VII: Rule of Law: Legal Methods and Mechanisms to Deal with Nuclear Proliferation

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My first career, before entering one in international law, was as a pre-school teacher. In fact, my decision to move into law was as a result my learning about the catastrophic effects of the testing of nuclear weapons on the health of children in the Pacific area and the threats posed to all children in the world by the possible use of nuclear weapons in a war. I turned to international law as probably the most powerful force available to constrain the nuclear weapon states and move them towards nuclear disarmament.

The potential of international law in this respect was demonstrated by the 1973 Nuclear Tests Case, which helped move France to stop its atmospheric testing of nuclear weapons in the Pacific. However, there have been numerous times when countries have resorted to the use of force when legal mechanisms could have been used instead. This indicates that there is an incredible lack of public knowledge about the law and about legal mechanisms available for addressing threats to security including international conflicts, aggression, nuclear proliferation and terrorism.

Thus, the combination of education and international law, demonstrated by the City Montessori School hosting a conference for chief justices of the world, is a necessary and powerful mix which could help considerably in the strengthening of international law and the replacement of the use of force by governments with the use of law.

Legal issues regarding nuclear weapons policies have emerged recently in response to new nuclear threats. These include:

There is thus an increasing urgency for the strengthening of legal norms to constrain the possession, threat or use of nuclear weapons, and for the development of legal regimes to control, reduce and eventually eliminate such weapons. The alternative - a world governed by increasing threats to use force, including the use of nuclear weapons – is likely to occur should the rule of force not be replaced by the rule of law.

However, it would be misleading and disempowering to assume that effective legal mechanisms for addressing these issues do not already exist. In fact, these mechanisms have already been used on a number of occasions with great success. The challenge is to encourage greater recourse to these mechanisms along with their strengthening.

During the Cold War the US and USSR ammassed over 45,000 nuclear weapons, most of them 100–1,000 times the explosive force of the Hiroshima bomb.[1] The rationale was to deter the other side from attacking.

At the end of the Cold War, there at first appeared to be no more need for nuclear deterrence and thus no reason to maintain large stockpiles of nuclear weapons. However, the stockpiles did not disappear. Rather new enemies were found to justify the deterrence policy and the nuclear weapons. The deterrence song remained the same, just the subjects (those supposedly being deterred) were changed.

Thus there continues to be over 30,000 nuclear weapons in the stockpiles with nearly 5000 of them on high alert, ready to be used within minutes notice (see table 1).

The explosive force and the devastation that would be caused by these nuclear weapons is beyond imagination. However, to get some idea, Imagine all the firepower used in World War II – all the artillery and bombs including those dropped on London, Dresden, Tokyo and the nuclear bombs dropped on Hiroshima and Nagasaki. This is equivalent to 3 million tons of TNT and is represented by the dot in the middle of the chart below. The other dots represent the firepower of the world’s nuclear weapons at the dawn of the 21^st century – equivalent to 6 billion tons of TNT or 2000 World War IIs. 8 dots represents 24 megatons – the firepower of the nuclear weapons on one Trident submarine. 2 squares above represents 300 megatons – enough to destroy all the large and medium sized cities in the world.

The explosive force of nuclear weapons is not their only effect. They also generate radiation which creates considerable damage on human health and on the environment. Nuclear weapons use, development and testing has released over 2 billion curies of radiation into the environment. This has resulted in hundreds of thousands of cancer victims, children born with birth defects and other health problems. Rosalie Bertell, Bio-statistician has estimated that “The global victims of the radiation pollution related to nuclear weapon production, testing, use and waste conservatively number 13 million”[2] These numbers are mindboggling and mean little unless we consdier what each individual case means. Here is one:

“In the dim light of a hospital room, seven year old Jimmy was remembering the day on which he was told that he had leukaemia. He remembered his mother’s tears, his father’s bewildered anger, the alien feeling of the hospital’s environment. Then his mind replayed the nausea and diarrhoea caused by radiation therapy and chemotherapy, his hair falling out and kids laughing at him… Jimmy died gently, exhausted at having lost so much blood. His tissue had broken down completely, and he was bleeding from every body opening. His bed looked like a battlefield.”[3]

