November 24, 2016

The Illegality of Nuclear Weapons

If international law as an institution is to have any relevance, it must apply to critical issues. Nuclear weapons do not fall beyond its scope – indeed they pose its most critical test. These instruments of terror, through their ordinary use, cause human suffering on an unimaginable scale. They violate fundamental principles of international humanitarian law, as well as treaties protecting human rights and the natural environment. Their continued existence in the thousands undermines the very notion of the rule of law, reinforcing instead a system of rule by force, whereby a small number of nations threaten to inflict mass destruction on others in order to achieve political objectives.

This is patently unacceptable – and unsustainable. Any government, organization or individual who values international law must work energetically to advance a world in which such weapons are no more. Nuclear disarmament should be among the highest priorities of all nations. But many seem complacent about this fundamental threat to our future. Nuclear weapons cast a shadow over us all, and must be abolished before they are ever used again.

In its landmark advisory opinion handed down in 1996, the International Court of Justice observed that “[t]he destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilisation and the entire ecosystem of the planet”.1International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, para. 35 (‗ICJ Advisory Opinion‘). It highlighted their unique characteristics:

“The radiation released by a nuclear explosion would affect health, agriculture, natural resources and demography over a very wide area. Further, the use of nuclear weapons would be a serious danger to future generations. Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations.”2Ibid.

Given these attributes, it is clear that nuclear weapons could not be used in conformity with international humanitarian law, which prohibits the use of weapons that cause unnecessary suffering and whose effects cannot be controlled. Radiation is inherently uncontrollable. Even the blast, heat and electromagnetic pulse effects of nuclear weapons are beyond the control of any state possessing these devices.3Charles J Moxley, John Burroughs and Jonathan Granoff, ―Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty,‖ Fordham International Law Journal, vol. 34, no. 2 (2011) p. 642. Because of their uncontrollability – and for other reasons as well – nuclear weapons violate the rules of distinction, proportionality and necessity.

The president of the International Committee of the Red Cross, Jakob Kellenberger, summed up the uniqueness of nuclear weapons in a speech delivered in April 2010 in advance of the five-yearly nuclear Non-Proliferation Treaty Review Conference: “Nuclear weapons are unique in their destructive power, in the unspeakable human suffering they cause, in the impossibility of controlling their effects in space and time, in the risks of escalation they create, and in the threat they pose to the environment, to future generations, and indeed to the survival of humanity.”4“Brining the Era of Nuclear Weapons to an End”, Geneva, 20 April 2011.

Today there are more than 20,000 nuclear weapons in the arsenals of eight or nine countries.5SIPRI Yearbook 2011. (There is still some uncertainty as to whether North Korea has developed operational nuclear bombs.) The average nuclear weapon today has an explosive yield 20 to 30 times greater than that of the Hiroshima bomb. The combined destructive force of all nuclear weapons in the world is equivalent to 150,000 Hiroshima bombs.6International Commission on Nuclear Non-Proliferation and Disarmament, Eliminating Nuclear Threats: A Practical Agenda for Global Policymakers (2009) p. 13. Almost 2000 nuclear weapons are maintained on high-alert status – ready to wreak havoc at any moment, either by accident or through an act of madness.

A single nuclear bomb, if detonated on a large city, could kill millions of people. No effective humanitarian response would be possible, with most medical infrastructure in the city destroyed and any outside relief efforts severely hampered by high levels of radioactivity – a silent, scentless, invisible and persistent killer. Any use of nuclear weapons would be a catastrophe beyond our imagination. The only sane path is to eliminate these monstrous weapons from all national arsenals – urgently.

Indeed, nuclear disarmament is mandated by international law. As the International Court of Justice affirmed in its advisory opinion, “[t]here 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”.7ICJ Advisory Opinion, para. 105. This is best fulfilled through a nuclear weapons convention – a comprehensive treaty prohibiting the possession of nuclear weapons by any state, and establishing the legal mechanisms necessary to accomplish the elimination of all warheads within a defined period. More than two-thirds of United Nations member states support this approach,8International Campaign to Abolish Nuclear Weapons, Guide to Government Positions on a Nuclear Weapons Convention (2010). but nuclear powers and their allies are resisting progress towards this end.

The International Campaign to Abolish Nuclear Weapons and its partner organizations are working to build popular and political support for negotiations on such a treaty at the earliest possible date. Similar agreements have been concluded to outlaw and eliminate other categories of weapons deemed by the international community to cause unacceptable humanitarian harm – from biological and chemical arms to anti-personnel land mines and cluster munitions. All of these treaties have changed state practice and resulted in meaningful disarmament. Nuclear weapons must not be the exception. A convention banning the nuclear bomb is long overdue.

It is a cause for great concern that, despite the existence of an international legal obligation to disarm and the continuing risk of nuclear weapons proliferation and use, there is no genuine multilateral process presently under way to eliminate nuclear weapons. The New START agreement recently concluded by Russia and the United States only skims off the surface of these nations‘ enormous arsenals, which account for 95% of the global stockpile. The three other Non-Proliferation Treaty nuclear-weapon states – Britain, France and China – are also failing miserably in their duty to disarm. Similarly, Israel, India and Pakistan – which are still legally obliged to disarm, despite being outside the NPT – are not engaged in disarmament efforts, and little has been done to bring them into a multilateral process.

