Practice Relating to Nuclear Weapons
Australia’s LOAC Manual (2006) states:
4.45 The United Nations General Assembly has condemned nuclear weapons as illegal, although the international community itself is divided on this question. In 1996 the International Court of Justice handed down an advisory opinion on the legality of the threat or use of nuclear weapons determining that “the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law”. The Court could not however, conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.
4.46 The commentary to G. P. I [1977 Additional Protocol I] states that “there is no doubt that during the four sessions of the Conference agreement was reached not to discuss nuclear weapons”. Nevertheless, general humanitarian law principles aimed at limiting unnecessary suffering and protecting the civilian population, as further clarified by G. P. I, must be considered in the employment of all weapons of war, including nuclear weapons. The International Court of Justice took the view that only in cases of extreme necessity, where the very survival of the nation is at stake, would the use of a nuclear weapon possibly be appropriate.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s South Pacific Nuclear Free Zone Treaty Act (1986), as amended in 2001, states:
8. Manufacture, production and acquisition of nuclear explosive devices prohibited
(1) A person who undertakes or engages in the manufacture or production of a nuclear explosive device is guilty of an offence against this subsection.
(2) A person who acquires a nuclear explosive device is guilty of an offence against this subsection.
9. Research and development relating to manufacture or production of nuclear explosive devices prohibited
A person who undertakes or engages in research or development for the purpose of, or directed towards, the manufacture or production (whether by that person or otherwise) of a nuclear explosive device is guilty of an offence against this section.
10. Possession of, or control over, nuclear explosive devices prohibited
A person who: (a) possesses a nuclear explosive device; or (b) has control over a nuclear explosive device;
is guilty of an offence against this section.
Australia’s Non-Proliferation (Safeguards) Act (1987), as amended to 2007, states:
A person shall not use nuclear material to cause:
(a) the death of, or serious injury to, any person; or
(b) substantial damage to property or to the environment.
Penalty: Imprisonment for 20 years.
Australia’s Weapons of Mass Destruction (Prevention of Proliferation) Act (1995), as amended to 2003, states:
9 Prohibition on supplying goods for WMD program
(a) a person supplies any goods to another person; and
(b) the first-mentioned person believes or suspects, on reasonable grounds, that the goods will or may be used in a WMD program; and
(c) the supply of the goods is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the first-mentioned person under section 12 stating that the Minister has no reason to believe or suspect that the goods will or may be used in a WMD program;
the first-mentioned person is guilty of an offence punishable on conviction by imprisonment for not more than 8 years.
10 Prohibition on exporting goods for WMD program
(a) a person exports any non-regulated goods; and
(b) the person believes or suspects, on reasonable grounds, that the goods will or may be used in a WMD program; and
(c) the export of the goods is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the person under section 12 stating that the Minister has no reason to believe or suspect that the goods will or may be used in a WMD program;
the person is guilty of an offence punishable on conviction by imprisonment for not more than 8 years.
11 Prohibition on providing services for WMD program
(a) a person provides any services to another person; and
(b) the first-mentioned person believes or suspects, on reasonable grounds, that the services will or may assist a WMD program; and
(c) the provision of the services is not authorised by a permit or is in contravention of a condition stated in a permit; and
(d) the Minister has not given a written notice to the first-mentioned person under section 12 stating that the Minister has no reason to believe or suspect that the provision of the services will or may assist a WMD program;
the first-mentioned person is guilty of an offence punishable on conviction by imprisonment for not more than 8 years.
Australia’s Comprehensive Nuclear Test Ban Act (1998), as amended in 2007, states: “A person who causes a nuclear weapons test explosion or any other nuclear explosion is guilty of an offence. … Penalty: Imprisonment for life.”
In response to a question on notice in the House of Representatives on 8 December 1983 as to whether the Australian Government considered nuclear weapons to be illegal, the Minister for Foreign Affairs stated: “No. The Government notes that the subject of the legality of the use of nuclear weapons is a matter of continuing debate within the international community”.
In response to a question on notice in the Senate on 21 December 1988, regarding the use of nuclear weapons, the minister representing the Attorney-General stated:
The Federal Government … takes the view that Protocol 1 Additional to the 1949 Geneva Conventions does not apply to nuclear weapons and nuclear warfare … The use of nuclear weapons is still governed by principles of international law although they fall outside the ambit of the 1949 Geneva Conventions and the 1977 Additional Protocols.
In a media release dated 15 May 1995, issued in response to a nuclear test conducted by China on that day, Australia’s Minister for Foreign Affairs condemned the test and further stated:
China’s continued testing is out of step with the positive atmosphere of the CTBT [Comprehensive Test Ban Treaty] negotiations, as well as with China’s own support for nuclear disarmament and its stated commitment to negotiation of a CTBT.
China, and other nuclear weapon states, must come to terms with the imminent fact of a ban on nuclear testing for all time and in all environments.
