Nuclear Weapons Part III – What Is To Be Done?

Editors’ note: This is the third of a four-part post on legal considerations applicable to nuclear weapons.

If the prospects for significant nuclear disarmament in 2026 or indeed in the foreseeable future do not appear to be particularly rosy, can anything be done to row the world back from the nuclear precipice? The answer would seem to be yes, but realism will be vitally important. Such realism includes an appreciation of the status quo, which is accurate and balanced. It is thus right to acknowledge that at the time of writing, there are clear indications that the world is on the brink of a nuclear arms race. Such an arms race will comprise numerous facets. These will include, but not be limited to, increasing numbers of nuclear warheads, the development of new kinds of nuclear weapons such as Poseidon, and the development of new technologies for use in connection with nuclear weapons (e.g., artificial intelligence).

This third post of the series introduces a few of the author’s thoughts on what might be done to convert a situation in which the status of nuclear weapon holdings continues to worsen, into a position in which that deterioration process is arrested or even reversed. These thoughts are intended to be of practical use. If they or any of them are not, they should simply be ignored.

Ideas on Structuring Priorities and Legal Considerations

1. The first thought is that we need to be clear-eyed about where exactly the priorities lie. To be sure, foolish threats and rhetoric in which nuclear weapons use is being contemplated—including discussion among experts, self-appointed or actual, in which the potential employment of a nuclear weapon is treated as anything other than a likely global outrage; academic discourse that gives the impression that nuclear weapons are “just another weapon”—anything of this nature becomes unacceptable. Being clear-eyed may require that we accept what many justifiably regard as unacceptable, namely the reality that nuclear weapons exist and will likely continue to do so for many years into the future. The priority therefore, in that unsatisfactory status quo, is to ensure that they are not used. Establishing, maintaining and always supporting a global taboo against use becomes the important first thought.

2. The second thought is that circumstances which might cause certain States to be tempted to consider use of nuclear weapons must be avoided. In its controversial non liquet the International Court of Justice could not exclude the possibility of use being lawful in extreme circumstances of self-defence “when the very survival of the state is at stake.” Russian leaders have such defensive use to maintenance of the territorial integrity of the State, and it is by no means clear exactly how Russia and indeed other States and tribunals would choose to interpret these notions. Departing from these very general notions, perhaps a more legally productive way forward would be to consider the development of an internationally agreed list of cumulative circumstances that must exist before the possible use of nuclear weapons should even be contemplated. The author is not confident that what follows is necessarily exhaustive, nor that each item is appropriately drafted; nevertheless, the following would seem to be among the situations that must be present before the possibility of nuclear weapons use could conceivably be legally considered.

2.a. That the existing situation can reasonably be interpreted as placing the continued existence of a substantial population in immediate peril. That a State may not survive as a political entity would not be a sufficient circumstance for this condition to apply. However, if the particular situation that has arisen immediately threatens to wipe out a sufficiently large population of people, this might be a situation which, if the other factors in this post apply, could justify consideration of defensive nuclear weapon use.

2.b. That absolutely every political and diplomatic avenue has been pursued in order to avoid recourse to nuclear weapon use. This will be a difficult condition to satisfy. It implies that all forms of political and diplomatic engagement between and involving adversaries have been initiated in good faith, have been pursued as far as humanly possible and have in every case proved to be entirely non-productive. Such engagement must have involved discussion and negotiation over the originating dispute, over how it might be resolved, over whether the continuation of the armed conflict can be avoided, over whether particular weapon systems and/or weapon platforms can be relocated or withdrawn altogether, over whether certain allies or coalition members might cease to be involved in order to ease down tensions; and over a variety of other measures the relevance of which will depend on the conflict’s particular circumstances. The avenues mentioned in the first sentence may be established collective avenues such as the United Nations including the UN Security Council, regional organisations, international courts and tribunals, and the like. They will also include the possible establishment of ad hoc arrangements and institutions to facilitate such engagement, including with the assistance of suitable intermediaries.

2.c. That all possible options short of nuclear weapon use have been carefully considered and have, for the most compelling reasons, been reasonably rejected. The State that is contemplating nuclear weapon use must, it is suggested, be prepared to demonstrate to third parties, including any neutral State that is at risk of being affected by a nuclear explosion, that this condition has been satisfied.

