NZ Nuclear Free Zone Bill voted out

30 May 2002

On 29 May 2002, the NZ Nuclear Free Zone Extension Bill was voted out at its second reading in parliament. Only the Green Party MPs voted in favour of the Bill.

Below are the speeches made by Jeanette Fitzsimmons and Keith Locke.

Jeanette Fitzsimons speaking at the Second Reading of the NZ Nuclear Free Zone Extension Bill.

I move, That the New Zealand Nuclear Free Zone Extension Bill be now read a second time. The passing of the New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act in 1987 was a milestone in New Zealand's development as a nation that can create its own destiny, think for itself, and support the principles of peace and safety for all peoples. It prevents the stationing of nuclear weapons on our land or territorial sea out to 12 miles, the entry of nuclear-powered ships into our harbours, and the building of nuclear reactors in New Zealand.

It is actually very modest legislation, although New Zealanders have been enormously proud of it. It has made waves internationally and marked New Zealand out as a country that stands up for what is right in that respect. But it is modest. It does not prevent nuclear weapons and reactors from cruising along our coast, as long as they are just passing through, and it does not prevent ships carrying other nuclear materials.

There have been two major developments since 1987 that justify updating the Act. Firstly, the International Court of Justice, prompted especially by New Zealand, has declared the deployment of nuclear weapons to be illegal. That justifies taking an even stronger stance on where they may be carried. The numbers of those weapons, and the States holding them, have increased, despite the end of the cold war. Uncertainties around the intentions of nuclear States and the location and safety of weapons have made disarmament an even more urgent priority now than it was in the 1980s.

Secondly, nuclear fuel reprocessing has gone global, with shipments of highly hazardous plutonium mixed-oxide fuel and high-level waste passing regularly between Japan and Europe, sometimes through the Tasman Sea. This bill was drafted in 1997 as the Pacific Teal was passing through the Pacific--in fact, through the Tasman Sea--with a cargo of high-level nuclear waste. Another ship took this route last year, and, as we speak, two empty ships are on their way from Europe to Japan to collect plutonium mixed-oxide fuel that has been rejected by Japan because British Nuclear Fuels Ltd, which produced it, falsified the safety data. It is a totally unnecessary shipment, in both directions, of fuel that should never have left home and where the company that produced it lied about the safety data.

There is a very close connection between the nuclear fuel cycle and weapons. Reprocessing creates plutonium that is usable in weapons. There is a lot of it stored in Japan now, but despite the statements that this fuel reprocessing is absolutely essential to the nuclear power industry, none of the reprocessed fuel produced by this France-Japan circuit has ever been used in a power station. The Act does not deal with the products of fuel reprocessing, because the trade did not exist in 1987, and we need to deal with it now.

My objectives in drafting this bill were not just to try to protect New Zealand and the sea immediately surrounding it, because in the end there is no security from nuclear materials unless there is security for everyone. It was, rather, to take another tiny step towards a nuclear-free South Pacific and, eventually, a nuclear-free world. I hoped that the discussion around this bill would support calls already being made for continued evolution of the United Nations Convention on the Law of the Sea to clarify that innocent passage means only cargoes that are genuinely innocent. So I was disappointed, not only that the Government is voting this bill down today, but that it was completely uninterested in any kind of changes to the bill that might have seen it used to make some kind of advance on the 1987 Act, or to require more information and safety from the ships coming through.

The Government has raised three main arguments against proceeding with this bill. The first is that nuclear materials are not generally transited through our exclusive economic zone now, and the Government has an assurance from the nuclear States that this will continue. The first response to that argument is to ask why, if that is occurring de facto anyway, it should not be codified in law. As the Peace Foundation said to the Foreign Affairs, Defence and Trade Committee, the fact that New Zealanders felt justified in requesting nuclear States not to transit through the exclusive economic zone, and the fact that those States have agreed to this, provides legitimacy to the claim that such protection of an exclusive economic zone is becoming part of the customary right of coastal States. Codifying this protection in national legislation would both affirm and strengthen this right.

The reason this argument was not accepted, of course, is that the Government does not want it to become a precedent for other States. There is ample room for a ship to pass through the Tasman Sea without infringing the exclusive economic zone of either Australia or New Zealand. But that is not true of other parts of the South Pacific, where island States are so close together that there is no passage, without entering the zone of some country. New Zealand is therefore accepting an assurance that our own immediate safety will be protected, and is refusing to take a stand that will help other States to protect themselves from the nuclear threat. If our objective is a nuclear-free South Pacific, this is not the way to achieve it.

