parties (Art. 4.4). Victim assistance and environmental remediation The T reaty recognizes the suffering and harm caused to the v ictim s o f nuclear weapon use and testing as well as the im pact on indigenous peoples and the environment. A State Party w ith individuals under its jurisd iction who are v ictim s o f nuclear weapon use or testing m ust provide them w ith m edical care, rehabilitation and psychological support, and provide fo r the ir socio-econom ic inclusion (Art. 6.1). S im ilarly, a State Party whose territory has been contam inated through nuclear weapon use or testing m ust take m easures towards the environm ental rem ediation o f affected areas (Art. 6.2). International assistance and cooperation States Parties m ust cooperate to facilita te the successful im plem entation o f the Treaty. Each State Party also has the right to seek and receive assistance to fulfil the Treaty's requirem ents (Art. 7.1 and 7.2). This cooperation is fortified by a requirem ent to assist States Parties affected by nuclear weapons. Each State Party in a position to do so m ust provide technical, material and financial assistance to States Parties that have been affected by nuclear weapon use or testing, to help them im plem ent the Treaty. They m ust also assist the v ictim s o f nuclear weapon use or testing (Art. 7.3 and 7.4). Assistance can be provided through the United Nations, international or regional organizations, non-governm ental organizations, the International Red Cross and Red Crescent M ovem ent or on a bilateral basis (Art. 7.5). W hat m ust a State do to join the T reaty? The Treaty rem ains open for signature indefinite ly and can be signed at UN headquarters in New York. The T reaty will enter into force 90 days after the deposit o f the 50th instrum ent o f ratification, acceptance, approval or accession with the UN Secretary-G eneral, the T reaty 's depositary. A State tha t w ishes to be bound by the Treaty m ust subm it an instrum ent o f ratification, acceptance, approval or accession to the U n Secretary- General. It w ill becom e binding upon tha t State 90 days later or, for the first 50 States tha t ratify, upon the entry into force o f the Treaty. W hat m ust States do to im plem ent the Treaty and how is com pliance ensured? Adoption of domestic measures Each State Party is required to take all necessary m easures to im plem ent the Treaty's provisions (Art. 5). This includes the adoption o f legal, adm in istra tive and other measures, including the imposition o f penal sanctions, to prevent and suppress any vio lations com m itted by persons, or on territory, under its jurisd iction or contro l (Art. 5.2). To th is end, depending on the State's dom estic law and procedure, specific dom estic legislation may need to be adopted and the regulations governing the armed forces amended. In addition, S tates m ust take m easures towards the elim ination o f nuclear weapons, the provision o f victim assistance, environm ental remediation, and international assistance and cooperation in accordance with the respective obligations under the Treaty (Art. 5). Meetings of States Parties The im plem entation o f the T reaty is monitored through m eetings o f S tates Parties. A firs t meeting o f States Parties w ill be convened w ith in one year o f the T reaty 's entry into force. These m eetings w ill assess the T reaty 's status and im plem entation and take decisions to advance the elim ination o f nuclear weapons (Art. 4). Add itional meetings will be held on a biennial basis, unless States Parties decide otherw ise (Art. 8.1 and 8.2). W hat support is availab le for jo in ing and im plem enting the TPNW ? The status o f signatures and ratifications o f the T P N W is available online: https://treaties.un.org/Pages/V i ew Deta ils.aspx?src=TR EATY& mtdsg no=XXVI- 9&chapter=26&clang= en . The ICRC has prepared publications to assist S tates in understanding the Treaty's requirements. This includes a ratification kit describ ing the procedures tha t a State must fo llow in order to sign, ratify, accept, approve or accede to the TPNW . The kit also contains model instrum ents o f signature and adherence for S tates to deposit w ith the UN Secretary- General. These m aterials can be found on the ICRC website (w w w .icrc.org). The ICRC is ready to assist States in im plem enting the TPNW , within the scope of its m andate and expertise in IHL. The ICRC's delegations throughout the world and its Departm ent o f International Law and Policy in G eneva can provide guidance on im plem enting the Treaty's requirem ents in dom estic legislation and any further inform ation or clarification that m ay be required. Assistance to im plem ent various aspects o f the T reaty may also be provided through National Red Cross and Red Crescent Societies and the International Federation of National Red Cross and Red Crescent Societies. A num ber o f other organizations, such as the United Nations O ffice for D isarm am ent Affairs, have also prepared im portant tools to help S tates understand and im plem ent the TPNW. 04.2018 https://treaties.un.org/Pages/Vi http://www.icrc.org