Nuclear Crossroads: The Urgent Need for Action to Prevent Catastrophe

We are deeply alarmed by increasing risks that nuclear weapons will be used by intent, miscalculation or accident. The Singapore Summit is an encouraging sign that the dangerous US-North Korea confrontation will give way to a process leading to a peaceful and denuclearized Korean peninsula. Nonetheless, the danger of nuclear war in this new moment may be greater than at the height of the Cold War; it is surely more unpredictable. Global nuclear disarmament – not just preventing the spread of nuclear weapons – is imperative.

This statement addresses the new US-Russian nuclear arms race; the North Korean situation; US actions in relation to the agreement and Security Council resolution regarding Iran’s nuclear program; and ongoing risks of accidents and miscalculations involving nuclear weapons. At the end, we recommend actions to be taken by IALANA affiliates and other civil society actors.

1) The US Nuclear Posture Review released 2 February 2018 moves the world toward nuclear inferno. It fails to propose any initiatives, bilateral or multilateral, for arms control and disarmament, and rejects US ratification of the Comprehensive Nuclear-Test-Ban Treaty. It proposes two new capabilities, a low-yield warhead deployed on submarine-launched missiles and a sea-based, nuclear-armed cruise missile, and carries forward the destabilizing replacement of the existing air-launched cruise missile with a stealthier, more capable version. The review also repeatedly refers to the role of nuclear weapons in responding to “non-nuclear strategic attacks”.

Similarly alarming signals are coming from Russia. In a 1 March 2018 address, President Vladimir Putin described the development of an array of new nuclear weapons delivery systems, including a nuclear-powered cruise missile, an underwater drone carrying “massive nuclear ordinance”, and a multiple warhead ballistic missile with virtually unlimited range capable of flying over the South as well as the North Pole.

US and Russian plans for a new nuclear arms race – vertical proliferation – blatantly disregard the Nuclear Non-Proliferation Treaty. The NPT preamble declares the “intention to achieve at the earliest possible date the cessation of the nuclear arms race.” And, NPT Article VI requires the pursuit of negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date. Yet there are no negotiations on the subject taking place or in sight. Further, stopping vertical proliferation is not enough. The agenda should now be:

  • adoption of policies of non-use of nuclear weapons in recognition of the incompatibility of their use with international humanitarian law as well as the principles of humanity and dictates of public conscience, as is set out in the preamble to the Treaty on the Prohibition of Nuclear Weapons and subsequently reaffirmed by the International Red Cross and Red Crescent Movement;
  • fulfilment through good-faith negotiations of the principal objective of Article VI, the elimination of nuclear arsenals, as set forth in the International Court of Justice’s unanimous 1996 affirmation of “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.”

2) With the exchange of threats between North Korea and the United States in 2017, the world probably was the closest it has been to nuclear war since the Cuban Missile Crisis. The Singapore Summit and other moves in 2018 toward resolution of the crisis and achievement of peace and eventual denuclearization on the Korean Peninsula are therefore most welcome. To be sure, complacency is not at all warranted, as the maneuvering over the summit and its limited and vague results demonstrate. Nonetheless, that North Korea has refrained this year from testing nuclear explosives and missiles is a very positive step. Also noteworthy is the reaffirmation in the Panmunjom Declaration of the Non-Aggression Agreement precluding the use of force by North Korea and South Korea in any form against each other. The US and North Korea must reach the same result, as IALANA called for in its statement of 10 October 2017. Progress is important not only for the paramount reason of avoiding war, which might very well become nuclear. It also is crucial for the purpose of preserving the non-proliferation regime and proceeding with global nuclear disarmament.

We underline that the people and government of South Korea have taken a leading role in seeking a peaceful solution to the long confrontation on the Korean Peninsula that is at the root of the nuclear crisis there. The current South Korean government was brought to power by a powerful democracy movement, and continues to receive overwhelming public support for its peace initiatives. These actions show that a mobilized population can affect government policy at the highest level, and should be an inspiration for people everywhere.

3) The US declaration that it will no longer implement the Joint Common Plan of Action and will reimpose sanctions on Iran inconsistent with the JCPOA is a major blow to international governance and to peace and disarmament in the region and the world. The JCPOA, para. 28,  provides that the parties to it “commit to implement this JCPOA in good faith and in a constructive atmosphere, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit and intent of this JCPOA that would undermine its successful implementation.” A viable international order requires good-faith execution of agreements whether considered political or legal. Success in international cooperation is not possible if promises and representations cannot be relied upon.

