Implications of nuclear missile testing

Dr. Ruwantissa Abeyratne

NUCLEAR MISSILE: The consequences of the nuclear missile firings of July 5, 2006 by the Democratic Peoples' Republic of Korea (DPRK) once again brought to bear the hazards and grave dangers it pose to society.

A nuclear missile is a weapon which derives its destructive force from nuclear reactions of either nuclear fission or the more powerful fusion. As a result, even a nuclear weapon with a relatively small yield is significantly more powerful than the largest conventional explosives and a single weapon is capable of destroying an entire city.

The missile firings of DPRK prompted the unanimous adoption by the United Nations Security Council on July 15, 2006 of a Resolution imposing sanctions on DPRK's dangerous weapons and condemning the missile tests.

In response to a protest and consequent request made by Japan of a resolution to be adopted, the Security Council discussed the missile firing for 10 days. The Resolution adopted requires all UN member States to stop imports and exports of any material or funds relating to the reclusive DPRK's missile programmes or weapons of mass destruction.

It also demands that DPRK suspend all activities related to its ballistic missile programme and re-establish a moratorium on the launch of missiles.

The issue at stake is that DPRK's missiles, which were fired over the high seas, could have adversely affected civil aircraft plying air routes over sovereign territories which extended to the questioned area over the high seas in which the missiles were cruising.

In this regard, the fundamental legal postulate regarding rights over the high seas is contained in Article 87 of the United Nations Convention on the Law of the Sea (UNCLOS) which provides that the high seas is open to all States and that freedom of the high seas comprises inter alia freedom of over flight, which gives aircraft of States the right to use airspace over the high seas without hindrance.

Article 88 of the Convention expressly stipulates that the high seas shall be reserved for peaceful purposes.

Furthermore, Article 300 of UNCLOS requires State parties to fulfil in good faith its obligations assumed under the Convention in a manner which would not constitute an abuse of right.

From an aeronautical perspective, Annex 11 to the Convention on International Civil Aviation, signed at Chicago on December 7, 1944, which deals with the subject of air traffic services, lays down requirements for coordination of activities that are potentially hazardous to civil aircraft.

Standard 2.17.1 stipulates that arrangements for activities potentially hazardous to civil aircraft, whether over the territory of a State or over the high seas, shall be coordinated with the appropriate air traffic services authorities, such coordination to be effected early enough to permit timely promulgation of information regarding the activities in accordance with the provisions of Annex 15 to the Chicago Convention, which contains Standards and Recommended Practices relating to Aeronautical Information Services.

Standard 2.17.2 of Annex 11 explains that the objective of the coordination referred to in the earlier provision shall be to achieve the best arrangements that are calculated to avoid hazards to civil aircraft and minimize interference with the normal operations of aircraft.

At its 32nd Session in September/October 1998, the Assembly of the International Civil Aviation Organisation adopted Resolution A 32-6 relating to safety of air navigation which addressed a similar incident which took place on August 31, 1998 in the same vicinity in which the DPRK missiles were fired.

The ICAO Assembly exhorted all Contracting States to strictly comply with the provisions of the Chicago Convention, its Annexes and related procedures. The 1998 Resolution was also sparked off by a protest by Japan of a violation of its airspace by DPRK's test of what was believed to be a ballistic missile. DPRK's response was that the event at issue was not a missile launch but rather the country's first launch of an artificial Earth satellite.

Resolution A 32-6 involved an incident on August 31, 1998, where an object propelled by rockets was launched by DPRK and a part of the object hit the sea in the Pacific Ocean off the coast of Sanriku in north-eastern Japan. The impact area of the object was in the vicinity of the international airway A590 which is known as composing NOPAC Composite Route System, a trunk route connecting Asia and North America where some 180 flights of various countries fly every day.

The ICAO Assembly did not have any difficulty in determining that the launching of such an object vehicle was done in a way not compatible with the fundamental principles, standards and recommended practices of the Chicago Convention.

The Assembly therefore urged all Contracting States to reaffirm that air traffic safety is of paramount importance for the sound development of international civil aviation, and to strictly comply with the provisions of the Chicago Convention its Annexes and its related procedures, in order to prevent a recurrence of such potentially hazardous activities.

Another contentious issue is whether nuclear testing by nations is acceptable at law. In the opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, handed down on July 8, 1996, Judge Weeramantry, in a brilliant and detailed expose of the issue, delivered within what he called was his dissenting judgement observed "My considered opinion is that the use or threat of use of nuclear weapons is illegal in any circumstances whatsoever.

It violates the fundamental principles of international law, and represents the very negation of the humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23(a) of the Hague Regulations of 1907.

It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet".

Judge Weeramantry went on to say that the threat or use of nuclear weapons cannot be justified, one reason being that any involvement with nuclear weapons violate the principles of the United Nations Charter.

Judge Weeramantry observed: "There are six keynote concepts in the opening words of the Charter which have intense relevance to the matter before the Court.

The Charter's very first words are "We, the peoples of the United Nations" - thereby showing that all that ensues is the will of the peoples of the world. Their collective will and desire is the very source of the United Nations Charter and that truth should never be permitted to recede from view.

