Toward a Legal Regime for Nuclear Weapons
-Richard Falk*
The quickening arms race has prompted
widespread public anxiety in North Amer-
ica, Western Europe and Japan, which has
increased greatly the normative strain placed
upon political leaders since the advent of the
nuclear age. The author suggests that legal
doubts about the status of nuclear weapons
have been present from the time the first
atomic bomb was used as a weapon of war,
but that only now does a climate exist in
which to argue forcefully the case for the
relevance of international law to nuclear
issues. After examining certain problems
which make it difficult to apply international
law to nuclear weapons, particularly the fact
that such weapons are undoubtedly effec-
tive, the author nevertheless draws the out-
line of a legal regime governing nuclear
weapons. It is dangerous to condition any
regime upon a facile distinction between
aggressive or defensive uses of nuclear
weapons because of the pervasive subjectiv-
ity of international politics. Instead, the au-
thor suggests six considerations which must
undergird a contemporary Magna Carta for
the nuclear age. This approach is only an
interim position, allowing governments time
to mesh their security policies with the
emerging consensus that would preclude any
reliance upon nuclear weapons. Ultimately,
however, no normative regime can prevent
the use of nuclear weapons within the present
statist world order. Building a permanent
nuclear peace will depend, finally, upon
drastic global reform and the construction of
“a warless world”.
L’acc616ration de la course aux armements a
suscit6 une anxidt6 publique r6pandue en
Am6rique du Nord, en Europe de l’Ouest et
au Japon, laquelle a dramatiquement
augment6 depuis le d6but de l’6re nucldaire
la pression normative exerc6e sur les leaders
politiques. L’auteur sugg~re que les doutes
juridiques subsistant au sujet du statut des
armes nucl6aires existent depuis la premiere
utilisation de la bombe atomique en tant
qu’arme de guerre; ce n’est qu’aujourd’hui
qu’un climat existe permettant de soutenir
avec vigueur la pertinence du droit interna-
tional aux questions nucl6aires. Apr~s l’exa-
men de certaines situations rendant difficile
l’application du droit international aux armes
nucl6aires, l’auteur esquisse n6anmoins les
caract6ristiques d’un r6gime juridique gou-
vernant ces armes. Il serait dangereux de
fonder un tel r6gime sur la pr6misse d’une
distinction trop facile entre les usages ag-
gressifs et d6fensifs d’annes nucl6aires,
6tant donn6e la subjectivit6 inh&ente A la
politique internationale. L’auteur sugg~re
six consid6rations devant soutenir une Mag-
na Carta contemporaine pour l’6re nu-
cl6aire. Cette approche reste int6rimaire,
permettant aux gouvernements d’ajuster
leurs politiques de d6fense A ce nouveau
consensus 6cartant toute d6pendance sur les
armes nucl6aires. Toutefois, en derni~re
analyse, aucun r6gime normatif ne saura em-
p~cher l’usage d’armes nucl6aires dans
l’ordre 6tatique mondial existant. L’assu-
rance d’une paix nucl6aire permanente d6-
pendra, finalement, d’une r6forme globale et
de la construction d’un “monde sans
guerres”.
*Of the Woodrow Wilson School of Public and International Affairs, Princeton University,
and co-author, with Robert J. Lifton, of Indefensible Weapons: The Political and Psychologi-
cal Case Against Nuclearism (1982), and a Senior Fellow of the World Policy Institute.
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[Vol. 28
Synopsis
The Ultimate International Law Challenge
Toward an International Law Regime for the Nuclear Age
I.
H.
Conclusion
I.
The Ultimate International Law Challenge
Nuclear weapons have inevitably placed a normative strain on political
leaders.’ This strain was “managed” during the first three decades after 1945
in various ways: by periodic calls for disarmament, by a general Western
policy that emphasized defense against aggression and by a diplomacy that
from the 1960s onwards sought arms control arrangements to abate the arms
race and maintain public confidence in the stability of the overall nuclear
situation. More recently, the rising costs and dangers of a quickening arms
race have given rise to widespread public anxiety in North America, Western
Europe and Japan about the relationship of nuclear weapons to the security of
states and to the viability of a global political order constituted principally, but
not exclusively, by sovereign states.2
I”Normative” is used throughout this article to encompass legal, moral, cultural, and
biological standards which help draw boundaries between what is morally permissible and
appropriate and what is morally impermissible and inappropriate at different levels of societal
organization. The focus of this article is upon the interplay between legal norms and the
nation-state, in relation to external uses of military power, and more particularly, to reliance on
nuclear weapons. In the context of the law of war, there has always been a strong relationship of
coherence among these various sources of normative authority. There has also always been a
tension between the power orientation of the modern state and the acceptance of normative
guidelines in relation to issues of war and peace. This tension has been made more serious in
recent decades as a consequence of the steady application of technological innovation to
warfare, in a way that makes adherence to normative guidelines strike political leaders as
unrealistic. In a sense, this “unrealistic” demand for a modification of such policy prerogatives
lies at the core of the current renewed normative inquiry into the status and role of nuclear
weapons.
2This anxiety also reflects the erosion of the United Nations’ position as a source of
normative authority, constituted originally to counterbalance and eventually modify the
power-centered, fragmented behavior of independent sovereign states and such alliances of
these states which aggregate like-minded and partisan political attitudes. The combined effect
of the growing dominance of the state over internal political, economic and cultural spheres of
action and belief, and its autonomy (or sovereignty) in relation to supranational frameworks,
especially in matters of national security, fosters an impression that such states operate in a
normative vacuum, especially the superpowers. For a discussion of these depressing dual
aspects of the international situation, see Falk, Nuclear Weapons and the End of Democracy
(1982) 2 Praxis Int’l 1; and Falk, “The Decline of International Order: Normative Regression
and Geopolitical Maelstrom” in Yearbook of World Affairs 1982 (1982) 10.
1983]
A LEGAL REGIME FOR NUCLEAR WEAPONS
This anxiety has taken several forms, but includes important normative
dimensions, that is, moral/legal objections to the role currently assigned to
nuclear weapons in the strategic thought and actions of the superpowers. Part
of this concern has centered on the combined unwillingness and inability of
the superpowers to stabilize the arms race in terms of either resource outlays
or risks. Another part of this concern has centered on the provocative deploy-
ment of specific weapons systems, such as Pershing II and SS-20s in Europe,
which appear to invite first strikes or preemptive attacks in periods of acute
crisis. This concern has generated as well a wider questioning as to whether
any reliance on nuclear weaponry can ever appropriately serve the ends of
state power. Implicit in such questioning is a critique of the nuclear encroach-
ment upon the sovereign rights of non-nuclear states and junior alliance
partners, whose destinies seem to be entrapped in the dynamics of the rivalry
between the United States and the Soviet Union; the old possibility of neutral
states opting out of belligerency seems to have become meaningless in a
world in which even outer space is understood as a dimension of belligerency,
and in which the fallout and the global ecological and economic disruption
that would be caused by any major nuclear exchange would certainly ignore
national boundaries.
