Office of the Prime Minister of New Zealand

STATEMENT by Allan Bracegirdle, Deputy Director, Legal Division, Ministry of Foreign Affairs and Trade of New Zealand

Nuclear Disarmament and Arms Control: State Practice

New Zealand Practice
Mr President, I need hardly note at the outset that the process whereby new rules of customary international law emerge is a large and complex topic on its own, well beyond the scope of these submissions. New Zealand is aware that a rule, in order to constitute customary international law, must be based on more than evidence of state practice alone; it is also necessary to show that states consider themselves to be legally bound by the practice.

Evidence for the existence of such a legal obligation can be expressed in various ways, and there is no need to show that every state accepts the practice. It is pertinent to note that the Court, in its Judgment in the North Sea Continental Shelf case, indicated that rules of customary international law may be crystallised or generated by treaties and bind states that never become party to them, and that such a process could in certain circumstances take place over only a short period of time. It has also reiterated, in its Judgment in the Military and Paramilitary Activities case, that rules of customary international law embodied in treaties have an independent existence, and noted that instances of inconsistent state conduct do not affect the existence of a rule of customary international law where state practice has, in general, been consistent with it.

So far as the actual use of nuclear weapons is concerned, state practice is of course virtually non-existent. There has been no case of a nuclear weapon being used by one state against another state in 50 years. The nuclear-weapon States have shown great restraint with these weapons. The restraint might appear remarkable, but it reflects a recognition on their part of the enormity of the question of the use in war of such weapons and that such use would be a very different proposition from anything that had gone before.

On the other hand, in the area of nuclear disarmament and arms control, a large body of law, particularly treaty law, has continued to evolve and imposes prohibitions of various kinds on, inter alia, the threat or use of nuclear weapons. It is appropriate to look at state practice accordingly, and I would like to begin with the New Zealand approach.

New Zealand is a long standing advocate of nuclear disarmament and non-proliferation. We believe in the benefits of a nuclear free and more secure world. We are a diligent party to the Nuclear Non-Proliferation Treaty, and have sought to match our belief in the objective of that treaty with further actions. We have made every endeavour to make our part of the world nuclear free. In his recent address to the Special Commemorative Meeting of the United Nations, the New Zealand Prime Minister said that the time has come for a new commitment to a world free of nuclear weapons and called for a strategy to achieve this goal.

In New Zealand, the nuclear free foundations are laid down in a statute in the New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987. The Act embodies New Zealand's commitment to the nuclear disarmament and arms control process. It does this in two main ways.

First, the Act creates a nuclear free zone within New Zealand. The Act makes it an offence for New Zealand citizens or persons ordinarily resident in New Zealand to manufacture, acquire, or possess or have control over any nuclear explosive device within the New Zealand Nuclear Free Zone. Offences are also created for aiding, abetting or procuring any person to do any of those things. In the case of servants or agents of the Crown, the prohibition against committing such acts extends beyond the Zone. There are further prohibitions in the Act on the stationing or testing of nuclear explosive devices in the New Zealand Nuclear Free Zone, and on the entry into New Zealand internal waters of nuclear weapons.

Second, the Act enshrines in national legislation five international agreements in the disarmament and arms control field, four of which are directly applicable to nuclear weapons. These are:

- The South Pacific Nuclear Free Zone Treaty of 6 August 1985 (also known as the Treaty of Rarotonga);

- The Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water of 5 August 1963 (also known as the Partial Test Ban Treaty);

- The Treaty on the Non-Proliferation of Nuclear Weapons of I July 1968 (the NPT); and

- The Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-bed and the Ocean Floor and in the Subsoil Thereof of 11 February 1971 (also known as the Seabed Arms Control Treaty).

By giving special status to these treaties and creating a New Zealand Nuclear Free Zone, the Act robustly expresses New Zealand's support for a nuclear free world. It is the national basis for stronger action in disarmament and arms control at the regional and global levels.

New Zealand's commitment to effective nuclear disarmament and arms control measures at the regional level is reflected in our support for the Antarctic Treaty and the South Pacific Nuclear Free Zone, both of which are important examples of prohibitions on nuclear weapons and their use applying to particular geographic regions.

New Zealand is an original contracting party to the Antarctic Treaty of 1959. Article I of that agreement provides that Antarctica shall be used for peaceful purposes only. Any measures of a military nature, including the establishment of military bases, the carrying out of military manoeuvres, and the testing of any type of weapons, are prohibited. The Treaty also prohibits any nuclear explosions in Antarctica and the disposal of radioactive waste there. Through its active participation in the continuing operation of the Antarctic Treaty, New Zealand contributes to the demilitarisation of a whole continent.

