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 ‘Public Health’ Category
Tritium may not penetrate plastic but goes everywhere H20 goes in the body. It can cross the blood brain barrier, the placental barrier, and is a known carcinogen. Just because they don’t know what to do with it doesn’t mean it’s ok to just release it. Something the nuclear industry is perfectly aware of.
TOKYO — To dump or not to dump a little-discussed substance is the question brewing in Japan as it grapples with the aftermath of the nuclear catastrophe in Fukushima five years ago. The substance is tritium.
The radioactive material is nearly impossible to remove from the huge quantities of water used to cool melted-down reactors at the Fukushima Dai-ichi plant, which was wrecked by the massive tsunami in northeastern Japan in March 2011.
The water is still accumulating since 300 tons are needed every day to keep the reactors chilled. Some is leaking into the ocean.
Huge tanks lined up around the plant, at last count 1,000 of them, each hold hundreds of tons of water that have been cleansed of radioactive cesium and strontium but not of tritium.
Ridding water of tritium has been carried out in laboratories. But it’s an effort that would be extremely costly at the scale required for the Fukushima plant, which sits on the Pacific coast. Many scientists argue it isn’t worth it and say the risks of dumping the tritium-laced water into the sea are minimal.
Their calls to simply release the water into the Pacific Ocean are alarming many in Japan and elsewhere.
Rosa Yang, a nuclear expert at the Electric Power Research Institute, based in Palo Alto, California, who advises Japan on decommissioning reactors, believes the public angst is uncalled for. She says a Japanese government official should simply get up in public and drink water from one of the tanks to convince people it’s safe.
But the line between safe and unsafe radiation is murky, and children are more susceptible to radiation-linked illness. Tritium goes directly into soft tissues and organs of the human body, potentially increasing the risks of cancer and other sicknesses.
“Any exposure to tritium radiation could pose some health risk. This risk increases with prolonged exposure, and health risks include increased occurrence of cancer,” said Robert Daguillard, a spokesman for the U.S. Environmental Protection Agency.
The agency is trying to minimize the tritium from U.S. nuclear facilities that escapes into drinking water.
Right after the March 2011 disaster, many in Japan panicked, some even moving overseas although they lived hundreds of miles (kilometers) away from the Fukushima no-go zone. By now, concern has settled to the extent that some worry the lessons from the disaster are being forgotten.
Tritium may be the least of Japan’s worries. Much hazardous work remains to keep the plant stabilized, and new technology is needed for decommissioning the plant’s reactors and containing massive radioactive contamination.
The ranks of Japan’s anti-nuclear activists have been growing since the March 2011 accident, and many oppose releasing water with tritium into the sea. They argue that even if tritium’s radiation is weaker than strontium or cesium, it should be removed, and that good methods should be devised to do that.
Japan’s fisheries organization has repeatedly expressed concerns over the issue. News of a release of the water could devastate local fisheries just as communities in northeastern Japan struggle to recover from the 2011 disasters.
An isotope of hydrogen, or radioactive hydrogen, tritium exists in water form, and so like water can evaporate, although it is not known how much tritium escaped into the atmosphere from Fukushima as gas from explosions.
The amount of tritium in the contaminated water stored at Fukushima Dai-ichi is estimated at 3.4 peta becquerels, or 34 with a mind-boggling 14 zeros after it.
But theoretically collected in one place, it would amount to just 57 milliliters, or about the amount of liquid in a couple of espresso cups — a minuscule quantity in the overall masses of water.
To illustrate that point, Shunichi Tanaka, chairman of the Nuclear Regulation Authority, showed reporters a small bottle half-filled with blue water that was the equivalent of 57 milliliters.
Public distrust is running so high after the Fukushima accident that Tokyo Electric Power Co., or TEPCO, the utility that operates the Fukushima plant and oversees its decommissioning, has mostly kept quiet about the tritium, pending a political decision on releasing the water.
Privately, they say it will have to be released, but they can’t say that outright.
What will be released from Fukushima will be well below the global standard allowed for tritium in the water, say Tanaka and others favoring its release, which is likely to come gradually later this year, not all at once.
