What follows are my notes on a recent talk by Prof. Dr. Michael Bothe, Chairman of the specialized committee for humanitarian international law, German Red Cross, Chairman, German society for international law, Em. Professor Johann Wolfgang Goethe University Frankfurt am Main. It was given at the Law School, University of Tasmania, 14 February 2006. The notes are pretty rough, and I apologize for any mistakes.
Two types of legal restraint on nuclear weapons:
- prohibition on use
- restraints on posession
1. Legal prohibition on use of N.W.
Laws of armed conflict. No law specifically bans their use. Has not arisen as customary law – two UN resolutions banning their use were controversial and therefore don’t support customary argument. ICJ 1996 said explicitly that no such customary restraint had arisen.
2. General norms for protection of civilian population
- principle of distinction: attacks may not be directed against civilian objectives, only military. eg: carpet bombing is prohibited as it doesn’t distinguish.
- principle of proportionality: “collateral damage” illegal if greater than military advantage gained. This discards argument that it’s legal to use a bomb like hiroshima if it shortens the war.
These two principles have a long history and are permanently established in treaty (1977 protocol) and customary law. Thus even non signatories to treaty are bound. ICJ has stated explicitly that “these general laws apply”.
Is there any way to make non-indiscriminate use of nuclear weapons. Hard to imagine. ICJ 1996 said only extreme case of self defense could a state use N.W to defend itself. (7-7 + casting vote of chairman). 3 further judges, although dissenting, said in no situation whatever could use of N.W be legal… make 10 saying illegal other than in self defense. Japanese judge said case should not have been ruled on (basically an abstention) and US, UK, and France were only judges holding open possibility of legal use.
- NB this leaves no niche for theatre weapons.
- - did the court intend to leave out option of collective self defense (nuclear umbrella)?
3. Non-possession.
Transfer, acquisition, and development. ICJ unanimous (1996) – duty of all states to pursue nuclear disarmament in good faith.
No serious will to disarm existed before Cuban missile crisis, then mutual withdrawal, USSR from Cuba, US from Turkey. 1968 non proliferation treaty, philosophy of not upsetting balance. – Administered by IAEA, made only vague promises to non-nuclear states about disarmament of nuclear states in return for non-proliferation. Little success overall. States wishing to pursue nuclear ambition didn’t join or cheated.
- Testing bans:
- Generally only agreed by nuclear powers when they no longer needed that type of testing.
- 1963 – atmospheric, underwater, and space.
- 1974 – underground over a certain size.
- 1996 – all tests banned , US never ratified this, even though it says it no longer needs to test.
- Weapons grade uranium
- Highly enriched uranium is dual use, can be for reactors, hence no legal restrain on posession. Stored in many places, hard to police.
4. Weapons States
- 5 Legally recognised: US, Russia, UK, France, China
- 2 Never signed non-proliferation treaty: India, Pakistan
- 1 Undeclared but has bomb: Israel (increases instability in region + hurts situation viz Iran)
- 1 Declared (in violation) but may be lying: N.Korea
- Several states (eg: Sth Africa, Iraq) kept options open but have now signed.
5. Iran
UN resolution on Iran: “to make the middle east free of weapons of mass destruction” is an allusion to Israel.
Although enriched uranium is permitted it is view differently by international community w.r.t Iran. Don’t believe assurances, also false and withheld info from IAEA. Made non-binding agreement (with EU 3 in Paris in 2004) to stop enrichment, but has now withdrawn from that. Do irregularities imply unpeaceful intention? Belicose utterings by Iran’s President are not helpful, nor are discriminatory remarks and attitudes from some other states.
6. Deterrent?
If disarmament is failing, what are prospects for prohibition on use acting as a deterrent? Law is not only norm determining behaviour, also social norms. Eg: sign: reserved parking for organ transplant – parking space in front of airport. Never taken because of social norm not just law. Increase reliability of nuclear prohibition by social condemnation of use.
-> attack on Hiroshima was illegal, principle of distinction clearly applied to this case, but happened anyway. Later protest and moral condemnation influenced decision makers. Eisenhower nearly used bomb several times but public opinion and moral outrage prevented. His sec. state Dallas (?) saw it as an “impediment” but could not overcome it.
7.Shaky “nuclear tabu”
1977 Serious legal discourse in Geneva. Included military. West did not want debate, insisted protocol did not apply to nuclear weapons. Hence decisions became of limited value. 1996 ICJ gave answer despite nuclear powers wish, as described above. Lots of lip service to this but not clear how much effect, except that court’s authority strengthens tabu as created by public opinion.
- Thus restrain stronger in western democracies: but attempt to create mini-nukes, govt. stance ambiguous, still decide “necessary to retain” – no proper disarmament.
- Israel: these restraints weaker, perception within Israel of overwhelming threat to survival, legal argument still a help.
- Russia: nuclear option balances conventional forces inferiority, legal restraint may not be very strong.
- India and Pakistan: deterrence, needs to be overcome with confidence building, rule of law and legal restraint may matter in India
- “Rogue States”: if exist? legal restraints may not matter. Deterrent may have a role. Security council and international sanction may matter (eg vs. Iran)
- Terrorists: International cooperation to prevent access to materials is essential; new convention on nucl. terrorism April 2005: but convention not oriented to core of the problem, access to material; law no direct influence
8. Nuclear materials
Treaty on physical protection of nuclear materials 1986 – including theft. Conference a couple of months ago dealing with an amendment to make transactions safe. Legal matter bacause there is a natural tension between trading interests and control measures. Same problem as small arms. (US?) prevents more severe restraints because of trade interests.
Summary
Role of civil society vital in adding moral imperative to the legal. Includes environmental as well as social consideration.
My comments:
It’s interesting that the attacks on Hiroshima and Nagasaki were in clear contravention of international law. It’s perhaps no surprise that the law provides pehaps mainly a level of authority to public condemnation, which seems stronger in preventing the further use of nuclear weapons. In consequence it’s most important that there be no relaxation of that condemnation just because of the spectre of terrorism which is being wielded by governments everywhere. We must be vigilant against creeping edge-blurring such as theatre nuclear weapons such as bunker busters. In the long term there is no substitute for disarmament and we must create a political necessity for that.