Nuclear Weapons Part I – Opposing Perspectives
Editors’ note: This is the first of a three-part post on legal considerations applicable to nuclear weapons.
This post will explore the fundamental differences of view on nuclear weapons and their implications. But before turning to those disputes, it is perhaps a good idea to start by noting that there are some things about which most right-thinking members of humanity are agreed. It is, one would suggest, generally acknowledged that nuclear weapons are the most horrific kind of weaponry known to man. Their potentially vast destructive radii; the general certainty that everyone within an extensive distance of the point of detonation will die; the equal assurance that all things within a similarly large area will be destroyed; the dangers posed to those beyond that extensive area by radiation and nuclear fall-out; the sheer scale of the blast waves, of the heat, and of the fire unleashed by a nuclear explosion; and the likelihood that adverse effects will cascade down through generations of those who live near the affected places, are precisely what all sensible people will agree set nuclear weaponry apart from every other instrument of war.
These characteristics further produce a like consensus among reasonable members of society that every precaution must be taken to avoid, if at all possible, the use of such a weapon. Any first use of a nuclear weapon is liable to generate a nuclear response by the targeted State or by its nuclear-armed ally, the consequences of which are likely to be at least equally, and probably significantly more, awful. It is indeed no exaggeration to conclude that nuclear weapons use may, alone or in conjunction with foreseeable responses, have the effect of jeopardising human life on earth. These arguments support the persuasive contention that nuclear weapons use is inherently unlawful, a conclusion based on legal, ethical, human rights, environmental, and practical considerations. This post specifically addresses the legal justifications for such a point of view.
Before setting forth some aspects of the legal case for their inherent illegality, however, let us recognise that there is an alternative, indeed an opposing point of view. The opposing argument accepts that when the atom bombs were dropped on Hiroshima and Nagasaki, very large numbers of casualties, very many of them civilians, resulted. The two cities were, for all practical purposes, erased from the map. However, strategic decision-making is, in the nuclear age, heavily influenced by those awful consequences, by a recognition of the considerable nuclear arsenals that Russia and the United States, and latterly certain other countries, have developed. They must also grapple with the understanding of the unacceptable levels of casualties and of destruction that can readily be inflicted if any State “steps out of line.”
In short, the argument goes, nuclear deterrence has, either alone or in conjunction with other factors, kept the peace between nuclear-armed States during the roughly 80 years that have elapsed since the end of the Second World War. Those who favour the inherent illegality argument would point out that States are one strategic miscalculation away from the “apocalypse” alluded to in the opening paragraphs of this post. In rebuttal, supporters of nuclear deterrence would focus on the fact that, perhaps fortuitously, such a misstep has not occurred.
Some of the Legal Arguments for Inherent Illegality
There can be no doubt that a legal argument in favour of inherent illegality can be easily made and is compelling. In the jus ad bellum context, for example, the argument would be that the possession of nuclear weapons involves an implicit threat to use them if particular, though not necessarily articulated, circumstances were to arise. The view that nuclear deterrence amounts to a threat in breach of Article 2(4) of the UN Charter was neither endorsed nor specifically rejected in the ICJ Nuclear Weapons Advisory Opinion. The “why possess it if you don’t intend adversaries or potential adversaries to foresee you using it” argument might, however, be a basis in the future for categorizing deterrence as a threat if the current geostrategic instabilities become even greater. This argument might be subject to the objection that if possession of a weapon is to be interpreted as an implicit threat to use it, most States are constantly in breach of Article 2(4). To argue that possession of only certain weapons has this effect requires explaining both why that threshold exists and which weapons fall within it.
