UN Humanitarian Lawyer, Karen Parker, On the Violation of Human Rights in California

A raging human rights battle brewing between the federal Department of Energy and the people of California will soon be coming to a head. Citizen activists and environmental rights groups are up in arms over the right of the Lawrence Livermore National Laboratory (LLNL) - previously called the Lawrence Livermore Nuclear Weapons Laboratory, and before that, Lawrence Radiation Laboratory - to explode toxic and radioactive materials into California�s air. Ever since this news story brokeoutside San Francisco in December, 2006, local citizens have opposed the Laboratory�s standard practice of exploding 1,000 lbs. of toxic and radioactive materials annually at its Site 300 location.

The origin of the face off between citizens and the federal government began a month earlier. On November 13, 2006, LLNL had received permission from the local San Joaquin Valley Air Pollution Control District(SJVAPCD) to allow explosions up to 350 lbs. per detonation. The decision to allow larger explosions was appealed and LLNL has since submitted another application for a new permit.

Desiring more "bang" for the taxpayer's buck, Livermore Laboratory's most recent April 24, 2007 filing of a permit application with SJVAPCD asked for permission to increase the detonations of sixty (60) dangerous materials - including Depleted Uranium - by 800 (eight hundred) percent.

In recent correspondence with Jim Swaney, Permit Services Manager for SJVAPCD, the permit is still on hold. The snag in the approval process involves the transition of management of the federal facility that develops and "tests" bombs. In October, 2007, the management of Lawrence Livermore National Laboratory was privatized. As Swaney explained, the new managing firm, Lawrence Livermore National Security, LLC informed SJVAPCD "they needed time to finalize their contract procedures and budget the money" necessary for SJVAPCD to hire a contractor(s) to perform an environmental assessment, as required by the California Environmental Quality Act.

Although a permit has been filed for permission to increase the quantity of materials by eight-fold, outdoor explosions of radioactive Depleted Uranium and Tritium is a time-honored tradition at the outdoor Site 300 explosion area. The 7,000 acre site opened for nuclear detonation "experimentation" in 1955 and radioactive explosions have been performed with regularityoutside in the greater San Francisco Bay area for over five decades. As stated on the Laboratory's website, its "explosions, known as shots, result from destructive tests of high explosives- 100 to 200 of them a year in the last 10 years."

The Livermore Laboratory is seeking to increase these frequent San Francisco Bay area "blasts" from the current 1,000 lbs. to 8,000 lbs. annually. The new permit states that up to 350 lbs. of materials may be detonated per explosion, "with no more than one detonation occurring in any given hour." Under current provisions, up to 100 lbs. of materials per explosion are allowed.

Among the five dozen substances listed in the permit, public opposition centers around the most hotly contested nuclear weapons material called "Depleted" Uranium. A product of nuclear processing, Depleted Uraniumis used in munitions which, when fired or exploded, produce up to 80 percent ceramic Uranium Oxide aerosols. This hazardous material is used in combat operations in Afghanistan and Iraq - and presumably in Somalia as well.

The use of Depleted Uranium in combat has been declared illegal under the UN Sub Commission of Human Rights. Its use is also a violation of various treaties, conventions, and international laws.

In order to determine the legality of Depleted Uranium use inside the United States via federal "experimentation" and "testing," I spoke with Karen Parker, JD, founder of the Association Humanitarian Lawyers. The long term proponent of international human rights specializes in humanitarian law and provides expert testimony and legal counsel for the United Nations. In spring, 1996, Parker made a presentation on Depleted Uranium to the United Nations Commission on Human Rights.

On the matter of the extent that Depleted Uranium causes harm, Ms. Parker has written, -DU weapons 'kill' in inhumane ways, causing cancers, kidney problems, eye problems, lung diseases, and according to the medical researchers who have investigated it, many other serious conditions. Additionally, DU weapons cause disabilities in the children of those exposed - cranial-facial anomalies, missing limbs, grossly deformed and non-viable infants and the like - so in this sense are teratogenic."

"As these conditions can occur to non-combatants or may arise long after military operations have concluded, DU weapons are necessarily inhumane. The teratogenic nature of DU weapons raises the possibility of a genocidal effect. Finally, DU weapons unduly contaminate the natural environment, including water and agricultural land necessary for the subsistence of the civilian population for beyond the lifetime of that population."

The United Nations Sub-Commission on Promotion and Protection of Human Rights passed a resolution in 1996finding the use DU weapons "incompatible" with existing humanitarian law. This resolution began a series of initiatives by the Sub-Commission on DU weapons and several other weapons of concern, including fuel-air bombs, cluster bombs and "bunker busters."

Interview With International Human Rights Attorney Karen Parker

Q - In a telephone interview, I asked Ms. Parker, with regard to the UN resolution 1997/36, does this also apply to open air explosions and military training firing of Depleted Uranium used outdoors by the Departments of Energy and Defense within the United States?

