Image credit: Council of Europe. - Photo: 2023

The Right to Life: A Missing Perspective on Nuclear Arms

By Thalif Deen

UNITED NATIONS, 21 May 2023 (IDN) — The Lawyers Committee on Nuclear Policy (LCNP) has made a new submission to the UN Human Rights Council in Geneva in advance of its Universal Periodic Review (UPR) of the Russian Federation.

Currently, the tentative schedule of the UPR Working Group, with Russia on its agenda, is 13 November, with the adoption of the final report on 17 November.

In its submission, LCNP says Russia’s threats to use nuclear weapons violate the right to life and international humanitarian law.

Ariana N. Smith, Executive Director, Lawyers Committee on Nuclear Policy told IDN: “Our strategy with these submissions, however, is also part of a larger effort in disarmament advocacy.”

By highlighting the varied, yet complementary, laws that urge or require nuclear disarmament, “we hope to better publicize the strong international human rights law critique of nuclear weapons.”

“Through this, we aim to influence international human rights bodies to examine the human rights impacts of nuclear weapons—their development, testing, use, and threat of use—and to seek accountability from nuclear weapons states,” she pointed out.

These states continue to expand or modernize nuclear forces and regularly engage in provocative language, including illegally threatening nuclear use, contrary to their legal (and moral) obligations”, said Smith who is also Director, UN Office of the Berlin-based international Association of Lawyers against Nuclear Arms (IALANA)

She said additional colleagues are also taking a similar approach and making submissions highlighting the human rights issues with nuclear weapon states’ policies and practice, including the International Campaign to Abolish Nuclear Weapons (ICAN), the Women’s International League for Peace and Freedom (WILPF), and the World Future Council.

“We also joined in IALANA Germany’s submission to Germany’s UPR. Each of these submissions analyzed its subject’s nuclear weapon policy and practice for non/compliance with international human rights law,” said LCNP in a press release on 17 May.

“Previously, we have made submissions to the Council on the United States as well as similar submissions to the UN Human Rights Committee, the governing body of the International Covenant on Civil and Political Rights, on Russia, France, and the Democratic People’s Republic of Korea.

Projecting future outcomes, LCNP says “Looking toward multilateral venues where disarmament progress may still be made this year, the Preparatory Committee for the 2026 Review Conference of the Parties to the Nuclear Non-Proliferation Treaty, as well as the Working Group on further strengthening the review process of the NPT, will meet mid-summer in Vienna. We are preparing contributions to these meetings now”.

The upcoming PrepCom has its work cut out for it following on the heels of the 10th NPT Review Conference last August, which could not produce an agreed-upon outcome document amidst Russia’s hostilities in Ukraine and the deteriorating diplomatic disarmament environment.

Later this fall, the sessions of the UNs’ First Committee on Disarmament and International Security and the Second Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons take place in New York City.

According to LCNP, its submission primarily addresses new developments involving the Russian Federation since the last Universal Periodic Review (UPR) cycle, namely its illegal invasion of Ukraine and accompanying threats of use of nuclear weapons.

Smith said: “We’ve not received any direct response or seen visible action in response to our submissions from the Council or Committee yet unfortunately”.

“Action we’d ideally like to see in response to these submissions would be, for example, in the Council, inclusion of our recommendations in the summary report prepared by OHCHR on the country’s UPR.”

With submissions to the Human Rights Committee/ICCPR—and, in the future, additional human rights treaty bodies—one goal is that our proposed questions and recommendations will be raised by the Committee directly to the state under review.

Meanwhile, the LCNP submission focuses on the Russian Federation’s (1) specific violations of the right to life, as codified in the International Covenant on Civil and Political Rights (ICCPR), through recent threats of nuclear use issued from Russian high-level leaders including its head of state; and (2) applicable violations of international humanitarian law through these same threats of nuclear use as well as actual uses of conventional military force by the Russian Federation in the war in Ukraine.

Other relevant legal instruments considered include the UN Charter and the Rome Statute.

In paragraph 66 of General Comment No. 36 on the right to life set out in Article 6 of the 1 ICCPR, the United Nations Human Rights Committee found: The threat or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate in effect and are of a nature to cause destruction of human life on a catastrophic scale, is incompatible with respect for the right to life and may amount to a crime under international law.

States parties must take all necessary measures to stop the proliferation of weapons of mass destruction, including measures to prevent their acquisition by non-state actors, to refrain from developing, producing, testing, acquiring, stockpiling, selling, transferring, and using them, to destroy existing stockpiles, and to take adequate measures of protection against accidental use, all in accordance with their international obligations.

They must also respect their international obligations to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective international control, and to afford adequate reparation to victims whose right to life has been or is being adversely affected by the testing or use of weapons of mass destruction, in accordance with principles of international responsibility. 

Under the ICCPR, Article 4(2), the right to life is non-derogable, to be observed in all circumstances, even in the event of a “public emergency which threatens the life of the nation.”

The Russian Federation is a state party to the ICCPR and as a result is obligated to implement its provisions in good faith according to Article 26 of the 1969 Vienna Convention on the Law of Treaties.  

Even if the General Comment is not legally binding as such, it is considered the Committee’s authentic interpretation of Article 6 and the relevant practice thereto.

In the last UPR cycle, one recommendation issued to the Russian Federation, under Theme Cooperation with treaty bodies, called on Russia to “continue to cooperate constructively with all treaty bodies and United Nations mechanisms by participating actively in the work of the Human Rights Council at the United Nations.”

The official military strategy of the Russian Federation, published in December 2014 and revised in 2021, states that the Russian Federation “shall reserve for itself the right to employ nuclear weapons in response to the use against it and/or its allies of nuclear and other kinds of weapons of mass destruction, as well as in the case of aggression against the Russian Federation with use of conventional weapons when the state’s very existence has been threatened.”

Analysts have commented that statements made by Russian military officials and articles in Russian military journals envisage use of nuclear arms in circumstances going beyond those identified in the military strategy, for example first use of nuclear arms in a regional conflict.

On the day of the Russian invasion of Ukraine, 24 February 2022, President Vladimir Putin said: “[F]or those who may be tempted to interfere in these developments from the outside, … they must know that Russia will respond immediately, and the consequences will be such as you have never seen in your entire history.”

This is a legally cognizable threat, both credible and specific in form. It expresses a readiness to resort to force should addressee states “interfere” in eight Russian military operations in Ukraine. [IDN-InDepthNews]

Image credit: Council of Europe.

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