A ‘light for all humanity’: the treaty on the prohibition of nuclear weapons and the progress of humanitarian disarmament

ABSTRACT

Reframing nuclear weapons as a humanitarian issue revolutionised the diplomatic debate surrounding them, and in 2017, 122 countries adopted the Treaty on the Prohibition of Nuclear Weapons (TPNW). The humanitarian approach to disarmament provided inspiration for this historic achievement. While traditional disarmament aims primarily to protect state security, humanitarian disarmament strives to end human suffering. This article examines the TPNW as the latest step in humanitarian disarmament. Through a close analysis of process and text, it finds that humanitarian disarmament served as a catalyst to and model for the TPNW’s negotiations and shaped its purpose and provisions. The article also shows how the humanitarian underpinnings of the TPNW allowed it to transform nuclear disarmament and how the new treaty strengthened humanitarian disarmament in return.

KEYWORDS:

• International law
• disarmament
• nuclear weapons
• human security
• human rights
• environment

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Bonnie Docherty is a Lecturer on Law and the Associate Director of Armed Conflict and Civilian Protection at the International Human Rights Clinic at Harvard Law School. She is also a Senior Researcher in the Arms Division of Human Rights Watch. Docherty has worked in the field of humanitarian disarmament since 2001 and participated actively in the negotiations of the Treaty on the Prohibition of Nuclear Weapons and the Convention on Cluster Munitions. The author wishes to thank Andrew Haag and Cassie Rasmussen for their research assistance.

ORCID

Bonnie Docherty http://orcid.org/0000-0001-5287-7259

Notes

1 Berit Reiss-Andersen, Norwegian Nobel Committee chair, Nobel Peace Prize Award Ceremony Speech, Oslo, December 10, 2017, https://www.nobelprize.org/nobel_prizes/peace/laureates/2017/presentation-speech.html (accessed January 18, 2018).

2 Bonnie Docherty, ‘Ending Civilian Suffering: The Purpose, Provisions, and Promise of Humanitarian Disarmament Law’, Austrian Review of International and European Law 15 (dated 2010, published 2013): 7.

3 The phrase ‘unacceptable harm’ comes from the Oslo Declaration that initiated the process to create the Convention on Cluster Munitions. Oslo Conference on Cluster Munitions, ‘Declaration’, February 22–23, 2007, http://www.clusterconvention.org/files/2012/11/Oslo-Declaration-final-23-February-2007.pdf (accessed January 18, 2018).

4 Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted July 7, 2017, opened for signature September 20, 2017.

5 Humanitarianism has been defined as: ‘Concern for human welfare as a primary or pre-eminent moral good; action, or the disposition to act, on the basis of this concern rather than for pragmatic or strategic reasons’. Oxford English Dictionary online, ‘Humanitarianism’, http://www.oed.com/ (accessed April 26, 2018).

6 At a major Harvard Law School conference on humanitarian disarmament in 2018, Stephen Goose, executive director of Human Rights Watch’s Arms Division, said,

Essentially humanitarian disarmament is characterized by a focus on people, on civilians in particular. It is aimed at the protection of civilians both during armed conflict and in a post-conflict situation  … . It’s making sure civilians are not harmed unduly from armed conflict or the detritus of armed conflict.

Beatrice Fihn of ICAN echoed Goose’s view that humanitarian disarmament focuses on people in her remarks at the same event. ‘From Landmines to Nuclear Weapons: A Conversation with Nobel Peace Prize Laureates’ (video of keynote of Humanitarian Disarmament: The Way Ahead conference, Harvard Law School, Cambridge, MA, March 5, 2018), https://today.law.harvard.edu/humanitarian-disarmament-way-ahead/ (accessed April 26, 2018).

7 See, e.g. John Borrie and Vanessa Martin Randin, eds., Alternative Approaches in Multilateral Decision Making: Disarmament as Humanitarian Action (Geneva: UNIDIR, 2005); John Borrie and Vanessa Martin Randin, eds., Disarmament as Humanitarian Action: From Perspective to Practice (Geneva: UNIDIR, 2006).