Second, the Government argues that this bill is illegal under the United Nations Convention on the Law of the Sea, which gives States the right of innocent passage through the waters of other countries. This is a provision of the convention, but it is not absolute. The convention is actually about striking a balance between the rights of coastal States and those of maritime nations. Article 23 makes the right of innocent passage subject to certain precautionary measures. It provides that foreign nuclear-powered ships and ships carrying nuclear or other inherently dangerous or noxious substances shall, when exercising their right of innocent passage through the territorial sea, carry documents and observe special precautionary measures established for such ships . . .

New Zealand has been campaigning for strong international regulations for such transits, and these ought to confer--liability in the case of an accident; full documentation of cargo and route; prior notification, and, preferably, informed consent; a full environmental impact assessment of possible accidents, and a contingency plan for emergencies. But no such precautionary measures have been agreed. So New Zealand is entitled, in my view, in the absence of such measures, to keep these ships out. The Law of the Sea convention also, in articles 21 and 56, gives coastal States jurisdiction, with regard to protection and preservation of the marine environment.

The third issue, on which the Government opposes the bill, is that it believes it is unenforceable. I was particularly touched that Judge Weeramantry from the International Court of Justice saw fit to come and make a presentation to the select committee. In addition to pointing out that--if a nuclear exchange broke out while a ship carrying a nuclear weapon was in our economic zone--we would become a target, he also had this to say about enforcement: It is not the availability of enforcement provisions that gives validity to a principle of international law. International law is respected through the weight of its legal authority. The ICJ itself has no enforcement powers, yet over 90 percent of its decisions are implemented.

We learnt from Mr Colin Keating, a New Zealand negotiator, in 1982, of the Law of the Sea convention, why our officials are desperate not to open the question of how the convention may evolve to clarify the rights of coastal States. He told us that in 1982, New Zealand fought hard for a maximum economic zone and maximum access to the resources of the continental shelf - such as fish and minerals. The issue of rights of coastal States to protect their environment from pollution and dangerous cargo, was on the table at that stage. New Zealand gave that away, in return for fish and minerals. That is what he told us; that was a deal done in 1982. The Minister said yesterday that those rights had not been traded away, because we had never had those rights. What we learnt from Mr Keating was that those issues were on the table for discussion but New Zealand chose not to pursue them, in order to gain maximum economic advantage in the economic zone, and to the continental shelf. So if a missile hits us, while a United States submarine carrying nuclear weapons is in our zone, we can say: So long, and thanks for all the fish! . The Green Party tried a number of amendments to the bill.

Jeanette Fitzsimons (Co-Leader, Green Party),
29 May 2002

Keith Locke speaking at the Second Reading of the NZ Nuclear Free Zone Extension Bill.

The Greens have been attacked for bringing this bill forward because it is supposedly against international law. In fact, we had a whole pile of submissions before the Foreign Affairs, Defence and Trade Committee interpreting this law quite differently from what the Government speakers and National speakers have said. Another point that was made in the select committee was that the law, in fact, changes over time in the light of other laws that are passed as we go down the track internationally and in the experience of how countries actually apply the law. Yes, the United Nations Convention on the Law of the Sea does provide for freedom of navigation, but there are various qualifications on that in that convention, and all kinds of lawyers point to that.

The International Association of Lawyers Against Nuclear Arms presented a submission giving the same interpretation of the law regarding the grey areas of the law in the United Nations Convention on the Law of the Sea that the Green Party is giving. Judge Weeramantry, a World Court judge, gave the same interpretation that we have. The Greenpeace lawyer gave the same interpretation. This is a debate between lawyers. Of course, as was the case in the 1980s, when the Labour Government passed the nuclear-free legislation, there were all kinds of conservative lawyers who said they were wrong, and there would be all sorts of negative consequences for proceeding.

When an anti-nuclear case was taken to the World Court in the 1990s and it started out in Christchurch with Harold Evans, a magistrate there at the time, some of those lawyers who are advising the Government today said that it was impossible to come out with a World Court decision that use or threat of nuclear weapons is illegal. There are debates between lawyers based on the vested interests they represent, and based often on the interests of the nuclear states. Of course, nuclear states lawyers will argue a particular interpretation of the Law of the Sea. That is unquestionable.

But if one has a look in the Law of the Sea there are all kinds of qualifying provisions. For instance on the question of nuclear wastes travelling through territorial waters there is an environmental provision, article 21, that talks about the need to protect waters from pollution. In the exclusive economic zone section of the United Nations Convention on the Law of the Sea there are three clauses 56, 194, and 211, that talk about controlling pollution, or protecting or preserving the marine environment, or protecting eco-systems that gives States the right to qualify the freedom of navigation for those environmental purposes. Lawyers submitting to the select committee said that that could be done.

