Nuclear-weapon (1)

University of San Agustin College of Law Natural Law II (Human Rights) Section 1D IN RE: PETITION FOR SPL. PROC. NO. 18-01 THE BANNING OF NUCLEAR WEAPONS FOR : NUCLEAR WEAPONS VIOLATE THE RIGHT TO SECURITY MA. APRILLE A. QUEMADO Petitioner. X-------------------------------------------X POSITION PAPER PETITIONER, through the undersigned counsel and to this Honorable Office, most respectfully submits this Position Paper. PREFATORY STATEMENT In 1987, the newly restored Philippine democracy adopted a new constitution with a startling provision that reads: “The Philippines, consistent with the national interest, adopts and pursues a policy of freedom from nuclear weapons in its territory.”1 One of the principles of our Constitution is the adoption of nuclear-free territory to insure the well-being and security of the people. Freedom from nuclear weapon should be the utmost concern of the State for it violates the right to security. Unfortunately, nowadays this exhortation finds application more in its violation than in its observance especially with the proliferation of nuclear weapons. This call for freedom from nuclear weapons is brought to fore once again in this Petition. DISCUSSION In the past, city-states would build walls to protect the population. As technologies advanced, nations rushed to develop deadlier weapons than their enemies. Those technologies have now developed into nuclear weapons. A nuclear weapon derives its devastating force from a nuclear fission reaction so even a relatively small bomb has potential to wipe out an entire city. In human history, nuclear weapons have only been used twice, both during the closing days of World War II. The first one was dropped on August 6, 1945 on Hiroshima and the second bomb was dropped three days later, on Nagasaki. It was in these events that people fully understood the strength and power of the explosive weapon. They definitely got everyone thinking about their deactivation. There are still about 26,000 nuclear weapons in the world. 2 Just two bombs caused the death of over 129,000 people, with many of them being civilians. Acute effects from the bombs may have contributed to the deaths of over 250,000 additional people in the following decades. The bombs not only killed thousands but also caused disability and radiation diseases amongst survivors and helpers. These effects were still being felt even now almost 70 years after the bombs were destroyed in 1945. The destructive power of a nuclear weapon is just one threat to consider. The radioactive fallout from such a weapon can cause long-term consequences for a population that was close to the explosion. Radiated soil, weapon debris, and radioactive particles falling from the sky are all threats that must be taken seriously. Since 1945, the testing of nuclear weapons has caused more than 2,100 detonations that have happened around the globe. Some have occurred underwater, while others have occurred underground. Every detonation creates radiation that, if someone were exposed to it, could create grave consequences. The threat of multiple simultaneous nuclear detonations could create a prolonged winter that would ravage the planet and potentially cause all life to cease. If enough nuclear weapons are launched and allowed to detonate, however, then life as we know it on our planet will cease to exist. Any survivors would be forced to endure unthinkable conditions. With the sheer power that these weapons possess, an entire country can be levelled and thousands of lives can be lost in an instant. The effects are absolutely devastating. The presence of nuclear weapons provides a major terror threat. With terrorism on the rise around the world, the threat of a “dirty bomb” cannot be ignored. A terrorist group with a nuclear weapon could cause immense and immediate damage that could change the path of an entire society. Other states view the existence of nuclear weapons as a threat. The existence of nuclear weapons will result into states engaging in a series of armament race. The more common nuclear weapons become the more countries will obtain power. This can be very dangerous, especially if volatile countries get their hands on it. The issue of insecurity is not about who owns a nuclear weapon, rather its very existence poses the primary threat to global and national security. Given that states are unsure of each other’s intentions, one state might see a defensive measure of increasing military strength of the other state as offensive. These misperceptions may result to escalated tensions and conflicts which can eventually cause the states on the opposite sides to engage in war unintentionally. Innovations in military technology make conflict and war more likely. Producing and maintaining a nuclear bomb is pretty expensive, and it takes a large share from the country's budget―money that could have been put to better use. Hostile countries are more likely to have a war in which they may use nuclear bombs against each other, and the result could prove disastrous for the entire planet. Aside from the possible war threats imposed