Humanity v. Inhumanity: in search of illegality in the use of
nuclear weapons through the application of human rights.
Nola Malou Delsing
University of Amsterdam
International and European Law: Public International Law (LLM)
Supervisor: dhr. dr. K.J. Heller
26 July 2019
Word Count: 14.940
Final Version
2
1 INTRODUCTION
3
2 THE RIGHT TO LIFE
9
2.1.
B
ACKGROUND9
2.2. C
USTOMARY STATUS10
2.3. R
ATIONE LOCI13
2.4. R
ATIONE MATERIAE19
3 THE RIGHT TO A HEALTHY ENVIRONMENT
25
3.1. B
ACKGROUND25
3.2. T
HE RIGHT TO A HEALTHY ENVIRONMENT IN CONVENTIONAL LAW26
3.3. O
THER PRACTICES29
4 CONCLUSION
34
3
1
Introduction
Seventy-four years ago, the devastating effects of nuclear weapons were first felt in Japan and seventy-three years ago the United Nations General Assembly unanimously adopted its very first resolution in which it called for the elimination of nuclear weapons from national arsenals.1 Fifty years later, when the effects from the Hiroshima and Nagasaki bombings were still lingering, the Mayor of Nagasaki held that “nuclear weapons bring enormous, indiscriminate devastation to civilian populations” and that “a single aircraft dropped a single bomb and snuffed out the lives of 140,000 and 74,000 people, respectively…Even the people who were lucky enough to survive continue to this day to suffer from the late effects unique to nuclear weapons.” Furthermore, he stipulated that “nuclear weapons are inhuman tools for mass slaughter and destruction” and their use “violates international law”.2 The International Court of Justice (‘Court’ or ‘ICJ’) concluded nevertheless that it could not declare the use of nuclear weapons unlawful in extreme circumstances of self-defense “in which the very survival of a state would be at stake”.3 In this 1996 Advisory Opinion on the legality of the threat or use of nuclear weapons, the Court did recognize the destructive nature of nuclear weapons, as it specifically referred to the “potential to destroy all civilization and the entire ecosystem of the planet”, and to the serious dangers these weapons pose to both current and future generations.4 At the time of writing, 13.850 nuclear weapons are present on this planet.5
In 1996, the right to life as laid down in article 6 of the International Covenant on Civil and Political Rights (‘ICCPR’), was brought forward to support the claim before the ICJ that the threat and use of nuclear weapons is unlawful under all circumstances.6 This stance was supported by a considerable number of states,7 but the Court spent no more than two paragraphs on the right to life and considered that even though the applicability of the right to life does not cease during armed conflicts, International Humanitarian Law (‘IHL’) must be regarded lex
1 A/RES/I (I), 24 January 1946.
2 As cited by Judge Cancado Trinidade in its dissenting opinion on the judgement of 5 October 2016,
Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. India), paras. 186-187.
3 Ibid., 97.
4 ICJ, Advisory Opinion of 8 July 1996, The Legality of the Threat and Use of Nuclear Weapons (‘Nuclear
Weapons Advisory Opinion’), para. 35.
5 As held by the Ploughshares Fund: https://www.ploughshares.org/world-nuclear-stockpile-report. 6 Supra note 4, para. 24.
4 specialis in this context.8 It concluded that the legality of the threat or use of nuclear weapons is dependent on this latter body of law, and cannot be deduced from Human Rights Law (‘HRL’). This approach of the Court in which IHL is applied as lex specialis during armed conflicts is not applied without inconsistencies: in the Israeli Wall Opinion, the Court affirmed the applicability of IHL alongside HRL during armed conflicts, the former being the lex specialis.9 It is however only a year later that the Court cites its stance on joint applicability of HRL and IHL from the Israeli Wall Opinion, leaving out the part on IHL being the lex specialis.10 In this judgement, the Court held that both IHL and HRL have to be taken into account without making any reference to one of these bodies of law being the lex specialis. This practice illustrates that the Court adheres to joint applicability of IHL and HRL in the context of armed conflict and that IHL is not necessarily deemed the lex specialis.
The Inter-American Commission on Human Rights (‘IAComHR’) adheres to joint applicability as well, but seems to combine this with the most-favorable-treatment principle.11 This principle presupposes that when both IHL and HRL are applicable, and the level of protection offered by a provision in IHL is lower than the level of protection offered by a similar provision from HRL, the latter body of law has to be applied. If however IHL provides for a higher level of protection, that body of law must be applied. In other words: if two bodies of law are applicable and provide for a similar provision, the body of law that provides for the highest level of protection prevails. The European Court on Human Rights (‘ECtHR’) has used IHL as a method to interpret relevant human rights.12 It is however held that this method applied by human rights treaty bodies always leads to the reinforcement of human rights protection, instead of a limitation of the protection offered to individuals.13 This view is adhered to by Judge Cancado Trinidade in its dissenting opinion in the Nuclear Arms and Disarmament cases, in which he argued that the lex specialis approach of the Court in its Nuclear Weapons Opinion is incorrect.14 He considered that the rules providing for the highest level of protection for
8 Supra note 4, para. 25.
9 ICJ, Advisory Opinion of 9 July 2004, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory (‘Israeli Wall Opinion’), para. 106.
10 ICJ, Judgement of 19 December 2005, Democratic Republic of Congo v. Uganda, para. 216.
11 IAComHR, 18 November 1997, No. 55/57 (Abella v. Argentina), paras 164-167. Also in the IAComHR
Report on Terrorism and Human Rights, 22 October 2002, paras. 45 and 61.
12 ECtHR, 18 September 2009, No. 16064/90 (Varnava et al v. Turkey), para. 185.
13 Doswald-Beck, L., ‘Human rights law and nuclear weapons’ in: Nystuen, G. et al, Nuclear Weapons Under International Law, Cambridge University Press, 2014, p. 438.
5 individuals are to be applied.15 He emphasized the importance of the most-favorable-treatment principle in the context of nuclear weapons, as he holds that individuals are in a particular vulnerable position. This discussion illustrates that IHL is not necessarily decisive in determining whether the use of nuclear weapons during an armed conflict is lawful, as HRL might prevail instead.
Outside the context of an armed conflict, IHL is not applicable and the decisiveness of HRL is irrefutable. As HRL is of possible relevance in determining the lawfulness of the use of nuclear weapons during armed conflicts and of unquestionable relevance outside the scope of an armed conflict, this paper will focus on the compatibility of the use of nuclear weapons with HRL. As states are more likely to aim such a weapon to other states or on the high seas than to use it within its own territory, the focus will be on the extraterritorial use of such weapons.
Focus, scope and methodology
Due to limited space and time, this paper will not assess the compatibility of the use of nuclear weapons with all human rights. Instead, the focus will be on the right to life and the right to a healthy environment. Rationale for this is that nuclear weapons have the potential to destroy both human life and the environment. As not all states are party to a treaty in which these norms are laid down, compatibility of the extraterritorial use of nuclear weapons with the customary counterparts of these human rights norms will be assessed. Although it is not within the scope of this paper to assess all details of customary law and the controversies surrounding it, I briefly highlight the most crucial elements in the context of customary law formation.
