|Law, Nuclear Weapons and Nuclear Energy
The officers of the World Academy have assigned me a complex and challenging subject. Complexity is compounded by the limited time there is for the presentation and hopefully for discussion. Law is only one disciplinary culture that has some involvement in the control and regulation of nuclear weapons as well as the development of nuclear energy for peaceful purposes. To this extent the role of law is not a central force in how nuclear policies will develop in the future. This may change. However, it would require many non-lawyer constituents, closer to the situations that may influence future nuclear policies, to get an understanding of what law might contribute, and hopefully to cooperate with the legal fraternity in formulating an approach that facilitates the elimination of nuclear arsenals from the planet, and facilitates as well the strict control over the proliferation of nuclear energy in contexts were the risk factors are unpredictable and the cost of risks enormous.
The most important legal expression concerning the lawfulness of the threat and or use of nuclear weapons emerged in an advisory opinion of the International Court of Justice concerning the Legality of the Threat or Use of Nuclear Weapons (ICJ Reports 1996, page 225). That decision took the legal analysis a long way into the discourse about the role of law and its value in this area of international concern. Even more important, was the dissenting opinion of the Vice President of the Court, Judge C.G. Weeramantry. The learned judge’s dissent remains today the most complete repudiation of the idea that nuclear weapons have any legal standing in modern international law. The judge suggested the following:
“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 underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23(a) of the Hague Regulations of 1907. It contradicts the fundamental principle 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.”
This answer inspires those constituencies who are opposed to the deployment and prospective uses of nuclear weapons in armed conflict. But the critical question remains, how influential can the structure and the processes of legal discourse be in influencing, the critical constituencies that still see an important role for the deployment of nuclear weapons and delivery systems in the management of global security priorities. To explore these issues we must go back to the beginnings of the nuclear age.
A spiritual founder of the World Academy was the distinguished economist Albert Einstein. An actual founder of the Academy was Robert Oppenheimer, who was tasked with the development of the atom bomb. The bomb was developed with great secrecy and to a large extent it was focused on developing a nuclear explosive device before the German Nazis developed one for the Third Reich’s war machine. I can detect no strenuous search for how the bomb would impact on moral sensibility, or international law. When the bomb was detonated on Hiroshima and Nagasaki, it became an after the fact realization that the consequences of the use of the bomb had generated outcomes that had not been scientifically foreseen. A few years after the use of the bomb in Japan, the American Secretary of State, John F. Dulles, gave a speech before the American Bar Association and declared that the United Nations Charter had been rendered obsolete by the atom bomb, noting that it was a pre-atomic instrument. Dulles’ view was representative of the perspectives of the national security operatives charged with policy in this area. For this constituency, the international law of the UN Charter was an unnecessary intrusion of legalism into an arena of decision making for which it was completely inappropriate. The central assumptions being that the high stakes implicated in nuclear contestations globally, were essentially matters of policy and not law and therefore law and legalism could contribute very little to this issue.
With both superpowers being nuclear enabled the dynamic of the Cold War was driven into high gear as the contestants tested ever greater arsenals of destruction. Legal culture began a tentative discourse about the orgy of testing thermonuclear weapons. In particular, the United States tested these weapons far from home, in the South Pacific in islands which it administered as a trust obligation for the UN. A leading law journal published an article in which the author challenged the legality of US testing on the ground (largely of legalism) that the tests constituted a technical violation of US trust obligations and the tests, which impacted on the high seas, violated the Law of the Seas. The jurisprudence of legalism, which animated this analysis, permitted the technical application of rules to this problem, in a way that while technically plausible was in some measure divorced from reality. This article generated a response which sought to justify the US tests but suggested that this could be done by using an alternative jurisprudential theory, a theory rooted in functionalism and the importance of contextual reality. This latter approach, while justifying the lawfulness of the testing, provided a framework of legal appraisal and analysis that has repudiated the Dulles’ view that in principle international law is irrelevant to the nuclear weapons threat. Moreover, it was precisely this view that was used by Judge Weeramantry to declare that the threat or use of nuclear weapons is unlawful in all circumstances. I should add here that the view of law represented by legalism is in general the conventional view of law, and the view that most non-lawyers would intuitively view as the only contribution that lawyers can make to this discourse. In this sense the approach of Judge Weeramantry and those committed to a functional, contextually informed, approach still represent a minority in the legal profession, and this minority is tasked with persuading the broader non-lawyer constituency that this approach brings reason, realism, and a degree of precision to an appraisal of the social consequences and policy implications of knowledge about nuclear weapons and nuclear energy.
