5280, the Denver magazine, just published an article on Jon Lipsky, who led the FBI raid on Rocky Flats in 1989. After being away for several years, he now lives in the area and follows the Rocky Flats issue closely. To read the article, go to: http://www.5280.com/news/magazine/2016/04/rogue-agent?page=full
Archive for the ‘Democracy’ Category
Very insightful article by Jacqueline Cabasso of Western States Legal Foundation in Oakland.
For video, see https://www.youtube.com/watch?v=7C_mKtd5x50&feature=youtu.be
By Ralph Hutchison of the Oak Ridge Environmental Peace Allowance, March 31, 2016.
The Nuclear Security Summit in Washington, DC has unleashed a spate of editorials, letters, interviews, broadcasts, podcasts, tweets and posts about nuclear weapons. As an activist who has worked for nuclear disarmament for thirty years, it is gratifying to see the issue getting some notice.
Unfortunately, that’s about where the gratification ends. I live twenty-two miles from Oak Ridge, Tennessee, where the US government is, right now, cranking out thermonuclear highly enriched uranium cores for W76-1 warheads as part of the Stockpile Life Extension program which is almost exactly what it sounds like—except they don’t just extend the life of the warhead for another 40-100 years, they also modify and upgrade it to introduce new military capabilities. They’ve been building these components in Oak Ridge ever since the country went thermonuclear in 1949.
This is the new global arms race. It’s not something that might happen in the future. It is already happening, right now, though you haven’t heard about it because the headlines are about terrorism, global warming and Donald Trump—all legitimate worries, to be sure. But the idea that a new nuclear arms race can take place under the radar is legitimately terrifying.
At the Security Summit, and in his Washington Post editorial piece, President Obama noted the gains made during his administration while recognizing there are still challenges to be met. If you don’t know any more about it than what you are reading in the newspaper, you might think the US is ever-so-slowly, incrementally, moving toward the world free of nuclear weapons Obama embraced in 2009, for which he was prematurely gifted with a Nobel Peace Prize. Obama says we are taking concrete steps. He brazenly claims we are strengthening the Nuclear Nonproliferation Treaty regime.
What is not being mentioned so much is the stark reality of this: over the next thirty years, the United States will spend one trillion dollars to upgrade its nuclear force—new warheads, new bombs, new submarines, new jets, new missiles, new bomb plants—from the ground up we are pursuing an entirely new nuclear capability.
Strengthening the Nuclear Nonproliferation Treaty regime? The US has rebuffed calls by non-nuclear nations to deliver on the promise we made in 1969, when the Treaty was signed, to pursue complete disarmament “at an early date.” A global movement to outlaw nuclear weapons has been building over the last two years—the US is not taking part. The Marshall Islands, victims of nuclear test blasts for decades, brought suit against the nuclear weapons states in the World Court last year—the US has turned its back on the court and refused to participate. Why? Why not go to the World Court, Mr. President, and present your grand work to strengthen the Nuclear Nonproliferation Treaty regime, and let your actions be your defense?
Some of us know why. We’re the ones who have been tracking this issue for decades. We’ve heard all your speeches, but we’ve also seen what’s happened on your watch. And actions, as they say, speak louder than words.
The new global nuclear arms race is not news to some of us in Tennessee because we are at Ground Zero of the whole thing. Here, in Oak Ridge, the government is planning a new bomb plant, called the Uranium Processing Facility, at the same complex we used to enriched the uranium fuel for the Little Boy bomb that destroyed Hiroshima. It’s even still called by its Manhattan Project code name, Y-12. You can look it up. This new bomb plant, the UPF, will be the flagship of the new, “modernized” nuclear weapons complex—did you tell everyone at the Nuclear Security Summit you were investing billions in bomb plants to expand our nation’s nuclear weapon production capacity, Mr. President?
I say “planning a new bomb plant” because they have spent almost 3 billion dollars designing the UPF bomb plant and they don’t have a design yet. It will cost many more billions to actually build it, if they do. Citizens here have been working for ten years to stop them, and so far, so good. But the toughest work is still to come.
So the Obama Administration is using the occasion of the Security Summit to tell you all its nuclear feel good stories. What they aren’t telling you is the raw truth that renders all of those accomplishments virtually meaningless. If they make you feel good, great. But don’t be fooled by your feelings, because they aren’t the truth—and we ignore the truth at our failure.
I saw a wee bit of coverage of the Nuclear Summit on CSPAN-2 today, and at the close the moderator used the perfect phrase to describe what we get if we ignore the truth—catastrophic consequences.
The truth is the United States is investing a trillion dollars on nuclear weapons, starting with new bomb production plants and ending with new missiles to carry new warheads to targets halfway around the world. In response—I say that because we are the ones leading this arms race—Russia and China are moving to upgrade their arsenals as well. Every day, the nuclear threat is growing. And every dollar spent on it is, in the words of Dwight Eisenhower, the theft of a slice of bread from a child who is hungry and is not fed.
