Aotearoa Lawyers for Peace

Speech by Alyn Ware
Global Coordinator, Parliamentary Network for Nuclear Disarmament
Consultant, International Association of Lawyers Against Nuclear Arms

at the 40th Anniversary of the Treaty of Tlatelolco
Mexico Feb 14-15, 2007

Secretary-General, Your Excellencies, distinguished delegates, ladies and gentlemen,

I
wish to commend the government of Mexico for the initiative to
commemorate the 40th Anniversary of the Treaty of Tlatelolco, and thank
them for the invitation to me to speak about finding a strategy to
advance nuclear disarmament.
I was lucky to arrive in Mexico City a
couple of days before this conference and had the chance to visit some
of the fabulous museums and galleries here which house impressive works
reflecting the rich histories and cultures of Mexico. One of the art
forms which impressed me considerably was the Mayan weaving –
magnificent cloths in which great stories and philosophies are depicted
through pictures and symbols created by an interconnected weaving of
threads of many colours.

These weavings got me thinking
about the world we are trying to create – a nuclear-weapons-free world
– and what the fabric of that society would be like. And it also got me
thinking about a strategy to advance nuclear disarmament, which was the
topic I was asked to talk about. I came to appreciate that, just as
there is not one thread to make a weaving but many threads working
together, nor is there only one strategy that will build us a nuclear
weapon free world. There are very strong political forces in the NWS
preventing them from disarming and it will take a combination of
strategies at different levels to build enough political strength to
achieve nuclear disarmament.

I will mention a few strategies
that I think could help. I will discuss nuclear weapon free zones,
national abolition measures, the Model Nuclear Weapons Convention, the
Article VI Forum, a possible new diplomatic group at the United Nations
and the proposal for a new case in the International Court of Justice.

I’d
like to begin with the somewhat under-valued achievement of the
creation of the nine nuclear weapon free zones – Antarctica, the sea
bed, outer space, Latin America and the Caribbean, South Pacific, South
East Asia, Africa, Mongolia and most recently Central Asia.

Some
cynics argue that these zones do not mean much as the nuclear weapon
states are still free to deploy their nuclear weapons in their own
territories, in the territories of some of their allies and throughout
the oceans. I believe however, that these zones have strengthened the
moral, political and legal norm against nuclear weapons, demonstrated
that the majority of States believe that there is no need for nuclear
weapons to provide for their security, and serve as a conceptual and
political stepping stone towards a nuclear weapons free world.

The
zones also consolidate a nonproliferation norm that otherwise might
have been threatened. In Latin America, for example, two neighbouring
countries which had been pursuing nuclear programmes, were convinced to
join the Treaty of Tlatelolco, in the process curtailing any possible
nuclear weapons ambitions or capabilities and making it very unlikely
that they would reverse this. In Central Asia the possibility of
deployment of nuclear weapons, under security relationships with Russia
and the US, appears to have been effectively and pre-emptively
prevented by the conclusion of their NWFZ Treaty.

Thus
the creation of additional NWFZs would be very helpful in further
strengthening the norm against nuclear weapons and in further reducing
the already small number of States where nuclear weapons play a role in
security doctrine. Specific attention is now being given by members of
the Parliamentary Network for Nuclear Disarmament, and by academics and
nongovernmental organizations, to the possible establishment of NWFZs
in North East Asia, Europe the Middle East and the Nordic/Arctic region
(possibly including Canada). There are a number of international
conferences on these initiatives being planned this year in Mongolia,
Switzerland, Japan/Korea and the Middle East.

States can
also strengthen the norm against nuclear weapons through national
measures which go beyond the obligations under a NWFZ. The Philippines,
for example has a constitutional provision prohibiting nuclear weapons
from its territory which it says includes its territorial and
archipelagic waters.¹
New Zealand has adopted legislation which not only prohibits nuclear
weapons on its land and territorial waters, but also makes it a crime
for New Zealand officials to be engaged in nuclear weapons activities,
or to aid or abet such activities, anywhere in the world.²
Austria has adopted legislation to prohibit nuclear weapons and nuclear
energy and indicating the expectation of compensation should there be
any nuclear accident impacting on their territory or population.³

Similar
actions by national governments and legislatures to prohibit and
criminalize nuclear weapons would further strengthen the global norm of
illegality of these weapons. This would be true particularly if States
took an additional step of applying such law extra-territorially for
citizens as well as public officials, and universally.
Extra-territoriality would mean that it would be illegal for any
citizen to engage in nuclear weapons activities regardless of where in
the world they undertake such activities. So, for example, they would
not be permitted to work in the nuclear weapons production or
deployment facilities of any country. Universality would mean that the
State could exercise jurisdiction over such activities regardless of
where in the world the crime was committed and regardless of the
citizenship of the perpetrator. A government official or military
leader who had threatened or used nuclear weapons could be arrested and
charged by any country adopting such law.
These are provisions that
many countries have adopted with relation to biological and chemical
weapons and which countries are being asked to adopt with regard to
nuclear weapons proliferation and non-State actors under UN Security
Council Resolution 1540. The determination by the International Court
of Justice in 1996 that the threat or use of nuclear weapons is
generally illegal provides the rationale for States to adopt
comprehensive nuclear abolition laws applying to both State and
non-State actors.⁴

New Zealand, in its report to the UN Security Council 1540 Committee,⁵
argued that laws and measures to prevent nuclear proliferation should
apply to both State and non-State actors, and that such laws and
measures should aim to both prevent proliferation and achieve nuclear
disarmament, as was done with New Zealand’s anti-nuclear legislation.