New Zealand was pleased to play a major role in the establishment of the South Pacific Nuclear Free Zone. The Treaty of Rarotonga, which creates that zone and entered into force in 1986, reflects the collective will of South Pacific nations to renounce the possession of nuclear weapons, to ensure that nuclear weapons are neither tested in the zone nor stationed on national territory in the region, and to gain assurances of non-use of nuclear weapons from the nuclear-weapon States.

The last of these objectives of course requires the support of the nuclear-weapon States. To date, only China and the former Soviet Union of the nuclear powers have become party to the relevant protocols to the treaty. New Zealand greatly welcomes the very recent joint announcement of the other three nuclear-weapon States of their intention to sign the protocols in the first half of 1996. In doing so, they will be strengthening the nuclear non-proliferation regime in our region of the world. Nuclear weapon free zones can only be fully effective if they gain the support of the nuclear-weapon States. We hope that the success of the Treaty of Rarotonga and the Treaty of Tlatelolco establishing the Latin American nuclear weapon free zone will encourage other regions of the world to make similar arrangements, where appropriate, for their security as envisaged in Article VII of the Nuclear Non-Proliferation Treaty.

The significance of such regional initiatives can be seen in the fact that together with the areas covered by the adjacent Antarctic Treaty and the Treaty of Tlatelolco, the South Pacific Nuclear Free Zone contributes to an overall nuclear weapon free area which covers approximately 200 million square kilometres of the earth's surface. Almost all of the Southern Hemisphere will be included within such zones upon the entry into force of the Treaty establishing the African nuclear weapon free zone. New Zealand has followed the recent developments concerning that treaty with considerable interest, in particular the adoption of the Pelindaba text of the treaty in June 1995 by the Heads of State of the Organisation of African Unity. New Zealand is also very interested in the negotiations under way among South East Asian countries who are members of ASEAN on a treaty to establish a nuclear weapon free zone in their region. Such a zone would complete, in effect, a Southern Hemisphere zone, and further reinforce state practice in respect of the non-proliferation of nuclear weapons.

Beyond this contribution at the regional level, New Zealand is also committed to progress in global efforts in the disarmament and arms control field. New Zealand recognises that no part of the globe may be insulated in the event of the use of nuclear weapons. The security of all states is dependent upon the effectiveness of international agreements directed at the control in various respects, and the elimination, of nuclear weapons.

To that end, New Zealand is a party to significant global disarmament and arms control treaties that bear on the threat or use of nuclear weapons. These treaties include the Partial Test Ban Treaty, the Outer Space Treaty, the Seabed Arms Control Treaty and, most importantly in our view, the Nuclear Non-Proliferation Treaty itself

As has already been noted, New Zealand has been, and continues to be, a strong supporter of the Nuclear Non-Proliferation Treaty. It is the fundamental underpinning for further progress in nuclear disarmament and arms control. It is in recognition of this fact that New Zealand supported the unanimous decision taken at the Review and Extension Conference in May 1995 to extend the treaty indefinitely. That decision was a vote of confidence in the contribution that that treaty has to make to a nuclear free world and in the commitment of the nuclear-weapon States to work, without further deflection, towards that goal.

As mentioned in our written statement, since 1972 New Zealand has taken a lead, with other States, in tabling a resolution each year at the United Nations General Assembly calling for a comprehensive nuclear test ban treaty to be negotiated. In 1993, for the first time, and again in 1994, the resolution was adopted by consensus. A comprehensive nuclear test ban treaty is now being negotiated in the Conference on Disarmament, with the active participation of the nuclear-weapon States. Three of the nuclear-weapon States have already indicated that a treaty with a zero testing threshold would be acceptable to them. Such a treaty will make a significant contribution to halting the proliferation of nuclear weapons in all its forms, and hence have a major impact on the threat or use of nuclear weapons.

New Zealand strongly supports other recent multilateral steps towards nuclear disarmament that would further back up a comprehensive nuclear test ban. Such steps include the recent agreement by the Conference on Disarmament on a mandate for an ad hoc committee to begin negotiations on a treaty banning the production of fissile material for nuclear weapons purposes. New Zealand has also called for a negotiated and verifiable agreement to ban the future production of nuclear weapons.

New Zealand also welcomes the progress made in the bilateral nuclear arms reduction negotiations between the United States and the Russian Federation. We urge an acceleration of their work, which is further evidence that state practice is now turning strongly against nuclear weapons.

The New Zealand approach, then, is a comprehensive one. We are committed to the goals of nuclear disarmament and arms control through our national legislation, through our participation in regional initiatives, and through our active support of international agreements that might ultimately help to bring about general and complete disarmament. The New Zealand practice is both clear and strong.

