eNews, April 2017
Diplomats and civil society alike showed seriousness of purpose and a constructive spirit during the first week of negotiations on a treaty to ban nuclear weapons. LCNP and its international body IALANA made a very good showing, as reported below. Still, especially in view of deep tensions in the larger world, on the Korean peninsula and elsewhere, the question is posed whether the ban negotiations are enclosed in a bubble or represent a leading edge. The answer depends in part on how the U.S. and global publics respond to this courageous initiative.

 Also below: the Trump administration review of the longstanding U.S. goal of a nuclear-weapons-free world; the passing of Judge Weeramantry; and more.

 John Burroughs 
Executive Director

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Nuclear Ban Negotiations

Amb. Elayne White, President of Negotiating Conference.
UN Photo/Rick Bajournas.
Negotiations on a treaty to prohibit nuclear weapons, leading to their total elimination, began March 27-31 at the United Nations in New York City. Diplomats and civil society were undeterred - or perhaps liberated - by the absence of the United States and other nuclear-armed states. Almost all U.S. allies in NATO and other nuclear alliances also chose not to participate.

The aim is to produce a relatively simple treaty by the end of the second session of negotiations, from June 15 to July 7. Its focus will be on the prohibitions relating to nuclear weapons - the normative component of a world free of nuclear weapons. The understanding is that detailed provisions relating to verified elimination of nuclear arms and governance of a world free of nuclear weapons will be addressed in subsequent agreements. For more on the background and nature of the negotiations, see John Burroughs' piece for Inter Press Service," A Transformational Moment in Nuclear and International Affairs?"

The negotiations' leaders, including the Conference President, Amb. Elayne Whyte of Costa Rica, value the role of civil society and afforded ample opportunity for representatives of the International Campaign to Abolish Nuclear Weapons and other groups to participate. IALANA - the International Association of Lawyers Against Nuclear Arms, for which LCNP serves as the UN office - made several contributions.
Jacqueline Cabasso, Executive Director of Western States Legal Foundation, and a member of the LCNP Consultative Council, delivered an NGO statement on behalf of IALANA. She said in part:
"First, it is imperative that the preamble include an affirmation of the illegality of use of nuclear weapons under existing law. That is essential because the core operative prohibitions will apply only to states parties. Any implication that non-states parties are not subject to a prohibition of use must be avoided....
Second, the preamble should include an affirmation of the illegality of the threat of use of nuclear weapons under the UN Charter and international humanitarian law. This would help undermine 'nuclear deterrence' as well as specific threats that could lead to actual employment of nuclear weapons. Delegitimizing 'nuclear deterrence' is essential to achieving the abolition of nuclear weapons. So long as 'nuclear deterrence' is tolerated, good-faith negotiation of nuclear abolition is impossible, resulting in the permanent violation of the disarmament obligation."
In another NGO statement, LCNP's John Burroughs returned to the issue of threat of use of nuclear arms, arguing that a prohibition of threat must be included in the treaty's operative provisions. He stated: " We have been living with a grotesque regime of nuclear threat since World War II. It would be strange if the ban treaty did not address this reality." He also contended that the treaty's prohibitions should be quite specific, for example addressing research, design, and testing of nuclear weapons as well as their development and possession. One reason he offered is that the " treaty will set a standard for the world and for individuals. It is not only about states. It will be important for scientists and young people to see that the treaty is very clear about not engaging in any nuclear-weapons related work."
Burroughs was also a panelist in an interactive discussion concerning the treaty's preamble. Other panelists were Ray Acheson of Reaching Critical Will/WILPF, and Lou Maresca of the International Committee of the Red Cross. Over the course of a discussion more than two hours long, Burroughs was able to cover a number of additional points of concern to IALANA. They included the right to life, the disarmament obligation as clarified by the International Court of Justice - "pursue in good faith and conclude negotiations on nuclear disarmament," the role of the "dictates of public conscience" and "principles of humanity" in international law, and how to handle nuclear weapons delivery vehicles. The discussion can be accessed on a UN webcast recording.
Cabasso and Burroughs each drew on an IALANA paper, "Selected Elements of a Treaty Prohibiting Nuclear Weapons," which was submitted as an Conference NGO working paper. Contributors include John Burroughs, Roger Clark, Beverly Delong, Andrew Lichterman, Daniel Rietiker, Caroline Schlunke, Rob van Riet, Alyn Ware, Peter Weiss, and Toshinori Yamada. Another IALANA paper, on options for a possible withdrawal provision, was submitted by Daniel Rietiker, president of the Swiss IALANA affiliate. See also a working paper by Global Security Institute calling, as does IALANA, for the treaty explicitly to address deployment and threat of use of nuclear arms.

