Raison d’Etat v. Raison de l’Humanit –
The United Nations SSOD H and Beyond
Ivan A. Vlasic*
There is widespread agreement throughout
the world that the most urgent task confront-
ing mankind is the prevention of a nuclear
war and the termination of the nuclear arms
race. These issues dominated the Second
Special Session of the U.N. General Assem-
bly devoted to disarmament, held in 1982.
Regrettably, in contrast to the First Special
Session, which produced a comprehensive
programme of action, the Second Session
ended in a virtually complete failure. Not
only have all the major recommendations of
the First Session remained unfulfilled, but
the arms race has escalated significantly, as
has international tension and the fear of a
nuclear war. The author reviews current
negotiations between the U.S. and the
U.S.S.R. on strategic and intermediate-
range nuclear weapon systems, which have
yet to show the slightest progress. Negotia-
tions on the comprehensive nuclear test ban,
on the prohibition of anti-satellite weapons
and on the chemical warfare ban are also
stalemated. Even some key arms limitation
agreements now in force, such as the ABM
Treaty and the Non-Proliferation Treaty, are
thought to be in serious danger of collapsing
if present trends in the arms race are not
reversed soon. Concurrent with these de-
velopments is a perceptible decline in respect
for the UnitedlNations Charter, international
law in general and the obligations arising out
of international arms limitation agreements.
A notable casualty of the arms race, in the
author’s opinion, has been the cause of hu-
man rights and civil liberties. The author
argues that despite its limitations, interna-
tional law does provide the indispensable
framework for stability and order in a
dangerous world and, in that context, he
makes certain proposals including an appeal
to jurists to promote more forcefully the
goals of the Charter.
E existe un consensus mondial selon lequel
la t~che la plus pressante pour l’humanit6 est
la pr6vention d’une guerre mondiale et la fin
de la course aux armements nucldaires. Ces
questions domin~rent la deuxi~me session
sp6ciale de l’Assembl6e gdn6rale de I’ONU
sur le d6sarmement, en 1982. Malheureuse-
ment, contrairement A la premiere session
sp6ciale, qui avait produit un programme
d’action d6taill6, la deuxi~me session se sol-
da par un 6chec. Non seulement les princi-
pales recommandations de la premiere ses-
sion restent-elles lettre morte, mais la course
aux armements, la tension internationale et
la crainte d’une guerre nucl6aire se sont de-
puis intensifi6es significativement. L’auteur
r6vise les pr6sentes n6gociations entre les
ttats-Unis et l’U.R.S.S. sur les syst6mes
d’armes nucl6aires strat6giques et A port6e
interm6diaire, oti l’on attend encore un pre-
mier signe de progr~s. Les n6gociations sur
l’interdiction complete des tests nucldaires,
des armes anti-satellite et de la guerre chimi-
que en sont aussi arrivdes A des impasses.
Certains accords internationaux, tels les
trait6s sur la limitation des annes strat6gi-
ques et sur la non-prolif6ration, risquent de
s’effondrer s’il n’y a aucun revirement des
orientations de la course aux armes. Ces
d6veloppements se sont conjugu6s A un d6-
clin perceptible du respect accord6 i la
Charte des Nations unies, au droit internatio-
nal g6n6ralement et aux obligations d6cou-
lant d’accords sur la limitation des armes. La
cause des droits et libert6s de l’homme a t6,
selon l’auteur, une victime notable de la
course aux armements. L’auteur soutient que
malgr6 ses faiblesses, le droit international
pr6sente une structure essentielle A la stabi-
lit6 et l’ordre dans un monde dangereux et,
en ce sens, fait certaines recommandations,
y compris un appel aux juristes de promou-
voir avec vigueur les buts de la Charte.
*Of the Faculty of Law, McGill University; former Director of the Institute of Air and Space
Law, McGill University, and former Legal Consultant to the Group of Governmental Experts
on the Implications of Establishing an International Satellite Monitoring Agency (United
Nations).
I would like to thank my colleague Michael G. Bridge for his invaluable assistance in the
preparation of this article.
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[Vol. 28
Synopsis
Introduction
I.
11.
The Effect of the Arms Race on Disarmament Negotiations and on
Existing Agreements
The Problems of “Parity” and Verification: The Need for an
Impartial Evaluation of Conflicting Claims and Proposals
A.
“Parity”, “Superiority” and Related Issues
B. Verification of Compliance with Agreements
C. A Plea for an Independent Assessment of Conflicting Claims
m. Prevention of Nuclear War: The Overriding Moral and Legal
Obligation
IV. Human Rights and the Arms Race: The Forgotten Link
Conclusion: A Role for International Law and Jurists
With more than $600 billion per annum being expended on arms, it is difficult to
believe that mankind will not achieve the goal upon which it seems set, namely, the
. That, unfortunately, is the
launching of a global war of catastrophic dimensions…
main conclusion one must draw from SSD I1.
– Carlos P. Romulo, Foreign Minister of the Philippines
We have many ideas and plans as to how to meet the growing needs of the large mass
of humanity, but somehow such human considerations seem to take second place to the
. We are
technology and funding of violence and war in the name of national security…
perilously near to a new international anarchy.
Javier Perez de Cuellar, Secretary-General of the United Nations 2
–
Introduction
It is regrettable that any examination of the proceedings and results of the
Second Special Session of the United Nations General Assembly devoted to
disarmament [SSOD II] 3 can only confirm the extreme pessimism of Messrs
Disarmament Times (November 1982) 1, 2.
‘As quoted in Jack, First (Disarmament) Committee Tries to Rescue SSD 11 Failure,
2United Nations, Report ofthe Secretary-General on the Work of the Organization, 37 U.N.
GAOR, Supp. (No. 1), U.N. Doc. A/37/1, reprinted in (1982) 21 I.L.M. 1136, 1137.
3 The acronym SSOD II stands for the Twelfth Special Session of the United Nations General
Assembly which was devoted exclusively to disarmament. The session was held in New York
from 7 June to 9 July 1982 and is referred to commonly as the Second Special Session because it
was only the second time that the General Assembly met with solely the issue of disarmament
1983]
SSOD II AND BEYOND
Romulo and de Cuellar, two of the most experienced contemporary statesmen
and diplomats. The mood preceding the opening of the Second Session was in
stark contrast to the spirit of guarded enthusiasm and expectation that char-
acterized the start of the First Session, held in 1978. The Second Session
commenced in an atmosphere of urgency and anxiety, reflecting the renewal
of the cold war with the accompanying sharp escalation of the arms race.
Although the prospects for a successful conference in these circumstances
were not encouraging, not even the most pessimistic participants could have
anticipated that the Session would end in virtually complete failure.
Primarily because of the heightened tension and the absence of a spirit of
compromise between the major power blocs, the General Assembly, after
five weeks of debate, was not only unable to agree on any measure of arms
limitation, let alone disarmament, but it failed even to adopt a “final docu-
ment”. Agreement was reached on only two minor agenda items: the U.N.
programme of disarmament fellowships and the World Disarmament Cam-
paign. As the Concluding Document of the Second Session notes in remark-
able understatement, “developments since 1978 have not lived up to the hopes
engendered” by the First Special Session; the “objectives, priorities and
principles” laid down in the 1978 Final Document “have not been generally
observed”; the Programme of Action, the most important item on the agenda,
contained in the Final Document “remains largely unimplemented”; many
“important negotiations either have not begun or have been suspended, and
efforts in the [U.N.] Committee on Disarmament and other forums have
produced little tangible result”; arms competition, especially the nuclear arms
race, “has assumed more dangerous proportions and global military expendi-
tures have increased sharply”. 4 Since 1978, the Document concludes, “there
has been no significant progress in the field of arms limitation and disarma-
ment and the seriousness of the situation has increased”.5
The Second Special Session did not fail for lack of preparation or
specific proposals. Indeed, the participating states had at their disposal not
only a score of studies and recommendations covering every problem of the
arms race, prepared for and by previous conferences, but possessed in
on its agenda. For the record of this session, see Concluding Document of the Twelfth Special
Session, U.N. Doc. A/S-12/32 (1982) [hereinafter Concluding Document].
The acronym SSOD I refers in this article to the Tenth Special Session of the General
Assembly (the first devoted entirely to disarmament), which took place from 23 May to I July
1978. The 1978 session adopted a 129-paragraph FinalDocument which provides a framework
for the disarmament efforts of the international community in the years ahead. See United
Nations G.A. Res. S-10/2, 10 (Special) U.N. GAOR, Supp. (No. 4) 3, U.N. Doc. AIS-10/2
(1978), reprinted in (1978) 17 I.L.M. 1016 [hereinafter Final Document].
4 Concluding Document, ibid., para. 59.
5Ibid.
McGILL LAW JOURNAL
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addition a number of expert studies commissioned specially by the Secretary-
General for the occasion. Most of this valuable documentation received little
attention, the fate also of some seventy proposals dealing with various aspects
of the arms race, including several versions of a nuclear “freeze” submitted
during the session.6 After five weeks of often belligerent and inconclusive
exchanges, the representatives of 157 nations decided in the end to refer
unfinished business to the U.N. Committee on Disarmament. It was a display
of “statesmanship” at its worst, even for a forum not accustomed to diplomat-
ic niceties or high standards of achievement.
Like so many earlier attempts to halt the global arms race, the Second
Special Session ended in failure primarily because of antagonism between the
major power blocs. With scant concern for the fundamental goals of the U.N.
Charter, governments of the countries charged with the principal responsibil-
ity of saving “succeeding generations from the scourge of war” and for
promoting the “dignity and worth of the human person”,7 chose the period
between the two Special Sessions of the General Assembly to replenish their
already formidable arsenals with new, more destructive and more destabiliz-
ing weapons. Plans for the quick “modernization” and massive expansion of
armed forces obviously could not be implemented concurrently with a com-
mitment to arms limitation. Under these conditions, the Second Session,
rather than securing or even stimulating the slightest reduction in armaments,
served only to exacerbate profound differences among the major powers,
especially the superpowers, and to underscore their stubborn unwillingness to
implement any of the measures agreed upon at SSOD I. The Committee on
Disarmament, the principal negotiating body of the United Nations, has
become virtually paralyzed through major power confrontation, and after
three years of debates, it has not completed a single draft convention text.8 But
the lack of any meaningful achievement in United Nations organs is not the
only setback suffered recently by the cause of disarmament; negotiations on
arms limitation conducted in all other forums have fared no better.
The sharp upturn in the East-West arms race, accompanied by greatly
heightened cold war tensions, has already resulted in significant deterioration
6 Draft resolutions on a nuclear-arms freeze were submitted by India, Sweden and Mexico.
See ibid., Annex II, 17-8.
7 United Nations Charter, Preamble.
$The only arms limitation agreement concluded since SSOD I, the Convention on Prohibi-
tions orRestrictions on the Use of Certain Conventional Weapons Which May beDeemed to be
Excessively Injurious or to Have Indiscriminate Effects, U.N. Doc. A/CONF. 95/15 (1980),
reprinted in (1980) 19 I.L.M. 1523 [hereinafter Conventional Weapons Convention], was
signed by thirty-five states in April 1981. The Convention and the three Protocols annexed to it
deal with weapons designed to injure by fragments that escape x-ray detection in the human
body, as well as mines, booby-traps and other small-arm devices and incendiary weapons.
Work on this Convention was largely completed before the 1978 Special Session.
1983]
SSOD II AND BEYOND
of disarmament prospects, with adverse consequences extending far beyond
SSOD II. These developments jeopardize seriously not only the modest
advances made in the ongoing multilateral and bilateral arms negotiations,
but also pose a fatal threat to some of the key arms control agreements already
in force as well as to certain other undertakings which, although not ratified,
are nevertheless honoured by the United States and the Soviet Union. 9
On the following pages, the more salient aspects of the current strategic
as they appear to this observer – will be explored from
arms competition –
perspectives of world public order, taking into account the legitimate security
concerns of all states and the common interest of mankind in survival. The
issues to be examined in some detail include: the impact of the escalating arms
race, especially the effect of constant advances in weapons technology, both
on the current disarmament negotiations and on existing arms control agree-
ments; the nature of nuclear weapons, legality of plans for their use, and the
strategy of “limited” and “protracted” nuclear conflict; pledges for “no-first-
use” of nuclear weapons and proposals for their total abolition; facts and
myths relating to the elusive quest for “parity” of force levels and fool-proof
verification systems; the desirability of setting up an independent internation-
al organ for an impartial assessment of competing arms limitation proposals
and possibly for verification of compliance with agreed undertakings; the
incompatibility of the arms race with the international law of human rights;
and the potential role of international law and jurists in curbing the arms
competition, particularly in nuclear weapons.
I.
The Effect of the Arms Race on Disarmament Negotiations and on
Existing Agreements
More than two years after the signing of SALT II in Vienna,10 the United
States and the Soviet Union began bilateral negotiations on intermediate
nuclear force reductions [INF] in November 1981 and on strategic arms
reduction [START] in June 1982. Because they deal with the major segments
of the nuclear arsenal of the two superpowers, these negotiations are of
overriding concern to the entire international community. As of 1 May 1983
9See infra, text accompanying notes 56 to 77.
10 Treaty Between the United States of America and the Union of Soviet Socialist Republics
on the Limitation of Strategic Offensive Arms, 18 June 1979, reprinted in United States Arms
,Control, and Disarmament Agency [ACDA], Arms Control and Disarmament Agreements [:]
Texts and’.Histories of Negotiations, 5th ed. (1982) 246 [hereinafter Arms Control and
Disarmament Agreements].
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[Vol. 28
they remain in stalemate.” On the eve of the recent resumption of START
negotiations, it was reported that instead of seeking compromise, the U.S.
negotiating team would “now press for a list of Soviet concessions that has
grown longer and more stringent than the measures… originally presented
last summer”.’ 2 Since the original American proposal was rejected by the
Soviet Union as being utterly one-sided, 3 prospects for an early agreement
are minimal, unless both sides begin to negotiate in good faith.
INF negotiations similarly show no progress, with each side accusing the
other of proposing “unilateral disarmament” for its negotiating partner. 4 At a
news conference held on 16 February 1983, President Reagan asserted that
the United States “would negotiate in good faith any legitimate proposal” but
“[s]o far no legitimate counterproposal has been offered [to his ‘zero option’
proposal] that would warrant negotiation or study”.”‘ President Reagan re-
jected as unreasonable a Soviet counterproposal to reduce its intermediate
range nuclear missiles in Europe to 162 (the number deployed by France and
the United Kingdom) and he added that “the ball is still in their court”. 6
Negotiations on “mutual and balanced force reductions” [MBFR] in
central Europe, involving all member-states of NATO and the Warsaw Pact,
have been under way since 1973. ‘1 These talks, limited to conventional forces
and confidence-building measures, have failed to result in any force reduction
in Europe. Similarly unproductive in terms of disarmament have been the
Helsinki follow-up conferences, conceived as a forum for enhancing mutual
trust among the European states, Canada and the United States. 8
“An editorial in Pravda of 12 May 1983, stated in reference to the U.S.-U.S.S.R.
negotiations on intermediate nuclear weapons in Europe that after eighteen months of talks, the
two sides had not drawn closer “even by a millimeter”. Reported in Bums, Moscow Predicts a
Missile Impasse, The New York Times (13 May 1983) A 5. The same observation is equally
applicable to the START negotiations as of May 1983.
“A Tougher Stand for START, Time [Magazine] (7 February 1983) 22.
“See, e.g., the speech of Soviet Foreign Minister Andrei A. Gromyko at SSOD II, on 15
June 1982, reprinted as Brezhnev’s Statement and Excerpts From Gromyko’s Speech, The New
York Times (16 June 1982) A 20.
” ‘”N]either the ‘zero’ nor the ‘interim’ options, designed to secure the unilateral disarma-
ment of the Soviet Union and to give the United States military superiority in Europe, can serve
as a basis for a just settlement acceptable to both sides.” From a speech by the Soviet leader
Yuri V. Andropov, reprinted as Excerpts From Arms Speech With Andropov’s Proposal, The
New York Times (4 May 1983) A 16.
“President’s News Conference on Foreign and Domestic Matters, The New York Times
(17 February 1983) B 10.
“I6bid.
“See George, The newMBFR treaty proposal: an American perspective (1982) 30 NATO
Rev. 8 (No. 5).
“Conference on Security and Co-operation in Europe, FinalAct, I August 1975, reprinted
in (1975) 14 I.L.M. 1292 [hereinafter Helsinki FinalAct] (signed by thirty-five heads of state
and government).
1983]
SSOD II AND BEYOND
Strained East-West relations and the renewed arms competition now
threaten to undo even the limited advances in disarmament negotiations
achieved to date. Trilateral negotiations among the U.S., Britain and the
Soviet Union on a comprehensive nuclear weapons test ban treaty [CTB], for
two decades one of the highest priority items on the disarmament agenda of
the United Nations, began in 1977.19 Because much research on the critical
components of the treaty had been done earlier,2′ significant progress was
made in the negotiations. A major breakthrough occurred when the U.S.S.R.,
for the first time since the beginning of arms reduction talks, accepted in
principle the idea of allowing the installation on its territory of monitoring
devices that would not be under Soviet control.2 Only the number of such
devices and their location remained unresolved. However, following the U.S.
elections of November 1980, the new Administration first requested a post-
ponement of the talks for purposes of study, and in July 1982 decided not to
resume negotiations for an indefinite period of time. According to a spokes-
man for the American Government, a comprehensive test ban remains a
“long-term U.S. arms control objective”.22
When the U.N. Disarmament Committee’s ad hoc Working Group on
the Nuclear Test Ban met in August 1982, China and France, both nuclear-
weapon states and key members of the Committee, announced that they
would not participate in the work of this body. China explained its action as
follows: “When the superpowers possess huge nuclear arsenals, a mere
cessation of nuclear testing would not lessen the threat of nuclear war, let
19 For a critical appraisal of these negotiations, see A. Myrdal, The Game of Disarmament,
rev. ed. (1982) 208. Mrs Myrdal was awarded the 1982 Nobel Prize for Peace.
10As long ago as 29 February 1972, in his address to the Conference of the Committee on
Disarmament, the U.N. Secretary-General asserted that “all the technical and scientific aspects
of the problem have been so fully explored that only a political decision is now necessary in
order to achieve final agreement. … When one takes into account the existing means of
verification by seismic and other methods, and the possibilities provided by international
procedures of verification such as consultation, inquiry and what has come to be known as
‘verification by challenge’ or ‘inspection by invitation’, it is difficult to understand further
delay in achieving agreement on an underground test ban.” United Nations, Report of the
Committee on Disarmament, 37 U.N. GAOR, Supp. (No. 27), 23 U.N. Doc. A/37/27 (1982)
[hereinafter Report of the Committee on Disarmament].
1See Report on CTB Negotiations, presented on 31 July 1980 to the U.N. Committee on
Disarmament by the United States, the Soviet Union and the United Kingdom. Complete text in
(1980) 80 Dep’t State Bull. 47.
12Eugene V. Rostow, Statement to the 37th Session of the United Nations General Assembly
in the First Committee, 27 October 1982, U.N. Doc. A/Cl/PV. 13, 29-30. In the absence of a
CTB treaty, the two superpowers continue testing, with the United States leading the Soviet
Union in the number of nuclear explosions by 740 to 480. See Eugene J. Carroll Jr, Deputy
Director, Center for Defense Information, and a retired U.S. Navy Admiral, letter to the editor,
The New York Times (12 April 1983) A 22.
McGILL LAW JOURNAL
[Vol. 28
alone eliminate it.” z France asserted that it would not participate in the
drafting of a treaty which it “could not sign because the conditions for an
undertaking on its part have not been met”.24 The dissension in the Group
prevented it from reaching agreement on a work programme and its ten
meetings were devoted to procedural debates and an exchange of views “on
general aspects of the question of verification and compliance”.,
In fact,
anyone reading the report of the ad hoc Group and unfamiliar with the
twenty-year history of test ban negotiations, might easily conclude that its
1982 session marked the beginning of talks on this critical aspect of nuclear
competition.
Negotiations on the prohibition of chemical weapons have fared no
better.26 In progress since 1976, they have been deadlocked for some time
owing to unresolved problems of verification and the monitoring of
compliance.27 The prospects for an early agreement have not been enhanced
by the decision of at least one major power to embark upon a massive build-up
of its chemical warfare stocks,2 nor by the imminent deployment of so-called
13Geneva Group Stymied, Disarmament Times (November 1982) 3.
2 Ibid.
5Report of the Committee on Disarmament, supra, note 20, 23.
1The unanimously adopted Final Document of SSOD I, supra, note 3, para. 75, states that
the “complete and effective prohibition of the development, production and stockpiling of all
chemical weapons and their destruction represent one of the most urgent measures of disarma-
ment”. Under art. IX of the Biological Weapons Convention, parties have undertaken to
continue negotiations in good faith on the ban of chemical weapons “with a view to reaching
early agreement on effective measures for the prhibition of their development, production and
stockpiling and for their destruction”. Convention on the Prohibition of the Development,
Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their
Destruction 26 U.S.T. 583, T.I.A.S. 8062, reprinted in (1972) 11 I.L.M. 310 [hereinafter
Biological Weapons Convention] (signed 10 April 1972; entered into force 26 March 1975).
“Almost half of the latest Report of the Committee on Disarmament, supra, note 20, 38-92
deals with methods of verification for a chemical weapons convention, the most controversial
part of the negotiations. For an excellent survey of both the issues at stake and the nature of
modem chemical weapons, see Meselson & Robinson, Chemical Warfare and Chemical
Disarmament, Sci. Am. (April 1980) 34. See also Lundin, Chemical weapons: too late for
disarmament? (1979) 35 Bull. Atom. Scientists 33 (December).