by nuclear weapons, it is also harmful to the environment which indirectly causes insecurity to people. Residual radiation from nuclear weapons can destroy environment and wildlife for centuries. The disaster that took place in Chernobyl is the perfect example of the damage and devastation that nuclear weapons can leave behind. Testing of nuclear weapons also cause pollution and destruction, which is why it was banned. There is little doubt however that creatures of nukes would find other ways to test their weapons, without taking into consideration the pollution and damage the process can leave behind. Nuclear tests by the world powers results in the radiation pollution of sea and land. The nuclear radiation kills all plants and animals making it a dead zone for hundreds of years. 3 Nuclear weapons are the only devices ever created that have the capacity to destroy all complex life forms on Earth. It would take less than 0.1% of the explosive yield of the current global nuclear arsenal to bring about devastating agricultural collapse and widespread famine. The smoke and dust from fewer than 100 Hiroshima-sized nuclear explosions would cause an abrupt drop in global temperatures and rainfall. Banning nuclear weapons will promote human and environmental rights. It would be the most significant shift in nuclear politics since the end of the Cold War and a policy victory for human security. Professor Louise Doswald-Beck, a leading expert on international humanitarian law has observed, “[t]he enormous destructive effect of a nuclear detonation, as well as the long-term radioactive effects, is likely to result in the finding of a violation of some or all” of a range of human rights.” 4Among those cited were the rights to life, to humane treatment, to a healthy environment and to the highest attainable standard of health. In a paper written by Stuart Casey-Maslen, the right to life, as often described as “a fundamental human right” and “a right without which all other rights would be devoid of meaning” is generally non-derogable under human rights treaties. The International Court of Justice observed that the right not arbitrarily to be deprived of one’s life applies in toto also in hostilities and also in the said issue at hand – that is, the proliferation of nuclear weapons. This right, according to Malsen, is “both a treaty and a customary norm, and at its core may even amount to a peremptory norm of international law.” 5 According to the European Court of Human Rights, the right to life must be protected by the State bu fulfilling its duty on investigating alleged violations of the right to life which such violations also take place during a law enforcement operation, in an armed conflict, and in the proliferation of nuclear weapons. To cite: The obligation to protect the right to life under [Article 2], read in conjunction with the State’s general duty under Article 1 of the [European Convention on Human Rights] to ‘secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention’, requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State …6 “The right to life also encompasses a duty to minimize recourse to lethal force in State law enforcement operations, both in the planning of operations and through the provision of appropriate medical assistance to anyone injured during their execution,” Maslen added. 7 Thus, it can be inferred that the protection afforded by the right to life deemed violated not in situations where the victim is killed but also serious injuries resulting from the use of lethal force. In Benzer v. Turkey 8, which concerned the bombing in March 1994 by the Turkish air force of two ethnic Kurdish villages in the south-east of the country, the ECtHR stated that the attack, “which caused these three applicants’ injuries, was so violent and caused the indiscriminate deaths of so many people that these three applicants’ fortuitous survival does not mean that their lives had not been put at risk.” The Court was therefore satisfied that “the risks posed by the attack call for examination of their complaints” under the right to life laid down in the European Convention on Human Rights. As has been held by the ECtHR, the right to life of the three seriously injured victims of the bombing had been violated, both in substance and under the procedural aspects of Article 2. This case is very much relevant regarding the issue on nuclear weapons not only because those who survive the initial detonation may nonetheless later die of the burn and blast injuries they sustain, but also because those in a very wide radius from the blast will also be subject to radioactive debris known as fallout. Indeed, as has been noted, “the most fundamental difference between nuclear and conventional weapons is that the former release radioactive rays at the time of explosion”.9 Maslen also included fallout as relevant in considering of the right to freedom from cruel, inhumane or degrading treatment, as set out in the 1966 ICCPR, the 1984 Convention against Torture, and the three main continental human rights treaties. While the material and personal