The debate over the use of nuclear weapons has existed for a long time. Despite witnessing their effects in Hiroshima and Nagasaki, countries continue to attempt to protect their right to retain and use nuclear weapons. A great deal of research has been done to highlight the catastrophic impacts of nuclear weapons on humans, animals, plants, and other natural features like water bodies, soil, etc. The known effects of nuclear weapons involve causing death, blunt trauma, thermal radiation, firestorms, radioactive fallout to neighbouring territories (that can cause additional casualties and destruction), radiation sickness, cancer, and genetic diseases.1Louis Maresca and Eleanor Mitchell, “The Human Cost and Legal Consequences of Nuclear Weapons under International Humanitarian Law”, International Review of the Red Cross, 2015. In the case of animals and plants, nuclear weapons can destroy marine and land life by causing contamination through nuclear radiation. Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (“NPT”) have expressed their concerns about the “catastrophic humanitarian consequences” of nuclear weapons.22010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, Vol. 1, UN Doc. NPT/CONF.2010/50, 2010, p. 19. However, it is important to note that there is little focus on the environmental impact of nuclear weapons.
This lack of focus on the environment is evident in the 1996 Advisory Opinion of the International Court of Justice (“ICJ”), which focuses more on the legal rights of the States to use nuclear weapons during armed conflict3Legality of the Threat or Use of Nuclear Weapon, Advisory Opinion International Court of Justice, Para 52 and 74, 1996. than the moral or humanitarian consequences of their use, despite recognising its “potential to destroy all civilization and the entire ecosystem of the planet”.4Ibid (3), Para 35. This indicates that the primary focus of the Court was not on environmental protection. The Court did not provide a conclusive statement on the legality of nuclear weapons, causing the opinion to be deemed “unambitious”.5Erick V. Koppe, “Nuclear Weapon Under International Law”, Ch 10: Use of Nuclear Weapons and Protection of Environment During International Armed Conflict”, Pg 248, Cambridge University Press, 2015. This article will consider the environmental harms of nuclear weapons on land and underwater. It will also look at international law and its obligations in the context of nuclear weapons.
Environmental Effects of Nuclear Weapons
Starting the discussion with the 1996 Advisory Opinion, the ICJ acknowledged the detrimental effects of nuclear weapons stating that they can destroy whole civilizations and ecosystems. Radiation released from a nuclear explosion could cause casualties for the environment, impacting “agriculture, natural resources, and demography over a very wide area”, while ionising radiation has the potential to “damage the future environment, food and marine ecosystem, and to cause genetic defects and illnesses in future generations.”6Ibid (3), Para 35.
One of the biggest concerns that accompanies the use of nuclear weapons is the acceleration of climate change, as the weapons can cause global warming.7International Campaign to Abolish Nuclear Weapons , “What Happens If Nuclear Weapons Are Used?”. It can be accessed at: https://www.icanw.org/catastrophic_harm?gclid=CjwKCAjwq-WgBhBMEiwAzKSH6L5WRgANN0x_6b7bPBEqkxpoXm-lDNYZfz2RRz1npUzYaEjoKtnDgRoCzo8QAvD_BwE#:~:text=3%20Nuclear%20weapons%20produce%20ionizing,including%20cancer%20and%20genetic%20damage. According to the International Campaign Against Nuclear Weapons (“ICAN”), the firestorm, dust, and smoke emitted from the explosion can block sunlight, causing an abrupt change in the temperature and rainfall. It can lead to decreased agricultural production and fish stock, which means that caloric production can significantly decrease, resulting in famines. Some extreme effects of the abrupt change include “ocean acidification and damage to the ozone layer”.8International Campaign to Abolish Nuclear Weapons , “Climate Change, Famine, and Nuclear Weapon. It can be accessed at: https://www.icanw.org/climate_disruption_and_famine. See also: Alok Jha, “Climate Threats From Nuclear Bombs”, The Guardian, 2006. It can be accessed at: https://www.theguardian.com/environment/2006/dec/12/nuclearindustry.climatechange. See also: Ira Helfand, “Nuclear Famine: A Billion People At Risk”, Physicians for the Prevention of Nuclear War and Physicians for Social Responsibility, International Press, Somerville, MA, 2012.