2The U.S. budget appropriation for chemical weapons increased from U.S. $532 million in
1982 to over U.S. $700 million in 1983. Kalvin, “Yellow Rain”: thepublic evidence (1982) 38
Bull. Atom. Scientists 15 (May). See also Morrissey, The Return of Chemical Warfare, The
Progressive [Magazine] (February 1982) 25. In presenting his annual report to Congress, the
U.S. Secretary of Defense was pessimistic about the prospects for a chemical ban convention:
“Achieving a ban will not come easily, not only because the verification and compliance are so
formidable, but also because the Soviets have little incentive to negotiate seriously so long as
they perceive they have a significant advantage in CW capabilities. .. To complete our
deterrent posture, we must eliminate the prospect for such a Soviet advantage by re-
establishing a retaliatory capability sufficient to make them recognize that they, too, would be
forced to operate [in a contaminated environment] with similar encumbrances [i.e., in protec-
19831
SSOD II AND BEYOND
“binary” chemical weapons whose characteristics defy reliable verification,2 9
nor by allegations concerning the actual use of chemical and toxin weapons by
the Soviet Union (in Afghanistan) and by Vietnam (in Laos and
Kampuchea).30 In common with other areas of disarmament talks, the pro-
tracted negotiations on chemical warfare agents have not kept pace with
rapidly developing weapons technology. And, as experience shows, once
new weapons become integrated into military forces and their production
starts, it may be very difficult to achieve agreement on their total ban. 3′
Moreover, the military may be reluctant to part with weapons, such as binary
nerve gas munitions, of extreme yet geographically-limited lethality, which
are seen by some of their advocates as an effective and far less hazardous
substitute for nuclear weapons.
Attempts to prevent the extension of the arms race to outer space were
initiated by the United States and the Soviet Union in 1978, when the two
superpowers opened informal talks aimed at outlawing the deployment of
anti-satellite weapons in that environment. 32 After three inconclusive meet-
ings, the last held in June 1979, further bilateral negotiations were suspended
and have not yet been resumed. Only in 1982 did consideration of this
neglected aspect of the arms race begin in the U.N. Committee on Disarma-
ment. Three separate proposals were submitted to the Committee. One
suggested a “verifiable agreement to prohibit anti-satellite systems in the
tive equipment].” Quoted in Ulsamer, AnIn-Depth Look at the New Defense Budget, Air Force
Magazine (April 1983) 66, 73.
9See, e.g., Meselson & Robinson, supra, note 27; Lundin, supra, note 27; and Myrdal,
supra, note 19, 286-90.
o See Excerpts from State Department Report on Chemical Warfare, The New York Times
(23 March 1982) A 14; Weinraub, New U.S. Document on Chemical War, The New York
Times (14 May 1982) A 7; Weinraub, U.S. Assails SovietforReported Use of Toxin Weapons,
The New York Times (30 November 1982) A 1; Vice-President Bush, “Advancing the Cause
of Peace and Arms Control” in United States Dep’t State, Current Policy (No. 448) (Address
before the Committee on Disarmament, Geneva on 4 February 1983). In December 1982,
Kenneth L. Adelman, speaking in the First Committee of the United Nations General Assem-
bly on behalf of the United States, called for an investigation of reports, as yet unproven, that
chemical weapons were used by Ethiopian forces in Eritrea. Pace, U.S. Raises Issue of
Ethiopian Toxic Arms in U.N., The New York Times (9 December 1982) A 11.
31 Frank Blackaby, Director of the Stockholm International Peace Research Institute [SIP-
RI], reports that the United States is building a special factory for making new binary nerve gas
munitions. When completed in 1983, it will have a production capability of 20,000 155-
millimetre rounds per month. Plans call also for the production of 500-pound binary-V.X.
aircraft spray-bombs (the so-called “Big Eye”). Binary warheads are also being considered for
various missiles, including the ground-launched cruise missile. WorldArsenals 1982 (1982) 38
Bull. Atom. Scientists 21, 26 (June-July). See also Middleton, U.S. Chemical Warfare:A Plan
to Match Soviet, The New York Times (5 February 1982) A 6.
32For details, see Vlasic, Disarmament Decade, Outer Space and International Law (1981)
26 McGill L.J. 135, 159.
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[Vol. 28
context of agreements aimed at preventing an arms race in outer space”;
another urged the negotiation of “a treaty prohibiting the stationing in outer
space of weapons of any kind”; and still another, submitted by a group of
twenty-one states, recommended an agreement or agreements to “prevent an
arms race in outer space in all its aspects”.3 The Committee held only a few
informal sessions and the debate never rose above general statements. Im-
mediate prospects for the successful completion of a treaty banning weapons
in outer space in this multilateral negotiating body are not promising. Despite
the efforts of the group of twenty-one neutral and non-aligned countries to
establish within the Committee a working group on outer space, a minority of
member-states prevented that development by invoking the rule of
consensus 4 Meanwhile, despite growing objections from the majority of
nations, the militarization of outer space continues unabated, subject only to
the very limited restrictions of the Outer Space Treaty of 1967 35 and the
Partial Test Ban Treaty of 1963 .36 The best one can expect from the current
talks would be a ban on anti-satellite weapons [ASAT], leaving the
spacepowers a wide degree of freedom to use outer space for new generations
of military spacecraft.37 Yet, under the Outer Space Treaty, the U.S. and the
U.S.S.R., the principal architects of the Treaty, pledged that they would use
this environment for the “benefit and in the interest of all countries” (art. I)
and in “accordance with international law, including the Charter…, in the
interest of maintaining international peace and security and promoting inter-
national co-operation and understanding” (art. III).
‘3Report of the Committee on Disarmament, supra, note 20, 101-2.
‘Geneva Group Stymied, supra, note 23. In his recent address to the U.N. Committee on
Disarmament, Vice-President Bush said, in reference to arms control measures in outer space:
“Clearly conditions do not exist which would make negotiations appropriate.” Advancing the
Cause of Peace and Arms Control, supra, note 30, 4.
3, Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer
Space, Including the Moon and Other Celestial Bodies 18 U.S.T. 2410, T.I.A.S. 6347, 610
U.N.T.S. 205 [hereinafter Outer Space Treaty], reprinted in Arms Control and Disarmament
Agreements, supra, note 10, 51 (opened for signature 27 January 1967; entered into force 10
October 1967).
Treaty Banning Nuclear Weapon Tests in the Atmosphere, In Outer Space and Under
Water 14 U.S.T. 1313, T.I.A.S. 5433,480 U.N.T.S. 43 [hereinafterPartial TestBan Treaty],
reprinted in (1963) 2 I.L.M. 889 (opened for signature 5 August 1963; entered into force 10
October 1963).
17E.g., the Soviet proposal of a “Treaty on the Prohibition of the Stationing of Weapons of
Any Kind in Outer Space”, submitted to the United Nations on 10 August 1981, in its most
important provisions, bans the launching of weapon-carrying spacecraft in outer space and any
kind of interference with spacecraft of other states (arts 1 and 3). Other military uses of outer
space are not prohibited explicitly in this draft proposal. Text in U.N. Doc. A/36/192 (1981)
(Letter from the Minister of Foreign Affairs of the Soviet Union to the U.N. Secretary-
General). For U.S. perspectives, see Garthoff, Banning the Bomb in Outer Space (1980-81) 5
Int’l Security 25 (No. 3); Hafner, Averting a Brobdingnagian Skeet Shoot [:] Arms Control
Measures for Anti-Satellite Weapons (1980-81) 5 Int’l Security 41 (No. 3).
1983]
SSOD II AND BEYOND
Four years ago, it seemed almost certain that the Committee on Disarma-
ment would soon submit to the U.N. General Assembly, as its first completed
disarmament text, a draft convention prohibiting the development, produc-
tion, stockpiling, and use of radiological weapons. This optimism was based
upon the fact that in 1979, the United States and the Soviet Union submitted to
the Committee a joint draft convention. 3
1 What helps to explain the uncharac-
teristically cooperative spirit of the superpowers is that the convention bans
weapons which do not exist and have never existed, and which neither
co-sponsor plans to develop in the foreseeable future.
In the 1950s, while the total number of nuclear weapons was still
relatively modest, consideration was given by the military to the possible use
of radioactive materials as an offensive instrument in radiological warfare.
The idea was to contaminate with radioactive materials enemy territory,
factories and equipment without causing the vast destruction that would result
from exploding a nuclear warhead. The rapid growth of stockpiles of far more
effective nuclear weapons led, however, to the abandonment of these plans. 39
The “radiological weapons” subject to the ban should not be confused with the
tens of thousands of nuclear weapons currently in the arsenals of the major
powers, not one of which is covered by the proposed agreement. Despite its
very modest scope, even this draft convention failed to gain the necessary
support for its submission to SSOD II for approval. The draft has been
returned to the U.N. Disarmament Committee’s Working Group on
Radiological Weapons for further negotiations. The cause of the new stale-
mate is the request by certain states to include in the text a prohibition of
attacks against nuclear facilities.’ Although the immediate effect of this
convention on the current arms race would likely be nil, the proposal does
have some redeeming value because it might deter states from engaging in the
development of weapons classified as “new types of weapons of mass de-
struction”. In addition, an agreement on a radiological weapons convention
might at this time be of some symbolic value, as evidence that East and West
can cooperate on arms control measures even in a period of extreme hostility
between the two power blocs.
38United Nations, The United Nations Disarmament Yearbook Volume 4: 1979 (1980)
253. At 248, the Yearbook defines radiological weapons as “those which make use of the
dispersal of radioactive substances in the target area to cause injury to personnel independently
of nuclear explosions”. See also C. Flowerree, “Controlling Radiological Weapons [:] A
Historical Perspective” in The Stanley Foundation, Radiological Weapons Control: A Soviet
and US Perspective (Occasional Paper 29, 1982) 7; and V. Issraelyan, “Radiological Weapons
[:] Possible New Types of Weapons of Mass Destruction” in The Stanley Foundation,
Radiological Weapons Control: A Soviet and US Perspective (Occasional Paper 29, 1982) 17.
19 P. Noel-Baker, The Arms Race [:] A Programme for World Disarmament (1958) 317-8.
IReport of the Committee on Disarmament, supra, note 20, 93 et seq.
McGILL LAW JOURNAL
[Vol. 28
Concurrent with these protracted attempts to limit the arms competition,
new weapon systems, conceived and developed while the two adversaries
were negotiating, are being deployed or are nearing the production phase. 4′
Without enhancing the security of either side, each such innovation com-
pounds the already difficult, and sometimes insuperable, problems of veri-
fication. Some of the new missiles, such as the MX, Trident I and II, Pershing
II, and the Soviet mobile SS-20, are extremely accurate, quick-reaction
weapons which are therefore regarded generally as “first-strike” or “counter-
force” systems, that is, weapons designed to attack the enemy’s military and
command targets so as to cripple its ability to retaliate. Others, such as
“stealth” bombers and the nuclear-tipped cruise missiles which are capable of
being launched from land, sea and air, are weapons systems that evade
detection by radar sensors until near the target, when it is too late for any
effective defence. Because of their small size (eighteen feet long and twenty-
one inches in diameter) and easy concealment (despite a 200-kiloton nuclear
warhead), the monitoring of an arms reduction agreement aimed at limiting
the number of permissible cruise missiles, or banning them altogether, could
prove exceedingly difficult.42 Verification of their numbers, “or even their
existence”, notes an experienced American weapons designer, “is nearly
impossible, because the nonnuclear missiles are identical to the nuclear ones
from the outside and can be mounted interchangeably in the launchers”.4
0 To
appreciate the probable impact of the cruise upon the arms control negotia-
tions, one need only recall that the problems of verification have delayed for
years –
any
agreement on weapons considerably less demanding in monitoring inventive-
ness and technique. Yet thousands of such missiles are planned to enter the
arsenals of the superpowers before the end of this decade. 44
in the case of the comprehensive test ban, for two decades –
Similar verification difficulties caused by the development of “binary”
nerve-gas munitions, are already being experienced in drafting a treaty to
eliminate chemical weapons. Because binary weapons consist of two relative-
ly innocuous components which become lethal only after the firing of a shell,
the possibilities for clandestine production and stockpiling outreach any
4, For a comprehensive survey, see The Military Balance 1982183 [:] As Compiled by The
International Institute for Strategic Studies, London, Air Force Magazine (December 1982) 61
[hereinafter The Military Balance].
41 See Brecher & Lindsay, Keeping Everybody Honest, Newsweek [Magazine] (31 January
1983) 20; Aldrich, The Pentagon on the Warpath, The Nation [Magazine] (27 March 1982)
361,362.
4 Aldrich, ibid.
“President Reagan’s strategic programme calls for the deployment of 3,400 air-launched
cruise missiles and some 3,000 to 4,000 sea-based cruise missiles of all types by the early
1990s. See Paine, Reagatomics, or How to ‘Prevail’, The Nation [Magazine] (9 April 1983)
423, 426 and 428.
1983]
SSOD II AND BEYOND
known means of verification. In sum, every one of these new weapon systems
represents another destabilizing addition to an already highly unstable politi-
cal-military environment.
While arms control negotiations move at a snail’s pace, if they move at
all, the momentum of the arms race is accelerating constantly, creating new
security threats, new weapons “assymetries” and “gaps”, and new verifica-
tion nightmares. The progression of nuclear missile technology from only one
warhead per missile to missiles armed with up to fourteen warheads, each
independently targetable, is widely recognized as having increased, rather
than decreased, the vulnerability of the major military powers, in addition to
complicating enormously verification procedures. With START and INF
talks under way, it is now reported that the world is soon to “enter a new age of
missile technology in which nuclear warheads will be designed to maneuver
in flight, either to dodge enemy defenses or to home in on a target with
unparallelled accuracy”.45 This new manoeuverable warhead [MARV] is
expected to be installed on the Pershing II missile, currently the subject of the
INF talks. The implications of this innovation for the future of both disarma-
ment and strategic stability cannot be overestimated. An allegedly “secret”
Soviet proposal for a ban on MARVs was turned down by an American side
reluctant to yield the advantage. 6 The reason for the refusal is all too
reminiscent of the negotiating tactics practised since the beginning of post-
war arms reduction negotiations; neither side is willing to reduce or eliminate
the weapon system in which it knows it enjoys an advantage over its adver-
sary. As George Kennan observes in reference to the SALT negotiations:
“[E]ach side is obsessed with the chimera of relative advantage and strives
only to retain a maximum of the weaponry for itself while putting its opponent
to the maximum disadvantage.” 7
Every major new weapon system is used in negotiations as a “bargaining
chip” to extract a concession from the bargaining partner, a ploy that almost
never produces either a meaningful arms reduction or enhanced security, but
rather escalates the arms competition to a more dangerous and more destabi-
lizing level. The observation that such negotiations “are not a way of escape
from the weapons race” but are “an integral part of it” 48 is not far from the
truth. The futility of using weapons innovations as a bargaining chip and the
adverse effects of this practice for both sides was identified with remarkable
4
1 Boffey, New Generation of Warheads Just Around The Bend, The New York Times (15
February 1983) C 1.
(June 1981 –
4 Ibid.
47Kennan, Einstein Peace Prize Address, 19 May 1981, reprinted in Disarmament Times
48Ibid.
Special Supp.) 1, 2.
REVUE DE DROIT DE McGILL
(Vol. 28
foresight by Jerome B. Wiesner, Science Adviser to Presidents Kennedy and
Johnson, more than twenty years ago:
One of the most ironic aspects of the situation in which the United States and the Soviet
Union find themselves is that each is running an arms race with itself. Because of the
technical capabilities of both countries, neither will for long lag behind the other in
developing any new weapon. As a consequence, we are forced to work harder and harder
in the effort to maintain a given degree of security. Thus we create twin spirals of
invention and production which, because of the nature of the weapons involved, appear to
lessen, rather than enhance, the possibility of that security. … [A]lmost any invention
and the logic of the arms race
the weapons engineers can conceive of can now be built –
seems to require that any possible weapon be built, no matter how horrible. 9
The accuracy of this assessment of the dynamics of the arms race has been
borne out by overwhelming evidence accumulated since the early 1960s. The
military arsenals and defence budgets of the superpowers have multiplied
many-fold; innumerable new weapons systems have been deployed; the
number of strategic nuclear warheads has increased from under 7,000 to at
least 15,00050 and the number of nuclear-weapon states from three to seven,
possibly eight if South Africa is included; the environment of outer space has
been thoroughly militarized, with perhaps as much as seventy-five per cent of
current space activities being defence-related.” The list could be expanded.
19Wiesner, “Foreword” in D. Brennan, ed., Arms Control, Disarmament, and National
Security (1961) 13, 14.
5oThe exact number of warheads and their yields are closely guarded secrets and therefore all
estimates are subject to considerable uncertainty. A recent estimate credits the United States
and its NATO allies with 9,670 strategic nuclear warheads and the Soviet Union with 8,135.
See Alpern, Walcott & Martin, The Nuclear Arms Race, Newsweek [Magazine] (5 October
1981) 32, 33. According to London’s International Institute for Strategic Studies, the total for
the American arsenal alone is about 9,300 and for the Soviet about 7,300. In terms of
destructive power (megatonnage – one megaton equalling one million tons of explosive), the
Soviet strategic forces lead those of the U.S. by 6,100 megatons to 3,752 megatons. The
Military Balance, supra, note 41, Table at 147.
51 On 22 September 1979, a U.S. reconnaissance satellite over the South Atlantic reported a
flash of light off the coast of South Africa resembling an atmospheric nuclear explosion. In
response to that discovery, and pursuant to a resolution of the U.N. General Assembly, a group
of experts was appointed by the Secretary-General to investigate the matter. The experts
reported in 1980 that “there is so far no undisputed scientific explanation” for the flash recorded
by the U.S. satellite. However, they agreed that “there is no doubt that South Africa has the
technical capability to make nuclear weapons and the necessary means of delivery.” United
Nations, South Africa’s Plan and Capability in the Nuclear Field: A Summary (n.d.) 2-3 (U.N.
Centre for Disarmament Fact Sheet No. 15).
Following a fifty-five-day fact-finding trip through South Africa, Samuel H. Day Jr,
former editor of the Bulletin of the Atomic Scientists, concluded that South Africa does have its
own atomic bomb and that the event of 22 September 1979 was, indeed, a nuclear weapon test.
TheAfrikanerBomb, The Progressive [Magazine] (September 1982) 22. Fora discussion of the
militarization of outer space, see infra, text accompanying notes 115 to 119.
19831
SSOD II AND BEYOND
Reflecting on this record two decades later, Professor Wiesner found it
“sobering to note that U.S. security has been diminished by each new round of
weapons systems” and so has, he added, that of the Soviet Union.52
Commitment to further re-armament rather than to disarmament, despite
public rhetoric to the contrary, now threatens to undermine fatally all but one
(the Partial Test Ban Treaty of 1963) of the major arms limitation agreements
concluded during the last fifteen years. The pressures for deploying anti-
ballistic defences [BMD] have been gaining momentum in the United States,
ostensibly to protect the MX missile sites. Substantial increases in the budget
for accelerating the development of BMD systems have already been
approved, and it appears that Washington may seek modification of the 1972
Treaty on the Limitation of Anti-Ballistic Missile Systems53 with Moscow
when it comes up for review this year. The trend was authoritatively presaged
by the Secretary of Defense, Caspar Weinberger, when in 1981, he stated
before the U.S. Senate Armed Services Committee: “I am not one of those
who feels that an active and effective ballistic missile defense system is
destabilizing. The sooner we can get to it, the better I like it.” I In March of
1983, President Reagan startled the world with his call for a massive national
effort to develop an ABM defence system, based on futuristic weapons
stationed in outer space, to “counter the awesome Soviet missile threat”. 55
52Wiesner, The Case for Ending the Arms Race, Manchester Guardian Weekly (2 January
1983) 18 (review of G. Kennan, The Nuclear Delusion [:] Soviet-American Relations in the
Atomic Age (1982)).
4Quoted
13 Treaty Between the United States ofAmerica and the Union of Soviet Socialist Republics
on the Limitation ofAnti-Ballistic Missile Systems23 U.S.T. 3435, T.I.A.S. 7503 [hereinafter
ABM Treaty], reprinted in (1972) 11 I.L.M. 784 (signed 26 May 1972; entered into force 3
October 1972). The ABM Treaty is subject to review five years after its entry into force, and at
five-year intervals thereafter (art. XIV). The first and only such review was held in 1977. The
most important obligation of the parties can be found in art. V(1): “Each Party undertakes not to
develop, test, or deploy ABM systems or components which are sea-based, air-based, space-
based, or mobile land-based.” The Protocol to the ABM Treaty, signed on 3 July 1974, permits
each side one ABM deployment site (art. I(1)). Text found in Arms Control and Disarmament.
Agreements, supra, note 10, 162.
in Paine, MX: too dense for Congress (1983) 39 Bull. Atom. Scientists 4, 6
(February). Strong support for the deployment of an anti-ballistic missile defence system has
also been expressed by George V. Orr, Secretary of the U.S. Air Force. He is reported to regard
theABM Treaty as “the funniest kind of treaty in the world. It’s a treaty against defense. I would
think that our treaties would be against offense.” R. Brownstein & N. Easton, Reagan’s Ruling
Class [:] Portraits of the President’s Top 100 Officials (1982) 473.
‘5Address to the Nation, 23 March 1983, reprinted as President’s Speech on Military
Spending and a New Defense, The New York Times (24 March 1983) A 20. The President
announced, inter alia, that he has ordered a “comprehensive and intensive” effort to develop an
ABM system as “the means of rendering these nuclear weapons impotent and obsolete”. He
admitted, however, that building such a system is “a formidable technical task, one that may
not be accomplished before the end of this century”. Nevertheless, the effort is worth
McGILL LAW JOURNAL
[Vol. 28
Any weakening of this most important bilateral arms control agreement
in force between the two superpowers, let alone its abrogation,56 would not
only exacerbate seriously the tension between the NATO and Warsaw Pact
countries and start a dangerous new round in arms competition, but would
also signal in the clearest possible terms the abandonment of the doctrine of
mutual vulnerability in favour of the strategy of the “winnable” nuclear war.57
by giving a six-month notice –
undertaking, the President asserted, because it demonstrates American “peaceful intentions”,
is “consistent with our obligations under the ABM Treaty”, “pave[s] the way for arms control
measures to eliminate the [nuclear] weapons”, and holds the promise of “changing the course of
human history”. Since the obvious purpose of this system would be to destroy the enemy’s
missiles before they are on their trajectory toward their targets, its use, like so many other
modem weapons, could be both defensive and offensive. Quite apart from the immense cost of
the system and the serious uncertainty regarding its reliability, the President’s plan is bound to
stimulate the development of new weapons systems –
such as satellite destroyers, space mines
and laser guns –
to neutralize the anti-missile defences. The result might well be a “whole new
range of flashpoints that could trigger nuclear war”. A New Nuclear Heresy, Newsweek
[Magazine] (4 April 1983) 20, 21. See also Karas, The Star Wars Scenario, The Nation
[Magazine] (9 April 1983) 444. Three former high U.S. officials who participated in negotiat-
ing the ABM Treaty have asserted that the President’s plan would jeopardize seriously this
agreement. John B. Rhinelander, legal adviser to the U.S. SALT delegation, argues that the
Reagan proposal would “clearly require amendment of the ABM Treaty or its abrogation”.
