During the Cold War, nuclear arsenals were rationalized on the basis of deterrence, and the nuclear weapons states developed military strategies of mutual assured destruction (MAD). Since it was recognized that attacks and counter-attacks with nuclear arsenals would be without precedent in their destructiveness, even to the point of destroying human civilization and most life on Earth, the acronym MAD seemed particularly appropriate. During the Cold War period, leaders tried to bring some modicum of sanity to an otherwise insane situation by engaging in arms control discussions and occasionally reaching agreements regarding the control of nuclear arsenals.

The two most important arms control agreements during the Cold War were reached in the 1960s. The first was the Partial Test Ban (PTB) Treaty, which was signed and entered into force in 1963. This treaty prohibited nuclear testing in the oceans, atmosphere, and outer space. The PTB was achieved under considerable pressure from citizens throughout the world who objected to the dangerous health effects associated with atmospheric nuclear testing. Among the leaders in the protest against atmospheric nuclear testing were Linus Pauling, the great scientist, and his wife Ava Helen Pauling, who organized a petition signed by 9,235 scientists, which Pauling delivered to U.N. Secretary General Dag Hammerskjold on January 15, 1958. The document was entitled, “Petition to the United Nations Urging that an International Agreement to Stop the Testing of Nuclear Bombs Be Made Now.”

The PTB did not put an end to nuclear testing, and thus to the development of new and more efficient nuclear weapons. Rather, it resulted in moving nuclear testing underground. In this sense, the treaty was more an environmental treaty than an arms control treaty. The only thing that the treaty disarmed was public outrage at the health risks related to atmospheric nuclear testing. The treaty contained the promise of “seeking to achieve the discontinuance of all test explosions of nuclear weapons for all time,” which was widely recognized as a critical step in ending the nuclear arms race. Unfortunately, the goal of ending nuclear testing remained essentially dormant for the next 33 years until a Comprehensive Test Ban Treaty (CTBT) was finally adopted by the United Nations and opened for signatures in 1996.

The second important arms control agreement during the Cold War was the Non-Proliferation Treaty (NPT), which was signed in 1968 and entered into force in 1970. This treaty sought to halt the spread of nuclear weapons and weapons-grade nuclear materials to states not in possession of nuclear arsenals as of January 1, 1967. The treaty recognized two classes of states: nuclear weapons states (United States, United Kingdom, France, Russia, and China), and non-nuclear weapons states (all other states). The nuclear weapons states agreed not to transfer nuclear weapons or weapons-grade nuclear materials to the non-nuclear weapons states, and the non-nuclear weapons states agreed not to receive or otherwise acquire nuclear weapons or weapons-grade nuclear materials.

When the NPT was negotiated, the non-nuclear weapons states recognized the unequal nature of the treaty, and argued for two concessions from the nuclear weapons states. First, nuclear energy for peaceful purposes was described in the treaty as an “inalienable right,” and nuclear weapons states promised to help the non-nuclear weapons states in developing nuclear power plants. Second, the non-nuclear weapons states objected to the two-tier structure of nuclear “haves” and “have-nots” created by the treaty, and negotiated Article VI of the treaty which called for good faith negotiations to achieve a cessation of the nuclear arms race at an early date, nuclear disarmament, and general and complete disarmament under strict and effective international control. Article VI of the NPT, despite its carefully crafted language, is one of the most important, if not the most important, of all commitments made by nuclear weapons states in arms control agreements.

In exchange for not attempting to develop or acquire nuclear weapons, the non-nuclear weapons states had a reasonable expectation under Article VI that the nuclear weapons states would proceed with good faith negotiations for nuclear disarmament, to rid the world of the terrible threat of nuclear holocaust. Until the end of the Cold War, however, the nuclear weapons states had made scant progress toward nuclear disarmament, and were widely viewed by states from the Non-Aligned Movement (NAM) as being in violation of their Article VI commitment. In fact, at the end of the Cold War, the strategic nuclear arsenals of the nuclear weapons states were considerably larger than they were when the NPT was signed in 1968.