A second factor to consider is the law of neutrality. The fifteen experts who participated in the preparation of Nuclear Weapons Law: An International Commentary recognised at Rule 68 that “In the conduct of nuclear operations the parties to an international armed conflict must take all feasible measures to avoid harmful effects on neutral territory.” The damaging and injurious consequences of a nuclear explosion are unlikely to be controllable. The consequences, including nuclear contamination and fallout, will in all probability be spread by the blast itself and by weather factors, not least wind, in directions and to a degree that it may well be difficult to accurately and reliably foresee. This spatial unpredictability is compounded by uncertainty about the duration of the adverse effects. For example, intergenerational injury, deformities and/or illness may be expected to last for unknown but potentially lengthy periods.
Thus, an intended nuclear strike on certain locations may be expected to have adverse effects on neutral territory, potentially breaching Rule 68. In that respect, it is worth recalling the spread of the adverse effects of the Chernobyl accident on 26 April 1986. The accident released radioactive contamination across large swaths of the Soviet Union and Europe, with measurable fallout recorded as far away as Scandinavia and the British Isles, and its health and environmental consequences continue to be felt decades later. Some might argue that this aspect does not speak to inherent illegality, but rather to the unlawfulness of using nuclear weapons in circumstances in which such release of contamination and its widespread effects are to be anticipated. If, however, as seems likely, a nuclear strike is in many circumstances adversely and unlawfully to affect neutral States, this will be a powerful further argument in support of the “inherently unlawful” perspective.
A key issue will be what precautions are feasible. Here again, there may well be a difference of view. Those who consider nuclear weapons to be inherently unlawful will contend that if there are no precautions that can be taken to avoid the harmful effects, this is per se a ground for inherent illegality. States that favour nuclear deterrence will argue that the obligation is only to take the precautionary steps that are feasible, with the corollary that if no precautions in that regard are feasible, there is no legal requirement to take them.
A third issue, perhaps the critical point, arises from the law of war principle of distinction, and, perhaps even more specifically, the prohibition of indiscriminate attacks. The formulation of the distinction principle in Article 48 of 1977 Additional Protocol I (AP I) is widely recognised as reflecting customary law and, as such, applying to the use of both nuclear and conventional weapons. The author has argued in the past, and would suggest here too, that the specific prohibition of indiscriminate weapons, as set forth in AP I Article 51(4)(b) and (c), was a new rule introduced by AP I to which the nuclear statements (excluding their application to nuclear weapons) made by certain States such as the United Kingdom would therefore apply.
However, the prohibition of indiscriminate attacks predated the adoption in 1977 of AP I and therefore would not be affected by those nuclear statements. Logically, an attack that employs a weapon the effects of which cannot be limited as required by international law would breach that customary law rule. Those arguing for inherent prohibition would therefore insist that any such use will be unlawful and, irrespective of whether deterrence is or is not an implicit ad bellum threat, their in bello position would be that the mere act of possession constitutes preparation for (i.e., States arming themselves with a view to) the commission of an unlawful act and is therefore legally objectionable.
Some Legal Arguments for Nuclear Deterrence
There are nine States that are known to possess nuclear weapons, namely China, France, the Russian Federation, the United Kingdom, the United States, the Democratic People’s Republic of North Korea, India, Israel and Pakistan. It is evident from their actions in continuing to possess nuclear weapons that these States regard that possession and associated deterrence messaging to each other and to other States as lawful. It is therefore difficult, indeed impossible, to contend that there is a general practice among States accepted as law (see Statute of the International Court of Justice, art. 38(1)(b)) specifically prohibiting the possession or use of nuclear weapons. Whether this feeds down, as it were, into an interpretation of relevant rules of law as specifically not applying to nuclear weapons is a more difficult issue.
Deterrent States will argue that any interpretation of, say, the neutrality rules, the distinction principle, and the discrimination rule discussed earlier in such a way as to prohibit possession of nuclear weapons is subject to the same criticism above, as there is no general practice of States to support that view. States that argue for inherent illegality find that approach objectionable and trite, but there can be no doubt that it is an interpretation that reflects the current reality of the absence of a general practice.
