Tag Archives: NPT

Contesting Nuclearism: Management or Transformation? An Urgent Challenge

22 Jan

[Prefatory Note: The essay below, longer than most of my posts, started off as a tribute to my friend David Krieger, serving as a chapter in a forthcoming book honoring his dedication to the abolition of nuclear weaponry by way of a treaty regime being prepared under the editorship of Rick Wayman, now President of the Nuclear Age Peace Foundation and Krieger’s successor. In the modified form published below the essay calls attention to the generally unappreciated tensions between managing nuclear weapons and eliminating them altogether. It stresses the crucial point that management inevitably produces a structure of ‘nuclear apartheid’ that is to some extent ‘legalized’ by way of the Nonproliferation Treaty of 1961, and depends for implementation, not on law, but on geopolitical muscle, including war. This geopolitical pattern of NPT enforcement has been mainly undertaken by the United States, but is generally supported by most of the other nuclear weapons states. I write in opposition to such a management arrangement for moral, legal, political, and prudential reasons, and believe that total nuclear disarmament is attainable and would be beneficially transformative if achieved.]

 

 Contesting Nuclearism: Management or Transformation?

 I feel privileged to have shared with David Krieger an unwavering anti-nuclear commitment, mainly under the auspices of the Nuclear Age Peace Foundation of which he served for so long as the founding President. We worked collaboratively on several books that sought to balance abiding nuclear fears against our equally persisting hopes for a denuclearizing world order. [At The Nuclear Precipice: Catastrophe or Transformation, ed. with David Krieger, 2007; Path to Zero: Dialogues on Nuclear Dangers, written with David Krieger, 2012] Although we share a big picture consensus with respect to the nuclear policy agenda, we have some conceptual and tactical differences, which  gave rise to creative tension more than to arguments and disagreements.

 

In such a complex and uncertain world, it may help to think like a Hindu, and accept contradiction as more in keeping with social and political reality than is finding a right answer to complex policy puzzles. What is almost impossible for those trained within Western frames of reference is to grasp that there are diverse perspectives of understanding that may result in seemingly contradictory recommendations despite shared values and goals. Civilizational perspectives and personal experience inevitably color what we feel, think, and do, and so being likeminded when it comes abolishing nuclear weapons is often coupled with somewhat divergent views on what to advocate when it comes to tactics and priorities.

 

In this spirit, this essay tries to depict a set of reasons why the goal of nuclear disarmament will never be reached so long as arms control and nonproliferation of nuclear weaponry are seen as the pillars of global stability in the nuclear age. [For a comprehensive presentation of my approach see Falk, ed. By Stefan. Andersson & Curt Dahlgren, On Nuclear Weapons: Denuclearization, Demilitarization, and Disarmament, 2019. By this focus on points of differing policy emphasis and tactical disagreement I do not want to neglect the significance of the similarities that seem more organic and foundational. As I understand these similarities, some main tenets can be identified: the desirability of a world without any nuclear weapons to be pursued by way of an intergovernmental treaty negotiated among the existing nuclear weapons states that achieves nuclear zero by stages of successful implementation, a process formally endorsed by  non-nuclear states; such a treaty would unconditionally prohibit possession and further development of the weaponry, reinforce existing prohibitions on threat or use of nuclear weapons, and reduce existing nuclear arsenals by a phased, monitored, and. verified procedures with levels of confidence and ample mechanisms for complaint and dispute-settlement; there are many confidence-building steps that could be taken along the way, either unilaterally or by agreement with other nuclear weapons states, including de-alerting of existing weapons, redefining strategic deterrence doctrine in minimalist and purely defensive terms, and adapting doctrine and deployments in accord with a formally declared adoption of a No First Use Policy, supporting the UN Treaty of Prohibition of Nuclear Weapons (TPNW) [The 2017 treaty enters into force 90 days after the formal receipt of 50 ratifications by signatory states; as of 25 November 2019, 34 states have deposited notifications of ratification with the UN]

 

Another area of convergence is with respect to the status of nuclear weapons from the perspective of international law. Most advocates of total disarmament, even if arms control friendly, agree that nuclear weaponry is intrinsically unlawful under existing international law, that is, without the desirable reinforcement provided by the TPNW, and that any threat or use of a nuclear weapon would be an international crime for which accountability should attach. Such a consensus affirms the classic dissenting opinion of Judge Christopher Weeramantry in the Advisory Opinion of addressing the legality of nuclear weapons in the International Court of Justice. [See “The Legality of the Threat or Use of Nuclear Weapons,” Advisory Opinion, International Court of Justice (1996); see also Shimoda case decided in 1963 by the Tokyo District Court as interpreted, Falk, “The Shimoda Case,” American Journal of International Law, Vol. 51, 759-793]

 

There is also widespread agreement that maintaining confidence in such a denuclearizing world would require the parallel phasing out of nuclear energy capabilities. Nuclear power facilities as themselves too dangerous to be tolerable, despite those that claim their necessity for realistic project to reduce carbon emissions in accord with the scientific consensus. Events such as the accident at Chernobyl or the tsunami that caused the disruption of the Fukushima facilities are illustrative of the dangers arising from accidents and extreme natural events. Nuclear power plants provide targets for political extremists and disposal of nuclear waste pose major health threats. As well, sophisticated nuclear technology is susceptible to dual use, would feed suspicions that could easily cause disenchantment with nuclear disarmament, and give rise to international tensions, even war-threatening crises. The allegations and conflict potential associated with Iran’s nuclear program is indicative of the problems that would face a world monitoring and verifying disarmament commitments where a breakout from an agreement would likely cause dangerous reactions in an atmosphere of geopolitical panic.

 

 (1) The Incompatibility of Arms Control and Disarmament

 Perhaps, my biggest divergence with Krieger arises with respect to addressing the relevance of arms control in relation to our shared goals of denuclearization and a commitment to achieved total nuclear disarmament. I have long advocated drawing a sharp distinction between arms control as managerial and geopolitical in its nature and disarmament as transformative and juridical in character. By managerial I mean that the primary purpose of a given measure is to reduce risks posed by and costs associated with the nuclear status quo. Typical arms control proposals involve de-alerting weapons systems, agreeing to forego certain modernizing technologies, avoiding provocative doctrines and deployments, and reducing numbers of warheads and missile launchers.

 

By geopolitical I reference the fact that the intended and actual effect of most managerial initiatives is to stabilize the nuclear status quo, including not challenging the possession, control, and legitimacy of the weaponry as currently exercised by the main nuclear weapons states. An arms control approach also helps explain the priorities accorded to nonproliferation and counter-proliferation policies as in the dealing by the nuclear weapons states alleged to be a supposed nuclear aspirant as Iran or such a pariah state as North Korea. Indeed, in mainstream media and political discourse the challenge of nuclear weaponry is reduced to strengthening, stabilizing, and enforcing the nonproliferation regime, and nuclear disarmament is clearly struck from the policy agenda of the nuclear weapons states.

 

My view is that the endorsement of arms control approaches subtly and indirectly substitutes management for transformation, and leaves the world facing unacceptable risks of intended and unintended uses of nuclear weapons for the indefinite future, as well as ‘the nuclear apartheid’ structure of allowing possession, development, and deployment by the nuclear weapons states and prohibiting it for all others. Beyond this, it overlooks the cultural and collective legal/ethical/spiritual (normative) costs associated with deterrence strategies that regard retaliatory uses of nuclear weapons as a legal and ethical security policy despite their indiscriminate, toxic, genocidal, catastrophic, and possibly omnicidal characteristics. [E.P. Thompson, “Notes on Exterminism: The Last Stage of Civilization,” New Left Review, May/June, 1980.]

 

Geopolitical factors are not generally considered in discussions of these issues, but given my world order interests I regard geopolitics as subverting the major premise of state-centric world order, namely, the equality of sovereign states.[UN Charter, Article 2(1): “The Organization is based on the principle of the sovereign equality of all of its members.”] Of course, this formulation in the UN Charter is mendacious language that cannot be reconciled with the P-5 permanent membership and right of veto in the Security Council. A prime ingredient of national sovereignty is the unconditional authority of states to determine their own security policy when it comes to self-defense, especially in response to threats. The irony of the managerial approach is that the two states with the most plausible security justifications for recourse to nuclear deterrence, Iran and North Korea, are the only states under pressure to forego or renounce all intentions of acquiring such weaponry. Even worse, this policy of denial is not a decision of the world community at the UN. It is a self-serving policy articulated by the nuclear weapons states, especially the United States, the UK, and France, geopolitical players that have assumed the role of nuclear gatekeepers while keeping their own nuclear options discretionary and secret. Instead of juridical equality, nuclear weapons policy is geopolitically hierarchical.

 

I acknowledge that drawing this sharp line between arms control and disarmament has some drawbacks. Perhaps, the most important of these is to make the goals of anti-nuclear activism seem unattainable and utopian because of the weak political will present to challenge the nuclear status quo, a political reality that has persisted since 1945 without any further weapons use. It can be argued in favor of arms control, that its measures are inherently valuable, and raise the anti-nuclear morale by demonstrating that concrete steps can be taken to reduce overall risks and costs of nuclearism, that something positive is happening in response to these concerns. Further, that when and if a more peace-oriented political atmosphere emerges, it would be a simple matter to advocate total nuclear disarmament, and on this basis strengthen the political will to encourage political leaders that the time has come to pursue transformative initiatives. In effect, as matters now stand, arms control seems better than nothing, and in this period, it is prudent to get what is possible, while maintaining the expectation that at some time under conditions impossible to anticipate, nuclear disarmament would rise to the top of the political agenda.

 

 I entertain these expectations to a certain extent. I continue to hope that a transformative agenda will at some point (other than a post-catastrophe context) be supported by an insistent public opinion and by responsive political leaders. In the 1990s I had the hope that at the end of the Cold War, especially as coupled with the collapse of the Soviet Union, there would be an irresistible surge of support for seeking nuclear disarmament. After all, political events had undermined the main deterrence rationale for retaining and developing the weaponry, and there seemed no reason to retain such potentially catastrophic weaponry. I thought both leaders and citizens would seize the opportunity to work toward a nuclear-free world.  Sadly, it didn’t happen, and was not even seriously considered. There was no push from below, and no interest from above. We should all be asking ourselves why such a mood of nuclear complacency prevailed when there seemed so much to gain by working toward an attainable and historic agreement to rid future generations of the fear that somewhere, somehow this infernal weaponry would again wreak havoc. One part of an explanation is that the nuclear dimension of the militarized bureaucracy in the United States, and elsewhere, is sufficiently influential to inhibit any concerted political moves to rid the world of nuclear weaponry.

