Human Rights Versus Nuclear Weapons:
New Dimensions
Lawyers Committee on Nuclear Policy | January 2021

Commentary and Analysis regarding UN Human Rights Committee
General Comment no. 36; the Treaty on the Prohibition of Nuclear
Weapons; Human Rights, Democracy, and Nuclear Weapons

Contributors
Roger Clark, Ariana Smith, Peter Weiss, Daniel Rietiker, Bonnie
Docherty, and Andrew Lichterman

Table of Contents
Authors __________________________________________________________________ 3
Preface___________________________________________________________________ 4
Roger Clark: The Human Rights Committee, The Right to Life and Nuclear Weapons:
The Committee’s General Comment no. 36 on Article 6 of the Covenant on Civil andPolitical Rights ____________________________________________________________ 5
Ariana Smith: The UN Human Rights Committee and the Threat of Use of Nuclear
Weapons ________________________________________________________________ 13
Peter Weiss: Reflections on the UN Human Rights Committee’s General Comment _____ 16
Daniel Rietiker: The Relevance of Human Rights for Use of Nuclear Weapons andTheir Utility in the Fight Against Those Weapons—With Particular Attention Paid
to “Civil” Rights __________________________________________________________ 18
Bonnie Docherty: The Treaty on the Prohibition of Nuclear Weapons and International
Human Rights Law ________________________________________________________ 31
Andrew Lichterman: Humanitarian Law, Human Rights, and Nuclear Weapons:Social Movements and the Path of Legal Development ___________________________ 37

2

Authors
Roger S. Clark
Board of Governors Professor of Law, Rutgers Law School; member of the legal team for the
Marshall Islands in its nuclear disarmament cases in the International Court of Justice.

Ariana N. Smith
In 2018 when she made the remarks upon which her paper is based, Smith was a student at CUNY
Law; fellow, Sorensen Center for International Peace and Justice; and intern, Lawyers Committee on
Nuclear Policy (LCNP). She is currently LCNP’s Executive Director.

Peter Weiss
President Emeritus, Lawyers Committee on Nuclear Policy; President Emeritus, International
Association of Lawyers Against Nuclear Arms; Emeritus Advisory Board, European Center for
Constitutional and Human Rights.

Daniel Rietiker, Ph.D.
Adjunct Professor of International Law and Human Rights Law, Lausanne University and Suffolk
University Law School; member of the International Committee on Nuclear Weapons, Nonproliferation and Contemporary International Law of the International Law Association; CoPresident, International Association of Lawyers Against Nuclear Arms; President, Swiss Lawyers for
Nuclear Disarmament.

Bonnie Docherty
Associate Director of Armed Conflict and Civilian Protection and a Lecturer on Law at theInternational Human Rights Clinic, Harvard Law School. She participated actively in thenegotiations of the Treaty on the Prohibition of Nuclear Weapons.

Andrew Lichterman
Senior Research Analyst, Western States Legal Foundation, Oakland, California; Board of Directors,
International Association of Lawyers Against Nuclear Arms; Board of Directors, Campaign for
Peace, Disarmament, and Common Security; Coordinating Committee, United for Peace and Justice.

3

Preface
We are witnessing a resurgence of interest in the application of international human rights law to one ofthe principal threats to the human future: nuclear weapons. A general comment issued by the UN Human
Rights Committee in 2018 finds the threat or use of nuclear weapons to be incompatible with respect for
the right to life. The Treaty on the Prohibition of Nuclear Weapons adopted a year earlier is suffused witha humanitarian perspective, protects the rights of victims of testing and use of nuclear arms, and cites
human rights law and the principles of humanity in its preamble.
Lawyers Committee on Nuclear Policy (LCNP) twice brought together leading lawyers, law professors,
and analysts to reflect on these developments. The first event, held on Human Rights Day, December 10,
2018, at the Bahá’í United Nations Office in New York City, was entitled “The Right to Life Versus
Nuclear Weapons: A Bold Intervention by the UN Human Rights Committee,” and was co-sponsored by
the Sorensen Center for International Peace and Justice, CUNY Law. It featured Roger Clark, adistinguished international law professor; Ariana Smith, CUNY Law student at the time of the event andcurrent LCNP Executive Director; and Peter Weiss, a pioneering human rights lawyer and LCNP
President Emeritus.
The second event, held May 1, 2019 at the United Nations on the side of a Nuclear Non-Proliferation
Treaty meeting, was entitled “Human Rights, Democracy, and Nuclear Weapons.” It featured Daniel
Rietiker of the University of Lausanne and Suffolk University Law School; Bonnie Docherty of theHarvard Law International Human Rights Clinic; and Andrew Lichterman, Senior Research Analyst,
Western States Legal Foundation. Videos of both events are available at www.lcnp.org.
Then serving as LCNP Executive Director, I had the privilege of moderating the two events. I was struckby the knowledge, insight, and commitment of the speakers. They indeed did illuminate new dimensionsof the application of human rights law to nuclear weapons. That is an important contribution. Humanrights are about the sanctity of the human person, anytime, anywhere. Their basis, however it ischaracterized, ultimately does not lie in actions and agreements of governments. Human rights are an
indispensable tool in the work of ensuring the non-use of nuclear weapons and accomplishing theirelimination—tasks that cannot be left to governments alone.
This publication collects papers based on the speakers’ remarks. Roger Clark, Ariana Smith, Peter Weiss,and Daniel Rietiker examine and reflect upon the significance and implications of the finding of the UN
Human Rights Committee. Bonnie Docherty addresses human rights aspects of the Treaty on theProhibition of Nuclear Weapons. Andrew Lichterman explores how human rights discourse could be aterrain for making connections between disarmament movements and other movements for a more fair,democratic, and ecologically sustainable society. I heartily recommend each of the papers.

Dr. John Burroughs
Senior Analyst, Lawyers Committee on Nuclear Policy

4

The Human Rights Committee, The Right to Life, and Nuclear Weapons: The
Committee’s General Comment no. 36 on Article 6 of the Covenant on Civil
and Political Rights*
Roger S. Clark
Board of Governors Professor of Law, Rutgers Law School

I shall address two main themes exemplified by the Human Rights Committee’s (HRC) Comment; one is
the way in which international law and the practice of international bodies such as the HRC develop by
accretion and cross-fertilization from discrete areas of material. Think of my remarks on this theme as asketch of the intellectual history of the ideas on nuclear weapons that find themselves in General
Comment 36,1 adopted, as is the Committee’s practice, by consensus.2 Nuclear weapons are dangerous tohuman beings and other living things, dangerous to the very survival of Spaceship Earth itself. How to putthat in legal language?
My second theme is institutional. The proposition is that if someone sets up a constitutional document,
whether as a structure for government or as, say, an International Bill of Rights, it will take on a life of its
own, both procedurally and substantively. This is especially true if one devises a body such as a Court ora Committee to oversee in some way; that body will get creative and develop the instrument in ways ofwhich the founders may never have dreamed. If you build it, they will come!
Article 6 is the first substantive provision in the Covenant on Civil and Political Rights. Its opening
paragraph states, succinctly, that “Every human being has the inherent right to life. This right shall beprotected by law. No one shall be arbitrarily deprived of his life.” Perhaps indicating the preoccupationsof the drafters, this paragraph is followed by four, wordier, paragraphs cabining in the exercise of capital
punishment.3
This is the third time that the Committee has addressed the right to life. In its (page and a half) Comment
No. 6 of 1982,4 it insisted, abstractly, that it is a “right which should not be interpreted narrowly,” that“war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousandsof innocent human beings every year,” that the “protection against arbitrary deprivation of life … is ofparamount importance,” that states should take “specific and effective measures to prevent thedisappearance of individuals,”5 and it encouraged progress towards abolishing or limiting the applicationof the death penalty.
Adding to this in its General Comment No. 14, of 1984, entitled “The Right to Life and Nuclear
Weapons”,6 the Committee discussed the dangers of nuclear weapons. It then offered some suggestions,in language less emphatic than General Comment 36:

3.

While remaining deeply concerned by the toll of human life taken by
conventional weapons in armed conflicts, the Committee has noted that, during
successive sessions of the General Assembly, representatives from all geographicalregions have expressed their growing concern at the development and proliferation ofincreasingly awesome weapons of mass destruction, which not only threaten human life
but also absorb resources that could otherwise be used for vital economic and social
purposes, particularly for the benefit of developing countries, and thereby for promoting
Based on remarks made December 10, 2018 at a Human Rights Day event, “The Right to Life Versus Nuclear
Weapons: A Bold Intervention by the UN Human Rights Committee,” Bahá’í United Nations Office, New York City.
*5

and securing the enjoyment of human rights for all.

4.

The Committee associates itself with this concern. It is evident that the designing,
testing, manufacture, possession and deployment of nuclear weapons are among thegreatest threats to the right to life which confront mankind today. This threat iscompounded by the danger that the actual use of such weapons may be brought about, notonly in the event of war, but even through human or mechanical error or failure.

5.

Furthermore, the very existence and gravity of this threat generates a climate of
suspicion and fear between States, which is in itself antagonistic to the promotion ofuniversal respect for and observance of human rights and fundamental freedoms inaccordance with the Charter of the United Nations and the International Covenants on
Human Rights.

6.

The production, testing, possession, deployment and use of nuclear weapons
should be prohibited and recognized as crimes against humanity.

7.

The Committee accordingly, in the interest of mankind, calls upon all States,
whether Parties to the Covenant or not, to take urgent steps, unilaterally and by agreement,
to rid the world of this menace. 7
Unlike the 1984 Comment which related solely to nuclear weapons, the 2018 version, now 23 pages,
covers the whole range of the Committee’s concerns about the right to life. Heavily footnoted, Comment
36 sources its content to other general comments; its Concluding Observations on state reports; its Views
issued under the Optional Protocol to the Convention; other human rights, environmental, and law of war
treaties; material emerging from other treaty bodies; material from the UN General Assembly, WHO, theEuropean Court of Human Rights, the Inter-American Court of Human Rights, the African mechanisms
on Human and Peoples’ Rights; instruments produced under the auspices of what is now the UN Officeon Drugs and Crime (UNODC); Special Rapporteurs and other Mechanisms; the ICTY and the ICTR.
The Comment begins with some general philosophical points. The right is described as “the supreme rightfrom which no derogation is permitted even in situations of armed conflict.” “It is most precious for its
own sake as a right that inheres in every human being, but it also constitutes a fundamental right whose
effective protection is the prerequisite for the enjoyment of all other human rights and whose content canbe informed by other human rights.” “The right to life,” reiterating what it said in 1982, “is a right whichshould not be interpreted narrowly.” Comment 36 also contains detailed provisions on abortion,
safeguards surrounding assisted suicide, safeguards on the imposition of the death penalty, enforced
disappearance, special protections for the lives of children, environmental degradation, climate change
and unsustainable development (described as “some of the most pressing and serious threats to the abilityof present and future generations to enjoy the right to life”), and use of force in armed conflict (including
autonomous weapons systems).
The Comment concludes with the striking proposition (new in the context of Article 6) that states parties“engaged in acts of aggression as defined in international law, resulting in the deprivation of life, violate
ipso facto article 6.”8
The part of General Comment No. 36 dealing with nuclear weapons9 reads:

666. 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 and may amountto a crime under international law. States parties must take all necessary measures to stop
the proliferation of weapons of mass destruction, including measures to prevent theiracquisition by non-state actors, to refrain from developing, producing, testing, acquiring,stockpiling, selling, transferring and using them, to destroy existing stockpiles, and to
take adequate measures of protection against accidental use, all in accordance with theirinternational obligations. [273] They must also respect their international obligations topursue in good faith negotiations in order to achieve the aim of nuclear disarmament
under strict and effective international control. [274] and to afford adequate reparation to
victims whose right to life has been or is being adversely affected by the testing or use of
weapons of mass destruction, in accordance with principles of international
responsibility. [275]10
Each sentence packs several ideas together; all of them have intellectual antecedents.
The first sentence opens with the reference to threat or use of weapons of mass destruction. “Weapons ofmass destruction” seems to have been coined first as a way to describe the massed bomber attack which
destroyed Guernica during the Spanish Civil War.11 That usage solidified in the very first resolution of the
UN General Assembly in 1946 which created a Commission to make “specific proposals,” inter alia, “forthe elimination from national armaments of atomic weapons and of all other major weapons adaptable tomass destruction.”12 The emphasis there was on nuclear weapons, although biological and chemical ones
were encompassed also. GC 36 contains footnote references to the later treaties of 1972 and 1992 on
those topics. “Weapons of mass destruction” has substantial rhetorical force but is not a legal term of art.
“Threat or use” finds its origin in the question asked by the General Assembly in requesting an Advisory
Opinion on the legality of nuclear weapons from the International Court of Justice.13 The Court insisted14
that “If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat toengage in such use would also be contrary to law.” “Threat” does not, on the other hand, appear in theRome Statute of the International Criminal Court, or, in spite of some desultory discussion during thedrafting15 and some tentative musings by the International Law Commission,16 in the crime of aggression
which became part of the Court’s Statute in July of this year.
When, however, in July 2017, the Committee was preparing its first reading version of GC 36, “threat”
was seating itself in the Treaty on the Prohibition of Nuclear Weapons (TPNW).17 The Committee placed“threat” in brackets at that point and several commentators supported the removal of those brackets. The
reference to “indiscriminate effect” is to the laws of armed conflict. “Of a nature to cause destruction ofhuman life on a catastrophic scale” is also an echo of the similar thought in the 1899 Hague Convention(“of a nature to cause superfluous injury”). “Respect for the right to life” combines the thoughts of Article
6 of the Covenant with Article 2’s reference to respecting and ensuring the rights in the Covenant.18“Incompatible” is a stronger statement than the ICJ’s proposition that nuclear weapons are “scarcely
reconcilable” with the laws of armed conflict.19 The assertion that the threat or use “may amount to acrime under international law”20 is both tentative and ambiguous. Unlike, for example, the GA resolution
in 1946 that asserted bluntly that “genocide is a crime under international law,”21 the word here is “may.”
Does “may” mean that some cases are crimes and some are not?22 Or is it an acknowledgement that thelaw is not quite there yet? And is the reference to individual criminal responsibility or to some notion ofstate criminal responsibility? Note, in this respect, that it had not been possible to include a prohibition of
the employment of nuclear weapons in the Rome Statute.23
The second sentence begins by addressing non-proliferation, of all weapons of mass destruction, not only
nuclear ones, and to measures that all parties to the Covenant “must take.” The footnote refers to the 1968
NPT, the Comprehensive Test Ban Treaty, the TPNW and the Biological and Chemical Conventions. The

7little phrase “including measures to prevent their acquisition by non-state actors” is a direct use of “nonstate actors” which is probably a blunter version the Prohibition Treaty’s “transfer to any recipientwhatsoever.”24 The obligation to refrain from developing, producing, testing, and the like is essentiallythe list of prohibitions in the TPNW.25 The obligation to “destroy existing stockpiles” goes beyond what
the nuclear powers have accepted and is a bone of contention for them. The reference to taking “adequate
measures of protection against accidental use” sits a little strangely with an obligation to destroy existing
stockpiles, as does the phrase “all in accordance with their international obligations.” Is this a reference tocustomary obligation enshrined in the Comment? Or, do different parties to the Covenant have different
obligations depending on which weapons treaties they have ratified?
The third sentence contains two thoughts. One is that parties “must also respect their international
obligations to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament understrict and effective international control.” I take it this is a reference both to the treaty obligation under
Article VI of the NPT and the corresponding customary law obligation to the same effect, which isasserted in the Nuclear Weapons Advisory Opinion.26 The nuclear powers have failed dismally infulfilling that obligation and, to my great regret, the effort by the Marshall Islands to enforce it in the ICJ
was rejected by a bare majority of the Court on procedural grounds, based on jurisprudence that is frankly
incoherent.27
The other is the obligation “to afford adequate reparation to victims whose right to life has been or isbeing adversely affected by the testing or use of weapons of mass destruction, in accordance withprinciples of international responsibility.” Victim assistance and environmental remediation is an
important aspect of the TPNW,28 but this is not where the endnote to this sentence refers. Rather, it cites
the Committee’s 2015 Concluding Observations concerning France. The relevant section in the
Observations notes that some 98.3 percent of claims relating to damage suffered during the French tests inMoruroa and Fangataufa between 1966 and 1996 had been rejected and urges something more effective.29
Article 6 of the TPNW speaks of “assistance” to those under a state party’s jurisdiction who are affectedby the use or testing of nuclear weapons. This is exactly the situation of the inhabitants of French
Polynesia. The Comment’s term “reparation” is perhaps a little stronger than the TPNW’s “assistance,”
and “victims” would surely include people in neighboring states or those involved militarily in testing
activities.
Keep that thought about the French Concluding Observations as I turn to my procedural theme. Article 40
is the primary “enforcement” provision in the Covenant on Civil and Political Rights.30 It requires states
parties to make reports, which are to be examined by the Human Rights Committee. The Committee is
empowered to make “general comments.” “General comments,” as the Covenant was being finalized in
the mid-1960s, was consistent with the human rights practice of the United Nations: with a few
exceptions like South Africa, name no names. Some general themes could be drawn from state reports.
Pretty soon those pesky NGOs began to slip in material or counter-reports to the governmental ones. This
became a significant cottage industry—and Committee members read them. It took a few years, but
eventually the point was accepted that the members of the Committee could make some quite specificcomments on the basis of the contents of (or omissions in the) reports and of the dialogue with states.
Don’t you love the bland title, “Concluding Observations”? Meanwhile, general comments took on a lifeof their own.
This is demonstrated dramatically by GC 36. The Committee had begun the process of drafting it in 2015
with a half day of general discussion in which governments and NGOs participated. It must have thenreceived much informal input after which it produced a first reading draft in July 2017 and invitedcomments. The formal response was stunning. I counted on its website 23 comments by states; seven by
UN organizations, specialized agencies, and experts; 33 by academics and other professionals; three fromnational institutions; and 107 from NGOs.31 How else to describe this than as a massive legislative
lobbying effort? Many of the comments were single issue ones, like those that Daniel Rietiker and John