Missile Defense Called ABM Treaty Violation, The New York Times (5 April 1983) A 7.
Although of “unlimited duration”, the ABM Treaty, supra, note 53, allows each party to
withdraw from it –
“if it decides that extraordinary events
related to the subject matter of this Treaty have jeopardized its supreme interests” (art. XV). On
9 May 1972, on behalf of the United States, Ambassador Gerard Smith made a “unilateral
statement” reflecting the U.S. interpretation of art. XV. The key part of his statement reads: “If
an agreement providing for more complete strategic offensive arms limitations were not
achieved within five years, U.S. supreme interests could be jeopardized. Should that occur, it
would constitute a basis for withdrawal from the ABM Treaty.” Arms Control and Disarma-
ment Agreements, supra, note 10, 146. Although attached – with other agreed and unilateral
“statements” and “understandings” –
to the ABM Treaty, the Smith statement is not part of the
binding provisions of the agreement. However, because decision on a withdrawal from the
ABM Treaty may be made unilaterally, the statement provides an illustration of the “extraordi-
nary events” that either party could invoke to lawfully abrogate the agreement. As neither
SALT II nor its successor START, have been agreed upon within the period indicated in the
Smith statement, the United States could invoke that fact to justify withdrawing from the ABM
Treaty. General Edward Rowny, chief U.S. negotiator in the START negotiations, is reported
to be “skeptical” about whether the U.S. should continue to comply with the ABM Treaty. He
suggested that in 1972, both superpowers “agreed to throw away their shields” but that because
the U.S.S.R. has continued to develop offensive weapons, the U.S.A. might have to pick up
the shield again. Talbott, TheRisks of Taking Up Shields, Time [Magazine] (4 April 1983) 20,
21.27 A fairly typical comment on the probable consequences of abrogation of the ABM Treaty
reads: “[a]brogating the treaty would mean an explicit repudiation of the doctrine of assured
destruction that for better or worse has enabled the superpowers to escape nuclear war for the
past 38 years. It would also cast aside the only example of mutual forbearance in the
development of new strategic technology.”A New Nuclear Heresy, supra, note 55, 21. When
asked by a U.S. Congressman about the expiration date of the ABM Treaty, Richard Perle,
1983]
SSOD II AND BEYOND
The consequences of such an act for the future of arms control and disarma-
ment could be devastating. But a threat to the continuing viability of the
SALT agreements is not limited to its ABM component.
Putting aside the claim by many informed Americans, including a
number of Senators and Congressmen, that the United States does not need, at
least not now, the MX missile,58 it should be noted that SALT II does permit
each party one new ICBM system. The U.S. choice is the MX, while the
Soviet Union is reported to be testing already a comparable weapon. 9 If the
U.S. proceeds with the deployment of the MX, Marshal Ustinov has warned:
“[T]he Soviet Union will respond by deploying a new intercontinental ballis-
tic missile of the same class, with its characteristics in no way inferior to those
of the MX.” 60 It appears that the United States has now linked progress in
START negotiations directly with the fate of the MX missile. President
Reagan has told the United States Congress that its refusal to “fund and deploy
the MX would… handcuff our negotiators and require a reassessment of our
START proposals”. 6 Even if the Soviet Union accepted the U.S. proposals in
toto, that would only result, according to the President, in a reduction in the
number of MX missiles that would be installed.62
Two other bilateral treaties concluded between the United States and the
Soviet Union in the course of the SALT negotiations are also in jeopardy,
namely, the 1974 Treaty on the Limitation of Underground Nuclear Weapon
Assistant Secretary of Defense for International Security Affairs, replied: “I am sorry to say
that it does not expire. That is one of its many defects. … I would hope that were we to
conclude that the only way we could defend our own strategic forces was by deploying defense,
we would not hesitate to renegotiate the-treaty and, failing Soviet acquiescence… I would
hope that we would abrogate the treaty.” Quoted in Paine, Arms Buildup (1982) 38 Bull. Atom.
Scientists 5, 6 (October).
-See, e.g., statement by McGeorge Bundy, Robert S. McNamara, Cyrus S. Vance, and
Elmo R. ZumwaltJr, all high defence officials in previous U.S. Administrations. Cut Defense
Outlays, The New York Times (4 March 1983) A 31; Wiesner, MX, the Danger, The New
York Times (12 April 1983) A 23; and Roberts, MX Opponents Call Basing Plan Too Costly
and Short of Objective, The New York Times (13 April 1983) A 21 (reporting the fears of
Members of Congress, Paul C. Warnke, former chief U.S. arms negotiator, and Herbert
Scoville Jr, former Deputy Director of the CIA).
59 Smith, U.S. SeesNew Soviet Arms Violation, The New York Times (12 May 1983) B 9.
6Marshal of the Soviet Union DMITRY USTINOV, Minister of Defence of the USSR,
Ansivers Questionsfrom a TASS Correspondent [1983] Int’l Affairs [Moscow] 11, 15 (No. 1).
See also Schmemann, Soviet Warns U.S. it WillMatchMX, The New York Times (7 December
1982) B 17.
‘” Quoted in Jackson, Reagan threatens to stop arms talks, Manchester Guardian Weekly (16
January 1983) 6.
“Ibid. The President’s Commission on Strategic Forces has recommended not only the-
deployment of MX missiles but also the development of a smaller single-warhead, possibly
mobile, intercontinental missile –
the “Midgetman”. Full-scale development of the new
missile would begin in 1987 with an initial operating capability in the 1990s. Excerpts From
Report of the Commission on Strategic Forces, The New York Times (12 April 1983) A 18.
REVUE DE DROIT DE McGILL
[Vol. 28
Tests 63 and the 1976 Treaty on Underground NuclearExplosionsforPeaceful
Purposes,4 both limiting such tests and explosions to 150 kilotons. Although
the signatories continue to comply with these agreements, they remain unrati-
fied and are therefore subject to immediate renunciation by either party.
While such a drastic step is apparently not being contemplated at this time, the
U.S. Administration has been delaying the ratification of these Treaties on the
ground that the verification provisions in both require improvements that can
be achieved only through renegotiation.65 U.S. officials claim that there are
technical uncertainties associated with determining the precise yield of nu-
clear explosions greater than the equivalent of 75 kilotons. For this reason,
they assert: “Soviet tests estimated at 150 kilotons could actually be as low as
75 kilotons, or as high as 300 kilotons.” Although no formal charges of a
violation by the U.S.S.R. of either Treaty have been made, some members of
the U.S. Government say that on fourteen occasions since 1974, Soviet tests
seem to have exceeded the 150 kiloton limit. 67
The revision of these agreements, especially of the 1974 Treaty, re-
portedly sought by the United States, would consist at the very least of
allowing American monitoring devices to be installed on Soviet nuclear
testing sites. According to a more recent report, the United States wants the
Soviets to allow American inspectors on the test site before any explosion in
excess of 75 kilotons is undertaken.m Once there, the U.S. inspectors would
“watch their Soviet counterparts place special sensors in the testing cavity”
and these sensors would be “attached to a portable black box kept by the
Americans”. 69
63 Treaty Betveen the United States ofAmerica and the Union of Soviet Socialist Republics
on the Limitation of Underground Nuclear Weapon Tests, 3 July 1974, reprinted in Arms
Control and Disarmament Agreements, supra, note 10, 167 [hereinafter Threshold Test Ban
Treaty].
Treaty Betveen the United States ofAmerica and the Union of Soviet Socialist Republics
on Underground Nuclear Explosions for Peaceful Purposes, 28 May 1976, reprinted in Arms
Control and Disarmament Agreements, ibid., 173.
“According to U.S. Senator Charles Mathias, the Administration “has not produced any
convincing evidence that they [i.e., these two treaties] require significant technical modifica-
tion”. Mathias, letter to the editor, The New York Times (23 February 1983) A 22.
‘Miller, Debate Over Nuclear Ban: Can U.S. Spot Cheats?, The New York Times (8
March 1983) C 1, C 6 [hereinafter Debate]. See also Miller, U.S. Panel Urges On-Site
Atom-Test Checks, The New York Times (9 February 1983) A 7.
‘Miller, Debate, ibid., C 6. These accusations have subsequently been repeated by U.S.
Government officials, including President Reagan. See Smith, Panel Tells Reagan the Rus-
sians Seem to Have Broken Arms Pacts, The New York Times (21 April 1983) A 1; Transcript
of Press Interview With President at White House, The New York Times (30 March 1983) A
14.
68 Miller, ibid., C 6.
69Ibid.
1983]
SSOD II AND BEYOND
Since the U.S.S.R. has traditionally resisted much less intrusive veri-
fication techniques, Soviet acceptance of these American proposals is highly
doubtful, 7 especially because there is no convincing evidence that the present
monitoring regime has failed. The likelihood of any major modification of
these Treaties being acceptable to the Soviet Union is further diminished by
the sharp differences of opinion within the U.S. scientific community as to the
necessity for such modifications. A more ominous reason for seeking renego-
tiation of the Threshold Test Ban Treaty 7’ could be, however, the mounting
pressure of the nuclear weapons lobby, which seeks a resumption of tests
beyond the yield permitted by the Treaty as part of a nuclear weapons
expansion programme. With the planned addition of thousands of new nu-
clear warheads to the U.S. stockpile, the need for testing devices in excess of
150 kilotons prior to their deployment could indeed become a technical
necessity. In either case, even though the Treaty allows for amendments and
is subject after ratification to a unilateral withdrawal upon a six-month
notice,72 any unilateral attempt to renegotiate an agreement that both sides
have honoured for a number of years would be a hazardous enterprise.
Renegotiations could result in lengthy and acrimonious exchanges, might
delay parallel negotiations on other arms control issues and, in the worst case,
could bring about the Treaty’s collapse.
The unsuccessful renegotiation of these agreements could have a parti-
cularly negative effect upon the 1968 Treaty on the Non-Proliferation of
Nuclear Weapons.73 With over 100 states party to it, the Treaty is. generally
regarded as being, together with the Partial Test Ban Treaty, the most
important multilateral arms limitation accord concluded since World War II.
Its fundamental purpose is to prevent the horizontal spread of nuclear
weapons and to provide assurance, through international safeguards, that the
civilian nuclear activities of states not possessing nuclear weapons will not be
diverted to the production of such weapons. In return for the renunciation by
non-nuclear-weapon states of the nuclear-weapons option, those signatories
in the position to do so, especially the nuclear-weapon states, have under-
taken to assist the non-nuclear-weapon parties to the Treaty in developing
nuclear energy for peaceful purposes (art. IV) and, most importantly, to
70On 28 March 1983, in answer to a U.S. proposal to reopen negotiations on verification
procedures in the two Treaties, the Soviet Embassy in Washington notified the State Depart-
ment of the Soviet Government’s belief that these procedures were satisfactory and did not need
to be renegotiated. Gwertzman, Reagan Foresees Offering to Share Antimissile Arms, The
New York Times (30 March 1983) A 1, A 15.
“Supra, note 63.
7Ibid., art. V.
-21 U.S.T. 483, T.I.A.S. 6839,729 U.N.T.S. 161 [hereinafterNon-Proliferation Treaty]
(signed 1 July 1968; entered into force 5 March 1970).
McGILL LAW JOURNAL
[Vol. 28
pursue urgently and in good faith, negotiations on ending the nuclear arms
race and on nuclear disarmament (art. VI).74 The fact that the United States
and the Soviet Union, since the entry into force of the Non-Proliferation
Treaty, have been increasing rather than reducing their nuclear weapon
arsenals, has led many parties to the Treaty to question the continuing
viability of the agreement. The extent of disenchantment with the non-
performance by the superpowers of their obligations under art. VI became
particularly evident at the second review conference held in 1980, when the
participants failed to agree on a final document.
Because the termination of all nuclear weapon tests is regarded by the
majority of states “as a sine qua non for preventing the emergence of
additional nuclear-weapon states and for preserving the NPT regime”,” any
weakening of the Soviet-American bilateral nuclear-explosion agreements
could prove fatal to the Treaty. And with the collapse of the Non-Proliferation
Treaty, the probability of an unrestricted proliferation of nuclear-weapon
states would increase greatly,76 as would the likelihood of nuclear weapons
being employed in some future conflict, not necessarily initiated by, or
immediately involving, the major powers.
In view of the virtual stalemate in arms reduction negotiations, one
cannot but wonder whether genuine disarmament is possible in a world which
remains in profound disagreement over the shape of future human society.
Despite the concern expressed by millions in every part of the world, despite
71n 1968, both prior to and after the adoption of the Non-Proliferation Treaty, U.S.
Ambassador to the United Nations Arthur J. Goldberg, as well as President Lyndon B.
Johnson, referred unequivocally to art. VI of the Treaty as expressing legal obligations for their
country. In his address of 12 June 1968 to the U.N. General Assembly, following the
Assembly’s approval of the Treaty, President Johnson said: “In keeping with our obligations
under the Treaty we shall, as a major nuclear Power, promptly and vigorously pursue
negotiations on effective measures to halt the nuclear arms race and to reduce existing nuclear
arsenals. It is right that we should be so obligated. The non-nuclear States – who undertake
with this Treaty to forego nuclear weapons –
are entitled to the assurance that powers
possessing them.., will lose no time in finding the way to scale down the nuclear arms race.”
Quoted in Goldberg, “The Attitude of the World Community Toward the ABM” in A. Chayes
& J. Wiesner, eds, ABM [:] An Evaluation of the Decision to Deploy an Antiballistic Missile
System (1969) 206, 212 [emphasis added]. The Final Document of SSOD I, supra, note 3,
para. 65, in reference to the threat of proliferation of nuclear weapons, also speaks of
“obligations and responsibilities” on the part of nuclear-weapon states.
15Arms Control andDisarmamentAgreements, supra, note 10, 90. See also Epstein, On the
second review of Non-Proliferation Treaty (1981) 37 Bull. Atom. Scientists 57 (May).
76″A recent United. States intelligence survey asserts that 31 countries, many’of them
engaged in longstanding regional disputes, will be able to produce nuclear weapons by the year
2000, according to military analysts.” Halloran, Spread of Nuclear Arms is Seen by 2000, The
New York Times (15 November’1982) A 3.
1983]
SSOD II AND BEYOND
the ominous words of warning issued by rational and informed academics,
scientists, physicians, clergy, statesmen, and indeed many enlightened
military, 7 despite the rhetoric of national governments imploring cooperation
despite all these manifestations of fear and
and the non-use of force –
despondency, regrettably, many governments have not yet recognized the
imperative and urgent need to negotiate for peace. While these problems and
these fears are not new, their resolution seems ever more elusive, as the
following account indicates.
11.
The Problems of ‘Parity” and Verification: The Need for an
Impartial Evaluation of Conflicting Claims and Proposals
No issues have caused more disagreement and delay in disarmament
negotiations than the question what represents an “equitable and balanced”
arms limitation, and the vexing problem of verification. The Final Document
“The list of those who have spoken publicly against current trends in arms competition,
especially its nuclear dimension, is long and impressive. See, e.g., Feld, The year of appeals,
(1982) 38 Bull. Atom. Scientists 6 (December); Miller, Doctors Assail Reagan Arms Reduc-
tion Plan, The New York Times (12 May 1982) A 21 (physicians and scientists including
George Kistiakowsky, former Science Advisor to President Eisenhower); Reinhold, Scientists
Urge More Effort to Cut Atom Risk, The New York Times (28 April 1982) A 15 (the National
Academy of Sciences of the United States); Gailey, Military-Industrial Complex Assailed In
Rickover Swan Song to Congress, The New York Times (29 January 1982) A 17 (Admiral
Hyman G. Rickover, “father” of the U.S. nuclear Navy); Excerpts From International Panel’s
Report on Disarmament Negotiations, The New York Times (2 June 1982) A 10 (the
Independent Commission on Disarmament and Security, chaired by Olof Palme, Prime
Minister of Sweden); Harriman, et al., NuclearFreeze: The Caseforan American ‘Yes’, letter
to the editor, The New York Times (31 October 1982) 20 (W. Averell Harriman; Clark
Clifford, former Secretary of Defense; William E. Colby, former Director of the CIA; Paul C.
Warnke); Kennedy, et al., Voters’ Real Opportunity to Help Stop the NuclearArms Race, letter
to the editor, The New York Times (I November 1982) A 18 (U.S. Senators Edward M.
Kennedy and Mark 0. Hatfield, et al.); MPs from all parties callfor arm-freeze summit, The
[Montr6ai] Gazette (11 December 1982) C-1 (Canadian Parliamentarians); King, Labor
Federation Council Urges Ratification ofArms Treaty, The New York Times (28 May 1982) A
11 (the A.F.L.-C.I.O. Executive Council); Stay out of arms race, church leaders tell PM, The
[Montr6al] Gazette (15 December 1982) B-1 (representatives of six major Canadian Christian
denominations); Transcript of Pope John Paul 11’s United Nations Address, The New York
Times (3 October 1979) B 4 (the Roman Catholic Pontiff); Kamm, Pope Assails Scientists’
Stress on Arms, The New York Times (4 November 1982) A 3 (the Pope, more recently);
Austin, Synagogue Council Endorses Nuclear Freeze, The New York Times (25 February
1983) A 17 (the Synagogue Council of America). A most powerful and broad-ranging
statement against war and nuclear weapons is contained in the Pastoral Letter entitled The
Challenge of Peace: God’s Promise and Our Response, adopted on 3 May 1983, after two
years of deliberations, by 238 American Roman Catholic bishops (with only nine opposed).
For a partial text, see The New York Times (5 May 1983) B 16 [hereinafter The Pastoral
Letter].
REVUE DE DROIT DE McGILL
[Vol. 28
of SSOD I recognized the importance of these issues and suggested in general
terms the principles that should govern states in their negotiations:
29. The adoption of disarmament measures should take place in such an equitable and
balanced manner as to ensure the right of each State to security and to ensure that no
individual State or a group of States may obtain advantages over others at any stage.
31. Disarmament and arms limitation agreements should provide for adequate measures
of verification satisfactory to all parties concerned in order to create the necessary
confidence and ensure that they are being observed by all parties. The form and modalities
of the verification to be provided for in any specific agreement depend upon and should be
determined by the purposes, scope and nature of the agreement.”
Experience shows that, as a rule, what may appear to one side as an “equitable
and balanced” arms limitation measure, will be regarded by the other side as
an unreasonable attempt to achieve superiority. Similarly, verification pro-
posals put forward by one side as indispensable to an effective agreement will
be seen by the other side as exceeding grossly the requirements of an adequate
monitoring regime. In the meantime, while the negotiating parties argue,
equivocate and manoeuvre in the illusory quest for superiority and for a
risk-proof agreement,79 military research and development continue uninhib-
ited, thus creating new weapons, new inequities and new verification prob-
lems. An examination of the various claims and counterclaims will illustrate
the point and, it is hoped, prove the urgent need for establishing an independ-
ent world community body to assess impartially arms control proposals
involving “parity” and verification.
A.
“Parity”, “Superiority” and Related Issues
Terms such as “essential equivalence”, “rough parity”, “parity”,
“approximate equilibrium”, “rough equality”, “ambiguous equivalence”,
“rough balance”, and “asymmetry”, as well as the related terms of “superior-
ity”, “vulnerability” and “stable deterrent” (to be contrasted with “unstable
deterrent”), are only too familiar to even casual readers of statements dealing
with the respective military arsenals of the two superpowers and of the rival
blocs they lead.
7 Supra, note 3.
7Alva Myrdal, who had for twelve years participated in multilateral disarmament negotia-
tions, describes her experience as follows: “There the superpowers have indulged in subter-
fuges and half-truths, with their closest and usually most dependent allies following suit or
keeping silent. On balance, there has been no real advance towards limitation of armaments.”
Myrdal, supra, note 19, xxix.
1983]
SSOD II AND BEYOND
The quantity (numerical strength) as well as the capabilities of the
various weapons systems possessed by each negotiating party have always
played a central role in arms limitation negotiations. In the context of the
current START, INF and MBFR talks, they seem crucial. The outcome of
these negotiations will depend upon securing a consensus between the nego-
tiating parties on what constitutes a balanced and equitable reduction of their
entire forces or of a particular segment. Since no two countries are armed
identically, nor can they have equally powerful allies and adversaries or an
identical geography, a decision on what is equitable in terms of arms reduc-
tions obviously will not be easy or simple. The task is made all the more
difficult by the manipulative use of statistics designed to deceive rather than
enlighten. These “statistics” often seem to be aimed at the public rather than
the other negotiating party, so as to achieve the maximum propaganda effect.
Exaggerated claims concerning, for example, the over-all strength of the
opponent, or its superiority in certain critical weapons systems, or in the
performance of a particular offensive or defensive weapon,8″ are common
negotiating tactics that, whether by design or by accident, cause lengthy
delays on the road to an agreement. Still further delaying the negotiating
process is the tendency of each side to seek reductions or limits in precisely
that segment of the adversary’s arsenal where it is strongest, while preserving
intact, or as little reduced as possible, the strongest part of its own forces.
Claims that it is necessary to close “gaps” and correct “asymmetries” in order
to establish “parity” are used commonly to justify an intensification of the
arms build-up.” It may not be far off the mark,therefore, to conclude that
current arms “negotiations”, in addition to exacerbating international tension,
are in fact fuelling the arms race.
The catalogue of disagreements between the superpowers about data
relating to their force levels and capabilities is singularly rich in examples
which occasionally border on the absurd. The appeal made to member-states
of the United Nations contained in the Final Document of SSOD I “to avoid
dissemination of false or tendentious information concerning armaments”
(para. 105) patently has been ignored. There is disagreement even about the
existence of an arms race. The “truth is”, asserts President Reagan, “that
10Particularly egregious examples of exaggerated claims and counterclaims can be found in
U.S. Dep’t of Defense, Soviet Military Power (1981), and the Soviet response – U.S.S.R.
Ministry of Defence, Whence the Threat to Peace (1982).
11 The latest addition to the growing catalogue of “gaps” is the “perception gap”, invoked by
U.S. defence officials in support of the MX missile. Without the MX, they assert, the United
States “could be perceived by its adversaries and allies as inferior in strategic arms”. How MX
Will Transform Nuclear Strategy, U.S. News and World Report [Magazine] (25 April 1983)
23.
