Abstract
A strong narrative permeates international nuclear law to the effect that international law is a progressive force that is slowly but surely propelling the world towards a nuclear free future. This chapter questions and tests this narrative by examining the extent to which some of the major multilateral nuclear treaties, the ICJ cases that have touched on nuclear issues and Security Council resolutions on nuclear matters have devalued nuclear weapons. It argues that these nuclear laws fall broadly into two categories. The first category includes laws that may in some surface-level way appear to devalue nuclear weapons but in fact fail to ensure that nuclear weapons are devalued in any deep sense and in some respects actually work to reinforce the value of the weapons in particular ways. The second category of laws contains laws that devalue nuclear weapons more deeply. To date, these laws have been acceded to by only certain sectors of the international community. The final substantive part of the chapter provides some reflections on this way of thinking about international nuclear weapons law and introduces the idea that they reveal this field of international law is a deeply divided area of law prone to an idea I term ‘partialism’.
Anna Hood, Senior Lecturer (University of Auckland); BA/LLB (hons) (Melbourne); LLM (NYU); Ph.D. (Melbourne).
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Notes
- 1.
See, e.g., Wright 2009, 227.
- 2.
Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (5 August 1963), 480 UNTS 43 (‘Partial Test Ban Treaty—PTBT -’), Article 1(a).
- 3.
Treaty on the Non-Proliferation of Nuclear Weapons (1 July 1968), 729 UNTS 161 (‘NPT’). The NPT implicitly limited nuclear weapons to those States that possessed them at the time the treaty was concluded.
- 4.
Comprehensive Test Ban Treaty (24 September 1996), 35 ILM 1443 (not yet entered into force) (‘CTBT’).
- 5.
Bunn 1999, 22–23.
- 6.
Treaty on the Prohibition of Nuclear Weapons (7 July 2017), UN Doc A/CONF.229/2017/8 (not yet in force) (‘TPNW’).
- 7.
In this chapter the term ‘nuclear-weapon States’ is used to refer to the five nuclear-weapons States identified in the NPT. It does not cover the other States that have nuclear weapons programs: India, Israel, North Korea and Pakistan.
- 8.
See, e.g., Nuclear Ban Treaty Agreed Despite Boycott by US, UK and Other Major Powers, Sydney Morning Herald (7 July 2017), https://www.smh.com.au/world/nuclear-ban-agreement-expected-despite-boycott-20170707-gx6mjq.html; Gladstone 2017.
- 9.
TPNW, Article 1.
- 10.
ICJ, Nuclear Tests Case (New Zealand v France) (Judgment) [1974] ICJ Rep 457; Nuclear Tests Case (Australia v France) (Judgment) [1974] ICJ Rep 253.
- 11.
ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 266 and 268.
- 12.
It is important to note that there has never been a finding by the IAEA that Iran had actually engaged in the development or production of nuclear weapons. My thanks to a peer reviewer for this point.
- 13.
Legislative resolutions are Security Council resolutions that create or modify international legal obligations. For more information on legislative resolutions, see Hood 2015. In relation to Iraq, see SC Res 687 (1991), UN SCOR 46th sess, 2981st mtg, UN Doc S/RES/687 (3 April 1991). In relation to Iran, see SC Res 1696 (2006), UN SCOR 61st sess, 5500th mtg, UN Doc S/Res/1696 (31 July 2006); SC Res 1737 (2006), UN SCOR 61st sess, 5612th mtg, UN Doc S/Res/1737 (23 December 2006); SC Res 1747 (2007), UN SCOR 62nd sess, 5647th mtg, UN Doc S/Res/1747 (24 March 2007); SC Res 1803 (2008), UN SCOR 63rd sess, 5848th mtg, UN Doc S/Res/1803 (3 March 2008); SC Res 1929 (2010), UN SCOR 65th sess, 6335th mtg, UN Doc S/Res/1929 (9 June 2010). In relation to North Korea, see SC Res 1718 (2006), UN SCOR 61st sess, 5551st mtg, UN Doc S/Res/1718 (14 October 2006); SC Res 1874 (2009), UN SCOR 64th sess, 6141st mtg, UN Doc S/Res/1874 (12 June 2009); SC Res 2087 (2013), UN SCOR 68th sess, 6904th mtg, UN Doc S/Res/2087 (22 January 2013); SC Res 2094 (2013), UN SCOR 68th sess, 6932nd mtg, UN Doc S/Res/2094 (7 March 2013); SC Res 2270 (2016), UN SCOR 71st sess, 7638th mtg, UN Doc S/Res/2270 (2 March 2016).
