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Nuclear Weapon Free Zones:

From Symbolic Gesture to Statutory Ban:

The Aotearoa-New Zealand Experience.

 

  

Draft Paper for the Seminar on Nuclear Weapons Free Zones:

Crucial steps towards a Nuclear-Free World,

Uppsala,

1-4 September 2000

 

 

Alyn Ware
Consultant at Large
Lawyers’ Committee on Nuclear Policy
219 Ngatai Road, Tauranga
Aotearoa-New Zealand
Ph 64 7 576 6750
Email: alynw@attglobal.net
and Dr. Kate Dewes
Disarmament and Security Centre
PO Box 8390, Christchurch, Aotearoa-New Zealand
Ph/Fax 64 3 348 1353
Email: kate@chch.planet.org.nz
Website: www.disarmsecure.org

 

 

Contents

  1. Summary
  2. Growth of the "Kiwi Cure"
  3. The Nuclear Free Zone Act
  4. The International Court of Justice Concurs
  5. Strengthening the Zone
  1. Current Limits
  2. Deployed Nuclear Weapons and the Law
  3. The New Zealand Nuclear Weapons Free Zone Extension Bill
  4. Political Implications
  1. Conclusion

 

 

1) Summary

Anti-nuclear sentiment in Aotearoa-New Zealand grew considerably in the 1970’s as a result of publicity over the effects of nuclear testing in the Pacific and government proposals to develop nuclear energy. From 1976 until 1984 nuclear weapons were most likely entering the harbours on board nuclear capable US, UK and French warships. Growing concern about the risks of nuclear war and of the testing, development and deployment of nuclear weapons stimulated anti-nuclear action even further. Public opposition to nuclear weapons was expressed in a number of ways including the declaration of nuclear weapon free zones, including homes, schools, work places, churches, city councils and regional councils. By mid 1984, over 66% of New Zealanders lived in civic authorities which had been declared nuclear free.

Activists also lobbied the political parties and members of parliament to prohibit nuclear weapons and nuclear powered vessels. In 1984 a private member’s bill to parliament incorporating these elements led to the downfall of the conservative government which did not want to upset its alliance relationships - especially with the United States, United Kingdom (UK) and Australia - by allowing the Bill to pass even though it had majority support in Parliament.

The incoming Labour government implemented a nuclear prohibition policy despite considerable opposition from its Western allies. The US cut military cooperation and downgraded diplomatic relationships and, along with the UK, discontinued visits of all warships. Despite this opposition, New Zealand’s policy was transformed into law in 1987, which was maintained even when the conservative government regained power in 1990.

Regional anti-nuclear sentiment was consolidated in 1985 when eight of the thirteen South Pacific Forum nations signed the South Pacific Nuclear Free Zone Treaty. A decade later, New Zealand’s actions gained indirect legal support with the International Court of Justice decision of July 1996 that the threat or use of nuclear weapons is generally illegal and that there is an obligation to pursue and bring to a conclusion negotiations leading to their complete elimination.

In July 2000, the Green Party introduced a bill extending New Zealand’s nuclear weapon free zone to the 200-mile Exclusive Economic Zone, and including the transit of nuclear waste in the ban. This bill is now before the Select Committee on Foreign Affairs, Defence and Trade.

2) Growth of the "Kiwi Cure"

When Aotearoa adopted a nuclear free policy in 1984, the United States government expressed concern that the "Kiwi disease" might spread to other countries. Their perspective that the nuclear free gesture was possibly well meaning but na´ve and ill-conceived had been echoed by the conservative National government prior to losing the election over the issue.

However, anti-nuclear sentiment in New Zealand was hardly a na´ve populist movement. It was built on a solid base of growing public awareness about the dangers of nuclear power and nuclear weapons.

Much of the awareness arose from the nuclear tests conducted by the US, UK and France in the Pacific from the 1950s – 1970s. Despite strenuous efforts, the nuclear weapon States could not hide the severe damage to human health and the environment resulting from their tests. New Zealanders took a variety of actions to protest the nuclear tests, including sailing ships to the nuclear test sites in opposition to the French declared no-go-zone. In 1973, the New Zealand Labour government sent a warship to the zone to protest, and, along with Australia and Fiji, took a case against France in the International Court of Justice.

