The obligation to assist victims
In most cases so far, communities affected by nuclear weapons have received inadequate support. The TPNW’s obligation to provide victim assistance, articulated in Article 6(1), seeks to change this situation. The year 2022 saw unprecedented international attention to the rights of people affected by nuclear weapons and the need for victim assistance. States parties took steps to initiate implementation of the TPNW’s positive obligations, which in turn have already influenced priorities and discussions in forums beyond the Treaty itself.
The extensive suffering from the use of nuclear weapons in Hiroshima and Nagasaki is well known. It has also been documented that more than 2,000 nuclear test explosions were carried out at locations within what are today 15 states, causing countless deaths, injuries, long-term illnesses, psychological trauma, socio-economic exclusion, and displacement. Exacerbating the situation, illnesses can manifest themselves years later, and the adverse impacts of radiation, which often alter DNA, sometimes span across generations. Nonetheless, a 2021 review of the current state of knowledge about past nuclear-weapons activities and their impacts today noted major gaps in research on the consequences of nuclear-weapons programmes.1
Victim assistance, environmental remediation, and international cooperation and assistance are often referred to collectively as the ‘positive obligations’ of the TPNW. While implementation of these obligations will require different measures, especially over time, grouping them in some cases makes sense because they deal with the same problem—addressing the harm caused by the use and testing of nuclear weapons—and a number of the initial implementation steps are the same. As a result, many of the developments discussed in this section are also relevant to the following sections on environmental remediation and international cooperation and assistance.
1MSP
The most notable progress in advancing the implementation of victim assistance occurred as a result of the First Meeting of States Parties to the TPNW (1MSP), held in Vienna, Austria, on 21–23 June 2022, which adopted two outcome documents. The Vienna Declaration says that the ‘humanitarian spirit of the Treaty is reflected in its positive obligations, aimed at redressing the harm caused by nuclear weapons use and testing.’ It additionally articulates the states parties’ pledge not just to deliver victim assistance but also to work with affected communities to do so.2The Vienna Action Plan dedicates a section to victim assistance, environmental remediation, and international cooperation and assistance. The section’s chapeau notes that the positive obligations are ‘central to the humanitarian goals of the Treaty’ and aim to address harm both from past use and testing and from ongoing contamination.3
Many of the actions outline steps that are essential to starting the process of assisting victims. For example, Action 30 calls on states parties to assess the effects of nuclear weapons use and testing in areas under their jurisdiction or control, including the needs of victims, as well as their ability to address them. The action commits those states to share their initial assessments of existing knowledge with the Second Meeting of States Parties to the TPNW (2MSP). Action 31 further commits affected states parties to develop national plans for implementation, including budgets and time frames, and to report on progress in this area by the 2MSP. Under other actions, states parties resolved to appoint national focal points for Articles 6 and 7 of the Treaty within three months and to adopt or adapt national laws and policies. Such measures are designed to create a framework for implementing victim assistance as well as environmental remediation and international cooperation and assistance.
The Vienna Action Plan also establishes fundamental principles that states parties should follow throughout the implementation process. Reflecting the principle of inclusivity, Action 19 emphasises the importance of engaging with a wide range of stakeholders, including international organisations, civil society, affected communities, Indigenous Peoples, and youth. It also says that states parties ‘[i]n particular’ … will closely consult with, actively involve, and disseminate information to affected communities at all stages of the victim assistance and environmental remediation process.’
The Action Plan in addition highlights the importance of transparency. It commits states parties to ‘develop guidelines for voluntary reporting’ and, before the 2MSP, to consider developing a ‘voluntary and non-burdensome format for reporting’, drawing on precedent from previous disarmament treaties. Such reports could gather information about the effects of nuclear weapons, progress in implementation, and needs for external support. States parties also resolved to exchange information, not only with the stakeholders noted above, but also with states not party in order to promote victim assistance and environmental remediation.
Other enumerated principles, which are particularly important in the victim assistance context, are accessibility and non-discrimination, the latter of which is an explicit requirement of the TPNW. The Action Plan specifies that victim assistance, as set forth in Article 6(1) of the TPNW, must be age- and gender sensitive, and commits states to developing guidelines for providing such assistance. Finally, recognising the evolving nature of situations and information, the Action Plan calls for states parties regularly to review the implementation framework and to draw on lessons from other treaty regimes.
States’ interventions at the 1MSP showed that the positive obligations of the TPNW have strong political backing. States parties from around the world emphasised the humanitarian nature of victim assistance and the other positive obligations, and their centrality to the TPNW’s objectives. The Cook Islands said Articles 6 and 7 bring a human face and heart to the Treaty.4 New Zealand declared: ‘More than any other aspect of the Treaty, it is work on this issue that best captures the humanitarian drivers at the heart of our mission.’5 Observer states, such as Norway and Germany, showed interest in engaging on the issue without linking themselves to TPNW obligations.
