At the Nuclear Precipice: Nuclear Weapons and the Abandonment of International Law 2006

International Law Symposium – Public Forum
Thursday, February 23, 2006

Speaker: Dr. Richard Falk

It is a great challenge and privilege to be part of this program tonight. I feel the deepest challenge is to go beyond pious rhetoric about the legal prohibitions applicable to nuclear weaponry. The only way that this can be done in a gathering of this sort is to trust our moral and political imagination. And so I want to begin by talking a little bit about an imaginative scenario that goes back in time: If in World War II Germany had developed nuclear weapons first and used their two bombs against the Allied cities, let’s say, of Manchester and Liverpool in Great Britain, but then had gone on to lose the war, two very different consequences for the Nuclear Age would have resulted. First of all, I think it would have been highly unlikely, having witnessed and experienced the horror of nuclear devastation of our closest ally, that the United States would have ever gone ahead, and used the weapons against Japan. It would have been almost unimaginable to think that having seen what these weapons do to human beings that they would be used in a situation, especially against a country other than Germany that had in this hypothetical initiated the nuclear age, and particularly, considered that the war against Japan was virtually won in any event by August 1945 when Hiroshima and Nagasaki were attacked. And secondly, if nuclear weapons had not been used by the United States, as I think likely, but by no means certain, then the threat, use and possession of nuclear weapons would have been criminalized at the war crimes trials of German leaders at Nuremburg. As a result, the world would have entered the Nuclear Age with a firm legal, moral, and political consensus that the threat or use of weapons of mass destruction by any government are unconditionally forbidden ways of conducting conflict and defending national interests. On such a basis, we would have had a very different kind of meeting tonight, and perhaps no meeting at all on this theme.

From these perspectives, it is important to understand that one of the greatest weaknesses of international law is that the winners in major wars tend to define both zones of prohibition and of criminality for the future. The deep historical irony here is that had Germany succeeded first with their crash program to produce the atomic bomb, the world would have been in a much more favorable situation than is the case. It is necessary to understand that international law is subject to very powerful distorting influences that reflect the outcome of historical struggles, especially those with ideological stakes. The winners in a war such as World War II, which was, in the deepest sense, widely regard a just war, because it defeated a Fascist plan to control world order and destroyed the Nazi system and Japanese imperialism, understandably treated their victory as a moral vindication. Nevertheless, this welcome outcome of World War II had the serious paradoxical consequence of leaving us with this nuclear weapons legacy. For much of the rest of the world Hiroshima is as much an expression of horror at the capacity of humans to do terrible things to other humans as is Auschwitz, but the essential difference is that Auschwitz was perpetuated by the losers and proscribed, while the bombing of Hiroshima was perpetrated by the winners. We are all aware that history is mainly written by the winners, but we are much less conscious of the equally troubling reality that international law develops so as to repudiate losers and validate winners. We need to consider this disturbing assessment when evaluating the content and authority of international law.

In my view, the greatest mind-game of our era is the degree to which the nuclear weapons states have convinced most of the world that the danger of these weapons arises from the countries that don’t possess them rather than from the countries that do. It is an incredible intellectual and political feat to have shifted the burden away from those countries that have developed and possess these weapons, in one case have actually used them, and continue to insist that they have the right to retain them, and even refuse to take off the table their possible future use. It’s an extraordinary mind-game that most of us, including most of the people in the peace movement, have quietly accepted and have settled for, saying, “well, let’s slow down the nuclear arms race” or “let’s stabilize at a lower level existing arsenals of nuclear weapons, but let’s devote ourselves mainly to the perils of nuclear proliferation.” I think that this is a dangerous course to take, as well as being a politically futile and morally sterile approach to what should be our main preoccupations—that is, preventing the threat or use of these weapons by anyone ever and of creating a safer and fairer world.