Custom, as a formal source of international law that is binding on all states, exists out of ‘a general practice and acceptance of that practice as law’.16 It is widely accepted that custom thus exists out of two constitutive elements, which are the actual practice of states and opinio juris.17 Opinio juris is the belief of a state that it is under a legal obligation to act the way it does. The actual practice of states must be widespread and representative, including a majority of those
15 Ibid., para. 178.
16 Art. 38 (b) Statute of the International Court of Justice.
17 ICJ, Judgment of 20 February 1969, North Sea Continental Shelf case, para. 74 and 77. Confirmed by the ICJ
in its Judgement of 3 June 1985, Continental Shelf case (Libyan Arab Jamahiriya/Malta), para. 27 and in its Judgement of 27 June 1986, Military and Paramilitary Activities in and against Nicaragua, para. 207. More recently in its Judgement of 3 February 2012, Jurisdictional Immunities of the State case (Germany v. Italy, Greece intervening), para. 55. Also in conclusion 2 of the ILC Draft Conclusions on Identification of Customary International Law (‘ILC Draft Conclusions’), 2018.
6 states that are specially affected.18 ‘Widespread and representative’ is explained in a way that participating states cover different political, economic and legal systems and are from all continents.19 According to the ILC Draft Conclusions, specially affected states are “those states that are particularly involved in the relevant activity or are most concerned with the alleged rule”.20 It must be emphasized that ‘specially affected states’ does not refer to powerful states,21 but to states that engage in a certain practice that other states do not engage in, and to states that are affected by a certain practice in a way that distinguishes them from other states.22
Based on the doctrine of specially affected states, the US, the UK and scholars have argued that a customary rule prohibiting the threat and use of nuclear weapons cannot be construed.23 It is reasoned that states possessing nuclear weapons and states having nuclear weapons on their territory are specially affected states that will oppose to a customary rule prohibiting the use of nuclear weapons. Because of this objection of specially affected states, no such rule can come into existence. Truth is that there are more specially affected states in this context. Ukraine, South-Africa, Kazakhstan and Belarus can be considered specially affected, because of their former possession of nuclear weapons.24 Furthermore, Japan and the Marshall Islands are specially affected, because they have experienced the destructive powers of nuclear weapons.25 As research has showed that developing countries will be affected most by the environmental impact of a nuclear warfare, it can be argued that these countries must be considered specially
18 ICJ, Judgment of 20 February 1969, North Sea Continental Shelf case, para. 74. Affirmed in the ILC Draft
Conclusions on Identification of Customary International Law, 2018, Commentary on Conclusion 8, para. 2. The required majority of specially affected states comes from Heller, K.J., ‘Specially Affected States and the
Formation of Custom’, The American Journal of International Law (2018), Vol. 112 No. 2, p. 236.
19 Dissenting opinion of Judge Lachs on the Judgement of 20 February 1969, North Sea Shelf case, at 227. 20 ILC Draft Conclusions, Commentary on Conclusion 8, para. 4.
21 Ibid.
22 Heller, K.J., ‘Specially Affected States and the Formation of Custom’, The American Journal of International Law (2018), Vol. 112 No. 2, p. 193.
23 The US letter and written statement from 20 June 1995 and statement of the UK of 15 November 1995 in the
Nuclear Weapons Advisory opinion. Furthermore by Hulme, K., Perspectives On The ICRC Study on Customary
International Humanitarian Law, Cambridge University Press, 2007, p. 233. 24 Supra note 22, p. 216.
25 Stance of Judge Weeramantry in its dissenting opinion in the Nuclear Weapons Advisory Opinion at 535 and
Judgme Shababuddeen at 414. The Court recognized Marshall Islands’ specially affected status in its judgement of 5 October 2016, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. UK), para. 44.
7 affected as well.26 Moreover, as a limited and regional nuclear warfare is likely to cause ‘significant climate disruption worldwide’,27 and is able to ‘render the entire planet inhabitable’,28 all states are specially affected by the use of nuclear weapons. This stance is brought forward by judge Weeramantry in the Nuclear Weapons Advisory Opinion, as he holds that “every nation in the world is specially affected by nuclear weapons, for when matters of survival are involved, this is a matter of universal concern”.29
Because all states are affected equally in the context of the use of nuclear weapons and are therefore not distinguishable from other states, no states have more power over the formation of a customary rule regarding the use of nuclear weapons than other states.30 In other words, because all states are ‘specially affected’ in this context, all states are equal in the formation of custom and the requirement of participation of specially affected states does not apply.31 Through the application of this doctrine of specially affected states, a customary rule prohibiting the use of nuclear weapons is not excluded because of the mere objection of states in possession of nuclear weapons, as all states have an equal say in the formation of such a rule. The persistent objector rule can provide for leeway for states that want to block the formation of a customary rule prohibiting the use of nuclear weapons, as this rule holds that when states explicitly oppose the existence of a customary rule from its inception, they are not bound by this rule.32 Therefore, it remains to be seen whether states in possession of nuclear weapons will ever be bound by a customary rule prohibiting the use of such weapons. In this context it is of relevance that when states fail to protest the emerge of such a customary rule, it can be assumed that these states consent this new rule, and are bound by it because of their acquiescence.33
The special nature of human rights has led to the suggestion that the inquiry on whether human rights norms form part of international customary law should not be based on the traditional
26 This approach to base specially affected status on scientific evidence is formulated in Heller, K.J., ‘Specially
Affected States and the Formation of Custom’, The American Journal of International Law (2018), Vol. 112 No. 2, p 226-227 and Helfand, I., ‘Nuclear famine: two billion people at risk?’, International Press (2012), p. 2.
27 Helfand, I., ‘Nuclear famine: two billion people at risk?’, International Press (2012), p. 2.
28 Heller, K.J., ‘Specially Affected States and the Formation of Custom’, The American Journal of International Law (2018), Vol. 112 No. 2, p. 222.
29 Nuclear Weapons Advisory Opinion, dissenting opinion of Judge Weeramantry, at 536.
30 Heller, K.J., ‘Specially Affected States and the Formation of Custom’, The American Journal of International Law (2018), Vol. 112 No. 2, p. 210-211.
31 Ibid., p. 202.
32 Conclusion 15 ILC Draft Conclusions.
8 criteria for identifying custom, viz. state practice and opinio juris, but instead, a special regime should be applied.34 In 2013, the Special Rapporteur of the International Law Commission (‘ILC’) raised the question whether there might be a different approach to the identification of rules of customary international law in the context of human rights.35 In the ILC Commentaries on the 2018 Draft Conclusions On Identification of Customary International Law (‘ILC Draft Conclusions’) it is however stated that “the two-element approach applies to the identification of the existence and content of rules of customary international law in all fields of law,”36 implying that no special regime is applicable to the formation of customary human rights. Yet it is considered in the commentary that it is allowed to take into account the particular circumstances and context in which an alleged rule has arisen and operates when applying the two elements.37 In this paper, I will attempt to find both state practice and opinio juris. The weight that must be given to pieces of evidence is however, as the above discussion illustrates, not set in stone.