Proponents of releasing the tritium water argue that tritium already is in the natural environment, coming from the sun and from water containing tritium that is routinely released at nuclear plants around the world.
“Tritium is so weak in its radioactivity it won’t penetrate plastic wrapping,” said Tanaka.
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.
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?”
See 5 Years Living with #Fukushima — Report by International Physicians for Prevention of Nuclear War and Physicians for Social Responsibility. Go to http://bit.ly/1pgUvyl
Former Republic of the Marshall Islands Foreign Minister Tony de Brum and his legal team have been nominated for the 2016 Nobel Peace Prize.
Geneva-based International Peace Bureau nominated de Brum’s team on Jan. 26 for their work in the Marshall Islands’ filing of landmark lawsuits against nuclear-armed nations “for failing to comply with their obligations under international law to pursue negotiations for the worldwide elimination of nuclear weapons.”
During his term as foreign minister, de Brum also called attention to climate change as a global security risk issue before the United Nations.
De Brum is scheduled to visit Guam to be the keynote speaker at the Seventh Regional Conference on Island Sustainability, which will be co-hosted by the University of Guam and the University of Alaska Fairbanks on April 11 to 15 at the Lotte Guam Resort.
De Brum grew up on the island of Likiep during the 12-year period, through 1958, when the United States conducted 67 atomic and thermonuclear weapons testing in the Marshall Islands. As a 9-year-old, De Brum witnessed the “Bravo” test at Bikini Atoll, the largest-ever U.S. nuclear test that produced an explosion 1,000 times more powerful than the bomb dropped on Hiroshima, Japan, according to a UOG news release.
“These tests gave rise to lasting health and environmental problems for the Marshall Islanders,” the bureau stated.
“Their first‐hand experience of nuclear devastation and personal suffering gives legitimacy to their action and makes it especially difficult to dismiss,” the bureau’s nomination states.
(Pacific Daily News, February 15, 2016)
Consider what is said here by Alice Slater, Ron McCoy and Greg Mello. They want a treaty that would make nuclear weapons illegal. Favored by ICAN (International Campaign to Abolish Nuclear Weapons), this is now before the UN Open Ended Working Group (OEWG).
Jan 30 (1 day ago)
Some correspondence from the ICAN list about why we need to work on a treaty to ban the bomb, just as we have banned chemical and biological weapons, thus
filling the legal gap in the NPT and ICJ decision, at the upcoming UN Open Ended Working Group even in the nuclear weapons states, from Greg Mello of Los Alamos Study Group in response to Ron McCoy of IPPNW. Hope you will all get involved at some level. The way things are heating up now, with nuclear weapons forever, we have to do something and this is an excellent opportunity. A genuinely meaningful next step!! See http://www.icanw.org Alice
From: Greg Mello [mailto:email@example.com]
Sent: Saturday, January 30, 2016 8:55 AM
To: Alice Slater
Subject: Fwd: RE: [ICAN] Perspectives on the 2016 OEWG, now beginning
A ban treaty would be the natural culmination of the decades of brilliant civil society work that have brought us to this point.
Such a treaty would be voluntary and non-coercive, yet ever more normative as more countries joined. It would grow in importance only in the most democratic manner. It would affect nuclear arsenals in an indirect and therefore flexible manner, and only according to the evolving unique security circumstances of each state. It would not conflict with any existing or future disarmament or nonproliferation agreement or treaty, but rather would support them all. It would not add new obligations for NPT non-nuclear weapon states that are not in nuclear security relationships, which is most of the countries in the world. All these states have nothing to lose in a ban — apart from whatever nasty forms of leverage some nuclear weapon states (like the U.S.) and their allies might try to apply.
A ban would stimulate and empower civil society in many countries, with benefits across humanitarian issues.
Here in the U.S., a ban treaty would tremendously empower everything we are doing against nuclear weapons. I would like to explain this further because many people think that a ban would have no effect on U.S. policy, given that the U.S. won’t sign it.
