Nuclear Weapons, War, and the Discipline of International Law

The deepest challenge confronting those who seek the abolition of nuclear weapons arsenals and unconditional prohibition of future acquisition cannot be met by relying on the pious rhetoric about the legal prohibitions applicable to nuclear weaponry. International law certainly affects the aura of illegitimacy that surrounds any discussion of nuclear weaponry, but its clear pronouncements and authoritative arrangements have not demonstrated any capacity to influence behavior, especially of the nuclear weapon states. Most international law experts would agree that any threat or use of nuclear weapons, except possibly in retaliation against a prior nuclear weapons strike or when the survival of a state was at stake, is unlawful, yet the doctrines and policies of states have involved threats without adverse consequences. The highest judicial body in the United Nations (UN) system endorsed this general assessment in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons delivered in 1996. Beyond this, the most comprehensive international treaty on the subject, the Non-Proliferation of Nuclear Weapons (1968), commits nuclear weapon states in Article VI to end “the nuclear arms race at an early date” and “pursue negotiations in good faith” to achieve “nuclear disarmament.” Such clear legal admonitions have been ignored by nuclear weapon states, most pointedly by the United States, without causing any notable criticism either in diplomatic circles or within domestic politics.