McGILL LAW JOURNAL
[Vol. 28
while the Soviet Union has raced, we have not”.82 As the United States sees it,
“[t]oday,
in virtually every measure of military power the Soviet Union
enjoys a decided advantage”.83 This assessment has been challenged by many
analysts and high officials of previous U.S. Administrations. Cyrus R.
Vance, a former Secretary of State and one of the principal architects of the
SALT II accords, argues that the two superpowers “are roughly equal in
overall nuclear strength, with each side having differing advantages”., A
similar view has been expressed by Robert S. McNamara, a former Secretary
of Defense: “Clearly, the nuclear balance –
the essential equivalence of
force.. exists today.”I According to the Soviet Defence Minister, Marshal
D. Ustinov, “there exists, in all cases, an approximate parity between the two
sides. There is no ‘Soviet superiority’ at all.” 6 A comparable appraisal can be
found in the draft resolution submitted by Mexico and Sweden to SSOD II on
2 July 1982. In the preamble to the resolution these countries expressed their
“firm conviction” that the U.S. and the U.S.S.R. “are now equivalent in
nuclear military power and it seems evident that there exists between them an
over-all rough parity”.87
The threat posed by intercontinental nuclear weapons is also subject to
divergent assessments. The United States START proposals are said to be
82Address to the Nation, 22 November 1982, reprinted as Reagan’s Address to Nation on
Nuclear Strategy Toward the Soviet Union, The New York Times (23 November 1982) A 12.
3Ibid. See also President’s Speech on Military Spending and a New Defense, supra, note
55.
See Vance & Hunter, Arms-Control Steps, The New York Times (27 December 1982) A
19.
, McNamara, No Second Use – Until, The New York Times (2 February 1983) A 23. A
particularly persuasive assertion of U.S. superiority over, rather than parity with, the U.S.S.R.
came from Walter F. Mondale, former U.S. Vice-President: “Mr. Reagan ought to learn the
facts about our military strength. I sat for fouryears on the National Security Council. I saw all
the papers, worked with all our defense and intelligence agencies and took part in every military
decision. I can say without doubt that today our defenses are second to none. It is true that the
Soviets have more and bigger land-based missiles than we do. But in every other measure of
strategic power, we are ahead. We have more warheads. We have more missiles at sea and in
the air. Our nuclear submarines are less vulnerable and more reliable. Our anti-submarine
techniques are better. Our strategic bomber force is superior and getting better. We have
weapons like the cruise missile to which they yet have not effective response.” Excerpts From
Mondale’s Address to Publishers, The New York Times (27 April 1983) A 16. According to
President Reagan’s Undersecretary of Defense for research and engineering, Richard de Lauer,
the United States leads the Soviet Union by a fifteen-to-one margin in critical technologies that
“have the potential for significantly changing the military balance in the next 10 to 20 years”.
He described the U.S. and the U.S.S.R. as equal in only four areas of basic technologies –
“directed energy”, nuclear warheads, aerodynamics, and mobile power sources. U.S. leading
Soviets 15-1 in arms know-how: Report, The [Montrdal] Gazette (3 March 1983) B-16.
“To Avert the Threat of Nuclear War [1982] Int’l Affairs [Moscow] 12, 15 (No. 9).
‘7Concluding Document, supra, note 3, 12.
1983]
SSOD II AND BEYOND
aimed at reducing the “Soviet advantage in the most destabilizing class of
those in ballistic missiles and especially intercontinental ballistic
weapons –
missiles (ICBMs)”.88 These Soviet missiles are, according to Eugene V.
Rostow, until recently head of the U.S. Arms Control and Disarmament
Agency [ACDA], “swift, accurate, and extremely destructive first-strike
weapons”.89 Because land-based intercontinental missiles represent the main
Soviet strategic deterrent (in contrast with the submarine-based deterrent of
the U.S.), Soviet spokesmen, instead of measuring their ICBMs against the
American ones, prefer to rebuff assertions of their superiority by claiming the
existence of an overall parity in strategic weapons. The United States, reads a
Soviet commentary, “intends to upset the present rough parity in strategic
armaments and to ensure obvious advantages” for itself.’ Under the START
proposal, the “Soviet strategic nuclear potential (in the number of warheads)
would be three times smaller than that of the United States”.9
The nature and purpose of the new U.S. MX missile also produces sharp
disagreements, even within the United States itself. The Administration
describes this missile as a deterrent weapon that would be fired only in
retaliation for a previous Soviet attack.9″ However, the Soviets and many
knowledgeable Americans as well see it as a “first-strike” weapon. According
to TASS, the MX is “an instrument for unleashing nuclear aggression”.93 Paul
Warnke, a former Director of the ACDA, and retired U.S. Admiral Noel
Gayler, a former Director of the National Security Agency, have been
reported to describe the missile as a “destabilizing system that runs counter to
the idea of arms control”.1 An editorial in The New York Times was even more
explicit: “It [the MX missile] is a highly accurate first-strike weapon, carrying
10 warheads designed to destroy Soviet missiles in their silos.” 95 Herbert
Scoville Jr, a former Deputy Director of the CIA, regards the MX as “a
prostitution of the basic concept of deterrence”. It is “designed specifically to
“President’s Statement, 21 September 1982, reprinted in Dep’t State Bull. (November
9 Rostow, NuclearArms Control and the Future of U.S.-SovietRelations, Dep’t State Bull.
90 What is Behind the U.S. “Readiness” for Nuclear Arms Reduction [ 1982] Int’l Affairs
1982) 20.
(November 1982) 16, 18.
[Moscow] 63, 65 (No. 8).
91Ibid.
9See, e.g., President Reagan’s Address to the Nation, supra, note 82.
9Quoted in Schmemann, Moscow Calls MX Proposal Dangerous and Costly Move, The
New York Times (24 November 1982) A 19.
“Miller, Anti-Arms Groups Rebut Planfor MX, The New York Times (24 November 1982)
A 19.
“Dense Pack or Dense Think?, The New York Times (24 November 1982) A 22.
REVUE DE DROIT DE McGILL
[Vol. 28
threaten the entire Soviet land-based deterrent” and, in consequence, is likely
to “attract a Soviet attack, not deter one”.”
The facts are also in dispute concerning intermediate-range nuclear
weapons. According to President Reagan, the Soviet Union “now has 600 of
the missiles considered most threatening by both sides –
the intermediate
range missiles based on land. We have none”. 97 Not unexpectedly, Soviet
officials deny the existence of any such imbalance. On the contrary, they
argue that the “present balance of medium-range nuclear forces in Europe was
one favoring the United States and its allies”.9″ Therefore, they see no
justification for adding to the NATO arsenal on the continent 572 Pershing II
and cruise missiles. The Soviet assertion of balance in these weapons has been
firmly rebuked by Eugene Rostow: “[T]his remarkable feat of arithmetic [has
been achieved] by counting all British and French nuclear weapons with the
American forces, treating American bombers, submarine-launched missiles
and cruise missiles as equivalent to the [Soviet] SS-20, counting all American
weapons as relevant, including dual-purpose aircraft located in the United
States, and excluding many categories in the Soviet arsenal”.”
With respect to the role that should be assigned in these equations to the
Franco-British nuclear forces, the two sides remain far apart. The Soviet
Government insists that the missiles of the U.S. allies must be taken into
account because they are aimed at the U.S.S.R. (approximately 162 missiles
with 386 warheads).’ The Soviets remain unconvinced by the American
counterargument that the “nuclear arsenals of Great Britain, France and China
exist to protect the ultimate sovereignty of these nations. Those weapons are
not under American control … and are entirely defensive in character; given
their size, they could not be used for any conceivable act of aggression against
the Soviet Union.” ‘ 0’ The Soviet announcement, in March 1982, of a mora-
torium on the additional deployment of SS-20 missiles in Europe, instead of
improving the negotiating climate, has had the opposite effect. The United
States claims that during the past year, many new missiles of that type have
9Scoville, The MX Invites Attack, The New York Times (13 December 1982) A 23.
7Address to the Nation, supra, note 82.
9 Burns, Soviet Rebuts ‘Focus of Evil’ Speech, The New York Times (13 December 1982)
A 23.
“Rostow, supra, note 22, 18.
1’The modified Sovietproposal, made in May 1983 by Yuri V. Andropov, while expressing
the readiness of the Soviet Union to establish equality of nuclear weapons in Europe by
counting both delivery vehicles and warheads, continues to require that the nuclear forces of
Britain and France be included in the agreement. See supra, note 14.
“‘1Rostow, supra, note 22, 21.
1983]
SSOD II AND BEYOND
been deployed, in violation of the Soviet pledge. 12 In reply, Marshal Ustinov
accuses the U.S. of “deliberate and malicious misinformation”. 103
After more than nine years of negotiations on a mutual and balanced
force reduction [MBFR] in central Europe, which involve nineteen member-
countries of NATO and the Warsaw Pact, “not a single line of a future
agreement has so far been written”.IN The talks have been deadlocked,
charges Marshal Ustinov, because of “a far-fetched ‘discussion of
figures’-705 In his explanation of the new NATO draft treaty on MBFR,
submitted to the Warsaw Pact on 8 July 1982, the Director of the U.S. ACDA
said that the “primary Western objective in MBFR continues to be the
establishment of parity at significantly lower levels of forces in central
Europe”?.10 Not surprisingly, the U.S.S.R. denies the existence of any mate-
rial disparity. “[T]he NATO bloc,” claims the Soviet Minister of Defence,
“surpasses the Warsaw Treaty Organization in the total number of personnel,
in the number of combat-ready divisions, in antitank systems, and has an
approximately equal quantity of artillery and armour. NATO is somewhat
inferior … in the number of tactical aircraft. On the whole, there is an
approximate balance in conventional armaments as well.” 07 Even when
strategic and medium-range nuclear forces are taken into account, “there is an
approximate parity between the two sides” adds the Soviet Minister.
The debate both on the “vulnerability” of various nuclear deterrent
systems to a surprise attack, and the degree of threat they pose provides still
another example of contradictory and confusing claims. Thus, the U.S.
START proposal is aimed at a significant reduction (a fifty per cent cut) in
land-based strategic missiles because they are “most destabilizing”. 03 At the
same time, President Reagan is urging the quick deployment of 100 MX
102See, e.g., President Reagan in his Address to the Nation, supra, note 55. The charge was
repeated by U.S. officials in May of 1983. See Lohr, Japan Is Worried by Report on Soviet
Missiles, The New York Times (9 May 1983) A 9.
103Supra, note 86, 20.
’04Komlev, Eight Years of the Vienna Talks [1981] Int’l Affairs [Moscow] 21,21 (No. 11).
President Reagan’s assessment: “nine long years of inconclusive talks”. Address to the SSOD
II, 17 June 1982, reprinted as Transcript ofReagan’s U.N. Speech on the NuclearArms Race,
The New York Times (18 June 1982) A 16.
1’5Supra, note 86, 20.
,01 Rostow, NATO Allies Table DraftMBFR Treaty (1982) 82 Dep’t State Bull. 53 (August).
See also Scott, MBFR – Western Initiatives Seek to End Deadlock (1982) 30 NATO Rev. 14
(September).
‘mSupra, note 60, 12.
“President’s Statement, supra, note 88, 20. Eugene Rostow described these Soviet
missiles as “swift, accurate, and extremely destructive first-strike weapons”, supra, note 89,
18.
McGILL LAW JOURNAL
[Vol. 28
missiles, claiming inter alia that they are “survivable” 1’9 and built to keep the
peace (felicitously christened the “Peacekeeper”). The President’s view on
“survivability” was contradicted by his own Secretary of Defense, who
testified in Congress that “there isn’t any ground-based system that is
survivable”.10 The issue became even more confused when the President’s
Commission on Strategic Forces recommended recently the basing of MX
missiles in existing silos, thereby suggesting that the vulnerability of Amer-
ican land-based missiles may not be an urgent problem.”‘
It requires no great expertise to see that, if the U.S. ground-based
missiles are vulnerable, so also are their Soviet counterparts. And since at
least two-thirds of the Soviet strategic missile forces are land-based, against
less than one-third for the U.S., it would seem that the principal Soviet
deterrent at the present time is more vulnerable than the American one.”‘
Protracted debates can be expected as to the degree of vulnerability of each
adversary’s strategic missile forces before a political decision is made to
“Texts of Reagan and Pentagon Statements on MX Missile Basing Proposal, The New
York Times (23 November 1982) A 14.
“‘Quoted in Paine, Running in circles with the MX (1981) 37 Bull. Atom. Scientists 5, 10
(December).
‘”Supra, note 62. The unreality of the current debate on the “vulnerability” of various
existing and projected strategic nuclear systems sometimes borders on the absurd. For exam-
ple, former U.S. Secretary of Defense, Dr Harold Brown, asserted recently that the Soviets
“need only acquire 10,000 warheads with a one-megaton yield” to destroy in the 1990s all
twenty-five American ballistic-missile submarines normally on station at sea. Quoted in
Ulsamer, Clearly Not a Sunset Industry, Air Force Magazine (February 1983) 17, 17. These
submarines, it should be emphasized, are regarded universally as the most invulnerable
segment of the U.S. strategic forces and are destined to remain so for quite some time.
Secretary Brown’s hypothesis is flawed so fundamentally that any informed layman can
challenge it successfully. First, it assumes that such a massive Soviet missile build-up would
prompt no U.S. response, which is unthinkable. Second, it assumes that American submarine
technology, which is considerably more advanced than that of the Soviet Union, will abruptly
cease to make further gains, which is also unthinkable. Third, it discounts wholly the growing
nuclear submarine fleets of U.S. allies. Fourth, it utterly ignores the likely catastrophic
consequences for both the global and Soviet environment of such a massive use of nuclear
weapons. Dr Brown’s scenario presupposes that the Soviet leadership may one day decide to
commit national suicide, for even if “successful” in eliminating the U.S. submarine threat, the
environmental impact of such a nuclear barrage would almost certainly destroy the Soviet
Union as an organized society. As one observer puts it, the “window of vulnerability can be,
and has become, a venetian blind”. Stone, Arms: We Should Talk Now, The Washington Post
(14 April 1983) A 23.
“‘The U.S. START proposal had been described by Time Magazine as an improvement on
the SALT II agreement and, at the same time, as “utterly non negotiable. It asks everything of
the other side, gives practically nothing, and shows practically no flexibility.” Playing for the
Future, Time [Magazine] (18 April 1983) 14, 22. See also Krepon, START on hold (1983) 39
Bull. Atom. Scientists 7 (February).
1983]
SSOD II AND BEYOND
compromise. And finding a compromise could be complicated by disagree-
ment on other matters, such as the accuracy of opposing missiles, their
“throweight”, and their strategic role (first-strike or retaliatory weapons)
which is yet another example of current contradictory assertions.
Related to the issues of strategic nuclear forces, though not included in
any arms control negotiations, is the question of “civil defence”. Some
nuclear strategists believe that strong civil defence is indispensable, not only
for purposes of deterrence, but also for national survival in a nuclear war.”3
The question touches the very essence of the doctrine of strategic deterrence
because any major effort to shield one’s own population against nuclear attack
could be interpreted by the adversary as preparation for a nuclear first strike.
In order to justify a large-scale national effort for the construction of shelters,
American proponents of this view cite “elaborate” plans designed to protect
the population of the Soviet Union against nuclear attack. However, Roy and
Zhores Medvedev, two leading Soviet dissidents, report otherwise: “Despite
periodic claims by NATO spokesmen, there is no planning in the U.S.S.R.
for mass survival in a nuclear conflict; shelters are nonexistent in the new
Moscow housing districts, while civil defense training in the provinces is
confined to perfunctory bus trips into the forests.” “4 This illustrates still
another information gap in regard to easily ascertainable facts.
“3 See, e.g., Gray, TheIdea of Strategic Superiority, AirForce Magazine (March 1982) 62,
63 [hereinafter Superiority], where the author argues for civil defence, industrial hardening
and, generally, for “robust” preparation for societal survival and recovery. See also Gray,
Issues and non-issues in the nuclear policy debate (1981) 37 Bull. Atom. Scientists 47
(December) [hereinafter Issues]. Mr Gray is a member of the Advisory Board of the U.S.
ACDA and advisor to the State Department. See also Teller, On facts and hopes (1983) 39
Bull. Atom. Scientists 42 (April); Man can survive an A-war: Teller, The [Montrdal] Gazette
(21 October 1982) A-20 (quoting Teller on Soviet civil defence planning which could keep
Soviet casualties in a nuclear war to less than twenty million). Dr Teller is a principal scientific
developer of the hydrogen bomb. And see Mohr, Preserving U.S. Command After a Nuclear
Attack, The New York Times (29 June 1982) A 18 (reporting on existing U.S. Government
plans to provide for “continuity of government” after a nuclear attack). An account of the views
on civil defence held by some high officials of the present U.S. Administration can be found in
R. Sheer, With Enough Shovels: Reagan, Bush & Nuclear War (1982). In March 1982,
President Reagan approved a plan designed to evacuate to the rural U.S. up to two-thirds of the
American population deemed to be “at risk” in a nuclear attack. It is estimated that the
seven-year programme will cost U.S. $4.3 billion. Miller, Despite Foes and Skeptics, Admin-
istration Presses Ahead on CivilDefense, The New York Times (10 June 1982) B 20. See also
Clines, Rough Hearing for Reagan ‘Crisis Relocation’ Plan, The New York Times (17 June
1982) B 12.
“‘A Nuclear Samizdat on America’s Arms Race, The Nation [Magazine] (16 January 1982)
38, 38.
REVUE DE DROIT DE McGILL
[Vol. 28
Activities of the two superpowers in outer space are also subject to
contending claims and counterclaims. Three different assessments of the
extent of military intrusion in this arena of great power competition are on
record. Soviet Marshal Ustinov, for one, has charged that the United States
“is unfolding an extensive programme of measures for militarizing outer
space”, which amounts to the “preparation of war in outer space”.I 5 Predict-
ably, such claims are rebutted routinely by the United States with counter
accusations blaming the Soviet Union for the initiation of the arms race in
space. In one such recent rebuttal, Dr Hans Mark of NASA singled out orbital
bombardment systems, anti-satellite weapons and space-based platforms as
being uniquely Soviet contributions to the militarization of outer space.” 6 In
contrast, he asserted, American space doctrine is guided by international law;
the U.S. “is not a player in the space weapons arena” .27 According to the
Science Adviser to President Reagan, U.S. space activities are about fifty per
cent military and fifty per cent civilian, whereas Soviet space programmes are
“about ninety percent military”.
It should be noted that, while accusing the
U.S. of preparing space wars, the U.S.S.R. has never admitted unequivocally
that it too possesses a military space programme. A third view, held by the
majority of U.N. member-states, finds its expression in an important United
Nations conference report:
The extension of an arms race into outer space is a matter of grave concern to the
international community. It is detrimental to humanity as a whole and therefore should be
prevented. All nations, in particular those with major space capabilities, are urged to
contribute actively to the goal of preventing an arms race in outer space and to refrain from
any action contrary to that aim.”‘
Published statistics relating to defence budgets also prompt serious
doubts regarding their veracity and are subject to differing interpretations.
Many countries, including most major powers, habitually conceal their real
“5Supra, note 86, 16.
16Quoted in Ulsamer, Space: The Fourth Dimension, Air Force Magazine (November
1982) 102, 103.
1Ibid.
“‘Ibid., 102. For a comprehensive account of current and planned military space activity,
see G. Stine, Confrontation in Space (1981). See also Karas, supra, note 55; and Halloran,
U.S. Military Operations in Space ToBeExpanded UnderAirForce, The New York Times (22
June 1982) A 19.
“19 United Nations, Report of the Second United Nations Conference on the Exploration and
Peaceful Uses of Outer Space, U.N. Doc. A/CONF. 101/10 (1982), para. 13. For an American
appraisal of the Conference, and particularly of the discussion of the militarization of outer
space, see United States Congress, Office of Technology Assessment, UNISPACE ’82 [:] A
Context for International Cooperation and Competition” (1983), especially Appendix A. See
also Mohr, U.S. Urged to SeekBan on Weapons in Space, The New York Times (19 May 1983)
A 11 (concern expressed by a group of scientists, retired military officers and United States
Senators).
1983]
SSOD II AND BEYOND
military spending through the publication of misleading statistics.2 ‘ Particu-
larly unreliable and uninformative are figures given by the Soviet Union for
its defence budget which patently do not correspond to the massive military
effort they support.’ Hand-in-hand with the unreliable reporting of a coun-
try’s own national defence expenditures go misrepresentations about defence
spending by its adversary. It is quite common to over-estimate the adversary’s
military expenditures so as to create the impression of yet another gap that
must be closed. For example, an eminent American economic analyst, having
examined the much-publicized U.S.-Soviet military spending gap, concluded
that when NATO countries are added to the United States, a ten-year “gap of
$420 billion in Moscow’s favor becomes.., a total East-West gap of about
$300 billion in our favor”.2
The importance, for arms control purposes, of the accurate and system-
atic compilation and dissemination of information on military spending is
recognized widely. Indeed, the U.N. General Assembly adopted, in 1981, a
resolution which urged states to reach international agreement “to freeze,
reduce or otherwise restrain military expenditures”. 2 Clearly, no such agree-
ment would be either possible or useful without some assurance that each
state-party is truthfully reporting its military spending.
The above survey, by no means all-inclusive, provides ample illustration
of the alarming discrepancies in information disseminated by the principals in
the global arms race about each other’s strengths, weaknesses, strategic
intentions, and defence expenditures. Because arms control negotiations are
apparently conducted on the basis of this distorted data, although each side
has a fairly accurate idea about the strengths and weaknesses of the other,
such “negotiations” could well go on interminably in the absence of an
impartial evaluation.
“mSee, e.g., Thorsson, Armaments and Underdevelopment (1982) 5 Disarmament – A
Periodic Rev. by U.N. 9 (May).
“‘ See, e.g., United States ACDA, World Military Expenditures and Arms Transfers
1970-1979 (1982) 19, et seq. See also Reisinger, East European military expenditures in the
1970s: collective good or bargaining offer? (1983) 37 Int’l Organization 143.
‘”Holzman, A Gap? Another?, The New York Times (9 March 1983) A 23 (the author is a
professor of economics at Tufts University). According to Rear Admiral G. La Roque, ret.,
Director of the Center for Defense Information (Washington, D.C.), the U.S. and its NATO
allies have outspent the U.S.S.R. and the Warsaw Pact countries for many years – U.S. $256
billion to U.S. $202 billion in 1980 alone. U.S. No. 1 in weaponry: Report, The [Montrdal]
Gazette (7 September 1982) D-15.
