AN APPRAISAL OF THE INTERNATIONAL LEGAL FRAMEWORK FOR THE ELIMINATION OF NUCLEAR WEAPONS AND ITS IMPLICATIONS FOR WORLD PEACE AND SECURITY

AN APPRAISAL OF THE INTERNATIONAL LEGAL FRAMEWORK FOR THE ELIMINATION OF NUCLEAR WEAPONS AND ITS IMPLICATIONS FOR WORLD PEACE AND SECURITY

ABSTRACT
It is in the security interests of states to live in a peaceful and secure world. The pursuit of peace
and security is, consequently, the desire of all states and often this finds place in their domestic
policies. One of the ways in which states of the international community have sought to protect
their security interests is by seeking military superiority over others and this invariably leads to
conflict of interests among them. In the quest for global hegemony and military superiority, the
United States of America and the Former Soviet Union in the mid-1940s developed the most
destructive explosive device ever, the nuclear weapon and immediately commenced a nuclear
arms race which motivated other states of the international community, United Kingdom,
France and China, to produce their own nuclear weapons before 1968. In 1968, these five states
sought to prevent the proliferation of nuclear weapons among other states of the international
community and accordingly set a framework for the non-proliferation of nuclear weapons with
the stated intent of eventual elimination of these weapons. The most significant treaty in this
framework came into effect in 1970. The Dissertation is an appraisal of the body of laws that
constitute the international legal framework for the elimination of nuclear weapons and the
implications of such elimination for world peace and security. The research problem that the
work confronts is the failure of the international community to achieve the elimination of
nuclear weapons despite the existence, since 1970, of a legal regime for that purpose. The
security of the world is currently jeopardized by the proliferation of terrorist networks globally.
If nuclear weapons are not completely eliminated and their means of production effectively
blocked, terrorist groups could eventually gain control of them and use them to destroy the
world. The primary objective of the dissertation is, accordingly, to examine the existing legal
framework for the elimination of nuclear weapons with the ultimate aim of contributing
solutions to nuclear weapons elimination. The research scope specifically covers the laws and
policies of the nine nuclear weapon states; U.S.A, Russia, China, U.K, France, India, Pakistan,
North Korea and Israel. The subject is, however, generally examined under the framework of
international law and policy. The dissertation makes three significant findings; foremost, that
the laws which constitute the international legal framework for the elimination of nuclear
weapons are inadequate to achieve the goal of elimination, secondly, that a significant obstacle
to the realization of the extant nuclear weapons law is the inefficiency of the enforcement
mechanism of the law, thirdly, that the elimination of nuclear weapons is embroiled in power
politics and therefore very difficult to achieve. Based on the findings, the dissertation
recommends that a specialized agency be established under the United Nations for the sole
purpose of elimination of nuclear weapons. It also recommends that international pressure
should be intensified for the adoption of the proposed nuclear weapons convention as the
substantive law on nuclear weapons elimination.
TABLE OF CONTENTS
Title Page……………………………………………………………………..……………..i
Declaration…………………………………………………………………………….…….ii
Certification………………………………………………………………………………….iii
Dedication…………………………………………………………………………………….iv
Acknowledgement..……………………………………………………………………………v
Abstract………………………………………………………………………………………vii
Abbreviations………………………………..………………………………………………viii
Table of Treaties and Statutes……………………………………………………………………x
Table of Cases…………………………………………………………………………………xii
Table of Contents……………………………………………………………………………….xiii
CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Research…………………………………………………………………1
1.2 Statement of the Problem………………..…………………………………………………..8
1.3 Aims and Objectives of the Research.…………….…………………………………………9
1.4 Scope of the Research……………………..…………………….……………………………9
1.5 Research Methodology………………………………………………………………………10
1.6 Literature Review……………………………………………………………………………10
1.7 Justification for the Research……………………………………………………………….32
1.8 Organization Layout………………………………………………………………………..33
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CHAPTER TWO
CLARIFICATION OF KEY TERMS, HISTORY AND EFFECTS OF NUCLEAR WEAPONS
2.1 Clarification of Key Terms …..…………………………………………………………….34
2.1.1 Nuclear Weapon..……….………..……………………………………………………….. 34
2.1.2 Nuclear Proliferation………………………………………………………………………. 37
2.1.3 Nuclear Non-Proliferation…………..……………………………………………………. 37
2.1.4 Nuclear Disarmament………………..……………………………………………………….38
2.1.5 Nuclear Deterrence…….……………..……………………………………………………38
2.1.6 Nuclear Weapon States and Non-Nuclear Weapon States…..……………………………..40
2.1.7 World Peace and Security…………………………………………………………………..40
2.2 History of Nuclear Weapons……………………………………………………………….45
