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Comment of the Western States Legal Foundation on the scope of the proposed
Environmental Impact Statement for the Continued Operation of the Department of Energy/National Nuclear Security Administration Nevada Test Site
and Off-Site Locations in the State of Nevada
Submitted by Jacqueline Cabasso, executive director
and Andrew Lichterman, senior research analyst
October 16, 2009
Introduction
Western States Legal Foundation (WSLF) is a non-profit, public interest peace and environmental organization which, since 1982, has participated in administrative proceedings, litigation and grassroots advocacy to promote the end of the nuclear race and global abolition of nuclear weapons and cleanup of federal facilities engaged in nuclear weapons research, development and production.
Since 1994, WSLF has participated as an accredited Non-Governmental Organization (NGO) observer in every Preparatory Committee meeting and Review Conference of the Nuclear Non-Proliferation Treaty (NPT) in Geneva, New York and Vienna. In 1994, WSLF participated as an accredited NGO observer in Comprehensive Test Ban Treaty (CTBT) negotiations in Geneva, and in 2001 was an accredited NGO observer at the CTBT Entry-Into-Force Conference at United Nations headquarters in New York.
Summary
The Environmental Impact Statement (EIS) for the Continued Operation of the Nevada Test Site (NTS) should include an alternative based on closure of the NTS as a matter of good faith, in connection with the anticipated Senate ratification of the Comprehensive Test Ban Treaty (CTBT), and in consultation with the Western Shoshone National Council. This analysis should separately examine alternatives for all nonnuclear activities currently conducted at the NTS and off-site locations in Nevada.
Background and Rationale
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. -- Article VI, Treaty on the Non-Proliferation of Nuclear Weapons,
Signed at Washington, London, and Moscow July 1, 1968. Entered into force March 5, 1970.
Ending nuclear testing has been seen as a key stepping stone towards the elimination of nuclear weapons virtually since efforts to control nuclear weapons began. The United States and the other parties to the 1963 Limited Test Ban Treaty, which banned all but underground nuclear test explosions, proclaimed as their “principal aim” the “speediest possible achievement of an agreement on general and complete disarmament under strict international control in accordance with the objectives of the United Nations which would put an end to the armaments race and eliminate the incentive to the production and testing of all kinds of weapons, including nuclear
weapons.” The Preamble to the Non-Proliferation Treaty (NPT) recalled the intent expressed in the Limited Test Ban Treaty “to seek to achieve the discontinuance of all test explosions of nuclear weapons for all time,” in the context of a broader effort “to facilitate the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the
elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a Treaty on general and complete disarmament. In 1995, the NPT parties reaffirmed their commitment to the Treaty and set out further steps for implementing its provisions in a set of “Principles and Objectives for Nuclear Non-Proliferation and Disarmament.” The “Principles
and Objectives” document reaffirmed the nuclear weapon states’ NPT Article VI obligation and listed the CTBT first among measures “important in the full realization and effective implementation of Article VI.” The United States signed the CTBT in 1996.
In 1999, the United States Senate voted not to approve ratification of the CTBT. The Clinton administration and its allies, rather than trying to rally disarmament supporters as a counterweight to the powerful interests represented by the nuclear weapons complex, had portrayed the CTBT as a means to preserve the decisive technological advantage in nuclear weaponry held by the U.S., and as a way to prevent non-nuclear weapon states from acquiring nuclear weapons, rather than as a step on the road to disarmament. This view was reaffirmed by Secretary of State Madeline Albright even after it had proved a losing strategy in the CTBT ratification campaign: “We simply do not need to test nuclear weapons to protect our security. On the other hand, would-be proliferators and modernizers must test if they are to develop the kind of advanced nuclear designs that are most threatening. Thus, the CTBT would go far to lock in a technological status quo that is highly favorable to us.”
