Climate Protection and Nuclear Abolition: Developments in Humanitarian Disarmament and Human Rights Since the Release of "The Climate-Nuclear Nexus"

Produced by Lawyers Committee on Nuclear Policy
Contributing authors: Ariana Smith, Executive Director; John Burroughs, Senior Analyst; Danielle Samler, Research Officer (former) and Co-Coordinator of Reverse The Trend: Save Our Planet; and Isaac J.R. Alston-Voyticky, CUNY School of Law and CCNY Colin Powell School Student
Sponsored by The Simons Foundation Canada
November 2022

Introduction

The Foreword to The Climate-Nuclear Nexus, first published by the World Future Council in 2 2015, begins:

While humanity faces a range of interconnected transnational threats and crises in the 21st Century—including extreme poverty, hunger, pandemic disease and demographic change—climate change and the continued existence of nuclear weapons stand out as the two principal threats to the survival of humanity. On the long arc of human existence, both threats are relatively new to the scene, having only appeared over the last century. Both threaten the survival of life on earth as we know it and both are of our making.

The challenges posed by climate change and nuclear weapons have only grown more formidable in ensuing years. Nuclear weapon possessors are modernizing their arsenals and in some cases increasing them. US-Russian nuclear arms control negotiations have stalled, and multilateral nuclear disarmament negotiations are non-existent. The Russian invasion of Ukraine and the strong international reaction against it has severely disrupted already tenuous cooperation among major powers on matters of peace and disarmament. And, of course, climate change has grown impossible to ignore. A recent IPCC report cites an all-but-unavoidable increase in global temperatures, sparking worldwide climate disasters we are already seeing: raging fires, harsher hurricanes, flash flooding, and more.

Climate change and nuclear weapons are inextricably linked:

• Climate change can be a cause of a deteriorating security environment, in turn 5 leading to armed conflict, which could involve use of nuclear arms.

• Lack of cooperation on addressing nuclear weapons can impair cooperation on addressing climate change. As David Steward and Jonathan Granoff observe: “Our future depends on intense cooperation to achieve human security in the face of climate change, global pandemics, and other serious threats. Yet nothing undermines cooperation more than the threat of nuclear weapons. We must build a future without them for humanity to have a future at all.”

• Resources spent on nuclear arsenals cannot be spent on climate protection and other socially beneficial ends, and production and deployment of nuclear arms requires energy consumption that generates greenhouse gases.

• A major nuclear exchange would cause a dramatic drop in global temperatures— “nuclear winter,” climate change in the opposite direction.

Solutions in the climate and nuclear arenas are parallel in important respects. Climate protection and nuclear disarmament are both intrinsically global political and legal processes built on core treaties and raise similar issues of upholding the international rule of law. This paper first summarizes key observations and findings, followed by an overview of regime creating climate and nuclear treaties. It then compares and assesses the treaty regimes in the two spheres, including the role of an agreement negotiated subsequent to the release of The Climate-Nuclear Nexus, the Treaty on the Prohibition of Nuclear Weapons. It goes on to describe relevant recent developments in human rights law and closes with a discussion of a recent proposal to establish an international crime of ecocide.

Key Observations and Findings

• Nuclear disarmament and climate protection each have treaty regimes aimed at implementation of general obligations, setting a framework for action contained in international legal agreements, the Nuclear Non-Proliferation Treaty (NPT), the UN Framework Convention on Climate Change, and the Paris Agreement on climate change.

• In both the climate and nuclear arenas, states are obligated to act in accordance with the fundamental legal principle pacta sunt servanda: a treaty is legally binding and must be performed in good faith.

• The NPT has played a significant role, possibly a crucial role, in preventing the spread of nuclear arms to additional countries. However, it has fallen far short of its objectives of cessation of nuclear arms racing and of elimination of nuclear arsenals.

• No nuclear-armed state has joined the Treaty on the Prohibition of Nuclear Weapons (TPNW) or seems likely to do so in the near future. Nonetheless, the TPNW has served to highlight what is supposed to be a “pillar” of the NPT, namely nuclear disarmament, and may over time stimulate progress on that pillar. Like the regional nuclear-weapon-free zone treaties, it also reinforces the NPT obligation of nonacquisition of nuclear weapons by non-possessor states. Importantly, it has for the first time focused global policy attention on the imperatives of victim assistance and environmental remediation.

• With its emphasis on the catastrophic environmental as well as humanitarian consequences of nuclear weapons, as well as its obligation of environmental remediation, the TPNW creates visible linkages between humanitarian nuclear disarmament and climate and environmental protection. 

• How well the Paris Agreement is working in terms of the bottom line of averting climate change is open to question. It is far from clear whether some countries, including the United States, will be able to meet their nationally determined targets. Moreover, those targets taken together are not sufficient to meet the goal of 1.5°C average global increase in temperature.

• The nuclear and climate regimes face daunting challenges. The nuclear regime is hampered by lack of cooperation and trust arising out of its unequal two-tier structure and the continued reliance on nuclear arms in global power politics. The climate regime appears to have buy-in in principle from most countries, including large ones. Further, climate protection is conducted in a constructive, problem-solving mode. On the other hand, changing economies in order to meet climate protection goals is an inherently difficult task.

• The human rights basis for nuclear disarmament and climate protection has been bolstered in recent years by three developments: the negotiation of the TPNW, which protects the human rights of victims of testing and use of nuclear arms; a UN Human Rights Committee finding that threat or use of nuclear weapons is incompatible with respect for the right to life; and recognition of the right to a clean, healthy, and sustainable environment by the UN Human Rights Council and the UN General Assembly.

• Stop Ecocide International has proposed that a crime of ecocide be added to the Rome Statute of the International Criminal Court. This would be a fifth category of crimes under the Rome Statute, joining war crimes, crimes against humanity, genocide, and aggression. Experts have proposed defining ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”

• A crime of ecocide would apply in times of peace as well as war. Establishment of an international crime of ecocide would contribute to future protection of the climate, and also perhaps to prevention of environmental harm arising from future production and testing of nuclear weapons. Yet amending the Rome Statute to add a crime of ecocide would not be a panacea, due in part to jurisdictional hurdles.

• Ecocide committed during the course of international armed conflict is already proscribed by existing international instruments, most importantly the Rome Statute and Protocol I to the Geneva Conventions.

• Whether or not the crime of ecocide is added to the Rome Statute in the near future, the concept of ecocide can and should serve as a strong linkage in popular consciousness and in policy deliberation between the twin imperatives of averting catastrophic climate change and averting catastrophic nuclear war.  Continue reading....