THE LAW & THE BOMB
US Law, International Law and Oak Ridge
In July 1996, the International Court of Justice (World Court) issued an advisory opinion that held that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law." 1
The World Court further declared the maintenance and building of nuclear weapons to be a violation of Article VI of the Nuclear Nonproliferation Treaty which imposes "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." In the Court's view, "elimination of nuclear weapons is the only adequate response to the dilemma and risks posed by the nuclear age."
US Law and the Nuclear Nonproliferation Treaty
International treaties and agreements have the force of law in the United States. Article six of the US Constitution asserts that the Constitution 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."
The Constitution is explicit. International treaties are not one obligation to be balanced by other obligations or interests-they are the supreme Law of the Land.
The Nuclear Nonproliferation entered into force on March 6, 1970. 2
The NPT has two complementary goals. First, to stop the lateral spread of nuclear weapons materials and technology-nonproliferation. And second, to reduce the nuclear arsenals of current nuclear weapons states to zero-disarmament.
The chief leverage the NPT exercises in its efforts to stem the spread of nuclear weapons is twofold: the promise of assistance in the development of civilian nuclear energy (while restricting access to weapons technology and the production of highly enriched uranium, plutonium, or tritium) and the promise of nuclear weapons states to disarm.
Central to the latter is Article VI of the NPT which reads: "All parties to the treaty undertake to pursue negotiations in good faith on effective measures relating to the 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."
US compliance and the NPT
Since signing the NPT, the US has entered into a series of two-party negotiations with the Soviet Union, and now with Russia, which have led to a series of agreements to reduce nuclear arsenals.
These activities, which conform (excepting the "at an early date" clause) with the spirit of the NPT, have been undermined recently by action of the US government.
In 1997, the US announced its "Stockpile Life Extension Program," under which aging nuclear warheads are "refurbished" and "upgraded" so that they can be certified reliable for 100-120 years.
In 1999, the US announced its decision to produce tritium for nuclear weapons in a civilian nuclear power reactor (Watts Bar I, in Tennessee), undermining the long-standing international prohibition against "dual use" technologies.
In 2001, the US and Russia concluded an informal Strategic Offensive Reduction Treaty (SORT, aka Moscow Treaty) to reduce nuclear arsenals to 1,700-2,200 warheads by 2012 on a voluntary basis, with no verifiable transparency or enforcement mechanisms. US President George Bush announced there would be no further negotiations on arsenal reduction with Russia.
On June 14, 2002, the United States formally withdrew from the Anti-Ballistic Missile (ABM) Treaty. In response, as it had forewarned, Russia declared the START II Treaty null and void.
In 2003, the US Congress lifted a 10-year old ban on the design and development of new nuclear weapons; funding was allocated under the heading "Advanced Concept Initiatives" for new nuclear weapons.
In 2005, Congress alloctaed $25 million for a new warhead design called the Reliable Replacement Warhead; its purpose is to sustain US nuclear capability for the indefinite future.
Currently, the US arsenal contains between 6,000 and 9,000 active thermonuclear warheads, most on hair-trigger alert. The 2001 Moscow Treaty does not require the elimination of warheads, only their retirement from active deployment-the US currently maintains a significant "strategic reserve" of warheads, warhead components, and special nuclear materials.
Other US treaty obligations
Nuclear weapons by nature are covered by additional treaties.
The Geneva Gas Protocol of 1925 forbade the use of weapons which could not be contained in the theatre of battle and which would by nature fail to distinguish between combatants and noncombatants, specifically prohibiting "poisonous or other gases and all analogous liquids, materials, or devices." The US did not sign the Gas Protocol until 1975.
Nuclear weapons production also violates the 1949 Geneva Convention and the 1997 Protocol I to the Geneva Convention ("making the civilian population or individual civilians the object of attack"), the 1945 Nuremburg Charter 3, plus scores of human rights and environmental laws.
At Y12 Today-Stockpile Life Extension
At the Y12 National Security Complex, the Department of Energy refurbishes thermonuclear weapons as part of the Stockpile Life Extension Program.
Y12 has produced the thermonuclear part of every nuclear weapon in the US arsenal. [A nuclear weapon gets its destructive power from two explosions. A relatively small fission explosion (the plutonium/tritium pit) is initiated by the use of high explosives. This atomic explosion triggers the thermonuclear secondary (highly enriched uranium, depleted uranium, lithium deuteride, beryllium) which explodes with devastating force.]
US thermonuclear weapons were initially designed to have a shelf life of 20-30 years. In 1997, DOE began to "refurbish" aging warheads. Beginning with the W87 (MX missile) warhead, and continuing now with the W76 (Trident) warhead, the thermonuclear secondary from each bomb is returned to Y12 where it is given a life extension upgrade-aging parts are replaced, refurbished, or upgraded-and the bomb is certified reliable for 100-120 years.
This activity contradicts the US obligation under the NPT to pursue complete disarmament in good faith at an early date. Rather than progressing toward the elimination of nuclear weapons, the US is actively working to maintain a large nuclear arsenal in virtual perpetuity. Stockpile life extension, combined with the cessation of arms control talks with other nations, violates the letter and the spirit of the NPT.
The US and the NPT
The United States has two responses to charges that it violates the law and the NPT by its activities at Oak Ridge. The first is to assert compliance in the face of contradictory evidence. 4
The second is to undermine the NPT by insisting that parties to the Treaty "de-link" nonproliferation and disarmament. In other words, no new members of the nuclear club, but those that have bombs can keep them. This strategy, described as "pulling up the ladder," has met with almost universal dismay and is widely recognized as a strategy that seeks the eventual demise of the treaty.
NOTES
1. On December 15, 1994, the General Assembly of the United Nations, in resolution 49/75K asked the world court: "Is the threat or the use of nuclear weapons in any circumstances permitted under international law?" The Court found "...the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law."
The Court unanimously found 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."
Judge Bedjaoui, president of the Court, said the "very existence of nuclear weapons constitutes a great defiance (challenge) to humanitarian law itself.... Nuclear war and humanitarian law seem, consequently, two antitheses which radically exclude each other, the existence of one necessarily supposing the non-existence of the other."
2. The Treaty was signed in Washington, DC, London and Moscow on July 1, 1968. It was ratified by the US Senate on March 13, 1969. Since that date, this commitment has been the law of the land. The Treaty officially entered into force on March 6, 1970.
3. The Nuremberg Charter defines war crimes as violations of the customs or laws of war, including but not limited to: "wanton destruction of cities, towns or villages, or devastation not justified by military necessity." Crimes against humanity are also defined in the Nuremberg Charter, the definition includes "inhumane acts committed against any civilian population."
4. Mohammed El Baradei, chief UN weapons inspector: "The U.S. government insists that other countries do not possess nuclear weapons. On the other hand they are perfecting their own arsenal. I do not think that corresponds with the treaty they signed." Financial Review, September 5, 2003.
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