The new UN Treaty to Prohibit Nuclear Weapons, adopted in July this year and already signed by 53 member states, is founded on the principles of international humanitarian law. Nuclear weapons have been illegal under international humanitarian law since they were first developed. They are indiscriminate weapons of mass destruction which means that their use will inevitably cause civilians casualties on a horrifying scale. The destruction of Hiroshima and Nagasaki was a war crime and states that possess and actively deploy nuclear weapons are guilty of preparing to commit a war crime. It’s not complicated.
What the Treaty does is to provide a new legal instrument for UN member states to explicitly bind and commit themselves to abide by the law as regards nuclear weapons, without any room for prevarication, reservation or the pleading of special and fantastical cases. Thus is created a zone of unqualified compliance with the law. As the bans on landmines and chemical weapons have shown, the existence of an expanding zone of actual and publicly articulated compliance with the law has a profound effect on what is seen as the behavioural norm. States who use these weapons become pariah states.
This puts Scotland in a situation that is at once intriguing, frustrating and challenging. There is little doubt that if we were independent we would both sign and ratify the Treaty. We are globally unique as a significant and distinct geographical section of a nuclear weapon state, with our own parliament and separate legal system. The frustration arises because we are currently shackled to a state which regards the Treaty with dismissive contempt.
The challenge comes from the level of autonomy that we do currently enjoy and in particular the separate status of our legal system. Scottish law lords have acknowledged that international law is part of Scots law. This means we too have obligations. Ideally this would mean that the Scottish High Court would determine that the operations of the UK Trident nuclear weapon system were unlawful, leading to a demand that Westminster remove all trace of it from Scottish territory, as well as a refusal to prosecute those who act against it as concerned citizens.
As things stand, that may seem like an unimaginable step for a Scottish Parliament, Scottish Government and the Scottish Courts to take. If we have to be canny for a bit, there is still lots we can do while we yearn for our land to be compliant with the laws of humanity. We can begin right now on a real employment diversification plan for the region around the Clyde Trident bases. We can review our statutory response arrangements in the case of a serious accident involving the nuclear weapon convoys, arrangements which are currently weak and inconsistent. We can anticipate the terms of the Treaty by introducing into curriculum guidance for schools the business of peace and humanitarian law. We can be an active resource for the nations who back the Treaty by facilitating international conferences. Anyone with five minutes and a pencil could make an even longer list of things that would not cause the Scotland Act to creak, let alone to break.
The big point is that the Treaty is emerging as a real force. If we do nothing more than state our objections we are being moved relentlessly from being passive and neutral to being clearly complicit. The ground is shifting and we must react. It is good to see that so many of our parliamentarians (including Nicola Sturgeon) understand this and have committed themselves to working for the Treaty by signing the ICAN Parliamentary Pledge (http://www.icanw.org/projects/pledge/) . Let’s urge them all to do it.