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The Treaty on the Prohibition of Nuclear Weapons - A Commentary by Casey-Maslen, Stuart (5th February 2019)

Introduction

From: The Treaty on the Prohibition of Nuclear Weapons: A Commentary

Stuart Casey-Maslen

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 22 October 2019

Subject(s):
Specialized treaty frameworks — Weapons, nuclear

(p. 1) Introduction

Nuclear arms are the most powerful explosive devices yet invented by mankind, with certain weapons individually capable of destroying an entire city. The destructive force of a nuclear weapon is derived from either nuclear fission (such a weapon is commonly referred to as an atomic bomb) or combined nuclear fission and fusion chain reactions (with such a weapon being termed a thermonuclear weapon or hydrogen bomb).

As a comparison with conventional ordnance, the GBU-43/B Massive Ordnance Air Blast Bomb (MOAB)—better known colloquially as the ‘mother of all bombs’1—has an (p. 2) explosive force equating to 11 tons of trinitrotoluene (TNT), the standard metric for assessing the relative power of a bomb.2 The MOAB, which was first used in anger by the United States (US) in Afghanistan in April 2017, produced an explosive yield that was less than a thousandth of that generated by the atomic bomb dropped on Hiroshima in August 1945.3 The yield of the explosion from ‘Little Boy’ was estimated as being the equivalent of about 15 kilotons (kt) of TNT.4 Even the Russian ‘aviation thermobaric bomb of increased power’, nicknamed the ‘father of all bombs’ and arguably the most powerful non-nuclear explosive device in service, has an explosive yield of ‘only’ 44 tons of TNT.5 In contrast, the yield of a thermonuclear weapon can be in the order of many millions of tons (Mt) of TNT.

The temperatures of a nuclear blast at ground zero6 attain 3,800 °C, matching those at the surface of the sun and causing immolation, asphyxiation, and burns.7 Winds of up to 500 miles per hour ‘level people, homes and vegetation’.8 In addition to the tremendous thermal radiation resulting from nuclear fusion or fission, huge quantities of radioactive material are typically diffused, with gamma, neutron, and ionizing radiation emitted not only at the time of detonation (termed initial radiation9) but also for months or years afterwards (termed residual radiation10).11

Those who are not vaporised by the blast or the heat may be killed by this radiation. There is no safe dose of ionizing radiation12 and high doses of any form of radiation have devastating effects on the human body. These are prodromal, hematologic, gastrointestinal, pulmonary, cutaneous, and neurovascular in nature.13 If it is not ‘shielded’, then (p. 3) the flesh can be literally cooked.14 The Mayor of Nagasaki told the International Court of Justice (ICJ) that everyone who was ‘exposed to large doses of radiation generated during the one-minute period after the Nagasaki atomic bomb explosion died within two weeks’.15 Among the survivors, radiation can lead to loss of fertility, spontaneous abortion and miscarriage, as well as heritable mutations.16

On the morning of 14 September 1954, near the village of Totskoye in the Ural mountains 600 miles south-east of Moscow, as part of a military exercise the Soviet armed forces air-detonated a 20 kt atomic bomb, close to 45,000 Red Army troops and thousands of civilians. The purpose of the exercise, which was filmed, was to assess whether troops could fight a battle in an area immediately after it had been hit by an atomic bomb. The film documents the explosion and its aftermath, showing soldiers with little or no protective gear running through ‘an inferno of dust, heat and radiation’.17 In The Red Bomb, a television documentary from 1994, Ivan Skvortsov and Vasily Kovalyov, two Soviet Army veterans who took part in the Totskoye exercise, described their experiences. Dr Nikolay Sidorov reported that the number of people suffering from tumorous illnesses in the province increased between 1950 and 1994 by 500 per cent.18

The Development of Nuclear Weapons

Nuclear Fission

The precise genesis of nuclear weapons is debatable. What is generally agreed is that in 1933 Leó Szilárd, a Hungarian physicist, was the first person to conceive of nuclear chain reaction, formally patenting the concept in London the following year. But one can trace the origins of nuclear weapons back to the beginning of the twentieth century. In 1904, Frederick Soddy, a ‘pioneering student in radioactivity’ who had been working with the physicist Ernest Rutherford at McGill University in Canada, delivered a lecture to the British Royal Corps of Engineers.19 As the polemologist Lawrence Freedman recounts, Soddy speculated that if the energy in heavy matter was ‘latent and bound up with the structure of the atom’ then the ‘man who put his hand on the lever’ to gain access to this energy ‘would possess a weapon whereby he could destroy the world if he chose’.20 The following year, Albert Einstein, as part of his special theory of relativity, formulated the (p. 4) tremendous amount of energy could be released from a small amount of matter in his famous equation E = mc2 (energy = mass multiplied by the speed of light squared). The atomic bomb would be a devastating illustration of this principle.21

In 1938, two German chemists, Otto Hahn22 and Fritz Strassman, achieved nuclear fission by bombarding uranium with neutrons, a discovery that would earn Hahn the Nobel Prize for Chemistry in 1944.23 Lise Meitner, an Austrian physicist, had worked together with Hahn for thirty years in Berlin’s Kaiser Wilhelm Institute for Chemistry before she fled Germany in 1938 for Sweden. Hahn and Meitner met clandestinely in Copenhagen later that year to plan a new set of experiments at Hahn’s laboratory in Berlin that would provide the evidence for nuclear fission. In February 1939, Meitner published the physical explanation for the observations and, based on a suggestion by her nephew, the physicist Otto Frisch, named the process nuclear fission.24

The Danish physicist Niels Bohr reported news of the discovery in the United States at the Fifth Washington Conference on Theoretical Physics in January 1939.25 In discussion with the American theoretical physicist, John Archibald Wheeler, Bohr realised that it was uranium-235 (235U) and not the far more abundant uranium-238 (238U) isotope that was primarily responsible for fission.26 In September 1939, writing together with Wheeler, he published a paper on ‘The Mechanism of Nuclear Fission’.27

The discovery of nuclear fission led Szilárd to draft a warning letter to US President Franklin D. Roosevelt on 2 August 1939 that was signed by Albert Einstein. It stated that:

In the course of the last four months it has been made probable … that it may become possible to set up a nuclear chain reaction in a large mass of uranium, by which vast amounts of power and large quantities of new radium-like elements would be generated. Now it appears almost certain that this could be achieved in the immediate future.

This new phenomenon would also lead to the construction of bombs, and it is conceivable—though much less certain—that extremely powerful bombs of a new type may thus be constructed. (p. 5) A single bomb of this type, carried by boat and exploded in a port, might very well destroy the whole port together with some of the surrounding territory. However, such bombs might very well prove to be too heavy for transportation by air.28

Responding to the warning, President Roosevelt set up the Advisory Committee on Uranium, which convened for the first time in October 1939.29 In early 1940, the Committee recommended that the US Government fund limited research on isotope separation as well as work by the Italian physicist Enrico Fermi30 and Leó Szilárd on chain reactions.31 It was not until January 1942, however, that the president would authorise a full-scale undertaking to develop an atomic bomb. This would become known as the Manhattan Project.

In Germany, the effort to develop an atomic bomb had begun much earlier, in April 1939, with the ‘Uranprojekt’. But the efforts were largely abortive, and a determination was made within three years that nuclear fission would not contribute significantly to the Nazi war machine.32 Although several top German scientists had left the country, the greater obstacle was said to be a relative lack of support at the upper echelons of the government.33 Hitler was said to be much more interested in developing the V-2 intermediate-range ballistic missile.34 In 1947, Einstein told Newsweek magazine, ‘Had I known that the Germans would not succeed in developing an atomic bomb, I would have done nothing.’35

In recent years, new light has been shed on fruitless Japanese attempts to develop a nuclear weapon during the Second World War.36 In October 1940, at the request of Lieutenant-General Takeo Yasuda of the Imperial Japanese Army, the Japanese physicist Tatsusaburo Suzuki produced a report which concluded that it would be possible to construct an atomic weapon. The report warned, though, that uranium procurement would be a crucial problem.37 General Yasuda contacted the physicist Yoshio Nishina, who had studied under Niels Bohr in Copenhagen. In April 1941, the Army authorised Nishina’s laboratory at an institute near Tokyo to conduct research for an atomic bomb. The project became known as Ni-Go. The initial conclusion of Nishina’s team was that an atomic bomb was theoretically, but not technically, feasible.38

In 2015, a retired professor at Kyoto University discovered a blueprint for a nuclear weapon at the school’s former radioisotope research laboratory. Also discovered were drawings, dated March 1945, of a turbine-based centrifuge seemingly meant for the (p. 6) study of uranium enrichment.39 In May 1945, a German submarine bound for Japan, the U-234, was captured by US forces. On board were ten containers holding 1,200 lb of uranium oxide. The oxide would have contained about 3.5 kg of 235U, roughly one fifth of what would be needed to make a single atomic bomb. Fifty years later, John Lansdale Jr., a former US army lieutenant-colonel who had worked for the Manhattan Project, claimed that the uranium the United States captured went into the mix of raw materials used for making the first atomic bombs.40

The Manhattan Project

In the middle of 1942, President Roosevelt endorsed the project to develop nuclear weapons under the US Army Corps of Engineers.41 The Manhattan Project, whose original codename was the anodyne Development of Substitute Materials, was so named as the Corps of Engineers was headquartered on Manhattan Island in New York (at 270 Broadway).42 The project’s director, Leslie Groves, the engineer who designed the Pentagon, reportedly gave it its more famous moniker.43

One of the greatest challenges facing the project, which, at its peak, would involve more than 120,000 people in its work, was to find a way to separate the 235U isotope from the 238U isotope that makes up 99 per cent of naturally occurring uranium. Since the two isotopes are chemically identical, they cannot be separated by chemical means.44 Three separation methods were under consideration: gaseous diffusion, centrifuge, and electromagnetic.45 In parallel with the work on uranium, however, efforts were underway to produce plutonium by irradiating 238U, transmuting some of it into plutonium by the absorption of neutrons. Plutonium-239 (239Pu) could then be chemically separated from the uranium and used for a plutonium bomb.46

On 28 December 1942, President Roosevelt approved funding of what would ultimately become a total government investment in the Manhattan Project in excess of USD2 billion47 (equivalent to more than USD27 billion today). Although it would expand to comprise more than thirty different research and production sites, the Manhattan Project was chiefly carried out in only three: at Hanford in Washington state; at Oak Ridge in Tennessee; and at Los Alamos in New Mexico.48 The facilities at Oak Ridge and Hanford focused on uranium enrichment and plutonium production, while at Los Alamos Robert (p. 7) Oppenheimer, the ‘father of the atomic bomb’, worked with his team on the weapon’s design.49

The Manhattan Project’s early work focused on ‘gun-type’ designs whereby one piece of uranium is fired into another to create a critical mass. A critical mass is the smallest amount of fissile material needed to enable a nuclear chain reaction. The atomic bomb’s explosive power derived from nuclear fission of 235U wherein chain reactions occur as a result of interactions between neutrons and fissile isotopes. When an atom undergoes nuclear fission, neutrons ejected from the reaction are absorbed by other atoms of the fissile material causing further fissions in a repeating cycle that generates a self-sustaining reaction.50

While the gun-type design ‘proved promising for uranium-based bombs, it was less so for those using plutonium’. As a consequence, ‘the scientists at Los Alamos began developing an implosion design for a plutonium-based bomb as this material was relatively more plentiful. By July 1944, the bulk of the research was focused on the plutonium designs and the uranium gun-type bomb was less of a priority.’51

In a plutonium implosion bomb, high explosive surrounding the fissile material is first ignited. A compressional shock wave begins to move inwards, travelling at faster than the speed of sound and creating a large increase in pressure. The shock wave affects all the points on the surface of the sphere of the fissile material in the bomb core at the same instant, initiating the compression process. As the core density increases, the mass becomes first critical and then supercritical, where the chain reactions grow exponentially. The initiator is then released, producing a plethora of neutrons, and the chain reaction continues until the energy generated inside the bomb becomes so great that the internal pressure due to the energy of the fission fragments exceeds the implosion pressure due to the shock wave. As the bomb disassembles, the energy released in the fission process is transferred to the surroundings.52

In late 1944, the Los Alamos facility began to shift from research to development and practical bomb production. Progress at Oak Ridge and Hanford indicated that sufficient plutonium and enriched uranium would be available to produce at least one bomb using each.53 Weapon design for the uranium gun-type bomb was frozen in February 1945, with confidence in the weapon high enough to obviate the need for a test explosion prior to combat use. The design for an implosion device using the plutonium was approved in March, with a test of the more problematic plutonium weapon scheduled for 4 July 1945.54

(p. 8) In fact, the test took place twelve days later, on 16 July 1945 at precisely 5:30 am, signalling the true beginning of the nuclear age. The plutonium bomb, termed ‘The Gadget’, exploded over the New Mexico desert at a remote corner 210 miles south of Los Alamos, on the Alamogordo Bombing Range known as the ‘Jornada del Muerto’ (‘Journey of Death’).55 ‘As the orange-and-yellow fireball stretched up and spread, a second column, narrower than the first, rose and flattened into a mushroom shape, thus providing the atomic age with a visual image that has become imprinted on the human consciousness as a symbol of power and awesome destruction.’56 It was subsequently calculated that the test had released energy equivalent to 21 kt of TNT.