In the aftermath of the Cold War, the rationale for retaining nuclear arsenals has evaporated. Deterrence was always a questionable theory, but without the threatened attack of an enemy, it clearly makes no sense at all. Nuclear weapons can be more clearly recognized in the aftermath of the Cold War as “instruments of genocide” that serve no reasonable purpose. Since the end of the Cold War, increasing pressure has mounted for the nuclear weapons states to fulfill the promise under Article VI of the Non-Proliferation Treaty to achieve nuclear disarmament.

START I, START II, and START III

Strategic Arms Reduction Talks in the early 1990s resulted in two treaties agreeing to the reduction of the numbers of nuclear weapons in the arsenals of the United States and former Soviet Union. START I, which was signed by Presidents Gorbachev and Bush in 1991, called for reductions to approximately 6,500 deployed strategic weapons on each side. START II, signed by Presidents Bush and Yeltsin in 1993, called for further reductions of deployed strategic nuclear weapons to 3,000 to 3,500 on each side by January 1, 2003. START II was ratified by the U.S. Senate in 1996, but has yet to be ratified by the Russian Duma, many members of which have expressed deep concerns over the U.S.-led efforts to expand NATO eastward. In September 1997, the U.S. and Russia agreed to extend the date for achieving START II reductions for five years to the end of 1997.

However, even if START II is successfully completed, there will still be as many deployed strategic nuclear weapons in the arsenals of the two major nuclear weapons states as there were when the NPT was signed in 1968. This has led many of the non-aligned states to question the sincerity and good faith of the nuclear weapons states in fulfilling their Article VI promises.

Presidents Clinton and Yeltsin have had preliminary discussions regarding START III, and have suggested that this agreement could reduce nuclear arsenals to 2,000-2,500 deployed strategic nuclear weapons on each side by the year 2007. This advance, however, is uncertain due to the Russian opposition to the proposed expansion of NATO. Even more significant is that the proposed START III agreement is simply more incrementalism. It lacks a vision of a world without nuclear weapons, and simply reduces the overkill ratio to a somewhat lower level. It is consistent with maintaining the two-tier structure of nuclear “haves” and “have-nots” indefinitely. It misses the tremendous opportunity that currently exists to move from arms control to abolition.

The Non-Proliferation Treaty Review and Extension Conference

A NPT Review and Extension Conference was called for by the terms of the treaty 25 years after the treaty entered into force. The purpose of this conference, which was held in 1995, was to determine whether the treaty should be extended indefinitely or for a period or periods of time. The nuclear weapons states, which saw the treaty as advantageous to themselves, argued for an indefinite extension of the treaty. Many non-aligned states, though, questioned the good faith of the nuclear weapons states, and suggested that the treaty should be extended for periods of time and re-extended contingent upon sufficient progress toward fulfillment of the Article VI promise of nuclear disarmament.

At the conference the nuclear weapons states and their allies (primarily the NATO states) exerted considerable pressure on the non-aligned states and finally prevailed in having the treaty extended indefinitely. However, at the insistence of the non-aligned states, certain non-binding agreements were attached to the indefinite extension which called for, among other steps, the following:

“(a) The completion by the Conference on Disarmament of the negotiations on a universal and internationally and effectively verifiable Comprehensive Nuclear-Test-Ban Treaty no later than 1996. Pending the entry into force of a Comprehensive Test-Ban Treaty, the nuclear-weapon States should exercise utmost restraint;

“(b) The immediate commencement and early conclusion of negotiations on a non-discriminatory and universally applicable convention banning the production of fissile material for nuclear weapons or other nuclear explosive devices, in accordance with the statement of the Special Coordinator of the Conference on Disarmament and the mandate contained therein;

“(c) The determined pursuit by the nuclear-weapon States of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating those weapons, and by all States of general and complete disarmament under strict and effective international control.”

Abolition 2000 Global Network

At the NPT Review and Extension Conference, an Abolition Caucus — composed of representatives of citizen action groups from throughout the world — was organized to share information and to join in lobbying the delegates. From this caucus an 11-point plan, calling for nuclear weapons abolition was drafted and agreed to. This document was called the Abolition 2000 Statement. The Statement called for a treaty by the year 2000 for the prohibition and elimination of all nuclear weapons within a timebound framework.

