esmond Tutu states lawsuit “good for humanity,” and all U.S. mayors agree in Resolution to back the nuclear disarmament lawsuit
An interview with David Krieger, President of the Nuclear Age Peace Foundation (Santa Barbara, California), and Consultant to the Marshall Islands
Q: The “Nuclear Zero” lawsuit filed by the Republic of Marshall Islands (RMI) against the nine nuclear nations to adhere to the Non-Proliferation Treaty (NPT) was denied in February by Judge Jeffrey White in U.S. Federal District Court (SF). RMI Foreign Minister Tony de Blum wants the U.S. and other nuclear nations to negotiate in good faith for nuclear disarmament, so why did this lawsuit get denied, and is the Appeal brief filed on July 13th an indication of ‘no backing down’ by the Marshall Islands?
Krieger: The lawsuit against the United States in U.S. Federal District Court was denied on jurisdictional grounds, having to do with standing and the political question doctrine. The Marshall Islands and its legal team believe the judgment was in error, and the ruling was appealed to the Ninth Circuit Court of Appeals (SF) on July 13th.
Q: Judge Jeffrey White’s decision noted that the Non-Proliferation Treaty’s fundamental purpose is to slow the spread of nuclear weapons, and to bar the non-nuclear countries from acquiring nuclear weapons. However, the Marshall Islands lawsuit focuses on the continuing breach of the treaty’s nuclear disarmament obligations. Do you think the judge’s decision to dismiss this case was based on a fundamental difference in the interpretation of the NPT’s core purpose? Do you think the number of groups filing Amicus Briefs with the Appeal [in support of the Marshall Islands] indicates that total nuclear disarmament should be seriously addressed, instead of just modernizing the arsenals?
Krieger: The judge was not correct in focusing only on the treaty’s provisions for preventing the spread of nuclear weapons. A critical element of the Non-Proliferation Treaty is Article VI, which calls for negotiating an end to the nuclear arms race at an early date, and achieving nuclear disarmament through good faith negotiations. The judge omitted from his decision reference to the importance of the nuclear disarmament provisions of the NPT. Many parties to the NPT consider the nuclear disarmament obligations to be the most important obligations of the treaty, and certainly a tradeoff for preventing proliferation to other nations. The goal of the treaty is to obtain a world with zero nuclear weapons – no proliferation of nuclear weapons, and good faith negotiations for nuclear disarmament by the countries that already have nuclear weapons.
Q: The Nuclear Zero lawsuit's Appeal Brief was officially filed on July 13, in the Ninth Circuit Court of Appeals (SF). Secretary of State John Kerry was also trying to wrap up a nuclear agreement with Iran on that day. What do you think of the U.S. establishing a new nuclear agreement with Iran, when the Marshall Islands Nuclear Zero lawsuits assert they [and other nuclear nations] haven’t lived up to the former international treaty agreements of the Non-Proliferation Treaty?
Krieger: It is a coincidence that the Marshall Islands filed their Appeal Brief in the Ninth Circuit Court of Appeals on the day on which Secretary of State Kerry was trying to finalize the agreement with Iran. The U.S. and the other countries in the P5+1 have worked hard trying to obtain a meaningful agreement with Iran to keep it from becoming a nuclear-armed country. The U.S. and other members of the P5 are all working on modernizing their nuclear arsenals, however, and this is a violation of Article VI of the Non-Proliferation Treaty. They must also be held to account for the breaches of their obligations, and this is what the courageous Marshall Islands seeks to do with its lawsuits. South African Nobel Peace laureate Desmond Tutu stated “The United States’ breach of the NPT Article VI has serious consequences for humankind and the Marshall Islands appeal is of critical importance.”
Q: The Nuclear Zero lawsuits by the Marshall Islands were also filed at the International Court of Justice (ICJ). However, the U.S. has rejected the compulsory jurisdiction of the ICJ, and considers any judgments of that court to not be binding on the U.S. Considering this dilemma, what would a victory at this international court bring in the long run?
Krieger: The Marshall Islands also brought the Nuclear Zero lawsuits against all nine nuclear-armed nations to the International Court of Justice. However, the way the ICJ works is that only the countries who accept the compulsory jurisdiction of the court can be held into the lawsuits. Among the nine nuclear armed countries, only India, Pakistan, and the United Kingdom accept the court’s compulsory jurisdiction. The other six countries, including the U.S., do not accept the court’s compulsory jurisdiction, and can only be invited to join the case. None of these six have joined thus far. The legal system at the international level is equivalent to a situation where someone is injured by corporate misconduct, and the injured party would have to invite the defendant to court, rather than there being compulsory jurisdiction to assure the defendant does not have a choice about showing up in court.
