AT THE NucLEAR PRECIPICE

AT THE NucLEAR PRECIPICE

Catastrophe or Transformation?

Edited by

Richard Falk and David Krieger

pal grave macmillan

* AT THE NUCLEAR PRECIPICE

Copyright © Richard Falk and David Krieger, 2008. Softcover reprint of the hardcover 1st edition 2008 978-0-230-60895-5

All rights reserved.

First published in 2008 by PAlGRAVE MACMillAN® in the U5-a division of St. Martin's Press llC, 175 Fifth Avenue, New York, NY 10010.

Where this book is distributed in the UK, Europe and the rest of the world, this is by Palgrave Macmillan, a division of Macmillan Publishers limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS.

Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world.

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ISBN 978-1-349-37570-7 ISBN 978-0-230-61572-4 (eBook) DOI 10.1057/9780230615724

library of Congress Cataloging-in-Publication Data

At the nuclear precipice: catastrophe or transformation? I Richard Falk and David Krieger, editors.

p.cm. Includes bibliographical references and index.

1. Nuclear disarmament. 2. Nuclear arms control. 3. Security, International. 4. Nuclear weapons {International law) 5. Nuclear warfare. 6. United States­Military policy. 7. Nuclear weapons-United States. I. Falk, Richard A. II. Krieger, David, 1942-

JZ5675.A89 2008 355.02'17-dc22

A catalogue record of the book is available from the British library.

Design by Newgen Imaging Systems (P) ltd., Chennai, India.

First edition: October 2008

10 9 8 7 6 5 4 3 2 1

Transferred to Digital Printing 2011

2008012358

To the courageous individuals who understand that peace is an imperative of the Nuclear Age, and who struggle,

passionately and persistently, to abolish nuclear weapons and end the institution of war.

Acknowledgments

List of Acronyms

CoNTENTS

Foreword: Illegal in Any Circumstances Whatsoever Douglas Roche

Preface: The Human Right to a Nuclear Weapon-Free World Mairead Corrigan Maguire

Introduction Richard Falk and David Krieger

Part I At the Nuclear Precipice

1 Sleepwalking Into Our Century of Last Opportunity Christopher G. Weeramantry

2 Still Standing at the Nuclear Precipice after All These Years: Why? Jacqueline Cabasso

Part II Nuclear Weapons and International Law

Xl

xiii

XV

xix

1

15

29

3 Non-Proliferation Treaty Illusions and International Lawlessness 39 Richard Falk

4 U.S. Nuclear Weapons Policy and International Law 49 Thomas Graham, Jr.

5 The "Inalienable Right" to Peaceful Nuclear Power: A Recipe for Chaos 57 Alice Slater

Part III Nuclear Weapons Policy

6 Rethinking U.S. Nuclear Weapons Policy Michael D. Intriligator

7 NATO Nuclear Weapons: The International Face of U.S. Nuclear Policy

67

77

viii • CONTENTS

Matthew Martin

8 Ending Nuclear Terrorism: By America and Others Daniel Ellsberg

9 At the Nuclear Precipice: Iran Aslt 0. Bali

10 Nuclear Dangers and Challenges to a New Nuclear Policy David Krieger

Part IV A New Direction

11 Roadmaps to Disarmament: A Strategy for the Second Nuclear Era WadeL. Huntley

12 Strengthening International Security through International Law ]urgen Scheffran

13 Preventing Nuclear Catastrophe: Where Do We Go from Here? Mohamed ElBaradei

Part V Stepping Back from the Precipice

14 Turning Away from the Nuclear Precipice David Krieger

15 Nuclear Weapons, War, and the Discipline of International Law Richard Falk

16 Where We Stand: A Dialogue David Krieger and Richard Falk

Appendices

Appendix A: The Russell-Einstein Manifesto Issued in London, 9 July 1955

Appendix B: Abolition 2000 Statement

Appendix C: The Rome Declaration of Nobel Peace Laureates-The 7th World Summit of Nobel Laureates, November 19,2006

Appendix D: Nagasaki Appeal 2006, October 23, 2006

Appendix E: Lecture at Princeton University, November 28, 2006 Kofi A. Annan

83

97

161

171

185

209

217

225

235

249

253

255

259

263

Appendix F: The Power of Place-Citizens and Elected Officials Uniting to Create a Nuclear Weapon-Free World Pamela S. Meidell

Suggested Reading

List of Contributors

Index

CONTENTS • ix

269

281

283

287

AcKNOWLEDGMENTs

This book includes the contributions of many authors. We thank them all for their commitment to the volume and to the challenge of ending the nuclear weapons threat to humanity.