8

Burroughs prepared for the International Association of Lawyers against Nuclear Arms and the Swiss
Lawyers for Nuclear Disarmament, which obviously focused on the nuclear issue,32 or submissions pro
and con the right to abortion. New Zealand argued that, as result of the development of the law, capital
punishment should now be regarded as per se contrary to the prohibition of torture and of cruel, inhuman,or degrading treatment or punishment in Article 7 of the Covenant. Others, especially governments,
addressed a whole range of themes. The US submissions, for example, covered twenty single-spaced
pages. General Comment No. 36 emerged from this in its current form, a true “committee job.”
A final thought. What legal weight has the Comment? As the considered opinion of the body charged
with the supervision of the Covenant it must have some significance. Words like “authoritative” 33 or“authentic” interpretation come to mind. Comments must be a standard against which individual state
reports can be assessed by Committee members.34 Most players in the Comment 36 drama avoided such
epistemological issues and concentrated on their particular points. Yet the United States took theoffensive. It challenged the authority of the Human Rights Committee to adopt some parts of this generalcomment, by arguing that “States Parties to the ICCPR have not given authority to the Human Rights
Committee or to any other entity to fashion or otherwise determine their treaty obligations,” and that“many of the Committee’s more ambitious opinions appear to reflect an attempt to fill what it may
consider to be gaps in the reach and coverage of the Covenant…. If one believes there to be gaps in atreaty, the proper approach to take under international treaty law is to amend the treaty to fill those gaps.
It is for each Party to decide for itself, as an exercise of its sovereignty, whether it will be bound by whatare, in fact, new treaty obligations.”35
A British academic surveyed the wide spectrum of views on the “legal relevance” of the Comments:
Some commentators attach no legal value to them or regard them only as valuable
indications of the content of rights and the steps that state parties could or should
undertake to ensure implementation, as useful signposts, or as important aids forinterpretation. According to others, General Comments have “practical authority”
because they represent an important body of experience in considering matters from theangle of the respective treaty. Many commentators, however, accept that General
Comments have considerable legal weight. They suggest that a committee is the mostauthoritative interpreter of the treaty it monitors. They view the treaty body’s output as
more than mere recommendations. Some even regard General Comments as“authoritative interpretations” of the rights of a treaty. General Comments also contributeto the formation of customary international law by helping to shape opinio juris and statepractice.36
Don’t you love obfuscation!

1

U.N. Doc. CCPR/C/GC/36, 30 October 2018.
The development of the Committee’s practice on Article 40, and especially general comments, is well rehearsed in
Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 712-752 (2nd rev. ed. 2005). He
notes (at 749) that the French and Austrian experts on the Committee came close to breaking consensus on theCommittee’s first foray into nuclear weapons in 1984, infra, but ultimately came aboard. Consensus has continued asa modus operandi.
2

Paras 2, 4, 5 and 6. Para. 3 provides that “When deprivation of life constitutes the crime of genocide, it isunderstood that nothing in this article shall authorize any State Party to the present Covenant to derogate in any way
from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crimeof Genocide.”
3

4

Available at https://www.refworld.org/docid/45388400a.html.

95The question of disappearances loomed large on the international agenda at the time. See Maureen R. Berman andRoger S. Clark, “State Terrorism: Disappearances,” 13 Rutgers Law Journal 531 (1982).
6

Available at https://www.refworld.org/docid/453883f911.html.

7

Philippe Sands invoked this Comment in his argument for Solomon Islands in the Nuclear Weapons Advisory
Proceedings: Philippe Sands, Oral Presentation for Solomon Islands, reproduced in Roger S. Clark and Madeleine
Sann, eds., The Case against the Bomb: Marshall Islands, Samoa, and Solomon Islands before the International
Court of Justice in Advisory proceedings on the Legality of the Threat or use of Nuclear Weapons 277 (1996). In its
Advisory Opinion, the Court ignored the general comment but accepted that “the protection of the International
Covenant of Civil and Political Rights does not cease in times of war” and that “[i]n principle the right notarbitrarily to be deprived of one’s life applies also in hostilities.” It continued: “The test of what is an arbitrary
deprivation of life, however, then falls to be determined by the applicable lex specialis, namely the law applicable inarmed conflict which is designed to regulate the conflict of hostilities.” The extent to which a lex specialis forces
Article 6 from the field is highly debated. Moreover, as you know, the Court did insist that “the use of nuclear
weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular
the principles and rules of humanitarian law,” and that “[t]here exists an obligation to pursue in good faith and bringto a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international
control.”8

GC 36, para. 70.
States parties engaged in acts of aggression as defined in international law, resulting in deprivationof life, violate ipso facto article 6 of the Covenant. At the same time, all States are reminded of
their responsibility as members of the international community to protect lives and to oppose
widespread or systematic attacks on the right to life, [281] including acts of aggression,international terrorism, genocide, crimes against humanity and war crimes, while respecting all of
their obligations under international law. States parties that fail to take all reasonable measures tosettle their international disputes by peaceful means might fall short of complying with theirpositive obligation to ensure the right to life.

The footnote references GA Res.60/1, (World Summit Outcome) 16 Sept. 2005, para. 138-139.
For commentary, see Alyn Ware, “UN Human Rights Committee concludes that the threat or use of nuclear
weapons violates the Right to Life,” available at http://www.unfoldzero.org/un-human-rights-committee-condemnsthe-threat-or-use-of-nuclear-weapons-and-other-wmd/.
910

GC No. 36, para. 66. The relevant footnotes read:273 See Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161;
Comprehensive Test Ban Treaty, 10 Sept. 1996, Treaty on the Prohibition of
Nuclear Weapons, 7 July 2017 (not yet in force); Convention on the Prohibition of theDevelopment, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons andon their Destruction, 10 April 1972, 1015 UNTS 163; Convention on the Prohibition of theDevelopment, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 3
Sept 1992, 1974 UNTS 45.
274 General Comment 14, para. 7. Cf. Legality of the Threat or Use of Nuclear Weapons, 1996
ICJ 226, 267.
275 Concluding Observations: France (2015), para. 21.

11

London Times 28 December 1937, p. 9.

12GA Res. 1 (I), para. 5 (c).

“Is the threat or use of nuclear weapons in any circumstance permitted under international law?”
Article 2 (4) of the UN Charter obligates states to “refrain in their international relations from the threat or use offorce against the territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.”
13

10

14

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports, 1996, 226,(“Nuclear Weapons Advisory Opinion”), para. 78 of its Opinion. See also, 1977 Protocol I to Geneva Conventions,which prohibits states “to order that there shall be no survivors, to threaten an adversary therewith or to conduct
hostilities on this basis” (Article 40), and to refrain from “acts or threats of violence the primary purpose of which isto spread terror among the civilian population” (Article 51(2)). (Article 8 (1) (b) (xii) of the Rome Statute forbids“Declaring that no quarter shall be given.”)
15

Informal Inter-sessional meeting of the Special Working Group on the Crime of Aggression, Doc. ICCASP/5/SWGA/INF.1 9-10 (2006).
16

See 1991 Draft Code of Offences against the Peace and Security of Mankind, Article 16, [1991] II (2) Yearbook of
the International Law Commission, 94, 95.
TPNW Article 1 (d), under which each party “undertakes never under any circumstances to … use or threaten touse nuclear weapons or other nuclear explosive devices.”
17

In CCPR Article 2 (1), each party “undertakes to respect and ensure to all individuals within its territory andsubject to its jurisdiction the rights recognized in the present Covenant without distinction of any kind, such as race,color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
18

19

Nuclear Weapons Advisory Opinion, para. 95:
Thus, methods and means of warfare, which would preclude any distinction between civilian andmilitary targets. Or which would result in unnecessary suffering of combatants, are prohibited. In
view of the unique characteristics of nuclear weapons, to which the Court has referred above, theuse of such weapons in fact seems scarcely reconcilable with respect for such requirements.

The 1984 Comment used the term “crime against humanity” rather than” crime under international law,”consistently with GA Res. 1653 (1961), which asserted (para. 1 (d)) that “Any State using nuclear and thermonuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws ofhumanity and as committing a crime against mankind and civilization.”
20

21

GA Res. 96 (I), in which the Assembly “Affirms that genocide is a crime under international law….”

I am thinking here particularly of the ICJ’s remark in its Advisory Opinion that only mass killings with thenecessary specific intent amount to genocide. “In the view of the Court, it would only be possible to arrive at such a
conclusion after having taken due account of the circumstances specific to each case.” Nuclear Weapons Advisory
Opinion, para. 26.
22

See generally, Roger S. Clark, “The Rome Statute of the International Criminal Court and Weapons of a Nature to
Cause Superfluous Injury or Unnecessary Suffering, or which Are Inherently Indiscriminate,” in John Carey,
William V. Dunlap and R. John Pritchard eds., International Humanitarian Law: Challenges 259 (2004).
23

24

Treaty on the Prohibition of Nuclear Weapons, Art. 1 (b).

25

Id., Art. 1 (a), although the treaty is drafted using the infinitive form of the verb rather than the gerunds used by
the GC.
26

Supra.

Roger S. Clark, “Pacific Island States and International Humanitarian Law,” forthcoming in Linton, McCormack
and Sivakumaran eds., Asia-Pacific Perspectives on International Humanitarian Law (2019) at notes 90-112.
27

28

Treaty on the Prohibition of Nuclear Weapons, Art. 6.

29

Needless to say, France is not the only nuclear power to be less than fulsome in nuclear reparations. The US neverproperly funded the compensation of Marshall Islands victims. The UK was reluctant to recompense its casualties,

11

including its own military and military from Fiji, Australia, and New Zealand. See Tilman Ruff, “The humanitarian
impact and implications of nuclear test explosions in the Pacific region,” 15 International Review of the Red Cross
775, 778 (2015); Sue Roff, Hotspots: The Legacy of Hiroshima and Nagasaki (1995); Friedrich Ebert Stiftung, NewYork Office, reports on Addressing Humanitarian and Environmental Harm from Nuclear Weapons, on Kiritimati(Christmas) and Malden Islands, Republic of Kiribati; Kirisimasi (Christmas and Malden Island) Veterans,
Republic of Fiji; Monte Bello, Emu Field and Maralinga Test Sites, Commonwealth of Australia (2018).30 Other
enforcement procedures are not universally applicable to all parties as is Art. 40. Art. 41 of the Covenant is an opt-in
provision that permits the Committee to hear allegations by a state, which itself accepts the article, that other states
also accepting it are acting in breach of their obligations. Fifty of the 172 parties to the Covenant have accepted thispower, but the procedure has never been initiated. Few states are prepared to use such procedures for fear of the
diplomatic costs and the danger that skeletons in their own closets will be revealed. The Optional Protocol to theCovenant has 116 parties. It enables individual complaints to be made to the Committee and has generated much
useful “caselaw”.
31

The submissions are collected at https://www.ohchr.org/EN/HRBodies/CCPR/Pages/GC36Article6Righttolife.aspx.
32

They made two sets of comments, one before the first reading draft and one after. The first encouraged expandingon what was then a fairly brief reference to nuclear weapons. https://safna.org/2016/09/08/the-incompatibility-ofwmd-to-the-right-to-life-article-6-iccpr-a-submission-to-the-un-human-rights-committee/. In the later one,
reproduced on the Committee’s website, they encouraged the retention of the bracketed words “threat” at the
beginning of the paragraph and the reference to reparation at the end. That happened. They also argued,
unsuccessfully, for adding the word “lawful” between “necessary” and “measures” in the phrase “must take allnecessary measure to stop the proliferation….” See also, Daniel Rietiker, Humanization of Arms Control: paving the
War for a World Free of Nuclear Weapons (2018).
33

Nowak, supra at 749 writes of the “authoritative and universal character of these interpretations.”

The Committee’s Guidelines for the treaty-specific document to be submitted by states parties under article 40 of
the International Covenant on Civil and Political Rights, UN Doc. CCPR/C/2009/1 (2010), refer to generalcomments as part of the framework governing state reports. See e.g. reference in the entry for Article 6 (at p. 7) toGC 14 of 1984.
34

Observations of the United States of America on the Human Rights Committee’s Draft General Comment No. 36
On Article 6—Right to Life. The United States and the United Kingdom have previously contested the obligatory
nature of the Committee’s opinions on the validity of reservations made by particular states. See “Observations by
the Governments of the United States and the United Kingdom on Human Rights Committee General Comment No.
24 (52) relating to reservations,” available at https://www.iilj.org/wp-content/uploads/2016/08/US-and-UKResponses-to-the-General-Comment.pdf.
35

Kerstin Mechlem, “Treaty Bodies and the Interpretation of Human Rights,” 42 Vanderbilt Journal ofTransnational Law 905, 929-30 (2009) (footnote omitted). Mechlem argues that given the normative significance ofcomments, the treaty bodies should pay more attention to sound legal methodology in formulating them, notably
using the interpretive framework of the Vienna Convention on the Law of Treaties, Articles 31 and 32. In the only
occasion that I have found where the International Court of Justice mentioned a general comment, it did not address
the Comment’s juridical status but noted “the development of the principle of equality of access to courts andtribunals … seen in the significant differences between the two general comments [in 1984 and 2007] by the Human
Rights Committee on Article 14, paragraph 1, of the International Covenant on Civil and Political Rights of 1966.
That provision requires that “[a]ll persons shall be equal before the courts and tribunals.” The Court obviously saw
the comments as reflecting developments in customary law. Judgment No. 2867 of the Administrative Tribunal of
the International Labour Organization upon a Complaint Filed against the International Fund for Agricultural
Development, Advisory Opinion of 1 February 2012, 2012 I.C.J., para. 39.
36

12

The UN Human Rights Committee
and the Threat of Use of Nuclear Weapons*
Ariana N. Smith
December 2018: Student, CUNY Law; Fellow, Sorensen Center for International Peace and Justice;
Intern, Lawyers Committee on Nuclear Policy (LCNP).
Current: LCNP Executive Director.

