Transcript Nuclear Weapons and Collective Security

Dealing with Doctrines:
Time to outlaw nuclear weapons use?
Rebecca Johnson Ph.D
“Getting to Zero” Seminar series
James Martin 21st Century School, Oxford, November 5, 2009
“Weapons of mass destruction cannot be
uninvented. But they can be outlawed, as
biological and chemical weapons have been, and
their use made unthinkable. Compliance,
verification and enforcement rules can, with the
requisite will, be effectively applied. And with
that will, even the eventual elimination of nuclear
weapons is not beyond the world’s reach.”
Weapons of Terror, Report of the WMD Commission, June 2006
President Obama in Prague (2009)
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“One nuclear weapon exploded in one city – be it New
York or Moscow, Islamabad or Mumbai, Tokyo or Tel
Aviv, Paris or Prague – could kill hundreds of thousands
of people. And no matter where it happens, there is no end
to what the consequences may be – for our global safety,
security, society, economy, and ultimately our survival.”
“If we believe that the spread of nuclear weapons is
inevitable, then in some way we are admitting to ourselves
that the use of nuclear weapons is inevitable.”
“The United States will take concrete steps towards a
world without nuclear weapons.”
Deterrence and use doctrines are obstacles
to nuclear disarmament
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Voodoo dependency > Non-proliferation and disarmament
objectives will be difficult to achieve if people and
governments still believe that nuclear weapons can deter or
deal with threats to their national and regional security.
Proliferation driver > As long as some states or alliances
cling to nuclear weapons, justify their deployment and
doctrines for use, and proclaim their value for security,
deterrence or power projection, others will want them.
reducing reliance on nuclear weapons as a tool of policy or
deterrence is even more critical to the disarmament equation
than reducing numbers, and essential for moving towards zero.
NPT 2000 Review Conf Agreed
Disarmament Plan of Action
Among the 13 principles, objectives and steps were the
following “practical steps” (paragraph 9):
 Further unilateral reductions
 Transparency
 Non-strategic/tactical nuclear weapons
 Reducing operational status/de-alerting
 Reducing role/minimise risk of use
 Engagement of all five NWS in nuclear disarmament
process
Before prohibiting weapons it has often proved
necessary to devalue and stigmatise their use
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1925 Geneva Protocol prohibited the use of asphyxiating,
poisonous gases and liquids and use of bacteriological
weapons
leading eventually to:
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1972 Biological and Toxin Weapons Convention (BWC)
1993 Chemical Weapons Convention (CWC)
1981 Inhumane Weapons Convention has protocols that ban or
restrict the use of various weapons that injure through
fragmentation, laser etc…. leading eventually to:
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1997 Mine Ban Treaty (aka Ottawa Treaty)
2008 Cluster Munitions Convention (after Oslo process)
Banning use will be an important step
towards nuclear abolition and zero
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As nuclear arsenals are reduced, the real tipping point will
come when the nuclear weapon states understand and
demonstrate that there is no role for nuclear weapons in
their doctrines and policies. An early step – and one that
should now be pursued by everyone – is to recognize in
law the widely accepted fact that any use of nuclear
weapons would be a crime against humanity – because
indiscriminate, annihilating noncombatants and
destroying habitats and environment on a massive
scale, far-reaching and long-lived geographically and
temporally.
Banning use would:
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Provide legal clarity consistent with International and
Humanitarian Law;
Universalise security assurances and provide greater
confidence and security for everyone with specific and
shared rights, obligations and responsibilities;
Reduce role and value of nuclear weapons, as an essential
step towards building “the peace and security of a world
without nuclear weapons” that President Obama and most
governments and civil society publicly advocate.
Declaring NW use a crime against humanity would
not eliminate nuclear dangers overnight, but would:
Reduce value and attraction of nuclear weapons for
proliferators and terrorists as well as existing
nuclear weapon powers
 Provide legal mechanisms for holding suppliers
and traffickers personally to account as well as
governments and non-state leaders that use or
make threats with nuclear weapons
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1961 UNGA Declaration on Nuclear
weapon use as violating UN Charter
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any use of nuclear weapons would be contrary to
the spirit, letter and aims of the UN and a direct
violation of the UN Charter
UNGA res 1664, (November 24, 1961), carried by 55 to 20, with 26
abstentions
International Court of Justice (July 8 1996) Advisory
Opinion on the legality of use and threat of use of
nuclear weapons
A. Unanimously,
There is in neither customary nor conventional international law any specific
authorization of the threat or use of nuclear weapons;
B. By eleven votes to three,
There is in neither customary nor conventional international law any comprehensive and
universal prohibition of the threat or use of nuclear weapons as such;
C. Unanimously,
A threat or use of force by means of nuclear weapons that is contrary to Article 2,
paragraph 4, of the United Nations Charter and that fails to meet all the requirements of
Article 51, is unlawful ;
D. Unanimously,
A threat or use of nuclear weapons should also be compatible with the requirements of
the international law applicable in armed conflict, particularly those of the principles and
rules of international humanitarian law, as well as with specific obligations under treaties
and other undertakings which expressly deal with nuclear weapons;
Equivocal question of use in extreme
circumstance of nation’s self defence
E. By seven votes to seven, by the President's casting vote,
It follows from the above-mentioned requirements that the threat or
use of nuclear weapons would generally be contrary to the rules of
international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law; However, in view of the
current state of international law, and of the elements of fact at
its disposal, the Court cannot conclude definitively whether the
threat or use of nuclear weapons would be lawful or unlawful in an
extreme circumstance of self-defence, in which the very survival of
a State would be at stake;
But this is what Judge Bedjaoui, ICJ
President said in 2009:
Referring to “intransgressible principles of international
customary law”, notably proportionality and discrimination,
i.e. that a distinction must be drawn between combatants and
non-combatants, Judge Bedjaoui said: “Though not explicitly
and specifically forbidden by international law, nuclear
weapons are nonetheless… weapons whose effects are
clearly contrary to certain prescriptions of that corpus juris
of certain rules of humanitarian law.”
