Nuclear Age Peace Foundation

Category: International Issues

The Criminality of Nuclear Deterrence

Part II of II

Chapter I PURPOSES AND PRINCIPLES Article I

The Purposes of the United Nations are:

1. To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace;

2. To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace;

3. To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion; and

4. To be a centre for harmonizing the actions of nations in the attainment of these common ends.

Certainly, all of these Purposes of the United Nations would be defeated and set at naught in the event that nuclear weapons were actually used.

In the above-quoted Paragraph 48 of the Advisory Opinion the Court appears to condemn nuclear deterrence once again in no uncertain terms, and to include within this rubric the possession of nuclear weapons with the intention and imminent capability to use them. Hence, such possession of nuclear weapons is clearly illegal and, I might add, criminal as well. This conclusion by the World Court as to the illegality of the possession of nuclear weapons goes far beyond anything argued in most of the scholarly literature produced on this subject during the past two decades. For this reason, Paragraph 48 stands as a resounding vindication to that handful of courageous scholars who have taken the position that the possession of nuclear weapons is illegal despite enduring the guffaws and ridicule of their so-called colleagues.

Nuclear Weapons and the Laws of War

In regard to the defense of anti-nuclear resisters, the next critical passage of the World Court’s Advisory Opinion becomes Paragraph 77:

77. All this shows that the conduct of military operations is governed by a body of legal prescriptions. This is so because “the right of belligerents to adopt means of injuring the enemy is not unlimited” as stated in Article 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. The St. Petersburg Declaration had already condemned the use of weapons “which uselessly aggravate the suffering of disabled men or make their death inevitable”. The aforementioned Regulations relating to the laws and customs of war on land, annexed to the Hague Convention IV of 1907, prohibit the use of “arms, projectiles, or material calculated to cause unnecessary suffering” (Art. 23).

It is clear, therefore, that the laws of war likewise apply to the threat and use of nuclear weapons.

Nuclear weapons are “unlimited” in their effects. Nuclear weapons also uselessly aggravate the suffering of disabled men and women and make their deaths inevitable. Nuclear weapons also cause unnecessary suffering.

Hence, t. The United States government is a contracting party to Hague Convention No. IV of 1907 and its annexed Regulations, which constitute a “treaty” and thus the “supreme Law of the Land” under Article VI of the United States Constitution. Therefore, current U.S. nuclear deterrence policies stand in anticipatory breach of Hague Convention No. IV and are therefore illegal and criminal.

Nuclear Deterrence and International Humanitarian Law

Paragraph 78 of the Advisory Opinion is directly on point with respect to maintaining the illegality of the threat and use of nuclear weapons, including therein nuclear deterrence:

78. The cardinal principles contained in the texts constituting the fabric of humanitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction between combatants and non-combatants; States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets. According to the second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In application of that second principle, States do not have unlimited freedom of choice of means in the weapons they use.

The Court would likewise refer, in relation to these principles, to the Martens Clause, which was first included in the Hague Convention II with Respect to the Laws and Customs of War on Land of 1899 and which has proved to be an effective means of addressing the rapid evolution of military technology. A modern version of that clause is to be found in Article 1, paragraph 2, of Additional Protocol I of 1977, which reads as follows:

“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”

In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary suffering caused to combatants, that is to say, a harm greater than that unavoidable to achieve legitimate military objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.

The World Court clearly said: “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets.” Yet, to the contrary, U.S. strategic nuclear weapons systems do indeed make civilians the direct object of attack, and because of their incredible explosive power are also incapable of distinguishing between civilians and military targets.

The Court then goes on to say: “According to the second principle, it is prohibited to cause unnecessary suffering to combatants.” But clearly the use of nuclear weapons would cause unnecessary suffering to both combatants and to civilians, the latter of whom remain absolutely protected at all times. The well-documented human suffering in the aftermath of the atomic bombings of Hiroshima and Nagasaki provides conclusive evidence of the validity of this proposition.

The Court concludes Paragraph 78 by stating: “If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law.” In other words, nuclear deterrence itself is illegal. For example, a nuclear weapons state such as the United States cannot lawfully threaten mass extermination when mass extermination itself would be clearly illegal and criminal. Here once again, the World Court implicitly condemns the whole doctrine of nuclear deterrence as being illegal and, I might add, criminal.

Referring explicitly to the Hague Conventions and the Geneva Conventions in Paragraph 79 of the Advisory Opinion, the World Court held as follows: “Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.” Of course, the United States government has ratified Hague Convention No. IV of 1907 and the Four Geneva Conventions of 1949 and so is bound to observe them a fortiori.

Nuclear Weapons and Nuremberg Accountability

In this regard, it is also significant that in Paragraph 80 of the Advisory Opinion, the World Court invokes and affirms the authority of the 1945 Nuremberg Judgment during the course of analyzing the legality of the threat and use of nuclear weapons under international humanitarian law. Furthermore, in Paragraph 81 of the Advisory Opinion, the World Court repeats with implicit approval the official assertion by the United Nations Secretary General that the Nuremberg Charter of 8 August 1945, inter alia, represents “‘…part of conventional international humanitarian law which has beyond doubt become part of international customary law…’” Thus, in Paragraphs 80 and 81 of the Advisory Opinion, the World Court deliberately and directly raises the specter of personal criminal responsibility under the Nuremberg Charter, the Nuremberg Judgment, and I might add the Nuremberg Principles, for government decision-makers bearing command responsibility, aiding and abetting, or otherwise complicit in their country’s plans for the threat and use of nuclear weapons. Since I have already discussed these matters at great length elsewhere, I will not bother to repeat any of that analysis here.

Nuclear Weapons and International Humanitarian Law

The Court then turns directly to the question of the applicability of international humanitarian law to the threat and use of nuclear weapons and concludes in Paragraphs 85, 86 and 87 that the aforementioned principles of international humanitarian law apply to nuclear weapons just as they apply to any other weapon of warfare:

85. …In the view of the vast majority of States as well as writers there can be no doubt as to the applicability of humanitarian law to nuclear weapons.

86. The Court shares that view. … In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law:

….

None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without regard to humanitarian constraints. Quite the reverse; it has been explicitly stated,

“Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons” (Russian Federation, CR 95/29, p. 52);

“So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello” (United Kingdom, CR 95/34, p. 45); and

“The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons — just as it governs the use of conventional weapons” (United States of America, CR 95/34, p. 85.)

87. Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.

Thus, consistent with its longstanding position going back to the U.S. Army Field Manual 27-10 of 1956, the United States government expressly conceded before the World Court that international humanitarian law applies to the use of nuclear weapons. But as the World Court has consistently pointed out so far in this Advisory Opinion, it would be difficult to imagine any circumstances in which the threat and use of nuclear weapons would not violate international humanitarian law. Once again, the conclusion becomes inexorable that the threat and use of nuclear weapons, including therein nuclear deterrence, is illegal and, I might add, criminal.

Violation of the International Laws of Neutrality

The World Court then turned to the question of whether or not the threat and use of nuclear weapons violate the international laws of neutrality. Generally put, the essence of the international laws of neutrality can be found in Hague Convention No. V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 1907, and Hague Convention No. XIII Respecting the Rights and Duties of Neutral Powers in Naval War of 1907. The United States government is a contracting party to both Hague Neutrality Conventions. In addition, both of the Hague Neutrality Conventions of 1907 constitute customary international law on the rules of neutrality in wartime.

No point would be served by reviewing the contents of these two treaties in detail. Suffice it to say here that their basic requirement is that belligerents are bound to respect the territory and the sovereign rights of neutral states during wartime. As Article 1 of Hague Convention No. V. Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land of 1907 put it: “The territory of neutral Powers is inviolable.” In Paragraph 89 of the Advisory Opinion, the World Court found that these principles of neutrality apply “…to all international armed conflict, whatever type of weapons might be used.” In other words, states must respect the international laws of neutrality and the territory and the sovereign rights of neutral states when it comes to the threat and use of nuclear weapons.

But this simply cannot be done given the devastating effects of nuclear weapons upon the surrounding environment irrespective of national borders; given the transnational effects of nuclear fallout; and given the transgenerational effects of nuclear radiation. In any event, it is certainly clear that the nuclear weapons states have paid absolutely no attention whatsoever to the customary or conventional international laws of neutrality when it comes to formulating their currently existing plans for the threat and use of nuclear weapons, including therein nuclear deterrence. In other words, the nuclear weapons states are currently threatening to violate the international laws of neutrality and thus stand in anticipatory breach of these two Hague Neutrality Conventions and the customary international laws of neutrality. Once again, this is certainly the type of ongoing inchoate criminal activity that anti-nuclear resisters have the right to oppose by necessary and proportionate means.

Furthermore, many states such as the United States have enacted domestic implementing legislation that is purposefully designed to incorporate into their municipal legal systems the customary and conventional international laws of neutrality on pain of criminal penalty for their violation. Once again, anti-nuclear resisters have the right to oppose such ongoing inchoate criminal activities by their own government officials acting in gross violation of customary international law, international treaties, and domestic statutes that were expressly intended to criminalize such behavior. Papers to that effect have already been drawn up by my friend, former client, Plowshares resister, convicted felon, fellow graduate of the Harvard Law School, fellow attorney, and co-counsel Katya Komisaruk, Esquire, of Oakland, California–a real American Hero!

Conclusion on International Humanitarian Law and Nuclear Weapons

In Paragraph 91 of the Advisory Opinion, the World Court referred to, but refused to endorse, the legality of even “…the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas…” as advocated by the United Kingdom and the United States during the course of these proceedings. And in Paragraph 94 of the Opinion, the World Court even goes so far as to expressly refuse to endorse “…the legality of the use of nuclear weapons under certain circumstances, including the ‘clean’ use of smaller, low yield, tactical nuclear weapons…” Here the Court’s analysis implies that even such “limited” uses of tactical nuclear weapons would have to comply with international humanitarian law and the international laws of neutrality, assuming that could be done. Even then, the legality vel non of the tactical use of low yield nuclear weapons would also depend upon “…whether such limited use would not tend to escalate into the all-out use of high yield nuclear weapons.” (Advisory Opinion, Paragraph 94.) Once again, it is difficult to imagine any such circumstances.

The Court utters its final condemnation of nuclear weapons in Paragraph 95 of the Opinion as follows:

…Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seem scarcely reconcilable with respect for such requirements. …

So once again the World Court expressly recognizes the proposition that it is difficult to imagine any circumstances where the threat and use of nuclear weapons would be lawful.

The World Court’s Non-Pronouncement in Paragraph 97

Originally, the General Assembly had asked the World Court to answer the following question: “Is the threat or use of nuclear weapons in any circumstances permitted under international law?” The World Court finally got around to answering this precise question in Paragraph 95 of the Advisory Opinion by employing the following language:

…Nevertheless, the Court considers that it does not have sufficient elements to enable it to conclude with certainty that the use of nuclear weapons would necessarily be at variance with the principles and rules of law applicable in armed conflict in any circumstance.

For obvious reasons, the World Court could not possibly have envisioned and considered all the circumstances in which nuclear weapons might conceivably be used. Consequently, the Court observed in Paragraph 97 of the Advisory Opinion that “…it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.” This is because of the factual uncertainties surrounding this hypothetical conjecture that had been mentioned in Paragraph 95 of the Advisory Opinion as quoted above.

I will discuss the Court’s non-pronouncement mentioned in Paragraph 97 of the Advisory Opinion in more detail below when analyzing the Opinion’s dispositif. Suffice it to say here that in this entire Advisory Opinion, the World Court did not tolerate, or approve, or sanction, or condone any threat or use of nuclear weapons for any reason. The Court simply refused to express “…a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake…” because of the factual uncertainties surrounding this purely hypothetical conjecture. Like any other court in the world today, the World Court operates on two basic principles, inter alia: Never say never! And: It all depends upon the facts!

Nuclear Disarmament

In Paragraph 99 of the Advisory Opinion, the Court quotes Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) as follows:

“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”

The Court interpreted NPT Article VI to contain a twofold obligation (1) to pursue and (2) to conclude negotiations for nuclear disarmament in good faith as follows:

….

The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result — nuclear disarmament in all its aspects — by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith.

See Advisory Opinion, para. 99.

And in Paragraph 100 of the Advisory Opinion, the Court clearly states that: “This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community.”

Since 1968 it cannot be said that the world’s nuclear weapons states have ever pursued negotiations on nuclear disarmament in good faith. Indeed, since 1968, except perhaps for the 1986 Gorbachev proposals, not one of the nuclear weapons states has ever given any serious consideration to their solemn legal obligation of nuclear disarmament, let alone general and complete disarmament, as required and called for by NPT Article VI. Hence, all of the nuclear weapons states currently stand in material breach of these twin obligations under NPT Article VI and customary international law as authoritatively determined by the World Court itself in Paragraph 99 of its Advisory Opinion.

The Dispositif

The Court then issued its formal rulings in Paragraph 105 of the Advisory Opinion, the so-called “dispositif.” I will not bother to repeat or analyze all of its elements here. But for the purposes of defending anti-nuclear resisters the critical provisions of the dispositif will be discussed below. For the sake of convenience I will first examine these “unanimous” rulings adopted by the International Court of Justice in the dispositif of this Advisory Opinion.

Unanimous Ruling on the U.N. Charter

In Paragraph 105(2)(C) of the Opinion the Court ruled unanimously that: “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful;”

In his Dissenting Opinion at page 3, Judge Weeramantry interpreted Paragraph 105(2)(C) of the Advisory Opinion as follows:

(iv) Paragraph 2(C) – (Unanimous)

The positive features of this paragraph have already been noted. The Court, in this paragraph, has unanimously endorsed Charter-based pre-conditions to the legality of nuclear weapons, which are diametrically opposed to the results of the use of the weapon. I thus read paragraph 1(C) [sic: must read “2(C)” because there is no 1(C)] of the dispositif as rendering the use of the nuclear weapon illegal without regard [sic: add “to”] the circumstances in which the weapon is used – whether in aggression or in self defence, whether internationally or internally, whether by individual decision or in concert with other nations. A unanimous endorsement of this principle by all the judges of this Court takes the principle of illegality of use of nuclear weapons a long way forward from the stage when there was no prior judicial consideration of legality of nuclear weapons by any international tribunal.

Those contending that the use of nuclear weapons was within the law argued strongly that what is not expressly prohibited to a state is permitted. On this basis, the use of the nuclear weapon was said to be a matter on which the state’s freedom was not limited. I see the limitations laid down in paragraph 1(C) [sic: must read “2(C)” because there is no 1(C)] as laying that argument to rest.

In this passage, Judge Weeramantry has provided us with an authoritative interpretation of Paragraph 105(2)(C) not only because he is a sitting Judge of the World Court but also because he is one of the world’s leading experts on nuclear weapons and international law.

The import of this unanimous ruling by the World Court in Paragraph 105(2)(C) of the Advisory Opinion should be crystal clear by now. It is almost impossible to imagine any threat or use of nuclear weapons that would be compatible with Article 2(4) of the United Nations Charter and that meets all the requirements of Article 51, especially the principles of necessity and proportionality. Indeed, in their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence, the world’s nuclear weapons states have paid absolutely no meaningful attention whatsoever to the requirements of Article 2(4) and Article 51 of the U.N. Charter, and especially the principles of necessity and proportionality. Hence, all of the current plans for the threat and use of nuclear weapons by the world’s nuclear weapons states, including therein nuclear deterrence, are “unlawful” and, I might add, criminal.

Unanimous Ruling on International Humanitarian Law

In Paragraph 105(2)(D) of the Opinion’s dispositif, the World Court ruled unanimously that: “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;”

In his Dissenting Opinion at page 3, Judge Weeramantry interpreted Paragraph 105(2)(D) of the Advisory Opinion as follows: (v) Paragraph 2(D) – (Unanimous)

This paragraph, also unanimously endorsed by the Court, lays down the further limitation of compatibility with the requirements of international law applicable in armed conflict, and particularly with the rules of international humanitarian law and specific treaty obligations.

There is a large array of prohibitions laid down here.

My Opinion will show what these rules and principles are, and how it is impossible, in the light of the nature and effects of nuclear weapons, for these to be satisfied.

If the weapon is demonstrably contrary to these principles, it is unlawful in accordance with this paragraph of the Court’s Opinion.

Once again, in this passage Judge Weeramantry has provided us with an authoritative interpretation of Paragraph 105(2)(D) not only because he is a sitting Judge of the World Court, but also because he is one of the world’s leading experts on nuclear weapons and international law.

The import of this unanimous ruling by the World Court in Paragraph 105(2)(D) of the Advisory Opinion should also be crystal clear by now. It is almost impossible to imagine any threat or use of nuclear weapons that would not grossly violate the principles and rules of international humanitarian law, whether customary or conventional. Indeed, in their current plans for the threat and use of nuclear weapons, including therein nuclear deterrence, the nuclear weapons states have paid absolutely no meaningful attention whatsoever to the requirements of international humanitarian law, whether customary or conventional. Hence, all of the current plans for the threat and use of nuclear weapons by the world’s nuclear weapons states, including therein nuclear deterrence, are illegal and, I might add, criminal.

