Nuclear Weapons, Deterrance, and International Law

 

Is current international policy enough to control the use of nuclear weapons to prevent a future catastrophe?

 

Prologue

This course has helped me to understand more about international policy and also has brought me to the realization that although there are international laws in place, there are many unstable nations who do not follow them or are not party to them.  With the recent news of North Korea and the threat of nuclear weapons, I have to wonder what our own specific policy is about deterrence and retaliation.

In my career as a U.S. military war planner; I work with an array of different career fields within the military.  One of which is the Air Force missileer.  Upon considering the topic of Nuclear Weapons for this research paper, I questioned one of our missileers, about the U.S. policy toward the use of nuclear weapons.  The missileer deals with a pretty ugly reality every day.  They sit in a guarded missile silo next to a nuclear weapon with their finger on the trigger (so to speak), and they wait for a phone call on a direct line from somewhere very high in our chain of command.  Because of their ability to use a specific checklist and fire this weapon, they must understand very well the circumstances for which that weapon might be fired and what the exact target is.  I asked the officer I was interviewing if he was nervous sitting in this position everyday or if he expected nothing to come of it.  He explained that he wasn’t exactly nervous but there was always a reason, sitting in such a position, to remain vigilant and understand the importance of your duty.  My next burning question was “in what situation would you actually have to fire the weapon?”  Of course there are many reasons he could not share because of classification but the short answer was that the weapon would only be used if we were fired upon first or if we had confirmation that we were in imminent danger of being destroyed.

It is upsetting to think that our nation would ever have to use a nuclear weapon, but it is even more devastating to think we would use it in retaliation even though we already knew our own destroyed fate.  Can you imagine being in this man’s position should this ever happen?  You are firing a weapon you know will have catastrophic consequences for its target and yet you also know you will most likely meet your own fate somewhere in the near future.

Stated best in a quote by Author Hans Bethe “If we fight a war and win it with H-bombs, what history will remember is not the ideals we were fighting for but the methods we used to accomplish them. These methods will be compared to the warfare of Genghis Khan who ruthlessly killed every last inhabitant of Persia (Bethe, 1991).”  A weapon of this sort does not discriminate; there is no strategic military target involved.  There will be dire consequences for many innocent people that are definitely non-combatants.  This goes against every international law in place to protect humanity.  I’m sure there must be a plan in place somewhere within International Policy, to prevent this from happening.  Have we not learned anything from history?  This is what I intend to find out through research and hopefully reach a better conclusion and understanding of nuclear weapons, deterrence and international law.

 

Introduction

History has shown that the use of nuclear weapons can cause catastrophic harm to an entire nation and therefore the subject of nuclear weapons policy is important in terms of International Law as well as the control of these weapons and the questions of morality associated with their use.  Is current international policy enough to control the use of nuclear weapons to prevent a future catastrophe?

 

Background

It is first important to define some of the terminology behind nuclear weapons and warfare such as the definition of a nuclear weapon versus a conventional weapon and also nuclear war versus conventional war.

            -The Nuclear Weapon

Simply put, nuclear weapons are weapons that release energy through atomic reactions rather than chemical reactions. There are many different names for nuclear weapons such as atomic bombs (A-bombs), hydrogen bombs (H-bombs), nuclear weapons, fission bombs, fusion bombs, and thermonuclear weapons but what they all have in common is that they require nuclear fission to initiate the explosive release of energy.  Nuclear weapons are either fission fueled, such as the atomic bomb, or fusion fueled, such as the hydrogen bomb.  Each of these weapons generates an explosive reaction from the interaction between atoms however hydrogen bombs are distinguishable by the isotopes of hydrogen involved in that atomic reaction.  Fusion weapons such as the H-bomb are also called “thermonuclear weapons” because high temperatures are required for the fusion reactions to occur (Sublette, 2001).

