Nuclear Weapons and Legal Aspects

Nuclear Weapons cause a threat to human rights, human dignity, and cause major destruction to the environment. After the Nuclear attack at Hiroshima and Nagasaki, the whole world saw the damage a nuclear weapon can cause. The effect of this can be seen to date. To avoid such a scenario, the UN had asked all countries to ban the use, storage, making, or exporting of such substances that can cause any kind of destruction to life. Therefore, there were various treaties and declarations signed by various countries to restore peace and sanity.

Introduction

Afraid that the Nazis will develop a Nuclear Weapon, Theodore Roosevelt, the President of the United States was triggered to establish the Manhattan Project in 1941. It was the world’s first Nuclear Detonation. After the incident at Pearl Harbor, the United States was eager to take revenge from the Japanese. Therefore, the president thought this was a great opportunity to not just test the Nuclear Weapon made by them, but also to take revenge. The project’s work was then put to test on the 6th of August 1945 at Hiroshima which was called the “Little Boy”.

It exploded about 580 meters above the ground, rendering an explosive yield of some 16 kilotons of TNT and killing almost everyone. Three days later, on the 9th of August 1945, the United States denoted a Plutonian Bomb called the “Fat Man” which weighed 20 kilotons larger and 610 meters above the suburbs of Nagasaki killing around 74,000 people. Both these bombs carried a huge effect on the people ruining everything they ever had.

After the United States, Russia was next to test its Nuclear Weapon. They detonated an atomic bomb that was made out of Plutonium in 1949. In the year 1951 in Nevada, the United States test-fired a Thermonuclear Weapon which was a stepping stone for a fusion Nuclear weapon1. Even after all this, Russia is known to have yielded the largest nuclear explosive which amounts to 50 megatons. Whereas, the largest United States nuclear detonation amounts to just 15 megatons which occurred in May 1954 in Bikini Atoll.

The other Nuclear States are India, Israel, and Pakistan as well as the Democratic People’s Republic of Korea (DPR Korea). In 2006 these countries conducted a low-yield underground test. Other than these United Kingdom, France, and China have grown into major Nuclear power States.

Types of Nuclear Weapons

Nuclear Weapon is a device that is designed to release energy explosively, either by Nuclear Fission, Nuclear Fusion, or a combination of both the processes. In Fission weapons, a mass of fissile material, which is enriched with uranium and plutonium is turned into a supercritical mass, producing explosive yields ranging from the equivalent of around one to five hundred kilotons of TNT. Any Nuclear weapon which is detonated is always accompanied by a blast of radiation. There is radioactive debris, which fission produces which are commonly known as “fall out”.

Fusion weapons are also called the Thermonuclear weapons or as commonly known to all- Hydrogen Bombs. These weapons use the heat which the fission bombs produce to compress and ignite a nuclear fusion stage. They have a far higher explosive yield compared to fission bombs, where the fission bombs range in kilotons these fusion bombs range in megatons. Fission products are not created by these fusion products, but just because all Thermonuclear weapons comprise of at least one fission stage, they can generate at least as much nuclear fallout as fission-only weapons2.

Another category of a Thermonuclear weapon is a “neutron bomb” which yields a small explosion but a large amount of neutron radiation. A neutron bomb can be used to wreak massive casualties while leaving the infrastructure intact and creating a minimal amount of fallout3. In contrast, a salted bomb would produce exceptionally large quantities of radioactive contamination4.

Nuclear weapons and International Law

Activities involving Nuclear weapons are governed by International Law. Through unilateral undertakings5 and by concluding bilateral agreements and treaties of regional and global scope, states have placed explicit legal curtailment. Nuclear weapons not only threaten the common goods of mankind but also the shared values of the International community such as human health, human rights, human dignity, and the environment and peace. For all these reasons, the international law that protects and promotes these values curb all the activities that involve a nuclear weapon, even if a nuclear weapon is not mentioned in the relevant instruments.

