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Delegitimisation of nuclear weapons

Introduction

Though after the second World War some countries have revised their nuclear weapons programme, nuclear weapons still today are considered to be an established currency of politics and security. While the nuclear weapons states have agreed on a legally binding commitment to nuclear disarmament, they continue to rely heavily on such weapons in their security doctrines and continue to invest and modernise their arsenals. The way towards nuclear disarmament has many different paths and there are several approaches.

One such approach that is gaining more and more support is the delegitimisation of nuclear weapons. To delegitimise something means to “diminish or destroy the legitimacy, prestige or authority”1/ of a given idea, concept or object.

In their advisory opinion in July 1996 the International Court of Justice stated 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 humanitarian law”. Since the use of nuclear weapons is generally considered to be illegal, their overall utility is questionable. So in order to delegitimise nuclear weapons, there is a critical need to change the perception of their role and utility: from a position in which they occupied a central strategic place to one in which their role is seen as wholly unnecessary as well as undesirable. To be successful in this task other actors that are not bound to a specific state’s security polices are of utmost importance, they can bring new ideas to the table and keep the discussion focused on the topic at hand. It all comes down to nuclear weapons not being very useful in today’s world and the upholding of these weapons increasing the danger of them being used and thus causing devastation.

Reviewing the value of nuclear weapons

Different reasons are being put forward as to why Japan surrendered on August 10th, 1945. Some people believe that dropping two atomic bombs on Hiroshima and Nagasaki coerced Japan's leaders into ending World War II (WWII). This interpretation has certain plausibility, since only a short time after the USA bombed Hiroshima on August 6th, 1945, and Nagasaki on August 9th, 1945, Japan signalled a willingness to surrender. But even a superficial review of the facts shows that there is almost no way that this interpretation can be true.

Both recent historical research in Japan and older research, conducted by researchers in the Soviet Union demonstrate that the destruction of the two Japanese cities by the U.S. did not significantly influence the willingness of Japan’s General Staff and government to fight. It was rather the declaration of war by the Soviet Union on August 8th, 1945 that led Japan to surrender./2 It can be argued that for the Japanese government the bombings served as a face-saving justification for the surrender, when really their military could not have fought both the U.S. and the Soviet Union. From the perspective of the U.S. the bombings ended WWII and were therefore a legitimate means of warfare.

In 1968, a multilateral treaty limiting the spread of nuclear weapons was signed and entered into force in 1970. Member states of the Non-Proliferation Treaty (NPT), including France, China, Great Britain, the USA and the Soviet Union, committed themselves not to acquire nuclear weapons (those who did not posses them), to pursue good faith negotiations to disarm nuclear weapons and to recognise the right for peaceful use of nuclear energy.

The time of the Cold War is often used as a reference for the effectiveness of nuclear deterrence. However, it could be argued that the absence of any great catastrophe can be attributed rather to luck than anything else. More than once the decision for or against the use of a nuclear weapon was in the hands of one man and one misinterpretation of the situation could have started a nuclear war./3

In 1969 after the Antarctica (1961) and Outer Space (1967) had already been declared Nuclear Weapon Free Zones (NWFZ), the Treaty of Tlataloco created the first continental-wide NWFZ. Other treaties followed and today there are nine NWFZs around the world.

International Humanitarian Law

The advisory opinion of the International Court of Justice (ICJ) in 1996 declares 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”. This advisory opinion is based on the fact that nuclear weapons are in their nature indiscriminate, i.e. they do not distinguish between non-combatants and combatants. Therefore a nuclear attack would be incapable of sparing civilians (article 48 of Protocol I). International humanitarian law (IHL) states that it is unlawful to cause unnecessary suffering to combatants (The Hague Convention IV, Article 23 (e)) A nuclear bomb will, if used, have devastating consequences and the “[r]adiation released by a nuclear explosion would cause generic defects and illness in future generations”. Furthermore, nuclear weapons cannot be confined in their effects in space and time. That means that other states close to the attack cannot be guaranteed not to be affected. IHL states that neutral states must be protected from damage caused by warfare (The Hague Convention V, Article 1). Drawn from the above the indiscriminate nature of a nuclear weapon would be a violation of IHL. The rules that are outlined both in the Geneva Conventions and the Hague Convention on respecting the laws and customs of war and conflict should be applied to nuclear weapons just as they are in any other aspect of armed conflict.