scope of this right is in no way synonymous with the customary and conventional IHL prohibition against the use of means or methods of warfare of a nature likely to cause superfluous injury or unnecessary suffering, to the extent that nuclear weapons are of such a nature, this would certainly entail a violation of this human right. “Radiation adversely affects the immune system so that the injured will not recover in the way they could have from weapons without this effect. In addition to causing more deaths than otherwise, this prolongs suffering.10 Furthermore, as Doswald-Beck also stated the effects of even just looking at the initial flash of the nuclear weapon upon its detonation that coul render a person blind and that those who were not killed may suffer horrific burns which may go beyond third-degree burns in which all layers of the skin are destroyed, to fourth-degree burns, in which the injury extends into both muscle and bone. Another right threatened to be violated by nuclear proliferation is the right to a healthy environment. Beyond the direct harm caused to individuals by a nuclear weapon detonation, the environment in which they live may be seriously – and almost permanently – affected. As the ICJ noted in its 1996 Nuclear Weapons Advisory Opinion, nuclear weapons have the potential to destroy … the entire ecosystem of the planet. … The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. … Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations. 11 In an article written by Peter Weiss and John Burroughs, they have stated that the production or tolerance of nuclear weapons, also referred to as WMDs or Weapons of Mass Destruction, have contributed to the demise of the right to peace. “The mere invocation of the threat of nuclear weapons, whether delivered by plane, by missile or by suitcase, the rhetorical projection of a mushroom cloud over Manhattan—or London, Mumbai or any other city—tends to cut off rational discussion.” 12 According to Mohamed ElBaradei, the Director-General of the International Atomic Energy Agency (IAEA), in addition to the known nuclear-weapons powers, ‘there are an increasing number of countries with the technological capability of making … nuclear weapons.’ This makes it imperative that the world community find a way to end, once and for all, the chimera of nuclear weapons as a deterrent and address in a serious way the mandate of the International Court of Justice ‘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.’ 13 Weiss and Burroughs added that “in many parts of the world the fear of terrorist attacks has combined with the fear of chemical, biological and nuclear weapons to produce a climate in which governments are increasingly prone to enact ‘emergency measures’ that infringe civil liberties and that citizens find increasingly difficult to undo.”14 As such, rights under the civil and political category are also infringed upon by allowing the production of nuclear weapons. The previous terrorisms, assassinations and mass assaults have led to the paranoia of the highest ranking officials of the world and that in every dreadful incident that occurs leads to their natural reaction of thinking “What if?” These events led to the statement of United States Defense Secretary William Cohen, testifying on March 23, 2004 before the National Commission on Terrorist Attacks Upon the United States, stating that terrorism, combined with WMD, ‘is likely to pose an existential threat to the world.’15 The abolition of nuclear weapons is an urgent humanitarian necessity. Any use of nuclear weapons would have catastrophic consequences. No effective humanitarian response would be possible, and the effects of radiation on human beings would cause suffering and death many years after the initial explosion. Prohibiting and completely eliminating nuclear weapons is the only guarantee against their use. Some of the after effect of nuclear experiments can linger decades after the experiments have been completed. This increases the risk to human life. Nuclear weapons can accidentally lead to radiation disaster with a massive reach. Good enough if radiation would go away in an instant. Unfortunately, the danger it poses on the environment and humankind remains. Their usage is considered highly dangerous. When a nuclear experiment is conducted, its aftereffects can be seen decades after the experiment itself. The more the weapon, the more the risks there would be to human life. Even if a nuclear weapon were never again exploded over a city, there are intolerable effects from the production, testing and deployment of nuclear arsenals that are experienced as an on-going personal and community catastrophe by many people around the globe. This humanitarian harm, too, must inform and motivate efforts to outlaw and eradicate nuclear weapons. Nuclear weapons are unique in their destructive power, in the unspeakable human suffering they cause, in the impossibility of controlling their effects in space and time, and in the threat they pose to the environment, to future generations, and indeed to the survival of humanity. They