With nuclear weapons, humanity is living on a kind of suspended sentence. For half a century now these terrifying weapons of mass destruction have formed part of the human condition. Nuclear weapons have entered into al1 calculations, al1 scenarios, al1 plans. Since Hiroshima, on the morning of August 6, 1945, fear has gradually become man's first nature. His life on earth has taken on the aspect of what the Koran calls "long nocturnal journey," like a nightmare whose end he cannot yet foresee.
Separate Opinion of President Mohammed Bedjaoui in the Nuclear Weapons Case of the International Court of Justice (1996)
Two European Jews, Hans Kelsen and Louis Sohn, both refugees from Hitler who settled in the United States, both preeminent scholars and teachers of international law, are associated with the notion of an intimate connection between peace and law. In Kelsen's book, Peace Through Law, published in 1944, he speaks disapprovingly of Article 22 7 of the Versailles Treaty, which describes the act of starting a war as an offense against international morality when, he says, it should be more properly called an offense against international law.
Kelsen was a positivist, an advocate of "pure law" uncontaminated by ambiguous ideas of fundamental rights and wrongs. Sohn, on the other hand, was a fervent advocate of law based on human rights. In 1958, he, together with Grenville Clark, published World Peace Through World Law, in which they laid out a plan for the United Nations as, eventually, the sole enforcer of peace between nations. Both Kelsen and Sohn, coming from opposite ends of the jurisprudential spectrum, believed that law had an essential role to play in international affairs.
In the intervening half century, international law has come to be regarded by many governments more as a luxury than a necessity, or, more precisely, as a directive sent to actual or potential enemies while being ignored by the sender. Nowhere is this more evident than in the area of nuclear weapons, as will be seen from the discussion below.
Historians of World War II are fond of attributing its end to the dropping of a nuclear bomb on Hiroshima on Aug. 6, 1945, and another on Nagasaki three days later. In fact, there is good reason to believe that Japan was ready to surrender without a demonstration by the United States Air Force of the horrific power of this new weapon.1 The very first resolution adopted by the United Nations General Assembly, in 1946, established a commission to deal with the problem of nuclear energy and charged it to bring about "the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction." With the achievement of a nuclear explosion by the Soviet Union, the world entered a nuclear arms race, which eventually led to the adoption in 1968 of the Nuclear Non-Proliferation Treaty (NPT).2 At that time, five powers possessed nuclear weapons: the U.S., the Soviet Union, the United Kingdom, France and China. In the meantime, three others, India, Pakistan and Israel, have become nuclear weapons powers (NWPs). They are the only three countries not members of the NPT, apart from North Korea, which was a member but has withdrawn.
The NPT Grand Bargain
The NPT was to be a grand bargain between the NWPs and the rest of the world. "We have them," the NWPs said, "and, in return for your foreswearing forever to acquire them, we will negotiate in good faith to get rid of ours and we will help you develop nuclear energy for peaceful purposes." The disarmament obligation is stated as follows in Article VI: "Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to the cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty in general and complete disarmament under strict and effective international control."
It should be noted that the two types of disarmament mentioned in Article VI, nuclear and general, are not interdependent. There is no reference to general and complete disarmament (GCD) in the title of the NPT, nor in any of its numerous provisions dealing with the implementation of nuclear disarmament.
The U.S., furthermore, is on record as stating, at the time the NPT was negotiated, that, while GCD could obviously not be achieved without nuclear disarmament, GCD was not a condition precedent to nuclear disarmament.
GCD in Article VI is - unfortunately - an interloper, an uninvited guest. Nevertheless, it is there and, in a technical sense, is a continuing obligation to negotiate in good faith for GCD. But the world community has turned its back on GCD after a brief flirtation with the concept in the 1960s.3 The situation is quite different with respect to nuclear weapons, which, one can assume, is due to the fact that these are by far the most brutal and lethal weapons ever invented. Here we have a great variety of treaties dealing with numerical (e.g., Strategic Arms Reduction Treaty [START], Treaty of Moscow) and geographic (e.g., Palindaba, Rarotonga, Tlatelolco, Outer Space, Arctic) aspects of nuclear weapons.