 

Resuming my effort to show that although my views of this arm control/ disarmament interface have significant differences from what Krieger has emphasized both in the outlook of the Nuclear Age Peace Foundation and through his own work, our differences should be understood as the adversary of complementary approaches. I want to stress my perception that the driving force behind arms control is to enhance the stability of the nuclear environment and save money. In my view, foregoing certain nuclear innovations and deployments makes nuclear disarmament seem less necessary rather than more attainable. In this regard, arms control falls within the domain of political liberalism, which is itself under attack from neoconservative militarists who regard any international arrangements designed to reduce the risks associated with nuclear weaponry as a snare and delusion, and definitely not in the national security interest of the United States, and maybe some other nuclear weapons states.

 

Such a mainstream debate on the pros and cons of arms control needs to be understood as most essentially about the managerial form. The geopolitical hawks are arguing in favor of national management of nuclearism with due regard for the pursuit of strategic national interests. Most liberals favor negotiated international management arrangements that limit geopolitical options, including the avoidance of nuclear arms races. Arms control liberals also seek to minimize costs and risks of the nuclear status quo, giving a strong priority to keeping the nonproliferation regime alive and well. The most idealistic arms controllers feel that success with partial measures would build confidence of governments needed to take more ambitious denuclearizing steps in the future.

 

As suggested, our divergence of views can be viewed as complementary rather than posing an either/or choice.[Falk/Krieger, Path to Zero; Dialogues on Nuclear Dangers(2016).] I regard it as useful to understand that arms control generally tends to work, at least for the foreseeable future, against rather than in support of nuclear disarmament. I understand Krieger to be suggesting that while abolition is the primary goal, during the foreseeable it is desirable to do whatever becomes politically feasible by way of reducing risks and costs associated with the existing nuclear arms environment. This outlook may help explain why Krieger is reluctant to make the point that while a given arms control measure may be a constructive contribution in some respects, it has the unacknowledged effect of moving the world further from nuclear disarmament rather than closer to it.

 

 In both our positions there is room for convergence. Krieger’s position does not oblige him to regard every arms control measure under consideration as beneficial, nor am I committed to rejecting automatically every arms control measure that comes along. For instance, I would guess that we would both favor a declaratory No First Use policy either unilaterally undertaken or adopted by agreement among nuclear weapons states. Contrariwise, we would likely both oppose an international agreement that permitted the development of defense systems that would have the likely effect of making First Strike Options more attractive while claiming to make a rogue surprise attack less likely.  

 

I do feel strongly that we who seek permanent nuclear peace need to understand that the denuclearizing struggle must confront the bipartisan national consensus on these issues in the United States, which has survived without controversy despite the end of the Cold War. The consensus holds that the existing nuclear weapons regime needs to be managed, but never disassembled. The consensus is split as to who should do the managing, and what should be the role of geopolitics in the overall scheme. It regressively excludes from political imagination any endorsement of nuclear disarmament as a matter of principle. The Statement of US, UK, and France expressing their reasons of these governments for rejection of TPNW makes this clear. The main contention of this Statement is that even after the Cold War nuclear weapons enhance national security rather than erode it. By such reasoning, all sovereign states should have a legal entitlement to acquire the weaponry, and hence it becomes reckless for a government not to become a nuclear weapons state, exercising their right of withdrawal from the NPT.

 

(2) The Normative Ambiguity of Non-Proliferation and Counter Proliferation Policies

 

As earlier indicated, the geopolitical essence of the managerial approach is shaped by the nuclear governmental oligarchs rather than by the world community as problematically represented by the UN. In other settings. I have argued that the weakness of community at the global level makes it unrealistic to expect the UN to be effective or even influential whenever a policy issue collides with geopolitical interests. This difficulty was compounded by vesting veto power in the governments of the first five states to acquire nuclear weapons. In other words when it comes to matters of peace and security geopolitics has been written into the constitutional fabric of the UN System with juridical considerations based on sovereign equality put aside at least so far as the Security Council is concerned.

 

To achieve a world order bargain, a deal of sort was struck, and incorporated into the text of the NPT. Non-nuclear states would receive the technology needed for what was put forward as a good faith pledge would be written into the treaty obliging the governments of the nuclear weapons states to seek nuclear disarmament through international negotiations, and even more ambitiously, general and complete disarmament.[See Articles IV, VII NPT] This tradeoff was flawed in conception and execution. It was flawed because it was based on vague and unmonitored commitments that were almost impossible to interpret, much less implement. It was flawed in practice by discrimination among states, by facilitating covert acquisition of nuclear weapons by Israel, while waging an aggressive war in Iraq that was partly justified on counter proliferation grounds and subsequently relying on irresponsible coercive diplomacy to threaten Iran and North Korea with potentially grave repercussions.

 

The fundamental flaw of the approach taken in the NPT became increasingly evident over time. It became clear that the nuclear weapons states without exception were not interested in pursuing nuclear disarmament as policy objectives. Occasionally, politicians would put forward their belief in nuclear disarmament. But it was at best an empty wish that lacked political traction, and at worst was a public relations stunt used to gain a propaganda or partisan advantage.

 

 

 

(3) Should the NPT be repudiated in view of the flagrant breach of Article VI by the nuclear weapons states?

 

The issue of nonproliferation is central to my understanding of the challenge of nuclearism.[See Robert J. Lifton & Richard Falk, Indefensible Weapons: The Legal and Political Case Against Nuclearism (1982)] It is central because the establishment of a nonproliferation regime is what has linked geopolitical interests to the retention of nuclear weapons by a small number of countries, above all the five permanent members of the UN Security Council. It sets these five states apart even in relation to the other four nuclear weapons states for whom the weaponry is more closely connected with a more specific search for security, status, and regional influence (Israel, India, Pakistan, and North Korea). I believe it is important to expose these unacceptable geopolitical links between nuclear weaponry, nonproliferation, and world peace and security. Liberal anti-nuclearists are either take no notice of these geopolitical dimensions of nuclear policy, and tend to support the  nonproliferation regime based on their assumption that the world becomes that much more dangerous as each new political actor acquires nuclear weapons. To take note of the problem is a far cry from finding a solution.

 

As with arms control, the policy issue raised by nonproliferation is complicated, defies any dogmatic view, and cannot be resolved by rational analysis or even by recourse to moral and legal considerations. I share the view that any sane person would like to live in a world with as few governments having access to nuclear weapons as possible. Seen in isolation, this is a desirable goal. But just how desirable is nonproliferation policy if other considerations are taken into consideration? Among these considerations is the realization that incentives to seek nuclear disarmament are greatly diminished if the nuclear club can be kept small as it allows the nuclear weapons states to retain their security options and geopolitical status associated with the possession of the weaponry, as well as to threaten other states with annihilation without fearing retaliation.

 

Another important consideration is the distinction between the nonproliferation treaty instrument (NPT) and the implementation of the treaty by way of the establishment of a nonproliferation regime (NPR) devised by and under the control of the United States, and not the UN. Note that the NPT purports, at least, to be based on the formal equality of states, and supposedly relied on a logic of reciprocity with respect to obligations. The nonproliferation regime, in contrast, proceeds from assumptions of inequality, claiming for nuclear weapons states a responsibility for preventing or even reversing proliferation, while imposing no denuclearizing responsibilities on any nuclear weapons state except possibly North Korea. In this sense, due to geopolitics, nonproliferation rather than denuclearization becomes the operative manner of partially integrating or normalizing the weaponry with respect to world order. This means that geopolitics is given precedence over international law and global justice, and few seem to notice, and even fewer appear to care.  By treating nonproliferation as independent from the broader issues of peace and justice, the nuclear policy question is reduced to whether if country X acquires the bomb will the world or region be safer or more dangerous. This kind of reasoning has provided the justification for insisting that Iran demonstrate to the world that it does not possess nuclear weapons, and is not seeking to produce despite its technological capacity and infrastructure that confers the potentiality. Geopolitical prerogatives authorize the nuclear weapons states to overlook the unlawfulness of threats to the security of these potential proliferators that seem to explain their temptations to develop a nuclear weapons capability.

 

There are further concerns about burying these issues beneath the banner of national nuclear bipartisanship.[By bipartisanship I am referring to the consensus that has generally transcended party differences in the formulation and carrying out of foreign policy, including adherence to the logic of nuclearism, which includes the management of the counterproliferation regime.] For one thing, the counterproliferation regime tacitly authorizes threats and uses of force to carry out its nonproliferation missions. Such threats and uses of force have been relied upon to uphold to case for attacking and occupying  Iraq since 2003 despite the refusal of the UN Security Council to accept the argument or authorize the undertaking. Since this undertaking could not be validated by reference to self-defense as defined in Article 51, it must be considered a violation of the core norm of the UN Charter (Article 2 (4)) and thus appears to qualify as  a war of aggression, which was treated as the most severe of international war crimes at the Nuremberg trials held after World War II as well as being a damaging show of disrespect for the authority of the United Nations given that authorization was requested and denied. The same dynamic is at play with regard to Iran at the present time. Threats and sanctions, without any UN authorization have been directed at Iran, a state that seems at the mercy of geopolitical instability, further accentuated by Trump irresponsible repudiation of the Joint Comprehensive Plan of Action (JCPOA) negotiated during Obama’s term as president. The main conclusion to be reached is that implementing nonproliferation has been achieved at the expense of international law and even the UN Charter, and by relying on a one-sided interpretation of the NPT that grants impunity to the nuclear weapons states while enacting unlawful punitive measures against non-nuclear states, especially those that are targets of geopolitical enmity. My impression is that advocates of continuing validity of the NPT arrangement are insensitive or ignorant toward this double standard relating to compliance.

 

A second intrusion by geopolitical manipulation is the manner in which countries outside the P-5 are treated when it comes to nuclear weaponry. It seems evident that Israel was given entry to the club despite its covert means of acquiring the capability, even receiving secret technological assistance from several P-5 nuclear weapons states.  Whether by agreement or choice Israel has maintained a formal posture of neither admitting nor denying the existence of its weapons arsenal, although it is widely accepted that it possesses the weaponry and continues with further development activities.  [Seymour Hersh, The Samson Option: Israel’s Nuclear Arsenal & American Foreign Policy 1991] What is clear is that the NPR discriminates among states based on their international alignments and size, allowing Israel in, while keeping Iraq and Iran out. This discriminatory practice illustrates the geopolitical tendency to divide the world into friends and enemies when allocating rights and duties among sovereign states. In other words, geopolitical rather than legal criteria are relied upon to establish the policy interface between nuclear haves and have nots.

