by Alyn Ware*
On October 30, 2018, the UN Human Rights Committee adopted a new General comment No. 36 (2018) on article 6 of the International Covenant on Civil and Political Rights (ICCPR), on the right to life, which concludes that the threat or use of nuclear weapons is incompatible with the Right to Life and may amount to a crime under international law.
According to the General Comment (paragraph 3), the Right to Life, as codified in Article 6 of the Covenant, is an ‘entitlement of individuals to be free from acts and omissions that are intended or may be expected to cause their unnatural or premature death, as well as to enjoy a life with dignity’, and that this is a ‘supreme right from which no derogation is permitted even in situations of armed conflict and other public emergencies which threatens the life of the nation.’ This right is ‘the prerequisite for the enjoyment of all other human rights.’
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
Article 6 (para 1) of the International Covenant on Civil and Political Rights.
The Human Rights Committee, in formulating General Comment 36, enunciates acts or omissions by States parties to the ICCPR that would violate this right. The General Comment replaces earlier Comments on the Right to Life adopted by the Committee in 1982 and 1984. (see Human Rights Committee adopts General Comment on the right to life).
In addition to its conclusion that the threat or use of nuclear weapons and other weapons of mass destruction (WMD) are a violation of the Right to Life, General Comment 36 affirms an obligation of States Parties to the Covenant to end the production of WMD, destroy existing stockpiles and provide adequate reparation to victims of their testing or use.
‘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.’
Paragraph 66, General Comment No 36 on article 6 of the ICCPR
The new General Comment is extremely significant because of the comprehensive legal condemnation it provides on threat, use, production and possession of nuclear weapons and other WMD, and because the States Parties to the Covenant include most of the nuclear armed States and their allies under extended nuclear deterrence doctrines. (See Contribution of the General Comment to nuclear abolition below).
‘Perhaps the main value of this from a strictly legal point of view, lies in the fact that General Comments of UN human rights bodies are generally considered as authentic interpretations of the relevant treaty provisions and, as a result, of the duties of States Parties deriving from those instruments,’ said Dr Daniel Rietiker, President of the Association of Swiss Lawyers for Nuclear Disarmament. ‘Under certain circumstances, they might even reflect customary international law or, at least, as State practice, contribute to the establishment of such law. It is noteworthy to mention, in this regard, that all States that are recognized as possessing nuclear weapons under the NPT are Parties to the ICCPR, with the exception of China.’
Deliberations and government positions
During the deliberations the United States attempted to undermine the mandate of the Human Rights Committee to adopt this General Comment, by arguing that ‘States Parties to the ICCPR have not given authority to the Human Rights Committee or to any other entity to fashion or otherwise determine their treaty obligations,’ and that ‘many of the Committee’s more ambitious opinions appear to reflect an attempt to fill what it may consider to be gaps in the reach and coverage of the Covenant… If one believes there to be gaps in a treaty, the proper approach to take under international treaty law is to amend the treaty to fill those gaps. It is for each Party to decide for itself, as an exercise of its sovereignty, whether it will be bound by what are, in fact, new treaty obligations.’
See Observations of the United States of America On the Human Rights Committee’s Draft General Comment No. 36 On Article 6 – Right to Life.
However, the US argument had little weight or influence in light of Article 40 (4) of the International Covenant on Civil and Political Rights which authorizes the committee to make General Comments, and in light of the committee’s long history of making such comments.
The Committee takes its authority for these documents [general comments] from article 40, paragraph 4, of the Covenant, which provides that it may transmit “such general comments as it may consider appropriate” to all States parties… A general comment [now] reads as a general statement of law that expresses the Committee’s conceptual understanding of the content of a particular provision, and as such is a very useful guide to the normative substance of international human rights obligations.
Civil and Political Rights:The Human Rights Committee, Factsheet of the Office of the United Nations High Commissioner for Human Rights
Russia similarly argued that the issue of regulation of weapons, including weapons of mass destruction, fell beyond the competence of the Human Rights Committee. They are ‘regulated by the norms of a number of international legal documents having a certain circle of participants. In this regard, the automatic dissemination of their provisions and related obligations to States parties to the Covenant is unlawful.’