In the Marshall Islands, where the United States tested nuclear weapons, Darlene Keju-Johnson

Director of Family Planning 1987-1992, reported that “Now we have this problem of what we call ‘jelly-fish babies’. These babies are born like jelly-fish. They have no eyes. They have no heads. They have no arms. They have no legs. They do not shape like human beings at all. When they die they are buried right away. A lot of times they don’t allow the mother to see this kind of baby because she will go crazy. It is too inhumane.”[4]

The nuclear arms race is also killing people indirectly. While thousands of people die daily from poverty related causes such as starvation, lack of clean water, lack of basic medicine and lack of sufficient shelter, the nuclear weapon states are spending millions daily on nuclear weapons progams. The United States spends $35 billion per year on its nuclear weapons program. This money could provide clean water & shelter for everyone in the world. France spends $20 billion per year. This money could eliminate starvation globally. India spends $2 billion (Rs 75 billion) per year. This money could provide elementary education for every Indian child.[5]

The players all played at once, without waiting for turns, quarreling all the while, and fighting for the hedgehogs; and in a very short time the Queen was in a furious passion, and went stomping about, and shouting “Off with his head!” or “Off with her head!” about once every minute. Alice began to feel very uneasy: to be sure, she had not as yet had a dispute with the Queen, but she knew that it might happen at any minute, “and then” thought she, “what would become of me? They’re dreadfully fond of beheading people here: the great wonder is, that there’s anyone left alive!”

NWSs do not appear to be curbing nuclear development, but rather the opposite. For instance, in January 2002, the U.S. administration completed a Nuclear Posture Review. The Review affirmed disturbing developments in U.S. nuclear policy. Policies toward particular countries include contingency plans for the use of nuclear weapons against Iraq, Iran, North Korea, Russia, China, Libya, and Syria.[7] Defence measures discussed by the United States involve increased readiness for nuclear testing,[8] despite the fact that the United States in 1996 signed the Comprehensive Test Ban Treaty, which prohibits all nuclear detonations for test purposes;[9] the deployment of anti-ballistic missile defence,[10] following the United States’ withdrawal from the Anti-Ballistic Missile Treaty in 2002;[11] and developing “more usable” nuclear weapons,[12] which is contradicted by the undertaking made by all NWSs at the 2000 Non-Proliferation Treaty review conference to reduce the role of nuclear weapons in security policies.[13]

The most dangerous plan is a larger role for nuclear weapons, not just to deter a nuclear strike, but to have a role in deterring, or preemptively destroying, any weapons of mass destruction (WMD).[14] The impacts of these developments have reversed nuclear disarmament gains made in the last decade. The result is a stimulus for other states to alter their nuclear doctrines. Russia has responded by rescinding its ratification of Strategic Arms Limitation Talks II (SALT II). Similarly, China has responded by refusing to join other NWSs in negotiating a treaty to curtail production of fissile material on the basis that it may need to increase its numbers of warheads to deal with the threat from U.S. anti-ballistic missile systems.

B. Preemptive use of Force

The most dramatic development affecting international law and nuclear doctrine has been that of the preemptive use of force, possibly nuclear force, in response to the proliferation of WMD. In March 2003, the United States justified its use of force against Iraq on the basis of preemptive, self-defence to prevent Iraq from using WMD, and on the claim that the Security Council authorized the use of force to ensure compliance with resolutions requiring Iraq to eliminate its WMD. This military assault by the United States and a small coalition against Iraq, on the basis of suspected WMD programs, indicates that this policy is no paper tiger, but a very real indication of the types of actions the U.S. government will take to pursue its interests.