Nuclear weapons come in all shapes and sizes.  They can be delivered by artillery, plane, ship, or ballistic missile (ICBM); some can also fit inside a suitcase. “Tactical nuclear weapons can have the explosive power of a fraction of a kiloton (one kiloton equals 1,000 tons of TNT); while strategic nuclear weapons can produce thousands of kilotons of explosive force (“Nuclear Weapons”, 2008)”.

Nuclear technology is the most destructive ever developed and therefore controlling the technology is of utmost importance to the human race.  As explained by author Carey Sublette in his introduction to the frequently asked questions about nuclear weapons: “The topic is complex and technical: steeped in physics, mathematics, and esoteric engineering. Born in war, the subject has been highly classified from the beginning making it even more inaccessible. Yet this complexity and secrecy has not prevented their acquisition by any nation with an industrial infrastructure advanced enough to build them, and a matching desire. The obstacle to would-be members to the nuclear club has not been discovering how they work, but simply obtaining the tools and materials to make them.

During the Cold War immense empires devoted to the development, manufacture, and potential use of these weapons developed in the United States and Soviet Union. Although motivated by the natural desire for self-protection, much that occurred within these secret enclaves was less than noble. Political posturing, personal ambition, profiteering, and plain carelessness all had their role in deciding the expenditure of staggering amounts of public funds, the exposure of millions of people to risk and injury, and the creation of products and by-products that will burden future generations. Secrecy has been used as a screen from accountability, a tool for personal advancement, and an insider’s weapon against challenges as often as a genuine means for protecting national security (Sublette, 2001).”

-Nuclear Warfare vs. Conventional Warfare

            The primary differences between nuclear and conventional warfare are the weapons utilized and the objectives involved.  Conventional weapons are those weapons that are not chemical, biological or nuclear in nature.  These types of weapons can be aimed and fired at the opposing enemy or a legal military target.  Conventional warfare is defined as “armed conflicts openly waged by one state against another by means of their regular armies (Creveld, 2004).”  During conventional warfare, the objective is to weaken or destroy the opposing military allowing surrender and victory.

Nuclear warfare uses highly destructive nuclear weapons.  There cannot be an objective of conventional means to destroy a specific opposing force or target because a nuclear weapon cannot be employed in a proportional manner.  The long term effects of the use of a nuclear weapon can last years versus the immediate effects of a conventional weapon.  Nuclear warfare can be called unconventional because it does not follow the “rules” of conventional warfare and the tactics used will destroy illegal targets such as innocent civilians as well as legal ones.  There can be no justification for using nuclear force that is within the boundaries of just warfare.

 

History

The nuclear era began with the Manhattan Project, the secret American effort during World War II to construct an atomic bomb (Rezelman, 2003). After the discovery of fission many physicists realized the potential danger of the technology associated with atomic energy.  One physicist in particular, Leo Szilard, is considered the inventor of the atomic bomb.  Szilard led a team under President Roosevelt to test the capabilities of this new technology and the possibility of creating a bomb.  As German armies advanced through Europe during the war, many scientists thought it only a matter of time before the United States would be involved and this brought on the acceleration of the project.  On December 7th, 1941 Japan launched a surprise attack on Pearl Harbor forcing U.S. involvement on the Pacific and European fronts.  President Roosevelt gave the approval for the project to construct the atomic bomb.  During this time, there was also the fear that other countries, such as Nazi Germany, held similar technologies and were also attempting to create nuclear weapons and this essentially created a race to see who might use it first to affect the war.  For construction and security purposes, the project was turned over to the Army Corps of Engineers under the leadership of Colonel Richard Groves.  “With the successful Allied landings in France on “D-Day,” June 6, 1944, the war in Europe appeared to be entering its final phase.  Germany ceased to be the primary intended target.  General Groves and his advisers turned their sights on Japan, and the rush was on to complete the atomic bomb in time to end the war in the Pacific (US Dept of Energy, 2003)”.