In 2000, the NPT parties, including the United States, reiterated their commitment to disarmament, agreeing to a set of “practical steps for the systematic and progressive efforts to implement article VI of the Treaty...” These steps included, once again, ratification of the CTBT, recognition of a “principle of irreversibility” to apply to nuclear disarmament, and “an
unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament, to which all States parties are committed under article VI.” Since that time, the U.S. has repudiated the CTBT, ramped up efforts to increase nuclear test readiness, and continued its ambitious program to refurbish its nuclear
complex. The goal is to maintain nuclear supremacy in all conceivable circumstances by building facilities able to mass produce nuclear weapons should the “need” some day arise, while at the same time being able to design build new kinds of nuclear weapons quickly:
“If the nation is going to maintain a nuclear deterrent, the capabilities that support this deterrent should be second to none. We must care for the stockpile whether we possess one weapon or thousands. . . improvements to our aging infrastructure will be required whether or not we decide to pursue an improved warhead design. . . . The transition to a more modern stockpile will re-invigorate the design and engineering technology base – especially its human resources – and enable a more responsive and cost-effective infrastructure. A revitalized infrastructure will facilitate a reduction of the large inventory of weapons we maintain today as a hedge against strategic uncertainty and weapon reliability concerns, and will allow us to sustain our nuclear capability and expertise throughout the 21st Century.”
The Obama Administration has made clear its intent to resubmit the CTBT to the Senate for ratification. In his April 5, 2009 Prague speech, President Obama stated, “clearly and with conviction America’s commitment to seek the peace and security of a world without nuclear weapons,” courageously recognizing that, “[A]s the only nuclear power to have used a nuclear weapon, the United States has a moral responsibility to act.” And he specifically pledged
“To achieve a global ban on nuclear testing, my administration will immediately and aggressively pursue U.S. ratification of the Comprehensive Test Ban Treaty.”
This intention was reflected in United Nations Security Council Resolution 1887, introduced by the United States and unanimously adopted on September 24, 2009, which
“Calls upon all States to refrain from conducting a nuclear test explosion and to sign and ratify the Comprehensive Nuclear Test Ban Treaty (CTBT), thereby bringing the treaty into force at an early date.”
The Preamble to the Comprehensive Test Ban Treaty expresses the intent of the treaty to cut off the development and modernization of nuclear weapons as a meaningful disarmament measure, recognizing “that the cessation of all nuclear weapon test explosions and all other nuclear
explosions, by constraining the development and qualitative improvement of nuclear weapons and ending the development of advanced new types of nuclear weapons, constitutes an effective measure of nuclear disarmament and non-proliferation in all its aspects,” and “that an end to all such nuclear explosions will thus constitute a meaningful step in the realization of a
systematic process to achieve nuclear disarmament...”
However, the nuclear weapons laboratory testing and simulation technologies that comprise the U.S. “Stockpile Stewardship” program, and similar though far less ambitious programs in other nuclear weapons states, makes a Comprehensive Test Ban simultaneously less “comprehensive” and more necessary. A ban on nuclear explosive testing can limit, but not stop, advanced nuclear weapons development. It has little effect on existing arsenals, which can be maintained at high levels of readiness without explosive testing using technology now decades old.
The U.S. can upgrade existing nuclear weapons while remaining within the parameters of well understood concepts and designs. It also is possible that substantial progress can be made towards more extensive design innovations, which could increase pressure for a resumption of testing. This would be of particular concern in a crisis, whether the consequence of real events like the 9-11 attacks or a determined and successful propaganda campaign like that
preceding the 2003 Iraq invasion. A CTBT that has entered into force, which requires
ratification by the United States, among others, could provide something of a “firebreak,” making the decision to resume testing in order to deploy new weapons more consequential.
The CTBT interpreted literally may not ban expansive laboratory testing programs and subcritical tests. But the commitment made by the NWS at the 1995 NPT Review and Extension Conference to achieve a CTBT as part of a program for the “effective implementation of Article VI,” embodied in a provision which further stated that “[p]ending the entry into force of a Comprehensive Test-Ban Treaty, the nuclear-weapon States should exercise utmost restraint;” must be viewed in a different light. It clearly is bound to a broader interpretive context in which a CTBT is envisioned as a meaningful step along the road to nuclear disarmament, rather than an instrument for the permanent preservation of a two-tier world, in which a few states claim the right not only to possess unlimited weapons of mass destruction, but to destroy any state that dares to develop such weapons themselves.