The illegality of the preemptive use of force against Iraq, the damage this precedent could render to international law, and the prevention of future use of force, was outlined in an International Appeal by Lawyers and Jurists against the Preventive Use of Force. This was endorsed by over 300 legal experts from forty countries, and was submitted to the United Nations by Judge Weeramantry, former Vice-President of the International Court of Justice (ICJ). The appeal recognized that “[t]he development of WMD anywhere in the world is contrary to universal norms against the acquisition, possession and threat or use of such weapons and must be addressed”[15] but argued that, “the ‘preventive’ use of force currently being considered against Iraq is both illegal and unnecessary and should not be authorized by the United Nations or undertaken by any State.”[16] The appeal based its conclusion on a number of principles of international law, enshrined in the UN Charter and other legal instruments. Under Article 2 (4) of the UN Charter the use of force by States is prohibited except in the case of self defense in response to an actual attack and only until the UN Security Council has responded. The Security Council can authorize the use of force in a situation creating a threat to international peace, but has never authorized the use of force based on a potential, non-imminent threat of violence. In the case of a threat to the peace, the UN Charter calls for the use of non-violent means to respond as a priority to the threat or use of force.

VII: Rule of Law: Legal Methods and Mechanisms to Deal with Nuclear Proliferation

There is a growing body of unilateral and multilateral approaches that have been developed to address nuclear proliferation and other threats to peace. Such methods include: declarations, monitoring, inspections, preventive controls, diplomacy, negotiation, mediation, adjudication, disarmament assistance (voluntary or imposed), and diplomatic and economic pressure, including sanctions (see table two)

In addition to legal mechanisms, there are other organizational and multilateral means for addressing disarmament and non-proliferation. These include National Technical Means, the International Atomic Energy Agency (IAEA), the Comprehensive Test Ban Treaty Organisation (CTBTO), bi-lateral treaties (e.g., U.S.-Russia, Brazil-Argentina), UN General Assembly, UN Security Council, and the ICJ (see table three).

In 1995 the French government, in an act of State organized terrorism, blew up the Rainbow Warrior, a peace boat, with limpet mines and killed a crew member. The New Zealand police apprehended some of the French terrorist agents, arrested them and they were convicted. France responded by placing a European ban on New Zealand products. The situation was resolved not through the use of force by New Zealand against France, but by the use of the good offices of the UN Secretary-general.

In 1972 France commenced an open-ended program of atmospheric nuclear testing in the South Pacific. The radiation from the tests was contaminating countries in the region. New Zealand and Australia launched a case in the International Court of Justice, resulting in France stopping its atmospheric nuclear testing program. A follow-up case in 1995 helped move France to abandon its underground testing program and sign the Comprehensive Nuclear Test Ban Treaty.[17]

During the 2oth Century, Chad and Libya fought three wars over the border between their two countries. In the late 1990s they agreed to take the case to the International Court of Justice. Following the court’s decision in favour of Chad, Libya agreed to withdraw its troops from the occupied area and agree to the border established by the Court.

Nuclear weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser evil. Nuclear war and humanitarian law therefore appear to me to be mutually exclusive; the existence of one automatically implies the non-existence of the other.

The International Court of Justice in its 1996 Advisory Opinion on the legality of the Threat or Use of Nuclear Weapons declared 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.

The court also determined 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.

Thus, not only do the NWSs have an obligation to eliminate their nuclear arsenals, but to not use their arsenals pending elimination of them. The United States, the United Kingdom, France, and Russia are in violation of these obligations. All four states maintain policies of first use of nuclear weapons and maintain a policy to use nuclear weapons in circumstances beyond those identified by the ICJ as the only circumstances that weapons may be used legally.[19] In the case of nuclear weapons, they cannot be used in such an extreme circumstance without violating the humanitarian laws of warfare.[20]

When it comes to those very weapons of mass destruction which pose a greater threat to human rights and the environment than anything else imaginable, these [nuclear weapons] States ask you to set aside that body of principles and rules so carefully put in place over the past 50 years. They ask you, in effect, to re-situate yourself in 1945, to ignore all subsequent developments and to follow Balzac's dubious proposition, "that laws are spider webs through which the big flies pass and the little ones get caught".[21]

After the ICJ affirmed the illegality of the threat or use of nuclear weapons and the obligation to negotiate for their elimination, one might expect the UN Security Council to take action to enforce the law on this issue.