The first test of the atomic bomb was in New Mexico in 1945.  The explosion and effects were much larger than anyone had anticipated.  “Los Alamos scientists agreed that the blast had been the equivalent of between 15,000 and 20,000 tons of TNT, higher than generally had been predicted.  Groves reported that glass shattered 125 miles away, that the fireball was brighter than several suns at midday, and that the steel tower had been vaporized (US Dept of Energy, 2003).”  Reports of the tests were handed over to President Truman who was currently at Potsdam in talks with the Soviet Union who had similar technology and were at the head of the pack in the nuclear arms race.  After it was clear that the Japanese would not surrender and that the Soviet Union under Stalin was not yet ready to declare war, Truman approved the use of the non-tested bomb on Hiroshima and to use additional bombs on Nagasaki as soon as they became available.

The bombs were delivered by aircraft on 6 and 9 August to Hiroshima and Nagasaki and on 10 August, Japan surrendered.  The U.S. celebrated the end of the war but was also in shock of the “terrifying power of this new class of weaponry”.  The reactions to the bomb varied greatly and many feared that the next world war could mean the “literal extinction of humankind, and to witnesses of two world wars in the space of three decades, a third world war seemed a virtual inevitability”.  Some thought that the “atomic world” might force creation of a world government, end war altogether, or that the new technology might be able to end disease and provide unlimited electricity.  Although the first two dreams of the atomic world were never realized, nuclear energy eventually did help to fight cancer and generate electricity. The bomb did have long lasting effects on American culture. “By the early 1950s even schoolchildren were instructed by a cartoon turtle that they “must be ready every day, all the time, to do the right thing if the atomic bomb explodes: duck and cover (Rezelman, 2003)!”

Even the devastating effects of the bombing of Japan did not end the nuclear arms race. There was hope by military leaders that an American monopoly on these weapons would deter any possible enemies in the near future but with the spread of technology and the Soviet Union also soon able to create weapons, any monopoly would be short lived.   Nuclear theorists developed deterrence theories and it seemed preventing war was more important than winning one.  When the Soviet Union started atomic testing in 1949, the United States felt it even more necessary to stay ahead and President Truman approved the development of a hydrogen bomb.  The h-bomb had even worse possible consequences than the atomic bomb.  In 1957, the Soviet Union came out ahead with the release of the intercontinental ballistic missile (ICBM).  The ICBM allowed an attack to be initiated in minutes versus the hours it had previously taken to load a weapon on an airplane.  The U.S. soon developed their own ICBMs and it was soon clear by leaders on both sides that neither superpower could “hope to escape unacceptable damage to its homeland (Rezelman, 2003)”.

The arms race continued into the 1970’s as each side realized that the slightest bit of new technology could remove the chance of retaliation by the other side causing the need for a “second strike” capability, thus ensuring the deterrent of “Mutual Assured Destruction” or MAD. The US created a “strategic nuclear triad” using intercontinental bombers, land-based ICBMs, and submarines equipped with nuclear-tipped ballistic missiles.  Soon after ICBMs with multiple warheads that had the ability to destroy the enemy’s weapons while still in their hardened silo’s were created. There was also the threat of antiballistic missile (ABM) systems, these weapons were to be used to fire at other weapons, but because of the “possibly destabilizing nature of a partially effective defense” both sides signed the ABM Treaty to prevent the other from moving further with the systems. The biggest concern was that the weapons had become so commonly available during the 60’s and 70’s that they were being deployed with military troops with the intention of using them in tactical roles.  The reality was that any combatant could now be the victim of a nuclear attack.  A ground assault by the Soviet Union against Western Europe was a particular concern because this type of attack could potentially wipe out civilization in the area and could not be called a “successful” defense (Rezelman, 2003).

It seemed many in the US and Europe in the 1980’s thought that a nuclear freeze might be the answer to this never ending saga.  President Ronald Reagan challenged the logic of “MAD” in 1981 and renewed the ABM debate through his “Strategic Defense Initiative.”  The arms race finally ended with the collapse of the Soviet Union in 1991.

