Nuclear Denizens of the Deep: Can they be prohibited?

Comments on the New Zealand Nuclear Free Zone Extension Bill

Professor Elisabeth Mann Borgese* and Alyn Ware*

The unfortunate death of anti-nuclear campaigner John Urlich while giving testimony to the Select Committee on Foreign Affairs, Defence and Trade on April 5, drew attention to a Bill, currently under consideration, to extend New Zealand’s nuclear free legislation to prohibit the transit of nuclear armed or propelled warships and transport of nuclear waste though the 200 mile Exclusive Economic Zone (EEZ). If adopted, the Bill would mount a serious challenge to the continued deployment of nuclear weapons throughout the world’s oceans.

Two decades ago groups of intrepid Kiwis took to the waters of New Zealand harbours on surfboards and in kayaks, yachts and small boats to confront visiting nuclear warships. To the surprise and acclaim of the watching world, the anti-nuclear crusaders won this David and Goliath battle, New Zealand became a nuclear weapon free zone, and the nuclear navies retreated.

However, the retreat was more symbolic than actual. Nuclear submarines continue to rove freely through the world’s oceans, including the Pacific, collectively armed with nearly 5000 nuclear weapons, each with an explosive force 10 – 100 times that of the bombs that destroyed Hiroshima and Nagasaki. Most of these weapons are primed and ready to be fired within minutes.

Should a conflict between nuclear powers erupt, Pacific countries and their waters could be targeted by a nuclear state if one of their enemy’s nuclear submarines is in the vicinity. The UK Crown lawyer in a recent Scottish High Court case considering the legality of the UK's Trident nuclear-armed submarines, cited a scenario where-by New Zealand, for example, could be threatened with attack by Chinese nuclear weapons in such a conflict.

There is now an additional threat to New Zealand and the Pacific arising from the transit of ships between Japan and Europe carrying nuclear waste to be reprocessed, and nuclear fuel following reprocessing. The waste and fuel are highly radioactive, and the fuel – plutonium – is highly suitable for nuclear bombs and thus poses a risk of diversion to weapons purposes.Image

New Zealand has voiced opposition to the passage of nuclear warships and waste through its territorial waters and EEZ, but has not prohibited this in the belief that such passage must be allowed under the United Nations Convention on the Law of the Sea (UNCLOS), which provides for innocent passage through territorial waters and freedom of navigation in EEZs.

However, nuclear weapons and waste are anything but innocent. UNCLOS stipulates that the oceans “shall be reserved for peaceful purposes” and that any threat or use of force, inconsistent with the United Nations Charter, is prohibited. In 1982, when UNCLOS was opened for signature, it was not certain how this applied to the deployment of nuclear weapons. However, since then, the International Court of Justice, in its historic advisory opinion of 1996, determined that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict.” Nuclear weapons deployed on submarines are in a state of readiness to use and are thus a threat of use, according to the definition given by the ICJ, and illegal.

With respect to the transit of nuclear materials, UNCLOS provides some powers of protection to coastal states. More importantly, there have also been advances in international environmental law since UNCLOS was adopted, particularly in the strengthening of the precautionary principle, which holds that, when activities pose a significant risk to the environment and proponents of the activities cannot demonstrate an adequate level of protection from such risks, the activities should not proceed.

There are thus legal grounds for enacting the Bill. New Zealand is not alone in attempting to prohibit the passage of nuclear waste or the deployment of nuclear weapons in its EEZ. Chile asserted its rights to prevent nuclear waste passage through its EEZ by sending a warship to confront the British Nuclear Fuels ship the Pacific Swan in 1998. The South East Asian Nuclear Weapon Free Zone includes a prohibition of the threat or use of nuclear weapons by any country within their EEZs.

Actions like these by coastal states to protect their interests will inevitably be resisted by the maritime nuclear powers. However, New Zealand weathered the storm over its original nuclear weapon free legislation and emerged with a strong and respected clean green image that has helped in trade and tourism. A strong stand against ocean deployment of nuclear weapons and nuclear waste transit would only reinforce that image.

In addition, by enacting this Bill, New Zealand would become a world leader in a direction which almost certainly will be confirmed by the further evolution of the Law of the Sea. The recognition of coastal states’ rights has expanded over the past half century, including their right to an EEZ, which is a relatively new concept, and their rights within their EEZs.

Coastal state action is becoming even more important in an international shipping order which has been radically transformed by globalisation and a huge increase in number of ships sailing under “flags of convenience.” This is challenging the UNCLOS requirement for a “genuine link” between ships and their flag state, and is seriously eroding the concept and capabilities of “flag state control” over ships. This vacuum will undoubtedly need to be filled by a strengthening of coastal state and port state control. This justifies protective actions, like those proposed under the Bill, and indicates that such claims, over time, will likely become the norm.

The government has expressed concern about New Zealand’s inability to monitor and enforce a 200-mile nuclear free zone. While this may be true, the political and legal effect of an action does not rely primarily on the capacity to enforce it. Judge Christopher Weeramantry, former Vice-President of the International Court of Justice (ICJ) noted on a recent visit to New Zealand that 95% of ICJ decisions are respected and implemented even though the ICJ has no enforcement powers. New Zealand itself has taken cases to the ICJ against French atmospheric testing in 1974 and underground testing in 1995, both of which were unenforceable, but both of which achieved the desired result of an end to the type of nuclear testing being challenged.

In the international arena, laws are often adopted before they can be fully enforced. The Hague Conventions, Geneva Conventions, Genocide Convention and Convention on Torture are examples. Mechanisms for enforcing these, including an International Criminal Court and the Protocol on Torture, are still being developed, many years after the initial conventions were adopted.

New Zealand’s actions to prohibit nuclear weapons and high level waste from its EEZ would throw a spotlight on continuing nuclear dangers, and invigorate international action to eliminate the nuclear denizens of the deep and to protect the oceans as our common global heritage.

*Elisabeth Mann Borgese Professor, Dalhousie University Founder & Hon.Chair International Ocean Institute

*Alyn Ware, Former Executive Director

Laywers committee on Nuclear Policy