Statement for the International Law Workshop
Resistance for a Nuclear Free Future Gathering
Maryville College and the Y-12 Nuclear Weapons Complex, Tennessee
July 3-5, 2010
By Anabel Dwyer, J.D. and Kary Love, J.D.
Fulfilling Our Nuclear Disarmament Obligation in Good-Faith
Current law requires an end to all planning, preparation and production of nuclear weapons at Y-12 in Oak Ridge, Tennessee.
“The dominant mission of Y-12 today is the production of new and/or refurbished thermonuclear secondaries for existing US nuclear warheads as part of the Stockpile Life Extension Program (LEP). [These include life extension upgrades to the W-76 that] will result in the W-76 Modification 1, a warhead with new military capabilities” [Oak Ridge Environmental Peace Alliance (OREPA), “The Future of Y-12,” Nov. 2009].
The facts:
All W-76 and W-76-1 thermonuclear secondaries produced at Y-12 are designed and produced to unleash 100 KT of uncontrollable and indiscriminate heat, blast and radiation, six times more than the Hiroshima bomb. (Norris and Kistensen, Nuclear Notebook: U.S. nuclear forces, 2009, Bulletin of Atomic Scientists, Mar. April, 2009).
The International Court of Justice’s (ICJ) summarized the indisputable facts of all nuclear weapons: “The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet.” (Legality of Threat or Use of Nuclear Weapons, ICJ Opinion, 8 July 1996).
In addition, the manufacture of nuclear weapons has grave environmental consequences. “In November 1989, Y-12, along with the rest of the Oak Ridge nuclear reservation, was added to the EPA’s National Priorities List, making it the first DOE Superfund site among the major weapons producing facilities. Rapid and thorough remediation” has not been possible because Y-12 continues to operate making new or refurbished thermonuclear secondaries using and contaminating local water systems. (OREPA), “The Future of Y-12”).
The Law:
Any nuclear weapon, including the W-76 and W-76-1 is inherently indiscriminate and disproportionate. By manufacturing or refurbishing W-76 nuclear warhead secondaries at Y-12 the U.S. continues to plan and prepare for use of these weapons in violation of the fundamental and peremptory rules and principles of humanitarian law and the dictates of the public conscience.
U.S. law and international law as U.S. law prohibit threatening or inflicting indiscriminate harm and unnecessary suffering, in any circumstance in war or peace. Because all nuclear weapons “cannot be contained in space or time,” any use would, ipso facto, constitute a crime against humanity and a war crime including those prepared for use at Y-12. These peremptory conventional and customary rules and principles of humanitarian law apply to and prohibit any planning, preparation, threat or complicity in the use of the W-76 or W-76-1 thermonuclear weapon secondaries.
The constitutional war powers of Congress and the President are not unlimited. Particular prohibitions of law are expressed in the Nuremberg Principles, the U.S. criminal code (War Crimes , 18 USC 2441 and Genocide, 18 USC 1091-1093); U.S. treaties that are part of the “supreme law of the land” (U.S. Constitution, Article VI, clause 2); and universally binding rules and principles of humanitarian law.
This body of law is summarized most authoritatively by the International Court of Justice (ICJ, 1996):
1. The ICJ affirmed the “fundamental,” “cardinal,” and “intransgressible” rule, that “States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilians and military targets” (ICJ 1996, § 78). Likewise, it is prohibited to use weapons that cause uncontrollable effects [1977 Protocol I to the Geneva Conventions, Art. 51(4)]. “If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to that law” (ICJ 1996, §78). In cases not covered by specific treaties, “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” (ICJ 1996, § 78; Hague Convention II 1899; Additional Protocol I, 1977).
2. The fundamental rules and principles of humanitarian law are peremptory and cannot be overridden by Congressional or Executive action. The Nuremberg Tribunals held: “Individuals have international duties which transcend the national obligations of obedience imposed by the individual state.”
3. Other rules identified by the ICJ forbid the infliction of unnecessary suffering, widespread, long-term and severe damage to the environment, and damage to neutral states; prohibit the commission of genocide by destruction of ethnic and other groups in whole or part; and prohibit violation of the right to life and other human rights underlying humanitarian law.
4. The Action Plan for Nuclear Disarmament agreed to by consensus at the 2010 Nuclear Non-Proliferation Treaty (NPT) Review Conference at the United Nations reaffirms these obligations: “The Conference expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons, and reaffirms the need for all states at all times to comply with applicable international law, including international humanitarian law.”