Practice of Other States
Mr President, turning to the practice of other states, we know that we share our aspirations in respect of nuclear disarmament and arms control with countries all round the world. The support given to the Nuclear Non-Proliferation Treaty is perhaps the clearest evidence of that. We believe that the tide of state practice today is stronger than ever in favour of nuclear non-proliferation and the complete elimination of nuclear weapons.

Although nuclear weapons are a comparatively recent invention, international law has not been slow to respond to their uniquely destructive qualities and progressively develop a range of prohibitions and restrictions. There is now a considerable body of international law which bears specifically on the threat or use of nuclear weapons. Further, more recent, development of this law is evidence of the strength of state practice on the matter.

A substantial body of treaty law already exists regulating nuclear weapons. In various respects, possession, testing, deployment, threats or use of nuclear weapons are expressly prohibited. Several of the treaties, which are widely if not universally accepted, are of major importance:

- First, commitments made under the Nuclear Non-Proliferation Treaty and other regional treaties such as the South Pacific Nuclear Free Zone Treaty and the Treaty of Tiatelolco in respect of Latin America mean that nearly all states other than the five declared nuclear-weapon States have undertaken not to manufacture or otherwise acquire nuclear weapons or to receive the transfer of or control over such weapons whether directly or indirectly. The decision of the parties to the Nuclear Non-Proliferation Treaty at their Review and Extension Conference in May 1995 to make the treaty permanent is of special significance;

- Secondly, under the Partial Test Ban Treaty of 1963, undertakings have been secured not to carry out any nuclear weapon test explosion, or any other nuclear explosion, in the atmosphere, under water, or in outer space. Moreover, the treaty prohibits nuclear weapon tests in any other environment if the explosion would cause radioactive debris to be present outside the borders of the state under whose jurisdiction or control the explosion is conducted;

- Thirdly, the Outer Space Treaty of 1967 is restrictive of nuclear weapons in two important respects. It prohibits placing nuclear weapons in orbit around Earth, or installing them on the moon or any other celestial body, or otherwise stationing nuclear weapons in outer space. It also limits the use of the moon and other celestial bodies exclusively for peaceful purposes and expressly prohibits their use for, inter alia, testing weapons of any kind. Like prohibitions are contained in the Moon Treaty of 1979;

- Fourthly, the Seabed Arms Control Treaty of 1971 prohibits emplanting or emplacement on the seabed and the ocean floor and in the subsoil thereof of any nuclear weapons, or other weapons of mass destruction. Structures, launching installations or any other facilities specifically designed for storing, testing or using such weapons, are prohibited beyond the outer limit of a twelve mile "seabed zone". The same prohibition applies to the area within a seabed zone, except in relation to the coastal State concerned.

The first point to note, then, is that significant regulation of nuclear weapons already exists in important multilateral treaties.

State practice against nuclear weapons is continuing to evolve and strengthen. I have already mentioned the developments concerning the African nuclear weapon free zone and the proposed South East Asian nuclear weapon free zone. These efforts are further evidence of the desire of a significant number of states to buttress other prohibitions on nuclear weapons and to express in formal treaty terms their rejection of these weapons as far as possible in their own backyards.

A significant outcome of the Review and Extension Conference of the parties to the Nuclear Non-Proliferation Treaty in May 1995 was the commitment agreed by all parties to complete negotiations on a universal and internationally and effectively verifiable Comprehensive Nuclear Test Ban Treaty no later than 1996. Negotiations are well advanced in the Conference on Disarmament in Geneva. Such a treaty will be the most important development since the adoption of the Nuclear Non-Proliferation Treaty itself in strengthening the non-proliferation regime and as a signal of the intention to eliminate nuclear weapons. The commencement of negotiations on a treaty on the cut-off of production of fissile material for nuclear weapons, as has also been proposed in the Conference on Disarmament, will further reinforce these goals.

Practice of Nuclear-Weapon States
Mr President, so far as the practice of the nuclear-weapon States is concerned, Article VI of the Nuclear Non-Proliferation Treaty is the starting point. That Article provides as follows:

"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control".

In the Principles and Objectives for Nuclear Non-Proliferation and Disarmament, adopted unanimously by Decision of the parties to the Nuclear Non-Proliferation Treaty at their Review and Extension Conference, the parties agreed that the undertakings with regard to nuclear disarmament as set out in the treaty should be fulfilled with determination. In this regard, the nuclear-weapon States reaffirmed "their commitment, as stated in Article VI, to pursue in good faith negotiations on effective measures relating to nuclear disarmament".

Recent welcome progress has been made by the nuclear-weapon States in nuclear disarmament and arms control. Bilateral agreements in more recent years between the two major nuclear powers, the United States on the one hand and the former Soviet Union and the Russian Federation on the other hand, have provided for significant reductions in their respective nuclear arsenals and the elimination of one whole category of nuclear weapons, intermediate-range nuclear missiles.