As a law student intensely committed to wielding the law to make a safer, better world for all throughout
my career, I’m honored to be here today with my co-panelists discussing the UN Human Rights
Committee’s recent comment on the right to life.
While opinions may differ as to just how the Committee’s general comments may affect the developmentof international legal norms, it’s quite clear that the recent Comment 36 complements the pre-existingcustomary norm prohibiting not only the use of nuclear weapons but their threat of use as well. The
Comment reflects similarities to the interpretation of the legality of nuclear weapons offered by theInternational Court of Justice in its 1996 Nuclear Weapons Advisory Opinion. In this opinion, the Court
said that the use or threat of use of nuclear weapons would be illegal in scenarios where such use orenvisioned use violated international law, particularly humanitarian law.
The Human Rights Committee, in paragraph 66 of its new comment, uses language that supports thedevelopment of customary law prohibiting the threat or use of force by asserting outright that such threator use of nuclear weapons is incompatible with respect for the right to life. The right to life affirmed byGeneral Comment 36 also relies heavily on the humanitarian law-based rationale referred to by the ICJ
decades earlier. As international humanitarian law encompasses principles like necessity andproportionality, as well as distinctions between civilians and combatants, it is very difficult to envision a
scenario in which either the threat or use of nuclear weapons could be condoned under international law.
The Comment takes seriously states’ obligations under our current regime to both protect people from theeffects of nuclear weaponry and also to pay reparations to survivors of prior nuclear attacks or testing.
Coming on the heels of additional developments in our legal framework—like the Treaty on theProhibition of Nuclear Weapons—this new comment has the potential to offer strong reinforcement of thecustomary norm against the use or threat of use of nuclear weapons.
The consequences of nuclear force—even through targeted, tactical weapons—are too massive,
permanent, and indiscriminate to warrant any lawful use or threat; the Human Rights Committee
maintains this gravity in its comment. Neither the impact of a nuclear weapon nor its lasting radiologicaleffects distinguish between combatants and civilians—an essential requirement in humanitarian law.
While the ICJ abstained from holding that nuclear weapons are by default so indiscriminate as to always
violate humanitarian or other international laws, the court unanimously agreed that if such use violated
humanitarian law, it would be de facto unlawful.
The Human Rights Committee maintains what the ICJ originally said in its Advisory Opinion: that nuclear
weapons cause “untold human suffering” and indescribably harm “generations to come.” Their comment
goes further in affirming that nuclear weapons intrinsically violate the right to life, and the Committee, thus
Based on remarks made December 10, 2018 at a Human Rights Day event, “The Right to Life Versus Nuclear
Weapons: A Bold Intervention by the UN Human Rights Committee,” Bahá’í United Nations Office, New York City.
*13

a bit more readily than the ICJ, suggests the obvious: the threat or use of nuclear weapons cannot be lawful
if we are to claim a fundamental respect for life within our global system.
The general prohibition of force codified in the UN Charter concurrently prohibits threats of force, too.
The text of General Comment 36 likewise blends the two prohibitions stating, “The threat or use of
weapons of mass destruction, in particular nuclear weapons...is incompatible with respect for the right tolife and may amount to a crime under international law.” When considering how the comment reinforces
customary norms against threats of nuclear force, it’s important to define what constitutes a threat.
While notoriously difficult to pin down legally, generally, a threat of force comprises an express or
implied credible assertion, from one state to a target state, of readiness to engage in force, should thetargeted state trigger a particular condition, usually within the context of a dispute. While an ongoing
dispute makes the identification of a threat easier—as analyzing credibility and rationality in this context
tends to be more straightforward—a threat can be made independent of any prior dispute as well.
Credibility can present a challenge in identifying unlawful threats of force generally, but the analysis isarguably simplified for threats of nuclear force. The credibility of a threat generally involves twoelements: capability and rationality. An actor threatening force must have the ability to exert such force;and following through on the threat likely needs to make some rational sense for the threat to be deemed
credible (and thus possibly unlawful).
When it comes to nuclear threats, the two elements can largely be distilled into capability alone, as, I
argue, there can be no legitimate rationality in threatening such cataclysmic violence. Whether it seems
reasonable to threaten force can be subjective and hard to pin down in some circumstances, but with
nuclear force, it is a moot point; it is never reasonable nor rational to threaten with a nuclear weapon,
particularly in a world where the right to life is non-derogable and should be construed broadly, per the
Human Rights Committee’s comment. To that end, if a state has nuclear weapon capabilities—or theactive backing of a nuclear weapon state—nearly any threat of nuclear force should be credible andlegitimate-enough to be classified as illegal.
Some reasonably assert that an inflammatory speech alone may not constitute a legitimate and credible
threat. But when an incendiary speech by a leader of a nuclear weapon state intimates nuclear force, thethreat is credible-enough to constitute unlawful action. For example, many people—rightly so—took
President Trump very seriously when he threatened the total destruction of North Korea in his speech at
the General Assembly in 2017. As a reminder, Trump said that if the United States is “forced to defend
itself or its allies, we will have no choice but to totally destroy North Korea.” North Korean foreign
minister Ri Yong Ho responded that targeting the United States mainland with North Korea’s rockets was“inevitable” after Trump’s remarks. Both leaders’ words constitute dangerous and unlawful threats ofnuclear force. While issued in the context of provocative speeches that some wrote off as politicalposturing by two of the world’s most volatile leaders, as threats of nuclear force by two nuclear-capablecountries, their credibility is established (regardless of their rationality). Again, the indiscriminate gravityof nuclear force makes threats of this kind inherently more dangerous regardless of variations inperceived credibility.
Additionally, many find that defensive threats offer a slightly different opportunity to consider whether athreat of nuclear force is ever legal or strategically appropriate. Some scholars assert that if a threat
contributes to averting actual force, then it is (or should be) lawful. The force envisaged in threats of selfdefense, though, must still meet the principles of necessity and proportionality and comply withinternational law. The ICJ takes the position that proportionality must manifest as an expression of force
only to the extent necessary to stop or repel an attack. A proportional attack in response need not, andlikely should not, match the devastation of the initial attack. A threat of nuclear force will always then14

threaten to far exceed any provoking conventional use of force and likely cannot be lawful. Many would
argue that a threat of nuclear force in response to another’s first use of nuclear weapons (or other weaponsof mass destruction) is indeed a proportionate response, however, a threat of nuclear force remains
indiscriminate to the extent that such a threat would still breach international law and violate the right tolife.
The clarity more easily found in the context of an existing dispute when identifying unlawful threats offorce, though, is evasive today, as we face escalating rhetoric and increasingly menacing acts amongworld leaders not yet embroiled in any declared conflict. While withdrawal from a treaty or developing
nuclear arsenals alone is not unlawful per se, the exchanges of fiery language,1 rejection of priorembraced treaties,2 and commitment to modernizing existing nuclear arsenals instead of disarming may
constitute—or at least lay the foundation for— unlawful threats of nuclear force.
State practice that defies the black-letter law does not negate the legitimacy of the legal prohibition of
threats and use of nuclear force. The Human Rights Committee’s General Comment strengthens the bodyof thought denouncing nuclear force as a legitimate way to threaten or engage in conflict and promotes
the nuclear weapon states’ Article VI obligation to pursue disarmament—in stark contrast with theheightened rhetoric referenced herein.3
While there is more room for legitimate debate as to what constitutes a lawful threat of conventional
force, a threat of nuclear force is never lawful when held accountable under international humanitarian
law regardless of whether the threat is issued from an offensive or defensive posture—and regardless ofwhat our political leaders would have us believe in the name of “America First.” The Human Rights
Committee’s revised General Comment and its emphasis on the broad and essential right to life for all
people reinforces this notion and will hopefully be wielded as a tool moving forward to promote effective
disarmament and the ultimate legal prohibition of nuclear weapons.

1

As in the threats between the U.S. and North Korea, discussion supra pp. 14-15.

2

Note the suspension of the Intermediate-Range Nuclear Forces Treaty (INF) by the United States followed by the
Russian Federation as well as the U.S. withdrawal from the Joint Comprehensive Plan of Action (JCPOA) preceding
Iran’s recent breach of the uranium stockpile limits set by the treaty.
3

Treaty on the Non-Proliferation of Nuclear Weapons, art. VI (1970).

15

Reflections on the UN Human Rights Committee’s General Comment*Peter Weiss
President Emeritus, Lawyers Committee on Nuclear Policy; President Emeritus, International
Association of Lawyers Against Nuclear Arms; Emeritus Advisory Board,
European Center for Constitutional and Human Rights
Those of us who were around a quarter of a century ago when we campaigned to get nuclear weapons
before the International Court of Justice—it was when I first met Roger Clark because he was there forthe same reason—recall that it was not easy, in fact, it was rather difficult to get the word threat into thequestion that we wanted and succeeded in putting to the ICJ. As you have just heard from both Roger andAriana, threat is not an easily defined term. So, and I am repeating in part what you just said about
President Trump and North Korea, but when he talked about raining “fire and fury” on North Korea, wasthat a threat? Or, was that one of the hyperboles that our president is so fond of?
And to complement what the president did, we can also look at what Kim Jong-un was saying and doing
about his missile capability. It reminded me of a story once told to me by Selig Harrison, that great North
Korean academic expert. He said that he decided to take a fairly high North Korean official to lunch. In
the course of that lunch his lunch partner said, “Do you know we now have the capability to hit New
York City?” Selig Harrison said, “If you’ll forgive me, I don’t think that’s a correct statement,” to which
his lunch partner replied, “alright, then we’ll hit Chicago instead”. So, what was that, was that a threat, or
was that a joke?
So threat is not easy to define, and I would like to make a small contribution to that definition. It takes theform of referring you to Article 120.14 of the Penal Law of New York State, which reads in part asfollows: “A person is guilty of menacing in the second degree when he/she intentionally places or
attempts to place another person in reasonable fear of physical injury, or serious physical injury or deathby displaying a deadly weapon.” Now is that not the perfect definition of the head of a nuclear-armed
state?
So perhaps it would be a good idea to expand the discussion of the term “threat” to include “menacing,”
which I have just read the definition of for you in the law, which is something that you will find in the
penal code of a great many countries. And menacing in that sense does not even have to be limited tosituations threatening the right to life. It applies to any situation in which a nuclear-armed entity finds
itself in conflict with another entity regardless of whether such use is justified by self-defense or“deterrence.” You should know that laws similar to the New York law that I have quoted to you are foundin the penal codes in a great many other states of the United States.
So let me now turn to the very welcome, but somewhat mysterious, paragraph 66 of General Comment 36
on the right to life clause, which is Article 6.1 in the International Covenant. The reason I call it
mysterious is that actually not a great deal has changed on the ground. There are fewer nuclear weapons
right now in existence than there were in 1984 when the second comment, which Roger spoke about, wasissued by the Human Rights Committee. So, what are the members of the Human Rights Committee
doing here, what are they telling us? Are they saying that “we members of the HRC, or our predecessors,
goofed by not referring to the complete incompatibility of nuclear weapons with the right to life in the
Edited transcript of remarks made December 10, 2018 at a Human Rights Day event, “The Right to Life Versus
Nuclear Weapons: A Bold Intervention by the UN Human Rights Committee,” Bahá’í United Nations Office,
New York City.
*

16

1984 version of the comment”? Or, are they saying that the illegality of threat or use of nuclear weapons
under customary international law is clearer today than it was in 1984? Or, are they intimating that threat,use, development, acquisition, etc. of nuclear weapons is so horrendously violative of elementary humanrights standards that they must also be declared to be clearly illegal?
Knowing that the mansion of international law has many chambers, I would say it’s a bit of all of theabove, but I would also add a reference to Article 38 to the Statute of the International Court of Justice,which, although it mentions only sources of law applicable to rulings by the ICJ, is in fact regarded
generally in international law circles as applicable to every instance in which the term “international law”
appears. In other words, you’re going to find references to the elements of Article 38 whenever a lawyer
somewhere or a judge wants to defend his or her reference to Article 38 as a source of international law.
These elements are not complementary, they are not a bunch of things which taken together give you
international law, but any single element in Article 38 can be a source of international law and frequentlyis.
I will just quote some of the more relevant ones for you. Nuclear weapons could be said to be illegal
under “international custom” or under the “general principles of law accepted by civilized nations.”
Please don’t ask me to define “civilized nations,” although if you take seriously what I have been talking
about here it would appear that countries that rely on the use of nuclear weapons are not civilized nations,and the others, the many others who consider them incompatible with international law, are the civilized
ones.
The last element I want to mention to you under Article 38 reads “the teachings of the most highly
qualified publicists of the various nations.” I have always liked that part a lot, because it says in effect thatthe most qualified publicists of international law, like Roger Clark now and Ariana at some point in the
future, will not only be interpreters of international law, but they can be creators of international law. It
gives great opportunities for creating international law and some of us have been trying to do that inrelation to nuclear weapons for more than half a century.
So the main thing to be taken away from this discussion is that paragraph 66 in General Comment 36 adds
an absolutely unqualified, unequivocal, legal condemnation of nuclear weapons and that this newcondemnation is joining the long list of other condemnations of nuclear weapons as incompatible withinternational law. And I think you have heard from the previous two speakers that it must be taken as anecessary interpretation of the general comment that nuclear weapons are incompatible with internationallaw and that they are also more specifically incompatible with the right to life.
One comment I would also make is about why this is happening now, this general comment, when it
hasn’t happened before. Christopher Weeramantry, the great Sri Lankan international law expert, said on
occasion (and by the way Judge Weeramantry was a very active member of the organizations that we
represent here and we miss him—he died about a two years ago) that “the law does not necessarilychange, but the interpretation of the law changes.” I think we can think of the new general comment inthose terms.
Before I yield the floor for the general discussion, I just want to remind you on this 70th anniversary of the
Universal Declaration of Human Rights what Eleanor Roosevelt, who was one of the creators, perhaps
even the principal one, of the Universal Declaration, said about human rights. She said “human rights
begin in the home.”

17

The Relevance of Human Rights for Use of Nuclear Weapons and Their
Utility in the Fight Against Those Weapons—With Particular Attention Paid
to “Civil” Rights*
Dr. Daniel Rietiker
Adjunct Professor of International Law and Human Rights Law, Lausanne University
and Suffolk University Law School

General introduction
The purpose of the present contribution is, first, to prove the relevance of human rights in the event of
nuclear weapons use and, second, to offer some thoughts and ideas on how governments and civil society
can use human rights law in their fight against those weapons. The relevance of human rights for nuclear
weapons has very recently been acknowledged officially, namely through the adoption of the new Treaty
on the Prohibition of Nuclear Weapons, in New York on 7 July 2017. Indeed, in several paragraphs, thistreaty refers explicitly to human rights: first of all, in its preamble, where it states that:
The States Parties to this Treaty (…) Reaffirming the need for all States at all times tocomply with applicable international law, including international humanitarian law andinternational human rights law.1
Moreover, in its Article 6 on “victim assistance and environmental remediation,” it states:
1. Each State Party shall, with respect to individuals under its jurisdiction who are
affected by the use or testing of nuclear weapons, in accordance with applicableinternational humanitarian and human rights law, adequately provide age-and gender sensitive assistance, without discrimination, including medical care, rehabilitation andpsychological support, as well as provide for their social and economic inclusion.
2. Each State Party, with respect to areas under its jurisdiction or control contaminated asa result of activities related to the testing or use of nuclear weapons or other nuclear
explosive devices, shall take necessary and appropriate measures towards theenvironmental remediation of areas so contaminated. (…).
Apart from those explicit references to human rights law, there is other language within this treaty, suchas “victims” of nuclear weapons, including “hibakusha,” that are closely linked to human rights violations.
In brief, the new treaty prohibiting nuclear weapons confirms the close link between human rights law
and nuclear weapons.
Only for practical reasons does the author concentrate, within the present analysis, on so-called “civil”
rights in the sense of civil and political rights, as opposed to economic, social, and cultural rights. Thisdistinction derives, inter alia from the two 1966 International Covenants, one on civil and political rights(ICCPR), and the other on economic, social, and cultural rights (ICESCR). The author has extensively
addressed the relevance of economic, social, and cultural rights in a recent, more comprehensive study on
nuclear weapons.2 Within this publication the importance of those rights—in particular the right to thehighest standard of health and to a healthy environment, and the right to an adequate standard of living,
including the right to food and to water—has been highlighted.3 The author finds it important to underlinethat it is purely for practical reasons that he does not address those rights within the present contribution,
Based on remarks made May 1, 2019 at an NPT side-event, “Human Rights, Democracy, and Nuclear Weapons,” heldat United Nations, New York City.
*18

being convinced that they add an important layer of protection against the destructive power of nuclear
weapons.
The present analysis is divided into three parts. In the first part, the advantages of human rights law will
be explained (I); the second part is devoted to the right to life, the most obvious right to be addressed in thecontext of nuclear weapons (II). Therein, the recent adoption of General Comment no. 36 by the UN
Human Rights Committee (HRC) will be discussed more in detail. In the third, the relevance of otherhuman rights for the debate, namely the prohibition of inhumane and degrading treatment, the right for
respect of private and family life and home, as well as the right to property, will be briefly explained (III).

I. The added value of human rights law for the use of nuclear weapons
Even though humanitarian law is generally more specific and has normally been considered the primarysource applied to nuclear weapons, human rights law adds another significant layer to the protection of thehuman being. It has, in particular, the following advantages.
First, human rights instruments apply basically in all circumstances. As a result, the cumbersome questionof whether the threshold of an armed conflict has been reached in a concrete situation does not have to beaddressed, while it does in applying humanitarian law. One exception is relatively rare in practice but
nevertheless should be mentioned, namely the right of states parties to a human right treaty to make use of
so-called derogation clauses. One of the major regional human rights treaties, namely the European
Convention on Human Rights (ECHR), provides for such a derogation clause in its Article 15:
Article 15 (Derogation in time of emergency):

1. In time of war or other public emergency threatening the life of the nation any HighContracting Party may take measures derogating from its obligations under thisConvention to the extent strictly required by the exigencies of the situation, provided thatsuch measures are not inconsistent with its other obligations under international law.