“‘Resolution on the Reduction of military budgets, United Nations G.A. Res. 36/82A, 36
U.N. GAOR, Supp. (No. 51) 53, U.N. Doc. A/36/51 (1981). In his address to SSOD II,
President Reagan proposed the convening of an international conference to review questions of
reporting and verification of military budgets. See the Concluding Document of SSOD II,
supra, note 3, Annex II, 14.
McGILL LAW JOURNAL
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In theory, the concept of “balance” or numerical equivalence seems
justified. In practice, however, any difference in the quantity or effectiveness
of military forces tends to be used as a justification for the development and
eventual deployment of new weapon systems. Furthermore, many analysts
believe that the numerical equivalence of forces (or defence budgets) is not
essential to a convincing deterrent. As Alva Myrdal, one of the most experi-
enced disarmament negotiators, observes: “[I]t is obvious that military capac-
ities do not need to be ‘equal’ or ‘balanced’ when the effective deterrence
ceiling has long been surpassed. However ‘balance’ is counted, whether as
some indefinable ‘parity’ or unknowable ‘superiority,’
the concept is
irrelevant and false.” 124
B.
Verification of Compliance with Agreements
Verification is concerned with the techniques and procedures for ascer-
taining facts about compliance. “I While always an important dimension in the
negotiation of all kinds of arms limitation agreements, the task of devising
appropriate verification arrangements is regarded as crucial in the case of
certain agreements. So as to “facilitate the conclusion and effective imple-
mentation of disarmament agreements”, the FinalDocument of SSOD I urges
states “to develop appropriate methods and procedures [of verification] which
are non-discriminatory and which do not unduly interfere with the internal
affairs of other States or jeopardize their social and economic
development”. 126
The monitoring of compliance with agreements can be achieved by
non-intrusive, technical means of verification, operated unilaterally by each
party to an agreement, using photographic, electronic, radar, or seismic data
collection methods; it can also be done by some form of “cooperative”
measure, including on-site inspection. The latter form of verification, involv-
ing monitoring activities on the sovereign territory of the contracting parties,
has posed a major obstacle to progress in disarmament negotiations. Almost
from the very beginning of such negotiations, NATO countries, especially the
United States, made it clear that they regarded the adoption of reliable
verification methods and procedures as central to agreement. This would
2 Supra, note 19, xix.
11 A more comprehensive definition is that suggested by the Stockholm International Peace
Research Institute [SIPRI]: “A process, specifically established or approved by a disarmament
agreement, carried out by individual state parties to the agreement, either reciprocally or not, or
by an international body established or empowered to carry out the process, by personnel or by
technical means, in order to determine the degree to which the parties to the agreement have
implemented its provisions and thereby observed or discharged their obligations under the
treaty.” SIPRI, Strategic Disarmament, Verification and National Security (1977) 13-4.
“Final Document, supra, note 3, paras 91 and 92.
1983]
SSOD II AND BEYOND
“compensate for a lack of trust in the Soviet Union and would promote the
public confidence and support necessary to sustain arms control efforts”27
Although not providing for on-site inspection, adequate verification has been
a key objective of SALT since the negotiations began in 1969 and is an
essential feature of SALT II. 2
8
The Soviet Union, for its part, traditionally has resisted proposals for
on-site inspection alleging that their primary purpose was either spying or an
attempt to frustrate the attainment of agreement. It has also contended recent-
ly, without elaboration, that no verification system is “legitimate” unless
based upon “such bedrock principles of international law, fixed in the UN
Charter, as sovereign equality and non-interference in the internal affairs of a
state”.129 As a result of the inability of the major military blocs to agree upon
mutually acceptable verification measures, negotiations on a comprehensive
nuclear test ban and on a chemical weapons convention, for example, have
suffered lengthy delays. Current negotiations on strategic and intermediate-
range nuclear weapons systems, as well as the proposal for a nuclear freeze, 30
if this should become the subject of negotiations, can for the same reason be
expected to experience comparable difficulties.
As already mentioned, the lack of a consensus on effective measures of
verification has delayed agreement on a comprehensive test ban for twenty
years. In the meantime, the superpowers have continued to test nuclear
weapons underground, which they are permitted to do under the 1963 Partial
Test Ban Treaty and the 1974 (unratified) bilateral Threshold Test Ban Treaty.
Yet the benefits of a comprehensive test ban agreement are self-evident: it
would significantly slow down the arms race and, at the same time, reduce the
temptation on the part of the non-nuclear-weapon states to “go nuclear”.
Moreover, a renunciation by the United States and the Soviet Union of further
‘”Einhom, Treaty Compliance (1982) 45 Foreign Policy 29, 30.
‘re United States Dep’t State, Verification of SALT II Agreement (Special Report No. 56;
August 1979). Both SALT I and II Agreements provide for verification of compliance only by
“national technical means”. ABM Treaty, supra, note 53, art. XII; Treaty on the Limitation of
Strategic Offensive Arms, supra, note 10, art. XV.
” Zheleznov, Monitoring Arms Limitation Measures [1982] Int’l Affairs [Moscow] 75, 77
(No.7).
‘Opponents of the freeze on the testing, production and deployment of nuclear weapons
stress the “enormously complicated problems of what is to be frozen, how it is to be achieved
and, most of all, verified”. Reagan’s Case Against the Freeze -In His Own Words, The New
York Times (25 April 1983) 19. Canada’s Ambassador for Disarmament, J. Alan Beesley, in
explaining his country’s opposition to freeze proposals, also emphasized unverifiability as their
“fundamental flaw”. XXXVII United Nations General Assembly: Little Real Dialogue, Dis-
armament Bull. 4 (February 1983) (a Canadian Dep’t of External Affairs publication). But see
Paine, Freeze Verification: time for a fresh approach (1983) 39 Bull. Atom. Scientists 6
(January); Carroll, A Freeze Can be Verified, The New York Times (3 June 1982) A 23.
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[Vol. 28
testing would re-invigorate the moribund Non-Proliferation Treaty by de-
monstrating a willingness on the part of the superpowers to carry out their
obligations under art. VI.
The urgent need for a comprehensive test ban has been pressed on many
occasions by the U.N. General Assembly, most recently in three resolutions
adopted in December 1982 by overwhelming majorities.”‘ Despite numerous
studies by governmental and private experts of many countries, all proving
that currently available means of monitoring are entirely adequate to the
task,’
the United States, supported by some of its allies, continues to claim
that satisfactory verification remains “a serious problem”.’33 Even the unex-
pected readiness of the U.S.S.R. to accept on its territory seismic monitoring
devices under international control,’ 34 and the assertion by some neutral states
that with the presently available means of detection “no verification by
inspection is needed for a credible comprehensive test ban”,’35 have failed to
enhance the prospects of an early agreement.
One suspects that factors unrelated to verification are the real reason for a
lack of progress toward a comprehensive test ban. The nuclear lobby, a highly
influential group traditionally opposed to any restrictions on nuclear testing,
claims that a complete ban on testing might result in a loss of confidence in the
reliability of the nuclear stockpile. 36 This, in turn, would create uncertainty as
to whether “weapons in the nuclear arsenal [could] still work after 10 or 20
years in the absence of a testing program”.'” If considerations of this kind
indeed guide the policies of nuclear weapons states, no system of verification,
no matter how fool-proof, can bring about a comprehensive test ban agree-
ment. It would therefore seem that only through an impartial assessment by an
“‘See Pace, U.N., in 3 Votes, Asks Ban on NuclearArms Tests, The New York Times (10
December 1982) A 7. See also Mathias, A callfor ratification (1983) 39 Bull. Atom. Scientists
3 (May) (the plea of a United States Senator).
“1 See, e.g., Sykes & Evermden, The Verification of a Comprehensive Nuclear Test Ban,
Sci. Am. (October 1982) 47, 47, who claim that “the technical capabilities needed to police a
comprehensive test ban down to explosions of very small size unquestionably exist; the issues
to be resolved are political”. The authors are eminent American geophysicists and experts on
distinguishing underground nuclear explosions from earthquakes. But see Miller, Debate,
supra, note 66.
‘3 Rostow, supra, note 22, 29-30.
“The Soviets, however, insist on the right to refuse on-site inspection should they feel that
it is not justified. In such a case, according to the Soviet proposal of February 1983, the issue
could be submitted to the Security Council. See Soviet Seeks Talks on New Arms Plan, The
New York Times (18 February 1983) A 13.
’33Myrdal, supra, note 19, 298-9.
16See Zimmerman, Quota Testing (1981) 44 Foreign Policy 82, 85.
’37Ibid.
1983]
SSOD II AND BEYOND
independent body can the world community learn whether these concerns are
justified or merely an excuse designed to prevent the ending of all nuclear
testing.
The unresolved issue of verification continues to hamper progress on the
convention banning the development, production and stockpiling of chemical
weapons. In contrast to the comprehensive test ban negotiations, this is one
area where the necessity for the adequate verification of compliance is seen by
all states as absolutely essential to the effectiveness of agreement. Quite apart
from the usual East-West dispute concerning the scope of verification, nego-
tiators are here facing some real difficulties in devising effective monitoring
procedures. They stem from the very nature of modern chemical munitions;
the same chemical substance can have civilian as well as military applications
(the so-called “dual-purpose” chemical agents), just as an industrial chemical
plant can manufacture chemicals for both civilian and military use. Still
further complicating the problem, is the existence of “binary” chemical
weapons consisting of two relatively innocuous components that become
highly toxic only when mixed together.’38
However, despite these admitted technical difficulties, the major hin-
drance to agreement so far has been and remains the seeming impossibility of
reconciling Western and Eastern perceptions of the scope of on-site inspec-
tion necessary for a viable accord. After prolonged resistance, the Soviet
Union has agreed in principle to accept “systematic on-the-spot checks, such
as on the basis of an agreed quota, as one measure of monitoring the
destruction of chemical weapons and the manufacture of highly toxic lethal
chemicals for allowed purposes”.’ 39 But when asked in the Committee on
Disarmament to elaborate, the Soviet delegation, in the words of the U.S.
representative, resorted to “equivocation and evasion”. 140 In presenting to the
Committee, on 10 February 1983, an outline of their own convention banning
chemical arms, the Americans again blamed the Soviet refusal to accept
international on-site inspection for the lack of progress on the treaty.’ 4 1 The
“‘See supra; note 31 and accompanying text.
‘”Tomilin, Curbing the Arms Race: The Key Problem of Our Time [1982] Int’l Affairs
[Moscow] 81, 88 (No. 11). The recent Soviet proposals are based upon a combination of
national and international means of control, according to Ambassador Petrovsky. The
U.S.S.R. “in principle.., would not rule out the possibility of creating international machinery
to verify the implementation of far-reaching [disarmament] steps.” Statement of Ambassador
Petrovsky to the 37th Session of the U.N. General Assembly in the First Committee, 4
November 1982, U.N. Doc. A/C.1/37/PV. 26, 32.
‘4Rostow, supra, note 22, 29-30.
“‘ U.S. Outlines Chemical-Arms Proposal, The New York Times (11 February 1983) A 3.
McGILL LAW JOURNAL
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new U.S. proposal is reported to provide, inter alia, for a systematic interna-
tional on-site inspection, not only of military chemical warfare facilities, but
also of a limited number of industrial “chemical plants that could be diverted
to military ends”. 42 At the same time, the American spokesman declared that
“an acceptable verification and compliance framework must first be negoti-
ated” before the text of the treaty is drafted. 4 Because the Soviet Union has
always insisted that agreement upon the specific measure of disarmament
should precede discussion upon, as well as determine the scope of, verifica-
tion, prospects for an early agreement seem worse today than they were
several years ago.
Recent charges leveled by the United States against the Soviet Union and
Vietnam, alleging violation of the Geneva Protocol of 1925 ‘ and the 1972
Biological Weapons Convention, 45 underscore again the desirability of hav-
ing an independent international authority free to conduct on-site inspections
to verify these and similar allegations. Although the U.S. claims to have
conclusive evidence to support its accusations, 46 a United Nations group of
experts convened to examine the incident submitted an inconclusive report. 47
The Soviet Union has not only denied the accusations, but has responded with
countercharges of its own. It has accused the U.S. of supplying “gangs of
interventionists in Afghanistan” with chemical weapons, of carrying out in
Pakistan experiments in biological warfare and of probable clandestine germ
142 bid.
I lbid.
“4Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other
Gases, and of Bacteriological Methods of Warfare, 17 June 1925, 26 U.S.T. 575, T.I.A.S.
8061,94 L.N.T.S. 65 [hereinafter Geneva GasProtocol]. The U.S.S.R. has been a party to the
Geneva Gas Protocol since 5 April 1928, and the U.S. since 10 April 1975. The Biological
Weapons Convention, supra, note 26, in its Preamble, reaffirms the adherence of the contract-
ing parties to “the principles and objectives” of the Protocol and calls upon states “to comply
strictly with them”.
I,51bid.
Bush, supra, note 30.
‘”President Reagan, in his speech to SSOD II, supra, note 104. See also Vice-President
147The U.N. team was unable to obtain permission to conduct on-site inspection. Only
through “timely access to the areas of alleged use”, the team reported, could it be established
whether poisonous substances had been employed. Nossiter, U.N. Team in Doubt on ‘Yellow
Rain’, The New York Times (24 November 1981) A 7. Because of the restrictions placed upon
the U.N. team’s access to the countries involved, and its “self-defeating standards of proof’,
the U.S. Government has reportedly decided to allow the mandate of the U.N. experts to
expire. Nossiter, U.S. Said to Give Up on a U.N. Inquiry, The New York Times (25 November
1982) A 17. The claims of the U.S. Government have been challenged recently by Harvard
Professor Matthew S. Meselson, a leading expert on toxic warfare. See Boffey, Source of
‘Yellow Rain’ Linked to Waste of Bees, The New York Times (1 June 1983) A 16.
19831
SSOD II AND BEYOND
warfare against the people and agriculture of Cuba.’4 8 Short of on-site inspec-
tion, these accusations too will remain unsubstantiated.
Additional evidence of contradictory claims, directly attributable to the
absence of appropriate verification procedures, can be found in charges that
the Soviet Union has violated both SALT agreements and its pledge of a
temporary moratorium on the deployment of the SS-20 missiles.’49 An Amer-
ican publication, with close ties to the Administration, has accused the
U.S.S.R. of developing four new ICBMs and testing two of them, although
only one new missile of this type is allowed under the SALT II agreement. 50
Moreover, it is claimed, “these tests involve such flagrant violations of
SALT’s prohibition against encryption, meaning the concealment of teleme-
tered test data on which the US depends for assessing the performance of the
missile and hence Soviet compliance with the terms of SALT II, that even
staunch US SALT supporters [unidentified in the report] believe the USSR
has scuttled this accord’.’ Although not formally made, these accusations
are extremely serious, especially because they were subsequently repeated, in
considerable detail, on the Senate floor.’52 Even if proven groundless, they
cannot fail to undermine still further what little is left of the mutual trust
“4 Fyodorov, To Ban Chemical Weapons [1982] Int’l Affairs [Moscow] 77, 82 (No. 8). See
also Chernikov, The Pentagon’s Chemical Weapons [1983] Int’l Affairs [Moscow] 96 (No. 2).
49See supra, text accompanying notes 102 and 103.
I”0Ulsamer, Will Economic Weakness Increase Soviet Militancy?, Air Force Magazine
1
(March 1983) 40, 40.
“‘Ibid. [emphasis added]. For a comprehensive analysis of Soviet compliance with the
SALT I treaties, see Levitt, Problems in the Verification andEnforcement ofSALTAgreements
in Light of the Record of Soviet Compliance With SALT I (1981) 22 Harv. Int’l L.J. 379. See
also Einhorn, supra, note 127.
‘Senator James A. McClure, Republican from Idaho, in an “extremely detailed and
carefully prepared speech” charged the Soviet Union of many “militarily significant violations
or circumventions” of SALT agreements. He and other conservative Senators were “consider-
ing a resolution calling for an end to American compliance with the strategic arms treaty”.
Smith, Panel Tells Reagan the Russians Seem to Have Broken Arms Pact, The New York
Times (21 April 1983) A 1, A 15. A few days earlier, the Senator is reported to have said: ‘To
save his defense budget and undercut the nuclear freeze movement, President Reagan soon will
have to accuse the Soviets publicly of violating arms control agreements with the United
States”. Wilson, Reagan Reportedly Ready to Accuse Soviets, The Washington Post (16 April
1983) A 13. At his press, conference of 15 May 1983, President Reagan gave additional
credence to accusations of Soviet violations by stating: “[W]e have a very great suspicion
but.., you can’t go to court without a case and without the solid evidence; and it’s just too
difficult and we don’t have that.” Reported in President’s News Conference on Foreign and
Domestic Matters, The New York Times (18 May 1983) A 20. See also Smith, U.S. Sees New
Soviet Arms Violation, The New York Times (12 May 1983) B 9 (U.S. seeking explanations
from the U.S.S.R. through “private” diplomatic approaches).
Under the provisions of the SALT I Agreement, a Standing Consultative Commission was
set up on 21 December 1972, specifically for the purpose of verifying Treaty compliance by
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[Vol. 28
between the two superpowers. Such accusations also indicate the need to
complement verification based exclusively on “national technical means”
with a more reliable method of monitoring.
C.
A Plea for an Independent Assessment of Conflicting Claims
The protracted controversies outlined above, especially those involving
“parity” of force levels and verification requirements, point clearly to the
urgent need for an alternative to what has been for too long a two-power
dialogue about matters of vital concern to all nations. The negotiating posi-
tions of the superpowers are so far apart as to seem irreconcilable. Their
assessment of each other’s strengths and weaknesses is so much at variance
even when facts are relatively easy to ascertain, that it suggests both a lack of
serious commitment to end the arms race and scant regard for the intelligence
of the public. One way of securing more reliable information on these issues
of overriding importance could be the establishment at an early date of an
autonomous international group, unaffiliated with the U.N., composed of
highly respected individuals acting on behalf of the world community, as an
impartial and informal arbiter of conflicting claims and counterclaims relating
to the control of armaments [hereinafter the “Group”]. More specifically, the
principal function of the Group would be to provide, whenever possible, an
independent evaluation of various disarmament proposals, including an
assessment of the factual bases for claims relating to “balanced” force reduc-
tion, and a judgment on the fairness and effectiveness of the various verifica-
tion schemes advanced by the participants in disarmament negotiations.
Because the composition and the might of the military arsenals of most
countries, including those of the superpowers and their allies, is by-and-large
a matter of public knowledge, especially their strategic weapons component,
the proposed Group should have no great difficulty in making a reasonably
accurate appraisal of comparative military strength, even without the coop-
eration of the major powers. The Group could thus fulfill the highly important
function of providing the world community with information that would
reflect reality more accurately than the biased and self-serving information
that so often emanates from the parties to disarmament negotiations. Such an
both sides. In Arms Control and Disarmament Agreements, supra, note 10, 138, it is reported
that during the past decade, both the U.S. and the U.S.S.R. “have raised a number of questions
in the Commission”. In every case “raised by the United States, the Soviet activity in question
has either ceased or additional information has allayed U.S. concern”. See also Cahn &
Leonard, Don’t Accuse Moscow, The New York Times (26 April 1983) A 23.
1983]
SSOD II AND BEYOND
independent body might also be employed, upon invitation by the states
concerned, in a fact-finding capacity to conduct on-site inspections for the
purpose of investigating allegations of disarmament treaty violations. It is not
inconceivable that states would be more forthcoming in allowing access to
their territory to a non-governmental inspection team, consisting of highly
respected private individuals, than to officials of governments, or even of the
U.N. Secretariat.
The composition of the Group would obviously be of the utmost impor-
tance; it would largely determine its credibility and public acceptance. Mem-
bers should be recruited from the ranks of the most highly qualified technical
experts (scientists, engineers and retired military), former high government
officials, especially those with experience in disarmament negotiations and
foreign affairs, prominent public figures (such as religious leaders and Nobel
Peace Prize laureates), and eminent jurists. To assure expeditious function-
ing, membership in the Group should be limited to a maximum of twenty-
five. Ideally, all nuclear-weapon states should have at least one of their
nationals in the Group, but that should by no means be the criterion for
appointment. Rather, the overriding considerations should be the proven
commitment of the candidate to the cause of arms reduction and a high level of
competence and integrity. Because the Group is envisaged as an informal
body, there is no reason for preventing more than one national of the same
state from serving on it, provided that the multinational character of the
membership is preserved.
No less important than the composition of the Group would be the
question who should make the appointments. Whoever undertakes the task
should enjoy a reputation for integrity, possess broad experience in interna-
tional affairs and be known for his dedication to the achievement of the goals
enunciated in the Final Document of SSOD I. The only person equal to or
close to satisfying these criteria is the Secretary-General of the United Na-
tions. However, it is doubtful that, under the literal interpretation of the
Charter, he could, on his own initiative, and acting in his formal capacity,
create such a group. Only the General Assembly, it -would seem, could
empower the Secretary-General, by way of a resolution, to establish such a
group for the purpose of advising him on disarmament matters.” 3 That
approach was taken by India and Mexico at SSOD II when they co-sponsored
a draft resolution requesting the Secretary-General “to appoint a representa-
tive group of public persons of great eminence” to act as his advisers “on
special measures and procedures – practical, political and legal – designed
“‘ United Nations Charter, arts 10, 11, 13, and 14.
McGILL LAW JOURNAL
[Vol. 28
for the collective control, management and resolution of critical confronta-
tional situations which could escalate to nuclear war”.’1 4
A potentially fatal flaw in this proposal is that it would establish aformal
link between the Group and the United Nations. That link would deprive the
Group of its political and financial independence and would make it merely
another U.N. “group of experts” preparing studies that, regardless of their
excellence, find few readers. Another possible way of using the services of
the Secretary-General would be for him to make the appointments in his
private capacity. However, unless assured of support by all the permanent
members of the Security Council, which is most unlikely, such an undertak-
ing would be politically very hazardous. Although the Secretary-General
would be the ideal choice for selecting the members of the Group, the
initiative should not be abandoned because of his inability or unwillingness to
act. The obvious alternative is to have the governments of a few interested
pro-disarmament neutral states undertake the task of setting up such a group.
These and other states supportive of the idea should also assume the financing
of the Group, not a heavy burden considering the limited scope of the Group’s
mission and its small membership. But individual remuneration should be
high, given the extremely high responsibility of each member. It hardly needs
to be emphasized that, once set up, the Group should have complete inde-
pendence for the duration of its mandate and should be answerable to no one
except its collective conscience.