In light of the fact that the five acknowledged NWSs each hold a veto power in the Security Council, it is unlikely that this will happen. “[T]he political role of the Security Council is clearly dominated by a powerful group of countries, the nuclear powers, and in that context there is little hope of placing the issue of nuclear weapons before such a Council for an objective and fair consideration.”[22] This does not mean, however, that there are no other possibilities for advancing the rule of law in other international and national fora. For instance, the ICJ decision has led to action in the UN General Assembly, international treaty fora, domestic parliaments and courts, and by non-governmental organizations (NGOs).

a) General Assembly

The UN General Assembly responded to the 1996 ICJ decision by adopting a resolution that called on states to implement the decision by commencing negotiations, which would lead to the conclusion of a nuclear weapons convention—a treaty prohibiting the possession, threat or use of nuclear weapons, and providing a program for their elimination.[23] The resolution has been reaffirmed every year since 1996, with an overwhelming majority of states, including some of the NWSs.

A number of parliaments, including the United Kingdom House of Commons, the United States Congress and the European Parliament, have taken actions to encourage their governments to support the resolution. This includes the introduction or adoption of resolutions referring to the decision and calling for its implementation through negotiations leading to a nuclear weapons convention. [24]

The ICJ decision has encouraged anti-nuclear activists to take new and stronger actions against nuclear weapons facilities in the NWS and in the territories of allies where nuclear weapons are deployed. Using the precedent of United Nations weapons inspectors in Iraq that were empowered by the Security Council to ascertain whether Iraq was complying with its disarmament obligations, NGOs have formed teams of citizen weapons inspectors to determine whether the NWS are implementing their disarmament obligations as affirmed by the ICJ.

These inspectors have experienced similar difficulties as those faced by the UN Special Commission on Iraq (UNSCOM) inspectors, such as obstruction, denial of access, and refusal by the authorities to release adequate information. The citizen weapons inspectors face an additional hurdle: the NWS’ refusal to eliminate their arsenals anytime in the near future as required. Some citizen weapons inspectors have been arrested, but they are usually discharged in order to prevent the generation of negative publicity.[25]

Some NGOs, in particular the “Ploughshares” activists,[26] enter nuclear weapons facilities and conduct a “disarmament action,” once they have confirmed there are nuclear weapons systems on site and that the government is not implementing its disarmament obligations. This does not aim to go as far as the UNSCOM inspectors, who physically destroyed the WMD they found in Iraq. Ploughshares actions are more symbolic, undertaken to draw attention to the illegality of the weapons systems and to generate political momentum for nuclear disarmament. However, some nuclear equipment or support equipment is usually damaged and the activists arrested.

The courts have taken a range of approaches to these cases, with some defendants’ cases being dismissed on technicalities, some being convicted, and some acquitted.[27] An example of an acquittal is the Trident Ploughshares case in Scotland, where the judge concluded that “the threat or use of Trident … is an infringement of international and customary law. If Trident is illegal … [the activists] had the obligation in terms of international law to do whatever little they could to stop the deployment and use of nuclear weapons.”[28]

The goal [of nuclear disarmament] is no longer utopian and it is the duty of all to seek to attain it more actively than ever.

In 1997, a consortium of lawyers, scientists, and disarmament experts, convened by the Lawyers’ Committee on Nuclear Policy, released a Model Nuclear Weapons Convention (Model Convention). This Model Convention sets forth the legal, technical, and political issues that should be considered in order to obtain an actual nuclear weapons convention.[30] It also outlines the general obligations of states and individuals under a nuclear weapons abolition regime, including a phased program for dismantling and destroying existing nuclear stockpiles and control mechanisms for nuclear facilities and materials. There have also been administrative proposals such as elements of a verification regime, protection measures for whistleblowers, dispute resolution procedures, enforcement procedures, measures for dealing with delivery vehicles, measures for handling dual use materials, national implementation measures, an agency for overseeing the convention, entry into force options, relationship to other nuclear related agreements and regimes, and a protocol concerning nuclear energy.