The other issue is how interpretations of the law change over time. There were submissions on how the International Atomic Energy Agency, the International Maritime Organisation had systems qualifying the freedom of navigation and how the European Community had mandatory reporting systems for dangerous goods practice. The European Economic Community, and all those bodies are actually imposing restraints on freedom of navigation. That is the reality. That is what has happened since the 1982 United Nations Convention on the Law of the Sea was passed. We should take that on board, and try to interpret that law in the most positive way for our nuclear-free nation in the light of those matters.

On the question of nuclear power and nuclear weapons, covered in the Green bill relating to territorial waters, article 19 states that the passage has to be definitely innocent and must be for peaceful purposes . That is, one has to talk about what the question of innocent passage actually means. It is to do with transit through the territorial waters, not hanging around the territorial waters. The fact of the matter is that any nuclear warship or nuclear-armed warship that passes through our territorial waters, particularly given our geographical location, would not be doing so innocently. It would not be doing so for any purpose that is just. Article 19 of UNCLOS states that the passage is not innocent if it is prejudicial to peace, good order, and security of the coastal State. That is stated in the law. That article further refers to prohibiting passage for activities in this regard not having a direct bearing on passage, or not conforming with international law, or involved in practising with a weapon. All of those are constraints that apply directly to nuclear-powered ships, which in reality are nuclear-armed ships in the world today. That is where one has to bring in the 1995 International Court of Justice decision that the use or threat of use of nuclear weapons is illegal, because that decision came after the 1982 United Nations Convention on the Law of the Sea, and one has to interpret those clauses I have referred to in that convention in that context. Judge Weeramantry did exactly that.

Matt Robson is wrong when he says the World Court did not outlaw the deployment of nuclear weapons. He disagreed with a bill that if a ship was passing through New Zealand's waters with nuclear weapons deployed on board or in a submarine under the sea, one could apply the World Court decision to say that ship should be excluded. Matt Robson said that that then would apply to deployment anywhere, including in the home State of the nuclear armed ship, such as the United States, Britain, or wherever. However Judge Weeramantry said that the World Court decision says that the only exception to the use of nuclear weapons being illegal, is when the State is under exceptional threat, which can only be when it is under threat of attack in its home territory. It certainly does not apply to nuclear ships passing through New Zealand's waters today. New Zealand is not a nuclear State, obviously, so the Court s exception to outlawing nuclear weapons deployment cannot cover the defence of New Zealand. Obviously, it is a threat to New Zealand for nuclear-armed ships to pass through our waters because in the case of a nuclear confrontation we become a target because of the presence of those nuclear ships. So we can apply the peaceful purposes provisions in the United Nations Convention on the Law of the Sea.

When one gets into the United Nations Convention on the Law of the Sea, going now beyond the territorial waters to the exclusive economic zone, clause 88 talks about the need for the passage to be for ``peaceful purposes''. The same arguments I have used to talk about the territorial waters apply there. There is a grey area in that United Nations Convention on the Law of the Sea that can, in the light of events since and that World Court decision, be interpreted in our favour. That is what we have done historically, when we took a case to the World Court against the French tests in 1974, when we passed our nuclear-free legislation in 1987, and when we moved to push through with that New Zealand initiative leading to the World Court decision in 1995. Contrary to what Matt Robson talked about, about the bill hindering, we can use our efforts for a nuclear-free Southern Hemisphere, it can be a stepping stone. I do not believe all the scare stories about retaliation from other countries.

When the 1987 Act was passed there were these dire predictions were about what would happen, and all the conservative politicians were saying exactly the same thing as the Labour and Alliance politicians are saying today, that it will all come down on our head. When the Ministry of Foreign Affairs and Trade talked to the select committee it said that the principle involved would be of such importance to the United States that we could expect defence, once again, to become the bilateral issue between our countries , that it would be doom and gloom, we would be in America's bad books, and all kinds of bad things would happen. We did not accept that argument in 1987. It is a shame that the Labour-Alliance Government is using it today.

Yes, the Greens are taking the moral high ground. The Government argument is that we can only take multilateral approaches, we have to work with all these other countries, and essentially we have to wait until the United States catches up with us. But we have a history, as a country, of taking unilateral actions, being the first country to give women the vote, and putting through that nuclear-free legislation in 1987, etc. There is a lot of movement around the world, to restrain navigation through nuclear-free zones. The Treaty of Rarotonga presumes that countries could take action to prevent transit of nuclear weapons, and the Latin-America nuclear-free zone prohibits nuclear deployment, as does the South-east Asia nuclear-free zone. It also contains a clause saying that countries have to notify about transit of nuclear weapons. These are unilateral initiatives for those zones and they are a stepping-stone. We should be part of those stepping-stones. We should not be jelly backboned and run away from what could be a very positive development - the extension of our nuclear-free zone.

Keith Locke (Foreign Affairs spokesperson, Green Party),
29 May 2002

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