8 min read

Last Updated on August 5, 2015

This article was originally published at: www. law.berkeley. edu/centers/ilr/ona/pages/testing2.htm

It has not been online since mid 2011. I make reference to it in my article on the Fukushima Nuclear Disaster. There is an archived copy of the article here: http://bit.ly/zfatSS
I have posted a copy of it below in case it ever disappears from the Internet entirely.

There were at least 483 atmospheric and underwater tests until 1980, when China detonated what is currently the last atmospheric test.   The story of those tests varies by region and entails the progressive development of international law through treaties and international adjudication.

The Limited Test Ban Treaty

In the ten years after the first nuclear test by the United States in 1945, the U.S. , the U.S.S.R., and the United Kingdom periodically exploded nuclear devices in the atmosphere with little challenge from the international community.   Many of the US and UK tests occurred in the Pacific Ocean , and most states in the Pacific were under colonial government of some kind at the time.   Japan was formally occupied until 1952; Australia assisted and supported the UK tests.

The United States and the Soviet Union detonated their first hydrogen bombs in 1952 and 1953 respectively, which escalated concern worldwide about fallout from those tests and about possibly even larger tests in the future.   The hydrogen, or fusion, bomb adds on second or even third stage, resulting explosion to be many times greater than a single-stage fission weapon such as those used in Hiroshima and Nagasaki .   In 1954, a United States fusion bomb was detonated on Bikini Atoll that had a yield that was twice what was expected.   Adverse wind conditions blew  fallout over other islands in the Marshalls and outside of the area the United States had closed off.   A Japanese fishing boat, the Lucky Dragon V , was about 20 miles outside of the restricted zone and was showered with radioactive ash.   All 23 crew members became very ill, and one of them died several months later from complications in treatment.

The Lucky Dragon incident jump-started international recognition of the dangers of fallout particularly among the Japanese and the Marshallese.   The Marshallese brought their concerns before   the U.N. Trusteeship Council in 1954 with the support of India and the Soviet Union , to no avail.   A year later, discussions began between the nuclear powers for a ban on testing of nuclear weapons.   It took almost another decade of negotiations, largely about verification measures, before a treaty was signed in 1963.   The three original parties were the US , the UK , and the USSR .   Neither France nor China , has never become a party to the treaty.   The “Limited Test Ban Treaty” (LTBT), as it was known, had the effect of moving testing underground for those party to it.   By the time the treaty was conducted, the United States had conducted 106 atmospheric or underwater tests in the Pacific.

By the time of the LTBT, membership of the UN General Assembly had expanded greatly.   Most of the new member countries had little or no interest in the nuclear powers expanding their arsenals, and in 1965 the General Assembly passed a non-binding resolution calling on all countries to refrain from all testing of nuclear weapons.

The ICJ and Nuclear Weapons

France continued to test in the atmosphere until 1974 in the South Pacific.   The French test sites on Mururoa and Fangtufa atolls were about 3700 miles east of Australia , and both Australia and New Zealand brought suit in the International Court of Justice in an effort to bring a halt to the tests.   The ICJ granted a preliminary injunction but then issued an opinion declining to rule on the merits, since France had issued a statement that it had “taken steps to [continue with only underground testing] as early as next year.”   The Court indicated that Australia or New Zealand could re-open the case if France breached its commitment to them not to conduct such tests.   When France declared in 1995 that it was going to conduct eight more underground tests in the South Pacific, New Zealand attempted to re-open the case.   New Zealand sought to enjoin the tests because of adverse effects on the marine environment, and requested an environmental impact assessment.   The ICJ ruled against New Zealand (which had been joined by Australia ), saying that its new complaint did not fit in under the clause permitting the 1974 case to be re-opened.   Moreover, France had removed itself from general ICJ jurisdiction in 1974, preventing an entirely new case from being brought.

There is also some speculation that there was test in 1979 off the coast of South Africa , when two U.S. satellites detected a “double flash,” a distinct signature produced by a nuclear weapon.   The test was alleged to be the work of either South Africa or Israel , both signatories of the LTBT; but conclusive evidence was never found.

The Comprehensive Test Ban Treaty

Article II of the Limited Test Ban Treaty provided for amendment of the treaty, and in 1988 a group of countries proposed to modify the treaty to extend the treaty to all environments, including underground tests.   By 1991 the necessary one-third of the parties to the LTBT had joined in the proposal, and a conference was held.   The United States opposed using the LTBT as the instrument to achieve a total test ban, and so negotiations began for a separate Comprehensive Test Ban Treaty (CTBT) in 1993, and opened for signature three years later.    The Russian Federation ratified the treaty in 2000; China and the United States have signed but not ratified the treaty.

Conclusion

The era of nuclear testing in the atmosphere has drawn to a close, through treaties and adjudication.   However, effects of the tests still continue  particularly in the oceans, since many testing sites were on islands made remote by the many miles of open water that surrounded them.     Therefore, much of the focus in this area will be on legacy issues, such as assessment and mitigation of environmental and problems.