The Model Convention was circulated by the United Nations as “an effective and helpful instrument in the deliberative process for the implementation of General Assembly Resolution 51/45 M (on follow-up to the 1996 ICJ Advisory Opinion).”[31] Since then, the Model Convention has stimulated considerable discussion on the feasibility and practicalities of nuclear abolition by academics, scientists, government officials (including from the NWS), and civil society representatives.[32] The Model Convention encompasses successful elements from other legal regimes, such as the Chemical Weapons Convention, ICC, IAEA Safeguards, and Intermediate Nuclear Forces Treaty, and it entertains a number of other groundbreaking solutions to problems that have thwarted other nuclear disarmament negotiations.

A key aim of the Model Convention is to demonstrate that nuclear disarmament is indeed no longer utopian and to move officials and leaders of the NWS to consider not whether nuclear weapons should be abolished, but the practicalities of how such a task could be accomplished. It outlines legal approaches and mechanisms that could be used to address the concerns and situations that prompt the NWS to maintain their nuclear weapons and doctrines. These concerns typically include verification, enforcement, breakout, nuclear terrorism, safeguarding nuclear materials, and nuclear research.

The Mayors for Peace, an international campaign launched by the mayors of Hiroshima and Nagasaki and comprising 554 cities in 107 countries and regions, has launched an emergency campaign calling on countries to develop a road-plan for nuclear disarmament.

From 2001 – 2002 a United Nations group of governmental experts studied disarmament and non-proliferation education and then submitted a report to the United Nations General Assembly. The report was received unanimously by the UN General Assembly in 2002.

n Municipal leaders, working with citizen groups, are encouraged to establish peace cities, as part of the UNESCO Cities for Peace network, through, for example, the creation of peace museums, peace parks, websites, and production of booklets on peacemakers and peacemaking.

n Governments are encouraged to include parliamentarians and/or non-governmental advisors in delegations to United Nations disarmament-related meetings

n Governments are encouraged to report to the United Nations on actions taken to implement the recommendations

An international association of lawyers and lawyers’ organizations working for the elimination of nuclear arms, the strengthening of international law and the development of effective mechanisms for the peaceful settlement of international disputes

The parliaments of the world are the bridges between government and civil society. Through their deliberations, they help to shape policy, and through their investigative and oversight powers they build public accountability. They help to give disarmament not only vision, but also some backbone, muscle, and teeth.

As such, the Parliamentary Network for Nuclear Disarmament has recently been established to provide an international forum for parliamentarians nationally and internationally to share resources and information, develop cooperative strategies and engage in nuclear disarmament issues, initiatives and arenas.

I believe that we already have the basics of a world order based on the rule of law as opposed to the rule of power. However, world powers continue to resort to the use of force. Thus an increased use of existing legal methods and mechanisms and the strengthening of these mechanisms is important in order to proved the basis for the abolition of war. A necessary pre-requisite for this is education to ensure that global leaders and civil society know about and advocate the use of non-violent legal methods to solve conflicts and address aggression. When that occurs we will witness children in schools no longer asking ‘why is there war?’ but rather asking ‘what was war?’

[1] Robert S. Norris & William M. Arkin, NRDC Nuclear Notebook: Global Nuclear Stockpiles, 1945–2000, Bull. of Atom. Scientists, Mar./Apr. 2000, at 79, available at http://www.thebulletin.org/issues/nU.K.enotes/ma00nU.K.enote.html.

[2] Rosalie Bertell, No Immediate Danger: Prognosis for a Radioactive Earth, Women’s Press, London 1985

[3] Rosalie Bertell, 1985 p.1

[4] Pacific Women Speak Out, Raven Press Christchurch New Zealand.

[5] See Nuclear Weapons vs Schools for Children, C. Rammanohar Reddy, Prisoners of the Nuclear Dream

New Delhi 2003

[6] Lewis Carroll, Alice’s Adventures in Wonderland: and, Through the Looking-Glass and What Alice Found There 74 (Oxford University Press 1971).

npr.htm.

