Humanization of Arms Control · Paving the Way for a World Free of Nuclear Weapons (Routledge Research in the Law of Armed Conflict) by Rietiker, Daniel -- Read -- Imperial Library of Trantor

Index

Cover Half Title Title Page Copyright Page Dedication Table of Contents Table of cases Abbreviations Acknowledgements Foreword General introduction Part I Humanization of arms control treaties dealing with non-nuclear weapons

1 Introductory remarks

A. Scope of Part I B. Recent developments in the international legal order favoring the conclusion of the treaties examined in the first Part 8

1. Permeability of the borders between the law applicable in peacetime and in armed conflict 2. A new approach to international security: “Human security” as a linkage between security and human rights 3. A new approach to development: “Human development”

2 The preparatory history of the relevant treaties, and in particular the role played by civil society

A. Genesis of the CWC B. Genesis of the Ottawa and Oslo Conventions

1. The Ottawa Process 2. The Oslo Process

C. Genesis of the ATT D. Conclusions to the chapter

3 The contribution of the relevant treaties to the protection of the human being

A. Prohibition of “using” the relevant weapons imposed by the CWC, and the Ottawa and Oslo Conventions

1. Introduction 2. Prohibition of “using” the relevant weapons in the light of humanitarian law

a) General clause prohibiting use of the relevant weapons (Article I of the Conventions) b) Relevance of the Geneva Protocol and the Biological Weapons Convention (BWC) in the CWC c) Relevance of the principles of humanitarian law in the Ottawa and Oslo Conventions

3. Prohibition of using the relevant weapons in light of human rights law

a) Prohibition of using these weapons “never under any circumstances” in the CWC and the Ottawa and Oslo Conventions b) The human-rights aspects of the Ottawa and Oslo Conventions

B. The other legal duties (arms control, non-proliferation, and disarmament obligations) under the CWC and the Ottawa and Oslo Conventions C. The ATT

1. Raison d’être of the ATT 2. Contribution to the protection of the human being through absolute prohibitions of transfers of arms that might be used to commit certain international crimes (Article 6 ATT) 3. Contribution to the protection of the human being through export assessments (Article 7 ATT)

a) Relevance of the ATT for the respect of international humanitarian law b) Relevance of the ATT for the respect of human rights law c) Need for a gender- and age-sensitive assessment of human rights violations (Article 7 § 4 ATT)

D. Conclusions

4 Implementation and verification of the relevant treaties by human rights actors and institutions

A. Introductory remarks B. Civil society

1. Implementation of the CWC: Civil society assisting the OPCW 2. The Ottawa and Oslo Conventions: Decisive role played by civil society 3. The ATT 4. Conclusions

C. Role of the European Court of Human Rights (ECtHR) and the Committee of Ministers of the Council of Europe

1. The ECtHR and the execution of its final judgments under the supervision of the Committee of Ministers 2. Cases involving anti-personnel mines

a) Pasa and Erkan Erol v. Turkey b) Albekov and Others v. Russia

3. Cases involving chemicals

a) Finogenov v. Russia: Legality of “incapacitating chemical agents” b) Cases involving riot control agents, in particular directed against Turkey

4. Case involving cluster munitions: Behrami and Behrami v. France 5. Conclusions

D. International Criminal Court (ICC)

1. Introductory remarks 2. Prosecution for crimes committed by the use of chemical weapons, with particular attention to the potential role of the ICC in the war in Syria 3. Potential prosecutions for crimes committed by use of anti-personnel or cluster munitions 4. Conclusions

Part I Conclusions

Part II Humanization of arms control treaties dealing with nuclear weapons

5 Scope of Part II

A. Treaty on the Non-Proliferation of Nuclear Weapons (NPT) B. Treaties banning nuclear testing C. Treaties on the denuclearization of certain regions (nuclear-weapon-free zones, NWFZ)

6 The preparatory history of the relevant treaties, and in particular the role played by civil society

A. Origins of the antinuclear movement B. Treaties banning nuclear weapons tests

1. Lobbying in favor of the PTBT (1963) 2. The long way toward the CTBT

a) Introductory remarks b) Greenpeace (direct, non-violent activism) c) The “Nevada-Semipalatinsk” movement (grassroots movement) d) Assessment