A trillion dollars will buy a lot of bread. Or build a lot of homes. Or create a lot of jobs. Or hire a lot of teachers, repair a lot of bridges, provide a lot of health care. But it won’t if it is used to build bomb plants, then missiles, which will be buried in silos, and loaded on submarines where they will sit, brooding, waiting, tempting the men (and very few women) in power, threatening the lives of our children and their children, holding the earth itself in harm’s way.
When the President described the challenges still facing us he pointed his finger at Russia, then at North Korea. Here’s what he said we need to do: Negotiate to reduce—not eliminate, just reduce—our stockpiles further. We know he thinks something like 1,000 is an appropriate number to scare the rest of the world into thinking twice before attacking us (except for suicide bombers, but who would be crazy enough to blow themselves up just to hurt the US?). And he said the US should ratify the Comprehensive Test Ban Treaty—a piece of paper, just like the Nonproliferation Treaty we’ve been ignoring since 1970. When then-President Clinton signed the CTBT he congratulated himself on his great gesture then noted, just in case anyone wondered, that we fully intended to abide by the treaty unless we decided it was in our supreme national interest not to. In other words, the treaty ultimately meant nothing.
This is the world we live in. To pretend otherwise is to deceive ourselves. If we don’t object, we not only bear a moral responsibility akin to those who were bystanders during the holocaust, we rob ourselves and future generations of trillions of dollars that could be used to purchase true security—jobs, education, housing, health care— and we rob ourselves of our own self-respect because we know ourselves as those who threaten the utter and complete annihilation of others, and we rob ourselves and future generations of the peace and security that can never be ours as long as we maintain the ominous nuclear cloud over our children’s generation, and their children’s and on and on into the future until the day the bombs are used and there is no future anymore.
Is That All There Is? Obama’s Disappointing Nuclear Legacy
Defense One, MARCH 29, 2016 BY JOE CIRINCIONE, president of Ploughshares Fund and the author of Nuclear Nightmares: Securing the World Before It Is Too Late.
The biggest roadblock to making the world safer from nuclear weapons turned out to be the president’s own team.
American showman P.T. Barnum said, “Always leave them wanting more.” If the fourth and final Nuclear Security Summit this week is President Barack Obama’s closing nuclear act, he will certainly be following Barnum’s dictum.
Seven years ago this April, in his first foreign policy speech as president, Obama pledged “to seek the peace and security of a world without nuclear weapons.” He detailed an ambitious program in his Prague address, including an initiative to unite world leaders to secure all nuclear bomb material from terrorists.
Obama achieved only a fraction of what he had hoped.His vision was correct. Every reduction in the global stockpile of 15,000 nuclear weapons makes us safer. Every move away from the immorality of nuclear use makes us more human. There was little debate on this score in the 2008 campaign. “The Cold War ended almost 20 years ago,” said Sen. John McCain, R-Ariz., the GOP nominee, “and the time has come to take further measures to reduce dramatically the number of nuclear weapons in the world’s arsenals.”
McCain and Obama were backed by scores of former military and national security leaders, including 17 former cabinet members, as well as former generals, senior officials, nuclear scholars, and Democrat and Republican politicians. Eighty-eight percent of all the living former secretaries of state supported the project, as did 70 percent of all former national security advisors and 62 percent of all former secretaries of defense.
By April 2010, Obama had hit a nuclear trifecta: a new Nuclear Posture Review promised to reduce the role and number of US nuclear weapons; a treaty with Russia kept critical verification measures intact and trimmed both nations’ long-range nuclear arsenals; and the first Nuclear Security Summit, the largest convening ever of heads of state focused on nuclear policy.
Obama successfully linked idealistic goals to practical, near-term security objectives. He impressed global audiences and domestic skeptics. “President Obama has turned the once utopian-sounding idea of global nuclear disarmament into a useful tool for U.S. foreign policy, “ wrote Washington Post columnist Jim Hoagland. “His well-conceived, confidently executed three-part movement in statecraft this month should banish the notion that Obama’s ambitious nuclear goals spring from naiveté or inexperience.”
Since the summits began, 12 countries eliminated weapons-usable nuclear material, including 200 kilograms of highly enriched uranium from Ukraine — enough for four bombs — just months before that nation convulsed in conflict. Many other nations increased the security around their supplies and joined conventions against nuclear terrorism.
Obama’s most important achievement was the seven-nation accord that rolled back Iran’s nuclear program and put it under lock and camera. He offered Iran a choice at Prague between “increased isolation, international pressure and a potential nuclear arms race in the region” or “engagement…based on mutual interests and mutual respect.” The resulting dialogue produced a diplomatic triumph that prevented a war with Iran many thought inevitable. If it works, “it will be the major foreign policy achievement not only of this presidency but of this generation,” said Rachel Maddow. The New York Times called it “potentially one of the most consequential accords in recent diplomatic history.” Nuclear experts overwhelmingly agree the agreement stops the weapons threat from Iran and makes the world safer.
Impressive, but these accomplishments fall short of the policy transformation Obama sought.