2.d. That it is sufficiently probable (meaning that it is as near to certain as can be) that a use of a nuclear weapon will achieve the military purpose for which such use is being contemplated. If that high standard cannot be assured, nuclear weapons must not be contemplated.

2.e. That the accomplishment of the military purpose mentioned in 2.d. is absolutely necessary. Absolute necessity in this context means that no other military method or means of warfare could (not would) achieve that purpose and the word absolute implies that this is not a speculative assumption but is based on an objective assessment of the factual situation.

2.f. That the successful accomplishment of the military purpose referred to in 2.d. is not only strictly necessary (2.e.) but will also be strictly proportionate to the sum of the damage, injury and death that planners, commanders and decision-makers who are contemplating undertaking the nuclear strike should foresee as liable to be caused by that strike.

Notwithstanding the principle of distinction referred to earlier in this series of posts, it is suggested that, in the highly exceptional situation where a nuclear strike is being even contemplated, all damage and casualties, whether military or civilian should be assessed and reflected in the proportionality calculation. This is because it is felt that the proportionality assessment in such a context is more akin to an ad bellum proportionality. The likelihood of the use of a nuclear weapon triggering a nuclear exchange involving the use of a nuclear weapon in response by the adversary and/or its allies seems to suggest that the ad bellum approach to proportionality would be more appropriate here.

2.g. Legal advice must have been obtained beforehand from a suitably eminent source that is experienced in the relevant area of law. The use of a nuclear weapon should only be contemplated if that advice unambiguously asserts the lawfulness of the nuclear strike that is being contemplated. The advice must be communicated directly to the decision-maker who must adhere to the detail of any conditions, limitations, precautions, or indeed any other action that is suggested in the advice.

3. The third thought is that the decision to use a nuclear weapon must have been taken by the highest political authority in the using nation. That individual may be expected to receive advice/input from others, including the most senior military commanders. However, the final decision is essentially political and should be taken therefore by the highest national political authority.

4. The fourth thought is that there is no immediacy rule associated with the decision to use a nuclear weapon. Indeed, in compliance with the points made earlier in this section, time should be taken exhaustively to consider all alternatives to such use, and the taking of that time will be irrelevant to the legality of a strike that, in many foreseeable circumstances, will be unlawful anyway.

The foregoing four thoughts or conditions, together with the sub-conditions in item 2, should be regarded very much as a first draft. Some items may have been missed out, some of the wording can, no doubt, be improved. The author certainly would welcome suggestions for improvement.

Responsibilities of Third-Party States

It is always going to be tempting, but unrealistic, to suggest that the responsibility for a use of nuclear weapons rests exclusively with the user State. This is not the right way of looking at it. There are measures that the international community can take that will also tend to reduce the risk of nuclear weapons use. In order to discuss the topic in as balanced a way as possible, it is thought right to list some of such relevant measures as follows:

a. States must comply with the UN Charter Article 2(4) prohibition of the threat or use of force. Threats by one State to use force against another State are likely to reflect increased tensions between States or to cause such increased tensions. So far as is possible such threats should be avoided and peaceable diplomatic engagement should instead be chosen as the way of addressing international disputes and sensitivities. By adhering to this approach, it may be possible to avoid the very situations that, in turn, may cause a State to consider nuclear weapon use.

b. States must not engage in threats to the peace, breaches of international peace or acts of aggression, not least for the reason given in the final sentence in a. above.

c. States must be prepared to call out other States that breach a. or b. and must take appropriate and lawful steps, individually or collectively, to promote compliance with these rules.

d. States must comply with their obligations under Nuclear Non-Proliferation Treaty (NPT) and under associated Safeguards Agreements.

e. States must comply with their obligations under Nuclear Weapon Free Zone (NWFZ) treaties and if a State is not party to a NWFZ treaty in its region, it should consider participation in it.

f. States should consider offering early mediation in international disputes with a view to preventing such disputes developing into major conflicts.

g. Rather than engage in a nuclear arms race, it would be more productive for States to engage in a cooperation and mutual help race in which all strive to address sources of discord and inequality with a view to reducing the likelihood of conflict, including but not limited to armed conflict.