Unanimous Ruling on Nuclear Disarmament

Finally, in Paragraph 105(2)(F) of the Opinion’s dispositif, the World Court ruled unanimously: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” Quite obviously, since 1968 not one of the nuclear weapons states has discharged these twin obligations of both customary and conventional international law. Consequently, all of the world’s nuclear weapons states currently stand in material breach of NPT Article VI as well as these identical twin obligations under customary international law.

The Court’s Ruling on the Threat and Use of Nuclear Weapons

The World Court then ruled on the legality of the threat or use of nuclear weapons in Paragraph 105(2)(E) of the Advisory Opinion’s dispositif as follows:

E. By seven votes to seven, by the President’s casting vote,

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;

IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczgh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;

AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.

According to Article 55 of the ICJ Statute, in the event of a tie in the number of votes by the World Court Judges, it is for the President of the Court to cast the deciding vote. For this reason, President Bedjaoui’s separate Declaration appended to the Opinion bears special importance for the interpretation of this component of the dispositif.

According to President Bedjaoui, Paragraph 105(2)(E) of the Advisory Opinion’s dispositif must not “in any way be interpreted as leaving the way open to the recognition of the lawfulness of the threat or use of nuclear weapons.” See Declaration of President Bedjaoui, at para. 11. In this regard, President Bedjaoui drew attention to the fact that in Paragraph 79 of the Advisory Opinion, the Court had already held that the fundamental rules of international humanitarian law (i.e., the Hague Conventions and the Geneva Conventions) “…constitute intransgressible principles of international customary law.” In other words, since these principles are “intransgressible,” to use the precise word of the Court, then they can never be violated, even in extreme circumstances, when the very survival of the state is at stake. See Declaration of President Bedjaoui, at para. 21.

The Importance of Paragraph 104

Likewise, in interpreting this element of the dispositif, it is crucial to recall to mind once again the text of Paragraph 104 of the Advisory Opinion, which immediately precedes the entirety of the dispositif found in Paragraph 105, as follows:

104. At the end of the present Opinion, the Court emphasizes that its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court above (paragraphs 20 to 103), each of which is to be read in the light of the others. Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance.

In other words, the elements of the dispositif set forth in Paragraph 105(2)(E) must be read and interpreted by reference to Paragraphs 20 to 103 of the Advisory Opinion, which have already been extensively analyzed above.

Therefore, it would be an incorrect interpretation of the Advisory Opinion to focus simply upon Paragraph 105(2)(E) of the dispositif. Rather, by means of Paragraph 104 the Court makes it crystal clear that the dispositif, including Paragraph 105(2)(E), does not mean to take back or call into question any of its findings set forth in Paragraphs 20 to 103. Paragraphs 20 to 103 “retain, in the view of the Court, all their importance” despite the non-pronouncement found in Paragraph 105(2)(E) of the Advisory Opinion.

Interpreting Paragraph 105(2)(E)

In his Dissenting Opinion Judge Weeramantry criticized the entirety of Advisory Opinion Paragraph 105(2)(E) as follows:

(ii) Paragraph 2(E) – (7 votes to 7. Casting vote in favour by the President)

I am in fundamental disagreement with both sentences contained within this paragraph.

I strongly oppose the presence of the word “generally” in the first sentence. The word is too uncertain in content for use in an Advisory Opinion, and I cannot assent to a proposition which, even by remotest implication, leaves open any possibility that the use of nuclear weapons would not be contrary to law in any circumstances whatsoever. I regret the presence of this word in a sentence which otherwise states the law correctly. It would also appear that the word “generally” introduces an element of internal contradiction into the Court’s Opinion, for in paragraphs 2(C) and 2(D) of the Court’s Opinion, the Court concludes that nuclear weapons must be consistent with the United Nations Charter, the principles of international law, and the principles of humanitarian law, and, such consistency being impossible, the weapon becomes illegal.

The word “generally” admits of many meanings, ranging through various gradations, from “as a general rule; commonly”, to “universally; with respect to all or nearly all”. [Footnote omitted.] Even with the latter meaning, the word opens a window of permissibility, however narrow, which does not truly reflect the law. There should be no niche in the legal principle, within which a nation may seek refuge, constituting itself the sole judge in its own cause on so important a matter.

The main purpose of this Opinion is to show that, not generally but always, the threat or use of nuclear weapons would be contrary to the rules of international law and, in particular, to the principles and rules of humanitarian law. Paragraph 2(E) should have been in those terms, and the Opinion need have stated no more.

The second paragraph of 2(E) states that the current state of international law is such that the Court cannot conclude definitely whether the threat or use of the weapon would or would not be lawful in extreme circumstances of self defence. It seems self-evident to me that once nuclear weapons are resorted to, the laws of war (the ius in bello) take over, and that there are many principles of the laws of war, as recounted in this Opinion, which totally forbid the use of such a weapon. The existing law is sufficiently clear on this matter to have enabled the Court to make a definite pronouncement without leaving this vital question, as though sufficient principles are not already in existence to determine it. All the more should this uncertainty have been eliminated in view of the Court’s very definite findings as set out earlier.

See Dissenting Opinion of Judge Weeramantry, at pp. 2-3. Once again, Judge Weeramantry’s comments constitute an authoritative interpretation of Paragraph 105(2)(E) because he is a sitting Judge of the World Court and also because he is one of the world’s leading experts on nuclear weapons and international law.

The First Paragraph of Paragraph 105(2)(E)

Quite obviously, there should not be any problem interpreting the meaning of the first paragraph of Paragraph 105(2)(E):

It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

…. Notice that the World Court expressly found that both “the threat or use of nuclear weapons would generally be contrary to the rules of international law…” In other words, nuclear deterrence itself “would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law…” Here I might add that since nuclear deterrence violates the laws of war and international humanitarian law, nuclear deterrence is thus criminal.

Likewise, in this regard, Judge Shi Jiuyong (from China, a nuclear weapons state) points out in his Declaration that nuclear deterrence has “no legal significance.” Similarly, on page 2 of his Declaration Judge Ferrari Bravo (from Italy, allied with three nuclear weapons states in the NATO Alliance) states that nuclear deterrence has no juridical value, and observes: “On pourrait arriver à dire que l’on est en présence d’un anti-droit, si on pense aux effets qu’elle a eus sur la Charte des Nations Unies.” In other words, nuclear deterrence is “anti-law,” that is the very negation of international law and especially of the United Nations Charter.

In a similar vein, Judge Fleischhauer (from Germany, allied with three nuclear weapons states in the NATO Alliance) states in Paragraph 2 of his Separate Opinion: “The nuclear weapon is, in many ways, the negation of the humanitarian considerations underlying the law applicable in armed conflict and the principle of neutrality.”

President Bedjaoui made a similar observation in Paragraph 20 of his Declaration: “…Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. The existence of nuclear weapons is therefore a challenge to the very existence of humanitarian law. …Nuclear war and humanitarian law seem by consequence to be two antitheses which exclude each other radically, the existence of the one necessarily supposes the inexistence of the other.”

Simply put, nuclear weapons are to international law what the so-called Anti-Christ is to the Christian religion. Indeed, I personally know many devout Christians who sincerely believe that nuclear weapons are the Anti-Christ. Typically, anti-nuclear resisters oppose nuclear weapons because of a mixture of religious, moral, and legal considerations. Their admixture of motivations is given legal significance by the so-called Martens Clause as set forth, for example, in the Preamble to Hague Convention No. IV Respecting the Laws and Customs of War on Land of 18 October 1907, to which the United States government is a contracting party:

Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience.

Certainly the dictate of the public conscience around the world is against the threat and use of nuclear weapons. As Judge Shahabuddeen put the matter on page 27 of his Dissenting Opinion:

In the result, on the basis of what the Court finds to be the state of the public conscience, it will be able to say whether the Martens Clause operates to prohibit the use of nuclear weapons in all circumstances. On the available material, it would be open to the Court to hold that the Clause operates to impose such a prohibition.

Interpreting The Second Paragraph of Paragraph 105(2)(E) of the Advisory Opinion

The real problem with Paragraph 105(2)(E) of the Advisory Opinion comes from the proper interpretation to be accorded its second paragraph:

….

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;

At the very outset of his Dissenting Opinion Judge Koroma (of Sierre Leone) had the following observations to make about the second paragraph of Paragraph 105(2)(E):

It is a matter of profound regret to me that I have been compelled to append this Dissenting Opinion to the Advisory Opinion rendered by the Court, as I fundamentally disagree with its finding – secured by the President’s casting vote – that:

“in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”.

This finding, in my considered opinion, is not only unsustainable on the basis of existing international law, but, as I shall demonstrate later, is totally at variance with the weight and abundance of material presented to the Court. The finding is all the more regrettable in view of the fact that the Court had itself reached a conclusion that:

“the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law”.

A finding with which I concur, save for the word “generally”. It is my considered opinion based on the existing law and the available evidence that the use of nuclear weapons in any circumstance would be unlawful under international law. That use would at the very least result in the violation of the principles and rules of international humanitarian law, and would therefore be contrary to that law.

….

See Dissenting Opinion of Judge Koroma, at p. 1.

Likewise, in her Dissenting Opinion at Paragraph 29, Judge Higgins (from the United Kingdom, a nuclear weapons state) criticizes the second paragraph of Paragraph 105(2)(E) in the following language:

29. …Through this formula of non-pronouncement the Court necessarily leaves open the possibility that a use of nuclear weapons contrary to humanitarian law might nonetheless be lawful. This goes beyond anything that was claimed by the nuclear weapon States appearing before the Court, who fully accepted that any lawful threat or use of nuclear weapons would have to comply with both the jus ad bellum and jus in bello (see para. 86).

Judge Higgins is certainly correct to point out that the nuclear weapons states are still bound to adhere to their position on this matter that they formally articulated during the course of the World Court proceedings. It has been the longstanding position of the nuclear weapons states that any threat or use of nuclear weapons must comply with both the United Nations Charter (the jus ad bellum, or right to go to war) as well as with the laws of war and international humanitarian law (that is, the jus in bello, or laws of war). The non-pronouncement found in the second paragraph of Paragraph 105(2)(E) of this Advisory Opinion did not and indeed could not alter the validity of those legal obligations which flow from both customary and conventional international law.

Likewise, in Paragraph 12 of her Dissenting Opinion Judge Higgins stated most emphatically: “…It is in any event absolutely prohibited to attack civilians, whether by nuclear or other weapons.” Even when considering attacking legitimate military targets, a state must not attack “if the collateral civilian casualties would be disproportionate to the specific military gain from the attack.” See Dissenting Opinion of Judge Higgins, at para. 20. Applying this principle of proportionality to nuclear weapons, Judge Higgins opines: “One is inevitably led to the question of whether, if a target is legitimate and the use of a nuclear weapon is the only way of destroying that target, any need can ever be so necessary as to occasion massive damage upon civilians.” See id.

Finally, in Paragraph 23 of her Dissenting Opinion Judge Higgins enunciates a third principle of international humanitarian law with respect to the threat and use of nuclear weapons: “Very important also in the present context is the requirement of humanitarian law that weapons may not be used which are incapable of discriminating between civilian and military targets.” Once again, it is extremely difficult to conceive of any circumstances surrounding the current plans for the threat and use of nuclear weapons by the world’s nuclear weapons states that would not violate any one, or more, or all three of these fundamental principles of international humanitarian law that were articulated by Judge Higgins in her Dissenting Opinion.

The Dissenters to Paragraph 105(2)(E)

As can be seen from the above analysis, of the seven World Court Judges registering dissenting votes to Paragraph 105(2)(E) of the dispositif of the Advisory Opinion, Judge Weeramantry and Judge Koroma dissented because it did not, in their Opinions, go far enough to expressly condemn the threat and use of nuclear weapons in all circumstances. The same can be said for Judge Shahabuddeen in his Dissenting Opinion. The grounds for Judge Oda’s Dissenting Opinion were that he did not believe the World Court should have responded to the General Assembly’s Request for this Advisory Opinion in the first place.

Therefore, of the seven dissenters to Paragraph 105(2)(E), only Judge Schwebel (from the United States), Judge Higgins (from the United Kingdom) and Judge Guillaume (from France) had any substantive problem with its general condemnation of the threat and use of nuclear weapons. Notice that these three dissenters were all from the three nuclear weapons states that are allied with each other by means of the NATO Pact. Thus, it is not surprising that these three Judges voted on Paragraph 105(2)(E) in a manner consistent with the fact that their respective states of nationality possess nuclear weapons. In the practice of the International Court of Justice and its predecessor, the Permanent Court of International Justice, there has always been a high degree of correlation between a Judge’s vote and the position advocated by his or her state of nationality before the World Court despite the vaunted independence of the World Court from outside political pressures. Nevertheless, by comparison, Judge Vereschetin from Russia and Judge Shi from China did not dissent from Paragraph 105(2)(E) despite the fact that their respective states of nationality were indeed nuclear weapons states.

In light of these three dissenting votes on Paragraph 105(2)(E) by Judges Schwebel, Higgins and Guillaime, let us assume an extreme case of legitimate self-defense under Article 51 of the United Nations Charter where a state’s “very survival would be at stake.” Even then, according to Paragraph 79 of the Opinion, the Hague Conventions and the Geneva Conventions “constitute intransgressible principles of international customary law.” As pointed out by Judge Bedjaoui, then President of the World Court, in his appended Declaration, such intransgressible principles can never be violated, even in extreme circumstances, where the very survival of a state is at stake. It is difficult to imagine any circumstances where the actual use of nuclear weapons would not violate either the Hague Conventions or the Geneva Conventions. In other words, it is difficult to imagine any circumstances where the actual use of nuclear weapons would not violate “intransgressible principles of international customary law.”

Furthermore, as already noted above, the United States government has ratified Hague Convention No. IV of 1907 and the Four Geneva Conventions of 1949 and so is bound to observe them a fortiori and without any exceptions whatsoever. The same is true for the other acknowledged nuclear weapons states: Britain, China, France and Russia. The non-pronouncement found in the World Court’s Advisory Opinion cannot alter those undeniable facts and the legal conclusions that flow inevitably from them.

Conclusion

It is obvious from reading the World Court’s Advisory Opinion that any currently contemplated threat or use of nuclear weapons by the United States government is illegal under international humanitarian law, and therefore I would add criminal. Hence all that needs to be done in order to defend an anti-nuclear resister is to apply the World Court’s Advisory Opinion to the actual nuclear weapons system that was the object of the anti-nuclear resister’s action. By applying the teachings of the World Court’s Advisory Opinion to the actual facts of the case, it should become clear that the specific nuclear weapons system and its related strategy are illegal and criminal.

Hence, there is no need to deal with the question of the legality or illegality of nuclear weapons as an abstract proposition. Rather, simply apply the language of the Advisory Opinion, together with the analysis of the Opinion as set forth above, to the specific nuclear weapons system that was the object of the anti-nuclear resister’s action: e.g., NAVSTAR/Trident 2/Delta 5. Once you demonstrate the mission and the capabilities of the specific nuclear weapons system, its illegality and criminality should become blatantly obvious to the jury.

Indeed, this contextual approach to the problem coincides quite nicely with the contextual argument twice made by the United States government in its Written Observations on the Request by the General Assembly for an Advisory Opinion that was submitted to the International Court of Justice during the course of the World Court proceedings:

…As in the case of other weapons, the legality of use depends on the conformity of the particular use with the rules applicable to such weapons. This would, in turn, depend on factors that can only be guessed at, including the characteristics of the particular weapon used and its effects, the military requirements for the destruction of the target in question, and the magnitude of the risk to civilians…

By following this contextual approach to the actual nuclear weapons system at issue, you are only taking seriously and applying the contextual approach recommended by the United States government itself to the International Court of Justice. Certainly a judge and a jury anywhere in the United States of America should have the exact same right and duty to take into consideration the entire context surrounding the threat and use of the particular nuclear weapons system that motivated any act of anti-nuclear resistance.

Basically, then, the defense strategy in all these anti-nuclear trials has been to shift the jury’s focus of attention away from the act of anti-nuclear resistance over to the specific nuclear weapons system involved. In other words, put the nuclear weapons system on trial instead of the anti-nuclear resisters. The critical factor in all these cases has been to get both the legal evidence and the technical evidence about the specific nuclear weapons system involved to be considered by the jury. The precise tactics, theories and strategies whereby this has been done have never mattered so much as whether or not the jury heard this legal evidence and the technical evidence in the first place.

Optimally, the successful defense of an anti-nuclear resister requires testimony at trial and before the jury by two experts: one on international law, the other on the technical characteristics of the specific nuclear weapons system involved. Of course, if you only have one expert or the judge will permit only one expert witness to testify, then that expert will have to do double duty. In this case, it is probably better to have your international law expert bone up on the facts surrounding the specific nuclear weapons system. You can usually get your international law expert qualified as an expert on nuclear weapons policies as well. By comparison, you will not be able to get your technical expert qualified as an expert on international law. So when faced with a choice, use the international law expert.

Of course, the judge might decide to strip you of all your expert witnesses, both technical and legal. If the judge does this, there is a good chance that such a ruling will constitute reversible error on appeal. Nevertheless, even if you are stripped of all your experts at trial, you must not despair! There have been several instances of anti-nuclear resisters obtaining hung juries by means of their own testimony. I know of other cases where different types of protesters have been able to obtain outright acquittals by means of their own testimony alone.