In a media release dated 14 May 1998 and entitled “Australian Response to Indian Nuclear Tests”, Australia’s Minister for Foreign Affairs stated:
The Government has now decided upon further actions in response to the outrageous acts perpetrated by India in conducting no less than five nuclear tests this week …
The Government considers that India’s actions could have the most damaging consequences for security in South Asia and globally … India must immediately sign the CTBT [Comprehensive Test Ban Treaty], join the international nuclear non-proliferation regime and foreswear forever the use of nuclear weapons.
The international community cannot let India’s actions pass without a strong and substantive response.
Australia has and will continue with vigour to use regional and international forums to make clear Australia’s opposition to Indian nuclear testing and has made direct representations here in Australia and to the Indian Government in New Delhi to leave India in no doubt about the strength of our condemnation of its decision to conduct nuclear tests. In addition, I recalled Australia’s High Commissioner to India for consultations.
But in light of the ill-judged actions of India the Government has concluded that further action is required, both to register our concern to the Indian Government and to send a message to other nations that might be considering the testing or development of nuclear weapons about the consequences of such action.
In this regard the Government has decided to implement the following actions, effective immediately:
- suspension of bilateral defence relations with India, including the withdrawal of Australia’s Defence Adviser stationed in New Delhi, the cancellation of ship and aircraft visits, officer exchanges and other defence-related visits. Australian Defence Force personnel currently training in India will be withdrawn. Australia will request the immediate departure of three Indian defence personnel currently at defence colleges in Australia;
- suspension of non-humanitarian aid;
- suspension of Ministerial and Senior Official visits.
In a media release dated 29 May 1998, entitled “Pakistan Indian Nuclear Tests”, Australia’s Minister for Foreign Affairs stated:
Following Pakistan’s ill-advised decision to conduct nuclear tests overnight, I am today announcing a series of measures the Australian government will apply against Pakistan [there follow a series of measures similar to that imposed by Australia on India following that country’s nuclear tests conducted earlier in May 1998].
I spoke this morning with the Pakistan High Commissioner to convey to him Australia’s strong condemnation of his country’s action. Pakistan’s action is a flagrant defiance of international non-proliferation norms and has serious implications for global and regional security. It is sad and deeply disappointing that Pakistan has turned its back on the direct pleas of Australia and others to exercise restraint. Instead Pakistan has decided to join India in isolation from the rest of the international community.
I call again on both Pakistan and India immediately to sign and ratify the Comprehensive Nuclear Test Ban Treaty without condition, and accede to the Nuclear Non-Proliferation Treaty.
In 2008, in a ministerial statement on national security before the House of Representatives, Australia’s Prime Minister stated:
The Australian government is strongly committed to increasing Australia’s role in international efforts to strengthen nuclear non-proliferation and disarmament, and will work with our friends and neighbours to advance practical, effective steps to achieve this goal. That is why we have established the International Commission on Nuclear Non-proliferation and Disarmament.
In 2009, in a statement before the First Committee of the UN General Assembly, the ambassador and permanent representative of Australia stated:
The Australian Government is committed to … nuclear disarmament …
Australia fully endorses the UN Security Council’s historic resolution 1887 of 24 September which we view as an expression of the international community’s commitment to increased global security, including creating the conditions for a world free of nuclear weapons.
In 2009, in a statement before the First Committee of the UN General Assembly, the ambassador and permanent representative of Australia to the UN Conference on Disarmament stated:
Australia has a history of determined activism in support of nuclear non-proliferation and disarmament and the goal of a nuclear weapon-free world. …
A world without nuclear weapons requires an equally strong commitment by non-nuclear weapon states not to acquire nuclear weapons and to accept stringent international safeguards on their civil nuclear facilities.
In 2010, in a statement before the UN Conference on Disarmament, the deputy permanent representative of Australia to the UN Conference on Disarmament stated:
Australia remains determined to achieve progress towards nuclear disarmament. We are committed to the Conference on Disarmament as the right place to begin work to implement the practical steps towards nuclear disarmament.
In 2010, in a statement on behalf of Australia and New Zealand before the Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, the Ambassador for Disarmament of New Zealand stated:
It is my honour on behalf of Australia and New Zealand to introduce a proposal for systematic reporting on the implementation of Article VI commitments, often described as “transparency”. …
Our proposal on reporting has a clear rationale and a practical purpose. The fundamental objective of transparency is the building of confidence through practices that demonstrate the accountability of NPT [Non-Proliferation Treaty] States Parties and underpin the credibility of the Treaty regime.
In the words of the opening preambular paragraphs of the Treaty, we need to have confidence in each other to ensure that nuclear weapons will never be used again. We need to have confidence in each other to prevent the wider dissemination of nuclear weapons.
Key to building this confidence, we believe, is increased reporting by the nuclear-weapon States of progressive efforts to eliminate nuclear weapons from their national arsenals and the means of their delivery. Reporting by all states parties would provide further evidence of our shared commitment to a world free of nuclear weapons.
The proposal also calls on non-nuclear weapon states to report on their efforts to bring about nuclear disarmament, including with respect to the Comprehensive Nuclear-Test-Ban Treaty and a treaty banning the production of fissile material for nuclear weapons.