The legality of these nuclear weapons under customary International law remains a question to date. Treaties usually bind the parties whereas customary International binds all States to it. The precise content of a customary norm is difficult to determine, however, especially when states hold starkly differing opinions on a subject6.   

The interpretation and application of legal norms and of the law-making process itself are inspired by another source of international law, ‘general principles of law recognized by civilized nations7. These principles can be said to ‘reveal the values which inspire the whole legal order and which, ultimately, provide its foundations’, and they disclose the legitimate ends to seek: ‘the common good (of all human beings, and not of an abstract collectivity), the realization of justice (at both national and international levels), the necessary primacy of law over force, the preservation of peace’8.

An important reference point is an Advisory Opinion that was rendered by the International Court Of Justice (ICJ) on the Legality of the Threat or use Nuclear Weapons on the 8th of July 1996. Certain aspects in the opinion given are controversial, though it is an open question that to what extent it reflects the state of the law today.

Legal obligations to eliminate Nuclear Weapons

From the very beginning, the danger that the Nuclear weapons posed stood at the center of the United Nations. On the 24th January 1946 was the very first resolution of the United Nations General Assembly which was adopted by consensus, identified the goal of eliminating atomic weapons and all other major WMD from national armaments. The only goal of all the Nuclear Weapon disarmament is to achieve a Nuclear Weapon-free world.

Over the last several decades, there have been many proposals made to attain a nuclear-free world including resolutions presented by the United Nations General Assembly on prohibiting nuclear weapons under International Law. Even though after several rounds of negotiations and declarations to ban the use of Nuclear Weapons powers haven’t made any headway towards actually implementing their noble convictions. However, the production and use of biological and chemical weapons have been formally banned by the treaty of 1972 and 1993. Some rogue states have been suspected of using some form of these weapons on their people to fight the rebellion.

Towards a Nuclear-free world

States aim at maintaining peace and therefore have concluded with various regional agreements to keep their territories free from nuclear weapons forever and hence formed a large nuclear-weapon-free zone (NWFZs).

  1. The Treaty of Tlatelolco (1967) prohibits nuclear weapons in Latin America and the Caribbean;
  2. The Treaty of Rarotonga (1985) in the South Pacific;
  3. The Treaty of Bangkok (1995) in Southeast Asia;
  4. The Treaty of Pelindaba (1996) in Africa; and
  5. The Treaty of Semipalatinsk (2006) in Central Asia.

The Nuclear Weapon-free Zone Treaties require the ban of a nuclear weapon in the zone. They can not be used, produced, stationed, or stored9.

The emergence of Customary prohibition on Nuclear Weapon testing

Several measures have been taken in last so many years to control the testing of Nuclear Weapons by way of treaties and declarations to stop further environmental degradation and harm to life and ecology, more so atmospheric tests which have devastating effects on health and environment. These measures are as follows:

  1. The Partial Test Ban Treaty (1963) prohibits all nuclear explosions, whether peaceful or military, in the atmosphere, in outer space, and underwater (but not underground).
  2. The NPT implicitly prohibits ‘non-nuclear-weapon States Parties’ from testing nuclear weapons, and NWFZ treaties also contain prohibitions on nuclear testing.
  3. The Comprehensive Test Ban Treaty (1996) bans all nuclear test explosions and other nuclear explosions.

The Comprehensive Test Ban Treaty (CTBT) has been framed to have a global reach and scope relating to the testing of Nuclear Weapons. It also envisages a complete moratorium and has been observed since the late 1990s except for tests carried out by DPR Korea. However, due to the non-acceptance of some of the provisions of CTBT by China, North Korea, Egypt, India, Pakistan, Israel, Iran, and the USA the CTBT has still not come into force.