Most of the chapters in the book were originally papers presented at a 2006 symposium, "At the Nuclear Precipice: Nuclear Weapons and the Abandonment oflnternational Law," organized by the Nuclear Age Peace Foundation. We wish to express our appreciation to our fellow directors of the foundation and to its members and supporters.

The chapters added following the conference were those by Judge Christopher G. Weeramantry, the former vice president of the International Court of Justice (ICJ) and Mohamed E!Baradei, the director general of the International Atomic Energy Agency. We appreciate the support of these personalities and the International Atomic Energy Agency (IAEA).

We are indebted to Vicki Stevenson for her hard and careful work in preparing the manuscript for publication. We wish to thank Toby Wahl at Palgrave Macmillan for his support of the this book and the Palgrave Macmillan editing and production staff for their care in producing the book.

We also thank our wives, Hila! Elver, and Carolee Krieger, for their strong support on this project and many more.

ABM ASAT BMD CBMs CD CISAC CISSM CTBT EU-3 FAS FMCT GCS GNEP GPALS GPS HCoC HEU IAEA ICAN ICBM ICJ IMF INESAP INF IRENA ISG JDEC LCNP LEU LOWC MAD MTCR NAM NAC NAS NASA NATO NCRI NGOs NMs NNSA NNWS

AcRONYMS

Anti-Ballistic Missile (Treaty) Anti-Satellite Weapon Ballistic Missile Defense Confidence Building Measures Conference on Disarmament Center for International Security and Arms Control Center for International Security Studies at the University of Maryland Comprehensive Test Ban Treaty United Kingdom, France, and Germany Federation of American Scientists Fissile Material Cut-OffTreaty Global Control System Global Nuclear Energy Partnership Global Protection Against Limited Strikes Global Positioning System Hague Code of Conduct High-Enriched Uranium International Atomic Energy Agency International Campaign to Abolish Nuclear Weapons Intercontinental Ballistic Missile International Court ofJustice International Monetary Fund International Network of Engineers and Scientists Against Proliferation Intermediate-Range Nuclear Forces (Treaty) International Renewal Energy Agency Iraq Study Group Joint Data Exchange Centre Lawyers' Committee on Nuclear Policy Low-Enriched Uranium Launch on Warning Capability Mutually Assured Destruction Missile Technology Control Regime Non-Aligned Movement New Agenda Coalition National Academy of Sciences National Aeronautics and Space Administration North Atlantic Treaty Organization National Council of Resistance oflran Non-Governmental Organizations Nuclear Materials National Nuclear Security Administration Non-Nuclear Weapon States

xiv • ACRONYMS

NPR NPT NRC NRDC NSAs NSG NSS NSWMD NWC NWFW NWFZ NWS OPANAL OST P5 P5+l PAL PNAC RNEP RRW SALT SlOP SLBM SORT START UDHR UFPJ UN UNGA UNMOVIC WHO WMD WMDC ZBM