 

A third intrusion is the effect of allowing the NPR to override the treaty without any attempt at reconciling the two sources of normative order, or even to alter the NPT so that it conforms to the practices of NPR. The NPT imposes a solemn obligation on nuclear weapons states to pursue nuclear disarmament in good faith with an intention to conclude an agreement. [See unanimous finding of ICJ in the Nuclear Weapons Advisory Opinion. The language used by the 14-0 vote, which included the American judge, is suggestive: “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.” The finding in the Advisory Opinion follows closely the wording and spirit of Article VI of the NPT: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”]

These states are parties to the NPT, and yet they have joined in the virtual negation of this most fundamental feature of the treaty text that undoubtedly explains the willingness of most non-nuclear states to become parties to the treaty. We can only speculate as to whether the NPT would have ever come into force without having this reciprocal feature that bound the two states in an encompassing agreement. The NPT seemed to have the intrinsic merit of seeking to rid the world of nuclear weapons by negotiation while freezing nuclear membership. The treaty has been reasonably successful in inhibiting further acquisition of this highly dangerous and legally dubious category of weaponry, while being an unacknowledged failure so far as its reciprocal goal of denuclearization.

 

In the end, this double standard raises the question as to whether the NPT should be repudiated, or at the very least subjected to sharp criticism by non-nuclear parties. From a legal point of view the nuclear weapons states appear to have violated material provisions of the treaty, giving non-nuclear parties an option to void the agreement. As matters now stand, the NPT provides a legal rationale. for the claims put forward by the NPR. Yet the repudiation of the NPT could be interpreted as a green light to acquisition of the weaponry as an insurance policy. In view of such a dilemma, the best response might be a heightened effort to apply the treaty as drafted, especially insisting on compliance with Article VI, and further construed by seeking a second Advisory Opinion from the World Court.

The NWPT is another sort of pushback against both NPT and NPR, as well. It obviously challenges the legality and legitimacy of the geopolitical nuclear apartheid as pertains to the control of nuclear weaponry by putting forward a treaty seeking a wide-ranging normative prohibition of nuclear weaponry that is applicable to all states.  

 

Alongside concerns about proliferation is the absence of concern in response to the maneuvers of geopolitics as these bear on the sovereign right of states to uphold their security and to exercise their inherent right of self-defense. Actually, Iran and North Korea have far more reasonable security arguments for acquiring nuclear weapons than do any of the other nuclear weapons states. This recognition does not justify acquiring the weaponry, but it helps explain the reasonableness of their behavior as compared the examples being set by leading states. Such vulnerable states are faced with defending their territorial sovereignty against coercive diplomacy and possible interventions and encroachments on their security carried out and promoted by neighboring political actors controlling vastly superior military forces, and in these instances allied with nuclear weapons states.

 

By this pronounced unwillingness of the NPR to allow certain states to determine their own security needs if it undermines efforts to prevent further proliferation, unaccountable and often irresponsible geopolitical managers of NPR are effectively given the authority to override national security policy of these weaker states. For instance, Iran is threatened with military attack if it crosses certain technological thresholds. As significant, geopolitical forces make no effort to take steps to reassure Iran with respect to security or to replace a nonproliferation approach by pushing for the establishment of a Middle East Nuclear Free Zone. There has been no response by the West to Iran’s president, Hassan Rouhani, who presented a peace plan for the Persian Gulf in 2019 at the UN General Assembly, given the name Hormuz Peace Endeavor with the fitting acronym of HOPE.

 

The example of Libya haunts this topic of forgoing the nuclear weapons option, as many believe that if Muammar Qaddafi had not abandoned plans to acquire nuclear weapons, he would be alive today. Similarly, if Saddam Hussein had really possessed a stockpile of weapons of mass destruction, many believe that Iraq would never have been attacked in 2003. In other words, nuclear deterrence is possibly a more effective approach to national security if invoked by relatively weaker nuclear states. The NPR offers no compensatory steps to offset security concerns of such obviously vulnerable states as Iran beyond their rather tenuous conditional willingness to remove sanctions, and thus it is not surprising that nonproliferation is tied to militarism.

 

It is also notable that the most prominent instance in which hawkish foreign policy establishment figures advocated nuclear disarmament was in reaction to their skepticism about the viability of NPR in containing future proliferation. [George P. Shultz, William Perry, Henry Kissinger, and Sam Nunn, “A World Free of Nuclear Weapons,” Wall Street Journal, Jan. 4, 2007; see by same authors, “Deterrence in the Age of Nuclear Proliferation,” WSJ, March 7, 2011.]. In effect, these geopolitically oriented political figures, influential former holders of high-profile security positions, favored nuclear disarmament not because of any moral scruples or fear of an impending apocalypse, but because of their worries that the NPR was breaking down. In effect, their belief that further proliferation would likely occur, and make it so much more difficult to achieve geopolitical political goals that they were uncharacteristically willing to recommend phased denuclearization as a grand strategy. They did this in the belief that the West would enjoy military dominance in a denuclearizing world through their retention of far superior non-nuclear capabilities, which were in any event, more usable in the course of foreign policy if there seemed to be no risk of an unwanted escalation above the nuclear threshold. I believe these complexities need to be discussed, while arms control proponents tend to believe that such issues are often ‘academic’ distractions that fail to keep the proper focus on what is wrong about the weaponry and how to get rid of the weapons before they get rid of humanity.

 

 

(4) Can we have Stage III nuclear disarmament without non-nuclear demilitarization?

A final issue touched upon is whether a credible posture toward a disarmament process for nuclear weapons must at some stage also address issues relating to non-nuclear demilitarization, and indeed war itself. Arms control oriented thinkers place more stress than I would on the distinctive policy priority arising from the acute dangers posed by nuclear war. Those who favor nuclear disarmament tend to focus more on the obstacles to nuclear disarmament created by existing levels of militarism as well as by the role of war and nuclear apartheid in international relations, and as embedded in the political realist mentality that continues to regulate the behavior of national leaders.

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There is a practical argument about inducing the weaker nuclear states to enter into a treaty framework that leaves them more vulnerable after giving up their arsenal of nuclear weapons. The governments of such states to the extent that their leaders believe that exposure to hostile states wielding superior conventional weaponry would discourage any effort to tamper with the nuclear status quo. Such security minded states likely include Pakistan, Israel, North Korea, and possibly India (in relation to China).

 

As a nuclear disarmament process deepened, there would be more attention given to a denuclearizing security environment. To achieve the goal of total abolition, the only acceptable outcome of a denuclearizing process, parallel steps would need to be taken to reduce non-defensive armaments, which might be difficult with the emergence of drones and accurate long-range missile technology.

 

 

 

Concluding Note

 

Some anti-nuclear moderates believe that the most promising way to reach a world without nuclear weapons is to convince society that fears of a nuclear war are well-founded, that the results of a war fought with nuclear weapons would be unimaginably horrible in its devastation and aftermath, and that phased, verified nuclear disarmament offers a safer and more humane alternative that would give permanent nuclear peace its best chance. [See Daniel Ellsberg, The Doomsday Machine: Confessions of a Nuclear War Planner (2017)]

 

I do not agree. In contrast, I am convinced that to move forward toward total nuclear disarmament we need to take much better account of the obstacles, frictions, and nuances, explaining why the anti-nuclear movement has so far failed to challenge effectively the nuclear weapons establishment. This position is open to criticism as being overly concerned with obstacles, and less focused on issues of morality, prudence, political action, and war prevention (relating to the implicit arms control claim that nuclear deterrence has prevented all major wars for more than 75 years, including those that might have been fought had nuclear weapons not existed).

 

In the end, I think we need to continue to have dialogues between those anti-nuclearists who are uncritical about the friction between pursuing arms control and disarmament, and those who believe that their antagonisms must be addressed. It remains crucial

to keep mobilizing moral outrage as the foundation for political action. By contrast, I believe that ant-nuclearism will not get far until it clarifies the tensions between seeking arms control and favoring nuclear disarmament. It seems a serious confusion to suppose that arms control is a halfway house and a serious moral and political failure not to critique the nonproliferation regime that sustains nuclear apartheid which is self-servingly asserted to be the only path to global security.[See George W. Bush, U.S. National Security Strategy, 2002, an important interpretation of global security that fails even to acknowledge nuclear disarmament as a desirable goal].

 

My assessment of the arms control/disarmament interface can be summarized in a series of propositions:

         –that it is morally, legally, politically, and prudentially imperative to rid the world of nuclear weaponry through a verified

nuclear disarmament treaty and accompanying implementation regime, and this should be regarded as the paramount goal of anti-nuclearism, taking precedence over other goals;

         –that arms control approaches must be explicitly understood as managing nuclear weapons, which is often not consistent with achieving the paramount goal, and may actually make the goal of total nuclear disarmament less attainable;

          –that the two top priorities of the managerial approach to nuclear weaponry are to prevent a major war and to prevent further proliferation of nuclear weaponry to additional sovereign states, and especially to those potential nuclear weapons states that have adversary relationship to regional and global geopolitical regimes;

         –that despite the NPT, avoiding further proliferation of nuclear weaponry requires reliance on implementation by geopolitical regimes, by threats, and if necessary, by military action;

         –that the coercive maintenance of non-proliferation has produced a structure of nuclear apartheid, which is inconsistent with the world order premise of the equality of sovereign states and will be resisted from time to time by states whose security is under threat or who harbor hegemonic ambitions;

         –that the final stages in any disarmament process must also address global militarism in general and reduce non-nuclear military capabilities;

         –that overcoming current high levels of complacency about the risks and effects of a nuclear war will depend on civil society activism and a more peace literate public opinion, and will not be achieved by normal diplomacy.

 

 

Making the Most of Obama’s Hiroshima Visit

11 May

Message to President Barack Obama with respect to forthcoming Hiroshima visit

 

 

[Prefatory Note: I sent the following message to the White House today, and encourage readers of this blog to do the same <www.whitehouse.gov>This symbolic visit by Obama creates a major opportunity to advance a denuclearization agenda, and we should take as much advantage as possible. I am against the mainstream advice that suggests that the best way to give meaning to the event would be to announce the adoption of arms control measures such as suspending development of a new nuclear cruise missile. These measures, while intrinsically valuable, have the downside of stabilizing the nuclear weapons status quo. What would be most helpful would be a step, as suggested below, that gives primacy to nuclear disarmament instead of continuing the deceptive practice of taking prudent steps to cut risks of accidental use and curtail provocative developments and deployments. These steps take the public eye off the supposed target of nuclear disarmament. The only was to honor the memory of Hiroshima and Nagasaki is by moving toward Nuclear Zero, and President Obama is one of the few persons on the planet that has this precious chance to aim at the true target. Of course, it would be appropriate, and long overdue, to apologize to the Japanese public for the ghastly suffering inflicted by the atomic attacks, but that is more than we can reasonably expect a cautious president to do.]