If established, the Group could well produce the following benefits: first
and foremost, it would assure the wide dissemination of reliable and objective
information on the vital issues of the arms race and disarmament; second, its
reports would almost certainly generatpowerful public and moral pressure in
favour of arms reduction on the governing elites of the major powers,
especially because these reports could not easily be dismissed as “propagan-
da”; third, it might cause the process of negotiating arms reduction agree-
ments to be accelerated; and, fourth, it would provide invaluable experience
for an international disarmament agency, a step that must be taken in the
future.
Concluding Document, supra, note 3, 11. A similar proposal was made at SSOD II by
France. It called for the establishment of a “Universal Conscience Council” to provide “general
information on the various aspects of the problems relating to disarmament and arms control”.
Appointed by the U.N. Secretary-General, the Council would consist of eminent persons of
science, culture, philosophy, and principal religions, as well as former heads of state or
government no longer active in national politics. Jack, Machinery – and Conscience, Dis-
armament Times (2 July 1982) 4.
1983]
SSOD II AND BEYOND
M. Prevention of Nuclear War: The Overriding Moral and Legal
Obligation
The issue of nuclear weapons has been on the priority agenda of the
United Nations since the very beginning of the Organization. The General
Assembly, in its first resolution, adopted on 24 January 1946, set up an
Atomic Energy Commission and charged it with the task of preparing specific
proposals for the “elimination from national armaments of atomic weapons
and of all other major weapons adaptable to mass destruction”. 155 The question
of the legality of nuclear weapons, however, was not central to the work of
this United Nations body; its main objective was to prevent the spread of these
weapons by the establishment of an international authority to control all uses
of atomic energy. After three years of unproductive debates, the Commission
ceased to function in July 1949 and never met again. 15 6 By that time, the Soviet
Union had succeeded in developing its own nuclear weapon and was soon
engaged with the United States in what came to be known as the nuclear arms
race. “‘
Alarmed by the frequency of nuclear weapon tests and by the growth of
nuclear weapon arsenals, and seeing no prospect of an early arms limitation
agreement by the major powers, the U.N. General Assembly on 24 November
1961, issued an historic declaration. In Resolution 1653 it declared that “the
use of nuclear and thermo-nuclear weapons is contrary to the spirit, letter and
aims of the United Nations and, as such, a direct violation of the .Charter” as
well as “a crime against mankind and civilization”. 158 Without explicitly
stating so, that declaration appears consistent with the Charter and the
Judgment of the (Nuremberg) International Military Tribunal. 5 9
The threat to mankind posed by the nuclear weapons race was also of
great concern to the participants at the United Nations environment confer-
ence held in Stockholm in 1972. The Stockholm Declaration on the Human
Environment, adopted unanimously at the conference, reflects this concern in
Principle 26: “Man and his environment must be spared the effects of nuclear
“I Text in United Nations, The United Nations and Disarmament 1945-1970 (1970) 11-2.
‘ ibid., 23.
‘”For an excellent account of early efforts to control atomic weapons and the reasons why
they failed, see G. Herken, The Winning Weapon [:] The Atomic Bomb in the Cold War
1945-1950 (1980).
“‘Declaration on the Prohibition of the Use of Nuclear and Thermo-nuclear Weapons,
United Nations G.A. Res. 1653, 16 U.N. GAOR, Supp. (No. 17) 4, U.N. Doc. A/5100
(1961).
119 The Charter and Judgment of the Nuremberg Tribunal – History and Analysis, U.N.
Doc. A/CN.4/5 (1949); Judgment of the International Military Tribunal at Nuremberg,
reprinted in (1947) 41 Am. J. Int’l L. 172.
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weapons and all other means of mass destruction. States must strive to reach
prompt agreement… on the elimination and complete destruction of such
weapons.” ‘0
In recent years especially, with nuclear war no longer perceived as a
remote possibility, the General Assembly has stepped up its condemnation of
nuclear weapons and strategies contemplating their use. The issue of the
nuclear arms race was, predictably, the dominant concern of SSOD I: The
participating states saw the elimination of “the threat of a world war –
a
nuclear war” as “the most acute and urgent task of the present day”. 6’ In the
four years between the First and Second Special Sessions of the General
Assembly, the sense of urgency rose to a new height, as expressed in the
Concluding Document of SSOD II: “Taking into account the aggravation of
the international situation and being gravely concerned about the continuing
arms race, particularly in its nuclear aspect, the General Assembly expresses
its profound preoccupation over the danger of war, in particular nuclear war,
the prevention of which remains the most acute and urgent task of the present
day.” 162
The explanation for the worldwide alarm is simple. One need not be an
expert to realize that there is a vast qualitative difference between nuclear war
and any other war ever fought in the long history of warfare. According to all
reliable estimates, a nuclear war involving the two superpowers would cause
instant devastation of unprecedented magnitude, with potentially incalculable
long-term ecological consequences for the entire planet. For the first time in
modem history, a war would be directed not only, or even primarily, against
the military, administrative and industrial targets of the adversary, but against
its large population centres. Its purpose and likely effect would be not merely
to disarm and compel surrender of the adversary, but rather to end it as a
functioning society. That is the meaning, not only of the doctrine of “Mutual
Assured Destruction” [MAD], which has for some fifteen years dominated
the strategic thiriking of the United States and the Soviet Union, but also of its
more recent variations. 63 In the apt observation of Lord Solly Zuckerman,
“‘Stockholm Declaration of the United Nations Conference on the Human Environment, in
Report of the United Nations Conference on the Human Environment, U.N. Doc. A/
CONF. 48/14, and Corr. 1, reprinted in (1972) 11 I.L.M. 1416.
W Final Document, supra, note 3, para. 18.
“‘Concluding Document, supra, note 3, para. 62. The same concerns were reiterated in
several resolutions adopted by the General Assembly at its 37th Session. See Review of the
Implementation of the Recommendations andDecisions adopted by the GeneralAssembly at its
Tenth Special Session, U.N. Doc. A/RES/37/78 (1983) [hereinafter Review].
“‘6 For an eminently readable account of the evolution of U.S. nuclear strategy from 1945 to
the present, including nuclear targeting, see Powers, Choosing a Strategy for World War 1II,
19831
SSOD II AND BEYOND
nuclear war is “a way of erasing in a flash centuries of human achievement”.'”
This apocalyptic assessment of the probable consequences of an all-out
nuclear war between the superpowers is shared universally, even by the
majority of those professionally concerned with the planning of nuclear
strategy.
At least partly in response to the sense of impotence created by the
paradox of possessing immensely powerful instruments of mass destruction
which are of negligible war-fighting utility except as tools of national suicide,
a new doctrine for the employment of nuclear weapons in war has emerged in
recent years –
the doctrine of a “limited”, “controlled” or “protracted”
nuclear conflict.’6 It envisages the use of nuclear weapons in different types
of hostilities, not only in retaliation against a nuclear attack. Apart from its
highly dubious and unprovable military value, the doctrine presupposes a
readiness and ability on the part of the opponent to act rationally in conditions
of supreme stress and to admit defeat if it wishes to avoid total destruction.
While the details of this strategy are kept secret, in at least -one published
scenario for a “limited” war, after a gradual escalation culminating in the
nuclear obliteration of Minsk and Birmingham, the Soviet Union is forced to
surrender and in consequence disintegates of its own internal weaknesses. 66
The Atlantic Monthly [Magazine] (November 1982) 82. U.S. Administration officials admit-
ted to the American Roman Catholic bishops that “even with [nuclear] attacks limited to
‘military’ targets, the number of deaths in a substantial exchange would be almost indistin-
guishable from what might occur if civilian centers had been deliberately struck.” The Pastoral
Letter, supra, note 77.
“64Nuclear Sense and Nonsense, The New York Rev. Books (16 December 1982) 19, 26.
For a comprehensive, well-reasoned and humane assessment of the nuclear peril, see J. Schell,
The Fate of the Earth (1982).
“1’See Burt, CarterSaid to Back a PlanforLimitingAnyNuclear War, The New York Times
(6 August 1980) 1; Powers, supra, note 163; Paine, supra, note 44; Arkin & Pringle, C 31:
Command Post For Armageddon, The Nation [Magazine] (9 April 1983) 434; Halloran,
Weinberger Confirms New Strategy on Atom War, The New York Times (4 June 1982) A 10;
Halloran, New WeinbergerDirective Refines Military Policy, The New York Times (22 March
1983) A 18 (explicit references to the objective of “prevailing” in a “protracted” nuclear war
had been eliminated in this new “Defense Guidance” directive, but the policy remains the
same); Rostow, supra, note 89, 18. (“While we in the West have been primarily concerned
with deterring both conventional and nuclear attacks, Soviet doctrine and forces emphasize the
ability to fight and win a nuclear war.”) The updated version of SovietMilitary Power (1983), a
U.S. Defense Department publication, claims that Soviet military doctrine contemplates both a
“pre-emptive strike” and “protracted nuclear war-fighting, along with civil defense measures”.
Summarized in Ulsamer, Soviet Military Power, Air Force Magazine (May 1983) 46. But see
Simes, Deterrence and Coercion in Soviet Policy (1980-81) 5 Int’l Security 80 (No. 3).
166 J. Hackett, et al., The Third World War: August 1985 (1979). Sir John Hackett is former
Deputy Chief of the British General Staff and Commander of the Northern Army Group in
NATO. In both capacities he had nuclear forces under his command. In 1982, Sir John
published a sequel to his 1979 bestseller, entitled The Third World War: The Untold Story. In
McGILL LAW JOURNAL
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The message is fairly clear: limited nuclear war is feasible and winnable at a
relatively modest cost (from the scenario writers’ perspectives) when com-
pared to the end result.
Discussion of this doctrine provides an opportunity to highlight another
salient and unprecedented aspect of nuclear weapons –
the enormous fear
that no other instrument of warfare has ever been able to generate. One must
assume that the launching of a nuclear weapon, even against a military target,
would signal the breach of the psychological divide between nuclear warfare
and conventional warfare. The resulting hatred of the enemy and demands for
instant retribution in kind might well be uncontrollable. The urge to unleash
on the enemy the entire available nuclear arsenal would be overwhelming,
even if it meant the destruction of one’s own society. The same uncontrollable
emotions would be even greater if the target of the initial nuclear attack were a
major population centre. It is most improbable that the launching of even a
single medium-size nuclear weapon would fail to escalate immediately into
an all-out nuclear exchange.
What compounds immeasurably the threat of holocaust is the availability
of diverse, extremely swift means of delivering nuclear weapons on target.
“Strategic” weapons systems, such as the intercontinental ballistic missile
[ICBM], require a maximum of only thirty-five minutes after launching to
strike a target thousands of miles away; the so-called “theatre” intermediate
range missiles (the Soviet SS-20 and the U.S. Pershing II) can reach their
destination in Western Europe or the European part of the U.S.S.R. in a mere
four to ten minutes. It is this characteristic of modern nuclear-tipped missiles,
leaving no time for hesitation or calm appraisal, that may make it almost
imperative to “launch on warning” (rather than “launch on attack”), the
moment the defence surveillance system signals the approach of hostile
missiles. In view of the near-total mistrust of the adversary prevailing current-
ly in East-West relations, it would be both irresponsible and extremely naive
to expect coherent action from a government in emergency session, especially
one that believes itself to be under imminent threat of nuclear attack and
destruction. In contrast to all past conflicts, there would probably be no
opportunity for a negotiated cease fire, or even an offer of total surrender.
Finally, developments in nuclear weapons, long-range ballistic missiles
and naval technology have combined to create the nuclear-powered and
nuclear-armed submarine, a unique instrument of mass destruction. Today,
Time Magazine’s restrained review, the General’s new message is summed up as follows:
“[C]ivilian blathering about disarmament is infantile, and the West’s only hope is to trust its
stalwart military men and give them whatever costly whizbangs they ask for.” Skow, SADARM
to the Recovery, Time [Magazine] (13 September 1982) 96.
1983]
SSOD II AND BEYOND
both superpowers possess a large number of such submarines, each capable of
delivering a devastating blow against the homeland of the adversary. 67 A
single nuclear-armed submarine can destroy 160 cities and cause millions of
casualties, possibly terminating the target state as a functioning society.
Hence, no matter how advanced its defences and regardless of its overall
military superiority, no nation or alliance can rationally expect, even by
launching a pre-emptive attack, that all enemy submarines will be detected
and prevented from firing their nuclear warheads before being destroyed. It
is, therefore, difficult to disagree with Lord Zuckerman when he says that
“[o]nly desk warriors who have never seen action, only computer specialists
who can trade the deaths of millions in war games between the NATO and
Warsaw Pact powers, can devise the world of fantasy where nuclear weapons
have a role in active warfare, as opposed to being weapons which, because of
their limitless and suicidal destructive power, deter states with nuclear
weapons from taking military action against each other”.’
There are, however, influential people who do not share Lord Zucker-
man’s fears and who argue that even an all-out nuclear war is “survivable” and
therefore “winnable”. What is neededto “prevail”, in their opinion, is more
nuclear weapons, an ABM system to protect at least the more important of
these weapons and an appropriate civil defence. 9 Essentially the same view,
267According to the International Institute for Strategic Studies, the United States has
thirty-two such submarines and the Soviet Union at least sixty-two. See supra, note 41,64 and
68.
” Supra, note 164, 24. The Earl Mountbatten of Burma, former Chief of the British Defence
Staff, was equally explicit: “I repeat in all sincerity that as a military man I can see no use for
any nuclear weapons which would not end in escalation, with consequences -that no one can
conceive… [T]he nuclear arms race has no military purpose. Wars cannot be fought with
nuclear weapons. Their existence only adds to our perils because of the illusions which they
generate.” Perspective (1979) 35 Bull. Atom. Scientists 1 (October). No less firm in his
rejection of nuclear weapons as an instrument of warfare is Admiral Noel Gayler, ret., former
Director of the National Security Agency and former Commander-in-Chief of U.S. forces in
the Pacific: “[There is no sensible military use for any of the three categories of nuclear
weapons” [strategic, theatre or tactical]. How to Break the Momentum of the Arms Race, The
New York Times Magazine (25 April 1982) 48. See also, e.g., Bundy, Kennan, McNamara &
Smith, Nuclear Weapons and the Atlantic Alliance (1982) 60 Foreign Affairs 753. These
former high U.S. Government officials write: “Given the appalling consequences of even the
most limited use of nuclear weapons and the total impossibility for both sides of any guarantee
against unlimited escalation, there must be the gravest doubt about the wisdom of a policy
which asserts the effectiveness of any first use of nuclear weapons by either side.” American
Roman Catholic bishops state emphatically in their Pastoral Letter, supra, note 77, that
“[t]here should be a clear public resistance to the rhetoric of ‘winnable’ nuclear wars or
unrealistic expectations of ‘surviving’ nuclear exchanges and strategies of ‘protracted nuclear
war’.
“1See, e.g., Gray, Superiority, supra, note 113; Gray, Issues, supra, note 113. See also
sources cited supra, note 165.
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admits one of its proponents –
although seemingly more restrained, is advanced in the guise of agnosticism.
It is “conceivable” –
that a nuclear war might
threaten the survival of mankind, “but we have no evidence to that effect”. ’70
And since “studies show that civil defense measures could save tens of
millions of lives” (in America), contrary to the “uncritical acceptance of many
currently popular… but largely emotional arguments”, the United States
should continue developing its nuclear “war fighting doctrines and enhanced
strategic defenses”. 7′ Although the advocates of these strategic doctrines
presumably envisage “victory” as resulting from a massive surprise attack on
the adversary, even they concede that the price of prevailing would be
extremely high – millions of dead and injured on the “victor’s” side.’
What nuclear war-fighting strategies fail to take into proper account,
however, are the many unknown factors which could alter significantly the
desired outcome. Nuclear weapons have so far been used only twice, on both
occasions against a virtually defenceless enemy. Yet Hiroshima and Nagasaki
have shown the magnitude of devastation that can be caused by only two
atomic bombs with an aggregate power of thirty kilotons. The inventories of
the two superpowers contain today some 15,000 to 18,000 strategic nuclear
warheads, whose explosive force measures thousands of megatons, in addi-
tion to at least 30,000 intermediate and tactical nuclear weapons.’73 It bears
17 ‘Kahn, Bishops And The Bomb, The New York Times (9 December 1982) A 27.
“‘Ibid. See also H. Kahn, Thinking About the Unthinkable (1962) 81-100.
“12With “nation-wide civil defense, plus some ballistic missile and air defense, the United
States could very well insure the possibility of 200 million American survivors”. Absent such
defences, “the casualty rate could easily be 100 million”. Gray, Issues, supra, note 113,49. An
estimate drawing upon official U.S. documentation suggests that the probable consequences
for the U.S. of a “limited” nuclear war with the Soviet Union, with both sides striking only at
each other’s ICBM bases, would be enormous. In the first thirty days, fatalities would range
from two million to twenty million; agricultural resources would suffer “staggering losses”;
effects on the ecosystem would linger for decades; and “even in the unaffected states and cities,
survivors might lose all trust in authority and legal and financial systems”. Soviet casualties in
such an exchange would range from four million to twenty-eight million, according to this
conservative estimate. Scenario for a Limited War, Newsweek [Magazine] (5 October 1981)
36-7. A nuclear war would be particularly devastating to the life-sustaining environment.
“[Elven a limited nuclear war”, wrote two American professors, “using some 2,000 to 3,000
megatons for an attack on military targets, is likely to result in an irreversible lowering of the
earth’s climate [sic], accompanied by a reduction in rainfall in the mid-latitudes. That would
destroy the wheat-producing areas of North and South America, Europe, Russia and China,
areas on which the world’s population depends for survival.” Stemglass & Land, letter to the
editor, The New York Times (18 May 1983) A 26. For an estimate of the possible effects upon
Canada of a nuclear war, see Bates, Briskin, et al., “What Would Happen to Canada in a
Nuclear War?” in E. Regher& S. Rosenblum, eds, Canada and the NuclearArmsRace (1983).
173 Estimates of the total number of nuclear weapons in the arsenals of states vary between
50,000 and 70,000. See, e.g., Bamaby, War-fighting weapons for Europe (1980) 36 Bull.
Atom. Scientists 8, 10 (March) (by the former Director of SIPRI); Carver, No first use: a view
1983]
SSOD II AND BEYOND
repeated emphasis that doctrines espousing a “winnable”, “limited” or “pro-
tracted” nuclear war are based entirely on computer simulations for there is
only minimal empirical knowledge available. In such circumstances, the
possibility of gross miscalculation, even in regard to the performance of one’s
own forces, is so great and the penalty for error so cataclysmic, that only a
reckless gambler could find the odds acceptable. 74 As Lewis Mumford put it,
the consequences of misjudgment would be “irretrievable”; they would admit
“no belated confession of error, no repentance and absolution”.175 With no
possibility of correcting the initial error once the first nuclear shot is fired, the
necessity of preventing the use of nuclear weapons of any calibre and in any
circumstances is as imperative as it is self-evident. Regrettably, this view was
not shared by all states attending SSOD II and as a result, the conference was
unable to agree on a text designed to prevent the outbreak of nuclear war. 76
But an argument can be made that current nuclear war-fighting strategies
contravene both the norms of general international law and bilateral undertak-
ings of the superpowers as well.
The lessons of the Nuremberg trials seem to be pertinent in this context.
Article 6 of the Charter of the International Military Tribunal included
among war crimes “wanton destruction of cities, towns or villages or devasta-
tion not justified by military necessity”, and among crimes against humanity
“extermination… and other inhumane acts committed against any civilian
from Europe (1983) 39 Bull. Atom. Scientists 22 (March) (Field Marshal Lord Michael Carver
was Chief of the Defence Staff of the United Kingdom from 1973-76). NATO powers and the
Soviet Union are believed to have in Europe about 6,000 tactical nuclear weapons each. See
chart in The New York Times (28 May 1983) A 17. An informed official of the U.S.
Government has placed the number of nuclear warheads in the American arsenal at over
35,000. Reported in Day, The Numbers Game, The Progressive [Magazine] (February 1982)
24.
4 Steinbrunner, Nuclear Decapitation (1981) 45 Foreign Policy 16, 23, warns that “under
conditions of intense crisis, the existing U.S. command system is subject to strains powerful
enough to trigger an unintended war”. Despite great advances in modem technology, neither
superpower, notes this author, at 24-5, is “immune to the confusion, miscalculation, failure of
coordination, and unintended consequences historically associated with military forces in crisis
and war. Given their inherent vulnerability, they may in fact be more prone to such occurr-
ences.”
“75”The Morals of Extermination” in S. Melman, ed., No Place to Hide [:] Fact andfiction
about fallout shelters (1962) 193, 203.
176 However, at its 37th Session, the U.N. General Assembly adopted, with large majorities,
several resolutions condemning the “new doctrine of limited or partial use of nuclear weapons”
and the “concept of a protracted nuclear war” and pointedly reminded the Soviet Union and the
United States that they should “bear constantly in mind that not only their national interests but
also the vital interests of all the peoples of the world are at stake in this question”. Review,
supra, note 162.
McGILL LAW JOURNAL
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population”.’77 Conspiracy to commit these crimes –
e.g., “planning, prepa-
ration…of… a war in violation of international treaties, agreements or
assurances” – was also held to be a punishable offence. 7
In The Justice
Case, one of the Nuremberg trials conducted under the authority of the Allied
Control Council, the Tribunal cited genocide as “the prime illustration of a
crime against humanity under C.C.Law 10, which by reason of its magnitude
and its international repercussions has been recognized as a violation of
common international law”. ‘ 79 The Convention on the Prevention and Punish-
ment of the Crime of Genocide, ratified by all the present nuclear powers,
enunciates in its Preamble that “genocide is a crime under international law,
contrary to the spirit and aims of the United Nations and condemned by the
civilized world”.’ 80
Because genocide is, according to these authoritative sources, a most
serious crime under the law of nations, planning the use of nuclear weapons
which could result in the annihilation of millions of human beings, even in the
destruction of whole societies, and which could cause unprecedented ecolog-
ical catastrophe as well, must be viewed as being opposed fundamentally to
the raison d’etre of international law. Yet inflicting upon the adversary
intolerable losses, and, if necessary or possible, ending it as a “functioning
society”, is routinely publicized as the objective of nuclear war targeting. It is
difficult to escape the conclusion that planning the use of nuclear weapons, at
least against population centres, is not only contrary to the elementary
standards of morality, accepted by all societies and religions, 8′ but also a
grave offence against a peremptory norm of international law.