The Bedjaoui Advisory Opinion
We also have the 1996 Advisory Opinion of the International Court of Justice (ICJ), for which we are indebted to Mohammed Bedjaoui, a preeminent international law scholar of the Arab world, who was at the time the president of the court and whose judicial diplomacy resulted in one of the most important contributions to the international law canon of modern times. It contains the following holdings, among many others, dealing with humanitarian law in general and nuclear weapons in particular:
A threat or use of nuclear weapons should be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law (Unanimous - Par. 105D). The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and particularly the principles and rules of humanitarian law … (but) the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a state would be at stake (Seven votes to seven, by the President's casting vote - Par. 105E). 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 (Unanimous - Par. 105F).
Critics of the opinion point to the extreme circumstance language in Par. 105(2)E as constituting an exception to the holding of general illegality. But this criticism is not justified. In the first place, the language in question is a non liquet, a deliberate failure to decide whether or not there is an exception. In the second place, the emphasis on "the principles and rules of humanitarian law," both in this paragraph and in the preceding one, negates the possibility of an exception. The opinion was not a case of making new law by a group of so-called activist judges. It was based on principles and rules of humanitarian law, both customary and conventional, which long preceded the UN General Assembly's request for the opinion.
In essence, the relevant principles were the following: It is prohibited to use weapons that are incapable of distinguishing between civilian and military targets; It is prohibited to cause unnecessary suffering to combatants; and Civilians and combatants remain at all times under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience (the Martens Clause).
The Court called these principles "intransgressible" and said that they were "scarcely reconcilable" with the use of nuclear weapons. This would be true even as applied to weapons with a throw-weight no greater than the bombs dropped on Hiroshima and Nagasaki. It requires no feat of the imagination to realize how much more true it is of nuclear weapons in existence today, which have multiple times the force of those earlier ones.
Some commentators have sought to dismiss the ICJ Opinion as "merely advisory." But this is a strange way of dealing with an authoritative interpretation of international law rendered by the highest court in the world qualified to do so. An advisory opinion may not be binding, in the sense that it cannot per se be the basis of enforcement action by the Security Council under Article 94 of the UN Charter. It is nevertheless controlling as an authoritative interpretation of a question of international law, which can be the basis of a Security Council resolution, the violation of which can lead to enforcement action by the Council. There is, of course, a minor problem: Security Council resolutions may be vetoed by any of the five permanent members, which is what the U.S. did in the Nicaragua case.4
Thus, a contentious decision by the Court is not necessarily any more binding than an advisory opinion, and an advisory opinion can be made binding with the intermediate step of a Security Council resolution calling for compliance with its content.
To summarize, the obligation, incumbent on all states (including Israel), to negotiate in good faith for total nuclear disarmament is unquestionable and intransgressible, but its enforcement can be blocked by the veto of one or more of the "Big Five," or simply by inaction. So much for the strictly legal aspects of the matter. It is, however, a fact of political life that, despite the protestations of undying obeisance to "the rule of law" which embellish many a politician's speech, the law by itself is incapable of securing the values which it reflects or the specific objectives which it proclaims. It is necessary, therefore, to examine the political will to "go to zero," to take, as it were, a reading of the world's anti-nuclear barometer.
Some Encouraging News
In this respect, the news is not all bad. Since the appearance, in January 2007, of an article in the Wall Street Journal calling for a nuclear-free world co-signed by two former Republican secretaries of state and two elder Democratic statesmen, it has been possible, at least in the U.S., to speak of nuclear abolition as an issue transcending political battle lines, rather than as one owned only by liberals and progressives. Since then, hundreds of more or less prominent figures, from all corners of the political spectrum, have signed on to the call for "going to zero." Similar calls have come from many parts of the globe, not only from the non-nuclear countries which have always been for a nuclear weaponsfree world, but also from other nuclear weapons countries and countries under the "nuclear umbrella," as well as from the UN secretary-general and the current president of the General Assembly. Add to this the Prague speech by President Barak Obama (April 5, 2009), in which he affirmed his commitment to a nuclear-free world and you will see that the climate concerning nuclear abolition has changed considerably in the recent past. This commitment has also been reaffirmed by all the 34 countries participating in the NPT PrepCon, the Preparatory Conference which met at the UN in New York May 4-15 to prepare the agenda for the quinquennial NPT Review Conference which will meet, also in New York May 5-28, 2010. The mood at the PrepCon was in sharp contrast to that of the 2005 conference, which was successfully sabotaged by the Bush administration and accomplished only a good deal of backtracking from the 2000 conference, if you can call that an accomplishment. This time, Obama sent a message to the conference and promised to take "concrete steps" toward a nuclear-free world. Even Senator John McCain made a statement to the U.S. Senate on June 3 entitled "A World Without Nuclear Weapons." It remains to be seen, however, what will be the content of the Nuclear Posture Review, currently being prepared in Washington and due to be released in October 2010.