Preparations for the 2MSP
International work on victim assistance, environmental remediation, and cooperation and assistance has continued through an informal intersessional working group, established by the 1MSP and co-chaired by Kazakhstan and Kiribati. The co-chairs plan to take up three areas: a proposed trust fund, voluntary reporting, and national implementation measures. They have begun a series of consultations with states parties, international organisations, civil society groups, and affected communities, with the aim of producing recommendations for the 2MSP.
Other international disarmament forums
Driven by the progress at the 1MSP, states also raised the topics of victim assistance, environmental remediation, and international cooperation and assistance at the Tenth Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) in August 2022 and during the UN General Assembly’s First Committee. These discussions demonstrated that the TPNW’s positive obligations could exert a normative and practical influence on how states that are currently not party to the Treaty approach issues of addressing nuclear harm. They could also, in turn, advance implementation of the TPNW’s positive obligations by increasing states parties’ engagement with and commitment to them.
During the disarmament discussions of the NPT Review Conference, several states highlighted the TPNW’s obligation on victim assistance explicitly or the positive obligations in general. The states parties and signatories to the TPNW also delivered a joint statement that raised the need for victim assistance and environmental remediation.6 Germany mentioned victim assistance in the context of noting its participation in the 1MSP as an observer, and stated a desire to ‘improve dialogue and cooperate in addressing the humanitarian consequences of nuclear weapons – in the field of victim assistance or the remediation of areas contaminated by nuclear testing.’7 Some states, including Austria, Kazakhstan, and Kiribati, and the Pacific Small Island Developing States, advocated for a reference to victim assistance and environmental remediation to be included in the conference’s outcome document in the context of the humanitarian impact of nuclear weapons.
Though unadopted, the draft final document of the conference welcomed ‘the increased attention in the last review cycle on assistance to the people and communities affected by nuclear weapons use and testing and environmental remediation following nuclear use and testing and calls on States parties to engage with such efforts to address nuclear harm’, in a paragraph that no state ultimately sought to block.20 While, previously, there has been some attention to addressing harm from nuclear legacies under the NPT’s discussion of ‘peaceful uses’ of nuclear energy, victim assistance and environmental remediation have not seen significant attention nor been considered for mention in the NPT’s outcome document under its disarmament pillar before.
At the UN General Assembly First Committee, states engaged in a similar exchange of views. Although unsuccessful, Austria, the Holy See, Kazakhstan, and Kiribati advocated for a reference to victim assistance and environmental remediation to be included in the First Committee Resolution L.61 on ‘Steps to building a common roadmap towards a world without nuclear weapons.’8.
National developments
Ultimately, the success of victim assistance under the TPNW will depend on whether the words of the Treaty are translated into actions on the ground that make a demonstrable positive difference in affected people’s lives. States parties to the TPNW that are affected by nuclear-weapons testing did not report any significant developments in their existing national victim assistance programmes over the past year, although at least two states not party, the UK and the US, updated policies to increase recognition of victims of nuclear testing. For an overview of victim assistance programmes in states parties Fiji, Kazakhstan, Kiribati, and New Zealand, as well as signatory Algeria and states not party France, Japan, United States, and United Kingdom, see the 2021 edition of the Nuclear Weapons Ban Monitor.9
Since nuclear-armed states have not yet adhered to the TPNW, they are not legally bound by the Treaty’s obligations for victim assistance and environmental remediation. Nevertheless, these states have moral duties, as well as obligations under national and international law, including under human rights law and in some cases through bilateral agreements, towards the foreign and domestic victims of their tests. For the most part, they have not fulfilled these obligations, but in 2022 there were some encouraging developments in efforts to assist victims outside of the TPNW legal framework.