These gathering concerns about the prevailing official thinking on nu-
clear weapons were most powerfully articulated by Jonathan Schell in his The
Fate of the Earth.3 Schell emphasizes the threats to human survival contained
in the nuclear standoff, as well as the disproportion between tactics and
technology, because nuclear destruction far outweighs the state interests
supposedly being served by such weapons. This disproportion has been
highlighted during the presidency of Ronald Reagan by loose talk about
limited nuclear wars, first-strike weaponry and prevailing or winning in a
protracted nuclear war. In fairness to the Reagan Administration, their loose
talk, in each instance, builds upon earlier entrenched official thinking and war
plans about the role nuclear weapons should play in relation to the foreign
policy of the United States. There also exists a growing public realization that
the scale and quality of the Soviet missile build-up in the 1970s went well
beyond reasonable defensive requirements. This build-up has raised doubts
about Soviet motivations, leading analysts to question Moscow’s reasons for
building and deploying so many missiles, especially in relation to Europe,
including the frequent replacement of missile systems. Perhaps in partial
explanation of that build-up, it should be noted that, earlier, Soviet strategic
inferiority produced a diplomatic humiliation for them at the time of the
Cuban Missile Crisis (1962) and this undoubtedly gave rise to an attitude of
“never again” in the Kremlin which enabled weapons builders to enlarge their
3J. Schell, The Fate of the Earth (1982).
McGILL LAW JOURNAL
[Vol. 28
claims on Soviet resources. Furthermore, the Soviet Union has no “friends”,
and arguably is surrounded by “enemies”, including its East European “satel-
lites” and an antagonistic China with enormous manpower resources and its
own growing arsenal of nuclear weapons.4 Each superpower justifies its own
continuous search for more and better weapons by its perception and repre-
sentation of the other, including profound uncertainties about the other’s
ultimate and proximate intentions.
In early 1983, normative concerns about nuclear weapons are evident in
a variety of forms. There is, first of all, a continuing major Western European
grassroots effort to prevent the deployment by NATO of 572 Pershing II and
cruise missiles. Additionally, there is Ronald Reagan’s somewhat bizarre
espousal of an array of twenty-first century advanced defensive weapons,
suitably dubbed “Reagan’s star wars strategy”, which could supposedly
provide societies with secure protection against nuclear attack while super-
seding reliance on deterrence, which is acknowledged for the first time at a
leadership level to rest on morally dubious threats to devastate foreign
societies.5 The final adoption of the much discussed Pastoral Letter of the
American Catholic bishops, which places the teaching of the Catholic Church
on war as applied to nuclear weaponry in direct opposition to many of the
principal tenets of prevailing nuclear weapons strategy that have been
accepted by NATO and the United States since 1945, also reflects a rising
consciousness of these issues.6
I Onejustification that has been advanced for the Soviet build-up in the European theater is to
discourage any Western impulse to intervene in Eastern Europe in the event of future
challenges directed at Soviet hegemony.
5For the Reagan text, see President’s Speech on Military Spending and a New Defense, The
New York Times (24 March 1983) A 20. The normative aspiration to substitute secure
defensive capabilities for current threats to devastate whole societies with weapons of mass
destruction is certainly admirable, but there is little reason to suppose that it can ever be made to
work with sufficient reliability. Even Reagan talks of this high frontier scenario as a goal for the
twenty-first century. We are left with the need for a normative framework that can guide our
national security policies at the present time, and lead us toward a safer future. To the extent
that high frontier thinking is an alternative to peace and disarmament thinking, it represents one
more misguided effort to overcome normative problems by proposing another technological
fix. For opposing assessments of the feasibility of such developments, see Teller, Reagan’s
Courage, The New York Times (30 March 1983) A 31; and Garwin, Reagan’s Riskiness, The
New York Times (30 March 1983) A 31.
6For a partial text of the Pastoral Letter, The Challenge of Peace: God’s Promise and Our
Response, see The New York Times (5 May 1983) B 16. For earlier assessments from a
Catholic perspective, see W. Stein, ed., Nuclear Weapons and Christian Conscience (1961).
For skeptical assessment, see Voorst, The Churches and Nuclear Deterrence (1983) 61
Foreign Affairs 827.
19831
A LEGAL REGIME FOR NUCLEAR WEAPONS
Until this broader political and normative public ferment emerged,
international lawyers had been comparatively quiet on these momentous
issues. Over the years since 1945 there have been, to be sure, a few scholarly
discussions pro and con about the legality of nuclear weaponry, but somehow
until the 1980s, the debate never was treated in international law circles as
very significant.’ This neglect has several explanations. The legal issues were
clouded from the beginning by the original “popular”, and in this sense,
legally “non-controversial” use of atomic bombs “to save lives” and bring
peace in the closing days of World War II, generally regarded by the victo-
rious powers as a “just” war.8 It also seemed futile to mount a legal case
against weapons so obviously useful and powerful, because of the prevailing
realities and track record of geopolitics. Specifically, the inability of the West
to develop sufficient non-nuclear means to defend Europe and other vital
interests on the Asian mainland, in light of a perceived threat resting upon an
overall Soviet superiority in conventional forces, and reinforced by the
logistical advantages of Soviet dominance of the Asian land mass, made it
seem self-denying for Western powers to question the legal status of nuclear
weapons. Furthermore, aside from a brief movement in England a couple of
decades ago, there was no political pressure mounted by way of a grassroots
normative attack. Defending the legality of nuclear weapons is such a thank-
less task that it undoubtedly seemed to most international lawyers, who meant
to be upholding official policies, to be more desirable to maintain a discreet
silence on the subject, as long as this was politically possible. All of these
elements contributed to the repression of “the legal question”. Nevertheless,
it is instructive to realize that legal doubts about the status of nuclear weapons
have been objectively “present” ever since the Hiroshima explosion. The
importance of posing questions now, in 1983, should not be understood only
as a response to a new and more aggravated stage in the nuclear arms race, but
also. as a belated attempt to consider serious legal issues that, but for the
historical circumstances surrounding the original uses, would have been
addressed as soon as the first atomic bomb was used as a weapon of war.
If Germany or Japan had developed and used atomic bombs in World
War II against the inhabited cities of the victors, the war crimes trials held in
Nuremberg or Tokyo would certainly have investigated, and in all probabil-
ity, condemned, the use of this weapon, and would have punished the
7Earlier works on the subject include G. Schwarzenberger, The Legality of Nuclear
Weapons (1958); N. Singh, Nuclear Weapons and International Law (1959); and Brownlie,
Some Legal Aspects of the Use of Nuclear Weapons (1965) 14 Int’l & Comp. L.Q. 437.
8 A useful depiction of the official thinking surrounding the decision to use the atomic bomb
against Japan was made by the influential Secretary of War at the time, Henry L. Stinson. See
The Decision to Use the Atomic Bomb (1947) 194 Harper’s Magazine 97.
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officials responsible as war criminals, even had due mitigating account been
taken of Allied strategic bombing of Axis cities. 9 The magnitudes of the blasts
and the fallout from those original fission bombs would, in my judgment,
have led impartial international law experts to regard the atomic attacks on the
Japanese cities as having been perpetrated by illegal weapons, or at least as
having involved an illegal tactic of war, despite the plausibility of arguments
from military necessity and the prior disregard by planners of strategic
bombing patterns of the traditional limits of the laws of war. Indeed, the only
court that ever investigated the legal arguments surrounding the American
attacks on Hiroshima and Nagasaki came clearly and persuasively to the
conclusion that they violated international law as it existed in 1945.10 Never-
theless, despite several relatively obscure legal condemnations over the
years, which took place in a variety of international settings, the legal
questioning of nuclear weapons has been totally ignored until recently by
political leaders and military planners in the nuclear powers, as well as by
their publics.