The acceleration of the arms race made this modest scholarly contribution a matter that began to generate concern that the unlimited development and testing of nuclear weapons was the great security problem of the time and that there was a need for some type of agreement that could put some limits on the unruly generation of ever more powerful nuclear arsenals. This in turn inspired the United Nations Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons (1961). A Declaration, although a solemn UN undertaking, does not constitute binding international law, nonetheless the Declaration declared;
The use of nuclear and thermonuclear weapons is contrary to the spirit, letter and aims of the United Nations and, as such, a direct violation of the Charter of the United Nations;
The use of nuclear and thermonuclear weapons would exceed even the scope of war and cause indiscriminate suffering and destruction to mankind and civilization and, as such, is contrary to the rules of international law and to the laws of humanity;
(d) Any State using nuclear and thermonuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity and as committing a crime against mankind and civilization.
The Declaration expresses itself in the form of legal prescription and it is certainly accompanied by a powerful “authority” signal, but its quality as a controlling norm is diminished by the reality of the distribution of nuclear weapons in the global system of power relations. However, the Declaration provided an inspiration for later developments in this field. The most important of these developments was the Treaty on the Non-Proliferation of Nuclear Weapons (1968). The Treaty continues to be in force. The Treaty is a multilateral treaty and the parties meet regularly to monitor and police the state of enforcement. This was a significant milestone in the effort to provide a legal framework for an important policy issue relating to nuclear arsenals. In reality a limited number of States had nuclear weapons. The Treaty tried to confine the nuclear club to these States. The rest of the world agreed not to developed nuclear arsenals and everyone agreed not to contribute to the proliferation of nuclear weapons. However, influenced by President Eisenhower’s “atoms for peace” iteration, the Treaty in Article IV stipulated the following;
(1) Nothing in this Treaty shall be interpreted as affecting the inalienable right of all Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.
Article IV(1) is a controversial provision. Some see it as a loophole. A State may exercise its alienable right to develop nuclear energy for peaceful purposes, but the exercise of that right also advances that State nuclear technology and knowhow in terms of the converting its purposes from peaceful energy to “peaceful” nuclear arsenals. Notwithstanding, this was a giant lead forward in using legal techniques to refine specific areas of global importance that could be reduced to an international agreement having the status of international law. Another important provision in the Treaty is contained in Article VI(B)(1);
“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”
This provision has been important for maintain the legal momentum to use the Non-Proliferation Treaty as a foundation for ending the arms race, moving toward nuclear disarmament on a universal basis. The Treaty at least establishes a good faith obligation on the part of State parties to work in the direction of complete abolition. This provision was an important stimulus for the Comprehensive Nuclear Test Ban Treaty (1996). The Treaty is not yet in force but reading the Non-Proliferation Treaty together with the Comprehensive Test ban Treaty takes humanity very close to a regime of complete abolition.
The international legal developments generated particularized agreements between the superpowers which in effect had supported the adoption of multilateral Treaties. In addition to this Treaty the United States and the USSR also generated other bilateral Treaties which sought to limit antiballistic missile systems and limit the numbers of deployed nuclear arsenals. Perhaps the most significant was the agreement between the USSR, the USA and the UK on a Treaty Banning Nuclear Weapons Tests in the atmosphere, outer space and under water in 1963. This Treaty, which is sometimes seen as an illustration of the lex specialis of international law was an important indication of how strategically law could positioned itself in the drafting of a narrowly formulated agreement having the force of law between the powers that monopolize nuclear weapons. In this sense, there could be no agreement on the limiting of nuclear tests unless the agreement could be formulated in the prescriptive terms of a legal document. The role of law, however modest, seems to be an important factor in managing the interface of policy priorities and legal restraint. The signals generated by the general and specific developments in the treaty form of law making, are important not only as technical understandings between concerned parties, but also because of what they signal in terms of the broader global community expectations about the status of nuclear arsenals. The Declarations and the Treaty law all point in the direction of control, regulation, restraint and reduction with a view to eventual abolition. In this sense these instruments have been important expectation creating instruments, and moreover they have influenced national security policy makers to seriously consider, the unthinkable, namely a scenario in which nuclear weapons are no longer a part of the national security posture of the State.