In fact, in spite of the support declared by some nuclear-armed states for “the vision of a world free of nuclear weapons”, all are investing billions of dollars in the modernisation of their nuclear forces – an activity that cannot be reconciled with the requirements of international law. It is estimated that in 2011 they will spend more than $100 billion between them bolstering their nuclear arsenals, including through the development of new nuclear weapon delivery vehicles.9Global Zero, ―World Spending on Nuclear Weapons Surpasses $1 Trillion per Decade‖ (2011). This sum is equal to the UN regular budget for 50 years. According to the World Bank, an annual investment of just half that amount – between $40 and $60 billion – would be enough to meet the Millennium Development Goals to eliminate extreme poverty worldwide.

In the United States, $185 billion of funding has been allocated to the nuclear weapons complex over the next decade, on top of the regular nuclear weapons budget of more than $50 billion a year, despite US President Barack Obama being more supportive of disarmament than any of his predecessors. It has been reported that the Pentagon is pushing for the development of nuclear-armed drones. Meanwhile, Britain is poised to renew its fleet of aging nuclear-armed Trident submarines with a price tag of £76 billion – an obscene outlay considering that schools, hospitals and other social services are being starved of funding.

The nuclear-armed states are also flouting their obligations under international law by maintaining the doctrine of nuclear deterrence, which involves a threat to use nuclear weapons in certain circumstances. The International Court of Justice stated in its advisory opinion: “If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in such use would also be contrary to the law”.10ICJ Advisory Opinion, para. 78. Indeed, the United States itself acknowledged this during the proceedings, arguing against the illegality of nuclear weapons on the basis that “it is impossible to separate the policy of deterrence from the legality of the use of the means of deterrence”.11Oral testimony by the United States on 15 November 1995. In other words, the lawfulness of the policy of nuclear deterrence depends upon the lawfulness of the underlying use. Given that nuclear weapons cannot lawfully be used, their use may not be lawfully threatened.12Moxley, Burroughs and Granoff, above, p. 676.

This has implications for Australia and other US allies that subscribe to the doctrine of extended nuclear deterrence. The Australian Department of Defence stated in its White Paper of 2009 that: “For so long as nuclear weapons exist, we are able to rely on the nuclear forces of the United States to deter nuclear attack on Australia. Australian defence policy under successive governments has acknowledged the value to Australia of the protection afforded by extended nuclear deterrence under the US alliance. That protection provides a stable and reliable sense of assurance.”13Defending Australia in the 21st Century: Force 2030 (2009) p. 50.

Such protection, however, is incompatible with the requirements of international law. Involvement in extended nuclear deterrence gives legitimacy to these illegal weapons of mass destruction and sends a message to would-be proliferators that they are a source of great security, not insecurity. So long as any country purports to rely on nuclear weapons, its credibility as a disarmament advocate is greatly diminished. With a US president who is quite sympathetic to the cause of nuclear disarmament, the time would appear ideal for Australia and other “nuclear umbrella states” to adopt nuclear-weaponfree defence postures, and begin contributing meaningfully towards disarmament.

International law is a potentially powerful tool at our disposal to challenge nuclear weapons and advance their abolition. It has taken the dreadful nuclear crisis at Fukushima for many governments around the world to wake up to the inherent dangers of nuclear power for electricity production. It must not take another Hiroshima or Nagasaki – or an even greater tragedy – before they finally muster the will to outlaw and eliminate nuclear weapons.

 

ABOUT THE AUTHOR

  • THE RIGHT HONOURABLE MALCOLM FRASER AC, CH, is a former prime minister of Australia and supporter of the International Campaign to Abolish Nuclear Weapons (ICAN)

References   [ + ]

1. International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, para. 35 (‗ICJ Advisory Opinion‘).
2. Ibid.
3. Charles J Moxley, John Burroughs and Jonathan Granoff, ―Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty,‖ Fordham International Law Journal, vol. 34, no. 2 (2011) p. 642.
4. “Brining the Era of Nuclear Weapons to an End”, Geneva, 20 April 2011.
5. SIPRI Yearbook 2011.
6. International Commission on Nuclear Non-Proliferation and Disarmament, Eliminating Nuclear Threats: A Practical Agenda for Global Policymakers (2009) p. 13.
7. ICJ Advisory Opinion, para. 105.
8. International Campaign to Abolish Nuclear Weapons, Guide to Government Positions on a Nuclear Weapons Convention (2010).
9. Global Zero, ―World Spending on Nuclear Weapons Surpasses $1 Trillion per Decade‖ (2011).
10. ICJ Advisory Opinion, para. 78.
11. Oral testimony by the United States on 15 November 1995.
12. Moxley, Burroughs and Granoff, above, p. 676.
13. Defending Australia in the 21st Century: Force 2030 (2009) p. 50.
Rob van Riet

About Rob van Riet

Rob van Riet is Coordinator of the Disarmament Programme at the World Future Council. In addition, he has been U.K. Coordinator of Parliamentarians for Nuclear Nonproliferation and Disarmament (PNND) since 2011 and has served as the Director of the Nuclear Abolition Forum since its founding in 2011. He was a co-author of the InterParliamentary Union/PNND Parliamentary Handbook Supporting Nuclear Non-Proliferation and Disarmament, released during the 127th Inter-Parliamentary Union Assembly in Quebec City, Canada, in October 2012.

  •