The election of Muldoon's National Government in 1975 thrust the twin issues of nuclear-ship visits and nuclear power onto New Zealand's political agenda. The government invited the UK and US to resume visits of nuclear armed and powered warships, which had not occurred during the Labour government. Energy issues already on the agenda following the 1973 oil shock prompted investigations into alternative energy sources. The National government planned an inquiry into the viability of nuclear-generated electricity for New Zealand in late 1976. In March 1976 over 20 anti-nuclear and environmental groups met in Wellington and formed the Campaign for Non-Nuclear Futures (CNNF) and launched Campaign Half Million in June. CNNF produced the then largest petition in NZ's history with 333,087 signatures by October 1976. This represented over 10% of New Zealand’s total population of 3 million. The Royal Commission on Nuclear Power Generation was set up in September 1976 and its report, which in general rejected New Zealand's need for nuclear power was tabled in Parliament in May 1978. The National government, unable to ignore the strength of anti-nuclear, decided to place on hold any decision to proceed with the development of nuclear power.

The campaign to halt visits of nuclear armed and powered warships was however, a much more difficult campaign. New Zealand’s military relationship with the US and Australia, established in 1952 in response to fears of renewed Japanese aggression, found popular support in New Zealand because of the US involvement in preventing a Japanese invasion of the country in World War 11. There was a common feeling, boosted by the National government, that New Zealand should support the US in military matters rather than challenge or criticise them.

New Zealand also maintains strong political and social ties with the UK, another nuclear-weapon-State. New Zealand was colonised by Britain in the 19th Century, and retains as Head of State (Governor General) a representative of the British Monarchy.

On the other hand, the testing of nuclear weapons in the Pacific, and the massive buildup of nuclear weapons by the US and USSR, shocked New Zealanders into action. The issue was made more real by the increase of nuclear warship visits to New Zealand harbours from 1976 to 1984. This stimulated the formation of small neighbourhood peace groups in towns and cities throughout the country. International experts on nuclear weapons were brought to Aotearoa and given prominent media coverage. Nuclear weapon free zone resolutions were introduced to school councils, work places, city councils, unions, professional organisations, regional councils and church boards. The effect of these resolutions was to intensify discussion and debate about nuclear weapons and their effects in communities throughout the country. They also indicated the growing opposition of New Zealanders to nuclear weapons. By 1984, over 66% of New Zealanders lived in civic authorities that had been declared nuclear free.

The anti-nuclear movement also lobbied the political parties and members of parliament to ban the visits of nuclear warships. This led to the Labour Party, then in opposition, adopting a policy to ban nuclear weapons and to promote a nuclear free South Pacific. The other three opposition parties had similar policies. In June 1984, National MP Marilyn Waring announced that she would cross the floor to vote in favour of a private member’s bill to ban nuclear weapons, an action that would have led to its adoption against the wishes of the National government. Prime Minister Robert Muldoon responded by dissolving parliament and calling a snap election. The Labour Party won the election with a strong anti-nuclear mandate.

At the same time, the country was undergoing an identity shift. The previously predominant paradigm of New Zealand as a Western country with primary orientation to Australia, the US and the UK, was being transformed. Aotearoa-New Zealand was beginning to see itself more as a Pacific State, tied to the region by shared geography and ancestry. A number of Pacific Island states had been severely damaged by the nuclear tests, and some were implementing nuclear free policies to protect the Pacific from further nuclear threats. New Zealanders began to look more at their role as a responsible Pacific state standing beside their smaller cousins, and less as an extension of the UK, Australia or the US.

The incoming Labour government, under Prime Minister David Lange, announced that its nuclear free policy would eventually become law. The policy was seen as a strong challenge to the doctrine of the Nuclear Weapon States (NWS). Although New Zealand was not geographically important to the deployment of nuclear weapons, it hosted a US airbase and a Naval Observatory collecting data which helped the accuracy of Trident nuclear missiles.

The fact that a NWS ally, which had accepted nuclear weapons, was now rejecting them was a blow to the notion that the deployment of nuclear arsenals was providing global security. Thus, Prime Minister Lange’s 1987 debate against US evangelist Gerry Falwell on the evil of nuclear deterrence was televised worldwide.

New Zealand was not the only Pacific country to adopt a nuclear-free policy. Belau became the first nuclear free country in 1979 but their nuclear ban was later overturned following extreme intimidation by the US. Fiji’s fledgling nuclear free policy lapsed with the overthrow of Labour government by a military coup in 1986. Vanuatu and Solomon Islands have managed to maintain their nuclear free policies, adopted in 1982 and 1983 respectively.