The Abolition 2000 Statement became the basis for the establishment of the Abolition 2000 Global Network, which has now grown to over 700 citizen actions groups from six continents. It is a dynamic citizen network committed to the goal of achieving a nuclear weapons free world.

The World Court Project

The World Court Project (WCP) was initiated by three major international citizen action groups: the International Lawyers Against Nuclear Arms (IALANA), the International Physicians for the Prevention of Nuclear War (IPPNW), and the International Peace Bureau (IPB). The purpose of the project was to obtain an opinion from the International Court of Justice (ICJ) on the legality of the threat or use of nuclear weapons. Through intensive lobbying of delegates to the World Health Organization and the United Nations General Assembly, the WCP was successful in having both of those bodies request an opinion from the Court.

The question posed by the World Health Organization (WHO) focused on use of nuclear weapons: “In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?” The question posed by the General Assembly also included the threat of use: “Would the threat or use of nuclear weapons in any circumstance be permitted under international law?”

The Court received considerable written and oral argument from states. On July 8, 1996, the Court issued its opinion on the question posed by the U.N. General Assembly. At the same time, the Court declined to issue an opinion on the question posed by WHO, stating that their question failed to meet the criteria of arising within the scope of WHO’s activities. In response the General Assembly, the Court issued a 37 page opinion, and each of the 14 judges on the Court issued a separate statement with the opinion. The Court found that any threat or use of nuclear weapons must conform with the principles and rules of international humanitarian law. This means that nuclear weapons cannot be threatened or used in such a manner as to fail to discriminate between civilians and combatants, and that they must not cause unnecessary suffering to combatants. Based primarily upon this finding, the Court then found that any threat or use of nuclear weapons would be generally illegal.

The Court was unable to determine, however, whether the threat or use of nuclear weapons would be legal or illegal “in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.” The Court’s opinion went a long way toward shutting the door on the threat or use of nuclear weapons, but it left open this narrow possibility in the case of the very survival of a state. Some of the judges pointed to the irony of leaving open the possibility of using nuclear weapons in conditions in which the survival of a state was at stake, since such use could result in escalation endangering the survival of all life.

Given what the Court found to be an ambiguity in international law involving an “extreme circumstance of self-defence,” it reviewed Article VI of the Non-Proliferation Treaty, and concluded: “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 Court’s ruling on the Article VI commitment clarifies that nuclear disarmament must be complete, that it must be disarmament “in all its aspects,” and that it is not tied to conventional disarmament or other security issues.

The nuclear weapons states have argued that the Court’s opinion is advisory only, and they have not acted on it. While the opinion is, in fact, advisory in nature, it is still the pronouncement of the highest Court in the world on an issue of utmost importance. The significance of the opinion has not been lost on the states in the non-aligned movement that have been pressing for complete nuclear disarmament. Nor has the significance of the opinion been lost on citizen action groups around the world, such as the Abolition 2000 Global Network, that have been pressing the case for the abolition of nuclear arsenals.

The Canberra Commission Report

In response to French nuclear weapons testing in the Pacific, the Australian government established a prestigious commission of eminent individuals to examine the case for the elimination of nuclear weapons. Participants in the Commission included General Lee Butler, a former commander of the U.S. Strategic Command; Robert McNamara, a former U.S. Secretary of Defense; Michel Rocard, a former French Prime Minister; Field Marshall Micheal Carver, a former British Chief of Defence Staff; Jacques Cousteau, the late ocean explorer and advocate for future generations; and Joseph Rotblat, founder and president of the Pugwash Conferences on Science and World Affairs and the 1995 Nobel Peace Laureate.

The Report of the Canberra Commission stated: “Nuclear weapons pose an intolerable threat to humanity and its habitat, yet tens of thousands remain in arsenals built up at a time of deep antagonism. That time has passed, yet assertions of their utility continue…. A nuclear weapon free world can be secured and maintained through political commitment, and anchored in an enduring and binding legal framework.”

The Report called for some immediate steps to reduce the nuclear threat:

  • Taking nuclear forces off alert;
  • Removal of warheads from delivery vehicles;
  • Ending deployment of non-strategic nuclear weapons;
  • Ending nuclear testing;
  • Initiating negotiations to further reduce United States and Russian nuclear arsenals; and
  • Agreement amongst the nuclear weapons states of reciprocal no first use undertakings, and of a non-use undertaking by them in relation to the non-nuclear weapon states.