Relevance
Because of recent developments in the field of nuclear weapons, viz. the pull out of the United States and Russia from the Intermediate-range Nuclear Forces (INF) Treaty and the abrogation of the US from the 2015 nuclear agreement,38 which was followed by the partial withdrawal from it by Iran, the legality of the use of nuclear weapons has not been this relevant since the cold war.39 Of a less acute nature but providing this paper with relevance is the emerging awareness on human impact on the environment and the impact this has on human life. This awareness has led to a growing body of law, that might affect the use of nuclear weapons
34 Schachter, O., International Law in Theory and Practice, Martinus Nijhoff Publisher, 1991 and Thirlway, H.,
‘Human Rights in Customary Law: An Attempt to Define Some of the Issues’, Leiden Journal of International
law (2015), Vol. 28, No. 3, p. 499-500. Also Lepard, B.D., ‘Why Customary International Law Matters in
Protecting Human Rights’, Völkerrechtsblog, 25 February 2019: https://voelkerrechtsblog.org/why-customary-international-law-matters-in-protecting-human-rights/
35 Wood, M., ‘First Report on Formation and Evidence of Customary International Law’, UN Doc. A/CN.4/663,
2013, para. 19.
36 Commentary on conclusion 2 of the ILC Draft Conclusions Commentary, para. 6. 37 Ibid.
38 The ‘Joint Comprehensive Plan of Action’, which aim was to make sure that Iran was unable to develop
nuclear weapons. Link to article on this subject: https://www.theguardian.com/world/2019/may/08/iran-challenges-europe-china-us-nuclear-deal
39 Article in De Volkskrant of 22 October 2018:
https://www.volkskrant.nl/nieuws-achtergrond/opzeggen-kernwapenverdrag-is-voorproefje-van-nieuwe-nucleaire-tijd~bb74fa28/ and article in the New York Times of 1 February 2019: https://www.nytimes.com/2019/02/01/world/europe/inf-treaty.html
9 indirectly. Furthermore, given the severe implications of the use of nuclear weapons, the subject will be of relevance as long as these weapons exist on this planet.
Structure
To find out whether the customary right to life and the customary right to a healthy environment are capable of rendering the extraterritorial use of nuclear weapons unlawful, the applicability of the customary right to life on the use of nuclear weapons will be assessed first. As the customary status is not controversial, not too much words will be spilled over this matter. Thereafter, the extraterritorial application will be assessed. As effective control seems to be decisive in this context, this criterion will be analyzed. It will be held that the customary human right to life is applicable to the extraterritorial use of nuclear weapons. Subsequently, the material scope of this right will be examined. It will be concluded that the customary right to life has the potential to render the use of nuclear weapons illegal.
In the second part of this paper, the customary right to a healthy environment will be assessed. Contrary to the right to life, the status of the right to a healthy environment as part of customary law is not indisputable. Its presence in conventional law will be addressed, before state practice and opinio juris will be searched for in regional and national case-law, official statements by states and United Nations activities. It will be concluded that no such customary right exists yet, but due to growing awareness of the connection between human rights and the environment, such a customary right might develop in the future. When such a right has emerged, it will render the use of nuclear weapons unlawful under all circumstances, due to its devastating effects of such a use on the environment. This will affect the legality of the threat and possession of nuclear weapons as well.
2
The right to life
2.1. Background
The right to life is considered to be the cornerstone of human rights law, as the protection of other rights would be without meaning if the right to life would not be safeguarded.40 As the
40 Heyns, C. and Probert, T., ‘Securing the Right to Life: A cornerstone of the human rights system’, EJIL: Talk!, 11 May 2016:
10 Human Rights Committee puts it: the protection of the right to life is “the prerequisite for the enjoyment of all other human rights.”41 The supreme status of this right is illustrated by its presence in both regional and international human rights treaties and declarations.42 The relevance of this right in the context of the use of nuclear weapons seems obvious, because of the devastating effects of such a use on all aspects of human life. However, in its 1996 Advisory Opinion, the ICJ dedicates not more than two paragraphs to ‘the cornerstone of human rights law’, before rejecting its decisiveness. In these two paragraphs, the Court held that the use of nuclear weapons is not precluded by the right to life. It came to this conclusion after it had stated that IHL is to be used to interpret the right to life in this context.43 It concluded that HRL, as such, does not prohibit the use of nuclear weapons. Judge Weeramantry applied a different approach in its dissenting opinion, in addressing the issue of the right to life within the context of human rights instead of international humanitarian law.44 He concluded that the use of a weapon that “has the potential to kill between one million and one billion people”, is incompatible with the right to life under all circumstances.45
In the following part it will be assessed whether the customary right to life can affect the legality of the use of nuclear weapons, without the applicability of IHL as lex specialis. First, I will argue that the right to life has customary status. As this status is uncontested, not much words will be spilled over this issue. Thereafter the territorial and material scope of the customary right to life will be assessed, together with the possible limitations on the applicability of this right on the use of nuclear weapons. It will be concluded that the right to life can prohibit the use of nuclear weapons, but that this right will not deprive such a use of its legality in all cases.
2.2. Customary status
The customary status of the right to life is uncontested by both scholars and states. Evidence for this customary status can be found in its presence in binding multilateral human rights conventions that are ratified by states from different economic, legal and political systems, from
41 UNHRC General Comment no. 36 (2018) on article 6 of the ICCPR (‘General Comment No. 36’), para. 2. 42 Art. 6 ICCPR, art. 2 ECHR, art. 4 African Charter on Human and Peoples’ Rights, art. 4 American
Convention on Human Rights, art. 5 Arab Charter on Human Rights, art. 3 Universal Declaration on Human Rights.
43 Nuclear Weapons Advisory Opinion, para. 25.
44 Doswald-Beck, L., ‘Human rights law and nuclear weapons’ in: Nystuen, G. et al, Nuclear Weapons Under International Law, Cambridge University Press, 2014, p. 444.
11 different continents;46 non-binding documents such as the Universal Declaration of Human Rights; its presence in numerous UN resolutions;47 Human Rights Committees’ General Comments and states’ reactions on these comments;48 international and national jurisprudence; domestic law and statements of governments.49 Because of its customary status, the right to life is binding on all states, irrespective of whether a state is party to a treaty providing for this right or not.
As stated before, the right to life is laid down in both international and regional binding human rights treaties.50 Despite the fact that not all states are party to such a treaty, these treaties do show a widespread and representative awareness of the importance of the right to life, as a significant percentage of all states, representing different (legal, economic and political) systems and continents are party to a treaty providing for the right to life.51 Examples of non-binding sources containing the right to life are the Universal Declaration of Human rights52 and the Cairo Declaration on Human Rights in Islam.53 Furthermore, this right was reaffirmed in various resolutions of the UN General Assembly.54 The UN Human Rights Committee affirmed the customary nature of the right to life,55 and stated in its most recent General Comment on the right to life that this right inheres in every human being.56
46 As hold by the Court in its Judgement in the Continental Shelf cases, paras. 71-73. Conclusion 10 (2) of the
ILC Draft Conclusions confirms that conduct in connection with treaties is relevant state practice. Widespread and representative ratification can also be evidence for state practice, ex. conclusion 6 (2) of the ILC Draft Conclusions.
