International Meeting
2024 World Conference against A and H Bombs
Session 1
Thomas Hajnoczi
Ambassador, Austria
On Article 6 and 7 of the TPNW and the task of supporting the Hibakusha
Esteemed participants,
I regret that I cannot be in person with you, but I am honored to have the privilege to address you today by a pre-recorded message.
We are all aware of the catastrophic humanitarian consequences of nuclear weapons. Above all of the suffering of the Hibakusha, but also of the victims of nuclear testing of nuclear weapons.
Until the Treaty on the Prohibition of Nuclear Weapons was negotiated and adopted in 2017, none of the legal instruments dealing with nuclear weapons included language on their effects. On purpose, the pain and human tragedies that nuclear weapons cause should not be mentioned in the context of the regulation of nuclear weapons. Nuclear weapons have been misrepresented as guarantors of peace and security. They had to be debated merely in an abstract context of ‘strategy’ rather than on merit of their actual effects. Key questions under international law regarding all other arms such as whether they could be used in accordance with international humanitarian law should not be discussed.
The denial of the real consequences of nuclear weapons ended only when the dignity and value of the human person was inserted in the discussion on nuclear weapons. This human security approach led to the Treaty on the Prohibition of Nuclear Weapons, in short TPNW.
Already in its preambular part the Hibakusha are mentioned and I quote:
“Mindful of the unacceptable suffering of and harm caused to the victims of the use of nuclear weapons (Hibakusha), as well as of those affected by the testing of nuclear weapons,“
Its Article 6 is entirely devoted to Victim Assistance and Environmental Remediation. Paragraph 1 of Article 6 concerns the duty for affected states parties to the TPNW to provide adequate assistance to victims of the use or testing of nuclear weapons. Art. 6 also contains another important paragraph referring to the duties and obligations of other states under international law or bilateral agreements, mainly those states that used or tested nuclear weapons, to provide assistance or related compensation or funding.
All treaties can create obligations only for those states that join them. However, international law applies to all states, regardless whether they join a treaty or stay away from it. Therefore paragraph 3 of Article 6 of the TPNW refers explicitly to already existing duties and obligations under international law or bilateral agreements. In other words, signing and later ratifying the TPNW by a country having suffered from nuclear bombing of testing does not take anything away from the continued obligations of the states that used or tested nuclear weapons there, in short the perpetrator states. Under international law these perpetrator states have to provide assistance to the victims and remediation for the caused damage which might take the form of funding of it or compensation.
By prominently stating the situation under international law the TPNW underlines the responsibility of those states that committed the bombing or testing. It does not in any way undermine any claims for reparation or remedy against the perpetrator states.
This brings us to the question of how far does the obligation of perpetrator states go under international law. The International Law Commission stipulates in its 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts that — and I quote:
“the responsible State is under an obligation to make full reparation for the injury caused… Injury includes any damage, whether material or moral, caused by the internationally wrongful act.”
For the Hibakusha and Japan in general paragraph 1 of Article 6 would be of particular relevance should Japan join the TPNW. It reads:
“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 applicable international humanitarian and human rights law, adequately provide age- and gender sensitive assistance, without discrimination, including medical care, rehabilitation and psychological support, as well as provide for their social and economic inclusion.”
The group of people that are entitled to receive assistance under Art. 6 is wider than those having been personally harmed by high doses of radiation. They include e.g. future generations with genetic disorders and people having been driven from their contaminated lands.
Any use of nuclear weapons and most nuclear tests violate basic human rights like the right to life or the right to health and create a right to receive a remedy. This remedy typically could include reparation measures in addition to financial compensation and health care.
The language in paragraph 1 of Article 6 makes it clear that provision of some form of assistance is not enough. It has to be adequate, best suited for the age and gender of the victim and certainly be rendered without discrimination. So discrimination against a certain group like those affected by black rain is not permitted.
The forms of assistance are not exhaustively enumerated in paragraph 1, but medical care, rehabilitation and psychological support as well as providing for social and economic inclusion are named. Certainly the discrimination against the Hibakusha is addressed here.
Paragraph 2 of Article 6 stipulates the obligation for states parties that were affected by the use of nuclear weapons or nuclear testing to take necessary and appropriate measures towards the environmental remediation of contaminated areas. No global standards as to the reduction of radioactivity in the soil have been established so far. Therefore the language of Art. 2 had to remain rather general.
Like in paragraph 1 the direct addressee for the affected human being is his own government that exerts control over the area, but paragraph 3 puts the financial onus on the shoulders of the perpetrator state in accordance with the principle of causation.
Article 6 dealing with victim assistance and environmental remediation is followed by Art. 7: International Cooperation and Assistance. These two articles are seen as closely linked to each other. Under Article 7 states parties that are in a position to do so are required to provide assistance or support such assistance to other states parties that are affected by nuclear weapons use or testing. Such cooperation can take different forms as spelled out in paragraph 3 of Article 7 “technical, material or financial assistance”, and take place in various fora. It can occur in bilateral or multilateral form, by creating new or using established bodies such as the United Nations. The objective is more support for states parties affected by the use of nuclear weapons or nuclear testing from other states parties in a position to do so.
On 1 December 2023 the Second Meeting of States Parties to the Treaty on the Prohibition of Nuclear Weapons tasked the Informal Working Group on Victim Assistance, Environmental Remediation, International Cooperation and Assistance to submit a report with recommendations on the issue of the establishment of an international trust fund for victim assistance and environmental remediation to the Third Meeting of States Parties to be held in March 2025. The relevant work is under way under the Co-Chairs Kazakhstan and Kiribati, two countries affected by nuclear testing. The creation of such an international trust fund would enable all states, not only the states parties to the TPNW, to make contributions to be used for victim assistance and environmental remediation in affected states parties to the TPNW.
Summing up we can conclude that
- the TPNW has finally brought the issue of victim assistance and environmental remediation into an international treaty on nuclear weapons and
- put the suffering of the Hibakusha and victims of nuclear tests into the limelight of international debates and meetings.
- The new view on the topic made it clear that full assistance and reparation is still not achieved and further measures are required.
- The articles of the TPNW dealing with these questions underline that it is not an issue for merely the affected states, but very much so also for the states that used nuclear bombs or tested nuclear weapons.
- By dealing multilaterally with the topic the position of affected countries is strengthened in their bilateral contacts and negotiations with the perpetrator state, usually a much bigger and more powerful state.
- The language on international cooperation and the work being undertaken regarding the establishment of an international trust fund send a powerful message that the whole international community should care about the Hibakusha and test victims. All states in a position to do so should contribute to measures to alleviate their plight.
- The TPNW has set an international standard for victim assistance and environmental remediation.
Ultimately, our position and support to the Hibakusha and victims of nuclear tests reveals a lot about ourselves. Are we human beings that are ready to act in support of human dignity and human rights? Do we hence put pressure on our politicians to act?
With these questions I thank you for your attention.