Nuclear weapons – are they legal?
International law regulates the relations among states in times of peace as well as war. International law also has a few things to say about nuclear weapons. International law consists of both customary law and treaty law. Customary law is binding on all states, whether they have signed a certain treaty or not. Treaty law is based on conventions – i.e. which treaties each state has signed and ratified. Humanitarian law – rules about the protection of both combatants and civilians during armed conflict – is part of international law. For example, according to humanitarian law, weapons may not be used that cause unnecessary harm to civilians.
Nuclear weapons cannot distinguish between civilians and soldiers. Nuclear weapons will cause massive damage to military headquarters and village shops, and will kill people whether or not they wear a uniform. There is no international convention banning nuclear weapons. The International Court of Justice issued an advisory opinion on 8 July 1996 that the use and threat of use of nuclear weapons violate the principles of international law, and concluded unanimously that all states have an obligation to commence and conclude negotiations on complete nuclear disarmament.
International treaties and conventions
Nuclear weapons testing, possession, and disarmament are regulated in a number of existing treaties. Additional treaties are negotiated to ensure future strengthening of disarmament mechanisms and arms control. With a legally binding convention, such as the one banning chemical weapons, it has become increasingly difficult, though not impossible, to obtain such weapons. When states and the weapons industry no longer can do business with chemical weapons, their availability decreases dramatically. Of course it will always be possible to violate a treaty and obtain chemical weapons even if they are banned by international law. As long as there is money to be made, criminal networks can buy and sell banned goods. But an international treaty banning an entire class of weapons makes them far less available not only to states but also to terrorist groups.
Today, no existing convention establishes the juridical, technical, and political terms for the total elimination of nuclear weapons, as is the case for chemical and biological weapons. The Nuclear Non-Proliferation Treaty (NPT) goes part way towards this goal.
The NPT was introduced as international law in 1970. At that time, five nuclear weapon states existed: the US, the Soviet Union (today Russia), the UK, France and China. Since then India, Pakistan, Israel, and North Korea have developed nuclear weapons. The first three mentioned states have never been NPT members, while North Korea was a member but withdrew from the treaty in 2003. The NPT is the only legally binding instrument that establishes an obligation for nuclear disarmament, defined in Article VI. In the NPT, nuclear weapons states also make a commitment to not assist in the transfer of nuclear weapon to non-nuclear weapon states. The non-nuclear weapon states commit to not acquire nuclear weapons in any way.
The NPT has three related objectives: totally eliminating nuclear weapons; preventing the proliferation of nuclear weapons; and facilitating the use of nuclear technology for peaceful purposes. . The 189 member states meet every five years for a Review Conference to assess the implementation of the treaty. Between these Review Conferences, member states meet once per year (except for the year immediately following a Review Conference) in Preparatory Committees. The decisions of a Review Conference become binding disarmament and nonproliferation policy for the States Parties to the NPT.
Treaties banning nuclear testing
The Partial Test Ban Treaty (PTBT) was concluded between the US, the Soviet Union, and the UK in 1963, and ended harmful nuclear testing in the atmosphere and under water. France and China did not join the treaty. With the PTBT the health risks from nuclear testing decreased but were far from eliminated, since nuclear weapon states continued underground nuclear testing.
The Comprehensive Nuclear Test Ban Treaty (CTBT) prohibits all nuclear tests, both underground and above the surface, under water, and in outer space. So-called peaceful nuclear tests above specified yields were prohibited under the Peaceful Nuclear Explosions Treaty (1976), and are forbidden altogether under the CTBT. The CTBT establishes an extensive International Monitoring System (IMS) and allows short-notice inspections of nuclear and research facilities. The CTBT was opened for signatures in 1996 but has not yet entered into force, as it must be signed and ratified by all 44 states with nuclear facilities (so called Annex II states) to do so.
So far, only 35 of these states have signed and ratified the Treaty. Although the CTBT has not yet entered into force, the US, Russia, the UK, France, and China are adhering to voluntary moratoria on nuclear testing. India and Pakistan, which have refused to sign the CTBT, said they would no longer test after their 1998 nuclear tests. Israel, which has not acknowledged that it possesses nuclear weapons and has not ratified the CTBT, has not tested.
The DPRK has not signed the CTBT, and tested a nuclear weapon in 2003. A Preparatory Commission for the Comprehensive Nuclear Test Ban Treaty Organization (CTBTO) has been established to prepare for the entry into force of the Treaty and to provide details on its status. Pending entry into force, the CTBTO is already functioning and operates the IMS.