47 State Practice ex conclusion 6 (2) ILC Draft Conclusions.
48 Public statements on behalf of states are evidence of opinio juris, ex conclusion 10 (2) of the ILC Draft
Conclusions.
49 State practice, as held by Melzer, N., Targeted Killing in International law, Oxford University Press, 2008, p.
184. Affirmed in conclusion 6 (2) ILC Draft Conclusions.
50 Inter alia in: art. 6 ICCPR; art. 2 ECHR; art. 4 African Charter on Human and Peoples’ Rights; art. 4
American Convention on Human Rights and art. 5 Arab Charter on Human Rights.
51 Dissenting opinion of Judge Lachs on the Judgement of 20 February 1969, North Sea Shelf case, at 227. 52 Art. 3 Universal Declaration of Human Rights, adopted in 1948. 48 states voted in favor, none against, eight
states abstained (Russia, Czechoslovakia, Poland, Saudi Arabia, Ukraine, South Africa, USSR and Yugoslavia) and two states did not vote (Yemen and Honduras).
53 Cairo Declaration on Human Rights in Islam (1990): “life is a God-given gift and the right to life is
guaranteed to every human being. It is the duty of individuals, societies and states to protect this right from any violation, and it is prohibited to take away life except for a Shari’ah prescribed reason.”
54 For example in resolutions A/RES/40/144 of 13 December 1985, A/RES/47/134 of 18 December 1992 and
A/HRC/RES/25/ of 11 April 2014.
55 UNHRC, General Comment No. 24 (1994), para. 8. 56 General Comment No. 36, para. 2.
12 The ICJ has not affirmed the customary status of the right to life explicitly. In the Barcelona Traction Case, it did consider that “the basic rights of the human person” give rise to erga omnes obligations.57 This implies a customary status of these ‘basic rights’, as these rights are owed to all people, irrespective the ratification of human rights treaties by states.58 The Court furthermore held that “some of the corresponding rights of protection have entered into the body of general international law, whereas others are conferred by international instruments of a universal or quasi-universal character.”59 As the Court did not disclose which rights it considered to be basic rights of the human person, this judgement does not provide for a conclusive answer. The Court was however more clear in the Nicaragua case, in which it referred to common article 3 of the Geneva Conventions which contains the right to life.60 It held that the rules of common article 3 are “elementary considerations of humanity”, implying a customary rule.61 Thereafter it referred to the Corfu Channel Case, in which the Court derived the obligation of states to notify minefields, particularly in times of peace, from “elementary considerations of humanity”.62
On the domestic plane, the right to life is recognized on a large scale as well. Besides the fact that the majority of states is party to both regional and international human rights treaties, states have also included this right in their domestic legal systems. The Canadian Charter of Rights and Freedoms contains the right to life63, just like the Basic Law for the Federal Republic of Germany64 and the Indian Constitution65. The Catholic Church has recognized the right to life as well.66 Costa Rica stated in the Nuclear Weapons Advisory Opinion that the right to life “has found support both within the United Nations treaties, declarations and resolutions as well in
57 ICJ, Judgement of 5 February 1970, Barcelona Traction Case, para. 34.
58 It goes without saying that this logic does not apply the other way around, in the sense that not all customary
rules are erga omnes obligations.
59 Supra note 57, para. 34.
60 A somewhat confusing case to cite in this context, as IHL is used in order to affirm the customary status of a
human right. However, as this is one of the main pieces of evidence coming from the ICJ, it is used in this context.
61 ICJ, Judgement of 27 June 1986, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), para. 218.
62 ICJ, Judgement of 9 April 1949, Corfu Channel case, page 22. 63 Canadian Charter of Rights and Freedoms (1982), section 7. 64 Art. 1 of the Basic Law for the Federal Republic of Germany (1949). 65 Art. 20 of the Indian Constitution (1950).
13 regional and international agreements.”67 Mexico submitted to the ICJ that the right to life is guaranteed by both conventional law and customary international law.68
It can be concluded that the right to life, as laid down in several binding and non-binding treaties of regional and international character, is part of customary international law and therefore binding upon all states. This is shown by the considerable number of treaty texts containing this right, United Nations practices, international jurisprudence, domestic legal systems and statements of states on the customary status of the right to life. This conclusion is consistent with the prevailing view in legal doctrine.69
2.3. Ratione loci
The extraterritorial application of (customary) human rights is of relevance in the context of the use of nuclear weapons, as the use of a nuclear weapon by a state on its own territory is not likely. The application of conventional human rights is restricted by jurisdictional clauses, limiting the obligations of state parties to the states’ territory and to persons within its jurisdiction.70 It is argued by some that these jurisdictional limitations do not apply on customary human rights.71 According to this view, states are bound by customary human rights norms, irrespective of the location or nature of their actions. This perspective is invalidated by the view that such an unrestricted applicability of customary human rights is unlikely to be accepted by states, and moreover, no forum is likely to enforce such a customary obligation directly.72 In the following part, the view adhering to an unrestrictive applicability of customary human rights norms will be assessed first. Subsequently the view holding that jurisdictional limitations are equally applicable to customary human rights law is assessed. Thirdly, the approach that holds that only negative human rights obligations are applicable extraterritorial
67 Written Statement by Costa Rica, Nuclear Weapons Advisory Opinion, pp. 6-7. 68 Written Statement by Mexico, Nuclear Weapons (WHO) case, 6 June 1994, para. 34.
69 Heyns, C. and Probert, T., ‘Securing the Right to Life: A cornerstone of the human rights system’, EJIL: Talk!, 11 May 2016:
https://www.ejiltalk.org/securing-the-right-to-life-a-cornerstone-of-the-human-rights-system/ ; Dimitrijevic, V., ‘Customary law as an instrument for the protection of human rights’, ISPI Working
Papers (2006) and Doswald-Beck, L., ‘Human rights law and nuclear weapons’ in: Nystuen, G. et al, Nuclear Weapons Under International Law, Cambridge University Press, 2014, p. 440.
70 Art. 1 ECHR, art. 2 ICCPR, art. 1 ACHR, art. 2 Arab Charter of Human Rights.
71 Lubell, N., Extraterritorial Use of Force against Non-State Actors, Oxford University Press, 2010, pp.
234-235.
72 Milanovic, M., Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy, Oxford
14 will be assessed. It will be argued that none of the views will prevent the application of the customary right to life on the use of nuclear weapons.
