Most people are rightly convinced that the fewer
nuclear weapons there are, and the fewer people with access to such weapons, the better off we all are. But there is something decidedly odd about the structure of the legal argument about the right to possess
nuclear weapons.
Groups of nations have often come together to ban certain sorts of weapons. The 1868 Declaration of St. Petersburg prohibited certain explosive projectiles; biological weapons were outlawed in 1972; chemical weapons in 1993; land mines in 1997; and a long list of other weapons have also been declared illegal.
These weapons were banned because they were perceived as violating the laws of war. Although soldiers are permitted to kill the enemy in warfare, weapons that cause unnecessary suffering to combatants are prohibited.
Civilians may never be targeted in warfare and thus a weapon that cannot distinguish between military and civilian targets violates the law, as does a weapon, which although targeting the military, in fact, kills a disproportionate number of civilians.
Whenever there is sufficient sentiment to ban a weapon, states draft a treaty, work out the final language, and sign on to the ban. These treaties contemplate a total ban of the designated weapon.
They do not list countries that are permitted to retain the prohibited weapon, nor do parties to such treaties indicate that states who chose not to ratify the treaty will be entirely free to acquire the banned weapon.
Most of us learn early in our lives that if we expect rules that we set to be respected, we cannot promulgate the rule and, at the same time, grant ourselves a permanent exception.
The main treaty that deals with
nuclear weapons, the 1968 Nuclear Non-Proliferation Treaty, has a very different and fundamentally flawed structure.
This treaty specifically permits five states ― China, France, Russia, the U.K. and the U.S. ― to retain nuclear weapons, but any other party to the treaty must agree to forgo the acquisition of nuclear weapons.
States that refuse to ratify the treaty, such as Cuba, Pakistan, India and Israel are free to acquire such weapons, and three of them have done so.
Why are states and other entities so eager to retain or acquire nuclear weapons? The motive is the same whether a state already has such weapons or hopes to acquire them. Nuclear weapons are perceived as giving the possessor a huge military advantage.
The determination on the part of the five nuclear declared states to create a structure that allows them to retain nuclear weapons while denying ownership to other nations, is exactly the same sort of determination that we see being brought to bear by states, and other non-state actors, to acquire such weapons. They all want military superiority.
Should nuclear weapons be banned? Such weapons have the capacity to cause untold suffering indiscriminately to military and civilians alike. They can cause vast environmental and economic devastation, not only in the area and at the time of detonation, but throughout the world and for future generations.
Surely nuclear weapons, including the so-called ``low-yield" nuclear weapons, carve out a far more destructive path than all of the weapons previously coming under the regime of a total ban.
Nuclear weapons certainly need to be prohibited, but they must be prohibited for all states and all entities. Article 6 of the Non-Proliferation Treaty requires all states party to the treaty ``to pursue negotiations on
nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control."
The International Court of Justice has described this as a binding treaty obligation.
As long as some states, including the U.S. and China, insist on their right to retain nuclear weapons, other states will wish to own such weapons and will work out ways to acquire them, even if it means violating treaty obligations.
If all the nuclear states would get together and start negotiations toward the total elimination of nuclear weapons, including their own weapons, with a tough verification system applicable to all, the ``problem" of North Korea, Iran and all of the other nuclear aspirants would begin to disappear.
Under the present flawed structure, by which the nuclear states have legalized the ultimate double standard, all we have to look forward to is a new nuclear aspirant on the horizon every time we turn around.
Trying to eliminate nuclear weapons will surely be a monumental task but its success might just ensure us all a future in a hopeful world.
Valerie Epps is a visiting professor of law at Hongik University College of Law, Seoul, and professor of law and director of the International Law Concentration, Suffolk University Law School, Boston. She can be reached at vepps@suffolk.edu. 