8 See generally Docherty, ‘Ending Civilian Suffering’.

9 Patrick McCarthy, ‘Deconstructing Disarmament: The Challenge of Making the Disarmament and Arms Control Machinery Responsive to the Humanitarian Imperative’, in Alternative Approaches in Multilateral Decision Making, eds. Borrie and Randin, 56. In the same volume, John Borrie explains that until recently, the field had ‘been dominated by security concepts focusing on external threats to states and, in particular, threats posed by other states’. John Borrie, ‘Rethinking Multilateral Negotiations: Disarmament as Humanitarian Action’, 7.

10 McCarthy, ‘Deconstructing Disarmament’, 56.

11 Ibid.

12 Rüdiger Wolfrum and Jakob Pichon, ‘Consensus’, in Max Planck Encyclopedia of Public International Law (2011), paras. 20–1.

13 Docherty, ‘Ending Civilian Suffering’, 12–3, 18–21, 34–5; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (Biological Weapons Convention), opened for signature April 10, 1972, entered into force March 26, 1975, arts. I, II; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention), adopted January 13, 1993, entered into force April 29, 1997, art. I.

14 Chemical Weapons Convention, arts. X(1, 8), IX. Two decades after the adoption of the Chemical Weapons Convention, states parties established an International Support Network for Victims of Chemical Weapons; the creation of such a programme, which was not mentioned in the original security disarmament convention, was likely inspired by the increasingly humanitarian focus of multilateral disarmament. Organisation for the Prohibition of Chemical Weapons, ‘The International Support Network for Victims of Chemical Weapons’, https://www.opcw.org/special-sections/victims-of-chemical-weapons-network/ (accessed April 26, 2018). The Biological Weapons Convention has a very general assistance provision, which applies only if the UN Security Council determines the recipient state party ‘has been exposed to danger a result of violation of the Convention’. Biological Weapons Convention, art. VII.

15 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (CCW), adopted October 10, 1980, entered into force December 2, 1983. The CCW has five protocols dealing with different types of weapons.

16 See, e.g. Report of the 2017 Group of Governmental Experts on Lethal Autonomous Weapons Systems (LAWS), CCW/GGE.1/2017/CRP.1, November 20, 2017, para. 16(a), https://www.unog.ch/80256EDD006B8954/(httpAssets)/B5B99A4D2F8BADF4C12581DF0048E7D0/$file/2017_CCW_GGE.1_2017_CRP.1_Advanced_+corrected.pdf (accessed April 26, 2018).

17 Docherty, ‘Ending Civilian Suffering’, 13–6, 21–3, 29, 31.

18 Ibid., 29, 31, 37; CCW Amended Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices (Amended Protocol II), adopted May 3, 1996, entered into force December 3, 1998, arts. 3, 10, 11; CCW Protocol on Explosive Remnants of War (Protocol V), adopted November 28, 2003, entered into force November 12, 2006, arts. 3, 5, 11.

19 John Borrie, ‘Disarmament as Humanitarian Action: From Perspective to Practice’, in Disarmament as Humanitarian Action, eds. Borrie and Randin, 9.

20 Robert J. Mathews and Timothy L.H. McCormack, ‘The Influence of Humanitarian Principles in the Negotiation of Arms Control Treaties’, International Review of the Red Cross no. 834 (1999), https://www.icrc.org/eng/resources/documents/article/other/57jpty.htm (accessed April 26, 2018).

21 Ibid.

22 Stephen D. Goose, Mary Wareham, and Jody Williams, ‘Banning Landmines and Beyond’, in Banning Landmines: Disarmament, Citizen Diplomacy, and Human Security, eds. Williams, Goose, and Wareham (Plymouth: Rowman & Littlefield Publishers, 2008), 1. See also Jody Williams and Stephen D. Goose, ‘Citizen Diplomacy and the Ottawa Process: A Lasting Model?’ in ibid., 181–98.

23 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Mine Ban Treaty), adopted September 18, 1997, entered into force March 1, 1999, pmbl., para. 1.

