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Nuclear weapons and international law
Contents
The illegality of nuclear weapons
International law regulates the relations among states in times of peace as well as war. It consists of both customary law and treaty law. Customary law is binding on all states, whether they have signed a certain treaty or not. Treaty law is based on the consent of states to the obligations contained in a negotiated agreement. Humanitarian law — rules about the protection of combatants and civilians during armed conflict — is part of international law.
According to humanitarian law, weapons that cause unnecessary harm to civilians may not be used. Nuclear weapons cannot distinguish between civilians and soldiers. The International Court of Justice issued an advisory opinion on July 8, 1996, stating that the use or threat of use of nuclear weapons would generally be contrary to the principles of international law. It concluded unanimously that all states have an obligation to commence and conclude negotiations on complete nuclear disarmament.
International treaties
Nuclear weapons are regulated by a number of treaties. However, there is not yet a convention establishing the juridical, technical and political terms for the total elimination of nuclear weapons, as is the case for chemical and biological weapons. The Nuclear Non-Proliferation Treaty goes part way towards this goal. The NPT was introduced as international law in 1970. At that time, five nuclear-weapon states existed: the United States, the Soviet Union (today Russia), the United Kingdom, France and China.
Since then India, Pakistan, Israel and North Korea have developed nuclear weapons. The first three of these states have never been NPT members, while North Korea was a member but withdrew from the treaty in 2003. The NPT is the only legally binding instrument that establishes an obligation for nuclear disarmament, defined in Article VI. In the NPT, nuclear-weapon states also make a commitment not to assist in the transfer of nuclear weapons to non-nuclear-weapon states. The non-nuclear-weapon states commit not to acquire nuclear weapons.
The NPT has three related objectives: eliminating nuclear weapons, preventing the proliferation of nuclear weapons, and facilitating the use of nuclear technology for peaceful purposes. The 189 member states meet every five years for a review conference to assess the implementation of the treaty. Between these review conferences, member states meet once per year — except for the year immediately following a review conference — in preparatory committees. The decisions of a review conference become binding disarmament and non-proliferation policy for the states parties to the NPT.
Treaties banning nuclear testing
The Partial Test Ban Treaty was concluded between the United States, the Soviet Union and the United Kingdom in 1963, and ended harmful nuclear testing in the atmosphere and underwater. France and China did not join the treaty. With the PTBT the health risks from nuclear testing decreased but were far from eliminated, since nuclear-weapon states continued underground nuclear testing.
The Comprehensive Nuclear Test Ban Treaty was negotiated in 1996 and prohibits all nuclear tests, both underground and above the surface, underwater and in outer space. So-called peaceful nuclear tests above specified yields were prohibited under the Peaceful Nuclear Explosions Treaty of 1976, and are forbidden altogether under the CTBT. The CTBT establishes an extensive international monitoring system and allows short-notice inspections of nuclear and research facilities. The CTBT has not yet entered into force, as it must be ratified by all 44 states with nuclear facilities.
So far only 35 of these states have signed and ratified the treaty. Although the CTBT has not yet entered into force, the United States, Russia, the United Kingdom, France and China are adhering to voluntary moratoria on nuclear testing. India and Pakistan, which have refused to sign the CTBT, said they would no longer test after their 1998 nuclear tests. Israel, which has not acknowledged that it possesses nuclear weapons and has not ratified the CTBT, has not tested.
North Korea has not signed the CTBT, and tested nuclear weapons in 2006 and 2009. A preparatory commission for the Comprehensive Nuclear Test Ban Treaty Organization has been established to prepare for the entry into force of the treaty and to provide details on its status. Pending entry into force, the CTBTO is already functioning and operates the international monitoring system.
A treaty banning fissile materials
A Fissile Material Cut-off Treaty has not yet been negotiated, but is widely discussed in the Conference on Disarmament in Geneva. The FMCT would prohibit the production of fissile material for nuclear weapons purposes. Today states disagree on the scope of an FMCT. Some states claim the treaty should only cover the production of fissile material. This would mean states with large existing stocks of weapons-grade material would not be significantly affected by the treaty. Other states want the treaty to include control and reductions of existing stocks, which would mean a much greater leap towards disarmament.
