Broken Arrow: Movement toward Complete Prohibition of Nuclear Weapons through International Environmental Law
Marnie Wantuck
January 10, 2005
Broken Arrow: Movement toward Complete Prohibition of Nuclear Weapons through International Environmental Law
Marnie Wantuck
1945, Nagasaki, Japan; August 9 at 8:15 a.m.:
It was a blinding flash, everything around me turned sheer-white. The ring of light, like a halo around the moon shone and spread like a rainbow. The next moment, a big column of flame reached up to the sky and detonated like a volcanic explosion in the air. It was a sight no words can describe. Large amounts of earth, water and other debris in the area surrounding the explosion would be sucked up to form a ‘mushroom cloud' of radioactive debris. When this material returned to earth, …the effects could … make the city uninhabitable for many weeks or even years.[1]
Introduction
History has proven that when a state is at war, the environment becomes expendable. In modern warfare, the environment is not simply a casualty of war, but rather a target, its destruction used as a military tactic. [2] During armed conflicts, the media generally reports civilian and military casualties, but rarely reports the devastating environmental "casualties."[3] For example, although the Persian Gulf War reported that Sadaam Hussein ignited oil wells to prevent the United States from aiding Kuwait, the news failed to explain the extent of the damage and report that the oil spill was bigger than the Exxon Valdez oil spill.[4] The events of September 11, 2001 brought the harmful environmental impacts of warfare to light in the United States, and the exposure of potential future harm has lead to a call for a solution.
Biological, chemical, and nuclear weapons are classified as indiscriminate weapons of mass destruction.[5] International agreements aimed at protecting the environment from these weapons are unsuccessful because their enforcement power extends only to those states which agree to sign. However, it is likely that extrapolating the fundamental principles and language of these agreements and creating a newly amended Article (Article) to the U.N. Charter (Charter) would result in an enforceable solution. Because nuclear weapons are the most technologically advanced threat to our planet with the capability to generate severe, long-term, and devastating effects on the environment and the human race,[6] the solution will focus on prohibiting nuclear weapons.
The primary focus of this note is the prohibition of nuclear weapons through international environmental law. Section one of this note discusses the different types of weapons of mass destruction (WMD), their environmental effects, international agreements that regulate their use or threat, and why these agreements are insufficient in modern times. Section two analyzes international environmental law as it relates specifically to nuclear weapons. Finally, section three incorporates principles of international law into a proposed amendment to the United Nations Charter which would prohibit the use or threat of nuclear weapons.
I. Weapons of Mass Destruction
Biological, chemical, and nuclear weapons are classified as weapons of mass destruction due to their inherent nature to cause disproportionate, long-term, and indiscriminate effects on the environment. Environmental degradation is a consequence of the indiscriminate nature of these weapons that will ultimately pose a threat to the survival of humanity.[7] "The Air Force Manual on International Law states that indiscriminate weapons include those which, while subject to being directed at military objectives, ‘may have otherwise uncontrollable effects so as to cause disproportionate … injuries or damage.'"[8] At the present time, nuclear weapons are the most environmentally destructive method of warfare and threat to society, although biological and chemical also pose a threat.[9] Conversely, an analysis into the international agreements that govern biological, chemical and nuclear weapons will be necessary in understanding why they are sufficient.
A. Biological Weapons
Various international agreements prohibit the use or possession of biological weapons because they "are inherently indiscriminate and uncontrollable."[10] The use of biological weapons is defined as the "employment in war of microorganisms to injure or destroy people, animals, or crops; also called germ or bacterial warfare."[11] These microorganisms may be delivered through animals, household appliances, missiles, or other devices.[12]
International agreements, such as Article IX of the 1972 Geneva Protocol, regulate the use and production of biological weapons.[13] The Geneva Protocol was developed from the 1925 Geneva Convention, which established "[a] ban on poisonous weapons . . . observed during World War II. Prohibitions were extended to biological weapons in the 1972 Convention on the Prohibition of the Development, Production, and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction,"[14] commonly referred to as the 1972 Biological Weapons Convention (BWC).
The BWC states that each party to the treaty is to refrain from using, stockpiling, or producing biological weapons in peacetime as well as during armed conflict.[15] The BWC specifically targets the possession of biological weapons, [16] but prohibits only those biological agents enumerated within the BWC.[17] Although this codification may appear to be a step in the right direction, it in fact hinders the ability for interpretation of evolving biological weapons because it "fail[s] to list all possible agents that … may be discovered in the future."[18] Despite the limitations of the interpretation, the BWC sets an example allowing it to be used as a vehicle for achieving a total prohibition on the use and stockpiling of biological weapons.