In the matter before the Court, the peoples of the world have a vital interest, and global public opinion has an important influence on the development of the principles of public international law. As will be observed later in this Opinion, the law applicable depends heavily upon "the principles of humanity" and "the dictates of public conscience", in relation to the means and methods of warfare that are permissible.

The Charter's next words refer to the determination of those peoples to save succeeding generations from the scourge of war. The only war they knew was war with non-nuclear weapons. That resolve would presumably have been steeled even further had the destructiveness and the intergenerational effects of nuclear war been known.

The Charter immediately follows those two key concepts with a third - the dignity and worth of the human person. This is recognised as the cardinal unit of value in the global society of the future. A means was about to reveal itself of snuffing it out by the million with the use of a single nuclear weapon.

The fourth observation in the Charter, succeeding hard on the heels of the first three, is the equal rights of nations large and small. This is an ideal which is heavily eroded by the concept of nuclear power.

The next observation refers to the maintenance of obligations arising from treaties and other sources of international law (emphasis added).

The argument against the legality of nuclear weapons rests principally not upon treaties, but upon such "other sources of international law" (mainly humanitarian law), whose principles are universally accepted".

The principles of international law applicable to missile testing is well laid out in various international treaties. In 1963, the United States, the United Kingdom and the then USSR signed in Moscow the Treaty Banning Nuclear Weapons Tests in the Atmosphere, in Outer Space and Under Water, commonly called the Limited Test Ban Treaty.

The Treaty, although adopted outside the formal United Nations umbrella, is open to adoption by all States of the world. The limited Nuclear Test Ban Treaty in Article 1 provides that each State Party to the treaty undertakes to prohibit, to prevent, and not carry out any nuclear weapon test explosion at any place under its jurisdiction or control, whether it be in the atmosphere, beyond its limits including outer space or over the high seas.

The International Atomic Energy Agency, in 1994 adopted the Convention on Nuclear Safety which places responsibility for nuclear safety with the State having jurisdiction over a nuclear installation and obliges States Parties to take legislative and administrative action to implement the obligations imposed by the Convention.

It has to be conceded that any State which is not a party to the above mentioned treaties, is not bound by any of them, in particular the Limited Test Ban Treaty to which it is not a party to, since the treaty does not constitute a customary rule binding all States irrespective of the treaty.

However, DPRK, like any other State recognized by the United nations, is subject to the general principles of public international law. Firstly, there is treaty obligation under Annex 11 to the Chicago Convention as discussed above. Secondly, although every State has a right over airspace above the high seas this must not be taken to mean that any State could use its freedom of the air over the high seas to impede air traffic over the high seas.

In its Report to the General Assembly, the ILC in 1949 recommended a draft provision which required that Every State has the duty to conduct its relations with other States in accordance with international law and with the principle that the sovereignty of each State is subject to the supremacy of international law.

This principle was formally adopted in 1975 by the International Law Commission (ILC) in its Articles of State Responsibility which affirms in Article 1 that there is a general rule of public international law, widely supported by practice that every intentionally wrongful act of a State entails responsibility.

Article 2 provides that an intentionally wrongful act of a State carried out through conduct involving omission or commission is directly attributable to the State and will be considered as constituting a breach of an international obligation.

This principle, which forms a cornerstone of international conduct by States, provides the basis for strengthening international comity and regulating the conduct of States both internally - within their territories - and externally, towards other States. States are effectively precluded by this principle of pursuing their own interests untrammelled and with disregard to principles established by international law.

It must be noted that it is international law, and not municipal law that determines as to what constitutes an internationally wrongful act.

Article 12 of the ILC's Articles of State Responsibility makes the act of a State which does not conform to what is required of an obligation a breach of an international obligation.

In the light of the above, the issue of DPRK's missile testing is both grounded in the issue as to whether DPRK had a legal right to conduct the tests and also whether DPRK's missile testing was in breach of a requirement at law to adhere to international treaty provisions.

It must be noted that in a judgment handed down on December 20, 1974, a view was expressed in the International Court of Justice that the decision of a State to launch missile tests over the high seas was a political issue which should not be adjudicated unless there was a breach of a provision of international law.

Justice Gros was of the view that there was a certain tendency of States to submit essentially political conflicts to adjudication in the attempt to open a door to judicial legislation which could result in government by judges.

Be that as it may, The above discussions clearly show that there is a coherent system of rules at international law that identify the responsibilities of a State in the instance of a breach of international obligation. A fortiori, in the field of international civil aviation, there are explicit provisions in established treaty law that would effectively preclude a State from arbitrarily engaging in aeronautical or non-aeronautical activities that would endanger aviation.

It is only apt to conclude this article with the statement of Judge Weeramantry in his ICJ opinion that "massive documentation details the sufferings caused by nuclear weapons - from the immediate charring and mutilation for miles from the site of the explosion, to the lingering after-effects - the cancers and the leukaemias which imperil human health, the genetic mutations which threaten human integrity, the environmental devastation which endangers the human habitat, the disruption of all organization, which undermines human society".