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[NGO Working Paper] TPNW 2MSP - Assisting victims under the jurisdiction of non-States Parties: A moral and legal duty imposed by the letter and spirit of Articles 6 and 7 TPNW

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New York, 27 November–1 December 2023

 

Assisting victims under the jurisdiction of non-States Parties: A moral and legal duty imposed by the letter and spirit of Articles 6 and 7 TPNW: the example of Korean survivors of Hiroshima and Nagasaki

 

Working paper submitted by IALANA and SPARK

          

I.   Introduction

1. Within the activities of the informal working group on victims assistance, the question of the beneficiaries of victim assistance (Article 6 TPNW), including of the potentially established international trust fund, has been raised.[1] International Asssociation of Lawyers Against Nuclear Arms (IALANA) and Solidarity for Peace and Reunification of Korea (SPARK) are of the opinion that the beneficiaries shall not be limited to victims under the jurisdiction of one of the States Parties to the TPNW, but that victims in States not having adhered yet to the TPNW shall also be entitled to such assistance, and this for the legal as well as moral and fairness reasons that will be exposed below in Part II.

2. How important it might turn out in practice to allow victims from non-States Parties to benefit from Articles 6 and 7 TPNW demonstrates the example of Koreans having been affected by the bombings of Hiroshima and Nagasaki of August 1945. The Korean survivors can actually be considered having been victimized three times, as will be explained below in Part III.

       

 

II. A fair interpretation of Articles 6 and 7 of the TPNW in light of the humanitarian mission of the TPNW and international law more broadly

 

A.   The wording of the TPNW

3.     First of all, a broad interpretation of the circle of beneficiaries from the assistance mechanism derives from the text of the TPNW.[2] According to its Article 7 § 4, “each State Party in a position to do so shall provide assistance for the victims of the use or testing of nuclear weapons or other nuclear explosive device.” The wording of this paragraph does not exclude victims of States not having ratified the treaty. It thus goes further than paragraph 3 of Article 7 TPNW, that provides for a more general assistance clause, not related to victims, and that builds on a more traditional, mutual relationship between two States Parties to the treaty.[3] In addition, Action 29 of the Vienna Action Plan[4] confirms a broad interpretation of the relevant TPNW clauses, by referring to the establishment of “an international trust fund for States that have been affected by the use or testing of nuclear weapons”.[5]

4.     Second, the preamble (§ 6) of the TPNW refers to the “unacceptable suffering of and harm caused to the victims of the use of nuclear weapons (hibakusha), as well as of those affected by the testing of nuclear weapons.” This wording specifically singles out the victims of the use of nuclear weapons, thus those having endured the horrors of the nuclear bombings of Hiroshima and Nagasaki in August 1945. It would be cynical to exclude the victims of the horrors occurred in these two cities only based on the fact that the Japanese government has not ratified the treaty. Moreover, as will be shown more in detail, in the bombings of Hiroshima and Nagasaki, not only Japanese citizens have been killed and injured, but tens of thousands of Korean people too. We argue that the fact alone that their government has not yet ratified the TPNW neither shall not exclude them from the benefits of Articles 6 and 7 TPNW.

        

B.   The principle of effectiveness (the “effet utile” of the TPNW)

5.     Third, a strict criterion on whether a State has or has not ratified the treaty would not satisfy the deeply humanitarian nature and mission of the treaty and, moreover, would not be effective. In fact, nuclear weapons have so far been used twice in Japan in August 1945 and have been tested in Algeria, Australia, China, French Polynesia, India, Kazakhstan, Kiribati, the Marshall Islands, DPRK, Pakistan, Russia, Turkmenistan, Ukraine, the USA, and Uzbekistan. From this list, provided by the Organisation for the Comprehensive Nuclear-Test-Ban-Treaty Organisation (CTBTO), only Kazakhstan and Kiribati have so far adhered to the treaty, and Algeria has only signed the treaty. From our point of view, limiting victim assistance to these two (or three)[6] States would not be compatible with the principle of effectiveness or the effet utile of the TPNW. This principle is an emanation of an interpretation according to the “object and purpose” of a treaty within the meanig of Article 31 § 1 of the 1969 Vienna Convention on the Law of Treaties (VCLT), which requires that the relevant treaty clauses are interpreted to avoid either rendering them superfluous or depriving them of significance for the relationship between the parties.[7]

        

C.   An interpretation in light of international law more broadly

6.     Fourth, the inclusion of victims of non-States Parties into the benefits of Articles 6 and 7 TPNW is backed up and paralleled by international law more broadly.[8] As an example, General Comment No. 36 of the Human Rights Committee on the Right to Life imposes on the States Parties to the 1966 International Covenant on Civil and Political Rigths (ICCPR) the duty to “afford adequate reparation to victims whose right to life has been or is being adversely affected by the testing or use of weapons of mass destruction, in accordance with the principles of international responsibility.”[9] In other words, Korean victims could, based on the principles of State responsibility, file a claim against the U.S. and, insofar as the deportation to Japan and the forced labour imposed on them were illegal under international law, jointly against Japan. It is relevant to stress that the ICCPR has been ratified almost universally, including by Korea, Japan and the U.S.