Obama hoped that by now he would have secured Senate approval of the nuclear test ban treaty, which he promised to “immediately and aggressively pursue.” Didn’t happen.
He wanted “a new treaty that verifiably ends the production of fissile materials intended for use in state nuclear weapons.” Not even close.
He pledged to secure all nuclear materials within four years. The final summit will end with tons of material in 25 nations still unsecured, with a patchwork of policies rather than legally binding requirements and universal standards.
He intended to negotiate with Russia truly deep cuts in both arsenals and then “include all nuclear weapon states in this endeavor.” Russia refused.
These setbacks can be blamed on Russian intransigence and Republican politicization of national security, as Brookings Institution scholar Steven Pifer details. But the worst of the failures were self-inflicted. While he turned to other pressing issues, his Prague pledge to maintain a “safe, secure and effective arsenal” morphed into a $1 trillion plan to replace the entire Cold War nuclear arsenal. As his policy faltered, programs proceeded without his guidance. A maintenance program became a replacement program for every weapon, all with new capabilities, even new missions.
“Has the administration conducted a detailed analysis of eliminating one or more legs of the triad,” Rep. Trent Franks, R-Ariz., asked at a House Armed Services Committee hearing in March, “or significantly altering the US nuclear posture?” The witnesses looked at each other and shrugged. “I’m not aware of any detailed look at that,” said Navy Secretary Ray Mabus, and Air Force Secretary Deborah Lee James agreed. Both asked for more money for new weapons, but not for any new examination of our ability to destroy human civilization.
This is precisely the problem. Yes, the Russians refused and the Republicans blocked, but Obama’s biggest foe was his own bureaucracy, including many of those he appointed to implement his nuclear policies.
He knew the danger. “Some argue that the spread of these weapons cannot be stopped, cannot be checked — that we are destined to live in a world where more nations and more people possess the ultimate tool of destruction,” he said in Prague, “Such fatalism is a deadly adversary.”
He didn’t expect that this adversary would be the cynicism and careerism of his own appointees. When Obama stopped pushing his nuclear policies in 2011 (save for Iran), the nuclear-industrial complex took over. Those supporting his views, particularly in the State Department, were outnumbered by those, particularly in the Defense Department, who opposed, even mocked, his goals. Policy stalled; contracts raced on.
It may not be too late. Before a new arms race begins in earnest, Obama could move to delay or cancel some of the new weapons, notably the new nuclear cruise missile and the new ICBM, as former Secretary of Defense Bill Perry urges. There is no shortage of other recommendations. But he will have to be bold, as bold has he was at the beginning of his presidency.
If he follows another Barnum adage, the president may yet secure his legacy: Fortune always favors the brave, and never helps a man who does not help himself.
Read this excellent article on Sanders’ proposal and opposition to it. In my view, Sanders comes out ahead. He’s the only presidential candidate who takes global warming seriously. http://grist.org/climate-energy/bernie-sanders-wants-to-phase-out-nuclear-power-plants-is-that-a-good-idea/ via @grist
A ‘Legal Gap’? Nuclear Weapons Under International Law
ARMS CONTROL TODAY
By Gro Nystuen and Kjølv Egeland
Over the past five years, the international community has devoted attention to the humanitarian, environmental, and developmental consequences of nuclear weapons detonations.
The final document of the 2010 Nuclear Nonproliferation Treaty (NPT) Review Conference referred for the first time in NPT history to the “catastrophic humanitarian consequences of any use of nuclear weapons” and reaffirmed the need “for all States at all times to comply with applicable international law, including international humanitarianlaw.”1
The inclusion of this language in the 2010 document was perhaps not particularly significant in itself, as it stated the obvious. Rather, its significance lay in the initiative it licensed. Arguing that the humanitarian dimension required increased attention, the Norwegian government invited all interested states and organizations to a conference on the humanitarian impact of nuclear weapons in Oslo in March 2013. The next year, the Mexican and Austrian governments organized follow-up conferences in Nayarit and Vienna, respectively. Attracting more government delegations than the NPT Preparatory Committee meetings in 2013 and 2014, the series of humanitarian impact conferences appears to have supplied a meeting format that was in demand.
At the conclusion of the third and hitherto last of these conferences, the Austrian hosts submitted a document calling on states and other stakeholders to “fill the legal gap for the prohibition and elimination of nuclear weapons.”2 A few months later, the Austrian government announced that this “Austrian Pledge” would be called the “Humanitarian Pledge,” thus implying a broader ownership of the document. More than 120 states have now formally endorsed it.
One might ask what exactly this legal gap is. Although some claim that there is a gap that should be filled by a new legal instrument prohibiting the use and possession of nuclear weapons, others argue that there is no legal gap.3 Some have suggested that the legal gap is not one of substantive law but rather a “compliance gap.”4
This article seeks to bring some clarity to the question of a potential legal gap, investigating the legality of the possession and use of nuclear weapons under international humanitarian law and disarmament law. It concludes that there is a substantive legal gap because unlike chemical and biological weapons—the other categories of nonconventional weapons—nuclear weapons are not explicitly and comprehensively prohibited. Given the magnitude of the humanitarian consequences of nuclear weapons, this could be considered a paradox.5
The Use of Force
The primary objective of the UN Charter is to “save succeeding generations from the scourge of war.” The charter forbids the use of military force against states in general, but makes exceptions for self-defense and for use of force authorized by the Security Council.