2.2.1 The United States of America………………………………………………………………46
2.2.2 Russia (Former Soviet Union)…………………….………………..……………………….47
2.2.3 United Kingdom……………………………………………………………….…………..48
2.2.4 France……………………………………………………………………….………………50
2.2.5 China………………………………………………………………………….……………..50
2.2.6 Other Members of the Nuclear Club and the Anti-Proliferation Regime……..……………..51
2.2.7 The Cold War Arms Race…………………………………………………………………..61
2.2.8 Second Nuclear Age………………………………………………………….……………..64
2.3 Effects of Nuclear Weapons………………………………………………………………..65
2.3.1 Effects of Nuclear Weapons Explosion………………………………………………………65
2.3.2 Effects of Nuclear Weapons Production………………………………………….…………69
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2.3.3 Effects of Nuclear Weapons Testing…………………………………………………………70
2.3.4 Chernobyl and Fukushima…………………………………………………………….…….70
2.4 Analysis………………………………………………………………………………………72
CHAPTER THREE
AN EXAMINATION OF THE LEGAL FRAMEWORK FOR THE ELIMINATION OF
NUCLEAR WEAPONS
3.1 Overview of International Treaties on Nuclear Weapons………………………………..74
3.2 The Nuclear Non-Proliferation Treaty (NPT) 1968………………………..………………..75
3.2.1 Structure of the Treaty………………………………………………………………………76
3.2.2 Elements of Elimination in the NPT…………………………………………………………..81
3.2.3 State Parties’ Adherence to the Treaty………………………………………………………..81
3.2.4 Challenges to the Attainment of the Objectives of the NPT…………………………………83
3.2.5 NPT Review Conference……………………………………………………………………88
3.3 The Comprehensive Test Ban Treaty (CTBT)…………………………………………….98
3.3.1 Obligations of State Parties…………………………………………………………………….99
3.3.2 Measures for Attaining the Objectives of the Treaty……………………………………….102
3.3.3 Implementation of the Treaty………………………………………………………………104
3.3.4 Challenges to the Attainment of the Objectives of the CTBT………………………………..104
3.3.5 The CTBT and the Fissile Material Cut-Off Treaty………………………………………….110
3.4 The Nuclear Weapon Free Zone Treaties (NWFZ)……………………………………..113
3.4.1 The African NWFZ Treaty (Treaty of Pelindaba)………………………………………….115
3.4.2 Other NWFZ Treaties……………………………………………………………………..115
3.4.3 Significance of NWFZ Treaties…………………………………………………………..116
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3.4.4 Implications of NWFZ Treaties……………………………………………………………118
3.4.5 Challenges of the NWFZ Treaties…………………………………………………………119
3.4.6 Is a Middle-East Nuclear Weapon Free Zone Realizable?………………………………………….120
3.5 The Statute of the International Atomic Energy Agency (IAEA)………………………123
3.6 Bilateral Treaties between Russia and the United States of America.…………………126
3.7 The Advisory Opinion of the ICJ on the Legality of Nuclear Weapons……………….127
3.8 Soft Laws on the Elimination of Nuclear Weapons……………………………………..130
3.9 The Proposed Model Nuclear Weapons Convention……………………………………141
CHAPTER FOUR
AN EXAMINATION OF NUCLEAR WEAPONS ELIMINATION UNDER THE FRAMEWORK
OF INTERNATIONAL HUMANITARIAN LAW (IHL)
4.1 Overview of International Humanitarian Law (IHL)…………………………………..152
4.2 Relationship between IHL and Nuclear Weapons……………………………………….152
4.2.1 Scope of IHL on Nuclear Weapons…………………………………………………………..153
4.2.2 Analysis…………………………………………………………………………….……..162
4.3 Prohibition of the Use of Nuclear Weapons and IHL…..……………………………….162
4.4 The Arguments of the USA and the UK before the ICJ for the Validity of the Use of Nuclear
Weapons………………………………………………………………………………165
4.4.1 Arguments for the Permissibility of the Use of Low-Yield Nuclear Weapons……………166
4.5 Permissibility of the Threat to Use Nuclear Weapons…………………………………..169
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CHAPTER FIVE
AN EXAMINATION OF THE IMPLICATIONS OF THE ELIMINATION OF NUCLEAR
WEAPONS TO WORLD PEACE AND SECURITY
5.1 Introduction………………..………………………………………………………………172
5.2 Has the World Been More Peaceful Since the Emergence of Nuclear Weapons in
1945?……………………………………………………………………………………………………………………173
5.3 Does the Proliferation of Nuclear Weapons Increase or Decrease the Probability of Nuclear
War?…………………………………………………………………….……………………………..178
5.3.1 Analysis………………………………………………………………………….………..185
5.4 Challenges to World Peace and Security Posed by Nuclear Weapons…………………186
5.4.1 Nuclear Terrorism………………………………………………………………………….187
5.4.2 Proliferation and Spread of Nuclear Weapons……………….……………………..…….191
5.4.3 Illicit Spread of Nuclear Materials…………………………………………………….…..192
5.5 Implications of the Elimination of Nuclear Weapons……………………………………193
5.6 Are There Other Theories on Preservation of World Peace and Security?……………….193
5.6.1 The Democratic Peace Theory…………………………………………………………….194
5.6.2 Peace through Free Trade/Capitalism Theory..……………………………………………196
5.6.3 Peace through Law……………………………….……………………………………….199
5.6.4 Analysis………………………………………….………………………………………..200
CHAPTER SIX
AN EXAMINATION OF THE ENFORCEMENT OF NUCLEAR WEAPONS LAW
6.1 Conceptual Analysis of the Enforcement of Nuclear Weapons Law…………….…….202
6.1.1 What laws are to be enforced and who enforces them?………………………………………………202
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6.2 The International Atomic Energy Agency’s Verification of Compliance with Nuclear Weapon
Treaties……………………………………………………………………………….203
6.2.1 Iraq and the IAEA…………………………………………………………………………206