2. No derogation from article 2, except in respect of deaths resulting from lawful acts ofwar, or from articles 3, 4 (paragraph 1) and 7 shall be made under this provision.

3. Any High Contracting Party availing itself of this right of derogation shall keep theSecretary General of the Council of Europe fully informed of the measures which it has
taken and the reasons therefor. It shall also inform the Secretary General of the Council ofEurope when such measures have ceased to operate and the provisions of the Convention
are again being fully executed.
This clause contains a series of important limitations on the freedom of states to suspend certain rights.
The first one is that there are rights from which no derogation is permitted, namely the prohibition of
inhuman and degrading treatment, including torture (Article 3 ECHR), the prohibition of slavery andservitude (Article 4, para 1 ECHR), and the principle of no punishment without law (Article 7 ECHR).
Perhaps surprisingly, the right to life can be derogated from under Article 2 ECHR, contrary to Article 6
ICCPR, but only in respect to “deaths resulting from lawful acts of war.” In other words, in order to rely
upon Article 15 ECHR with a view to derogating from Article 2 ECHR, a state would have to prove that theuse of nuclear weapons would be compatible, inter alia, with IHL.4
Whereas all the other rights can a priori be derogated from, such derogations have to be strictly construed
and do not give a carte blanche to the state invoking them. The extraordinary situation must involve a“public emergency threatening the life of the nation” and the derogations must be limited “to the extent

19strictly required by the exigencies of the situation.” Moreover, the words “measures…not inconsistent
with its other obligations under international law” would imply that a state, affected by the use of a nuclear
weapon, could rely on Article 15 ECHR to derogate from its obligation under the ECHR but would still
have to comply with IHL. As has just been explained, this author is convinced that the use of nuclear
weapons would be contrary to fundamental IHL norms and principles. In addition, there are certain formal
requirements that have to be fulfilled according to paragraph 3 of Article 15 ECHR. In practice, probably
due to the strict material and formal conditions to comply with, as explained, declarations under Article
15 ECHR have been very rarely made.5 Finally, it is important to state that it is up to the Court toexamine, within an individual application, whether those conditions have been met in a specific situation.
Second, while human rights have traditionally been considered to protect the individual against arbitrary
interference into a protected right, the more recent, dynamic jurisprudence of international human rights
courts imposes on states parties the duty to take effective measures in order to protect the persons under
their jurisdiction against harmful acts of other persons or private entities.6 This type of “positive”
obligation of the state to secure rights of individuals against infringements originating from private actors
are today well established in the jurisprudence of human rights bodies and are recognized in various areas
such as domestic violence,7 violence between prisoners,8 or environmental pollution by privatecompanies.9 This aspect is noteworthy in the present debate insofar as such positive obligations also exist
in the field of nuclear disarmament, for example, the duty to negotiate in good faith towards general andcomplete disarmament (Article VI NPT), the duty to assist victims of use or testing of nuclear weapons or
to provide for environmental remediation (Article VI TPNW, mentioned above), as well as in the nuclear
field more broadly, for instance the duties imposed by the Convention on the 1980 Physical Protection of
Nuclear Material, as amended in 2015, with a view, inter alia, to protecting those materials from being
stolen and used by terrorist groups.
Third, the particular nature of certain human rights has also to be stressed. It is important to mention
that—and here human rights law follows humanitarian law—certain norms of human rights law have todate attained customary status, therefore applying also to states not having ratified the relevant treaties.10
Moreover, the normative supremacy of certain human rights has to be emphasized too. In other words,
certain rights cannot be derogated from, which is a strong indication for their peremptory nature (juscogens).11 The ILC in its Articles on the Responsibility of States for Internationally Wrongful Acts made it
clear that the circumstances precluding wrongfulness contained in Chapter V of Part One of these Articles
do not authorize or excuse any derogation from a peremptory norm of general international law.12 In otherwords, even a state taking countermeasures may not derogate from such a norm. For example, a genocide
cannot justify a counter-genocide.13
In addition, the obligation to refrain from a breach of such a norm is also one that is of erga omnes nature.
In the case of Barcelona Traction, Light and Power Company, Limited, the ICJ defined these obligations
as “obligations of a State towards the international community as a whole (…)” adding that “[b]y their very
nature the former are the concern of all States (…) and all States can be held to have a legal interest in theirprotection.”14 The Court furthermore gave a number of examples, such as the norms outlawing aggression
and genocide, and certain human rights principles such as those prohibiting slavery and racial
discrimination.15 Professor Doswald-Beck claims that the geographical extent of damage caused by anuclear weapon’s explosion is likely to affect more than just one state, as well as common areas such as
the high seas and international air space.16 Therefore, it would constitute violations of various international
obligations that are of erga omnes nature. The most important consequence of a breach of an obligation oferga omnes nature lies in the possibility of any state to invoke the responsibility of the state causing thedamage, independently of whether or not that state is directly injured by such a breach. The condition forsuch an erga omnes invocation is that the “obligation breached is owed to the international community as
a whole.”17 As a result, accepting that a nuclear attack would entail significant human rights violations, it
can be suggested that if State A attacks State B with nuclear weapons, all other states would be considered20

as having a legal interest to act on behalf of State B and could invoke State A’s responsibility.
Fourth, human rights treaties are formulated in terms of actual rights that the individual can invoke againstinterference in its rights by the state. Other branches of international law, including IHL, are formulated
more often in terms of obligations of states owed to other states parties.18 They might therefore not bedirectly relied upon by an individual. This aspect is closely linked to the—probably—most significant
advantage of human rights law, namely its institutional dimension. In practice, victims of human rights
violations, including victims of a potential nuclear weapons use, can rely on treaty bodies and mechanisms
providing for legal remedies.19 This aspect distinguishes human rights law sharply from humanitarian law,which is much less institutionalized, relying largely on the goodwill of the states parties in implementing
its rules and principles on the national level. For instance, what makes the ECHR so special and effectiveis that individual applicants have the right—as set out in Article 34 ECHR—to seek redress directly froman independent judicial body examining allegations of serious human rights violations (so-called “right toindividual application”).20 Moreover, the judgments of the Court are binding upon the states parties andhave to be implemented by the states, a procedure which is supervised by the Committee of Ministers of
the Council of Europe.21
To sum up this chapter, it is undeniable that human rights law has a lot of advantages that might turn out
beneficial in the fight against nuclear weapons and, as a result, should be used by civil society andgovernments engaged in this field. The purpose of the next section is to list and explain the most relevant
human rights in the context of use of nuclear weapons, beginning with the right to life.

II. The right to life
A. General remarks
The right to life is the most fundamental human right. The ICJ, in its 1996 Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons, confirmed the applicability of the right to life in timeof armed conflict and, moreover, observed that the test of what is an “arbitrary deprivation of life,” within
the meaning of Article 6 § 1 of the ICCPR, has to be determined in light of international law governing
armed conflict, in particular humanitarian law.22 As has been mentioned above, under the ICCPR, the rightto life right is non-derogable, even in the event of a “public emergency which threatens the life of thenation” by virtue of its Article 4, contrary to Article 2 ECHR, as explained above. The right to life seems
relevant in many respects in the context of the use of nuclear weapons. To name just four situations:First, the most obvious observations is that nuclear weapons have the potential to take the life of tens andhundreds of thousands of people within a couple of seconds and are not being capable of distinguishing
between enemy combatant and civilians, not even taking into account the high number of people who
would die years and decades after as a consequence of exposure to radiation.23 If this does not constitute“arbitrary deprivation” of life within the meaning of Article 6 of the ICCPR, what else would?
The ECtHR had to deal with cases introduced by relatives of civilians who had died during combat
operations against rebel groups. In order to ensure that the use of force was no more than “absolutely
necessary,” the test under Article 2 ECHR, the Court examined whether the planning of the operation wassuch as to “avoid” or at least “minimise deaths.” In a case against Russia concerning air operations
against rebels during the Second Chechen War, the ECtHR basically accepted that Russia had no otherchoice than to carry out aerial strikes in order to regain a town that was defended by well-equipped rebels.
The Court nevertheless concluded that there had been a violation of the right to life, in particular for having
exceeded what was necessary in the concrete situation:
180. Against this background and in the light of the principles stated in paragraph 178

21

above, the Court may be prepared to accept that the Russian authorities had no choice otherthan to carry out aerial strikes in order to be able to take over Urus-Martan, and that theiractions were in pursuit of the aim set out in paragraph 2 (a) of Article 2 of the Convention,
as alleged by the Government. It is, however, not convinced, having regard to the materials
at its disposal, that the necessary degree of care was exercised in preparing the operationof 19 October 1999 in such a way as to avoid or minimise, to the greatest extent possible,
the risk of a loss of life, both for the persons at whom the measures were directed and for
civilians (see McCann, cited above, § 194).24
In this case, the Russian operation resulted in 16 injuries, and 13 houses destroyed, caused by the use ofhigh-explosive fragmentation bombs of caliber 250-270 kg. These weapons were considered“indiscriminate weapons” by the Court, which concluded that the use of such bombs in inhabited areas
was “manifestly disproportionate” to the aim of dislodging the extremists.25 From this author’s point ofview, the large number of deaths likely to be caused by a nuclear explosion would not meet the highstandards of the ECHR and the ICCPR regarding the right to life. In light of the uncontrollable effects ofa nuclear weapon’s use and the numerous victims, it seems impossible to administer the proof thatsufficient precaution had been taken to “avoid or minimize” incidental loss of life.
Second, it has been shown, in recent research, that one of the aspects that make nuclear weapons so fatal
is the fact that no adequate rescue and medical response is possible due to the complete destruction of
infrastructures, the death of medical personnel and the long-lasting radioactivity rendering access to thearea very difficult. The presence of radiation after a nuclear attack would seriously hamper the ability tosearch for, to rescue, and to care for the wounded.26 This could, according to Doswald-Beck, amount to aviolation of the right to life by the attacking state.27
Third, the right to life encompasses the duty to “avoid or minimalize” loss of life, civil as well as among
the enemy combatants hors de combat. The duties inherent in the right to life do, however, not stop there
since a state might be under the obligation to provide adequate medical care in response to a harmful
event.28 The significance of subsequent medical care to prevent loss of life as well as the duty toinvestigate the whereabouts of missing persons—soldiers or civilians—have been examined, in particularby the ECtHR. A concrete example is the case of Varnava and Others v. Turkey, where the Court held thatin a zone of international conflict, states are under an obligation to protect the lives of those not, or nolonger, engaged in hostilities, and that this duty also extends to the provision of medical assistance to thewounded.29 From the author’s point of view, it would be virtually impossible, in the aftermath of a nuclear
weapon’s explosion, to comply with this duty.
Fourth, the Court further found, in the same case, that where combatants have died, or succumbed towounds, the need for accountability would necessitate the proper disposal of remains and require theauthorities to collect and provide information about the identity and fate of the persons concerned, or
authorize institutions such as the ICRC to do its work in this field.30 It concluded that “Article 2 therefore
imposes a continuing obligation on the respondent Government to account for the whereabouts and fate of
the missing men in the present case (…).”31 Due to the presence of radiation, this obligation would also
turn out very difficult to comply with after the explosion of a nuclear weapon. In light of what precedes, it
can be argued that the right to life plays a significant role in the context of nuclear weapons and even longafter the detonation of such a weapon.

B. General Comment No. 36 on the right to life
1. Earlier general comments on the right to life and preparatory work to the General Comment No. 36

22

On 30 October 2018, the UN Human Rights Committee (HRC), which is in charge of the implementationof the ICCPR, adopted its General Comment no. 36 relating to the right to life (Article 6 ICCPR). It is inmany respects a remarkable document and a new example for bridge- building between nuclear arms
control/disarmament and human rights. The HRC considers the threat and use of WMD, in particular
nuclear weapons, incompatible with the right to life and reiterates the duties of the states parties in thefield of nuclear disarmament and non-proliferation.
The General Comment no. 36 is a detailed and lengthy document of 70 paragraphs. Even though otherparagraphs are certainly relevant too for the present debate, comments will be made only on the clauserelating to WMD, in particular nuclear weapons.
Prior to the General Comment no. 36, the HRC issued already two general comments on the right to life.
The HRC adopted its General Comment no. 6 in 1982 and, more relevant, its General Comment no. 14 in
1984, where it held as follows:
4. It is evident that the designing, testing, manufacture, possession and deployment of
nuclear weapons are among the greatest threats to the right to life which confront mankind
today. This threat is compounded by the danger that the actual use of such weapons may
be brought about, not only in the event of war, but even through human and mechanicalerror or failure…

6. The production, testing, possession, deployment and use of nuclear weapons should
be prohibited and recognized as crimes against humanity.

7. The Committee accordingly, in the interest of mankind, calls upon all States, whether
Parties to the Covenant or not, to take urgent steps, unilaterally and by agreement, to rid
the world of this menace.
The HRC was criticized by some commentators and certain states, in particular by France, for allegedly
having overstepped its mandate by commenting on issues of nuclear weapons.32
A couple of years ago, the HRC began its consideration of a new general comment on the right to life,
which became ultimately General Comment no. 36. A first proposal was considered incomplete andunsatisfactory for many reasons.33 A second draft, much more elaborated and appropriate on WMD, waspresented in 2017.

2. Preliminary comments on General Comment no. 36 as adopted on 30 October 2018
On 30 October 2018, the final draft of General Comment no. 36 was adopted by the HRC. The clausedevoted to weapons of mass destruction, in particular nuclear weapons, became paragraph 66 and reads asfollows:
66. 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 acatastrophic scale is incompatible with respect for the right to life and may amount to acrime under international law. States parties must take all necessary measures to stop theproliferation of weapons of mass destruction, including measures to prevent theiracquisition by non-state actors, to refrain from developing, producing, testing, acquiring,stockpiling, selling, transferring and using them, to destroy existing stockpiles, and to takeadequate measures of protection against accidental use, all in accordance with theirinternational obligations. They must also respect their international obligations to pursue
in good faith negotiations in order to achieve the aim of nuclear disarmament under strict

23and effective international control and to afford adequate reparation to victims whoseright to life has been or is being adversely affected by the testing or use of weapons ofmass destruction, in accordance with principles of international responsibility.34
The author considers the adopted draft very noteworthy and valuable. At this stage, he limits himself to acouple of brief remarks. First of all, the HRC expresses that not only actual use, but also threat of weaponsof mass destruction, in particular nuclear weapons, is incompatible with the right to life. This reflects, interalia, the core prohibitions of the Treaty on the Prohibition of Nuclear Weapons (TPNW), set out in
Article 1(d), which bar states parties from using and threatening to use such weapons. Both clauses are
powerful statements against the threat of nuclear weapons.
Second, the HRC considers nuclear weapons as indiscriminate in effect and of a nature to cause
destruction of human life on a catastrophic scale and, therefore, incompatible with right to life. The ICJ, in
its 1996 Advisory Opinion, stated that “[t]he destructive power of nuclear weapons cannot be contained ineither space or time.”35 In the same line, the preamble of the TPNW reads as follows:
The States Parties…Cognizant that the catastrophic consequences of nuclear weapons
cannot be adequately addressed, transcend national borders, pose grave implications forhuman survival, the environment, socioeconomic development, the global economy, foodsecurity and the health of current and future generations, and have a disproportionate
impact on women and girls, including as a result of ionizing radiation…36
Third, the general comment considers that use and threat of use of nuclear weapons may amount to crimes
under international law. This author explained elsewhere why he is of the opinion that different provisionsof war crimes and crimes against humanity under the Rome Statute may come into play regarding the useof nuclear weapons.37 He also suggested that such use could amount to genocide, if denoting a specificintent to destroy, in whole or part, one of the groups mentioned in Article 6 of the Rome Statute.38
Fourth, the HRC reiterated that states parties must take all necessary measures to stop the proliferation of
weapons of mass destruction, including measures to prevent their acquisition by non-state actors, torefrain from developing, producing, testing, acquiring, stockpiling, selling, transferring, and using them;to destroy existing stockpiles; and to take adequate measures of protection against accidental use, all inaccordance with their international obligations. This is a valuable reminder of the duties deriving from theTreaty on the Non-proliferation of Nuclear Weapons (NPT), the Comprehensive Test Ban Treaty (CTBT),
as well as the TPNW. The two latter treaties have not yet entered into force, but some of their provisions
are considered to reflect customary international law regarding certain acts, in particular testing of nuclear
weapons.39
Fifth, the HRC also recalls that states parties must also respect their international obligations to pursue ingood faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective
international control. This duty derives, for all states, from Article VI NPT, confirmed by the ICJ in
1996.40
Sixth, the general comment also recalls that states are under an obligation to afford adequate reparation to
victims whose right to life has been or is being adversely affected by the testing or use of weapons ofmass destruction, in accordance with principles of international responsibility. This is a significant
reminder of the responsibility of states for internationally wrongful acts, nowadays codified in the 2001
ILC draft Articles,41 which may apply to situations of states having tested or used nuclear weapons in oragainst other states. Moreover, it is noteworthy to recall that Article 2 § 3 of the ICCPR imposes on states
parties the duty to provide the victims for an effective remedy.42 In addition, paragraph VII of UNGA