[8] Id. See also John A. Gordon, National Security administration, U.S. Dep’t of Energy (2002) (before the Committee on Armed Services, U.S. Senate), http://downwinders.org/dod-npr.htm#dod

[9] See Preparatory Commission for the Comprehensive Test Ban Treaty Organisation, http://www.ctbo.org

[10] U.S. Dep’t of Defense, supra note 7.

[11] Bush Tells Congress of Decision to Withdraw From ABM Treaty, AFP, Dec. 31, 2001, at http://www.rense.com/generall8/abm.htm.

[12] U.S. Dep’t of Defense, supra note 7. See also John A. Gordon, supra note 8.

[13] Program of Action agreed at the 2000 NPT review Conference: The Conference agrees on the following practical steps…10. A diminishing role for nuclear weapons in security policies to minimize the risk that these weapons will ever be used and to facilitate the process of their total elimination. Nuclear Non-Proliferation Treaty Review Conference, Programme of Action on Nuclear Disarmament, available at http://disarm.igc.org/parag15.html. See also Nuclear Non-Proliferation Treaty Conference, 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons Final Document, available at http://disarmament.un.org:8080/wmd/npt/2000FD.pdf.

[14] U.S. Dep’t of Defense, supra note 38.

[15] International Appeal by Lawyers Against Nuclear Arms, International Appeal by Lawyers and Jurists Against “Preventive” Use of Force, available at http://www.pnnd.org/lawyers_appeal.htm.

[16] International Appeal by Lawyers Against Nuclear Arms, International Appeal by Lawyers and Jurists Against “Preventive” Use of Force, available at http://www.pnnd.org/lawyers_appeal.htm. [36]

[17] See Aotearoa/New Zealand at the World Court, Kate Dewes and Rob Green, Raven Press, Christchurch, New Zealand.

[18] Legality of the Threat of Use of Nuclear, International Court of Justice, 1996 ICJ 95, (July 8), (Opinion of President Mohammed Bedjaoui), available at http://www.icj-cij.org/icjwww/idocket/ianw/ianwjudgment_advisory%20opinion_19960708/ianw_ijudgment_advisory%20opinion_19960708.htm English translation available by Ann Fagan Ginger, Nuclear Weapons are Illegal 79-88 (Apex Press 1998)

[19] 1996 I.C.J. 226 ¶ 94

[20] Nuclear weapons have been developed as part of deterrence policy in order to threaten mass destruction. The

current nuclear weapons thus have incredibly large yields – most many times more explosive than the bombs which destroyed Hiroshima and Nagasaki – and thus are of a nature which could not be used without violating the humanitarian laws of warfare. The ICJ recognized this when it addressed the arguments of the NWS that they could direct small nuclear weapons, including new low yield weapons, against military targets which would not therefore be indiscriminate and could be legal. The Court said that it “does not consider that it has a sufficient basis for a determination on the validity of this view.” 1996 ICJ Advisory Opinion, para 94[65] 1996 I.C.J. 226

[21] Oral Statement of Solomon Islands to the International Court of Justice, Public sitting held on Tuesday 14 November 1995, at 10:35 a.m., at the Peace Palace, President Bedjaoui presiding in the case in Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request for Advisory Opinion Submitted by the World Health Organization) and in Legality of the Threat or Use of Nuclear Weapons(Request for Advisory Opinion Submitted by the General Assembly of the United Nations). VERBATIM RECORD CR 95/32, p54.

http://www.icj-cij.org/icjwww/icases/iunan/iunan_cr/iUNAN_iCR9532_19951114.PDF

[22] Legality of the Use by a State of Nuclear Weapons, 1995 ICJ 27, 43 (November 9) (Oral Testimony of H.E. Razali Ismail, Permanent Representative of Malaysia to the United Nations), available at http://www.icj-cij.org/icjwww/icases/iunan/iunan_cr/iUNAN_iCR9527_19951107.PDF

[23] G.A. Res. 53/77W, can be found in Merav Datan and Alyn Ware, Security and Survival: The Case for a Nuclear Weapons Convention (IPPNW 1999), available at http://www.ippnw.org/IPPNWBooks.html#NWC htm (last visited Oct. 22, 2003). This still works.