These rules in the charter apply equally to all use of force against states, irrespective of weapon type. No restrictions are imposed on nuclear weapons as such.
In an advisory opinion in 1996, the International Court of Justice
(ICJ) responded to the question of whether the use of nuclear weapons could be permitted under international law. The court did not succeed in giving a clear answer, but concluded that it could not rule out the lawfulness of the use of a nuclear weapon in “extreme circumstances of self defence.”6 Because every armed conflict is likely to be perceived by states as an “extreme” circumstance of self-defense, it was unclear whether the court implied that the rules governing the justification for the use of armed force in the UN Charter (jus ad bellum) might set aside the rules governing the actual conduct of hostilities (jus in bello). It seems clear that if one makes the applicability of the rules governing the conduct of warfare (international humanitarianlaw) dependent on whether the use of force in itself is perceived as legitimate, then the former rules will seldom be seen as applicable because states commonly perceive the enemy’s use of force as unjustified. These two regimes are therefore, as a matter of law, distinct, applying independently of each other.
Conduct of Hostilities
Regulating the conduct of war, international humanitarian law, sometimes called the laws of war or the laws of armed conflict, is arguably the most important legal regime when considering the legality of the use of nuclear weapons. The key instrument is the 1977 Additional Protocol I to the 1949 Geneva Conventions, in addition to international customary law. Several rules laid down here are of particular importance.
The first is the rule of distinction. According to this rule, parties to a conflict may not “employ a method or means of combat the effects of which cannot be limited as required by this Protocol; and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.”7 The terror bombings of Coventry, Dresden, and Tokyo during World War II would not be permissible under this provision. The nuclear bombings of Hiroshima and Nagasaki would equally be ruled out.
Several weapons have been explicitly prohibited, in part or in whole, because they have been deemed impossible or difficult to use without violating the rule of distinction. This is the case with biological weapons and chemical weapons, as well as anti-personnel landmines and cluster munitions. Nuclear weapons, however, are not subject to corresponding prohibitions. Accordingly, their use is generally governed by the rules of international humanitarian law.
The second norm of particular importance is the rule of proportionality. According to this rule, even if an attack is successfully directed against military objectives, the attack might still be considered unlawful if it causes harm to civilians and civilian objects that “would be excessive in relation to the concrete and direct military advantage anticipated.”8 Due to their fundamental properties, nuclear weapons are difficult to use without causing great collateral harm to civilians and civilian objects. Yet, that does not mean that lawful use is inconceivable. In his dissenting opinion to the ICJ’s 1996 advisory opinion, Judge Stephen Schwebel discussed scenarios in which nuclear weapons might be used lawfully. He came to the conclusion that the use of nuclear weapons “might well be lawful” if used, for example, against a submarine far out at sea.9
The third rule deals with “precautions in attack.” In the conduct of military operations, “constant care shall be taken to spare the civilian population, civilians and civilian objects.”10 For example, according to this rule, one must take “all feasible precautions” with a view to minimizing “incidental loss of civilian life, injury to civilians and damage to civilian objects.”11 In itself, this requirement does not explicitly rule out use of a nuclear weapon. As the International Committee of the Red Cross (ICRC) points out, the rule of precautions “does not imply any prohibition of specific weapons.”12
The fourth rule of international humanitarian law of particular importance is the prohibition on means of warfare of a nature to cause superfluous injury and unnecessary suffering. In contrast to the three rules above, which are designed to protect civilians, this fourth rule protects combatants. The first formulation of the unnecessary-suffering rule in modern international law was expressed in the 1868 St. Petersburg Declaration, which states that the “only legitimate object” of war is to “weaken the military forces of the enemy” and that this object would be “exceeded” by the use of weapons that “uselessly aggravate the sufferings of disabled men, or render their death inevitable.” The use of such weapons, so it says, would be “contrary to the laws of humanity.”
Nuclear detonations, of course, are more than just big explosions. The resulting ionizing radiation lingers for decades, thus increasing the risk of cancer. The rule on superfluous injury and unnecessary suffering contains an implicit requirement of assessing alternatives to the weapon planned for use. As legal scholar Stuart Casey-Maslen argues, “[S]hould a proposed use of nuclear weapons satisfy both the rule of distinction and the rule of proportionality, a further assessment must be made as to whether alternative, less destructive weapons might adequately fulfill the military task.”13
A fifth norm concerns the protection of the natural environment.14 It is generally prohibited for the warring parties to deploy means of warfare that cause widespread, long-term, and severe damage to the environment, although it is a matter of dispute between states whether this rule applies to nuclear weapons. France and the United Kingdom, as two nuclear-weapon states party to Additional Protocol I, have formulated reservations regarding its application to nuclear weapons.15
The rules described in the preceding paragraphs make clear that international humanitarian law would prohibit the use of nuclear weapons in almost all conceivable scenarios. For example, a tactical nuclear strike against a submarine far out at sea may not be a violation of the rule on distinction, but it could be a violation of the prohibition against superfluous suffering. Short of a specific ban on nuclear weapons, however, it is possible to argue that their use could potentially be lawful. It is theoretically possible to argue that nuclear strikes can be justified as long as the damage to civilians is not excessive in relation to the concrete, direct military advantage anticipated and there is no available alternative weapon that is less destructive.