Nuclear weapons impact our environment long before they are used in warfare. Testing and handling nuclear weapons also results in the destruction of the environment. For example, in Mururoa and Fangataufa, the French Polynesia of South Pacific territory, around 200 underground nuclear tests were conducted between 1966 and 1996.9Matthew B. Bolton and Elizabeth Minor, “Addressing the Ongoing Humanitarian and Environmental Consequences of Nuclear Weapons: An Introductory Review”, Global Policy Volume 12, Issue 1, Pg. 87-88, 2021. These tests led to a fallout of nuclear waste in the surrounding areas, causing landslides and radioactive leak into the ocean. Even after almost 50 years, the soil of that territory is still contaminated. It has weakened the atoll,10Defined as: “A coral island consisting of reef surrounding a lagoon”, Merriam Webster. It can be accessed at: https://www.merriam-webster.com/dictionary/atoll. which may collapse, resulting in a tsunami.11International Campaign to Abolish Nuclear Weapons, “The Environmental Legacy of Nuclear Weapon Production: Five Case Studies”, 2021. It can be accessed at: https://www.icanw.org/the_environmental_legacy_of_nuclear_production_five_case_studies[/mfn] Similarly, radioactive nuclear waste is buried under a concrete dome in the Marshall Islands which is under pressure from rising sea levels. If the dome cracks, nuclear waste will come into contact with the ocean, contaminating the entire water body and causing the destruction of marine life.11Ibid (10), Pg. 87-91. The radiation will also affect humans living nearby who use that water for their daily needs.
In 1948 and 1958, the US dropped 43 nuclear bombs in Enewetak Atoll after evacuating people from their homes. During the clean-up of the debris and nuclear waste, six men died. After which the US government issued a report, stating: “It took 4,000 U.S. servicemen three years to scoop up 33 Olympic-sized swimming pools’ worth of irradiated soil and two Olympic swimming pools’ worth of contaminated debris from islands across the atoll.”12The Radioactive Clean-up of Enetwak Atoll, Defence Nuclear Agency. Washington D.C., 1981. It can be accessed at: https://www.dtra.mil/Portals/61/Documents/NTPR/1981-DNA_The%20Radiological%20Cleanup%20of%20Enewetak%20Atoll-web.pdf[/mfn] In 1980, the Enewetak people were allowed to return to some parts of the Island, however, with strict restrictions on the usage of certain areas of the land. The US then had to give $326 million along with $92 million in “environmental remediation” under a judgment passed by the Nuclear Claims Tribunal.12Ibid (12). This is just one example amongst many, including Maralinga, Australia; Mayak, Russia; Sellafield, UK; Mount Mantap; Semi region of Kazakhstan; and so on.13Ibid (10), Pg. 84-91. See also: Remus Pravalie, “Nuclear Weapons Test and Environmental Consequences: A Global Perspective”, National Library of Medicine, 2014. It can be accessed at: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4165831/. See also: Ibid (8). In all these cases, the waste produced from nuclear testing caused water and vegetation contamination resulting in decreased agricultural production and damage to marine life.