In any event, prior to trial anti-nuclear resisters and their lawyers must spend a good deal of time preparing their testimony in chief. During the course of their direct testimony, anti-nuclear resisters must explain their basic understanding and knowledge of the technical characteristics of the specific nuclear weapons system that they acted against. In addition, they should also try to explain in their own words that at the time they undertook their act of anti-nuclear resistance, this specific nuclear weapons system stood in gross violation of the United Nations Charter; the Nuremberg Charter, the Nuremberg Judgment, and the Nuremberg Principles; the Genocide Convention and its Implementation Act; the Hague Regulations; the Geneva Conventions and Protocol I; the Hague Neutrality Conventions; U.S. Army Field Manual 27-10 (1956); the 1996 World Court Advisory Opinion; as well as basic principles of international humanitarian, the laws of war, and international environmental law. Their act of anti-nuclear resistance was intended and designed for the express purpose of terminating ongoing inchoate criminal activity under well recognized principles of international law that have been fully subscribed to by the United States government itself.

Once again, I cannot over-emphasize enough that when facing any serious criminal charges, an anti-nuclear resister is well advised to be represented by an attorney. Even with representation by counsel, it will be difficult enough as it is to set up the defense of an anti-nuclear resister using international law, let alone to pull it off successfully. Based upon my experience with doing anti-nuclear protest cases since 1982, anti-nuclear resisters do themselves no favor by foregoing the services of an attorney–with all due respect to them. In some cases, they might even hurt the anti-nuclear cause that they seek to promote by proceeding to trial without adequate counsel and representation by a lawyer.

Quite obviously, there is a lot more I could say about defending anti-nuclear resisters under international law. But for a variety of reasons, I believe I have said enough for the time being. Good luck to you!

F.A.B.

* Francis A. Boyle is Professor of International Law and Advisor to the Nuclear Age Peace Foundation.

© Copyright 1999-2000 BY FRANCIS A. BOYLE. ALL RIGHTS RESERVED.

November 14, 1997
From Arms Control to Abolition: Global Action for a Nuclear Weapons Free World
During the Cold War, nuclear arsenals were rationalized on the basis of deterrence, and the nuclear weapons states developed military strategies of mutual assured destruction (MAD). Since it was recognized that attacks and counter-attacks with nuclear arsenals would be without precedent in their destructiveness, even to the point of destroying human civilization and most life on Earth, the acronym MAD seemed particularly appropriate. During the Cold War period, leaders tried to bring some modicum of sanity to an otherwise insane situation by engaging in arms control discussions and occasionally reaching agreements regarding the control of nuclear arsenals.

The two most important arms control agreements during the Cold War were reached in the 1960s. The first was the Partial Test Ban (PTB) Treaty, which was signed and entered into force in 1963. This treaty prohibited nuclear testing in the oceans, atmosphere, and outer space. The PTB was achieved under considerable pressure from citizens throughout the world who objected to the dangerous health effects associated with atmospheric nuclear testing. Among the leaders in the protest against atmospheric nuclear testing were Linus Pauling, the great scientist, and his wife Ava Helen Pauling, who organized a petition signed by 9,235 scientists, which Pauling delivered to U.N. Secretary General Dag Hammerskjold on January 15, 1958. The document was entitled, “Petition to the United Nations Urging that an International Agreement to Stop the Testing of Nuclear Bombs Be Made Now.”

The PTB did not put an end to nuclear testing, and thus to the development of new and more efficient nuclear weapons. Rather, it resulted in moving nuclear testing underground. In this sense, the treaty was more an environmental treaty than an arms control treaty. The only thing that the treaty disarmed was public outrage at the health risks related to atmospheric nuclear testing. The treaty contained the promise of “seeking to achieve the discontinuance of all test explosions of nuclear weapons for all time,” which was widely recognized as a critical step in ending the nuclear arms race. Unfortunately, the goal of ending nuclear testing remained essentially dormant for the next 33 years until a Comprehensive Test Ban Treaty (CTBT) was finally adopted by the United Nations and opened for signatures in 1996.

The second important arms control agreement during the Cold War was the Non-Proliferation Treaty (NPT), which was signed in 1968 and entered into force in 1970. This treaty sought to halt the spread of nuclear weapons and weapons-grade nuclear materials to states not in possession of nuclear arsenals as of January 1, 1967. The treaty recognized two classes of states: nuclear weapons states (United States, United Kingdom, France, Russia, and China), and non-nuclear weapons states (all other states). The nuclear weapons states agreed not to transfer nuclear weapons or weapons-grade nuclear materials to the non-nuclear weapons states, and the non-nuclear weapons states agreed not to receive or otherwise acquire nuclear weapons or weapons-grade nuclear materials.

When the NPT was negotiated, the non-nuclear weapons states recognized the unequal nature of the treaty, and argued for two concessions from the nuclear weapons states. First, nuclear energy for peaceful purposes was described in the treaty as an “inalienable right,” and nuclear weapons states promised to help the non-nuclear weapons states in developing nuclear power plants. Second, the non-nuclear weapons states objected to the two-tier structure of nuclear “haves” and “have-nots” created by the treaty, and negotiated Article VI of the treaty which called for good faith negotiations to achieve a cessation of the nuclear arms race at an early date, nuclear disarmament, and general and complete disarmament under strict and effective international control. Article VI of the NPT, despite its carefully crafted language, is one of the most important, if not the most important, of all commitments made by nuclear weapons states in arms control agreements.

In exchange for not attempting to develop or acquire nuclear weapons, the non-nuclear weapons states had a reasonable expectation under Article VI that the nuclear weapons states would proceed with good faith negotiations for nuclear disarmament, to rid the world of the terrible threat of nuclear holocaust. Until the end of the Cold War, however, the nuclear weapons states had made scant progress toward nuclear disarmament, and were widely viewed by states from the Non-Aligned Movement (NAM) as being in violation of their Article VI commitment. In fact, at the end of the Cold War, the strategic nuclear arsenals of the nuclear weapons states were considerably larger than they were when the NPT was signed in 1968.

In the aftermath of the Cold War, the rationale for retaining nuclear arsenals has evaporated. Deterrence was always a questionable theory, but without the threatened attack of an enemy, it clearly makes no sense at all. Nuclear weapons can be more clearly recognized in the aftermath of the Cold War as “instruments of genocide” that serve no reasonable purpose. Since the end of the Cold War, increasing pressure has mounted for the nuclear weapons states to fulfill the promise under Article VI of the Non-Proliferation Treaty to achieve nuclear disarmament.

START I, START II, and START III

Strategic Arms Reduction Talks in the early 1990s resulted in two treaties agreeing to the reduction of the numbers of nuclear weapons in the arsenals of the United States and former Soviet Union. START I, which was signed by Presidents Gorbachev and Bush in 1991, called for reductions to approximately 6,500 deployed strategic weapons on each side. START II, signed by Presidents Bush and Yeltsin in 1993, called for further reductions of deployed strategic nuclear weapons to 3,000 to 3,500 on each side by January 1, 2003. START II was ratified by the U.S. Senate in 1996, but has yet to be ratified by the Russian Duma, many members of which have expressed deep concerns over the U.S.-led efforts to expand NATO eastward. In September 1997, the U.S. and Russia agreed to extend the date for achieving START II reductions for five years to the end of 1997.

However, even if START II is successfully completed, there will still be as many deployed strategic nuclear weapons in the arsenals of the two major nuclear weapons states as there were when the NPT was signed in 1968. This has led many of the non-aligned states to question the sincerity and good faith of the nuclear weapons states in fulfilling their Article VI promises.

Presidents Clinton and Yeltsin have had preliminary discussions regarding START III, and have suggested that this agreement could reduce nuclear arsenals to 2,000-2,500 deployed strategic nuclear weapons on each side by the year 2007. This advance, however, is uncertain due to the Russian opposition to the proposed expansion of NATO. Even more significant is that the proposed START III agreement is simply more incrementalism. It lacks a vision of a world without nuclear weapons, and simply reduces the overkill ratio to a somewhat lower level. It is consistent with maintaining the two-tier structure of nuclear “haves” and “have-nots” indefinitely. It misses the tremendous opportunity that currently exists to move from arms control to abolition.

The Non-Proliferation Treaty Review and Extension Conference

A NPT Review and Extension Conference was called for by the terms of the treaty 25 years after the treaty entered into force. The purpose of this conference, which was held in 1995, was to determine whether the treaty should be extended indefinitely or for a period or periods of time. The nuclear weapons states, which saw the treaty as advantageous to themselves, argued for an indefinite extension of the treaty. Many non-aligned states, though, questioned the good faith of the nuclear weapons states, and suggested that the treaty should be extended for periods of time and re-extended contingent upon sufficient progress toward fulfillment of the Article VI promise of nuclear disarmament.

At the conference the nuclear weapons states and their allies (primarily the NATO states) exerted considerable pressure on the non-aligned states and finally prevailed in having the treaty extended indefinitely. However, at the insistence of the non-aligned states, certain non-binding agreements were attached to the indefinite extension which called for, among other steps, the following:

“(a) The completion by the Conference on Disarmament of the negotiations on a universal and internationally and effectively verifiable Comprehensive Nuclear-Test-Ban Treaty no later than 1996. Pending the entry into force of a Comprehensive Test-Ban Treaty, the nuclear-weapon States should exercise utmost restraint;

“(b) The immediate commencement and early conclusion of negotiations on a non-discriminatory and universally applicable convention banning the production of fissile material for nuclear weapons or other nuclear explosive devices, in accordance with the statement of the Special Coordinator of the Conference on Disarmament and the mandate contained therein;

“(c) The determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating those weapons, and by all States of general and complete disarmament under strict and effective international control.”

Abolition 2000 Global Network

At the NPT Review and Extension Conference, an Abolition Caucus — composed of representatives of citizen action groups from throughout the world — was organized to share information and to join in lobbying the delegates. From this caucus an 11-point plan, calling for nuclear weapons abolition was drafted and agreed to. This document was called the Abolition 2000 Statement. The Statement called for a treaty by the year 2000 for the prohibition and elimination of all nuclear weapons within a timebound framework.

The Abolition 2000 Statement became the basis for the establishment of the Abolition 2000 Global Network, which has now grown to over 700 citizen actions groups from six continents. It is a dynamic citizen network committed to the goal of achieving a nuclear weapons free world.

The World Court Project

The World Court Project (WCP) was initiated by three major international citizen action groups: the International Lawyers Against Nuclear Arms (IALANA), the International Physicians for the Prevention of Nuclear War (IPPNW), and the International Peace Bureau (IPB). The purpose of the project was to obtain an opinion from the International Court of Justice (ICJ) on the legality of the threat or use of nuclear weapons. Through intensive lobbying of delegates to the World Health Organization and the United Nations General Assembly, the WCP was successful in having both of those bodies request an opinion from the Court.

The question posed by the World Health Organization (WHO) focused on use of nuclear weapons: “In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?” The question posed by the General Assembly also included the threat of use: “Would the threat or use of nuclear weapons in any circumstance be permitted under international law?”

The Court received considerable written and oral argument from states. On July 8, 1996, the Court issued its opinion on the question posed by the U.N. General Assembly. At the same time, the Court declined to issue an opinion on the question posed by WHO, stating that their question failed to meet the criteria of arising within the scope of WHO’s activities. In response the General Assembly, the Court issued a 37 page opinion, and each of the 14 judges on the Court issued a separate statement with the opinion. The Court found that any threat or use of nuclear weapons must conform with the principles and rules of international humanitarian law. This means that nuclear weapons cannot be threatened or used in such a manner as to fail to discriminate between civilians and combatants, and that they must not cause unnecessary suffering to combatants. Based primarily upon this finding, the Court then found that any threat or use of nuclear weapons would be generally illegal.

The Court was unable to determine, however, whether the threat or use of nuclear weapons would be legal or illegal “in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.” The Court’s opinion went a long way toward shutting the door on the threat or use of nuclear weapons, but it left open this narrow possibility in the case of the very survival of a state. Some of the judges pointed to the irony of leaving open the possibility of using nuclear weapons in conditions in which the survival of a state was at stake, since such use could result in escalation endangering the survival of all life.

Given what the Court found to be an ambiguity in international law involving an “extreme circumstance of self-defence,” it reviewed Article VI of the Non-Proliferation Treaty, and concluded: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.” The Court’s ruling on the Article VI commitment clarifies that nuclear disarmament must be complete, that it must be disarmament “in all its aspects,” and that it is not tied to conventional disarmament or other security issues.

The nuclear weapons states have argued that the Court’s opinion is advisory only, and they have not acted on it. While the opinion is, in fact, advisory in nature, it is still the pronouncement of the highest Court in the world on an issue of utmost importance. The significance of the opinion has not been lost on the states in the non-aligned movement that have been pressing for complete nuclear disarmament. Nor has the significance of the opinion been lost on citizen action groups around the world, such as the Abolition 2000 Global Network, that have been pressing the case for the abolition of nuclear arsenals.

The Canberra Commission Report

In response to French nuclear weapons testing in the Pacific, the Australian government established a prestigious commission of eminent individuals to examine the case for the elimination of nuclear weapons. Participants in the Commission included General Lee Butler, a former commander of the U.S. Strategic Command; Robert McNamara, a former U.S. Secretary of Defense; Michel Rocard, a former French Prime Minister; Field Marshall Micheal Carver, a former British Chief of Defence Staff; Jacques Cousteau, the late ocean explorer and advocate for future generations; and Joseph Rotblat, founder and president of the Pugwash Conferences on Science and World Affairs and the 1995 Nobel Peace Laureate.

The Report of the Canberra Commission stated: “Nuclear weapons pose an intolerable threat to humanity and its habitat, yet tens of thousands remain in arsenals built up at a time of deep antagonism. That time has passed, yet assertions of their utility continue…. A nuclear weapon free world can be secured and maintained through political commitment, and anchored in an enduring and binding legal framework.”

The Report called for some immediate steps to reduce the nuclear threat:
- Taking nuclear forces off alert;
- Removal of warheads from delivery vehicles;
- Ending deployment of non-strategic nuclear weapons;
- Ending nuclear testing;
- Initiating negotiations to further reduce United States and Russian nuclear arsenals; and
- Agreement amongst the nuclear weapons states of reciprocal no first use undertakings, and of a non-use undertaking by them in relation to the non-nuclear weapon states.
These steps would take us a long way toward reducing the immediate risks of nuclear warfare, but as yet the nuclear weapons states have resisted their implementation. The only exception is the signing of the CTBT and, even in this case, at least one of the nuclear weapons states, the United States, is continuing to conduct “sub-critical” nuclear tests which undermine the spirit of the treaty.

The Comprehensive Test Ban Treaty

A Comprehensive Test Ban Treaty was finally opened for signatures in September 1996, but it has yet to enter into force and the procedures for entry into force make it unlikely that this will occur. Entry into force requires the ratification of all 44 nuclear capable states, and India has made it clear that it will not sign or ratify the treaty so long as there is no firm commitment by the declared nuclear weapons states to the elimination of their nuclear arsenals. India’s position is that it is unwilling to give up the option of conducting nuclear tests in a world in which the declared nuclear weapons states, which have already tested extensively, refuse to make a firm commitment to eliminate their nuclear arsenals and thus continue to rely upon them for their security. While India has been widely criticized for this position, one must admit that this position is not without logic.

The CTBT has been marred by the insistence of the U.S. that “sub-critical” tests fall within the framework of the treaty. The U.S. has already begun a series of such tests, and it is likely that other nuclear weapons states will follow its lead. The U.S. is also planning a Stockpile Stewardship Program, on which it plans to spend some $45 billion over the next ten years. This program includes the development of new and expensive structures for laboratory testing of nuclear weapons. Again, it is likely that other nuclear weapons states will follow the U.S. lead by continuing to test by other means that circumvent the spirit if not the letter of the CTBT.

The Statement by International Generals and Admirals*

In December 1996 some 60 retired generals and admirals from around the world issued statements calling for the elimination of nuclear weapons. U.S. Generals Lee Butler and Andrew Goodpaster issued a statement at the National Press Club in Washington, DC. Their statement called for “pursuit of a policy of cooperative, phased reductions with serious commitments to seek the elimination of all nuclear weapons.”

As a separate statement, 58 of these retired generals and admirals argued “the continuing existence of nuclear weapons in the armories of nuclear powers, and the ever present threat of acquisition of these weapons by others, constitute a peril to global peace and security and to the safety and survival of the people we are dedicated to protect.” The generals and admirals called for the following three steps:

“First, present and planned stockpiles of nuclear weapons are exceedingly large and should now be greatly cut back;

“Second, remaining nuclear weapons should be gradually and transparently taken off alert, and their readiness substantially reduced both in nuclear weapons states and in de facto nuclear weapons states; and

“Third, long-term international nuclear policy must be based on the declared principle of continuous, complete and irrevocable elimination of nuclear weapons.”

A Nuclear Weapons Convention

In December 1996 the United Nations General Assembly adopted a resolution (51/45M) expressing appreciation to the International Court of Justice for responding to its request. It underlined the Court’s unanimous conclusion that an obligation exists “to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects.” The resolution called for “commencement of multilateral negotiations in 1997 leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination.”

In order to demonstrate that drafting a nuclear weapons convention was a technically feasible possibility, two citizens action groups — the Lawyers Committee on Nuclear Policy (LCNP) and the International Network of Engineers and Scientists Against Proliferation (INESAP) — prepared a draft model Nuclear Weapons Convention. This draft was made public in April 1997 at the PrepCom for the NPT Review Conference.