At this time, the international law dimension of the nuclear age is at last
becoming prominent, at least in professional and policy-planning circles. A
great deal of scholarly work is appearing on all aspects of the topic. Interna-
tional law, as a general rule, is responsive to fluctuations in the political
environment, and the last few years have firmly established a climate in which
inquiry into the legal status of nuclear weaponry appears “natural”, if not
unavoidable. The publication of this symposium in the McGillLaw Journal is
one indication of this new prominence.
In fact, some of this legal questioning is coming from strange sources.
There exists a hawkish school of nuclear strategists, which has for years
wanted to shape nuclear weapons policy around traditional moral/legal no-
tions of “defense” and “military targets”, thereby hoping to overcome norma-
tive inhibitions against an aggressive foreign policy and also hoping to
reconcile normative considerations with a reliance on nuclear weapons.
Proponents of this approach emphasize the “immorality” of city-busting
9 Of course, the “criminal” character of the bombing itself was never considered because of
“the victors’ justice” limitation on the war crimes proceedings; in other words, to have been
condemned, the atomic attacks would have had to have been carried out only by the losing side.
Victor’s justice was not extended in an extreme form to punish the losers for war methods also
used by the victors. For an excellent discussion of the issue, see R. Minear, Victors’ Justice:
The Tokyo War Crimes Trial (1971). For a more sympathetic construction, see T. Taylor,
Nuremberg and Vietnam: An American Tragedy (1970).
“0The Shimoda Case decided by the District Court of Tokyo on 7 December 1963, reprinted
in [ 1964] Jap. Ann. Int’l L. 212. For comment and interpretation, see Falk, The Shimoda Case:
A Legal Appraisal of the Atomic Attacks Upon Hiroshima andNagasaki (1965) 59 Am. J. Int’l
L. 759.
19831
A LEGAL REGIME FOR NUCLEAR WEAPONS
weaponry that threatens the indiscriminate devastation of the urban centers of
an enemy society, and the “immorality” of apocalyptic thinking that takes no
steps to maximize chances of survival should a nuclear war occur. These
“normative” critics of mutual terror do not consider abandoning our reliance
on nuclear weaponry, but rather argue on behalf of strategic postures which
rest upon a provocative mix of civil defense programs (shelters), defensive
technologies and accurate weaponry that can concentrate its destructive effect
on the enemy’s military capabilities, including its command structure.” The
normative paradox here is evident: this type of reconciliation of nuclear
weapons doctrine and weaponry with the core conceptions of the law of war
and international morality tends toward a speeding up of the arms race, the
design and deployment of first-strike weapons systems, and the adoption of
attitudes and doctrines that favor nuclear war-fighting options. In effect,
taking international law and morality seriously in this manner definitely
erodes the crucial firebreak in war-planning that separates conventional and
nuclear weaponry, thereby making the outbreak of nuclear war far more
likely.
Such a perspective has been recently introduced into international law
discourse by a widely noted RAND study.’2 The RAND report has proved
irresistible to those international lawyers who are opposed to the legality of
nuclear weapons; it seems almost too good to be true. It appears to establish
the central point that even a think tank closely aligned with the Pentagon is
driven to the conclusion that the principal existing doctrine governing the use
of nuclear weapons rests upon a flagrant defiance of international law. In the
words of the RAND study, “[d]estruction of societies, destruction as an end in
itself, would appear to be directly opposed to the most fundamental principles
of international law governing armed conflict”.’ 3 More pointedly: “The con-
cept of Assured Destruction and its derivatives (e.g. economic recovery
targeting) appear to be directly opposed to international law and, hence,
contrary to both domestic law and DOD directives governing individual
actions affecting the acquisition, procurement, and use of weapons.” ‘4 The
RAND authors disclose their purpose as being “to help close the chasm that
now yawns between international law and U.S. strategic nuclear policies”.”
” A clear and influential instance of this perspective is IWd6, Can Nuclear Deterrence Last
Out this Century? (1973) 51 Foreign Affairs 267. See also C. Gray, Strategic Studies and
Public Policy [:] The American Experience (1982); and K. Payne, TheBMDDebaie: Ten Years
After (1980) (a Hudson Institute monograph).
12 C. Builder & M. Graubard, The International Law ofArmed Conflict: Implications for the
Concept of Assured Destruction (1982) (RAND Publication Series R-2804-FF).
“Ibid., vii.
“‘Ibid., ix.
“Ibid., xiii.
McGILL LAW JOURNAL
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Indeed, these are extraordinary conclusions, considering their source. In
effect, the RAND authors acknowledge an underlying illegality governing
United States policy and practice since Hiroshima, a policy and practice
characteristic of the United States, of NATO and of Soviet national security.
But it should be noted that this analysis of international law confines
itself to a legal condemnation of the doctrine of Mutual Assured Destruction
[MAD], and has not been applied to the weapons themselves. The RAND
study proposes that “[a]ctual (as opposed to declaratory) U.S. targeting,
strike plans, and military forces should be designed only for attacks against
military targets and war-supporting activities (i.e. they should be as discrim-
inate as reasonably possible, consistent with their military purposes). What
-constitutes war-supporting activities is subject to interpretation; but a safe
interpretation under the law would not include civilians or civilian industry
unless or until they are converted to military activities that could have a direct
effect upon the conflict then being waged (i.e. economic recovery targeting
would seem a dubious concept under the international law of armed
conflict).” 16 The authors spell out the implications for military research and
development as leading to an emphasis on “discriminate, militarily effective
weapons”. 7 The RAND study never genuinely clarifies the extent to which
the operational impact of allowing nuclear weapons to be used against
military targets is consistent with the fundamental objectives and principles of
the law of war. Surely the cumulative effect of nuclear megatonnage and the
wide scope of lethal effects creates “problems” for any general validation of
nuclear weapons under international law.
The RAND study establishes some important common grounds for
inquiry. It affirms the relevance of international law to strategic planning, and
it even insists that policymakers and government international lawyers
“closely examine” the consistency of “strategic planning concepts … with the
law of armed conflict”. 8 Beyond this, it alerts “defense intellectuals outside
the government, in universities and corporations, to appreciate the essentials,
if not the details, of the international law as it applies to strategic planning”
and urges them to conform their behavior accordingly and on the basis of their
opportunity “to be more independent” than those playing official roles. Such a
mandate relies expressly on United States Department of Defense official
policy, outlined in DOD Instruction 5500.15 which includes the following
language: “All action of the Department of Defense with respect to the
acquisition and procurement of weapons, and their intended use in armed
’16lbid., 48.
“‘7 bid., 51. Builder’s extremely assertive strategic views confirm this interpretation. See
Builder, Why Not First-Strike Counterforce Capabilities [1979] Strategic Rev. 35.
sBuilder & Graubard, ibid., 57.