The evidence presented at the conferences in Oslo, Nayarit, and Vienna demonstrated that the humanitarian consequences of nuclear weapons actually are worse than many had thought. As the ICRC and others have pointed out, this must affect how the legality of the use of nuclear weapons under international humanitarian law is assessed.16
Blasted trees stand near fallen tombstones at the temple of Kokutaiji in Hiroshima following the U.S. atomic bombing of the Japanese city on August 6, 1945. (Photo credit: Keystone/Getty Images)
Contributing to a nuclear weapon-free world is a prominent aspiration of the treaties establishing nuclear-weapon-free zones.17 Covering large geographical areas and a large number of states, such zones represent an often underestimated legal and political dynamic with regard to protecting individuals and the environment against nuclear weapons. At present, more than 100 countries worldwide, covering more than 50 percent of the Earth’s surface, are parties to these treaties. In the southern hemisphere, 99 percent of the land area is part of such a zone.
These zones may be separated into three main categories: geographical zones covering uninhabited territory or areas, such as the moon or the seabed; regional zones, consisting of clusters of states or entire continents, including Latin America and the Caribbean, Africa, and subregions of Asia; and single, self-declared, nuclear-weapon-free countries. The treaty regimes on these zones generally prohibit production, receipt, storage, testing, or use of nuclear weapons, and several also contain a prohibition on dumping radioactive matter at sea or elsewhere. The zones’ potential for defusing the risk of regional nuclear arms races and decreasing the risk of nuclear weapons falling into the hands of nonstate actors is an important factor in international efforts to protect individuals and the environment from nuclear weapons.
The NPT is a global disarmament treaty that aims to prevent or at least limit the potential for use of nuclear weapons. The NPT preamble reflects a key driving force behind the treaty’s negotiation by referring to “the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples.”
Although certain scholars have questioned the importance of the NPT in curbing proliferation,18 there is general agreement among most governments that the NPT has been an effective brake on the spread of nuclear weapons. The NPT has proven less effective with regard to nuclear disarmament. As Irish Foreign Minister Charles Flanagan pointed out at the 2015 review conference, “[N]ot a single nuclear weapon has been disarmed under the NPT or as part of any multilateral process.”19
Often presented as a “grand bargain” between nuclear- and non-nuclear-weapon states, the NPT prohibits states from possessing nuclear weapons, except for the five states that had them by January 1, 1967. In exchange for their special status, these five states, like every other state-party, agreed to “pursue negotiations in good faith on effective measures” for nuclear disarmament (Article VI) and to facilitate the development of nuclear energy for peaceful purposes in non-nuclear-weapon states (Article IV). Yet, in the negotiating history and the subsequent review process of the NPT, disarmament always has played second fiddle to nonproliferation. According to NATO official Michael Rühle, “At the time of the treaty’s signing…, article VI seemed of little significance. The treaty was widely understood as a freeze on the number of existing [nuclear-weapon states], not as a means of disarming them. To put it bluntly, the treaty was supposed to perpetuate nuclear inequality indefinitely (or at least until 1995), and article VI was a way of making this fact a little easier to
This can no longer be said to be the case. In its 1996 advisory opinion, the ICJ concluded that there exists “an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament.”21 An obligation to disarm, however, does not constitute a prohibition. Thus, although not uncontroversial, the statement of UK Prime Minister Tony Blair that the NPT “makes it absolutely clear” that the UK “has the right to possess nuclear
weapons”22 is legally accurate. Comparing the NPT with the regimes on biological and chemical weapons, the most striking difference is that although the latter two contain categorical prohibitions against possession and use,23 the former does not. Given the horrific humanitarian consequences of nuclear weapons detonations, this may reasonably be called a legal gap.