Famously, Oppenheimer would later recall that the explosion had reminded him of a line from the Hindu holy text, the Bhagavadgita: ‘Now I am become Death, the destroyer of worlds.’ And as the US Department of Energy recalls: ‘The terrifying destructive power of atomic weapons and the uses to which they might be put were to haunt many of the Manhattan Project scientists for the remainder of their lives.’57

Eight days after the test explosion, US President Harry S. Truman told the Soviet leader, Joseph Stalin, that the United States possessed ‘a new weapon of unusual destructive force’. Stalin did not display any emotion, although in his memoirs Soviet Marshal Georgii Konstantinovich Zhukov records that Stalin later talked to the Minister for Foreign Affairs of the Soviet Union, Vyacheslav Mikhailovich Molotov, about the conversation with Truman. Molotov is said to have replied: ‘Let them. We’ll have to talk it over with [Igor] Kurchatov [the scientific director of the Soviet nuclear weapons project] and get him to speed things up.’58 In March 1943, after Russia’s victory at Stalingrad, Stalin had given Kurchatov data that had been obtained from the British through espionage about the feasibility of a nuclear weapon.

The data would support work at the Soviet research project that had been established shortly before at what was known as ‘Arzamas-16’; that is, Sarov, a closed town in Nizhny Novgorod oblast, 450 miles from Moscow.59 But the Soviet Union (USSR—Union of Soviet Socialist Republics) was several years behind the United States in its development of nuclear weapons technology. On 25 December 1946 the programme achieved its first significant chain reaction, but it would only manage to get its first production reactor working satisfactorily in the autumn of 1948. On 29 August 1949, the USSR test-detonated its first nuclear weapon, RDS-1 ‘First Lightning’, a plutonium implosion design, at Semipalatinsk in Kazakhstan.60

The Los Alamos facility produced four nuclear weapons under the auspices of the Manhattan Project, of which two, ‘Little Boy’ and ‘Fat Man’, were used against Japan in August 1945. Zhukov would later write that: ‘Without any military need whatsoever, the Americans dropped two atomic bombs on the peaceful and densely-populated Japanese cities of Hiroshima and Nagasaki.’61 The Manhattan Project itself officially ended in (p. 9) 1946, becoming part of the US Atomic Energy Commission (AEC).62 The AEC officially began work as a civilian agency on 1 January 1947.63

The Use of Nuclear Weapons

The Bombing of Hiroshima64

Early on the morning of 6 August 1945, a B-29 bomber named Enola Gay took off from the island of Tinian and headed for Japan. The bomber’s primary target was the city of Hiroshima, located on the south-western Honshu island, the largest and most populous island of Japan. Hiroshima had a civilian population of almost 300,000 but was also an important military centre, home to about 43,000 soldiers. The bomber flew at low altitude on automatic pilot before climbing to 31,000 feet as it neared the target area. At approximately 8:15 am local time, the Enola Gay dropped ‘Little Boy’, its 9,700 lb uranium gun-type bomb, over the city. Forty-three seconds later, the bomb detonated 1,900 feet above the city and a huge explosion lit up the morning sky. Although it was already eleven and a half miles away, the Enola Gay was so heavily rocked by the blast that the pilot thought they were being hit by anti-aircraft flak.

Those closest to the explosion on the ground died instantly, their bodies turned to black char. Birds burst into flames in mid-air, and dry, combustible materials such as paper instantly ignited as far away as 6,400 feet from ground zero. The white light burned the dark patterns of clothing onto skin and the shadows of bodies onto walls. Survivors outdoors who were close to the blast describe a blinding light combined with a sudden and overwhelming wave of heat. The blast wave followed almost instantly, often knocking people off their feet. Those indoors were usually spared the flash burns, but flying glass from broken windows filled most rooms, and all but the strongest structures collapsed. Within minutes nine out of every ten people who were half a mile or less from ground zero were dead and about half of the city’s entire population was either dead or injured. The many small fires that erupted simultaneously around the city quickly merged into one large firestorm that would engulf more than four square miles of the city.

Several days after the blast, medical staff began to recognise the first symptoms of radiation sickness among the survivors. The death rate started to climb as patients who had appeared to be recovering began suffering from this strange new illness. Deaths from radiation sickness did not peak until roughly four weeks after the attacks and did not taper off for another three to four weeks afterwards. Long-term health dangers associated with radiation exposure, such as an increased danger of cancer, would linger for the rest of the victims’ lives, as would the psychological effects of the attack.

No one will ever know for certain how many died as a result of the attack on Hiroshima. At least 70,000 people probably died as a result of initial blast, heat, and radiation effects. (p. 10) This included twenty American airmen being held as prisoners in the city. By the end of 1945, because of the lingering effects of radioactive fallout and other after-effects, the death toll probably amounted to more than 100,000 people. The five-year death total may have reached or even exceeded 200,000, as cancer and other long-term effects took hold.

The Bombing of Nagasaki65

The US plutonium implosion bomb, nicknamed ‘Fat Man’, was made ready to take advantage of a limited spell of favourable weather after the Hiroshima bombing. At 3:47 am on 9 August 1945, a B-29 named Bock’s Car took off from Tinian island and headed toward its primary target: Kokura Arsenal, a group of military factories close to the city of Kokura. By the time the aircraft arrived over the target, however, it was obscured by smoke and haze. There was only enough fuel on board to return to the secondary airfield on Okinawa, making it possible only to attack the secondary target, the city of Nagasaki, an industrial centre and major port on the western coast of Kyushu island.

But as the aircraft Bock’s Car arrived over the city, cloud cover was again obscuring it. At the last moment, the bombardier, Captain Kermit K. Beahan, caught a brief glimpse of the city’s stadium through the clouds and dropped the bomb. At 11:02 am, it exploded at an altitude of 1,650 feet above Nagasaki yielding an explosion estimated at 21 kt, some 40 per cent greater than that resulting from the detonation of the Hiroshima bomb.

‘Fat Man’ detonated between two of the principal targets in the city: the Mitsubishi Steel and Arms Works to the south and the Mitsubishi-Urakami Torpedo Works to the north. The official Manhattan Project report on the attack termed the damage to the two Mitsubishi plants ‘spectacular’. Had the bomb exploded farther south the residential and commercial heart of the city would have suffered much greater damage. As it was, almost everything up to half a mile from ground zero was completely destroyed, including even the earthquake-hardened concrete structures that had sometimes survived at comparable distances at Hiroshima.

According to a Nagasaki Prefectural report, ‘men and animals died almost instantly’ within one kilometre of the point of detonation. It will never be known how many people died as a result of the attack. The best estimate, according to the US Department of Energy, is that 40,000 people died initially, with 60,000 more injured. By January 1946, the number of deaths is likely to have been as high as 70,000, with perhaps twice that number dying in total within five years. For those areas of Nagasaki affected by the explosion, the death rate was comparable to that at Hiroshima. Almost all homes within one and a half miles were destroyed, while dry, combustible materials such as paper instantly burst into flames as far away as 10,000 feet from ground zero. Of the 52,000 homes in Nagasaki, 14,000 were destroyed and 5,400 others were seriously damaged. Only 12 per cent of all the homes across the city escaped unscathed.

(p. 11) Post-Second World War Nuclear Weapons Development

In January 1946, the very first resolution adopted by the General Assembly of the newly created United Nations called for proposals for ‘the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction’.66 Nonetheless, several states worked actively to develop nuclear weapons following the use of nuclear weapons against Japan. Germany’s research programme had come to an end with the defeat of the Nazis in May 1945, but in addition to the United States and the USSR (1949), by the end of the 1960s at least four other states had developed their own nuclear weapons capability: the United Kingdom (1952), France (1960), China (1964), and Israel (1966 (est.)). Numerous others would initiate research and development programmes to pave the way for the production of nuclear weapons.

Since the Trinity Test in July 1945 and through October 2018, a total of at least eight states—China, the Democratic People’s Republic of Korea (DPRK), France, India, Pakistan, the United Kingdom, the United States, and the USSR—and probably Israel as well67—have carried out a total of more than 2,050 test detonations of nuclear weapons and other nuclear explosive devices.68 The last known test detonation was by the DPRK in September 2017.69 Despite the world coming close to nuclear Armageddon on numerous occasions, most memorably during the Cuban Missile Crisis of 196170 and in 1983, when Soviet Lieutenant-Colonel Stanislav Petrov declined to launch a counter-strike to an apparent small-scale US nuclear attack,71 no detonation in anger has occurred since 9 August 1945.

The Nuclear-armed States

To the best of publicly available knowledge, nine states currently possess nuclear weapons: China, the DPRK, France, India, Israel, Pakistan, Russia, the United Kingdom, and the United States.72 According to the Federation of American Scientists, the number of nuclear weapons in the world has reduced very significantly since the Cold War: down from a peak of more than 70,000 in the mid 1980s to an estimated 14,485 as of June 2018.73 Of this global total, approximately 9,335 nuclear weapons are in military stockpiles while the remainder are awaiting dismantlement. More than 3,750 warheads are (p. 12) deployed with operational forces, of which about 1,800 French, Russian, UK, and US warheads are on high alert, ready for use at short notice.74

More than 90 per cent of the estimated global total of nuclear warheads belong to Russia and the United States.75 Both states reported meeting their obligations under the New Strategic Arms Reduction Treaty (New START) by the February 2018 deadline. New START obligated each state to reduce its strategic nuclear stockpile, by 5 February 2018, to no more than 1,550 deployed warheads and bombs.76

Russia

Russia has the world’s largest nuclear weapons arsenal, one that is slightly larger than that of the United States. In its February 2018 New START declaration,77 the Russian Ministry of Foreign Affairs declared that Russia had a total of 1,444 warheads deployed across 527 intercontinental ballistic missiles (ICBMs), submarine-launched ballistic missiles (SLBMs), and strategic bombers.78 The Federation of American Scientists (FAS) estimated that, as at June 2018, Russia had a further 150 deployed weapons at bomber bases and 2,759 non-deployed strategic and tactical warheads as well as 2,500 warheads awaiting dismantlement.79

The erstwhile Soviet Union is said to have conducted 715 nuclear test detonations between 1949 and 1990 when it ceased to exist. Most of the tests took place at the Semipalatinsk Test Site in Kazakhstan and the Northern Test Site at Novaya Zemlya, an archipelago in the Arctic Ocean in northern Russia. A small number of tests were conducted in Turkmenistan, Uzbekistan, and Ukraine.80

The largest nuclear weapon detonation in history occurred on 30 October 1961 on Severny Island, part of Novaya Zemlya. Code-named Vanya, the Soviet RDS-220 hydrogen bomb had a yield of 50 Mt, equivalent to about 1,570 times the combined energy of the bombs that were detonated over Hiroshima and Nagasaki. To reduce fallout, a lead tamper was used instead of a U-238 fusion tamper, ensuring that thermonuclear fusion accounted for as much as 97 per cent of the yield. Thus, despite its power, the RDS-220 bomb did not generate very large quantities of nuclear fallout.81

Russia has continued to modernise its land-based strategic nuclear arsenal in recent years. The RS-24 Yars ICBM, which was introduced around 2005, can strike anywhere in the United States with what may be as many as ten multiple independently targetable re-entry vehicles (MIRVs). These missiles can be launched from either underground silos or road-mobile launchers. The warheads would re-enter the earth’s atmosphere at hypersonic speeds: almost five miles per second.82 At the beginning of March 2018, Russian (p. 13) President Vladimir Putin announced that Russia had developed and was testing a new line of strategic nuclear-capable weapons that could penetrate US defences. This is a plane-launched hypersonic missile, the Kinzhal (‘dagger’), which can manoeuvre while travelling at more than 10 times the speed of sound, making it, he said, ‘guaranteed to overcome all existing and I think prospective anti-missile systems’ and deliver a nuclear strike. Putin claimed it had completed testing and was already operational.83

The United States

The United States has the world’s second-largest nuclear weapons arsenal behind Russia.84 In February 2018, the United States’ corresponding New START declaration reported deployment of 1,350 warheads across 652 ICBMs, SLBMs, and strategic bombers.85 In a press release, however, the Russian Foreign Ministry expressed dissatisfaction with the US commitment to New START, affirming that the United States had reconfigured several Trident II submarine ballistic missile launchers and B-52H bombers in such a way that it ‘could not confirm that these strategic arms have been rendered incapable of employing nuclear armaments’ in accordance with treaty procedures. Russia also accused the United States of ‘arbitrarily’ converting some underground missile launch facilities into indistinguishable ‘training launch facilities’.86

The United States has officially reported conducting a total of 1,054 nuclear test detonations between 1945 and 1992. Twenty-four of the underground tests were conducted jointly with the United Kingdom.87 Between January 1951 and July 1962, atmospheric and underground nuclear tests were conducted at the Nevada Test Site.88 From then on, all nuclear tests conducted in the United States were underground; most at the Nevada Test Site. On 24 September 1996, US President William Jefferson Clinton signed the Comprehensive Nuclear-Test-Ban Treaty (CTBT), which prohibits ‘any nuclear weapons test explosion’. Although the treaty has still to enter into force (see below), the United States has respected the prohibition.