- 14.
Johnson 1996, 34.
- 15.
Dewes 1998, 9.
- 16.
Wright 2009, 227.
- 17.
- 18.
There has, however, been a piece recently published on the idea that the TPNW is a form of resistance. See Ritchie and Egeland 2018.
- 19.
- 20.
- 21.
Ritchie 2013b, 147.
- 22.
Ritchie 2013b, 147 (emphasis removed).
- 23.
Ritchie 2014, 605 and 622.
- 24.
- 25.
For example, Ritchie notes that devaluing is ‘a set of social, political, and economic processes that reduce or annul the intersubjective value(s) assigned to nuclear weapons within a polity, notably its defence and security elite’: Ritchie 2013b, 146.
- 26.
For a discussion about how the NPT both values and devalues nuclear weapons, see Ritchie 2013a, 47–49.
- 27.
- 28.
It is important to note that the literature does not suggest that the devaluing of nuclear weapons is the only prerequisite for nuclear disarmament. It does, however, suggest that is a necessary factor for preparing for nuclear disarmament.
- 29.
Note, this chapter will not examine the role of General Assembly Resolutions as tools in the anti-nuclear movement. This is not because they are not significant but rather because of space restrictions. There is scope for a further piece that focuses specifically on the contributions of the General Assembly to the anti-nuclear movement.
- 30.
Gusterson 1999, 111–114.
- 31.
It also enforces the value of nuclear weapons, suggests they are positive acquisitions and poses no threat to the idea of nuclear deterrence.
- 32.
NPT, Article II.
- 33.
NPT, Article III.
- 34.
- 35.
Common questions have included: what are effective measures? And does the requirement to enter negotiations mean that there is an obligation to achieve results or merely to hold talks? For further questions, see Krause 2007, 489. For a general discussion about the ambiguities that exist around Article VI and in particular ambiguities that have emerged since the ICJ examined the article in its 1996 Advisory Opinion, see Cormier and Hood 2017, 28–34.
- 36.
Dunworth 2018.
- 37.
See footnotes 12 and 13 above.
- 38.
SC Res 1540 (2004), UN SCOR 59th sess, 4956th mtg, UN Doc S/RES/1540 (28 April 2004) (‘Resolution 1540’). Note, I am only discussing legislative resolutions (i.e. binding Chapter VII resolutions that create law for states) in this part as I am interested in looking at the role that binding international law has played in the valuing or devaluing of nuclear weapons. This does not mean that non-binding resolutions are not influential but I leave for another time an examination of the role such resolutions have played.
- 39.
UN SCOR, 59th sess, 4956th mtg, UN Doc S/PV.4956 (28 April 2004) 7.
- 40.
UN SCOR, 61st sess, 5551st mtg, UN Doc S/PV.5551 (14 October 2006) 5.
- 41.
UN SCOR, 61st sess, 5551st mtg, UN Doc S/PV.5551 (14 October 2006) 7.
- 42.
Gusterson 1999, 113.
- 43.
PTBT, Article 1a.
- 44.
For a discussion about how the PTBT was a disappointment for those pushing for nuclear disarmament, see Johnson 2009, 16.
- 45.
Johnson 2009, 16.
- 46.
Nuclear deterrence is the concept that nuclear weapons deter other States from attacking with their nuclear weapons through the promise of retaliation.
- 47.
Nuclearism is the idea that States are dependent on and/or have faith in nuclear weapons to maintain national security.
- 48.
ICJ, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, 266.
- 49.
- 50.
ICJ, Nuclear Tests Case (New Zealand v France) (Judgment) [1974] ICJ Rep 457, 474–476; Nuclear Tests Case (Australia v France) (Judgment) [1974] ICJ Rep 253, 268–270.
- 51.
ICJ, Request for an Examination of the Situation in Accordance with Para 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v France) Case (Order) [1995] ICJ Rep 288.
- 52.