Inevitably New Zealand’s nuclear free policy came under intense pressure from its Western allies and from Foreign Affairs and Defence officials, many of whom still clung to the doctrine of nuclear deterrence.

The US in particular put intense pressure on Aotearoa-New Zealand, including demotion from an ally to a ‘friend’, curtailment of military cooperation, media leaks of false Soviet scares, threats of economic sanctions, and other attempts at economic and political destabilisation.

The NWS were confident that they could either persuade the Labour government to turn around, as they did the Australian Labour government in 1984, or destabilise the government enough to prevent the codification of the policy, as they did with Belau and Fiji.

Despite this pressure and diplomatic ostracism from the Western bloc, New Zealand held firm. Considerable public support from peace movements and other groups overseas helped considerably. Domestic anti-nuclear sentiment was fueled further by the 1985 French bombing of the peace boat Rainbow Warrior in Auckland harbour, and the 1986 Chernobyl nuclear power plant disaster. By 1986, public opinion polls showed that 92% of New Zealanders supported the government’s nuclear free policy.

At the same time, a strong Pacific wide anti-nuclear movement had moved governments to negotiate and adopt the South Pacific Nuclear Free Zone Treaty in 1986. The Treaty is much weaker than the national anti-nuclear policies of New Zealand, Vanuatu and Solomon Islands, as it permits port visits and transit of nuclear-armed warships. However, it confirms that no South Pacific State would acquire nuclear weapons and includes negative security assurances from the nuclear weapon States.

3) The Nuclear Free Zone Act

In June 1987, the government adopted the New Zealand Nuclear Free Zone, Disarmament and Arms Control Act cementing in place the nuclear free policy. The Act prohibits the emplacement or transport of nuclear weapons on land or internal waters, including harbours, in New Zealand. It also prohibits:

    • entry into internal waters of nuclear powered ships,
    • any agents of the crown from aiding in the manufacture of possession of nuclear weapons anywhere in the world,
    • manufacture or possession of biological weapons.

The Act gives the Prime Minister the authority to disallow entry of any ship into New Zealand internal waters or landing of any aircraft if there is reason to believe the vehicle may be carrying nuclear weapons.

The Act also established a Public Advisory Committee on Disarmament and Arms Control to advise the Prime Minister and Foreign Minister on implementation of the Act and on any disarmament matters it decides are important.

4) The International Court of Justice Concurs

The United States challenged New Zealand’s nuclear free zone policy in a number of ways, including arguing that it amounted to an abrogation of New Zealand’s responsibilities under the ANZUS Treaty. New Zealand held that the Treaty did not require visits of nuclear vessels and New Zealand therefore had a sovereign right to prohibit these from its territory. In 1986 the government rejected a suggestion to seek a legal opinion from the International Court of Justice (ICJ) to clarify New Zealand's obligations under ANZUS.

However, a much stronger proposal to clarify the legal status of nuclear weapons via an advisory opinion from the ICJ was promoted globally by members of the New Zealand peace movement. Despite opposition by the Western nuclear States and their allies, the World Health Assembly (1993) and the United Nations General Assembly (1994) requested separate advisory opinions from the ICJ. The Court, in its historic decision rendered in 1996, declared that the threat or use of nuclear weapons is generally illegal, and that there is an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects.

The ICJ decision was a vindication of those countries, including New Zealand, which had been opposing nuclear weapons, and strengthened their hand in international disarmament fora.

 

5) Strengthening the Zone

i) Current limits

The New Zealand Nuclear Free Zone, Disarmament and Arms Control Act is one of the strongest existing legal prohibitions against nuclear weapons. The prohibition against entry of nuclear weapons into the zone, including harbour visits and landing, is not found in any of the regional nuclear weapon-free zones, which only prohibit stationing of nuclear weapons on the territories. A number other countries have nuclear free policies, but most of them either:

    1. have no legislation codifying the policy,
    2. do not prohibit transit of nuclear weapons, or
    3. do not enforce such prohibitions and instead accept the ‘neither-confirm-nor-deny’ policies of the nuclear weapon states.

