Disarmament Scenarios

Steps toward Abolition

Banning the Use of Nuclear Weapons

by Jozef Goldblat

In an attached PDF article, Dr. Jozef Goldblat “argues that the efforts to create a nuclear-weapon-free world are bound to remain fruitless as long as the use of nuclear weapons has not been universally and unreservedly banned.” He is vice-president of the Geneva International Peace Research Institute. Here we summarize his main points.

Restrictions on the use of weapons. Dr. Goldblat indicates that it is generally recognized that, in their application, weapons and war tactics:

must be confined to military targets;
must be proportional to their military objectives as well as reasonably necessary to the attainment of these objectives;
must not cause unnecessary suffering to the victims or harm human beings and property in neutral countries.

“These rules form part of the international humanitarian law applicable in armed conflicts, often referred to simply as international humanitarian law, and are embodied in several multilateral treaties.”

Applicability of existing law to nuclear weapons. “There is a body of opinion that there is no need to create a legal norm to ban the use of nuclear weapons, because such a ban is already covered by the humanitarian law of armed conflict.” The arguments are summarized as follows:

Prohibition of first strike “is cov¬ered by the fundamental rule of international law enshrined in the UN Charter, namely, that the threat or use of force against the territorial in¬tegrity or political independence of any state is prohibited un¬conditionally, irrespective of the type of weapon employed - nu¬clear or non-nuclear.”
Although the UN Charter gives states the right of self-defense until the UN Security Council Acts, “the right of self-defense is not unlimited.”
The 1907 Hague Convention IV on laws and customs of land warfare “prohibits the employment of arms causing unnecessary suffering or the destruction of the enemy's property, unless such destruction is imperatively demand¬ed by the necessities of war. “Since nuclear explosions could cause massive injury to people and massive damage to property, and since mass destruction can hardly be a necessity, it would be nearly impossible to observe the rele¬vant rule in a nuclear war.”
“Under customary international law, reiterated in the 1949 Geneva Conventions for the protection of war victims, the belligerents are under strict obligation to protect the civilians, not taking part in hostilities, against the consequences of war. The indiscriminate nature of nuclear weapons renders this norm very difficult to com¬ply with.”
“Since nuclear explosions may also be expected to cause widespread, long-term and severe damage to the natural environment, their use would contravene Protocol I Additional to the 1949 Geneva Conventions and relating to the pro¬tection of victims of international armed conflicts.”
“In placing limitations on the con¬duct of hostilities, the 1907 Hague Convention IV included the so-called Martens Clause, which was subsequently re-affirmed in several treaties. This Clause makes usages established among civilized peoples, the laws of humanity and the dictates of the public conscience obligatory by themselves, even in the absence of a specific treaty prohibiting a particular type of weapon.”

Dr. Goldblat concludes: “The cumulative effect of the generally accepted restraints on the use of all weapons is such that nuclear war can hardly be initiated with obedience to the rules of customary international law.”

Nuclear security assurances and their limitations. Although nuclear weapons states have given assurances that they would not use nuclear weapons against non-nuclear weapons states, these assurances are conditional. Likewise pledges of no first use of nuclear weapons can be reversed.

Consequences of no-use commitments. “Only a formal unconditional undertaking not to use nuclear weapons against any country, whatever its status - nuclear or non-nuclear, aligned or non-aligned, party or not party to the NPT or a nuclear weapon-free-zone treaty - appears to have real significance.”

“As a corollary to such an undertaking, tactical nuclear weapons would have to be totally eliminated because of their first-strike characteristics.”
“To become even more credible, the non-use commitments would have to be backed up by taking nuclear strategic forces off alert.
However: “According to the doctrine of belligerent reprisals, a retaliatory use of nuclear weapons to make a violator of the ban on use desist from further illegitimate actions would not be considered a breach of the ban, if it were proportionate to the violation committed and to the injury suffered.”

Responses to CBW attacks. “Once the right of legitimate self-defense, individual or collective, is restricted to the use of non-nuclear means of warfare, a nuclear response to an aggression committed with chemical or biological weapons will be prohibited as well.”

Making a no-use treaty. Dr. Goldblat indicates that a treaty banning the use of nuclear weapons should have several main characteristics.

“The proposed non-use obligations should be included in a multilateral treaty open to all states.
The treaty should become effective only upon its ratification by all states which have declared to possess nuclear weapons or the capability to manufacture them, including China, France, India, Israel, Pakistan, Russia, the United Kingdom and the United States.
“Violation of the treaty banning the use of nuclear weapons must be qualified as a crime under international law and treated as such.”
“The treaty should be of unlimited duration. Withdrawal from it could be justified only in case of an internationally established material breach of its provisions.”

Conclusion. After presenting these arguments, Dr. Goldblat concludes:

“A global ban on the use of nuclear weapons would reinforce the fire-break separating conventional and nuclear warfare. It would, thereby, diminish the risk of nuclear war and weaken the political force of explicit or implicit threats to initiate such a war. Indeed, the doctrine of nuclear deterrence, in so far as it consists in threatening a nuclear attack in response to a non-nuclear attack, would have to be declared invalid.”
“Furthermore, in discarding the war-fighting functions of nuclear weapons, the non-use posture would minimize the importance of nuclear superiority, whether quantitative or qualitative. It would, therefore, clear the way towards the abolition of tactical nuclear weapons and towards new substantial reductions of strategic nuclear forces.”
“Given the attitudes of the majority of the de jure or de facto nuclear weapon powers, the prospect of reaching a no-use treaty is not bright. However, only when such a treaty is signed, will the pledges made by these powers to eventually bring about complete nuclear disarmament become credible.”

To read Dr. Goldblat’s complete article, click here.

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