1983]
A LEGAL REGIME FOR NUCLEAR WEAPONS
conflict, shall be consistent with the obligations assumed by the United States
Government under all applicable treaties, with customary international law,
and, in particular, with the laws of war.” ,1 In fact, of course, the United States
Government position has rested mainly on a facile and unpersuasive applica-
tion of Lotus reasoning, namely, that states are permitted to do anything not
expressly prohibited by rules resting on consent, and that in the absence of an
express treaty prohibition, joined by the United States, nuclear weapons may
be legally employed.’0 It seems ludicrous to extend the reasoning of the Lotus
case of 1927, developed to assess a very narrow question of jurisprudential
competence in a criminal negligence controversy arising out of a collision on
the high seas, to the drastically different circumstances surrounding the
consideration of the legal status of nuclear weapons. For one thing, on a
jurisprudential level, the issue of whether or not a given activity is prohibited
by pre-existing rules is partly a matter of how general is the level of appraisal
chosen. For instance, while nuclear weapons are not the explicit subject of
any agreement binding nuclear weapons states, the main instruments of the
pre-existing laws of land warfare prohibit all methods of warfare having the
characteristics associated with contemplated uses of nuclear weapons. The
Lotus view of the legal status of new weapons and methods of warfare also
flies in the face of the “Martens Clause” inserted in the Preamble to Hague
Convention No. IV of 1907, concerning the Laws and Customs of War on
Land, and is itself generally regarded as a binding element of customary
international law. The Martens Clause requires governments to assess “cases
not covered by the rules adopted by them” by reference to “the general
principles of the law of nations, derived from the usages established among
civilized peoples, from the laws of humanity, and from the dictates of public
conscience”. 2′ On such a basis, the overwhelming normative consensus now
19 See also United States Dep’t of the Air Force, International Law – The Conduct ofArmed
Conflict and Air Operations (1976) 6-11 (AFP. 110-31). The RAND study also relies on the
language of art. 36 of 1977 Geneva Protocol I Additional to the 1949 Geneva Conventions,
which puts parties to the agreement “under an obligation to determine whether” the employ-
ment of a new weapon or method of warfare would “in some or all circumstances” violate
international law. The study does not note that the United States representative in the treaty
negotiations explicitly ruled out the applicability of Protocol I Additional to nuclear weapons.
For discussion of the United States Government view on the non-applicability of Protocol I
Additional to nuclear weaponry, see Erickson, Protocoll:A Merging of the Hague and Geneva
Law ofArmed Conflict (1979) 19 VaJ. Int’lL. 557,560. Forthe text of 1977 Geneva Protocoll
Additional Relating to the Protection of Victims of International Armed Conflicts, see U.N.
Doc. A/32/144, Annex I, reprinted in (1977) 16 I.L.M. 1391.
:0United States Dep’t of the Navy, U.S. Naval Instructions (1955), art. 613. See also United
States Dep’t of the Army, Field Manual 27-10, The Law of Land Warfare (1956) 18. For the
text of the Lotus case, see The Case of the S.S. “Lotus” (France v. Turkey) (1927) P.C.I.J.,
Ser. A., No. 10.
21Hague Convention [No. IV] Respecting the Laws and Customs of War on Land, 18
October 1907, 36 Stat. 2277, T.S. No. 539, 1 Bevans 631, Preamble. For reasoning on the
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[Vol. 28
operative in international society would legally condemn all contemplated
roles for nuclear weapons, except “possession” as a hedge against nuclear
blackmail; not even a retaliatory use of nuclear weapons could be easily
reconciled with most interpretations of the laws of war, given the properties of
the weaponry and the difficulty of reconciling any actual use with such
principles as “necessity”, “proportionality”, “discrimination”, and
“humanity”.’
Official American strategic doctrine and war plans, despite the apparent
embrace of Mutual Assured Destruction, has in fact always emphasized
military targeting, and hence has been relatively consistent with the position
argued in the RAND study. The service manual formulations with regard to
legal status validate nuclear weapons only “against enemy combatants and
other military objectives”. To the extent that existing doctrines and plans rest
on a conception of deterrence based on threats to civilian non-combatants and
non-military objectives, these would be illegal under even this narrowest
definition of the applicability of international law. However, applying such
guidelines, the atomic attacks against Hiroshima and Nagasaki should have
been clearly repudiated. Furthermore, current counterforce targeting, while it
superficially repudiates city-busting options, and therefore is formally consis-
tent with restricting the role of nuclear weapons to military objectives, is in
fact deeply misleading in this crucial respect. Because of the magnitude and
properties of current nuclear weapons (involving many times the destructive-
ness of the atomic bombs of World War II), and because of their contemplated
use in and around cities (there are, for instance, sixty-two military objectives
targeted within the city limits of Moscow!), the cumulative blast and fallout
effects from multiple nuclear explosions, the number of targets regarded as
“military”, and the clustering of military targets near population centers, even
an official policy that limits the use of nuclear weapons by reference to the
military character of the target is not different in effect from an overtly
indiscriminate targeting policy. Furthermore, the World War II experience
with the unrestricted bombardment of cities and with unrestricted submarine
warfare suggests that a self-limiting framework of policies and tactics confin-
ing deliberate destruction to the enemy’s military targets gives way in war-
time to considerations of battlefield effectiveness, understood to include
strikes against cities to weaken the resolve of the enemy society. Either the
restriction implicit in counterforce strategy is meaningless, because “military
relevance of the Martens Clause to this issue, see Falk, Meyrowitz & Sanderson, Nuclear
Weapons and International Law (1980) (Occasional Paper No. 10, Princeton World Order
Studies Program), reprinted in (1980) 20 Indian J. Int’l L. 541.
21For formulations of these principles, see the General Introduction to International Com-,
mission to Enquire into Reported Violations of International Law by Israel During its Invasion
of the Lebanon, Israel in Lebanon (1983) xi.
1983]
18 LEGAL REGIME FOR NUCLEAR WEAPONS
target” is given such a loose definition that it includes everything pertaining to
a war effort, even civilian morale, or the confining effect of a restricted
definition is overlooked under pressure, as was the case with the atomic
attacks in World War II, whose rationale rested on their overall role in helping
to end the war successfully. No serious attempt has ever been made to
determine whether the contemplated uses of the atomic bomb might be in
violation bf the law of war despite the justification provided. Without a more
focused inquiry into what is permitted and prohibited by law, the general
public conception that some uses of nuclear weapons are legal has the primary
effect of providing a rationalization or loophole for virtually any use of such
weapons.
The present affirmation of the applicability and stature of international
law is a challenge to prevailing statist attitudes both within and without
government.” Let the existing situation be clearly stated. The use of atomic
bombs against Hiroshima and Nagasaki was never evaluated in relation to this
international law framework by planners and leaders, nor has the subsequent
diplomacy of the nuclear age, which has included some twenty documented
threats to use nuclear weapons, been in any way sensitive to such legal
criteria. 4 In the voluminous literature devoted to the Cuban Missile Crisis,
only international lawyers have regarded the international law dimension of
the crisis as important, except as it was considered in the detailed planning
which was associated with the actual carrying out of the strategic decision. 25
A climate now exists in which to argue the case for the relevance of
international law to nuclear issues. This case can be reinforced by action on
the part of those who are politically and morally committed to minimizing the
role of nuclear weapons. For reasons of state policy, the Soviet Union seems
prepared to lend its official support to most efforts to delegitimize nuclear
weapons.26
Law and Future Prospects (1981) 9 Hofstra L. Rev. 399.
3 See sources cited supra, note 2; and Falk, Some Thoughts on the Decline of International
‘These uses are documented carefully in an exceptionally important article: Ball, U.S.
Strategic Forces [:] How Would They be Used (1982-83) 7 Int’l Security 31, 41-4 (No. 3).
