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Comments on Draft Convention

John Hallam

61-2-9810-2598   61-411-854-612
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Comments on Draft Convention and General Remarks
Support for a Prohibition Convention

People for Nuclear Disarmament and the Human Survival Project
(A joint project between PND and the Council for Peace and Justice located at Sydney University), 

strongly encourage all Governments including those of nuclear weapon states and Governments subject to
'extended deterrence' relationships with those states, to support the process of negotiations for a Nuclear Weapons Prohibition Convention. 

We join with ICAN and many other NGOs worldwide in stressing that the dangers currently posed by nuclear weapons  
are as great or greater than they have ever been, as has been stressed in our working papers and side-panel presentations at both the OEWG and the most recent NPT Prepcom.

This means that the importance of both the elimination of nuclear weapons and of immediate,
short-term, risk reduction measures such as de-alerting, no first use, improved military to military communications,
and refraining from provocative and highly dangerous exercises with nuclear and conventional forces close to land borders – is greater than ever before.

Indeed, it means that the importance of both Elimination and Risk Reduction has become existential.
Nuclear weapons now constitute an immediate – term existential risk to civilisation, and to humans as a species.

This is hardly a new message, but it is one that is more to the point than it has ever been,
and it is a message that requires Governments to act as if they actually believe it.

This in turn means that the elimination of nuclear weapons is not merely a 'feel-good' measure that can be accomplished 'some century'.
It is an urgent and pressing priority that needs to happen yesterday.

It also means that it is a security priority – indeed a survival priority – whose importance edges out all other security priorities. 

There is simply no other consideration as important as this, no priority that could ever be as important as this one.

The relevant argument on security then will have to go, for any country, nuclear – armed or not:

--'How can I contribute to the achievement of a world in which these weapons no longer exist?'

and NOT

'How do I preserve what I thought were my existing security interests',
when – paradoxically – it is precisely the pursuit of those interests 

on the part of many Governments that will lead to an end state in which nobody’s
security interests are met and indeed, possibly, potentially, to an end state in which everyone perishes.

Viewed in this way – and this is the only rational way to view it – it is perfectly clear that it is in the interests of all states, nuclear – armed or not, 
to engage in a process in which nuclear weapons are first prohibited as this Prohibition Convention seeks to do, and then, as quickly as possible, eliminated.

We therefore call on all Governments including those of the nuclear weapon states to engage
in this process with a view to eliminating their nuclear arsenals as an urgent human survival priority.

We also call on all Governments that have nuclear weapons to engage immediately in risk reduction measures,
as outlined in our panels and in panels held by others notably Global Zero and the Swiss Government, again, as a matter of human survival priority. 

Comments on the Draft Text

PND and the Human Survival Project commend the comments made by ICAN and others
(notably LCNP in its letter from lawyers and its March working paper) on the draft text. At no point do we disagree with any of these comments.

However, there are some points that we’d especially like to stress and one or two points, that may not have been made by others.

'Mere' Human Survival

The draft at one point in the preamble does mention human survival, and it is important that it does so:

“...Cognizant that the catastrophic consequences of nuclear weapons transcend national borders,
pose grave implications for human survival, the environment, 

socioeconomic development, the global economy, food security and for the health of future generations,
and of the disproportionate impact of ionising radiation on maternal health and on girls”

The mention is as stated, important, but more could and should have been made of this as a priority. 
Human Survival surely deserves a paragraph of its own! 

Perhaps wording to the effect that the adoption of this Convention should be regarded as an
'existential priority' (or similar wording) could be adopted. 

What is important is that the wording move from an 'incidental' acknowledgement of the
threat nuclear weapons pose to human survival if used, to one that makes the prioritisation of measures to eliminate them a Human Survival priority.

Threat of Use and Use:

We strongly agree with LCNP that the use or threat of use of nuclear weapons should be 
explicitly prohibited. (without diminution of the status of other prohibitions in the draft convention).

We also agree (though we don't claim any particular legal expertise) with LCNPs argument that the existing body of
IHL  makes the use or threat of use of nuclear weapons ALREADY illegal. We reproduce what LCNP said on the matter in their working paper in March:

“Because of their very nature, the use of nuclear weapons is illegal under customary international law. 

They cannot be used in compliance with fundamental principles protecting civilians and neutral
states from the effects of warfare, protecting combatants from unnecessary suffering,  
protecting the environment from severe and irreversible damage, and safeguarding the interests of future generations.
Use of nuclear weapons would constitute war crimes under the Rome Statute of the International Criminal Court, and, in many circumstances, crimes against humanity as well” 

“The 1996 Advisory Opinion of the International Court of Justice supports this assessment. 

The Court stated that “the use of [nuclear] weapons in fact seems scarcely reconcilable with respect for [the strict] requirements” of 

“the principles and rules of law applicable in armed conflict – at the heart of which is the overriding consideration of humanity.” 