Nuclear Posture Review Non-Proliferation Treaty National Research Council National Resources Defense Council Negative Security Assurances Nuclear Suppliers Group National Security Strategy National Strategy to Combat Weapons of Mass Destruction Nuclear Weapons Convention Nuclear Weapon-Free World Nuclear Weapon-Free Zone Nuclear Weapon States Organization for the Prohibition of Nuclear Arms in Latin America Outer Space Treaty Permanent Five (members of the UN Security Council) Permanent Five and Germany Permissive Action Link Project for a New American Century Robust Nuclear Earth Penetrator Reliable Replacement Warhead Strategic Arms Limitation Treaty (I and II) Single Integrated Operational Plan Sea Launched Ballistic Missiles Strategic Offensive Reductions Treaty Strategic Arms Reduction Treaty (I and II) Universal Declaration of Human Rights United for Peace and Justice United Nations United Nations General Assembly United Nations Monitoring, Verification, and Inspection Commission World Health Organization Weapons of Mass Destruction Weapons of Mass Destruction Commission Zero Ballistic Missiles

FOREWORD

Illegal in Any Circumstances Whatsoever

Douglas Roche

The nuclear disarmament movement must focus on driving home a clear core message to the public and the politicians: nuclear weapons are immoral and illegal. They are a crime against humanity.

Though often treated separately, the moral and legal arguments have a common basis in humanity's long understanding that indiscriminate destruction oflife violates the humanitarian value oflife itself.

Two of the towering figures in the nuclear disarmament movement, the late Sir Joseph Rotblat and Judge Christopher Weeramantry, have forcefully expressed the interrelatedness of this twofold message. We ought to concentrate on what they have taught us as we ourselves explore ways to demand effectively that governments live up to their moral and legal responsibilities.

Rotblat provided an example of how to express the antihuman nature of nuclear weapons in moral language that transcends religions. Only a few months before his death, he sent a message to the 2005 Review Conference of the Non-Proliferation Treaty (NPT).

Morality is at the core of the nuclear issue: are we going to base our world on a culture of peace or on a culture of violence? Nuclear weapons are fun dam en­tally immoral: their action is indiscriminate, affecting civilians as well as military, innocents and aggressors alike, killing people alive now and generations as yet unborn. And the consequence of their use might be to bring the human race to an end. All this makes nuclear weapons unacceptable instruments for maintaining peace in the world.

Rotblat concluded his argument thus:

How can we talk about a culture of peace if that peace is predicated on the existence of weapons of mass destruction? How can we persuade the young generation to cast aside the culture of violence when they know that it is on the threat of extreme violence that we rely for security?

xvi • FOREWORD

This language crosses all boundaries and becomes inextricably interwoven with all the processes of daily life. The language can resonate with politicians, who should be able to relate to all segments of their constituencies.

NucLEAR WEAPONS AND HuMAN SECURITY

CANNOT CoExisT

Nuclear weapons and human security cannot coexist on the planet. Nuclear weapons are antihuman. That is what the moral aspect of the discussion is all about. Humanitarian law has always recognized that limitation and proportionality must be respected in warfare. But the very point of a nuclear weapon is to kill massively; the killing and the poisonous radiation cannot be contained.

The social and economic consequences of nuclear war in a world whose life-support systems are intimately interconnected would be catastrophic. The severe physical damage from blast, fire, and radiation would be followed by the collapse of food production and distribution and even water sup­plies. The prospect of widespread starvation would confront huge masses of people. Rampant disease would follow the breakdown in health care facilities. These immense brutalities would violate the universal norm of life-to go on living in a manner befitting a human being with the inherent right to life.

No civilization, no culture has ever denied this common foundation upon which all peoples stand. Leaving aside the massive suffering, which by itself ought to stir the consciences of the nuclear proponents, the entire question of human rights would be upended. The right to a social and international order, as set forth in the Universal Declaration of Human Rights, would be completely lost. The structures underpinning humanitarian law would be gone. Order would be inverted into disorder. What is the "self' that the proponents of nuclear use for "self-defense" supposed to mean? The only way to really uncover the hypocritical defense of nuclear weapons as instruments of self-defense is to focus on the overarching humanitarian question.

It is empowering to note that the age of weapons of mass destruction arrived just at the time when the Universal Declaration on Human Rights and its follow-up instruments were being codified. Just when we have learned that every human, without regard to the culture, religion, ideology, or geography, has the right to life, we have perfected our ability to kill massively. The United Nation's formulation of a Culture of Peace is leading us inevitably to the recognition that every human being has the right to peace, in fact, as is said in the early declara­tions on this subject, to the "sacred" right to peace. The gradual increase in humanity's understanding ofitselfwilllead to a societal condemnation of nuclear weapons when it is fully understood that such instruments of evil are a violation of life itself.

