28 September 2000

To the Foreign Affairs, Defence and Trade Select Committee on the New Zealand Nuclear Free Zone Extension Bill 2000

We welcome this opportunity to express our views to the Select Committee in writing and wish to make an oral submission in Wellington when the occasion arises.

The Women’s International League for Peace and Freedom is totally supportive of the New Zealand Nuclear Free Zone Extension Bill, and urges Committee members to recommend to Parliament that the Bill be passed in its current state at its second and third readings.

This submission makes six major points, which are: 1) The implementation of the Bill is entirely consistent with international law; 2) The implementation of the Bill is entirely consistent with existing domestic law; 3) There is a real possibility of nuclear accidents at sea; 4) Other countries have prohibited the entry of certain types of vessels into their Exclusive Economic Zones; 5) It is time to put policy into action; and 6) Unilateral steps towards nuclear disarmament have been more effective than multilateral negotiations.

1) The implementation of the Bill is entirely consistent with international law.

a) With regard to nuclear weapons - these should be excluded from the Exclusive Economic Zone as their deployment is not consistent with the maintenance of international peace and security as outlined in the United Nations Charter. The transport and deployment of nuclear weapons are a threat to “the peaceful use of the seas and oceans” as specified in the Preamble of the United Nations Convention on the Law of the Sea (UNCLOS).

The 1996 Advisory Opinion of the International Court of Justice whereby: “the threat or use of nuclear weapons would be generally contrary to the rules of international law applicable in armed conflict and in particular the principles and rules of humanitarian law” (paragraph 105 2E) gives further weight to the view that nuclear weapons are a threat to peace and security.

The above examples indicate that the right to ‘innocent’ passage as specified in UNCLOS clearly does not extend to the transport and deployment of nuclear weapons. This argument, could in principle, be extended to those vessels carrying nuclear material which either could be used directly in the manufacture of nuclear warheads, or for such manufacture after the material has been reprocessed.

With reference to this, we note that in July 1999 the Pacific Pintail and Pacific Teal became the first British merchant ships to be armed since World War II precisely because of fears the ships might be hijacked as it would be possible for weapons-grade plutonium to be extracted from their cargos of mixed uranium oxide. Those ships transited the Tasman Sea during their voyage from France and England to Japan.

b) With regard to nuclear weapons, the transportation of nuclear waste and nuclear powered vessels - the UNCLOS Preamble also specifies “the conservation of their living resources, and the ... protection and preservation of the marine environment”, all of which are potentially threatened by the presence of any nuclear vessel, weapon or cargo which could release radioactive material into the sea.

As well, UNCLOS Part V on the rights, jurisdiction and duties of the coastal state in its Exclusive Economic Zone, in Article 56.1 states that the coastal state has sovereign rights within the zone for the purpose of exploring and exploiting, conserving and managing natural resources (living and non-living), the waters and the sea bed etc, and 56.1(iii) specifies the sovereign right of “the protection and preservation of the marine environment”.

Furthermore, The Rio Declaration on Environment and Development (1992) clearly establishes the right of nations to take a precautionary approach to potential environmental disasters as follows: “In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.” (Principle 15).

In this context, the conflict of interest within UNCLOS between the right of ‘innocent’ passage and the sovereign right of a nation to protect its Exclusive Economic Zone and coastline from harm, should be resolved in favour of environmental protection. Any nuclear accident within our Exclusive Economic Zone could potentially have not only disastrous short term, but also extremely long lasting, effects on both our coastline and marine environment.

c) Sovereign rights over the Exclusive Economic Zone - we note that previous New Zealand governments have not been hesitant to establish sovereign rights over the Exclusive Economic Zone through the Territorial Sea and Exclusive Economic Zone Act (1977, and subsequent amendments). Amongst other provisions, the Act specifically prohibits the operation of unauthorised foreign fishing craft in the zone unless they have a license issued for that fishing craft (Territorial Sea and Exclusive Economic Zone Act, 1977, II, 14).

Perhaps those in Parliament who express the view that the New Zealand Nuclear Free Zone Extension Bill breaches the right to innocent passage might be mollified if the Bill was changed to more closely match the Territorial Sea and Exclusive Economic Zone Acts - that is: nuclear armed, waste transporting or powered vessels would be prohibited unless they are issued with a licence for the specific vessel.

2) The implementation of the Bill is entirely consistent with existing domestic law.

As mentioned in 1c above, certain vessels, namely foreign fishing craft who are fishing without a license, are already prohibited entry to the Exclusive Economic Zone. This clearly establishes a precedent for prohibiting certain types of vessels under certain conditions. In addition, the Territorial Sea and Exclusive Economic Zone Acts specifically states:

“II. 27. General regulations in zone - Where no other provision is for the time being made by any other enactment for any such purposes, the Governor-General may from time to time, by Order in Council, make regulations for all or any of the following purposes:

(b) Prescribing measures for the protection and preservation of the marine environment of the zone:

(e) Providing for such other matters as are necessary or expedient for giving full effect to the sovereign rights of New Zealand in relation to the zone”.

It is obvious that the New Zealand Nuclear Free Zone Extension Bill is a ‘measure’ to protect the environment and a ‘necessary matter’ for giving full effect to the sovereign right to choose whether or not we wish to risk radioactive contamination of our marine environment and resources.

3) There is a real possibility of nuclear accidents at sea.

There is a long list of accidents at sea involving nuclear armed, waste transporting and nuclear powered vessels and examples of some of these are listed below.

The sinking of the Russian submarine Kursk (with the death of all on board) was of course the most recent; but there have been at least seven other US and (then) Soviet nuclear submarines which have sunk, some after collisions with surface vessels some of which were also nuclear armed and/or powered.