So do many General Assembly resolutions. The resolution entitled “Ethical imperatives
for a nuclear-weapon-free world,” adopted in 2015 and again in 2016, declares:
“Given the humanitarian impact of nuclear weapons, it is inconceivable that any use of nuclear weapons,
irrespective of the cause, would be compatible with the requirements of international humanitarian law or
international law, or the laws of morality, or the dictates of public conscience.” 

A 2011 resolution of the International Red Cross and Red Crescent Movement
“finds it difficult to envisage how any use of nuclear weapons could be compatible
with the rules of international humanitarian law.” The Vancouver Declaration, released by IALANA and 

The Simons Foundation in 2011, states that nuclear weapons cannot be employed in compliance with
international humanitarian law because their effects are uncontrollable.”

LCNP Notes:

“ 4 It is imperative that the preamble include an affirmation of the illegality of use of
nuclear weapons under existing law to reinforce the norm of non-use of nuclear weapons. 
It also is essential to avoid any implication that the fact that the prohibition of use contained in
the operative portion will apply only to states parties implies that non-states parties are not subject to any such rule” [emphasis mine]

The relevant section in the draft convention reads:

“ Basing themselves on the principles and rules of International Humanitarian law,
in particular the principle that the right of parties to an armed conflict to choose
methods or means of warfare is not unlimited and the rule that care shall be taken
in warfare to protect the natural environment against widespread, long term and severe damage,
including a prohibition of the use of methods or means of warfare which are intended or may be
expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population,

Declaring that any use of nuclear weapons would be contrary to the rules of international law applicable in armed conflict,
and in particular the principles and rules of humanitarian law, 

Reaffirming that in cases not covered by this convention, civilians and combatants remain under the protection and
authority of the principles of international law derived from established custom,
from the principles of humanity and from the dictates of public conscience,..” 

I note also that the ICAN commentary on the draft text suggests that:

“The treaty text should clearly articulate the relevant principles and rules of international humanitarian law,
international human rights law and environmental law, as the basis for the treaty itself.” 

We agree. LCNPs language suggests a way to do this. 

The addition of an explicit prohibition on top of this existing law does not in fact establish any new law,
but rather makes explicit what was all the time implicit, and removes any possible doubt that such use or threat of use is illegal.
The inclusion of points made and language included in, the resolutions quoted by IALANA would in our view be highly desirable,
and would considerably strengthen the draft prohibition convention. 

IALANA’s last point (in bold) is vital, as existing law applies of course to ALL states not merely to
those who sign the Convention, but the existence of the Convention will clarify and emphasize these
implications of existing and customary law to which all states are subject whether they sign the convention or not.

Art VI of the NPT

It is important to emphasize that the conclusion and signing of a nuclear weapons prohibition convention
is not merely compatible with the NPT, and does not MERELY leave it as in the draft text:

“Reaffirming the crucial importance of the Treaty on the Non-Proliferation of Nuclear
Weapons as the cornerstone of the international nuclear non-proliferation regime and an
essential foundation for the pursuit of nuclear disarmament, the vital importance of the
Comprehensive Nuclear-Test-Ban Treaty as a core element of the nuclear disarmament and
non-proliferation regime, and the contribution of the treaties establishing nuclear-weapon-free zones
toward strengthening the nuclear non- proliferation regime and to realizing the objective of nuclear disarmament”

But the convention should make clear that the conclusion and signing of this draft convention is precisely
IN FURTHERANCE of the aims and objectives of NPT Art VI, and that refusal to sign or to engage in its
negotiation actually casts doubt on the commitment of governments that refuse to do so, to the aims and objectives of Art VI.

LCNP suggests the following, which we think would be very helpful:
    1. Recalling the obligation set forth in Article VI of the Nuclear Non-Proliferation Treaty […].
    2. Recalling also the unanimous conclusion of the International Court of Justice that there exists
an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament
in all its aspects under strict and effective international control, and affirming that the obligation is universal and unconditional. 

    3. Commentary: It is important to reference the ICJ’s conclusion regarding the nuclear disarmament
obligation as well as Article VI of the NPT. First, the ICJ provided an authoritative interpretation of Article VI,
consistent with, inter alia, NPT Review Conference adoption of “an unequivocal undertaking
by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals”.
Second, the clear import of the ICJ’s conclusion is that the obligation applies universally
as a matter of customary international law, thus applying to non-NPT states.
Reference to the ICJ’s conclusion would in no way undermine reference to NPT Article VI
and to commitments made in NPT Review Conferences if those are included.  

Far from undermining or potentially undermining Art VI, language something like this
would strengthen Art VI, and indeed, the NPT framework as a whole. We are aware that
some states have urged that this draft convention strengthen not weaken the NPT framework,
and such language hopefully will do this.

Finally, I'd like to emphasize that these comments and suggestions on the draft text have
been arrived at entirely independently and without consultation with either LCNP or ICAN,
though obviously we've had access to their working papers and hope that they too concur. 

John Hallam  

26 MAY 2017
Julie Bishop,

Minister for Foreign Affairs

Dear Julie Bishop,

I am writing yet again to see if I can persuade you to reverse Australia's misguided boycott
of the nuclear weapons prohibition negotiations that will take place in New York between 15June
and 7 July, as you are urged by a Senate motion earlier this year,
and to take urgent action to reduce nuclear risks at the end of the year and in the Sept2018 High Level meeting.