5For a legal maximalist interpretation of the relevance of international law to nuclear
weapons that manages to avoid being a legal polemic, see A. Chayes, The Cuban Missile Crisis
[:] International Crises and the Role of Law (1974).
16The Soviet position on the nuclear arms race in general has been described well by Soviet
dissenters, Roy and Zhores Medvedev, A Nuclear Samizdat on America’s Arms Race, The
Nation [magazine] (16 January 1982) 38. Soviet adoption of an unconditional no-first-use of
nuclear weapons pledge is contained in former Communist Party Chairman Brezhnev’s
“Special Message” of 15 June 1982 to the United Nations General Assembly Second Special
Session on Disarmament. The pledge has been reaffirmed by the current Soviet leader, Yuri
Andropov.
McGILL LAW JOURNAL
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There remain, however, several serious preliminary difficulties in-
volved in the application of international law to nuclear weapons. First of all,
nuclear weaponry is possessed by rival states in a world characterized by
acute and pervasive distrust; nuclear disarmament, beyond certain fairly high
thresholds, continues to be viewed as unrealistic, because it would create
unacceptable political temptations and vulnerabilities. As a consequence of
this practical constraint, rival states are likely to retain offsetting nuclear
weapons capabilities for the indefinite future, and to insist on at least a posture
of minimum deterrence, that is, their possession and a threat, implied at least,
to retaliate with nuclear weapons against nuclear attack. Even this form of
minimization of the role of nuclear weapons is likely to sustain some type of
nuclear arms race, as each side will want to be confident that its nuclear
weapons capability and its overall capability for response do not become
vulnerable to surprise attack as a result of secret machinations by its rival.27
Secondly, as the underlying technology needed to produce nuclear
warheads becomes more familiar and refined, the possibility of additional
political actors, including dissident armed groups, or even criminal gangs,
acquiring nuclear weapons will grow greater. In relation to these prospects of
nuclear proliferation, the existing nuclear weapons states are unlikely to give
up their hedges against nuclear blackmail by altogether renouncing both
nuclear possession and use options. In any event, as long as the technological
base persists for producing nuclear weapons, their production and reintroduc-
tion into defense arsenals can never be reliably ruled out.
Thirdly, and perhaps most disturbingly, as long as nuclear weapons
remain under the control of governments, and as long as armed conflict
persists in international relations, there exists a grave danger that any avail-
able weapon or tactic, regardless of its normative status, would be introduced
into battle, if it were perceived by the leaders involved to be centrally
decisive. Throughout the history of modern warfare, going at least as far back
as the futile effort to banish the crossbow, weapons that are effective on the
battlefield or in relation to defeating an enemy society have been used without
consideration of legal (or moral, or cultural) restrictions.” Nuclear weapons,
‘The case for nuclear deterrence along present lines is developed ably by Mandlebaum,
“International Stability and Nuclear Order: The First Nuclear Regime” in D. Gompert & M.
Mandlebaum, Nuclear Weapons and World Politics (1977) 13.
“Modem war has grown into an unconditional contest of wills, in which every means and
tactic of destruction will be used by political leaders with “a clear conscience”. The ideological
grounding for this secular absolutism is formulated most clearly in the writings of Machiavelli
and Clausewitz. For an analysis of this relation, see W. Gallie, Philosophers of Peace and War
(1978) 37-65; and R. Lifton & R. Falk, Indefensible Weapons: The Political andPsychological
Case Against Nuclearism (1982) 23943. Despite the normative doubts now being raised about
1983]
A LEGAL REGIME FOR NUCLEAR WEAPONS
whatever else they might be, are regarded as effective, at least in their threat
role as guardians of political survival. Indeed, it would be easy to contrive
rationalizations that “illegal” threats to use nuclear weapons against cities and
civilians “save lives”, safeguard the prospects of “human survival” and make
indispensable peacekeeping contributions by way of the prevention of war.
Post-1918 efforts to prohibit the use of poison gas weaponry do not provide
much reassurance to the contrary. It is true that the legal prohibition may have
operated as a marginal factor in discouraging the use of such weapons and in
building moral/legal inhibitions in world leaders against use in wartime.
Nevertheless, the evidence suggests overwhelmingly that the non-use of these
weapons in major conflicts that have taken place since World War I is related
more importantly to doubts about their “effectiveness” under battlefield
conditions, and to the existence of alternative methods of carrying out bellig-
erent missions. In essence, the argument I am making rests on the central
the unconditionality of
proposition that because of the way states wage war-
the means they use whenever issues of victory and defeat arise –
it is unlikely
in the extreme that international law constraints on nuclear weapons by
themselves will hold up in times of severe international crisis. Because a large
number of these weapons will be retained, under the best of foreseeable
circumstances, these weapons will be likely to be used to the extent that it
seems to leaders that the outcome of a war is at stake. Countries such as Israel,
France and Great Britain presumably possess nuclear weapons as a warning to
their enemies not to push them too far, and there is every reason to suppose
that rather than accept military defeat, such weapons would be used, regard-
less of their legal status. To put the matter differently, international law
cannot hope to regulate the pursuit of decisive military state interests, and
nuclear weapons are manifestly weapons of military decisiveness.
Fourthly, and more obscurely, the indirect reliance on nuclear weaponry
to assist in achieving a variety of foreign policy goals is deeply embedded in
bureaucratic thinking, at least in the United States and the NATO countries,
about upholding “national security” at “acceptable” costs. To relinquish such
a reliance will require very determined political leadership in the two super-
powers, especially in the West, where first-use nuclear options remain con-
nuclear weapons, there has, as yet, been no serious challenge directed at these unrestricted
war-making prerogatives of states, and without a “Magna Carta for the nuclear age”, the legal
doubts being currently raised about the status of nuclear weapons, even if they come to be
embodied in some authoritative form, will be cast aside in time of emergency. These doubts
may, nevertheless, be functional, to the extent that they prompt policies and weapons deploy-
ments that operate as if these weapons were illegitimate; in effect, the legal challenge may
contribute to the replacement of “early use” scenarios, and this by itself would reduce greatly
the risks and anxieties associated with the existence of nuclear weapons.
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scious premises of existing foreign policy.29 Nuclear weapons apologists,
including those who reaffirm the explicit relevance of international law to
such decision making, argue for “defensive” roles for these weapons (against
“aggression”) and “military” uses (against silos, bases and command cen-
ters). These lines of argument are consistent with an abstract application of
the traditional international law of war to nuclear weapons and tactics in the
spirit of the Martens Clause. The strategic implications of such an application
are to encourage the development and deployment of neutron bombs, ABM
and “high frontier” weaponry, civil defense preparations, increasing the
accuracy of weapons, and provocative political plans and strategies. The net
effect of such strategies is to overcome inhibitions on the first use of nuclear
weapons in a conflict situation, because the inhibitions of terror associated
with MAD are weakened.” In effect, the nuclear/non-nuclear firebreak is
eroded, if not cast aside. The ironic result seems to be that taking international
law seriously, given the accompanying implausibility of getting rid of nuclear
weapons or of transforming international relations in a more pacific direction,
may actually clear the path for nuclear war-fighting doctrines, policies and
capabilities. 3′ This is the main operative effect of the RAND study, especially
2’For an indication of the extent of reliance on first use options, see Payne, Deterrence,
Arms Control, and U.S. StrategicDoctrine (1981) 25 Orbis 747. In opposition to such reliance
lies the main importance of no-first-use proposals and pledges. A main consequence of
renouncing first-use policy options is the refashioning of foreign policy in two directions:
reducing the overall nuclear undertaking (that is, precluding any credible defense for certain
kinds of attacks on foreign societies) or upholding an earlier commitment by reliance on the
sufficiency of non-nuclear military capabilities. To what extent, for instance, are current
NATO force requirements for the non-nuclear defense of Western Europe being exaggerated
by way of a myth of conventional inferiority? How real, in any event, is the threat of a Soviet
armed attack upon Western Europe? Even if denuclearization is the exclusive goal, tactical
choices are not self-evident because a process of realignment within NATO could produce the
opposite results by restoring first-use options by way of a West German decision to develop its
own nuclear strike force. For recent discussion of these issues, see Bundy, Kennan, McNamara
& Smith, Nuclear Weapons and the Atlantic Alliance (1982) 60 Foreign Affairs 753. For a
skeptical response, see Kaiser, Leber, Mertes & Schulze, Nuclear Weapons and the Preserva-
tion of Peace (1982) 60 Foreign Affairs 1157.