Initially in the early 1970's, the Strategic Arms Limitation Talks, or SALT, focused exclusively on limiting the size of the respective side's strategic nuclear arsenals. Overall, nuclear arsenals increased as the nuclear arms race continued almost unabated. It was not until 1987, with the conclusion of the Intermediate Nuclear Forces Treaty, followed by the Strategic Arms Reduction Treaties (START) in the 1990s, that real reductions in nuclear stockpiles finally got under way. Present stockpiles, however, still far exceed the number of nuclear weapons in existence when the Nuclear Non-Proliferation Treaty entered into force and are a measure of the intensity of the nuclear arms race in the 1970s and 1980s.

The willingness of the major nuclear powers to enter into negotiations on a comprehensive nuclear test ban treaty and on a treaty banning the production of fissile material for nuclear weapons is a further indication of changing attitudes on the part of the nuclear-weapon States.

As already noted, the practice of the nuclear-weapon States supports the non-use of nuclear weapons. In various respects, non-use has been accepted by them as a legal obligation. A further significant part of their practice in this regard concerns the negative security assurances given by all five nuclear-weapon States about the circumstances in which they would not use nuclear weapons. The United States, the United Kingdom, France and Russia have this year reaffirmed that they will not use nuclear weapons against non-nuclear-weapon States Parties to the Nuclear Non-Proliferation Treaty. While there is an exception in certain cases of armed attack by a non-nuclear-weapon State in association or alliance with a nuclear-weapon State, it does not constitute evidence that nuclear weapons will be used in the circumstances concerned. China's assurance is unconditional in that it is not limited to parties to the Nuclear Non-Proliferation Treaty but extends to all non-nuclear-weapon States. Its guarantee to non-nuclear-weapon States also applies "in all circumstances", and it has reaffirmed its undertaking not to be the first to use nuclear weapons at any time and under any circumstances.

While discussions in the international community on the incorporation of these unilateral security assurances into an international instrument have continued in recent years, it is New Zealand's view that such a move would serve to codify the customary law force that such assurances already enjoy. Negative security assurances, made in good faith, give rise to a legitimate expectation on the part of non-nuclear-weapon States that they will be complied with. This is by virtue of the Judgment of the Court in the Nuclear Tests Case (New Zealand v France) in 1974, when it stated that, based on the principle of good faith, unilateral declarations by states may be binding at international law. The quotation from the relevant parts of the Judgment is set out in paragraph 50 of our written statement.

It is also relevant to the practice of the nuclear-weapon States to draw attention to the parallels with other categories of weapons. Since the adoption of the Nuclear Non-Proliferation Treaty in 1968, the nuclear-weapon States have also agreed to the adoption of treaties to eliminate other weapons of mass destruction, that is the Biological Weapons Convention in 1972 and the Chemical Weapons Convention in 1993. Moreover, they have agreed to the elimination of certain conventional weapons which are excessively injurious or have indiscriminate effects, that is certain booby traps and weapons based on non-detectable fragments, in the Inhumane Weapons Convention adopted in 1981.

Resort to Force
Mr President, broadly related to treaties in the disarmament and arms control field is international law regarding resort to force. Article 2(4) of the United Nations Charter proscribes the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations. The Court has recognised, in its Judgment in the Military and Paramilitary Activities case, that the principle of the prohibition of the use of force is a rule of customary international law and referred to suggestions that it may be a fundamental principle having the character of jus cogens.

The Charter recognises only tightly prescribed exceptions to the general rule against the threat or use of force. First, the threat or use of force is lawful if made as part of enforcement action taken by the Security Council under Chapter VII of the Charter in the event of a threat to the peace, breach of the peace or act of aggression.

Secondly, countries have a right of self defence as recognised in Article 51 of the Charter. Nothing in the Charter impairs the inherent right of individual or collective self defence in the event of an armed attack against a member "until the Security Council has taken measures necessary to maintain international peace and security". A member state exercising its right of self defence is required to immediately report such action to the Security Council. The Council's authority and responsibility to take whatever action it deems necessary to maintain or restore international peace and security is not affected by the measures taken by a state.

There is of course nothing in these exceptions which specifically authorises the use of nuclear weapons. Moreover, the right of self defence cannot be exercised in isolation from other applicable rules and principles of international law. In particular, the humanitarian laws of armed conflict apply to measures taken in self defence. Such measures must, for example, be necessary and proportionate to the danger faced, as recognised by the Court in its Judgment in the Military and Paramilitary Activities case.

Mr President, I would like at this point to return to the Attorney-General to complete the New Zealand submissions.