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I.

NUCLEAR WEAPON STATES ARE OBLIGED TO DISARM AS A


CONSEQUENCE OF THEIR OBLIGATION UNDER INTERNATIONAL
ENVIRONMENTAL LAW

The environment is under daily threat and the use of nuclear weapons can
constitute a catastrophe for the environment.1 Evidences from several scientific
researches2 support the view that nuclear weapons pose serious threat of
environmental devastation. This being the case, it is imperative for NWS to
disarm in order to make sure that the environment is protected and their
obligations complied.

A. THE OBLIGATION TO PROTECT THE ENVIRONMENT IS


CUSTOMARY UNDER INTERNATIONAL LAW.

A. There is sufficient state practice.

The duty to protect the environment is a customary norm. 177 of the


world's 193 UN member nations recognize this through their constitution,
environmental legislation, court decisions, or ratification of international
agreements.3 Numerous treatises4 espousing this obligation are signed and ratified
by numerous states including both nuclear and non-nuclear weapon states. It is
also found in many international instruments such as the Stockholm Declaration5
and Rio Declaration.6

1
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I. C. J. Reports 1996 (I), 241.
2
Takahashi, H., Finsareta Hiroshima, Nagasaki: Bei kaku jikken to minkan bei keikaku.2012, Shinatei Zhoban; O.
B. Toon , A. Robock, and R. Turco, The Environmental Consequences of Nuclear War, Physics Today, vol. 61, No.
12, 2008, pp. 37-42;
3
Boyd, David R.The Constitutional Right to a Healthy Environment. The Environment Science and Policy for
Sustainable Development. Available at http://www.environmentmagazine.org/Archives/Back%20Issues/2012/July-
August%202012/constitutional-rights-full.html.; Binod Prasad Sharma. Constitutional Provisions Related to
Environment Conservation: A Study. Policy Brief. September 2010.
4
The Vienna Convention for the Protection of the Ozone Layer, Article 2; UNFCCC; CBD; Basel Convention on the
Control of Transboundary Movements of Hazardous Wastes and Their Disposal see also
5
Declaration of UN Conference on the Human Environment (hereinafter Stockholm Declaration), June 16, 1972,
Preambular, principle 26, 2161 UNTS 447; 38 ILM 517 (1999).
6
Rio Declaration on Environment and Development [, principle 4, principle 7 and principle 111]; See also 1994
Draft Declaration of Principles on Human Rights and the Environment, part 2 (5), part 4(21 & 22).
Protocol I of 1997 additional to the Geneva Conventions of 1949 applies
to international armed conflict and contains two specific provisions7 for the
protection of the environment.8

B. Existing state practice is coupled with opinion juris.

The ICJ stated that the States consent to and attitude towards the text of a
resolution evidence opinion juris.9 The abovementioned covenants and
declarations prove that there is already an expectation of compliance among
states, which together with ensuing practice establishes the obligation to protect
the environment as a customary norm.

B. THE USE OF NUCLEAR WEAPONS WOULD VIOLATE


CUSTOMARY INTERNATIONAL ENVIRONMENTAL LAW
PRINCIPLES.
a. It would violate the Prevention Principle

b. It would violate the No-Harm Principle

The principle of Sic Utere Tuo Ut Alienum Non Laedas,10 as embodied in many
international instruments11 and upheld by ICJ decisions in cases such as the Trail Smelter
arbitration12, Corfu Channel13, and Nuclear Tests Cases14 prohibits States from
conducting activities within their territories without due regard to the rights of other
States or for the protection of the environment. Similarly, it is also a principle of general
international law that a State which is responsible for the administration of territory is
under an obligation not to bring about changes in the conditions of the territory which
will cause irreparable damage to, or substantially prejudice, the existing or contingent
legal interest of another State in respect of that territory.15

