TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS FIRST MEETING OF STATES PARTIES

Statement on Positive Obligations

Delivered by Bonnie Docherty, Harvard Law School’s International Human Rights Clinic (Part of the ICAN delegation)

June 22, 2022

Thank you.

I am reading this statement on behalf of Harvard Law School’s International Human Rights Clinic, Article 36, ICAN France, KNOW NUKES TOKYO, Nuclear Age Peace Foundation, Pace University’s International Disarmament Institute, and UNA-UK.

Humanitarian and environmental concerns lie at the heart of the TPNW. Its preamble makes clear that the treaty aims to address the devastating consequences of nuclear weapons. To this end, it includes not only prohibitions to prevent future harm, but positive obligations to mitigate the ongoing harm of past use and testing. It follows the lead of its humanitarian disarmament predecessors—the Mine Ban Treaty and the Convention on Cluster Munitions—and includes obligations to assist victims, clear remnants of war (in this case through environmental remediation), and provide international cooperation and assistance. It adapts them, for the first time, to the context of nuclear weapons.

The treaty’s obligations in this area are strong. Article 6(1) requires states parties to provide a range of age- and gender-sensitive assistance to victims that encompasses medical care, rehabilitation, and psychological support, as well as measures to promote social and economic inclusion.

Article 6(2) requires states parties to take “necessary and appropriate measures towards environmental remediation” of contaminated areas.

Article 6 places primary responsibility on affected states parties for practical and legal reasons, but Article 7 ensures that they are supported in their efforts. Article 7 requires all other states parties in a position to do so to provide material, technical, and financial assistance to help affected states parties implement their Article 6 responsibilities. Given the breadth of support they can provide, almost all states should be able to contribute some form of international assistance. Sharing the burden with the international community will prevent it from stretching the capacity of any one state.

Articles 6 and 7 open doors to new forms of assistance but does not close doors. They do not prevent affected states or individuals from pursuing other forms of redress, including compensation from nuclear testing states.

While the positive obligations of the TPNW are strong, they will only be as effective as their implementation. That process begins this week. The First Meeting of States Partis both sets priorities for the treaty and lays the foundation for operationalizing it in the years to come.

The recommendations presented in the working paper by Kazakhstan and Kiribati are an excellent starting point. We welcome the work that went into developing and building agreement around these recommendations, including the efforts to consult civil society and affected communities in the process. We now encourage states parties to support the recommendations and ensure they commit to them in the Vienna Action Plan.

Four categories of immediate action are particularly critical. First, states parties should establish an architecture for implementation. They should assess the needs of victims and nuclear weapons in their territory, and their capacity to respond. They should adopt a national plan, with budget and timeline. They should appoint a focal point and adopt relevant laws and policies. Between now and the 2MSP, states should take initial steps towards fulfilling these actions. Non-affected states should establish mechanisms to facilitate international cooperation and assistance. States parties should also commit to uphold the principles of accessibility, inclusivity, non- discrimination, and transparency at all stages of implementation.

Second, states parties should commit to developing a voluntary reporting format. Reporting, while not required by the TPNW, promotes monitoring and accountability and facilitates international assistance by highlighting affected states’ needs. It need not be a burdensome process because the format can draw from models in other disarmament treaties.

Third, states parties should create an informal intersessional working group on the positive obligations. The working group should provide a forum for reporting on progress, facilitating international cooperation and assistance, developing an international trust fund, and wrestling with complex issues related to related to victim assistance and environmental remediation.

Fourth, states parties should commit to inclusivity at all stages of these processes. They should closely consult with and actively engage affected communities and engage with all relevant stakeholders, which also include civil society, international organizations, indigenous peoples, and youth.

These are manageable steps that can be achieved through collective action. States parties to the TPNW should work in a spirit of solidarity and collaboration with all relevant stakeholders to undertake them: we are ready to support states with their work in this area however we can.

While initiating implementation at the 1MSP and in the intersessional period is crucial, victim assistance and environmental remediation are long-term processes that will unfold over decades. Therefore, states must also look ahead.

The Harvard Law School International Human Rights Clinic has developed principles for implementing victim assistance and environmental remediation in conjunction with the Conflict and Environment Observatory. We have also disseminated a fact sheet summarizing these principles this week.

Some of these principles are the short-term ones already discussed. Looking forward, victim assistance should address victims’ immediate and ongoing needs and promote the full realization of their human rights.

States could, for example, provide not only the health care and socioeconomic assistance required by the TPNW but also acknowledgment of harm, measures to facilitate participation in cultural life, access to information, and measures to promote victims’ human rights.

Environmental remediation should address the root cause of harm, i.e., nuclear weapons contamination. It should break pathways of exposure, including through marking and fencing and risk education, and address the contamination itself, such as by containing or treating it. When assessing remediation options, states should choose those that most benefit affected communities and the environment.

In conclusion, while the grave consequences of nuclear weapons make victim assistance and environmental remediation daunting, the treaty text, 1MSP documents, and resources from civil society and other experts show that the positive obligations can be implemented in an effective and feasible way. Doing so is a humanitarian and environmental imperative.

Thank you.