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Some Thoughts on Nuclear Weapons or How I Learned to Stop Worrying and Like the Ban

I am not an expert on nuclear weapons, nor do I claim to be. I am however a citizen of a democracy, and in particular one which has a nuclear weapons capability of its own. Nuclear weapons are a critical issue, it is no hyperbole to state that their use, even on a ‘limited’ basis, would cause catastrophic death and destruction and forever change our world. Therefore, everyone should take an interest in nuclear weapons, they might very well end your life, and if you live in the UK (or the US, Russia, France, China, India, Pakistan, and Israel) your tax money certainly goes on building and maintaining them.

It is also a worthwhile time to discuss this topic. Of course, we are in the midst of a nuclear fuelled crisis in East Asia but also this week the leaders of the world have met in New York for the 72nd session of the United Nations General Assembly, the Nuclear Weapons Ban Treaty opened for signature and we have learned that the man who saved the world from nuclear war in the 1980s has died.[1]

I will briefly discuss the current legal status of nuclear weapons, then the ban treaty itself, then some of the arguments for nuclear weapons, before explaining why I have come to support the Nuclear Weapons Ban Treaty.

Legal Status of Nuclear Weapons

The prohibition of the testing of nuclear weapons, at least ‘partially,’ was established fairly early. Nuclear explosions in Antarctica are prohibited by Article V of the Antarctic Treaty[2], and Article I bans testing of weapons of any kind. Article I of the Partial Test Ban Treaty[3] prohibits nuclear explosions a) in the atmosphere, in outer space or under water b) in any other environment if such explosion causes radioactive debris outside of the territorial limits of the State. And Article IV of the Outer Space Treaty[4] prohibits the placement of nuclear weapons in orbit, or their instillation or stationing on celestial bodies or outer space. Although it doesn’t mention the transit of nuclear weapons through outer space via, say, an ICBM, and it should be noted that the requirement for exclusively peaceful use in Article IV of the Outer Space Treaty only applies to the Moon and other Celestial Bodies.

As for international law in general the International Court of Justice has considered the question of the legality of nuclear weapons in Legality of the Threat or Use of Nuclear Weapons[5] which was an advisory opinion sought by the UN General Assembly. The Court considered a number of issues in this case but says that it couldn’t really come to a decisive conclusion. It stated that it was hard to see how nuclear weapons could be compatible with the existing laws of war and international humanitarian law but refused to state that they were certainly illegal given the fundamental right of States to protect their existence via self-defence, specifically recognising the principle of deterrence.[6] The Court did say that there is a clear desire among large swathes of the international community for the prohibition of nuclear weapons and that this desire, while not constituting a ban via customary international law, does indicate a fundamental disagreement in the international community which is not good for the long term health of international law[7] and therefore “it is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result.”[8]

The Nuclear Ban Treaty

The Treaty on the Prohibition of Nuclear Weapons has been in development for a number of years. The International Committee of the Red Cross has been calling for a ban on nuclear weapons for 75 years, and when the treaty was opened for signature on 20 September 2017 they read out the reports from the aftermath of the atomic bombings of Hiroshima and Nagasaki that they received in 1945. The treaty negotiations received widespread support from a multitude of states, though none of the nuclear weapons states themselves. The supporters and champions of the Treaty are not naïve, they know this is only the beginning of the process. They are aiming to create a moral pressure on the nuclear weapons states to abandon these weapons, and point to the success of earlier efforts to ban specific weapons, such as chemical weapons, landmines, and cluster munitions (though none of these campaigns are complete either). The Treaty itself can be read here and I won’t detail its provisions in this post.

Planetary Defence or Specific Concerns of a Space Lawyer

As regular readers will have worked out by now space law is my field of specialization (I will let others decided if expertise is justified). One of the issues that I have dealt with in that field is that of planetary defence, not from aliens by asteroids. Space rocks strike Earth every day, occasionally by some pretty big ones (such as the one that exploded over Chelyabinsk back in 2013[9]). They represent varying degrees of threat to human life, and it might be an idea to think of someway of stopping the more dangerous ones before one destroys a city… or worse… One of the ways that is often proposed, and is popular with Hollywood, is with a nuclear explosion (see Armageddon or Deep Impact). Whether nuclear explosions are the best method of planetary defence is certainly an interesting question, but not particularly relevant for this discussion. However, the legality is. The Nuclear Ban Treaty bans nuclear explosive devices (i.e. whether they are weapons or not), therefore under this treaty it would be illegal to maintain a stockpile of nuclear ‘weapons’ even if solely for planetary defence (nuclear weapons have also been mooted as a possible propulsive source for interplanetary or even interstellar travel[10] uses that would also be prohibited by this treaty.) However, this is not exactly a new problem. As mentioned above the Partial Test Ban Treaty prohibits nuclear explosions in outer space and the Outer Space Treaty prohibits the placement of nuclear weapons in space or on celestial bodies. Meaning Bruce Willis and Ben Affleck violated international law when they saved Earth from destruction in the summer of 1998. To defend the drafters of the nuclear ban treaty, this provision is broad to prevent the problem of states claiming to maintain a stockpile of nuclear explosive devices under the guise of ‘peaceful uses’ when their intent is to at least be possible of using them as weapons should the need arise (which would undermine the object and purpose of the treaty). Besides, there are other methods of planetary defence, such as mining an incoming potentially hazardous asteroid out of existence… And as I’ll show below there might be a solution in Article 17 of the Nuclear Ban Treaty should the need arise.