B. Chemical Weapons
Chemical weapons are categorized as weapons of mass destruction[19] because they carry the potential to release poisonous gases and other chemical substances into the air. [20] For example, during World War II, the Germans invented poisonous nerve gas to use against the Jewish population imprisoned in the concentrations camps.[21] Another example is the use of Agent Orange by the United States during the Vietnam War. The defoliant was used to destroy crops and vegetation, with the goal of reducing the enemy's ability to use the forest for camouflage.[22]
International agreements, such as the 1992 addition to the 1925 Geneva Protocol, or the Chemical Weapons Convention (CWC) regulate the production and stockpiling of chemical weapons.[23] The CWC states that a party to the Convention agrees never to develop, produce, stockpile, or use chemical weapons at any time or in any manner, especially during armed conflict.[24] The CWC was adopted in 1992, 12 years after the Biological Weapons Convention[25] and was "the first disarmament agreement negotiated within a multilateral framework that provides for the elimination of an entire category of weapons. In comparison to the BWC, the CWC includes an enforcement mechanism which helps to prevent violations of the convention through routine on-site verifications and international inspections."[26] Additionally, the drafters of the CWC purposely included a supplemental category, unlike that of the BWC, allowing a flexible interpretation of certain chemicals.[27] This supplemental category, "called ‘unscheduled discrete organic chemicals' includes most organic carbon compounds with a special focus on those containing phosphorus, sulfur, or fluoride."[28] Ultimately, this supplemental category gives inspectors a wide range of authority in interpreting future chemicals and inspecting different chemical plants, to verify that states are abiding by their agreement, and not producing chemical weapons. [29]
Although biological and chemical weapons pose a threat to the environment, current international agreements such as the CWC and the BWC successfully regulate the status of such weapons. These conventions provide on site verification and international inspections, and an enumeration of specific devices under the CWC and the BWC that are strictly prohibited during wartime. However, providing on site verification and international inspections to regulate the status of such weapon remains ineffective in prohibiting their use or threat when a state is not at war.
C. Nuclear Weapons
Nuclear weapons are classified as indiscriminate weapons of mass destruction because of their irreversible long-term effects on the environment.[30] Nuclear weapons are "powered by atomic, rather than chemical processes … [which] produce large explosions and hazardous radioactive byproducts by means of either nuclear fission or nuclear fusion."[31] These explosions and radioactive byproducts have irreversible effects on not only humanity but the environment as well. "Such effects include long-term somatic and genetic damage from radiation, possible changes in the physical environment, and possible changes in the ecological system of which humans are a part of."[32] It is no mystery that nuclear weapons carry the potential to indiscriminately take human life. However, humanity has the intrinsic ability to repopulate itself, while the environment provides life and sustenance to human kind. Thus, the real question one must ask, is when humanity naturally repopulates itself, can humanity survive without the environment to sustain life? Environmental degradation is the ultimate result of nuclear weapons and the use or threat of such weapons should be prohibited.
Nuclear weapons present an international environmental threat.[33] As provided by the International Court of Justice, with regard to the legality of the use or threat of nuclear weapons, the Court stated that 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."[34] A single pinpointed detonation could not be confined within national boundaries[35] and could result in over a million casualties from the initial blast and resulting heat.[36] Survivors of the initial blast would likely die of cancer within the following forty years.[37] In addition to civilian casualties, there would also be significant environmental casualties, such as the depletion of the ozone layer.[38] Although the effects on the ozone layer cannot be calculated with certainty, it can be estimated that "the reduction in the ozone layer could be 50%-70% over the whole northern hemisphere … ."[39] In three billion years of evolution, the earth has not been exposed to radiation of that percentage.[40] Reduction in the ozone layer occurs when there is an "injection of a substantial quantity of nitrogen oxide [which enters] the stratosphere … ."[41] This quantity of nitrogen oxide "might produce changes in the Earth's climate and would allow more ultraviolet radiation from the Sun through the atmosphere to the surface of the Earth… ."[42] Once the ozone layer has been reduced, if not eliminated completely, drastic changes in temperature may expedite the process of nuclear winter.[43]
Survivors of the initial blast and heat would be exposed to the resulting effects of nuclear winter. "Nuclear winter would be an ecological disaster of the same … magnitude as the [one that occurred] … 65 million years ago at the cretaceous extinctions."[44] The cycle of nuclear winter results from the initial blast impact and scourging fires thereafter, which would emit huge amounts of dust and smoke into the air.[45] "The dust and smoke would circle the northern hemisphere quickly"[46] and "[t]he temperature at the surface would be low [while] the temperature of the upper part of the troposphere would rise because the sunlight [would be] absorbed by the smoke." [47] This drastic temperature change "would bring absolute disaster for all crops and global starvation."[48] According to Justice Weeramantry's dissenting opinion for the International Court of Justice:
There is now a consensus that the climatic effects of a nuclear winter and the resulting lack of food aggravated by the destroyed infrastructure could have a greater overall impact on the global population than the immediate effects of the nuclear explosions. The evidence is growing that in a post-war nuclear world Homo Sapiens will not have an ecological niche to which he could flee. It is apparent that life everywhere on this planet would be threatened.[49]
Justice Weeramantry recognizes that a nuclear war would be detrimental to the existence of humanity through the destruction of the environment. In order to prevent the potential of such expansive harm, a newly amended Article needs to be implemented into the Charter prohibiting the use or threat of nuclear weapons against the environment, ultimately protecting humanity from extinction. A newly amended Article will take the threat and use of nuclear weapons out of the hands of those states that carry the inherent ability to destroy the environment and the life it sustains, thus eliminating the threat of environmental degradation.
Since the environmental effects of a nuclear war would have a profound impact on human existence, advocates propose that the solution lies within the application of human rights laws.[50] Humanitarian law seeks to protect the inherent right to life.[51] "If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat in such use would also be contrary to that law."[52] As a result, advocates argue that because nuclear weapons have an inability to target their enemies, its' indiscriminate character is a clear violation of human rights law. Advocating for human rights laws as an argument for prohibiting the use or threat of nuclear weapons lacks the capacity to truly protect against the threat. Furthermore, the argument is flawed in that the environment provides humanity with the essential means of sustaining life, and without such life, human rights would be of nominal value. The existence of humanity would remain unprotected. Therefore, a newly amended Article prohibiting the use or threat of nuclear weapons against the environment is the only solution to protect humanity.