6.2.2 Verification in Nuclear Weapon States.……………………………………………………209
6.2.3 The IAEA’s Safeguards System: Impartial Verification Mechanism?………………………….211
6.3 The United Nations Security Council: The Second Component of the Enforcement
Mechanism………………..……………………………………………………………………214
6.3.1 The Efficacy of the United Nations Security Council as an Enforcement Mechanism of Nuclear
Weapons Law…………………………………………………………………………..217
6.4 Enforcement of Disarmament in Nuclear Weapon States.……………………………..229
6.5 Jurisprudential and other problems with the enforcement of Nuclear weapons law…234
6.5.1 The Consensual character of International law: An Impediment to Enforcement………….236
6.5.2 The Weakness of the Components of the International Law Enforcement System………..239
6.5.3 The States that refuse to be Party to the Nuclear Weapon Treaties…………………………246
6.5.4 The Intertwining of International Law with International Politics.………………………..246
6.5.5 The Conflict between Disarmament and Proliferation…….………………………………248
6.6 Profiling Potential Enforcement Facilitators………………,,…………………………..249
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CHAPTER SEVEN
CONCLUSION
7.1 Summary……………………………………………………………………………………263
7.2 Findings…………………………………………………………………………………….267
7.3 Recommendations…………………………………………………………………………269
Bibliography………………………………………………………………………………………………………………272
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CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Research
From the dawn of time humankind has manufactured military weapons to aid them in armed conflicts
with one another. The world has progressively witnessed the changing pattern of warfare, from closerange
engagements with small weapons to remote exchanges with evolved weapons of mass destruction.
Historians have traced the earliest weapons used in warfare to wooden clubs, sharpened sticks and
stones. With the passage of time, military weapons evolved to bows and arrows, swords, catapults,
ballistas, maces and lances, to guns and rockets. Advancements in technology prompted scientists to go
as far as the manipulation of chemical substances and biological species to manufacture chemical and
bacteriological weapons for use as weapons of mass and indiscriminate destruction. These were used in
the bloodiest war ever fought in the world, World War 1.
In 1945 during the Second World War a rare and strange catastrophe shook the very roots of a great
empire. The Japanese cities of Hiroshma and Nagasaki crumbled to ashes under attack from the United
States of America with a new destructive weapon called the ‘atomic bomb’ and more popularly known
as the ‘nuclear bom` b.’ The U.S.A had then only recently manufactured the atomic bomb and had
become the first state of the international community to produce the specie of weaponry that would
influence and dictate the interactions between states to the present time.
Nuclear weapons are weapons of mass destruction, which if used, will cause unfathomable
destructive effects on human beings and the natural environment. Analysts have projected the effects of
a major nuclear exchange to result in the death of millions of civilians within a very short period of time.
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They have also projected that a full-scale nuclear war could bring about the extinction of the human race
or its near extinction with a handful of survivors.
When the United States of America used its first nuclear bombs on Hiroshima and Nagasaki during
World War 2 in 1945, it did so as an attempt to compel the Japanese empire to surrender. The
devastating effects of the attack raised concern in the world about the implication of states’ possession
of nuclear weapons, to world peace and security. Furthermore, the production, storage and testing of
nuclear weapons have produced harmful effects on human beings and affected environments since the
first nuclear weapons were produced in 1945.
The acquisition of nuclear weapons was originally part of the defence strategies of the United States
and the former Soviet Union against each other. When more states began to acquire nuclear weapons,
concern about international security manifested in a call by non-nuclear weapon states for a total ban on
nuclear weapons production and possession. Consequently, the nuclear anti-proliferation and
disarmament regime was launched in 1970 when the Nuclear Non-Proliferation Treaty of 1968, came
into force.
The Non-Proliferation Treaty’s primary objectives are to hinder the proliferation of nuclear
weapons by states and secondly, to completely eliminate existing weapons through disarmament.
Although universally ratified except for four countries, the treaty has survived four decades without
fulfilling the purpose for which it was made. Other treaties, both bilateral and multilateral have come
into force after the NPT, seeking to limit nuclear weapons production through various means like testban
and declaration of nuclear-free-zones and thereby forming part of the legal framework for nuclear
weapons elimination. However, progress towards elimination has been very slow and it is being
overtaken by disturbing developments in the international scene, which require urgent, viable solutions.
