For Outlawing Nuclear Weapons

OHKUBO Kenichi

General Secretary

Japanese Association of Lawyers Against Nuclear Arms

Introduction

More than 60 years have passed since Hiroshima and Nagasaki. Atomic bomb survivors’ are eagerly waiting for the day when they will see all nuclear weapons abolished so that there will be no more hibakusha (Hibakusha Declaration for the 21^st century). However, those who think that the abolition of these weapons is “difficult” if not “impossible” are not few among hibakusha. The five nuclear powers still detain as many as 27,250 nuclear warheads (as of January 2005, Peace Depot) and the United States in particular has officially announced that it would not exclude their preemptive use. Facing this aggressive posture of the U.S. and seeing the government of Japan, the country that experienced the atomic bombings, subserviently follow the U.S. nuclear policy, hibakusha have reasons to feel pessimistic.

However, it is not only for realizing hibakusha’s strong desire that we must work for nuclear abolition. We must work for it for our own sake.

As hibakusha have testified, “atomic bomb does not allow them either to die or to live in dignity as humans”. The appeal adopted by the International Citizens’ Conference for No More Hiroshimas and No More Nagasakis” held in July 2005 reaffirmed that “the use of nuclear weapons is totally illegal in international law and contrary to its fundamental principles that are built on the damages and sacrifices of millions of people over several centuries. Moreover, it is a crime against humanity”.

I wholeheartedly support that appeal because I believe that the elimination of nuclear weapons is a very natural demand that a human has.

I also think that eliminating nuclear weapons and abolishing wars are two sides of the same coin. As a matter of fact, nuclear weapons have become essential for winning a war, given the overwhelming advantage the haves will have over the have-nots in combat situations. As a war is always waged and fought with the aim to win it, the countries that envisage to engage in a war will inevitably try to acquire more nuclear weapons than their enemies and thus they will race for nuclear superiority. Because victory or defeat in a war depends on the power to kill and destroy the enemies and that nuclear weapons are the ultimate means of killing and destruction, we who are working for the elimination of these weapons must also demand the abolition of wars from the international community.

In that sense, Article 9 of the Japanese Constitution that stipulates the renunciation to war and to the possession of war potentials (including nuclear) is evidently very ahead of time and therefore needs to be spread to other countries around the world.

I would like to indicate another fact that should to be taken into consideration. War and use of nuclear weapons are both conducts of governments. In a state where sovereignty rests with the people, what gives legitimacy to these acts is nothing but the people’s will that is expressed through elections. The U.S. government has adopted the preemptive use of nuclear weapons as its realistic policy and the Japanese governments has opted to remain under the U.S. “nuclear umbrella”, not because they are have some fictitious power, but they are actually supported by the people they represent.

In short, in the present world, the use of nuclear weapons remains a realistic option in the politics, or, in other words, the elimination of nuclear weapons has not yet been part of national policy either in Japan or in nuclear-weapons states. If we seriously seek for ways to eradicate nuclear weapons and abolish wars, we must work to gain the sympathy and support of our people for our demand and change the official policy of our country.

1. Elimination of nuclear weapons is achievable by our will

If we want to “live and to die in dignity as humans” and to prevent the recurrence of the “worst crime in the history of humanity”, we must force the nuclear-weapon states to give up their nuclear arsenals and dissuade them from developing, producing, testing and stockpiling these weapons. We must make this into a solid international law norm. But is this achievable? Let us look at this question from the angle of international law as well as of physical possibility.

An international law norm can be established on the basis of the agreement of national governments. Needless to say that the people who is sovereign in each country is the one who can influence most effectively the national government. We people are sovereign in our country and in this title we have the power to change our government if we want to. Therefore, the elimination of nuclear weapons, as the prevention of war, is a task that can be achieved if we have the will to do so.

It is a task that can be realized if people who, just like us, want to abolish nuclear weapons and wars increase to form a majority. This may seem difficult, but it is not impossible.

Nuclear weapon have been invented and made by men and they can be dismantled through physical means. Let us suppose that we take out uranium 235 and plutonium 235 from 50,000 nuclear warheads and put them in a place. Their total weight would be some 50 tons and their volume about 2.5 cubic meters. (Is nuclear abolition possible, Iwanami Shinsho Edition).