The effects of nuclear weapons are not limited to mere contamination. It is known that the radiation sensitivity of all mammals is almost the same. In an area where humans are killed because of nuclear radiation, “the same lethality for animals would be expected”. If large herds or farm animals are affected, cleaning up their bodies can create sanitation issues. As for plants, they have a range of sensitivity towards radiation, but for more sensitive plants, nuclear radiation can cause deforestation – wiping out all plants. The incident of Chernobyl is one example. Chernobyl was surrounded by a pine forest, a species of trees highly sensitive to radiation, which was destroyed by radiation.14“Effects of Nuclear-Earth Penetrators and Other Weapons”, Chapter 6: Human and Environmental Effects, National Academic Press, Washington, 2005. It can be accessed at: https://nap.nationalacademies.org/read/11282/chapter/8
The animals and plants that come under the effect of radiation and die as a result become part of the soil as fertiliser. Their radiation contamination then affects the soil and the crops cultivated on affected soil leading to food poisoning. This took place in Kazakhstan where the exposure of nuclear waste caused vegetation contamination. Apart from that, underground testing or use of nuclear weapons can lead to earthquakes that can destroy natural features.15Ibid (10).
International Humanitarian Law and Environmental Protection
Articles 35(3) and 55 of Additional Protocol I to the Geneva Conventions, 1977 (“AP-I”)16International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3. It can be accessed at: https://www.refworld.org/docid/3ae6b36b4.html provide principles related to environmental protection during an armed conflict. Art. 35(3) prohibits the use of weapons that can cause “widespread, long-term and severe damage to the natural environment”. Here the natural environment is understood to include both the air and marine environment. Art. 55 states the same with the additional prohibition of “use of methods or means of warfare intended or may be expected to cause such damage.”
If we apply these Articles to the use of nuclear weapons, it can be argued that nuclear weapons satisfy the “widespread, long-term and severe” test keeping in mind the long history of damage caused by nuclear weapons testing. Art 35(3) of AP-I restricts the use of weapons that can cause “long-term” damage to the environment. A great case study to look at is that of Mururoa and Fangataufa, where after almost 50 years, the soil is still contaminated. Not only that, but there had also been restrictions on locals inhabiting certain areas because of the effects of radiation. Apart from that, the US had to spend millions of dollars on the clean-up project in the Mururoa and Fangataufa territories.17Ibid (5). This “long-term” contamination has been created due to nuclear testing. One can only imagine the consequences if nuclear weapons are used in warfare. The immense data available on all the testing sites that were used for nuclear testing in the 1900s and the environmental impacts they continue to have18Ibid (10). provide sufficient evidence to conclude that the use of nuclear weapons will lead to “transboundary” consequences, satisfying the “widespread” requirement.
Similarly, the International Review of Red Cross (“ICRC”) acknowledges that nuclear weapons have “the capacity for incredible destructive power and severe and widespread consequences” which “would not be constrained by national borders and could have regional and even global consequences”19Ibid (1) Pg. 624-626. However, one can argue that the cumulative language used in Art 35 and 55 i.e., “widespread, long-term, and severe” has not been interpreted by either the ICJ or in other laws and treaties to include nuclear weapons. But this lack of interpretation should not be made grounds for not using these Articles to prohibit the use of nuclear weapons. Instead, they can be looked at through their ordinary meaning i.e., in the contemporary perspective of environmental damage and international environmental laws.20See Justice Stewart’s observation in relation to pornography and the first amendment. Rather than attempting to define pornography, he stated: “I know it when I see it.” Justice Stewart, concurring, in US Supreme Court, Jacobellis v. Ohio , 378 US 184 (1964).
Customary international law also provides protection to the environment during armed conflict, including through Rules 43, 44, and 45 of the Customary International Humanitarian Law Study, 2005 (“ICRC”).21International Committee of the Red Cross (ICRC), Customary International Humanitarian Law , 2005, Volume I: Rules, available at: https://www.refworld.org/docid/5305e3de4.html These Rules establish the responsibility of States to protect the environment during armed conflict. Rule 43 creates an exception for “military objective” but with the limitation that the harm to the environment should not exceed the military advantage. This is, however, a very subjective test with no set criteria for defining military objectives. It varies on a case-to-case basis. Where the military objective is considered highly valuable, there the attack, even if collateral may be justified.22M. Bothe , C. Bruch , J. Diamond and D. Jensen , “International Law Protecting the Environment During Armed Conflict: Gaps and Opportunities”, International Review of the Red Cross 92 ( 2010), 569–92 , at 576. Rule 44 established a general duty of care towards the environment. It is similar to the duty of care that a private party ought to have towards individuals in tort cases.23See M. A. Fitzmaurice , “The Corfu Channel Case and the Development of International Law” in N. Ando et al. (eds.), Liber Amicorum Judge Shigeru Oda (The Hague: Kluwer Law International, 2002), pp. 132 , 137–9 Rule 44 is not weapon specific, therefore, applying it to nuclear weapons will be significant. Rule 45 prohibits widespread damage to the environment providing the responsibility that “due regard to the protection and preservation of the natural environment” must be given.24Rule 45, Customary Rules of International Committee of Red Cross, 2005 These rules have the potential to prohibit the use of nuclear weapons if the international community and international courts take heed of them.