These steps would take us a long way toward reducing the immediate risks of nuclear warfare, but as yet the nuclear weapons states have resisted their implementation. The only exception is the signing of the CTBT and, even in this case, at least one of the nuclear weapons states, the United States, is continuing to conduct “sub-critical” nuclear tests which undermine the spirit of the treaty.

The Comprehensive Test Ban Treaty

A Comprehensive Test Ban Treaty was finally opened for signatures in September 1996, but it has yet to enter into force and the procedures for entry into force make it unlikely that this will occur. Entry into force requires the ratification of all 44 nuclear capable states, and India has made it clear that it will not sign or ratify the treaty so long as there is no firm commitment by the declared nuclear weapons states to the elimination of their nuclear arsenals. India’s position is that it is unwilling to give up the option of conducting nuclear tests in a world in which the declared nuclear weapons states, which have already tested extensively, refuse to make a firm commitment to eliminate their nuclear arsenals and thus continue to rely upon them for their security. While India has been widely criticized for this position, one must admit that this position is not without logic.

The CTBT has been marred by the insistence of the U.S. that “sub-critical” tests fall within the framework of the treaty. The U.S. has already begun a series of such tests, and it is likely that other nuclear weapons states will follow its lead. The U.S. is also planning a Stockpile Stewardship Program, on which it plans to spend some $45 billion over the next ten years. This program includes the development of new and expensive structures for laboratory testing of nuclear weapons. Again, it is likely that other nuclear weapons states will follow the U.S. lead by continuing to test by other means that circumvent the spirit if not the letter of the CTBT.

The Statement by International Generals and Admirals*

In December 1996 some 60 retired generals and admirals from around the world issued statements calling for the elimination of nuclear weapons. U.S. Generals Lee Butler and Andrew Goodpaster issued a statement at the National Press Club in Washington, DC. Their statement called for “pursuit of a policy of cooperative, phased reductions with serious commitments to seek the elimination of all nuclear weapons.”

As a separate statement, 58 of these retired generals and admirals argued “the continuing existence of nuclear weapons in the armories of nuclear powers, and the ever present threat of acquisition of these weapons by others, constitute a peril to global peace and security and to the safety and survival of the people we are dedicated to protect.” The generals and admirals called for the following three steps:

“First, present and planned stockpiles of nuclear weapons are exceedingly large and should now be greatly cut back;

“Second, remaining nuclear weapons should be gradually and transparently taken off alert, and their readiness substantially reduced both in nuclear weapons states and in de facto nuclear weapons states; and

“Third, long-term international nuclear policy must be based on the declared principle of continuous, complete and irrevocable elimination of nuclear weapons.”

A Nuclear Weapons Convention

In December 1996 the United Nations General Assembly adopted a resolution (51/45M) expressing appreciation to the International Court of Justice for responding to its request. It underlined the Court’s unanimous conclusion that an obligation exists “to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects.” The resolution called for “commencement of multilateral negotiations in 1997 leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination.”

In order to demonstrate that drafting a nuclear weapons convention was a technically feasible possibility, two citizens action groups — the Lawyers Committee on Nuclear Policy (LCNP) and the International Network of Engineers and Scientists Against Proliferation (INESAP) — prepared a draft model Nuclear Weapons Convention. This draft was made public in April 1997 at the PrepCom for the NPT Review Conference.

From Arms Control to Abolition

Arms control has been a method of maintaining strategic balance between the key nuclear weapons states, while at the same time maintaining the two-tier structure of nuclear “haves” and “have-nots.” In other words, arms control has been in part a dangerous game to maintain special privilege played at the precipice of nuclear holocaust. It has been a game of high stakes, both financially and militarily. In the end, it caused the disintegration of the Soviet Union, and the jury is still out on what its ultimate effects will be on the United States, the one nation that has used nuclear weapons in warfare.

In the aftermath of the Cold War, it is now a particularly propitious time to move forward with the abolition of nuclear weapons. To do so will require a change in mindset of decision-makers in the nuclear weapons states, many of whom seem determined to hold on to their nuclear arsenals. The International Court of Justice has spoken on the obligation to achieve complete nuclear disarmament. The Canberra Commission has offered positive proposals for eliminating the immediate threat. The international generals and admirals have argued the case for the security benefits of eliminating nuclear arsenals.