The IAEA has found that Iran is in compliance with the JCPOA, and no extraordinary circumstances otherwise justify the US action. Further, the UN Security Council unanimously endorsed and incorporated the agreement in Resolution 2231 of 2015. The JCPOA likewise provides for its integration with Security Council action. Under the JCPOA, para. 34(ii), “this JCPOA and the commitments in this JCPOA come into effect” ninety days after endorsement of the JCPOA by the Security Council, as was done by Resolution 2231. The resolution establishes a mechanism linked to Iran’s implementation of the JCPOA for the lifting of Security Council imposed sanctions against Iran. The last provision of its preamble “[u]nderscor[es] that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Security Council’s decisions.”

In para. 2, Resolution 2231 “calls upon” UN member states to take “actions commensurate with the JCPOA and this resolution” and to refrain from “actions that undermine implementation of commitments under the JCPOA.” Paragraph 26 “urges” all states “to cooperate fully with the Security Council in its exercise of the tasks related to this resolution.” Though the resolution does not label either paragraph a “decision” of the Security Council, in adopting them the Council without question was acting to fulfil its “primary responsibility for the maintenance of international peace and security” conferred by Article 24 of the UN Charter. In a 1971 advisory opinion, the International Court of Justice, taking into account “all circumstances”, held legally binding a provision of a Security Council resolution which provision “calls upon all States” to refrain from acts inconsistent with the Council’s determination that “the continued presence of the South African authorities in Namibia is illegal.” Similarly here, under all the circumstances, paras. 2 and 26 of Resolution 2231 are legally binding directives of the Security Council.[1]

The US is acting contrary to those directives, thereby undermining the effectiveness of the Security Council in addressing issues of nuclear non-proliferation and disarmament in Iran and generally. We suggest consideration of a UN General Assembly request for an International Court of Justice advisory opinion on the legal consequences of Resolution 2231 and the JCPOA. Such an opinion would provide important guidance, inter alia, regarding US sanctions imposed on non-US enterprises engaged in commercial dealings in Iran and with Iranian enterprises.

The other parties to the JCPOA – Iran, United Kingdom, France, Russia, China, Germany, and European Union – must work to ensure the continued implementation of the agreement. And all nations and global civil society should make clear that US contravention of the JCPOA and Resolution 2231 is unacceptable and dangerous and must be reversed.

4) The existence and deployment of nuclear weapons pose intolerable dangers in the contexts mentioned above and in others as well, as in India-Pakistan and US-China relations. Moreover, the risks of accidents and miscalculations involving nuclear weapons are always with us, as was illustrated by the erroneous alert that nuclear missiles were incoming endured by Hawaiians in January 2018. Alarms determined to be false only minutes before a nuclear response might be triggered have occurred throughout the nuclear age and will continue to do so. One day our luck will run out.

In view of this combination of ominous developments and ongoing risks, nations and civil society actors must act urgently and effectively to set the world – and the US in particular – on a pathway that rather than elevating nuclear risks leads to the repudiation of use of nuclear weapons under any circumstances and the negotiation of the global elimination of nuclear arsenals. Among the steps IALANA affiliates and other civil society actors can take are the following:

  • Urge their governments to condemn the new US-Russian nuclear arms race and to support resolutions to that effect in the General Assembly and its First Committee;
  • Support continued full implementation of Security Council Resolution 2231 and the JCPOA by Iran, UK, France, Russia, China, Germany, and European Union, and also urge the US to recommit to their full implementation;
  • Urge their governments to condemn the US actions in relation to Resolution 2231 and the JCPOA and to support a resolution to that effect in the General Assembly and its First Committee;
  • Ask their governments for an assessment of the legal status of Resolution 2231 and the JCPOA;
  • Suggest that their governments consider requesting the International Court of Justice to render an advisory opinion on the legal consequences of Resolution 2231 and the JCPOA;
  • Commend South Korea, North Korea, and the United States for their dramatic moves toward ending the dangerous standoff between North Korea and the US, and urge all parties to engage productively in negotiations;
  • Urge their governments to sign and ratify the Treaty on the Prohibition of Nuclear Weapons.

[1] Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations, has expressed the view to IALANA that both paras. 2 and 26 are legally binding on all UN member states. The German parliamentary research service reached the same conclusion regarding para. 2 in “Völkerrechtliche Bewertung der Aufkündigung des Iran-Nuklearabkommens durch die US-Administration,” Wissenschaftliche Dienste, Deutscher Bundestag, WD 2 – 3000 – 074/18, 2018.