The Approach of Other States
At this point, the actions of other States should be considered. While the study of formal nuclear weapon statements and other declared nuclear weapon positions of other States could fill many volumes, it is certainly worthy of note that numerous States have, by their actions, demonstrated their opposition to the possession and potential use of these weapons or to locating them in particular places or regions.
Seventy-four States have accepted a nuclear weapons ban by becoming party to the Treaty on the Prohibition of Nuclear Weapons, an arms control treaty that prohibits their possession, use, and numerous other categories of activity in relation to nuclear weapons.
Moreover, numerous regional treaties prohibit, inter alia, the entry of such weapons into the areas covered by the respective treaties. Nuclear-Weapon-Free Zone treaties comprise the following:
– Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Treaty of Tlatelolco), which was opened for signature at Mexico City on February 14 1967, and to which there are 33 parties;
– South Pacific Nuclear-Free Zone Treaty (Treaty of Rarotonga), opened for signature at Rarotonga on August 6, 1985, to which there are thirteen parties;
– Treaty on the Southeast Asia Nuclear Weapon-Free Zone (Bangkok Treaty), opened for signature at Bangkok on December 15, 1995, to which there are ten parties;
– African Nuclear Weapon-Free Zone Treaty (Pelindaba Treaty) opened for signature at Cairo on April 11, 1996, to which there are 43 parties; and
– Treaty on a Nuclear Weapon-Free Zone in Central Asia (CANWFZ), opened for signature at Semipalatinsk on September 8, 2006, to which there are five parties.
Under the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof (Seabed Treaty), to which at the time of writing there are 94 States Parties, participating States agree not to emplace on the seabed, ocean floor or subsoil thereof beyond the outer limit specified in Article 12 (approximately 12 miles) any nuclear weapons, weapons of mass destruction or relevant installations or facilities. This treaty extends the area that States Parties must keep nuclear weapon-free, but does not prohibit ownership, possession, or control of nuclear weapons as such.
Under Article IV(1) of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (Outer Space Treaty, OST), States Parties “undertake not to place in orbit around the earth any objects carrying nuclear weapons or any other kinds of weapons of mass destruction” and not to install them on celestial bodies or otherwise station them in outer space. The OST therefore has a similar effect of extending the geographical extent of nuclear weapon-free areas to that described earlier in relation to the Seabed Treaty. Neither Treaty, however, prohibits State Parties from possessing nuclear weapons as such.
Yet, States supporting inherent illegality will justifiably point to the substantial number of States that are party to these treaties in support of their preferred view. States that argue for the legality of nuclear deterrence will note that numerous umbrella States derive increased national security from alliances that they may have with nuclear-weapon States. Whether this means that those States necessarily support nuclear deterrence or reluctantly believe that having umbrella status is the preferred practical approach in a nuclear-weapon world is an open question.
The point made here is a simple one. There are numerous States on either side of this controversy, and the positions that States take on these matters seem to have much to do with their perceptions, accurate or otherwise, of where their strategic best interests lie.
Conclusion
The concluding remarks in this, the first post in this series, can be brief. While there is likely to be general agreement among States that the consequences of an actual employment of a nuclear weapon are likely to be dire, there is a fundamental dichotomy of views as to the lawfulness of possessing the instruments that would generate such catastrophic consequences. That division of opinion has much to do with States’ perceptions of their own security interests. Nuclear weapon powers and their close allies tend to view nuclear deterrence as contributing significantly to national security. Non-nuclear-weapon States will note the lack of progress on Non-Proliferation Treaty Article VI obligations and will frequently contend that nuclear weapons are inherently unlawful because they are incapable of use in compliance with customary international law principles and rules.
It is this vitally important division of views that we build on in the second post in this series, which examines how effectively treaties have contained the threat of nuclear weapons.
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Air Commodore William H. Boothby retired as Deputy Director of Royal Air Force Legal Services in July 2011. He is Honorary Professor at the Australian National University and also teaches at the University of Southern Denmark and at the Geneva Centre for Security Policy.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Stephen Cobb via Unsplash
