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World Court Project: 

 

LEGAL AND POLICY BASES FOR

CITIZEN VERIFICATION OF THE ELIMINATION

OF NUCLEAR, CHEMICAL, AND BIOLOGICAL WEAPONS

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Weapons of mass or indiscriminate destruction are now the object of a planetary taboo rooted in the conscience of humankind and articulated through binding law. As the International Court of Justice (ICJ), the judicial branch of the United Nations, recently reaffirmed (ICJ advisory opinion on nuclear weapons), under humanitarian law states must never use weapons incapable of distinguishing between civilians and military targets. The possession of biological and chemical weapons is prohibited by global treaties, and the possession of nuclear weapons for all but a handful of states is prohibited by the Nuclear Non-Proliferation Treaty (NPT).

Those few states possessing nuclear weapons are under a legal obligation, set forth in Article VI of the NPT, as authoritatively interpreted by the ICJ, to achieve the elimination of their arsenals through good-faith negotiation. It is therefore illegal to carry out any activities inconsistent with the fulfillment of that obligation, including planning for the indefinite maintenance of nuclear arsenals, a declared objective of the US "Stockpile Stewardship" program. Article VI also requires cessation of the nuclear arms race, including development and deployment of modified or new nuclear weapons, through good-faith negotiation.

The achievement of a world free of nuclear and other weapons of mass or indiscriminate destruction will require effective regimes of technological verification, already provided for by the Chemical Weapons Convention. Achieving and safeguarding elimination will also be aided by societal verification, involving the participation of scientists and other citizens in investigating and reporting violations of disarmament obligations to international authorities. Such participation builds upon the Nuremberg principle of individual responsibility, that individuals have international duties which transcend the national obligations of obedience, and exemplifies and promotes a loyalty to humankind and the earth which is essential to ensuring a secure and livable world for all living creatures, now and in the future.

 

LEGAL AUTHORITY

Disarmament Obligations

Treaty on the Non-Proliferation of Nuclear Weapons, ratified by the United States on March 5, 1970 and entered into force the same date, Article VI:

"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."

 

International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8, 1996:

"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." Para. 105(2)(F).

"The legal import of [the NPT Article VI] 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." Para. 99.

"[T]he very first General Assembly resolution, unanimously adopted on 24 January 1946 at the London session, set up a commission whose terms of reference included making specific proposals for, among other things, 'the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction'. In a large number of subsequent resolutions, the General Assembly has reaffirmed the need for nuclear disarmament." Para. 101.

 

United Nations General Assembly resolution 53/77 W (1998): "Calls once again upon all States to immediately fulfill [the nuclear disarmament obligation affirmed by the International Court of Justice] by commencing multilateral negotiations in 1999 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."

The Biological Weapons Convention, ratified by the U.S. on March 26, 1975 and entered into force the same date, prohibits the development, production, stockpiling or acquisition of biological agents or toxins.

The Chemical Weapons Convention, ratified by the U.S. on April 25, 1997 and entered into force April 29, 1997, prohibits the development, production, acquisition, stockpiling and use of chemical weapons.

 

Restrictions on Methods and Means of Warfare

 

International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8, 1996:

"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." Para. 78 (emphasis added). This "cardinal" rule of humanitarian law is "fundamental" and "intransgressible". Paras. 78, 79.

"[M]ethods 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." Para. 95.

"[N]uclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence .... However, it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future". Para. 86 (emphasis added).

"[T]he environment is under daily threat and ... the use of nuclear weapons could constitute a catastrophe for the environment... [T]he environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.... States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives." Paras. 29, 30.

"[I]f the use of force itself in a given case is illegal - for whatever reason- the threat to use such force will likewise be illegal." Para. 47.

 

Martens Clause, most recently stated in Protocol I (1977) to the Geneva Conventions, Article 1: "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 the public conscience." (Emphasis added.)

 

1907 Hague Regulations Respecting the Laws and Customs of War on Land, Annex to the 1907 Hague Convention, a treaty to which the United States is a party, forbid the employment of "arms, projectiles, or material calculated to cause unnecessary suffering". Article 23(e).

 

The Rome Statute of the International Criminal Court, adopted in 1998, not yet entered into force but widely recognized as a statement of presently binding law, includes the following "serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law" (Art. 8(b)):

"Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities" (Art. 8(b)(i));

"Intentionally directing attacks against civilian objects, that is, objects which are not military objectives" (Art. 8(b)(ii));

"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" (Art. 8(b)(iv)).

 

General Assembly resolution 1653 (1961), "Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons": Use of nuclear 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," "contrary to the rules of international law and to the laws of humanity," and "a crime against mankind and civilization".

 

The Binding Character of International Law

Judgment of the International Military Tribunal: "[T]he very essence of the [Nuremberg] Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state". US et al v. Goering et al, 6 Federal Rules of Decision 69, 110 (1946).

 

US Constitution, Article VI, Clause 2: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." (Emphasis added.)

 

The Paquete Habana, 175 U.S. 677, 700 (1900): customary international law is "part of our law".

 

POLICY STATEMENTS REGARDING SOCIETAL VERIFICATION

Joseph Rotblat, 1995 Nobel Peace Prize recipient, President of Pugwash, and the only Manhattan Project Physicist to have left the Project for moral reasons: "In parallel with [technological verification], there is the equally urgent need to evolve a system of societal verification, in which all members of the community, or large groups of it, would have an active role. The main form of such verification is citizen's reporting, in which all citizens will have the right and the duty to provide information to an international authority about attempts to violate the terms of the treaty on the elimination of nuclear weapons.... The implementation of societal verification would be greatly facilitated by the modification of the concept of sovereignty of states and by the development of a new loyalty, a loyalty to mankind. This is any case essential in the ever increasing interdependence of all peoples on the globe, and the threat to the continued existence of the human species." A Nuclear-Weapon-Free World: Desirable? Feasible? (Boulder, San Francisco, Oxford: Westview Press, 1993), pp. 116-117.

 

Statement of the Abolition 2000 Global Network to Eliminate Nuclear Weapons, New York, April 25, 1995: "11. Create mechanisms to ensure the participation of citizens and NGOs in planning and monitoring the process of nuclear weapons abolition."

 

Prepared by John Burroughs, August 4, 1999. Burroughs is the executive director of the Lawyers' Committee on Nuclear Policy, New York, and the author of The Legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice (New Brunswick, NJ: Transaction, 1998). Nuclear Obligations, his 1991 Ph.D. dissertation at the University of California at Berkeley, concerns the international law framework for nuclear weapon policy and protest.

 

 

 


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