Nuclear Disarmament: Trick or Treat?
...nal control. Accordingly, a mass of proposals and discussions have generated from the UN General Assembly (UNGA), the various Special Sessions on Disarmament (SSOD I & II), and the Conference on Disarmament (CD) and its numerous predecessors. The UN’s commitment to nuclear disarmament is expressed by the fact that the resolutions pertaining to the issue have been adopted at every single session of the UNGA. The most consequential of which is Resolution 1653 adopted at the 16th session of the GA, prohibiting the use of nuclear weapons on the basis that it constitutes a violation of the UN Charter and the laws of humanity. A string of subsequent resolutions have declared prohibitions upon the production of fissionable material for nuclear weapon purposes, and the use of nuclear ‘neutron weapons’, as well as reiterating the illegality of nuclear weapons under the UN Charter. Despite the fact that these resolutions do not of themselves have a legally binding status, they nevertheless have shaped an international moral code that regards the use of nuclear weapons as criminal. Further affirmation of the abhorrence towards nuclear weapons within the international community is found within the plethora of regional and geographically orientated agreements constructing nuclear free zones. Nuclear Weapon Free Zones (NWFZ) create “an international legal prohibition against any nuclear weapon within a defined geographical region.” NWFZ have been recognised as a salient “part of the architecture that can usefully encourage and support a nuclear weapon free world”. Not only are NWFZ effective mechanisms for addressing nuclear tensions, but they act as an organ for the dissemination of nuclear disarmament principles across the globe. To date approximately half the earth’s surface is covered by a NWFZ, namely , Latin America, the South Pacific, Southeast Asia, and Africa. Complimenting these agreements are three further treaties demarcated specific denuclearised zones: The Antarctic Treaty, The Outer Space Treaty, and The Seabed Treaty. The various initiatives designed to regulate international nuclear trade constitute the final area for consideration. While it is recognised that these groups did not evolve with the specific goal of nuclear disarmament they are concerned with preventing the production of nuclear weapons and hence constitute an important component in the international disarmament regime. In 1977, the principal nuclear supplying states met to discuss ways of strengthening monitoring mechanism over nuclear trade. Of primary importance was the desire to extend surveillance to states not party to the NPT and who therefore escaped the IAEA safeguard system. Out of these discussions emerged the Nuclear Suppliers Group (NSG) and the adoption of a uniform code of conduct governing the interstate trade of nuclear materials. This essentially involved a list of materials, equipment and technology that trigger IAEA safeguards, thus bringing non-NPT nations under the purview of the IAEA. In recent times, the NSG has taken positive steps to strengthen both internal cooperation and monitoring capabilities. in 1992, the NSG added nuclear related dual use materials, equipment and technology to its list as well as stipulating a number of factors that must be taken into consideration in export licensing. Under these changes, judgements as to the appropriateness of the items requested and the trustworthiness of the user must be made. II. The legality of Nuclear Weapons While it is clear that there has been a lot of activity within the international sphere, the question remains whether there is actually a legal requirement to disarm. Thus, before attempting to evaluate the success of international disarmament law, it is necessary to consider the legal position of nuclear weapons. Discussions over the legality of nuclear weapons have produced two opposing camps: those who argue nuclear weapons are per se illegal under international law and those who argue no such law exists. The case for illegality draws upon a number of accepted treaties and principles of customary international law from the laws of war and humanitarian law. While there is considerable variety in the exact arguments put forward, two cardinal principles are common to all. The first is the principle of limitation in the means of warfare, expressed in Article 22 of the 1907 Hague Regulations as ‘the right of belligerents to adopt means of injuring the enemy is not unlimited.’ The principle is given practical expression in Article 23(e), which prohibits the employment of ‘arms, projectiles, or material calculated to cause unnecessary suffering’ and was subsequently reaffirmed in Article 35 of the 1977 Geneva Protocals forbidding the use of weapons that caused ‘superfluous injury or unnecessary suffering.’ Proponents of the illegality case argue that by definition nuclear weapons cause “unnecessary and excessive suffering” and hence constitute a violation of international law. The principal of limitation also provided the rationale behind Article 23(a) of the Hague Regulations banning the use of poisons or poisoned arms. A number of distinguished jurists have argued by analogy that because that ratio legis behind Article 23(a) is the “barbarous character of poisons and poisonous weapons” nuclear weapons are also prohibited. The second basic principle concerns discrimination in the use of force, the idea that weapons should only be directed at military targets and should as far as possible avoid damage to the civilian populations. Article 51 of the Genova Protocol explicitly prohibits the indiscriminate attacks and attacks directed at civilians. Proponents of illegality are unanimous in the view that as nuclear weapons are “inherently incapable of being limited, with any degree of certainty, to a specific military target” there “are no circumstances in which nuclear weapons could actually be used without breaching this fundamental principal” Opposing these arguments are supporters of the view that nuclear weapons are legal per se. The foundation of this position is rooted in the belief that “consent is the basis of all obligation in international law.” Hence, although states may have recognised the desirability of nuclear disarmament and have orchestrated a variety of mechanisms to achieve it, there is no explicit or even implicit evidence that states consider nuclear weapons illegal. The essence of the position is encapsulated by the following extract from a US military manual: There is at present no rule of international law expressly prohibiting a state from the use of nuclear weapons in warfare. In the absence of any express prohibition, the use of such weapons against enemy combatants or other military objectives is permitted. In sum, it is argued that it is the manner in which nuclear weapons are used that is subject to international law, not the weapons thmselves. The very existence of treaties, conventions, and resolutions regulating the use of nuclear weapons are regarded as proof of the legality of nuclear weapons within international law. Accordingly , proponents of the legality case reject the application of principles of law emanating from treaties governing conventional weapons to nuclear weapons and place emphasis upon the quasi-legal status of the UN resolution to infer their ‘irrelevance’. Furthermore, they refute the contention that the Geneva Protocols have any bearing on nuclear weapons, pointing to the express reservations made by the US, UK and France before signing the Protocols. While the above argument are undeniably instructive, any understanding of the legal status of nuclear weapons must ultimately give reference to the opinion of the ICJ. In response to a request made by the UNGA, on July 8, 1996 the ICJ handed down an Advisory Opinion as to the legality of the threat and use of nuclear weapons under international law. The court issued the following judgements: firstly, that international law neither specifically prohibits or authorises the threat or use of nuclear weapons; secondly, the threat or use of nuclear weapons must not only comply with Articles 2(4) and 51 of the UN Charter but must also be compatible with international humanitarian law in general as well as any specific nuclear disarmament laws; and thirdly, under international law each state had an obligation to pursue in good faith nuclear disarmament. The fourth and most polemic of all was that: [t]he threat or use of nuclear weapons would generally be contrary to the rules of international law…[but]…the Court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful in extreme circumstance of self-defence, in which the very survival of the state would be at stake. Basically, while the ICJ was recognising the unlawfulness of the threat or use of nuclear weapons in the majority of circumstances it was not prepare to render it illegal in every circumstance. The judgement effects the legal status of nuclear weapons in two main ways. Firstly, and paradoxically, while the judgement strengthened the illegality case in many respects it also irrevocably impaired it by essentially legalising the threat or use of nuclear weapons in certain situations. Secondly, although the Court did not specifically address the legality of the possession of nuclear weapons, the court’s reasoning is consisting with the argument that nuclear weapons are legal per se. The decision did not challenge a state’s right to have nuclear weapons and thus, “not one nuclear power will have to dismantle a single nuclear weapon as a consequence of the ruling. III. The Application and Effectiveness of International Disarmament Law Armed with an understanding of the various components of the international disarmament regime and the legal position of nuclear weapons, it is apposite to make comments as to the nature and effectiveness of the law. As is typically the case, the best way to distinguish the tricks from the treats is through a survey of what is actually happening. It is estimated that there are 40,000 nuclear warheads in the world today, this fact alone demonstrates that not only has nuclear disarmament not happened by that it is not going to happen any time soon. Even more disturbing is the fact that stockpiles of nuclear arsenals have increased dramatically in the last twenty years. The danger posed by these quantitative increases is magnified ten fold by rapid advancements in nuclear technology and hence the power, potency, and destructiveness of nuclear weapons. The actions and mentality of NWS, as demonstrated by the centrality of nuclear weapons to contemporary defence policies, exposes the perfidiousness of their ‘support’ for disarmament. This point was articulated by Captain David Humphrey , when he stated that any adverse opinion by the ICJ over the legality of nuclear weapons would simply “be ignored by the nuclear powers” as it is “inconceivable that the nuclear powers would be presently prepared to relinquish possession of nuclear weapons.” The depth of the gulf between law and practice is most poignantly expressed within the actions and policies of the world’s most powerful nation and the ‘defender of freedom and liberty’-America. The general position of the US is epitomised by its involvement with the CTBT: after much political pageantry over the importance of the treaty first, two and a half years passed before it was presented to the Senate Committee and promptly rejected. More specifically, US policies make it clear that in addition to improvements over the capabilities of existing weapons it is planning to develop comprehensive ‘life extension plans’ to ensure an enduring stockpile. However, not content with existing capabilities, the 1994 Nuclear Posture review called upon the Energy Department to ‘design, fabricate and certify new warheads.’ To facilitate the development of this new class of ‘modernised’ weapons the Energy Department is allocating $4.5 billion dollars a year for 15 years, this figure exceeds the average annual spending at the peak of the Cold War. The resurgence in funding has already produced a new ‘earth penetrating ‘ nuclear weapon and plans for the development of an anti-ballistic missile shield and a pure fusion bomb. Both of these developments threaten to destabilise the international order by refuelling a nuclear arms race. Extensive funding into the training of a new generation of nuclear weapon experts is further proof that nuclear weapons are here to stay. The above analysis demonstrates how political will constitutes a formidable obstacle to the implementation of law, often resulting in two very different interpretations of nuclear disarmament. While recognition of the role of politics is invaluable to any assessment of nuclear disarmament, an understanding of the weakness of the law itself is also imperative. A critique of the substantive quality of nuclear disarmament law must therefore focus on two aspects, firstly upon the legal status of nuclear weapons, and secondly upon the effectiveness of legal rules governing nuclear weapons. The ICJ clarified the legal status of nuclear weapons when it made it clear that while international law obliges states to pursue negotiations on nuclear disarmament in good faith there is no legal requirement for states to disarm. The absence of any such prohibition on nuclear weapons provides a “striking example of the gap between the goal set by the UNGA and the substance of the norms established by positive law.” Thus, despite the fact that the UNGA has repeatedly expressed its’ abhorrence of nuclear weapons and has called for general and complete disarmament under international control, states still retain the right to possess them. The resistance to the total prohibition of nuclear weapons, as opposed to rules regulating the threat and use of them, stems from their unique capacity to destroy an entire nation within seconds. This capability provides a deterrent to the extent that the mere possession of “nuclear weapons guarantees security of the state against external attack. This strategic advantage represents a powerful incentive for states to maintain their nuclear capacity and resist disarmament. Hence, until the law prohibits the existence of nuclear w...