During times of war, the environment is not considered an important factor in military planning and tactics. "Environmental security is beginning to, and should continue to be, a fundamental part of all national security decisions."[53] Currently, military planning includes a growing concern for the environment.[54] Nonetheless, simply advancing a concern does not prohibit the use or threat of nuclear weapons. The solution lies in creating a general principle for the prohibition of nuclear weapons that is binding on all states within the international community regardless of whether a state is in a time of war. Currently, international law attempts to regulate nuclear weapons but often lacks the ability to bind states who are not signatories to the agreement. Thus, many states have opted not to sign an agreement that would limit their ability to threaten or use nuclear weapons during wartime. Once again, the environment takes a backseat to military strategies and tactics.
II. Current Attempts to Prohibit Nuclear Weapons through International Law
International law is a body of principles and rules that carries the weight of legally binding responsibilities between sovereign nations.[55] There are currently three different sources of international law regulating the activities of the international community which are different from peremptory norms of international law, or jus cogens. The three sources of international law are; customary international laws, international agreements, and General Principles.[56] Customary international law requires a sense of legal obligation that evolves from a persistent practice or habit over time.[57] International agreements are binding obligations only on those who are signatories to the treaty through the norm of pacta sunt servanda, or the good faith principle to abide by one's word.[58] Although a fundamental source of regulating the activities of the international community, customary laws and international agreements cannot effectively prohibit the use or threat of nuclear weapons because there is no enforcement mechanism in place. One solution is the use of General Principles, which would prohibit the use or threat of nuclear weapons through the use of norms "common to the major legal systems" within the international community.[59] However, the most viable solution is through the use of peremptory norms of international law, commonly referred to as jus cogens.
A. Customary International Law
Implementing a customary international law prohibiting the use or threat of nuclear weapons would be futile because its sense of legal obligation must evolve over time through consistent practice or habit. The threat or use of nuclear weapons constitutes a threat to the environment and cannot be subject to an evolutionary period of obligation. More importantly, states that choose to object to its application are not bound by its laws and it would thus, defeat the purpose of enforceability on the international community. Moreover, the ambiguous language of a "consistent practice" has led to flexibility when interpreting whether a norm should be considered as customary law. "A practice can be general even if it is not universally followed; there is no precise formula to indicate how widespread a practice must be, but it should reflect wide acceptance among the states particularly involved in the relevant activity."[60] In order for a practice to be considered customary law, a significant number of states must follow it.[61] As a result, applying customary law to prohibit the use or threat of nuclear weapons would be difficult. [62]
B. International Agreements
International agreements only create binding obligations on those states that are parties to the treaty or that have expressed their consent to be bound by the treaty.[63] Therefore, they lack the enforcement power to bind nonparties to a treaty that have not consented nor signed once it is ratified. Nevertheless, international agreements provide a framework for prohibiting the use or threat of nuclear weapons.
The Vienna Convention on the Law of Treaties provides that "once a state has signed a treaty, it is obliged to refrain from all acts that would defeat the treaty's object and purpose, at least until that state has ratified the agreement or has indicated that it does not intend to become a party to the agreement."[64] For example, the 1925 Geneva Convention Protocol I, the 1972 Geneva Protocol for Biological Weapons (BWC), the 1993 Geneva Chemical Weapons Convention (CWC), and the Non-Proliferation Treaty (NPT), are binding only on those states that are signatories and ratified such agreements or before their ratification had made expressed intent to do so. "The BWC and CWC are part of the fabric of the broader social contract between nations, and individuals or organizations not operating within the norm can evade systems designed to bind those who are willing participants."[65]
The NPT provides a framework for the regulation of the use or threat of nuclear weapons. The NPT was ratified to "prevent the spread of nuclear weapons and weapons technology, to promote cooperation in the peaceful uses of clean energy and to further the goal of achieving nuclear disarmament … ."[66] Article III (1) of the NPT provides a mission statement for each signatory to the treaty:
Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency's safeguard system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from the peaceful uses to nuclear weapons or other nuclear explosive devices.[67]
Article III (1) recognizes the importance of verifying the status of nuclear energy through the authority of the International Atomic Energy Agency (Agency).
Although a viable attempt to regulate the use or threat of nuclear weapons, the NPT could not successfully be applied to the total prohibition of nuclear weapons for the following reasons. First, the NPT is an international agreement binding only on the member states that have accepted and ratified its provisions. Second, the NPT focuses only on the possession of nuclear weapons, rather than the use or threat of such weapons. Justice Schwebel further comments on this point in his dissenting opinion for the International Court of Justice. He states "[the NPT] establishes a fundamental distinction between States possessing, and States not possessing, nuclear weapons, and a balance of responsibilities between them."[68] The NPT suggests that states that possess nuclear weapons fall under its provisions, but states not possessing nuclear weapons that have the potential to do so, fall outside the provisions of the treaty and would not be bound. As a result, the NPT does not effectively prohibit the use or threat of nuclear weapons because it lacks the power to bind the international community regardless of whether a state possesses nuclear weapons or has the potential to do so. Balancing responsibility between those who possess nuclear weapons and those who have a potential to do so, will involve implementing a newly amended Article to the Charter that prohibits the use or threat of nuclear weapons applicable and binding on the international community, regardless of possession.