KAREN PARKER - "Testing was part of the resolution-including stockpiling and trafficking. It's not actually as clear as actual use in combat, whether the mere presence for instance of a nuclear bomb in your arsenal is a violation and a number of countries have nuclear weapons in their arsenals."

However, explained Parker, the US government �does not view DU subject to test ban treaties and therefore there is no international restriction on the testing.� Ms. Parker continued, "I would argue that there is an inherent violation of human rights if a weapon that releases dangerous substances is tested in an area where there are people who could be negatively affected. From that perspective, carrying out, say, a Depleted Uranium test, open air, in the Bay area is a crime - a violation of international law from the perspective of the right to life, the right to health and those kinds of rights."

Q - Isn�t the explosive testing a violation of humanitarian law?

KAREN PARKER - "It's not so much a violation of humanitarian law, because the weapon isn�t used in combat. The fact that it is a weapon and could be, and is intended to be used in combat doesn�t make a test of it a combat exercise."

Q � Okay, so the explosions of DU as "tests" are not considered a combat exercise, and it's not a violation of humanitarian law. But it's certainly a harmful substance, is it not?

KAREN PARKER - "Depleted uranium weapons release dangerous substances. And so from that perspective, it becomes what we call a kind of a tort, only because it's a dangerous substance. It's a strict liability and the United States is on notice that there are health consequences of Depleted Uranium. They of course, downplay them... but they have never denied that there aren�t any."

"And there isn't any way that you can carry out a Depleted Uranium open air test - or an open air test of weapons containing Depleted Uranium, without it having some effect on a very heavily populated northern California area. The central valley as a whole is fairly heavily populated and I�m certain that within a 50 to 100 mile radius of where they�re testing there are considerable population groups."

NOTE: Within this 100 mile region exists a great many of California's farms and vineyards which produce vast amounts of fresh produce and wine that are shipped all over the world. In fact, the Livermore Laboratory monitors radioactive tritium in the crops grown there.

KAREN PARKER - "I just think again there's no prohibition in our conflict law because they're not being used in combat; however, there are probably prohibitions in a number of other areas including, of course, human rights but also in environmental- the environmental aspect, which is part of the four-point test so you can have environmental and personal damage - damage to people... that would be the United States in violation of its own law in many, many areas."

Q- The US in violation of its own law? What law is that?

KAREN PARKER - "Well their Human Rights law- The United States has a duty to promote and protect the right to health. So if you�re detonating weapons that causes illnesses - preventable - You�ve violated that."

"Obviously, environmental laws - both state and federal laws about releasing dangerous substances - the release of dangerous substances is, in a sense, automatically a violation of what we call domestic law or tort law. It's a strict liability violation, meaning there�s no defense. It�s not like it's negligence. It's not like the US could be sued for negligence because of injury. In the case of hazardous substances, it's strict liability.

It�s hazardous stuff. It's strict liability - It means that there is no defense. It�s as if the United States wasn't properly maintaining a dam and the dam burst. The US can't use any arguments in its defense, saying well we didn�t have adequate budget for maintenance. It's strict liability. The dam busts, you�re liable."

Q - Are there any other types of violation of US law that DU breeches?

KAREN PARKER - "Under human rights law, you can't do it in the first place. It's not just a question of who pays for the damage. And one of the reasons the United States has been so blatantly mendacious about Depleted Uranium is to generate confusion as to what exactly does it do-So the government is taking advantage of what it expects to be elements of proof in a legal action. And it's been very clever. They have taken many, many defensive postures in anticipation."

Q - In my final question, I asked Ms. Parker, with regard to the 1994 Draft Declaration of Principles on Human Rights and the Environment, if what I had read was true - that is, had she worked on this document? And, I asked, does this Declaration also apply for US citizens too, with regard to Livermore Laboratories' Site 300 radioactive explosions?

KAREN PARKER - "I did indeed have a hand in the draft principles. Any UN documents holds equally for anyone in any country. That said, these are "draft" principles and did not "go up" to the General Assembly. Still, they are the "principles" the UN Human Rights Council's Special Rapporteur on Toxics uses. So they are operational. The question is, are they binding? But the underlying Human Rights law on which they are based is binding. So you can argue the underlying law, as expressed in the Draft Principles."

1994 Draft Declaration of Principles on Human Rights and the Environment

In May 1994, an international group of experts on human rights and environmental protection gathered at the invitation of the Sierra Club Legal Defense Club at the United Nations in Geneva and wrote the 1994 Draft Declaration of Principles on Human Rights and the Environment.

These principles include every person's right to a secure, healthy, and ecologically sound environment, an environment that adequately meets the needs of present generations, one that does not impair the rights of future generations to meet equitably their needs. Furthermore, this Declaration includes the right to freedom from pollution and environmental degradation - as well as activities that adversely affect the environment, threaten life, health, livelihood, well-being or sustainable development within, across, or outside national boundaries. In addition, all persons have the right to 'protection and preservation of the air, soil, water, sea-ice, flora and fauna, and the essential processes and areas necessary to maintain biological diversity and ecosystems' as well as the right to "the highest attainable standard of health."