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One of the foremost areas of concern in the nuclear context is the current trend in proliferation and
the consequent international tension. Two non-party states to the NPT, India and Pakistan, have since
launched their nuclear weapons program and investigations have revealed their ongoing participation in
aiding some state parties to the treaty, to secretly develop their own nuclear weapons program. More
than any other state party to the NPT, Iran has been accused of secretly diverting its nuclear materials
from peaceful to military uses. For several years the United States of America has accused Iran of
enriching its capabilities to develop nuclear weapons. Although Iran has consistently denied the
allegation, the International Atomic Energy Agency in November 2011 released a trove of evidence they
said made a “credible case” that “Iran had carried out activities relevant to the development of a nuclear
device.” Iran had received series of economic sanctions from the United Nations Security Council, the
European Union, U.S.A and seven other states of the international community. In June 2010, U.S.A
imposed harsh sanctions on Iran, whereby it prohibited any American business or individual and
American allied companies from trading with blacklisted individuals accused of helping Iran develop its
nuclear program. The U.S.A later in the year intensified its sanctions, targeting the country’s elite
Revolutionary Guard Force and energy and shipping sectors. This was following the imposition of
punitive measures against Tehran by the UN, U.S.A and EU, in a bid to stop its uranium enrichment
program. By the onset of 2012, concerns about an impending nuclear war between Israel and Iran
loomed largely over the world. To strengthen its resolve to prevent Iran from developing nuclear
weapons, U.S.A took significant steps to cut Iran off from the international financial system, announcing
coordinated sanctions aimed at its Central Bank and commercial banks. The mutual rhetoric of nuclear
attack between Israel and Iran intensified in 2013 along with the imposition of sanctions.
Another manifestation of international tension related to nuclear weapons is the crisis in the Korean
peninsula, which has amounted to concerns that the Korean peninsula is on the brink of nuclear conflict.
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North Korea, which withdrew from the NPT in 2003 and launched its own nuclear weapons program
soon thereafter has been the target of UN. and U.S. pressure to disarm. Pyongyang has officially
confirmed the broadening of its nuclear program, saying that there are several thousand working
centrifuges at its uranium enrichment plant in Yongbyon. This has raised concerns, with North Korea
being in conflict with South Korea. There is a growing fear of the probability of an outbreak of
hostilities on the Korean peninsula and the danger of a local nuclear conflict there as long as North
Korea continues to possess nuclear weapons. The United States of America is allied with South Korea
and they are cooperating to counter North Korea’s program for the development of missiles and
weapons of mass destruction. This means that U.S.A can supply not only conventional strike and missile
weapons to South Korea, but also tactical and strategic nuclear depth charges to help protect itself from
North Korea. On December 13, 2010, North Korea threatened that the South Korean’s live fire exercises
along its coastline would lead to nuclear war. In February 2013, North Korea carried out a nuclear test
and warned that it was going to target its nuclear weapons in an attack against the United States of
America.
Another cause of concern over nuclear weapons is the deepening probability of nuclear terrorism,
that is, the likelihood that nuclear armaments will eventually come into the hands of non-state actors,
namely, terrorist groups and those groups using the weapons in indiscriminate attacks or even suicide
attacks. On September 11, 2001, terrorists hijacked four commercial planes in the U.S.A and attempted
to fly them into several targets. Two successfully crashed into the Twin Towers of the World Trade
Center in New York City, killing about 3000 people. That incident raised the consciousness of the world
regarding the rising phenomenon of terrorism. With their destructive and indiscriminate potential,
nuclear weapons under the control of terrorist groups will invariably pose the greatest threat ever to
world peace and security. Nuclear terrorism can be an attack on a nuclear power plant or it may involve
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the theft of a tactical nuclear weapon by non-state actors, and its detonation on innocent unsuspecting
civilians.
Notwithstanding all the problems associated with the possession and proliferation of nuclear
weapons and the commitment professed by states to the realization of a nuclear weapons-free world,
nuclear weapon states still hold on to their weapons and assert the validity thereof on the strength of the
doctrine of nuclear deterrence. The doctrine of nuclear deterrence stipulates that nuclear weapons are
essential to deter states from embarking on warfare. Because of their known destructive effects, states
holding nuclear weapons, or under the protection of such states seek to discourage military aggression
by demonstrating that it would be pointless, since it might lead to the use of nuclear weapons in war,
which will result in the destruction of all parties involved. The nuclear deterrence doctrine, therefore,
singularly maintains the validity of the possession of nuclear weapons by states. There is thus a split
opinion for and against the possession of nuclear weapons held by nuclear weapon states and their allies
on one hand, and non-nuclear weapon and non-aligned states, on the other.
The fact that nuclear disarmament is slow and unpromising is a problem for non nuclear weapon
states that have signed the Non-Proliferation Treaty, as well as treaties that declared their regions
‘nuclear-weapon-free zones.’ These states have given up their rights to produce and possess nuclear
weapons. Although nuclear weapon states have given a reciprocal undertaking not to attack any nonnuclear
weapon state party to those treaties, if for any reason nuclear weapon states violate their
undertaking and attack non-nuclear armed states, the latter would be completely at the mercy of the
nuclear superior states. This is because non-nuclear weapon states do not have equivalent weapons to
deter or scare away a potential nuclear threat.
Africa is one of the regions of the world that has declared itself a nuclear weapon free zone and all
African countries have signed and ratified or acceded to the Non-Proliferation Treaty. In the 4th meeting
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of the First Committee of the 67th General Assembly session in New York on 10th October 2012, the
representative of Nigeria at the session, Usman Sarki, expressed the concern of the Nigerian delegation
about the lack of progress in nuclear disarmament. The Delegation’s position was thus:
Nigeria reaffirmed its belief that nuclear weapons were the
ultimate weapons of mass destruction and that their total
elimination should be the final objective of all disarmament
processes in the United Nations. Nuclear weapons offered
no credible defence against other enemies possessing
similar weapons, but they posed an existential threat to
those who did not possess them…
Conclusively, the existing legal framework for the elimination of nuclear weapons which has
subsisted for four decades has proven to be inadequate. The most significant treaty of the framework, the
NPT, has some inherent structural weaknesses, which contribute to impeding its successful
implementation and it does not proffer solutions to the new developments challenging world peace and
security.