C. General Principles of Law
There are five categories of general principles within international law: (1) municipal law; (2) principles derived from the international community; (3) principles that are intrinsic and basic to all legal systems; (4) principles valid to all societies through hierarchy and co-ordination; and (5) the very nature of man as a rational being.[69] Of the five categories, "principles valid to all societies through co-ordination" is the most compelling argument to prohibit the use or threat of nuclear weapons because it has a universal application that is inherent to all mankind. However, it requires coordination rather than a strict adherence to a peremptory norm.
D. Jus Cogens
Peremptory norms of international law, or jus cogens are considered an "elite subset of international law."[70] Jus cogens, or compelling laws, are "duties which every state owes to the international community[71] and are the most plausible argument for prohibiting the use or threat of nuclear weapons.
Jus cogens has "found expression in numerous international and constitutional law instruments as well as in popular movements throughout the world directed to humanitarian ends."[72] Unlike customary law, jus cogens is "accepted and recognized by the international community of States as a whole . . .[and] can be modified only by a subsequent norm of general international law having the same character."[73] Jus cogens would effectively prohibit the use or threat of nuclear weapons because it has the potential to bind persistent objectors and require international cooperation.[74] Therefore, the application of jus cogens is the most viable means of protecting the environment from nuclear warfare and protecting the existence of humanity.
Despite its binding nature, jus cogens has the capability to evolve and adopt flexible interpretations for the purpose of recognizing current threats and protecting humankind. Although customary international laws also evolve over time, they may still be objected to by any state who does not agree with the practice. Conversely, jus cogens is universally recognized without the necessity of consistent state practice and is binding on all states, including objectors. Here the threat lies in the use or threat of nuclear weapons against the environment that will have a profound effect on humankind. For example, "an influential modern definition of jus cogens was given by the Mexican delegate to the United Nations Conference on the Law of Treaties: The rules of jus cogens [are] those rules which derive from principles that the legal conscience of mankind deem[s] absolutely essential to coexistence in the international community."[75] The application of a modern interpretation of jus cogens to the Article allows the international community the flexibility needed to protect the environment from nuclear weapons. Only through the preservation of the environment can human life and therefore human rights be effectively protected from the threat of nuclear weapons.
III. Solution to the Disarmament of Nuclear Weapons through the Application of Jus Cogens
It has been widely recognized by judges and scholars that "the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment."[76] Even though jus cogens does not require a signatory to a treaty or consent of the individual state to bind the international community[77] such a peremtory norm should be included as an Article of the U.N. Charter in order to clearly and immediately bind the international community.[78] As previously mentioned, the focal point should consist of general principles that are not only valid to all societies, but are compelling laws which every state must strictly adhere to, specifically global movements such as the threat and use of nuclear weapons.[79]
Despite agreement over the dangers of the threat or use of nuclear weapons, there is no current provision of the United Nations Charter that prohibits the use or threat of nuclear weapons. The International Court of Justice in their opinion on the Legality of Nuclear Weapons recognizes that there appears to be ambiguity between Article 2(4) and Article 51 of the Charter. As it stands now, by interpreting Article 2(4) and Article 51, the majority opinion of the International Court of Justice holds that the threat or use of nuclear weapons might in some circumstances be legal. [80] In support of that position, those supporting the legality of nuclear weapons argue that no single clause in any treaty or Article specifies in any terms that nuclear weapons are prohibited. [81] However, the ambiguous language of Article 2(4) leaves open for debate whether the threat or use of nuclear weapons is prohibited. Article 2(4) of the Charter specifically states that "[a]ll members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations."[82] As a result, Article 2(4) may be interpreted by some states as a prohibition of the use or threat of nuclear weapons against the environment for the protection of humankind. Conversely, Article 51 may be interpreted to permit the use or threat of nuclear weapons, leaving states with an ambiguous interpretation of whether the use or threat of nuclear weapons is prohibited or permitted.
Moreover, Article 51 provides that a state shall have the right of individual or collective self-defense in an armed attack against a member of the United Nations.[83] The majority for the International Court of Justice held, when applying Article 51 that "the Court cannot lose sight of the fundamental right of every State to survival, and thus its right to resort to self-defence, in accordance with … the Charter, when its survival is at stake."[84] As a result, the Court reasons that since the ambiguous language of the Charter and international agreements do not specifically prohibit the use or threat of nuclear weapons, such use should be permitted.[85]
The majority decision of the International Court of Justice received adverse commentary from certain members of the Court. For example, Justice Schwebel, in his dissent to the majority decision asserts that:
Large-scale ‘exchanges' of such nuclear weaponry could destroy not only cities but countries, and render continents, perhaps the whole of the earth, uninhabitable, if not at once then through longer range effects of nuclear fallout. It cannot be accepted that the use of nuclear weapons… hav[ing] profoundly pernicious effects in space and time, and render uninhabitable much or all of the earth, could be lawful.[86]
Justice Weeramantry supported Schwebel's concerns in his dissenting opinion to the majority by emphasizing that "the main purpose of [his] Opinion is to show that, not generally, but always, the threat or use of nuclear weapons would be contrary to the rules of international law"[87] given their "potential to destroy the entire eco-system … ." [88] Justice Weeramantry further provides that:
[t]his Court would fail in its trust if it did not take serious note of the ways in which the distant future is protected by present law. The ideals of the United Nations Charter do not limit themselves to the present, for they look forward to the promotion of social progress and better standards of life, and they fix their vision, not only on the present, but also on ‘succeeding generations.' This one factor of impairment of the environment over such a seemingly infinite time span would by itself be sufficient to call into operation the protective principles of international law which the Court, as the pre-eminent authority empowered to state them, must necessarily apply. [89]
Weeramantry's dissenting opinion emphasizes that the Court must consider and protect the future generations through a global movement. As a result, it is the duty of the Court to apply the principle of jus cogens in prohibiting the use or threat of nuclear weapons against the environment, ultimately protecting future generations. The protection of the environment is valid and necessary to all states, societies, and humankind, for which without the environment, human kind would cease to exist. Therefore, the application of jus cogens to prohibit the threat or use of nuclear weapons against the environment is necessary, and its implementation would create a binding obligation on the international community regardless of whether states object to its application.