The United States also carried out 106 test explosions in the Pacific: on Bikini Atoll and Enewetak (part of the Marshall Islands); on Christmas Island (part of modern Kiribati in the Pacific); and on Johnston Island (an atoll in the US Minor Outlying Islands in the Pacific), as well as in the atmosphere over the Pacific Ocean.89 In 1954, on Bikini Atoll, the United States detonated its most powerful thermonuclear device. The 15 Mt device tested in ‘Castle Bravo’ was 1,000 times more powerful than the Hiroshima bomb, its destructive force far greater than all the explosives used in the Second World War, including the atomic bombs dropped on both Hiroshima and Nagasaki.90 The yield, which was two and a half times greater than scientists had expected, combined with meteorological conditions to cause fallout to be spread over more than 4,000 square miles, including onto the inhabited Rongelap and Rongerik atolls, in ‘one of the most serious nuclear fallout (p. 14) incidents in history’. The military and scientific leaders of the test had rejected warnings about the likely effects of the weather on the spread of fallout.91

US President Barack Obama had advocated a ‘world without nuclear weapons’, but despite his pledge to produce no new nuclear arms the United States continued to modernise its existing nuclear arsenals under his leadership. The B61 Model 12 (B61-12) is the first of five new warhead types which are estimated to cost up to USD1 trillion over three decades. The plan for the B61-12 was to merge four old B61 models into a single version that greatly reduced their destructive power. It would have a ‘dial-a-yield’ feature whose lowest setting was only 2 per cent of the power of the bomb dropped on Hiroshima. Full-scale production is expected to be underway in 2020.92

In February 2018, the United States Department of Defense released its latest Nuclear Posture Review,93 declaring that US nuclear capabilities would be expanded to counter an increasing threat from Russia. The Ground-Based Strategic Deterrent (GBSD) programme will replace the US ICBM force, which currently consists of 400 single-warhead Minuteman III missiles deployed in underground silos across several states, and will begin in 2029.94 The Nuclear Posture Review further affirmed that

Russia’s belief that limited nuclear first use, potentially including low-yield weapons, can provide such an advantage is based, in part, on Moscow’s perception that its greater number and variety of non-strategic nuclear systems provide a coercive advantage in crises and at lower levels of conflict. Recent Russian statements on this evolving nuclear weapons doctrine appear to lower the threshold for Moscow’s first-use of nuclear weapons. Russia demonstrates its perception of the advantage these systems provide through numerous exercises and statements. Correcting this mistaken Russian perception is a strategic imperative.95

In response, the Review declared that ‘in the near-term’, the United States would ‘modify a small number of existing SLBM warheads to provide a low-yield option, and in the longer term, pursue a modern nuclear-armed sea-launched cruise missile[s] (SLCM)’. This new capability is intended to provide an ‘arms control-compliant response to Russia’s non-compliance with the Intermediate-range Nuclear Forces [INF] Treaty, its non-strategic nuclear arsenal, and its other destabilizing behaviors’.96

China

China is estimated to possess about 280 non-deployed nuclear warheads across its nuclear triad, and its stockpile has been slowly growing.97 After its first test on 16 October 1964, China test-detonated forty-five nuclear weapons at the Lop Nor site, 165 miles south-east of Urumqi in the Xinjiang region of western China. The twenty-three atmospheric and twenty-two underground tests ranged in yield from about 1 kt to about 4 Mt, the largest of which was conducted on 17 November 1976.98 China’s final atmospheric test, on 16 (p. 15) October 1980, was the last atmospheric nuclear test by any nation.99 According to reports by the China Academy of Engineering Physics, though, China carried out some 200 nuclear blast simulations between September 2014 and December 2017.100

China has also been expanding its nuclear weapons capability by developing a nuclear-powered ballistic missile. In August 2015, China conducted the latest flight test of its new ICBM, the DF-41. The weapon, which can contain up to ten MIRVs101 or one 3 Mt warhead, may have a maximum range of 7,500 miles or more. It was expected to come into service in the first half of 2018.102 China has announced the development of a new nuclear-capable strategic bomber, which would give China a nuclear triad for the first time.103

France

France is estimated to possess about 300 nuclear warheads in total across its sea- and air-launched capabilities, with most deployed in its nuclear-powered submarines.104 It no longer has a land-based nuclear weapons capability. The M51 is an SLBM which has been deployed by the French Navy since 2010.105 Each M51 SLBM is being modernised to carry MIRV oceanic nuclear warheads.106

The fourth state to become a nuclear weapon power, France conducted 210 nuclear test explosions between February 1960 and January 1996.107 As is discussed here, Algeria was the site of early French nuclear weapons testing between 1960 and 1965, beginning with a 70 kt explosive yield in a portion of the Sahara straddling Algeria and Mali. Three above-ground test detonations followed. After Algeria’s independence from France in 1962, the French military tested a further thirteen nuclear weapons underground in that country, in a facility beneath the Hoggar mountains, 400 miles south-east of Reggane.108 The other 193 test detonations occurred at Moruroa and Fangataufa atolls in French Polynesia. No nuclear weapon was test-detonated on French metropolitan territory.

In 1974, the ICJ delivered its judgment in a case brought by Australia and New Zealand, holding that a unilateral declaration by the French President that France would not conduct further nuclear tests in the Pacific amounted to binding international law.109(p. 16) In 2013, declassified French Ministry of Defence documents revealed that nuclear tests in the South Pacific in the 1960s and 1970s had been far more toxic than previously acknowledged, affecting a vast swathe of Polynesia with nuclear fallout.110

France ratified the CTBT in 1998 and closed its nuclear test site in the Pacific. It also ceased production of plutonium and enriched uranium for nuclear weapons and dismantled its production facilities.111 Since the end of the Cold War, France is the only nuclear weapons power that has dismantled its fissile material production facilities.112

The United Kingdom

The United Kingdom has not produced new nuclear weapons since its deployment of the Trident weapons system in 1990, and retains only a continuous at sea deterrent. The United Kingdom has stated that its nuclear-armed submarines on patrol ‘are at several days’ notice to fire’ and that, since 1994, it does not target its missiles at any state.113 It possesses no more than 215 nuclear warheads.114 The United Kingdom observes that it is the only nuclear-weapon state recognised under the NPT that has reduced its deterrent capability to a single nuclear weapon system, having dismantled its maritime tactical nuclear capability and the Royal Air Force’s WE177 free-fall nuclear bombs.115

The Trident II D5 missile system is housed in the United Kingdom’s four Vanguard class submarines that form its strategic nuclear missile force. In accordance with UK policy, each of the four submarines is armed with not more than forty warheads. The D5 missile will also equip the United Kingdom’s new Dreadnought class submarines, which will constitute its future nuclear weapons capability from the 2030s.116 On 18 July 2016, the UK Parliament voted to maintain the nation’s strategic nuclear capability beyond the life of the existing system.117

The United Kingdom conducted a total of forty-five test detonations between 1952 and 1992, which twelve included nine in South Australia (at Maralinga and Emu Field), three on Malden Island, and six on Christmas Island in the central Pacific. As noted above, a further twenty-four tests were carried out in the United States as part of a joint series of tests. The United Kingdom’s first test detonation was on 3 October 1952 in the lagoon in the Monte Bello Islands in Western Australia and its last was on 26 November 1991 at the Nevada Test Site.118 The tests on Malden Island, part of (p. 17) Kiribati, were claimed at the time to involve hydrogen bombs. In fact, it later transpired that of the three tests one was a large fission bomb while the two others were boosted fission bombs.119 No nuclear weapon was ever test-detonated on British metropolitan territory.

Pakistan

Pakistan possessed between 110 and 130 nuclear weapons in 2016, an increase of ten from the previous year, and the number continues to grow.120 Pakistan began a nuclear weapons programme shortly after its independence from India in 1947 but it was only in the mid 1970s, following its military defeat in the 1971 war with India, that it began enriching uranium to weapons-grade level.121 A member of the Pakistan Atomic Energy Commission said the development of the first nuclear explosive device was completed in 1978 and the bomb was ‘cold tested’ in 1983.122

Following India’s nuclear explosive tests in May 1998, Pakistan tested a total of six nuclear explosive devices (or maybe only five; see the later section on the DPRK) whereupon it declared itself a nuclear-armed state.123 Pakistan has since been producing nuclear weapons at such a rate that in 2011 two leading experts from the Federation of American Scientists, Hans Kristensen and Robert Norris, characterised Pakistan as having ‘the world’s fastest-growing nuclear stockpile’.124 In 2015, the Carnegie Endowment for International Peace and the Stimson Center estimated that Pakistan might be in a position to produce twenty additional weapons each year.125

Pakistan is not a state party to the NPT, nor is it one of the five nuclear-weapon states recognised by the treaty (see the section on the 1968 Treaty on the Non-Proliferation of Nuclear Weapons below).