However, the New Zealand Nuclear Free Zone is still very limited. It prohibits nuclear weapons only from entering internal waters or on land territory. It does not prohibit nuclear weapons from entering the territorial waters (which stretch from land out 12 miles) or the exclusive economic zone (which stretches from land out 200 miles). At the time of adopting the Act, the New Zealand government believed that prohibiting the transit of nuclear weapons through territorial waters would violate a naval State’s right of innocent passage, and prohibiting nuclear weapons in the exclusive economic zone (EEZ) would violate a naval State’s right to freedom of navigation. Both these rights are affirmed in the United Nations Law of the Sea Convention (UNCLOS).

ii) Deployed nuclear weapons and the law

However, these rights are not unlimited. The right of freedom of navigation in high seas and exclusive economic zones is limited by the principle of peaceful purposes, and requires due regard for other states' interests. In Exclusive Economic Zones (EEZ’s), freedom of navigation is further restricted by laws and regulations adopted by the Coastal State and other rules of international law. The exercise of innocent passage has similar restrictions. Suspension of such passage in archipelagic waters and territorial waters is specifically permitted if such suspension is essential for protecting the security of the coastal or achipelagic State. In addition, international law does provide limits on what may be considered "innocent passage."

Following the ICJ’s 1996 decision, New Zealand’s Disarmament Minister Doug Graham suggested that it might now be possible under international law to "ban the innocent passage of warships and submarines through international waters."

The transit of currently existing nuclear weapons through territorial waters, their entry into EEZ’s, and even their deployment on the High Seas within regional NWFZ’s, could be considered as illegal and therefore prohibited for the following reasons;

    1. deployed weapons constitute a threat of their use.
    2. The ICJ concluded that "The threat or 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."

      The ICJ defined "threat of use" as "the declared readiness of a State to use force." Nuclear weapons currently being navigated in the oceans, i.e. those deployed on submarines, are deployed under both policies and practice of readiness to use. The U.S., U.K., France and Russia maintain policies to use nuclear weapons in a wide range of circumstances, including first use and use against non-nuclear threats. Nuclear weapons on submarines are kept attached to their delivery systems with the ability to be launched at targets within minutes (US, Russia), hours (France, China) or days (UK).

      It follows from the above that there is sufficient basis in international law, to determine that the current deployment of nuclear weapons on the high seas contravenes the UNCLOS requirement of "peaceful purposes." Such a determination was made by the Greenock Court in acquitting three anti-nuclear protestors on charges of damages they had caused to nuclear submarine equipment. Explaining her instructions to the jury to acquit, Sheriff Gimblett noted that:

      I have to conclude that the three accused in company with many others were justified in thinking that Great Britain in their use of Trident, not simply possession, the use and deployment of Trident allied with that use and deployment at times of great unrest, coupled with a first strike policy and in the absence of indication from any government official then or now that such use fell into any strict category suggested in the ICJ opinion. The threat or use of Trident could be construed as a threat, has indeed been construed by others as a threat and as such is an infringement of international and customary law.

    3. no State in these regions is currently in a position where the threat or use of nuclear weapons would alleviate a current and real threat to its very survival,
    4. The only situation in which the ICJ could not decide whether the threat or use of nuclear weapons would always be illegal is "in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;"

      States parties to NWFZ treaties could argue that there is no current threat to their survival that would be alleviated by the threat or use of nuclear weapons. In fact, most States parties to NWFZ treaties hold the position that nuclear weapons do not provide security from threats to their survival, but rather constitute threats to their survival.

    5. the weapons currently deployed are of the nature that their use could not be compatible with the principles and norms of international humanitarian law,

The ICJ concluded that in all circumstances, even the extreme circumstance of self defence in which the very survival of a State would be at stake, the threat or use of nuclear weapons must comply with the principles and norms of international humanitarian law. This law prohibits the use of weapons or tactics in wartime which:

a. disperse asphyxiating, poisonous or other gases and analogous substances

b. fail to discriminate between combatants and noncombatants,

c. violate the neutral jurisdiction of non-participating states,

d. cause unnecessary or aggravated suffering,

    1. cause long-term and severe damage to the environment, or
    2. are disproportionate to the provocation.

 

Nuclear weapons currently deployed in the nuclear navies have explosive forces ranging from 100 kilotons (Trident I C4) to 1 megaton (SS-N-17, SS-N-18). A 100-kiloton warhead is over five times the explosive force of the bomb which destroyed Hiroshima. The use of this bomb was judged by the Tokyo District Court to have violated several of the humanitarian laws of warfare including those on non-discrimination and aggravated suffering.

The International Court of Justice concluded that: "The destructive power of nuclear weapons cannot be contained in time or space." Even if the nuclear weapons deployed by the NWS navies were not directed at cities, the force of the explosion and the resultant radioactive contamination would render them unable to conform to all of the principles and laws of humanitarian law.

