Nuclear Weapons Part II – Can an Arms Race Be Stopped?
Editors’ note: This is the second of a four-part post on legal considerations applicable to nuclear weapons.
In the first part of this post, the fundamental division of opinion between the States that possess nuclear weapons and those that consider such weapons to be inherently unlawful was noted and explored. The post recognised that academic opinion also reflects these key opposing perspectives. The author suggested that the number of militarily significant States that either possess nuclear weapons or that see themselves as benefiting as umbrella States from the security derived from allies’ nuclear arsenals precludes the formation of a customary law rule prohibiting their possession.
In this second part of the post, other manifestations of this Spaltung, or division, are analysed, this time in order to try to work out what needs to happen for nuclear disarmament to morph from a commendable but, as some would see it in the current geostrategic context, improbable theoretical goal into a more broadly embraced objective with some prospect, however tenuous, of realisation.
The Non-Proliferation Treaty
The first manifestation to consider is the differing approaches that States have adopted to two key multilateral treaties. The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), as its name suggests, seeks to preclude the proliferation of nuclear weapons, other nuclear explosive devices, and the ability to manufacture or acquire such weapons. The Treaty aims to achieve this purpose by imposing reciprocal legal obligations on nuclear weapon States not to make such transfers and on non-nuclear weapon States not to seek to receive such transfers. While few international law provisions attract universal and permanent adherence, the 191 States that at the time of writing are parties to the NPT have contributed positively to limiting the growth of nuclear weapon States to a known total of nine.
It is therefore perhaps noteworthy that the five permanent members of the UN Security Council—China, France, the Russian Federation, the United Kingdom and the United States (P5)—in their January 2022 joint Nuclear Statement, underlined that a nuclear war cannot be won and must never be fought. The Statement also reaffirmed their commitment to NPT and to Article VI of that treaty, asserted that none of their nuclear weapons are targeted at each other or at any other State and expressed the “desire to work with all states to create a security environment more conducive to progress on disarmament with the ultimate goal of a world without nuclear weapons with undiminished security for all.” Observers will no doubt reflect that this high-minded text was being adopted only a very few weeks before the Russian invasion of Ukraine, and they will inevitably wonder about the sincerity of at least some of the States when participating in the Statement.
It is equally significant that NATO issued its Strategic Concept in 2022, in which it made clear that the purpose of its nuclear capability is to preserve peace, prevent coercion, and deter aggression. This and the P5 Statement provide the context for considering the key provisions of the NPT.
Articles I and II of that treaty contain the reciprocal non-proliferation obligations that are most vitally important to securing the purposes of the Treaty. Article I requires nuclear weapon States directly or indirectly not to transfer to any recipient nuclear weapons or other nuclear explosive devices or control over such weapons or devices. It also obliges nuclear weapon States not to assist, encourage, or induce non-nuclear weapon States to receive or acquire control over such weapons or devices. Correspondingly, Article II requires non-nuclear States not directly or indirectly to receive the transfer of such weapons or devices or of control over them from any transferor and not to manufacture or acquire them or seek assistance with such manufacture or acquisition.
Article III deals with the important safeguards agreements between non-nuclear weapon States and the International Atomic Energy Agency, by trying to ensure that by-products of the lawful uses of nuclear energy are not diverted to create nuclear weapons. It is, however, Article VI that is of central importance to the current discussion. It stipulates, “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”
The Treaty on the Prohibition of Nuclear Weapons
It was, among other factors, the dissatisfaction of non-nuclear weapon States with the lack of progress under Article VI that led to the negotiation and adoption of the Treaty on the Prohibition of Nuclear Weapons (TPNW). That Treaty bans possession, use, and a lengthy selection of other activities associated with nuclear weapons and other nuclear explosive devices. The Preamble to the Treaty makes it clear that key purposes of the instrument are to achieve general disarmament and, more specifically, achieve and maintain a world free from nuclear weapons.
At the time of writing, no nuclear weapon States have become party to the TPNW, no nuclear umbrella States have become party, and, so far as is known, no nuclear weapons have been destroyed as a direct result of the adoption of the Treaty. Importantly, under Article I(1)(g), a State Party must not, “Allow any stationing, installation or deployment of any nuclear weapons or other nuclear explosive devices in its territory or at any place under its jurisdiction or control.” Under Article II(1)(c), States Parties must declare whether other States have nuclear weapons on the State Party’s territory, and Article IV(4) deals with the setting of deadlines for the removal from State Party territory of nuclear weapons belonging to another State.