1.2 Statement of the Problem
Nuclear weapons are the most destructive explosive devices ever produced on earth. All the processes
involved in the production, storage and testing of nuclear weapons have harmful effects on human
beings and the natural environment while the explosion of nuclear weapons in a major nuclear exchange
has the potential effect of destroying the whole world.
Presently nine states of the international community possess and maintain nuclear weapons in their
military arsenal as part of their defence policy. Although a legal framework for non-proliferation and
elimination of nuclear weapons has been in existence since 1970, nuclear weapon states have refused to
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commit to disarmament, which has resulted in international tension between them and the non-nuclear
weapon states.
Nuclear weapon states maintain their weapons upon the doctrine of nuclear deterrence which
validates the possession of nuclear weapons for the preservation of world peace and security, yet the
security of the world is jeopardized by the proliferation of terrorist networks globally. If nuclear
weapons are not completely eliminated and their means of production effectively blocked, terrorist
groups could eventually gain control of them and use them in attacks that could lead to the destruction of
the entire human race and the ecosystem of the planet. The foregoing, therefore, raised the following
research questions:
i. whether the existing legal framework for the elimination of nuclear weapons is adequate
ii. whether the application of the existing legal framework contributes to world peace and security
iii. whether the doctrine of nuclear deterrence is significant to the preservation of world peace and
security, or it constitutes an obstacle to it.
1.3 Aims and Objectives of the Research
The research aimed at identifying and examining the problems caused by the proliferation of nuclear
weapons in the world and the difficulties involved in eliminating them. This is in order to contribute
solutions to nuclear disarmament and and profer recommendations for a more effective enforcement
regime for nuclear weapons elimination. The objectives of the dissertation are:
i. To examine the existing legal framework for the elimination of nuclear weapons and its
application.
ii. To establish findings on the significance of the doctrine of nuclear deterrence to world peace and
security.
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1.4 Scope of the Research
The research topic is grounded predominantly in international law. World peace and security is a
concept relevant to international law and the body primarily responsible for the maintenance of world
peace and security is the United Nations Organization. Accordingly, the topic was examined primarily
under the framework of international law and policy. The theme of nuclear weapons affects the entire
human race and is not confined to any or specific geographical regions, therefore, the geographical
coverage of the topic is the whole world. The dissertation, however, specifically focused on the laws,
policies and practices of the nuclear armed states, namely, the United States of America, Russia, Britain,
China, France, India, Pakistan, Israel and North Korea.
1.5 Research Methodology
The research method used for this dissertation is doctrinal. The materials used for the research are
classified into two major sources: primary and secondary sources. The primary sources consist of
international treaties and judicial interpretations of those treaties, laws and polies of states. The
secondary sources of data consist of journal articles, textbook material, workshop, seminar and
conference papers.
The library and internet were the primary means of research. Book and journal subscriptions also
featured as means of obtaining recent data. The facilities of the JSTOR website have also been
thoroughly utilized.
1.6 Literature Review
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The debate on whether or not nuclear weapons should be eliminated completely from the world has been
divided into two opinions. One opinion states that nuclear weapons are necessary for the purpose of
deterrence. This opinion is held mainly by the nuclear superpowers and their allies. The other states that
nuclear weapons pose a fundamental threat to world peace and security and so should be completely
eliminated. The bulk of the literature on nuclear weapons is centered on this controversy.
Making a case for the sustenance and spread of nuclear weapons, Kenneth Waltz argues that the
world has enjoyed more years of peace since World War II for two reasons. One reason is the shift from
multipolarity to bipolarity and the other is the introduction of nuclear weapons. Defining peace as the
absence of general war among the major states of the world, Waltz asserts that the introduction of
nuclear weapons has had a significant effect in maintaining general peace in the world. His thesis is that
nuclear weapons have been the second force working for peace in the post-war world because they make
the cost of war frighteningly high and thus discourage states from starting any wars that might lead to
the use of such weapons. Nuclear weapons have helped maintain peace between the great powers and
have not led their other possessors into military adventures.
Waltz regards the fear over the spread of nuclear weapons with derision. He states that much of the
writing about the spread of nuclear weapons tells that what did not happen in the past is likely to happen
in the future, that tomorrow’s nuclear states are likely to do to one another what today’s nuclear states
have not done. He concludes that a happy nuclear past leads many to expect an unhappy nuclear future
and he calls this line of reasoning an oddity. According to him, states go to war for one of four reasons,
offence, defence, deterrence or coercion. His thesis, like the thesis of his pro-nuclear peers is based on
the deterrence ideal. With unusual confidence he maintains that nuclear weapons will be used only for
the purpose of deterrence, which goes to say that they would never be actually used to cause the state of
Armageddon feared by all. However, their mere existence in the possession of states would deter other
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states from embarking on offensive or coercive actions because of the fear that the possessing states
would be pushed to nuclear warfare in self-defence. He explains that according to the deterrence ideal,
one should expect war to become less likely when weaponry is such as to make conquest more difficult,
to discourage pre-emptive and preventive war and to make coercive threats less credible.