Additionally, nuclear weapons have the same destructive nature as biological and chemical weapons. The degree of destructive power was one of the main arguments when banning the use of biological and chemical weapons, so this argument must be a legitimate one also in the case of nuclear weapons.  

In addition to IHL, human rights law and environmental law are also applicable during armed conflict. They both emphasise general principles such as proportionality and necessity and are just as relevant for nuclear weapons as for biological and chemical weapons. The non-use of nuclear weapons could be argued to be Customary Humanitarian International Law since nuclear weapons have not been used since WWII and many states, including nuclear weapons states, have stated that six decades of international norm of non-use of nuclear weapons should be strengthened and the non-use policy be extended forever.The five big nuclear weapons states, i.e. the U.S., Great Britain, France, China and Russia (the P5), have signed and ratified the NPT. The P5 have thereby committed themselves “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control”. The ICJ also strongly emphasised this issue and summarised the twofold requirements of article VI to be both conducting negotiations and engaging in results leading to nuclear disarmament.

The 2010 NPT Action Plan also calls upon member states, in action 20, to recall the advisory opinion of the ICJ. In spite of the ICJ's opinion on the use of nuclear weapons the court did not find any international laws specifically prohibiting the threat of use or use of nuclear weapons during an armed conflict. The court also could not conclude definitively whether the threat of use or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence.

Utility

It is now widely accepted that nuclear weapons have little or no utility as instruments of warfare. They are unfit to be used to acquire territory because of their long lasting environmental damage. Nor can they be used in today’s second generation warfare, when war is no longer fought by individual states’ armies on the front line. Today’s armed conflicts are to a greater extent fought by and amongst civilians, which makes it difficult to aim weapons at a specific military target. The weapons are, furthermore, useless when it comes to fighting terrorism since most terrorist groups do not occupy a traditional site that could be targeted, neither can they be identified as combatants since they do not distinguish themselves from civilians. There is a strong taboo on the actual use, if not possession, of nuclear weapons: a profound normative constraint, as well as a practical one, against using weapons of such indiscriminate and disproportionate destruction. Because of the limited utility and the taboo of the use of nuclear weapons, the question is how big the actual threat for nuclear power states to use their weapons is. The main purpose of nuclear weapons today is their deterrent character, i.e. the possession of nuclear weapons prevents any other agent from attacking a nuclear weapon state.

In the 2010 Nuclear Posture Review Report The United States explains “[...] with the objective of making deterrence of nuclear attack on the United States or our allies and partners the sole purpose of U.S. nuclear weapons.” The Review Report goes on saying; “[e]ffective missile defences are an essential element of the U.S. commitment to strengthen regional deterrence against states of concern." The French Ambassador Mr. Eric Danon stated in an interview during the 2010 NPT review Conference that nuclear deterrence is one of the systems in place today that is keeping the international stability and refraining states from attacking other states.

Countries that have reversed their nuclear options

After the end of the Cold War the former members of the Soviet Union, Belarus, Kazakhstan and Ukraine, decided to return the nuclear weapons based on their soil. At the same time under the umbrella of NATO nuclear sharing, U.S. nuclear weapons have been deployed in different non-nuclear NATO member states. In 2001 the U.S. removed its tactical nuclear weapons from Greece and the United Kingdom, though in case of a crisis they could probably be redeployed.

In 1989 South Africa dismantled its nuclear weapons programme and joined the NPT in 1991. In 1994 the International Atomic Energy Agency confirmed the transformation of South Africa’s nuclear programme into peaceful applications. Up until today South Africa remains the only country that has abolished its nuclear weapons.

After several years of struggling to develop nuclear weapons Libya announced in December 2003 the elimination of its production of nuclear weapons and the admission of International Atomic Energy Agency (IAEA) personnel to supervise the process. To increase confidence Libya ratified the Comprehensive Test Ban Treaty in January 2004 and signed the additional protocol of the NPT giving IAEA inspectors greater authority in verifying the country’s nuclear programme.

These examples show the possibility to disarm without jeopardising national security, regrettably these efforts are few in numbers. Despite of the lack of nuclear disarmament today most countries have clearly stated that nuclear disarmament is a priority and is in their national interest. Unfortunately these commitments are in many cases vague and are yet not seen translated into concrete actions that are in compliance with the principles of nuclear disarmament.