Marshall Islands/United States
As described in more detail in the section on International Cooperation and Assistance, in October 2022, the UN Human Rights Council adopted a resolution on the nuclear legacy in the Marshall Islands, which acknowledged ‘that the people of the Marshall Islands living with the impacts of exposure to nuclear waste, radiation and contamination should continue to be assisted to advance the full realization and enjoyment of their human rights’, especially those ‘suffering from adverse health and other effects’.10 The Marshall Islands told the Council that it needed assistance: ‘We have suffered the cancer of the nuclear legacy for far too long and we need to find a way forward, for a better future for our people.’11 In its statement, the US ‘specifically acknowledge[d] the hardships the people of the Marshall Islands experienced’, although it disagreed with some of the resolution’s language.12
At the time of writing, negotiations were also underway on a renewal of the Marshall Islands’ Compact of Free Association with the United States, which is set to expire at the end of 2023. Press reports indicated that ‘U.S. negotiators have agreed to drastically increase funding’ including for ‘upgraded health care’ for ‘people affected by U.S. nuclear testing in the islands’. The agreement reportedly also includes resources for ‘a new museum and a research facility dedicated to the legacy of U.S. nuclear testing in the region, including funding to better access documentation and files that have yet to be declassified’. Any finalised agreement requires ratification by the US Congress.13
In June 2022, US President Joe Biden signed into law the RECA Extension Act of 2022, which extends for an additional two years a trust fund set up by the 1990 and 2000 Radiation Exposure Compensation Acts (RECA), as well as the deadline for filing claims. RECA awards ‘lump-sum’ compensation for ‘claims relating to atmospheric nuclear testing and uranium industry employment’. The scheme ‘does not require claimants to establish causation. Rather, claimants qualify for compensation by establishing the diagnosis of a listed compensable disease after working or residing in a designated location for a specific period of time.’14 Despite the temporal extension, the renewed RECA continues to exclude those who lived downwind of the Trinity test site in New Mexico, as well as many civilian populations in the Pacific who suffered from the humanitarian impact of US Pacific nuclear testing. At the time of writing, US Congress was negotiating potential expansions of RECA’s geographic eligibility requirements.15
United Kingdom
While the US programmes focused on providing compensation, health care, and research, the UK took a step in the assistance of affected individuals through recognising their experiences. In November 2022, the UK government held a recognition ceremony to announce a new medal to ‘honour the significant contribution of veterans and civilian staff from across the Commonwealth, who participated in Britain’s nuclear testing programme’. The medal will be available to all military and civilian personnel of the test programmes, including scientists and local employees, as well as those from Australia, New Zealand, Fiji, and Kiribati. It can also be awarded posthumously. The British government estimates 22,000 people will qualify for the medal. Efforts to award the medal will be accompanied with £450,000 in programming to ‘commemorate and build further understanding of the experiences of veterans who were deployed to Australia and the Pacific’.16
Unlike the TPNW, UK recognition of its test personnel is not rooted in a rejection of nuclear weapons, but rather ‘to pay tribute to nuclear heroes, who have kept the country safe’.17 Nevertheless, advocacy and diplomacy related to the TPNW’s victim assistance obligations may have had an effect on UK policymaking. UK politicians asked several Parliamentary Questions regarding the TPNW and the legacies of UK Pacific nuclear tests. In response, James Cleverly, the then Minister for Europe, responded that the government ‘appreciates the importance of the biodiversity and cultural value’ of Kiribati’s islands, ‘including those affected by nuclear testing in the pre-independence period’. He expressed hope that increased UK aid ‘for environmental and climate related initiatives in the Pacific region will be able to contribute to … the needs of Kiribati communities in the islands’.18
- To address the ongoing suffering inflicted by the use and testing of nuclear weapons, Article 6(1) of the TPNW obligates each state party to provide ‘adequate’ assistance to affected individuals within its jurisdiction. It is not required that the harm be caused by the state under whose jurisdiction they fall or that it occurred within that territory.
- Assistance includes, but is not limited to, medical care, rehabilitation, and psychological support, as well as support for social and economic inclusion.
- Assistance under Article 6(1) must be provided in accordance with applicable international human rights and humanitarian law. The paragraph requires that assistance in all cases must be age- and gender-sensitive and provided to all on the basis of need ‘without discrimination’. The duty of non-discrimination ensures that states parties do not adversely distinguish among recipients based on the basis of sex, race, religion, sexual orientation, disability, political opinion, or other status identified in international human rights law. (See: Art. 2(1), International Covenant on Civil and Political Rights, and Art. 5(2), Convention on the Rights of Persons with Disabilities, as well as disarmament law precedent in Art. 5(2)(e), Convention on Cluster Munitions.)
- Because addressing the human impacts of nuclear weapons is a complex and long-term humanitarian task, the TPNW facilitates the process by creating a framework of shared responsibility for victim assistance (as well as environmental remediation, discussed in the next section). The framework enables those who are willing to start addressing these issues to act together now. Affected states parties bear the primary responsibility for implementation as this protects their sovereignty and follows the precedent of international human rights law and humanitarian disarmament law. But other states parties in a position to do so are required to provide international cooperation and assistance to help affected states parties meet their victim assistance (and environmental remediation) obligations.
- To make victim assistance more manageable, Article 6(1) can also be understood to allow affected states parties to realise some of their obligations, particularly those related to economic, social, and cultural rights, progressively. International human rights law requires a state to take steps to achieve those rights ‘to the maximum of its available resources’, while recognising that full realisation may be a gradual process. (See: Art. 2(1), International Covenant on Economic, Social and Cultural Rights.)
- Article 6(3) makes clear that the TPNW’s victim assistance obligations do not preclude affected states parties or individuals from seeking redress or assistance through other means, such as judicial measures or bilateral treaties with states not party.