Furthermore, the likelihood of war decreases as deterrent and defensive capabilities increase.
Whatever the number of nuclear states, a nuclear world is tolerable if those states are able to send
con vincin dgeterrent messages: It is useless to attempt to conquer because you will be severe l y
punished. A nuclear world becomes even more tolerable if states are able to send con vincin dgefensive
messages: It is useless to attempt to conquer because you cannot. Nuclear weapons and an appropriate
doctrine for their use may make it possible to approach the defensive-deterrent ideal, a condition that
would cause the chances of war to dwindle.
However, despite his passionate advocacy for the spread of nuclear weapons in furtherance of the
deterrence ideal, Waltz himself acknowledges that no one can say that nuclear weapons will never be
used. Their use, he admits, although unlikely, is always possible. He however finds justification for his
thesis in the balance between the remote possibility that states may engage in nuclear warfare and the
historical fact that the presence of nuclear weapons makes wars less likely. He qualifies his argument by
saying that one may nevertheless oppose the spread of nuclear weapons on the ground that they would
make war, however unlikely, unbearably intense should it occur. But even to that he defends with
another argument that nuclear weapons have not been fired in anger in a world in which more than one
country has them, that the world has enjoyed three decades of nuclear peace and may enjoy many more.
Although his argument in defence of the deterrence-ideal is passionate, the bulk of Waltz’s literature
is grounded in conjecture. While he relies substantially on history to justify the non-likely use of nuclear
weapons by states, the rest of his thesis relies on the fear of mutually assured destruction by states to
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ensure that they do not contemplate the use of such weapons. However, his thesis has failed to address
the fact that there is no framework within which the international community may effectively deal with a
flagrant abuse of the deterrence mechanism in circumstances where a state actually uses its nuclear
weapons to the general detriment of mankind. This is despite his admission that the possibility of
nuclear warfare though remote, still exists. Furthermore, Waltz seems to base the whole of his thesis on
the possession of nuclear weapons by states and did not address the possibility and consequences of the
possession of the weapons by non-state actors like terrorist groups. This however, could be attributed to
the fact that he was writing at a time when terrorist attacks were not prevalent.
In the contemporary world, the phenomenon of terrorism has become a predominant concern to the
international community. The rate at which terrorism is growing raises concerns of the catastrophes that
could occur when terrorist groups gain control over nuclear weapons. This concern was reflected by
Aliyu Mukhtar Katsina thus:
With the rather abrupt way the Cold War was brought to an end, a
new force emerges in international arena. That is terrorism. Today,
the power and impact of terrorism defies the sheer force of military.
The September 9/11 attacks on USA confirm this suspicion and
bring to light the embarrassing limitations of the conventional
security theories in national defence. Notwithstanding her
regulation as the greatest economic, industrial, technological and
military power, agents of terrorism invaded US and wrought
dangerous havoc in her own turf. With the passage of the Cold War,
terrorism becomes a strong force in international politics.
In his thesis, Katsina raises concern over the position of states with weaker economies and military
strength, and particularly his own country, Nigeria. He regards the concept of deterrence from a holistic
perspective, as an idea of economic development and integration, excellent infrastructure,
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industrialization and superior technology, in relation to the immediate source of threats. He, however,
observes sadly that Nigeria of the 21st century possesses none of the above.
Katsina’s observation is significant in that no African state possesses nuclear weapons; hence the
whole doctrine of deterrence has no positive implication for the African continent. On the contrary, the
sustenance of nuclear weapons by nuclear armed states keeps the less economically and technologically
advanced, militarily inferior African states in a position of weakness. This reason alone makes the antinuclear
movement relevant to Africa. This was aptly captured by Okwori, A.S. thus:
The understanding has been that massive acquisition of lethal weapons
forms the basis for effective manipulation aimed at removing the war
option from the strategic calculations of potential adversaries, although
such acquired weapons of mass destruction could be used but only as a last
resort. Global changes however call for a change or shift in the
interpretation of the concepts of security and deterrence of African states.
Donald Whitmore presents several challenges to the deterrence theory, including the fact that the
deterrence theory ignores the possession of nuclear weapons by non-state actors. Whitmore regards the
whole deterrence theory as fallacious. Observing that the threat underlying nuclear deterrence is that
aggressive acts will be answered by nuclear weapons retaliation, he reasons that if that threat lacks
credibility, then deterrence is at least uncertain and perhaps impotent or inoperative. In a very realistic
analysis he regards that a major flaw in the deterrent strategy is what deterrence theorists call ‘selfdeterrence’.
The problem is that retaliatory threats lack credibility when risks to homeland survival are
great (the expected case in nuclear war). Threats of nuclear retaliation can have a hollow ring if it is
believed actual retaliation would be self-deterred by fears of national survival. Also, empty threats have
no security value or can be even counterproductive.
According to his argument, nuclear weapons threat lacks the ability to support both conventional
attack deterrence and nuclear attack deterrence. In the former, it appears to be weakly argued that
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nuclear weapons can deter conventional military action by lesser powers – when modern conventional
weapons hit targets precisely and overwhelm most opponents. As for nuclear attack deterrence, he
contends that the practical value of nuclear arsenals in deterring nuclear attack from a potential
aggressor is highly questionable since an alleged retaliation threat (which underlies deterrence) might
not be convincing due to the self-deterrence factor.
