How Reliance on Nuclear Weapons Erodes and Distorts International Law and Global Order

Deployment of nuclear forces as an international security mechanism for prevention of major war is far removed from the world envisaged by the United Nations Charter in which threat or use of force is the exception, not the rule. Reliance on nuclear weapons has also distorted the development of major instruments of international humanitarian law and international criminal law, the 1977 Protocol I to the Geneva Conventions and the 1998 Rome Statute of the International Criminal Court. Awareness is deepening of the inherent incompatibility of reliance on nuclear weapons with an ever more entrenched normative framework stressing states’ responsibilities to protect their populations against atrocities and to comply with international humanitarian law and the Rome Statute. International humanitarian law is a solid foundation for the emerging norm of non-use of nuclear weapons and for building a legal framework of a nuclear-weapons-free world that is universal in its approach.

The most serious problem arising from major powers’ reliance on nuclear weapons is that one day, directly or indirectly, that posture probably will result in nuclear detonations as acts of state or non-state terrorism. Yet that terrifying risk has been flagged for decades without so far ending reliance on nuclear weapons under the label of “nuclear deterrence”. Another approach is to examine the costs of reliance on nuclear weapons regardless of when or even whether they are again exploded in war or terrorism. There is damage to the environment, and harm to health. There is diversion of resources. There are the debilitating psychological effects of living with the risk of apocalypse, and the moral corrosion of relying on a threat of annihilation for security. The first part of this paper addresses another cost: How reliance on nuclear weapons erodes and distorts a global public good – international order structured by international law. The second part turns the equation around and indicates how developing international law and institutions can contribute to the establishment of a world free of nuclear weapons.

1. The Erosive Effect of Nuclear Weapons on International Law and Global Order
1.1 Nuclear Weapons and the United Nations Charter

Sometimes, the most basic and simple truths are the ones that escape notice. Compare the security supposedly provided by reliance on nuclear weapons with the security system envisaged by the United Nations Charter. Consider again these Charter provisions:

Article 2(3): All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered.

Article 2(4): All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.

The only exceptions to the prohibition on the threat or use of force are when the UN Security Council directs or authorizes force to maintain international peace and security, under Chapter VII, and the exercise of self-defense against an armed attack under Article 51.

Deployment of nuclear forces as an international security mechanism for prevention of major war is far removed from the world envisaged by the UN Charter in which threat or use of force is the exception, not the rule. International security allegedly provided by the permanent, ongoing threat of nuclear force, is the inverse of that world; it turns the UN Charter on its head. In its 1996 nuclear weapons advisory opinion, the International Court of Justice (ICJ) analyzed the UN Charter in relation to the legal status of “threat.” However, the Court failed, though relevant arguments were made by the Philippines,1 to consider the incompatibility of nuclear deterrence with the overall scheme and purposes of the Charter. It is past time to take up this fundamental question. To envision the peace and security of a world without nuclear weapons, as President Barack Obama memorably did in his April 2009 speech in Prague, we need only return to the vision — and the obligations — enshrined in the UN Charter.

Another key point relating to the UN Charter: Nuclear deterrence as now practiced is understood to involve major powers; other states are excluded and cannot acquire nuclear weapons. However, a just and therefore sustainable legal order requires that the same rules apply to all. One manifestation of the instability caused by the possession of nuclear weapons by some states but not others is the doctrine of preventive war. That doctrine was put into practice in the Iraq invasion and the Israeli strike on Syria and is raised with respect to Iran. Preventive war is contrary to the UN Charter, which permits use of force only in self-defense against actual or perhaps imminent attack or by authorization of the Security Council.2

Considering the subsequent rise of preventive war, the ICJ was prophetic in its 1996 opinion when it said:

In the long run, international law, and with it the stability of the international order which it is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons.

In short, major powers’ reliance on nuclear weapons, and its corollary, preventive war to prevent proliferation, are profoundly corrosive of the UN Charter.

1.2 Nuclear Weapons and International Humanitarian Law
Reliance on nuclear weapons has also distorted the development of major instruments of international humanitarian law and international criminal law, the 1977 Protocol I to the Geneva Conventions and the 1998 Rome Statute of the International Criminal Court.