 

 

 

 

Message to President Barack Obama upon the announcement of his intended

                                                Visit to Hiroshima

 

Mr. President:

 

I applaud your decision to visit Hiroshima during your upcoming visit to Japan.

 

I would encourage you to supplement your acknowledgement of a MORAL responsibility of the U.S. in your 2009 Prague Speech with an acknowledgement of a LEGAL responsibility to seek in good faith nuclear disarmament, a point unanimously asserted by the International Court of Justice in its Advisory Opinion of 1996. Such a move would also recognize the legal obligation embedded in Article 6 of the NPT.

 

Making such an historic affirmation would give new life to the pledge to give real meaning to the vision of a world without nuclear weapons, and

act to heighten your legacy in this vital area of your presidency. It would put legal, as well as moral, pressure on all nine nuclear weapons states to comply with their obligations under international law, and in the American case, since the since the NPT is a duly ratified treaty, to act in accordance with the Constitution’s recognition of treaties as ‘the supreme law of the land.’

 

Respectfully,

 

 

Richard Falk

The Nuclear Challenge (10): Seventy Years After Hiroshima & Nagasaki: Against Binaries

10 Sep

[Prefatory Note: This is the tenth, and mercifully the last, in this series of posts prompted by the 70th observance of the atomic attacks in 1945. The intention has been to explore several of the more important dimensions of what is called here ‘nuclearism,’ the securitization of nuclear weaponry in the face of international law, international morality, and simple common sense, and what can and should be done to achieve desecuritization of such weaponry of mass destruction, reviewing the stubborn adherence to nuclearism by the nuclear nine, the marginalization of the UN with respect to disarmament and denuclearization, and the rise and fall of antinuclear activism in civil society. Hopefully, the time will come when a less gloomy depiction of the nuclear challenge can be made by some future blog practitioner. This text is a slightly revised version of what was initially posted, written in grateful response to comments received.]

 

There have been a variety of philosophical assaults on either/or thinking, perhaps most notably flowing from the deconstructionist pen of Jacques Derrida. In more policy related contexts, the debate about dichotomizing gender has featured two sets of arguments: first the contention that it is important to distinguish lesbians, gays, bisexuals, and transgender people, hence the LGBT designation of sexual ‘otherness,’ which enriches the either/or-ness of the reigning male/female gender binary. Identifications of sexuality also cuts against the grain of the dominant heterosexual or straight template, and is further contested by ongoing debates surrounding the societal, legal, and conceptual legitimacy of ‘same sex marriages.’

 

The New York Times columnist, Charles Blow, pushes the sexual identity envelope further by developing the case for ‘fluidity’ of preferences, that is, neither purely this or that. He personalizes the issue, indicating that he generally is attracted to women, but on occasion might also be attracted to men, which because the feelings of attraction are greater for women than men, it is not accurate to define himself as ‘bisexual.’ Such a blurring of boundaries corresponds with the actuality of his feelings that even cut across supposedly liberating socially constructed categories as LGBT is meant to be. [Sept 7, 2015] The point being that the biopolitical reality of life often does not divide neatly into binary categories, and when we address the issue as one of upholding societal norms by enacting laws disciplining sexual limits, adverse social, political, and psychological self-alienation and arbitrary distinctions follow. This encroaches upon our freedoms in unfortunate, often unconscious, ways, leading many individuals to stay in the closet to hide their true feelings or be open and face subtle punitive consequences. Or, at best, individuals conclude that their failure to fit their feelings into a single box is somehow ‘abnormal.’ Relaxing traditional roles of state, church, and society in policing politically correct identities is one of the few areas in which freedom in American can be said to have expanded in the last couple of decades, and this, largely due to the transcendence of gender and sexual binaries thanks to robust civil society activism that cut against the grain of majority sentiment.

 

 

Perhaps, the most blatant of all binaries bearing on nuclear weapons is between ‘good’ and ‘evil’ nuclear weapons states, which immediately reminds us of Mahmood Mamdani’s devastating critique of the distinction between ‘good’ and ‘bad’ Muslims. [See Mamdani, Good Muslim, Bad Muslim: America, the Cold War, and the Roots of Terror (2005)] The United States and its allies regard themselves as ‘good’ nuclear weapons states that the world has no reason to worry about while Iran, North Korea, and Pakistan are ‘evil,’ or at best ‘irresponsible’ or ‘insecure’ states that should if at all possible be disallowed to acquire nuclear weapons. It is this primary binary that provides the moral/political disguised infrastructure of NPT treaty regime, which when established was confined to the P5 of the UN Security Council, which while not conceived of as ‘good’ by the West were at least not part of ‘the axis of evil’ depicted by George W. Bush during his presidency.

 

In this series on the nuclear challenge as of 2015, I have myself succumbed to the ‘binary temptation’ in at least two respects—distinguishing arms control from disarmament, and separating nuclear disarmament from conventional disarmament. Relying on binaries can contribute to a certain clarity of analysis, leading I believe to useful political discourse, but it is also misleading unless qualified and transcended. Dichotomizing choice and consequences in these ways can be especially useful in pointing out weaknesses and pitfalls in ‘politically correct’ methods of solving societal problems. In this spirit, I continue to believe it is illuminating to insist on the critical difference between complete nuclear disarmament as transformative of the security scene as now embedded in world order and arms control as a series of more or less helpful reformist moves that stabilize and manage the role of nuclear weaponry in contemporary security structures. These arms control moves are made without posing any challenge to the fundamental distribution of power and authority in the world, and tend to make such a challenge appear less urgent, and even of questionable benefit.

From this perspective, then, a critique of the NPT regime as the preeminent stabilizing structure in relation to nuclearism seems justified. It provides the basis for setting forth an argument that the NPT approach is antagonistic, rather than complementary to denuclearization and disarmament. This is contrary to the way the NPT regime is generally explained and affirmed, which is as step toward achieving nuclear disarmament, and an indispensable place holding measure to reduce the risks of nuclear war. It is true that inhibiting the spread of nuclear weaponry seems to be in the spirit of what might be described as horizontal denuclearization, although even this limited assertion is not without controversy. The recently deceased Kenneth Waltz with impeccable logical consistency seemed to believe so deeply in rational decision making as embedded in the doctrine of deterrence that he favored the spread of nuclear weapons to additional countries because it would tend to make governments more cautious, and hence nuclear war less likely. Others, including myself, are more ambivalent about such an out of the box position, worrying about any further spread of the bomb, but thinking that only when there is a sense of a loss of control in the capitals of the nuclear nine will there arise a sufficient interest in denuclearization as a genuine political project (as distinct from more or less sincere rhetorical posturing). Obama’s Prague speech in 2009 still seems sincere as of the time of its delivery, but we need to notice that it lived and died as rhetoric because it lacked legs, that is, the rhetoric was never converted into a political project. In contrast, the NPT is definitely a political project and enjoys strong geopolitical support.

 

The policy emphasis on horizontal denuclearization has the sometimes intended and sometimes unintended effect of shifting public attention away from the greater problematique of promoting vertical declearization, that is, inducing the nuclear weapons states to enter a diplomatic process that would finish with zero nuclear weapons in their military arsenals. Again such a distinction, while useful for some purposes, employs the artificial binary of horizontal and vertical, and misses the nuance actuality of hybridity and interactivity, or what Blow describes as ‘fluidity’ or others have been delimiting by dwelling on the fifty shades of gray positioned between the black and white of conventional thinking. Decuclearization for each of the nuclear nine raises different issues depending on the outlook of their leadership, the political context, and the ease of making alternative non-nuclear security arrangements, as well as their interaction with one another and with neighboring states.

 

Perhaps, the most salient false dichotomy of all is between ‘nuclear weapons states’ and ‘non-nuclear weapons states.’ When countries have the enrichment facilities and materials, as well as the technical knowhow, they possess a breakout capacity that could materialize in a matter of months, or maybe already exists as a result of a secret program (as was the case with Israel). Yet without acquiring and exploding a bomb such states retain their status as non-nuclear. Israel is treated as belonging to the nuclear nine because its possession of the weaponry has been documented convincingly, although it has never officially admitted its possession of the weaponry, and keeps vindictively punishing Mordechai Vanunu because he exposed the truth about Israel’s nuclear program. North Korea may not have assembled a bomb when it was charged with violating NPT constraints. Germany and Japan, and perhaps a few other countries, are latent or threshold nuclear states, although their overt posture is one of being ‘non-nuclear.’ The fluidity of reality makes the binary classification, at best, a first approximation. At worst, it creates a deceptive distance between states that have nuclear weapons and those that do not presently possess the weaponry, but could do so in a short time. Or between those that pretend not to have the weapon but actually have it and those that pretend to have it but do not have it. The binary classification ignores the many differences with respect to nuclear weapons and doctrines surrounding use of the nuclear nine, but also the many nuances of technical and political proximity to nuclearism of non-nuclear states. Some states have allowed deployments of nuclear weapons on their territory, others have prohibited ships carrying nuclear weapons from entering their ports for even a short visit.

 

 

The situation becomes even more complicated if inquiry is extended to secondary political effects. It has been argued that vertical denuclearization undertaken by the United States would likely lead to horizontal nuclearization on the part of Japan and South Korea. Contrariwise, it is reasoned in strategic circles that the nuclearization of countries in Asia and the Middle East could induce vertical denuclearization on a systemic basis to avoid the instabilities and raised risks of a growing number of hands on the nuclear trigger, and to clear the way for regional securitization based on American conventional military dominance. Worries about continued proliferation combined with the realization that American military power would become more usable and effective in a world without nuclear weapons even led such realist mainstays as George Shultz, Henry Kissinger, William Perry, and Sam Nunn to support nuclear disarmament in the normally militarist pages of the Wall Street Journal. [“A World Free of Nuclear Weapons,” Wall Street Journal, Jan 4, 2007.]

 

A similar line of reasoning applies to the relationship between nuclear disarmament and conventional disarmament. Focusing on nuclear disarmament as a distinct undertaking avoids difficult issues of whether disarmament rests on a premise of pacifism and thus would be imprudent in view of centuries of political consciousness supporting the right and practical necessity of political communities acting in self-defense to uphold their security against external threats. This logic of a collective right to bear arms underlies the modern system of state-centric world order that conceives of security within bounded territorial entities as integrally linked to the war system.