On top of this legal gap in substantive law comes a possible compliance gap concerning the lack of nuclear disarmament as mandated by NPT Article VI, the 1995 NPT “extension package,” and the final documents of the 2000 and 2010 review conferences. The 2010 document lays out a 64-point action plan. There is considerable debate on whether, for example, the action plan from 2010 ought to have been undertaken in the five-year review period or whether it was a long-term road map.24 NPT nuclear-weapon states such as Russia and the United States argue that the stockpile reductions they have undertaken over the last couple of decades are more than enough in terms of Article VI implementation, but others argue that full implementation of Article VI requires negotiation of “effective measures” on nuclear disarmament. Article VI applies to all NPT states-parties, thus indicating that such negotiations of effective measures should be multilateral. At the 2015 NPT Review Conference, the Mexican delegation noted that “more than 40 years after the entry into force of the NPT and 20 years after its indefinite extension, the obligation to conduct multilateral negotiations in good faith to fulfil the goal of disarmament, as provided by Article VI of the NPT, is the only one of its provisions that has not been achieved yet.”25 The South African delegation argued that the framework for implementing Article VI “must be the product of an open multilateral process.”26
In fact, the only relevant measure specifically mentioned in the NPT preamble is a comprehensive nuclear test ban.27 Accordingly, the lack of agreement on a test ban treaty was a major source of friction at the first four review conferences. The Conference on Disarmament, having failed to reach consensus, could not adopt the Comprehensive Test Ban Treaty (CTBT), and the treaty was therefore subsequently adopted by the UN General Assembly in 1996. It has yet to enter into force, however, as it has not been ratified by several so-called Annex 2 states (the 44 states that possessed a nuclear reactor at the time of the CTBT negotiations and whose ratification, under the terms of the treaty’s Annex 2, is necessary for the treaty to enter into force), including six nuclear-armed states. Accession by the United States arguably would be a critical factor in securing support from the remaining Annex 2 states. Recent signals that the Obama administration is looking into reopening a debate on U.S. accession to the CTBT are welcome news, but it remains doubtful that the U.S.
Senate can be swayed and that anything can be done before a new U.S.
president takes office in January 2017.28
A polarized debate over nuclear weapons and their legality has taken place over the past decades. Some states have asserted that international law permits the use of nuclear weapons, whereas others hold that their use constitutes a violation of international law. This debate gathered momentum with the UN General Assembly’s request for an advisory opinion by the ICJ in 1994 and the subsequent court hearings and 1996 publication of the opinion. Because the ICJ did not resolve the issue, the frontlines remained where they were, but now with the added element of each side taking the advisory opinion as evidence that it was right. This stalemate over the legal issues might have contributed to neutralizing the public debate rather than provoking public action to pressure governments for greater efforts to diminish the risk posed by nuclear weapons.
International law clearly places very heavy restrictions on nuclear weapons use. Nevertheless, there is no unequivocal and explicit rule under international law against either use or possession of such weapons. Although the two other categories of nonconventional weapons are explicitly prohibited because their use would conflict with the requirements of international humanitarian law, the use, production, transfer, and possession of nuclear weapons are not explicitly prohibited. This may reasonably be labeled a legal gap.
The reference to this legal gap in the Humanitarian Pledge does not make it clear whether a prohibition should be separated from the process of physical elimination and, if so, which to pursue first. The question of sequencing is significant. Should prohibition precede elimination? Should elimination come first when conditions allow, with prohibition then following? Could they be pursued simultaneously, in the form of a treaty that would resemble the Chemical Weapons Convention? Should the prohibition form part of a negotiated structure of legal instruments—a formal framework that could set out an agreed sequence or foreshadow the need to agree on a sequence at the outset of the initial negotiations?
Four main approaches to nuclear disarmament feature frequently in debates in the UN General Assembly First Committee and the NPT review cycle: (1) a comprehensive nuclear weapons convention in which a single legal instrument would provide for prohibition and elimination and in which elimination would precede a prohibition, (2) a framework agreement in which different prohibitions and other obligations would be pursued independently of each other but within the same broad frame, (3) a step-by-step or building-block approach in which elimination would precede prohibition, and (4) a stand-alone ban treaty in which prohibition would precede elimination.29
Unsurprisingly, governments have different views on these approaches, depending on the country’s status under the NPT, its membership in other treaty regimes, and its military alliances. At this point, it is not clear which view will prevail. It seems safe to say, however, that the legal gap will continue to be a hotly debated topic in the months and years to come, including in the open-ended working group on “[t]aking forward multilateral nuclear disarmament negotiations” that is meeting in Geneva during 2016.30
1. 2010 Review Conference of the Parties to the Treaty on the
Non-Proliferation of Nuclear Weapons, “Final Document, Volume I, Part I,” NPT/Conf.2010/50 (Vol. I), 2010, para. I(A)(v).
2. “Pledge Presented at the Vienna Conference on the Humanitarian
Impact of Nuclear Weapons by Austrian Deputy Foreign Minister Michael Linhart,” n.d.,http://www.bmeia.gv.at/en/european-foreign-policy/disarmament/weapons-of-mass-destruction/nuclear-weapons-and-nuclear-terrorism/vienna-conference-on-the-humanitarian-impact-of-nuclear-weapons/chairs-summary/.
3. See Frank A. Rose, opening statement to the 2015 UN General
Assembly First Committee, October 12,
4. John Burroughs and Peter Weiss, “Legal Gap or Compliance Gap?”
Arms Control Today, October 2015.
5. For a more detailed treatment of the legal issues addressed in
this article, see Gro Nystuen, Stuart Casey-Maslen, and Annie Golden Bersagel, eds., Nuclear Weapons Under International Law (Cambridge:
Cambridge University Press, 2014).