Other nuclear-armed States the UK and France, did not challenge the mandate of the Human Rights Committee to adopt General Comments, but opposed some of its draft conclusions prior to adoption. The UK stated, for example, that it ‘does not support the comment that “the [threat] or use of nuclear weapons are incompatible with respect for the right to life and may amount to a crime under international law”. However, the UK did accept that ‘the indiscriminate use of nuclear weapons is incompatible with Article 6 of the Covenant”. In addition, the UK recognized that it had an obligation for reparation, but that ‘the UK will only pay reparation to those affected by the testing or use of nuclear weapons if it has a legal liability to do so, and where causation and proof of loss have been demonstrated.’
France argued that the application of the Right to Life during armed conflict is defined (and limited) by the provisions of International Humanitarian Law, which France contends does not categorically prohibit the threat or use of nuclear weapons.
A number of governments, academics and NGOs provided counter arguments to those of the nuclear armed States.
The government of Brazil, for example, cited International Court of Justice Judge Cançado Trindade, who argued that in light of its lingering effects on the human health and the environment ‘…the use of nuclear weapons violates the right to life (and the right to health) of “not only people currently living, but also of the unborn, of those to be born, of subsequent generations.’ Brazil added that ‘In this context, security doctrines which are based upon the threat of ending life on earth have no place on a rules-based international order and should be shunned. The International Court of Justice already stated, in its 1996 Advisory Opinion, that the use and threat of use of nuclear weapons are generally contrary to international law. The illegality of these weapons has been further reinforced by the adoption, on 7th of July, of the Treaty on the Prohibition of Nuclear Weapons, with the support of two thirds of the United Nations membership.’
The International Association of Lawyers Against Nuclear Arms argued that both the threat and use of nuclear weapons are ‘incompatible with respect for the right to life’, and cited as legal support the International Court of Justice Advisory Opinion of 1996, UN Charter Article 2 (4) and Article 51 § 2 of Additional Protocol I to the 1949 Geneva Conventions.
The Human Rights Committee was not persuaded by the arguments of the nuclear-armed States. As such the Committee maintained the draft language on WMD in the final adopted text of the General Comment.
Contribution of the General Comment to nuclear abolition
The statements from the nuclear-armed States with regard to nuclear weapons indicate they will most likely continue to reject the nuclear weapons-related obligations clarified in the new comment. Regardless, the new General Comment makes at least five very important contributions to nuclear disarmament:
Firstly, the General Comment makes strong links between human rights law and nuclear non-use and disarmament obligations. In general, nuclear constraint and disarmament issues and initiatives are considered primarily by disarmament experts, practitioners and campaigners. The human rights community has not generally paid much attention. This comment builds a bridge between these communities and helps broaden and strengthen the nuclear abolition movement by engaging the human rights movement.
The bridge between arms control and human rights should now be used by civil society in its efforts against nuclear weapons before the Human Rights Committee. The Human Rights Committee, however, is only one UN body dealing with human rights within a large machinery covering very different rights and areas. NGOs fighting for a world without nuclear weapons and the rights of victims of those weapons should now use other fora, e.g. those dealing with rights of women, children or indigenous peoples, all particularly vulnerable to nuclear weapons, in order to make their voices heard.
– Dr Daniel Rietiker, President of the Association of Swiss Lawyers for Nuclear Disarmament
Secondly, the General Comment highlights obligations of the nuclear armed and allied States rooted in Article VI of the NPT, UN resolutions and other international law. In this respect, the comment reinforces the 1996 International Court of Justice Advisory Opinion on the Legality of the Threat and Use of Nuclear Weapons, and strengthens a customary norm applicable to all states against the threat or use of nuclear weapons and the legal obligation to achieve nuclear disarmament.
Thirdly, the General Comment demonstrates an approach to advancing nuclear disarmament and non-use obligations by bringing them into related treaties to which at least some of the nuclear armed States and their allies are already parties. One such treaty in which this approach is being tried is the Rome Statute on the International Criminal Court.
Fourthly, in affirming the obligation 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,’ the General Comment gives support to humanitarian initiatives relating to WMD and to victim assistance. These aspects are reflected strongly in the Treaty on the Prohibition of Nuclear Weapons (Article 6), but are absent in the Non-Proliferation Treaty, Chemical Weapons Convention, Comprehensive Nuclear Test Ban Treaty and Biological Weapons Convention.