h. In order to avoid, slow or stop the nuclear arms race the factors that appear to be driving the world towards such a race should be assessed by the States participating in it. International engagement should seek to promote a sense of international safety and security, and to deal with sources of international disagreement and discontent promptly with a view to finding early, amicable and mutually satisfactory solutions. Slowing the nuclear arms race, and the broader arms race, would seem necessarily to involve creating the conditions in which such races are increasingly seen as a waste of resources because mutual security has already been achieved by other verifiable means, including but by no means limited to the possession of conventional weapons.

i. All nuclear weapon States should have updated nuclear command, control and communications arrangements in which international law principles and rules are properly reflected.

j. States with the capacity to influence the behaviour and attitudes of other States should exercise such influence in such a manner as to dissuade other States from feeling the need to use, or to rely upon the possession of, nuclear weapons.

k. States must avoid rhetoric that generates conflict and/or that treats nuclear weapon use, or the threat of nuclear weapon use, as anything other than an unlawful activity in anything but the most unusual of circumstances as discussed earlier in this series.

l. States should engage in a variety of processes to enhance mutual understanding. Such processes may take diverse forms including: track 1, 1.5 and 2 engagements; international discussions facilitated by international organizations; regional initiatives, educational activities; informal political, military and educational engagement; discussion of these issues in regional settings; academic and media activities, and so on.

Deceleration and Cooperation Are Critical

The first positive step would be to slow or prevent the nuclear arms race. The use of the word “slow” is advisable. What is needed as a very first step is a reduction in the rate of increase in warheads, linked technologies and capabilities. That might then be a basis for starting to build the kind of international confidence that is a necessary precursor to actually stopping the nuclear arms race. Only then would it likely make sense to start discussions with a view to achieving actual arms reductions.

A vital ingredient will be to reduce international tensions, particularly those involving nuclear-armed States. Numerous categories of actor will all have roles to play in achieving such tension and arms reduction outcomes. These include military commanders at diverse levels, relevant policy staffs, military and other government lawyers, academic and other commentators, the media, humanitarian actors and others. While there is perhaps in the humanitarian community an understandable preference for supporting wide participation in Treaty on the Prohibition of Nuclear Weapons (TPNW), humanitarians may find it more productive to work with the NPT, to aim for a stop to the arms race, to focus on persuading nuclear weapon States to reduce tensions in conformity with the P5 Statement and so on.

While nuclear command, control, and communications (NC3) has been mentioned above, the maintenance of proper command, control and communications systems in the nuclear weapons sphere is of vital practical importance. States have no right, legal or otherwise, to know the detail of each others’ NC3 provisions, but assurance that other States have proper NC3 systems will, if anything, tend to enhance mutual confidence, which will tend to support international security in general.

In any armed conflict, both parties to the conflict in practice share responsibility for how the conflict is conducted. Military discipline, military training, law of armed conflict training, the issuing of laws, commands and instructions by superior commanders to subordinate formations and individuals, the legal review of weapons and methods of warfare, and the issuing of rules of engagement are among the measures designed to ensure that hostilities are conducted lawfully. All of these measures should also be used to ensure that nuclear weapon operations are also carefully controlled and strictly lawful.

Conclusion

Maybe some of the assertions in this multi-part post will be regarded by some as statements of the obvious. There are times, however, when the obvious needs to be stated lest it be forgotten. While there are controversies as to the lawfulness of nuclear deterrent, while some see nuclear weapons as having prevented major power conflict while others deny the link, while some favour the total ban in TPNW while others see the better approach as embracing NPT, all right-thinking observers must agree that the consequences of a use of a nuclear weapon are likely to be awful and that employing such weaponry must be avoided.

The technology, as has been noted, cannot be un-invented, and in a situation of enhanced global insecurity such as that applying at present, states may, rightly or wrongly, cling to the capability that they perceive as having dissuaded external threats; and yet the nuclear arsenals that exist threaten horrendous consequences in fallible hands such as those of human beings. While a giant leap of faith in the direction of total nuclear disarmament might appear to be the ideal, sometimes perfection is the enemy of the good. It is in the hope that this will lead to gradual, verifiable progress and a more realistic kind of global security that the author proposes the measured approach set forth in this post. It will require persistence, hard work and patience, and there can be no guarantees that it will succeed, but then again, there seems little prospect that TPNW will really rid the world of these instruments of annihilation either.

***

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: Vladyslav Cherkasenko