Concrete legal measures and norms to attain and maintain a world without nuclear weapons (1)

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This blog contains comments made by Tim Caughley during the National Red Cross and Red Crescent Societies workshop on implementation of the 2013 Council of Delegates Plan of Action, in Geneva, 30 April – 1 May, ahead of the May sessions of the open-ended working group on taking forward multilateral nuclear disarmament negotiations

By Tim Caughley

You might wonder why—in terms of this topic—it is even necessary to develop concrete legal measures and norms to attain and maintain a world without nuclear weapons.

After all:

  • There are the Geneva Conventions, International Humanitarian Law (IHL) and Customary International Law regulating the use of force in armed conflict.
  • There is the almost 50-year old nuclear Non-Proliferation Treaty (NPT) with its obligations on all parties under article VI to develop effective measures for nuclear disarmament and to end the arms race;
  • There are a number of treaties which establish nuclear-weapon-free zones (NWFZs).
  • There is an Advisory Opinion of the International Court of Justice (ICJ) of 1996 that—echoing article VI of the NPT— concluded that there exists ‘an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament’.
  • There is the moral issue of the sheer horror—the humanitarian consequences—that a nuclear weapon is capable of unleashing: the legacy of ordering the use of a nuclear weapon is surely something that no sane commander in chief or military supremo would regard as bearable except perhaps—to use words from the ICJ Advisory Opinion—in ‘extreme circumstances of [national] self-defence’ (self-defence being an exception to the UN Charter’s proscription of the use of force).

And, there are several other factors to mention or expand on in relation to existing laws and norms.

First, there are IHL rules on the use of explosive weapons in populated areas for which a reminder is perhaps warranted about IHL’s relevance to nuclear armaments specifically:

I am referring in particular to:

  • The prohibition of direct attacks on civilians or civilian objects.
  • The prohibition of indiscriminate and disproportionate attacks.
  • The obligation to take all feasible precautions in attack.

Given the foreseeable wide area and devastating effects of nuclear arms (based on evidence of their use in Hiroshima, Nagasaki and in testing), it is hard to imagine that they could be used in a manner that discriminates between military objectives and civilians or civilian objects.

Given also that today’s battlegrounds generally occur in populated areas, nuclear detonations are highly likely to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. It is not only the searing heat and blast of a nuclear explosion around its epicentre: it is also the resulting ionizing radiation that lingers longer afterwards.

Given these effects of explosive weapons, the attacker’s ability to comply with IHL in populated areas will depend heavily on its choice of means and methods of warfare. In this regard, we know that all states that possess nuclear arsenals are also well armed with powerful conventional weapons as alternative means of warfare.

Second, it is not irrelevant in relation to existing norms to mention two related realities. The so-called ‘taboo’ against the use of nuclear weapons has been in existence 70 years now. Additionally, nuclear-armed states sometimes claim that they do not intend to use their nuclear weapons: that their sole purpose is to deter others from using nuclear weapons against them, a doctrine at the centre of the defence strategies of nuclear weapon-possessing states and on which some of their allies rely.

So, to conclude this opening segment, there is a lot that can be said individually and collectively about various constraints on use of nuclear weapons. It can also be said by reference to the NPT and the ICJ (albeit in an advisory opinion) that there is an obligation actually to disarm.

The fact remains, however, that there is no explicit equivalent in relation to nuclear armaments to the prohibitions on possession and use that govern other weapons of mass destruction. Compared with the regimes on biological and chemical weapons, a ‘gap’ can be seen to exist. Those states that believe that there has been insufficient fulfilment of the obligation to disarm argue that if a nuclear-weapon-free-world is to be attained and maintained sooner or later such an express prohibition will be required.

Indeed, the recent UNIDIR/ILPI paper “A Prohibition on Nuclear Weapons’ had as its starting point the fact that at present, no United Nations member state appears to dispute the goal of a world without nuclear weapons, or the fact that such a world would need to have in place a legal regime that prohibits these weapons.

What are the options for filling such a gap in international law affecting weapons of mass destruction?

Magnus Løvold (ILPI) will cover processes or pathways along which states may feasibly pursue ways and means for overcoming that anomaly including the forums which they might want to utilize, existing or new. I will briefly outline some of the legal elements that, irrespective of the vehicle or vehicles they are embodied in, will be needed to fill the gap in international law.

The ILPI/UNIDIR paper just mentioned outlines (from page 25 onwards) not only a range of possible prohibitions—that is, what states must not do in relation to nuclear weapons production, possession, use etc., but also the obligations which states would need to undertake in order to comply with the prohibitions. For example, in the case of nuclear-armed states, these obligations would have as their objective the transitioning from possession to non-possession of nuclear weapons.

Fundamental obligations will entail strict observance of the verification mechanism negotiated as part of the process of eliminating nuclear weapons. Each of the nuclear-armed states will want to be assured that the elimination obligations apply equally to all possessors, and that the destruction of all nuclear weapons can be verified in such a manner that duplicity is prevented. At the point at which the last weapons in the individual arsenals of nuclear armed state are purged, the stakes against ‘breakout’ by any other possessor or possessors will be enormous. Regardless of the form and modalities of the verification mechanism, its main role will be the same for all arms control treaties, namely, to deter cheating.

A more recent and succinct statement of relevant legal elements can be found in the Synthesis Paper prepared by the Chair of the United Nations Open-ended Working Group Taking Forward Multilateral Nuclear Disarmament Negotiations (OEWG) circulated on 21 April 2016.

  • 11. Core prohibitions needed to achieve and maintain a world without nuclear weapons include, inter alia, measures relating to any use, acquisition, possession, stockpiling, transfer, development and production of nuclear weapons.
  • 12. Additional core prohibitions can include measures relating to the provision of assistance to any nuclear weapon programme, including financing, accepting the deployment on one’s territory of nuclear weapons possessed by a third-party, permitting visitation, transit or overflight of nuclear weapons through one’s territory and the provision of special fissionable material that is not subject to comprehensive safeguards of the International Atomic Energy Agency.’

The Chair noted that ‘victim assistance, decontamination and remediation are other dimensions yet to be fully explored as possible essential elements comprising any effective legal measures, legal provisions and norms.’ A more detailed list of possible essential elements is set out in annex I of the synthesis paper.

So, is it all plain sailing towards filling the perceived gap? No, the notion of the existence of a gap is being challenged, most recently in the OEWG. For instance, some states such as allies of nuclear arms-possessors, Canada and the Netherlands, contest the existence of a gap and have tabled their reasoning officially in the Working Group. In essence, however, their arguments are based on placing a greater level of faith on article VI of the NPT than that of many other non-nuclear weapon states.

And, in Canada’s case it should be noted that that country acknowledges that its disarmament policy ‘in fact foresees a prohibition on nuclear weapons’ albeit as part of a ‘final comprehensive and verifiable convention that would help maintain complete disarmament’.

This entry was posted in Comments. Last updated May 31, 2017.