Nuclear policy in the U.S. is not made in a smooth, top-down, confident manner. There are many reversals and problems. The nuclear weapons establishment has many adversaries inside government and outside, not least its own bureaucrats and fat-cat contractors, who struggle to hide the scandals and ongoing fiascos. Key mid-career people are quitting early at facilities we know from job frustration, taking their knowledge and experience with them. Retirements left one plant (Y-12) without knowledge of how to make a critical non-commercial material at industrial scale. At the only U.S. nuclear weapons assembly plant, in Texas, snakes and mice infest one or more key buildings, which date from World War II. Rain comes through the roofs and dust through the doors. In Oak Ridge, huge pieces of concrete have fallen from ceilings and deep cracks have appeared in a structural beam in a key building. All this infrastructure may, or may not be, fully replaced. It is contested in many cases, difficult, and expensive.
At Los Alamos, the main plutonium facility has been largely shut down for almost three years because of inadequate safety and staffing. Approximately seven attempts have been made since 1989 to construct a new factory complex for producing plutonium warhead cores — all have failed. It might just be that nuclear weapons production, in the final analysis, is not compatible with today’s safety and environmental expectations and laws. Transmission of nuclear weapons ideology and knowledge under these conditions is a difficult challenge.
A growing ban would reach deep into the human conscience, affecting everything, including career decisions. It would affect corporate investments as well as congressional enthusiasm for the industry. I have spoken with nuclear weapons CEOs who know it is a “sunset” field with only tenuous support in the broader Pentagon, despite all the nuclear cheer-leading we see. Modernization of the whole nuclear arsenal is very likely unaffordable, even assuming current economic conditions hold (they won’t).
A ban would also affect the funding, aims, and structure of the U.S. nonprofit universe and think-tank “ecosystem,” as well as media interest and coverage.
Beyond all this, I believe a ban would also help decrease popular support in the U.S. for war and war expenditures in general. Why? There is a tremendous war-weariness in the U.S., right alongside our (real, but also orchestrated) militarism. A growing ban on nuclear weapons would be a powerful signal to political candidates and organizations that it is politically permissible to turn away from militarism somewhat, that there is something wrong with the levels of destruction this country has amassed and brandished so wildly and with such deadly and chaotic effects. Ordinary people here in the U.S. are seeing greater and greater austerity and precarity. They work extremely hard and have less and less to show for it. Polls (decades of them) show the public has never really supported the scale of nuclear armaments we have. One 1990s poll disclosed that most Americans think we have more than ten times fewer warheads than we actually do, more like the U.K., France, and China! Our economy is in bad shape and our infrastructure is visibly declining, sometimes with fatal results. A ban could help this benighted country recognize its folly, at least to some degree. It would be a wake-up call signalling that widely-held U.S. assumptions about our place in the world might need just a teensy bit of adjustment.
I hope this helps fill in the picture somewhat for those far away who may not see why a ban would be powerful here in the U.S.
The case for such a simple, totally flexible, and powerful treaty, with relatively low diplomatic cost for most states, is to our eyes unassailable.
On 1/28/2016 11:48 PM, Ronald McCoy wrote:
It is well to be reminded by Greg and Trish of the decades-long machinations of the nuclear weapon states (NWS) and their allies.
Only too well do we know how they manipulated us through the false NPT process. They will once again try to do the same in the OEWG.
The NWS are well aware of the consequences of a treaty to ban nuclear weapons on humanitarian grounds, making them illegitimate and therefore primed for elimination.
Negotiations for a ban treaty cannot possibly be made “universal” when nine states possess nuclear weapons and are not prepared to give them up. We should go direct to formulating a ban treaty, irrespective of the views and ploys of the NWS and their cohorts.
On Fri, Jan 29, 2016 at 3:11 AM, Greg Mello <firstname.lastname@example.org> wrote:
Dear colleagues –
As the first session of the Open-Ended Working Group (OEWG) begins, I wanted to convey our profound gratitude to everyone who has helped advance the humanitarian perspective on nuclear weapons and the prospects for a treaty-based ban on (possessing, developing, manufacturing, transferring, and using) such weapons. Tremendous progress has been made.