6. International Court of Justice, “Legality of the Threat or Use of
Nuclear Weapons,” July 8, 1996, para. 105(2)(E), http://www.icj-cij.org/docket/files/95/7495.pdf.
7. International Committee of the Red Cross (ICRC), “Protocol
Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Protection of the Civilian Population,”
n.d., art. 51(4)(c),
8. Ibid., art. 51(5)(b).
9. Stephen M. Schwebel, dissenting opinion in “Legality of the
Threat or Use of Nuclear Weapons,” July 8, 1996, p. 98, http://www.icj-cij.org/docket/files/95/7515.pdf.
10. ICRC, “Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Precautions in Attack,” n.d., art. 57(1), https://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=50FB5579FB098FAAC12563CD0051DD7C.
11. Ibid., art. 57(2)(a)(ii).
12. ICRC, “Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Commentary of 1987, Precautions in Attack,” n.d., para. 2201, https://www.icrc.org/applic/ihl/ihl.nsf/Comment.xsp?action=openDocument&documentId=D80D14D84BF36B92C12563CD00434FBD.
13. Nystuen, Casey-Maslen, and Golden, Nuclear Weapons Under
14. See ICRC, “Protocol Additional to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977; Basic Rules,”
n.d., art. 35(3),
J.M. Henckaerts, “Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict,”International Review of the Red Cross, Vol. 87, No.
857 (2005): 191.
15. Of the nuclear-armed states, China, North Korea, and Russia are
parties to Additional Protocol I without reservations regarding its application to nuclear weapons. France and the United Kingdom are parties but with reservations on its application to nuclear weapons.
The rest of the nuclear-armed states—India, Israel, Pakistan, and the United States—are not parties.
16. ICRC, “Nuclear Weapons: Ending a Threat to Humanity,” February
18, 2015, https://www.icrc.org/en/document/nuclear-weapons-ending-threat-humanity
(speech by Peter Maurer).
17. Such zones are foreseen in Article VII of the nuclear
Nonproliferation Treaty (NPT).
18. For example, Etel Solingen, Nuclear Logics: Contrasting Paths in
East Asia and the Middle East (Princeton, NJ: Princeton University Press, 2007).
19. Charles Flanagan, Statement of Ireland to the 2015 NPT Review
Conference, April 27, 2015,
20. Michael Rühle, “Enlightenment in the Second Nuclear Age,”
International Affairs, Vol. 83, No. 3 (May 2007): 511-522.
21. Nystuen, Casey-Maslen, and Golden, Nuclear Weapons Under
22. Nick Ritchie, “Trident: The Deal Isn’t Done,” Bradford
Disarmament Research Centre, December 2007, p. 11, note 38,http://www.brad.ac.uk/acad/bdrc/nuclear/trident/trident_deal_isnt_done.pdf.
23. The text of the Biological Weapons Convention does not
explicitly mention use of biological weapons, but the states-parties have agreed that the treaty shall be interpreted to include a prohibition on use. See Seventh Review Conference of the States Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, “Final Document of the Seventh Review Conference,” BWC/CONF.VII/7, January 13, 2012, art. IV(16) (states-parties reaffirming that “under any circumstances the use, development, production and stockpiling of bacteriological
(biological) and toxin weapons is effectively prohibited under Article I of the Convention”).
24. See Gaukhar Mukhatzhanova, “Implementation of the Conclusions
and Recommendations for Follow-on Actions Adopted at the 2010 NPT Review Conference Disarmament: Actions 1-22,” James Martin Center for Nonproliferation Studies, April 2015, p. 2, https://www.nonproliferation.org/wp-content/uploads/2015/04/150415_cns_monitoring_report.pdf;
Jayantha Dhanapala and Sergio Duarte, “Is There a Future for the NPT?”
Arms Control Today, July/August 2015; Reaching Critical Will, “The NPT Action Plan Monitoring Report,” March 2015, http://www.reachingcriticalwill.org/images/documents/Publications/2010-Action-Plan/NPT_Action_Plan_2015.pdf.
25. Juan Manuel Gomez Robledo, Statement of Mexico to the 2015 NPT
Review Conference, April 27,
26. Nozipho Mxakato-Diseko, Statement of South Africa to the 2015
NPT Review Conference, April 29,
27. See David A. Koplow, “Bonehead Non-Proliferation,” The Fletcher
Forum of World Affairs, Vol. 17, No. 2 (1993): 150.
28. See Shervin Taheran, “Kerry, Moniz Urge Review of CTBT,” Arms
Control Today, November 2015.
29. For more on these approaches, see International Law and Policy
Institute and UN Institute for Disarmament Research, “A Prohibition on Nuclear Weapons: A Guide to the Issues,” February 2016, http://unidir.ilpi.org/wp-content/uploads/2016/02/ILPI-UNIDIR-prohibition-study-PRINT.pdf.
30. See UN General Assembly, A/RES/70/33, December 11, 2015.
Gro Nystuen is director of the Center for International Humanitarian Law at the International Law and Policy Institute in Oslo. Kjølv Egeland is an adviser at the center and a doctoral candidate in international relations at the University of Oxford, Wadham College.