From Arms Control to Abolition

Arms control has been a method of maintaining strategic balance between the key nuclear weapons states, while at the same time maintaining the two-tier structure of nuclear “haves” and “have-nots.” In other words, arms control has been in part a dangerous game to maintain special privilege played at the precipice of nuclear holocaust. It has been a game of high stakes, both financially and militarily. In the end, it caused the disintegration of the Soviet Union, and the jury is still out on what its ultimate effects will be on the United States, the one nation that has used nuclear weapons in warfare.

In the aftermath of the Cold War, it is now a particularly propitious time to move forward with the abolition of nuclear weapons. To do so will require a change in mindset of decision-makers in the nuclear weapons states, many of whom seem determined to hold on to their nuclear arsenals. The International Court of Justice has spoken on the obligation to achieve complete nuclear disarmament. The Canberra Commission has offered positive proposals for eliminating the immediate threat. The international generals and admirals have argued the case for the security benefits of eliminating nuclear arsenals.

Citizen action groups around the world have joined together in the call for achieving a treaty by the year 2000 calling for the prohibition and elimination of nuclear weapons within a timebound framework. They have called for achieving this treaty by the year 2000 so that the people of the world can enter the 21st century with a treaty in place leading to the elimination of all nuclear weapons within a timebound framework.

Unfortunately, the leaders of the nuclear weapons states do not seem to have heard or understood the arguments for eliminating their nuclear arsenals. They are expending their efforts on arms control proposals, like the CTBT, which they try to evade in practice. These leaders do not seem to have grasped that this is not a game, and that “superiority” cannot be realized by arsenals of genocidal weapons. They are still thinking in old ways that are no longer appropriate in the Nuclear Age. Their thinking could pull us into the vortex of nuclear conflagration, by accident or design.

Einstein argued that “The splitting of the atom has changed everything save our modes of thinking, and thus we drift toward unparalleled catastrophe.” The new way of thinking that Einstein called for must take into account the tremendous destructive power of the “instruments of genocide” in the arsenals of the nuclear weapons states. If we oppose genocide, we must also oppose basing our security on nuclear weapons.

When enough people speak out and demand that government leaders change their ways of thinking, then these leaders will change. Until enough people demand such change, government officials will likely continue to tread old paths of the mind. We need a united effort of people everywhere to demand that the goal of a nuclear weapons free world be realized, and that we enter the 21st century with a treaty in place that will lead to elimination of nuclear weapons within a timebound framework.

Bibliography

Advisory Opinion of the International Court of Justice on the Threat or Use of Nuclear Weapons 1996, United Nations General Assembly, A/51/218, 15 October 1996

Model Nuclear Weapons Convention 1997, Lawyers’ Committee on Nuclear Policy, New York

Report of the Canberra Commission on the Elimination of Nuclear Weapons 1996 National Capital Printers, Canberra, Australia [http://www.dfat.gov.au/dfat/cc/cchome.html]

Evan, William and Ved Nanda (eds.) 1995 Nuclear Proliferation and the Legality of Nuclear Weapons, University Press of America, Inc., Lanham, Maryland

Pauling, Linus 1983 No More War!, Dodd, Mead & Company, New York

Roche, Douglas, Unacceptable Risk: Nuclear Weapons in a Volatile World 1995 Project Ploughshares and Nuclear Age Peace Foundation, Ontario

Rotblat, Joseph, et.al. (eds.) A Nuclear-Weapon-Free World Desirable? Feasible? 1993 Westview Press, Boulder, Colorado

Ruggiero, Greg and Stuart Sahulka (eds.) 1996 Critical Mass, Voices for a Nuclear-Free Future, Open Media, Westfield, New Jersey

INTERNATIONAL COURT OF JUSTICE ADVISORY OPINION

ON THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS

July 8, 1996 Paragraph 105. For these reasons, THE COURT,

(1) By thirteen votes to one, Decides to comply with the request for an advisory opinion;

In Favour. President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;

Against: Judge Oda.

(2) Replies in the following manner to the question put by the General Assembly:

A. Unanimously, There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons;

B. By eleven votes to three, There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such;

In Favour: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

Against: Judges Shahabuddeen, Weeramantry, Koroma.

C. Unanimously, A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51 is unlawful;

D. Unanimously, A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;

E. By seven votes to seven, by the President’s casting vote, It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law,

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;

IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;

AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.

F. Unanimously, There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this eighth day of July, one thousand nine hundred and ninety-six, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

(Signed) Mohammed Bedjaoui, President.

(Signed) Eduardo Valencia-Ospina, Registrar.

President Bedjaoui, Judges Herczegh, Shi Vereshchetin and Ferrari Bravo append declarations to the Advisory Opinion of the Court.

Judges Guillaume, Ranjeva and Fleischhauer append separate opinions to the Advisory Opinion of the Court.

Vice-President Schwebel, Judges Oda, Shahabuddeen, Weeramantry, Koroma and Higgins append dissenting opinions to the Advisory Opinion of the Court.
October 4, 1997
Schlaining Manifesto

Introduction

Since the end of the Cold War, public debate on security issues, and in particular on nuclear weapons, has receded and become overshadowed by other more apparently pressing problems. Despite this fact, opinion polls in many countries show an overwhelming majority in favour of the abolition of nuclear weapons. For this reason, NGOs working in the peace and security fields see a necessity to propose a political programme of action to move from military defence alliances dependent on nuclear deterrence to a cooperative and non-nuclear security structure that aims to prevent and resolve conflicts rather than solve them by use of force.

On March 13, 1997 the European Parliament adopted a resolution, calling “on the Member States to support the commencement of negotiations in 1997 leading to the conclusion of a convention for the abolition of nuclear weapons”. With this resolution the European Parliament joined for the first time the International Court of Justice, the Canberra Commission and more than 60 active and retired high-ranking military officers in seriously questioning the legitimacy of nuclear weapons and the concept of nuclear deterrence. While today there is a realistic chance to finally develop a European Security Architecture no longer based on nuclear weapons, NATO governments still neglect this option. Instead, they continue to insist that European security will require nuclear weapons. They intend to base the future European Security Architecture on a reformed and enlarged NATO and to develop a (Western and Central) European Defence and Security Identity. Thus, the opportunity to develop a truly Pan-European Security Architecture no longer centred around a military alliance has been missed.

NATO’s Nuclear Future

NATO still clings to its nuclear warfighting doctrine and insists on retaining nuclear weapons. Up to 200 US nuclear bombs are still deployed throughout seven European NATO-members; France and Britain retain their national nuclear postures. NATO refuses to give up its doctrine to use nuclear weapons first. Thus NATO explicitly contradicts the advisory opinion of the International Court of Justice (ICJ) of July 8, 1996, which declares the use and threat of use of nuclear weapons to be generally contrary to international law.

It should be emphasised that the ICJ declared the threat or use of nuclear weapons to be generally illegal. The ICJ did not approve any “right” to threaten or use nuclear weapons, but it asserted that it “cannot conclude definitely” whether the threat or use of nuclear weapons would be lawful or unlawful “in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”. NATO nuclear strategy is not covered by this doubtful area of uncertainty. Indeed, NATO threatens to use nuclear weapons even when no member state is threatened in its very survival.

NATO nuclear forces serve much broader political purposes: “The nuclear forces of the Alliance continue to play a unique and essential role in Alliance strategy. (…) A credible Alliance nuclear posture and the demonstration of Alliance solidarity and common commitment continue to require widespread participation by European Allies involved in collective defense planning, in nuclear roles, in peacetime basing of nuclear forces on their territory and in command, control and consultation arrangements.” (NATO: The Alliance New Strategic Concept, Rome, 1991) NATO’s nuclear strategy has not been changed since the ICJ advisory opinion.

Due to NATO enlargement the number of countries committed to such policies will be increased. At the next NATO summit from 8 to 9 July in Madrid, Hungary, Poland, the Czech Republic and possibly other states are expected to be invited to become member states of NATO in 1999. Independently of whether NATO deploys nuclear weapons in the new member states, it will increase the number of countries relying on nuclear weapons and nuclear deterrence. It will expand NATO’s system of nuclear sharing arrangements.

NATO stated in the Founding Act between NATO and the Russian Federation: “The member States of NATO reiterate that they have no intention, no plan and no reason to deploy nuclear weapons on the territory of new members, nor any need to change any aspect of NATO’s nuclear posture or nuclear policy – and do not foresee any future need to do so.” NATO also stated that it does not intend to build or use nuclear weapons infrastructure on the territory of its new members. (Founding Act on Mutual Relations, Cooperation and Security between NATO and the Russian Federation of 27 May 1997)

Nevertheless, the Founding Act fails to provide an internationally binding guarantee that NATO will not deploy nuclear weapons in these countries. In fact, NATO unilaterally reserves the right to change this declared policy on nuclear deployments in the new member states. It is intended that they will become full and equal members and thus eligible to fully participate in NATO nuclear sharing and decision-making arrangements. Full membership status includes the right to ask for the deployment of US-nuclear weapons as well as an obligation to accept that US nuclear weapons can be deployed at least during wartime (Denmark, Norway).

Participation of non-nuclear weapons states in NATO nuclear sharing includes the possibility that the control over nuclear weapons in wartime will be transferred to the Armed Forces of non-nuclear weapon states (NNWS). Peacetime storage of nuclear weapons on the territory of a new NNWS and peacetime training of the use of nuclear weapons are possible, which is already the case for existing member NNWS.

NATO nuclear sharing and decision making arrangements are perceived as a violation of Articles I and II of the Non-Proliferation Treaty (NPT) by many non-NATO NNWS. Agreement among the parties to the NPT as to whether this is in compliance or in violation of the NATO countries’ obligations under the NPT has never been reached. NATO unilaterally declares its nuclear sharing arrangements to be in compliance with the NPT, but even so the NATO states did not use the opportunity to deposit clear and formal reservations to that effect. Nevertheless, during both the NPT Review and Extension Conference in 1995 and the 1997 PrepCom for the Review Conference in 2000, the issue was again subject to controversy. When reevaluating this question it should be taken into account that Russia has withdrawn all of its nuclear weapons from the territory of foreign countries.

NATO – The Right Institution of European Security?

NATO argues that the Alliance’s expansion will provide more stability for Europe. Despite the Founding Act between NATO and the Russian Federation, the opposite may in fact become true. Neither the Founding Act nor NATO’s enlargement effectively ensure the prohibition of new division lines through Europe. They might even contribute to their creation.

The goal of being admitted to NATO has already become a driving force for many countries to overexaggerate the perceived threat from Russia. In an enlarged NATO they might feel a need to continue to do so in order to show that their decision to join was justified. Those not admitted during the first round of enlargement, will continue to compete for accession. Those countries, which do not join might start to overexaggerate the perceived threat from NATO, and may seek closer cooperation with Russia. If that option is not available to them, they could eventually feel isolated and insecure. One answer to this problem may be to develop a neutral position.

If the Founding Act between NATO and Russia succeeds in keeping fear of NATO low in Russia and in developing a common international security policy, it may result in a joint northern block confronting southern countries. It may thus become an instrument for increasing north-south tensions in the world.

More likely, however, the NATO Russia Founding Act will not eliminate Russian opposition to NATO enlargement. Russia is raising serious security concerns. NATO expansion will leave Russia greatly outnumbered by NATO’s conventional forces. NATO has promised to seek a solution at the Vienna negotiations about the Conventional Forces Treaty in Europe, but has not yet tabled a proposal for future conventional force limitations that could really meet Russian concerns. Russia might therefore finally decide to compensate its conventional inferiority by copying NATO’s “flexible response” strategy of the 1970s and 1980s. As a consequence, Russia would have to rely heavily on tactical nuclear weapons and would also have to resort to a first use policy. Because of this possibility, NATO expansion may put the ratification of START II at risk and thus jeopardise the future of nuclear disarmament.

The cost of NATO expansion must also be taken into account especially given current severe economic and social problems. Cost estimates range from US$ 20 to US$ 125 billion over 7-12 years. They will have to be shared between the current and the new NATO members. Severe burdens will be placed on the new member states already struggling to transform their weak economies. They will be forced to spend scarce resources, urgently needed for stabilising the countries’ economies and saving their social security and education systems, on new defence equipment. They might be forced to repeat a core mistake from Cold War times – spending much more on armaments than their economies can afford. This might destabilise newly established democracies and encourage radical positions.

The USA and several European countries are at present negotiating sales of fighter aircraft to candidate states for NATO membership, which indicates underlying motives for NATO expansion quite separate from the NATO claim of desiring stability in the region.

A Nuclear Future for Europe?

“The debate on the European nuclear deterrent will be the moment of truth in the construction of a European political union”. (Assembly of the WEU, Document 1420, 19.5.94, p.35) European Union members are in the process of developing their own security and defence identity. The Treaty on the European Union (Maastricht Treaty, Art. J4) commits them to eventually frame “a common defence policy, which might in time lead to a common defence”. Forming the latter will inevitably put the future of the British and French nuclear arsenals onto Europe’s agenda. While this is not likely to happen soon, the European Union members will eventually have to take a decision: whether the European Union should become a nuclear or a non-nuclear state. The European governments are slowly starting to explore this ground.

France and Germany have already declared themselves “ready to engage in a dialogue on the role of nuclear deterrence in the context of a European defense policy.” (Franco-German defence and security concept, Nuremberg, Dec. 9, 1996). The former French Prime minister Alain Jupp, proposed a “concerted” deterrence for Europe under which France would be prepared to discuss putting its nuclear weapons at European disposal.

Britain and France have formed the “Anglo-French Joint Commission on Nuclear Policy” in 1992, which is used for intensifying technical cooperation as well as political consultations between both countries.

While the three big European countries have thus started to intensify consultations on defence related nuclear matters on a bilateral level, they might wish to explore the ground behind closed doors for a consensus about the future role of British and French nuclear weapons in European security.

Nevertheless attempts to speed up the development of a European defence including a nuclear component has met with serious resistance. Firstly, countries with a longstanding history of neutrality, such as Austria, Sweden and Switzerland do not at present want to enter collective defence commitments. In a new development, the recently elected UK government has stated its opposition to a common EU defence policy. Secondly, the public in many countries is largely opposed to a common European nuclear deterrent. Finally, the creation of an Independent European Nuclear posture is bound to violate Articles I and II of the NPT. It is likely to require a step by step approach of integration which includes interim steps of nuclear sharing arrangements somewhat modelled on those of NATO, before Europe is one state, thus transferring nuclear weapons to NNWS.

Alternative Security Structure for Europe

More attention needs to be given to the development of a common security for the whole of Europe including the East and Russia, based on conflict prevention rather than on a military alliance. Examination of the likely causes of conflicts and methods of increasing stability within Europe should lead to a joint conceptualisation of a common security architecture by European countries on an equal basis.

To achieve these goals a democratic organisation, in which NGOs play a significant role, should progressively take over the role as the overall decision-making security body for Europe. The likely candidate for this would be the Organisation for Security and Cooperation in Europe (OSCE). All existing military alliances in Europe should eventually dissolve when the political and civilian security model of the OSCE, as defined in Lisbon in December 1996, is ready to be fully implemented, as they would become obsolete. The European Union, the strongest substructure in financial and political terms in the OSCE, should adapt its emerging Common Foreign and Security Policy (CSFP) to strengthen the stabilising capability of the OSCE, as the most important component of pan-European security.

A very important problem is the present parallel existence of military alliances alongside the OSCE which compete for dwindling resources, political mandates and status. As long as most financial resources are drained by the military aspects of security, which protect the interests of only some member states, the OSCE can never achieve its very important objectives for stability and peace in Europe. Moreover, the costs of the expansion of NATO will make it almost impossible for many member states to set apart adequate and urgently needed resources for the OSCE.

Intervention in a conflict, once it has become violent, inevitably turns out to be more expensive than mediation and conciliation in the early stages, which also seeks to prevent the human and social tragedy of war. The necessary shift from the intervention option and military solutions to the conflict prevention option requires drastic readjustments of the current disparity between the budgets of NATO and the OSCE.

OSCE action has demonstrated that OSCE member states are able, without the help of NATO, to prevent conflicts from openly breaking out, and to allow democratic elections to take place, as has been attempted in Chechnya and Albania, although with only a moderate degree of success. Early detection, early warning, negotiations, mediation, consultations, arbitrations, sanctions, follow-up procedures are important existing components of the OSCE mandate. The help of non-governmental organisations (NGOs) working in peace and conflict research as well as in the field (in humanitarian or medical assistance and particularly women’s groups) would be invaluable for all of these components to be adequately fulfilled.

In its Annex, the Lisbon Document, emphasised the importance of establishing ,Nuclear Free Weapon Zones” (NFWZ) in the OSCE region as a step towards total nuclear disarmament, also contained in the Stockholm Declaration of the OSCE Parliamentary Assembly in July 1996. A strategy for achieving this goal needs to be more clearly defined.