A treaty banning fissile materials
A Fissile Material Cut-off Treaty (FMCT) has not yet been negotiated, but is widely discussed in the Conference on Disarmament (CD) in Geneva. The FMCT would prohibit the production of fissile material for nuclear weapons purposes. Today, states disagree on the scope of an FMCT. Some states claim the treaty should only cover the production of fissile material. This would mean states with large existing stocks of weapons grade material would not be affected much by the treaty. Other states want the treaty to include control and reductions of existing stocks, which would mean a much greater leap towards disarmament.
There is also disagreement about verification and transparency in states’ stocks of nuclear materials. Many member states in the CD advocate negotiations on an FMCT to take place without preconditions – meaning states would deal with problems and disagreements as they arise.
An FMCT would help prevent both horizontal and vertical proliferation, making it harder for new states to acquire nuclear weapons and harder for states already possessing nuclear weapons to develop new weapons if production of the material for them is prohibited.
A treaty that does not address reductions of existing stocks, possessed mainly by the US and Russia, would be much less potent in stopping vertical proliferation. If existing stocks are not addressed, countries possessing large amounts of weapons-grade material can continue producing new nuclear weapons. This would mean a continued imbalance between the nuclear “haves” and “have-nots”.
A treaty against weapons in space
There is no treaty preventing an arms race in outer space (PAROS), but the issue is often discussed, especially in the CD. The US claims that no arms race currently exists in outer space and that discussing a treaty on the topic is therefore superfluous. Most states agree that a treaty must be negotiated before we face a real arms race in outer space. Some states have advocated a Treaty on the Prevention of Placement of Weapons in Outer Space (PPW) as a way to get around US arguments.
Nuclear Weapon Free Zone Treaties
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 an area defined solely by international agreements. NWFZs have been described in many fora, including the Non-Proliferation Treaty and the UN General Assembly, as positive steps towards nuclear disarmament.
Today there are NWFZs in Latin America and the Caribbean, the southern Pacific, Southeast Asia, Central Asia, and Africa. More than 50 % of the Earth’s surface today comprises NWFZs (99 % of all land in the Southern Hemisphere). 119 of the world’s approximately 195 states belong to an NWFZ, as well as 18 other areas. 1.9 billion people live in NWFZs. States that belong to an NWFZ are prohibited from producing, testing, stockpiling, or acquiring nuclear weapons. They cannot have nuclear weapons deployed in their territories.
A nuclear weapons convention
The abolition of nuclear weapons is achievable through a Nuclear Weapons Convention (NWC). The majority of UN Member States have called for immediate negotiation of this treaty, which would prohibit the development, production, testing, deployment, stockpiling, transfer, threat, or use of nuclear weapons. The NWC would provide for the elimination of nuclear weapons in much the same way comparable treaties have banned landmines and chemical and biological weapons.
A Nuclear Weapons Convention will be an international treaty — or framework of treaties — signed by governments. It will be similar to other international treaties banning entire categories of weapons, such as the Chemical Weapons Convention, the Biological Weapons Convention and the Mine Ban Treaty. No such treaty exists yet for nuclear weapons, but demands for one have increased in recent years, as have more general demands for complete nuclear disarmament.
In April 1997, an international team of scientists, lawyers, and disarmament specialists released a Model Nuclear Weapons Convention. This model was submitted by Costa Rica to the United Nations as a discussion draft in November 1997. The responses and developments that followed led to the collaborative publication of “Securing our Survival: The Case for a Nuclear Weapons Convention”, http://www.icanw.org/securing-our-survival which includes a revised version of the Model NWC, together with comments and discussion on critical political, legal, and technical questions essential to complete nuclear disarmament.
Bilateral disarmament treaties
The largest nuclear powers today, as they have been since the beginning of the Atomic Age, are the US and Russia (then Soviet Union). Since the 1970s these states have entered into some significant disarmament treaties to reduce their arsenals and thereby reduce the mutual threat. At the same time as the arms race between the US and the Soviet Union reached unimaginable proportions, the states were challenged and questioned – both nationally and internationally. In the 1970s the first treaties were signed between the two states to limit the strategic nuclear arsenals: SALT I and II (Strategic Arms Limitation Treaty).
The Anti-Ballistic Missile Treaty was a bilateral agreement between the US and USSR reached in 1972. Under the ABM, each state promised to establish no more than one ABM site on their national territory. It banned the testing, development and deployment of sea-, air-, space-, and mobile land-based systems. The plan for a defensive umbrella over the entire United States, first proposed under the Reagan administration, would have violated the treaty; the ballistic missile defense systems under development would also have violated the treaty, since the plan involved more than one system, could have involved sea-based missiles, and would have been shared with other nations. The US withdrew from the ABM in 2002, despite enormous national and international objections.