A weakness of many a deterrence theory is the failure to address the issue of nuclear weapons’
possession by non-state actors. Pro-nuclear weapons literature is largely devoid of such consideration.
On the other hand, anti-nuclear weapons literature cites it as a fundamental threat to the preservation of
world peace and security. Whitmore, for example, explicitly asserts that international security is in fact
degraded by continued reliance on nuclear arsenals, for example, increased risk exposure to terrorist
procurement of weapon ingredients and “have/have nots” dichotomy impacts which compromise the
nonproliferation regime (including the Non-proliferation Treaty). On this point he concludes that nuclear
deterrence to ward-off a nuclear threat does not have convincing mission utility or strategic value.
Furthermore, even regarding state actors, Whitmore does not confer much integrity in the handling
of the nuclear issue. While Waltz’s thesis confers absolute rationality on state actors, as a safeguard
towards deterrence, Whitmore rejects the expectation that the deterred party in a deterrence scenario will
always be wise, rational and prudent in its decision-making. Such an expectation, according to him, can
lead to the belief that deterrence will not fail, yet that could be misleading and dangerous in a situation
of rapidly escalating tensions. That expectation could produce miscalculations resulting in catastrophe.
He explains that it should be expected that decision-making on the brink of nuclear war would be in a
high-stress, emotionally-charged environment not conducive to cool-headed, rational thinking.
In fact, in a way that presents a paradox to Waltz’s deterrence-ideal, Whitmore asserts that nuclear
arsenals can even have the opposite psychological effect of removing inhibitions to aggression, as
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opposed to inhibiting aggressive acts. He reasons that aggressive acts can be committed with relative
impunity because an opponent will refrain from a military response that might escalate to hostilities,
which invite nuclear disaster. He concludes, therefore, that practical reliance on nuclear arsenals for
valid protection is more a matter of fantasy than of reality.
Professor Powell approaches the nuclear issue in a slightly different way from taking a clear-cut
position on the desirability or otherwise of nuclear weapons. While acknowledging the potent
destructive consequences of nuclear weapons, he argues for the relevance of the nuclear deterrence
theory in the post Cold-War era. Powell argues that nuclear deterrence theory remains relevant and it
implies that the risk of states using nuclear weapons depends on two key factors being present at the
same time. The first is a severe conflict of interest; the second is the uncertainty about the balance of
resolve between the states; that is, about which state is willing to run the higher risk in order to prevail.
While the importance of the first factor is widely appreciated and understood, the importance of the
second is not.
Powell describes the role of nuclear weapons in political conflicts as changing the strategic setting
in which those conflicts play out, rather than eliminating them. Although not completely eliminating
conflict, the risk of events spinning out of control transforms crisis between nuclear-armed states into a
kind of brinkmanship. In a brinkmanship crisis, each state tries to induce the other to back down by
taking steps that raise the risk that events will go out of control. Although states may be very reticent to
raise the risk, they may be still more reluctant to back down. Throughout a brinkmanship crisis, each
state faces a series of terrible choices. It can quit, or it can decide to hang on a little longer and accept a
somewhat greater risk in the hope that its adversary will find the situation too dangerous and back down.
If neither state backs down, the crisis goes on with each state effectively bidding up the risk until one
eventually finds the risk too high and backs down or until events actually do spiral out of control.
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Although he draws a conclusion that Brinkmanship crises are crises of resolve, not of relative
military strength, Powell’s admission that a failure of resolve may give way to events actually spiraling
out of control makes the deterrence theory appear very volatile. The peace and security of the world in
nuclear context in fact rests upon the supposition that in political conflicts between nuclear-armed states,
one would eventually back down in fear of a major nuclear disaster. In the same vein with Waltz, the
deterrence rhetoric rests upon the expectation of ‘fear.’ Accordingly, Powell frankly admits that the
nuclear deterrence theory remains a useful compass with which to navigate the future but the answers it
provides are not comforting. The balance of resolve between nuclear states over critical issues is likely
to be opaque, and this increases the risk of escalation and use of nuclear weapons.
On the credibility of the nuclear deterrence argument, Hans Kristensen points to the fact that
although NATO officials claim that the weapons are deterrent to war, that theory has been disproved by
the outbreak of the conflict in Bosnia and Herzegovina. Kristensen’s thesis reveals that the U.S has
deployed nuclear weapons in Europe against the threat of a Soviet invasion during the Cold War. The
threat ended more than a decade ago but U.S. has not withdrawn its weapons from Europe. He observes
the contradictory stance of the U.S, stating that at a time when both Europe and the United States are
engaged in high-profile diplomatic non-proliferation efforts around the world to promote and enforce
non-proliferation of nuclear weapons, deploying hundreds of such weapons in non-nuclear NATO
countries and training the air forces of non-nuclear NATO countries – in peacetime – to deliver these
weapons in times of war, is at cross purposes with an effective non-proliferation message.