Further, any continuing nuclear weapons activities associated with Senate ratification of the CTBT will be carefully scrutinized by the remaining states whose ratification is required for the treaty’s entry-into-force. Maintaining the NTS in a state of readiness to conduct full-scale underground tests, perpetuating subcritical tests, research, development and testing of nuclear weapons components and delivery systems at the Tonopah Test Range, nuclear weapons-related experiments and activities at the Big Explosive Experimental Facility (BEEF), the Joint Actinide Shock Physics Experimental Research (JASPER) facility, and the Device Assembly Facility (DAF), and new commitments to modernizing the nuclear weapons research and production infrastructure will be rightly viewed as anti-disarmament measures, inconsistent with the purpose and intent of the CTBT, and will likely discourage some of the final holdout states from ratifying the treaty, thus making its entry-into-force impossible.
Before nuclear arms racing can be reversed, it must be stopped. Real progress towards disarmament requires concrete steps by the nuclear weapons states to first control and then eliminate nuclear weapons research, development, and testing in all its forms. The United States, with nuclear weapons research programs that dwarf all others bears the greatest responsibility here to take immediate, substantial, and unambiguous action. Because of their role not only in providing information useful for nuclear weapons design but in exercising capabilities needed to rapidly resume a full-scale nuclear explosive testing program, one logical starting place would be the termination of subcritical tests. Cessation of subcritical tests would both be a visible, concrete step towards controlling laboratory nuclear weapons research and would facilitate complete closure of all remaining underground nuclear test sites. In addition to simplifying verification issues, closure of the Nevada Test Site would further broaden the “firebreak” between simulation-based prototyping of some types of radically new nuclear weapons concepts and their
deployment.
International Law and Good Faith
In its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice (ICJ), the judicial branch of the United Nations and the highest and most authoritative court in the world on questions of international law, provided an unambiguous interpretation of the NPT Article VI disarmament obligation, unanimously finding that states are obligated to “pursue in good faith and bring to a conclusion negotiations on nuclear disarmament in all its aspects under strict and effective international control.”
Article 26 of the Vienna Convention on the Law of Treaties states: “Every treaty in force is binding upon the parties to it and must be performed by them in good faith.” At a conference held in Geneva during the 2008 NPT Preparatory Committee meeting, Judge Mohammed Bedjaoui, President of the ICJ when it gave its 1996 opinion on nuclear weapons, spoke publicly for the first time about the opinion. “Good faith,” he declared, “is a fundamental principle of international law, without which all international law would collapse.”
Judge Bedjaoui explained that general legal principles governing good faith negotiation as applied in the NPT context include: sustained upkeep of the negotiation; awareness of the interests of the other party; and a persevering quest for an acceptable compromise, with a willingness to contemplate modification of one’s own position; refraining from acts incompatible with the object and purpose of the NPT; proscription of every initiative the effect of which would be to render impossible the conclusion of the contemplated disarmament treaty; and respect for the integrity of the NPT; no selectivity regarding which provisions to implement.
In 2006 remarks commemorating the tenth anniversary of the ICJ’s opinion, Judge Christopher Weeramantry, Vice-President of the Court at the time of the opinion, explained how good faith requires that meaningful steps be taken towards the desired goal, with no backtracking, and within a reasonable time span. In point which underscores the issues raised in this comment, he stressed:
“Everyone must refrain from taking steps that militate against the goal. For example, one cannot say that one’s goal is disarmament and then take steps to increase one’s armaments in a somewhat subtle but different way.”
Referring to the ICJ’s affirmation of the disarmament obligation, he declared:
“[The] ultimate authority on international law ... has unanimously placed this verdict upon all the nuclear powers of the world and we have to ask whether all these ingredients of good faith are being honored. If not, why are they not being honored and in what way are they failing in their responsibility?”