India

India is believed to possess between ninety and 110 nuclear weapons.126 According to one report, India now possesses air, sea, and land nuclear weapon capabilities.127 It has developed the indigenous Arihant (Sanskrit for ‘Slayer of Enemies’) nuclear-powered ballistic missile submarine, the first nation outside the five permanent members of the UN (p. 18) Security Council (P5) to have an SSBN capability.128 In May 2018, Nirmala Sitharaman, India’s Minister of Defence, announced that the INS Arihant was operational and was equipped with a B-O5 submarine-launched strategic missile (SLBM) with a range of 650 kilometres.129

India tested its first nuclear explosive device, codenamed ‘Smiling Buddha’, in May 1974.130 Indian scientists initially claimed the device had an explosive yield equivalent to 12 kt, though Indian officials later said the figure was closer to between 8 kt and 10 kt, while other analysts estimated that the yield might have been as low as 4 kt.131 The test was widely condemned for having violated peaceful-use agreements underpinning US and Canadian transfers of nuclear technology and material (though India argued that it was a ‘peaceful nuclear explosion’).132 Nonetheless, it was a major reason for the creation of the Nuclear Suppliers Group (NSG),133 a ‘group of nuclear supplier countries that seeks to contribute to the non-proliferation of nuclear weapons through the implementation of two sets of Guidelines for nuclear exports and nuclear-related exports’.134

The success of India’s 1998 nuclear weapon tests was also disputed. India’s Department of Atomic Energy announced it had simultaneously tested three nuclear devices on 11 May: a thermonuclear device with a yield of 43 kt; a fission device with a yield of 12 kt; and a sub-kiloton device with a yield of 0.2 kt.135 Other analysts and scientists, citing evidence from geologic and seismic data, concluded that the cumulative yield of the tests was considerably lower, suggesting that the second stage of the thermonuclear test had not detonated successfully.136 The test site, in Pokhran in the northern desert state of Rajasthan, was only about 93 miles from India’s border with Pakistan. In announcing the news, Indian Prime Minister Atal Behari Vajpayee ‘warmly congratulate[d] the scientists and engineers who have carried out these successful tests’.137 Other nations condemned the tests, with China expressing serious concern, saying it would hamper world peace and regional stability, while the United States imposed sanctions on India.138

Despite the protests, two further nuclear explosive devices were detonated on 13 May, following which the Indian government established a National Security Advisory Board. The Board issued a Draft Report on Indian Nuclear Doctrine in 1999 that set out India’s policy of no first use of nuclear weapons and ‘credible minimum nuclear deterrence’. The (p. 19) preamble to the doctrine provides that the ‘use of nuclear weapons in particular as well as other weapons of mass destruction constitutes the gravest threat to humanity and to peace and stability in the international system’.139

India is not a state party to the NPT nor is it one of the five nuclear weapons powers recognised by the treaty (see the section on the 1968 Treaty on the Non-Proliferation of Nuclear Weapons below). In 2014, IHS Jane’s reported that India was expanding a covert uranium-enrichment plant that could support the development of thermonuclear weapons, ‘raising the stakes in an arms race with China and Pakistan’.140

Israel

Israel’s development, production, and possession of nuclear weapons are shrouded in secrecy. It is believed that Israel first assembled nuclear weapons in May 1967 in the run-up to the Six Day War.141 Although estimates suggest that Israel has produced enough plutonium for 100 to 200 warheads, the number of delivery platforms, along with estimates by the US intelligence community, could mean that Israel’s stockpile might have been no more than eighty warheads as at 2015.142

Israel is not a state party to the NPT nor is it one of the five nuclear weapons powers recognised by the treaty (see the section on the 1968 Treaty on the Non-Proliferation of Nuclear Weapons below). Under Article IX(3) of that treaty, ‘a nuclear-weapon State is one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January, 1967.’

The DPRK

The number of warheads stockpiled as a result of domestic DPRK production is unknown, but was believed to be as low as ten in December 2016.143 A year later, two leading nuclear weapons experts suggested that North Korea might have produced between ten and twenty warheads, ‘although the operational status is difficult to assess’.144

Indeed, it is uncertain whether the DPRK has yet managed to produce a warhead that is small and robust enough to be delivered on a missile, or a missile that can survive re-entry into the earth’s atmosphere. In early August 2017, however, Japan stated that it was ‘conceivable’ that the regime had made progress on marrying a missile with a miniaturised nuclear warhead.145 On 8 August 2017, a report in the Washington Post cited the (p. 20) conclusions of the US Defence Intelligence Agency that the DPRK had successfully produced a miniaturised nuclear warhead that can fit inside its missiles.146

Dr Abdul Qadeer Khan (better known as A. Q. Khan), the Pakistani metallurgist and physicist who supported the development of Pakistan’s and Libya’s nuclear weapons programmes, also assisted the DPRK.147 This included the sale by Dr Khan of Pakistani centrifuge equipment.148 It has also been alleged, but not confirmed, that Pakistan’s sixth nuclear test in 1998 was actually the testing of a DPRK device.149 Aside from this disputed test, the DPRK reports having test-detonated six nuclear explosive devices: in 2006, 2009, 2013, in January and September 2016, and in early September 2017. The latest of these tests was believed to have had an explosive yield equating to at least 50 kt and possibly as high as 250 kt, which would make it the nation’s most powerful nuclear test to date.150

The current status of the nation’s nuclear weapons programme is the subject of great international concern, particularly in the United States. On 14 April 2017, the nation’s vice foreign minister said: ‘We have got a powerful nuclear deterrent already in our hands, and we certainly will not keep our arms crossed in the face of a US pre-emptive strike.’151 In June 2017, the UN Security Council had adopted Resolution 2356 (2017) in which it had:

Reaffirm[ed] its decisions that the DPRK shall abandon all nuclear weapons and existing nuclear programmes in a complete, verifiable and irreversible manner, and immediately cease all related activities; shall not conduct any further launches that use ballistic missile technology, nuclear tests, or any other provocation.152

But on 4 July 2017, the DPRK tested an ICBM that could potentially reach the United States mainland for the first time.153 This was followed on 27 July by a further ICBM test, launched from Mupyong-ni, an arms factory in the north of the country.154 In late January 2018, US Central Intelligence Agency (CIA) Director Mike Pompeo predicted (p. 21) that the DPRK would be capable of striking the continental United States with nuclear weapons within ‘a handful of months’.155

The DPRK was a state party to the NPT but in January 2003 it sought to confirm its withdrawal from the treaty, the only party to have done so. It had previously announced withdrawal in 1993, but suspended it a day before it would have come into effect. But having agreed to renounce its nuclear weapons programme under a 1994 agreement with the United States, that agreement collapsed in 2002, and on 10 January 2003 it declared that, with only one day remaining of its previous three-month notification requirement to withdraw from the treaty, its withdrawal would finally come into effect on 11 January 2003.156 The United Nations note the legal effect of this purported withdrawal is contested by states.157

In April 2018, the DPRK announced it had halted nuclear and ballistic missile tests ahead of a proposed summit with US President Donald Trump. It also announced plans to close its nuclear weapon test site at Punggye-ri,158 though shortly thereafter scientists at the University of Science and Technology of China suggested a partial collapse of the mountain that contains the testing tunnels, as well as the risk of radiation leaks, had potentially rendered the site unusable anyway.159 On 27 April 2018, after holding an historic summit at the border, Chairman Kim and President Moon of the Republic of Korea issued a joint statement in which ‘the South and North have confirmed their common goal of realizing a nuclear-free Korean peninsula’.160 On 12 June 2018, to much fanfare, President Trump and Chairman Kim signed a document that the President described as ‘important’ and ‘comprehensive’, in which North Korea reaffirmed the 27 April 2018 Panmunjom Declaration and committed to work toward the ‘complete’ denuclearisation of the Korean peninsula.161

Other Nuclear Weapons Development Programmes

Sweden

From 1945 to 1975, Sweden ran a largely clandestine nuclear weapons programme,162 in particular under the guise of civilian defence research at the Swedish National Defence Research Institute (FOA).163 Research focused on a Pu-239-based tactical nuclear (p. 22) weapon. Following its signature of the NPT in 1968, however, Sweden dismantled its nuclear-weapons research programme.

South Africa

South Africa had an active nuclear weapons programme until it was clear that apartheid was ending and the election of a democratic regime was impending.164 It is, to date, the only nation to have itself developed and possessed functioning nuclear explosive devices (explosive devices that derive their energy from nuclear reactions but which have not been ‘weaponised’)165 and to have dismantled its nuclear programme.

South Africa is a major source of uranium and by the late 1950s it had decided to establish a domestic nuclear research and development programme for peaceful purposes. In 1971, though, Carl de Wet, the Minister for Mines, approved preliminary research into nuclear explosive devices. In 1974, Prime Minister John Vorster approved the development of a nuclear explosive device capability for mining excavation. Two test shafts were later drilled at Vastrap in the Kalahari desert and preparations were made for a ‘cold test’, that is, a device without highly enriched uranium (HEU). A Soviet satellite, though, discovered the site in August 1977, and following vigorous international protest South Africa abandoned the site. Nonetheless, a first gun-type nuclear explosive device was completed in 1979 under President P. W. Botha. A government committee recommended the manufacture of a further six devices of which five would be completed. Each used 50–60 kg of HEU and would have had an explosive yield of up to 18 kt if detonated.166

In July 1991, following a national decision to end its nuclear weapons programme at the end of the 1980s, South Africa adhered to the NPT and after concluding a safeguards agreement with the International Atomic Energy Agency (IAEA), the IAEA was given access to the facilities used in the programme.167 On 24 March 1993, President Botha publicly announced the erstwhile existence and subsequent abandonment of South Africa’s nuclear weapons capability.168 Although South Africa’s nuclear weapons programme is over, it retains supplies of HEU, which were melted down and cast into ingots. Some 220 kg of this material is said to be stored in the Pelindaba Nuclear Research Centre near Pretoria.169

Libya

The Socialist People’s Libyan Arab Jamahiriya (Libya) under Colonel Muammar Gaddafi made little attempt to conceal its desire to acquire nuclear weapons. Libya signed the NPT under the rule of King Idris and, following his overthrow in a 1969 coup led by (p. 23) Gaddafi, ratified the treaty in 1975. Despite this adherence, Gaddafi is believed to have begun developing a nuclear weapons capability shortly after taking power.170

Libya admitted to the IAEA in 2004 that it had imported 2,263 metric tons of uranium ore concentrate from French-controlled mines in Niger in 1978–81, but had only declared import of 1,000 metric tons.171 The undeclared ore concentrate had thus not been subject to IAEA safeguards and could be used in covert nuclear activities. In the 1980s, a ‘European expert’, reported to have been a former employee of a German firm,172 initiated a research and development programme at the Tajura Nuclear Research Center in Libya to produce gas centrifuges for uranium enrichment.173

In 1997, Libya began receiving assistance from A. Q. Khan, the chief architect of Pakistan’s nuclear weapons programme. He supplied Libya with twenty assembled centrifuges and components for 200 more.174 Yet, despite its nuclear weapons programme, in April 1996 Libya signed the African-Nuclear-Weapon-Free Zone Treaty and, after voting against the adoption of the Comprehensive Nuclear Test Ban Treaty at the UN General Assembly, signed the 1996 Comprehensive Nuclear-Test-Ban Treaty (CTBT) in November 2001. In October 2003, US intelligence agencies seized a consignment of centrifuge-related equipment bound for Libya in a northern Mediterranean port.175 Many of the components had been manufactured in Malaysia with support from Khan and his associates as well as several British, German, and Swiss nationals.176

On 19 December 2003, following secret negotiations with the United Kingdom and the United States, Libya agreed to eliminate all materials, equipment, and programmes aimed at the production of nuclear or other internationally proscribed weapons.177 A Libyan government announcement stated that: ‘By taking this initiative, [Libya] wants all countries to follow its steps, starting with the Middle East, without any exception or double standards.’178 Flynt Leverett, a former US Department of State official, has argued that it was the promise of the lifting of US sanctions in return for a verifiable dismantling of Libya’s weapons of mass destruction programmes that persuaded the Gaddafi regime to reach the decision to end its pursuit of nuclear weapons.179

Argentina

Under its military junta in the 1970s, Argentina is believed to have been actively, though covertly, seeking to acquire nuclear weapons. It built and operated a gaseous diffusion (p. 24) enrichment plant though it did not succeed in building a weapon.180 Its nuclear facilities were not covered by any safeguards agreement in the 1960s and 1970s.181 Subsequent rapprochement with its regional rival, Brazil, led to the creation of a bilateral inspections body for nuclear materials and sites in both states in 1991, the Brazilian–Argentine Agency for Accounting and Control of Nuclear Materials (ABACC).182 Argentina adhered to the NPT in 1995, having acceded to the Treaty of Tlatelolco the previous year.

Brazil

From the 1970s to the beginning of the 1990s, Brazil was also suspected of using its domestic nuclear energy programme to develop a capability for nuclear weapons development. In November 1990, however, after military rule had been replaced by a civilian government, President Fernando Collor de Mello of Brazil and President Carlos Saul Menem of Argentina signed an agreement renouncing the production of nuclear weapons. The two presidents, meeting on the Brazilian side of the Iguassu Falls that span the border between the two nations, formally promised that their nuclear technology would be used for ‘exclusively peaceful ends’. They committed to open negotiations with the IAEA for safeguards agreements and to begin inspections of each other’s nuclear installations within forty-five days.183

In 1991, Brazil signed the agreement with Argentina for the exclusively peaceful use of nuclear energy that established the ABACC. Brazil is one of the few nations to possess competencies in all major aspects of the nuclear fuel cycle, from mineral prospection to uranium enrichment and fuel fabrication.184 As of writing, Brazil was the only non-nuclear-armed state that was developing a nuclear-powered submarine.185

Algeria186

Algeria has never possessed nuclear weapons, though it was the site of French nuclear weapons testing between 1960 and 1965. In 1983, Algeria signed a nuclear cooperation agreement with China, which included construction of the nation’s second research reactor, Es-Salam, located at a site 100 miles south of Algiers in the Sahara desert; construction began in 1988.187 In 1991, the secretive construction of the reactor raised doubts among US intelligence analysts about the site’s true purpose, arguing that the unusually large cooling towers at the site were too large for the reactor’s declared power output, and expressing concern that a large unfinished building nearby might be a fuel reprocessing facility. In April 1991, an article in The Washington Times accused China of (p. 25) helping Algeria to obtain nuclear weapons.188 Reacting to the claims, Algerian officials stated that the reactor was designed for civilian purposes, such as the creation of medical radioisotopes.189

The IAEA inspected the Es-Salam reactor in January 1992, and a facility-specific safeguards agreement was signed a month later. Algeria concluded a full-scope safeguards agreement with the IAEA in 1995 after it adhered to the NPT.