“The full implications of the main alternative strategic positions are discussed in Keeny &
Panofsky, MAD Versus NUTS [:] Can Doctrine or Weaponry Remedy the Mutual Hostage
Relationship of the Superpowers? (1981) 60 Foreign Affairs 287.
11 At some level ofjurisprudential reflection, this “ironic effect” of international law analysis
suggests a defect or bias in the RAND rendering of the law of war vis-d-vis nuclear weaponry.
See Builder & Graubard, supra, note 12. One way out, of course, is to condemn nuclear
weaponry as illegal per se, because of its attributes, rather than to focus analysis, as had been
traditional prior to nuclear weapons, on the probable contexts of their use, that is, on the
targets. Another way out would be to formulate a new kind of analysis based upon an
interpretation of the hierarchy of objectives pursued by the international law of war in the
nuclear age, placing the avoidance of any use of nuclear weapons at the pinnacle of the
hierarchy.
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A LEGAL REGIME FOR NUCLEAR WEAPONS
in light of the policy directions of those who are presently urging an acceler-
ated arms race and the development and deployment of destabilizing weapons
systems .32
The complexity of the fifth obstacle to the application of international
law to these weapons is as follows: some minimalist variant of MAD pro-
vides, arguably, the best hope of avoiding any future use of nuclear weapons
and of slowing down the arms race, and yet MAD is presently most flagrantly
in violation of international law, as this law has been generally understood.33
Furthermore, MAD does provide potential adversaries with reassurances that
nuclear weapons are being held only against the remote contingency of the
necessity of retaliation against prior nuclear attack. The essence of deterrence
is to make the potential nuclear attacker anticipate with as much certainty as
possible the devastation of his own country. If deterrence is made more
compatible with the RAND reading of international law, then all or some of
the following effects could come about: deterrence would in fact be hypocrit-
ical in its application (that is, because of the nature of the attacking weapons
and of the locations and variety of military targets, counterforce limitations
will not in fact save either cities or the civilian population from nuclear
devastation); MAD would be less effective as a deterrent (that is, the attacker
might regard the prospect of retailiation against those of his military targets
that are separated geographically from places of civilian habitation as an
acceptable and even rational risk to be counted as part of the cost of a nuclear
surprise attack and victory); finally, deterrence would prove less and less
reassuring to a rival in a period of acute crisis (that is, if the other side might
reasonably attack, then pressure to stage a preemptive first strike necessarily
grows).
There may be no fully satisfactory way to circumvent entirely this fifth
obstacle. However, I think there is a line of analysis that more validly uses the
international law heritage to minimize the role of nuclear weapons in di-
plomacy. The jurisprudential “concession” that will enable this reformulation
is a variant of Catholic “just war” moral reasoning, which allows the choice of
a lesser evil under certain circumstances of belligerency.
32 Indeed, overt doctrine since 1974 has emphasized military targeting, under such rubrics as
“flexible response” and “counterforce”. See Leitenberg, Presidential Directive (P.D.) 59:
United States Nuclear Weapon Targeting Policy (1981) 18 J. Peace Research 309; Beres,
Tilting Toward Thanatos: America’s “Countervailing” Nuclear Strategy (1981) 34 World
Politics 25; and L. Beres, Mimicking Sisyphus: America’s Countervailing Nuclear Strategy
(1983).
“The illegality of nuclear weapons is a firm conclusion of the RAND study. See Builder &
Graubard, supra, note 12. This assessment is reinforced by the analysis of the Catholic
Bishops’ Pastoral Letter. See supra, note 6.
McGILL LAW JOURNAL
[Vol. 28
It should be evident by now that serious reflection on the relevance of
international law to the status of nuclear weapons will be unavoidably con-
troversial at this stage, and also, that it is, to some extent, both inconclusive
and tragic. One is not proceeding on the basis of a clean slate. Thousands of
nuclear weapons exist, many thousands more are in the planning and develop-
ment stages, and it is almost inconceivable that the expenditure of so many
billions of dollars and the resulting accumulation of towering structures of
bureaucratic influence can be overcome easily. At the same time, the overall
normative dimension provides firmn grounds upon which to premise a critique
of existing nuclear weapons policy and practice. Definite improvements can
be made in present policies, and in public expectations governing the use of
nuclear weapons without waiting for the darkness of catastrophe or the
lightness of utopia to come upon us. Such improvements might increase the
prospects for a peaceful transition over time to a denuclearized world.
I.
Toward an International Law Regime for the Nuclear Age
The quest for a legal regime rooted in the dynamics of the state system of
world order is adversely conditioned by the continuing predominance of a
Machiavellian tradition of political leadership) 4 That is, war as an option of
national policy cannot be ruled out by legal fiat, and the legalist efforts of this
century to do so, by way of renouncing “aggressive war” options, largely
constitute a fraud on the public’s consciousness and moral concerns. Be-
cause the governments of sovereign states are the highest decision-makers,
especially if the political institutions of the United Nations are either inopera-
tive or are discounted as partisan, self-serving interpretations of the legal
status of controversial uses of force are made. These circumstances are the
rule, not the exception. That is, politically congenial uses of force are
routinely characterized as “defensive”, whereas politically hostile uses of
force are condemned as “aggressive”. To some extent, this incoherence flows
from polemical uses of the law to serve the interests of state power, but to
some extent, it also genuinely reflects a “misperception” that follows from the
diversity of perspectives of different states, with different accesses to in-
formation, and different ideologies, cultures and worldviews.
This pervasive subjectivity in international politics makes it exceedingly
dangerous to tie any restraint on methods of warfare to a characterization of
the context of the war as “defensive”. 35 The extension of the aggression/
11See R. Tucker, Politics as Leadership (1981) 114-57; and Lifton & Falk, supra, note 28,
239-43.
3-Note that under post-1928 international law, only defensive uses of force in international
affairs are “legal”. It is also the case that the international law of war is impartial as between the
1983]
A LEGAL REGIME FOR NUCLEAR WEAPONS
defense framework to the dimension of nuclear weapons policy is seriously
flawed on both conceptual and policy grounds: on conceptual grounds, it
regressively merges jus ad bello analysis with a determination of relative jus
in bello rights (that is, it allows the self-styled defending state to use nuclear
weapons proportionately and with discrimination); 6 on policy grounds, it
weakens the inhibition on the recourse to nuclear weapons, and also dilutes
incentives to plan non-nuclear defense strategies.