The General Assembly Declarations and Resolutions, although not technically law, nonetheless have an important approximation to the quality of international legal prescription. Technically the way to establish this point is to recognize that one of the most important areas of law implicated in the threat or use of nuclear weapons is humanitarian law. First, humanitarian law has an ancient global pedigree. For example, in the Ramayana Lakshmana tells Rama that he has a weapon of war that could destroy the entire raze of the enemy including non-combatants. Rama clearly advices Lakshmana that destruction en masse is forbidden by the ancient laws of war even if the enemy is unrighteous. In the Mahabahratha references made which forbids the use of hyper destructive weapons. Indeed, Arjuna respects the laws of war and refuses to use the “pasupathastra” (a hyper-destructive weapon which was incompatible with morality, religion and the laws of war). Analogous humanitarian considerations can be found in the Judaic tradition, the Christian tradition, the African traditions, the Islamic tradition, the Buddhist tradition, as well as the intellectual traditions of modern Western oriented jurisprudence. These ideas culminated in a generic clause included in the codification of humanitarian law in The Hague Conventions, as well as subsequent codifications of international law on this issue. This came in the form of the Martens’ Clause and serves as a residual reference to ancient tradition and the dictates of “public conscience”. The Martens’ Clause reads as follows;
“Until a more complete code of the laws of war has been issued, the High Contradicting 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”.
Indeed, a fellow of the Academy and an expert on the International Law of War, Myres McDougal in 1961 made the following statement;
“To accept as lawful the deliberate terrorization of the enemy community by the infliction of large-scale destruction comes too close to rendering pointless all legal limitations on the exercise of violence.”
I draw these initial observations about the role of law in advancing the cause of the abolition of nuclear weapons because they present an important discourse that should have an influence beyond the disciplinary boundaries of legal discourse. The professional legal culture represents a perspective that is important but is not sufficiently challenging to conventional political wisdom about global security and will only have traction if a serious effort is made by those disciplines outside of law but inside the security establishment, to make an impact on the kinds of strategic, tactical and morally defensible decisions regarding the status of the world’s nuclear arsenals. This means that even within the context of contested ideas about the traction to be given to a particular approach to law, a wise choice must be made across disciplinary lines that leans to exposition and analysis that frontally accounts for basic values, is steeped in the reality of practical problems for human rights and dignity, ecological integrity, health and well-being, and the threats to the very survival of civilization itself. Law helps to clarify these challenges, and thus such contributions are of interdisciplinary relevance in integrating the development of knowledge for a more secure peace, and the defense of the foundations of global civilization.
The Relevance of the Choice of Approach in Law
The States that have and deployed nuclear arsenals largely justify their strategic and tactical deployments on the basis that these deployments are justified by the International Law of Self-Defense. They also point out that there is no specific legal instrument to which they have agreed which specifically outlaws nuclear deployments for self-defense purposes. In this they are technically correct from a conventional point of view. The conventional view requires that there be an objective legal source which defines rights and obligations and in the context of international legal agreements there is no specific agreement which outlaws nuclear weapons. As a function of the inherent discretion of the sovereign there is wide latitude in developing nuclear weapons for defensive purposes. It would be evident that while this is the conventional approach to international law it is in fact a somewhat old fashioned and dated version of law. The challenge now is to present to an interdisciplinary audience of a great intellectual eminence, an alternative minority point of view about law in the hope that this view may be intellectually embraced for improving evolving strategies for ridding the planet of nuclear weapons.
The best articulation of this perspective is represented in Vice President Weeramantry’s dissenting judgment in the 1966 Nuclear Weapons Case. The Judge approaches the problem not from the point of view of searching for a specific treaty outlawing the threat or use of nuclear weapons. On the contrary he starts with the legal values upon which modern international law is founded. Those values are found in the text of the UN Charter and therefore provide authoritative normative guidance for the role of law in covering situations not specifically covered by any particular treaty. The Judge identifies six (6) key note value precepts;
The foundation of international law is based on the expectation of “We the peoples of the United Nations”. This immediately establishes the crucial interest of all human beings in the threats posed to the survival by nuclear arsenals. It also establishes that the people’s perspectives are reflected in global public opinion and indeed “the dictates of public conscience”;
The second precept is the determination of the people to save the future generations from the scourge of war. Nuclear weapons were not known then, however, it is a realistic assumption that had they been known and understood, the effort to save generations from even greater destructiveness and transgenerational threats, would have led to an even strongest affirmation of this principle.
The third precept focuses on the individual in terms of dignity and worth. The individual human being is the ultimate unit of legal and political accounting if humanity is to have a future. The mass destruction of millions with a single weapon is clearly completely antithetical to this value;
The fourth precept seeks to outlaw avaricious imperialism and colonialism, matters only enhanced by nuclear weapons;
The fifth precept reflects the rule of law and the importance of respecting not only obligations that arise from international agreements but also from “other sources of international law”. These other sources are critical factors in determining the unlawfulness of nuclear weapons;
The sixth precept reflects a commitment to the idea of evolving standards of human progress, an evolution that could be stop dead in its tracks by nuclear weapons.