Kristensen asserts significantly that all of the non-nuclear NATO countries that host nuclear
weapons on their territory (e.g. Belgium, Germany and Turkey) have signed a treaty, under which they
pledged not to receive the transfer of nuclear weapons or other nuclear explosive devices or of control
over such weapons or explosive devices directly, or indirectly. Likewise, U.S. has committed itself not
16
to transfer to any recipient whatsoever, nuclear weapons or other nuclear explosive devices or control
over such weapons or explosive devices directly or indirectly. He concludes that NATO’s contradictory
non-proliferation policy of providing non-nuclear NATO countries with the capability to deliver nuclear
weapons in wartime, while insisting that other non-nuclear countries must not pursue nuclear weapons
capability, reveals a deeply incoherent vision for nuclear security in the 21st century.
It is significant to note that the nuclear weapons issue in the Cold-War era did not enjoy the
sensitivity of the present Post-Cold-War era. Hence while the nuclear powers and their allies in the Post-
Cold-War era maintain the view of the impossibility of nuclear warfare under the doctrine of mutually
assured destruction, Cold-War nuclear weapons’ literature reflects genuine contemplation of nuclear
weapons utilization for the attainment of military victory. Writing in 1986, A.A Sidorenko stated that
the principle of the employment of nuclear weapons in combination with other means of destruction
follows from the fact that it is impossible to destroy all varied objectives on the battlefield with nuclear
weapons alone. It is believed that nuclear weapons, as the main means of destruction, will be employed
only for the destruction of the most important objectives; all other targets are neutralized and destroyed
by the artillery, aviation and fire of tanks and other weapons. In other words, nuclear weapons are
employed in combination with other means in accordance with the concept of the battle.
However, this is not to suggest that the nuclear deterrence theory was not popular at the time. It will,
therefore, be correct to establish that Cold-War era literature reflects the position that concern about the
safety of the world from the effects of nuclear weapons was not of primary priority to the nuclear super
powers. While deterrence was a relevant strategy for curtailing the incidents of conventional war, there
was still contemplation that the use of nuclear weapons would be resorted to if deterrence failed. Hence
both deterrence and use of nuclear weapons were ingrained components of war strategies. Present Post
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Cold-War literature however indicates absolute aversion to the use of nuclear weapons, as well as the
belief by the nuclear powers, of the impossibility of the use of the weapons.
1.6.1 Review of Literature on the Advisory Opinion of the International Court of Justice, on
Nuclear Weapons.
In 1996, the International Court of Justice (ICJ) delivered an Advisory Opinion on the legality of the
threat or use of nuclear weapons in response to a request made to it by the United Nations General
Assembly. The opinion, regarded as controversial in legal circles, has attracted a lot of analysis from
international law scholars of which the literature would be examined forthwith.
The nexus between the opinion and the issue of the possession of nuclear weapons vis.-a-vis. world
peace and security lies in the fact that a pronouncement by the Court, declaring the illegality of the
threat or use of nuclear weapons, would ultimately resolve to a large extent the issue of possession, for
that which use is illegal should not be possessed. Such judicial pronouncement would further create a
platform for a precise treaty on the total ban on nuclear weapons. A pronouncement on its legality on the
other hand, should form a basis for a cogent framework for possession.
The General Assembly put the question forth: “Is the threat or use of nuclear weapons in any
circumstances permitted under international law?” Among other findings, the Court found that in the last
two decades a great many negotiations have been concluded regarding nuclear weapons; they have not
resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons.
However, a number of specific treaties have been concluded in order to limit the acquisition,
manufacture and possession of nuclear weapons, the deployment and testing thereof.
In the main, the court held that there is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons or any comprehensive and universal
18
prohibition of the threat or use of nuclear weapons as such. It held further, that the threat or use of
nuclear weapons would generally be contrary to the rules of international law applicable in armed
conflict and in particular, the principles of international humanitarian law. It concluded, however, that in
view of the current state of international law and of the elements of fact at its disposal, it could not
conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an
extreme circumstance of self-defence in which the very survival of a state would be at stake.
Timothy Mc Cormack states explicitly that the Advisory Opinion was a somewhat disappointing,
if not entirely unexpected decision. He reasons that international law had traditionally distinguished
between the law regulating the legitimate resort to force (jus ad bellum) and the law regulating the actual
deployment of force (jus in bello). Any legitimate exercise of force must be consistent with both sets of
principles. The Opinion, however, confuses the jus ad bellum with the jus in bello since the majority of
the court declared a non-finding (non-liquet). While noting that the decision was a split decision of the
court, Mc Cormack concludes that the fact that the majority qualified its ruling on the illegality of the
threat or use of nuclear weapons by referring to an ‘extreme circumstance of self-defence’ rather than
arguing, for example, that such threat or use may not necessarily be inconsistent with the jus in bello,
was both a surprise and a disappointment.
In his analysis Mc Cormack confronts the opinion of the court from the normative significance of
the Nuclear Non-Proliferation Treaty (NPT), arguing that the court generally overlooked this. He
explains that the NPT is the key multi-lateral treaty dealing specifically with nuclear weapons. The
primary objective of the treaty is to prevent the proliferation of nuclear weapons, particularly horizontal
proliferation. The NPT allows for the continued possession of nuclear weapons by the five states
declared to be the nuclear-weapon possessors at the time the treaty was concluded; but it is arguable that
this is only an interim measure pending agreement between those states, on complete nuclear
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