This mind-game has recently morphed in sinister directions. In recent years the most powerful pretext for aggressive war has come to be associated with alleged efforts to prevent certain additional states from acquiring these weapons. If you consider the rationale for the Iraq War or the recent build up of tensions in relation to Iran, both aggressive undertakings are predicated on the notion that the existing nuclear weapons states, led by the United States, have some kind of mandate to wage aggressive war in order to prevent others from acquiring these weapons, or even the technology that might at some point be dedicated to the production of such weaponry. As we now know with respect to Iraq, it was a fictitious and duplicitous scenario concocted to validate recourse to a non-defensive war: there were no weapons of mass destruction to be found in Iraq and no serious prospect of an Iraqi nuclear weapons capability for many years even if that has been Baghdad’s intention, which was never established. But feverish American diplomacy was relied upon to persuade other governments, the United Nations, and public opinion that it was necessary for the United States (and Britain) to wage a war in defiance of international war, in defiance the United Nations, because our country, itself a nuclear weapons superpower, believed it was entitled to wage war to prevent another country from acting to acquiring these weapons. In an important sense, even if the factual allegation had been true, which they were not, it would still have not provided an acceptable basis for recourse to war.

In the present setting this American crime of aggressive war has been waged to keep other countries from acquiring the weapons that we continue to possess and develop. Further, the Non-Proliferation Treaty (NPT), to the extent that it represents the embodiment of international law in this area, has been materially breached by the nuclear weapon states, and any country that wishes, could without even relying on the withdrawal provision in Article X of the Treaty, regard the whole agreement as void. The nuclear weapons states are obliged in Article VI to commit themselves to seek nuclear disarmament in good faith. and then to go further, and attempt to negotiate general and complete disarmament. This commitment is undertaken by the nuclear weapons states in exchange for the agreement of non-nuclear weapons states to forego their own weapons option. This Article VI commitment was treated as a fundamental premise of the NPT, being affirmed unanimously by the International Court of Justice in its seminal Advisory Opinion of 1996, a view supported fully even by the US judge on the court. The refusal of the nuclear weapons states to implement this commitment casts a long shadow over any insistence that the non-nuclear states continue to be bound by the treaty.

The second difficulty is the extremely discriminatory manners in which this treaty has been interpreted and applied over the years. Germany and Japan developed a complete nuclear fuel cycle without encountering the slightest opposition, while Iran is being threatened with war because Iran is seeking to possess the kind of peaceful nuclear energy technology that it is promised by Article IV of the NPT. It is true that such technology has the potential to be diverted for weapons use, but until such a violation occurs it is inappropriate to deny a country access to a technology that it is entitled to us for peaceful purposes, assuming for the moment that the NPT continues to be an operative legal regime despite violations by nuclear weapons states and discriminatory implementation in relation to non-weapons states. To convert the possible future violation of the NPT by Iran into a pretext for aggressive war is a grotesque and dangerous tactic now being deployed by the United States, and aggravated by the refusal of the US Government to give assurances that it will not itself use tactical nuclear weapons in some future attack on Iran’s nuclear facilities.

Let me conclude with three very brief points. First, the policies of the Bush presidency on these issues of nuclear weapons are only worse by a matter of degree to those of every predecessor administration. Every American president since 1945 has essentially endorsed a nuclearist geopolitics based on the idea that the United States gains strategic advantages from maintaining its nuclear weapons arsenal and taking whatever steps are necessary to retain its superiority with respect to this weaponry. Secondly, it is time that anti-nuclearists take account of the deficiencies associated with the operation of the Non-Proliferation Treaty, and either regard the treaty as void or insist on its revival on the basis of non-discrimination, mutuality, and fulfillment of the commitment to seek complete nuclear disarmament. Third and finally, that the leaders of this country, the most militarily powerful state in the world, accept the guidelines of international law with regard to waging wars. There persists a form of crackpot wisdom that assumes that a powerful country is better off if it has the discretion to use force without respect for the restraining discipline of international law. But if you look back at recent American behavior there would have notable benefits associated with respecting international law. Most impressively, the United States Government would never have bombed Hiroshima and Nagasaki, nor intervened in Vietnam , nor invaded Iraq if it had adhered to the minimum and core principles of international law. If it had done so, today this country would be better, prouder, more hopeful, and of course more respected around the world as a responsible global leader. It is toward such ends that we as citizens should work, including by our insistence that we wish to live under a government of laws not persons in world affairs as well as in domestic life.

Thank you very much.

Richard Falk is Milbank Professor of International Law Emeritus, Princeton University, and Chair of the Nuclear Age Peace Foundation.