The Socialist Federal Republic of Yugoslavia190

In the late 1940s, Yugoslav President Josip Tito ordered the establishment of a nuclear-weapons programme. In the 1960s, President Tito terminated the nuclear weapons programme but in 1974, after India tested a nuclear weapon, the programme was revived, even though Yugoslavia had become a party to the NPT.191 Yugoslavia did not ultimately develop nuclear weapons and the programme was finally abandoned in 1987.

Iraq192

In the early 1970s, the then Vice President and head of the Iraq Atomic Energy Commission (IAEC) Saddam Hussein ordered the establishment of a nuclear weapons programme.193 In 1981, Israel bombed the Iraqi nuclear reactor at Osirak, which had the effect of strengthening Saddam Hussein’s commitment to developing a nuclear weapons capability.194 By 1991, Iraq had a robust covert programme that included a complete, though untested, nuclear weapon design and roughly 36 kg of weapons-grade uranium in the form of research reactor fuel.195 Following Iraq’s defeat in the 1991 Gulf War, the IAEA undertook intrusive inspections and concluded by 1997 that Iraqi’s weapons of mass destruction programmes had been dismantled.196 IAEA inspectors left Iraq in 1998.

The Iraq Survey Group (ISG) that conducted inspections following the 2003 invasion led by the United States found that Iraq’s pre-1991 nuclear programme had been mature and significant but that its ability to reconstitute a nuclear weapons programme ‘progressively decayed after that date’. The ISG concluded that Saddam Hussein ‘ended the nuclear program in 1991 following the Gulf war’ and ‘found no evidence to suggest concerted efforts to restart the program’.197

(p. 26) Syria198

Syria has been a state party to the NPT since 1969, with a Comprehensive Nuclear Safeguards Agreement in place with the IAEA. In September 2007, the Israeli Air Force bombed and destroyed a building at Dair Alzour in north-western Syria that US and Israeli intelligence officials claimed was a plutonium production reactor under construction. The Syrian government denied the allegations.199 In May 2011, however, the IAEA concluded it was ‘very likely that the building destroyed at the Dair Alzour site was a nuclear reactor which should have been declared to the Agency’.200 On 9 June 2011, the IAEA Board of Governors passed a resolution that found Syria in non-compliance with its obligations under its Comprehensive Nuclear Safeguards Agreement, and reported the case to the UN Security Council.201

The Republic of Korea

In early September 2017, after the DPRK’s sixth nuclear test, there were calls in local media for the Republic of Korea (South Korea) to acquire nuclear weapons itself. Acquiring nuclear weapons would, though, violate South Korea’s obligations under the NPT. The United States had stationed nuclear weapons in the South after the 1950–53 Korean war, but withdrew them in 1991 when the DPRK and South Korea jointly declared they would make the peninsula nuclear-free. Park Byung-kwan of the Institute for National Security Strategy in Seoul, a think tank affiliated with the country’s intelligence agency, proposed bringing US tactical nuclear weapons back into South Korea.202

Japan

In early September 2017, with the crisis around the DPRK’s nuclear weapons programme growing by the day, former Japanese Minister of Defence Shigeru Ishiba said that Japan should debate the abolition of what are known as the ‘three non-nuclear principles’—not producing or possessing nuclear weapons or allowing them on Japanese soil.203 Currently, both Japan and South Korea are protected by the US nuclear umbrella in accordance with bilateral treaties, but without any stationing of nuclear weapons on their territory. According to the 1960 Treaty of Mutual Cooperation and Security between Japan and the United States, each state recognises that an armed attack against either

in the territories under the administration of Japan would be dangerous to its own peace and safety and declares that it would act to meet the common danger in accordance with its constitutional provisions and processes. Any such armed attack and all measures taken as a result thereof shall be (p. 27) immediately reported to the Security Council of the United Nations in accordance with the provisions of Article 51 of the Charter. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.204

It is alleged that Japan and the United States, in connection with negotiation of the 1960 Treaty, reached a secret unwritten understanding to permit US warships to carry nuclear weapons in Japanese territorial waters.205 In 2011, Mr Ishiba said: ‘I don’t think Japan should have nuclear [weapons]. However, at the same time, Japan can make them whenever we decide—within a year. And this in itself may be a deterrent.’206 Three years later, it was reported that Japan had nine tons of plutonium stockpiled at several locations in Japan and 1.2 tons of enriched uranium.207 On 6 August 2016, Japanese Prime Minister Shinzo Abe said the country will never possess, or even consider possessing, nuclear weapons.208

Iran

The extent to which Iran has sought to develop nuclear weapons is disputed. Despite a fatwa issued against nuclear weapons by Ayatollah Khamenei, originally in the mid 1990s,209 Iran’s uranium-enrichment programme, particularly at the Natanz nuclear plant at Bushehr, has raised great concern both regionally and internationally, leading to the imposition of sanctions by the United Nations, the United States, and the European Union. In early November 2004, the US Central Intelligence Agency received thousands of pages of information from a ‘walk-in’ source indicating that Iran was modifying the nose cone of its Shahab-3 medium-range ballistic missile to carry a nuclear warhead.210 The IAEA found from its inspectors that Iran had hidden blueprints for a more advanced centrifuge.211

In 2010, the Stuxnet virus caused the destruction of up to 1,000 centrifuges at the Natanz plant.212 Despite the virus, believed to be the work of Israel and the United States,213 by July 2015, Iran was believed to have a significant stockpile of enriched uranium and almost 20,000 functioning centrifuges; enough material to create eight to ten bombs. US experts estimated that Iran would only need about three months until it had enough 90 per cent-enriched uranium to build a nuclear weapon: the so-called ‘break-out time’.214

(p. 28) With a view to ending Iran’s nuclear weapons programme, the Joint Comprehensive Plan of Action (JCPOA)215 was negotiated with the so-called P5+1 (China, France, Russia, the United Kingdom, and the United States, plus Germany). Better known as the Iran nuclear deal, the JCPOA went into effect in January 2016. Under it, Iran commits to reduce its stockpile of HEU by 98 per cent, to 300 kg, for fifteen years. It is also required to cut, for a decade, the number of centrifuges enriching uranium by two-thirds, to 5,060. Sanctions were lifted on the basis of Iran’s compliance as verified by the IAEA,216 and more than USD100 billion in assets frozen overseas are being progressively released.217 Iran also agreed to implement the Additional Protocol to their IAEA Safeguards Agreement, which allows inspectors to access any site they deem suspicious, anywhere in the country.

Before and after coming into power, however, US President Donald Trump regularly decried the Iran nuclear deal, threatening a US pull-out. In a speech in late October 2017, he said: ‘As I have said many times, the Iran Deal was one of the worst and most one-sided transactions the United States has ever entered into.’218 He claimed that Iran had ‘committed multiple violations of the agreement. For example, on two separate occasions, they have exceeded the limit of 130 metric tons of heavy water. Until recently, the Iranian regime has also failed to meet our expectations in its operation of advanced centrifuges.’219

In April 2018, Iran’s Minister for Foreign Affairs, Mohammad Javad Zarif, said that President Trump’s threats to restore economic sanctions that were lifted in 2015 sent a ‘very dangerous message’ that the United States could not be trusted to keep its word, and would deter the North Korean supreme leader, Kim Jong-Un, from concluding his own disarmament deal. ‘You should never come to an agreement with the United States, because at the end of the day the operating principle of the United States is “What’s mine is mine, what’s yours is negotiable”,’ he said.220 He warned that Iran was ready to ‘vigorously pursue’ its nuclear weapons programme if the United States withdrew from the JCPOA.221 On 8 May 2018, President Trump announced that the United States would cease implementing the JCPOA and begin to reimpose nuclear-related sanctions on Iran.222

Saudi Arabia

It has been claimed that Saudi Arabia has been seeking to procure nuclear weapons with the help of Pakistan. Alternatively, it is suggested that there is a ‘cash-and-carry’ agreement between the two states.223 Saudi Arabia is particularly concerned about the threat from Iran. In early September 2015, Saudi Arabia’s Minister for Foreign Affairs, Adel (p. 29) al-Jubeir, stated that if Iran were able to obtain a nuclear weapon despite the JCPOA, Saudi Arabia ‘would do whatever we need to do in order to protect our people.’224

In March 2017, a report by a US monitoring organisation, the Institute for Science and International Security, claimed that Saudi Arabia was in the early stages of nuclear development, observing that it had neither nuclear power nor nuclear research reactors. It argued, though, that ‘there is little reason to doubt that Saudi Arabia will more actively seek nuclear weapons capabilities, motivated by its concerns about the ending of the JCPOA’s major nuclear limitations starting after year ten of the deal or sooner if the deal fails.’225

But the situation had evolved significantly only a year later. On 15 March 2018, Crown Prince Mohammed bin Salman told CBS television in the United States: ‘Saudi Arabia does not want to acquire any nuclear bomb, but without a doubt, if Iran developed a nuclear bomb, we will follow suit as soon as possible.’226 It was further reported that Saudi Arabia was seeking to build two nuclear power stations as part of a two-decade-long programme to construct as many as sixteen civil nuclear power stations. Although Saudi Arabia has stated that it wants nuclear technology only for peaceful uses, ‘it has left unclear whether it also wants to enrich uranium’.227

Nuclear Deterrence

The overriding rationale for the possession of nuclear weapons is to deter aggression from another state. In the words of a website run by journalists in the United Kingdom, the ‘strategic concept of deterrence aims to prevent war. It is the justification virtually every nuclear state uses for maintaining nuclear arsenals.’ The concept of nuclear deterrence is generally, but not exclusively, based on the ‘ “first user” principle: states reserve the right to use nuclear weapons in self-defence against an armed attack threatening their vital security interests.’228

In April 2017, the UK Secretary of State for Defence, Michael Fallon, said the Prime Minister was prepared to launch Trident in ‘the most extreme circumstances’, even if the United Kingdom itself was not under nuclear attack.229 In July 2017, a report published by the Royal United Services Institute for Defence and Security Studies (RUSI) stated that the ‘political stances and developing capabilities of potential adversaries’ demand that the United Kingdom

review thinking about how deterrence and conflict avoidance can be strengthened. The readiness of NATO to explicitly consider escalation to the nuclear level in the face of losses at the conventional level seems like a hangover from the Cold War and looks less appropriate and credible in the contemporary world.230

(p. 30) China’s missile launch sites and underground storage facilities in the Gobi desert and the Tibetan highlands appear to be intended as forward bases for potential weapons launches against India or Russia.231 As Marc Finaud has written, though, ‘China has pledged ‘not to be the first to use nuclear weapons at any time or under any circumstances’. This principle is also known as ‘sole purpose’: in short, nuclear weapons are meant only to deter nuclear attacks. As a consequence, China’s position towards non-nuclear-weapon states is straightforward and unqualified: it undertakes ‘not to use or threaten to use nuclear weapons against non-nuclear-weapon states or nuclear-weapon-free zones at any time or under any circumstances’.232

In October 2015, Pakistan declared that it had developed tactical nuclear weapons for use in the event of armed conflict with India.233 In turn, however, the main impetus for India’s continued development of nuclear weapons is said to be primarily China rather than Pakistan.234 China defeated India in a border conflict in 1962.