That is an important reason why a separate case was initially brought against the U.S. in U.S. Federal District Court (SF). If the U.S. can’t be held to account for its treaty obligations at the International Court of Justice, and it also can’t be held to account in its own federal courts, then how can any country have confidence in entering into treaty obligations with the U.S.?
The Marshall Islands can still prevail in their cases at ICJ against India, Pakistan, and the U.K., since these three countries have compulsory jurisdiction. Should the Marshall Islands win its case against the U.K., it would have important implications for the other four nuclear-armed countries that are parties to the NPT. If the international court declares that the U.K. is not in accord with its obligations under the treaty, then that would reflect on the similar obligations owed by the U.S., Russia, France, and China.
But a victory in these cases will be won not only in the courtroom, but in the court of public opinion. People everywhere need to understand that the nine nuclear-armed countries are not fulfilling their obligations to end the nuclear arms race, and to achieve nuclear disarmament. Quite the opposite, they are engaged in modernizing and improving their nuclear arsenals. The people of the world have to say to their leaders, “Enough is enough.” If we want to have a human future, we need to stop playing nuclear roulette.
Q: The recent Obama administration proposal for approximately $1.1 trillion for modernizing the U.S. nuclear arsenal (weapons, submarines, bombers, ICBMs, and the infrastructure of the nuclear weapons complex) does not align with compliance with the Non-Proliferation Treaty, even with the reductions in the number of nuclear weapons under the New START Treaty. Do you think the world is more at risk of a nuclear war with nuclear nations modernizing their arsenals, even with fewer weapons overall?
Krieger: Modernizing nuclear arsenals does not align at all with international legal obligations under the NPT and customary international law. It demonstrates that the most powerful countries in the world are continuing to rely on their nuclear arsenals, and to improve them despite their obligations under international law. This is a recipe for further nuclear proliferation, and puts the world at greater risk of nuclear accidents, nuclear miscalculations, and nuclear war.
A great danger of modernization is that the weapons will be perceived by their possessors as being more accurate, and therefore, more usable. They want to reduce the numbers but increase the usability of the weapons. Because the world previously went to the insane number of 70,000 nuclear weapons doesn’t mean that having only 16,000 in the world now makes us substantially safer. We’re playing a very dangerous game with nuclear weapons, and the use of even a dozen or so nuclear weapons could destroy the U.S. as a functioning country. The use of only a few hundred nuclear weapons could leave civilization in shambles.
I consider the current approach of the U.S. and the other nuclear weapon states to modernizing their nuclear arsenals to being akin to playing nuclear roulette. It is like metaphorically loading nuclear weapons into the chambers of a six-shooter, and pointing the gun at humanity’s head.
Q: The Non-Proliferation Treaty was signed in 1968 and entered into force in 1970, and yet there have been no multilateral negotiations to eliminate all nuclear weapons in the 45-year history of that treaty. The Marshall Islands’ lawsuits highlight that there are over 16,000 nuclear weapons still remaining in the world, with approximately 2000 nuclear weapons on high alert status. The lawsuits assert that immediate negotiations for disarmament are required, and that the nuclear nations have failed in these obligations. What do you think about issues of terrorism, national security, and foreign affairs affecting U.S. decisions about nuclear disarmament?
Krieger: The legal obligation of the parties to the Non-Proliferation Treaty, including the U.S., is to engage in good faith negotiations for an end to the nuclear arms race and for nuclear disarmament. If the U.S. were doing this and achieving success in eliminating nuclear weapons, the threat of nuclear terrorism would be substantially reduced, if not eliminated. Further, it is in the national security interest of the U.S. to achieve the global elimination of nuclear weapons, because it is the one type of weapon that no country, including the U.S., can protect itself against. In terms of U.S. foreign relations, the U.S. should adhere to its legal obligations, including its nuclear disarmament obligations under the NPT.
Q: President Obama signed the New START Treaty with Russia in 2010 (it entered into force on February 5, 2011), and soon after the President was awarded the Nobel Peace Prize for his stance on nuclear disarmament. Critics argue that it was only a treaty on strategic arms reductions, and the New START Treaty did not engage in negotiating disarmament of the nuclear arsenals. Do you think the New START Treaty is an example of NPT’s mandate for nuclear nations to “negotiate in good faith?”
