Disarmament and Non-Proliferation:
Legal Norms in the Real World
by Peter Weiss, presented at
Conference on Legal Perspectives of the Nuclear
Sponsored by Journal of International Law
March 4, 2000
It is a great pleasure for me to be here in the company of three people whose paths have crossed mine in the pursuit of the nuclear demon: Lee Meyrowitz, who was present at the creation of the Lawyers Committee on Nuclear Policy some twenty years ago and whose book, "Prohibition of Nuclear Weapons," I frequently have occasion to consult; Anabel Dwyer, whose devotion to the subject is legendary and whose moral fervor urges us to return to the task whenever we show signs of slackening, and Judge Weeramantry, one of the great jurists of this century, whose monumental dissent in the World Court nuclear weapons case is, I believe, destined to become a classic of international law.
Your chairman, Will Wright, has given me two assignments: To say something about the role of civil society in furthering the aims of the law, and to comment on the dichotomy between the law as it is and the law as it is applied, or, if you prefer, as it is ignored by those whose duty it is to apply it.
To deal briefly with the first subject, I have to take you back to a time which most of you, given your relatively tender ages, were fortunate not to have known and which I can best illustrate by recalling two events and my reaction to them.. On the morning of August 7, 1945, while donning my sergeants uniform at a Military Intelligence post in Boston harbor, I heard on the radio that a new weapon, called an atomic bomb, had been dropped the previous day on the Japanese city of Hiroshima, causing such enormous damage that Japan was expected to surrender shortly. Like most, perhaps all. American soldiers at that time, I was , I am now ashamed to say, elated by the news, which meant that I would probably be spared a role in the invasion of Japan.
Fast forward to October 26, 1962, at the height of the US-Soviet confrontation now known as the Cuban Missile Crisis. That day, I left my law office early to be with my wife and two babies in case the world was going to go up in radioactive smoke. Again, I was not the only one to harbor this nightmare; all through the period of the Cold War, people in many parts of the world, but particularly in the United States and Europe, lived in the fear that MAD, the policy of Mutual Assured Destruction, might become reality. By then, we had all read John Herseys "Hiroshima" and Jonathan Schells "The Fate of the Earth", had seen pictures of what really happened in Hiroshima and Nagasaki and had formed an image of the unspeakable horror of nuclear war.
Now the wheel of history has come almost full circle. Just as very few people on October 7, 1945 had any notion that, in Albert Einsteins words, the atomic bomb had changed everything, so today the siren song of deterrence, the insane notion that a weapon capable of extinguishing life on earth serves only to rein in potential aggressors without ever being used, has lulled most people into a state of nuclear insouciance.
Most, but not all. The Cold War-generated period of nuclear awareness to which I have referred produced one of the most powerful civil society movements of the last few decades. Women Strike for Peace campaigned successfully for the atmospheric test ban; Sane and the Freeze Campaign, later merged as Sane/Freeze, brought about a halt to the nuclear arms race and started the United States and the Soviet Union on the road to at least partial nuclear disarmament, and the World Court Project, with technical assistance from the Lawyers Committee on Nuclear Policy and the International Association of Lawyers Against Nuclear Arms, managed to get the question of the legality of the threat and use of nuclear weapons before the World Court. Indeed, as Anabel and Judge Weeramantry will recall, the UK government, in its presentation to the Court, went so far as to say that, although the case had come to the Court in the form of a request for an Advisory Opinion from the General Assembly of the United Nations, it was not a real case, but a political effort by a group called The World Court Project. Fortunately, none of the judges took that argument, such as it was, seriously.
The hearings before the Court, in the fall of l995, will no doubt be remembered by the anti-nuclear activists present in The Hague, both lawyers and non-lawyers, as extraordinarily tense and at the same time exhilarating. We operated out of a command post across the street from the Peace Palace which houses the Court, doing both factual and legal research f or those governmental delegations willing to use our help. To give you just one example of what those three weeks were like: In the final days, we were concerned about the fact that, because the delegations, in accordance with the Courts practice, made their presentations in alphabetical geographical order, the United Kingdom and the United States, both represented by high level legal teams, would have the last words. A round of frantic last-minute lobbying enabled us to bring in Zimbabwe for a strong, final, anti-nuclear summation.
The presence of civil society representatives was also important on July 8, 1996, when the Court announced its Opinion. As the President, Mohammed Bedjaoui of Algeria, read the text to a hushed audience, word started to go out from the media that the holding of general illegality of threat and use of nuclear weapons was by a "closely divided" or "razor thin" majority of seven to seven, with the President casting the deciding vote. A hastily convened press conference enabled us to explain to the assembled journalists, who sometimes need a little help in interpreting judicial decisions, that the holding of illegality was in fact by a majority of ten to four, because three of the dissenting judges, including Judge Weeramantry, would have voted for absolute illegality in all circumstances rather than general illegality, with a non liquet, or failure to reach a conclusion, "in an extreme circumstance of self-defense, in which the very survival of a State would be at stake."