In articulating the contours of an international law regime responsive to
the nuclear age, three goals of policy seem to be paramount: (a) avoiding
nuclear war; (b) minimizing crisis instability;37 and (c) reducing the arms race.
These three overriding objectives are phrased so as to take account of the
international political setting. Also, they are complementary, but they are not
necessarily consistent with one another in all applications. For instance,
promoting objective (b) crisis stability, may in certain circumstances require
increased defense outlays to maintain an assured invulnerability of retaliatory
capabilities to a surprise attack and, hence, represents a setback for objective
(c).
Also, each of these objectives requires extensive interpretation to be
made operational, and interpretation is necessarily susceptible to a variety of
good faith outcomes. One interpreter might argue that the way to avoid
nuclear war is to achieve decisive superiority over the other side, because it
alone threatens the international status quo. Another equally sincere interpret-
er might contend that only by renouncing all political violence in international
affairs is it possible to avoid nuclear war, because participation in any armed
conflict contains unacceptable risks of escalation. In effect, this latter position
moves in the direction of conceiving the realization of objective (a) as
dependent upon the construction of an overall global peace system. Acknow-
ledging these difficulties with the operationalization of these objectives, this
framework for a legal regime helps to organize and focus inquiry; it cannot
hope to resolve all policy differences, except to the extent that it acts as a
value-oriented appeal to a community of scholars and policy-makers to
renounce the use of nuclear weapons altogether.
permissible tactics relied upon by “aggressor” and “defender”. In effect, the law of peace (jus
ad bello) renounces “aggressive” uses of force, while the law of war (jus in bello) accepts a
shared framework of restraining rules, principles and agreements.
“This is the consequence of Eugene V. Rostow’s and John Norton Moore’s analyses of
these issues. ForRostow’s view, see (1982) 76 Proc. Am. Soc. Int’l L. (forthcoming). Moore’s
views can be found in (1983) 9 Brooklyn J. Int’l L. (forthcoming).
37That is, minimizing the temptation in a period of heightened international tensions to have
recourse to war or to nuclear weapons, either because it looks as if an advantage could be seized
or a dangerous vulnerability neutralized; mutuality as between nuclear rivals is better assurance
of stability than military superiority, especially forms of superiority that might be nullified or
reduced by a surprise attack.
REVUE DE DROIT DE McGILL
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In order to evolve a useful legal framework for nuclear weaponry,
account must also be taken of two features of the international political world:
a tendency for states to risk virtually any level of self-destruction in warfare in
order to avoid military defeat, and a general willingness by states to use
military power to secure positions of privilege, power and wealth in human
affairs. There is no way to establish a realistic legal regime that is not sensitive
to these geopolitical features of international life, as well as to the three
previously delineated specific objectives associated directly with nuclear
weapong. That is, given the existence of nuclear weaponry, it is difficult to
imagine a major state that possesses such weapons reconciling itself to defeat
in a conventional war affecting its perceived core interests. The adoption of
nuclear weapons prohibitions, in certain forms, could possibly make the
outbreak of major warfare more probable in international life, thereby entail-
ing high human costs, and even quite unintentionally creating an increased net
risk that nuclear weapons would in fact come to be used.
Furthermore, in contouring a legal regime for nuclear weapons, the
starting point must be the basic principles constituting the customary interna-
tional laws of war. These principles, emphasizing discriminate and pro-
portionate warfare, seem impossible to reconcile with a nuclear weapons
regime that is responsive to our overall guidelines for nuclear weapons. That
is, the possession of a small number of invulnerable, inaccurate missiles
(second-strike weapons) seems at present the best calculated way to minimize
the danger of nuclear war, encourage crisis stability and minimize nuclear
arms race incentives. With reasonably credible conventional defensive capa-
bilities, and with the formulation of foreign policy goals in restrained terms,
the dangers associated with nuclear weapons would be significantly reduced
but there is a major catch. This type of minimization of initial threat rests
–
on the claim of last resort to engage finally in indiscriminate destruction, at
least in a post-attack situation where its execution would be vindictive in the
extreme. However, if nuclear weapons are reduced in number, while at the
same time they are made accurate enough to strike at military targets, then it is
difficult to maintain either crisis or arms race stability, because the nuclear
weapons retained by both sides could be used for offensive as well as
defensive purposes. If restraining notions were seriously implemented, they
might not deter high-risk war and foreign policy initiatives because a prob-
ability of military targets being destroyed could still be coupled with a
projected favorable outcome of a war. Leaders with intense ambitions or great
desperation might conceivably be persuaded to gamble on the unwillingness
of an attacked enemy to strike back pointlessly with nuclear weapons, or the
attacker might even be prepared to absorb some nuclear retaliation in ex-
change for a prospect of political victory. Because scenario reasoning (pro-
jecting hypothetical future situations) is far-fetched, the uncertainties of
political behavior in the nuclear age have been allowed to discourage value-
oriented breakthroughs on matters of security.
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A LEGAL REGIME FOR NUCLEAR WEAPONS
A legal regime responsive to this background must build upon several
interrelated aspects of the existing situation: the possession and retention of
some nuclear weapons for use in extreme situations; the mutual distrust of
adversary states, and a corresponding lack of sufficient confidence in interna-
tional institutions that disallows any transfer of control over nuclear weapons
beyond the level of the sovereign state; and the authority retained by govern-
ments to determine for themselves the occasions warranting recourse to the
right of self-defense.
Against this background, a beneficial international law regime for nu-
clear weapons would have to rest on the following considerations:
(a)
(b)
(c)
(d)
(e)
public support for the idea that any actual use of nuclear weapons
would violate the international law of war and would constitute a crime
against humanity;
public support for the rule that a first use of nuclear weapons, even in a
defensive mode in response to or in reasonable anticipation of a prior
non-nuclear armed attack, would violate international law and would
constitute a crime against humanity;
it follows from (b) that weapons systems (even at the research and
development stage), war plans, strategic doctrines, and diplomatic
threats that have first-strike characteristics are per se illegal, and that
those political leaders, engineers, scientists, and defense workers
knowingly associated with such “first-strike” roles are engaged in a
continuing criminal enterprise;
a definite consensus that second or retaliatory uses of nuclear weapons
against cities and primarily civilian targets violate international law
and constitute a crime against humanity;38
a clear obligation, recognized by all nuclear weapons states and by
other states as well, to pursue arms control in the direction of minimiz-
ing the role of nuclear weapons in conflict behavior through negotia-
tions in good faith; this obligation is a provision, art. VI, of the
3 There exists a definite normative tension between the legal framework most likely to
minimize the risks of the use of nuclear weapons and the legal framework guiding acceptable
uses of political violence. The latter framework is most consistent with a total prohibition
against nuclear weapons, and secondarily, with a prohibition on any use of them directed at
non-military targets. The minimizing framework, in contrast, reserves the option for the most
legally unacceptable use as the best practical means to avoid any use, and as well, to eliminate
arms race pressures and crisis instabilities. This “tension” expresses the impossibility of “living
with” nuclear weapons, and highlights the current tragic reality associated with no longer being
able to live without them.