As Martin Van Creveld explains in his discussion paper about modern conventional warfare, nuclear weapons capabilities are now quite commonplace in the international community.  “Since 1945, when the first two atomic bombs were dropped, the number of countries with nuclear weapons in their arsenals has increased from just one to ten; namely, the US; Russia; Britain; France; Russia; China; India; Pakistan; Israel, and North Korea.  At least as many countries are capable of producing them quickly should they want to do so, and will presumably do so if they feel that their security is seriously threatened. Out of those, several are working in this direction even now and are expected to go nuclear in the near future. In fact, by the early twenty first century any country sufficiently developed to build and maintain considerable conventional armed forces should also be capable of begging, stealing, or manufacturing nukes (Creveld, 2004)”.  Governments are now more concerned less with the idea of nuclear war and more with the acquisition of nuclear weapons by “rogue states” such as Iraq and North Korea (Rezelman, 2003).  It is for this reason that international policy on nuclear weapons and warfare is necessary.

 

International Law

            The threat of the possible consequences of an increasing number of states developing or acquiring nuclear weapons over the years has caused policymakers and diplomats alike to pursue international law as a means of controlling that threat (Graham, 2000).  As a result there have been many treaties and agreements between nations over the years, some an attempt to control testing and use and others to create nuclear weapons free zones and limits on the use of nuclear energy.  There have also been defense and missile treaties as well as international agreements to promote human rights and peace.

-Nuclear Non-Proliferation Treaty

“International law, as it relates to the control and spread of nuclear weapons, consists of a collection of largely Cold War-era treaties predicated on the belief that both the spread and existence of large arsenals of nuclear weapons represent a threat to international peace and security. More importantly, these agreements, particularly those in the 1970s that placed limits on U.S. and Soviet nuclear arsenals, were based on the idea that nuclear arms limitations and arms reductions could not be undertaken unless done verifiably and in parallel (Graham, 2000)”.

            One of the most significant treaties is the United Nations nuclear non-proliferation treaty.  This treaty was signed in 1970 and all five nuclear weapon states as well as 187 parties have joined the treaty.  The objective of the treaty is “is to prevent the spread of nuclear weapons and weapons technology, to promote co-operation in the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament and general and complete disarmament (UN Department for Disarmament Affairs, 2002)”.  To further the efforts of non-proliferation and build confidence of treaty members, a system of checks and balances was put in place in the form of inspections conducted by the International Atomic Energy Agency (IAEA).  The IAEA inspects for compliance with the treaty and also ensures the security of fissile materials that could be used to create weapons.  In 1991 it was decided upon review that the treaty should remain in force indefinitely.  Although there has not been another nuclear attack equal to that of the atomic bomb on Japan, the treaty seems to have failed in its attempt to prevent the spread of nuclear weapons and nuclear weapons technology.

-Nuclear Weapon Free Zones

“Nuclear Weapon Free Zones (NWFZs) at a minimum prohibit the stationing, testing, use, and development of nuclear weapons inside a particular geographical region, whether that is a single state, a region, or area governed solely by international agreements. They have been identified in many fora, including the Non-Proliferation Treaty and the UN General Assembly, as being positive steps towards nuclear disarmament (Nuclear Age Peace Foundation, 2009).”

Single state zones can be declared through legislation, declarations or constitutions.  Mongolia and Austria have declared themselves as weapons free zones using legislation without the use of treaties while New Zealand and the Philippines have signed a treaty but have also used domestic legislation to go above and beyond the requirements of the treaties they are party to.  The local legislation in Mongolia and Austria prohibits the storage, manufacture or testing of nuclear weapons within their territories but unfortunately it does not serve as a formal agreement from non-weapon states to respect their weapons free status.  Mongolia is hoping to achieve some international recognition of its weapons free status through a formal agreement.  Other single state zones located on or surrounded by water, such as New Zealand, have set domestic legislation to prohibit any ships which are carrying nuclear materials from entering their waters and also aircraft carrying nuclear weapons from landing in their territory which goes beyond New Zealand’s regional requirements under the South Pacific Nuclear Free Zone Treaty (Nuclear Age Peace Foundation, 2009).