 

At the same time, as discussed in relation to Gorbachev’s vision of nuclear disarmament discussed in The Nuclear Challenge (3), it is unrealistic to think of deep disarmament without introducing demilitarization into the process. Otherwise as Gorbachev points out, governments will be reluctant to take the last steps in a denuclearizing process if they understand that at the zero point for nuclear weapons, the world will be confronted by American military dominance, already prefigured by the U.S. government spending almost as much to maintain and develop its military machine as the entire rest of the world. For meaningful commentary it is necessary to view different types of disarmament as complements rather than as alternatives, and not to ignore different levels of interactivity. Although both Gorbachev and the Shultz group advocate nuclear disarmament, their geopolitical agendas are at opposite ends of the political spectrum. Gorbachev seeks a demilitarized world of equally secure sovereign states whereas the Shultz group favors stabilizing American military hegemony.

 

One of the most frequently identified binary is that between nuclear weapons and nuclear energy or power. This binary is built into the NPT regime, giving non-nuclear states reassurances in Article IV that by foregoing the bomb they will not be denied the supposed benefits of nuclear energy, and that they can look forward to a denuclearized world as the nuclear weapons states accepted a legal duty to negotiate disarmament in Article VI. And then in Article X parties to the NPT are given a right to withdraw after giving three months notice in response to security imperatives, a right that can be overridden by the geopolitical insistence on non-acquisition of the weaponry as with Iran. The reality of the nuclear world subverts such a binary in a number of ways. If a nuclear energy program is established it creates conditions that makes it easier to cross the weapons threshold by having the capability to produce enriched uranium or plutonium and the technical knowhow to produce a nuclear warhead. Also, the kind of nuclear accidents that occurred at Chernobyl and Fukushima suggest that nuclear facilities are nuclear time bombs awaiting an igniting natural disaster or human error. Such nuclear power plants are also could be a priority target for unscrupulous political extremists. These nuclear facilities pose unknown risks of devastation that could terrorize millions of people, and spread intense fear across the globe following the release of large amounts of intense radiation. Vagaries of air currents might determine whether communities become afflicted or not.

 

And then there are issues of geopolitical fallout stemming from managing the NPT regime. Instead of the NPT contributing to stability, its maintenance can provide the rationale for recourse to threats and uses of aggressive force. The 2003 invasion and occupation of Iraq was mainly justified as a NPT enforcement operation as was the imposition of damaging international sanctions on Iran coupled with frequent reiterations of the military option by American and Israeli leaders. In effect, the alleged need to prevent certain instances of unwanted proliferation is providing political actors, especially the United States, with geopolitical justifications for costly unlawful wars that displace millions and disrupt existing political arrangements. Characterizing nuclear energy as ‘peaceful’ does not seem compatible with the spirit or substance of a fully denuclearized world.

 

There is an even deeper divide that needs to be bridged conceptually and practically. Can drastic forms of demilitarization reliably occur without also addressing poverty and gross disparities of individual and collective existence? And can such socio-economic issues be resolved without a combination of life style adjustments and the dismantling of neoliberal capitalism as the ideological linchpin of economic globalization? And are any of these radical changes worth contemplating without the inclusion on the policy agenda of global warming and threats to biodiversity? And on and on.

 

What I favor, in effect, is retaining binaries to clear up basic choices that can be better understood without the complexities and subtleties of fluidity, but also moving toward a second level of interpretation that is immersed in the existential realities of the lifeworld. On this level, evaluation would be contextual and configurative, and not be pre-judged or appraised by reference to a reductive binary. From such angles, the NPT would be seen as both helpful and harmful, making its assessment change with time and context. The NPT may have, on balance, been a constructive step in 1968 when it was possible to believe that inhibiting proliferation would give nuclear disarmament time and space to establish a more favorable climate for negotiations. By way of comparison, in 2015 the world possesses overwhelming evidence suggesting the disinclination of the nuclear weapons states to consider disarmament as a serious policy option. Such an understanding may shift the balance sufficiently to make it now more constructive to repudiate, or at least challenge the NPT regime. Such an altered approach seems quite reasonable in light of the militarist and unlawful tactics of implementation employed to victimize the peoples of Iraq and Iran.

 

The question of how to think about nuclear issues is itself daunting, yet crucial. One way to go about it is the recognition of distinct discourses with some sensitivity to overlaps between binary and contextual or configurative forms of analysis as discussed above. Among the substantive discourses that seem particularly useful for the promotion of denuclearization and disarmament the following can be commended: international relations; geopolitics; international law; international morality; denuclearization; demilitarization; securitization. Obviously, the path to nuclear zero is long with many twists and turns, and where it will lead remains unknown. What is known is that the struggle for nuclear disarmament, denuclearization, and demilitarization bears heavily on the destinies of the human species, and we each have a responsibility to become a participant rather than a spectator.

The Nuclear Challenge (9): Relying on International Law: Nuclear Zero Litigation

8 Sep

 

The Nuclear Challenge (9): 70 Years After Hiroshima and Nagasaki: Nuclear Zero Litigation


 

[Prefatory Note: Two prior posts, The Nuclear Challenge (1) & (2) address indirectly the efforts of international law and lawyers to highlight the clash between international law and nuclear weapons. In this post I combine a focus on international law with a continuation of the inquiry into the role of civil society activism that was the theme of The Nuclear Challenge (8). Here I attempt a more concrete gaze at the promise and limitations of international law as a policy instrument available to governments and citizens committed to the goal of a world without nuclear weapons. The Nuclear Zero Lawsuits filed by the Republic of the Marshall Islands on April 24, 2014 provide an occasion for such an appraisal. This litigation reflects opposed counter-currents. It is both an encounter with geopolitical nuclearism and a mode of global consciousness-raising at a time of dangerous complacency about the threats posed by the continuing possession and deployment of nuclear weaponry, as well as the warping of the security mind by supposing that human security can ever be ethically and effectively safeguarded by current strategic thinking surrounding the varying roles assigned to this weaponry by the military planners and political leaders of the nine nuclear weapons states. The text below contains some revisions and corrections of the original post, mainly reflecting my attempt to take account of constructive feedback.]

 

From the time of the atomic explosions at the end of World War II there have been two contradictory sets of tendencies at work: the repudiation of the weaponry and its contemplated uses as ultimate criminality and the secret feverish refinement of the weaponry to enhance its precision, destructive effects, battlefield capabilities, and delivery systems. To date, the latter tendency has prevailed, but so far, contrary to the worst fears, avoiding uses (but not without unlawful threats to use, think tank proposals for use, and high alert international crises containing unseemly dangers of nuclear war).

 

From the beginning international law was a tool relied upon by those who challenged the legitimacy of both the atomic attacks themselves and the later developments and doctrines associated with the weaponry and its central role in the superpower rivalry at the core of the Cold War. In the immediate aftermath of the atomic attacks on Japan, there were many governmental pronouncements in the West about nuclear disarmament as an imperative of human survival, and it was widely assumed in the public that international law through the medium of a negotiated treaty containing procedures to assure compliance by all parties was the correct approach to unconditional declearization and principled repudiation of the weaponry, and this remains the consensus view of pro-disarmers at present.

 

Especially the UN General Assembly from the outset of the nuclear age was a political venue within which the criminality of the weaponry was confirmed, although gradually the impact of nuclear geopolitics moved disarmament off-stage and shifted policy attention to the supposedly more realistic goals of managing the nonproliferation regime and minimizing the spread of the weaponry. As discussed in previous posts, whatever political energy for a world without nuclear weaponry existed has been transferred over time to a variety of civil society venues. During the Cold War, Europe was the most likely military theater for a nuclear confrontation, accounting for a variety of anti-nuclear movements and initiatives. The Campaign for Nuclear Disarmament (CND) in Britain being the best known, but also the German Green Party gained anti-nuclear prominence. Since the end of the Cold War the most activist anti-nuclearism has been associated with advocacy and educational efforts that were oriented around the presumed authoritativeness of international law as reinforced by political commitment and international morality in two major respects:

                        –the unconditional unlawfulness of the weaponry with respect to threat, use, deployment, possession, and development;

                        –a reliance on a treaty-making approach to achieve nuclear disarmament by carefully calibrated stages, and subject to monitoring, verification, compliance, and dispute settlement procedures, and containing robust response mechanisms in the event of non-compliance or cheating.

In other words, both the case against all facets of nuclearism as presently operative and the framework proposed for its elimination through a process of total denuclearization are both guided and governed by international law.

 

At the same time, there are difficulties with an uncritical acceptance of this centrality of international law. First, the evidence is strong that the nuclear weapons states, above all the United States, will not override its security policies as related to nuclear weapons or other vital concerns of foreign policy out of deference to international law. This official lawlessness exists even in the face of assessments of international law enjoying the strong backing of the International Court of Justice, the world’s highest judicial body. The 1996 Advisory Opinion of the ICJ reached two conclusions that should have led to operational adjustments in the announced doctrine and political behavior of governments possessing nuclear weapons: (1) nuclear weapons were only lawfully usable, if ever, when the survival of the state was credibly at issue; and (2) a unanimous views among the judges that the nuclear powers had a good faith obligation to negotiate both an end to the arms race and a disarmament plan, and what is more, and should not be overlooked, that these governments had “an obligation..to bring to a conclusion negotiations leading to nuclear disarmament.”

 

True, this was an advisory opinion, not formally binding on the parties, leading to diverse views as to legal weight of the findings. Also it was the case that the ICJ judges were badly divided, with a slim majority (and even that resting on the President’s second casting vote to break a tie) favoring the view of conditional unlawfulness of the weaponry. Actually, the unlawfulness side was stronger than it seemed by looking only at the vote on the central finding of severely qualified legality as three of the ICJ judges were so committed to unconditional unlawfulness that they refused to support the majority conclusion, which was deliberately made consistent with a very narrowly construed deterrence doctrine. What is more notable is that the nuclear weapons states paid not the slightest operational attention to what these most distinguished judges from the world’s main legal system had determined in the only systematic international review of the arguments about legality that had gone on since the first atomic explosion in wartime (a persuasive national review was set by a Japanese court in the important Shimoda case) . This disdain for the relevance of international law was apparent even before the ICJ issued its advisory opinion, taking the form of the vigorous opposition led by the United States to the General Assembly referral of the question of legality to the World Court, insisting, in effect, that a judicial interpretation of international law was not relevant to the status of nuclear weapons. The substantive claim being made was that the U.S. Government was as it was doing all that it could reasonably do to reduce risks of nuclear war, through arms control, nonproliferation, and deployment policies. Any more foundational judgment was thus deemed inappropriate and misleading. Further, that the ICJ was a judicial body not equipped to evaluate security policy, and thus at best relying on ‘moral’ and ‘political’ considerations couched in legal language.

