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 extention of our nuclear-free zone.
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