Duties of this kind are understandable given the declared purposes of the TPNW, but those duties may be inconsistent with other treaty obligations owed by the State Party. For instance, other obligations to allies or coalition partners, as well as with other treaty obligations owed by the State Party, say to allies or to coalition partners. Such obligations as well as the TPNW provisions referred to in the previous paragraph may therefore dissuade allies with nuclear weapon States from becoming parties to TPNW. It is therefore also worth noting that NATO, in a statement dated December 15, 2020, has stated its opposition to TPNW, and it is clear that NATO’s preference is for NPT, taking the view that the latter treaty provides the only credible path towards nuclear disarmament.
Some observers will no doubt feel that there is more than an element of “picking and choosing” in this declared preference. To express a preference for the non-proliferation regime while conspicuously failing to make progress on one of its important obligations, namely Article VI, might seem rather disingenuous to some. Perhaps, therefore, this is an area in which nuclear weapon States, however belatedly, should be seen to take the initiative. It is thus with considerable hesitation that the author offers the proposals set forth in the third post in this series.
As paragraph 3 of the January 2022 P5 Joint Statement declares,
We reaffirm the importance of addressing nuclear threats and emphasize the importance of preserving and complying with our bilateral and multilateral non-proliferation, disarmament, and arms control agreements and commitments. We remain committed to our Nuclear Non-Proliferation Treaty (NPT) obligations, including our Article VI obligation “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”
Some non-nuclear weapon States, and perhaps a number of readers, will doubt the sincerity of paragraph 3 and will reflect, no doubt, that an ongoing commitment to something on which one seems determined to achieve little or no progress is, in truth, no commitment at all. That is as may be. Paragraph 3 is, however, a useful assertion that can be employed to put pressure on the P5 States that made it, and maybe through them put pressure on other nuclear weapon States. Such pressure will only, however, achieve anything if a realistic method or pathway for achieving progress is being offered. The third and final post in this series considers what a realistic pathway might look like and how it might be pursued. But a number of things need to be said before we get to that concluding discussion.
Nuclear Disarmament
The importance of Article VI of NPT was given a boost in the mid-1990s when the International Court of Justice (ICJ), in its Nuclear Weapons Advisory Opinion, opined, “There exists an obligation 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.” This finding was, it should be noted, adopted unanimously by the Court. The legal nature of such an obligation, namely to negotiate and achieve a specified outcome, may seem somewhat problematic to some. Nevertheless, the importance of nuclear disarmament is being emphasised in the NPT, in the ICJ’s Advisory Opinion, and in the P5 2022 Joint Statement. So, what are the prospects for nuclear disarmament in the world of 2026, and what policy approaches might represent some kind of progress in that regard?
Before we consider the answers to those questions in the third part in the post, we should ask what, for the purposes of this discussion, nuclear disarmament comprises. For the purposes of the present analysis, disarmament can be understood as a net, verifiable reduction in the total number and aggregate explosive value of global holdings of nuclear warheads. Applying qualifying adjectives to the notion of disarmament will then produce composite terms with subtly differing meanings. Balanced disarmament might therefore mean a verifiable process in which all nuclear-armed States reduce their holdings in a manner that ensures an ongoing strategic balance between them. Readers’ proposals to improve the wording of these ideas will be most welcome.
An important, somewhat obvious point must nevertheless be stressed. The science associated with nuclear weapons exists and cannot be un-invented. There will, therefore, always be limits to how far a disarmament process can take us. While the notion of a “world without nuclear weapons” remains a highly desirable goal from so many perspectives, a world without the capability to produce nuclear weapons seems, at the present time, to be unachievable.
Conclusion
A few of the key interim conclusions to be drawn from this second post in the series include:
– TPNW was an understandable “protest vote” driven by non-compliance, importantly by nuclear weapon States, with the obligations that they had accepted in Article VI of NPT;
– While nuclear disarmament is a laudable objective as well as an ICJ-articulated legal requirement, there are likely to be limitations to what is practically achievable, particularly if verifiability is also required;
– The science cannot be un-invented, which may further limit the disarmament that can realistically be expected;
– There continues in general international law to be no explicit prohibition of the possession or use of nuclear weapons;
– There continues to be in general no explicit permission in international law to possess or use nuclear weapons; and
– Nuclear deterrence is a policy actively pursued by a number of militarily highly significant States.
We should therefore bear in mind these conclusions and no doubt other reflections on the status quo as we now move forward to the important topic of the third part of the post, which addresses what is to be done to pull the international community back from the brink of a nuclear weapon catastrophe.
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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: Sergey Omelchenko via Unsplash