The innate understanding of human rights has also been shown by Judge Weeramantry, who was vice president of the International Court ofJustice (ICJ) when it issued its Advisory Opinion on the legality of nuclear weapons in 1996. His 88-page dissent deals convincingly with every last argument advanced by the nuclear weapon states in support of their position, including deterrence,

FOREWORD • xvu

reprisals, internal wars, the doctrine of necessity, and the health hazards of all, including so-called mini, nuclear weapons. He stated:

My considered opinion is that the use or threat of use of nuclear weapons is illegal in any circumstances whatsoever. It violates the fundamental principles of international law, and represents the very negation of the humanitarian concerns which underline the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23 (a) ofThe Hague Regulation ofl907. It contradicts the fundamen­tal principles of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.

While regretting that the court did not hold that the use or threat of use of nuclear weapons is unlawful "in all circumstances without exception," Judge Weeramantry said that the court's opinion does "take the law far on the road towards total prohibition."

The effect of the World Court Advisory Opinion is to provide, for the first time, a legal basis for political action to ban nuclear weapons. At first, the effect might seem minimal because the nuclear states are ignoring it, NATO is hostile to it, and the media have generally marginalized it. But the opinion is a water­shed because it has made a strong statement of the law governing the threat or use of nuclear weapons. It effectively delegitimized nuclear deterrence. At the very least, nuclear proponents can no longer claim that nuclear weapons are a legitimate tool of warfare. The court forcefully identified the elimination of nuclear weapons as the true solution to the risk of planetary catastrophe posed by the existence of nuclear weapons.

It is the highest-level legal push ever given to governments to get on with nuclear disarmament. It goes beyond the NPT's Article VI, which obliges nations merely to pursue negotiations on nuclear disarmament: the court has deemed that such negotiations must be concluded. Moreover, it explicitly separated the two themes in Article VI: nuclear disarmament, and general and complete disarmament. No longer can the nuclear powers credibly state that nuclear disarmament can only come in the context of general disarmament. The "ultimate evil" must be eliminated urgently.

NucLEAR WEAPONS ARE NoT ExEMPT

By emphasizing that nuclear weapons are not exempt from the rules of humanitarian law, the court, even though it divided on the application of certain questions of law, has brought nuclear weapons into the legal arena. It threw a spotlight on the laws of humanity and the dictates of the public conscience.

Since leaving the court, Judge Weeramantry has maintained his ardent stance on the illegality of nuclear weapons. In 2003, he said in a seminar in Colombo:

Nuclear weapons are illegal under international law because the usages established among civilized peoples, the laws of humanity and the dictates of the public conscience of the global community of human beings would all undeniably unite in condemning this monstrosity which can obliterate entire

xviii ~ FOREWORD

cities, destroy the environment and even extinguish all the culture and civili­zation built up by centuries of human efforts in one fell stroke. Can there be any doubt that all civilization, all humanitarian sentiment, all dictates of this public conscience would reject out of hand even the semblance of a contention that such a weapon could be brought within the bound of legality?

Interpreting the law on this matter is a complex process if one takes the view that any means of self-defense is valid. The nuclear proponents have, of course, taken this route. The search for security through technology led to the nuclear arms race, and the public-everywhere-was told this was necessary for self­defense. Our common humanity was denied, as if the moral problems of the obliteration of huge sections of humanity could be swept aside by technology. In secular cultures, the maintenance of nuclear weapons has been rationalized away. No law expressly forbids the threat or use of nuclear weapons; the absence of such a law enables the nuclear proponents to drive onward. The World Court felt that it by itself could not invent, so to speak, a new law. But it clearly pointed the way to the political development of such a law, which would be built on a common understanding that humanitarian law does not permit mass killing. Humanitarian law must be applied to every use of every nuclear weapon. A return to humanitarian law, not technological refinements of the act of killing, is required for society to deal with the illegality of nuclear weapons.

