WEAPONS OF MASS DESTRUCTION
16 January 2017

Amb. Sergio Duarte – TRANSCEND Media Service

Foreword

The territory of the Republic of the Marshall Islands, located in the region of the Pacific Ocean known as Micronesia, comprises 29 coral atolls with more than one thousand islands and islets. In 1947, the United Nations declared the archipelago a “Strategic Territory” under the trusteeship of the United States. In 1986 the Marshall Islands achieved full sovereignty and became a member State of the United Nations in 1991.

Between 1946 and 1958 several of the atolls, particularly Bikini and Eniwetok, were used by the United States to carry out a total of 67 nuclear weapon tests in the atmosphere. Inhabitants were transferred to other parts of the archipelago. The most powerful series of tests was the one codenamed Castle, with a yield of 48 megatons. The first of such tests, named Bravo, a thermonuclear detonation of 15 megatons[i], equivalent to one thousand times the power of the bomb that hit Hiroshima, created a crater over 120 feet deep and about one mile wide. Radioactive particles fell over an area of about 27 thousand square miles. Resulting fallout liberated 30 times more radioactive iodine than the Fukushima and Chernobyl disasters combined. The world knew of the test when the Japanese fishing boat Daigo Fukuryū Maru (第五福龍丸) returned to the port of Yaizu, in Japan. Its 23 crewmen had been exposed to and contaminated by fallout from the blast. Many other boats were also within the fallout zone. Hundreds of tons of fish and other marine animals captured by fishing boats were contaminated and had to be destroyed.

Nuclear weapon test at Bikini Atoll in 1946. Credit: United States Department of Defense via Wikimedia Commons

During the twelve years of experiments, the populations of other islands and atolls in the archipelago sustained serious damage. Some were completely evacuated by the American Navy. Food and drinking water were constantly contaminated. People vomited and their hair began to fall out. The incidence of cancer increased manifold, as well as that of malformations in newborn babies. Rates of chronic cardiac, thyroid, lungs, bones and digestive system diseases also increased.

The population of Bikini that returned to the atoll in 1969 was again evacuated in 1978 when excessive exposure to radiation was detected. Dwellers that had been transferred to other islands and later brought back to her homes were forced to abandon them again in 1985. The people of the Republic of the Marshall Islands still demand adequate compensation for the losses and damages sustained.

Legal Action  

In 2014 the Republic of the Marshall Islands filed two legal suits: one at the International Court of Justice against the nine countries that possess nuclear weapons[ii] and another at an American federal court against the government of the United States. The suits did not seek financial compensation but rather requested a declaratory judgment of breach of obligations under Article VI[iii] the Nuclear Non-proliferation Treaty.

Civil society organizations supported the claims and provided technical assistance for the elaboration of the legal cases and for the follow-up of their examination by the courts. Both suits are based on the unanimous 1996 advisory opinion of the ICJ which stated 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” and on the text of the NPT. Both also stem from the so-called “humanitarian initiative” that gained thrust within the international community since the 2010 Review Conference of the NPT.

The decisions by the two tribunals came in 2015. The American court ruled that the suit was not admissible. This decision was appealed by the representatives of the Marshall Islands. The International Court of Justice took up initially the objection raised by the United Kingdom, to the effect that since in their view there was no dispute between the parties in the case, the application should not be admitted. The conclusion of the majority of the Judges was that the Court should not proceed to the merits of the case.

Only three of the nine States possessing nuclear weapons – India, Pakistan and the United Kingdom – acknowledge the compulsory jurisdiction of the Hague Court and sent representatives to the proceedings. China, the DPRK, France, Israel, Russia and the United States chose not to take part in the sessions of the Court[iv].

Several Judges presented dissenting opinions and filed separate votes. The dissenting vote of the Brazilian Judge, Antonio Augusto Cançado Trindade, is the longest and most detailed among the manifestations of the Judges. Among other reasons, he argued that the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) should be considered a part of international customary law and must be observed by all States. In his view, a small group of States – such as the possessors of nuclear weapons – cannot overlook or minimize the reiterated resolutions adopted by the General Assembly and the Security Council simply because they voted against them or abstained. Such resolutions are valid for all members of the United Nations and not only for the large majority of States that voted in favor. Therefore, they possess a normative value.

The final paragraph of Judge Cançado Trindade’s vote deserves to be quoted in full: “A world with arsenals of nuclear weapons, like ours, is bound to destroy its past, dangerously threatens the present, and has no future at all. Nuclear weapons pave the way into nothingness. In my understanding, the International Court of Justice, as the principal judicial organ of the United Nations, should, in the present Judgment, have shown sensitivity in this respect, and should have given its contribution to a matter which is a major concern of the vulnerable international community, and indeed of humankind as a whole.”