In 1997 Costa Rica submitted to the United Nations a Model Nuclear Weapons Convention⁶
which had been drafted by a consortium of lawyers, scientists and
disarmament experts. The Model NWC, structured somewhat like the
Chemical Weapons Convention, explores the legal, technical and
political requirements for the elimination of nuclear weapons. It
demonstrates the feasibility of nuclear disarmament and aims to
stimulate governments to think about, plan for and start negotiations
for complete nuclear disarmament. If we return to the Mayan cloth
simile for a nuclear-weapons- free world, the Model NWC is like the
pattern or design for the woven cloth. It helps us determine the
framework for a nuclear weapons free world in order that we can more
readily take the various steps to get there.

The Model NWC is
currently being updated with the intention to release it at the 2007
NPT Prep Com. We hope that States will take advantage of this to
strengthen their efforts to commence negotiations leading to complete
nuclear disarmament, and also to extend the exploration and development
of the legal, technical and political elements required for a nuclear
weapons free world, as proposed by Malaysia and Costa Rica at the 2005
NPT Review Conference.⁷

Such
work may be difficult in the multilateral fora due to continued
resistance by the NWS. However, much can be done in informal fora. In
October 2005, the Middle Powers Initiative established the Article VI
Forum, a process for likeminded States to examine and develop the
legal, technical and political elements and mechanisms for establishing
a nuclear weapons free world.⁸
To date about 40 governments have participated in Article VI Forum
meetings in New York, the Hague and Ottawa. The next one is scheduled
for Vienna.

Progress in international fora could be
enhanced if there was a strong diplomatic grouping to advance and
support nuclear disarmament initiatives. There are small groups such as
the New Agenda Coalition which are promoting nuclear disarmament
initiatives, but by themselves they have few votes. The current main
groupings - the EU, Western Group, Eastern Group and Non-Aligned
Movement - all include States which possess nuclear weapons and are
resistant to disarmament. A new grouping comprising the States parties
to NWFZs could provide a block of 113 countries that have the
credibility as non-NWS to promote nuclear disarmament and the numbers
to support any initiatives. Hiroshima Mayor Akiba, President of Mayors
for Peace, in his message to this conference, has suggested that the
NWFZ states work together at the United Nations General Assembly this
year to propose an international conference on eliminating nuclear
dangers in the context of disarmament.
What-ever the forum used for
disarmament, a key factor in ensuring success is the degree of legal,
political and moral weight for nuclear disarmament that can be
generated. Recent developments have helped, including the report of the
Weapons of Mass Destruction Commission,⁹ recent statements by Kofi Annan,¹⁰ Nobel Peace Laureates¹¹ and former US officials Henry Kissinger, George Schultz, William Perry and Sam Nunn.¹²

Another
possibility to increase this is to secure an opinion from the ICJ on
the NWS non-compliance with disarmament obligations. The 1996
International Court of Justice Advisory Opinion on the legality of
nuclear weapons was instrumental in affirming the general illegality of
the threat or use of nuclear weapons and in also affirming the
obligation to achieve nuclear disarmament. However, the NWS have
exploited the generality of the opinion, and the fact that no timeframe
for implementation was set, to evade their responsibilities. The
International Association of Lawyers Against Nuclear Arms, one of the
pioneers of the 1996 case, is currently undertaking consultations on a
proposal to request the ICJ for an advisory opinion on the issue of
non-compliance with nuclear disarmament obligations. IALANA would
welcome contact with any interested governments.

Secretary-general,
your excellencies, ladies and gentlemen. This year is the 61st
anniversary of the nuclear bombing of Hiroshima and Nagasaki and of the
founding of the United Nations. Let us use this occasion to heed the
cry of the Hibakusha – the nuclear survivors, and to honour the very
first resolution of the United Nations General Assembly to use our
collective vision and energies to abolish and eliminate these devices
of terror and mass extermination from the planet. OPANAL and its member
States can lead the way and the rest of the world will join with you in
this endeavour.

¹Philippine Constitution, Article II, Section 8

²New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act, 1987.
See http://www.gsinstitute.org/pnnd/docs/nukefree.html

³Federal Constitutional Act concerning a Nuclear-free Austria, 1999.
See http://www.gsinstitute.org/pnnd/docs/federal_constitutional_act_concerni...

⁴See International Ju-Jitsu: Using United Nations Security Council Resolution 1540
to Advance Nuclear Disarmament www.lcnp.org/disarmament/Ju-Jitsu_UNSC1540.htm

⁵New
Zealand Report to the UN Security Council 1540 Committee, October 2004.
www.gsinstitute.org/pnnd/NZUNSC1540.htm For all national reports see
http://disarmament2.un.org/Committee1540/report.html

⁶UN Document A/C.1/52/7. www.inesap.org/publ_nwc.htm (in all six official UN languages)

⁷NPT/CONF.2005/WP.41.
Follow-up to the Advisory Opinion of the International Court of Justice
on the Legality of the Threat or Use of Nuclear Weapons: Legal,
technical and political elements required for the establishment and
maintenance of a nuclear weapon-free world. Working Paper submitted by
Malaysia, Costa Rica, Bolivia, Democratic Republic of Timor-Leste,
Nicaragua, and Yemen.
http://www.reachingcriticalwill.org/legal/npt/RevCon05/wp/WP41.pdf

⁸See http://www.gsinstitute.org/mpi/index.html

⁹See http://www.wmdcommission.org/

¹⁰Secretary-General
calls for progress on both nuclear disarmament, non-proliferation,
UNDPI, 28 November 2006.
http://www.un.org/News/Press/docs/2006/sgsm10767.doc.htm

¹¹The Rome Declaration of Nobel Laureates, 19 November 2006. http://www.gsinstitute.org/docs/Rome_Declaration_2006.pdf

¹²A World Free of Nuclear Weapons, Wall Street Journal, 4 January 2007. http://www.gsinstitute.org/docs/01_04_07_WSJ.pdf