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Relevant materials

Nuclear Arms Racing is Antithetical to the NPT, IALANA, 25 April 2018, Civil Society Presentation to NPT PrepCom, Geneva (available at www.ialana.info)

A Prescription for Disaster: Trump’s Nuclear Posture Review, Guy Quinlan, President, and John Burroughs, Executive Director, Lawyers Committee on Nuclear Policy (LCNP), 12 March 2018 (available at www.lcnp.org)

US-Russia Nuclear Arms Racing: Still Crazy After All These Years, Andrew Lichterman, Western States Legal Foundation, and John Burroughs, LCNP, Truthdig, 16 March 2018 (available at www.lcnp.org)

Council of Delegates of the International Red Cross and Red Crescent Movement, Resolution CD/17/R4, Working towards the elimination of nuclear weapons: 2018–2021 action plan, adopted in Antalya, Turkey, 10–11 November 2017

North Korea: Solution or Disaster, IALANA Statement, Peter Weiss, President Emeritus; Peter Becker and Takeya Sasaki, Co-Presidents, 10 October 2017 (available at www.ialana.info)

Striking North Korea First Is a Bad Proposal, Andrew Lichterman and John Burroughs, Letter, Wall St. Journal, 8 March 2018 (available at www.lcnp.org)

Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 16

‘This Is Not a Drill’: The Threat of Nuclear Annihilation, Clyde Haberman, New York Times, 14 May 2018

IALANA Lawyers’ Letter on the abolition of nuclear weapons

In June 2017 IALANA presented a letter on the abolition of nuclear weapons to the conference on the negotiations of a treaty to ban nuclear weapons at the UN in New York. It was signed by more than 500 students or professions of law such as Law Professor, Attorney, Judge, Law Student, Other Law Profession. The letter states:

Nuclear arms are the only weapons of mass effect and destruction not yet prohibited by an international convention, even though they are the most destructive and indiscriminate weapons ever created.

People are capable of good-faith, law-guided, problem solving at all levels of society: family, neighborhood, national, international. Cooperative global systems have been devised for the protection of human rights, protection of the environment and prevention of climate change, prohibition of specific weapons, and more. These skills must now be applied to the next obvious step: the prohibition and elimination of nuclear weapons.

As lawyers we underline that the abolition of nuclear arms is required by an international legal obligation set forth in Article VI of the Nuclear Non-Proliferation Treaty and embedded in United Nations practice going back to the very first General Assembly resolution, in 1946. The International Court of Justice unanimously concluded in 1996 that “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.” That obligation is unconditional and universal.

We also emphasize that the use of nuclear weapons is presently incompatible with international humanitarian law regulating the conduct of warfare. Above all, due to their uncontrollable blast, heat, fire, and radiation effects, nuclear weapons cannot meet the requirement of distinguishing between the civilian population and combatants and between civilian objects and military objectives. Indeed, the catastrophic consequences of use of nuclear weapons vastly exceed the ordinary boundaries of armed conflict and adversely impact populations in neutral states, the natural environment necessary to sustain human life, and future generations. The use of nuclear weapons accordingly also violates international human rights law, most centrally the right to life. If a use of force is illegal under the UN Charter or humanitarian law, the threat to use such force is also illegal. However, the nuclear-armed states refuse to acknowledge these patent legal truths; hence the need to codify the illegality of use and threatened use of nuclear arms in a global prohibition.

The Emergency Committee of Atomic Scientists, including Albert Einstein, warned in 1947: “Through the release of atomic energy, our generation has brought into the world the most revolutionary force since prehistoric man’s discovery of fire. This basic power of the universe cannot be fitted into the outmoded concept of narrow nationalisms.” Yet today we face this incendiary combination once again.

Faced with the ongoing and intensifying planetary danger and no longer willing to accept a two-tier world, this year about 130 countries have joined together at the United Nations to negotiate a treaty to prohibit nuclear weapons, leading to their elimination. The nuclear-armed states and their closest allies have refused to participate. Nonetheless, the nuclear ban treaty effort constitutes an important affirmation of the norms against nuclear weapons.

We call on all nations to participate in the negotiations and to join the treaty once adopted. It will be a major step towards negotiation of a comprehensive agreement on the achievement and permanent maintenance of a world free of nuclear arms.