A. A Solution through Implementation of International Environmental Law
At the Parliamentary Network for Nuclear Disarmament (PNND) on November 8, 2003, the UN recognized the need to implement an international norm that would address the use or threat of nuclear weapons.[90] The PNND noted that "all ingredients needed to promote nuclear disarmament can be found in the resolutions passed by the First Committee [but] the real issue concerns their implementation."[91] The PNND's concern is precisely the problem that must be resolved. The solution lies in the implementation of international law that will protect the environment. "‘[E]very human being has the inherent right to life. This right shall be protected by law. No one shall arbitrarily be deprived of his life.' Needless to say, none of these rights can be guaranteed unless the environment upon which all life depends is protected."[92]
Although the Charter has characteristics of an international agreement, virtually all states abide by the Articles enumerated within.[93] States that are not members of the UN have nonetheless accepted and abided by the Charter creating a "rule[] of international law binding on all states."[94] As a result, the universal acceptance of the Charter by the international community may be used as a foundation for implementing law that would prohibit the use or threat of nuclear weapons.
It is vital to the survival of humanity to protect the environment through an incorporation of the language of Article 2 (4) of the Charter and the Additional Protocol I of the 1977 Geneva Convention. Once the language of those sources of law is synthesized into an amended Article of the Charter, the characteristic of jus cogens should apply, thus creating a universally binding affect on the international community, regardless of those states who object to its application. The amended Article to the Charter arises from the recognition that the protection of the environment could be protected by the same principles of jus cogens that protect human rights.[95] "A right to a clean environment may also be part of the already existing set of inalienable human rights enunciated by the basic human rights document."[96]
The Additional Protocol I of the 1977 Geneva Convention implies that human rights are linked to the environment.[97] The language of Additional Protocol I prohibits the use of any means or methods of warfare that could cause or may be expected to cause widespread, long-term, and severe damage to the environment.[98] Incorporating the language of Additional Protocol I with Article 2(4) of the Charter, would create a law prohibiting any state from threatening or using force against the environment of another state. Combining the language would further provide that a state will not threaten the political independence of another state if that threat would result in long-term, widespread, and severe damage to their environment. The new language would be codified into the Charter as an amendment to Article 2(4). The amendment would retain the characteristic of jus cogens, creating a universally binding application. As a result the environment would be protected and recognized as an inherent right that would be universally accepted and enforced with the same credence as the protection of human rights.
B. Problems
Creation of an amended Article leaves two problems to resolve; (1) enforcement power; and (2) the right to self-defense in Article 51 of the Charter. The solution to these concerns lies within the binding characteristics of the Charter itself, the application of jus cogens, the incorporation of the Statute of the International Atomic Energy Agency verification provision codified in the NPT, and the moral obligation of good faith.
1. Enforcement Power
For enforcement power, "[n]o effective institutional machinery has yet been developed for the application and enforcement of international law."[99] First, the U.N. Charter carries with it the universal acceptance of the international community. The preamble of the Charter emphasizes that the Articles codified in the Charter are principles valid to all societies..[100] The Charter's preamble also "refers to the determination of those peoples to save succeeding generations from the scourge of war."[101] This language indicates the Charter can be used as groundwork on which to enforce jus cogens dealing with nuclear war. Second, the characteristics of jus cogens indirectly applied to the amended Article are those principles that are valid to all societies with the potential to bind the international community. As a result, the amended Article should be followed with the same credence as other Articles to the Charter. Third, incorporating the verification provision from the NPT under the authority of the International Atomic Energy Agency ("Agency") will provide a codified enforcement power in the amended Article. The verification provision under the NPT in accordance with the Statute of the International Atomic Energy Agency (SIAEA) provides that the Agency conducts a "verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from the peaceful uses to nuclear weapons or other nuclear explosive devices."[102]
Applying the language within the SIAEA verification provision to the amended Article would only provide a mechanism for monitoring a state's nuclear energy. The SIAEA provision to the amended Article should contain additional language. The amended article should further state that the Agency[103] will be responsible to report findings of a violation to the Security Council under the authority of Chapter VII, Article 39 of the Charter. Chapter VII states the "Security Council shall determine the existence of any threat to the peace, breach of peace, or act of aggression and shall make recommendations, or decide what measures shall be taken… ."[104] In the event that a state has breached its obligations, it should be up to the Security Council to determine what action, if any, should be taken. Therefore, the amended Article will be closely monitored by the Agency and strictly adhered to by the international community under the authority of the Security Council.
