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Macomb, IL – Nuclear weapons are in the news: The Secretary of State discussed nuclear weapons with NATO allies; the United States announced a change in its nuclear weapons policy, narrowing the circumstances under which it will use nuclear weapons. The U.S. and Russia just signed a new strategic arms reduction treaty, obligating both states to reduce the number of nuclear weapons it holds. Forty states are hosted in Washington for a discussion on controlling and reducing nuclear weapons.
These initiatives are designed to encourage other states to reduce their stockpiles of and stop developing nuclear weapons. After the fall of the Soviet Union, the world no longer focuses on the vast stockpiles of China, the US and Russia. It now worries about terrorists getting bombs and about North Korea and Iran. Are nuclear weapons prohibited or controlled by international law?
There are a variety of legal regimes that touch on the subject. Attacking civilian populations or causing unnecessary suffering are violations of the law of war and of international humanitarian law. The bombs at Hiroshima and Nagasaki would today likely be violations of international law.
Nuclear weapons create nuclear fallout that pollutes and sickens and kills not only where the weapon explodes, where everything and everybody is burned - but it travels hundreds or thousands of miles, polluting many times the area of the attack, a violation of international environmental law.
Nuclear weapons cannot even be tested without degrading the environment and ecosystems, even if conducted underground, since groundwater is contaminated.
The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) obligates state parties to "pursue negotiations...for ...a treaty on general and complete disarmament under strict and effective international control." Non-nuclear weapon states parties agree not to acquire or produce nuclear weapons, and to accept safeguards to detect diversions of nuclear materials from peaceful activities to the production of weapons.
At the request of the General Assembly, in an advisory opinion the World Court discussed the lawfulness of nuclear weapons. In that murky opinion the court seemed to say that the lawfulness of nuclear weapons is questionable.
They did say that the threat or use of nuclear weapons is prohibited by international law with the possible exception of self defense, and then only when the state is in extreme circumstances, that is, its very existence is in danger.
The court went on to say that those nuclear states signing the NPT are obligated to negotiate a treaty to ban nuclear weapons, which they have not done. India and Pakistan have the bomb, most believe Israel does also. None of these three have signed the NPT.
The Partial Nuclear Test Ban Treaty (PNTB) prohibits all test detonations of nuclear weapons except underground.
A number of states have declared themselves to be nuclear free zones. Latin American states, certain South Pacific and Asian states have entered into treaties prohibiting nuclear weapons in their regions.
There are two camps in the world: those who believe nuclear weapons are a legitimate weapon so long as used according to the law of war; and those who are convinced that nuclear weapons are inherently bad and illegal.
There is no rule against states holding nuclear weapons.
Frederick Perry is an Associate Professor of Business Law at Western Illinois University