7
Article 35 paragraph 3
8
1976 Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques.
ICRC. Advisory Service on International Humanitarian Law.
9
Military and Paramilitary Activities (Nicaragua v. USA), 1986 ICJ 14 at 97 (June 27).
10
One should use his own property in such a manner as not to injure that of another.
11
Stockholm Declaration, 16 June 1972, principle 21, UN Doc A/CONF.48/14/Rev1, 11 ILM
1416,; United Nations Conference on Environment and Development (hereinafter Rio Declaration)
14 June 1992 A/CONF.151/26 (Vol. I) Chapter I, Annex I
12
U.S. and Canada (1938/1941) 3 R.I.A.A. 1905
13
Assessment of Compensation, (United Kingdom v. Albania) 15 XII 49, ICJ, December 15,
1949
14
Nuclear Tests (Australia v. France; New Zealand v. France), Order of 22 June 1973, I. C. J. Reports 1973,
106 and 142.
15
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I. C. J. Reports
1992, 243244.
C. STATES ARE OBLIGED TO PROTECT THE ENVIRONMENT
EVEN IN TIMES OF WAR
It is widely recognized that environmental law treaties and principles
continue to operate even in times of armed conflict.16 This has been
impliedly recognized by the ICJ in its opinion in expressing that
environmental law indicates important factors that has to be considered in
the implementation of the rules applicable in armed conflict.17

a. The prohibition against causing widespread, long-term and severe


damage to the natural environment is a customary norm.
i. There is significant state practice.

There is significant state practice to the effect that the


prohibition against causing widespread18, longlasting19 or
severe20 effects on the natural environment as embodied in
Articles 35(3) and 55(1) of Additional Protocol I, has become
customary. This is set forth in many military manuals21 and is
treated as an offence under the legislation of numerous States.22
This practice shows a widespread, representative and virtually
uniform acceptance of the customary law nature of said rules.23

In addition, significant practice exists prohibiting a deliberate


attack on the environment as a method of warfare. The

16
The effects of nuclear weapons under international law. Article 3 Briefing Paper. December 2014 page 4.
17
Nuclear Tests Case
18
Widespread: encompassing an area of several hundred square kilometers.
19
Long-lasting: lasting for a period of months, or approximately a season.
20
Severe: involving serious or significant disruption or harm to human life, natural and economic resources or
other assets.
21
See, e.g., the military manuals of Argentina (ibid., 163), Australia (ibid., 164165), Belgium (ibid., 166),
Benin (ibid., 167), Canada (ibid., 168), Colombia (ibid., 169), France (ibid., 170), Germany (ibid., 171
173), Italy (ibid., 174), Kenya (ibid., 175), Netherlands (ibid., 176177), New Zealand (ibid., 178), Russia
(ibid., 179), Spain (ibid., 180), Sweden (ibid., 181), Switzerland (ibid., 182), Togo (ibid., 183), United
Kingdom (ibid., 184), United States (ibid., 185186) and Yugoslavia (ibid., 187).
22
See, e.g., the legislation of Australia (ibid., 190), Azerbaijan (ibid., 191), Belarus (ibid., 192), Bosnia and
Herzegovina (ibid., 193), Canada (ibid., 195), Colombia (ibid., 196), Congo (ibid., 197), Croatia (ibid., 198),
Georgia (ibid., 201), Germany (ibid., 202), Ireland (ibid., 203), Mali (ibid., 206), Netherlands (ibid., 208),
New Zealand (ibid., 209), Norway (ibid., 211), Slovenia (ibid., 213), Spain (ibid., 214), United Kingdom (ibid.,
218) and Yugoslavia (ibid., 220); see also the draft legislation of Argentina (ibid., 188), Burundi (ibid., 194),
El Salvador (ibid., 199), Nicaragua (ibid., 210) and Trinidad and Tobago (ibid., 216).
23
Jean-Marie Henckaerts,Louise Doswald-Beck. Customary International Humanitarian Law: Volume 1, Rules.
International Committee of the Red Cross, Cambridge University Press (2005).
legislation of several States criminalizes ecocide24 or the
mass destruction of the flora and fauna and poisoning of the
atmosphere or water resources, as well as other acts capable of
causing an ecological catastrophe.25

It is settled that for a rule to be established as customary, the


corresponding practice need not be in absolute rigorous
conformity with the rule 26. Consequently, practice by a few
states to the contrary is not enough to have prevented the
emergence of this customary norm.27

ii. There is opinion juris.