‘”Supra, note 159.
“‘Ibid., art. 6(a).
79The Justice Case is excerpted in L. Henkin, R. Pugh, 0. Schachter & H. Smit, eds,
International Law [:] Cases and Materials (1980) 248, 251.
10 Convention on the Prevention andPunishment of the Crime of Genocide 78 U.N.T.S. 227
(adopted by the U.N. General Assembly 9 December 1948; entered into force 12 January
1951).
” The Pastoral Letter, supra, note 77, of the U.S. Roman Catholic bishops is quite explicit:
“A justifiable use of force must be both discriminatory and proportionate. Certain aspects of
both U.S. and Soviet strategies fail both tests”; “Underno circumstances may nuclear weapons
or other instruments of mass slaughter be used for the purpose of dertroying population
centers”; “We do not perceive any situation in which the deliberate initiation of nuclear
warfare, on however restricted a scale, can be morally justified”; “It would be a perverted
political policy or moral casuistry which tried to justify using a weapon which ‘indirectly’ or
‘unintentionally’ killed a million of innocent people because they happened to live near a
‘militarily significant target’ “. See also excerpts inBishopsEndorse Stand Opposed to Nuclear
War, The New York Times (4 May 1983) A 1: “In simple terms, we are saying that good ends,
defending one’s country, protecting freedom, etc., cannot justify immoral means, the use of
weapons which kill indiscriminately and threaten whole societies.” See also Margolick, Law
Panel Sees Atom Arms as Illegal, The New York Times (7 June 1982) B 2.
19831
SSOD II AND BEYOND
The nuclear arms race and nuclear war-fighting strategies also contradict
the primary objective of the SALT process, namely the prevention of war,
especially nuclear war, between the United States and the U.S.S.R. To help
achieve this objective, the two countries concluded on 22 June 1973 an
agreement on the Prevention of Nuclear War.82 While not specifically an
arms limitation compact, the Treaty was intended to affect and alter the
military policies and strategies of the parties. The two countries, “[c]onscious
that nuclear war would have devastating consequences for mankind” and
aware of “their obligations under the Charter”, agreed to make “an objective
of their policies” the removal of the danger of nuclear war and the use of
nuclear weapons, and to “act in such a manner as to prevent the development
of situations capable of causing a dangerous exacerbation of their relations,
… [and] to avoid military confrontations”.183
In the Threshold Test Ban Treaty, the U.S. and the U.S.S.R. not only
expressed their “determination” to seek a ban on “all test explosions of
nuclear weapons for all time”, but also declared “their intention to achieve at
the earliest possible date the cessation of the nuclear arms race and to take
effective measures toward reductions in strategic arms [and] nuclear
disarmament”.11 Essentially the same ideas guided the two parties in the
conclusion of the Treaty on the Limitation of Strategic Offensive Arms [SALT
“Mindful of their obligations under Article VI of the [1968] Treaty on
II].
the Non-Proliferation of Nuclear Weapons”, the signatories undertook to
“limit strategic offensive arms quantitatively and qualitatively, [and] to exer-
cise restraint in the development of new types of strategic offensive arms” .86
When these formal pledges, and comparable but less formal undertak-
ings given at various times by the leading world powers, are measured against
performance, one is left to wonder about the continuing viability of the
fundamental principle of the law of treaties – pacta sunt servanda.87 Scant
regard by the two superpowers for their obligations in the context of bilateral
arms limitation agreements cannot but produce an adverse effect upon treaty
compliance by other states, and thus undermine confidence in the sanctity of
treaty obligations, regardless of the nature of the undertaking.
‘- 24 U.S.T. 1479, T.I.A.S. 7654, reprinted in (1973) 12 I.L.M. 896 (signed 22 June 1973;
entered into force 22 June 1973).
113Ibid., Preamble and art. I.
‘”Supra, note 63, Preamble.
‘ISupra, note 10.
1’Ibid.,
‘IThe Vienna Convention on the Law of Treaties, U.N. Doc. A/CONF. 39/27,289 (1969),
reprinted in (1969) 8 I.L.M. 679, merely reaffirms an old principle-of customary law when it
declares: “Every treaty in force is binding upon the parties to it and must be performed by them
ingood faith.”
Preamble and art. I.
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Viewed from contemporary perspectives there is an air of unreality in the
continuing efforts, dating back to the nineteenth century, to draft treaties for
the purpose of protecting civilians and combatants from the excessive suffer-
ing that would be caused by particularly “inhumane” weapons. In pursuit of
this goal, states have at different times agreed to prohibit, for example, the use
of expanding bullets,188 poison gas and booby-traps,’89 and are now negotiat-
ing a ban on radiological and chemical weapons. Furthermore, shortly after
the end of World War II, genocide was unanimously declared to be the gravest
crime against humanity and international law. Yet nuclear weapons, which
are incomparably more destructive, which can in an instant obliterate a large
city, which kill more indiscriminately than any other weapon, and which can
cause prolonged suffering for the surviving victims and possibly irreversible
ecological damage, apparently remain beyond the explicit sanction of interna-
tional law. Thus the “dum-dum” bullet is outlawed for being an excessively
inhumane instrument of combat, but not a twenty-megaton nuclear weapon
that can cause in an instant several million civilian casualties. Surely these
obvious contradictions merit at the very least a more searching inquiry by
governments and by international jurists than they have received to date.
As any reasonably well informed and realistic observer of the world
scene knows, the total elimination of nuclear weapons from national
armouries lies in the distant future. Proposals occasionally advanced by the
British Labour Party for unilateral nuclear disarmament by Great Britain,
even if implemented some day, would be unlikely to find followers among the
other major powers. One cannot seriously expect either of the superpowers,
or China, to divest themselves in the near future of all nuclear weapons, which
they have come to regard as their principal instrument of deterrence and
self-defence. The universal renunciation and destruction of nuclear weapons
appears feasible only as the last phase in a process of “general and complete
disarmament”. Indeed, a convincing argument can be made in support of
these countries retaining for quite some fime a portion of their nuclear
armaments as a means of preventing a major war or a world war. A sense of
realism, therefore, dictates the adoption of a seemingly paradoxical position:
While condemning the planning for, and the mere threat of, the use of nuclear
“s’See Hague Declaration [No. IV, 3] Concerning Expanding Bullets, 29 July 1899,
reprinted inJ. Scott, ed., The Hague Conventions and Declarations of 1899 and 1907 (1915).
’19See supra, note 8. For a summary account, see Goldblat, The convention on ‘inhumane’
weapons (1983) 39 Bull. Atom. Scientists 24 (January). See also Paust, Controlling Prohibited
Weapons and the Illegal Use of Permitted Weapons (1983) 28 McGill L.J. 608. To this body of
law, one might also add the Convention on the Prohibition of Military orAny OtherHostile Use
of Environmental Modification Techniques, 18 May 1977, reprinted in Arms Control and
Disarmament Agreements, supra, note 10, 193 (entered into force 5 October 1978). Such
techniques are almost entirely theoretical and have no role in current military planning.
1983]
SSOD II AND BEYOND
weapons against population centres as immoral and contrary to international
law, one is compelled to accept them, temporarily and at significantly lower
levels, as a necessary deterrent. The claim that possession of these weapons
has so far prevented the outbreak of a war between great powers cannot be
dismissed as mere propaganda by the “military-industrial complex”.
Gaining momentum in recent years is the doctrine of “no-first-use” of
nuclear weapons, seen by many as holding great promise for lessening the
risks of a nuclear war. At SSOD II, on 15 June 1982, Soviet Foreign Minister
Andrei A. Gromyko read the statement of President Leonid Brezhnev in
which the latter “solemnly” declared that the U.S.S.R. “assumes an obliga-
tion not to be the first to use nuclear weapons”, the undertaking becoming
“effective immediately”. ‘” At the same session of the General Assembly, the
chairman of the Chinese delegation assured “the world that at no time and
under no circumstances will China be the first to use nuclear weapons and that
it undertakes unconditionally not to use such weapons against non-nuclear
states”.9 ‘ Despite growing worldwide support for the doctrine of “no-first-
use”, the United States and its nuclear-armed NATO allies have so far refused
to endorse it.
The proponents of the doctrine argue that a declaration pledging the
Soviet Union and the United States not to be first to use nuclear weapons
would have the effect of making nuclear powers change their military strategy
by placing greater emphasis on conventional forces; that it would likely end
nuclear proliferation, reduce international tension and chances of accidental
nuclear war; and that it could give strong impetus to meaningful disarmament
negotiations.’ 9 2 The opponents of “no-first-use” contend that comparable
declarations issued by the Soviet Union in the past have not reduced the
West’s sense of insecurity; that a reciprocal declaration might encourage
Soviet “adventurism” because of the perceived Soviet superiority in conven-
tional forces; and that a “no-first-use” pledge could undermine the confidence
of the European NATO allies in the U.S. resolve to defend them against
possible Soviet attack.’93
’19Brezhnev’s Statement, The New York Times (16 June 1982) A 20.
“I Quoted in Wang, China’s nuclear programs and policies (1983) 39 Bull. Atom. Scien-
fists 18 (March).
92See, e.g., Myrdal, supra, note 19, 182-4; McNamara, No Second Use- Until, The New
York Times (2 February 1983) A 23; Carver, supra, note 173; Ravenal, Nofirst use: a view
from the United States (1983) 39 Bull. Atom. Scientists 11 (April); and Weiler, Nofirst use: a
history (1983) 39 Bull. Atom. Scientists 28 (February). See also sources cited supra, note 77.
193 The Soviet pledge of no-first-use has been rejected by the U.S. Administration also on the
ground that it is “unverifiable and unenforceable”. U.S. Says Soviet Pledge on Nuclear War Is
Empty, The New York Times (17 June 1982) A 8. See also Ulsamer, The Right Freeze and the
Wrong Freeze, Air Force Magazine (October 1982) 82, 84. However, the most important
McGILL LAW JOURNAL
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Even to one who abhors the mere existence of nuclear weapons, let alone
the prospect of their use, the “no-first-use” proposal, for all its appeal, seems
to contain too many potential hazards to recommend it at this time as a
desirable policy. To begin with, in a climate where the leader of one super-
power refers (in the midst of arms control talks) to the other superpower as
“the focus of evil in the modem world” that must be opposed “with all our
might”, 19 a pledge of “no-first-use” even if given by both sides will not be
taken seriously by either. It would be most unlikely that following a joint
pledge, the superpowers would proceed with the rapid elimination of their
nuclear inventories, the logical sequence to the obligation never to use them.
As long as the two military blocs retain in their possession thousands of
nuclear warheads, as they would despite the pledge, the risk that these
weapons might be employed in a major conflict will always be present.
Absent additional and concurrent disarmament steps, each side would have to
guard against the possibility that the adversary might do so, particularly when
facing defeat in a war fought with conventional weapons.”I Thus the practical
short-term effect of the “no-first-use” pledge would be minimal: it would not
eliminate a single nuclear weapon nor reduce their further development and
production. At present, unaccompanied by tangible measures of self-restraint
and arms reduction, a joint “no-first-use” pledge could result only in giving
the world community a false sense of security without improving prospects
for genuine disarmament. But the greatest harm that could result from a
reason for the U.S. objection to any declaration promising not to use nuclear weapons first is
stated clearly in the recent report of the President’s Commission on Strategic Forces: “The
Soviets must continue to believe what has been NATO doctrine for three decades: that if we or
our allies should be attacked – by massive conventional means or otherwise –
the United
States has the will and the means to defend with the full range of American power … [E]ffec-
tive deterrence requires that early in any Soviet consideration of attack or threat of attack, with
conventional forces or chemical or biological weapons, Soviet leaders must understand that
they risk an American nuclear response.” Excerpts From Report of the Commission on
Strategic Forces, supra, note 62.
“”President Reagan, in his speech to the National Association of Evangelicals on 8 March
1983. Excerpts, The New York Times (9 March 1983) A 18. The biblical drift of present
Soviet-American relations was also assisted by Soviet Foreign Minister Andrei Gromyko,
who, in the U.N. General Assembly, referred to the Reagan Administration as the “apostles of
the arms race”, planning a nuclear war with the “cold-blooded composure of gravediggers”.
U.S. officials ‘apostles of arms race’ : Gromyko, The [Montrdal] Gazette (2 October 1982)
B-7. For an authoritative ecclesiastical viewpoint on the “cosmography” of contemporary evil,
see infra, note 227.
” See, e.g., U.S. General Backs First Use, The New York Times (17 June 1982) A 8. Gen.
Bernard W. Rogers, commander of NATO forces, would recommend first use of medium-
range nuclear weapons in Europe if the alliance faced defeat in a conventional war. There can
be no doubt that the Soviet leadership would act in the same way if its forces were losing the war
with NATO.
1983]
SSOD II AND BEYOND
premature adoption of the “no-first-use” proposal is its ability to make a major
conventional war between the antagonistic military alliances a distinct possi-
bility. “By abolishing, or appearing to abolish, nuclear weapons,” warns an
eminently qualified expert, “we should be making World War I more likely;
and if [it] started as a conventional one and lasted any length of time, there is
no doubt that the nuclear weapon would reappear”. 1’96 Even without the
employment of nuclear weapons, another large-scale war fought in Europe
would almost certainly cause more devastation and more casualties than
World War II. 91
It is also worth recalling that the U.N. Charter, in art. 2(4), stipulates
that member-states “shall refrain in their international relations from the
threat or use of force”, an obligation which clearly applies to any force,
whether nuclear or conventional. There is no evidence of a compelling need to
“re-enact the Charter”, as Canadian Prime Minister Pierre E. Trudeau
observed, “by seeking to set an order of precedence among the various
manifestations of the use of force”. 98 In brief, potentially negative conse-
quences of the “no-first-use” pledge, on balance, seem to outweigh its
hoped-for benefits.
However, the termination of the development, production and deploy-
ment of new nuclear weapon systems, followed by a gradual reduction of
existing nuclear stockpiles are desirable and feasible objectives, and it is
toward these goals that efforts to curb the nuclear arms race should be
directed. The widespread support that this approach to the nuclear dilemma
enjoys among the peoples of the world, including the nationals of major
nuclear powers, enhances materially its chances of success. High priority
should also be given to the object of preventing the further proliferation of
nuclear-weapon states, an immensely important objective and for many
nations, including the United States and the Soviet Union, a legal obligation.
Any further addition to the number of states possessing nuclear weapons
cannot but reduce the security of all, a truism often voiced by major powers
but not acted upon in practice with appropriate determination. ,99
‘Field Marshal Lord Carver, supra, note 173, 25.
I” Recent revolutionary innovations in conventional armaments are outlined in Kare, The
Conventional Weapons Fallacy, The Nation [Magazine] (9 April 1983) 438.
198 Technological Momentum the Fuel that Feeds the Nuclear Arms Race, address to SSOD
II, 18 June 1982, reprinted as Dep’t External Affairs Canada, Statements and Speeches (No.
82/10) 1.
199Weltman, Managing Nuclear Multipolarity (1981-82) 6 Int’l Security 182, 182 (No. 3)
writes: “The significant spread of nuclear weapons is probable over the next few decades
because technological and economic constraints against their acquisition have declined, and
because political and strategic incentives favoring the acquisition of nuclear weapons have
increased.” See also Nye, Nuclear proliferation in the 1980s [:] Political solutions (1982) 38
Bull. Atom. Scientists 30 (August-September); and Halloran, supra, note 76.
REVUE DE DROIT DE McGILL
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IV. Human Rights and the Arms Race: The Forgotten Link
The escalating arms race threatens more than the security of all nations; it
also poses a grave threat to the fundamental legal rights of each member of
human society. The existence of an international law of human rights,
consisting of firm legal obligations, not merely idealistic aspirations, is no
longer in doubt.’ The overriding purpose of this body of law is to protect the
individual human being against violations of the integrity of his person,
including most importantly the right to life. It bears repeated emphasis that the
international law of human rights sprang into existence in direct response to
acts of unprecedented barbarism committed against the life and dignity of
human beings during the Second World War. At the risk of redundancy, it is
worth reiterating the key provisions of the controlling texts. The U.N.
Charter, in its Preamble, expresses the determination of member-states “to
reaffirm faith in fundamental human rights, in the dignity and worth of the
human person,.., to promote social progress and better standards of life in
larger freedom”. Article I calls upon member-states to cooperate “in promot-
ing and encouraging respect for human rights and for fundamental freedoms
for all”, and art. 2 directs the Organization and its members to “fulfil in good
faith the obligations assumed by them in accordance with the present Char-
ter”. Article 55 reiterates the commitment of the United Nations to the goals
of “universal respect for, and observance of, human rights and fundamental
freedoms” while in art. 56, “members pledge themselves to take joint and
separate action.., for the achievement” of these goals. The Universal Dec-
laration of Human Rights, adopted in 1948, the Magna Carta of human
rights, stresses in its Preamble that the “recognition of the inherent dignity and
of the equal and inalienable rights of all members of the human family is the
foundation of freedom, justice and peace in the world”. 20 ‘ The 1972 Stock-
holm Declaration on the Human Environment represents still another mile-
stone in the development of the law of human rights.y Principle 1 of the
Declaration is particularly relevant in the present context: “Man has the
0For a comprehensive and policy-oriented approach, see M. McDougal, H. Lasswell & L.
Chen, Human Rights and WorldPublic Order [:] The Basic Policies of an International Law of
Human Dignity (1980). See also R. Lillich & F. Newman, International Human Rights [:]
Problems of Law and Policy (1979).
101 The basic rights enunciated in the Declaration have been subsequently reiterated, and in
some instances amplified, in two treaties. See the International Covenant on Civil andPolitical
Rights, United Nations G.A. Res. 2200, 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc.
A/6316 (1967), reprinted in (1967) 6 I.L.M. 368; and the International Covenant on Econom-
ic, Social and Cultural Rights, United Nations G.A. Res. 2200, 21 U.N. GAOR, Supp. (No.
16) 49, U.N. Doc. A/6316 (1967), reprinted in (1967) 6 I.L.M. 360. The former entered into
force on 23 March 1976, and the latter on 3 January 1976.
2Supra, note 160.
19831
SSOD II AND BEYOND
fundamental right to freedom, equality and adequate conditions of life in an
environment of equality that permits a life of dignity and well-being”.
Historical experience provides convincing proof that conditions of inter-
national tension and high expectation of violence –
characteristic of all arms
are inconsistent with respect for, and the promotion of, human rights.
races –
The increased police surveillance of citizens, growing censorship, restric-
tions on foreign travel, trade, tourism, cultural exchanges, and contacts with
aliens (especially with nationals of “hostile” states), limitations on the free
exchange of ideas, and the vilification and “demonization” of the adversary
are all the inevitable companions of a climate of tension generated and
–
fuelled by the arms race.2 3
203That democratic societies are not immune to such assaults on basic freedoms is
documented by Sissela Bok: “Never, except in wartime, has America experienced such a rapid,
extensive buildup of Government secrecy as in the last few years. … In the name of national
security, Federal officials have moved to bring about not only sweeping increases of secrecy
about Government activities but also new forms of control over the private sector. They have
sought to curtail access to information in several ways: by limiting the scope of the Freedom of
Information Act, by giving administrators greater power to classify documents as secret and by
expanding covert activities by the Central Intelligence Agency and Federal Bureau of Inves-
tigation both at home and abroad. The Government has also moved to exercise greater control
.. .[T]he Pentagon last summer
over scientists, educators, students and business employees.
blocked the presentation of about 100 papers at an international convention on optical
engineering”. The author recalls that the invocation of national security was used in the past to
cover up “military blunders, cost overruns, White House ‘plumbers,’ [and] enemies’ lists”.
Secrecy Vs. Security, The New York Times (23 February 1983) A 23. See also Kalven,
Security and secrecy (1982) 38 Bull. Atom. Scientists 16 (October); Jackson, Cold war
demonology (1982) 38 Bull. Atom. Scientists 52 (October); Gerjuoy, Embargo on ideas: the
Reagan isolationism (1982) 38 Bull. Atom. Scientists 31 (November); Reinhold, Inman Bids
AcademicsMonitor Own Security, The New York Times (30 March 1982) A 13. Constitutional
law aspects of this trend are explored in Miller, Reason of State and the Emergent Constitution
of Control (1980) 64 Minn. L. Rev. 585; and Paust, Is the PresidentBound by the Supreme Law
of the Land? – Foreign Affairs and National Security Reexamined (1982) 9 Hastings Const.
L.Q. 719. A fuller account of the corrosive effects of the arms race on the American political,
economic and social system is given in F. Cook, The Warfare State (1962); and R. Lapp, The
Weapons Culture (1968). Dr Lapp participated in the production of the first atomic bomb and in
the early post-war nuclear weapons tests. On the ascendancy of the military, and their impact
upon Soviet society, see Simes, The Military andMilitarism in Soviet Society (1981-82) 6 Int’l
Security 123 (No. 3).
The recent branding, by the U.S. Department of Justice, of three documentary short films
produced by Canada’s National Film Board as “political propaganda” provides an example of
the growing intolerance for the free exchange of ideas. Two of the offending films dealt with
acid rain and the third, If You Love This Planet, with the consequences of a nuclear war. John
Roberts, the Canadian Environment Minister, described the Justice Department’s action as an
“extraordinary interference with freedom of speech”. Quoted in U.S. Orders Disclaimers on 3
Canadian Films, The New York Times (25 February 1983) C 4.
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[Vol. 28
During the past three decades, no other issue of direct concern to
international law, with the exception of the control of force, has received
more attention than the cause of human rights. At least one government
(President Carter’s Administration) declared respect for human rights to be
the determining factor in shaping its foreign policy;204 on countless occasions
many other governments have expressed their dedication to the ideals of the
Charter and the Declaration and have pledged to work for their implementa-
tion.
The improvement of human rights in Europe, Canada and the United
States was one of the most important reasons for convening the Helsinki
Conference in 1975, and the advancement of these rights is an essential goal
of the Helsinki Final Act.2 5 Yet the acrimonious debates at the follow-up
conferences in Belgrade (1977-78) and Madrid (1980-83), convened to re-
view the implementation of the FinalAct, seem to have done more harm to the
principles that all the parties pledged to honour – human rights principles
especially –
than would have been the case if this document had not existed.