Regional zones are weapons free zones formed by agreements from more than one state.  There are currently five regional NWFZs established by treaty.  “The provisions of each zone vary with the language of each respective treaty; however each treaty prohibits the manufacture, production, possession, testing, acquisition, and receipt of nuclear weapons (Nuclear Age Peace Foundation, 2009).”  Each of the treaties also requires each non-weapon state to sign a protocol that lays out specific negative security assurances and respect for the NWFZ.

The five regional zone treaties cover the areas of Latin America and the Caribbean through the Treaty of Tlatelolco, the South Pacific through the Treaty of Rarotonga, Southeast Asia through the Treaty of Bangkok, Africa through the Treaty of Pelindaba, and the Sea Bed, Outer Space and the Antarctic through their respective treaties.  Each of the regions has its own drawbacks because although most of the states in the region have signed and ratified the treaties, there are still some states left to sign or ratify in certain areas.  For example, Cuba has not yet ratified the Treaty of Tlatelolco, The United States has yet to ratify the Treaty of Rarotonga, and none of the states have signed the additional protocols that require negative security assurances of the Treaty of Bangkok (Nuclear Age Peace Foundation, 2009).  The most significant of the regions in current affairs is the Joint Declaration on the Denuclearization of the Korean Peninsula between Korea and North Korea, signed in January of 1992.  “Under this declaration the two countries agree not to test, manufacture, produce, receive, possess, store, deploy or use nuclear weapons, not to possess nuclear reprocessing or uranium enrichment facilities, and to use nuclear energy solely for peaceful purposes.”  However, the treaty has not been enforced because North Korea has threatened to withdraw from the Non-proliferation Treaty.

It is clear that although the Nuclear Weapons Free Zones are a step in the right direction, the issues that face them such as the single state zones not receiving negative security assurances from non-weapon states and the regional zones obtaining the full ratification of their treaties and the transit of material through international waters in these zones remain a problem.  It seems in the case of the non-proliferation treaty as well as the weapons free zones, that the current laws in place are not enough to prevent further actions in regards to nuclear weapons and materials and that it was necessary for the United Nations to turn to the International Court of Justice for an opinion on the matter.

-Legality of Nuclear Weapons

The piece of the puzzle that seems to be missing thus far is the issue of the overall legality of the use of nuclear weapons in terms of international law.  It is excellent that the international community had the idea thus far of attempting to prevent the further use of nuclear weapons through avenues such as the non-proliferation treaty, but is the use of nuclear weapons legal?

On December 20th of 1994, the UN Secretary General requested that the International Court of Justice (ICJ) answer the question “Is the threat or use of nuclear weapons in any circumstance permitted under international law?”  The court first determined that they held the necessary jurisdiction to reply to the request, which was granted because the charter required the requestor to have authorization from the United Nations.  Next the court questioned the “compatibility of the threat or use of nuclear weapons with international law” and decided that any political motives behind the request were “irrelevant to the establishment of its jurisdiction to give an opinion (Bello & Bekker, 1997).”  After it was decided that the court would make a judgment, the results were delivered.

“The court held: (A) that neither customary nor conventional international law specifically authorizes the threat or use of nuclear weapons; (B) that international law comprehensivley and universally prohibits the threat or use of nuclear weapons; (C) a threat or force by means of nuclear weapons that is contrary to Article 2, paragraph 4 of the UN Charter and that fails to meet all the requirements of Article 51 is unlawful; (D) that a threat or use of nuclear weapons should be compatible with the requirements of the international law applicable in armed conflict (including international humanitarian law) and specific obligations under treaties and other undertakings expressly dealing with nuclear weapons; (E)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, but that in view of the current state of international law and the facts before the Court, it could not 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; and (F) that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under international control (Bello & Bekker, 1997).”