24

Resolution 60/147, adopted on 16 December 2005, states the right of victims of gross violations ofinternational human rights law and serious violations of international humanitarian law to “adequate,
effective and prompt reparation for harm suffered.”43
As a matter of delimitation, it is also relevant to recall Article 6 of the TPNW which provides for victim
assistance and environmental remediation. Its paragraph 1, dealing with victim assistance, reads as follows:
Each State Party shall, with respect to individuals under its jurisdiction who are affectedby the use or testing of nuclear weapons, in accordance with applicable international
humanitarian and human rights law, adequately provide age-and gender-sensitive
assistance, without discrimination, including medical care, rehabilitation andpsychological support, as well as provide for their social and economic inclusion.
It derives from the wording of Article 6 § 1 TPNW that the duty to assist victims of use and testing of
nuclear weapons shall primarily be dealt with by the states on whose territory such use and testing haveoccurred. This is different from the duties deriving from state responsibility, which addresses the states
having tested or used nuclear weapons, as explained above. In other words, the scope of application ofthese two mechanisms is different.
Seventh, perhaps the main value of the general comment, from a strictly legal point of view, lies in thefact that general comments of UN human rights bodies are generally considered as authentic
interpretation of the relevant treaty provisions and, as a result, of the duties of states parties deriving fromthose instruments. Under certain circumstances, they might even reflect customary international law or, atleast, as state practice, contribute to the establishment of such law. It is noteworthy to mention, in thisregard, that all states that are recognized as possessing nuclear weapons under the NPT are parties to the
ICCPR, with the exception of China, which has at least signed that treaty.44 It is also remarkable that the
Human Rights Committee, when adopting the General Comment no. 36, was composed not only of
independent experts from non-nuclear weapons States, but also of members from nuclear weapons states,
namely France, Israel, UK, and the USA.
III. Other relevant human rights for nuclear weapons use
The right to life is probably the most relevant human right in the context of use of nuclear weapons, but
by far not the only one. The purpose of the following section is to examine the relevance of other humanrights norms, beginning with the prohibition of inhuman and degrading treatment.

A. The prohibition of inhuman and degrading treatment
The special nature of the prohibition of inhuman and degrading treatment, including torture, has alreadybeen mentioned. In Europe, those values are protected by Article 3 ECHR. In the case of El-Masri v. The
Former Yugoslav Republic of Macedonia,45 dealing with extraordinary rendition, the ECtHR held what
follows:
195. The Court reiterates that Article 3 of the Convention enshrines one of the mostfundamental values of democratic societies. Unlike most of the substantive clauses of theConvention, Article 3 makes no provision for exceptions and no derogation from it ispermissible under Article 15 § 2 even in the event of a public emergency threatening thelife of the nation (…). The Court has confirmed that even in the most difficult
circumstances, such as the fight against terrorism and organised crime, the Convention
prohibits in absolute terms torture and inhuman or degrading treatment or punishment,
irrespective of the conduct of the person concerned (...).

25

In order to fall within the ambit of Article 3 ECHR, ill-treatment must attain a certain minimum level ofseverity (so-called “threshold-theory”).46 Once this level is reached, the Court usually determines whichof the three categories of treatments is involved (torture, inhuman, or degrading treatment).
In a prior publication, the author argued that the use of nuclear weapons could amount at least to“degrading treatment,” since it deprives the victims of their basic dignity. The standard formuladeveloped and applied by the Court for this level of treatment is treatment “such as to arouse in thevictims feelings of fear, anguish and inferiority capable of humiliating and debasing them.”47 He alsosuggested that the use of nuclear weapons could amount to “inhuman” treatment, given the fact thatnumerous victims could suffer injuries that would inflict enormous suffering and pain and, within a few
weeks, lead to their demise. The release of ionizing radiation and radioactive fallout can result in radiation
sickness, with most people not being aware that they have been exposed to a potentially lethal radiationdose until days or weeks after the explosion. This period could certainly be qualified as “acute mental andphysical suffering” that would “expose [the victims] to a real risk of dying under most distressing
circumstances,”48 within the meaning of the relevant jurisprudence of the ECtHR.
It is also noteworthy that, in the case of Selçuk and Asker v. Turkey,49 The ECtHR held that there was“inhuman” treatment when, as a part of a security operation, the security forces destroyed the elderly
applicants’ home and property in a contemptuous manner and in their presence, without regard to theirsafety or welfare, depriving them of their livelihood and shelter and causing them great distress.50 It is
obvious that the destruction of one’s home by a nuclear blast is very likely to have a similar effect andcould amount, on its own, to a breach of Article 3 ECHR.

B. The right to respect for private and family life and home, and the right to property
Essentially for the same reason, namely destruction of homes and property, a nuclear attack would affect thevictims’ right to respect for private life and home (for example, Article 8 ECHR) as well as the right toproperty (Article 1 of Protocol 1 to the ECHR). These rights are less protected than the values under Article
2 or Article 3, since they can be restricted (relative rights) and derogated from under Article 15 ECHR.
One of the conditions for a lawful interference in those rights is that such interference is necessary in a
democratic society and proportionate to the aim pursued. As far as nuclear weapons are concerned, it isdoubtful whether the destruction of the homes and property of tens and hundreds of thousands of people
through a nuclear attack could be justified by whatever aim.51 In this regard, it has to be underlined that,even in case a house or building would resist the nuclear blast, it might not be habitable for a long time orforever due to radioactive fallout.52

C. Intermediate conclusion: the use of nuclear weapons as a total denial of human rights
To sum up, it has to be reiterated that, for practical reasons, a selection had to be made within thisanalysis. The rights addressed here are only certain rights that are likely to be denied in the situation of a
nuclear attack. The list is not meant to be exhaustive insofar as only few, if any, rights would remain
unaffected by a nuclear weapons explosion. Indeed, a detonation in a town would destroy churches,mosques, temples, and cemeteries, completely depriving the different religious groups of their places ofworship and prayer, protected by the most relevant human rights treaties.53 Moreover, an explosion of
nuclear weapons is likely to destroy the buildings and infrastructure of media organs such as journal
editors as well as television and radio stations. As a result, even the most basic enjoyment of the freedom of
expression would be at stake too.54 Similarly, a nuclear explosion would destroy the premises of private
associations and trade unions and, therefore, deprive them of the possibility to gather peacefully inflagrant violation of the right of freedom of assembly and association.55 A nuclear blast would also cause thedestruction of court buildings and law firms and lead to the death of judges, lawyers, and other judicial
staff. The paralysation of the judiciary authorities would lead to the deprivation, at least temporarily, of26

the right to a fair trial.56 Finally, a nuclear explosion would cause the destruction of schools, universities,
and libraries and the deaths of their staff, depriving the people of their right to education.57
For practical reasons, the impact of a nuclear weapons on these freedoms and rights are not detailed here
and, again, these examples are not exhaustive. It is sufficient, for the purpose of the present study, toconclude that the use of such a weapon would constitute a total denial of all basic human rights.
Final observations
In light of what precedes, it can be concluded that the most fundamental human rights, namely the right tolife, would be massively breached in the event of use of nuclear weapons. In this regard, General
Comment no. 36 deserves our attention: The mere fact that the HRC, a human rights body, deals withissues of prevention of war and nuclear weapons constitutes evidence for the growing interconnection
between these fields of international law, and, at the same time, a confirmation of growing “humanizationof arms control.” The adoption of the TPNW, in 2017, and of General Comment no. 36 are signs of anew, more human-centered trend towards nuclear disarmament.
The right to life is without doubt very fundamental but far from being the only human right relevant for
nuclear weapons. Other relevant norms to be invoked would be the right to respect for private and family
life and home, as well as the right to property. Another significant norm that is likely to turn out relevantin the event of use of nuclear weapons is the prohibition of inhuman and degrading treatment, with thesignificant advantage that it constitutes an absolute guarantee from which no derogation, neither in peace
time nor in war, is admissible. In addition, it has also been concluded that the use of such a weapon would
constitute a total denial of all basic human rights. Apart from those “civil” rights examined in the present
analysis, economic, social, and cultural rights might be infringed upon too by the use of nuclear weapons.
For practical reasons, this aspect has not been dealt with here.
The usual nuclear disarmament channels having remained inefficient; new avenues have to be tried out.
The bridge between arms control and human rights should now be used by civil society and governmentsin their efforts against nuclear weapons. As a result, and considering that the HRC is only one UN body
dealing with human rights within a large machinery covering very different rights and areas, NGOs andgovernments fighting for a world without nuclear weapons should now invoke other norms, treaties, andfora in the field of human rights in order to make their voices heard. It has been demonstrated that humanrights law, in particular through its institutional framework, offers some undeniable advantages comparedto other branches of international law.
The present author is not naive and, as a matter of fact, he does not expect the nuclear weapons states to
get rid of their stockpiles as an immediate result of the adoption of General Comment no. 36, but he does
think that the adoption of statements of this kind, made by independent international legal and humanrights experts and considered in light of the recent TPNW, increases the pressure on states possessing
nuclear weapons and helps to delegitimize their weapons. All in all, in the desert of all the negative news
in the field of nuclear disarmament recently, the General Comment no. 36 constitutes a true oasis of hope.
Let’s be positive and think that it contains the seed for effective nuclear disarmament.
1

Preambular paragraph 8.

2Daniel Rietiker, Humanization of Arms Control: Paving the Way for a World Free of Nuclear Weapons,
Routledge, London and New York, 2017.

27

3

Ibidem., in particular pp. 207-222.

According to the ICJ, the threat or use of nuclear weapons would “generally” be contrary to the rules of internationallaw applicable in armed conflict, in particular to those of humanitarian law. However, the Court added that “in viewof the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance ofself-defence, in which the very survival of a State would be at stake.” (Legality of the Threat or Use of Nuclear
Weapons, Advisory Opinion, ICJ Reports 1996, Dispositif, paragraph E.).
4

5

A recent example is the letter of 21 July 2016 by which the Government of Turkey communicated to the SecretaryGeneral of the Council of Europe the notice of derogation under Article15 of the ECHR. This derogation was
prolonged for three months several times.
See D.J. Harris, M. O’Boyle, E.P. Bates and C.M. Buckley, Law of the European Convention on Human Rights, 3rdedition, Oxford University Press, 2014, pp. 21-24.
6

7

Opuz v. Turkey, no. 33401/02, ECHR 2009.

8

Paul and Audrey Edwards v. the United Kingdom, no. 46477/99, ECHR 2002-II.

See, among many others, the cases decided by the ECtHR, Taşkın and Others v. Turkey, no. 46117/99, ECHR
2004-X, or Tătar v. Romania, no. 67021/01, 27 January 2009, both explained in more detail below, Part 2.III.C.4e).
9

L. Doswald-Beck, “Human rights law and nuclear weapons,” in G. Nystuen, S. Casey-Maslen and A. Golden
Bersagel (eds.), Nuclear Weapons Under International Law, Cambridge, 2014, pp. 435-460, 441 and seq.
10

In terms of general international law, the VCLT defines a peremptory norm as “a norm accepted and recognized by
the international community of States as a whole as a norm from which no derogation is permitted and which can be
modified only by a subsequent norm of general international law having the same character.” (Article 53 VCLT; seealso Article 64 VCLT). International tribunals have generally been hesitant to accept the jus cogens nature of norms,
but there is widespread agreement that the prohibition of torture (ECtHR, Al-Adsani v. the United Kingdom [GC], no.
35763/97, § 60, ECHR 2001-XI, ICTY, Prosecutor v. Furundzija, case no. IT-95-17/I-T, 10 December 1998, §§ 144
and seq., and ICJ, Questions relating to the Obligation to Extradite or Prosecute case, Judgment, 20 July 2012, ICJ
Reports 2012, § 99), and the crime of genocide (Armed Activities on the Territory of the Congo (Congo v Rwanda),
Judgment, 3 February 2006, ICJ Reports 2006, § 125) fall under the definition.
11

12

Article 26 of the ILC Articles.

ILC Commentary of Article 26, p. 85;
http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001.pdf
13

14

ICJ Reports 1970, § 33.

15

In the advisory opinion concerning the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, the ICJ recognized the erga omnes nature of the right of the Palestinian People to selfdetermination a right (ICJ Reports 2004, § 156), referring to the Eastern Timor case (ICJ Reports 1995, § 29).
16

Doswald-Beck, op.cit., p 442.

17

Article 48 § 1 (b) of the ILC Articles on responsibility of States for internationally wrongful acts.

See, for instance, Common Article 1 of the 1977 Geneva Conventions: “The High Contracting Parties undertake torespect and to ensure respect for the present Convention in all circumstances.”
18

19

A. Breitegger, Cluster Munitions and International Law: Disarmament with a Human Face, Routledge, London
and New York, 2012, p. 92, and Doswald-Beck, op.cit., p. 459. See also St. Casey-Maslen, ‘The right to a remedy and28

reparation for the use of nuclear weapons’, in G. Nystuen, St. Casey-Maslen and A. Golden Bersagel (eds.), Nuclear
Weapons Under International Law, Cambridge, 2014, pp. 461-480.
Article 34 ECHR reads as follows: “The Court may receive applications from any person, non-governmentalorganization or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of
the rights set for in the Convention or the Protocols thereto. The High Contracting Parties undertake not to hinder inany of the effective exercise of this right.”
20

21

Article 46 ECHR.

22

ICJ Reports 1996, § 25.

See, for instance, L. Maresca, “The Catastrophic Humanitarian Consequences of Nuclear Weapons: The Key Issues
and Perspective of the International Committee of the Red Cross,” in: J. Borrie and T. Caughley (eds.), Viewing
Nuclear Weapons through a Humanitarian Lens, New York and Geneva, 2013, pp. 132 et seq.
23

24

Khamzayev and Others v. Russia, no. 1503/02.

25

Ibidem., § 189.

26

Doswald-Beck, op.cidt., p. 451.

27

Ibidem.

28
29

Ibidem., p. 450.
Varnava and Others v. Turkey, ECtHR, Judgment, no. 16064/90 et al., 18 September 2009, § 185.

30

Ibidem., § 185.

31

Ibidem., § 186.

See, for instance, V. Gowlland-Debbas, ‘The Right to Life and Genocide: The Court and an International Public
Policy’, in L. Boisson de Chazournes and P. Sands (eds), International Law, the International Court of Justice andNuclear Weapons, Cambridge 1999, pp. 315-337, 328.
32

33

See a submission of Swiss Lawyers for Nuclear Disarmament: https://safna.org/2016/09/08/the-incompatibilityof-wmd-to-the-right-to-life-article-6-iccpr-a-submission-to-the-un-human-rights-committee/.
34

References and footnotes omitted.

35

ICJ Reports 1996, § 35.

36

Paragraph 4 of the Preamble.

37

Rietiker, op.cit., pp. 269-276.

38

Ibidem., pp. 276-277.

39

See, for instance, G. Venturini, who argues that there exists a customary prohibition for atmospheric, underwater,
outer space and celestial bodies testing. This author is more hesitant concering underground testing (G. Venturini,
Test-Bans and the Comprehensive Test Ban Treaty Organization, in: J.L. Black-Branch and D. Fleck (eds.), Nuclear
Non-Proliferation in International Law, Vol. 1, Assser Press and Springer, 2014, pp. 133-158, 151-152).
40

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, conclusion F (unanimous):“There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear
disarmament in al1 its aspects under strict and effective international control.”

29

41

Res. A/56/10, of 12 December 2001.

42

See also Paragraph 4 of General Comment no. 36.

43

Article VII (b).

44

By virtue of Article 18 of the 1969 Vienna Convention on the Law of Treaties, signatory states are under certain
obligations, namely the obligation not to defeat the object and purpose of a treaty prior to its entry into force: “A State
is obliged to refrain from acts which would defeat the object and purpose of a treaty when: (a) It has signed the treaty
or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall havemade its intention clear not to become a party to the treaty (…)”
45

El-Masri v. FYR of Macedonia [GC], no. 39630/09, 13 December 2012.

46

Ibidem., § 196.

47

Kudla v. Poland [GC], no. 30210/96, 26 October 2000, § 92.