        

D.   Intermediate conclusion

7.     In sum, we believe that it is the moral and legal duty of States Parties to assist victims of use and testing of nuclear weapons, irrespectively of whether the States under their jurisdiction they live, has or has not ratified the TPNW.

 

 

III.   The example of Korean survivals of nuclear bombing of Hiroshima and Nagasaki: background, current situation and demands

        

A.   Background

8.     The number of Koreans exposed to radiation from the US atomic bombing of Hiroshima and Nagasaki in 1945 is estimated to be approximately 70,000 to 100,000, and the number of deaths is approximately 50,000. The majority of the Koreans affected had been coercively conscripted as laborers by the colonial Japanese government. Approximately 43,000 survivors returned to their hometowns in Korea after liberation and died from the aftereffects of atomic bombing.

9.     Koreans were threefold victims of the atomic bombing: Koreans were an oppressed ethnic group under Japan imperialism; they suffered in one of the most horrific events of the 20th century, the US atomic bombing; and the Korean government neglected and left them unattended. Accordingly, the demands of the Koreans can be summed up as acknowledgment of the victims, investigation into the victims, and for the Korean, US, and Japanese governments to accept responsibility, apologize, and provide compensation.

         

B.   Current Situation and Demands

10.   Currently, there are only 1,992 exposed first-generation Koreans who are registered with the Korean A-bomb Victims Association. There are 3,050 second-generation exposed Koreans who are registered with the Korean A-bomb Victims Descendants Associations. Since a comprehensive investigation has not been conducted, there is no precise data available, but it is evident that the actual number of victims is likely higher.

11.   In 2013, Gyeongsang South Province conducted a survey[10] involving 1,125 survivors spanning the first, second, and third-generations. The results revealed that 20.2% of the respondents reported having offspring with congenital abnormalities and hereditary diseases. The 1,300 second-generation survivors are clear evidence of the lasting impact of the nuclear weapons being passed down through generations. According to a survey[11], Korean A-bomb victims responded that economic support was their most critical need. In addition to economic assistance, they had significant medical-related demands, such as regular health check-ups, specialized medical care, and the expansion of designated medical facilities. In terms of overall well-being, they called for disability allowance, health allowances, and the establishment of a welfare center.

12.   The Korean government has neglected to protect the victims of the atomic bombing. Consequently, victims and second and third-generation victims have been demanding the enactment of the Special Act on the Support for Korean Atomic Bomb Victims, a full-scale investigation into the victims and support measures, and compensation for victims excluded from the Korea-Japan Agreement for decades.

13.   In May 2016, the Korean National Assembly enacted the Special Act. However, it excluded second and third-generation survivors from receiving this support. Therefore, the Special Act needs to be amended to extend government support to these second and third-generation victims. Some of the victims’ requests have been accepted, such as the creation of a memorial park for the victims and investigations into the genetic damage caused by the atomic bomb. Since 2020, the Korean government has outsourced research projects on genetic damage. However, these are being conducted without taking the voices of the victims into account.

14.   The Korean government has never conducted a full-scale investigation into the actual conditions of the damage. As a result, records and materials related to the victims of the atomic bomb in Korea continue to be scattered or lost. Given that the average age of first-generation victims is approximately 87, there is an urgent need for additional oral testimony collection from these victims.

15.   The Japanese government ignored the Korean A-bomb victims, excluded them from the Support Act, and discriminated against them. Consequently, the struggle to redress the rights of A-bomb victims in Korea has been centered on collectively supporting individual lawsuits to overcome discrimination since 1970. As a result of these efforts, it was only in 2016 that Korean victims of the atomic bombing began to receive the same medical support as Japanese victims.