The story begins much earlier. In the years immediately following the US atomic bombings of Japanese cities, from 1945 to 1950, the International Committee of the Red Cross (ICRC) maintained strongly that the effects of nuclear weapons are incompatible with the protection of non-combatants in accordance with international law, and called for states to reach an agreement on the prohibition of such weapons.3

The major powers rebuffed the ICRC’s call for a ban, and to make progress on other fronts, the ICRC basically went silent on the subject until its recent striking and important interventions. Protocol I is a comprehensive codification of the law of armed conflict governing the conduct of hostilities, a central part of what is now widely known as International Humanitarian Law (IHL). At the outset of its negotiation, the ICRC stated:

Problems relating to atomic, bacteriological and chemical warfare of subjects of international agreements or negotiations by governments, and in submitting these draft protocols [the ICRC] does not intend to broach these problems. It should be borne in mind that the Red Cross as a whole at several International Red Cross Conferences has clearly made known its condemnation of weapons of mass destruction and has urged governments to reach agreements for banning their use.4

As negotiated, in addition to prohibiting attacks upon civilians, Protocol I robustly prohibits indiscriminate means and methods of warfare. Thus it bans attacks “which cannot be directed at a specific military objective,”§ attacks whose effects cannot be limited and consequently are of “a nature to strike military objectives and civilians or civilian objects without distinction,” and area bombing as practiced in World War II.** It also bans disproportionate attacks, those “which may be expected to cause incidental loss of civilian life … which would be excessive in relation to the concrete and direct military advantage anticipated.”†† It additionally prohibits attacks “against the civilian population or civilians by way of reprisals.”‡‡ And it bans employment “of methods or means of warfare which are intended or may be expected, to cause widespread, long-term and severe damage to the natural environment.”§§

Nuclear weapons could not be used in compliance with Protocol I’s detailed prohibitions. However, citing the above-quoted ICRC statement, the United Kingdom, the United States, and some allied countries upon signing or ratifying denied the application of “new” rules contained in Protocol I to nuclear weapons.5 France took the extreme position of denying that any provision of Protocol I, whether or not it codifies customary law, applies to nuclear weapons.6 In its advisory opinion, the ICJ noted that “all states are bound by those rules in Additional Protocol I which, when adopted, were merely the expression of the pre-existing customary law.”¶¶ Customary law is based upon state practice and legal opinions and is universally binding, regardless of whether a state is a party to a relevant treaty.

John Burroughs: Executive Director, Lawyers Committee on Nuclear Policy, New York
* This paper is based upon remarks delivered by the author at “The Dangers of Nuclear Deterrence” Conference, February 16-17, 2011, Nuclear Age Peace Foundation, Santa Barbara, California, USA, and at a Nuclear Abolition Forum side-event, “Moving Beyond Deterrence to a Nuclear Weapons Free World,” May 9, 2012, at a Nuclear Non-Proliferation Treaty Preparatory Committee meeting in Vienna.
† “Legality of Threat or Use of Nuclear Weapons,” Advisory Opinion of 8 July 1996, International Court of Justice, p. 226 (hereafter “Nuclear Weapons Advisory Opinion”), ¶¶ 47-48.
‡ Nuclear Weapons Advisory Opinion, ¶ 98.
§ Article 51(4)(b).
¶ Article 51(4)(c).
** Article 51(5)(a).
†† Article 51(5)(b).
‡‡ Article 51(6).
§§ Article 35(3).
¶¶ Nuclear Weapons Advisory Opinion, ¶ 84.
1. “Verbatim Record of Proceedings Before the International Court of Justice,” International Court of Justice 9 November 1995, pp. 56-63.
2. Peter Weiss and John Burroughs, “Weapons of mass destruction and human rights,” Disarmament Forum no. 3 (2004): 26-28
3. See “Bringing the era of nuclear weapons to an end,” Statement of Jacob Kallenberger, President of the International Committee of the Red Cross, Geneva, April 20, 2010 (hereafter Kallenberger Statement).
4. Quoted in Michael Bothe, Karl Josef Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflict: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (Leiden: Martinus Nijhoff Publishers, 1982), 275.

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