Finally, the General Comment parallels and complements elements of existing nuclear arms control and disarmament agreements providing additional impetus to their implementation.
Relationship to arms control and disarmament treaties including the ban treaty
The Committee referenced (in footnote 273) the Treaty on the Prohibition of Nuclear Weapons (TPNW) – as well as the Non-Proliferation Treaty (NPT), Comprehensive Nuclear Test Ban Treaty, Chemical Weapons Convention and Biological Weapons Convention – as important treaties contributing to obligations on the non-proliferation and disarmament of WMD.
With regard to nuclear weapons, the Committee referred to the 1996 International Court of Justice Advisory opinion, in affirming that ‘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,’ (ICJ reference is footnote 274). This reinforces the customary nature of the nuclear disarmament obligation, i.e. its application regardless of whether or not a State is party to the NPT or the TPNW.
The Human Right Committee rejected the proposal of the Women’s International League for Peace and Freedom that the General Comment require ‘States parties [of the ICCPR] to support the Treaty on the Prohibition of Nuclear Weapons.’ Nor did it call on States not parties to other related treaties (NPT, CTBT…) to join them. In this, the Committee reflected the general understanding that States should be free to join, or remain outside of, treaties as they so choose.
However, in reflecting key elements of the TPNW, the General Comment provides an example of how to bring these elements to bear on nuclear armed and allied States, none of which have joined the TPNW or are likely to do so in the near future.
Drafting and adoption of the General Comment
The drafting and adoption of the General Comment took three years, a year longer than originally expected, due to the high level of interest from governments, academia and NGOs – and due to the fact that it dealt with a number of contentious issues, including abortion, assisted suicide, non-lethal weapons, protection of sexual minorities from violence, asylum, death penalty, weapons of mass destruction and responsibility for reparations.
A few of the NGOs involved in the process, in particular the International Association of Lawyers Against Nuclear Arms (IALANA) and its Swiss Affiliate the Swiss Lawyers for Nuclear Disarmament (SAFNA), were specifically engaged in the deliberations on nuclear weapons and other weapons of mass destruction.
In submissions and statements to the Human Rights Committee, IALANA and SAFNA argued that the General Comment should:
- condemn both the use and the threat to use nuclear weapons and other WMD, as being incompatible with the right to life;
- affirm the obligation to achieve complete nuclear disarmament, in accordance with Article VI of the Nuclear Non-Proliferation Treaty (NPT) and customary international law;
- Include the obligation to afford adequate reparation to victims of the testing or use of WMD, in line with the growing recognition of the rights of such victims in various treaties including the Cluster Munitions Convention, Landmines Treaty and the Treaty on the Prohibition of Nuclear Weapons (Note that the TPNW focuses more on victim assistance by states parties in which victims reside than on the responsibility of states that caused the harm.)
See Threat or Use of Weapons of Mass Destruction and the Right to Life: Follow-up Submissions to UN Human Rights Committee, October 5, 2017 and Threat or Use of Weapons of Mass Destruction and the Right to Life, Comments and Proposal, 7 September 2016.
The inclusion of these three elements in the 2018 General Comment reflects a significant step forward from the 1984 General Comment which affirmed that ‘The production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity.’
‘Reflecting the times, the 1984 General Comment was a clarion call to recognize and eliminate the incredible dangers posed by nuclear weapons. In contrast, building on legal developments since 1984, the 2018 General Comment is a sober legal assessment, beginning with the unambiguous statement that the threat or use of nuclear weapons is incompatible with the right to life.’
– Dr John Burroughs, Director, UN Office of International Association of Lawyers Against Nuclear Arms
For more about the development of the WMD paragraph in the General Comment and its significance, see Threat and use of nuclear weapons contrary to right to life, says UN Human Rights Committee, a post by Daniel Rietiker, President of SAFNA.
* Alyn Ware is the International Representative of Aotearoa Lawyers for Peace (the New Zealand affiliate of the International Association of Lawyers Against Nuclear Arms), a Councilor of the World Future Council and the Global Coordinator of Parliamentarians for Nuclear Nonproliferation and Disarmament.
Top photo: A meeting of the Human Rights Committee at the United Nations in Geneva. Credit: Australian Human Rights Commission