War is a human activity. For the past 60 years, the Japanese armed forces have not killed or injured anyone, combatant or civilian, of other countries. Nuclear weapons and wars are not natural phenomena that cannot be controlled by men. Therefore we do not need to be pessimistic.

2. Achievements of the antinuclear movement

I would like to touch upon the question of antinuclear movement. The most important merit of the antinuclear movement is that it has been successful in preventing the use of nuclear weapons since Hiroshima and Nagasaki. These weapons were not used in major wars that have occurred so far including the Korean War (1950-53), the Cuban Crisis (1962) and the Vietnam War (second Indochina War 1954-75). In addition to these, the U.S. is said to have contemplated the use of nuclear weapons on three other occasions since the fall of Berlin Wall, first in January 1991 during the Gulf War, then, in the crisis in Korean Peninsula that began March 1994 and most recently the Iraqi crisis from January 1998.

In terms of military efficiency, the use of nuclear weapons in these conflicts must have appeared tempting for the U.S. The U.S. would have actually used them if it only wanted to gain a military advantage in an engagement. However, it could not do so either in Vietnam War or in other wars that followed. Nobody can object when we say that one of the reasons why nuclear weapons have not been used over the last 60 years is the presence of the antinuclear movement. We can have confidence in this.

The antinuclear movement has not yet succeeded in abolishing nuclear weapons, but it has contributed in preventing them from being used and nuclear war from happening during these 60 years. Although weapons such as depleted uranium bombs that cause radiation damage have been used, putting us before a new challenge, we must believe in our movement that has stopped more than once those who wanted to use nuclear weapons. We must tackle a new task with self-confidence. This new task is to get the threat or use of nuclear weapons be banned and to make this ban into an international law.

3. How far international has gone in making nuclear weapons illegal

Now, let us see what the international law says about nuclear weapons.

The International Court of Justice in its 1996 “advisory opinion” decided: “there is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such (by 11votes to 3)” and that “the threat or use of nuclear weapons would generally be contrary to the rules of international law” but the Court “cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in a extreme circumstance of self-defence, in which the very survival of a State would be at stake (by 8 votes to 7, with the President’s casting vote). In short, there is no provision in international law that explicitly prohibits the threat and use of nuclear weapons. They can be considered as illegal in an extreme circumstance.

The ICJ, in making these decisions, analyzed the prescriptions contained in the treaty regarding the use of toxic, chemical and biological weapons (principles of international humanitarian law), the Treaty on the Non-Proliferation of Nuclear Weapons regarding the possession, deployment and use of nuclear weapons (NPT) and other relevant treaties (the Comprehensive Test Ban Treaty, Treaties for Nuclear-Weapon-Free Zones). It also examined possible grounds for customary prohibition, practice of non-utilization of nuclear weapons since the atomic bombing of Hiroshima and Nagasaki by the U.S. as well as a series of U.N. General Assembly resolutions condemning nuclear weapons as illegal, and found that international law has evolved to put severe restriction on the use of nuclear weapons. However, the ICJ eventually concluded that this evolution falls short for explicitly and unconditionally prohibiting the nuclear weapons use.

ICJ Judge Weeramantry opposed this conclusion saying that “the threat and use of nuclear weapons is absolutely contrary to international law”, but unfortunately, his opinion was a minority view.

The ICJ while recognizing that there should be a law outlawing the threat and use of nuclear weapons and that such law would be “desirable”, concluded that such law has not yet been instituted. But this does not mean that the ICJ was content with merely admitting the current status of nuclear weapons. It in fact confirmed the existence of “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”. We must correctly understand the conclusion of the ICJ and weigh its limit.

As we have seen, we are now facing a new challenge, that is to establish an international law norm that prohibit comprehensively, universally and unconditionally the threat and use of nuclear weapons.

4. Arguments justifying the use of nuclear weapons or making it lawful

Let us now make a recap of arguments that have been put forth to justify or rationalize the use of nuclear weapons.

