The Vancouver Declaration: the “absolute prohibition of an absolute evil”

The international community has long understood nuclear disarmament as a daunting security and political challenge, but it has been unforgivably slow in fully facing the profound legal questions raised by the possession and threatened use of nuclear weapons. Now, a new “Vancouver Declaration” brings clarity and urgency to the issue through a succinct articulation of the legal principles and laws that make nuclear disarmament not only an urgent political objective and moral imperative, but also an unambiguous legal requirement.  

The Vancouver Declaration,[i] the joint initiative of The Simons Foundation of Vancouver and the International Association of Lawyers Against Nuclear Arms, provides the kinds of detail and specifics that bring both clarity and urgency to our understanding of the ways in which nuclear weapons violate fundamental and well-established global legal principles. In the process, the declaration helps the international disarmament community to understand that “the law has a pivotal role to play in their elimination.”

The Vancouver Declaration has been endorsed by some of the most distinguished global experts in international law, notably: Christopher G. Weeramantry, former Vice President of the International Court of Justice (ICJ) and current President of IALANA; Mohammed Bedjaoui, who was ICJ President in 1996 when it handed down its advisory opinion on nuclear weapons; Louise Doswald-Beck, Professor of International Law, Graduate Institute of International and Development Studies, Geneva, and co-author of a major International Committee of the Red Cross study of international humanitarian law; Ved Nanda, Evans University Professor, Nanda Center for International and Comparative Law, University of Denver Sturm College of Law.

Noted disarmament experts to sign the declaration include Jayantha Dhanapala, former UN Under-Secretary-General for Disarmament Affairs; and Gareth Evans, QC, former Foreign Minister of Australia who recently served as Co-Chair of the International Commission on Nuclear Non-proliferation and Disarmament.[ii]

The statement confirms that all weapons of mass destruction “are, by definition, contrary to the fundamental rules of international humanitarian law forbidding the infliction of indiscriminate harm and unnecessary suffering.” That judgement, it goes on to say, applies especially to nuclear weapons because of “their uncontrollable blast, heat, and radiation effects.”

The statement concludes: “An ‘absolute evil,’ as the President of the ICJ called nuclear weapons, requires an absolute prohibition.”

The declaration includes an especially helpful annex that reviews “the law of nuclear weapons.” The declaration and annex are available here. Some excerpts from the Annex and Declaration follow:

From the Annex:

“Use of nuclear weapons in response to a prior nuclear attack cannot be justified as a reprisal. The immunity of non-combatants to attack in all circumstances is codified in widely ratified Geneva treaty law and in the Rome Statute of the International Criminal Court, which provides inter alia that an attack directed against a civilian population is a crime against humanity.

“That nuclear weapons have not been detonated in war since World War II contributes to the formation of a customary prohibition on use. Further to this end, in 2010 the United States declared that “it is in the US interest and that of all other nations that the nearly 65-year record of nuclear non-use be extended forever,” and Presidents Obama and Singh also jointly stated their support for “strengthening the six decade-old international norm of non-use of nuclear weapons.”

“Threat as well as use of nuclear weapons is barred by law. As the ICJ made clear, it is unlawful to threaten an attack if the attack itself would be unlawful. This rule renders unlawful two types of threat: specific signals of intent to use nuclear weapons if demands, whether lawful or not, are not met; and general policies (“deterrence”) declaring a readiness to resort to nuclear weapons when vital interests are at stake. The two types come together in standing doctrines and capabilities of nuclear attack, pre-emptive or responsive, in rapid reaction to an imminent or actual nuclear attack.

“The unlawfulness of threat and use of nuclear weapons reinforces the norm of non-possession. The NPT prohibits acquisition of nuclear weapons by the vast majority of states, and there is a universal obligation, declared by the ICJ and based in the NPT and other law, of achieving their elimination through good-faith negotiation. It cannot be lawful to continue indefinitely to possess weapons which are unlawful to use or threaten to use, are already banned for most states, and are subject to an obligation of elimination.

“Ongoing possession by a few countries of weapons whose threat or use is contrary to humanitarian law undermines that law, which is essential to limiting the effects of armed conflicts, large and small, around the world. Together with the two-tier systems of the NPT and the UN Security Council, such a discriminatory approach erodes international law more generally; its rules should apply equally to all states. And reliance on “deterrence” as an international security mechanism is far removed from the world envisaged by the UN Charter in which threat or use of force is the exception, not the rule.”

Back to the Declaration

“The ICJ’s declaration that nuclear weapons are subject to international humanitarian law was affirmed by the 2010 Nuclear Non-Proliferation Treaty (NPT) Review Conference. In its Final Document approved by all participating states, including the nuclear-weapon states, the Conference ‘expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons, and reaffirms the need for all states at all times to comply with applicable international law, including international humanitarian law.’

eregehr@uwaterloo.ca

Notes

[i] Available on the website of The Simons Foundation: http://www.thesimonsfoundation.ca/highlights/experts-declare-nuclear-weapons-contrary-international-humanitarian-law.

[ii] The full list of initial signatories can be viewed at: http://www.thesimonsfoundation.ca/resources/vancouver-declaration-law%E2%80%99s-imperative-urgent-achievement-nuclear-weapon-free-world.

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