LAW AND CIVIL SOCIETY: RESOURCES FOR NUCLEAR DISARMAMENT
John Burroughs
THE ARMS CONTROL TEMPTATION
As we work to build a campaign to halt and reverse nuclearization of South Asia, I suggest we consider the lessons of 50 years of activism in the United States. During the Cold War years, the focus was on partial measures, the Partial Test Ban Treaty, the Comprehensive Test Ban Treaty, the agreements to cap and then to reduce the US and Soviet/Russian arsenals. The conceptual framework was one of ensuring “stability” and of preventing the spread of nuclear weapons: arms control and non-proliferation were the great catch phrases of those years. A whole industry grew up around this framework, not only in the government, but in think tanks, universities, non-governmental organizations. The thinking of the peace movement was deeply influenced by this environment.
Thus when the Berlin Wall came down, US groups were not prepared effectively to demand and advocate nuclear disarmament, i.e. the abolition of nuclear weapons. The old thinking still held sway. To be sure, some of the smaller groups, of which I have been a member, have called for abolition, and as I mentioned an embryonic abolition movement has been formed, but then several of the key small groups (like the Lawyers’ Committee on Nuclear Policy and Western States Legal Foundation) had been advocating nuclear disarmament during the Cold War years!
LAW AS RESOURCE
As a representative of the International Association of Lawyers Against Nuclear Arms, and its US affiliate, the Lawyers’ Committee on Nuclear Policy, it is natural for me to emphasize the contribution that law can make to nuclear disarmament. Given widespread violation, particularly by the United States, of the UN Charter, the disarmament obligation of the Nuclear Non-Proliferation Treaty, human rights instruments, it is tempting to be cynical about international law, to dismiss its importance. I believe this is a mistake. While we must keep our eyes wide open to hypocrisy, we must see law as a resource, just as we see other products of the human spirit as resources.
In 1983 there was a mass demonstration at the Lawrence Livermore National Laboratory in California, one of the two principal nuclear weapons design and development laboratories in the United States (the other one is at Los Alamos in New Mexico). 2000 people were arrested, and held in jail for two weeks. In a local traffic court, my organization at the time, Western States Legal Foundation, argued on behalf of the protesters that they were acting reasonably and lawfully to prevent planning and preparation (Nuremberg Charter) for the commission of war crimes and crimes against humanity. The protesters were nonetheless convicted, and arguments from international law have remained marginal in US political discourse.
More than a decade later, however, the same arguments were being made by governments before the International Court of Justice (World Court), the judicial branch of the United Nations, at the hearings in the nuclear weapons advisory opinion case in The Hague.
One of the points of argument was the Nuclear Non-Proliferation Treaty. India rightly has denounced the treaty as discriminatory, as the codification of a nuclear apartheid. And yet, as the arguments showed, the NPT does contain the seeds of universality.
On the first day of the hearings, October 30, 1995, Gareth Evans, Foreign Minister of Australia, argued to the Court that the norm of non-possession of nuclear weapons under the NPT “must now be regarded as reflective of customary international law”. He stated that “if humanity and the dictates of the public conscience demand the prohibition of such weapons for some states, it must demand the same prohibition for all States. And following the end of the Cold War, there can no longer be, if there ever was, any practical imperative for treating nuclear-weapon States and non-nuclear-weapon States differently.”
The Court essentially accepted that argument, unanimously concluding 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". Although not stated explicitly, the Court’s reasoning made it quite clear that this obligation applies to all states, including those outside the NPT. The Court stated that “virtually the whole of [the international] community” has been involved in the adoption of unanimous General Assembly resolutions regarding nuclear disarmament, and that fulfilling the Article VI nuclear disarmament obligation is “an objective of vital importance to the whole of the international community today”.
While the Court declined to confront deterrence head on, it did hold that a threat of use of illegal force is itself illegal. The illegal threat of use of nuclear weapons is inherent in the postures of deterrence (hair trigger deployment, declared policies of massive retaliation, first use, defence of “vital interests”, etc.) now continuously maintained by the nuclear weapon states. So there is a legal dimension to the argument that Pakistan and India must not emulate the Permanent Five by deploying their weapons pursuant to doctrines of deterrence, because to do so is to increase the degree of illegality. Judge Weeramantry of Sri Lanka, recently retired from the Court, explained his rejection of deterrence in this way:
A global regime which makes safety the result of terror and can speak of survival and annihilation as twin alternatives makes peace and human future dependent upon terror. This is not a basis for world order which this Court can endorse.
One thing abolitionist civil society groups have become more clear about in the last five years, drawing on the World Court opinion, and stimulated in part by the insights of General Lee Butler, former commander of US strategic forces, is that nuclear disarmament requires an unequivocal rejection of the theology of nuclear deterrence and of the claim that international peace and security and global stability can and should be based on nuclear deterrence. Deterrence instead must be squarely recognized as illegal, immoral, and irresponsible. Despite its ambiguities, the World Court opinion at bottom strongly supports the delegitimization of deterrence. And this view is becoming more and more widespread. As Arundhati Roy percipiently observed, that is why India’s adoption of the soulless, deadening rhetoric of deterrence has sounded so hollow and anachronistic.