Posted: March 3, 2016
Los Alamos team visits Japan to gain perspective on atomic bombings
Posted: Thursday, March 24, 2016 10:55 pm | Updated: 12:15 am, Fri Mar 25, 2016.
By Rebecca Moss
The New Mexican
On Aug. 7, 1945, the day after the U.S. dropped the an atomic bomb on Japan, TheNew York Times ran side-by-side stories on its front page that described the cities most impacted by nuclear warfare: Hiroshima on one end of the world, and on the other, the “hidden cities” across America where the bombs had been built in secrecy.
“None of these people … had the slightest idea of what they were making,” the Times article said about Manhattan Project workers in those towns, including little-known Los Alamos, population 7,000, on top of a New Mexico mesa.
Despite the shared history between Los Alamos and the Japanese cities of Hiroshima and Nagasaki, where another bomb was dropped on Aug. 9, 1945, New Mexico residents “don’t hear a lot about the Japanese perspective,” said Judith Stauber, director of the Los Alamos Historical Museum.
On Thursday, Stauber, museum registrar Stephanie Yeamans and 16-year-old student intern Kallie Funk of Los Alamos High School flew to Japan to conduct research for a new exhibit that will explore connections created through World War II and the Manhattan Project.
The group will travel to Tokyo, Kyoto, Hiroshima and Nagasaki to meet with researchers, an atomic bomb survivor and the directors of both the Hiroshima Peace Memorial Museum and the Nagasaki Atomic Bomb Museum. “There is no precedent” for a trip like this, she said.
The idea for the trip, two years in the making, became a reality through a $10,000 grant from the National Trust for Historic Preservation and has been supported by the New Mexico Japanese Citizens League. The exhibit, which will open in December, has a couple of working titles: Multiple Perspectives on the Atomic Bomb or New Mexican and Japanese Perspectives on the Atomic Bomb.
In addition to collecting data in Japan for the exhibit, Stauber plans to work with local Japanese-Americans to create a component exploring the internment camps in New Mexico during World War II, including one in Santa Fe. She plans to include oral histories and community art projects.
In Los Alamos, often referred to as the Atomic City and home of one of the nation’s largest science laboratories, colorful symbols of atomic energy adorn signs around town as proud reminders of the community’s roots in nuclear science. With an economy centered on Los Alamos National Laboratory, the community is one of the wealthiest in the nation.
In contrast, said Bo Jacobs, a researcher at the Hiroshima Peace Institute who plans to meet with Stauber and her team, the history of atomic energy is told in Japan through “people who were killed, who lost family members, who were injured.” The innovation of the bomb is expressed only in “its human toll” — at least 129,000 people and possibly more than 200,000.
Jacobs said in an email that for the U.S., the atomic bomb “is the story of scientific discovery, industrial development and great political and military decisions. … The Japanese are only statistics in the story.”
In the U.S. and in Japan, he said, stories of the war have been told in ways that downplay the horrific behaviors of both nations.
“In the Japanese story, it is often as if one day, a bomb drops,” he said.
News outlets in Japan reported after the first bomb dropped on Hiroshima that the nation was blindsided by the blast, saying leaflets dropped from the sky urging residents to “seek shelter” were insufficient warnings.
Americans, Jacob said, downplay “that we are talking about a war crime, an attack on a largely civilian population with a weapon of mass destruction.”
“The differences between the U.S. and the Japanese narratives of the attack — they couldn’t be more different,” Jacobs said.
Stauber said this gap in historical narratives is what she hopes the Los Alamos team can “start to process” through the upcoming exhibit at Fuller Lodge, a log-beam community hall once used to host guests during the Manhattan Project.
“What do we know, and how do we know it?” she said. “And how are we remembering?”
Truthout has re-posted my article from the Cairo Review of Global Affairs I sent out a few weeks ago in which I provide a comprehensive overview of Hillary Clinton’s Middle East policy. I examine not only her vote to authorize the Iraq War, but her continued defense of her vote and support for the war long after even many former war supporters had apologized and were calling for a withdrawal of U.S. forces. I look at her hawkish views towards Iran, her double-standards on nuclear non-proliferation, and her support for Arab dictatorships even in the throes of popular pro-democracy uprisings. I note her support for the right-wing Israeli government and her defense of Israeli settlements, as well as her attacks on the World Court, reputable international jurists, and human rights groups which have challenged Israeli violations of international humanitarian law. And I examine her role as Secretary of State in pushing for military intervention in Libya, Syria, and elsewhere, as well as her backing of Morocco’s illegal occupation and annexation of Western Sahara. In short, I make the case that a Hillary Clinton presidency means a shift to the right from President Obama’s more moderate approach and the likelihood of increased U.S. support for repression, occupation, and war in the greater Middle East. It may be the most important article I have written in years, so please consider taking the time to read it if you haven’t already: http://www.truth-out.org/news/item/35011-hillary-the-hawk