24 Jacob S. Selebi, foreword to The Banning of Anti-Personnel Landmines: The Legal Contribution of the International Committee of the Red Cross, eds. Louis Maresca and Stuart Maslen (Cambridge: Cambridge University Press, 2000), xxii.

25 McCarthy, ‘Deconstructing Disarmament’, 63.

26 ‘In the aftermath of the Mine Ban Treaty’s adoption, some had argued that the Ottawa process was an approach – and a humanitarian disarmament outcome – that would not be repeated’. Geneva Forum and Disarmament Insight, ‘Learn, Adapt, Succeed: Potential Lessons from the Ottawa and Oslo Processes for Other Disarmament and Arms Control Challenges’, summary of conference held in Glion, Switzerland, November 19–20, 2008, 1–2.

27 Stephen D. Goose, ‘Cluster Munitions in the Crosshairs’, in Banning Landmines, eds. Williams, Goose, and Wareham, 217.

28 Human Rights Watch, Meeting the Challenge: Protecting Civilians through the Convention on Cluster Munitions (New York: Human Rights Watch, 2010), 120, https://www.hrw.org/sites/default/files/reports/armsclusters1110webwcover.pdf (accessed January 18, 2018).

29 For an overview of the Oslo Process, see ibid., 120–38. For a detailed history, see John Borrie, Unacceptable Harm: A History of How the Treaty to Ban Cluster Munitions Was Won (Geneva: UNIDIR, 2009).

30 Patricia Lewis, introduction to Alternative Approaches in Multilateral Decision Making, eds. Borrie and Randin, 2; Geneva Forum and Disarmament Insight, ‘Learn, Adapt, Succeed’, 1.

31 McCarthy, ‘Deconstructing Disarmament’, 56.

32 UN Development Programme, ‘Human Development Report 1994’, http://hdr.undp.org/en/content/human-development-report-1994 (accessed April 26, 2018).

33 McCarthy, ‘Deconstructing Disarmament’, 57.

34 Docherty, ‘Ending Civilian Suffering’, 16–7, 23–6, 38–44.

35 For a discussion of these procedural characteristics in the context of the Oslo Process, see Human Rights Watch, Meeting the Challenge, 120–7.

36 Mine Ban Treaty, arts. 1, 4–6, 8; Convention on Cluster Munitions, adopted May 30, 2008, entered into force August 1, 2010, arts. 1, 3–6, 8.

37 While he does not use the term ‘humanitarian disarmament’, Daniel Rietiker discusses the influence of these treaties and the general humanization of arms control in nuclear and non-nuclear weapon contexts. Daniel Rietiker, Humanization of Arms Control: Paving the Way for a World Free of Nuclear Weapons (London: Routledge, 2017).

38 Docherty, ‘Ending Civilian Suffering’, 37.

39 Arms Trade Treaty, adopted April 2, 2013, entered into force December 24, 2014, art. 6(3). For a discussion of the influence of humanitarian disarmament on the Arms Trade Treaty, see Susan O’Connor, ‘Up in Arms: A Humanitarian Analysis of the Arms Trade Treaty and its New Zealand Application’, New Zealand Yearbook of International Law 11 (2013): 74–5.

40 See generally International Network on Explosive Weapons, http://www.inew.org/; Toxic Remnants of War Project, http://www.toxicremnantsofwar.info/; Conflict and Environment Observatory, https://ceobs.org/; Campaign to Stop Killer Robots, http://www.stopkillerrobots.org/ (all accessed April 26, 2018).

41 Alexander Kmentt, ‘The Development of the International Initiative on the Humanitarian Impact of Nuclear Weapons and Its Effects on the Nuclear Weapons Debate’, International Review of the Red Cross 97 (2015): 682.

42 Treaty on the Non-Proliferation of Nuclear Weapons (NPT), adopted June 12, 1968, entered into force March 5, 1970. For descriptions of NPT as a ‘cornerstone’, see, e.g. US Department of State, ‘Nuclear Nonproliferation Treaty: Overview’, https://www.state.gov/t/isn/npt/ (accessed January 18, 2018); James J. Wirtz, ‘Arms Control and Nuclear Weapons’, in Arms Control: History, Theory, and Policy: Volume I, eds. Robert E. Williams Jr. and Paul R. Viotti (Santa Barbara, CA: Praeger, 2012), 207.