C. Treaties on the denuclearization of certain regions (NWFZ)

1. In general 2. The example of the Rarotonga Treaty

D. Conclusion

7 Assessing the legality of nuclear weapons in light of humanitarian and human rights law

A. Introduction B. The prohibition of using nuclear weapons in the light of humanitarian law

1. The ICJ’s Advisory Opinion (1996) and the special features of nuclear weapons 2. The need to challenge the ICJ’s conclusions in light of the humanitarian approach to nuclear weapons

a) Early expressions of a humanitarian approach to nuclear weapons b) Recent developments, in particular the “humanitarian pledge,” the ICRC’s firm position on nuclear weapons, and the Marshall Islands cases before the ICJ c) New evidence for the destructive power of nuclear weapons and for the inability to assist the victims of nuclear explosions d) The particular question of the legality of low-yield and earth-penetrating nuclear weapons

3. A legal update: Toward a presumption of unlawfulness of nuclear weapons under international humanitarian law

C. The prohibition of using nuclear weapons in light of human rights law

1. Preliminary observations

a) The added value of international human rights law for the use of nuclear weapons b) Applicability of human rights law during armed conflict c) Extraterritorial application of human rights treaties in the context of the use of nuclear weapons

2. The most important civil and political rights likely to be affected by nuclear attacks

a) Right to life b) Prohibition of genocide c) The prohibition of torture, and degrading and inhuman treatment d) Right to respect for private life and home, and right to property e) Non-exhaustive list of potential human rights violations: Use of nuclear weapons as a total denial of all basic human rights

3. Duty to respect human rights after a nuclear explosion

a) Positive obligation of States to protect life and dignity after a nuclear accident or catastrophe b) Right to health in the aftermath of the Fukushima accident (2011)

4. The scenario of a limited (regional) nuclear war and its impact on the global enjoyment of economic, social, and cultural rights

a) Impact of a regional nuclear war on global development, health, and environment b) Introductory remarks on economic, social, and cultural rights c) The right to development and the right not to be discriminated against d) The rights to the highest standard of health and to a healthy environment e) The right to an adequate standard of living, in particular the rights to food and to water

5. Human rights of particularly vulnerable groups, assessed in light of the harm caused by nuclear testing and nuclear power plant accidents

a) Introduction b) Indigenous peoples’ rights, assessed in particular in light of their special relationship with their land c) Women’s rights, in particular their reproductive rights d) Children’s rights

6. Conclusions of the present chapter, in particular in light of the rights of future generations

D. The other legal duties (arms control, non-proliferation, and disarmament obligations) assessed in light of humanitarian and human rights law

1. Introduction 2. The limitations to the development, manufacture, production, acquisition, possession, and threat of use of nuclear weapons imposed by humanitarian law 3. The limitations imposed by human rights law

a) Development, manufacture, production, acquisition, and possession in light of the right to development b) Possession and threat of nuclear weapons as potential human rights violations c) Positive obligation of States to prevent accidental nuclear explosions and those caused by terrorists d) The right to receive information about the risks inherent in the possession of nuclear weapons

8 Implementation and verification of the relevant treaties by human rights actors and institutions

A. Introductory remarks B. Civil society: The example of the NPT

1. General observations 2. The contribution of civil society in implementing Article VI NPT

a) The growing importance of Article VI NPT b) The structure of the civil society involved in the NPT review process and the OEWG, including the survivors and victims of Hiroshima and Nagasaki (“Hibakusha”) c) From the limited but growing role of the civil society in the NPT review process to the democratic, participatory OEWG d) Specific proposals submitted by civil society on the implementation of Article VI NPT

3. Conclusion

C. Potential prosecution of use of nuclear weapons by the ICC

1. Introduction 2. The use of nuclear weapons as a potential war crime

a) The different war crime provisions relevant to the use of nuclear weapons b) The invalidity of the “interpretative declaration” of France of June 9, 2000

3. The use of nuclear weapons as a crime against humanity 4. The use of nuclear weapons as genocide 5. Conclusions

General conclusions and proposals for progress toward a world without nuclear weapons Bibliography Index

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