We also call for implementation of well-known measures to reduce nuclear dangers and facilitate nuclear disarmament, including ending nuclear sharing, in which Belgium, Germany, Italy, Netherlands, and Turkey host US nuclear bombs, and ratification of the Comprehensive Nuclear Test Ban Treaty by hold-out states, including China, India, Pakistan, and the United States, to bring it into legal force.

The abolition of nuclear weapons is a responsibility the present generation owes to the Hibakusha, the survivors of the 1945 atomic bombings, and to all past and future generations.

Please find the letter as well as the list of signatories here.

Article by Article – Treaty on the Prohibition of Nuclear Weapons

Brochure by Daniel Rietiker and Manfred Mohr

The events of July 7, 2017 at the United Nations in New York deserve our attention. The Treaty on the Prohibition of Nuclear Weapons (TPNW)
constitutes a real paradigm shift, and the end of a period of stagnation in
nuclear disarmament of more than 20 years. After biological (1972) and
chemical weapons (1993), the remaining type of weapons of mass destruction will be banned once the treaty enters into force.

Even though there is considerable disagreement on the practical implications of the treaty for nuclear disarmament and international security, its significance has been confirmed by the fact that the International Campaign to Abolish Nuclear Weapons (ICAN), the coalition that was instrumental in the negotiation and adoption of the treaty, was awarded the 2017 Nobel Peace Prize.

End of March 2018, 57 States have signed the TPNW and 7 have ratified it
so far. 50 ratifications will be necessary for the treaty to enter into force.
Once in force, it will reinforce the norm against nuclear weapons, create new momentum for nuclear disarmament, give civil society a new tool in its fight for a world free from nuclear weapons, and put more pressure on Nuclear Weapons States (NWS) and their allies.

The new instrument is a “treaty” in the sense of the 1969 Vienna Convention on the Law of Treaties (VCLT), namely an “international agreement concluded between States in written form and governed by international law (…)”. 1 As such, it is quite a complex construction that will certainly raise many questions of interpretation during its hopefully long life. The present short article-by-article commentary is intended to facilitate understanding of the new treaty, without going into great legal detail. It is intended for a general audience, including persons not possessing deep knowledge of international law. We hope it will stimulate debate about this new instrument, inform representatives of civil society, teach young people and students, and assist diplomats and State agents in their work towards ratification of the treaty.

 

Read the full text: Ban Treaty Commentary_April 2018

IALANA Germany: An End to the Atomic Age

The German IALANA published a broschure titled “Atomzeitalter beenden – Gegen nukleare Abschreckung, für nukleare Abrüstung und Atomausstieg” in April 2017. Please find here the English version of the brochure An end to the atomic age and contiune reading the foreword by Chair Person Otto Jäckel: Continue reading “IALANA Germany: An End to the Atomic Age”

2012 World Conference against Atomic and Hydrogen Bombs – Declaration of the International Meeting

2012 World Conference against Atomic and Hydrogen BombsSixty-seven years after the US atomic bombs were dropped on Hiroshima and Nagasaki, about 20,000 nuclear weapons are still threatening the very survival of the human race. This threat must be rooted out as soon as possible. We call on people around the world to work together to achieve a world without nuclear weapons. The accident of the Fukushima Daiichi Nuclear Power Plant on March 11, 2011 has brought the horror of the nuclear dangers into sharper relief. We extend our solidarity with all nuclear victims.

2012 WorldConference against_Atomic Hydrogen Bombs-Declaration

Vancouver Declaration: Law’s Imperative for the Urgent Achievement of a Nuclear – Weapon – Free World

Nuclear weapons are incompatible with elementary considerations of humanity.

Human security today is jeopardized not only by the prospect of states’ deliberate use of nuclear weapons, but also by the risks and harms arising from their production, storage, transport, and deployment. They include environmental degradation and damage to health; diversion of resources; risks of accidental or unauthorized detonation caused by the deployment of nuclear forces ready for quick launch and inadequate command/control and warning systems; and risks of acquisition and use by non-state actors caused by inadequate securing of fissile materials and warheads.

Find the Vancouver Declaration here

The Ahrweiler Declaration

The Ahrweiler DeclarationContrary to the widely held opinion, which always reasserts that the nuclear deterrence system has impressively demonstrated its effectiveness and functionality during and after the Cold War and until today, it should be noted that the number of situations in which the world has been close to the nuclear abyss in recent decades is considerably high. Most people do not know this, or at any rate are not even aware of it.

Ahrweiler_Declaration