There is also disagreement about verification and transparency in states’ stocks of nuclear materials. Many member states in the Conference on Disarmament advocate for negotiations on an FMCT to take place without preconditions — meaning states would deal with problems and disagreements as they arise. An FMCT would make it harder for new states to acquire nuclear weapons and for states already possessing nuclear weapons to develop new weapons if production of the material for them is prohibited.
A treaty that does not address reductions of existing stocks, possessed mainly by the United States and Russia, would be much less potent in stopping vertical proliferation. If existing stocks are not addressed, countries possessing large quantities of weapons-grade material can continue producing new nuclear weapons. This would mean a continued imbalance between the nuclear “haves” and “have-nots”.
A treaty against weapons in space
There is no treaty preventing an arms race in outer space, but the issue is often discussed, especially in the Conference on Disarmament. The United States claims that no arms race currently exists in outer space and that discussing a treaty on the topic is therefore superfluous. Most states agree that a treaty must be negotiated before we face a real arms race in outer space. Some states have advocated a treaty on the prevention of placement of weapons in outer space as a way to get around US arguments.
Nuclear-weapon-free zone treaties
Nuclear-weapon-free zones at a minimum prohibit the stationing, testing, use and development of nuclear weapons inside a particular geographical region, whether that is a single state, a region or an area defined solely by international agreements. Nuclear-weapon-free zones have been described in many fora, including at reviews of the Non-Proliferation Treaty and the UN General Assembly, as positive steps towards nuclear disarmament.
Today such zones exist in Latin America and the Caribbean, the south Pacific, Southeast Asia, Central Asia and Africa. More than 50 per cent of the Earth’s surface today comprises nuclear-weapon-free zones, including 99 per cent of all land in the southern hemisphere. One hundred and nineteen of the world’s approximately 195 states belong to a nuclear-weapon-free zone, and 1.9 billion people live in them. States that belong to such a zone are prohibited from producing, testing, stockpiling or acquiring nuclear weapons. They cannot have nuclear weapons deployed in their territories.
A nuclear weapons convention
The abolition of nuclear weapons is achievable through a nuclear weapons convention. The majority of UN member states have called for the immediate negotiation of this treaty, which would prohibit the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons. The nuclear weapons convention would provide for the elimination of nuclear weapons in much the same way that comparable treaties have banned landmines and chemical and biological weapons. Demands for such a treaty have increased in recent years, as have more general demands for complete nuclear disarmament.
In April 1997 an international team of scientists, lawyers and disarmament specialists released a model nuclear weapons convention. This model was submitted by Costa Rica to the United Nations as a discussion draft in November 1997. The responses and developments that followed led to the collaborative publication of Securing our Survival: The Case for a Nuclear Weapons Convention, which includes a revised version of the Model NWC, together with comments and discussion on critical political, legal and technical questions essential to complete nuclear disarmament.
Bilateral disarmament treaties
The largest nuclear powers today remain the United States and Russia (formerly the Soviet Union). Since the 1970s these states have entered into some significant disarmament treaties to reduce their arsenals and thereby reduce the mutual threat. At the same time as the arms race between the United States and Soviet Union reached unimaginable heights, the states were challenged and questioned — both nationally and internationally. In the 1970s the first treaties were signed between the two states to limit their strategic nuclear arsenals: Strategic Arms Limitation Treaty (START) I and II.
The Anti-Ballistic Missile Treaty was a bilateral agreement between the United States and Soviet Union reached in 1972. Each state promised to establish no more than one anti-ballistic missile site on their national territory. The treaty banned the testing, development and deployment of sea-, air-, space- and mobile land-based systems. The plan for a defensive umbrella over the entire United States, first proposed under the Reagan administration, would have violated the treaty. The United States withdrew in 2002, despite enormous national and international objection.