It is critical understanding of a functionally oriented jurisprudence that it has to be accompanied by a process which clarifies the values at stake in the light of the problem that is presented as a challenge to the efficacy of these values. The next task is to provide an understanding of the background facts and science relating to nuclear arsenals, to more clearly specify precisely why the threat or use of nuclear weapons is completely unlawful. Here analysis starts with the effects of nuclear weapons. We know that the bombs used in Japan had an explosive power of 15-12 kilotons. Today a megaton bomb represents the equivalent of a million pounds of TNT, and 20 megaton bombs are the equivalent of 2 million tons of TNT. The modern arsenals are vastly more powerful than those used in Hiroshima and Nagasaki. In short, a one megaton bomb would represent about a thousand (1,000) Hiroshima bombs. Apart from the explosion, the bombs are accompanied by rays of heat and light and emit radioactive radiations which are harmful to life. Given this sketchy data, what are the broader effects of the use of these weapons? First, enormous and long-term environmental damage; nuclear weapons have the capacity to destroy the entire ecosystem of earth. Second, the use of nuclear weapons, which generates harmful radiations (plutonium 239), continues for over 20,000 years, essentially means damage to future generations which could result in extinction. At the immediate level there is the incredible damage to non-combatant civilian populations. The proximate threat of a nuclear winter, which could produce a level of global starvation unheard of, there is the catastrophic loss of life, there are the medical implications of the use of nuclear weapons for which there are in fact no human resources of sufficient quality and quantity to be deployed globally if there were only one exchange of nuclear weapons. Additionally, there are the other immediate effects of the heat and the blast, the effects on human reproduction in which radiation appears to seriously affect human reproductive processes for example the evidence from the Marshall Islands;
“[Women] give birth, not to children as we like to think of them, but to things we could only describe as ‘octopuses’, ‘apples’, ‘turtles’, and other things in our experience. We do not have Marshallese words for these kinds of babies because they were never born before the radiation came.
Women on Rongelap, Likiep, Ailuk and other atolls in the Marshall Islands have given birth to these ‘monster babies’… One woman on Likiep gave birth to a child with two heads… There is a young girl on Ailuk today with no knees, three toes on each foot and a missing arm…
The most common birth defects on Rongelap and nearby islands have been ‘jellyfish’ babies. These babies are born with no bones in their bodies and with transparent skin. We can see their brains and hearts beating… Many women die from abnormal pregnancies and those who survive give birth to what looks like purple grapes which quickly hide away and bury…”
It is clear therefore that the potential uses of nuclear arsenals have the capacity to destroy civilization, culture and agriculture. The capacity to inflict damage on States which deploy nuclear power plants and other type of nuclear reactors represents a partial delineation of the context of the problem that nuclear weapons pose for the survival of the entire earth space community. With this perspective we can begin the analysis of the lawfulness of nuclear weapons against the specific values they might compromise, in the light of the specific facts about their possible uses. This suggests that international law is more than simply a rote mechanical reading about preexisting rules, it is about the values which are the foundation of law itself and it is about the realism of understanding the facts which are the existential threat to those values. This therefore indicates that there is a much broader spectrum of law as it relates to these values, and the threats to these values than simply a specific agreement to specifically outlaw nuclear weapons. There is for example, apart from the treaties, the other sources of law. There is the reference in the Martens’ Clause to filling the omissions in specific treaty law by reference to the dictates of public conscience. In short, the approach one adopts has a particular bearing on the realism and relevance of a legal contribution to this issue.
The Other Sources of Law
There is a well developed body of law concerning armed conflict. There is the ius ad bellum which determines the circumstances which limit the form of armed conflict. By custom this limits prescribe the principle of military necessity, the principle of proportionality and the principle of humanitarianism. Additionally, these principles are interpreted in terms of specific codifications of treaty law and the supplementation of such legal expressions by the use of Martens’ Clause. The problem with nuclear weapons is that their used as a matter of military necessity is dubious and the element of proportionality and humanitarianism is largely extinguished.1 Moreover the uniqueness of nuclear weapons lays in the fact that the threat or use of such weapons defies the fundamental principle of humanitarian law namely, limitation. Consider the following;
“Until the advent of nuclear war, it was thought that however massive the scale of a war, humanity could survive and reorder its affairs. With the nuclear weapon, a limit situation was reached, in that the grim prospect opened out that humanity may well fail to survive the next nuclear war, or that all civilization may be destroyed. That limit situation has compelled the law of war reorientate its attitudes and face this new reality.”