48

D. v. the United Kingdom, no. 30240/96, 2 May 1997,. § 53.

49

24 April 1998, Reports of Judgments and Decisions 1998 II.

50

In particular, § 77.

51

Rietiker, op.cit., p. 197.

52

Ibidem.

53

Regarding Europe see Article 9 ECHR; for instance, Cyprus v. Turkey [GC], no. 25781/94, 10 May 2001, §§ 241
and seq. This right is also protected by Article 18 ICCPR, Article 12 of the American Convention on Human Rights(ACHR) and Article 8 of the African Convention on Human and Peoples’ Rights (ACHPR).
See, for Europe, Article 10 ECHR; for instance, Banković and Others v. Belgium and Others [GC], no. 52207/99,
12 December 2001 (inadmissible), in which the applicants complained, inter alia, about the bombing of the buildingof Radio Televizije Srbije (“RTS”). In one of its most criticized decisions, the Court declared the case inadmissible
for lack of jurisdiction. See also Article 19 ICCPR, Article 13 ACHR and Article 9 ACHPR.
54

55

See for instance Cyprus v. Turkey [GC], no. 25781/94, 10 May 2001, §§ 255 and seq. (Article 11 ECHR). See also
Article 21 ICCPR, Article 15 ACHR and Article 11 ACHPR.
56

Article 14 ICCPR, Article 6 ECHR, Article 8 ACHR and Article 7 ACHPR.

57

See, for instance, Article 2 of Protocol no. 1 to the ECHR, Article 5 e) v) ICESCR, Article 26 ACHR (at least
implicit) and Article 17 § 1 ACHPR.

30

The Treaty on the Prohibition of Nuclear Weapons
and International Human Rights Law*
Bonnie Docherty
Associate Director of Armed Conflict and Civilian Protection and Lecturer on Law at the International
Human Rights Clinic, Harvard Law School.

The 2017 Treaty on the Prohibition of Nuclear Weapons (TPNW) brings a humanitarian approach tonuclear disarmament.1 It emerged from the Humanitarian Initiative, a series of international conferencesthat examined the human and environmental impacts of nuclear weapons.2 The treaty’s preamble
expresses deep concern about “the catastrophic humanitarian consequences that would result from any
use of nuclear weapons” and recognizes that only complete elimination of these arms can prevent futuredevastation. Its text includes both prohibitions and remedial measures, a combination that is characteristicof other humanitarian disarmament instruments, notably the 1997 Mine Ban Treaty and 2008 Convention
on Cluster Munitions.3
Given that the TPNW aims to reduce human suffering, it is fitting that it invokes international humanrights law. In addition to citing sources more commonly mentioned in discussions of nuclear weapons,such as the UN Charter, international humanitarian law, and other nuclear weapon treaties,4 the TPNW
explicitly refers to international human rights law twice, in its preamble and in its provision on victim
assistance.5 Its environmental remediation obligation can also be read in light of human rights principles.
International human rights law provides both an added reason for states to join the TPNW and guidancefor how to implement the TPNW’s obligations once they do.
Preamble
The TPNW’s first explicit reference to human rights appears in the preamble. It reaffirms “the need for all
States at all times to comply with applicable international law, including international humanitarian law
and international human rights law.”6 Although the preamble is non-binding, this paragraph foregrounds
human rights law early in the treaty, giving it equal status to international humanitarian law. The
paragraph reflects the value states parties place on compliance with international human rights law in thecontext of nuclear weapons. It also anticipates the TPNW’s preventive and remedial measures, which
provide a means to ensure that states meet their human rights obligations.
Right to Life
The phrase “applicable . . . international human rights law” encompasses several rights, which come from
customary international law as well as treaties, such as the 1966 International Covenant on Civil andPolitical Rights (ICCPR) and the 1966 International Covenant on Economic, Social and Cultural Rights(ICESCR). The right to life is fundamental to this body of law, and protecting it is a prerequisite to theenjoyment of other human rights.7
In its 2018 general comment interpreting the right to life, the treaty body for the ICCPR, known as the*Based on remarks made May 1, 2019 at an NPT side-event, “Human Rights, Democracy, and Nuclear
Weapons,” held at United Nations, New York City.

31

Human Rights Committee, raised specific concerns about nuclear weapons. The Committee declared thatthe “threat or use of . . . nuclear weapons . . . is incompatible with respect for the right to life and may
amount to a crime under international law.”8 According to the committee, the right to life also calls forstates parties to the ICCPR to refrain from the development, production, stockpiling, and transfer ofnuclear weapons.9 The TPNW bans all of these activities. Thus, abiding by its prohibitions would help
states uphold the right to life.
In the same general comment, the Human Rights Committee linked the right to life with the obligation “topursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict andeffective international control.”10 This obligation originated in Article VI of the 1968 Nuclear NonProliferation Treaty (NPT).11 The International Court of Justice reiterated the obligation in its 1996
Advisory Opinion on Nuclear Weapons, emphasizing that the negotiations must lead to a result.12 The
TPNW is the product of good faith negotiations and a concrete step toward achieving nuclear
disarmament. By joining the TPNW, therefore, states can better comply with their obligations under boththe NPT and human rights law.
The Human Rights Committee further called for “adequate reparation to victims whose right to life has
been or is being adversely affected by the testing or use of [nuclear weapons].”13 The TPNW does notaddress reparations, but it does not preclude them either. The TPNW does require states parties to provide
victim assistance, which is related to, albeit somewhat different from, reparations. While victim assistancemeasures do not depend on determining legal responsibility for unlawful acts, they address the humansuffering caused by nuclear weapons and help victims realize their human rights, including the right tolife.
Other Human Rights
The need to comply with international human rights law applies to more than the right to life. For
example, with regard to economic, social, and cultural rights, the right to health entitles people to healthcare that is available, accessible, acceptable, and of good quality.14 This right extends to individuals who
have experienced health problems attributable to the use or testing of nuclear weapons, and it can bepromoted through the TPNW’s victim assistance provision. The right to a healthy environment, based on
the understanding that environmental protection contributes to the realization of other human rights, isrelevant given the significant environmental damage caused by the use and testing of nuclear weapons.15
Ensuring the right to a healthy environment calls for a ban on new use and testing as well as remediationof existing contamination. The TPNW incorporates both of these measures.
Civil and political rights, such as the right to information and the right of people to participate indecisions that affect their lives, are also applicable to nuclear weapons.16 Indeed, the TPNW’s preamble
notes that “equal, full and effective participation of both women and men is an essential factor for thepromotion and attainment of sustainable peace and security,” and that women’s participation in nuclear
disarmament should be strengthened.17 States parties to the TPNW can promote such civil and politicalrights by implementing the treaty in a transparent and inclusive way.
Victim Assistance
The second explicit reference to human rights in the TPNW appears in Article 6(1) on victim assistance.
The paragraph obliges states parties to provide assistance to individuals affected by the use and testing of
nuclear weapons “in accordance with applicable international humanitarian and human rights law.”18 The
phrase “in accordance with . . . human rights law” influences this provision’s interpretation andimplementation.

32

The phrase places the obligation to assist victims within a human rights frame. Article 6(1) enumerates
several types of assistance, notably “medical care, rehabilitation and psychological support” as well as
measures to provide for social and economic inclusion.19 Providing these forms of assistance “inaccordance with . . . human rights law” goes beyond addressing the needs of affected individuals toensuring that they can realize their human rights. This understanding of Article 6(1) conforms with how
victim assistance is interpreted in earlier humanitarian disarmament treaties.20 For example, Article 5(1)of the Convention on Cluster Munitions includes the same reference to international human rights law in
its virtually identical, corresponding paragraph on victim assistance.21 In articulating the goals of victim
assistance in its preamble, that convention highlights the need to “ensure the full realisation of the rights
of all cluster munition victims” and to respect victims’ “inherent dignity.”22
The TPNW’s reference to international human rights law can guide the implementation of the treaty’s
victim assistance provision in multiple ways. International human rights law offers several principles that
can help make victim assistance a more sensitive, effective, and feasible endeavor.
Non-discrimination is a fundamental human rights principle, and, as Article 6(1) states, victim assistanceshould be provided “without discrimination.”23 This principle prohibits discrimination on the basis ofsuch characteristics as race, sex, religion, or disability.24 The Convention on Cluster Munitions explainsthat in the disarmament context, non-discrimination also means states may not “discriminate against or
among . . . victims, or between . . . victims [of a banned weapon] and those who have suffered injuries ordisabilities from other causes.”25 The only legitimate reasons for differences of treatment under the
TPNW and its humanitarian disarmament predecessors are medical, rehabilitative, or psychological, or
related to socioeconomic needs.26
Another applicable human rights principle is inclusivity. The 2006 Convention on the Rights of Persons
with Disabilities stresses the importance of “full and effective participation and inclusion in society.” 27
Applying that principle to victim assistance, the Convention on Cluster Munitions requires states parties
to “closely consult and actively involve . . . victims and their representative organisations.”28 The TPNW
does not explicitly refer to inclusion, but the concern for survivors expressed in its preamble and theparallels between its victim assistance provision and that of the more detailed Convention on Cluster
Munitions suggests this principle should be a key factor in the implementation of TPNW Article 6(1).29
States parties should actively involve affected individuals at every stage of the victim assistance process:design, implementation, monitoring, and assessment.
Human rights law also informs how the TPNW spreads responsibility for victim assistance across states
parties. The treaty, like other humanitarian disarmament instruments, requires affected states parties totake the lead. This approach is consistent with human rights law, under which states have to respect,
protect, and fulfill their people’s human rights. The approach further recognizes that affected states are
best suited to assess needs and ensure the delivery of assistance due to their proximity to victims, and it
respects states’ sovereignty over matters within their borders.30
At the same time, international human rights law recognizes that states often need help implementing
their obligations. The ICESCR specifies that states should realize rights “individually and throughinternational co-operation and assistance.”31 In accordance with this principle, as well as humanitarian
disarmament precedent, TPNW Article 7 spreads responsibility for its victim assistance obligations acrossstates parties. It obliges all states parties “in a position to do so” to provide “technical, material andfinancial assistance” to support affected states’ victim assistance and environmental remediation efforts. 32
Given that assistance can come in a variety of forms, all states should be in position to provide some kindof support. In addition, the TPNW explicitly requires states parties that used or tested nuclear weapons toassist affected states parties with their Article 6 obligations.33

33

Finally, international human rights law’s principle of progressive realization can make victim assistancemore manageable. Given that nuclear weapons cause large-scale, far-reaching, and long-term harm,addressing victims’ needs can be a significant undertaking. The fact that affected states often have fewer
resources increases the challenge. The principle of progressive realization recognizes the difficulties of
implementing certain economic, social, and cultural rights. The ICESCR requires states parties to act “tothe maximum of [their] available resources, with a view to achieving progressively the full realization of
the rights recognized in the present Covenant.”34 The TPNW should therefore be understood to oblige
states parties to strive to realize the economic, social, and cultural rights of survivors, while recognizingthat full attainment may take time due to resource constraints.
Environmental Remediation
Although the victim assistance provision is the only TPNW obligation that explicitly refers tointernational human rights law, human rights principles can be applied to the treaty’s other positive
obligation in Article 6: environmental remediation. Article 6(2) requires affected states parties to “takenecessary and appropriate measures towards the environmental remediation of [contaminated] areas.”35
The paragraph relates to human rights law in part because environmental remediation can help states
promote the right to a healthy environment.
As it does for victim assistance, international human rights law offers principles that can facilitate states
parties’ compliance with the TPNW’s environmental remediation provision. Articles 6 and 7 set up thesame framework of shared responsibility. The TPNW assigns affected states parties primary
responsibility for environmental remediation while entitling them to international cooperation andassistance to help them meet their obligations.
The principle of progressive realization can also be applied to environmental remediation. Containing or
removing nuclear contamination can be as daunting a task as assisting people affected by the use andtesting of nuclear weapons. By obliging states to work “towards . . . environmental remediation,”
however, the TPNW recognizes that environmental remediation can proceed gradually and that returninga site to its pre-detonation state may be difficult if not impossible. In other words, states parties may
realize remediation progressively.36
Conclusion
The TPNW’s references to international human rights law do more than signal the humanitarian nature of
the treaty. The need to comply with human rights law, which is articulated in the preamble, should
increase states’ incentives to join the TPNW. In addition, human rights law provides guidance that should
help states parties meet their TPNW obligations, especially regarding victim assistance and environmental
remediation. Proponents of the TPNW can thus use international human rights law as a tool to promote
universalization and strong interpretation of the new treaty, while states parties should implement their
obligations in accordance with human rights principles and duties.
1

Treaty on the Prohibition of Nuclear Weapons (TPNW), adopted July 7, 2017, opened for signature September 20,
2017.
Bonnie Docherty, “A ‘Light for All Humanity’: The Treaty on the Prohibition of Nuclear Weapons and theProgress of Humanitarian Disarmament,” Global Change, Peace and Security (2018), p 10.
2

3

Humanitarian disarmament, which is a people-centered approach to governing weapons, seeks to prevent andremediate the human and environmental harm inflicted by arms. Ibid., pp. 1-2.
4

TPNW, pmbl., paras. 1, 8-12, 18-20.

34

5Ibid., pmbl., para. 8, and art. 6(1).

6Ibid., pmbl., para. 8.

Human Rights Committee, “General Comment No. 36 (2018) on Article 6 of the International Covenant on Civil
and Political Rights, on the Right to Life,” CCPR/C/GC/36, October 30, 2018, para. 2. See also International
Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, entered into force March 23, 1976,
art. 6 (codifying the right to life).
7

8

Human Rights Committee, “General Comment No. 36,” para. 66.

9

Ibid.

10

Ibid.

11

Treaty on the Non-Proliferation of Nuclear Weapons (NPT), adopted June 12, 1968, entered into force March 5,
1970, art. VI.
12International Court of Justice, Legality of the Threat or Use of Nuclear Weapons: Advisory Opinion of 8 July
1996, ICJ Reports 1996, p. 226, paras. 99, 105(2)(F).
13

Human Rights Committee, “General Comment No. 36,” para. 66.

Committee on Economic, Social and Cultural Rights, “General Comment No. 14: The Right to the Highest
Attainable Standard of Health (Art. 12),” August 11, 2000, para. 12. See also International Covenant on Economic,
Social and Cultural Rights (ICESCR), adopted December 16, 1966, entered into force January 3, 1976, art. 12(codifying the right to health).
14“Framework Principles on Human Rights and the Environment,” para. 4, in Report of the Special Rapporteur on
the Issue of Human Rights Obligations relating to the Enjoyment of a Safe, Clean, Healthy and Sustainable
Environment, A/HRC/37/59, January 24, 2018, annex, p. 7. Although not codified in an international treaty, theright to a healthy environment builds on other human rights and has been increasingly recognized at the regional andnational level. Report of the Special Rapporteur on the Issue of Human Rights Obligations relating to the Enjoymentof a Safe, Clean, Healthy and Sustainable Environment, paras. 11-13.
15

16

ICCPR, arts. 19(2) (codifying the right to information) and art. 25(a) (codifying right to participate in publicaffairs).
17
18

TPNW, pmbl., para. 22.
Ibid., art. 6(1).

19

Ibid.

Markus Reiterer and Tirza Leibowitz, “Article 5: Victim Assistance,” in The Convention on Cluster Munitions: A
Commentary, eds. Gro Nystuen and Stuart Casey-Maslen (Oxford: Oxford University Press, 2010), paras. 5.66-5.67.
21
Convention on Cluster Munitions, adopted May 30, 2008, entered into force August 1, 2010, art. 5(1).
20

22Ibid., pmbl., para. 6.

23

TPNW, ar. 6(1).

24

ICCPR, art. 2(1); ICESCR, art. 2(2); Convention on the Rights of Persons with Disabilities, adopted December
13, 2006, entered into force May 3, 2008, art. 3(1).
25Convention on Cluster Munitions, art. 5(2)(e).

35

26

Ibid.

27

Convention on the Rights of Persons with Disabilities, art. 3(c).

28Convention on Cluster Munitions, art. 5(2)(f).

29

TPNW, pmbl., paras. 6-7, and art. 6(1); Convention on Cluster Munitions, art. 5(1).

Harvard Law School International Human Rights Clinic, “Victim Assistance and Environmental Remediation in
the Treaty on the Prohibition of Nuclear Weapons: Myths and Realities,” April 2019, http://hrp.law.harvard.edu/wpcontent/uploads/2019/04/TPNW_Myths_Realities_April2019.pdf (accessed December 29, 2020), pp. 2-3.
30

31

ICESCR, art. 2(1).

32

TPNW, art. 7(3).