43 Haralambos Athanasopulos, Nuclear Disarmament in International Law (Jefferson, NC: McFarland & Company, 2000), 46; ‘Treaty on the Non-Proliferation of Nuclear Weapons’, UN General Assembly Resolution 2373 (XXII), June 12, 1968.

44 Statement of United States to First Committee Meeting on Non-Proliferation of Nuclear Weapons, UN General Assembly Official Records, A/C.1/PV.1556, New York, April 26, 1968, 3.

45 See, e.g. statements to First Committee Meeting on Non-Proliferation of Nuclear Weapons by Finland (May 2), Australia (May 17), Argentina (May 22) and Romania (May 22), UN General Assembly Official Records, A/C.1/PV.1559, 1570 and 1572, New York, May 1968. The UN secretary-general warned that proliferation of nuclear weapons could have ‘dire consequences for the security of all States, large and small, nuclear and non-nuclear’ and ‘would lead to greater tension and greater instability in the world at large’. Statement of UN Secretary-General U Thant to First Committee Meeting on Non-Proliferation of Nuclear Weapons, UN General Assembly Official Records, A/C.1/PV.1556, New York, April 26, 1968, 2.

46 NPT, arts. I, II, IV, V. For use of the term ‘Grand Bargain’, see, e.g. Paul Meyer, ‘The Nuclear Nonproliferation Treaty: Fin de Regime?’ Arms Control Today, April 2017, https://www.armscontrol.org/act/2017-04/features/nuclear-nonproliferation-treaty-fin-de-regime (accessed January 18, 2018).

47 Rietiker, Humanization of Arms Control, 2.

48 States in four regions concluded nuclear-weapon-free zone agreements after the NPT’s adoption. See UN Office of Disarmament Affairs, ‘Nuclear-Weapon-Free Zones’, https://www.un.org/disarmament/wmd/nuclear/nwfz/ (accessed January 18, 2018).

49 The UN General Assembly voted 158 to 3 to accept the treaty in September 1996. Comprehensive Nuclear-Test-Ban Treaty (CTBT), adopted September 17, 1996; David B. Thomson, A Guide to the Nuclear Arms Control Treaties (Los Alamos, NM: Los Alamos Historical Society Publications, 2001), 46.

50 For an overview of NPT Review Conferences since 1995, see Women’s International League for Peace and Freedom (WILPF), 2017 NPT Briefing Book, April 2017, 8, http://www.reachingcriticalwill.org/images/documents/Publications/2017-npt-briefing-book.pdf (accessed January 18, 2018); Rietiker, Humanization of Arms Control, 256–57.

51 WILPF, 2017 NPT Briefing Book, 4.

52 Jakob Kellenberger, ‘Bringing the Era of Nuclear Weapons to an End’, April 20, 2010, reprinted in International Review of the Red Cross 97 (2015): 883.

53 Council of Delegates of the International Red Cross and Red Crescent Movement, ‘Resolution 1: Working towards the Elimination of Nuclear Weapons’, Geneva, November 26, 2011, para. 4, https://www.icrc.org/eng/resources/documents/resolution/council-delegates-resolution-1-2011.htm (accessed January 18, 2018).

54 Rebecca Johnson, ICAN co-chair, ‘ICAN Intervention in Final Session of the Conference on the Humanitarian Impact of Nuclear Weapons’, Oslo, March 4–5, 2013, http://www.icanw.org/wp-content/uploads/2013/03/ICAN-final-statement5.3.13.pdf (accessed January 20, 2018).

55 See, e.g. Beatrice Fihn, ed., Unspeakable Suffering: The Humanitarian Impact of Nuclear Weapons (Geneva: Reaching Critical Will, 2013), http://www.reachingcriticalwill.org/images/documents/Publications/Unspeakable/Unspeakable.pdf; John Borrie and Tim Caughley, An Illusion of Safety: Challenges of Nuclear Weapon Detonations for United Nations Humanitarian Coordination and Response (New York: UNIDIR, 2014), http://www.unidir.org/files/publications/pdfs/an-illusion-of-safety-en-611.pdf; Ira Helfand, Nuclear Famine: Two Billion People at Risk? (Somerville, MA: International Physicians for the Prevention of Nuclear War and Physicians for Social Responsibility, 2013), http://www.ippnw.org/pdf/nuclear-famine-two-billion-at-risk-2013.pdf (all accessed January 18, 2018).

