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Legal Framework for a “World Without Nuclear Weapons”
Let's Make a Northeast Asia Nuclear-Weapon-Free Zone Treaty
Kenichi Okubo, Secretary-General
Japan Association of Lawyers Against Nuclear Arms
The Problem
The recent NPT final consensus document says that consideration shall be given to proposals of the UN Secretary-General exploring "negotiations on a nuclear weapons convention or agreement on a framework of separate mutually reinforcing instruments, backed by a strong system of verification" and "agreement on a framework of separate mutually reinforcing instruments." In other words, agreement was reached on the need for not only the (political) effort for nuclear disarmament, but also for establishing a (legal) framework necessary for bringing about and maintaining a world without nuclear weapons. The agreement is on the level of considering proposals by the UN Secretary-General, and in light of the attitudes of nuclear powers toward UNGA resolutions to quickly begin negotiations on a "nuclear weapons convention," establishing a legal framework for bringing about and maintaining a world without nuclear weapons in a short time is a very tall order. But the fact that a consensus was reached on the direction to take in creating a nuclear weapons convention and a "legal-level" framework that is an "agreement on a framework of separate mutually reinforcing instruments" is welcome as it reveals signs of change in the attitudes of nuclear powers.
The Former Attitude of Nuclear Powers on the Use and Threat of Nuclear Weapons
When the International Court of Justice debated the question of whether the use and threat of nuclear weapons violates international law, the basic attitude among the nuclear powers was that they do not violate international law. One reason is that there is no international law which directly prohibits the use of nuclear weapons, or the threat to use them; another reason is that because security policy is left to the judgment of each individual country, such a constraint would be an infringement on national sovereignty. Here the inhumanity of nuclear weapons was pushed aside by this issue's context: the inviolability of national sovereignty. Incidentally, the Japanese government's stance on this was that "although it is a departure from the spirit of international law, it is not a violation." While the recent final NPT document was inadequate in form, it did refer to a "nuclear weapons convention" and an "agreement on a framework of separate mutually reinforcing instruments." We can perhaps here find changes leading in a good direction." Our task, therefore, is to establish a "legal framework" for bringing about and maintaining a "world without nuclear weapons." First we should quickly get negotiations started on a nuclear weapons convention (NWC); second, we should set up a "convention framework" internationally and regionally; and third, we should enact "non-nuclear laws" tailored to each country's situation. Here I shall discuss "nuclear-weapon-free zone conventions," which are regional arrangements.
Nuclear-Weapon-Free Zone Conventions
With nuclear-weapon-free zone conventions, the relevant countries in a certain region ban the manufacture, testing, deployment, use, and other actions with nuclear weapons within that region, and ban the use of nuclear weapons by nuclear powers in that region. Currently Central and South America, the South Pacific, Southeast Asia, Africa, Central Asia, and other regions are nuclear-weapon-free zones under nuclear-weapon-free zone conventions.
The final document of the recent NPT revcon says, "The establishment of further nuclear-weapon-free zones, where appropriate… is encouraged. All concerned States are encouraged to ratify the nuclear-weapon-free zone treaties and their relevant protocols, and to constructively consult and cooperate to bring about the entry into force of the relevant legally binding protocols of all such nuclear-weapon-free zones treaties, which include negative security assurances." It is an agreement to create new nuclear-weapon-free zones and to make existing zones more legally binding. If all regions on Earth become nuclear-weapon-free zones, then the manufacture, testing, deployment, and use of nuclear weapons would be prohibited, and the remaining tasks would be disposal, and stopping acts like remanufacture. Additional nuclear-weapon-free zones would contribute greatly to bringing about a world without nuclear weapons.
Working Toward a "Northeast Asia Nuclear-Weapon-Free Zone Treaty"
Civil society has already proposed a model aimed at creating a "Northeast Asia Nuclear-Weapon-Free Zone Treaty." Under this proposed model, Northeast Asia comprises Japan, the Republic of Korea (South Korea), and the Democratic People's Republic of Korea (North Korea). These three countries (the zone countries) would not research, develop, test, manufacture, possess, deploy, use, or otherwise have anything to do with nuclear weapons within their zone, while the nearby nuclear powers of China, Russia, and the US would not attack or threaten this zone with nuclear or conventional weapons, and the treaty would ban port calls, landings, transit through air space, or transit through territorial waters by ships or aircraft carrying nuclear weapons.
This Northeast Asia Nuclear-Weapon-Free Zone Treaty has supporters not only in civil society, but also among members of Japan's and South Korea's parliaments, and diligent efforts are being made toward bringing it about. But Japan's government is disinclined toward this treaty because it still maintains the stance that Japan's security is assured by the US nuclear umbrella.
However, the recent NPT revcon asks North Korea to abandon all nuclear weapons and nuclear plans, and return to the NPT in line with the September 2005 joint statement, while at the same time pledging firm support for the six-party talks and attainment of a comprehensive resolution through "diplomatic means."
It seems highly unlikely that the peace and stability of the Korean Peninsula and Northeast Asia can be achieved by beefed-up sanctions or military pressure against North Korea. Surely we need the "sovereign equality of all members" and "settlement by peaceful means" that the UN Charter calls for. An avenue leading from confrontation to dialog has been opened through the six-party talks, and we need to seek discussion that envisions the "Northeast Asia Nuclear-Weapon-Free Zone Treaty" instead of closing that avenue. It is a challenge that we must definitely accept.