Particularly applicable to the matter of using radiological munitions materials in the United States is the passage, "All States shall respect and ensure the right to a secure, healthy and ecologically sound environment with the further provision that "These measures shall aim at the prevention of environmental harm, - and the - control, licensing, regulation or prohibition of activities and substances potentially harmful to the environment."

Perhaps most incriminating with regard to the explosions of radiological materials at the Livermore Laboratory is the passage that makes it clear that "States and all other parties shall avoid using the environment as a means of war or inflicting significant, long-term or widespread harm on the environment, and shall respect international law providing protection for the environment in times of armed conflict and cooperate in its further development."

With a half-life of 4.5 billion years, this UN Declaration of Human Rights and the Environment clearly identifies the atmospheric use of Depleted Uranium as a significant, long-term, and permanent contaminant that causes widespread harm to public health and the environment for what amounts to over 45 billion years. This is, conservatively speaking, about ten times the half-life of the radioactive decay period of Uranium-238. While some experts claim it is more appropriate to multiply the half-life of U-238 by twenty times 4.5 billion years, it makes little sense to argue over radioactivity that lasts 45 billion years vs. 90 billion years.

Public Participation Critical In Defending Our Basic Human Rights

In a related measure, as part of the Department of Energy's newest effort to increase its nuclear weapons production, public comment forums for the newly repackaged "Complex Transformation," are being held throughout the country this month. To those unfamiliar with the vastly unpopular Complex 2030, (often called "Bombplex 2030") the entire business of bomb making and nuclear �testing� locations and scenarios is being examined.

As the agency responsible for production and �testing� of nuclear weapons, the DOE is required to submit various alternatives and solicit public comments before making operational changes.

Radiological weapons production and above ground detonations involve nuclear weapons sites in TN, SC, TX, MO, NM, CA, and NV. All federal nuclear weapons sites emit toxic substances and hazardous radionuclides into the environment. Currently at stake is the adverse impact of these nuclear operations and �experimentation� upon public health and the environment.

In California this week, large numbers of concerned citizens are expected to present testimony in opposition to atmospheric explosions of lethal, chemically toxic and radiological materials at Livermore Laboratory's Site 300. After the public comment period is over, the Department of Energy will be making a decision where to host its outdoor detonations of materials - some of which include radioactive Depleted Uranium and Tritium, and toxic chemicals such as Carbon Monoxide, Benzene, Chloroform, and six acid gases, including Ammonia and Cyanide.

The decisions made by the Department of Energy following the public comment period which ends on April 10 will directly affect the air quality of ten million who live within a 100 mile radius of the Site 300 site located in the highly populated greater San Francisco Bay/San Jose area.

Unhealthy air quality has been a serious problem for decades in the San Joaquin Valley. It is apparent that Governor Arnold Schwarzenegger is keenly aware of the gravity of the air problem, as he recently reprimanded the state and Valley air boardsin October, 2007 for their decisions to delay clean-up of ozone pollution until 2024. The Governor even acknowledged the gravity of the situation by stating, "When one out of six residents in the San Joaquin Valley has been diagnosed with asthma, and one in five children carry an inhaler to school, it is a call to action."

What is most curious, however, is where the Governor's pointed the finger with regard to environmental toxic and hazardous pollution when he discussed strengthening state law and District regulations related to air quality. Conspicuously absent was any mention of the most lethal San Joaquin Valley air polluter of all - the local Lawrence Livermore National [Nuclear Weapons] Laboratory. One only supposes the Governor would suddenly find himself awkwardly exposed in some sort of Spitzer-ed situation should he endeavor to let California's glowing cat out of its quarantined hazmat bag. As the old saying goes, loose lips sink ships -not to mention steady political careers.

The radioactive explosions at Livermore Laboratory take place within San Joaquin County, one of the counties EPA has singled out as having unacceptable air quality. The EPA admits the air quality in San Joaquin County contributes to illnesses such as respiratory disease. As stated in a recent SF Chronicle Editorial this is "an especially important finding for California, home to some of the nation's dirtiest air in the San Joaquin Valley and Los Angeles basin."

As the California Governor has stated, the loss of citizens' basic human right to breathe air that is not dirty, toxic, and radioactive truly is "a call to action." Public testimony on the activities and future of the nuclear weapons laboratories will be heard in upcoming weeks. Citizens throughout the country concerned about violations of their basic human right to enjoy a clean, safe, healthy, non-radioactive environment are encouraged to state their views regarding nuclear materials explosions.

Many thousands of Americans will be speaking up and out about their views on their right to live in an environment that has not been deliberately, permanently contaminated with dangerous toxic and radioactive contamination of their air, water, and soil by the US federal government. To see the schedule of upcoming meetings this week in California and New Mexico and future meetings in Washington, DC and New Mexico, visit this site. Those unable to attend a meeting but who would like to provide testimony are encouraged to submit comments via email, by April 10, to this address. More information concerning ongoing open air radioactive explosions throughout the United States is available by visiting the DOE website.