He added, “The direct prohibition of the use of nuclear
weapons as such lies in a kind of legal grey area... It is
necessary to put an end to this regrettable legal
vagueness…”
Obligation to negotiate nuclear
disarmament
The final opinion from the ICJ in 1996 was:
F. Unanimously,
There 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.
The need to tackle use and doctrine
Proliferation and nuclear terrorism would be better
prevented if the use of nuclear weapons were
recognised as a crime against humanity
This would turn a widespread ethical understanding into
a legal norm. It does not require a multilateral treaty
to be negotiated. If enacted through the UN Security
Council or the International Criminal Court, it would
provide nondiscriminatory positive and negative
security assurances for all.
For in depth exploration of this idea, see my article on “Security Assurances for
all” in Disarmament Diplomacy 90 (Spring 2009)
www.acronym.org.uk
Negative and positive security assurances
UNSC resolution 155 (1968) and UNSC 984 (1995)
contained limited, conditional security assurances:
 ‘negative security assurances’ (NSA) that the nuclear
weapon states (NWS) would not attack or threaten them
with nuclear weapons and
 ‘positive security assurances’ (PSA) that the nuclear
powers would come to their assistance if they were to be
threatened or attacked with such weapons.
Nuclear weapon free zones
As part of nuclear-weapon-free zone (NWFZ)
treaties, states in NWFZ regions received fuller
security assurances:
 Tlatelolco Treaty (Latin America and Caribbean)
 Rarotonga Treaty (South Pacific)
 Pelindaba Treaty (Africa)
 Bangkok Treaty (South-East Asia)
 Semipalatinsk Treaty (Central Asia)
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Transitionary, declaratory step
Avoid negotiating no use as an additional treaty!
Possible approaches:
 amend the definition of ‘crimes against humanity’ in the 1998 Rome
Statute that established the International Criminal Court;
 Use Security Council to recognize or make the use of nuclear
weapons a crime against humanity i.e. signal intent like UNSCR
1887 (ch VI) or extend legal obligations to all states ((Max
Kampelman’s preference) like UNSCR 1540 (under ch VII);
 unilateral declarations by individual governments spurred by civil
society… when they reach critical mass, the norm would become
effectively embedded into customary international law.
Prepare ground for a Nuclear Weapon
Convention (NWC)
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you want a world free of nuclear weapons in
the future, it is time now to think about the
treaty or treaties that will codify the
obligations, prohibitions, verification and
compliance requirements to accomplish this
safely, securely and in time.
 Concerns that talk of a NWC undermines the
NPT are misplaced: on the contrary, a NWC
Questions?
Legally binding Security Assurances?
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The mention of security assurances often leads
diplomats to jump either to the cold war objective
of a negotiated multilateral treaty enshrining
security assurances from the NWS to the NNWS,
or to the long-standing General Assembly
resolution sponsored by India on a ‘Convention on
the Prohibition of the Use of Nuclear Weapons’.
They then take up familiar but unproductive
stances for or against such treaties.
No first use instead?
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No-first-use declarations or agreements appears attractive as a way to
reduce the role of nuclear weapons in security doctrines
Would once have been an important step to take during the cold war,
but would only slightly reduce nuclear dangers.
Though no first use would be better than current deterrence policies,
beware of retrogressive implications as this would keep alive the
dangerous illusion that some uses of nuclear weapons are valid and so
could become a barrier to nuclear disarmament and efforts to reach
zero.
The adoption of no first use agreements is compatible with second
strike concepts of deterrence and legitimizes the retaliatory use of
nuclear weapons when deterrence fails. Any such retaliation would
indiscriminately kill large numbers of civilians. It would amount to a
bloodthirsty act of vengeance, not a rational means of defence.
Core “sole purpose” deterrence?
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Ivo Daalder and Jan Lodal