Political Programme of Action

The USA should immediately withdraw all nuclear weapons from the territory of non-nuclear weapon states. Such withdrawals should be made legally binding. First of all, all nuclear weapons should immediately be taken off alert, as a next step, warheads should be separated from delivery systems and removed from their deployment sites to an existing, remote and safe storage site, under international inspection (e.g. by the OSCE). As an important step towards a nuclear-weapons free Europe, all states in Central and Eastern Europe which are currently free of nuclear weapons should be declared a nuclear weapon free zone. No country should undertake any preparations or construction of infrastructure to be able to deploy nuclear weapons on its territory. Decisive steps should immediately be undertaken by all European states to comply with Article VI of the NPT and with the advisory opinion of the International Court of Justice (ICJ) of July 8, 1996, by starting negotiations for a Nuclear Weapons Convention (NWC) to eliminate all nuclear weapons worldwide. This should be coordinated with efforts to promote the effective implementation of the Biological and Chemical Weapons Conventions as well as to improve international control of delivery systems.

The Member States of the UN Conference on Disarmament (CD) in Geneva should be creative in finding ways of ending the impasse currently overshadowing the negotiations on nuclear disarmament and non-proliferation issues. In no case should nuclear weapon states continue or start to offer a nuclear umbrella to non-nuclear weapons states. To exclude all doubts on the intended legal implications of deposited reservations made by various states during the NPT ratification process in the late 60s and early 70s (,European Option”), the Treaty on the European Union should be amended by a specific clause (e.g. Title V, Article J.4, Paragraph) which could read: ,Under international obligations established by the Treaty on the Non- Proliferation of Nuclear Weapons, the Union renounces the production and possession of nuclear weapons or any form of control over them, as part of its common defence.” If the European Union accedes to the NPT, it should do so with a non-nuclear status. Military as well as commercial production, reprocessing, and reuse of all nuclear-weapons-usable materials, including tritium, should be unilaterally phased out or prohibited by an internationally agreed cut- off treaty. The first step should be to establish transparency by creating a complete and detailed inventory, updated annually, of all such materials, past and present. The next step should be the reduction and elimination of existing stocks, taking into account materials in warheads. The current impasse regarding a fissile materials cut-off agreement can only be overcome if disarmament measures are linked to non-proliferation measures. Levels of conventional armament under the new CFE should be reduced to the absolute minimum level required for purely defensive operations. Levels should not only be measured in numbers but also in technical quality. Commercial arms transfers should be controlled and reduced and a conversion programme for the arms industry needs to be initiated.

OSCE member states should continue, in a constructive and innovative way, the ongoing process of the drafting of “A Common Security Model for Europe in the 21st Century”. The security needs of each and every group of OSCE member states should be integrated into the framework of a “common and cooperative security without dividing lines” as defined in the Lisbon Document. Steps should be taken by member states, especially the members of the European Union within the proposed CSFP, to strengthen the OSCE both politically and financially. The OSCE should improve its decision-making process by refining the Moscow mechanism for the “unanimity minus one” procedure. Recognition by all member states of the Court of Conciliation and Arbitration in Geneva, as the OSCE’s mandatory dispute-resolution authority (for instance by deleting the proviso clause) is essential. The OSCE should improve the performance of its tasks, by expanding the existing Forum for Security Cooperation (FSC) and the Economic Forum, and in particular by establishing a sanctions authority, which would measure case by case the effectiveness and consequences to the population of imposing sanctions, and draw up a code disallowing sanctions on humanitarian and medical assistance. A concept for the establishment of fully integrated OSCE mobile peace-keeping police contingents, trained in conflict moderation and capable of self-defence should be developed. An initiative to develop the Office for Democratic Institutions and Human Rights (ODIHR) into a forum for cross-frontier NGO cooperation should be launched. Setting up an early-warning system for conflict prevention which is supported by civilians and local organisations can help to identify flash-points before conflicts break out. Recognised mediation training in conflict resolution should be more widespread and could be encouraged as a voluntary service. East and west European citizens should establish a Citizen Verification Network which observes their own military as closely as possible and especially any actions taken with regard to nuclear weapons.

There needs to be more widespread discussion on the lessons that are learned from each war or conflict that is experienced. Mediators should be encouraged to regularly communicate with each other to share their experiences with each other and also with NGOs. A network of people working in conflict prevention, humanitarian assistance and research should be established. A self administered NGO liaison within the OSCE should be established, which would draw on the experience and capacities of NGOs in the field of peace work, and would support NGOs in introducing, on a decentralised basis, a voluntary Civil Peace Service (CPS), and a European civilian youth association. Yearly allocations to the OSCE, from 1998 on, irrespective of increases in their financial contributions to the actual implementation of individual missions, should be at least doubled. The Forum for Security Cooperation (FSC) should be entrusted with the task of elaborating a comprehensive disarmament treaty (new Military Forces in Europe – MFE – treaty), in order to achieve nuclear- weapon-free zones in the area of the OSCE (beginning with Central and Nordic Europe and Central Asia) as a step towards the global abolition of all nuclear weapons. Furthermore, negotiations with Mongolia (not an OSCE member state and a declared nuclear weapons free state) should be initiated, to allow their participation in the proposed OSCE nuclear-free zone in Central Asia (Almaty Declaration).

The Schlaining Declaration of NGOs is signed by representatives of the following NGOs in preparation for formal approval by these organisations:

International Association of Lawyers Against Nuclear Arms (IALANA) Dieter Deiseroth, Fax: +49-211-683883

International Network of Engineers and Scientists for Global Responsibility (INES, INESAP) Martin Kalinowski, Fax: +49-6151-166039, E-mail kalinowski@hrzpub.th-darmstadt.de

International Peace Bureau (IPB) Chris Bross, Fax: +41-22-7389419, E-mail ipb@gn.apc.org Solange Fernex, Fax: +33-3-89407804

International Physicians for the Prevention of Nuclear War (IPPNW) Xanthe Hall, Fax: +49-30-6938166, E-mail ippnw@vlberlin.comlink.de Mouvement de la Paix / France Lysiane Alezard, Fax: +33-140115787, E-mail: mvtpaix@globenet.org

Peace Centre Burg Schlaining / Austria Georg Schöfbänker, Fax: +0043-732770149, E-mail georg.schoefbaenker@jk.uni-linz.ac.at

Project on European Nuclear Non-Proliferation (PENN) Otfried Nassauer, Fax: +49-30-4410221, E-mail its@gn.apc.org

Woman’s International League for Peace and Freedom (WILPF) Kirsti Kolthoff, Fax: +46-8-611-3898, E-mail kirsti@kloker.finansforbundet.se

June 15, 1997
McKinney-Rochrabacher Amendment

Amendment offered by Ms. McKinney

Ms. McKINNEY. Mr. Chairman, I offer an amendment.

The CHAIRMAN pro tempore. Is the amendment one of those specifically listed in the order of the House of June 5, 1997?

Ms. McKINNEY. Yes, Mr. Chairman, it is.

The CHAIRMAN pro tempore. The Clerk will report the amendment.

The Clerk read as follows:

Amendment offered by Ms. McKinney: At the end of the bill add the following (and conform the table of contents accordingly):

DIVISION C–ARMS TRANSFERS CODE OF CONDUCT

TITLE XX–ARMS TRANSFERS CODE OF CONDUCT

SEC. 2001. SHORT TITLE. This title may be cited as the `Code of Conduct on Arms Transfers Act of 1997′.

SEC. 2002. FINDINGS. The Congress finds the following:

(1) Approximately 40,000,000 people, over 75 percent civilians, died as a result of civil and international wars fought with conventional weapons during the 45 years of the cold war, demonstrating that conventional weapons can in fact be weapons of mass destruction.

(2) Conflict has actually increased in the post cold war era, with 30 major armed conflicts in progress during 1995.

(3) War is both a human tragedy and an ongoing economic disaster affecting the entire world, including the United States and its economy, because it decimates both local investment and potential export markets.

(4) International trade in conventional weapons increases the risk and impact of war in an already over-militarized world, creating far more costs than benefits for the United States economy through increased United States defense and foreign assistance spending and reduced demand for United States civilian exports.

(5) The United Nations Register of Conventional Arms can be an effective first step in support of limitations on the supply of conventional weapons to developing countries and compliance with its reporting requirements by a foreign government can be an integral tool in determining the worthiness of such government for the receipt of United States military assistance and arms transfers.

(6) It is in the national security and economic interests of the United States to reduce dramatically the $840,000,000,000 that all countries spend on armed forces every year, $191,000,000,000 of which is spent by developing countries, an amount equivalent to 4 times the total bilateral and multilateral foreign assistance such countries receive every year.

(7) According to the Congressional Research Service, the United States supplies more conventional weapons to developing countries than all other countries combined, averaging $11,889,000,000 a year in agreements to supply such weapons to developing countries for the six years since the end of the cold war, 58 percent higher than the $7,515,000,000 a year in such agreements for the six years prior to the dissolution of the Soviet Union.

(8) Since the end of the cold war, 84 percent of United States arms transfers have been to developing countries are to countries with an undemocratic form of government whose citizens, according to the Department of State Country Reports on Human Rights Practices do not have the ability to peaceably change their form of government.

(9) Although a goal of United States foreign policy should be to work with foreign governments and international organizations to reduce militarization and dictatorship and therefore prevent conflicts before they arise, during 4 recent deployments of United States Armed Forces–to the Republic of Panama, the Persian Gulf, Somalia, and Haiti–such Armed Forces faced conventional weapons that had been provided or financed by the United States to undemocratic governments.

(10) The proliferation of conventional arms and conflicts around the globe are multilateral problems, and the fact that the United States has emerged as the world’s primary seller of conventional weapons, combined with the world leadership role of the United States, signifies that the United States is in a position to seek multilateral restraints on the competition for and transfers of conventional weapons.

(11) The Congress has the constitutional responsibility to participate with the executive branch in decisions to provide military assistance and arms transfers to a foreign government, and in the formulation of a policy designed to reduce dramatically the level of international militarization.

(12) A decision to provide military assistance and arms transfers to a government that is undemocratic, does not adequately protect human rights, is currently engaged in acts of armed aggression, or is not fully participating in the United Nations Register of Conventional Arms, should require a higher level of scrutiny than does a decision to provide such assistance and arms transfers to a government to which these conditions do not apply.

SEC. 2003. PURPOSE. The purpose of this title is to provide clear policy guidelines and congressional responsibility for determining the eligibility of foreign governments to be considered for United States military assistance and arms transfers.

SEC. 2004. PROHIBITION OF UNITED STATES MILITARY ASSISTANCE AND ARMS TRANSFERS TO CERTAIN FOREIGN GOVERNMENTS. (a) Prohibition: Except as provided in subsections (b) and (c), beginning on and after October 1, 1998, United States military assistance and arms transfers may not be provided to a foreign government for a fiscal year unless the President certifies to the Congress for that fiscal year that such government meets the following requirements:

(1) Promotes democracy: Such government–

(A) was chosen by and permits free and fair elections;

(B) promotes civilian control of the military and security forces and has civilian institutions controlling the policy, operation, and spending of all law enforcement and security institutions, as well as the armed forces;

(C) promotes the rule of law, equality before the law, and respect for individual and minority rights, including freedom to speak, publish, associate, and organize; and

(D) promotes the strengthening of political, legislative, and civil institutions of democracy, as well as autonomous institutions to monitor the conduct of public officials and to combat corruption.

(2) Respects human rights: Such government–

(A) does not engage in gross violations of internationally recognized human rights, including–

(i) extra judicial or arbitrary executions;

(ii) disappearances;

(iii) torture or severe mistreatment;

(iv) prolonged arbitrary imprisonment;

(v) systematic official discrimination on the basis of race, ethnicity, religion, gender, national origin, or political affiliation; and

(vi) grave breaches of international laws of war or equivalent violations of the laws of war in internal conflicts;

(B) vigorously investigates, disciplines, and prosecutes those responsible for gross violations of internationally recognized human rights;

(C) permits access on a regular basis to political prisoners by international humanitarian organizations such as the International Committee of the Red Cross;

(D) promotes the independence of the judiciary and other official bodies that oversee the protection of human rights;

(E) does not impede the free functioning of domestic and international human rights organizations; and

(F) provides access on a regular basis to humanitarian organizations in situations of conflict or famine.

(3) Not engaged in certain acts of armed aggression: Such government is not currently engaged in acts of armed aggression in violation of international law.

(4) Full participation in U.N. register of conventional arms: Such government is fully participating in the United Nations Register of Conventional Arms. (b) Requirement for Continuing Compliance: Any certification with respect to a foreign government for a fiscal year under subsection (a) shall cease to be effective for that fiscal year if the President certifies to the Congress that such government has not continued to comply with the requirements contained in paragraphs (1) through (4) of such subsection. (c) Exemptions:

(1) In general: The prohibition contained in subsection (a) shall not apply with respect to a foreign government for a fiscal year if–

(A) subject to paragraph (2), the President submits a request for an exemption to the Congress containing a determination that it is in the national security interest of the United States to provide military assistance and arms transfers to such government; or

(B) the President determines that an emergency exists under which it is vital to the interest of the United States to provide military assistance and arms transfers to such government.

(2) Disapproval: A request for an exemption to provide military assistance and arms transfers to a foreign government shall not take effect, or shall cease to be effective, if a law is enacted disapproving such request. (d) Notifications to Congress:

(1) In general: The President shall submit to the Congress initial certifications under subsection (a) and requests for exemptions under subsection (c)(1)(A) in conjunction with the submission of the annual request for enactment of authorizations and appropriations for foreign assistance programs for a fiscal year and shall, where appropriate, submit additional or amended certifications and requests for exemptions at any time thereafter in the fiscal year.

(2) Determination with respect to emergency situations: The President, when, in his determination, it is not contrary to the national interest to do so, shall submit to the Congress at the earliest possible date reports containing determinations with respect to emergencies under subsection (c)(1)(B). Each such report shall contain a description of–

(A) the nature of the emergency;

(B) the type of military assistance and arms transfers provided to the foreign government; and

(C) the cost to the United States of such assistance and arms transfers.

[Page: H3619] SEC. 2005. SENSE OF THE CONGRESS. It is the sense of the Congress that the Committee on International Relations of the House of Representatives and the Committee on Foreign Relations of the Senate should hold hearings on–

(1) controversial certifications submitted under section 2004(a);

(2) all requests for exemptions submitted under section 2004(c)(1)(A); and

(3) all determinations with respect to emergencies under section 2004(c)(1)(B).

SEC. 2006. UNITED STATES MILITARY ASSISTANCE AND ARMS TRANSFERS DEFINED. For purposes of this title, the terms `United States military assistance and arms transfers’ and `military assistance and arms transfers’ mean–

(1) assistance under chapter 2 of part II of the Foreign Assistance Act of 1961 (relating to military assistance), including the transfer of excess defense articles under section 516 of that Act ;

(2) assistance under chapter 5 of part II of the Foreign Assistance Act of 1961 (relating to international military education and training); or

(3) the transfer of defense articles, defense services, or design and construction services under the Arms Export Control Act (excluding any transfer or other assistance under section 23 of such Act ), including defense articles and defense services licensed or approved for export under section 38 of that Act .

Ms. McKINNEY (during the reading). Mr. Chairman, I ask unanimous consent that the amendment be considered as read and printed in the Record.

The CHAIRMAN pro tempore. Is there objection to the request of the gentlewoman from Georgia?

There was no objection.

Ms. McKINNEY. Mr. Chairman, I ask unanimous consent that I be recognized for 8 minutes.

The CHAIRMAN pro tempore. Is there objection to the request of the gentlewoman from Georgia?

There was no objection.

Ms. McKINNEY. Mr. Chairman, I am very proud to offer the McKinney-Rohrabacher amendment, which I believe is a significant enhancement to the legislation we are now considering, the State Department authorization bill.

This is no longer a controversial amendment. Significant compromise and change have been incorporated into this new version of the Arms Trade Code of Conduct that I am introducing today. In the first version of the bill, the President would certify countries at the beginning of each fiscal year that comply with the code of conduct. If the President wanted to sell weapons to a noncomplying government, then the President would have to come to Congress requesting an exemption and have that exemption approved by a vote in Congress.

The administration and some Members of Congress felt this gave too much authority to Congress and deprived the President of his ability to make foreign policy. In the spirit of compromise, we have stripped the original bill of this language and now all that remains are the underlying values that motivated this bill in the first place, and that is that the United States ought not be in the business of supplying weapons to dictators.

Gone is the automatic trigger that some objected to. And so now the piece of legislation before us asks us to make the fundamental assertion of what we stand for in the world and whose side we are on. Is it that the United States of America that speaks eloquently on the subject of respect for human rights and democracy and democratic traditions is only paying lip service to these ideals when confronted with a hungry client wanting our advanced technology only to enhance their ability to torture and abuse their own population? Or do we stand with those people around the world who are victims of the world’s tyrants, who have no voice in the international arena and who only have the conscience of the world to help them?

This legislation helps to give the United States a conscience for the leaders around the world who do not have one. This legislation helps to give a voice to those people around the world who cannot speak out in their own countries. And finally, this legislation puts the international behavior of the United States in sync with our words, our beliefs, and our fundamental values.

The initial opponents of this bill did us a favor, really, by asking us to remove and cut certain sections of the bill, because what is left is the fundamental answer to the question, `Will we sell weapons to dictators?’

This bill is no longer about Presidential prerogatives being impinged on. This bill is no longer about too much congressional authority in the area of foreign policy-making. This bill is simply about whether we will apply the standards to our guns and tanks and missiles and bombs that we apply to computers and chemicals.