So what, the cynic may say – the nuclear weapon states have ignored the World Court opinion, as they have ignored Article VI of the NPT. The cynic can make a good case here. Five years after the fall of the Berlin Wall, in 1994, the Pentagon completed its Nuclear Posture Review, which made unmistakably clear that the US remains committed to a large arsenal and to doctrines of massive retaliation and first use. By 1995, it was also well established that the US intended, through the Stockpile Stewardship program of computer simulations, subcritical tests, laser fusion generated explosions, etc., to maintain nuclear superiority indefinitely, with or without underground testing. The 1996 ICJ opinion has produced no change in official discourse in Washington, as dramatically illustrated by the Senate non-debate on the CTBT. The defeat of the CTBT in the Senate reflected in large part the doubts of Republican senators that Stockpile Stewardship is adequate to achieve the objective of nuclear superiority, but the objective itself was not questioned by any party to the debate, including the Clinton Administration. Other aspects of the Washington political climate in this decade: The US could not even have a truthful, searching discussion of its atomic bombings of cities in Japan, and members of Congress continue to assert triumphantly that the nuclear threat won the Cold War. I do not believe that historical research will bear out this assertion, but even if it was true, it is hardly a matter for jubilation.
Despite all this, the law as stated by World Court is penetrating discussion of these issues, slowly to be sure, not only in the United Nations General Assembly or among small abolitionist groups, but also in mainstream “arms control” NGOs in Washington and in Congressional caucuses. Stated another way, in the US, law is beginning to move from traffic courts to the halls of Washington.
STRENGTH AND POWER OF CIVIL SOCIETY
Another resource, sometimes not fully appreciated, is found in the civil society. Let me give some examples.
In the United States, demonstrations at the Nevada Test Site involved thousands of people at a time, with as many as 2000 people arrested at a time. These demonstrations were little noticed by the media and apparently by the US government, but they probably did make some difference in US policy calculations – remember US testing was stopped in 1992. And the Nevada Test Site demonstrations were definitely noticed in Kazakhstan, where a powerful anti-nuclear movement succeeded in shutting down the principal Soviet test site in Semipalatinsk. That campaign was named the Nevada-Semipalatinsk Movement, in recognition of the link with demonstrations in the United States!
In 1991, the Partial Test Ban Treaty Amendment Conference took place at the United Nations in New York. While this treaty banning tests everywhere except underground was not amended at the conference, the conference did isolate the United States. Soon thereafter, the US Congress enacted a moratorium on testing, and negotiations on a Comprehensive Test Ban Treaty began in Geneva at the Conference on Disarmament. The Partial Test Ban Treaty Amendment Conference was initiated by Parliamentarians for Global Action, a non-governmental organization, though its members are parliamentarians, in a several year campaign in the late 1980s. Despite the refusal of the US Senate to approve the CTBT in 1999, I believe that full-scale underground nuclear testing is on its way out, that a global non-testing norm is emerging. We must ensure that this norm becomes firmly entrenched, and also challenge forms of laboratory testing and development that nuclear weapon establishments are using to replace underground testing.
In the World Court Project, supported by over 700 groups worldwide, civil society succeeded in inspiring and supporting Non-Alignment Movement countries which obtained the advisory opinion on nuclear weapons from the International Court of Justice.
In the Middle Powers Initiative, international disarmament NGOs have launched a campaign to support and embolden non-nuclear weapons countries, like the New Agenda Coalition, in their efforts to inject some life into the nuclear disarmament process.
Scientists, lawyers, and former diplomats, coordinated by the Lawyers’ Committee on Nuclear Policy, drafted a Model Nuclear Weapons Convention, which subsequently was circulated in the United Nations by Costa Rica. The model convention sets out the institutional framework for the prohibition and elimination of nuclear forces.
In 1995, the Abolition 2000 Global Network was formed at the Nuclear Non-Proliferation Treaty Extension and Review Conference, immediately attracting the adherence of 200 groups around the world. The Network today comprises almost 1500 1400 groups worldwide. Its program remains the same, including:
- commence multilateral negotiations leading towards the early conclusion of a nuclear weapons convention;
- de-alert, de-mate, and disable nuclear forces globally;
- cease the design and development of nuclear weapons;
- commit to non-use of nuclear weapons and reject deterrence;
- move away from reliance on nuclear power providing the infrastructure and materials for weapons programs, including through the establishment of an International Sustainable Energy Agency.
In January 1997, Abolition 2000 held its annual meeting on the island of Moorea, in Polynesia (Tahiti), a year after the end of French testing there. The meeting was hosted by Hiti Tau, a local network of NGOs dedicated to supporting indigenous culture, anti-nuclear activism and support for test site workers and other victims of testing, independence, and economic self-sufficiency, including through enterprises like vanilla and manoi (coconut) oil cooperatives. Women are well represented among the Hiti Tau leadership.