A credible nuclear deterrent, the American military strategist Bernard Brodie wrote in 1959, must be ‘always at the ready’, yet never used.235 During the Cold War, the notion of mutually assured destruction (MAD) was maintained by the West in opposition to the USSR. While the Cold War is over and stockpiles have been greatly reduced, mistrust persists and in recent years Russia has been actively producing and modernising its strategic and tactical nuclear weapons with a view to offsetting the North Atlantic Treaty Organization (NATO)’s overwhelming conventional military superiority.236 While the former Soviet Union adhered to a ‘no-first-use’ policy for nuclear weapons, Russia dropped that pledge in November 1993. Since then Russia has reserved ‘the right to use its nuclear arsenal during any conflict under a doctrine it paradoxically calls “de-escalation” ’.237

US post-Cold War deterrence policy was outlined in 1995 in a document called Essentials of Post-Cold War Deterrence.238 The document called for the United States to be ‘ambiguous’ about the details of its ‘response (or pre-emption)’ to threats to what the United States values, ‘but it must be clear that our actions would have terrible consequences’.239 It further stated that:

Just as nuclear weapons are our most potent tool of deterrence, nevertheless they are blunt weapons of destruction and thus are likely always to be our weapons of last resort. Although we are not likely to use them in less than matters of the greatest national importance, or in less than extreme circumstances, nuclear weapons always cast a shadow over any crisis or conflict in which the US is engaged. Thus, deterrence through the threat of use of nuclear weapons will continue to be our top military strategy.240

(p. 31) In 2009, The Independent Task Force on US Nuclear Weapons Policy, a group sponsored by the Council on Foreign Relations and co-chaired by former US Secretary of Defense William J. Perry and former National Security Adviser Brent Scowcroft, presented its report. The Independent Task Force recommended, inter alia, that US policymakers: state clearly that it is a US goal to prevent nuclear weapons from ever being used, by either a state or a non-state actor, and that the sole purpose of US nuclear weapons is providing deterrence for itself and its allies; continue to reduce reliance on nuclear weapons in a transparent manner and take the international lead in reducing the salience of nuclear weapons in security policy; and seek further reductions in nuclear forces, beginning with a bilateral strategic arms-control agreement with Russia.241 The New START treaty was signed the following year between Russia and the United States.

Within NATO, the 2010 Strategic Concept242 is the organisation’s description of its ‘enduring purpose and nature and its fundamental security tasks’.243 It serves as the basis for its common defence and security policy, committing NATO to the goal of creating the conditions for a world without nuclear weapons, but reconfirming that, as long as there are nuclear weapons in the world, NATO will remain a nuclear alliance.244 According to the Concept, ‘Deterrence, based on an appropriate mix of nuclear and conventional capabilities, remains a core element of our overall strategy. The circumstances in which any use of nuclear weapons might have to be contemplated are extremely remote.’245

Contemporary R & D on nuclear weapons around the world is focusing, among other things, on weapon miniaturisation and scalability of nuclear warheads. The Obama administration argued that modernising existing weapons would produce a smaller and more reliable arsenal while making their use less likely because of the threat they can pose. Others have argued that the smaller yields and better targeting make the weapons ‘more tempting to use—even to use first, rather than in retaliation’. According to General James E. Cartwright, a retired vice chairman of the Joint Chiefs of Staff who supported the weapon upgrades on the basis that precise targeting allowed the United States to hold fewer weapons, acknowledged that ‘what going smaller does is to make the weapon more thinkable’.246

While the B61-12s’ low yield makes them more ‘useable’, the MIRV capability of many new missiles puts a premium on pre-emptive strikes as otherwise a state’s nuclear arsenal is vulnerable to being wiped out in a surprise first strike.247 The hypersonic capability of missile delivery (up to 14,000 miles per hour and potentially faster) may make them impervious to existing missile-defence systems.

As its conventional military capabilities have eroded since the fall of the Soviet Union, Russia has relied more heavily on nuclear weapons for national defence. It therefore seeks to maintain a clear nuclear advantage over other potential adversaries, notably China. (p. 32) Beijing’s acquisition of MIRV missiles threatens to diminish that advantage.248 China’s acquisition of MIRV capability may also prompt India

to greatly increase the size of its nuclear arsenal, as well as force it to disperse its nuclear weapons across a greater sway of land to prevent China from being able to conduct a successful decapitation strike (a strike aimed at neutralizing the enemy’s leadership or main command centre). Such a development in Delhi would upset the Indo-Pakistani nuclear balance, likely prompting Islamabad to take corresponding actions of its own.249

Experts have predicted that by 2020 the DPRK could have anywhere between twenty and one hundred nuclear warheads, based on the rate of its stockpile growth and technological improvements.250 In mid April 2017, Ambassador Kim In Ryong, the DPRK’s Deputy Permanent Representative to the United Nations in New York, warned that: ‘Thermonuclear war may break out at any moment.’251 In early July 2017, the US Ambassador to the United Nations, Nikki Haley, told the UN Security Council that ‘[t]he United States is prepared to use the full range of our capabilities to defend ourselves and our allies. One of our capabilities lies with our considerable military forces. We will use them if we must, but we prefer not to have to go in that direction.’252

In a January 2007 article in the Wall Street Journal, former US Secretary of State George P. Shultz, former Secretary of Defense William J. Perry, former Secretary of State Henry A. Kissinger, and former Senator Sam Nunn jointly contributed an article affirming that nuclear weapons presented ‘tremendous dangers, but also an historic opportunity’.253 The four foreign policy experts stated that:

Nuclear weapons were essential to maintaining international security during the Cold War because they were a means of deterrence. The end of the Cold War made the doctrine of mutual Soviet–American deterrence obsolete. Deterrence continues to be a relevant consideration for many states with regard to threats from other states. But reliance on nuclear weapons for this purpose is becoming increasingly hazardous and decreasingly effective.

They called for US leadership ‘to take the world to the next stage—to a solid consensus for reversing reliance on nuclear weapons globally as a vital contribution to preventing their proliferation into potentially dangerous hands, and ultimately ending them as a threat to the world.’254

In February 2018, the United States’ latest Nuclear Posture Review affirmed that:

The highest U.S. nuclear policy and strategy priority is to deter potential adversaries from nuclear attack of any scale. However, deterring nuclear attack is not the sole purpose of nuclear weapons. Given the diverse threats and profound uncertainties of the current and future threat environment, U.S. nuclear forces play the following critical roles in U.S. national security strategy. They contribute to the:

  • •  Deterrence of nuclear and non-nuclear attack;

  • •  Assurance of allies and partners;

  • (p. 33) •  Achievement of U.S. objectives if deterrence fails; and

  • •  Capacity to hedge against an uncertain future.255

The Review further observes that to help preserve deterrence, the United States ‘has never adopted a “no first use” policy and, given the contemporary threat environment, such a policy is not justified today. It remains the policy of the United States to retain some ambiguity regarding the precise circumstances that might lead to a U.S. nuclear response.’256

The International Legal Regime

The Treaty on the Prohibition of Nuclear Weapons (the 2017 Treaty) joins a body of nuclear non-proliferation, ‘non-armament’,257 arms-control, and disarmament treaties that began with the 1959 Antarctic Treaty and subsequently, in 1963, the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (the Partial Test Ban Treaty). Prior to the adoption of the 2017 prohibition treaty, the last treaty governing nuclear weapons was the CTBT. The Comprehensive Nuclear-Test Ban Treaty was negotiated in the Conference on Disarmament (CD) but ultimately adopted by the UN General Assembly in 1996 for want of consensus in the CD. The CTBT has still to enter into force as a binding treaty under international law.

The 1959 Antarctic Treaty

The 1959 Antarctic Treaty was the first formal Cold War-era arms agreement. The International Geophysical Year (IGY) of 1957–58 was a joint scientific effort by twelve states—Argentina, Australia, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the USSR, the United Kingdom, and the United States—to conduct studies of the Earth and its cosmic environment. As interest grew in keeping the continent of Antarctica from becoming militarised, diplomatic discussion began about the possibility of formalising a demilitarisation agreement.258

On 3 May 1958, the United States proposed to the other eleven nations participating in the IGY that a diplomatic conference be held to formalise the points of agreement that had been reached in informal discussions: that the legal status quo of Antarctica remain unchanged; that scientific cooperation continue; and that the continent be used for peaceful purposes only.259

The Washington Conference on Antarctica met from 15 October to 1 December 1959, culminating in the Treaty that was signed by all twelve participating nations. The 1959 Antarctic Treaty provides that ‘Antarctica shall be used for peaceful purposes only’.260 To this end it prohibits ‘any measures of a military nature’, including, specifically, any nuclear explosions or the disposal of radioactive waste material.261 It does not, though, prevent the use of military personnel or equipment ‘for scientific research or for any (p. 34) other peaceful purpose’.262 The Treaty provides for the designation of observers to conduct inspections throughout Antarctica (defined as the area south of 60 degrees south latitude),263 including all stations, installations and equipment, and ships and aircraft at discharge or embarkation points.264 Each observer has complete freedom of access at any time to any or all areas of Antarctica.265

The 1959 Antarctic Treaty entered into force on 23 June 1961, after the twelfth ratification was deposited.266 As at 1 October 2018, there were a total of fifty-three states parties to the Treaty, the latest being Iceland, which became party on 13 October 2015.267

The 1963 Partial Test Ban Treaty

The 1963 Partial Test Ban Treaty emerged from a proposal by India nine years earlier. India had proposed the negotiation of an agreement to ban nuclear weapons tests. In 1958, the United Kingdom, the United States, and the USSR initiated discussions at a Conference in Geneva on the Discontinuance of Nuclear Tests, but a treaty was not adopted for lack of agreement on verification procedures.

The Treaty requires states parties to prohibit, prevent, and abstain from the carrying out of nuclear weapons tests or any other nuclear explosions in the atmosphere, in outer space, or under water, as well as in any other environment if any such explosion were to cause radioactive debris to be present outside the territorial limits of the state responsible for it.268 It further obliges states parties to refrain from causing, encouraging, or in any way participating in, any nuclear weapon test explosion or other nuclear explosion that would take place anywhere in any of those environments.269 The Treaty does not provide for international verification, but each state party may do so on the basis of its own technical means.

The 1963 Partial Test Ban Treaty was opened for signature at London, Moscow, and Washington on 8 August 1963, and entered into force on 10 October 1963. As at 1 October 2018, 125 states were party to the Treaty and a further nine were signatories.270

The 1966 Outer Space Treaty

The Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies (1966 Outer Space Treaty) was considered by the Legal Subcommittee of the Committee on the Peaceful Uses of Outer Space in 1966 and concluded and adopted in the General Assembly the same year.271 The 1966 Outer Space Treaty was largely based on the Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space, adopted by the General Assembly in 1963.272

(p. 35) The 1966 Outer Space Treaty reflects the desire of its states parties to ‘contribute to broad international cooperation in the scientific as well as the legal aspects of the exploration and use of outer space for peaceful purposes’.273 According to the UN, the Treaty ‘could be viewed as furnishing a general legal basis for the peaceful uses of outer space and providing a framework for the developing law of outer space.’274

Under Article IV(1), states parties undertake not to place in orbit around the Earth any objects carrying nuclear weapons or any other weapons of mass destruction, to install such weapons on celestial bodies, or to station such weapons in outer space in any other manner. Article IV(2) stipulates that the Moon and other celestial bodies shall be used by all states parties exclusively for peaceful purposes. The establishment of military bases, installations and fortifications, the testing of any type of weapons, and the conduct of military manoeuvres on celestial bodies is forbidden.

What constitutes a weapon of mass destruction is not fully defined in the Treaty, but nuclear weapons are explicitly cited. The use of these weapons in outer space, though, is not specifically prohibited, nor is the launching of weapons from earth into space. The US Department of Defense notes that the Outer Space Treaty also ‘does not ban the use of nuclear or other weapons of mass destruction that go into a fractional orbit or engage in suborbital flight’. Thus, for example, ICBMs will travel a portion of their trajectory in outer space, but because this entry into outer space would be only temporary, ICBMs with nuclear warheads ‘would not violate this prohibition’.275

The second paragraph of Article IV contains both jus ad bellum and arms control provisions. It prohibits recourse to all forms of military action on the moon (and any planet or associated moon or comet or asteroid). This outlaws only the offensive use of any weapons, including conventional weapons, as presumably the provision would not extinguish the inherent right of self-defence of any state. Indeed, according to the US Department of Defense, ‘lawful military activities in self-defense (e.g., missile early warning, use of weapon systems) would be consistent with the use of space for peaceful purposes, but aggressive activities that violate the Charter of the United Nations would not be permissible.’276 In addition, the testing of any type of weapons is prohibited.