There have been collisions where the vessels involved were damaged but not sunk - in 1981 the US nuclear submarine ‘George Washington’ collided with a freighter, and in 1984 a Soviet submarine collided with the US aircraft carrier ‘Kitty Hawk’.

Other nuclear submarines have run aground, the US ‘Atlanta’ off the coast of Gibraltar in 1986; or collided with the sea bed, the US ‘Ray’ in 1977.

There have been at least ten major reactor accidents and four major fires on board US and Russian nuclear submarines alone. Other nuclear powered vessels have not been accident free either - in 1988 there was an accident during refuelling on board the Soviet nuclear powered icebreaker ‘Lenin’.

Vessels carrying nuclear waste have also had their share of mishaps - in 1973, a container filled with Cobalt 60 was lost overboard in the North Sea; and in 1994 a French freighter carrying 375 tonnes of uranium hexafluoride sank in the English Channel.

4) Other countries have prohibited the entry of certain types of vessels into their Exclusive Economic Zones.

There are many examples of this, but one is particularly pertinent to this Bill. In 1994 the Chilean government ordered the Pacific Pintail (carrying nuclear waste) to leave its Exclusive Economic Zone. The Chilean naval vessel which enforced this order stated that the carriage of radioactive waste through the Exclusive Economic Zone was a violation of precautionary Principle (15) of The Rio Declaration on Environment and Development, 1992 (from Chilean Navy transcript, March 1995). Argentina, Brazil, and Kiribati also banned the Pacific Pintail from entering their Exclusive Economic Zones in 1995; and Fiji, Puerto Rico and the Dominican Republic banned its transit through their territorial seas.

In 1999 the Caricom governments “vowed to take all necessary steps to protect their people and the fragile ecology of the Caribbean Sea from this highly dangerous threat” and banned the Pacific Pintail and Pacific Teal from all Caribbean waters (BBC, 19 July 1999).

We note a statement from Minister of Foreign Affairs Phil Goff (13 July 2000) that “New Zealand remains firmly opposed to all shipments through its Exclusive Economic Zone of nuclear materials.” Which leads directly to our next point.

5) It is time to put policy into action.

There is no reason why the government’s ‘firm opposition’ to the transit of nuclear materials through our Exclusive Economic Zone cannot be put into legislation. It is entirely consistent with the stated policies of both the Labour and Alliance coalition partners.

The Labour Party’s policy on Foreign Affairs and Defence states “The Labour Government will ensure that New Zealand takes a leadership role in the drive for disarmament. Labour will: keep New Zealand and its waters free of nuclear weapons, nuclear waste and nuclear power” (first point under disarmament).

The Alliance Foreign Affairs Policy is not as specific, but nevertheless talks about a principled, independent foreign policy and states 'the Alliance will work for rapid nuclear disarmament'; ' we support the rights of all peoples and sovereign nations, to determine their own affairs'; and 'the maintenance of a globally sustainable environment is vital for the future viability of the planet'.

Furthermore, the Defence Policy Framework (June 2000) states 'The government will continue to maintain a nuclear free New Zealand and protect the integrity of the nuclear free policy. It will also promote a nuclear free South Pacific” (Point 18) - keeping New Zealand nuclear free is more likely to be attained by extending the ban on nuclear materials from 12 miles to the outer edge of the Exclusive Economic Zone as it increases our distance from nuclear threat.

6) Unilateral steps towards nuclear disarmament have been more effective than multilateral negotiations.

With regard to the inclusion of nuclear weapons in the Bill, we note that the comparatively larger advances towards nuclear disarmament have tended not to come out of multilateral negotiations or forums such as the Conference on Disarmament, but from unilateral decisions of the nuclear weapons states - some, for example South Africa, to get rid of their nuclear arsenals; others such as the former Soviet Union to reduce warhead numbers for economic reasons, and others such as the United States of America to decommission a particular class of nuclear weapon because they have developed alternative ‘better’ ones. Unilateral decisions of non-nuclear weapons states have also resulted in practical nuclear disarmament steps by reducing the places where nuclear weapons could be deployed - for example, Belau’s nuclear free Constitution in 1979, and the New Zealand Nuclear Free Zone, Disarmament and Arms Control Act 1987.

While every effort should obviously continue to be made to pursue nuclear disarmament multilaterally, it has to be recognised that unilateral measures have a more immediate effect. We note the comments of Jayantha Dhanapala (UN Undersecretary General for Disarmament) at the International Seminar on Nuclear Weapons Free Zones, held from 1 to 4 September 2000 in Uppsala, Sweden in this regard.

'At a time when some 30,000 nuclear weapons remain, Nuclear Weapons Free Zones offer one of the few activities open to non-nuclear-weapon States not just to quarantine themselves from the nuclear contagion, but to pool their efforts to resist it.'

7) Conclusion.

Quarantining ourselves from the nuclear contagion is exactly the point of the New Zealand Nuclear Free Zone Extension Bill and the reason we support it. We want neither the physical contagion which might occur were there to be a nuclear accident within our Exclusive Economic Zone, nor the moral contagion of being in any way supportive of the transit and deployment of nuclear weapons.

The world has now been waiting for nuclear disarmament for fifty five years - fifty five years which have been characterised by the broken commitments of the first nuclear weapons states, and later by the others. Rather than wait a further fifty five years, it is time for independent nations to make a principled stand and act to reduce the physical space in which nuclear weapons are tolerated.

The New Zealand Nuclear Free Zone Extension Bill may well provide the impetus for other nations to follow this positive nuclear disarmament move and enact their own legislation to do the same.

Outline of the Provisions of the Bill

Peace Movement Aotearoa Briefing on the Bill