 

The same line of reasoning was relevant with respect to the second conclusion relating to the NPT obligation to negotiate in good faith and with an end in view. What was already being done supposedly fulfilled the Article VI obligation of the nuclear weapons states, and the Court had neither the information or the expert competence to pronounce otherwise, although the judges unanimously acted as if they did have the needed knowledge, and hence an institutional responsibility to pronounce their views as to the legality of nuclear weaponry and the requirements of compliance with the NPT.

 

I think a clear picture evolves. The nuclear weapons states accord primacy to geopolitical policies when in tension with international law, especially on crucial issues bearing on the conduct of warfare and the shaping of peacetime security policies. The geopolitical consensus accepted by all nine weapons states is to disregard or sideline the purported relevance of international law. In reaction to this consensus there is some huffing and puffing by nonnuclear governments, but no political will to mount a challenge on even such a tangential issue as non-compliance with the Article VI obligation, a clear material breach of the NPT. This combination of geopolitical nuclearism and passivity by the members of international society other than ‘the nuclear nine’ has meant that it is up to each of this latter group of states, as a matter of sovereign discretion, to determine what its policies on deployment, threat, and use will be, and whether it will agree or not to specific arms control measures. And because government security policies are treated as the most carefully guarded of all state secrets, there is no meaningful democratic participation, including even by most elected or appointed government officials, and neither knowledge nor leverage by the citizenry. Every government possessing nuclear weapons is authoritarian, with only the head of state having the non-reviewable and unaccountable authority to decide whether and when to use nuclear weaponry against which targets and with what magnitudes of destructive power.

 

Left to carry on the campaign to rid humanity of the nuclear menace are the disparate and somewhat incoherent forces of civil society as receiving varying degrees of encouragement from non-nuclear states. At times of global crisis, as occurred periodically during the Cold War, these forces from below can be aroused to sound a loud alarm that has some resonance at the political center, but mainly this kind of societal pressure demands prudence and restraint rather than compliance with international law, and gains satisfaction from tiny incremental moves taken to step back from the nuclear precipice. With the decline of anxieties about possible confrontations between major nuclear weapons states after the end of the Cold War, there is mostly evident a mainstream law emphasis on the ‘enforcement’ of the NPT directed at non-nuclear states perceived as seeking to acquire nuclear weapons.

 

Behind these developments, off to one side, are persevering efforts to insist on the unlawfulness of the weaponry and on gaining support for using the existing legal machinery of states and world society to push harder on the arguments of illegality. As has been pointed out, such efforts even if successful, are unlikely to make the steep climb up the geopolitical mountains on top of which are located the nuclear weapons arsenals. Yet that does not make the struggle to empower law with respect to nuclear weaponry without meaning or irrelevant to a survivable future. The outcome of the ICJ Advisory Opinion on legality, despite the unwelcome outcome of being defiantly deflected by the nuclear weapons states, did have the positive effects of strengthening the political will and morale of anti-nuclear activists and their organizations throughout the world, and even making non-nuclear governments more aware that the nuclear nine were not fulfilling their part of the NPT bargain.

 

One notable expression of this heightened political will was the initiation of litigation in ICJ and American federal courts by the Republic of the Marshall Islands (RMI) based on the alleged treaty failure to implement Article VI of the NPT by the nuclear weapons states that are parties to the treaty, and by customary international law for India, Pakistan, Israel, and North Korea (having withdrawn from the treaty in 2003) that are not. Such litigation was grounded in the unanimous conclusion of the ICJ that good faith obligation to negotiate a nuclear disarmament arrangement that needed to be brought to a conclusion. In the 19 years since the Advisory Opinion there have been persuasive confirmations that the nuclear nine were not at all disposed to seek nuclear disarmament, making it highly reasonable for any non-nuclear party to the NPT to mount such a legal argument based on non-compliance, and indeed material breach of treat obligations.

 

And what country, other than Japan, had a greater moral and political entitlement to do so than the Marshall Islands? RMI lacks a legal entitlement due to Compact of Free Association, and that creates a certain awkwardness in putting forward the allegations of non-compliance with the disarmament obligations of Article VI as the real motivation arising from the legacy, harm, and memories of the nuclear testing cannot be relied upon it putting forward its legal arguments. In an important respect the past matters less than the future, and the only reason to invoke RMI vicitimization as a result of the testing is to create a stronger atmosphere of receptivity in the International Court of Justice in deliberating on the subtleties of the jurisdictional controversy and to pay a deserved homage to those from RMI who paid such heavy costs due to the harm inflicted by the tests.

 

This archipelago of 1156 islands and islets occupying 750,000 square miles of ocean space in the Pacific was taken over from Japan by the United States after World War II, and formally given the status of Trust Territory of the Pacific Islands (a political entity that included several other Pacific island groups) by the United Nations in 1947. The tiny population of 68,480 lives on 29 coral atolls. In a most dramatic betrayal of trust imaginable the United States used the Marshall Islands as the principal test site without consulting the indigenous population or seeking their consent. 67 atmospheric nuclear tests were conducted between 1946 and 1958. The largest was code named Castle Bravo and had an explosive magnitude of 15 megatons, which is 1000 times the force of the bomb was dropped on Hiroshima. As a result of this nuclear testing the people of the Marshall Islands have endured a variety of severe harms, ranging from forced evacuation and displacement, radiation sickness that continues to be prevalent, and environmental damage that appears to be permanent. There is a mechanism that has allowed Marshall Islanders to gain compensation from the United States for harm that can be persuasively attributed to the nuclear tests, but at the cost of waiving the pursuit of claims elsewhere as a result of the Compact of Free Association linking RMI to the United States. This mechanism continues to operate as a consequence of the fact that the effects of exposure to high doses of radiation may now result in cancer or genetic defects for many years.

 

The legal theory behind the case rests on the legal proposition that the Marshall Islands in common with all other parties to the NPT have a legal right to insist on compliance with Article VI. This provides RMI with a basis for arguing that a legal dispute exists with the nuclear weapons states emanating from this alleged treaty breach. RMI contends also as with every state in the world that if a nuclear war occurs, it would be severely harmed as the detrimental effects would be global, impacting upon the security and wellbeing of the Marshall Islands, and indeed of all peoples living on the planet. For the case to be accepted for adjudication by the ICJ a majority of the 15 judges must agree that a ‘legal dispute’ exists between the complaining state and the states accused of being in breach. The wheels of international justice turn slowly, if at all, and it remains to be determined, and I can only hope that the legal team representing the RMI will convince enough of these judges sitting in The Hague to clear this high jurisdictional hurdle. Only then can the court proceed to hear arguments and render a judgment on the merits. This litigation before the ICJ if it goes forward will result in ‘a decision,’ which unlike the 1996 Advisory Opinion is obligatory, and can in theory be enforced by the Security Council acting under Article 94. Any enforcement attempt along these lines could be vetoed by one of the five permanent members, and almost certainly would be. The NPT gives states that are parties the legal option to bring a legal dispute before the ICJ, and every state in the world, including the four nuclear powers that are not parties to the NPT are allegedly also subject to its authority by way of customary international law, which may seem a stretch given the jurisprudential conservatism of the ICJ in the past. The legal reasoning supportive of this extension of customary international law is based on the proposition that the NPT has been so widely adhered to and so fundamental to world order that it has become binding whether or not a country is a party, that it is ‘a lawmaking treaty’ on matters vital to the wellbeing of humanity and that it is obligatory for the entire community of states.

 

This line of argument raises a complex jurisprudential issue for the ICJ as the legal reasoning goes against the earlier consensus that an attribute of national sovereignty is the option to remain outside of an international legal framework, and even to dissent from it. From the development of progressive international law, this litigation presents a great opportunity for the ICJ to align itself with the authority of international law in the area of war and peace, as well as with respect to  global security and human wellbeing in the nuclear age.

 

The companion case filed by the Marshall Islands in a Federal District Court resulted in a dismissal on February 3, 2015 resting on the highly questionable notion that the alleged damage to the Marshall Islands was too speculative to qualify as a legal interest that a court of law should adjudicate, and that the issue raised was, in any event, precluded by judicial review as a result of the Political Question Doctrine (PQD), which has led past courts to dismiss international law claims bearing on national security and foreign policy.

 

Such dismissals invoked separation of powers reasoning and regressively ignores the relevance of international law to the lawfulness of foreign policy, which occurred in stages since the initial formulations of PQD in a period when recourse to war was not covered by international law. Unfortunately, PQD has been interpreted by American courts to mean that such issues are not for the courts to decide, but are matters of foreign policy that should be resolved within the exclusive domain of the executive branch. Accordingly, the judiciary should not venture an assessment of this kind of challenge to security policy even if formulated by reference to a treaty obligation, which the U.S. Constitution explicitly avows as ‘the supreme law of the land.’ This dismissal of the RMI initiative has been appealed to the Court of Appeals of the Ninth Circuit in San Francisco for review and decision. The continuing invocation of PQD in cases of this kind is to restrict severely the prerogatives of the citizenry to ensure that their elected representatives uphold international law and accept the applicability of a global rule of law when it comes to foreign policy.

 

Whatever the eventual outcome of these parallel judicial initiatives, the cases have already had a significant civil society impact, which has been galvanized by the law suits, acting to raise public awareness of their potential importance. The Nuclear Age Peace Foundation has played a central role in this undertaking in the realm of public education. It has taken the lead in fashioning a consortium of more than 90 civil society organizations supportive of the litigation, and through its websites it has tracked the progress of the cases through the courts in a manner that is both educative and energizing. Whether this litigation can ignite the sort of transnational collaboration between governments and civil society organization in the manner that proved so successful in generating support for an anti-personnel land mines treaty and for the International Criminal Court remains to be seen. Such a positive outcome for an anti-nuclear grassroots and moderate government coalition can only be conjectured at this point, but such a result would be no more surprising than establishing the ICC over the objections of the world’s leading geopolitical actors. 

 

These law suits have also brought much wider and overdue attention to the nuclear exploitation of the Marshall Islanders, as well as admiration for the willingness of this tiny stressed and subordinated polity to put forward such a controversial legal argument, especially considering that their own security and economic viability is so linked to the good will of the United States embodied in a paternalistic ‘compact’ (Compact of Free Association with the United States) that entered into force as the trust status was superseded in 1988 when the Marshall Island became “a presidential republic in free association with the United States.” In tangible terms this has meant that the United States has accepted responsibility for the defense and protection of the Marshall Islands and for granting a range of economic subsidies, and in exchange retains use of a missile test site on Kwajalein Atoll, undoubtedly a reminder of the years when the island group was the principal site for developing new generations of nuclear weaponry.