56 Kmentt, ‘The Development of the International Initiative’, 682.

57 Ibid., 689–91.

58 Ibid., 691–94 (quoting chair’s summary).

59 Ibid., 694–702.

60 Humanitarian Pledge, https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abruestung/HINW14/HINW14vienna_Pledge_Document.pdf; Austrian Federal Ministry for Europe, Integration and Foreign Affairs, ‘Formal Endorsement and/or Expressions of Support for the Humanitarian Pledge’, April 7, 2016, https://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abruestung/HINW14/HINW14vienna_update_pledge_support.pdf (both accessed January 18, 2018).

61 Humanitarian Pledge.

62 As discussed above, the phrase ‘unacceptable harm’ comes from the Oslo Process.

63 Elizabeth Minor, ‘Changing the Discourse on Nuclear Weapons: The Humanitarian Initiative’, International Review of the Red Cross 97 (2015): 722.

64 Borrie, ‘Rethinking Multilateral Negotiations’, 26.

65 See, e.g. Kmentt, ‘The Development of the International Initiative’, 691 (discussing report on near misses released at Nayarit conference).

66 Ibid., 689 (quoting Eide). See also Peter Maurer, ‘Nuclear Weapons: Ending a Threat to Humanity’, February 18, 2015, reprinted in International Review of the Red Cross 97 (2015): 889 (describing the risks of nuclear weapons as a ‘global concern’); Kmentt, ‘The Development of the International Initiative’, 692 (quoting Nayarit Conference Chair Juan Manuel Gómez Robledo concluding, ‘Today the risk of nuclear weapons use is growing globally.’).

67 Report of the Open-Ended Working Group Taking Forward Multilateral Nuclear Disarmament Negotiations, A/71/371, September 1, 2016, para. 67. Opponents to this recommendation preferred ‘practical steps’ that addressed ‘national, international, and collective security concerns.’ Ibid.

68 ‘Taking Forward Multilateral Nuclear Disarmament Negotiations’, UN General Assembly Resolution 71/258, A/RES/71/258, December 23, 2016.

69 ‘UN Conference Adopts Treaty Banning Nuclear Weapons’, UN News Centre, July 7, 2017, http://www.un.org/apps/news/story.asp?NewsID=57139#.Wl_7R0tG30F (accessed January 18, 2018).

70 ICRC President Peter Maurer, ‘The Hope for a Future without Nuclear Weapons: ICRC Statement to the United Nations General Assembly’, September 20, 2017, https://www.icrc.org/en/document/hope-future-without-nuclear-weapons (accessed January 20, 2018).

71 See Human Rights Watch, Meeting the Challenge, 120 (discussing those characteristics in the Oslo Process).

72 Meyer, ‘The Nuclear Nonproliferation Treaty’.

73 Kmentt, ‘The Development of the International Initiative’, 704.

74 Arms Control Association, ‘Core Group of Negotiators for the Treaty on the Prohibition of Nuclear Weapons Voted “2017 Arms Control Persons of the Year”, January 9, 2018, https://www.armscontrol.org/pressroom/2018-01/acpoy-2017-winner (accessed January 18, 2018).

75 Despite the absence of many of these states, the Netherlands, a NATO member, Sweden, a close partner of NATO, and the Marshall Islands, which has detailed collective security agreements with the United States, participated actively in the negotiations. A nuclear umbrella state relies on an ally’s nuclear arsenals for its national security.