Impact on the Multilateral Treatment of Disarmament Issues

The divergences among the Judges show the relevance of the current debate in the multilateral organs of the United Nations and civil society organizations on the legitimacy of indefinite possession and constant improvement of nuclear armament, as well as on the legality of its use. The level of commitment to disarmament expressed by the votes and attitudes of States was one of the points brought to the consideration of the Judges.[v]

During the last decade the interest of the international community for the humanitarian aspects of the use of nuclear weapons increased considerably. The 2010 NPT Review Conference expressed unanimously its concern with the “catastrophic consequences of any use of nuclear weapons” and called on all States to comply with applicable international law, including international humanitarian law. In the 2015 Review Conference a humanitarian pledge to “stigmatize, prohibit and eliminate” nuclear armament was supported by a large majority of States. Three international Conferences, in 2013 and 2014, examined the consequences of nuclear weapon detonations. One of its main conclusions was that “the impact of a nuclear weapon detonation, irrespective of the cause, would not be constrained by national borders and could have regional and even global consequences, causing destruction, death and displacement as well as profound and long-term damage to the environment, climate, human health and well-being, socioeconomic development, social order and could even threaten the survival of humankind”.

The main multilateral instruments in the field of nuclear disarmament also reflect this concern. As early as in 1963 the Partial Test Ban Treaty (PTBT) called attention to the importance of preventing the contamination of the human environment by radioactive substances, and in 1996 the Comprehensive Test Ban Treaty (CTBT) mentioned its contribution to the protection of the environment. Although the latter instrument is not formally in force[vi], it established a strong standard of international behavior that does not admit the carrying out of nuclear test explosions[vii].

The Hague Court recognized “special reasons for concern” by the Marshall Islands with regard to nuclear weapons. By acknowledging the special interest of a non-possessor State in this question, the Court may have opened the way for countries that may be actually or potentially affected by the use – by design or accident – of such weapons, to invoke relevant reasons in support of their concern or to request the adoption of measures of redress. In view of the possible planetary consequences of a nuclear detonation, any State may consider itself affected by it, regardless of its location.

The outcome of the two legal suits by the Marshall Islands brings out the difficulty of making the nuclear weapon countries liable for their lack of compliance with disarmament and non-proliferation obligations and of compelling them to respect such commitments through legal action. Some commentators note that the International Court of Justice has consistently refrained from making definitive judgments on matters regarding international security, especially with regard to nuclear armament in cases that involve the interests of the main Powers. It should be noted in passing that mainstream media in nuclear-weapon States and their allies paid little or no attention to the suits by the Marshall Islands.

By challenging the legitimacy and the legality of the possession and use of nuclear weapons, the legal action by the Marshall Islands brings out the emergence of a new approach to the complex and thorny question of nuclear disarmament on the eve of the start of a new five-year cycle of review of the Treaty on the Non-proliferation of Nuclear Weapons. The first of three annual preparatory Conferences is scheduled for April/May 2017. Besides, the recent Session of the United Nations General Assembly adopted a proposal initiated by a group of countries[viii] and mandated the start of negotiations in 2017 of a legally binding international instrument to prohibit nuclear weapons with a view to their complete elimination. To a considerable extent this result can be attributed at least in part to the influence of the global movement for the elimination of atomic arsenals. The States that do not possess nuclear weapons have now taken the initiative of new agreements in the field of disarmament, while the possessors are on the defensive

Participation in the forthcoming negotiation will be open to all States and international organizations, as well as to representatives of civil society. For the first time the negotiation within the United Nations of an international instrument in the field of disarmament and security to be subscribed by States will benefit from the participation and direct contribution of non-governmental entities.

It will be crucial that, in this pioneer endeavor, both the States that advocate the adoption of concrete, urgent measures of nuclear disarmament and of de-legitimization of nuclear armament and the civil society organizations that promote international campaigns avoid unproductive and unnecessary confrontations and recriminations and utilize their potential of persuasion to favor the constructive participation of the nuclear Powers and their allies in the effort to achieve the complete elimination of atomic armament. The universality of international agreements in the field of disarmament and full confidence in compliance with them are essential conditions for their achievement and permanence. Discriminatory agreements will only stimulate divergence and will hardly achieve unlimited duration. No pact can be successful and lasting if it does not contemplate the legitimate interest of all its Parties.

NOTES

[i] One megaton equals one million tons of TNT.

[ii] China, the DPRK, France, India, Israel, Pakistan, Russia, the United Kingdom and the United States.

[iii] 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.”

[iv] DPRK, India, Israel and Pakistan are not Parties to the NPT.

[v] The proliferation of nuclear weapons was deemed to be a threat to international peace and security by the United Nations Security Council, the organ primarily responsible for the maintenance of peace and security. It could be argued that the current possessors in fact promoted proliferation by acquiring nuclear weapons and increasing their numbers and that they still promote it by introducing technological improvements, even while reducing their arsenals. On several occasions the Security Council approved sanctions against some countries recognized as “non-nuclear States” according to the NPT because of their nuclear activities.

[vi]  Ratification by eight States (China, DPRK, Egypt, India, Iran, Israel, Pakistan and the United States) is necessary for its entry into force.

[vii] The CTBT does not prohibit “subcritical” test, (that is, those that do not set off a chain reaction) and computerized simulations in laboratory.

[viii] Austria, Brazil, Ireland, Mexico, Nigeria and South Africa.


Sergio Duarte – Brazilian Ambassador, former United Nations High Representative for Disarmament Affairs; former Chairman of the Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons; former President of the Board of Governors of the International Atomic Energy Agency