In this country, even a car is considered a lethal weapon, and we apply certain standards on who can operate a car. So getting a driver’s license and keeping that license subjects us all to certain competency requirements, certain standards. If we lose our license, then we fail to meet the requirements for operating the car. Do we not consider it important who purchases our rifles, tanks, guns, and bullets? We even have laws that govern and restrict the flow of certain information and knowledge. Should we not at least be concerned about who gets our weapons that kill people?

At home, after much struggle, we have come up with standards on who can buy a gun. Convicted felons and the mentally ill cannot buy guns legally in this country. Thank goodness we were able to pass the Brady bill so that we could stop certain purchases of guns. Passing the Brady bill was done, though, only after the unreasonableness and extremism of the NRA was demonstrated to the American public.

Unfortunately, the code of conduct has its own equivalent to the NRA which, I believe, is not only extreme but also reckless in its disregard of what happens when these weapons are delivered to our dictator clients.

In 1964, the United States made a decision to support Mobutu Sese Seko, who became a tyrant and a dictator to the people of Zaire. Over the course of the decades of our support for his dictatorship, we shipped almost $170 million of weapons to him. We provided $18 million of training to the military; 1,356 officers, virtually the entire Zairian officer corps, received officer training. A total of $187 million of U.S. military aid went to Zaire.

What was that aid? 2,500 riot control kits; 2,000 military vehicles for crowd control; 2,000 rifles; $2 million worth of ammunition, and 24 military aircraft.

What we gave Mobutu was not military assistance to defend his country from outside intervention. What we gave to Mobutu was the means to control dissent and demonstrations. What we gave Mobutu was the means to control his own population and hence, to keep himself in power. As a result, we are complicit in how he used his military, trained and supplied by us.

This is the kind of end use that concerns us. This is the kind of end use that compelled Dr. Arias and four other Nobel Peace Prize winners to come together 2 weeks ago in New York to declare their support for the code of conduct. Dr. Oscar Arias brought together Jorge Ramos-Horta of East Timor, Betty Williams of Northern Ireland, His Excellency the Dalai Lama of Tibet, and our own Elie Wiesel. Organizations that have won the Noble Peace Prize were also represented at this press conference: Amnesty International, the American Friends Service Committee, and the International Physicians for the Prevention of Nuclear War. Dr. Arias also had letters of support from Archbishop Desmond Tutu, Lech Walesa, and several others who were not able to attend. The gentleman from New York [Mr. Gilman] attended the press conference and was moved to a standing ovation after the remarks of Elie Wiesel.

So, people who have been recognized in the international community for their dedication to peace have come together to say that this legislation is necessary. How will history record those who do not support this legislation?

Member states of the European Union have already agreed to eight common criteria governing their own arms transfers. There is growing support for European Union-wide code of conduct among all of Europe’s governments. Germany, Sweden, The Netherlands, Belgium, and Ireland are all leading this fight. But the boldest steps have been taken by Tony Blair’s Britain. The New Labour Government has declared that centrality of human rights in its weapons sales is central to its decisions.

So we are not alone, those of us who want the United States to stand on the opposite side of whatever dictator is there with ready cash for our guns and bullets. History teaches us that those weapons do not end up in a remote depot, they end up either intimidating or `in’ people who want a better way of life and who dare to say so; who want freedom of expression and who dare to act; who want to live in a democracy as we do in this country and who dare to confront tyranny.

We are not alone at home either, even in this administration. The recently-confirmed CIA director, George Tenet, on May 6, 1997, at a session of the Senate Select Committee on Intelligence, said the following:

`But the proliferation issue–and particularly the proliferation of ballistic missiles–and conventional weapons–we often ignore what the proliferation of conventional weapons means for U.S. forces–this issue is probably the greatest threat to U.S. forces and our men and women who deploy overseas than any other’ issue.

The CHAIRMAN. The time of the gentlewoman from Georgia [Ms.McKinney] has expired.

(By unanimous consent, Ms. McKinney was allowed to proceed for 30 additional seconds.)

[Page: H3620] Ms. McKINNEY. Mr. Chairman, I cannot say it any better than our CIA director. The issue before the Congress today is a national security issue and a moral issue. Seldom are we given such a stark opportunity to be on the right side of both issues. The Arms Trade Code of Conduct is just such an opportunity.

I ask my colleagues to vote for this amendment and let us be known by the values we espouse and not the weapons of oppression that we supply.

Mr. Chairman, U.S. weapons are currently being used in 39 of the world’s current 42 ethnic and territorial conflicts.

In the past 4 years, 85 percent of U.S. arms sales to the Third World have gone to undemocratic governments. The United States is responsible for 44 percent of all weapons deliveries in the world. The United States is unqualifiedly the arms dealer to the world, and the merchant for death to the world’s dictators.

Language requiring Congress to approve an arms sale to a dictator before it’s been made has been modified to give the President an automatic waiver for national security purposes which Congress could block after extensive debate.

A total of 453 American soldiers have been killed by armies strengthened by our own weapons and military training: Iraq, Saddam Hussein; Panama, Manuel Noriega; Somalia, Siad Barre, and Haiti, the Duvalier family.

In fiscal year 1994 $7 billion of taxpayer money went to subsidize U.S. arms exports. In fiscal year 1995, that figure jumped to $7.6 billion. After agricultural price supports, this represents the largest subsidy program for business in the entire Federal budget–Welfare for Weapons dealers.

Our Government employs nearly 6,500 full time personnel to promote and service foreign arms sales by U.S. companies.

U.S. subsidies for arms transfers are scheduled to increase. The international market for U.S. arms is estimated to be around $12 to $16 billion per year. Therefore, our foreign customers aren’t even paying for the weapons that they get. And more than half of U.S. weapons sales will be paid for by the U.S. taxpayers.

In 1995, subsidies for arms exports accounted for over 50 percent of U.S. bilateral aid and more than 39 percent of total U.S. foreign aid. the emphasis on promoting weapons exports has come at the expense of programs designed to promote economic development and social welfare in these recipient nations. I’d much rather see us exporting tractors and seeds to dictators than guns and bullets.

The American arms trade policy is killing our citizens, destroying worldwide democracy, and sending us spiraling down a path of economic ruin.

President Dwight D. Eisenhower said, `There can be no peace without law. And there can be no law if we were to invoke one code of international conduct for those who oppose us and another for our friends.’ We must help to stop the arms trade boomerang. Over 300 organizations support the No Arms to Dictators Code of Conduct. Among these organizations are: Vietnam Veterans Of America Foundation, Young Women’s Christian Association–the YMCA–of America, and Bread of the World, and organizations of the Presbyterian, Lutheran, and Roman Catholic churches.

I would like to thank the hundreds of volunteers who have put thousands of hours into making the U.S. Code of Conduct our law.

Each of us must be concerned about what happens when we sell weapons to dictators.

I urge my colleagues to support the Arms Trade Code of Conduct.

Mr. SMITH of New Jersey. Mr. Chairman, I rise in support of the amendment, the Arms Transfer Code of Conduct, and it will be the first major reform of U.S. arms transfer policy in almost two decades.

The code of conduct highlights guiding principles on human rights and democracy, which I believe are important to America’s leadership role in the post-cold war era. This amendment would help stem the flow of U.S. weapons to countries that brutalize their own people.

The code of conduct would make it clear that in the 21st century the United States of America intends not just to be a military and economic superpower but a moral superpower as well. It signals an end to business as usual for human rights violators.

Mr. Chairman, two-thirds of all of our foreign military sales go to countries described by the State Department Country Reports on Human Rights Practices as human rights violators with undemocratic governments.

Mr. Chairman, a few years ago I made a trip to Croatia when it was under siege. The gentleman from Virginia, [Mr. Wolf], and I visited a city that was literally surrounded by tanks and by military, a place called Vukovar. Vukovar was finally leveled, but while we were there we saw the bomb casings and we saw the 500-pound bombs that were dropped. And I will never forget taking pictures of these bomb casings that had U.S. markings all over them.

I will never forget also talking to President Milosevic and trying to ask him to stop that carnage that was going on in Croatia. Later on it was rolled out to Bosnia. Much of their military capability came from the United States and then was used in a slaughterhouse fashion against people who were unarmed, women and children and men who were civilians.

Mr. Chairman, the code of conduct is not a threat to U.S. national security. It contains a provision for an emergency waiver that would allow the President to transfer arms to a country that does not meet the code’s criteria if U.S. national security really did require such a transfer, and it provides for an orderly process for Congress to consider other exceptions of nonemergency nature.

Mr. Chairman, year after year in human rights hearings in the Subcommittee on International Operations and Human Rights, which I now chair, we hear there is a disconnect in U.S. foreign policy between human rights and other considerations. Amnesty International put it best when it said about this administration’s human rights policy, that `Human rights is an island off the mainland of U.S. foreign policy.’ This amendment is a step toward closing the circle, connecting things that ought to be connected.

We must tell the world that freedom and democracy do matter. A good way to begin is by telling the world that the United States will not put deadly weapons into the hands of the enemies of freedom and democracy.

Mr. Chairman, I want to congratulate the gentlewoman from Georgia, [Ms. McKinney], and the gentleman from California, [Mr.Rohrabacher], for their good work in crafting this amendment, and again I rise in very strong support of it.

June 10, 1997
The Illegality of NATO’s Nuclear Weapons

The following notes summarise what we in the World Court Project (UK) believe are the strongest arguments flowing from the Advisory Opinion of 8 July 1996 by the International Court of Justice (ICJ), which can be used in exposing the illegality of NATO’s nuclear policy.

It is important to recognise that none of our arguments will guarantee success in court. However, we are convinced that what we have to say is plausible and carries conviction.

As a general point, it is important to emphasise that the ICJ found threat and use to be indivisible. Whatever is illegal about use is also illegal about threat. This relates directly to nuclear deterrence.

NATO’s First Use Option

NATO retains the option of using nuclear weapons first. In paragraph 94 of the Opinion, the ICJ challenged the nuclear States that they had neither specified any legal circumstance for use, nor convinced it that “limited use would not tend to escalate into the all-out use of high-yield nuclear weapons.” It is difficult, if not impossible, to imagine a situation in which using nuclear weapons first would not have such a tendency.

This is especially applicable to the most likely scenario for the threat or use of nuclear weapons by the NATO nuclear States. The US, UK and France have plans to threaten to use nuclear weapons against even non-nuclear “rogue” States to counter the proliferation of weapons of mass destruction, or to protect US/UK/French so-called “vital interests” anywhere in the world. For such so-called sub-strategic use, some of the missiles in the currently patrolling UK Trident submarine are fitted with a single, variable lower-yield warhead – because six 100 kiloton warheads on a missile are not a credible deterrent threat to a “rogue” regime or terrorists.

These scenarios fall far short of those postulated in the ICJ’s only concession, that it could not “conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.” We can therefore argue that NATO first use would be illegal, whatever the yield of nuclear weapon used.

Complying with Humanitarian Law

The ICJ concluded that the threat or use of nuclear weapons is generally illegal. Indeed, it found no circumstance in which the threat or use of nuclear weapons would not violate humanitarian law.

Even in extreme circumstances, the threat or use of nuclear weapons must comply with international humanitarian law (paragraph 105D). Thus any use must, for example, discriminate between combatants and non-combatants, must not cause unnecessary or superfluous suffering, and must respect neutral States.

The NATO nuclear States deploy some, at least, of their nuclear warheads on behalf of the Alliance, and are willing to use them in collective self-defence. Although some of these warheads might be relatively small, the majority are far larger in their yield than the Hiroshima bomb.

For example, most UK Trident warheads are 100 kilotons – about 8 times larger than Hiroshima; moreover, most UK Trident missiles have six warheads. Such enormous destructive power, combined with the ability to cause untold human suffering and damage to generations to come from radiation effects, makes them incapable of complying with humanitarian law.

Francis Boyle, a US Professor of International Law who has specialized in nuclear weapon issues, advises that the best way to deal with this question is to apply the language of the Opinion to the specific nuclear weapons system under legal challenge.

The Nuremberg Connection

The ICJ’s confirmation that the Nuremberg Charter, as part of humanitarian law, applies to nuclear weapons has serious implications for all involved in implementing NATO’s nuclear policy. For example, military professionals need to be seen to be acting within the law if they are to be distinguished from hired killers or terrorists.

Military professionals shunned chemical and biological weapons before they were prohibited, because they were too indiscriminate and repulsive. NATO’s plans to use even low-yield nuclear weapons are vulnerable to the ICJ’s finding that the effects of nuclear weapons are unique, and more severe, widespread and long-lasting than those of chemical weapons. In so doing, the ICJ confirmed that nuclear weapons are in the same stigmatised category of weapons of mass destruction as chemical and biological weapons – only in many respects far worse.

Unanimous Call for Nuclear Disarmament

The judges’ unanimous call in paragraph 105F for nuclear disarmament went further than Article VI of the NPT, by stating that negotiations should be concluded irrespective of any treaty on general and complete disarmament, behind which hitherto the nuclear States have hidden.

This challenges the current perception among NATO decision-makers that “nuclear might is right” and lawful, and that NATO nuclear policy is sustainable.

Although NATO’s nuclear plans are secret, its post-Cold War posture shows that it has no intention of renouncing nuclear weapons; it is determined to maintain a nuclear warfighting capability; and it is prepared to threaten to use low-yield warheads first, backed by massive nuclear strikes when its public stance is one of last-resort, so-called “minimal deterrence” in self-defence.

NATO as a Nuclear Alliance

NATO is an alliance which relies on nuclear deterrence doctrine. The NATO Nuclear Planning Group takes collective decisions. Therefore NATO, as an institution as well as its individual members, carries responsibility for its nuclear policy.

To date, there is no evidence that the NATO Nuclear Planning Group has responded to the implications of the ICJ’s Opinion. The onus is now on NATO to demonstrate that its nuclear plans would:

1) fit the criteria of extreme circumstance; 2) not violate the humanitarian laws of warfare.

Our foregoing assessment suggests that NATO should urgently review its nuclear policy in order to comply with the ICJ’s opinion.

The Authority of the International Court of Justice

The UK government has consistently argued that the Opinion is not binding and changes nothing. However, on 24 September 1996 in the UN, the UK Foreign Secretary pledged “both moral and material support” to the ICJ, adding that “the more we accept that international law must be the foundation of international relations, the safer we shall all be.”

The ICJ is the UN’s Court. It can give Advisory Opinions on any question at the request of a UN agency, such as the General Assembly, in order to assist that agency in its duties. These Opinions clarify international law with the highest possible authority. An Advisory Opinion is only given after careful and lengthy deliberation by 15 judges after full hearings involving all interested States and UN agencies. In this case, 43 states – a record number, including the USA, UK and France – filed written submissions and 22 (again including the NATO nuclear States) made oral statements.

The USA, UK and France have signed the Hague and Geneva Conventions, and have affirmed the Nuremberg Principles. They are therefore bound to abide by these. Thus, the ICJ’s decision that the threat or use of nuclear weapons would generally violate the Law of War as codified in these conventions and principles means that the NATO nuclear States are under an obligation to respect this.

It is also worth pointing out that in December 1994, by a comfortable majority, the UN General Assembly (UNGA) requested the Court to deliver its Advisory Opinion on the threat or use of nuclear weapons. On 10 December 1996, an even larger majority of the UNGA adopted Resolution 51/45M which “takes note of” the Opinion and “expresses its appreciation to the ICJ”. The Resolution went on to call for “negotiations in 1997 leading to the early conclusion of a Nuclear Weapons Convention”.

Conclusion

By ignoring the ICJ’s decision, NATO is defying the most authoritative view of how international law applies to nuclear weapons; it is opposing the overwhelming majority of world opinion; and it is failing to heed what the UK Foreign Secretary said in the UN on 24 September 1996. This sets an irresponsible example, and augurs ill for the safety of the world.

******************************************************************* The World Court Project is an international citizens’ network which is working to publicise and have implemented the July 8 1996 Advisory Opinion of the International Court of Justice which could find no lawful circumstance for the threat or use of nuclear weapons.

The World Court Project is part of Abolition 2000, a global network to eliminate nuclear weapons.

World Court Project UK George Farebrother, UK Secretary 67, Summerheath Rd, Hailsham, Sussex BN27 3DR Phone & Fax 01323 844 269, Email geowcpuk@gn.apc.org

May 8, 1997
Chaining the Nuclear Beast

When I became a private citizen and a businessman two and one-half years ago, it was my intention to close the journal of my military career and never to reopen it…. My decision to step back into public life is prompted by an inner voice I cannot still, a concern I cannot quiet. I am compelled by a growing alarm, born of my former responsibilities, and a deepening dismay as a citizen of this planet, with respect to the course of events governing the role of nuclear weapons after the Cold War.

Over the last 27 years of my military career, I was embroiled in every aspect of American nuclear policy making and force posturing, from the councils of government to military command centers, from cramped bomber cockpits to the suffocating confines of ballistic missile submarines I have certified hundreds of crews for their nuclear mission and approved thousands of targets for potential nuclear destruction. I have investigated a dismaying array of accidents and incidents involving strategic weapons and forces. I have read a library of books and intelligence reports on the former Soviet Union and what were believed to be its capabilities and intentions…and seen an army of “experts” proved wrong. As an advisor to the President on the employment of nuclear weapons, I have anguished over the imponderable complexities, the profound moral dilemmas, and the mind-numbing consequences of decisions which would invoke the very survival of our planet.