 

It is pathetic that it has taken so many decades to mount this very limited legal challenge to nuclearism and that the challenge is being made by this small and vulnerable republic while the rest of the governments throughout the world continue to sit on their hands while nuclearism remains essentially unchallenged. To remove all doubts as to its future expectations, the U.S. Government has budgeted $1 trillion over the next thirty years to keep its superior nuclear capabilities up to date so as to ensure its continuing dominance of the outer frontiers of nuclear security strategy. We can only at this stage be thankful to the RMI for embarking on these nuclear lawsuits, and wish that the judicial bodies given this great opportunity to apply international law in a manner directly related to the wellbeing, and indeed the survival, of humanity, will respond appropriately.

 

The Nuclear Challenge: 70 Years After Hiroshima and Nagasaki (1)

18 Aug

 

[Prefatory Note: I have been preoccupied for many years with the multiple challenges posed by nuclear weapons, initially from the perspective of international law and morality, later with regard to prudence diplomacy and political survival in international relations, and in all instances, with an eye favoring deep denuclearization associated in my mind with an abiding abhorrence over the use of atomic bombs against the cities of Hiroshima and Nagasaki at the end of World War II and with the avoidance of any future use of nuclear weaponry or even threatened use. The annual observance of these terrible events encourages reflection and commentary on this darkest of legacies. Zero nuclear weapons is the unconditional goal that I affirm, achieved in a manner that creates as much public confidence as possible that the eliminations of weaponry and enriched uranium stockpiles are being faithfully carried out.

 

In this spirit, I want to call attention to a notable volume on the continuing menace posed by nuclear weapons that has just been published under the editorship of Geoffrey Darnton, bearing the title Nuclear Weapons and International Law, and available via Amazon or the bookseller Ingrams. The book contains the entire text of the judgment issued by the London Nuclear Warfare Tribunal (1985), a civil society initiative presided over by four judges, three of whom were Nobel Prize winners, the great dissenting opinion of C.G. Weeramantry in the Advisory Opinion on The Legality of Nuclear Weapons issued in 1996 by the International Court of Justice, and other documents and texts discussing the continuing imperative of nuclear disarmament. I recommend the book highly to all those who seek a broad understanding of why the citizen pilgrims of the world should unite in an urgent effort to create a climate of public awareness that pushes governments to make a genuine effort to fulfill by way of a practical disarming process the often articulated and affirmed vision of a world without nuclear weaponry. What is crucial is to shift the discourse from affirming the elimination of nuclear weaponry as an ultimate goal to the adoption of nuclear disarmament as a programmatic goal of practical politics, especially in the nine nuclear weapons states. Whether this entails a simultaneous partial disarmament of conventional weaponry by some states, especially the United States, is a further issue to consider.

 

At the invitation of Geoffrey Darnton, David Krieger, President of the Nuclear Age Foundation (NAPF), and I contributed a jointly authored foreword to the volume as well as a dialogue on nuclear weapons and international law. Krieger, a lifelong advocate of a zero nuclear world, as well as a poet whose poems are often responsive to his humane concerns, has devoted his professional life to the attainment of this goal, traveling throughout around the globe to reach diverse audiences and take part in a variety of NGO anti-nuclear efforts. The NAPF heads a coalition of civil society support for the historic Marshall Islands legal initiative currently under consideration in the International Court of Justice and in American federal courts that demands fulfillment of the nuclear disarmament provisions of the Nuclear Nonproliferation Treaty. More information about the NAPF and the Marshall Islands litigation can be found at the NAPF website. A second post will contain our foreword together with David’s poem, “A Short History Lesson: 1945” that raises in the most pointed form the moral tensions and civilizational hypocrisies that related the atomic bombing to the Nuremberg Judgment that held surviving Nazi leaders accountable for their complicity in state crime.]

 

There are many reasons why nuclear weapons have been retained and acquired by sovereign states, and it is an instructive insight into the workings of the war system at the core of state-centric world order that the first five nuclear weapons states happened to be the five states given preeminent status in the United Nations by being made permanent members of the Security Council with a right of veto. Because of the devastating potentialities of nuclear weaponry to destroy the human future there was from the start of ‘the nuclear age’ a public outcry against their retention and widespread revulsion about dropping atomic bombs on densely populated Japanese cities. This dialectic between hard power maximization and public canons of sensitivity to state-sanctioned atrocity has been evident ever since 1945. The outcome has been the retention and development of the weaponry with related efforts to limit access to the extent possible (the ethos of nonproliferation) and vague affirmations of a commitment to seek nuclear disarmament as a matter of policy and even law. This asymmetry of goals has given us the situation pertaining to the weaponry that haunts the future of humanity. It is epitomized by the geopolitical energies devoted to implementing the nonproliferation provisions of the Nuclear Nonproliferation Treaty (NPT) (1970; 190 states), as evidenced by making the feared apprehension of future acquisition a casus belli in Iraq (2003) and with respect to Iran, hopefully a second nonproliferation war being averted by the Iranian willingness to limit their nuclear program in such a way as to minimize any prospect of acquiring ‘the bomb.’ In contrast, the nuclear disarmament provision, Article VI, of the NPT is treated by the nuclear weapons states as pure window dressing, having the outward appearance of being a bargain reached between nuclear and non-nuclear weapons states, but in reality a commitment by the latter to forego the weaponry in exchange for an empty promise that has been discredited by the absence of credible efforts at implementation over a period of almost half a century. Part of this reality is the unwillingness of the non-nuclear states to raise their voices in concerted opposition to the one-sided implementation of the NPT, exhibiting their reality as states but without geopolitical leverage.

 

The liberal version of this deceptive Faustian Bargain is the claim that the NPT and nuclear disarmament are complementary to one another, and should be linked in thought and action. The statist reasoning that offers a rationale stresses the desirability of limiting the number of nuclear weapons states while efforts to achieve nuclear disarmament move forward. Among the world’s most astute commentators on nuclear weapons policy is Ramesh Thakur, who heads the Secretariat on the Asia Pacific Leadership Network for Nuclear Nonproliferation and Disarmament. In a recent article in The Japan Times [“Link Nuclear Disarmament and Nonproliferation Efforts,” Aug. 12, 2015] Thakur tells us that “there is an inalienable and symbiotic link between nuclear nonproliferation and disarmament.” He regards “[t]he key challenge..is to how to protect the political gains and security benefits of the NPT, while also working around it to impart momentum into the disarmament process leading to the total abolition of all nuclear weapons.” From this perspective, Thakur laments the failures of the nuclear weapons states to embrace this linkage in a credible manner, and worries that non-nuclear states are threatening to disrupt the benevolent NPT regime that he credits with greatly restricted the number of states possessing the bomb and has helped avoid any recourse to the weaponry over the 70 years that have elapsed since Nagasaki: “Globally, more and more countries are coming around to the conclusion that the NPT is being used cynically by the nuclear powers not to advance but to frustrate disarmament.”

 

What is surprising is that it has taken so long for the non-nuclear governments to reach this conclusion, or at least to acknowledge their disaffection in a public space. The mind game played so well by the nuclear weapons states, above all, the United States, rests on the proposition that the main threat posed by the existence and possession of the weaponry is its spread to additional states, not the weaponry itself, and certainly not the nuclear weapons states themselves. This inversion of the real priorities has shifted the policy focus away from disarmament for decades and put the spotlight on proliferation dangers where it doesn’t belong, Iran being the current preoccupation resulting from this way of thinking. The geopolitical discriminatory nature of this mind game is further revealed by the treatment of Israel, what Thakur calls “The global double standards” that are “reinforced by regional hypocrisy, in which all sides stayed studiously silent on Israel’s bombs. ”Sanctions and war threats directed at Iran, silence and denial conferred on Israel.

 

My disagreement with Thakur rests on his central assertion of linkage. In my view, the NPT regime has been posited for its own sake (operationalizing the sensible global consensus that the fewer nuclear weapons states, the better) but even more robustly, and here is the unacknowledged rub, as a long-term alternative to nuclear disarmament. In other words, while it is theoretically possible that the NPT regime could have been established as a holding operation to give time for a nuclear disarmament process to be negotiated and acted upon, it has been obvious from an early stage that the government bureaucracies of the leading nuclear powers had no intention of accepting an arrangement that would deprive themselves of the bomb. What the Faustian Bargain imposed was the false pretension that nuclear disarmament was integral to the policy agenda of the nuclear weapons states. From time to time political leaders, usually with sincerity, express their commitment to nuclear disarmament. At various times, several American presidents, including even Ronald Reagan, have affirmed their dedication to such a nuclear free future, most recently Barack Obama at his Prague speech in 2009, but after a flourish of attention, nothing happens.

 

Understanding why nothing happens is the real challenge facing the global disarmament movement. It is here that attention should be given to the ideologies of realist geopolitics that shapes the worldview of the policy elites that control the formation government policies and the supportive self-interested bureaucracies deeply entrenched in the media, think tanks, weapons labs, and private sector (the phenomenon Eisenhower flagged as ‘the military-industrial-complex’ in his Jan. 17, 1961 Farewell Address). It is these ideological and structural factors that explain why nothing happens, and is never allowed to happen. In what should have been treated as a startling confirmation of this disheartening assessment occurred when four former top government officials with impeccable hard power realist credentials decided a couple of years ago that the only way to uphold U.S. security dominance in the future was to abolish nuclear weapons, even their eminence did not prevent their hard power arguments for nuclear disarmament being shunted to one side by the nuclear weapons establishment. [See George P. Shultz, William J. Perry, Henry A. Kissinger, and Sam Nunn, “A World Free of Nuclear Weapons,” Wall Street Journal, Jan. 4, 2007; see also Shultz et al., “Deterrence in the Age of Nuclear Proliferation,”Wall Street Journal, March 7, 2011.]

 

Winning the mind game is a process that needs periodic diversions from the actuality of the global apartheid approach to nuclear weaponry that has never been seriously challenged, but is deeply antithetical to Western professed repudiation of genocidal tactics and ethos. When fears mounted of a breakdown in the bipolar standoff during the Cold War there did take place a popular mobilization of opposition to nuclearism. The anti-nuclear movement reached peaks in Europe after the scares of the Cuban Missile Crisis in 1962 and in response to some of the weapons deployment decisions by NATO. (Campaign for Nuclear Disarmament, CND). The main ground of anti-nuclear opposition was fear, although the most articulate leader of CND, E.P. Thompson expressed antipathy to nuclear weapons and doctrine on essentially ethical grounds. Thompson argued on the basis of an illuminating analysis that the culture that embraced the then prevailing policies of mutual deterrence was already an active accomplice of Satan by its announced willingness to annihilate tens of millions of innocent people should its will to survive as a state be tested by an unacceptable enemy provocation. [See “Notes on Exterminism: The Last Stage of Civilization,” New Left Review I/121 , May-June 1980] It is indicative that the governments of the nuclear weapons states, and here most notably again the United States was most adamant, never were unequivocally willing to commit themselves to ‘no first use policies’ even in relation to non-nuclear adversaries. In other words, nuclear weapons were treated as instrumental to foreign policy contingencies, and not tainted with illegitimacy based on the supposed ‘nuclear taboo.’