McGILL LAW JOURNAL
[Vol. 28
(f)
widely-ratified Non-Proliferation Treaty,39 and is embodied in
general terms as well in the Charter of the United Nations and in a
variety of formal resolutions adopted over the years by the General
Assembly; and
a definite mandate directed toward citizens to take whatever steps are
available to them to achieve a law-oriented foreign policy for their own
country, including, as both conscience and good sense dictate, non-
violent acts of civil disobedience, and efforts to persuade members of
all branches of government to overcome the gap that separates the
normative consensus of the public as to the illegality of the use of
nuclear weapons from prevailing official policies.
These legal conclusions, taken in conjunction with the background of
present political circumstances and the general objectives of a stable world
order, underscore the importance of reinforcing the firebreak separating
conventional and nuclear weapons. Only by minimizing reliance on nuclear
weapons can the destabilizing geopolitical interactions surrounding their
possible use be reduced. In this regard, a formal no-first-use pledge, coupled
with comprehensive plans for a non-nuclear defense of vital interests, would
be the best overall indication that the normative implications of nuclear
weaponry are being taken seriously by policy-makers.
The most direct consequence of taking the normative dimension serious-
ly (and law and morality are mutually reinforcing with respect to nuclear
weapons), would be to make it “illegal” and “immoral” for a country to seek
any advantage or positive role for nuclear weapons in relation to national
security. From the moral/legal perspective, it is “illegal” to rest national
security plans, doctrines or weapons deployments on first-use options or
threats, and it is “immoral” for a country to undertake security commitments
without developing adequate non-nuclear capabilities. This development of
non-nuclear capabilities assumes great importance because no country will
accept defeat if that defeat seriously encroaches upon its political independ-
ence and territorial integrity. In such a case, it is likely, regardless of the legal
status of nuclear weapons, that such weapons would be used, because of
overwhelming pressure, if it was thought that their use would alter the
outcome of the war, and therefore, rules of prohibition need to be reinforced
by making the prohibited activity as unnecessary as possible.
“Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 21 U.S.T. 483,
T.I.A.S. 6839, 729 U.N.T.S. 161.
1983]
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Furthermore, there already exist “legal” instruments to moderate the
arms race and to convey reassurances to other countries that foreign policy
and national security planning are based on an unconditional renunciation of
nuclear weapons as legitimate instruments of war. Measures of arms control,
such as a mutually verifiable freeze, including a comprehensive test ban
treaty, seem essential instruments of this approach.
Finally, so long as nuclear weapons are possessed by states, it is impor-
tant that their possessor act so as not to make these weapons vulnerable to a
surprise attack, a theft or a terrorist attack. Making sure that a nuclear
retaliatory capability is resonably secure against enemy attack further helps to
prevent international situations arising in which the risks of nuclear war are
increased.
Within the framework of the present structure of international relations,
law and morality cannot do more than to minimize the dangers of nuclear war
and the use of nuclear weapons, assuming that strategic conflict is kept within
manageable limits. However, if geopolitical rivalry produces a world war,
then there is little reason to be hopeful that nuclear weapons will not be
introduced into it, either to win an ongoing war more easily or to avoid losing
it. In the end, over time, assurances against the “illegal” use of nuclear
weapons will depend upon drastic global reform. 40 A legal regime could never
purport to supply unconditional protection. It can only help to establish a
series of conditions that would make it less likely that international actors will
depart from underlying moral and legal guidelines. In this case, the destruc-
tive, even ultimate, consequences of a violation make the task of a legal
regime for nuclear weapons unique. Its success will depend upon the internal-
ized values, beliefs and interests of political leaders, military bureaucracies
and the public. Constructing such a legal regime will depend upon popular
pressure, aided by supportive religious groups and changing cultural perspec-
tives. The survival imperatives of our situation suggest the importance of
pushing our own leaders, as much as possible, in the direction of adherence to
international law guidelines in foreign policy, especially with respect to
strategic doctrine and planning. The need for such a framework could perhaps
be usefully formulated as a popular demand for a Magna Carta for the
Nuclear Age. This call is part of a wider conviction on my part that the citizens
‘For some perspectives on this issue, see R. Johansen, Toward an Alternative Security
System (1983) (Princeton – World Policy Institute Study Paper No. 24); and R. Falk, A Study
of Future Worlds (1975).
REVUE DE DRO1T DE McGILL
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of democratic societies have a selfish interest in assuring that their leaders and
institutions adhere to a constraining regime of law, as fully in foreign policy
spheres as in domestic domains of public policy.” Even such a dramatic
resetting of the constitutional order as I have been suggesting here can only
hope to achieve, at best, a transitional arrangement, a holding operation. The
terrible consequences of the potential use of nuclear weapons place enormous
burdens upon our preventive efforts, but even beyond these efforts, building a
permanent nuclear peace will depend upon the construction of “a warless
world”.
Conclusion
A haunting question hovers over the foregoing analysis: Is it possible to
reconcile any reliance on nuclear weapons simultaneously with minimum
security functions and with applicable normative traditions, particularly those
contained in the international law of war? The legal regime proposed above
confines absolutely the role of nuclear weapons to retaliatory uses and even
with respect to such retaliations, offers only a very reluctant, tentative and
ambiguous endorsement. The possession of the weapons for purposes of
threatening retaliation seems like an unavoidable transitional adjustment, but
the normative strain emerges as soon as the character of the threat is specified.
If retaliation is restricted in advance to a few isolated military targets, then the
security function of deterrence is undermined, whereas if it is not so restricted
then it seems to be exaggeratedly vindictive and indiscriminate in a manner
that is most manifestly at odds with the law of war.
The Catholic Bishops’ Pastoral Letter is only “a centimetre of ambigui-
ty” away from an unconditional rejection of nuclear weapons. As the final text
emerged, it did leave some political space for a continuing reliance on a much
narrowed conception of deterrence, at least for now. In effect, a certain
degree of normative incoherence must be accepted in both legal and just war
settings, in deference to the realities of our present reliance on nuclear
weapons, but with the strong proviso that such deference is a temporary
41Of course, citizens of non-democratic societies share a similar selfish interest, but
realistically, their prior goal, in the nature of a precondition, is to secure for themselves
democratic rights. In this regard, the struggle for the democratization of the relations between
state and society in the Soviet Union is intimately related to the struggle for the avoidance of
nuclear war, yet at the same time, it is partly separable from the preliminary effort needed to
construct a legal regime pertaining to nuclear weaponry. This separability arises from the
fortunate circumstance that Soviet state interests also appear to support minimizing the role of
nuclear weapons, and in this critical regard, do not depend upon responsiveness to democratic
pressures.
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A LEGAL REGIME FOR NUCLEAR WEAPONS
expedient that can be justified even on this qualified basis only if a far stronger
effort is made by governments to achieve arms control and nuclear
disarmament.4 2 If this disarmament effort fails to materialize within this
decade, then the burden of persuasion would seem to shift in support of the
unconditional prohibition of the threat, use and possession of nuclear
weapons, almost regardless of national security claims. The interim position
adopted here, in effect, provides governments with a final opportunity to get
their normative house in order, by adapting their security policies to an
emergent normative consensus that appears to preclude any reliance on
nuclear weapons.
42 For instance, Bishop Maurice J. Dingman is quoted as saying: “We said this country can
keep deterrence only if it works vigorously for arms control. If that isn’t achieved, I believe
we’ll take a far stronger stand.” Is the Pastoral Letter on Nuclear Weapons Only a Beginning?,
The New York Times (8 May 1983) E 5.