pose a direct and constant threat to people everywhere. Far from keeping the peace, they breed fear and mistrust among nations. These ultimate instruments of terror and mass destruction have no legitimate military or strategic utility, and are useless in addressing any of today’s real security threats, such as terrorism, climate change, extreme poverty, overpopulation and disease. While many thousands of nuclear weapons have been dismantled since the end of the cold war, the justifications for maintaining them remain largely unchanged. Nations still cling to the misguided idea of “nuclear deterrence”, when it is clear that nuclear weapons only cause national and global insecurity. There have been many documented instances of the near-use of nuclear weapons as a result of miscalculation or accidents. When it comes to nuclear weapons, there are no safe hands. So long as any country has these weapons, others will want them, and the world will be in a precarious state. Unless we eliminate nuclear weapons, they will almost certainly be used again, either intentionally or by accident, and the consequences will be catastrophic. Any use of weapons would violate international humanitarian law because they would indiscriminately kill civilians and cause long-term environmental harm. PRAYER WHEREFORE, premises considered, it is respectfully prayed of this Honorable Office that after due consideration of this case, judgment be rendered declaring that nuclear weapons violate the right to security. Such other relief just and equitable under the premises are likewise prayed for. Iloilo City; January 4, 2018. JAULA LAW OFFICE Counsel for Complainant Unit 9 Global Corporate Center Iznart Street, Iloilo City By: ATTY. LEUNAMME GAYLE JAULA PTR N0. 1011346; 1/04/11; Iloilo City IBP No. 01904 Roll No. 43934 MCLE Compl. No. IV-001196 VERIFICATION AND CERTIFICATION FOR NON-FORUM SHOPPING I, MA. APRILLE A. QUEMADO, Filipino, married, of legal age, and with address at No. 4 Aurora Subdivision, Iloilo City, hereby depose and state that: 1. I am the Complainant in the above-captioned case; 2. I caused the preparation of the foregoing position paper; 3. I have read the allegations contained therein and hereby certify that they are true and correct to my knowledge and based on the true records of the case; 4. I hereby certify that I have not filed or caused to be filed any other Case or proceeding involving the same issues or subject matter in The Supreme Court, the Court of Appeals, or any other Court, tribunal or quasi-judicial agency, and to the best of my knowledge, no such action or claim is pending therein; 5. Should hereafter I learn that there is a similar pending before any Such Courts, tribunal or agency, I undertake to report such fact to this agency within five (5) days from such knowledge; IN WITNESS WHEREOF, I hereunto affix my signature this 4th day of January 2018 at Iloilo City, Philippines. MA. APRILLE A. QUEMADO Affiant SUBSCRIBED AND SWORN TO before me this 4th day of January 2018 at Iloilo City, Philippines, affiant exhibiting to me her GSIS UMID No. CRN-559674-846936. ATTY. LEUNAMME GAYLE JAULA Doc No.______; PTR N0. 1011346; 1/04/11; Iloilo City Page No._____; IBP No. 01904 Book No._____; Roll No. 43934 Series of 2018. MCLE Compl. No. IV-001196 Copy Furnished: BLANCAFLOR & APRUEBO LAW OFFICE 3rd Floor, La Salette Bldg. General Luna Street Iloilo City Notes 1 Art. II Section 8, 1987 Constitution 2 https://www.buzzle.com/articles/nuclear-weapons-pros-and-cons.htm (Accessed December 26, 2017) 3 “What are the Advantages and Disadvantages of Possessing Long Range Nuclear Weapons?” https://www.quora.com/What-are-the-advantages-and-disadvantages-of-possessing-long-range-nuclear-weapons (Accessed December 26, 2017) 4 Casey-Maslen, Stuart, The Use of Nuclear Weapons and Human Right, 2016, 671-672 5Casey-Maslen, Stuart, The Use of Nuclear Weapons and Human Right, 2016, 672 6 International Court of Justice, Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, Jule 8, 1996 (hereafter cited as ‘ICJ Opinion’) 7 Casey-Maslen, Stuart, The Use of Nuclear Weapons and Human Right, 2016, 673 8 European Court of Human Rights. Turkish Military Responsible for Bombing Civilians in 1994; State Must Carry Out Effective Criminal Investigation. December 11, 2013 9 Nuclear Weapons Violate International Law, World Conference of Mayors for Peace through Inter-city Solidarity, Inter-Solidarity Newsletter, November 10, 1995 10 Doswald-Beck, L. Nuclear Detonation: Weapons, Improvised Nuclear Devices: Categories of Medical Effects 11 International Court of Justice Reports of Judgments, Advisory Opinions and Orders Legality of the Threat or Use of Nuclear Weapons Advisory Opinion of 8 July 1996. 1996 12 Burroughs, J., Weiss, P. Weapons of Mass Destruction and Human Rights, 2004 13 International Court of Justice, Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, Jule 8, 1996 (hereafter cited as ‘ICJ Opinion’) 14 Burroughs, J., Weiss, P. Weapons of Mass Destruction and Human Rights, 2004 15 CNN Live Event/Special. Transcript. Cohen Begins 9/11 Commission Testimony. March 23, 2004 12