The Treaty was opened for signature by the three depositories (the United Kingdom, the United States, and the USSR) in January 1967, entering into force in October 1967. As at 1 October 2018, 105 states were party to the 1967 Outer Space Treaty and a further twenty-four were signatories.

The 1968 Treaty on the Non-Proliferation of Nuclear Weapons

The 1968 Treaty on the Non-Proliferation of Nuclear Weapons, better known as the NPT, is the ‘cornerstone’ of the nuclear non-proliferation regime. It is also, though, a controversial document because it classifies states into those it recognises as either nuclear weapons-possessing (the nuclear-weapon states are the UN Security Council P5) or ‘non-nuclear-weapon’ states (all other states).

(p. 36) Under Article I, each nuclear-weapon state party undertakes not to transfer to any recipient nuclear weapons or other nuclear explosive devices, nor to transfer control over such weapons or devices directly or indirectly, or to assist, encourage, or induce any non-nuclear-weapon state to manufacture or otherwise acquire such weapons or devices. In turn, in accordance with Article II, non-nuclear-weapon states parties undertake not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or devices directly, or indirectly; not to manufacture or otherwise acquire such weapons or devices; and not to seek or receive any assistance in their manufacture.

Under Article III(1), each non-nuclear-weapon state party undertakes to accept safeguards in an agreement with the IAEA ‘for the exclusive purpose of verification of the fulfilment’ of its NPT treaty obligations ‘with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices’. It is further stipulated that the requisite safeguards ‘shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere’.277 Under paragraph 2, each state party to the Treaty undertakes not to provide either a source of special fissionable material or specially designed or prepared equipment or material for the processing, use, or production of special fissionable material to any non-nuclear-weapon state for peaceful purposes, unless the source or special fissionable material is subject to the safeguards required by Article III.

However, the most contested of all the provisions—with respect to its interpretation and application—is Article VI, whereby:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a Treaty on general and complete disarmament under strict and effective international control.

The nuclear-weapon states recognised by the NPT argue that this is an open-ended commitment to agree upon nuclear disarmament when they feel the conditions are right. In contrast, for many of the other states parties, this is a binding obligation upon all states, including the nuclear-weapon states, to both negotiate and conclude an agreement on comprehensive nuclear disarmament. In 1996, the ICJ held in its Advisory Opinion on the threat or use of nuclear weapons that: ‘There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.’278 Arguably this goes considerably further than the obligation in Article VI of the NPT as it is one of result.

The NPT was opened for signature in London, Moscow, and Washington on 1 July 1968 and it entered into force on 5 March 1970. As at 1 October 2018, it had 190 states parties, with only India, Israel, Pakistan, and South Sudan outside the Treaty, although, as noted above, the DPRK, which had acceded to the treaty in 1985, announced its (p. 37) withdrawal from the NPT in 2003 in a controversial manner and believes that it is not bound by the treaty.279

The 1971 Seabed Arms Treaty

The Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil thereof (the 1971 Seabed Treaty) was drafted in response to concerns in the 1960s that, as a consequence of advances in oceanographic technology, nations might use the seabed as a new environment for nuclear-related military installations.280 The 1971 Seabed Treaty prohibits states parties from implanting or placing on the seabed or ocean floor or in the subsoil thereof, beyond a 12-mile territorial zone, any nuclear weapons or any other weapons of mass destruction as well as structures, launching installations, or any other facilities specifically designed for storing, testing, or using such weapons.281

The Treaty allows states parties to verify through observation the activities of other states parties, as long as this verification does not interfere with those activities. If, after observation, reasonable doubts remain about compliance, further procedures for verification may be agreed upon, which could include inspections. After completing any further procedures for verification, an appropriate report is to be circulated to the other states parties by the state initiating the procedures.282

The USSR and the United States submitted separate draft proposals for the treaty text. On 7 October 1969, the two states submitted a joint draft to the Conference of the Committee on Disarmament (CCD). During the deliberations in the CCD, coastal states raised concerns about the protection of their rights, and small states had doubts on whether they could check on violations.283 The final draft was approved by the UN General Assembly in 1970.284 The Seabed Treaty was opened for signature on 11 February 1971 and entered into force on 18 May 1972. As at 1 June 2018, it had ninety-four states parties and a further twenty-one signatories.285

The 1987 Intermediate-Range Nuclear Forces Treaty

The 1987 Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Elimination of Their Intermediate-Range and Shorter-Range Missiles (INF Treaty) required the United States and the USSR to eliminate all nuclear and conventional ground-launched ballistic and cruise missiles with ranges of between 500 and 5,500 kilometres. The INF Treaty was the first agreement between the two nuclear superpowers that sought to eliminate an entire category of nuclear weapons, backed by (p. 38) extensive on-site inspections to verify compliance. The authority to conduct these inspections ended on 31 May 2001, but use of surveillance satellites continues.286

The INF Treaty was signed on 8 December 1987, entering into force on 1 June 1988. The two states parties, the United States and the USSR, destroyed a total of 2,692 short-, medium-, and intermediate-range missiles, meeting the Treaty deadline of 1 June 1991. Most of the missiles were eliminated by detonation while they were unarmed and their stages burnt or the missiles were cut in half and their wings and tail sections were severed. On 10 February 2007, however, President Vladimir Putin declared that the Treaty no longer served Russia’s interests. In July 2014, the United States alleged that Russia, as successor state party, was in violation of the Treaty ‘not to possess, produce, or flight-test’ a ground-launched cruise missile having a range of 500 to 5,500 kilometres or ‘to possess or produce launchers of such missiles’.287 The cruise missile in question was believed to be the Russian R-500, derived from the land-based Iskander-K.288 In response to a letter from President Barack Obama, the Russian Ministry of Foreign Affairs issued a statement in which it said that: ‘There is absolutely no evidence provided to support [these allegations]’.289

In late June 2017, as rumours continued to circulate that the Trump Administration was considering US withdrawal from the Treaty, a US Department of Defense report to Congress from the year before cautioning against such a course of action was publicly cited in the press. The Pentagon said that Russia’s compliance ‘remains the preferable outcome, which argues against unilateral U.S. withdrawal from or abrogation of the INF Treaty at this time’.290 In February of the same year, Senator Tom Cotton of Arkansas along with Senators Ron Johnson of Wisconsin and Marco Rubio of Florida had introduced a bill that would declare Russia in material breach of the INF Treaty, a precursor to possible withdrawal.291 The bill would also authorise transferring intermediate-range systems to allied countries, establish a new programme for ground-launched missiles within the banned ranges, and provide USD500 million to fund countervailing-strike options.292 Speaking publicly in July 2017, Senator Cotton said: ‘Vladimir Putin is violating the letter, so if the U.S. violates the spirit, I’m not terribly concerned.’293

In late November 2017, a senior US national security official stated that the Novator 9M729, a land-based cruise missile, was the weapon that the United States believed violates the INF Treaty.294 The following month, NATO issued a public statement affirming that the Treaty had ‘contributed to strategic stability and reduced the risk of (p. 39) miscalculation leading to conflict’. As such, the organisation noted, ‘full compliance with the INF Treaty is essential’ and it affirmed that it remained ‘fully committed to the preservation of this landmark arms control treaty’. At the same time, it observed that ‘a situation whereby the United States and other parties were abiding by the treaty and Russia were [sic] not—would be a grave and urgent concern’.295

For its part, Russia alleged that the United States had violated the Treaty by deploying a component of a missile defence system—the Mark 41 Vertical Launch System (VLS)—that is capable of launching offensive missiles. It has also claimed that the United States has used prohibited missiles in defence tests and that some US armed drones are effectively unlawful cruise missiles.296 A further complicating factor is the perceived threat from China whose growing nuclear and conventional missile arsenal is mostly composed of weapons in the INF Treaty-prohibited range.297

On 8 December 2017, the thirtieth anniversary of the Treaty’s signature, the United States announced a new strategy to respond to alleged Russian violations. This response encompassed ‘economic and military measures intended to induce the Russian Federation to return to compliance’.298 Military options could include research and development of conventional ground-launched intermediate-range missile systems, which the Trump administration said would not violate the treaty.299 In late October 2018, however, President Trump announced that the United States was withdrawing from the INF Treaty, citing lack of compliance by Russia and the fact that China was not bound by the bilateral treaty.300

The START Treaties

The Strategic Arms Reduction Treaties are a set of bilateral treaties between the United States and the USSR on the reduction and limitation of strategic nuclear weapons.

START I and New START

START I limited each party to a maximum of 6,000 nuclear warheads on a total of 1,600 ICBMs and bombers. The Treaty was signed on 31 July 1991, entering into force on 5 December 1994. By late 2001, about four-fifths of all strategic nuclear weapons then in existence had been eliminated. START I expired on 5 December 2009. On 23 May 1992, the United States, Belarus, Kazakhstan, Russia, and Ukraine signed the START I Protocol (known as the Lisbon Protocol). Under the Protocol, all five states would become parties to START I, and the three non-Russian former Soviet republics undertook to adhere to the NPT as non-nuclear-armed states ‘in the shortest possible time’.301

(p. 40) On 8 April 2010, the replacement for START I, New START, was signed by US President Barack Obama and Russian President Dmitry Medvedev, entering into force on 26 January 2011. The aggregate limits set by New START whose implementation deadline was 5 February 2018 are as follows:

  • •  700 deployed ICBMs, deployed submarine-launched ballistic missiles (SLBMs), and deployed heavy bombers equipped for nuclear armaments

  • •  1,550 nuclear warheads on deployed ICBMs, deployed SLBMs, and deployed heavy bombers equipped for nuclear armaments (each heavy bomber is counted as one warhead toward this limit)

  • •  800 deployed and non-deployed ICBM launchers, SLBM launchers, and heavy bombers equipped for nuclear armaments.302

As noted, both states reported meeting their obligations under New START by the February 2018 deadline. The Treaty is due to remain in force until at least 2021.303 In April 2018, however, a group of former officials and experts from Europe, Russia, and the United States warned that the US and Russian nuclear arsenals could be unconstrained by any binding arms-control agreements for the first time since 1972, triggering an expensive and dangerous new arms race, unless urgent steps were taken to extend the New START treaty.304 The treaty allows for a single five-year extension, by the mutual consent of the two parties.305

START II

START II, which prohibited use of multiple independently targetable re-entry vehicles (MIRVs) on ICBMs, never formally entered into force. It was signed by US President George H. W. Bush and Russian President Boris Yeltsin on 3 January 1993, but on 14 June 2002, despite ratification by both states, Russia denounced the Treaty in response to US withdrawal from the 1972 Anti-Ballistic Missile Treaty. Russia’s ratification legislation had required the US Senate to ratify the START II Extension Protocol and the 1997 ABM Demarcation Agreements for START II to enter into force.306

START III

The abortive START III negotiations never resulted in a signed treaty. Negotiations had begun in 1997 between US President Bill Clinton and Russian President Boris Yeltsin, with Russian officials suggesting that they might accept an upper limit of 1,500 strategic nuclear warheads within the context of the agreement. The 2002 decision by the Bush Administration to withdraw from the Anti-Ballistic Missile Treaty effectively put an end to hopes for START III.307

(p. 41) The 1996 Comprehensive Test-Ban Treaty

Under the CTBT, states parties undertake not to carry out any nuclear weapon test explosion or any other nuclear explosion, and to prohibit and prevent any such nuclear explosion at any place under their jurisdiction or control.308 The CTBT further prohibits states parties from ‘causing, encouraging, or in any way participating in the carrying out of any nuclear weapon test explosion or any other nuclear explosion’.309

The Treaty includes a Protocol in three parts: Part I detailing the international monitoring system (IMS), Part II governing on-site inspections, and Part III relating to confidence-building measures.310 The Treaty establishes the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO), which is headquartered in Vienna.311 A Preparatory Commission exists, similarly in Vienna, pending the Treaty’s entry into force.312

Two annexes to the Protocol detail the location of various Treaty monitoring assets associated with the IMS (Annex 1) and list the states that must ratify or accede to the Treaty for it to enter into force (Annex 2). As at 1 October 2018, 167 states had ratified the Treaty and a further seventeen had signed but not ratified.313 Despite this impressive level of adherence, the CTBT has still to enter into force as an instrument of binding international law. To do so would require adherence, as of writing, by China (a signatory), the DPRK, Egypt (a signatory), India, Iran (a signatory), Israel (a signatory), Pakistan, and the United States (a signatory). Prospects for the treaty’s early entry into force are extremely slim.