Krieger: The New START Treaty is a step in the right direction, if it is followed by other significant steps. However, the Non-Proliferation Treaty calls for nuclear disarmament rather than arms reduction only. The New START Treaty is an arms reduction treaty, not a nuclear arms elimination treaty. The U.S. seems to believe in a step by step approach to nuclear disarmament, but many see this as a means of putting off nuclear disarmament indefinitely.
At the end of April 2015, the parties to the NPT met at the U.N. for their ninth 5-year review conference of the treaty. It seems clear from previous international meetings in Oslo, Norway (2013), in Nayarit, Mexico (2104), and recently in Austria at the Vienna Conference on the Humanitarian Impacts of Nuclear Weapons, that most countries in the world are not satisfied with the progress that has been made toward nuclear disarmament, especially given the terrible humanitarian consequences of nuclear weapons use. These countries pay close attention to whether the U.S. and the other nuclear weapons states who are parties to the NPT are taking their nuclear disarmament obligations under the NPT seriously.
Q: Marshall Island foreign minister Tony De Blum has argued that he is taking international action because his population of 70,000 islanders has greatly suffered from the effects of 67 major nuclear tests by the U.S. in the past, and now the atolls are also threatened by rising sea levels. The lawsuits don’t seek redress for their suffering. Instead, they emphasize their radioactive contamination to prevent future suffering in the world, to remove this threat from the world. Is the debate of climate change tied to nuclear issues a legitimate concern for the survival of humanity?
Krieger: Nuclear devastation and climate change are the two most significant global survival issues confronting humanity. The Marshall Islands are at the forefront of seeking solutions to both issues. It is a small but bold and courageous country. We should all be thankful to the Marshall Islands for being willing to speak out on these issues and take the legal actions that it has. Climate change is predicated on global warming taking place, and even a relatively small nuclear war could send the world plummeting into a new Ice Age. In a war between India and Pakistan, if each country used 50 Hiroshima-size nuclear warheads on the other side’s cities, it could result in crop failures leading to the deaths of approximately 2 billion people due to nuclear famine.
Q: The U.S. Conference of Mayors also adopted a major resolution backing the Marshall Islands in their Nuclear Zero lawsuit, and several of the mayors also filed an Amicus Brief to the Ninth Circuit Court of Appeals in support of the appeal. The mayors’ resolution states that the U.S. and eight other nuclear nations are “investing an estimated $100 billion annually to maintain and modernize their nuclear arsenals while actively planning to deploy nuclear weapons for the foreseeable future.” The mayors are calling on the President and Congress to “reduce nuclear weaponry spending to the minimum necessary to assure safety and security of the existing weapons as they await dismantlement.” Do you think this is a bold move by the mayors of our nation to want Congress to redirect military spending to domestic needs?
Krieger: It is actually a very smart and sensible move by the U.S. Conference of Mayors. Our cities need resources for infrastructure and the wellbeing of our citizens. It makes great sense to redirect the planned trillion dollar expenditure on nuclear weapons to improving our infrastructure and helping improve our housing, our healthcare system, and the education of our children. The federal government would do well to listen to the demands of the mayors of our cities, rather than waste our resources on unusable weapons of mass annihilation. It was extraordinary that the mayors stood up for the Marshall Islands lawsuit and backed them in their Resolution.
It is extremely reaffirming that the U.S. Conference of Mayors supports these lawsuits. Their resolution reflects an understanding that every city in the world is a potential target for the devastation that would be wrought by the use of nuclear weapons.
Q: What other support have the Marshall Islanders received tied to these lawsuits?
Krieger: It has been heartening to see how much support the Marshall Islands have received. In addition to the U.S. Conference of Mayors, the Marshall Islands lawsuits have been supported by major civil organizations, including Greenpeace International, the International Physicians for Prevention of Nuclear War (including Dr. Helen Caldicott), the World Council of Churches, the International Lawyers Against Nuclear Arms, and the Nobel Women’s organization. It has also received the support of many individual leaders, including Nobel Peace Laureates Archbishop Desmond Tutu, Mairead Maguire, Oscar Arias, Jody Williams, and Shirin Ebadi. More than five million people have also signed a petition in support of the Nuclear Zero lawsuits filed by the Marshall Islands.