Monterey Institute of International Studies, Center for Nonproliferation Studies, China ‘s Nuclear Tests:   Dates, Yields, Types, Methods, and Comments , at http://cns.miis.edu/research/china/coxrep/testlist.htm (indicating Chinese test in 1980 as last atmospheric); Robert Norris and William Arkin, Known nuclear tests worldwide, 1945-98 , Bulletin of the Atomic Scientists, Nov./Dec. 1998, at 65, available at http://www.thebulletin.org/article_nn.php?art_ofn=nd98norris .   Norris and Arkin’s data are only separated into “atmospheric” and “underground” categories.   However, it is clear from their data that underwater tests are considered “atmospheric” e.g., they consider all Soviet tests “atmospheric” until 1961, by which time there had been several Soviet underwater tests.

Reisman et al., International Law in Comparative Perspective, at 37.

Nationmaster Encyclopedia, Occupied Japan Post-WWII , at http://www.nationmaster.com/encyclopedia/Occupied-Japan-Post-WWII.

National Archives of Australia, Fact Sheet 129: British nuclear tests at Maralinga , at www. naa.gov. au/Publications/fact_sheets/FS129.html.

Carolyn Kopp, The Origins of the American Scientific Debate Over Fallout Hazards, 9 Social Studies of Science , 403 (1979), available at http://links.jstor.org/sici?sici=0306-3127%28197911%299%3A4%3C403%3ATOOTAS%3E2.0.CO%3B2-S (subscription required);   United States Department of State, Narrative: Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water , at http://www.state.gov/t/ac/trt/4797.htm [hereinafter Limited Test Ban Narrative ].

Carey Sublette, Basic Principles of Staged Radiation Implosion , at http://nuclearweaponarchive.org/Library/Teller.html ; UN Office on Drugs and Crime, Nuclear and Radiological Weapons: What’s What? , at  www. unodc. org/unodc/terrorism_weapons_mass_destruction_page006.html.

Limited Test Ban Narrative, supra note 4.

Id. ; Nuclear Weapon Archive, Operation Castle , at http://nuclearweaponarchive.org/Usa/Tests/Castle.html.

The Trade and Environment Database, The Lucky Dragon Incident , at http://www.american.edu/TED/lucky.htm.

Id.

Trusteeship Council , 8 International Organization 535, 546 [ JSTOR Link ].   The Marshallese brought suit in Federal Court in 1959 and lost.   Pauling v. McElroy , 164 F. Supp. 390 (D.C. Cir. 1959).

Limited Test Ban Narrative, supra note 4.

Id.; Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Oct. 10, 1963, 14 U.S.T. 1313, T.I.A.S. No. 5433, 480 U.N.T.S. 43.

Department of Energy , United States Nuclear Tests, July 1945 through September 1992 , DOE/NV�209-REV15, Dec. 2000, at 18, available at http://www.nv.doe.gov/news&pubs/publications/historyreports/pdfs/DOENV209_REV15.pdf (hereinafter U.S. Nuclear Tests ). [general assembly citation]

Nuclear Tests (Austl. v. Fr.), 1973 I.C.J. 253, 258, available at www. icj-cij. org/icjwww/icases/iaf/iaf_ijudgment/iaf_ijudgment_19741220.pdf

Id. ; Nuclear Tests (N.Z. v. Fr.), 1973 I.C.J. 457, available at www. icj-cij. org/icjwww/icases/inzf/inzf_ijudgment/inzf_ijudgment_19741220.pdf.

Nuclear Tests (Austl. v. Fr.), 1973 I.C.J. 98 (Provisional Measures); Id. (Merits).

Nuclear Tests (N.Z. v. Fr.), supra note 15 , at 477;   Nuclear Tests (Austl. v. Fr.), supra note 14 .

Request for an examination of the situation in accordance with paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests Case (N.Z. v. Fr.) (1995), [hereinafter Request for an Examination ] Reavailable at http://www.icj.cij.org/icjwww/icases/inzfr/inzfrframe.htm .   New Zealand ‘s original complaint was more broad, asserting that the 1974 tests would infringe on its rights under international law; Australia ‘s complaint was only about radioactive fallout on Australian soil.   For this reason, it was New Zealand that tried to revive its complaint, and was joined by Australia .   See Don MacKay, International Security in the Post-Cold War Era: Can International Law Truly Effect Global Political and Economic Stability?   Nuclear Testing: New Zealand and France in the International Court of Justice , 19 Fordham Int’l L.J. 1857, 1875 (1996).

Id.   New Zealand cited the opinion of a French scientist, Pierre Vincent, who thought that the French nuclear tests might fracture the atoll and allow the release of nuclear material into the ocean.   See Pierre Vincent, France May Be Courting a Natural Disaster , The Guardian ( London ), July 30, 1995, at 15, reprinted in Request for an Examination , supra note 18

David Albright and Corey Gay, Proliferation: A Flash From the Past , 53 (19) Bull. Of Atom. Scientists 15 (1997)

Limited Test Ban Narrative, supra note 4.

Preparatory Comission for the  at http://www.ctbto.org/treaty/history.html

Spread the love