Finally, although the Agency's safeguard system will monitor and verify the use or threat of nuclear weapons under the authority of the Security Council, it lacks the moral obligation of states to adhere to its provisions in good faith. As a result, the International Court of Justice suggests that the amended Article should be supplemented with additional provisions such as requirements for international cooperation. The Court emphasizes that the international community should implement "[o]ne of the basic principles governing the creation and performance of legal obligations, … the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when the co-operation in many fields is becoming increasingly essential." [105] The international community has a responsibility to abide by this international law in good faith, or pacta sunt servanda. Pacta sunt servanda is "derived from the specific character of the international community" and the overall understanding by the States to coexist.[106] Pacta sunt servanda is a principle of jus cogens, binding on all states. Moreover, the language of the NPT lays out the framework in implementing a good faith provision into the amended Article. Article VI of the NPT states "[e]ach of the parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of nuclear arms race at an early date and to nuclear disarmament … ."[107] Implementing the good faith language of Article VI from the NPT to the amended Article creates an additional enforcement power binding on the international community to prohibit the use or threat of nuclear weapons.
2. Right of a Sovereign Nation to Self Defense
The second problem to be addressed in the creation of an amended Article, is the inherent right of every sovereign state to self defense under Article 51 of the Charter. As stated previously, laws existing within the Charter, such as Article 51 are universally viewed as binding international law. The vague language and interpretation of Article 51 leads to a persistent battle in attempting to prohibit the use or threat of nuclear weapons. Article 51 permits every state to use force against another state as an inherent right to self defense in protecting their nationals from harm.
However, the ambiguous language of Article 51 would be addressed in the implementation of an amended Article to the Charter because it would specify that the use or threat of nuclear weapons is prohibited as a means of force against another state. Thus, since the amended Article would specify a prohibition on the use or threat of nuclear weapons, it would eliminate the possibility of a nuclear attack, diminishing the need to call upon Article 51. Every effort should be taken to avert the possibility of nuclear war. "Considering the devastation that would be visited upon all mankind …and the environment,"[108] a state should not be permitted to use or threaten to use nuclear weapons against another state as a means of force, claiming self defense as a justification.
V. Conclusion
History has proven that the environment has been an expendable casualty of war during armed conflict. Examples may be found within the devastating effects from the Persian Gulf War, the everlasting effects to the forests of Vietnam, and of course the rebuilding of the cities of Hiroshima and Nagasaki. As technology improves, the use or threat of nuclear weapons becomes ever more imminent. "United Nations officials, independent researchers, and environmental activists are demanding that nations stop using environmental destruction as a weapon of war."[109] Treaties and international law have not proven to be effective means in prohibiting nuclear weapons. The NPT, Geneva Convention, CWC, and BWC have only been effective to the extent that a state is a member to the agreement. Some salvation may be found within the UN Charter, Article 2(4), which prohibits the use or threat of force against another state. However, the International Court of Justice has held that Article 2(4) does not specifically address the prohibition of nuclear weapons and may be construed as permitting nuclear weapons. If an international law does not explicitly state that an action is prohibited, then its ambiguous language can be read to permit it.
The international community has also recognized that the use of nuclear weapons would inevitably result in severe, irreversible damage to the environment. Prohibition of nuclear weapons has been historically advocated because of the potential devastating impacts on humans. Given that human rights law protects the right to life of every human, in order to protect that right, there must be a law that protects the environment from the threat or use of nuclear weapons. Therefore, a workable solution lies within implementing an amended Article to the Charter focused on the protection of the environment through the same means afforded to human rights to prohibit the use or threat of nuclear weapons.
The notion that the environment is expendable during armed conflict is a fiction. Once the environment has been destroyed, life will cease to exist and all the current international law that has taken centuries to adopt and implement, will be for naught. In the words of the General Assembly, in its "Declaration on the Prevention of Nuclear Catastrophe:"
All the horrors of past wars and other calamities that have befallen people would pale in comparison with what is inherent in the use of nuclear weapons, capable of destroying civilization on earth.[110]
[1] For Mother Earth: Anti-Nuclear Working Group, Nuclear Weapons for Beginners; The Effects of nuclear weapons (September 25, 2004), http://www.motherearth.org/nuke/begin2.php.
[2] Symposium, The Environmental Law of War a Note From the Editors: An Introduction to Vermont Law Review's Symposium on the Environmental Law of War, 25 Vt. L. Rev. 649 (2001).
[3] Id.
[4] Id.
[5] U.N. Department for Disarmament Affairs, Weapons of Mass Destruction Branch Department for Disarmament Affairs, (Nov. 8, 2003), http://disarmament.un.org:8080/wmd/ (last visited Nov. 20, 2003) (on file with author).
[6] Id. See e.g. Charles J. Moxley Jr., Arms and the Law: The Legality of Nuclear Weapons and Missile Defense, 8 ILSA J. Int'l & Comp. L. Rev 447, 451-53 (2001); See also Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 25, 10 (July 8) (majority opinion), available at http://disarm.igc.org/oldwebpages/icjtext.html (last visited Sept. 22, 2003).
[7] See Lori Damrosch Et. al., International Law; Basic Document Supplement, Convention for Relating to the Protection of Victims of International Armed Conflict, Article 35(3) Additional Protocol I(1977) 442 (4th ed., West 2001) ("It is prohibited to employ methods or means of warfare which are intended, or may be expected to cause widespread, long-term and sever damage to the natural environment."); See also Lori Damrosch, et al., International Law 1072-73 (4th ed., West 2001) ("Article 55 of the 1977 Geneva Convention Protocol I states that care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health and survival of the population.").