The elimination of nuclear weapons, still the gravest threat to humanity and growing once more as we enter a new century, will for a start require a clear commitment by the most powerful states, and the United States most of all, not only to nuclear disarmament but to a more peaceful world. The apparent determination of the most powerful countries to dominate the world by force of arms has eroded the international order, and nuclear weapons are at the center of a growing global crisis of war and violence.
The possibility that countries may obtain nuclear weapons has in recent years been put forward as a principal rationale for a continuing U.S. high-tech and nuclear weapons buildup, and for preventive warfare without regard for the existing framework of international law. At the same time, the insistence by the existing nuclear weapons states, which also possess the most powerful conventional military forces, that nuclear weapons remain essential to their “security,” continues to undercut the fragile nonproliferation regime. As the ICJ noted in its 1996 opinion,
In the long run, international law, and with it the stability of the international order
which it is intended to govern, are bound to suffer from the continuing difference of
views with regard to the legal status of weapons as deadly was nuclear weapons.
Nuclear weapons, and the brutal ultimate power politics that their possession simultaneously makes possible and, to those in their thrall, seem to make necessary, themselves continue to escape all efforts at their legal regulation, and in the end render efforts to regulate lesser uses of force largely futile as well. And as the World Court then concluded,
It is consequently important to put an end to this state of affairs: the long-promised
complete nuclear disarmament appears to be the most appropriate means of
achieving that result.
Under the U.S. Constitution, treaties are the supreme law of the land. This applies equally to treaties with foreign nations and treaties with first nations. In discussing international law and good faith, we would be remiss if we did not address the central role of the Western Shoshone National Council in determining the future of the NTS. The Western Shoshone people never granted the U.S. government the right to establish a nuclear test site on their land, and have never accepted U.S. attempts to pay them off. As Raymond Yowell, Chief of the Western Shoshone National Council explained in 1992:
“No Developed nation tests its nuclear weapons on its own lands. All nuclear
testing is done on indigenous people’s lands... The Western Shoshone are the rightful
custodians of this land, affirmed by the Treaty of Ruby Valley in 1863. With over 900
bombs exploded, they are the most bombed nation in the world.
In a statement issued by the Western Shoshone National Council in 1998, Chief Yowell wrote: “With the Treaty of 1863 being ratified by the Western Shoshone and the United States, there are only two ways that land can be acquired by either nation. One is by a declared war, and the second is by a treaty of land cession. Neither of these events has occurred.”
More recently, Western Shoshone claims were given new legitimacy by a 2006 decision of the United Nations Committee on the Elimination of Racial Discrimination (CERD). In its decision, taken under an “early warning and urgent action procedure,” the Committee criticized numerous apparent civil and human rights violations by the U.S. government against the Western Shoshone Nation. Among other issues relevant to this comment, the Committee noted concerns about:
The reported resumption of underground nuclear testing on Western Shoshone
ancestral lands;
The conduct and / or planning of all such activities without consultation with
and despite protests of the Western Shoshone peoples;
CERD made a number of relevant recommendations, urging the United States government “to pay particular attention to the right to health and cultural rights of the Western Shoshone people, which may be infringed upon by activities threatening their environment and/or disregarding the spiritual and cultural significance they give to their ancestral lands.” CERD also urged the U.S. “to
take immediate action to initiate a dialogue with the representatives of the Western Shoshone peoples in order to find a solution acceptable to them” and drew to the attention of the U.S. government its general recommendation “on the rights of indigenous peoples, in particular their right to own, develop, control and use their communal lands, territories and resources.”
Conclusion
The Environmental Impact Statement (EIS) for the Continued Operation of the Nevada Test Site (NTS) should include an alternative based on closure of the NTS as a matter of good faith, in connection with the anticipated Senate ratification of the Comprehensive Test Ban Treaty (CTBT), and in consultation with the Western Shoshone National Council. This analysis should separately examine alternatives for all nonnuclear activities currently conducted at the NTS and off-site locations in Nevada.
Notes
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