(1) Atomic bombing of Hiroshima and Nagasaki was necessary for minimizing casualties in U.S. soldiers and prompting the end of WWII. This is what the U.S. claims.

(2) Dropping atomic bombs allowed to put an end to the colonial rule of the Japanese imperialism. This is a frank view of South Koreans for whom opposing atomic bombing meant wanting the continuation of Japan’s colonial rule.

(3) The use of nuclear weapons, whether for counter-attack or first use, is not prohibited under a particular condition: that they are used to counter an attack and that they are evidently the most appropriate means to do so (France). Whether a counter-attack by the use of nuclear weapons is disproportionate or not depends on the situation (U.S.). These are opinions of nuclear weapon states presented at the ICJ.

(4) There are no prescriptions for regulating the level of armament of a sovereign state other than those in treaties that are ratified by that country. Weapons that are not prohibited by these treaties can be used. Biological and chemical weapons as well as anti-personnel landmines are prohibited weapons whereas nuclear weapons are not. The idea underlying this is that the use of force constitutes the exercise of sovereign rights at highest level and only clearly expressed will of the sovereign state can place constraints on it.

(5) “Japan relies on the U.S. nuclear deterrence to counter the threat of nuclear weapons” (Defense Guidelines of Japan). Deterrence meant here is “to provoke feeling of fear in enemies so that they refrain themselves from making an attack” and “to acquire capabilities to prevent enemies from achieving their objectives” (Conference on defense). This is the view of the government of Japan, the only country to have suffered the atomic bombings.

(6) Nuclear weapon is a “necessary evil”. It is “cost-effective”, “irreplaceable” and “lawful”. This argument is similar to those that are put forth to defend slavery or racism.

These are the arguments that justify or rationalize nuclear weapons. On these grounds, the threat and use of nuclear weapons are maintained and there is no law whatsoever that makes them illegal in a comprehensive and universal manner. On these grounds, some countries refuse to conclude a treaty that totally prohibits nuclear weapons. We therefore must do away with these false rationales.

The most important thing for refuting these arguments is to show the realities of damage caused by the atomic bombs dropped on Hiroshima and Nagasaki. It is also necessary to educate as many peoples as possible about the damage caused by nuclear testing and nuclear power plant accidents, as well as the effects of depleted uranium weapons on human body. We must learn and teach others how these damages are extensive and horrible.

Nuclear weapons are products of men and they are capable of annihilate all humankind. We must not allow the possession of such weapons, because they do not allow humans to live as humans. This is the least of the tasks we should achieve today for the sake of the future human society and environment of our planet.

5. Possibilities for joint actions

Many people have already realized this and they have stood up to act. In fact, there are a number of entities that call for nuclear abolition, including the New Agenda Coalition and the non-aligned movement to name just a few. The Mayors for Peace is working hard, upholding its “2020 Vision”. There are also NGOs and citizens movements that are working for nuclear disarmament and prevention of armed conflicts. The draft of a “nuclear weapons convention” has already been introduced to the U.N. It is true that the struggle against those forces that cling to nuclear weapons is not an easy one, but we can fight and possibly defeat them. It is not an impossible struggle. Archbishop Tutu said: “Humanity has abolished slavery and apartheid. It will be able to abolish wars” (World Citizens’ Conference in The Hague, 1999).

A tribunal in Japan once issued a ruling acknowledging that dropping atomic bombs constituted a violation of international law (Tokyo district court, A-bomb Trial, 1963). In simultaneous A-bomb disease recognition lawsuits, hibakusha are seeking to get their diseases recognized as induced by A-bomb radiation. Some of them have obtained a judgment that opens the path for these hibakusha who were once denied the entitlements specific to hibakusha to obtain relief, on the ground that all adverse effects of radiation on human body are yet to be determined.

In the world of law, there is an uncontestable evolution towards the acknowledgment that the threat and use of nuclear weapons are not compatible with justice and humanitarian laws that are sources of law.

We are carrying on our movement for abolishing nuclear weapons and wars. Let us draw a precise roadmap and joining our efforts, let us continue our journey until all nuclear weapons are dismantled!

May 25, 2006