76 ICAN, ‘Positions on the Treaty’, http://www.icanw.org/why-a-ban/positions/ (accessed January 18, 2018).

77 The February 2007 Oslo Declaration expressed a commitment to conclude a ban treaty by 2008; the Ottawa Declaration called for ‘the earliest possible conclusion’ of a treaty banning antipersonnel mines. Oslo Conference on Cluster Munitions, ‘Declaration’; ‘Declaration of the Ottawa Conference’, Annex I, in UN General Assembly, ‘General and Complete Disarmament’, A/C.1/51/10, October 18, 1996, https://www.apminebanconvention.org/fileadmin/APMBC/10th-anniversary/The_1996_Ottawa_Declaration.pdf (accessed January 18, 2018).

78 The International Court of Justice found that ‘the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict’ but could not ‘conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake’. International Court of Justice, ‘Legality of the Threat or Use of Nuclear Weapons’, Advisory Opinion, July 8, 1996, para. 105(2)(E).

79 The Martens Clause originated in the preamble of the 1899 Hague Convention and appears in similar forms in multiple instruments. Additional Protocol I to the Geneva Conventions, for example, states:

In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

Protocol Additional to the Geneva Conventions of August 12, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), adopted June 8, 1977, entered into force December 7, 1978, art. 1(2).

80 The UN Charter’s purposes include ‘maintain[ing] international peace and security’, ‘develop[ing] friendly relations among nations’, ‘achiev[ing] international co-operation in solving international problems’, and ‘harmonizing the actions of nations in the attainment of these common ends’. UN Charter, June 26, 1945, art. 1.

81 Mine Ban Treaty, art. 1(1)(c); Convention on Cluster Munitions, art. 1(1)(c); Human Rights Watch, Staying Strong: Key Components and Positive Precedent for Convention on Cluster Munitions Legislation, September 2014, 19–34, https://www.hrw.org/sites/default/files/reports/cluster0914_ForUpload_0.pdf (accessed January 21, 2018).

82 See, e.g. Don’t Bank on the Bomb, ‘Nuclear Weapons Outlawed!’ August 2, 2017, https://www.dontbankonthebomb.com/nuclear-weapons-outlawed/ (accessed January 20, 2018) (quoting South Africa and the Philippines).

83 Mine Ban Treaty, art. 4; Convention on Cluster Munitions, art. 3.

84 TPNW, art. 4(2).

85 Ibid., art. 4(4).

86 Ibid., art. 4(2, 4).

87 Mine Ban Treaty, art. 7; Convention on Cluster Munitions, art. 7.

88 TPNW, art. 4(5).

89 Ibid., art. 4(3, 4).

90 Article 12 of the TPNW also obliges states parties to work for universalisation by encouraging other states to join the treaty.

91 ICAN, ‘Victim Rights and Victim Assistance in a Treaty Prohibiting Nuclear Weapons: A Humanitarian Imperative’, working paper for the UN Conference to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons, Leading towards Their Total Elimination, A/CONF.229/2017/NGO/WP.14, March 31, 2017, para. 12.

92 Convention on Cluster Munitions, art. 5.

93 Mine Ban Treaty, art. 5; Convention on Cluster Munitions, art. 4.

94 See Molly Doggett and Alice Osman, ‘Responsibility for Victim Assistance and Environmental Remediation’, Nuclear Ban Daily, 2, no. 7, June 23, 2017, 2, http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/nuclear-weapon-ban/reports/NBD2.7.pdf (accessed January 18, 2018) (laying out argument for the type of affected state responsibility that the TPNW adopted).

95 Mine Ban Treaty, art. 6; Convention on Cluster Munitions, art. 6.

96 TPNW, art. 7(3).

97 Ibid., art. 7(1, 2).

98 Ibid., art. 4(2).

99 This power makes joining the treaty a more appealing option for the nuclear armed states, none of which participated in the TPNW negotiations.

100 Peter D. Zimmerman, ‘This New U.N. Treaty Seeks to Ban Nuclear Weapons. But We’d Regret It If We Did’, Washington Post, September 14, 2017, https://www.washingtonpost.com/news/posteverything/wp/2017/09/14/the-u-n-s-new-treaty-banning-nuclear-weapons-sounds-like-a-good-idea-its-not/?utm_term=.71103ff1109e (accessed April 26, 2018); ‘Joint Press Statement from the Permanent Representatives to the United Nations of the United States, United Kingdom and France Following the Adoption of a Treaty Banning Nuclear Weapons’, July 7, 2017, https://www.scribd.com/document/353174842/Joint-Press-Statement-by-UK-France-US-on-nuclear-ban-treaty (accessed April 26, 2018).