Australia's boycott serves no practical purpose and achieves nothing good.

While the ban negotiation is correctly seen as a strengthening and an implementation of Art VI of the NPT,
our boycott of that negotiation actually puts in doubt our commitment to Art VI, and by doing so weakens the NPT regime.
Let me emphasize that if anything weakens the NPT regime it will not be the nuclear Ban negotiations,
which are an expression of the core intent of the NPT, but the actions of those governments who refuse to take part in those negotiations.

The ban negotiations do not detract from, or weaken, the incremental steps – some of them of existential importance,
notably those that deal with risk reduction – that are needed to actually eliminate nuclear arsenals.
Rather they add urgency to those steps. In one or two years, maybe much less depending how smoothly
the negotiations progress, nuclear weapons will be illegal for ¾ of the governments of the world.
This can only make their elimination by those governments that persist in maintaining nuclear arsenals more urgent.

It has been said by the Australian Government and by some other governments that the
elimination of nuclear weapons cannot take place in isolation from the global strategic situation.
Indeed so. The current fraught global strategic situation, a situation in which the risk of actual
use of nuclear weapons is as great as it has ever been, including in the riskiest parts of the cold war,
calls for the elimination of nuclear weapons as a matter of existential urgency. Even more, it
calls for the urgent reduction of nuclear war risks. Action by the Australian government
on reducing nuclear risks both in the upcoming session of UNGA and in the coming Sept 2018
High Level Meeting on nuclear disarmament would be most welcome.

Nuclear weapons right now constitute the single largest and most urgent and immediate
threat to human civilization and human survival. This is a risk that 'trumps' mere
national self – interest and national security. In any case, there cannot be national survival apart from global human survival.

Those governments that do not participate in the ban negotiation in June/July are playing a breathtakingly destructive and irresponsible role.

Surely Australia, as a responsible member of the community of nations will have the commonsense and decency not to do this.

I urge you to participate no longer in this ill-advised and ill-fated boycott,
and to lead the 40 governments that identify with the 'progressive approach'
to understand that this approach can succeed best only within the overall
framework of a ban, which instills an appropriate sense of
urgency to step by step processes on which progress has not been made and steps have not thus far been taken.

I also urge you to take further action to reduce short term nuclear risks both
at the upcoming UNGA and in the Sept 2018 High Level Meeting.

John Hallam
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23 MAY 2017



People for Nuclear Disarmament and the Human Survival Project,
have welcomed the release earlier today (Monday NY time) of the draft text of a treaty whose purpose is to make nuclear weapons illegal.

Somewhere between 2/3 and ¾ of the governments of the world will
be meeting at the UN in New York from 15 June to 7 July to further negotiate,
finalise, and adopt the final text of a treaty to ban nuclear weapons, making them illegal.

Australia is boycotting these negotiations. It should be participating in them in good faith.

According to PNDs nuclear disarmament campaigner John Hallam, who will be attending the June15-July7 New York negotiation:
“According to the Australian Government, the adoption of a ban treaty by the
overwhelming majority of the Governments of the world, will in some unexplainable way detract from step-by-step approaches that take place either bilaterally or under the aegis of the Nuclear Nonproliferation Treaty.

It is even argued that the ban will somehow weaken the NPT.

This is complete nonsense. The ban will strengthen not weaken the NPT and will
'put a bomb under' efforts to proceed with step by step moves to eliminate nuclear weapons.”

“In fact, by refusing to attend Australia puts question-marks behind its real
commitment to the elimination of nuclear weapons under art VI of the NPT and under repeated declarations from NPT review conferences.”

“Australia should reconsider and reverse its ban treaty boycott and lead an effort
to use the ban treaty to strengthen and radically accelerate the so-called 'progressive' approach – an approach that so far has been characterised mainly by its complete lack of progress.”

“In addition, Australia should add its backing to moves to reduce the risks of inadvertent
(or deliberate) nuclear war, which in recent years have spiralled to levels as high or higher
than those of the most terrifying parts of the cold war.”

John Hallam
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Australian Senate MOTION

Nuclear Weapons

Senator SINGH (Tasmania) (15:58):

I, and also on behalf of Senator Ludlam, move:

That the Senate—

(a) notes that:

(i) there are close to 15,000 nuclear weapons in the world today,

posing a grave threat to all humanity,

(ii) nuclear weapons remain the only weapons of mass destruction not

yet expressly prohibited under international law,

(iii) the United Nations (UN) will convene a conference from 27 to 31

March 2017 and 15 June to 7 July 2017 to negotiate a legally binding

instrument to prohibit nuclear weapons, leading towards their total


(iv) the UN General Assembly has encouraged all UN member states to

participate in the conference, and (v) Australia, as a state party to

the Non-Proliferation Treaty, is legally required to pursue

negotiations in good faith for nuclear disarmament;


(b) urges the Australian Government to participate constructively in

the conference.