Under human right treaties, states are bound by human rights obligations with regards to persons on their territory and to persons that are subject to their jurisdiction. As there are no ‘customary law treaties’, there are no limiting jurisdictional clauses in this body of law. The Universal Declaration of Human Rights is used to substantiate the unrestricted applicability of customary human rights law, as it is said to be a source of customary human rights obligations.73 This document holds that “everyone is entitled to all the rights and freedoms”.74 It emphasizes that “no distinction shall be made on the basis of…jurisdictional or international status of the country or territory to which a person belongs”, “or under any other limitation of sovereignty.” The ICJ has referred to the obligation to observe and respect human rights in territories having international status.75 This implies human rights obligations outside the territory of states. Furthermore, the erga omnes doctrine seems to confirm such an approach. Hence, if a right is owed to the community as a whole, and all states are therefore obliged to respect this right at all times, it would not seem reasonable for a state to be able to escape this obligation by acting extraterritorially. This unrestricted application of customary human rights is affirmed by the US Operational Law Handbook, in which it is stipulated that customary human rights bind United States’ State actors “wherever such actors deal with human beings.”76 Furthermore, no qualification is made “as to where to violation might occur, or against whom it may be directed.” Furthermore, the 2013 US Law Handbook holds that “IHRL [international human rights law] based on CIL [customary international law] binds all States in all circumstances, and is thus obligatory at all times. For official U.S. personnel…dealing with civilians outside the territory of the United States, CIL establishes the human rights considered fundamental, and therefore obligatory.”77 This position is however in stark contrast with the position of the US government regarding the application of human rights treaties, as it reads jurisdictional clauses in a restrictive manner and holds that human rights treaties do not apply extraterritorial.78
73 Supra note 64, p. 233.
74 Art. 2 Universal Declaration of Human Rights
75 ICJ, Advisory Opinion of 21 June 1971, South West Africa, para. 131.
76 Rawcliffe, J. and Smiths, J. (eds), US Operational Law Handbook, International and Operational Law
Department, 2006, p. 47.
77 Johnson, W. (ed)., US Operational Law Handbook, International and Operational Law Department, 2013, p.
45.
15
The stance of an unrestricted applicability of customary human rights obligations can be opposed by the fact that it does not seem likely that states have accepted customary human rights obligations that are more far reaching than their obligations under human rights treaties.79 Moreover, it is argued that it is hard to distinguish the conventional from the customary rule, as it are mostly conventional rules that are invoked, not their customary counterparts. This makes it difficult to distill state practice and opinio juris that support the unrestricted application of customary human rights. Another, more convincing, view is that the standards from conventional human rights law are of decisive influence on the scope of its customary counterpart.80 From this perspective, the extraterritorial applicability of customary the right to life is similar to the conventional right to life.
The ICCPR stipulates in its jurisdictional clause that the Covenant applies to persons within its territory and to persons subject to the jurisdiction of signatories.81 In this respect, it should be noted that the ICJ applied the ICCPR in its Advisory Opinion on Nuclear Weapons without mentioning potential jurisdictional impediments. This implicates that the use of nuclear weapons is deemed to be within the limits of the jurisdictional clause of the ICCPR. Regional human rights treaties such as the American Convention on Human rights (‘ACHR’), the Arab Charter on Human Rights (‘AChHR’) and the European Convention on Human Rights (‘ECHR’) all specify that the rights in these treaties must be ensured to persons within the jurisdiction of its signatories. While this jurisdiction is primarily territorial,82 extraterritorial application is possible in cases of effective control over persons or areas outside its territory.83 Rationale behind this rule on extraterritorial jurisdiction is that jurisdictional clauses “cannot be interpreted in a way that it allows state parties to perpetrate violations of the Convention on
79 As argued by M Milanovic, M., Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy, Oxford University Press, 2011, p. 3.
80 Melzer, N., Targeted Killing in International law, Oxford University Press, 2008, p. 190; Heyns, C. and
Probert, T., ‘Securing the Right to Life: A cornerstone of the human rights system’, EJIL: Talk!, 11 May 2016: https://www.ejiltalk.org/securing-the-right-to-life-a-cornerstone-of-the-human-rights-system/ and Dimitrijevic, V., ‘Customary law as an instrument for the protection of human rights’, ISPI Working Papers (2006).
81 Art. 2 ICCPR, confirmed by the ICJ in the Israeli Wall Opinion, para. 108.
82 ECtHR, 12 December 2001, No. 52207/99 (Bankovic and others v. 17 NATO states), paras. 59-61 and
confirmed in ECtHR, 8 April 2004, No. 71503/01 (Assanidze v. Georgia), para. 137 and Israeli Wall Opinion, para. 109.
83 IAComHR, 29 September 1999, No. 109/99 (Coard et al v. United States), para. 37; IAComHR, 21 October
2010, No. 112/10 (Ecuador v. Colombia), para. 91; ECtHR, 16 November 2014, No. 31821/96 (Issa and others v. Turkey), para. 69; Human Rights Committee General Comment No. 31, para. 10.
16 the territory of another state, which it could not perpetrate on its own territory.”84 It this respect, it is of relevance to determine whether the use of a nuclear weapon outside its territory amounts to effective control in the sense that it renders human rights obligations applicable.
The IAComHR held that the bombing of a civilian plane by a Cuban plane over the high seas triggered the applicability of the American Declaration on the Rights and Duties of Man with regards to Cuba, since the attack ‘placed the civilian pilots… under their authority’.85 A similar conclusion was drawn when the Colombian military bombed alleged FARC camps on Ecuadorian territory.86 It was held that in order to establish jurisdiction, “it is necessary to determine whether there is a causal nexus between the extraterritorial conduct of the State and the alleged violation of the rights and freedoms of an individual.” It furthermore stipulated that the obligation to respect human rights of persons outside its territory arises in “the period of time that agents of a state interfere in the lives of persons who are on the territory of the other state”. This shows that under the ACHR a fairly low threshold for effective control is applied, as extraterritorial interference of a state in the life of individuals leads to extraterritorial jurisdiction. Hence, territorial control over an area is not required. As the extraterritorial use of nuclear weapons by a state inevitably interferes with human rights of individuals, such a use will be subject to human rights obligations.
The European Court of Human Rights (‘ECtHR’) has emphasized that extraterritorial jurisdiction must be seen as an exception and held that the bombing from the air of a Serbian television and radio station by NATO states fell outside the jurisdiction of these states.87 Nonetheless, in a later case the ECtHR held that the killing of persons in Iran by a Turkish helicopter was within the jurisdiction of Turkey, and that it was therefore not required to determine whether the people were killed on Turkish or Iranian territory.88 This implies that an act of a state party outside its territory that kills nationals of other states, amounts to effective control in a sense that it triggers human rights obligations. It should however be noted that in the underlying case, Turkey had accepted jurisdiction, which made it needless for the ECtHR
84 HRC, 29 July 1981, No. 52/1979 (Lopez Burgos v. Uruguay), para. 12.3 and HRC, 29 July 1981, No. 56/1979
(Celiberti de Casariego v. Uruguay), para. 10.3.
85 IAComHR, 29 September 1999, No. 86/99 (Alejandre and others v. Cuba), para. 25. 86 IAComHR, 21 October 2010, No. 112/10 (Ecuador v. Colombia), para. 99-100.
87 ECtHR, 12 December 2001, No. 52207/99 (Bankovic and others v. 17 NATO states), paras. 67 and 82. 88 ECtHR, 28 June 2007, No. 60167/00 (Mansur Pad and Others v. Turkey), paras. 53-55.