The practical and obligatory solution is good-faith complete nuclear disarmament
It is well understood that the only defense against a nuclear catastrophe is the total elimination of nuclear weapons and certainty that they will never be produced again. The International Court of Justice unanimously concluded: “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.” (Legality of Threat or Use of Nuclear Weapons, ICJ Opinion, 8 July 1996).
Good-faith requires openness, fairness, disclosure of material facts, meaningful and unequivocal steps toward the goal of elimination of nuclear weapons, with cooperation and sincerity, within a reasonable time span and without further postponement (IALANA, International Human Rights Clinic at Harvard Law School, “Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons,” 2009).
We welcome the recent bilateral US/Russian Agreement to further reduce strategic warheads and their delivery systems and President Obama’s commitment to “peace and security of a world without nuclear weapons.” This reflects our commitment and increases our determination to implement nuclear disarmament in good-faith, truthfully and without delay. While some nuclear disarmament process is occurring, the functions at Y-12 must be shifted solely to “transparent, verifiable and irreversible” processes of dismantlement consistent with “unequivocal undertaking to the total elimination of their nuclear arsenals” as reaffirmed also in the consensus agreement just reached at the 2010 Nuclear Non-Proliferation Treaty (NPT) Review Conference.
In addition the program of action reaffirmed at the NPT Review Conference includes entry into force of the Comprehensive Test Ban Treaty (CTBT) which as stated in the Treaty’s preamble is an “effective measure” in “constraining the development and qualitative improvement of nuclear weapons and ending development of advanced new kinds of weapons.” Attempts to condition ratification of the CTBT on continuing upgrades, life extension or new weapons design and production is in violation of the object and purpose of the CTBT. Ratification of the CTBT, without contradictory conditions, is required to fulfill in part the good-faith disarmament obligation of Article VI of the NPT. (Sands & Law, “UK’s Nuclear Deterrent, Current and Future Issues of Legality,” MATRIX, Gray’s Inn (London), Nov. 13, 2006).
The role of citizens in ensuring complete nuclear disarmament
We have long understood that nuclear weapons must be eliminated everywhere if we are to survive as a species. Citizens have both rights and duties to play direct roles in taking practical and consistent actions to ensure the success of a Nuclear Weapons Convention, which will implement universal elimination of the development, testing, production, stockpiling, transfer, use and threat of use of nuclear weapons. Similarly citizens must ensure that we and future generations are protected by consistent and practical application of international and domestic laws for the prevention and clean-up of environmental contamination. It is our common task under the Nuremberg Principles and principles of democracy to ensure that our government fulfills its promise and responsibility for irreversible and unequivocal good-faith, complete nuclear disarmament.
“Indeed anti nuclear civil resistance is the right of every citizens of this planet for the nuclear threat attacking as it does every core concept of human rights, calls for urgent and universal action for its prevention. If it is a basic human right to be free of threat or violence, if the right to life is a basic human right, if the protection of children and future generations is a basic human duty, international law must unhesitatingly recognize that the right to non violent resistance activities for the prevention of such an international crime is basic to human dignity.” (c.f., Judge Weeramantry, “The Trident and International Law, Scotland’s Obligations, Feb. 3, 2009).
While federal courts in the U.S. have been reluctant to recognize these rights, citizens continue to specify, in particular locations, steps that must be taken to fulfill our obligations for irreversible and unequivocal good-faith, complete nuclear disarmament and to prevent further planning, preparation and threat for use of nuclear weapons. Citizens who raise these urgent issues by engaging in non-violent direct action must, at least, be given the opportunity to be fully heard by an impartial court. (cf. Judgement of Acquittal, Judge Russell Canan, 24 “Witness Against Torture” defendants were charged with unlawful assembly, Washington D.C. Superior Court, July 17, 2010; Jury Acquittal on claim of right, Waihopai Plowshares, New Zealand, April 30, 2010)
Current law requires consistency with the complete disarmament obligation.
The mission at the Y-12 facilities must be solely to proceed with systematic and verifiable dismantlement of nuclear weapons and to clean up the toxic results of nuclear weapons production and an immediate end to all funding for manufacture, upgrade, life extension of nuclear weapon secondaries and to end all plans for a new Uranium Processing Facility. Dismantlement and disassembly operations under secure and verifiable conditions will be done by consolidation and modernization of existing facilities rendering a new Uranium Processing Facility unnecessary. (For further DOD and NNSA budget cuts necessary for conformity with the law see Bob Civiak, “Enhancing Nuclear Weapons Research and Production to Support Disarmament?” Tri-Valley CAREs, Feb. 22, 2010 and U.S. Conference of Mayors Resolution, “Supporting US Participation in Global Elimination of Nuclear Weapons and Redirection of Nuclear Weapons Spending to the Meet Human Needs of Cities, April 17, 2010).