33

Ibid., art. 7(6).

34ICESCR, art. 2(1).

35

TPNW, art. 6(2).

36Ibid. (emphasis added).

36

Humanitarian Law, Human Rights, and Nuclear Weapons:Social Movements and the Path of Legal Development*
Andrew Lichterman
Senior Research Analyst, Western States Legal Foundation

I am a generalist peace activist and lawyer, not an international law expert. So I am the token member ofthe user community for international law expertise on this panel. I will be offering some speculative
thoughts about what kinds of international law I think will be useful to peace movements going forward
and about where that law might come from. My views rest on some assumptions about the current
moment. If there was a window for nuclear disarmament created by the end of the Cold War, it now isdefinitively over. That period, with its relative absence of confrontation among the leading nuclear-armed
countries, perhaps offered some hope that advocacy focused solely on nuclear disarmament might
succeed. Now, with global conditions increasingly resembling those that have brought great power wars
in the past, I believe that meaningful progress towards disarmament will require social movements broadand deep enough to address the causes of high-tech militarism and war.
I also believe that movements of this kind will be necessary to stave off wars that could be catastrophic ina nuclear-armed world. These movements will need to bring together work for peace and disarmament
with the disparate strands of work against environmental breakdown, polarization of wealth and economic
injustice, erosion of democracy, and the targeting of migrants, national minorities, and other vulnerable
people. The connections between these issues will have to made at the level of their common causes in a
global economy whose central dynamic for centuries has been endless material growth, driven by ruthlesscompetition among authoritarian organizations of ever- increasing size and power.
I am old enough now to have lived through the latter part of one long cycle of high political mobilizationand large, sustained social movements, followed by three decades of low political mobilization in whichsignificant movements were few, at least in the country I live in, the United States.
Doing social change work is quite different in those two kinds of moments. Periods of low politicalmobilization are characterized by single-issue, professionalized, interest-group advocacy-style politics.
Conventional professionals focus on effects rather than causes and offer technical, legal, and short-term
political fixes for the problems that the dominant order of things systematically generates. In contrast,
sustained, broad-based social movements can change not only the boundaries of the politically possible
but the terrain of legal argument and interpretation.
I believe that we are at the beginning of another wave of movements now. And given the gravity of theoverlapping crises we face, it likely is best that we act as if we are. In regard to international law, we must
try to think of the kind of role it might play in a time of unresponsive, authoritarian governments thatspark widespread resistance. It is worth noting that perhaps the most acute proliferation danger we face
today is the proliferation of authoritarian nationalist governments in nuclear-armed states.
In trying to describe our current moment, a number of commentators have turned to Antonio Gramsci’s
concept of an interregnum. He used the term to characterize a period in which the old order is dying, but a
new one cannot yet be born. In such moments, Gramsci observed, “a great variety of morbid symptoms
will appear.” We are, I think, in another such moment today.
One of the reasons that such transitions are so difficult is that so much power has concentrated at the topof societies that ruling elites have been able to eliminate many of the mechanisms that might rein in their37

power—and that might also provide the means for an orderly and non-violent transition to somethingelse.
A characteristic of such moments is a general sense of rapidly eroding norms and of lawlessness
emanating from the highest levels of society. I believe that today both can be felt within many countries—
and certainly is here in the United States. But it is also is apparent in the strains on the fabric of the postWorld War II international legal order, its institutions increasingly deadlocked and its central norms,
particularly regarding the use of force, ignored by the most powerful states.
So where does this leave us, in terms of where our focus might be in peace and disarmament work inregard to international law? The states, the actually existing governments, are not going to save us. We
must save ourselves. We can only do so by building movements strong enough to take power back fromthe small fractions of global society that now wield it and that threatens to annihilate us with their endlessquest for material wealth and their factional disputes.
Generally, I think that until large movements emerge strong enough to challenge the dynamics driving hightech militarism and conflicts among the most powerful states, we can expect few positive developments instate forums.
In the realm of the laws by which states choose to limit their ways and means of war- making—arms
control treaties and humanitarian law— the role of law will mainly be defensive, aimed at containing an
accelerating arms race. There will be little opportunity for significant norm development. In the realm of
human rights, however, there is perhaps more hope. Such development could take place first withinmovements, as part of broader processes of elaborating a vision for a more humane future.
Unless and until there are movements powerful enough to address the forces driving high-tech militarism
in general, I think that in most of the nuclear-armed countries, campaigning for disarmament treaties, orfor that matter any kind of single-issue campaigning for elimination of nuclear weapons will be of limiteduse.
The Treaty on the Prohibition of Nuclear Weapons might play a useful role in providing a focus fordebate about nuclear weapons issues in some of the nuclear umbrella states where there already iscontroversy about nuclear weapons in the mainstream. It also provides a way for other nuclear weaponsfree states to put some pressure on the nuclear-armed countries.
But it is far more difficult to make significant disarmament progress in countries where nuclear weapons
play a systemic role in military policies, national security ideologies, and the increasingly insular top tierof national economies. We have not assembled nearly enough social power to get nuclear disarmament on
the agenda of governments in those countries in any serious way.
To the extent that it is worth spending time in single-issue work on nuclear weapons here in the UnitedStates, I think the near-term focus should be on supporting what is left of the existing arms control
framework and pushing for arms control negotiations. These are areas where there is some support within
the national security elites and some hope for success in the absence of significant movements pushing for
more. Arms control can slow some of the most dangerous forms of arms racing. And even where
prospects for tangible outcomes are dim, sustained negotiations provide channels of communication and ameasure of mutual understanding that may prove invaluable in a crisis.
The most fruitful context for further normative development pointing towards the outlawing of nuclear
weapons is not, I think, in inter-state forums. Rather, it will be within movements broad and deep enoughto address the causes of international conflict and war. Until further on, when ordinary people in many38

places have gathered enough social power to build some measure of democracy, enough to hold thepowerful and unaccountable few to account, there is little value on core issues of state power in trying toconvince governments that one or another international law rule is authoritative.
Within the movements, the discussion should not center on what the law is. Rather, it should be about
what the law should be, what is consistent with the world we must bring into being if we are to have afair, humane, democratic, and sustainable future, and with a democratic and nonviolent path for getting
there.
A legal discourse intended to play a positive role in movements should aim to play a role in their selfformative process, to be part of their story, their vision, their sense of justice. All of this requires lawyers
and legal workers who are willing to find ways to situate themselves within the emerging movements, andto make themselves accountable to them.
In regard to the body of law most useful for this kind of normative development within our movements, it
seems to me that human rights law has more promise going forward than humanitarian law.
The Treaty on the Prohibition on Nuclear Weapons represents something of a transitional and forwardlooking effort in this regard, still rooted in humanitarian law but containing elements of a broader humanrights perspective. Humanitarian law still ultimately is state-centered law. It concerns what states can
expect and demand from each other. Humanitarian law provides the rules by which states regulate theirwar making. It is compatible with war, and to some degree legitimizes it. As the International Committeeof the Red Cross has observed, “These rules strike a careful balance between humanitarian concerns andthe military requirements of States.”1
We are faced today with potentially civilization-ending ecological crises. We can no longer afford
diversion of resources for war, and war itself could end civilization in a day. The laws of war have little
capacity to inform the broad normative vision we need in this moment. Human rights law is, or can be, apeople-centered law. It concerns what all human beings can expect and demand from states.
A Right to Democracy?2
The United Nations Human Rights Committee in 2018 adopted a general comment on the right to life set
out in the International Covenant on Civil and Political Rights. Paragraph 66 of the general commentstated that “[t]he 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, isincompatible with respect for the right to life and may amount to a crime under international law.” 3This development has sparked further reflection and discussion about the application of international
human rights principles to nuclear weapons and disarmament. It strikes me, however, that like the TPNW,
the characterization of the threat or use of nuclear weapons as a violation of the right to life is a kind oftransitional effort, both in applying human rights law to the goal of nuclear disarmament and indeveloping legal thought that might play a role in accomplishing it.
Using either humanitarian law or a human rights-based right to life as a lens through which the view the
problem of nuclear weapons tends to keep the focus mainly on the effects of nuclear weapons—thehorrific things they do, and the way those effects violate every civilized value. I would like to suggest thatthe next step in moving the project of disarmament forward is to focus more on causes—why nuclear
weapons still exist, and in sufficient quantities to end our civilization in short order, and who nuclear

39

weapons serve, what elements in society benefit from continuing to wield them. I believe a focus on thecauses of our current predicament to be essential not only for legal efforts but across the range of social
action for nuclear disarmament, and for action to address other threats to humanity’s future that sharecommon roots with the persistence of nuclear arsenals.
An approach that might allow a stronger focus on root causes, while also providing some common groundwith movements confronting other manifestations of civilizational crisis such as climate change, would be
to explore a more expansive right to democracy. This would entail much more than a right to vote, which
in many countries today affords most people only limited choices among narrowly defined elites. Rather,
it would mean creating space for the emergence of movements embodying significant alternatives to theexisting order of things, with the requisite tolerance of and protection for political expression andnonviolent action. Such a right already has some grounding in human rights law, and there are argumentsthat we would be well served by measures that set free the creativity of all humanity in seeking solutions
to the existential challenges we now face, solutions that encourage and protect political participation.
A right to democracy is an essential corollary to the right to life where what is at stake are the decisions ofgovernments that threaten our collective survival. It is a right that inheres in the people as a whole. A
right that is framed in reference to the individual, as opposed to one of the people in relation to the state,is too easily made compatible with a jurisprudence that places existential issues, especially thoseconcerning war and peace, firmly and unreachably within the purview of a presumptively legitimate
state.4 It denies the people the power they need when rulers make existential decisions not easily reversed
because existing political channels are blocked, and also without means short of insurrection to declare asocial emergency that requires immediate redress.
Most modern views of the state acknowledge that sovereignty ultimately resides in the citizenry. For themost part, however, mere acquiescence of the populace is taken as sufficient evidence of consent tosupport a state’s legitimacy. From the perspective of the international legal system, this view is reinforced
by principles of non-intervention in the internal affairs of states. The foundational texts of human rights
and of the post-World War II international legal order contain support for a right to democracy, but also
manifest this tension with the principle of state sovereignty.5
Yet no government’s sovereignty should be viewed as legitimate if it places the survival of its people
permanently at risk. Nuclear deterrence assumes the legitimacy of risking annihilation of the people topreserve the state. This has become a corrosive contradiction at the heart of the legitimacy of every
nuclear-armed state, particularly those claiming to be democracies, and also at the core of nuclear age
international law. It is this latter contradiction that was signaled by the International Court of Justice in its
1996 Advisory Opinion on the Legality of the Threat and Use of Nuclear Weapons: “In the long run,international law, and with it the stability of the international order which it is intended to govern, arebound to suffer from the continuing difference of views with regard to the legal status of weapons as
deadly as nuclear weapons.”6
This is true not only for nuclear weapons, but also for the refusal of the most powerful governments totake action of a magnitude commensurate with the threat of global warming, and with the broader humancaused deterioration of the ecosystems essential to our survival. Here too we must ask what are the root
causes, and who is benefiting so much that they are willing to place humanity’s future at risk. It is clearthat a global economic and political order whose main goal is accumulation of material wealth, and whose
driving dynamic is endless competition among immense, internally authoritarian organizations is on acourse bound for ecological and social collapse. It is this order that generated and has been sustained by
the state model, centered on rapid resource extraction and accumulation of the means to make war,7 thathas come to dominate the entire planet. The dangers of this moment are compounded by the presence ofweapons that could end civilization in short order, with the likelihood of their use likely to increase as40

ecological decline precipitates social disorder within states, and intensifies competition among them.
Humanity now faces the challenge of developing new ways of organizing our life here together on earth.
This will require a transformation of the economy, our technology, and much of our built world, and alsoof how we conceive “the state” and its purposes. As Elizabeth Wilson observes in her monograph People
Power Movements and International Human Rights,
The nation-state system is a historical phase, perhaps one that has attained a certain
stability and power to endure, but at this point it is arguably failing the most important
test confronting the international community at the present time—the threat of climatechange…. If the state-centric system fails to respond adequately to this catastrophic threat
to human existence, we may see the end of the state-based system we have now and atransition to a new, probably more primitive pattern of organized human relations
characterized by chaos, violence, and suffering.8
Wilson argues for a strong concept of democracy, one in which social movements that prefigure a moredemocratic and nonviolent future play a central role. It is grounded in a view of the sovereignty of thepeople that is more than an abstract notion of original social contract. “Since in every practical sense
people power creates and maintains states,” Wilson writes, “it is a fiction to assign sovereign power only
to states as international law traditionally does.”9 Wilson posits that “when nonviolent civil resistancemovements respecting human rights general principles reach a certain scale and intensity, they are
activating a ‘dormant social contract’ and reclaiming sovereignty and thus taking law-making power backfrom the state.”10
Large scale social movements demanding fundamental change represent a claim by large numbers ofpeople to exercise directly the sovereignty the state claims to exercise on their behalf. But they also are
one of the main ways that societies can learn, by experimenting with alternative forms of socialorganization and visions of the future. They are where concepts like “human rights” have been incarnatedand further developed, often through risky confrontations with state power.
In 1985, writing about the great wave of disarmament movements of that time, Jürgen Habermas observedthat they opposed not just nuclear weapons but the entire way of life that produced them.11 And he argued
that there are circumstances in which resistance to the state’s law may be the only way that the law cancontinue to develop:
That which is prima facie disobedience may soon prove to be the pace-setter for long
overdue corrections and innovations because law and policy depending on principles arein a constant process of adaptation and revision. In these cases, civil violations or rules
are morally justified experiments without which a vital republic can retain neither its
capacity for innovation nor its citizens’ belief in its legitimacy. If the representative
system collapses in the face of challenges that touch the interests of all, the nation as acollectivity of citizens as well as individual citizens, must be permitted to assume theoriginal rights of the sovereign. In the last instance, the democratic constitutional statemust rely on this guardian of legitimacy.12
And even in “normal” times, vigorous social movements keep societies that aspire to be democratic on
track, providing an essential check on governments anchored outside mainstream institutions.13
How a right to democracy might be put into practice can only be sketched in a preliminary way. The firststeps can be taken within movements for a more fair, democratic, and peaceful society, by incarnating41

those values in their actions and organizational forms. In this moment, there also is particular value formovements in elaborating an explicit normative vision of the more fair and democratic future we hope tobring about. An essential part of this is a commitment to non-violence. Political violence only reinforces
the existing violent order of things, feeding the immense organizations both public and private that are all
too ready to offer more elaborate mechanisms and technologies of surveillance and repression. A
commitment to non-violence also is consistent with broader human rights principles and helps to build thelegitimacy of social movements as providing an alternative both lawful and democratic.14
The project of social transformation without violence in complex, culturally and structurally diverse andstratified modern societies suffused with bureaucratic institutions and pervasive webs of legal regulation
presents tasks of normative self-understanding, elaboration, and transformation that are vast, andparticular to this age. Part of this process is assessing the relationship of that vision to existing legal
orders, evaluating what must be transformed and what can be retained. Efforts to craft and practice analternative vision of democracy and law also may help prepare movements to act effectively—and
consistently with their principles—should they attain significant political power.15 Human rights law, withcore principles that have emerged in large part out of past emancipatory movements, provides one logicalstarting point and frame of reference. At the same time, it also provides movements with some resourcesin public discourse to defend and expand space for political expression and self-organization.16
For peace and disarmament efforts human rights law, with its capacity to elaborate the protection ofhuman life, dignity, freedom, and equality in a wide range of social settings, provides more fertile groundthan does humanitarian law for integrating disarmament work into the kind of multi-issue movements thatlikely will be needed to create the conditions for significant disarmament progress. A right to democracy
may be more likely than the right to life to play a useful role in defining a legal discourse that bears on
key issues blocking everything else, such as prevalent extremes in wealth concentration and concomitantinequities in meaningful access both to political power and to meaningful legal redress for rights
violations of all kinds.
It is within broader, system-critical movements, perhaps, that the concept of human rights can bereclaimed and redeemed from being too often the stalking horse for geopolitical interventions of theWestern countries. And it is also within emerging movements that a new synthesis might be reached ofcivil and political rights and economic, cultural, and social rights, a split in thought and practice withroots deep in the Cold War that persists to this day.17 The “western” character of “democracy” and thecivil and political rights commonly associated with it becomes less clear when one considers democracy
initiatives having no necessary link to capitalism, especially neoliberal capitalism, which in the words ofBoaventura de Sousa Santos, “recognizes no other freedom than economic freedom, and so finds it easy
to sacrifice all other freedoms.”18 And democracy movements have sprung up many places outside “theWest,” with a variety of visions of self-determination and democratic rule emerging—or re-emerging.
This includes campaigns for Indigenous self-governance, now being recognized even byintergovernmental expert panels as critical to preserving alternative ways of sustaining ourselves together
with our ecosystems.19
In the movement to address climate change, there already has been an effort to think systematically about
how human rights principles might advance their work. Scholars participating in the Global Network for
the Study of Human Rights and the Environment published a Draft Declaration on Human Rights andClimate Change, with the hope that human rights could “offer a powerful meta-ethical language ofcritique and the seeds of alternative future histories....”20 Noting the emergence in several countries ofclimate change initiatives grounded in human rights principles, the authors noted that “...it is vital that
respect for human rights should now be understood as an indispensable element of any adequate approach
to climate change.”2142