17 to assess whether there in fact was control leading to extraterritorial jurisdiction.89 In a different case, the ECtHR accepted Turkish jurisdiction when a Turkish agent had allegedly killed a person outside Turkish territory and in an UN buffer zone. 90 The ECtHR reasoned that the victim was “under the authority and/or effective control of the respondent state [Turkey] through its agents”. In yet another case, again on Turkey’s jurisdiction, the ECtHR considered that a person outside Turkish territory who was shot by Turkish agents was within the jurisdiction of Turkey, due to the fact that her injuries were directly and immediately caused by the conduct of Turkish agents.91
These foregoing judgements imply control over an individual as basis for extraterritorial jurisdiction, similar to the approach of the IAComHR. However, the ECtHR emphasized in 2011 that control over an individual can amount to jurisdiction only in limited circumstances, such as detention92 and in situations in which a state agent exercises public powers extraterritorially that are normally exercised by the territorial state.93 The ECtHR applies a higher threshold and dismisses the ‘mere’ extraterritorial killing by state agents as a basis for control.94 It is less reluctant to accept jurisdiction in cases of effective control over an extraterritorial area.95 In this context, the strength of military presence in the area is of relevance96, just like the influence and control over the region.97
This inconsistent practice of the ECtHR renders the applicability of the right to life on the extraterritorial use of nuclear weapons uncertain. Under the ‘cause-and-effect’ approach, applied by the ECtHR in the Turkish cases and by the IAComHR, human rights are applicable on the extraterritorial use of nuclear weapons due to the impact of such use on human lives. Whether the same holds true for the more recent approach of the ECtHR, under which control over an area must be established in order for the ECHR to be applicable, is less sure. However,
89 Ibid., para. 54.
90 ECtHR, 28 September 2006, No. 44587/98 (Isaak and Others v. Turkey), under ‘the Courts assessment,
application of the principles’.
91 ECtHR, 3 June 2008, No. 45653/99 (Andreou v. Turkey), para. 25. 92 ECtHR, 12 May 2005, No. 46221/99 (Öcalan v. Turkey), para. 91.
93 ECtHR, 12 December 2001, No. 52207/99 (Bankovic and others v. 17 NATO states), para. 71. 94 ECtHR, 7 July 2011, No. 55721/07 (Al Skeini and others v. UK), paras. 149-150.
95 ECtHR, 29 March 2010, No. 3394/03, (Medvedyev and others v. France), para. 64 and ECtHR, 7 July 2011,
No. 55721/07 (Al Skeini and others v. UK), para. 138.
96 ECtHR, 18 December 1996, No. 15318/89 (Loizidou v. Turkey), paras. 16 and 56.
18 as the scale of destruction caused by a nuclear weapon “cannot be contained in either space or time”98 and has devastating effects on all aspects of life, it would be nonsensical to argue that such a use would fall short of the required level of control.
The reluctance of the ECtHR to accept control over persons as a basis for extraterritorial jurisdiction is conceivable, as the obligations of states with regards to human rights in this approach would not be limited to their territory and areas to which they exercise a certain amount of control. Hence, it is unrealistic to expect states to ensure, secure and respect human rights to all individuals on this planet, irrespective of the location of these individuals or the degree of control over an area, exercised by that state. On the other hand, an approach in which jurisdiction is only based on the authority and control over a specific area would create a vacuum in which a state is allowed to act inconsistent with human rights, as long as there is no authority and control exercised over that specific area. In other words, states would be allowed to perpetrate violations of the Convention on the territory of another state, which it could not perpetrate on its own territory. In this context, positive and negative obligations must be distinguished. Positive obligations under human rights are the obligations to ensure and secure rights, while negative obligations entail the duty to refrain from certain conduct that would interfere with human rights. Hence, the ability of a state to comply with its negative obligation to respect human rights is not dependent on factual authority and control over a specific area.99 This ability to comply with negative human rights obligations is mainly dependent on a states’ control over its agents, which it by definition has. 100
As argued by Milanovic, the duty to refrain from conduct that interferes with human rights should apply extraterritorial and unrestricted by any jurisdictional threshold. When such an obligation is violated, positive duties, such as the obligation to investigate the former violation, will be activated. Primary positive obligations, which are the obligations to ensure and secure human rights, are only applicable within its own territory and when authority and control is exercised extraterritorially. This approach to jurisdiction does not require a lot of imagination, as article 1 ECHR stipulates that parties “shall secure and ensure to everyone within their
98 Nuclear Weapons Advisory Opinion, para. 35.
99 Milanovic, M., Extraterritorial Application of Human Rights Treaties: Law, Principles and Policy, Oxford
University Press, 2011, p. 141.
100 Consistent with the view of Kretzmer, D., ‘Targeted Killing of Suspected Terrorists: Extra-Judicial
Executions or Legitimate Means of Defence?’, The European Journal of International Law (2005), Vol. 16, No. 2, p. 185.
19 jurisdiction” the rights and freedoms as defined in the Convention. Note that no specific jurisdictional restriction with regards to respecting human rights is laid down in this provision. Analogue to the ICJ’s judgement in the Bosnian Genocide case, this negative obligation is implicit in the Convention.101 The jurisdictional clause of the ICCPR can be read in accordance with this approach, as it stipulates that “parties undertake to respect and to ensure to all individuals within its territory and subject to its jurisdiction.”102 This provision can be read in a way that the territorial and jurisdictional requirements apply only to the duty to ensure. In the foregoing part, different approaches to the extraterritorial applicability of the customary right to life were assessed. According to the first theory, this customary human right is applicable without any jurisdictional restrictions. If this approach is followed, the customary right to life would be applicable unrestricted when a nuclear weapon is used extraterritorially. However, as this approach does not seem the most conceivable, the theory under which the jurisdictional limitations are similar to the conventional right were assessed. Under the ACHR, the use of a nuclear weapon would amount to control over individuals, rendering the Convention applicable. Under the ECHR, the outcome is less easy to predict, as its case law is rather inconsistent. However, it is argued that the use of nuclear weapons would render the Convention applicable, as the impact would be of such scale that it amounts to effective control over the area. Yet, a more desirable approach to extraterritorial jurisdiction that would result in more legal certainty and a higher degree of protection against human rights’ violations would be to apply negative obligations extraterritorially, without any restrictions. This latter approach would provide for the obligation of states not to interfere with the right to life of people outside its territory. This would be highly applicable to the use of nuclear weapons, given the severe effects of such a use.
2.4. Ratione materiae
While the ICJ held in its 1996 Advisory Opinion that the conventional right to life does not, as such, prohibit the use of nuclear weapons, the Human Rights Committee has had a different take on this. In its General Comments, it has subsequently questioned the compatibility of the
101 The prohibition to commit genocide is not explicitly laid down in the Genocide Convention, but the ICJ held
that this prohibition is implicitly part of the Genocide Convention.