How to move forward

In order to abolish nuclear weapons today, their role as a central strategic asset in states national security needs to be redefined and the security issues have to be more focused on human security concerns. This will not be easy since the Cold War-assumptions about the weapons’ roles are deeply rooted in notions of deterrence and national security. Traditional nuclear arms control was established during the Cold War and was concerned with arms control and non-proliferation. This attitude has still strong advocates particularly in the nuclear weapons states. One example is the reluctance in negotiation a Fissile Material Treaty (FMT) instead of a Fissile Material Cut-off Treaty (FMCT) in the Conference on Disarmament, which include just halting the production of fissile material but not reducing the current stocks. There is a need to start talking about nuclear weapons in a different manner. When disarmament is treated as humanitarian action, it forces states to change their mind-sets. The humanitarian approach to weapons has shown to be successful in the past when landmines and cluster weapons were banned and delegitimised. Non-nuclear weapons states, in particular Norway and Switzerland, have taken with some success a leading role in the delegitimisation debates.

For the first time, in the 2010 NPT review outcome document, the humanitarian approach is mentioned: “[…] catastrophic humanitarian consequences of any use of nuclear weapons and reaffirms the need for all States at all time to comply with applicable international law, including international humanitarian law.” Together with Norway and Switzerland more non-nuclear states are placing themselves on the humanitarian side of nuclear weapons. During the 2011 session of the Conference on Disarmament several states have pointed out the clash of International Humanitarian Law with the use of nuclear weapons and the devastating humanitarian crises an attack would cause. The above mentioned states together with the non-alliance movement (NAM) countries are slowly starting to change the doctrine.

Civil society actors have for a long time worked to eliminate nuclear weapons. Non-governmental organisations (NGO) that have no obligations towards a state should help put more focus on the delegitimisation. International humanitarian action organisations such as the ICRC and IOM could help taking a leading role for NGO's working for the delegitimisation of nuclear weapons. More measures have to be taken to engage more and new people, groups of stats, civil societies, scientists and health practitioners need to work together to push for the issue on delegitimisation.

Action plan number 19 in the 2010 NPT Action Plan focuses on the importance and obligations of member states of the NPT to engage in cooperation with other national governments, the United Nations, as well as other international and regional organisations and civil society. In May 2010 the James Martin Center for Non-proliferation Studies and the Monterey Institute of International Studies published a report on Delegitimising Nuclear Weapons. In their report the authors bring light to a new and important actor: the military. “Not surprisingly, military leaders have continually questioned the usefulness and morality of nuclear weapons.” Furthermore, the report reminds the reader of the important role military personnel have had in the disarmament negotiations banning landmines and cluster munitions.In conclusion, more diverse groups of actors need to be attacking and changing the doctrine and view on nuclear weapons.

Unfortunately, using the example of the Conference on Disarmament, expanding the forum to more member states and the inclusion of civil society, show some states reluctance to engage in a broader forum. Delegitimisation is a conceptual approach to nuclear disarmament, but should be complemented with specific and tangible steps by governments.

Definitions

Delegitimisation is the act of removing of the legitimacy, prestige or authority of an idea or an object.

Negative Security Assurance (NSA) is a guarantee by a nuclear weapon state (a state that possesses nuclear weapons) that it will not use or threaten to use nuclear weapons against non-nuclear weapon states (states that do not possess nuclear weapons).

No First Use policy of a nuclear possessor implies the assurance not to use a nuclear weapon as a means of warfare. China has declared its commitment to no first use of nuclear weapons whereas NATO and Russia continue to reserve the right of first use of nuclear weapons.

There are currently five major Nuclear Weapons Free Zones (NWFZ): Africa (the Treaty of Pelindaba); South Pacific (Treaty of Rarotonga); South America (Treaty of Tlateloco), the only continental-wide NWFZ; Central Asia (Treaty of Semei) and South East Asia (Treaty of Bangkok). Potential NWFZ: the Middle East.

The term nuclear deterrence is used when the possession of nuclear weapons prevents the possessor state from being attacked, simply because the opponent fears the response. 

The term nuclear sharing refers to the practice of NATO nuclear weapons based on the soil of a non nuclear weapon state.

The Geneva Convention refers to the agreement reached in 1949 in the aftermath of World War Two. The treaty set the standards in international law for humanitarian treatment of the participants of war.

The Hague Convention are two international treaties dealing with laws of war and war crime in international law. The treaties were negotiated at the international peace conferences in the Hague in the Netherlands.