Seen from this perspective, it should not be surprising that no one could have been more relieved than was I by the dramatic end to the Cold War. The reshaping of Central Europe, the democratization of Russia, and the rapid acceleration of arms control agreements were miraculous events SQ events that I never imagined would happen in my lifetime. Even more gratifying was the opportunity as the Director of Strategic Plans and Policy for the United States’ military forces, and then as commander of its strategic nuclear forces, to be intimately involved in recasting our defense posture, shrinking our arsenals, and scaling back huge impending Cold War driven expenditures. Most importantly, I could see for the first time the prospect of restoring a world free of the apocalyptic threat of nuclear weapons.

Over time, that shimmering hope gave way to a judgment which has now become a deeply held conviction: that a world free of the threat of nuclear weapons is necessarily a world devoid of nuclear weapons.

The concern… which compels me to speak frankly… is that the sense of profound satisfaction with which I departed my military career has been steadily eroded in the ensuing months and years. The astonishing turn of events which brought a wondrous closure to my three and one-half decades of service, and far more importantly to four decades of perilous ideological confrontation, presented historic opportunities to advance the human condition. But now time and human nature are wearing away the sense of wonder and closing the window of opportunity. Options are being lost as urgent questions are marginalized, as outmoded routines perpetuate Cold War habits and thinking; and as a new generation of nuclear actors and aspirants lurch backward into the dark world we so narrowly escaped without a thermonuclear holocaust.

What, then, does the future hold? How do we proceed? Can a consensus be forged that nuclear weapons have no defensible role, that the political and human consequences of their employment transcends any asserted military utility, that as weapons of mass destruction, the case for their elimination is a thousand-fold stronger and more urgent than for deadly chemicals and viruses already widely declared illegitimate, subject to destruction and prohibited from any future production?

I believe that such a consensus is not only possible, it is imperative, and is in fact growing daily. I see it in the reports issuing from highly respected institutions and authors; I feel it in the convictions of my colleagues on the Canberra Commission on the Elimination of Nuclear Weapons; it finds eloquent voice in the Nobel prize awarded to Joseph Rotblat and Pugwash; and a strident frustration in the vehement protests against the recent round of nuclear tests conducted by France.

Notwithstanding the perils of transition in Russia, enmities in the Middle East, or the delicate balance of power in South and East Asia, I believe that a swelling chorus of reason and resentment will eventually turn the tide. As the family of mankind develops a capacity for collective outrage, so soon will it find avenues for collective action. The terror-filled anesthesia which numbed rational thought, made nuclear war thinkable and grossly excessive arsenals possible during the Cold War is gradually wearing off. A renewed appreciation for the obscene power of a single nuclear weapon is taking a new hold on our consciousness, as we confront the nightmarish prospect of nuclear terror at the micro level.

Where do we begin? What steps can governments take, responsibly, recognizing that policy makers must always balance a host of competing priorities and interests?

First and foremost is for the declared nuclear states to accept that the Cold War is in fact over, to break free of the attitudes, habits and practices that perpetuate enormous inventories, forces standing alert and targeting plans encompassing thousands of aimpoints.

Second, for the undeclared states to embrace the harsh lessons of the Cold War: that nuclear weapons are inherently dangerous, hugely expensive, militarily inefficient and morally indefensible; that implacable hostility and alienation will almost certainly over time lead to a nuclear crisis; that the strength of deterrence is inversely proportional to the stress of confrontation; and that nuclear war is a raging, insatiable beast whose instincts and appetites we pretend to understand but cannot possibly control.

Third, with respect to present and prospective arms control agreements given its crucial leadership role, it is imperative for the United States to undertake now a sweeping review, led by the President, of nuclear policies and strategies. The Clinton administration’s 1993 Nuclear Posture Review was an essential but far from sufficient step toward rethinking the role of nuclear weapons in the post-Cold War world. While clearing the decks of some pressing force structure questions, the Review purposefully avoided the large policy issues. However, the Review’s justification for maintaining robust nuclear forces as a hedge against the resurgence of a hostile Russia is in my view regrettable from several respects. It sends an overt message of distrust in an era when building a positive security relationship with Russia is arguably the United States most important foreign policy concern. It codifies force levels and postures completely out of keeping with the profound transformation we have witnessed in world affairs. And, it perpetuates attitudes which inhibit a willingness to proceed immediately toward negotiation of greatly reduced levels of strategic arms.

Finally… I want to record my strong conviction that the risks entailed by nuclear weapons are far too great to leave the prospects of their elimination solely within the province of governments. Highly influential opinion leaders like yourselves can make a powerful difference in swelling the tide of global sentiment that the nuclear era must end. I urge you to read the one page statement from the Canberra Commission on the Elimination of Nuclear Weapons…. Better still, read the Commission Report in full, reflect on its recommendations, communicate with influential colleagues and with the Canberra Commissioners. Take an active role in debating and supporting the practical steps we set forth in our Report, such as taking nuclear weapons off a hair trigger alert and placing the associated warheads in secure storage.

These are steps which can be taken now, which will reduce needless risks and terminate Cold War practices which serve only as a chilling reminder of a world in which the principal antagonists could find no better solution to their entangled security fears than Mutual Assured Destruction.

Such a world was and is intolerable. We are not condemned to repeat the lessons of forty years at the nuclear brink. We can do better than condone a world in which nuclear weapons are enshrined as the ultimate arbiter of conflict. The price already paid is too dear, the risks run too great. The nuclear beast must be chained, its soul expunged, its lair laid waste. The task is daunting but we cannot shrink from it.

The opportunity may not come again.

October 3, 1996
Article 26

In considering the need to reform and strengthen the United Nations to better meet its obligations to provide for international peace and security, special attention should be given to Article 26 of the U.N. Charter. There are probably very few people in the world today familiar with this article. Consequently, the Security Council has been able to ignore one of its most important responsibilities for more than 50 years.

Article 26 states:

In order to promote the establishment and maintenance of international peace and security with the least diversion for armaments of the world’s human and economic resources, the Security Council shall be responsible for formulating, with the assistance of the Military Staff Committee referred to in Article 47, plans to be submitted to the members of the United Nations for the establishment of a system for the regulation of armaments.

The language of Article 26 is simple and straight forward. It is not possible to mistake the intent of its directive. The Security Council is given the responsibility for “formulating…a system for the regulation of armaments.”

The United Nations Charter was signed 50 years ago. In the intervening period of time, the Security Council has failed to carry out this responsibility to the members of the United Nations and through them to the people of the world. In 50 years the Security Council has done exactly nothing to fulfill its Article 26 obligation.

Under Article 26, the regulation of armaments is not optional for the Security Council. The Article says unambiguously that the Security Council “shall” formulate such a plan. The members of the Security Council have thus breached a solemn duty to the people of the world. Since the non-permanent members of the Security Council rotate at two year intervals, they cannot be held primarily responsible for failing to meet this obligation. It is the five permanent members of the Council — the United States, Russia, Britain, France, and China — that have been in violation of their Article 26 obligation for 50 years.

The reason that the permanent members of the Security Council have been remiss in fulfilling their obligation under Article 26 is not difficult to identify. After all, these states have been the greatest developers, producers, promoters, and sellers of arms. They have profited enormously by the sale of arms throughout the world, and they continue to do so. To fulfill their Article 26 obligation by formulating plans for the regulation of armaments would disadvantage them economically. Their behavior provides clear evidence that they would prefer to promote rather than regulate armaments.

The Military Staff Committee referred to in Article 26 is described in Article 47 as being composed of “the Chiefs of Staff of the permanent members of the Security Council or their representatives.” The purpose of the Military Staff Committee is “to advise and assist the Security Council on all questions relating to the Security Council’s military requirements for the maintenance of international peace and security, the employment and command of forces placed at its disposal, the regulations of armaments, and possible disarmament.”

The Military Staff Committee is also in breach of its obligation to “advise and assist” the Security Council in carrying out its Article 26 responsibility for formulating plans for the regulation of armaments. Since the Military Staff Committee is composed of representatives of the military forces of the five permanent members of the Security Council, their breach of duty is a further violation of the duty of the five permanent members.

The United Nations Charter lists as its first purpose to “maintain international peace and security,” and it gives the primary responsibility for carrying out this purpose to the Security Council. When the Security Council fails in meeting its responsibilities, including its responsibility under Article 26, it is the people of the world who suffer. The Councils failure to formulate plans for the regulation of arms under Article 26 has left the world awash in dangerous arms that take their toll daily against opposing military forces as well as innocent civilians and the environment.

When a nation signs the United Nations Charter it enters into a solemn treaty obligation. In essence, it makes a contract by which it agrees to be bound. While the five permanent members of the Security Council do have special privileges under the Charter, they do not have the privilege of violating the Charter with impunity. When they ignore the provisions of the Charter, as they have done by failing to meet their obligations under Article 26, they are in violation of international law. In simple terms, they have broken the law. Each day that passes without the formulation of plans by the Security Council for the regulation of armaments is an additional day of illegality for the permanent members.

For 50 years the permanent members of the Security Council have flaunted their illegality with respect to Article 26. They continue to develop, manufacture, promote, and sell armaments of all levels of sophistication throughout the world. They daily demonstrate by their actions and omissions their lack of respect for the law and for their solemn obligations. Day in and day out they place economic benefit and military power ahead of their legal obligations.

Article 26 stands in silent testimony to the lawlessness of the five permanent members of the Security Council. Article 26 reminds those of us who know of its existence of the disgraceful behavior of the most powerful nations on Earth in failing to meet their legal obligations under the Charter and, in doing so, setting themselves above the law.

Under the United States Constitution, treaty law is the law of the land. When the United States government signs and ratifies a treaty, it becomes bound by its provisions, and the obligations become part of the United States law. Thus, in its continuing failure to meet its obligations under Article 26, the United States government is in violation not only of the United Nations Charter but U.S. law as well. The buck stops with the president of the United States and the chairman of the Joint Chiefs of Staff. By their failure to even attempt to formulate a plan with the other members of the Security Council, they demonstrate daily contempt for the law, both international and domestic.

For those who attack the United Nations for its short-comings, of which there are all too many, Article 26 should be a powerful reminder that the United Nations can succeed only if the nations that are its members live up to their legal duties under the Charter. When nations fail to do so and threaten international peace and security, it is the Security Council, with the advice and assistance of the Military Staff Committee, that is charged with preserving the peace.When the Security Council fails to fulfill its obligation to regulate armaments, it is called upon to remedy the consequences of its inaction.

When the permanent members of the Security Council fail to meet their obligations to the United Nations, it is the General Assembly that must call them to account. If the General Assembly fails to act, it is the people of the world who must step forward and demand that the permanent members of the Security Council fulfill their obligations. A particular responsibility rests with the people of the nations that have permanent seats on the Security Council to call their governments to account and demand that they fulfill their legal obligations to formulate a system for the regulation of armaments under Article 26.

Four of the five permanent members of the Security council make claim to being democracies, and in these societies ultimate responsibility for government logically rests with the citizenry. Citizens in these states must be educated about Article 26 and must pressure their governments to act legally and responsibily to develop a plan for the worldwide regulation of armaments as called for in Article 26.

At the same time, other states must also demand that the Security Council fulfill its obligation under Article 26. The failure to regulate armaments has resultedin the escalation of death and destruction in warfare and made the world far more dangerous and deadly.

It is past time for the Security Council to act decisively on Article 26.

May 12, 1996
Denuclearization of the Oceans: Linking Our Common Heritage with Our Common Future

Introduction

The oceans were nuclearized shortly after the era of nuclear weapons began in 1945. On July 1, 1946, while still negotiating the internationalization of atomic energy at the United Nations, the United States began testing nuclear weapons at Bikini Atoll in the Pacific. Nuclear weapons testing in the Pacific continued through January 1996, when French President Jacques Chirac announced an end to French testing in the region.

In the 1950s, the United States again led the way in nuclearizing the oceans with the launching of a nuclear powered submarine, the Nautilus. The Nautilus and other nuclear submarines could stay submerged for long periods of time without refueling and cruise throughout the world. During the Cold War the U.S., former USSR, UK, France, and China developed nuclear submarine fleets carrying ballistic missiles with nuclear warheads. Some of these nuclear powered submarines with their multiple-independently-targeted nuclear warheads were and remain capable of single-handedly attacking and destroying more than one hundred major cities. These shadowy creatures of mankind’s darkest inventiveness remain silently on alert in the depths of the world’s oceans, presumably ready and capable, upon command, of destroying the Earth.

Our oceans are a precious resource to be shared by all humanity and preserved for future generations. It carries the concept of “freedom of the seas” to absurd lengths to allow those nations with the technological capacity to destroy the Earth to use the world’s oceans in so callous a manner.

Accidents aboard nuclear submarines have caused a number of them to sink with long-term adverse environmental consequences for the oceans. In addition to accidents, many countries have purposefully dumped radioactive wastes in the oceans.

With regard to proper stewardship of the planet, it is time to raise the issue of denuclearizing the world’s oceans. To fail to raise the issue and to achieve the denuclearization of the oceans is to abdicate our responsibility for the health and well-being of the oceans and the planet.

Nuclearization of the Oceans

Nuclearization of the oceans has taken a variety of forms. The primary ones are:

1. the oceans have served as a medium for hiding nuclear deterrent forces located on submarines;

2. nuclear reactors have been used to power ships, primarily submarines, some of which have gone down at sea with their nuclear fuel and nuclear weapons aboard;

3. increasing use is being made of the oceans for the transportation of nuclear wastes and reprocessed nuclear fuels;

4. the oceans have been used as a dumping ground for nuclear wastes;

5. atmospheric nuclear weapons testing, particularly in the Pacific, has been a source of nuclear pollution to the oceans as well as the land; and

6. underground nuclear weapons testing, such as that conducted by France in the South Pacific, has endangered fragile Pacific atolls and caused actual nuclear contamination to the oceans as well as risking a much greater contamination should the atolls crack due to testing or future geological activity.

The problems arising from nuclearization of the oceans can be viewed from several perspectives.

From an environmental perspective, issues arise with regard to nuclear contamination in the oceans working its way up through the food chain. The biological resources of the oceans will eventually affect human populations which are reliant upon these resources.

The threat of nuclear contamination has diminished with regard to nuclear testing, which has not taken place in the atmosphere since 1980. Moreover, the nuclear weapons states have committed themselves to a Comprehensive Test Ban Treaty, which they have promised to conclude by 1996. This treaty, if concluded, will end all underground nuclear testing.

The dumping of high-level radioactive waste material was curtailed by the Convention on the Prevention of Marine Pollution by the Dumping of Wastes and Other Matter, which entered into force in 1975. A later amendment to this Convention prohibited ocean dumping of all radioactive wastes or other radioactive matter. However, exemptions authorized by the International Atomic Energy Agency and non-compliance remain a concern. Problems can be anticipated in the future when radioactive contaminants already dumped in canisters or contained in fuel or weapons aboard sunken submarines breach their containment.

Increased use of the oceans to transport nuclear wastes and reprocessed nuclear fuel (between Japan and France, for example) has substantially increased the risk of contamination. Coastal and island states that are on the route of the transportation of nuclear materials stand high risks of contamination in the event of an accident at sea. International law regarding the transportation of hazardous material must be strengthened and strictly enforced by the international community to prevent catastrophic accidents in the future.

From a human rights perspective, inhabitants of island states in the Pacific have suffered serious health effects and dislocation as a result of atmospheric and underground nuclear weapons testing. In response to assurances by France that their underground testing in the South Pacific is entirely safe, the islanders in Polynesia and throughout the Pacific have retorted: If it is so safe, why isn’t it being done in France itself? The response of the French government has been that French Polynesia is French territory, highlighting the arrogance and abuse that accompanies colonialism.

Human rights issues also arise with regard to maintaining a nuclear deterrent force that threatens the annihilation of much of humanity. The Human Rights Committee stated in November 1984 in their general comments on Article 6 of the International Covenant on Civil and Political Rights, i.e., the right to life, that “the production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity.” The deployment of nuclear weapons on submarines, therefore, arguably constitutes a crime against humanity, and thus a violation of the most fundamental human right, the right to life.

From a security perspective, the nuclear weapons states argue that having a submarine-based deterrent force assures their security. Thus, to varying degrees, each of the nuclear weapons states maintains strategic submarines capable of causing unthinkable destruction if their missiles were ever launched. (See Appendix.) Viewed from the self-interests of nearly all the world’s population-except the nuclear weapons states whose leaders appear addicted to maintaining their nuclear arsenals -the continued reliance on nuclear deterrence, at sea or on land, poses a frightening threat to continued human existence.

In 1972 the Seabed Agreement prohibited the emplacement of nuclear weapons on the seabed, ocean floor, or subsoil thereof. This agreement prohibited what was already deemed unnecessary by the nuclear weapons states; placing nuclear weapons on submarines made them less vulnerable to detection and destruction than placing them on or beneath the seabed or ocean floor. The oceans continue to be used by the nuclear weapons states as an underwater shadow world for their missile carrying submarines.