During the later part of the 1980s a time of nuclear weapons reductions replaced a time of buildup. The US and the Soviet Union (later replaced with Russia) entered negotiations on which weapons could be eliminated.
The INF Treaty was reached in 1987 and seeks to eliminate the US and Russia’s land-based intermediate- and shorter-range missiles.
The Strategic Arms Reduction Treaty (START I, 1991) between the US and the USSR limited the number of heavy bombers, ICBMs, and SLBMs, and also limited launchers and warheads. It prohibited both states from deploying more than 6,000 nuclear warheads on a total of 1,600 delivery systems, and limited the ballistic missile throw-weight (lifting power) to 3,600 metric tons.
The second Strategic Arms Reduction Treaty (START II, 1995) between the US and Russia limits their strategic arsenals to 3000-3500 warheads on delivery systems (tactical weapons and spares are not included in the counts). It also prohibits multiple re-entry vehicles (MIRVs) on intercontinental ballistic missiles, and limits the number of warheads deployable on submarine-launched ballistic missiles to 1,700-1,750. START II has not entered into force: when the US withdrew from the ABM Treaty in 2002, Russia declared START null and void the following day. It was replaced by the Strategic Offensive Reductions Treaty (SORT) in 2002.
Also known as the Moscow Treaty, SORT limits the nuclear arsenals of both the US and Russia to 1,700-2,200 warheads each. It does not specify which warheads are to be reduced or how reductions should be made, nor does in include any verification provisions. It came into force on 1 June 2003, and is set to expire 31 December 2012.
SORT is to be replaced by New START 2010. This bilateral treaty between USA and Russia still has to be ratified by the US Senate and Russian Confederation Council. The treaty will limit the number of strategic weapons to 1,5000. And this time a new inspection and verification regime will be established.
Despite these efforts, nuclear arsenals large enough to annihilate our entire planet still today plague the world.
Conference on Disarmament
The Conference on Disarmament (CD) is the world’s sole multilateral disarmament treaty negotiating body. The CD holds one public plenary per week, usually on a Thursday, although it can have more, if appropriate.
The chair of the Conference rotates every four working weeks following the English alphabetical list of membership. Decisions are made by consensus. It has 65 member states, who work with issues such as nuclear weapons in all its aspects, disarmament and development, disarmament and international security and reduction of military expenditure.
No program of activity has moved forward since 1996 and this disappointing fact put at risk the future of the consensus-based Conference on Disarmament. The CD has agreed to a fissile cut-off negotiating mandate but has been unable to establish an ad hoc committee needed to carry forward talks.
The NPT Review Conferences and sessions of the Preparatory Committee gather the States Parties to the treaty to evaluate the implementation of the treaty and make decisions about its future. Review Conferences are held every five years. Preparatory Committee (PrepCom) sessions are held once every year (except for the year immediately following a Review Conference) to gather States Parties to the NPT.
Originally intended as a temporary treaty, the NPT stipulated that 25 years after entry into force, a conference would be convened to decide whether or not the Treaty shall continue indefinitely, or be extended for an additional fixed period or periods. In 1995 this conference was convened, and a package of decisions extend the Treaty indefinitely.
Five years later, at the 2000 Review Conference, all 187 governments then Party to the NPT – including the five official nuclear weapon states – agreed to a 13 Point Action Plan for the systematic and progressive disarmament of the world’s nuclear weapons. At the 2005 Review Conference, states parties could not agree on a final document and the five-week long conference was considered to be a failure. 2010 is the next chance to move forward.
General Assembly 1st Committee
The GA 1st Committee is one of six committees of the UN General Assembly. The United Nations General Assembly is consensus-building body, where issues of international peace and security are collectively discussed among all UN member states. The General Assembly’s work on disarmament is conducted through one of its main committees, the First Committee on Disarmament and International Security. The First Committee provides space for each state to discuss their positions on disarmament-related matters, and to work together to come up with compromises or to propose language or tools to better understand and approach the issues. It offers the opportunity for states to build consensus on the issues, to reach common understandings and principles and to agree on norms of behavior.
UN Disarmament Commission
The General Assembly, by its resolution 502 (VI) of January 1952, created the United Nations Disarmament Commission (UNDC) under the Security Council with a general mandate on disarmament questions. The UNDC was created as a deliberative body, with the function of considering and making recommendations on various problems in the field of disarmament and of following up on the relevant decisions and recommendations of the special session. The UNDC led a fading life for many years, but since 2005 assumed its work at least to some extent.
This page was last revised in 2013-01-14