ICJ, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections) [2016] ICJ Rep 833; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India) (Preliminary Objections) [2016] ICJ Rep 255; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan) (Preliminary Objections) [2016] ICJ Rep 552.
- 53.
ICJ, Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections) [2016] ICJ Rep 833; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India) (Preliminary Objections) [2016] ICJ Rep 255; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan) (Preliminary Objections) [2016] ICJ Rep 552; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections) [2016] ICJ Rep 833, 856; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v India) (Preliminary Objections) [2016] ICJ Rep 255, 277; Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v Pakistan) (Preliminary Objections) [2016] ICJ Rep 552, 573.
- 54.
The precise requirements in each treaty vary slightly but they are all broadly shaped around these ideas.
- 55.
For a discussion of how negative security assurances create deep devaluing, see Ritchie 2014, 609.
- 56.
TPNW, Article 1.
- 57.
Docherty 2018, 163–164.
- 58.
Docherty 2018, 163.
- 59.
- 60.
Docherty 2018, 181.
- 61.
For a discussion of the differences between delegitimizing and devaluing, see Ritchie 2013b, 149–150.
- 62.
Ritchie and Egeland 2018, 137–138.
- 63.
For example, the Australian Labor party which is currently in opposition in Australia is looking to sign and ratify the TPNW if it wins power at the next Australian election.
- 64.
See, e.g., Paul Karp, ‘Labor Set for Nuclear Showdown as Gareth Evans Warns of Threat to US Alliance’ Guardian 17 December 2018, https://www.theguardian.com/australia-news/2018/dec/17/labor-set-for-nuclear-showdown-as-gareth-evans-warns-of-risk-to-us-alliance.
- 65.
The discussion from here focuses on the key nuclear weapons treaties and Security Council resolutions and not the ICJ cases. Arguably, however, the ICJ cases could fit well within the pattern discussed and the idea of partialism below as they involve two different sides furthering their conception of nuclear weapons and law. Future projects, could consider in greater depth how the ideas discussed here relate to the ICJ cases.
- 66.
- 67.
Johnson 2009, 16.
- 68.
UN SCOR, 59th sess, 4950th mtg, UN Doc S/PV.4950 (22 April 2004); UN SCOR, 59th sess, 4950th mtg, UN Doc S/PV.490 (Resumption 1) (22 April 2004); UN SCOR, 59th sess, 4956th mtg, UN Doc S/PV.4956 (28 April 2004).
- 69.
See, e.g., the comments of Algeria, Brazil, Canada, Chile, Indonesia, Iran, New Zealand, Peru and South Africa at the Security Council debate on 22 April: UN SCOR, 59th sess, 4950th mtg, UN Doc S/PV.4950 (22 April 2004).
- 70.
- 71.
- 72.
See United Nations Office for Disarmament Affairs, http://disarmament.un.org/treaties/t/npt; Bernstein 2018; Morse 1994.
- 73.
Krause 2007, 486.
- 74.
Krause 2007, 486–490.
- 75.
Krause 2007, 486–487.
- 76.
Krause 2007, 488.
- 77.
Krause 2007, 490.
- 78.
Krause 2007, 490.
- 79.
Kennedy 2000.
- 80.
Kennedy 2000. Although Rebecca Johnson notes ‘[t]hese P-5 negotiations epitomized the nuclear-weapons states’ assumption that they could bargain privately with each other and then impose their preferred outcomes on all the other states. Contrary to their assumptions, they proved unable to impose agreement this way for most of the CTBT. The actual process of reaching convergence even on issues of primary importance to the P-5 generally involved other actors, strategies and tactics as well’: Johnson 2009, 186.
- 81.
Kennedy 2000.
- 82.
- 83.
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Acknowledgements
I am very grateful to Associate Professor Treasa Dunworth for discussing many of the ideas in this piece with me. I am also grateful for the helpful feedback and suggestions I received from the participants at the International Nuclear Non-Proliferation and Disarmament Conference at the University of Manitoba on 20–21 September 2018 on an early version of this chapter, and for the thoughts offered by those who attended my talk on this topic at La Trobe Law School on 28 November 2018.
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Hood, A. (2020). Questioning International Nuclear Weapons Law as a Field of Resistance. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume V. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-347-4_2
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