The United States alone currently has 16 Trident submarines, each carrying some 100 independently targeted nuclear warheads. Each Trident submarine has a total explosive force greater than all the explosive force used in World War II, including at Hiroshima and Nagasaki. Britain, with the help of the United States, is replacing its older class of Polaris SSBNs with a fleet of four Trident submarines. France currently has five strategic missile submarines with four more of a superior class to be commissioned by 2005. Russia has over 35 strategic missile submarines with an estimated capacity of 2,350 nuclear warheads. China has two modern ballistic missile submarines. Its Xia class submarine carries twelve 200 kiloton nuclear warheads.

The total destructive force that day and night lurks beneath the oceans is a chilling reminder of our technological capacity to destroy ourselves. That this threat was created and is maintained in the name of national security suggests a collective madness that must be opposed and overcome if, for no other reason, we are to fulfill our obligation to posterity to preserve human life.

An ongoing responsibility resides with the nuclear weapons states to fulfill the obligations set forth in Article VI of the Non-Proliferation Treaty (NPT), “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” At the NPT Review and Extension Conference in April and May 1995, the treaty was extended indefinitely after extensive lobbying by the nuclear weapons states. At the same time the nuclear weapons states promised to enter into a Comprehensive Test Ban Treaty by 1996, and to engage in a “determined pursuit” of the ultimate elimination of their nuclear arsenals.

Protecting the Common Heritage

The Law of the Sea Treaty enshrines the concept of the oceans as the common heritage of [hu]mankind. Maintaining the oceans as a common heritage demands that the oceans be protected from contamination by nuclear pollutants; that they not be used in a manner to undermine basic human rights, particularly the rights to life and to a healthy environment; and that the oceans not be allowed to serve as a public preserve for those states that believe their own security interests demand the endangerment of global human survival.

It is unreasonable to allow our common heritage to be used to threaten our common future. Deterrence is an unproven and unstable concept that is being tested on humanity by a small number of powerful and arrogant states that have turned nuclear technology to its ultimate destructive end. In order to link the common heritage with our common future, the large majority of the world’s nations advocating an end to the threat of nuclear annihilation should seek to achieve a Nuclear Weapons Convention by the year 2000 that eliminates all nuclear weapons in a time-bound framework. The prohibition and conversion of strategic ballistic missile submarines must be part of this accord. Perhaps this will be the final step in achieving a nuclear weapons free world.

Life began in the oceans and eventually migrated to land. We must not allow the oceans to continue to provide a secure hiding place for nuclear forces capable of causing irreparable damage to all life. This is an inescapable responsibility of accepting the proposition that life itself, like the oceans, is a common heritage that must be protected for future generations.

——————————————————————————–

APPENDIX: NUCLEAR POWER AT SEA*

A. Nuclear Weapons

UNITED STATES

Strategic Missile Submarines (SSBN)

Active: 16 Building: 2

Trident: 16 + 2

There are presently 16 Trident submarines in operation, eight at Sub-Base Bangor and eight at Sub-Base Kings Bay. The schedule is to complete one submarine per year for a total of 18 with the final one becoming operational in 1997.

In September 1994 it was announced in the Pentagon’s “Nuclear Posture Review” that the Trident force would be cut from 18 to 14. The submarines to be retired are still under review but are believed to be the four oldest in the fleet. They will be preserved, however, in mothballs until the Strategic Arms Reduction Talks (START) II Treaty is fully implemented in 2003.

These submarines carry 24 missiles each. The submarines are armed with Trident-1 missiles (C-4) and the Trident-2 (D-5). In 1991 all strategic cruise missiles (Tomahawks) were removed from surface ships and submarines.

The C-4 can carry up to eight 100 kiloton Mark-4/W-76 Multiple Independently-targeted Reentry Vehicles (MIRV). There are currently 192 Trident-1 missiles deployed in eight Trident submarines based at Bangor, Washington with a total of 1,152 Mk-4 warheads. Four of these submarines are to be deactivated and the remaining four are to be converted to carry Trident-2 missiles. Plans are to then base seven of the 14 submarines on each coast.

The D-4 can carry up to 12 MIRV with Mark-4/W-76 100-kT warheads, or Mark-5/W-88 300-475-kT warheads each. Under START counting rules, a limit of 8 reentry vehicles (RV) was set, but this may be further reduced to four or five if START II is implemented. About 400 Mk-5/W-88 warheads for the Trident-2 missiles were produced before they were canceled because of production and safety reasons. Two new Trident subs fitted with D-4 missiles will be delivered by 1997.

Under the START Treaties, warheads that are reduced do not have to be destroyed. According to the Nuclear Posture Review the current plan is to remove three or four warheads per missile from Trident Submarine Launched Ballistic Missiles (SLBMs) to meet the START II ceiling of 1,750 SLBM warheads. Plans are to reduce the C-4 to 1,280 warheads and the D-4 to 400. These warheads will be kept in storage and if it is determined that the SLBMs need to be uploaded, the Pentagon can reuse them.

RUSSIA

Strategic Missile Submarines (SSBN)

Active: 39 Building: 0

The Russian navy is divided into four fleets: the Baltic, Northern, Black Sea and the Pacific. In the Northern and the Pacific fleets, the primary issue is of what to do with the estimated 85 retired nuclear submarines. Since the breakup of the Soviet Union, it is believed that over half of their nuclear-powered ballistic missile submarine fleet has been withdrawn from operational service. These ships are currently moored at various bases with their reactors still on board. The number is growing faster than the money available to remove and store the fuel elements and decontaminate the reactor compartments. Since 1991, there has been a lack of funds to operate the fleet. Consequently, few of the submarines listed as active have actually been at sea.

In response to President Bush’s September 27, 1991 decision to remove tactical nuclear missiles from ships, President Gorbachev announced that six SSBNs with 92 SLBMs (presumably five Yankee Is and a single Yankee II) were to be removed from operational forces. Russian Fleet Commander Adm. Oleg Yerofeev reports that as of October 20, 1991 all tactical nuclear weapons were removed from the Northern and Pacific fleet ships and submarines.

The January-February, 1993 issue of the Bulletin of Atomic Scientists reports that Russia intends to stop building submarines in its Pacific yards within the next two to three years. Russian President Boris Yeltsin made this announcement during a November 1992 visit to South Korea.

The Russian (CIS) SLBM stockpile is estimated to be at: 224 SS-N-18 Stingray armed with three warheads at 500-kT, 120 SS-N-20 Sturgeon with ten 200-kT warheads, and 112 SS-N-23 Skiff missiles with four 100-kT warheads. Total warheads are believed to be about 2320.

According to Pentagon officials, Russia has already reduced its patrols to a single ballistic missile submarine. In contrast, the U.S. Navy continues to patrol with a dozen or so submarines at a time.

NATO names are used in this listing. Russian names are given in parentheses.

Typhoon (Akula) Class: 6

The Typhoon carries 20 SS-N-20 Sturgeon missiles, with six to nine MIRV 200-kT nuclear warheads. The Typhoon can hit strategic targets from anywhere in the world. There are plans to modernize the Typhoons to carry an SS-N-20 follow-on missile which would have improved accuracy. All the Typhoons are stationed in the Northern Fleet at Nerpichya. One was damaged by fire during a missile loading accident in 1992, but has since been repaired.

Delta IV (Delfin) Class: 7

The Delta IV carries 16 SS-N-23 Skiff missiles, with four to ten MIRV 100-kT nuclear warheads. These ships are based in the Northern Fleet at Olenya.

Delta III (Kalmar) Class: 14

The Delta III is armed with 16 SS-N-18 Stingray missiles. There are three possible modifications for the Stingray. (1) three MIRV at 200-kT, (2) a single 450-kT, (3) seven MIRV at 100-kT. Nine ships are in the Northern Fleet and five are in the Pacific Fleet.

Delta II (Murena-M) Class: 4

The Delta II has 16 SS-N8 Sawfly missiles with two possible modifications. The first is with a single 1.2 MT nuclear warhead, the other is with two MIRV at 800-kT. This class of submarine is no longer in production. All four are stationed in the Northern fleet at Yagelnaya and are believed to have been taken off active duty.

Delta I (Murena) Class: 8

The Delta I carries 12 SS-N-8 Sawfly missiles, armed with either a single 1.2 MT nuclear warhead or two MIRV 800-kT. Three ships are stationed in the North and the other five are in the Pacific. One of these ships may be converted into a rescue submarine. As with the Delta II’s, all of these ships are believed to have been taken off active duty.

UNITED KINGDOM

Strategic Missile Submarines (SSBN)

Active: 4 Building: 2

Vanguard Class: 2 + 2

The Vanguard-class is modeled on the United States Trident submarine. It carries 16 Trident II (D-5) missiles with up to eight MIRV of 100-120-kT nuclear warheads. The D-5 can carry up to 12 MIRV but under plans announced in November 1993 each submarine will carry a maximum of 96 warheads. The U.K. has stated that it has no plans to refit their Tridents with conventional warheads, insisting on the nuclear deterrent.

Resolution Class: 2

The Resolution-class was initially fitted with 16 Polaris A3 missiles with three multiple reentry vehicles of 200-kT each. Beginning in 1982, the warheads were replaced under the “Chevaline Program.” The Chevaline is a similar warhead, but contains a variety of anti-ballistic missile defenses. The two remaining submarines in this class are both scheduled for decommission.

CHINA

Strategic Missile Submarines (SSBN)

Active: 1 Projected: 1

Intelligence on Chinese nuclear submarines is extremely limited. Experts disagree on whether there is one or two SSBNs in the Chinese fleet. A new class of SSBN is expected to begin construction in 1996 or 1997.

Xia Class: 1 or 2

The Xia carries 12 Julang or “Giant Wave” CSS-N-3 missiles armed with a single 200-300-kT nuclear warhead. Approximately 24 of these missiles have been deployed. An improved version of this missile is currently being developed.

Golf Class (SSB): 1

Although the Golf is not nuclear driven, it is armed with ballistic missiles. The submarine is outfitted with two Julang missiles.

FRANCE

Strategic Missile Submarines (SSBN)

Active: 5 Building: 3 Projected: 1

In 1992 France announced that it would cut the number of new Triomphant-class SSBNs under construction from 6 to 4. Robert Norris and William Arkin of the Natural Resource Defense Council estimate that France will produce 288 warheads for the fleet of four submarines, but with only enough missiles and warheads to fully arm three boats. It is estimated that France has 64 SLBMs with 384 warheads.

Triomphant Class: 0 + 3(1)

The first submarine of its class, Le Triomphant, recently began conducting trials in the sea and is scheduled to depart on its first patrol in March 1996. The other ships are expected to be operational by 2005. The Triomphant-class is armed with 16 M45 missiles with 6 multiple reentry vehicles (MRV) at 150-kT. There are plans to later refit the submarines with the more powerful M5 with 10-12 MRV around 2010. Testing for these new missiles were recently conducted at the Moruroa and Fangataufa atolls.

L’Inflexible Class: 5

L’Inflexible is armed with 16 Aerospatiale M4B missiles with six MRV at 150-kT. The French navy has 80 SLBMs deployed on its five submarines. This class of ships is based at Brest and commanded from Houilles. They patrol in the Atlantic Ocean and the Norwegian and Mediterranean Seas. The minimum number of submarines always at sea has been reduced from three to two.

B. OTHER NUCLEAR POWERED SHIPS

UNITED STATES

Attack Submarines (SSN)

Active: 86 Building: 4 Projected: 1

Permit Class: 1
Benjamin Franklin Class: 2
Narwhal Class: 1
Los Angeles Class: 57 + 2
Sturgeon Class: 25
Seawolf Class: 0 + 2(1)

The Seawolf was launched in July 1995, and is scheduled to be commissioned in May 1996.

Aircraft Carriers (CVN )

Active: 6 Building: 3

Nimitz Class: 6 + 3

Guided Missile Cruisers (CGN)

Active: 5

Virginia Class: 2
California Class: 2
Brainbridge Class: 1

RUSSIA

Cruise Missile Submarines (SSGN)

Active: 19 Building: 1 Projected: 1

Echo II Class (Type 675M): 3
Oscar I (Granit) Classes: 2
Oscar II (Antyey): 10 + 1(1)
Charlie II (Skat M) Class: 3
Yankee Sidecar (Andromeda) Class: 1

Attack Submarines (SSN)

Active: 51 Building: 6 Projected: 1

Severodvinsk Class: 0 + 3(1)
Sierra II (Baracuda) Class: 2
Akula I (Bars) Class: 4
Akula II (Bars) Class: 8 + 3
Sierra I (Baracuda I) Class: 2
Alfa (Alpha) Class: 1
Victor III (Shuka) Class: 26
Victor II (Kefal II) Class: 3
Victor I (Kefal I) Class: 2
Yankee Notch (Grosha) Class: 3

Battle Cruisers (CGN)
Active: 4

Kirov Class: 4

UNITED KINGDOM

Attack Submarines (SSN)

Active: 12 Projected: 5

Trafalgar Class: 7 + (5)
Swiftsure Class: 5

CHINA

Attack Submarines (SSN)

Active: 5 Building: 1
Han Class: 5

Nuclear attack submarines are believed to be a high priority for the Chinese, but due to high internal radiation levels, production has been suspended.

FRANCE

Attack Submarines (SSN)

Active: 6 Projected: 1

Rubis Class: 6 + (1)

The nuclear attack submarine Rubis collided with a tanker on July 17, 1993 and has had to undergo extensive repairs. On March 30, 1994 the Emeraude had a bad steam leak which caused casualties amongst the crew.

Aircraft Carriers (CVN)

Active: 0 Building: 1 Projected: 1

The nuclear powered aircraft carrier Charles de Gaulle was launched in 1994, it is expected to be commissioned in July 1999.

March 12, 1996
Graduates: Take Global Responsibility

“I pledge allegiance to the Earth, and to its varied life forms; one world, indivisible, with liberty, justice and dignity for all.”

We need more people to take the pledge, and live their lives as though the Earth and its myriad of creatures mattered.

We all know at some level that the world–this beautiful, unique world we inhabit–is in a precarious state, and not enough is being done to save it. The environment is under attack. The quality of our air and water is deteriorating, the ozone layer is being depleted as are our forests, desertification is expanding, and global warming continues. Too many people are starving and too many are hungry; too many are homeless and without adequate medical care; too many children die of preventable diseases. While some people live in obscene abundance, others barely survive and many don’t survive. Population is on an exponential rise, leading to a doubling of global population in the next 50 years. Throughout the world human rights are routinely abused by governments that torture and murder their own citizens. Wars rage on, and nuclear weapons threaten to spread to nations that seek to flex their technological muscles as the existing nuclear weapons states have done for decades.

What is to be done about all of this? The choices are these: ignore the problems, allow yourself to be paralyzed by fear or despair, or roll up your sleeves and take responsibility for changing the world. The first two choices are akin to giving up–giving up your humanity. The only hope for making a difference is to choose responsibility–global responsibility.

Responsibility is an underrated concept. Without responsibility very little would get done. With responsibility, almost anything is possible.

Global responsibility can become a way of life characterized by awareness, beliefs and commitment–the A-B-C of global change. The starting point is awareness of the serious problems which confront us. Awareness comes from education, in class and out. Beliefs reflect values, for example, the belief that change is possible, that you can make a difference, that all persons are entitled to “life, liberty, and the pursuit of happiness.” Commitment is what impels you to action, the willingness to give of yourself, to sacrifice, to make a difference in the world.

Each generation has a responsibility to pass the world on in tact to the next generation. We are stewards of the abundance and beauty of our unique planetary home. Our generation and the one before us haven’t done such a good job–we’ve lost control of too many powerful technologies and been too greedy and power-seeking. I believe that your generation can do better. In fact, your generation must do better, for yourselves and for posterity.

If your commitment to global responsibility should falter because you think the task is too big or you don’t have enough time for it or for a thousand other reasons, remember that you are the link to the future. Without your active involvement, there may not be a future. If each of us does not personally accept global responsibility, we have no right to expect someone else to accept it. Is it fair to ask that others pull our weight for us?

We all believe in human rights, but without human responsibility there cannot be human rights. They are two sides of a coin. In today’s interlinked and interdependent world, human rights demand global responsibility.

John Donne, writing some four centuries ago, reminded us that “no man is an Iland, intire of itselfe; everyman is a peece of the Continent, a part of the maine….” In today’s language we should say, “No human is an island….” We are all in this together, all five and a half billion of us. We are all one species, all relatives, all members of the human family–egardless of our race, color, gender or creed. We can join with John Donne in recognizing that “any man’s death diminishes me, because I am involved in Mankinde….”

We share a common responsibility for safeguarding this unique planet where life flourishes, this small blue dot in a vast universe which is our home. The threats we face demand that we put aside selfishness, and step forward to accept responsibility for creating a peaceful and just world. We can do better than solving our problems by means of technological violence, and we can do more for each other. We can take seriously that “all men [and women] are created equal and endowed by their Creator with certain unalienable rights….”

We can live by the Universal Declaration of Human Rights which recognizes that “the inherent dignity and… the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world….” We can accept personal responsibility for upholding these rights. We can speak out and act in behalf of our unique Earth and its many life forms that cannot give voice to the impending disasters that surround us. We can take responsibility– global responsibility — for creating a better world. Now is the time to begin.

June 12, 1993
A Nonviolent Political Agenda for a More Humane World

https://wagingpeace.davidmolinaojeda.com/articles/wagingpeaceseries/maguire.pdf

September 12, 1992