The Draft Declaration recognizes the importance not only of substantive rights, such as the right to life,
but of procedural rights to participate in decisions that affect all of our futures, particularly for those wholong have been excluded from meaningful participation. One section reads in part:All human beings have the right to active, free, and meaningful participation in planningand decision-making activities and processes that may have an impact on the climate.
This particularly includes the rights of indigenous peoples, women and other underrepresented groups to equality of meaningful participation. This includes the right to aprior assessment of the climate and human rights consequences of proposed actions. This
includes the right to equality of hearing and the right for processes to be free ofdomination by powerful economic actors….22
It is easy to see how such principles are relevant to disarmament work. Decisions about nuclear weapons
affect everyone on the planet. Yet most people, including most who live in nuclear-armed states, havelittle or no voice in those decisions. And it is easy to see these principles as a starting point for finding
common ground on which movements might come together that are broad and deep enough to make adifferent kind of world possible, a world where nuclear disarmament might become a reality rather thanan ever-distant dream.
Regarding the role of states, it is hard to imagine governments recognizing a right to democracy underinternational law in a moment when authoritarian elements are ascendant globally and hold power in mostof the nuclear-armed countries. Yet we must imagine it, for it is unlikely that humanity will have much ofa future unless it is more democratic, a future that can unleash the willing participation of all to overcome
the current economic, political, and ecological impasse of our civilization.
The tension between a right to democracy and the principle of non-intervention poses conundrums for
movements for a more fair, democratic, peaceful, and sustainable global society that are different thanthose perceived by governments, but that are significant nonetheless. In a time in which state power isdeployed internationally by the most powerful countries with little accountability to their own publics,
democratic movements must consider with care any principle that might provide a rationale forintervention by the most powerful governments in the internal affairs of other states. Until the distributionof wealth and power both among and within states has become far more equitable, claims by governmentsthat such interventions are intended to further human rights or “democracy” must be viewed withsuspicion. For the moment, international efforts to further either democracy or human rights may best be
advanced by solidifying connections and mutual support globally among organizations and movements
embodying those values.23
Nonetheless, there remains a great deal that states can do to devolve a greater measure of sovereignty
back to the people for whom they only hold it in trust. A starting point is to recognize the positive roles
that recurring non-violent movements can play in providing flexibility, learning capacity, and legitimacy
for the state. An essential first step would be to reverse the nearly-universal dynamic of exploiting every
possible technological development to expand the reach and power of state surveillance and repression.
Next would come expanding space for self-organized political expression and action outside existing
channels and institutions. This begins with informal tolerance of more vigorous dissent, including
nonviolent civil disobedience, manifesting a recognition that democracy is worth some suspension oforder that interferes with business as usual.
This expanded political space could allow development of a positive cycle of normative innovation. It
could create the conditions for a de-centering of the state-centered legal order by according legal
significance to the norms and practices of social movements that organize themselves and act in ways
consistent with existing human rights principles and that embody principles of democracy and43

nonviolence. Norms generated within these movement contexts could be recognized, as Elizabeth Wilson
suggests, as “a second, even alternative, source of legal meaning is created that is independent of, though
to some extent parallel to, the state practice that traditionally shaped the emergence and applicability ofhuman rights norms,” cognizable as “general principles” that can be a source of law.24
Without democratization of our society and economy that allows more meaningful participation indecisions that affect us all and a fair sharing of the risks of the necessary transitions we must undertake,the likely outcome will be widespread resistance, social chaos, and rising danger of great power war in a
nuclear-armed world. The path to a humane, peaceful, and sustainable future will require openness andforbearance from above, and disciplined nonviolence and democracy from below.
International Committee of the Red Cross, Advisory Service on International Humanitarian Law, “What is
International Humanitarian Law?” 2004.
1

2

This section draws on Elizabeth A. Wilson, People Power Movements and International Human Rights: Creatinga Legal Framework (Philadelphia: International Center on Nonviolent Conflict, 2017). My thanks to Professor
Wilson for the thoughts her work engendered, and my apologies if I took them in a direction never intended.
“The threat or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate ineffect and are of a nature to cause destruction of human life on a catastrophic scale is incompatible with respect for
the right to life and may amount to a crime under international law. States parties must take all necessary measures
to stop the proliferation of weapons of mass destruction, including measures to prevent their acquisition by non-state
actors, to refrain from developing, producing, testing, acquiring, stockpiling, selling, transferring and using them, todestroy existing stockpiles, and to take adequate measures of protection against accidental use, all in accordancewith their international obligations. They must also respect their international obligations to pursue in good faithnegotiations in order to achieve the aim of nuclear disarmament under strict and effective international control[,] andto afford adequate reparation to victims whose right to life has been or is being adversely affected by the testing or
use of weapons of mass destruction, in accordance with principles of international responsibility.” United Nations
Human Rights Committee, General comment No. 36 on article 6 of the International Covenant on Civil and Political
Rights, on the right to life, CCPR/C/GC/36, 3 September 2019, Para. 66. Adopted by the Committee at its 124th
session (8 October–2 November 2018). Access athttps://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC%2f36&%20Lang=en.
3

4

The General Comment on the right to life frames it as an individual right:
The right to life is a right that should not be interpreted narrowly. It concerns the entitlement of
individuals to be free from acts and omissions that are intended or may be expected to cause theirunnatural or premature death, as well as to enjoy a life with dignity. Article 6 of the Covenantguarantees this right for all human beings, without distinction of any kind, including for persons
suspected or convicted of even the most serious crimes.” United Nations Human Rights
Committee, General comment No. 36 on article 6 of the International Covenant on Civil andPolitical Rights, on the right to life, 3 September 2019, CCPR/C/GC/36, Para. 3.

“International human rights law is somewhat schizophrenic with respect to a right to democracy. The UN Charter
does not mention democracy but links human rights and self-determination in Articles 1 and 55, without, however,clearly explicating either term. At the same time, Article 1 of both the ICCPR and ICESCR declares the right of selfdetermination, defined broadly as a right enabling ‘peoples’ to ’freely determine their political status and freely
pursue their economic, social and cultural development.’ By their terms, Article 1 in both Covenants seems toguarantee the right of a people to democratically choose their form of self-government. Article 25 of the ICCPR
protects, among other things, the rights “to take part in the conduct of public affairs, directly or through freely
chosen representatives” and “to vote and to be elected at genuine periodic elections which shall be by universal andequal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” But, as[Thomas] Franck recognized, the ‘notion that the [international] community can impose such standards, on which
544

the democratic entitlement is based’ is in tension with the principle of state sovereignty, embodied in Article 2(7) of
the UN Charter, which provides that the UN shall not interfere in matters ‘essentially within the domestic
jurisdiction of states.’” Wilson, People Power Movements and International Human Rights, pp.122-123.
6

International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, 8 July
1996, para.98.
“Power holders' pursuit of war involved them willy-nilly in the extraction of resources for war making from the
populations over which they had control and in the promotion of capital accumulation by those who could help themborrow and buy. War making, extraction, and capital accumulation interacted to shape European state making.”
Charles Tilly, “War Making and State Making as Organized Crime,” in Bringing the State Back In, edited by Peter
Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985), p.172.
78

Wilson, People Power Movements and International Human Rights, p.132.

9Ibid at 109.

10

Ibid at p.111; see also Elizabeth A. Wilson, People Power and the Problem of Sovereignty in International Law,
26 Duke J. Comp. & Int'l L. 551 (2016).
“The heterogeneous groups which have coalesced in this movement say not only a plebiscitary "no" to nuclear
missiles. instead, many "no's" are aggregated in this movement: the “no” to nuclear weapons with the “no” tonuclear power, to large-scale technology general, to chemical pollution of the environment, to bureaucratic healthcare, "slum clearance," the death of the forests, discrimination against women, hatred of foreigners, restrictive
immigration policies, etc. The dissensus which gains expression in this complex “no” aims not at this or thatmeasure or policy; it is rooted in the rejection of a life-form- namely, that life-form which has been stylized as thenormal prototype- which is tailored to the needs of a capitalist modernization process, programmed for possessive
individualism, for values of material security, and for the strivings of competition and production, and which restson the repression of both fear and the experience of death.” Jürgen Habermas, “Civil Disobedience: Litmus Test for
the Democratic Constitutional State,” Berkeley Journal of Sociology Vol. 30 (1985), pp. 95-116, 110.
1112

Ibid at pp.95-116, 104-105.

“In the historical evolution of democratic regimes, a circuit of surveillance, anchored outside mainstream
institutions, has developed side by side with the institutions of democratic accountability. Necessary to democratic
legitimacy, confidence requires defiance, in the sense of instruments of external control and actors ready to perform
this control; in fact, democracy requires permanent contestation of power. Actors such as independent authorities
and judges, but also mass media, experts, and social movements, have traditionally exercised this function ofsurveillance. The latter, in particular, are most relevant for the development of an ‘expressive democracy’ that
corresponds to the prise de parole of the society, the manifestation of a collective sentiment, the formulation of ajudgement about the governors and their action, or again the production of claims.’” Donnatella della Porta, Can
Democracy be Saved? Participation, Deliberation, and Social Movements (Cambridge, UK: Polity Press, 2013), p.5;
citing and quoting Rosanvallon, P., La Contre-democratie: la politique a l’age del la defiance. Paris, Seuil.
13“Nonviolence is also a core principle because the use of force in the name of human rights does not respect theright to life. Not all nonviolent resistance practice is a human rights practice but there is compelling argument that
all human rights practice must be nonviolent. It is important that the means used to realize rights be consistent withthe overall spirit and end goals of the human rights project…. However, from a human rights perspective, resistancecharacterized by a high degree of nonviolent discipline is the appropriate modality for realizing human rights
because it is less likely to set off a costly cycle of violence in the short and long term and less likely than its violent
counterpart to increase the level of repression, discrimination and exploitation.” Elizabeth A. Wilson, People Power
Movements and International Human Rights: Creating a Legal Framework (Philadelphia: International Center on
Nonviolent Conflict, 2017), p.57.
14

15

See Ibid at pp.132-133.

45

“....... [I]t is important not to overlook the central relevance of international law and human rights to civil society
movements for peace, justice, and ecological sustainability. These normative sources of authority give peoples a
legitimated discourse by which to oppose oppressive tendencies of the state or international institutions, and toproject images of alternative futures that are more benevolent from the perspective of promoting a more satisfying
shared destiny for the peoples of the world, with a special emphasis on protecting those who are most vulnerable.”
C. J. Polychroniou, “Human Rights, State Sovereignty, and International Law: An Interview With Richard Falk,”Global Policy blog, September 11, 2018.
16“The Marxist political program has been left behind but the values advanced by the tradition—social andeconomic welfare, the communal good—have been integrated into the human rights movement with the adoption of
the ICESCR, especially after an Optional Protocol came into force in 2013. Without the principle of nonexploitation,
the human rights project maps too neatly onto political liberalism and corporate capitalism, exposing the project tothe criticism of neoimperialism or neocolonialism. However, the most radical vision of the human rights project, the
UDHR, conceived of human rights as an indivisible and interdependent unity of civil and political rights and socialand economic rights. The general principle of nonexploitation encompasses most of the social and economic rights
outlined in the ICESCR, including the right to work (Art. 6); the right to “just and favorable conditions of work”(Art. 7), including fair wages, safe and healthy working conditions, rest and leisure; the right to form and join tradeunions (Art. 8); the right to social security and social insurance (Art. 9); special protections for childbirth article 10;“the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing
and housing, and to the continuous improvement of living conditions” (Art. 11); the right to the “enjoyment of thehighest attainable standard of physical and mental health” (Art. 12); the right to education (Art. 13); the right toshare in cultural life and scientific progress, including to benefit from any intellectual property (Art. 15).
Nonexploitation includes structural exploitation (e.g., an unfair tax code) and exploitation by businesses or otherprivate actors. Social and economic rights are here expressed through the idea of not exploiting in order to highlighthuman responsibility for human suffering.” Wilson, People Power Movements and International Human Rights, pp.
55-56.
17“As everyone knows these days, neoliberalism’s deep interconnectedness with the interests of finance capitalmakes it the most antisocial version of global capitalism. It recognizes no other freedom than economic freedom,and so finds it easy to sacrifice all other freedoms. The specificity of economic freedom lies in the fact that it isexercised strictly on the basis of one’s economic power to exercise it. This, in turn, always entails a measure ofasymmetrical imposition upon those social groups that are lacking in power and a measure of brutal violence upon
those who have no power at all, which happens to be the vast majority of the world’s impoverished population. The
imposition and the violence lead invariably to the transfer of wealth from the poor to the rich (via the state’s meager
policies of social protection) and the plundering of natural resources as well as economic assets wheneveravailable.” Boaventura de Sousa Santos, “Ecuador: del centro al fin del mundo,” LaJornada October 15, 2019,https://www.jornada.com.mx/ultimas/mundo/2019/10/15/ecuador-del-centro-al-fin-del-mundo-boaventura-de-sousasantos-1939.html. English translation by the author.
18“Recognizing the knowledge, innovations, practices, institutions and values of indigenous peoples and local
communities, and ensuring their inclusion and participation in environmental governance, often enhances their
quality of life and the conservation, restoration and sustainable use of nature, which is relevant to broader society.
Governance, including customary institutions and management systems and co-management regimes that involve
indigenous peoples and local communities, can be an effective way to safeguard nature and its contributions topeople by incorporating locally attuned management systems and indigenous and local knowledge.” Sandra Díaz etal., Report of the Plenary of the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Serviceson the work of its seventh session, Addendum: Summary for policymakers of the global assessment report on
biodiversity and ecosystem services of the Intergovernmental Science-Policy Platform on Biodiversity andEcosystem Services, (2019), p.9.
19

See also Kenneth P. Jameson, “The Indigenous Movement in Ecuador: The Struggle for a Plurinational State,” Latin
American Perspectives, Vol. 38, No. 1, A Second Look at Latin American Social Movements (January 2011), pp.6373
20

For the full text of the Declaration and a commentary on its origins, intentions, and legal basis, see
Kirsten Davies, Sam Adelman, Anna Grear, Catherine Iorns Magallanes, Tom Kerns and S. Ravi Rajan, “The46

Declaration on Human Rights and Climate Change: a new legal tool for global policy change,” Journal of Human
Rights and the Environment, Vol. 8 No. 2, September 2017, pp. 217–253.
https://www.elgaronline.com/view/journals/jhre/8-2/jhre.2017.02.03.xml; passage cited here at p.248.
21

Ibid.

22

Draft Declaration on Human Rights and Climate Change, II.13; ibid at p.252.

“This right to democracy may not create a duty as a matter of positive law on the part of other states to assist
nonviolent activists in their struggles for democratic self-determination because of the norm of nonintervention andthe fact that interventions can do more harm than good. But it would accord with the general (natural law) principles
of human rights to say that non-state actors committed to the human rights project have both a right and a duty to do
everything in their power to help those engaged in such struggles achieve their objectives.” Wilson, People Power
Movements and International Human Rights, pp.125-127.
23“This monograph goes, however, further and argues that general principles can be created and embodied by theactivities of organized nonviolent individuals, not only by states. The key originality of the monograph lies in how it
rehabilitates natural law by ‘operationalizing’ it as collective practice, treating the organized activities of mobilized
individuals as practice that becomes legally relevant to the determination of human rights law as a kind of analogy tostate practice to the extent that such activities are designed and executed consistent with the overall generalprinciples that characterize the human rights ethos. In that way, this monograph argues, a second, even alternative,
source of legal meaning is created that is independent of, though to some extent parallel to, the state practice thattraditionally shaped the emergence and applicability of human rights norms. This monograph thus opens atheoretical and conceptual door for a demos-centric perspective to play a significant and concrete role in shaping andeven determining new human rights norms.” Ibid at p.130.
24

See also on this point at p.16 et seq. Wilson’s discussion regarding the application in this context of Article 38 of the
Statute of the International Court of Justice, which recognizes as a source of law “the general principles of law
recognized by civilized nations...”.

47