A Nuclear Weapons Convention, prohibiting the production as well as use of all nuclear weapons in all circumstances is urgently needed. Law-makers-that is, politicians and government officials-must be awakened by public demand to pass such legislation. An iron-clad law prohibiting all nuclear weapons must be made. This will happen only when the evil nature of nuclear weapons is recognized rather than being denied as it is today. By emphasizing our human­ity, not our technological prowess, we can achieve a universal law criminalizing the production and use of all nuclear weapons.

PREFACE

The Human Right to a Nuclear Weapon-Free World

Mairead Corrigan Maguire

I believe one of the most hopeful trends in the world today is the interconnectedness of the Human Family. Technology has made us interconnected, and trade and the movement of people have made us interdependent. Even in the past 10 years, the world has changed, and the next 20 years will bring changes that none of us can imagine. But we human beings can shape the world to a great extent. I am very hopeful for the future because I believe we are often capable of good choices, we are resilient even in the face of great disasters, and we are creative. The massive peoples' movements around the world should give us all hope. But governments must start listening and acting on what their people are saying, and particularly on such burning issues as nuclear weapons and war.

On nuclear weapons, I believe people of the world have chosen abolishment, but the governments are ignoring the wishes of their people. So we have entered the second nuclear arms race, led by the current U.S. administration and being followed by many other countries. At this point in history, if our governments don't take seriously their international obligations under the Non-Proliferation Treaty (NPT) to start decommissioning all nuclear weapons, there will be very serious proliferation within the next few years and we will truly not be able to abolish nuclear weapons. We will pass a frightful legacy onto our children and grandchildren, a legacy of nuclear weapons and nuclear debt that will endanger them and their world. It is not only the next generation we will burden, but also the cost of nuclear weapons in the past and today has robbed the materially poor of their rightful inheritance to be nurtured with basic rights of food, education and health care.

Governments are elected to take care of their citizens. But governments have not only a responsibility to nurture their own people; they have a responsibility to all of humanity. I believe this can best be done by all governments if, before taking serious policy decisions, they ask themselves, "Does this policy uphold domestic and international law, and how will it benefit our nation's people and humanity as a whole?"

XX ~ PREFACE

This question is particularly relevant to the current U.S. administration. The whole world is now being affected by American foreign policies and American culture. All around the world, American television is beamed into billions of homes, Americanizing many peoples' way of life. This recognition places enormous responsibility upon American government, media, corporations, and people, to ask if what you are exporting is good for the world, or damaging it. What kind of ethical and moral values and example are you sending out to the world's people, particularly an impressionable and vulnerable younger genera­tion? Is offering the example of increasing nuclearism, ongoing wars, and the ignoring of international treaties and laws really going to make the world a safer place for us all? Yes, terrorism is a threat and we all want human security, but meeting terror with terror is not an answer. I believe that such approaches to date have made the world a more dangerous place both for Americans and many people throughout the world.

After the horror of World War II, the world community recognized the need for legislation to protect citizens. Since then many international laws have entered into force. In the past, America played an important role in setting up many laws that would protect human rights. In 1945, America gave full support for the United Nations (UN). It supported the drafting of a Universal Declaration of Human Rights (UDHR), which affirmed the dignity of every human being. This declaration has affected the policies of the United States and other countries all over the earth for more than half a century. The preamble to the UDHR states: "Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms" and it upholds "the advent of a world in which human beings shall enjoy freedom of speech and belief, and freedom from fear and want has been proclaimed as the highest aspiration of the common people."

Under the UDHR, every citizen on the planet has a right to be free from fear of nuclear weapons, and every citizen on the planet has a right to be free from poverty, which condemns so many to lack of health care, education, shelter, and the very basic necessities that enable human beings to lead full and dignified lives.

I believe we all have a human right to a nuclear weapon-free world, and in proclaiming that right, we affirm that we have chosen to live together, as the human family and friends, and not to die together as victims in a nuclear holocaust.