For more information, see the Reaching Critical Will page and the UN page. And join if you can the Women's March to Ban the Bomb, June 17 in New York City.
Trump Administration Backsliding?
Pursuant to presidential memorandum, the Trump administration has begun preparation of a new Nuclear Posture Review. On March 21, Christopher Ford, the National Security Council's senior director for weapons of mass destruction and counter-proliferation, spoke at the Carnegie International Nuclear Policy Conference. He stated that the review will include an assessment of " whether or not the goal of a world without nuclear weapons is in fact a realistic objective, especially in the near to medium term, in the light of current trends in the international security environment." Ford's remarks came a few days after the Trump administration announced a budget request for nuclear weapons spending essentially adopting the Obama administration plan for spending on the order of one trillion dollars over the next three decades (see Los Alamos Study Group press release).
The 2010 Nuclear Posture Review Report stated that " the long-term goal of U.S. policy is the complete elimination of nuclear weapons." While maintaining that " it is not clear when this goal can be achieved," the report concretely addressed how to pursue the goal, repeatedly casting measures such as further US-Russian reductions and research on verification as contributing to its eventual achievement. It referred positively to multilateral negotiations on nuclear disarmament, stating that " following substantial further nuclear force reductions with Russia, engage other states possessing nuclear weapons, over time, in a multilateral effort to limit, reduce, and eventually eliminate all nuclear weapons worldwide."
It is imperative that the Trump administration not backslide from existing US policy as to nuclear arms control and disarmament, for reasons of safety, morality, and law. Indeed, the policy needs to be greatly strengthened, notably with regard to multilateral negotiations on eliminating nuclear weapons and to the urgency with which such negotiations should be convened and concluded. The United States has consistently opposed such negotiations in UN forums, most recently with regard to the nuclear ban treaty process.
As to law, as Ford, a lawyer and a former US Special Representative for Nonproliferation, knows very well, the United States is legally bound by Article VI of the Nuclear Non-Proliferation Treaty to pursue negotiations in good faith on effective measures relating to nuclear disarmament. States parties to the NPT at the 2000 and 2010 Review Conferences agreed that Article VI embodies an " an unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals". And the International Court of Justice authoritatively interpreted Article VI in concluding unanimously in its 1996 Advisory Opinion that " there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects". For more on the disarmament obligation, see the LCNP amicus brief in the case brought by the Marshall Islands in US federal court.
Judge Christopher Weeramantry.
IALANA Bids Farewell to Judge Weeramantry

A giant of the law, Christopher Gregory Weeramantry, died peacefully at his home in Sri Lanka on January 5, 2017.
He was everything a lawyer could be: barrister, professor, judge. From 1967 to 1972 he served as a Justice of the Supreme Court of Ceylon (now Sri Lanka) and then as a judge of the highest tribunal on matters of international law in the world, the International Court of Justice in The Hague, from 1991 to 2000, the last three of those years as its Vice-President.
From 1972 to 1991 he taught at Monash University, Australia, and he was a frequent lecturer elsewhere, including Harvard and universities in Stellenbosch, Tokyo and Hong Kong. He was the recipient of numerous prizes and awards.
Renowned though he was as a legal scholar par excellence, he was more than that. He was an activist. The law, for him, was a guide to a better world and he was not afraid to speak and write with unacademic passion about areas of society where the law could remedy injustice or avert catastrophe. Human rights, peace, the environment, technology and nuclear weapons were such areas, the last perhaps even more than the others.
In his majestic 127 page dissent in the ICJ's nuclear weapons case, he set out to demonstrate that the court's opinion holding that threat and use of nuclear weapons are generally illegal under international law did not go far enough: he insisted that such threat and use are illegal under any circumstance whatsoever and just to make sure that everyone got his point he put these words in italics.
After the end of his term on the ICJ Judge Weeramantry - Christie to his friends - was active in IALANA, the International Association of Lawyers Against Nuclear Arms, for some years as its Co-President. To say that he will be missed in the advocacy for a nuclear weapons free world is a gross understatement. We will miss his razor sharp mind and his warm friendship.
We extend our heartfelt condolences to his wife Rosemary and his entire family.
Peter Weiss, Peter Becker, and Takeya Sasaki
Co-Presidents, IALANA
January 5, 2017
IALANA Statement on the Dismissal of the Marshall Islands' Nuclear Disarmament Cases by the International Court of Justice
In a December 2016 statement, IALANA " deeply regrets that the International Court of Justice, in the Marshall Islands' three nuclear disarmament cases, failed to demonstrate that it is, truly, the World Court." The cases, against India, Pakistan, and the United Kingdom, were dismissed by a closely divided Court in October 2016 on the ground that no legal dispute existed when the cases were filed. IALANA commented: " As the dissenting judges observed, the ruling ignores the fact that the Marshall Islands' claims were rooted in longstanding opposing views regarding nuclear weapons of the majority of the world's states, on the one side, and the states possessing nuclear arsenals, on the other."
The statement expresses the hope that " in the future the International Court of Justice will fulfill its responsibility, as the principal judicial organ of the United Nations, to bring international law to bear on fundamental issues of peace and security, issues that in the case of nuclear weapons affect the fate of the earth," and added: " The Court convincingly met that responsibility in its 1996 Advisory Opinion with its finding regarding the existence of the obligation to pursue and conclude nuclear disarmament negotiations."
The statement also " salutes the courage and determination, rooted in tragic experience, and the good faith as well, of the Marshall Islands and its then foreign minister Tony deBrum in bringing the cases. Simply doing so raised to world attention the failure of the nuclear powers to fulfill the obligation to negotiate and reach the global elimination of nuclear weapons. The Marshall Islands' pleadings are also a rich resource for the development of political and legal arguments for disarmament."
For more, please see the full statement.
Recommended Reading:
Disarmament under International Law
In this new book published by McGill-Queen's University Press, John Kierulf, a retired Danish diplomat and a member of IALANA, examines how disarmament, arms control, and non-proliferation of both conventional weapons and weapons of mass destruction are regulated in existing treaties and conventions.

From his perspective as a for­mer disarmament negotiator, Kierulf explains the United Nations' disarmament machinery and procedures, and de­scribes the UN's essential role in promoting disarmament. Underlining the continued and serious threat posed by nu­clear weapons, Kierulf appeals for increased and effective international efforts to reduce their number and ultimately eliminate them.

The book can be ordered online at www.mqup.ca.