101 TPNW, art. 4(2, 4).

102 Marcel Junod, ‘The Hiroshima Disaster: A Doctor’s Account’, excerpts from Junod’s journal republished by ICRC, September 12, 2005, www.icrc.org/eng/resources/documents/misc/hiroshima-junod-120905.htm (accessed January 18, 2018).

103 Nobuo Hayashi, ‘From Consequentialism to Deontology’ (presentation at side event entitled Humanitarian Impact: Why Ethics Is Important to the Politics of Nuclear Weapons held during 2015 NPT Review Conference, September 15, 2015), 4, http://nwp.ilpi.org/?p=4166 (accessed January 18, 2018). Hayashi elsewhere concluded, ‘We categorically reject nuclear strikes because they rob their victims, fellow human beings, of human qualities by subjecting them to unspeakable inhumanity and reducing them to the status of mere instruments for the benefit of the rest of us.’ Nobuo Hayashi, ‘On the Ethics of Nuclear Weapons’, ILPI-UNIDIR NPT Review Conference Series, no. 2 (2015): 7, http://unidir.ilpi.org/wp-content/uploads/2015/04/No-2-Ethics-NOHA.pdf (accessed January 18, 2018).

104 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, opened for signature August 8, 1963, entered into force October 10, 1963.

105 PAX, ‘Largest Dutch Pension Fund ABP to Divest from Nuclear Weapons’, January 11, 2018, https://nonukes.nl/largest-dutch-pension-fund-abp-divest-nuclear-weapons/ (accessed January 20, 2018). The Nobel Foundation announced it would divest from nuclear weapon producers in October 2017, just weeks after the Nobel Committee awarded the Peace Prize to ICAN. PAX, ‘Nobel Foundation to Divest from Nuclear Weapon Producers’, October 30, 2017, https://www.dontbankonthebomb.com/nobel-foundation-to-divest-from-nuclear-weapon-producers/ (accessed January 20, 2018).

106 For example, the US decision to end transfers of cluster munitions to Saudi Arabia after reports that they caused civilian casualties ‘shows how global perception of these weapons has shifted, even among nations that remain outside the international treaty to ban the weapons’. Mary Wareham, ‘On Cluster Munitions, A Tentative Step toward Sanity’, Huffington Post, June 6, 2016, https://www.huffingtonpost.com/mary-wareham/on-cluster-munitions-a-te_b_10319504.html (accessed January 18, 2018).

107 See, e.g. Radiation Effects Research Foundation, ‘A-Bomb Survivors Medical Treatment Law’, http://www.rerf.jp/glossary_e/reliefme1.htm; US Department of Justice, ‘Radiation Exposure Compensation Act’, https://www.justice.gov/civil/common/reca (both accessed January 20, 2018).

108 McCarthy, ‘Deconstructing Disarmament’, 56.

109 See, e.g. Minor, ‘Changing the Discourse’, 722 (discussing how the humanitarian approach overcame that view).

110 McCarthy, ‘Deconstructing Disarmament’, 57–8.

111 TPNW, art. 1(a, d, g).

112 Human Rights Watch, Staying Strong, 28.

113 TPNW, art. 7(6).

114 Convention on Cluster Munitions, art. 4(4).

115 Nothing in the framework of positive obligations precludes an affected state from seeking other forms of legal redress from states that used or tested nuclear weapons in their territory.

116 Aneaka Kellay, Pollution Politics: Power, Accountability and Toxic Remnants of War, section 3.0, https://ceobs.org/pollutionpolitics-power-accountability-and-toxic-remnants-of-war/ (accessed April 12, 2018).

117 The Cluster Munition Coalition, a collection of hundreds of nongovernmental organizations, participated on a level equal to states except that it could not submit formal proposals or adopt the final convention. Human Rights Watch, Meeting the Challenge, 123.