[24] For further information see Datan & Ware, Security and Survival: The Case for a Nuclear Weapons Convention, IPPNW, Cambridge MA, 1999.

[25] See Saul Mendlovitz & John Burroughs, Survey and Preliminary Analysis of Domestic Cases in which the Defendants Raised the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, Law Committee on Nuclear Policy, World Court Project (July 2001), at http://lcnp.org/wcourt/surveyanalysis.htm (last visited Oct. 22, 2003). See also Citizens Weapons Inspections, at http://www.lcnp.org/pubs/bombs%20away!fall99/article13.htm. See Reports of Citizens Weapons Inspections, at http://www.motherearth.org/ nU.K.e/inspection.php (last visited Dec. 4, 2003).

[26] The name originates in the Bible, in the book of Isaiah: “There will come a time when nation shall not war against nation anymore—and they shall beat their swords into ploughshares and their sythes into pruning hooks.” Isaiah 2:4.

[27] See Mendlovitz & Burroughs, supra note 106

[28] 2001 J.C. 143 (High Ct. of Justiciary) (ruling by Sheriff Gimblett, Greenock Ct., Oct. 20, 1999). For full decision see http://www.tridentploughshares.org/greenock/crruling2.php. See also Gerard Seenan Women Cleared as Court Rules Nuclear Arms Illegal, Guardian (London), Oct. 22, 1999, available at http://www.lcnp.org/wcourt/Guardian.htm.

[29] 1996 I.C.J. 226, Declaration of President Mohammed Badjaoui, President of the International Court of Justice, appended to the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons.

[30] See Datan & Ware, supra note 14.

[31] U.N. GAOR 52d Sess., U.N. Doc. A/C.1/52/7 (1997).

[32] See 1 Nuclear Weapons Convention Monitor: Updating the Debate on the Prohibition and Elimination of Nuclear Weapons (IPPNW Apr. 2000), available at www.ippnw.org/

NWMonitor1-1.pdf (last visited Nov. 23, 2003).

Ø UN Security Council Resolution 1441 required Iraq to make a complete declaration of all aspects of its programs to develop chemical, biological, and nuclear weapons, ballistic missiles, and other delivery systems. UNMOVIC then compared this declaration with information it had gathered through inspections and other sources to develop an account of these programs.

Ø The IAEA’s Model Additional Safeguards Protocol (1997) requires states parties to declare all nuclear facilities and nuclear materials being used or produced in nuclear facilities.

Ø Monitoring technologies currently being employed at nuclear facilities, remote stations, or by satellites, include: photography, seismic measuring, radio-isotope sampling, data analysis, and portal controls. An example of remote monitoring being used is that of satellite photography, being released by a non-governmental organization in 1996, which correctly indicated that China was about to conduct an underground nuclear test.

Ø States parties to the Chemical Weapons Convention and the Non-Proliferation Treaty (except the NWS) are subject to routine and challenge inspections by the OPCW and the IAEA. Iraq was subject to more intrusive inspections authorized by the Security Council. The United States and Russia inspect some of each other’s missiles under the Intermediate Nuclear Forces Treaty and the Strategic Arms Limitation Treaty.

Ø Preventive controls are technical barriers to the development of WMD or their use. This could include configuration of nuclear power plants to ensure that weapons grade fissile material could not be produced and constructing access controls on stored nuclear weapons and fissile material.

Ø With the break-up of the Soviet Union, three new states apart from Russia, inherited nuclear weapons: Belarus, Kazakhstan, and Ukraine. The U.S. and Russia used diplomacy to convince these states to giveup their nuclear weapons and join the Non-Proliferation Treaty as non-NWS.