[8] Charles J. Moxley Jr., Arms and the Law: The Legality of Nuclear Weapons and Missile Defense, 8 ILSA J. Int'l & Comp. L. Rev 447, 448 (2001).
[9] Effects of Nuclear War, Other Long-Term Effects, 109 (Chpt. V) (on file with author).
[10] Moxley, supra note 8, at 449.
[11] Columbia Encyclopedia, Biological Warfare 1 (6th ed. 2001), available at http://wwwbartleb.com/65/bi/biologWar.html (last visited Oct. 31, 2003).
[12] Id.
[13] Lori Damrosch Et. al., International Law 463 (4th ed., West 2001)
[14] Id. at 462 (in the 1925 Geneva Convention for the prohibition of asphyxiating, poisonous or other gases, it states that the use of these types of weapons during war are condemned by the "general opinion of the civilized world [and] …the prohibition shall be universally accepted as a part of International Law." The 1972 Geneva Protocol states that in no circumstances will the parties to the treaty use microbial or other biological agents or weapons, equipment or means to use this type of weapon during armed conflict.).
[15] Id. at 463.
[16] Timothy Webster, The Future of the Chemical and Biological Weapons Conventions, 16 Nat. Resources & the Envt. J. 187, 188 (Winter 2002).
[17] Scott Keefer, International Control of Biological Weapons, 6 ILSA J. Int'l & Comp. L. Rev. 107 130 (Fall 1999).
[18] Id.
[19] U.N. Dept. for Disarmament Affairs, supra note 5.
[20] Columbia Encyclopedia, Chemical Warfare 1 (6th ed. 2001), available at http://www.bartleby.com/65/ch/chem-war.html (last visited Oct. 31, 2003).
[21] Id.
[22] Id.
[23] U.N. Dept for Disarmament Affairs, supra note 5.
[24] Damrosch Et. al., International Law; Basic Document Supplement, supra note 7, at 473 (each party undertakes to destroy chemical weapons in their possession or located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.).
[25] U.N. Dept of Disarmament, supra note 5.
[26] Webster, supra note 16, at 188, 192.
[27] Id. at 189
[28] Id.
[29] Id.
[30] Effects of Nuclear War, supra note 9 at 109.
[31] Columbia Encyclopedia, Nuclear Weapons 1 (6th ed. 2001), available at http://www.bartleby.com/65/nu/nuclweap.html (last visited Oct. 31, 2003).
[32] Id.
[33] Symposium, The Environmental Law of War a Note from the Editor, supra note 2, at 650.
[34] Symposium, The Environmental Law of War, 25 Vt. L. Rev. 753, 754 (2001).
[35] Legality of the Threat or Use of Nuclear Weapons, 1996 I.C.J. 25 (July 8) (separate opinion by Justice Weeramantry), available at http://disarm.igc.org/oldwebpages/icjtext.html (last visited Sept. 22, 2003).
[36] Effects of Nuclear War, supra note 9, at 115.
[37] Id. at 112.
[38] Id.
[39] Dr Alan Phillips, Nuclear Winter Revisited (Oct. 2000), available at http://www.peace.ca/nuclearwinterrevisited.htm (last visited Oct. 31, 2003) (on file with author).
[40] Id.
[41] Effects of Nuclear War, supra note 9, at 112.
[42] Id.
[43] Phillips, supra note 39.
[44] Id.
[45] Id.
[46] Legality of the Threat or Use of Nuclear Weapons (separate opinion by Justice Weeramantry), supra note 35, at 21.
[47] Phillips, supra note 39.
[48] Legality of the Threat or Use of Nuclear Weapons (separate opinion by Justice Weeramantry), supra note 35, at 21.
[49] Id.
[50] Id. at 22.
[51] Symposium, The Environmental Law of War, supra note 34, at 759.
[52] Legality of the Threat or Use of Nuclear Weapons (separate opinion by Justice Weeramantry), supra note 35, at 22.
[53] Symposium, The Environmental Law of War a Note from the Editor, supra note 2.
[54] Symposium, The Environmental Law of War, supra note 34, at 755.
[55] Restatement (Third) of Sources of International Law, § 102 (4)(1987); Gerhard Von Glahn, Law Among Nations 2 (Allyn & Bacon 7th ed. 1996).
[56] Restatement (Third) of Sources of International Law, § 102 (1)(a)(b)(c) (1987); See also Lori Damrosch, et al., International Law 56 (4th ed. 2001).
[57] Damrosch Et. al., International Law; Basic Document Supplement, supra note 7, at 140.
[58] Von Glahn, supra note 55, at 14.
[59] Von Glahn, supra note 55, at 18. (One example of a general principle of law is the protection of human rights against genocide).
[60] Restatement (Third) of Sources of International Law, § 102 cmt. b (1987).
[61] Adam Steinfeld, Nuclear Objections: The Persistent Objector and The Legality of The Use of Nuclear Weapons, 62 Brook. L. Rev. 1635, 1645 (1996).
[62] Restatement (Third) of Sources of International Law, § 102 cmt. b (1987); See also Adam Steinfeld, supra note 61 at 1645 ("Custom as a source of law in no way provides a bright line indicator of when a rule may be formed or even the exact boundaries of the rule itself. Another ambiguity presented by the use of custom as a source of international law is the status of a state that stands apart from its fellow states by rejecting a practice.").
[63] Restatement (Third) of Sources of International Law, § 102 cmt. f. (1987).