UNCLOS affirms coastal States rights to adopt laws and regulations governing their EEZ as long as they are in accordance with the provisions of UNCLOS and other rules of international law. Coastal States have additional rights in their territorial waters to prevent passage which is not innocent. Thus, it would appear that coastal States have the right to prevent nuclear-armed ships from entering their EEZs and territorial waters.

iii) The New Zealand Nuclear Free Zone Extension Bill

In July 2000, the Green Party of Aotearoa-New Zealand introduced into parliament the New Zealand Nuclear Free Zone Extension Bill, which:

    1. Extends the zone to include the 200 mile exclusive economic zone
    2. Extends the prohibition on nuclear weapons and nuclear powered ships from land and internal waters to the EEZ
    3. Prohibits the passage in the EEZ of nuclear waste destined for nuclear fuel reprocessing

The government, upon advice from the Foreign Ministry, stated that they would not support the Bill because it would violate State obligations to allow innocent passage in territorial waters and freedom of navigation in EEZs, and also because it would lead to political retaliation from the nuclear weapon states (NWS) and nuclear transport states (NTS). Rather than opposing the Bill outright, which would have sent a confusing message to international disarmament fora regarding New Zealand’s commitment to nuclear disarmament, the government sent the Bill to a select committee on the hope that it might be transformed into something less controversial.

However, in submissions to the Select Committee, some peace groups in Aotearoa are supporting the Bill, arguing that:

    1. the deployment of nuclear weapons violates the principle of peaceful purposes and is not innocent passage, and can thus be prohibited, and
    2. the passage of nuclear waste and nuclear powered vessels constitutes a threat to the marine environment and is not done according to internationally accepted regulations, and can thus also be prohibited.
    3. the deployment of nuclear weapons and the transit of nuclear powered vessels and waste threaten customary kaitiaki (indigenous guardianship) rights to protection of kaimoana (seafood) and wahi tapu (sacred sites).

iv) Political ramifications

The New Zealand government has been able to acquire informal undertakings from the NWS and the NTS not to transit New Zealand’s EEZ with nuclear waste or nuclear powered ships. The government is concerned that passage of the Bill would anger the NWS and NTS to such an extent that they would drop such undertakings and directly challenge the prohibition by entering the zone. The government is also concerned that the NWS and NTS may respond with other methods of retaliation, possibly even worse than when New Zealand adopted its more limited anti-nuclear policy in 1984.

However the Green Party, and some peace groups, are arguing that New Zealand’s de facto nuclear free EEZ, without codification into law, is weak and could be abandoned at any time by the NWS and NTS. In addition, the private undertakings made to New Zealand have not been extended to other countries, and thus are of myopic self-interest value only. Codification into law would provide a precedent for other countries to be able to emulate.

While political retaliation from the NTS and NWS would be likely, the Green Party and peace groups are hoping that international support for the initiative could weaken such retaliation, as it did in the 1980s.

6) Conclusion

New Zealand’s nuclear free zone legislation has served as a useful example and model for other countries in moving towards a genuine prohibition of nuclear weapons. The 1996 International Court of Justice Advisory Opinion provides a legal and political opportunity for additional countries to prohibit nuclear weapons from their territories and internal waters, and also for such prohibitions to be extended to the territorial waters and Exclusive Economic Zones.

NWFZ’s could also declare that the deployment of nuclear weapons through the entire zone itself is now illegal. Treaty Parties could seek authoritative support in the form of an advisory opinion from the International Court of Justice on the legal status of the deployment of nuclear weapons in regional nuclear weapon free zones.

Treaty Parties could also draft an additional protocol to the Treaties, open for signature by NWS, under which the NWS undertake not to navigate deployed nuclear weapons within or through the Zones. In view of current deployment practices, it is possible that some of the NWS would be prepared to sign such a protocol of zones which they do not currently navigate. This could provide some pressure for the other NWS to join later. Treaty Parties could also take more restricted steps towards this goal. For instance, the NWFZ states might ask NWS to agree not use nuclear weapons against targets against in the seas within the zones or to launch weapons from those seas.

Such steps would provide strengthened legal and practical protections for the NWFZ’s, highlight the illegality of current deployment strategies, demonstrate the commitment of States Parties to NWFZs to complete nuclear disarmament, and put additional pressure on the NWS to abandon deterrence and move towards complete nuclear disarmament.

 

 


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