The continuing Madrid conference, according to an observer, “has turned into
an exchange of accusations and counteraccusations reflective of the unravel-
ling of d6tente, which eight years ago produced the Helsinki accords”3
1
The original intention of the thirty-five participating nations, to promote
human rights in a stable and secure political-military environment, appears to
have been wholly abandoned and the conference has become yet another
forum for fierce East-West confrontation. The idea of the intrinsic unity of
these two goals of military security and human rights, and the conviction that
one cannot meaningfully prosper without the other, no longer seems to guide
the policies of either power bloc. The NATO participants stress almost
exclusively the human rights clauses of the accords, urging the Warsaw Pact
countries to allow free trade unions and to permit member-states the right of
political self-determination and their citizens freedom of emigration. The
Soviet-led bloc, deaf to human rights concerns, insists on the follow-up
conference on disarmament in Europe. Attempts by neutral participating
states to reconcile the opposing approaches and to move the conference away
from confrontational patterns toward cooperation for common benefit are
routinely ignored. The causes and consequences of this attitude are not
‘In his address at the University of Notre Dame on 22 May 1977, President Jimmy Carter
stressed “commitment to human rights” as the first of five cardinal principles of America’s
foreign policy. The address was reprinted, in part, in J. Boyd, ed., Digest of United States
Practice in International Law 1977 (1979) 166.
2″Supra, note 18.
2Damton, East-West Session Reopens in Madrid, The New York Times (9 February 1983)
1983]
SSOD II AND BEYOND
difficult to discern: reduced international tension would serve neither those
with a vested interest in the perpetual escalation of the arms race nor the
stability of repressive regimes. The inevitable result is diminishing human
rights and declining security for all.
While no accurate yardstick exists for measuring the impact upon human
rights of the arms race, surely the current military build-up in Eastern and
Western Europe and North America cannot be helpful to the implementation
of the principles of the Helsinki accords or the Universal Declaration.7
It is hardly necessary to add that, in view of the enormous and growing
expenditures of many of the participating states on armaments, the Helsinki
follow-up conferences have not seen fit to discuss the relationship between
human rights, peace and development. Indeed, the major nations participat-
ing in the conference have shown minimal concern for the appalling condi-
tions of widespread deprivation observable in so many developing countries
and authoritatively documented in a recent report prepared by the World
Bank. According to this report, an estimated 850 million people live in
absolute poverty, a condition of life so “characterised by malnutrition, illit-
eracy and disease as to be beneath any reasonable definition of human
decency”.”3 The report goes on with its grim statistics: 300 million per-
manently unemployed, 600 million illiterate, 700 million suffering from
serious undernourishment, and 1,200 million with no drinking water or
sanitation.2’
To these statistics, recording the extent of human misery thirty-five
years after the adoption of the Universal Declaration, one should add the
millions of dead, permanently incapacitated and uprooted human beings, the
victims of countless wars fought since 1945, mainly with armaments supplied
by the leading protagonists of the global arms race who also happen to be the
principal exporters of weapons.210 At least some of these wars were caused
2 One foreseeable consequence of the militarization of East-West relations is the sharp
decline in the number of Soviet Jews permitted to emigrate. From a high of 51,320 in 1979,
their number had fallen to 2,688 in 1982. Jews to discuss Soviet emigration, The [Montr6al]
Gazette (15 March 1983) A-13; Shipler, Protests Backed at Conference on Soviet Jews, The
New York Times (17 March 1983) A 8. The persecution of human rights activists in Eastern
Europe can, at least in part, be attributed to the same cause.
Quoted in the “Second Report of the Committee on Legal Aspects of a New International
Economic Order” in International Law Association, Report of the Sixtieth Conference (1983)
183, 189 [emphasis added].
2wIbid.
210 According to Washington’s Center for Defense Information, 45 of the world’s 164
nations are currently involved in some kind of armed conflict, with the number of people killed
during the last three years ranging from one million to five million. Reported in Reston, What’s
Going On?, The New York Times (23 March 1983) A 27. A recent report to the U.N. Human
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[Vol. 28
directly or indirectly by gross economic disparities, which continue to divide
nations and societies. 1 It is a truism that the conditions described by the
World Bank often lead to social unrest and revolutionary violence, and result
in additional suffering and denial of human rights.212
The consequences of the intoxication with national “security” expressed
through the relentless accumulation of armaments by the more affluent
nations, have not spared citizens of those countries either. Despite the record
number of unemployed in every NATO state, and the continuing and growing
shortages of consumer goods and decent housing in Eastern Europe, all these
nations have, in recent years, increased significantly their defence budgets.
As one eminent American observer noted pointedly in reference to his own
Rights Commission provides additional horrifying statistics: “At least two million people have
been put to death during the last 15 years without a fair trial, their own lawyer or the right to
appeal”; “Officially inspired executions, ranging from scattered murders to mass purges of
political opponents, have been reported in 37 countries”. 2 mln. executed withoutfair trial says
U.N. report, The [Montreal] Gazette (17 February 1983) B-14. Most of these assaults on
human life have occurred in the developing countries.
21’As Inga Thorsson notes: “The arms race and development are thus to be viewed in a
competitive relationship. Or to put it another way: the arms race and underdevelopment are not
two problems; they are one. They must be solved together, or neither will ever be solved.”
Supra, note 120.
However, it appears that so far, the most tangible result of the so-called North-South
“dialogue” has been an increase in the transfer of weapons from industrialized countries to
Third World nations, rather than increased assistance for civilian purposes. Thus, while the
U.N. Conference on Trade and Development [UNCTAD] finds an alarming drop in aid by rich
countries to the Third World, trade in arms is at an all-time high. See U.N. Reports Alarming
Drop in Aid to Third World Nations, The New York Times (30 March 1983) A 10. A study by
the Library of Congress reports that between 1975 and 1982, the U.S.S.R. delivered to Third
World countries armaments valued at U.S. $50.1 billion, the United States U.S. $45.7 billion
and France U.S. $14.5 billion. During the same period, the four major European countries
transferred to the developing countries arms valued at about U.S. $33.6 billion. According to
this study, in 1982, the U.S. reached a record high in arms sales agreements with the
developing nations, with a value of U.S. $15.3 billion. Eight-Year Study Finds U.S. Tops in
Arms Sales Contracts, Aviation Week & Space Technology [Magazine] (2 May 1983) 90. It
should also be pointed out that the people and the land of developing countries provide
arms-supplying nations with a convenient testing ground for new weapons. The underlying
philosophy was summed up accurately by T. P. Shoesmith, Deputy Assistant Secretary of State
for East Asian and Pacific Affairs: “[W]e do not believe that a line should be –
drawn between human rights interests and strategic interests”. Balancing Strategic Interests
and Human Rights in Asia (1983) 83 Dep’t State Bull. 9, 10 (February).
211 Furthermore, as Professor Stanley Hoffmann observes, “widespread domestic conditions
of misery and tyranny … incite external intervention”, and tempt leaders “to find external
diversions”. Quoted in Farer, book review (1982) 76 Am. J. Int’l L. 888, 892. Because
domestic violence in any part of the world today threatens to involve major powers, self-
interest, if not compassion, suggests that concern forhuman rights, both political and econom-
ic, should be an important ingredient in the foreign policy of every advanced nation.
or can be –
1983]
SSOD II AND BEYOND
country: “Now after eight successive presidents have given in to demands for
new weapons systems, the nation is naked to devastation, and handcuffed
largely by weapons it has pioneered, and is on the verge of bankruptcy as
well.””‘ The only agreed part of the Concluding Document of SSOD II,
merely records the obvious when, in para. 61, it declares in reference to the
economic consequences of the arms race that “in a world of finite resources
there is an organic relationship between expenditures on armaments and
economic and social development”; that the development and acquisition of
“new types of weapon systems represent a huge and growing diversion of
human and material resources”; and that current and “planned military pro-
grammes constitute a colossal waste of precious resources which might
otherwise be used to elevate living standards of all peoples”.2″4
The incessant cry of threats to national security, emanating from the
ranks of the national defence complex, is seldom accompanied by expressions
of genuine concern for human rights at home or abroad, which are so
obviously affected by massive military preparations. To the extent that human
rights are invoked, they are routinely used as an instrument for propaganda
warfare against the adversary, rather than in a genuine attempt to bring about
the redress of alleged injustices. 215 The degree of indifference shown by
nuclear war planners to even the most basic human rights can, perhaps, best
be illustrated by the kind of society that would likely result if their recom-
mendations were implemented. To make the population safe from nuclear
attack, they urge massive “civil defence” programmes, which, to be per-
ceived as effective, would force citizens to spend their nights frequently in
crowded shelters or to run for them as a drill, while awaiting the ultimate
S2 1 Wiesner, supra, note 52. Four equally eminent Americans – McGeorge Bundy, Robert
issued more recently a public
S. McNamara, Cyrus R. Vance, and Elmo R. Zumwalt –
warning along the same lines: “We wish to emphasize that the economic foundations of our
national security, which are every bit as important as the defense component, have been
undermined.” Supra, note 58. Yet the projected defence budget in 1988 for the United States
alone is set at U.S. $424.2 billion, a sum which equals total world military expenditures in 1976
(U.S. $427.7 billion). Halloran, New Weinberger Directive Refines Military Policy, supra,
note 165. See also United States ACDA, supra, note 121, 43.
2 14Supra, note 3. See also C. Sanger, Safe and Sound [:] Disarmament and Development in
the Eighties (n.d.); and Regehr & Watkins, “The Economics of the Arms Race” in Regehr &
Rosenblum, supra, note 172, 63. “The whole world must summon the moral courage and
technical means,” urge American Roman Catholic bishops, “to say ‘No’ to an arms race which
robs the poor and the vulnerable”. The Pastoral Letter, quoted in Bishops Endorse Stand
Opposed to Nuclear War, supra, note 181 [emphasis added].
“I See, e.g., Henkin, Rights: American and Human (1979) 79 Colum. L. Rev. 405, 421,
asserting that international human rights have been by and large “for export only” and “in
criticism of others”.
McGILL LAW JOURNAL
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catastrophe.2″6 Such a society would have to be highly regimented, a totalitar-
ian society, with iron discipline and few civil liberties –
paradoxically, a
society that nuclear weapons and nuclear war are supposed to protect us
against.” 7 The result would also make a mockery of art. 28 of the Universal
Declaration which prescribes: “Everyone is entitled to a social and interna-
tional order in which the rights and freedoms set forth in this Declaration can
be fully realized.”
The perception of national security isolated from human rights, so
common to all of the defence establishments, is not surprising; the military,
the internal security police, intelligence and counter-intelligence agencies,
the arms merchants, and the burgeoning community of “defence analysts” can
hardly be expected to champion human rights or to approve the diversion of
national resources from “defence” to the improvement of living conditions at
home or abroad. What is surprising is the apparent willingness of so many
governments, especially those that pioneered the cause of human rights and
which were the principal architects of the Universal Declaration, to shape
their national policies according to the interests of a constituency that has been
traditionally least concerned with, if not openly hostile to, both human rights
and civil liberties.
Only slightly less surprising has been a lack of interest among interna-
tional jurists, particularly among those professionally involved in the field of
human rights, to call the attention of decision-makers as well as the public, to
the intimate link between the effective protection of these rights and the arms
race. It is almost incomprehensible that no scholarly studies can be found in
the vast literature on the international law of human rights analyzing the
causal relationship between global arms competition and the poor record of
compliance with the obligations arising from that body of norms. The com-
216 A rather bizarre aspect of this programme was revealed to a reporter for The Los Angeles
Times by Thomas K. Jones, Deputy Under-Secretary of Defense in the Reagan Administra-
tion. “Dig a hole, cover it with a couple of doors and then throw three feet of dirt on top,” he
recommended. “It’s the dirt that does it… If there are enough shovels to go around, every-
body’s going to make it.” Quoted from Sheer, supra, note 113 inA Critique and a Caricature,
Time [Magazine] (27 December 1982) 66.
27For a discussion of political, military and moral issues relating to civil defence in a nuclear
age, see Melman, supra, note 175. No experimental situation could ever remotely resemble the
combination of stresses that life in shelters would likely produce. Just to get people into the
shelters “would require regimentation to a degree far beyond anything America has experi-
enced.” J. Frank, Sanity and Survival [:] PsychologicalAspects of War and Peace (1968) 155.
The author goes on to report on a study done in the early 1960s on the attitude of ordinary
Americans facing an imminent nuclear attack which concluded that “[c]itizens in shelters will
kill to stay in and others … will kill to get in” [emphasis original]. See also Schell, supra, note
164, 67 et seq.
1983]
SSOD II AND BEYOND
mand of the Universal Declaration that “every individual and every organ of
society, keeping this Declaration constantly in mind, shall strive by teaching
and education to promote respect for these rights and freedoms” 2 8 has not
been extended to the arms race. By reminding governments and the public
“constantly” that the goals of both the Charter and the Declaration cannot be
achieved as long as the world remains an armed camp, as long as limited
resources are channelled increasingly into the development and acquisition of
ever more destructive means of violence, international jurists could make a
material contribution to the cause of human rights enunciated in these texts.
The prospect of a nuclear war and the dismal record on human rights, which
are abused to the point of denial in many regions of the world, underscore the
urgency of the task. The link between peace and human rights, expressed by
the late President John F. Kennedy in his address at the American University
twenty years ago, bears repeating: “[I]s not peace,” he asked, “in the last
analysis, basically a matter of human rights –
the right to live out our lives
without fear of devastation, the right to breathe air as nature provided it, the
right of future generations to a healthier existence?” 2 9
Conclusion: A Role for International Law and Jurists
Few analysts of world power politics doubt that the influence of interna-
tional law on the conduct of states is at its weakest when matters of national
security are involved.” And because armaments, especially their strategic
component, are regarded as the backbone of national security, governments
resist international law considerations most when it comes to the size, com-
position or use of their armed forces. This perception of the interaction
between international law and power politics, based largely on historical
experience, helps to explain the reluctance of many jurists to concern them-
selves with the arms race, including its nuclear aspects. The predominant
view seems to be that these political-security issues are best left to political
leaders and military experts. The lawyer’s role is seen in practice to begin at a
lower, technical level, where his drafting skills can most usefully be em-
ployed. This view, it is submitted, reduces unnecessarily the proper function
of law in shaping and governing the conduct of states; at the same time, it
impairs law’s potential influence upon that conduct. As C.W. Jenks, the
218 Preamble [emphasis added].
219Address delivered 10 June 1963. Full text reprinted in United States Senate, Committee
on Foreign Relations, Hearings on Executive M, 88th Congress, lstSess. (12-27 August 1963)
1001, 1005 (regarding the Nuclear Test Ban Treaty).
mA.Chayes, The Cuban Missile Crisis [:] International Crises and the Role of Law (1974),
provides an insider’s view by a participant in a major international incident.
REVUE DE DROIT DE McGILL
[Vol. 28
eminent British jurist, noted: “The regulation of armament is not to be
dismissed as a question unfit for lawyers. Within the State the law plays a
significant part in limiting the indiscriminate keeping, carrying and use of
weapons. In the world community it must play a similar part in regulating the
possession, testing and use of arms.” 22
Although many lawyers hold responsible positions in their national
governments, with quite a few involved directly in decision-making on,
questions of national defence and arms control, it is to be regretted that the
policies they help to shape or implement do not always advance, or even
reflect concern for, the cause of peace and a stable world order. Witness, for
example, the distressing absence of any constructive reference to the role of
international law in virtually all policy statements of the major powers on
arms limitation issues. The contributions of academic jurists to these goals
have been more noticeable, though still far from significant. As a group, the
international legal community, potentially quite influential at both national
and global levels, has not been particularly forthcoming, either in analyzing
the legal aspects of the arms race or in recommending solutions aimed at
defusing international tension and strengthening the rule of law through a
negotiated arms reduction. With few exceptions, international lawyers have
shied away from playing a part in efforts to end the arms race and to direct
national resources toward goals consistent with the principles of the Charter.
Is there anything jurists can do to assist these efforts and to influence
governments to live up to their legal and moral obligations? Admittedly, not a
great deal can be done at this time, although considerably more should be
attempted than has been in the past. First and foremost, jurists should match
the vigour and conviction of the advocates of the arms race and assert and
re-assert the continuing and overriding importance of international law in the
maintenance of global peace and security. All rational governments, regard-
less of their ideological bent or military power, recognize that in the long run,
international anarchy does not and cannot serve their national interest. This
fact is more compelling today, when mutual immolation is a distinct possibil-
ity, than at any other time in history. Even such a stalwart practitioner of
real-politik as Henry Kissinger, has admitted that “a just international order
cannot be built on power but only on restraint of power” and that “order can be
neither stable nor just without accepted norms of conduct”.2 He warned that
221A New World of Law? [:] A Study of the Creative Imagination in InternationalLav (1969)
33.
” Address to the annual convention of the American Bar Association, 11 August 1975,
reprinted in E. McDowell, ed., Digest of United States Practice in International Law 1975
(1976) 1, 2-3.
1983]
SSOD II AND BEYOND
“[i]n an age of awesome weapons of war, there must be accommodation or
there will be disaster’.m
Obviously, there can be no such accommodation as instruments of
violence relentlessly accumulate and as a continuing, indeed growing,
emphasis is placed on raw power in relations between states. It is axiomatic
that a major arms reduction can be achieved only in a more stable world and
that stability cannot be secured except through national conduct based upon
the principles of the Charter and international law. Despite its limitations,
international law provides the indispensable framework for stability and order
in a dangerous world. When high government officials and the Secre-
tary-General of the United Nations speak today of a “break down” of interna-
tional law,224 of the “disintegration of world public order” 2 and of a “new
international anarchy”, 6 the legal profession surely cannot remain uncon-
cerned and unresponsive. Merely because suggestions for arms limitation and
non-violent means of conflict resolution based upon international law have at
the present time only a modest chance of influencing the policies of states, this
is no reason for abdicating the traditional role of jurists –
that of analyzing,
recommending, educating, and informing. If they achieve nothing else,
individual and group efforts should contribute to a greater awareness, both of
the beneficial role that international law can play in protecting the genuinely
vital interests of each country, and of the consequences of any further erosion
of world public order. Success in this endeavour will, however, depend in no
small measure upon the ability of international lawyers to temper their
tendency to act as advocates for their own country’s cause with a sense of
responsibility for humanity as a whole.22
223Ibid., 2. William 0. Douglas, Associate Justice of the U.S. Supreme Court was even
more emphatic: “The rule of law is versatile and creative. It can devise new remedi6s to fit
international needs as they may arise. The rule of law has at long last become indispensable for
men as well as for nations. Now that the instruments of destruction have become so awesome
that war can no longer be tolerated, the rule of law is our only alternative to mass destruction.”
“I Government of Canada, Prime Minister’s Address to the House of Commons on Canadian
Foreign Policy (15 June 1981) 3 (an undated pamphlet).
215Rostow, “Foreword” in ACDA, supra, note 121, ii.
2’United Nations Secretary-General, Javier Perez de Cuellar, supra, note 2.
22Criticism, explicit and implied, of excessive nationalism, or of indifference to the
supreme crisis confronting all mankind has been voiced by many eminent and informed people
from a wide variety of backgrounds. For example, Alva Myrdal, a distinguished diplomat and
Nobel Peace Prize laureate, notes that “academic and political debate on arms and disarmament
issues is … kept strangely insulated and unnecessarily and irrationally nationalistic”, and that a
majority of academics have “elected to stay out of the controversy, when they have not actually
supported the official doctrine about the necessity to continue the nuclear-arms competition.”
Myrdal, supra, note 19, xxxi and 122. The renowned astronomer, Professor Carl Sagan,
expressing deep concern for the survival of our planet “after four billion years of tortuous
biological evolution”, writes: “There is no cause more urgent, no dedication more fitting for us
than to strive to eliminate the threat of nuclear war. No social convention, no political system,
no economic hypothesis, no religious dogma is more important. … If everyone had a pro-
McGILL LAW JOURNAL
[Vol. 28
There is much in the present arms race of professional concern to an
international lawyer. The list of problems calling for imaginative thinking,
new initiatives and continuing inquiry is lengthy and varied: the legality of
modem weapons, both those of mass destruction and those regarded as
particularly inhumane; the arms race and its impact upon human rights; legal
perspectives on the militarization of the common domain of the oceans and
outer space; improvements in existing international institutions for the
maintenance of peace and in the machinery and procedures for the peaceful
settlement of security-related disputes; methods of verification of arms limita-
tion agreements and sanctions for non-compliance; the structure and jurisdic-
tion of future verification and disarmament organizations; the relevance of the
principles of the Nuremberg Charter and the Judgment of the International
Military Tribunal to current nuclear strategies; and the limitations, if any, in
international law upon “propaganda” that, by design or effect, incites interna-
tional violence. These are some of the issues that jurists could analyze with a
view to making recommendations designed to serve the objectives of a world
order based on fairness and justice.
The overriding and urgent challenge facing all international lawyers
regardless of their nationality –
still best expressed in the philosophy of the
Charter –
is to “preserve succeeding generations from the scourge of war”
and to “reaffin faith in the dignity and worth of the human person”. Unless
the methodical accumulation and use of coercive power that passes today for
military-political strategy gives way soon to the principles enshrined in the
Charter, not only will the fundamental aspirations of all human beings for
personal security and decent living conditions remain unfulfilled, but the very
survival of the human species will be brought into question. Should the
mounting prophecies of a nuclear war come to pass, the indifference of jurists
will have been partly to blame.
found and immediate sense of the actual consequences of nuclear war, we would be much more
willing to confront and challenge national leaders of all nations when they present narrow and
self-serving arguments for the continuation of mutual nuclear terror.” To preserve a world
graced by life (1983) 39 Bull. Atom. Scientists 2, 3 (January). Most recently, in a courageous
and profoundly humane message addressed to “all men and women of good will”, American
Roman Catholic bishops have stated: “To pretend that as a nation we have lived up to all our
own ideals would be patently dishonest. To pretend that all evils in the world have been or are
now being perpepetuated by dictatorial regimes would be both dishonest and absurd. … Like
the Soviet Union, this country now possesses so many weapons as to imperil the continuation of
civilization. Americans share responsibility for the current situation, and cannot evade respon-
sibility for trying to resolve it.” And even more pointedly: “As American Catholics, we are
called to express our loyalty to the deepest values we cherish: peace, justice and security for the
entire [human] family.” In a passage specifically aimed at educators, the bishops said: “To
teach the ways of peace is not to ‘weaken the nation’s will,’ but to be concerned for the nation’s
soul.” The Pastoral Letter, supra, note 77.