We can’t be there but wanted to send a few perspectives about this process as it begins.
There are only 15 working days allocated for the OEWG. We can be sure that the nuclear weapon states and their weasel allies will try to de-focus, dilute, delay, distract, and divide our efforts – now, during the sessions, between the sessions, and afterwards.
Some nuclear weapon states, the U.S. in particular, will promise the moon to prevent negotiations that could lead to any effective disarmament measure, including the very dangerous ban treaty. In the 20 years since the NPT was indefinitely renewed, none of those promises has meant anything.
Empty promises flavored with delicious idealism are a specialty of this U.S. administration. “Mirages,” one author called them. “A world free of nuclear weapons” is one of these empty and dangerous platitudes.
There will be plenty of efforts to broaden the discussion, say to “the risks and challenges ahead,” or to induce irrelevant technical discussions (e.g. of verification), or to otherwise rehash terrain traversed repeatedly over past decades.
Another form of distraction is speculation about a treaty to guide the details of a hypothetical future multilateral disarmament process. Newsflash: the nuclear weapon states will not sign such a treaty — not now, or for the foreseeable future.
There surely also will be efforts, well-intentioned and otherwise, that have the effect of running down the clock.
The nuclear weapon states believe their arsenals are fully legitimate – fully supported not just by international law but also by reason, morality, and their own governments’ responsibilities to prevent war. That is how they see it. Why should there be good faith negotiations to get rid of something as legitimate and important as nuclear weapons (in their view)? So there haven’t been any such negotiations, and won’t be.
Nothing significant will be possible in disarmament diplomacy until this perceived legitimacy is removed.
The voluminous testimony, legal analysis, and activism that has been done so well since the Cold War has not accomplished this.
Facts, no matter how brilliantly they are presented, haven’t availed – and won’t.
The dictates of public conscience, no matter how voluminous, prestigious, and authentic the appeals, haven’t availed – and won’t.
Declarations by “the great and the good” haven’t availed – and won’t.
Legal decisions haven’t availed – and won’t.
Mere gestures by states which cost little and bind nobody – U.N. resolutions, for example – haven’t availed – and won’t.
Why? Because none of these excellent activities are consequential – that is, binding – decisions taken by states for the purpose of making nuclear weapons illegal.
Only states can remove the present de facto legitimacy, which is very real to the nuclear weapon states and therefore to everybody, and this can only be done by making nuclear weapons illegal.
States can only accomplish this through law, conventional law, which is to say by a treaty that prohibits nuclear weapons. By definition, there is no other way.
Nuclear weapons will be legal – de facto legal, and de jure legal as well as morally necessary in the eyes of those who possess them – until they are made illegal.
This work of delegitimation has to be done by non-nuclear weapon states, not by nuclear weapon states. The latter will resist.
Without a treaty on the table, the various well-intentioned and indeed excellent statements by diplomats are really just opinions and postures.
Given the short working time of the OEWG, I hope that all involved will make every effort to help leading states focus on negotiating, or more realistically laying the groundwork for negotiating, a treaty prohibiting nuclear weapons.
Anything else will play into the hands of the nuclear weapon states and their weasel allies – again, by de-focusing, diluting, delaying, distracting, and dividing our efforts.
If the OEWG fails to achieve a clear path to make nuclear weapons illegal, there are other ways forward.
We think the 30th anniversary of the Reykjavik summit (October 11-12, 1986) would be a good time to unveil a ban treaty for signature.
The nuclear weapon states obviously oppose prohibiting nuclear weapons and can play no constructive part in negotiations. These states have never played any constructive part in multilateral disarmament negotiations over the past 25 years, full stop. Their weasel allies generally also have opposed and will oppose practical disarmament measures, for now.
So calls to make negotiations “universal” are quite premature and misplaced.
Godspeed to everybody. Our thoughts and prayers are with those of you who are there.
Greg and Trish, for the Los Alamos Study Group
Los Alamos Study Group