16.   The unresolved issue in the demands made towards the Japanese government is the matter of forced mobilization of Koreans during the Japanese colonial rule. The Japanese government not only neglects the need for an apology and compensation for the forced mobilization of Koreans but also denies the very fact of forced mobilization. The victims are calling for an end to the Japan’s historical distortion of its aggression and colonial rule and are demanding a sincere apology, and compensation. In this regard, lawsuits for damages caused by war criminals, such as Mitsubishi Corporation, are in progress.

17.   The U.S. government, even 78 years after the fact, still refuses to acknowledge its responsibility for atomic bombings in Hiroshima and Nagasaki and has not offered apologies or compensation to A-bomb victims. In 2017, former U.S. President Barack Obama visited Japan and laid a wreath to the innocent victims of the atomic bombing, but did not offer an apology. In his speech, he acknowledged the existence of Korean A-bomb victims for the first time, but reduced their number to 'thousands of Koreans'. Korea is the second country exposed to and suffered from radiation after Japan. The U.S., as the first country in the world to use nuclear weapons, bears a primary responsibility for hundreds of thousands of victims including Korean victims.

18.   Efforts to hold the US accountable for dropping A-bombs began in 2015 with an appeal by the Korean A-bomb victims at the 9th NPT Review Conference. Korean victims and supported NGOs are planning to hold an International People's Tribunal in New York in 2026 to hold the U.S. accountable for dropping A-bombs on Hiroshima and Nagasaki. This tribunal will provide consolation for the suffering of A-bomb victims and bring much-delayed justice. It is also expected to prevent nuclear war on the Korean Peninsula and Northeast Asia and contribute to the denuclearization of the Korean Peninsula and the realization of a nuclear-free world. Preceding the People’s tribunal, the first forum was held in South Korea in June of this year. The second forum is scheduled to take place in Hiroshima in June 2024.

        

 

IV.   Conclusions

19.   In light of the example of Korean survivors, we are pleading for an inclusive and non discriminatory interpretation of Articles 6 and 7 of the TPNW. A broad interpretation of these clauses, taking into account the needs of victims of non-States Parties to the TPNW, is not only a moral duty and compatible with the letter of the TPNW and international law more generally, but also entirely in the spirit of the humanitarian and human-centred nature and mission of the TPNW. It is our strong believe that the numerous Korean victims of the use of nuclear weapons in Hiroshima and Nagasaki of 1945 shall not be punished a fourth time due to the fact that neither the Korean nor the Japanese or the U.S. government have failed to adhere to the TPNW so far.

It will be the task of the trust fund or other mechanism to be established to elaborate principles how to distribute funds in an adequate and fair manner between victims under the jurisdiction of States Parties, on the one hand, and those under the jurisdiction of States not having ratified the TPNW yet, on the other.

 

Dr. Daniel Rietiker (IALANA)/Hayoung Bak (SPARK)/Juyeon Rhee (Nodutdol)

 

 


[1] This submission does not deal with the question of whom shall be able to contribute to such a trust fund.

[2] According to Article 31 § 1 of the 1969 Vienna Convention on the Law of Treaties (VCLT), a treaty shall interpreted in good faith and “in accordance with the ordinary meaning” of the terms of the instrument.

[3] Paragraph 3 of Article 7 reads as follows : “Each State Party in a position to do shall provide technical, material and financial assistance to States Parties affected by nuclear-weapons use or testing, to further the implementation of this Treaty.”

[4] TPNW/MSP/2022/6, 21 July 2022.

[5] Emphasis added.

[6] According to Article 18 of the 1969 Vienna Convention on the Law of Treaties (VCLT), a signatory State is “obliged to refrain from acts which would defeat the object and purpose of a treaty”. Even if is suggested here that Articles 6 and 7 TPNW are essential clauses in view of fulfilling the humanitarian mission of the treaty, it is hard to argue that a signatory State would breach Article 18 VCLT by not providing assistance to the victims under its jurisdiction, which is by definition a “positive” obligation, contrary in particular to the duties under Article 1 TPNW (Prohibitions). From our point of view, a breach of one of the duties under Article 1 would “defeat the object and purpose” of the TPNW.

[7] See, as an example, Case Concerning Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russia), Preliminary Objections, 2011 ICJ Report, § 134.

[8] Article 31 § 3 c) of the VCLT requires to take into account in the interpretation of a treaty, “any relevant rule of international law applicable in the relations between the parties.”

[9] UN Doc. N° CCPR/C/GC/36, 3 September 2019, § 66.

[10] Survey on the Status of A-Bomb Victims, Gyeongsang South Province, 2013

[11] Survey on the Status, Health, and Living Conditions of Atomic Bomb Victims, Korea Institute for Health and Social Affairs, 2018

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