20 right to life and (the use of) nuclear weapons.103 In 1984 it stated that the use of nuclear weapons
should be prohibited, implicating that it was not at that point.104 Nonetheless, its latest General Comment on the right to life, the Committee takes a more firm stance when it stipulates: “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”.105
This stance of the Committee is unsurprisingly not in accordance with the views of all specially affected states. France, in possession of nuclear weapons, rejects the consideration of the Committee by adhering to the ICJ Advisory Opinion of 1996, stating that IHL is decisive in determining whether such a use is lawful or not.106 Norway and the United Kingdom, the latter in possession of nuclear weapons as well, both adhere to the Advisory Opinion, as they declare that IHL is decisive when considering whether the use of a nuclear weapon is prohibited or not.107 The United States, also a nuclear power, goes even further by submitting that it is not within the competence of the Committee to engage in the lawfulness of nuclear weapons.108 It furthermore stipulates that it is of the opinion that IHL is decisive for the lawfulness of such a use, instead of HRL. Germany argues in its observations on the draft version of General Comment No. 36 that the threat to use nuclear weapons is not incompatible with the right to life.109 It does however not oppose to the use of nuclear weapons being incompatible with the right to life. Surprisingly, Russia only comments on the proliferation of nuclear weapons, not on the use.110 Brazil on the other hand, not in possession of nuclear weapons, explicitly adheres to the view of the Human Rights Committee.111 Other states who have submitted observations have not explicitly rejected the stance of the Committee, which can be considered as
103 In General Comment No. 6 (1982), para. 2 the HRC considers that states must ‘avert the danger of nuclear
war and strengthen international peace and security, as this would constitute the most important condition and guarantee for the safeguarding of the right to life.’ In General Comment No. 14 (1984), para. 4 it stated that the “use of nuclear weapons is amongst the greatest threats to the right to life which confront mankind today.”
104 HRC, General Comment No. 14 (1984), para. 6. 105 General Comment No. 36, para. 66.
106 Submission from France on the draft General Comment No. 36, paras. 14-15.
107 Submission from Norway on the draft General Comment No. 36, p. 2 and Submission from the United
Kingdom, para. 13.
108 Submission from the United States on the Draft General Comment No. 36, para. 19. 109 Submission from Germany on the Draft General Comment No. 36, para. 19.
110 Submission from the Russian Federation on the Draft General Comment No. 36), para. 11. 111 Submissions from Brazil on the Draft General Comment No. 36.
21 acquiescence of the incompatibility of nuclear weapons with the right to life.112 It may therefore be assumed that the stance of the Committee on nuclear weapons is accepted as legitimate by these states.113
From the 23 states that have submitted observations, only three nuclear states and one non-nuclear state have rejected the incompatibility of the use of non-nuclear weapons with the right to life. 19 States from all continents have adopted the stance of the Committee, either explicit or through acquiescence. From those 19 states, one state has experienced the effects of nuclear weapons (Japan) and two have these weapons present on their territory (Germany and The Netherlands). This inquiry makes clear that the incompatibility of nuclear weapons with the right to life is not excluded by a majority of states rejecting such a rule.
It is argued that material scope of the customary right to life and thus its applicability on the use of nuclear weapons is determined by the material scope of the conventional right to life, because of which the material scope of this latter right will be dealt with in the following part.114 It will be argued that despite its fundamental status, its reputation as ‘the most basic human right of all’, and that its ‘fundamental nature is clear from the fact that it is non-derogable’, its protection is not as encompassing as one might expect. It will be concluded that the protection this right offers against the use of nuclear weapons is not watertight, as it is dependent on the ruling circumstances.
The conventional right to life contains the obligation to protect life, and the obligation not to arbitrarily deprive a person of its life.115 In the following part, the focus will be on the latter obligation, as this will potentially affect the legality of the use of nuclear weapons. Because the
112 These states are: Australia, Austria, Canada, Denmark, Finland, Japan, Malta, Namibia, New Zealand,
Poland, Portugal, Sweden, Switzerland, the Netherlands and Turkey. The observations from Egypt are in Arabic and therefore impossible to read. However, in its submissions to the ICJ in the Nuclear Weapons Advisory Opinion, it explicitly rejected the compatibility of nuclear weapons with the right to life in para. 64.
113 Shaw, M.N., International Law, Cambridge University Press, 2017, p. 66.
114 Melzer, N., Targeted Killing in International law, Oxford University Press, 2008, p. 190; Heyns, C. and
Probert, T., ‘Securing the Right to Life: A cornerstone of the human rights system’, EJIL: Talk!, 11 May 2016: https://www.ejiltalk.org/securing-the-right-to-life-a-cornerstone-of-the-human-rights-system/ and Dimitrijevic, V., ‘Customary law as an instrument for the protection of human rights’, ISPI Working Papers (2006).
115 Provisions on the right to life in the African Charter on Human and Peoples’ Rights, Arab Charter on Human
Rights, American Charter on Human Rights and the ICCPR all contain the word ‘arbitrarily’. Article 2 ECHR does not provide for ‘arbitrary’ in its wording, but this condition does flow from the Courts’ case law, for example in ECtHR, 6 July 2005, Nos. 43577/98 and 43579/98 (Nachova and Others v. Bulgaria), para. 99. It is affirmed in Korff, D., ‘Guide to the implementation of Article 2 of the ECHR’, 2006).
22 right to life is excluded from derogation, it remains in force during war and public emergencies, which means that the right not arbitrarily to be deprived of one’s life applies in times of war, as well as peace.116 It must be noted that the ECHR provides that “deaths resulting from lawful acts of war” do not constitute violations of the right to life.117 The ECHR specifies that this right contains the duty of states to not use more force than ‘absolutely necessary’.118 When more force is applied than absolutely necessary, a person is deprived of its life arbitrarily. As ‘arbitrary’ is the decisive criterion in this context, it has to be determined what constitutes as an arbitrary deprivation of life.
It must be emphasized that for a violation of the right to life, deaths are not necessary. When acts of the state have seriously endangered a person’s life 119 or have caused life-threatening diseases,120 the right to life is interfered with. The Human Rights Committee has held that all individuals must 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.’121 This is relevant in the context of nuclear weapons, as even persons who initially survive such an attack may later die or suffer life-threatening diseases as a result of burn and blast injuries, or from the radioactive debris that is caused by such an attack. I do however note that when nuclear weapons are used in such way that civilian life is not harmed, or the harm does not reach the threshold of severity, for example when such a weapon is used on the high seas, the right to life is not affected and will not render that use of a nuclear weapon unlawful.
The Human Rights Committee has stipulated that a deprivation of life is arbitrary when it is inconsistent with international law. It clarifies this apparent circular reasoning by stating that a deprivation is deemed arbitrary when it “includes elements of inappropriateness and injustice”, and lacks “predictability, due process, reasonableness, necessity and proportionality.”122 This is consistent with the ECtHR, according to which the use of force must be restricted to what is
116 Nuclear Weapons Advisory Opinion, para. 25. 117 Art. 15 (2) ECHR.
118 Art. 2(2) ECHR.
119 ECtHR, 20 December 2004, No. 50385/99 (Makaratzis v. Greece), paras. 49 and 55. 120 ECtHR, 9 June 1998, No. 14/1997/798/1001 (L.C.B. v. The UK), para. 36.