International Environmental Law and Nuclear Weapons
One significant international declaration on environmental law is the Stockholm Declaration, adopted at the United Nations Conference on the Human Environment in 1972. It was attended by 114 countries where the human impact on the environment was acknowledged. The Stockholm Declaration devised 26 principles revolving around the protection of the environment, biodiversity, and ecosystem by regulating the carbon footprint of humans.25Arpit Panda, “Stockholm Conference in Environmental Law: An Insight”, Law Insider, 2022. It can be accessed at: https://www.lawinsider.in/columns/stockholm-conference-in-environmental-law-an-insight#:~:text=The%20Stockholm%20Declaration%20outlined%2026,acknowledged%20on%20a%20worldwide%20basis The significance of this Declaration is that it talks about the elimination of nuclear weapons. Principle 26 of the Declaration is reproduced below:
“Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons.”26Principle 26, Stockholm Declaration, United Nations Environmental Program, 1972. It can be accessed at: https://wedocs.unep.org/bitstream/handle/20.500.11822/29567/ELGP1StockD.pdf
This Declaration, unlike others, openly admits the “mass destructive” nature of nuclear weapons. By mentioning the principles on the protection of natural resources, safeguarding of wildlife, and prevention of sea pollution, this Declaration acknowledges the need to protect the environment. It promotes the idea of banning nuclear weapons altogether because of their impact on the environment.
Arguably a ban has been “crystalized” in customary international law on the atmospheric testing of nuclear weapons. However, international law has yet to deal with the “acquisition, transfer, production, development, and stockpiling” of Nuclear Weapons. The Antarctic Treaty 1959, however, bans this “life cycle” of nuclear weapons in Antarctica.27“Nuclear Weapon Under International Law: An Overview”, International Law and Policy Institute, Pg. 14, 2014. It can be accessed at: https://www.geneva-academy.ch/joomlatools-files/docman-files/Nuclear%20Weapons%20Under%20International%20Law.pdf Even though multilateral treaties ban these activities, the nine states that own nuclear weapons are not bound by those treaties by virtue of not being part of the Non-Proliferation Treaty. At the same time, the testing of nuclear weapons has not been put in the same category as the use of nuclear weapons. Therefore, there is no direct ban on underground testing.28Ibid (32), Pg. 13-14 We have, however, seen from the examples shared above in this paper that nuclear testing has the potential to destroy and contaminate the environment at a large scale.
The effects of nuclear weapons on the environment are not trivial. Extensive research on their impacts, past precedent, and international law provides evidence that the impacts of nuclear weapons on the environment are significant. Their effects are everlasting, as seen from the example of Hiroshima and Nagasaki. Moreover, the data gathered from various testing sites show that these territories are still affected by the radiation and contamination. There is a need to look at this issue in detail while incorporating international environmental law principles to provide a conclusive judgement on the subject. Otherwise, we will end up destroying our habitat trying to secure our right to have a weapon of mass destruction.
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Maryam Asad is a fifth year law student at LUMS. She served as an editor at LUMS Law Journal from 2022-23, and has also worked in areas related to Islamic law, constitutional law, human rights, corporate finance, and AI and law.