Nuclear Weapons and International Human Rights Law
Human rights law has an overlap with humanitarian law because it includes considerations of humanity and dictates a public conscience. The kinds of human rights in danger of extinction by the use of nuclear weapons include;
The right to dignity (Preamble and Article I);
Right to life and bodily security (Article III);
Right to medical healthcare (Article XXV(1));
Right to marriage and procreation (Article XVI(1));
Protection of motherhood and childhood (Article XXV(2));
Right to a cultural life (Article XXVII(1))
According to Judge Weeramantry “no weapon ever invented in the long history of man’s inhumanity to man has so negative the dignity and worth of the human person as has the nuclear bomb”. Additionally, the use of the bomb would implicate the wholesale extinction of human groups in violation of the Convention that Outlaws Genocide.
International Law and the Environment
The use of nuclear weapons represents an unprecedented threat to the viability of the global environment. The effects of the use of nuclear weapons will never be confined to a single nation State; its effects will be transnational. The prospects of a nuclear winter are scientific predictions of substance. One study suggests;
“What can be said with assurance, however, is that the Earth’s human population has a much greater vulnerability to the indirect effects of nuclear war, especially, mediated through impacts on food productivity and food availability, than to the direct effects of nuclear war itself.”
Additionally, the testing of nuclear weapons has demonstrated that explosions contaminate food and those in or near the oceans contaminate ocean resources such as fish. However, the central fact about the destruction of the environment is that it leads to the destruction on a universal basis of the right to life upon which all other human rights depend. The approach to the law which we had summarized here is an approach that focuses on the fundamental values that sustain the system, the character of the problems that nuclear weapons pose to the threat or extinction of those values, and a resort to reasoned elaboration, distinctive of a progressive legal tradition which clarifies values, problems, contexts and choices. This particular approach is the one that I think may provide a better fit for the discourse in the World Academy which is multidisciplinary and may be made relevant by approaches that are sensitive to the contributions different disciplines might make and as well facilitate in the processes of knowledge integration for understating global social consequences and policy challenges.
Apart from the legality of the threat or use if nuclear weapons, there are the problems of the dangers that are posed by the widespread use of nuclear energy. The events in Fokushima, Japan, raise important questions about the threat that nuclear energy plants represent when they confront unpredictable natural catastrophes. When an earthquake occurred off the coast of Japan it generated a Tsunami which engulfed the power plants and disabled its fail safe procedures for cooling the nuclear reactor. The Japanese are still struggling to solve the problem. Areas around the plant are now too dangerous for human settlements. This issue raises the question about the safety and value in the long term of the proliferation of nuclear energy via nuclear power plants and the safety and cost effectiveness of such developments in the face of risks of unpredictable catastrophic events. Such events defy risk management measurements and are essentially issues of unpredictability. Unfortunately the industrial and professional commitment to nuclear energy represents a constituency with a vest interest in its indefinitely expansion. On the other hand, from the perspective of a global commons there has not been an important discourse that measures the risks and the costs of nuclear energy against the development of alternative and cleaner sources of usable energy. This would appear to be another area of important consideration in the academy with a view to the appraisal of alternative energy developments and their potentials to replace the reliance on nuclear plants many of which are aging and nearing the length of their continued safe operation.
The above discussion underlines the global, transnational and interdisciplinary dimensions posed by the production, testing and deployment of nuclear weapon systems as well as the global and transnational dimensions of the risks posed by the proliferation of nuclear power plants for generating energy. This raises many important issues about the foundations of an appropriate knowledge based from a global perspective, as well as the challenge of knowledge integration for the purpose of a deeper understanding of the social, political, human rights and ecological consequences of the development of nuclear capabilities in these areas. A better understanding of how these developments impact on the future of a global commons and the dignity of the individual human being within that commons requires that our exercises in integrating specialized knowledge also target the challenges of global policy making and how an Academy such as ours can influence the shape of a continuing scientific, intellectual and juridical discourse in ways that enhance clarity of understanding and accelerate the realization of enhanced human security and global peace. The fundamental challenge emerged in 1955 from a statement generated by Einstein (a spiritual founder of the Academy) and Bertrand Russell, the philosopher. The Russell/Einstein appeal read in part as follows;
“No one knows how widely such lethal radioactive particles may be diffused, but the best authorities are unanimous in saying that a war with H-bombs might possibly put an end to the human race…
… We appeal, as human beings, to human beings: Remember your humanity, and forget the rest. If you can do so, the way lies open to a new paradise; if you cannot, there lies before you the risk of universal death.”