Since then, the Opinion has become a centerpiece of organizing for the movement to abolish nuclear weapons, led by a worldwide network called "Abolition 2000". The nuclear weapon states have seized on the extreme circumstance portion of the dispositif, or holding, to justify their continuing reliance on a policy of deterrence based on maintaining thousands of nuclear weapons, many of them on alert status. But this position is incompatible with another portion of the holding to the effect that any threat or use of nuclear weapons should - in the opinion preceding the holding the word is "must" - comply with the requirements of humanitarian law.
The United States did advance the curious position that, given the high degree of accuracy with which contemporary military technology can deliver a missile, the use of a nuclear weapon is not per se a violation of humanitarian law. But no explanation was offered - indeed, no explanation could be offered - of how a strategic nuclear weapon, even one as small, by todays standard, as the one dropped on Hiroshima, could fail to run afoul of the two cardinal principle of humanitarian law: The Principle of Discrimination (it is prohibited to use weapons that do not discriminate between military and civilian personnel) and the Principle of Humanity (it is prohibited to use weapons that cause unnecessary or aggravated suffering).
Well, you might say, what about the hypothetical which we, in our daily post-mortems in The Hague, came to call "the case of the mini-nuke in the Gobi Desert"?: A tiny, tactical, non-radioactive nuclear weapon used precisely against a strictly military target, in an area devoid, or virtually devoid, of civilians? I give you two answers: First of all, a non-radioactive nuclear weapon is an oxymoron and a small radioactive one would still violate the principle of humanity, not only in terms of the barbarity of its effect on military personnel, but also in its genetic effect on their non-military descendants. Secondly, and more importantly, there is this paradox: The nuclear weapon states defend their continuing reliance on nuclear weapons by claiming their usefulness primarily, or solely, as agents of deterrence. This leads us to the following syllogism:
Small, relatively harmless weapons deter neither aggressors nor terrorists;
Let me now turn to that part of the Opinion which has provided the greatest ammunition to the abolition movement. It is section F of the dispositif, in which the Court holds, unanimously:
This supremely important sentence is based, in part, on the general principle of international law discussed in the Courts opinion and in part on Article VI of the Non-Proliferation Treaty. That Article VI is the famous quid pro quo, by which the nuclear weapon states undertook to get rid of nuclear weapons in return for the promise of the non-nuclear states not to develop or acquire them. Indeed the language of section F tracks that of Article VI, but with two noteworthy additions: The phrase "and bring to a conclusion" and the phrase "in all its aspects." In other words, it is not enough to negotiate, the negotiations must aim at a conclusion; and it is not enough to disarm from 35,000 weapons to 20,000 and eventually two or three hundred; the objective is a nice round zero.
Here, then, is an interesting question: When the International Court of Justice, the highest authority in the field of international law, says that states have a general obligation to do something, how soon must they do it? I would borrow my answer from the Supreme Court of the United States, in Brown v. Board of Education, and say "with all deliberate speed."
Which brings me to the second part of my title: Is that what is happening in the real world? I will let you decide, after you consider the following quotes from a number of official documents:
"The presence of United States conventional and nuclear forces remains vital to the security of Europe, which is inseparably linked to that of North America."
"To protect peace and to prevent war or any kind of coercion, the Alliance will maintain FOR THE FORESEEABLE FUTURE (emphasis added) an appropriate mix of nuclear and conventional forces based in Europe and kept up to date where necessary. [T]he Alliances conventional forces alone cannot ensure credible deterrence. Nuclear weapons make a unique contribution in rendering the risks of aggression against the Alliance incalculable and unacceptable. Thus, they remain essential to preserve peace."
Id., par. 46
"Nuclear weapons will continue INDEFINITELY (emphasis added) to play an indispensable role as a hedge against uncertainties, to deter potential aggressors who are both more diverse and less predictable than in the past, and to allow the United States to construct a more stable security environment. Thus, the United States needs a credible nuclear deterrent posture, broadly defined to include forces-in-being, capabilities for weapon system design and production; and the ability to assure the safety and reliable performance of the nuclear stockpile
At the forthcoming NPT Review Conference, to be held at the United Nations in New York from April 24 to May 19, the nuclear weapon states and their allies will, I confidently predict, take the position that they are committed to the ultimate elimination of nuclear weapons. It is difficult, to say the least, to reconcile this position with their real policies, as described in the preceding quotes, or to reconcile those policies with the mandate of the World Court in Section F of its Advisory Opinion.
"Ultimate" is a word of many meanings. As used by the nuclear weapon states in "ultimate elimination of nuclear weapons", seen through the prism of their real life security policies, it comes perilously close to "never." As used by President Bedjaoui in his separate opinion, in which he calls nuclear weapons "the ultimate evil", it conveys some sense of the moral dimension of the problem we are here to examine today.
March 4, 2000