[64] Vahn Glahn, supra note 55, at 465; See also, Damrosch Et. al., International Law; Basic Document Supplement, supra note 7 at 138 (Article 18, Obligations not to defeat the object and purpose of a treaty prior to its entry into force states that "[a] State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approach, until it shall have made its intention clear not to become a party to the treaty; or
(b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty and provided that such entry into force is not unduly delayed.").
[65] Webster, supra note 16, at 192.
[66] U.N. Dept. of Disarmament, supra note 5.
[67] Damrosch Et. al., International Law; Basic Document Supplement, supra note 7, at 466-67.
[68] Legality of the Threat or Use of Nuclear Weapons (separate opinion by Justice Schwebel), supra note 35, at 3.
[69] Damrosch, et al., International Law, supra note 13, at 118.
[70] Jack Alan Levy, As Between Princz and King: Reassessing the Law of Foreign Sovereign Immunity As Applied to Jus Cogegns Violators, 86 Geo. L. J. 2703, 2705 (1998).
[71] Id.
[72] Id. at 122.
[73] Id.
[74] Id.
[75] Karen Parker et. al., Jus Cogens: Compelling the Law of Human Rights, 12 Hastings Int'l & Comp. L. Rev. 411, 415 (1989).
[76] Legality of the Threat or Use of Nuclear Weapons (majority opinion), supra note 35, at 10.
[77] Levy, supra note 69, at 2705.
[78] Id.
[79] Id. at 2706 ("[D]istinguishes between three groups of jus cogens norms: The first that comes into consideration encompasses the maxims of international law which protect the foundation of law, peace, and humanity in the international order and which at present are considered by nations as the minimum standard for their mutual relations…. A second group of rules and principles is comprised in the rules of peaceful cooperation in the sphere of international law which protects fundamental common interests… A third sphere of imperative norms regards the protection of humanity, especially of the most essential human rights…."); See also Damrosch Et. Al., International Law supra note 13 at 118.
[80] Legality of the Threat or Use of Nuclear Weapons (majority opinion), supra note 35, at 8.
[81] Id. at 9 (separate opinion by Justice Weeramantry).
[82] Damrosch Et. Al., International Law, supra note 13, at 937.
[83] Damrosch Et. al., International Law; Basic Document Supplement, supra 7, at 11.
[84] Legality of the Threat or Use of Nuclear Weapons (majority opinion), supra note 35, at 27.
[85] See generally Legality of the Threat or Use of Nuclear Weapons, supra note 35 (the majority discusses throughout the opinion that they must abide by the ambiguous language codified in Article 2(4) of the U.N. Charter since there is no mention of the prohibition of nuclear weapons in Article 2(4), or any other international agreement); See also Symposium, The Environmental Law of War, supra note 34, at 757 ("The World Court determined that no convention, environmental or otherwise, comprehensively and universally bars the threat or use of nuclear weapons as such. [However,] [e]ven if it is accepted that there is no treaty generally banning the threat of use of nuclear weapons, however, or if the applicability of these two conventions to nuclear weapons is uncertain, there is no treaty that expressly permits such threat or use in any context whatever.").
[86] Legality of the Threat or Use of Nuclear Weapons (separate opinion by Justice Schwebel), supra note 35, at 7.
[87] Id. at 6.
[88] Id. at 19 (separate opinion by Justice Weeramantry).
[89] Id. at 21 (separate opinion by Justice Weeramantry).
[90] Parliamentary Network for Nuclear Disarmament, Liu Institute for Global Issues 2 (Nov. 8, 2003, Univ. of British Columbia, Vancouver), at http://disarmament.un.org:8080/speech/08nov2003.htm.
[91] Id.
[92] Symposium,The Environmental Law of War, supra note 34, at 759.
[93] Restatement (Third) of Sources of International Law, § 102 cmt. h (1987).
[94] Id.
[95] Steinfeld, supra note 61, at 1664.
[96] Id. at 1666.
[97] Id. at 1683.
[98] Legality of the Threat or Use of Nuclear Weapons (majority opinion), supra note 35, at 10.
[99] Van Glahn, supra note 55, at 4.
[100] Legality of the Threat or Use of Nuclear Weapons (separate opinion by Justice Weeramantry), supra note 35, at 10.
[101] Id.
[102] Damrosch Et. al., International Law; Basic Document Supplement, supra note 7, at 466-67. (Article III (1) of the NPT provides a mission statement for each signatory to the treaty:
"Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency's safeguard system, for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from the peaceful uses to nuclear weapons or other nuclear explosive devices.").
[104] Id. at 9.
[105] Legality of the Threat or Use of Nuclear Weapons (majority opinion), supra note 35, at 28.
[106] Damrosch Et. Al., International Law, supra note 13, at 121.
[107] Damrosch Et. al., International Law; Basic Document Supplement, supra note 7, at 468; See also Legality of the Threat or Use of Nuclear Weapons (separate opinion by Justice Schwebel), supra note 35, at 2 .
[108] U.N. Dept for Disarmament Affairs, supra note 5.
[109] Haider Rizvi, Politics: New Military Target- The Environment, Inter Press Service (Nov. 19, 2002), at http://print.westlaw.com/delivery.html?dest=atp&dataid=B005580000001609000400464… (last visited Nov. 20, 2003) (on file with author).
[110] Legality of the Threat or Use of Nuclear Weapons (separate opinion by Justice Weeramantry), supra 35, at 31.