During the later part of the 1980s, a time of nuclear weapons reductions replaced a time of build-up. The United States and Soviet Union entered negotiations on which weapons could be eliminated. The Intermediate-Range Nuclear Forces Treaty was reached in 1987 and seeks to eliminate US and Russian land-based intermediate- and shorter-range missiles.
The START I agreement of 1991 limited the number of heavy bombers, intercontinental ballistic missiles and submarine-launched ballistic missiles, and also limited launchers and warheads. It prohibited both states from deploying more than 6000 nuclear warheads on a total of 1600 delivery systems, and limited the ballistic missile throw-weight (lifting power) to 3600 metric tons.
START II limited the two countries’ strategic arsenals to between 3000 and 3500 warheads on delivery systems (tactical weapons and spares are not included in the counts). It also prohibited multiple re-entry vehicles on intercontinental ballistic missiles and the number of warheads deployable on submarine-launched ballistic missiles to between 1700 and 1750. START II never entered into force: when the United States withdrew from the ABM Treaty in 2002, Russia declared START null and void the following day.
It was replaced by the Strategic Offensive Reductions Treaty in 2002. Also known as the Moscow Treaty, SORT limits the nuclear arsenals of both the United States and Russia to between 1700 and 2200 warheads each. It does not specify which warheads are to be reduced or how reductions should be made, nor does it include any verification provisions. It entered into force on June 1, 2003, and is set to expire December 31, 2012.
Conference on Disarmament
The Conference on Disarmament is the world’s sole multilateral disarmament treaty-negotiating body. It holds one public plenary per week, usually on a Thursday, although it can have more, if appropriate. The chair of the conference rotates every four working weeks following the English alphabetical list of membership. Decisions are made by consensus. It has 65 member states, who work with issues such as nuclear weapons, disarmament and development, disarmament and international security and reduction of military expenditure.
No program of activity has moved forward since 1996 and this disappointing fact put at risk the future of the consensus-based Conference on Disarmament. The conference has agreed to a fissile cut-off negotiating mandate but has been unable to establish an ad hoc committee needed to carry forward talks.
Non-Proliferation Treaty meetings
The Non-Proliferation Treaty review conferences and sessions of the preparatory committee gather the states parties to the treaty to evaluate the treaty’s implementation and make decisions about its future. Review conferences are held every five years, while preparatory committee sessions are held once every year except for the year immediately following a review conference.
Originally intended as a temporary treaty, the NPT stipulated that 25 years after entry into force a conference would be convened to decide whether or not the treaty should continue indefinitely or be extended for an additional fixed period or periods. In 1995 this conference was convened, and a series of decisions extend the treaty indefinitely.
Five years later, at the 2000 Review Conference, all 187 governments then party to the NPT — including the five official nuclear-weapon states — agreed to a 13-point action plan for the systematic and progressive disarmament of the world’s nuclear weapons. At the 2005 Review Conference, states parties could not agree on a final document, and the five-week-long conference was considered to be a failure. 2010 is the next chance to move forward.
General Assembly First Committee
The UN General Assembly First Committee is one of six committees of the UN General Assembly. The General Assembly is a consensus-building body, where issues of international peace and security are collectively discussed among all UN member states. The First Committee provides space for each state to discuss their positions on disarmament-related matters, and to work together to come up with compromises or to propose language or tools to better understand and approach the issues. It offers the opportunity for states to build consensus on the issues, to reach common understandings and principles and to agree on norms of behaviour.
UN Disarmament Commission
The UN General Assembly, by its resolution 502 (VI) of January 1952, created the United Nations Disarmament Commission (UNDC) under the Security Council with a general mandate on disarmament questions. The UNDC was created as a deliberative body, with the function of considering and making recommendations on various problems in the field of disarmament and of following up on the relevant decisions and recommendations of the special session. It led a fading life for many years, but since 2005 resumed its work at least to some extent.