Ø In the 1970s, Brazil and Argentina were developing a nuclear weapons program, partly as a result of tensions between the two countries. Negotiations between them in the early 1980s on confidence building and nuclear non-proliferation were successful, and in 1991, the two countries concluded an agreement to forego any nuclear weapons option and inspect each others’ nuclear power facilities.

Ø Rainbow Warrior Affair. In 1985 the DGSE (French Secret Service) committed a terrorist act in New Zealand by bombing the Greenpeace boat Rainbow Warrior, which was en route to Moruroa to protest against French nuclear testing. New Zealand convicted and sentenced two DGSE agents. France responded by placing trade barriers on New Zealand products within the European Community. Mediation by the UN Secretary-General brought about a mutually acceptable solution. New Zealand released the agents to France and in exchange, France removed trade barriers and provided compensation to Greenpeace and New Zealand. See David Lange, Nuclear Free the New Zealand Way 120-134 (Penguin Books 1990).

Ø North Korea 1994. In 1993, North Korea suspended inspections of its nuclear facilities by the IAEA and announced its intention to withdraw from the Non-Proliferation Treaty (Non-Proliferation Treaty). The United States considered using force against North Korea to prevent it from developing nuclear weapons. Former U.S. President Carter mediated between the two countries with the result that they adopted an Agreed Framework, whereby North Korea suspended its withdrawal from the Non-Proliferation Treaty and allowed IAEA inspections to resume in return for energy assistance from the United States. See Jozef Goldblat, Arms Control: The New Guide to Negotiations and Agreements 339 (Sage Publications 2002.)

Ø Nuclear Tests Case. In 1973, Australia and New Zealand lodged a case against France in the ICJ on the legality of French atmospheric testing of nuclear weapons in the Pacific. In 1974, as a result of political and legal pressure, France announced it would cease atmospheric testing and only test underground. In 1995, New Zealand called on the ICJ to reconsider the case in order to include a legal ruling on underground testing. France discontinued underground testing the following year and joined the Comprehensive Test Ban Treaty. See Kate Dewes & Robert Green, Aotearoa/New Zealand at the World Court (The Raven Press 1999).

Ø Cooperative Threat Reduction. This program, initiated by U.S. Senators Nunn and Lugar, provides technical and financial aid to Russia in order to dismantle and destroy nuclear missiles and safely store fissile material.

Ø The UN Special Commission on Iraq (UNSCOM) was given a mandate by the UN Security Council to find and destroy Iraq’s WMD (WMD), a task which they conducted from 1991 until 1998. There is no reliable evidence that any WMD remained after UNSCOM left Iraq.

Ø The UN Security Council imposed economic sanctions on Iraq in 1990 and extended these until it was assured that Iraq had no remaining WMD in 2003.

Ø Information gathering by States on compliance by other States. Can include satellite surveillance, open source information gathering, and mutually agreed inspections and data exchanges.

Ø The Non-Proliferation Treaty requires all non-NWS parties to conclude safeguards agreements with the IAEA to detect and prevent diversion of fissile materials from nuclear fuel cycles for weapons purposes.

Ø The Chemical Weapons Convention (CWC) includes comprehensive verification and compliance mechanisms including: onsite and remote monitoring, challenge and routine inspections, establishment of a technical secretariat for data gathering and analysis, incentives for compliance, and graduated responses to non-compliance including sanctions and recourse to the ICJ and the Security Council for further action. These are all administered by the OPCW.

Ø The CTBTO establishes an international monitoring system to detect nuclear tests including seismic, audio-acoustic, and radio-isotope monitoring stations. The Comprehensive Test Ban Treaty also includes procedures for dealing with non-compliance similar to the CWC.

Ø The U.S. and Russia have a range of verification measures included in the Intermediate Nuclear Forces Treaty and the Strategic Arms Limitation Treaty. These include portal monitoring, data sharing, inspections, physical sampling, tracking of vehicles carrying nuclear weapons and delivery vehicles, and agreements on display of missiles for satellite monitoring. The United States and Russia have concluded additional confidence building and verification mechanisms including information sharing through Nuclear Risk Reduction Centers.