Nuclear non-proliferation: not an end in itself

In case of any nuclear conflagration in any part of the world, the consequent devastation would be massive and could trigger a nuclear war. This could lead to massive destruction of life and environment to prevent such a possibility the paramount need is to ensure non-proliferation of nuclear weapons, materials, and technology and limit it to the existing levels. However, this does not stop any rogue nation to transfer weapons and technology for political, ideological, or even economic gains to rich and prosperous but unstable entities. NPT, therefore, is not an end in itself as the powerful Nuclear States cannot be expected to maintain restraint against provocations by rogue nations

Under the NPT, ‘nuclear-weapon States Parties’ are prohibited from transferring nuclear weapons or control over such weapons to any recipient and from assisting any non-nuclear-weapon state in manufacturing or acquiring such weapons10. ‘Non-nuclear-weapon States Parties’ in turn commit not to receive any transfer of nuclear weapons or control over them and not to produce or acquire nuclear weapons11. Consequently, states that were already nuclear-weapon-free at the time accepted a binding obligation not to acquire nuclear weapons, whereas the possession of nuclear weapons by ‘nuclear-weapon States Parties’ is not forbidden by the NPT, nor does Art. I prohibit these states from assisting each other in the manufacture or acquisition of nuclear weapons12.

Conclusion

International law focuses on human dignity, human health, environmental protection, and most importantly peace, all these are interdependent to each other. A comprehensive, unambiguous treaty prohibition of nuclear weapons would protect their rights not just in the present but also in the coming future. This is the concern of all the states, and all states have a legal interest in protecting the rights involved.

EndNote

  1. Russia detonated a hydrogen bomb in 1952, the UK in 1955, China in 1967, and France in 1968.
  2. Pure fusion weapons–fusion reactions without the need for a fission bomb to initiate them–would create significantly less nuclear fallout than other thermonuclear weapons, because they would not disperse fission products. However, no known, credible design for a pure fusion weapon currently exists.
  3. A ‘positron’ bomb could use antimatter as a trigger for nuclear weapons or even as a weapon in itself, should production of antimatter in sufficient quantities ever become possible. If electrons or protons collide with their antimatter counterparts, they annihilate each other, unleashing more energy than any other known energy source (10 billion times that of high explosives), along with a burst of gamma radiation that could kill massive numbers of people without ejecting radioactive fallout.
  4. A salted bomb should not be confused with a ‘dirty bomb’, an ordinary chemical explosive device containing radioactive material that is spread over the area when the device explodes.
  5. For example, France’s promise to cease atmospheric nuclear weapon tests in the 1970s.
  6. A rule of customary international law may be said to exist where there is ‘a general practice’ (‘state practice’) that is ‘accepted as law’ (‘opinio juris’). See the ongoing work of the International Law Commission (ILC) on the formation and evidence of customary international law/Identification of customary international law. (http://legal. un.org/ilc/guide/1_13.htm.).
  7. Statute of the ICJ, Art. 38(1)(c). These are sometimes taken to refer to general principles common to the various systems of internal law, but also general principles of international law.
  8. A. A. Cançado Trindade, International Law for Humankind: Towards a New Jus Gentium, The Hague Academy of International Law, vol. 6, Martinus Nijhoff Publishers, Leiden and Boston, 2010, pp. 56-59.
  9. Nuclear weapons may not be stationed on the territory of a party to an NWFZ treaty, nor may that state possess or control nuclear weapons outside of the zone. The NPT, in contrast, does not prohibit the stationing of nuclear weapons on Non-nuclear-weapon States Parties’ territory, provided the latter do not acquire control over the weapons.
  10. Article I
  11. Article II
  12. On the interpretation of ‘manufacturing’ with assistance to ‘Non-nuclear weapon States Parties’, see G. Nystuen and T. Graff Hugo, ‘The Nuclear Non-Proliferation Treaty’, in G. Nystuen et al. (Eds.), Nuclear Weapons Under International Law.

Reference

  1. https://www.armscontrol.org/ACT/2016_03/Features/A-Legal-Gap-Nuclear-Weapons-Under-International-Law
  2. https://www.geneva-academy.ch/joomlatools-files/docman-files/Nuclear%20Weapons%20Under%20International%20Law.pdf
  3. https://www.armscontrol.org/factsheets/Timeline-of-the-Treaty-on-the-Non-Proliferation-of-Nuclear-Weapons-NPT

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