The duty not to bring about widespread, long-term and severe damage
to the environment in times of armed conflict has been incorporated in
legal systems of several States and in various conventions,28
statements and declaration of States.29 The ICJ30 recognizes that
States must abide by their general obligation to protect the natural
environment against widespread, long-term and severe environmental
damage. It adds that methods and means of warfare which are
intended, or may be expected to cause such damage are also
prohibited.31 This pronouncement further proves the binding nature of
the duty to not to cause damage against the environment.

b. The use of nuclear weapons brings about irreversible


environmental damage which have widespread, longlasting and
severe effects.

With the history of the use of nuclear weapons convincingly shows the
devastating effects it could bring to humanity and the environment.

24
supra.
25
Supra
26
Military and Paramilitary Activities (Nicaragua/United States of America) Merits. J. 27.6.1986 I.C.J. Reports
1986, p. 98
27
Supra at 23
28
ENMOD Convention, Article I (ibid., 290); Additional Protocol I, Article 35(3) (adopted by consensus) (ibid.,
145); Additional Protocol I, Article 55(1) (adopted by consensus) (ibid., 146).
29
See e.g. 9 Yugoslavia, Appeals and Letter of the Federal Ministry for Development, Science and the Environment
(ibid., 271); Iraq, Letter to the UN Secretary-General (ibid., 237); Kuwait, Letter to the UN Secretary-General
(ibid., 245); Sweden, Statement before the Sixth Committee of the UN General Assembly (ibid., 48). 83 Canada,
Statement before the Sixth Committee of the UN General Assembly (ibid., 37); OECD, Declaration of the
Ministers of Environment (ibid., 278).
30
CJ, Nuclear Weapons Advisory Opinion, 31.
31
id.
The General Assembly in its resolution32 affirms further the general view
that environmental considerations form part of the elements to be taken into
account in the implementation of the principles and rules of law applicable in
armed conflict.33 Taken altogether, these instruments embody the general
obligation of all States to protect the natural environment against widespread,
long-term and severe environmental damage. States can only do this by disarming
and totally prohibiting the use of nuclear weapons which are expected to cause
such destruction.

c. Even if damage resulting from a nuclear explosion depends on a


number of factors, states are still obliged to disarm under the
precautionary principle.

The precautionary principle, which has been gaining increased


recognition,34 and uncontested by any State35 is generally recognized
as a principle of international law.36
d. Possession of nuclear weapons is not justified by the principle of
deterrence.

II. REVISITING THE NUCLEAR DISARMAMENT REGIME


A. WEAKNESSES AND CRITICISMS

32
UNGA Resolution 47/37 Protection of the Environment in Times of Armed Conflict
33
Owada, Hisashi. International Environmental Law and the International Court of Justice: Inaugural Lecture at the
Fellowship Programme on International and Comparative Environmental Law. Iustum Aequum Salutare
II. 2006/34. 532.
34
See, e.g., Convention on Biodiversity, preamble; Rio Declaration, Principle 15; the statements of France and New
Zealand; UN Economic Commission for Europe, BBergen ECE Ministerial Declaration on Sustainable Development,
Article 7.
35
Jean-Marie Henckaerts,Louise Doswald-Beck. Customary International Humanitarian Law: Volume 1, Rules.
International Committee of the Red Cross, Cambridge University Press (2005)
36
ICRC, Report on the protection of the environment in time of armed conflict.
B. COMPLEMENTARY MEASURES MUST BE MADE TO
COMBAT WMD TERRORISM (okay, enumerate na lang then gamay
na discussion.. add also actions sa mga NNWS on this, like naa bay local
laws or regional agreements sa asean or eu on nuclear weapons ban or
something)
C. UNHLC

III. GOAL: GENERAL AND COMPLETE NUCLEAR DISARMAMENT FOR


SUSTAINABLE DEVELOPMENT

Warfare is inherently destructive of sustainable development. States shall therefore


respect international law providing protection for the environment in times of armed
conflict and cooperate in its further development, as necessary.37

A. INTERGENERATIONAL RESPONSIBILITY

37
Principle 24 Rio Declaration