Citizen action groups around the world have joined together in the call for achieving a treaty by the year 2000 calling for the prohibition and elimination of nuclear weapons within a timebound framework. They have called for achieving this treaty by the year 2000 so that the people of the world can enter the 21st century with a treaty in place leading to the elimination of all nuclear weapons within a timebound framework.

Unfortunately, the leaders of the nuclear weapons states do not seem to have heard or understood the arguments for eliminating their nuclear arsenals. They are expending their efforts on arms control proposals, like the CTBT, which they try to evade in practice. These leaders do not seem to have grasped that this is not a game, and that “superiority” cannot be realized by arsenals of genocidal weapons. They are still thinking in old ways that are no longer appropriate in the Nuclear Age. Their thinking could pull us into the vortex of nuclear conflagration, by accident or design.

Einstein argued that “The splitting of the atom has changed everything save our modes of thinking, and thus we drift toward unparalleled catastrophe.” The new way of thinking that Einstein called for must take into account the tremendous destructive power of the “instruments of genocide” in the arsenals of the nuclear weapons states. If we oppose genocide, we must also oppose basing our security on nuclear weapons.

When enough people speak out and demand that government leaders change their ways of thinking, then these leaders will change. Until enough people demand such change, government officials will likely continue to tread old paths of the mind. We need a united effort of people everywhere to demand that the goal of a nuclear weapons free world be realized, and that we enter the 21st century with a treaty in place that will lead to elimination of nuclear weapons within a timebound framework.

Bibliography

Advisory Opinion of the International Court of Justice on the Threat or Use of Nuclear Weapons 1996, United Nations General Assembly, A/51/218, 15 October 1996

Model Nuclear Weapons Convention 1997, Lawyers’ Committee on Nuclear Policy, New York

Report of the Canberra Commission on the Elimination of Nuclear Weapons 1996 National Capital Printers, Canberra, Australia [http://www.dfat.gov.au/dfat/cc/cchome.html]

Evan, William and Ved Nanda (eds.) 1995 Nuclear Proliferation and the Legality of Nuclear Weapons, University Press of America, Inc., Lanham, Maryland

Pauling, Linus 1983 No More War!, Dodd, Mead & Company, New York

Roche, Douglas, Unacceptable Risk: Nuclear Weapons in a Volatile World 1995 Project Ploughshares and Nuclear Age Peace Foundation, Ontario

Rotblat, Joseph, et.al. (eds.) A Nuclear-Weapon-Free World Desirable? Feasible? 1993 Westview Press, Boulder, Colorado

Ruggiero, Greg and Stuart Sahulka (eds.) 1996 Critical Mass, Voices for a Nuclear-Free Future, Open Media, Westfield, New Jersey

INTERNATIONAL COURT OF JUSTICE ADVISORY OPINION

ON THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS

July 8, 1996 Paragraph 105. For these reasons, THE COURT,

(1) By thirteen votes to one, Decides to comply with the request for an advisory opinion;

In Favour. President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;

Against: Judge Oda.

(2) Replies in the following manner to the question put by the General Assembly:

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;

In Favour: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

Against: Judges Shahabuddeen, Weeramantry, Koroma.

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;

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;

IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;

AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.

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.

Done in English and in French, the English text being authoritative, at the Peace Palace, The Hague, this eighth day of July, one thousand nine hundred and ninety-six, in two copies, one of which will be placed in the archives of the Court and the other transmitted to the Secretary-General of the United Nations.

(Signed) Mohammed Bedjaoui, President.

(Signed) Eduardo Valencia-Ospina, Registrar.

President Bedjaoui, Judges Herczegh, Shi Vereshchetin and Ferrari Bravo append declarations to the Advisory Opinion of the Court.

Judges Guillaume, Ranjeva and Fleischhauer append separate opinions to the Advisory Opinion of the Court.

Vice-President Schwebel, Judges Oda, Shahabuddeen, Weeramantry, Koroma and Higgins append dissenting opinions to the Advisory Opinion of the Court.