121 General Comment No. 36, para. 3. 122 General Comment No. 36, para. 12.
23 absolutely necessary.123 This criterion of ‘absolutely necessary’ is elaborated by the ECtHR in its case law, and shows a lot of similarities with the criteria from IHL.124 Under the ECtHR, the use of force must be ‘strictly proportionate to the achievement of the aims’125 and all feasible precautions must be taken in order to prevent or minimize the loss of civilian life.126 This means that preventing or minimizing damage must play a significant role in selecting a specific kind of weapon.127 Furthermore, the ECtHR held that a violation of this principle is not dependent on the actual civilian damage caused, but on the scrutiny of the state prior to the attack. The ECtHR applied the same approach in a later case and stated that “the primary aim of the operation should be to protect lives from unlawful violence. The massive use of indiscriminate weapons stands in flagrant contrast with this aim and cannot be considered with the standard of case prerequisite to an operation of this kind involving the use of lethal force by state agents.”128 In a later case, the ECtHR held that the amount of force used was necessary to achieve the aim, but considered that the attack was indiscriminate and therefore in violation with the right to life, because of the kind of weapons that were used within a populated area.129
The Inter-American Court on Human Rights (‘IACtHR’) is consistent with the ECtHR, in stating that the use of force must be “absolutely necessary in relation to the force or threat to be repealed.”130 When excessive force is applied, any deprivation of life is deemed arbitrary.131 The IACtHR has interpreted the right to life in light of IHL, applying the requirements from IHL to determine whether the right to life was violated.132 However, in considering the military
123 ECtHR, 13 March 2007, No. 57389/00 (Huohvanainen v. Finland), para. 93-94; ECtHR, 25 April 2006, No
19807/92 (Erdogan v. Turkey), para. 67 and ECtHR, 22 November 2005, No. 38595/97 (Kakoulli v. Turkey), paras. 107-108.
124 The prohibition of disproportionate attacks ex art. 51 (5)(b) and the obligation of precautionary measures ex
Chapter IV of Additional Protocol I to the Geneva Conventions.
125 Art. 15 (2) ECHR provides for the additional exception that the right to life is not violated if a death results
from a lawful act of war.
126 ECtHR, 17 March 2005, No. 50196/99 (Bubbins v. UK), para. 136 and ECtHR, 27 September 1995, No.
18984/91 (McCann and others v. UK), para. 194.
127 ECtHR, 28 July 1998, No. 23818/94 (Ergi v. Turkey), para. 79. 128 ECtHR, 24 February 2005, No. 57950/00 (Isayeva v. Russia), para. 91.
129 ECtHR, 3 May 2011, No. 1503/02 (Khamzayev v. Russia), paras. 179-180 and 185.
130 IACtHR, 4 July 2007, Series C No. 166 (Zambrano Vélez et al. v. Ecuador), para. 84 and IACtHR, 5 July
2006, Series C No. 150 (Montero Aranguren et al v. Venezuela), para. 68.
131 Ibid. This approach is different from the proportionality rule in IHL, under which the expected civilian
damage, injury and death must not be excessive in relation to the expected military advantage. The military advantage plays no part under HRL, as the proportionality rule entails the duty to apply the least amount of force available to achieve the aim.
24 advantage, it did not limit itself to the advantage anticipated, which is decisive under IHL. Instead, it assessed whether actual military advantage had taken place,133 and held the right to life was violated because no precautions were taken to prevent or minimize civilian deaths.134 It can be distilled that for a lawful use of force under the right to life, the force must be proportionate in relation to the purpose.135 Proportionality in this context entails the duty to apply the least amount of force available to achieve the aim.136 Precautions must be taken with regard to the methods and means, with a view to prevent or minimize loss of civilian life. Furthermore, operations must be planned and executed with careful scrutiny. It is hard to imagine how the use of a weapon that would cause impact that “would not be constrained by national borders and could have regional and even global consequences, causing destruction, death and displacement as well as profound and long-term damage to the environment, climate, human health and well-being, socio-economic development, social order and could even threaten the survival of humankind”, meets the requirement of ‘least amount of force available to achieve the aim’ and is therefore not inconsistent with the customary right to life.137 However, the ruling circumstances will be decisive.
The use of a nuclear weapon is very likely to cause an enormous amount of death, injury and damage that will not be restricted to the targeted territory per se. As the right to life is likely to apply on the extraterritorial use of nuclear weapons, due to its great scale impact on individuals, the customary right to life will be as well. This right prohibits the arbitrary deprivation of life, which includes the prohibition to arbitrarily cause serious injuries. When an excessive amount of force is used, this will violate the right to life. It will however be dependent on the ruling circumstances whether such a use is in violation of the right. If there were no less destructive weapons available to achieve the aim, and precautions were taken to minimize damage, death and injury, such a use will be in accordance with the right to life. It is hard to imagine a situation in which such a use is justified. Let’s hope it will stay like that.
133 Ibid., para. 215.
134 Ibid., para. 230.
135 Lubell,N., ‘Challenges in Applying Human Rights Law to Armed Conflict’, International Review of the Red Cross (2005), Vol. 87, No. 860, p. 745.
136 This meaning is different from the proportionality rule from IHL, which entails the balancing act between the
anticipated military advantage and the expected damage to the surrounding people and objects.
137 Report and Summary of Findings of the Conference, Vienna Conference on the Humanitarian Impact of
25
3
The right to a healthy environment
3.1. Background
As put forward by the ICJ in 1996, nuclear weapons “have the potential to destroy… the entire ecosystem of the planet. … The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. … Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.”138 Furthermore, a large scale nuclear war would cause a climate disruption that significantly decreases the precipitation and the average surface temperature, leading to the loss of an estimated four million lives.139 Research on the consequences on the climate and agriculture of a limited and regional nuclear war between India and Pakistan showed that this would lead to climate disruption as well, which would lead to one billion people in the developing world facing possible starvation and an extra 1.3 billion people confronted with severe food insecurity.140 Block of sunlight would cause a drop in global temperatures by more than one degree Celsius. Larger drops in temperature would occur in all probability as well, as the temperature drops would not be evenly distributed. In addition, the ozone layer might be depleted, which would further affect the plant growth and human health.141 In addition, considerable damage will be done to ecosystems, caused by lingering radiation in soil, plants and in food chains, in particular marine food chains.142
As the impact of nuclear weapons on the global climate and environment is both inevitable and considerable, the following part will be dedicated to the right to a healthy environment. Such a right could potentially render the use of nuclear weapons illegal, given the destructive impact on the environment of such a use. Contrary to the right to life, the right to a healthy environment will render the use of nuclear weapons illegal under all circumstances, irrespective of the harm caused to civilian life, scrutiny in planning and executing, and the number of deaths caused by the use. In the following part, it will be analyzed whether the right to a healthy environment is part of customary international law, by assessing its presence in the sources of law as laid down in article 38 of the Statute of the International Court of Justice. First, its presence in international
138 Nuclear Weapons Advisory Opinion, para. 35. 139 Ibid., research from the 1980s, p. 3.
140 Helfand, I., ‘Nuclear famine: two billion people at risk?’, International Press (2012), p. 1. 141 MacDonald, J., ‘The Environmental Impact of Nuclear War’, Jstor Daily, 26 August 2017:
https://daily.jstor.org/the-environmental-impact-of-nuclear-war/