Challenge to Civil Society
All of this presents a serious challenge to civil society. During the Cold War, the danger of a nuclear holocaust was taken seriously. We had books, movies, demonstrations; getting rid of nuclear weapons was, for several years, at or near the top of public concerns. But all this mass movement achieved was freezing the number of nuclear weapons at a level where they were sufficient to kill every man, woman and child in the world several times over. Today, paradoxically, a greater percentage of the public understands the uselessness of nuclear weapons and the fallacy of deterrence, but the number of people willing to do something about it is much smaller. Today's mantra, intoned by many opponents of nuclear weapons, is "Let's go down to 1,000" and that may indeed become the number agreed by the U.S. and Russia at the negotiations for a renewal of the START Agreement, which expired on Dec. 5, 2009. As if 1,000 nukes were a negligible number if used by either country under its current doctrine of extended deterrence! As if maintaining 1,000 nukes in the arsenals of Russia and the U.S., and several hundred in each of the six other nuclear-armed states, were likely to persuade North Korea and Iran, and who knows how many other countries, not to build their own nuclear arsenals, rather than the other way around.
The Case of Israel
The case of Israel is, of course, special. Unlike the other two non-NPT states, Pakistan and India, Israel has never admitted what the whole world knows: that it has nuclear weapons. The Obama administration has decided to go along with this game and continues to give Israel's nuclear arsenal the silent treatment. But what would happen if, by some stroke of extraordinary diplomacy, all the actual, and presumed future nuclear weapon states like Iran were to agree to sit down together and begin the serious business of negotiating a binding agreement creating a nuclear weapons-free world, and if "all" turned out to be "all but one," namely Israel?
Or, to take another hypothetical approach more likely to become reality: What would happen if Israel decided, with or without the covert approval of the U.S., to carry out one or more bombing strikes against Iran's nuclear installations, strikes which, most analysts now agree, could only delay Iran's march toward joining the nuclear club, but could not stop it? Would the rest of the world still grant Israel the right of self-defense, in violation of every principle of international law, or would this be the straw that breaks the camel's back, in terms of Israel's standing in the international community?
These, it seems to me, are questions worth asking, both in and outside of Israel. Until they are answered, it would, at least, be well to consider the words with which Bedjaoui ended his remarkable separate declaration in the ICJ's nuclear weapons case:
The solution arrived at in this Advisory Opinion frankly states the legal reality, while faithfully expressing and reflecting the hope, shared by all, peoples and States alike,nuclear disarmament will always remain the ultimate goal of all action in the field of nuclear weapons, that the goal is no longer utopian and that it is the duty of all to seek to attain it more actively than ever. The destiny of man depends on the will to enter into this commitment, for as Albert Einstein wrote,"The fate of the world will be such as the world deserves."
1 See, i.a., Gar Alperovitz, The Decision to Use the Atomic Bomb (New York: Vintage Books, 1996).
For a history of NPT see, i.a., http://www.un.org/events/npt2005/background.html
3 See, for instance, the Zorin-McCloy Agreement of 1961.
4 The Republic of Nicaragua's 1986 ICJ case brought against the United States of America for violating its treaty obligations to Nicaragua by supporting the Contras and for breaching international law by violating Nicaragua's sovereignty i.a. The ICJ ruled in favor of Nicaragua, but the U.S. blocked the enforcement of the ruling by the UN Security Council thereby denying Nicaragua any actual compensation (Ed.)