 

Nonproliferation was the most brilliant of all diversions from the transparent acknowledgement that, whatever rhetoric was used to the contrary, the lead states never accepted nuclear disarmament as a genuine goal of their foreign policy. Quite the contrary. All moves to manage the arms race, including reductions in the size of nuclear arsenals and arrangements about communications during times of crisis, were also designed to reduce public fears of nuclear war and thereby weaken anti-nuclear movements—first, through the message that steps were being taken to minimize risks of an unintended or accidental nuclear war, and secondly, that these steps were steps on a path leading to eventual nuclear disarmament.

 

This double coded message providing the policy rationale for arms control. Militarist contributors to this process, raising their doubts about whether risks were in fact being reduced if military options were being constrained by arms control measures. But it was the second element in the arms control approach that enjoyed tacit and sometimes explicit bipartisan support in the United States where this kind of debate mainly took place. The entire spectrum of policymaking elites agreed that the enactment of nuclear disarmament was both unrealistic and dangerous, and if a visionary president allowed his moral enthusiasm to get the better of him the backlash was swift and decisive as even Reagan found out after informally agreeing with Mikhail Gorbachev at their Reykjavik summit in 1986 on a treaty framework that was premised on getting to zero. In reaction, even liberal democrats in the political establishment chided Reagan for being naïve and insufficiently informed when he was blamed for mindlessly stepping across the invisible but rigorously enforced red line that separates managerial arms control from transformational nuclear disarmament. The lesson was learned, as the next presidential administration headed by George H.W. Bush, adopted as a cautionary internal slogan ‘no more Reykjaviks.’ The ‘No’ of the American establishment to nuclear disarmament could not be clearer, nor could the belligerent ‘Yes’ to upholding by war if necessary the NPT regime.

 

With such an understanding, my disagreement with Ramesh Thakur becomes clear and fundamental, and to make it unmistakable, I would conclude by saying the time is now ripe for the total de-linkage of nonproliferation from disarmament with respect to nuclear weapons policy. Without such a de-linkage false consciousness and confusion are unavoidable. It is time to generate populist impatience with the refusal of decades by government establishment to act on the basis of reason, ethics, and prudence: this requires the adoption of policies truly committed to the total abolition of nuclear weaponry in a period of not more than seven years.

Nuclear Free Middle East: Desirable, Necessary, and Impossible

28 Jan

Nuclear Free Middle East: Desirable, Necessary, and Impossible

            Finally, there is some argumentation in the West supportive of a nuclear free zone for the Middle East. Such thinking is still treated as politically marginal, and hardly audible above the beat of the war drums. It also tends to be defensively and pragmatically phrased as in the NY Times article by Shibley Telhami and Steven Kull (I.15..2012) with full disclosure title, “Preventing a Nuclear Iran.” The article makes a prudential argument against attacking Iran based on prospects of a damaging Iranian retaliation and the inability of an attack to destroy Iran’s nuclear program at an acceptable cost. The most that could be achieved for would be a short delay in Iran’s acquisition of weaponry, and maybe not even that. An attack seems likely to create irresistible pressure in Iran to everything possible to obtain a nuclear option with a renewed sense of urgency.

            This argument is sensibly reinforced by pointing to respected public opinion surveys that show Israeli attitudes to be less war-inclined than had been generally assumed. According to a Israeli recent poll, only 43% of Israelis favoring a military strike, while 64% favored establishing a nuclear free zone (NFZ) in the region that included Israel. In effect, then, establishing a NFZ that includes Israel would seem politically feasible, although not a course of action that would be entertained by the current Tel Aviv governmental political climate. We can conclude that the silence of Washington with respect to such an alternative approach to the dispute with Iran confirms what is widely believed, namely, that the U.S. Government adheres to the official Israeli line, and is not particularly sensitive to the wishes of the Israeli public even to the extent of serving America’s own strong national interest in finding a peaceful solution to the conflict.

            A variant of NFZ thinking has recently been attributed to Saudi Prince Turki Al-Faisal, former Saudi ambassador to the United States and once the head of Saudi intelligence. He too argues that NFZ is a better alternative than the military option, which he contends should be removed from the table. Prince Turki insists that sanctions have not altered Iran’s behavior. His proposal is more complex than simply advocating a NFZ. He would favor sanctions against Iran is there is convincing evidence that it is seeking nuclear weapons, but he also supports sanctions imposed on Israel if it does not disclose openly the full extent of its nuclear weapons arsenal.  His approach has several additional features: extending the scope of the undertaking to all weapons of mass destruction (WMD), that is, including biological and chemical weapons; establishing a nuclear security umbrella for the region by the five permanent members of the UN Security Council; and seeking a resolution of outstanding conflicts in the region in accordance with the Mecca Arab proposals of 2002 that calls for Israeli withdrawal from Palestinian territories and the Golan Heights occupied in 1967, as well as the political and commercial normalization of relations between Israel and the Arab world.

            Prince Turki warns that if such an arrangement is not soon put in place, and Iran proceeds with its nuclear program, other countries in the region, including Turkey, are likely to be drawn into an expensive and destabilizing nuclear arms race. In effect, as with Telhami and Kull, Prince Turki’s approach is designed to avoid worst case scenarios, but is framed mainly in relation to the future of the region rather than confined to the Israel/Iran confrontation.  

It concretely urges establishing such a framework with or without Israeli support at a conference of parties to the Nuclear Nonproliferation Treaty scheduled for later in the year in Finland. Israel, not a party to the NPT, has not indicated its willingness to attend the conference at this point. As long ago as the 1995 NPT Review Conference the Arab countries put forward a proposal to establish in the Middle East a WMD free zone, but it has never been acted upon at any subsequent session. Israel, which is not a member of the NPT, has consistently taken the position over the years that a complete peace involving the region must precede any prohibition directed at the possession of nuclear weapons.

            The NFZ or WMDFZ initiatives need to be seen in the setting established by the NPT regime. An initial observation involves Israel’s failure to become a party to the NPT coupled with its covert nuclear program that resulted in the acquisition of the weaponry with the complicity of the West as documented in Seymour Hersh’s 1991 The Samson Option.  Such a pattern of behavior needs to be contrasted with that of Iran, a party to the NPT that has reported to and accepted, with some friction, inspections on its territory by the Western oriented International Atomic Energy Agency. Iran has consistently denied any ambition to acquire nuclear weapons, but has insisted on its rights under Article IV of the treaty to exercise “..its inalienable right..to develop research, production and use of nuclear energy for peaceful purposes without discrimination..” Iran has been under constant threat of an attack by Israel, the target for several years of Israel’s dirty low intensity war, the target of a Congressionally funded destabilization program of the United States reinforced by a diplomacy that constantly reaffirms the relevance of the military option, and operates in a political climate that excludes consideration of Israel’s nuclear arsenal. What is surprising under these circumstances is that Iran has not freed itself from NPT obligation by exercising its option to withdraw from the treaty as it entitled to do by Article X provided only that it gives notice to other treaty parties and an explanation of its reasons for withdrawing.

            Comparing these Israeli and Iran patterns of behavior with respect to nuclear weapons, it is difficult not to conclude that it is Israel, not Iran, that should be subjected to sanctions, and pressure to participate in denuclearizing negotiations. After all, Israel acquired the weaponry secretly, has not been willing to participate in the near universal discipline to the NPT, and has engaged in aggressive wars repeatedly against its neighbors resulting in long-term occupations. It can be argued that Israel was entitled to enhance its security by remaining outside the NPT, and thus is acting within its sovereign rights. This is a coherent legalistic position, but we should all realize by now that the NPT is more a geopolitical than a legal regime, and that Iran, for instance, would be immediately subject to a punitive response if it tried to withdraw from the treaty. In other words geopolitical priorities override legal rights in the NPT setting.

         The NPT is shaped by its geopolitical nature. This is best illustrated by the utter refusal of the nuclear weapons states, above all the United States, to fulfill its obligation under Article VI “to pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.” The International Court of Justice in its 1996 Advisory Opinion on The Legality of Nuclear Weapons unanimously affirmed in its findings the legal imperative embodied in Article VI: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament, and on a treaty on general and complete disarmament in all its aspects under strict international control.” This finding that has been completely ignored by the nuclear weapons states (who had earlier made a furious failed effort to dissuade the UN General Assembly from seeking guidance from the ICJ with respect to the legal status of nuclear weapons and the obligations of the NPT). The refusal to uphold these obligations of Article VI would certainly appear to be a material breach of the treaty that authorizes any party to regard the treaty as void. Again the international discourse on nuclear weapons is so distorted that it is a rarity to encounter criticism of its discriminatory application, its double standards as between nuclear and non-nuclear states, and its geopolitical style of selective enforcement. In this regard it should be appreciated that the threat of military attack directed at Iran resembles reliance on the so-called Bush Doctrine of preventive war that had been used to justify aggression against Iraq in 2003.

            In summary, it is of utmost importance to avoid a war in the Middle East arising from the unresolved dispute about Iran’s nuclear program. One way to do this is to seek a NFZ or a WMDFZ for the entire region that includes the participation of Israel. What has given this approach a renewed credibility for the West is that it seems the only way to avoid a lose/lose war option, that it possesses some prudential appeal to change minds in Tehran and Tel Aviv, and also to engage Washington in a less destructive and self-destructive course of action. Whether this prudential appeal is sufficiently strong to overcome the iron cage of militarism that guides policy choices in Israel and the United States remains doubtful. Thinking outside the militarist box remains a forbidden activity, partly reflecting the domestic lock on the political and moral imagination of these countries by their respective military industrial media think tank complexes.

            I would conclude this commentary with three pessimistic assessments that casts a dark shadow over the regional future:

(1)  an NFZ or WMDFZ for the Middle East is necessary and desirable, but it almost certainly will not placed on the political agenda of American-led diplomacy relating to the conflict;

(2)  moves toward nuclear disarmament negotiations that have been legally mandated and would be beneficial for the world, and for the nuclear weapons states and their peoples, will not be made in the current atmosphere that blocks all serious initiatives to abolish nuclear weapons;

(3)   the drift toward a devastating attack on Iran will only be stopped by an urgent mobilization of anti-war forces in civil society, which seems unlikely given other preoccupations.