The court concluded that after all the recent world summits to talk of environmental and human security concerns, that is was important that a new level of cooperation was reached and that the UN should declare the first ten years of the twenty first century in creation of a “culture of peace.”  It was quoted by Attorney Jonathan Granoff:  “The moral experience of shame has been placed in us along with the moral sensibility of revulsion. What right do we have to organize ourselves such that we might give human beings the Sophie’s choice of ending all life on the planet in order to save a human creation, the state. As General Omar Bradley stated, “We live in an age of nuclear giants and ethical infants, in a world that has achieved brilliance without wisdom, power without conscience. We have solved the mystery of the atom and forgotten the lessons of the Sermon on the Mount. We know more about war than we know about peace, more about dying than we know about living (Nuclear Age Peace Foundation, 2009).”

The rulings of the court give us the understanding that although the use of nuclear weapons is clearly inhumane and not within the confines of customary or conventional international law, that it cannot make a decision on complete disarmament because use might be legal under extreme circumstances.  Therefore, with this final judgment, the court has given us permission to keep producing, storing and distributing nuclear weapons just incase we might need them in an extreme circumstance.  Each states obligations under any treaty or international law are left to their own understanding and intentions.

 

Conclusion

            Attempts to control the use and spread of nuclear weapons have failed under any treaty or law.  It is clear that the international community understands the seriousness of the use and threat of these weapons but that they refuse to take necessary steps toward disarmament.  The steps that have been taken thus far have been successful on some fronts but in the long run we are in the same position we were in after the bombs were dropped on Hiroshima and Nagasaki.  Each state that is party to a treaty has agreed to disagree because treaties have not been fully enforced.

The answer to the issue is definitely not clear cut.  Further actions may need to be taken by the weapons states to agree on disarmament and ultimately the destruction of weapons; however with rogue states holding weapons it may be hard for weapons states to disarm themselves first.  It is then fair to disarm a rogue state with the “promise” of destroying any existing weapons held by declared weapons states afterwards?  The reality is that because the technology exists there is always an ability to create a weapon, no matter how many are destroyed.  Therefore, it is clear we cannot prevent the repeat of a nuclear attack or a nuclear war and although it is important to have international law and treaties to police our current affairs and situation, international law is not enough to prevent further actions from taking place only to warn us of possible threats.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

“Nuclear Weapons”. (2008). Retrieved August 11, 2009, from The Columbia Encyclopedia, Sixth Edition: http://www.encyclopedia.com/topic/nuclear_weapons.aspx

Bello, J. H., & Bekker, P. (1997). Legality of the Threat or Use of Nuclear Weapons. The American Journal of International Law. Vol. 91, No. 1 , 126-133.

Bethe, H. (1991). The Road from Los Alamos. New York: The American Institute of Physics.

Creveld, M. (2004, May 25). Modern Conventional Warfare: An Overview. Retrieved August 11, 2009, from National Intelligence Council: http://www.dni.gov/nic/NIC_2020_2004_05_25_intro.html

Graham, T. J. (2000). International law and the proliferation of nuclear weapons. The George Washington Journal of International Law and Economics .

Nuclear Age Peace Foundation. (2009). Treaties. Retrieved August 11, 2009, from Nuclear Files.org: http://www.nuclearfiles.org/menu/library/treaties/

Rezelman, D. (2003). “Nuclear Weapons.” . Retrieved August 11, 2009, from Dictionary of American History: http://www.encyclopedia.com/doc/1G2-3401803030.html

Sublette, C. (2001, August 9). A guide to Nuclear Weapons. Retrieved August 11, 2009, from The Nuclear Weapon Archive: http://nuclearweaponarchive.org/

UN Department for Disarmament Affairs. (2002). Treaty on the Non-proliferation of Nuclear Weapons. Retrieved august 11, 2009, from UN.org: http://www.un.org/Depts/dda/WMD/treaty/

US Dept of Energy. (2003). The Manhattan Project. Retrieved August 11, 2009, from USDOE Office of History and Heritage Resources: http://www.cfo.doe.gov/me70/manhattan/

 

 

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