MAD and Great Power Conflict

War is horrible, and as was demonstrated in the last century, great power war is horrific. Conflict between great powers is common throughout history, from Rome and Carthage to Britain and France to Britain and Germany. Indeed, the inevitability of great power conflict has been called Thucydides’ trap.[11] One notable incidence where this didn’t happen was the Cold War between the United States and the Soviet Union. There is an argument, and there are several events (such as the Cuban Missile Crisis), that the existence of nuclear weapons prevented a Third World War. The idea is that the idea of nuclear war is so horrific that no one is actually willing to contemplate or risk it. Therefore, leaders are willing to make deals they would have previously rejected in order to avoid war. This is called Mutually Assured Destruction or MAD or nuclear deterrence, it relies on two sides being able to unleash such devastation on one another that war becomes unthinkable. Of course, this was a theory popular before the First World War… and it doesn’t take much of a miscalculation in a critical moment (or an unstable leader with his finger on the button…) for the world to end in a torrent of nuclear fire.

There is a second, somewhat related, argument, that building nuclear weapons isn’t ‘that’ difficult if you put your mind to it (see North Korea) and therefore the ‘good guys’ need nuclear weapons to prevent the ‘bad guys’ (i.e. North Korea) from developing and using nuclear weapons of their own… While that might be seen as an argument against supporting the treaty, it should be noted that Article 17(2) of the Nuclear Ban Treaty provides for withdrawal “if it decides that extraordinary events related to the subject matter of the Treaty have jeopardized the supreme interests of its country.”

Why I Support the Nuclear Weapons Ban Treaty

In Star Trek: First Contact Commander William Riker quotes the death toll at the end of the Third World War (a nuclear war) as 600 million dead, to me that always sounded low. Yes, it is very high, by comparison the death toll for the Second World War was 60 million, but a total nuclear war would surely result in more deaths. The prospect of nuclear war is horrific.[12] I suspect that there is an inability, and unwillingness to accept just how horrific. But read reports from Hiroshima and consider that that bomb is tiny by the standards of today’s weapons. Reading about the British governments preparations for an attack on the UK is also pretty harrowing (basically there’s no point, everyone will die…[13])

I completely get the emotional and intellectual case for their ban, and yet for the reasons listed in the section above I still have reservations. Moreover, I was initially sceptical of the nuclear ban treaty. I would broadly categorize myself as being a supporter of the so-called ‘Obama Doctrine,’[14] i.e. that nuclear weapons are bad, and abolition is the ideal but the reality of the world means that the so-called ‘free world’ can’t afford to be without them. Having studied the Cold War, and many other wars, I agree with the view that nuclear weapons prevented World War Three, and that while the wars that did happen during the Cold War were horrific enough, a head to head clash between the USA and the USSR would have been worse.

I wouldn’t say that I have change my position on nuclear weapons has changed all that much, however my thinking on the treaty has changed totally. I thought that this was something the nuclear power states would never sign up to (and so far, they haven’t) and would therefore be pointless. But I have realised that assessment was wrong. Nuclear disarmament isn’t going to happen overnight, and no one is seriously claiming that it will. We need to build a climate that says these weapons are horrific, and not only should never be used but shouldn’t even exist. A treaty signed and supported by 150+ members of the international community saying that these weapons are immoral and illegal helps foster such a climate. As the ICJ has said nuclear weapons “have the potential to destroy all civilization and the entire ecosystem of the planet”[15] therefore we should strive to get rid of them. This treaty will help do that. I look forward to the day when we live in a world free of nuclear weapons.

Concluding Thoughts and Clarifications

I admire the women and men who have brought about the nuclear ban treaty. They are working to make the world a safer, better place and they should be applauded for that. I support their efforts and I support their treaty. However, I wish to clarify that I am not calling for ‘the West’s’ unilateral disarmament. This is a process and this treaty will aid that process. And this is where I think the US, UK and France erred in not participating in the negotiation of the treaty. Whether they could have added conditions or reservations (i.e. the obligation to eradicate their nuclear weapons is based on a general disarmament) is an open question, but there would have been no harm in participating (and no obligation to sign or ratify it either). They didn’t prevent the treaty but they also didn’t play any role in shaping it. And they all officially support the aim of a nuclear free world, even if they are renewing and updating their existing arsenals.

For more information on the treaty and the campaign The International Campaign to Ban Nuclear Weapons is a good place to start.

 

[2]The Antarctic Treaty (adopted 1 December 1959, entered into force 23 June 1961) 402 U.N.T.S. 71

[3]Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (adopted 5 August 1963, entered into force 10 October 1963) 480 UNTS 43 (Test Ban Treaty/PTBT)

[4]Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (adopted 27 January 1967, entered into force 10 October 1967) 610 UNTS 205 (Outer Space Treaty/OST)

[6]Ibid, 262-263 para 94-96

[7]Ibid, 253 para 62, 255 para 73, 263 para 98

[8]Ibid, 263 para 98

[11]From Ancient Greek historian, Thucydides who, writing about the cause of the Peloponnesian War, said that the “real reason, true but unacknowledged, which forced the war was the growth of Athenian power and Spartan fear of it…” Peloponnesian War Book 1, Paragraph 23. Mind you, Thucydides’ trap is a controversial concept, to say the least…

[12]If you want a real horror story forget IT and have a browse of http://www.nucleardarkness.org/index2.php

[13]An excellent film was produced by the BBC, https://en.wikipedia.org/wiki/Threads

[15]Legality of the Threat or Use of Nuclear Weapons, 243, para 35

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