The CTBT is frequently associated with the separate need to prohibit production of fissile material for anything other than verified peaceful use, imposing a quantitative limit on the amount of nuclear material that could be available for weapons use. That objective is the basis for an initiative at the CD to negotiate a treaty banning further production of fissile material for weapons purposes. States in favour of including stockpiles tend to call for a Fissile Material Treaty (FMT) while those favouring a prohibition on production often refer to a Fissile Material Cut-Off Treaty (FMCT).314

On 20 March 2017, the members of the Non-Proliferation and Disarmament Initiative (NPDI) submitted a working paper on an FMCT. The NPDI membership expressed concern over the continued stalemate in the CD and called upon all nuclear-armed states to maintain or declare moratoria on the production of fissile material for nuclear weapons or other nuclear explosive devices. On 1 May, a group of states submitted a working paper highlighting the need for a verifiable and non-discriminatory treaty. On 11 May 2017, the Chairman of the First Preparatory Committee for the 2020 Review Conference released a report affirming that a treaty banning the production of fissile material would contribute to the implementation of Article VI of the NPT. The Chair also recalled the General Assembly’s decision to establish a high-level FMCT expert preparatory group.315

(p. 42) Regional Nuclear-Weapons-Free Zones

UN General Assembly Resolution 3472B of 1975 defines a Nuclear-Weapon-Free Zone as any zone that is recognised as such by the General Assembly, and which a group of states, ‘in the free exercise of their sovereignty’, establish by treaty whereby:

(a) The statute of total absence of nuclear weapons to which the zone shall be subject, including the procedure for the delimitation of the zone, is defined;

(b) An international system of verification and control is established to guarantee compliance with the obligations deriving from that statute.

There are five such treaties in force:

  • •  The 1967 Treaty of Tlatelolco—Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean

  • •  The 1985 Treaty of Rarotonga—South Pacific Nuclear Free Zone Treaty

  • •  The 1995 Treaty of Bangkok—Treaty on the Southeast Asia Nuclear Weapon-Free Zone (SEANWFZ Treaty)

  • •  The 1996 Treaty of Pelindaba—African Nuclear-Weapon-Free Zone Treaty

  • •  The 2006 Treaty of Semipalatinsk—Treaty on a Nuclear-Weapon-Free Zone in Central Asia.

It has not yet been possible to negotiate and adopt a treaty to establish a nuclear-weapon-free zone in the Middle East. On 4 December 2017, the UN General Assembly adopted Resolution 72/24 without a vote on the establishment of a nuclear-weapon-free zone in the region of the Middle East in which the Assembly

[u]rges all parties directly concerned seriously to consider taking the practical and urgent steps required for the implementation of the proposal to establish a nuclear-weapon-free zone in the region of the Middle East in accordance with the relevant resolutions of the General Assembly.316

Treaty of Tlatelolco317

Costa Rica proposed the negotiation of a Latin American nuclear-arms-control regime at an Organization of American States (OAS) Council meeting in 1958. Three years later, Brazil floated the idea of a nuclear-weapon-free zone within the region. In March 1963, Bolivia, Brazil, Chile, Ecuador, and Mexico collectively supported the notion, leading to the conclusion of the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean and its opening for signature on 14 February 1967. The Treaty of Tlatelolco, which entered into force on 22 April 1968, prohibits all use, testing, production, or acquisition by any means of any nuclear weapons by its thirty-three states parties, as well as the storage, installation, or deployment of any nuclear weapons.318 It does not, though, prevent the detonation of other nuclear explosive devices for peaceful purposes.

(p. 43) Additional Protocol I applies the Treaty’s provisions to territories for which France, the Netherlands, the United Kingdom, and the United States are internationally responsible, and which lie within the limits of the geographic zone established by the Treaty. The four states are all party to the Protocol. Additional Protocol II effectively obligates the five nuclear-weapon states recognised by the NPT, all of which are party to the Protocol, to respect the status of denuclearisation of the relevant geographic zone and commits them not to use or threaten to use nuclear weapons against any party to the Treaty.

Treaty of Rarotonga319

In 1975, the South Pacific Forum,320 a regional organisation that promotes cooperation among Pacific nations, responded to a proposal by New Zealand calling for a nuclear-weapon-free zone in the region. This proposal was endorsed by the UN General Assembly the same year,321 although the elaboration of the South Pacific Nuclear Free Zone Treaty took another ten years. The Treaty, which was signed at Rarotonga in the Cook Islands on 6 August 1985, entered into force on 11 December 1986. As of 1 March 2018, there were thirteen states parties to it.322

The Treaty of Rarotonga prohibits the manufacture, acquisition, possession, and control of all nuclear explosive devices by its states parties, as well as the dumping of radioactive waste at sea within a defined zone. Under Annex I, the ‘Treaty Zone’ covers an extensive part of the South Pacific. The Treaty further requires states parties to prevent the testing or stationing of any nuclear explosive devices within their territories.

There are three protocols to the 1985 Treaty of Rarotonga, which are open to adherence by certain nuclear-armed states. Protocol I, which was open to adherence by France, the United Kingdom, and the United States, obliges each party to apply the prohibitions of the Treaty to territories within the South Pacific Nuclear Free Zone for which it is internationally responsible. France and the United Kingdom are states parties while the United States is a signatory.

Protocol II, which is open to adherence by all five NPT nuclear-weapon states, obliges its states parties not to use or threaten to use nuclear explosive devices against any party to the Treaty or against each other’s territories located within the zone. China, France, Russia, and the United Kingdom are states parties while the United States is a signatory.

Protocol III obliges the nuclear-weapon states not to test any nuclear explosive devices within the zone established by the Treaty. Again, China, France, Russia, and the United Kingdom are all states parties while the United States is a signatory. In a statement of reservation and interpretation, however, France affirmed that it did not consider its inherent right to self-defence as set out in the United Nations Charter to be limited by the Protocols.323 The United States has stated that its practices and procedures in the (p. 44) South Pacific were not inconsistent with the Treaty and its protocols and that the zone arrangement does not ‘impose restrictions on the exercise of rights recognized under international law, particularly the high seas freedoms of navigation and overflight, the right of innocent passage of territorial and archipelagic seas, the right of transit passage of international straits, and the right of archipelagic sea lanes passage of archipelagic waters.’324 This would allow the United States to move vessels with nuclear weapons through the zone.

Treaty of Bangkok325

The idea for the Southeast Asia Nuclear-Weapon-Free Zone was first mooted formally in November 1971, when the original five members of the Association of Southeast Asian Nations (ASEAN) signed a Declaration on a Zone of Peace, Freedom, and Neutrality in Kuala Lumpur. Lack of political will meant that negotiations on a nuclear-weapon-free zone did not start until the mid 1980s, concluding successfully a decade later with the signature of the Treaty by the ten ASEAN members326 on 15 December 1995. The Treaty of Bangkok entered into force on 28 March 1997.

States Parties are obliged not to develop, manufacture, or otherwise acquire, possess, or exercise control over nuclear weapons; station nuclear weapons; or test or use nuclear weapons anywhere inside or outside the treaty zone. They are further prohibited from assisting or encouraging the manufacture or acquisition of any nuclear explosive device by any state and must not provide source or special fissionable materials or equipment to any non-nuclear-weapon state, or any nuclear-armed state, unless subject to safeguards agreements with the IAEA. States parties are required to prevent the stationing of any nuclear explosive device in their respective territories and to prevent the testing of any nuclear explosive device. In contrast to other nuclear-weapon-free zones, the Treaty’s zone of application also includes the continental shelves and exclusive economic zones (EEZ) of the states parties.

A Protocol, open to adherence by the five NPT nuclear-weapon states, would oblige them not to use or threaten to use nuclear weapons against any state party to the treaty and not to use or threaten to use nuclear weapons within the region. None of the nuclear-weapon states has yet signed it, on the basis that the zone of application is too broad or its precise scope is unclear. The Nuclear Threat Initiative notes the United States’ concern as to the negative security assurances required of the parties to the protocol, alleged ambiguity of the treaty language regarding the permissibility of port calls by ships carrying nuclear weapons, and the procedural rights of the parties to the protocol to be represented before the executive bodies set up by the Treaty to ensure its implementation.327

Treaty of Pelindaba328

In 1961, the UN General Assembly adopted Resolution 1652 (XVI), which called upon UN member states to respect the continent of Africa as a denuclearised (p. 45) zone.329 In 1964, the Organisation of African Unity (OAU) issued the Declaration on the Denuclearization of Africa, which was subsequently endorsed by the General Assembly.330 The OAU and the UN established a Joint Group of Experts to draft a treaty creating a nuclear-weapon-free zone in Africa, which first met in Addis Ababa in April 1991. The Treaty text was concluded at experts meetings in South Africa in May and June 1995, and approved by African Heads of State on 23 June 1995. The Treaty of Pelindaba was signed in Cairo on 11 April 1996 by forty-seven states and entered into force on 15 July 2009. As at 1 March 2018, forty states were party, as well as the Sahrawi Arab Democratic Republic, which is a member of the African Union.331

States parties to the Treaty are obligated not to conduct research on, develop, manufacture, stockpile, or otherwise acquire, possess, or have control over any nuclear explosive device by any means, anywhere. The parties also undertake to prohibit, in their respective territories, the stationing of any nuclear explosive device. They are explicitly permitted to decide whether to allow: visits by foreign ships and aircraft to their ports and airfields; transit of their airspace by foreign aircraft; and navigation by foreign ships in their territorial seas or archipelago waters. The Treaty further prohibits states parties from testing or allowing testing in their territory, or assisting or encouraging the testing of any nuclear explosive device.

The states parties undertake to: declare any capability for the manufacture of nuclear explosive devices; dismantle and destroy any nuclear explosive device that they have manufactured prior to the coming into force of the Treaty; destroy facilities for the manufacture of nuclear explosive devices or, where possible, convert them to peaceful uses; and permit the IAEA to verify the processes of dismantling and destruction of the nuclear explosive devices, as well as the destruction or conversion of the facilities for their production. The parties further undertake not to take, or assist, or encourage any action aimed at an armed attack by conventional or other means against nuclear installations in the Treaty’s zone of application.

Protocol I obliges the NPT nuclear-weapon states not to use or threaten to use a nuclear explosive device against any state party to the Treaty and any territory within the regional zone. China, France, Russia, and the United Kingdom are states parties, while the United States is a signatory. Neither the United Kingdom nor the United States recognises Diego Garcia as being subject to the Treaty.332

Protocol II calls on the nuclear-weapon states not to test or assist or encourage the testing of any nuclear explosive device anywhere within the regional zone. Again, China, France, Russia, and the United Kingdom are states parties, while the United States is a signatory. Protocol III calls on each state party, with respect to the territories for which it is internationally responsible within the region, to apply the provisions of the Treaty to it. It is only open to adherence by France and Spain. France is a state party to Protocol III. Spain is a state not party.

(p. 46) Treaty of Semipalatinsk333

The idea of a nuclear-weapon-free zone for Central Asia originated in the 1992 initiative by Mongolia in declaring itself a nuclear-weapon-free zone and calling for a regional zone in addition to this. On 27 February 1997, the five presidents of the Central Asian states issued the Almaty Declaration endorsing the creation of a regional nuclear-weapon-free zone. The text was concluded at a meeting in Samarkand in Uzbekistan in September 2002 after five years of discussions and negotiations. On 8 February 2005, the five Central Asian states adopted the treaty text in Tashkent, Uzbekistan. The Treaty of Semipalatinsk was opened for signature on 8 September 2006 and entered into force on 21 March 2009. All five Central Asian republics—Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan—are parties.

Under the 2005 Treaty, the states parties undertake not to research, develop, manufacture, stockpile, acquire, possess, or have any control over any nuclear weapon or other nuclear explosive device. Each state party is further obligated not to carry out nuclear weapon tests or any other nuclear explosion and to prevent any such nuclear explosion at any place under its control. Further, the states parties are required to maintain effective physical protection of nuclear material, facilities, and equipment. The Treaty does not affect rights and obligations of the parties under other international treaties concluded prior to the entry into force of the Treaty of Semipalatinsk. This is contentious because of the 1992 Collective Security Treaty (CST) to which Kazakhstan, Kyrgyzstan, and Tajikistan have adhered. France, the United Kingdom, and the United States are concerned that the 1992 agreement could allow Russia to deploy nuclear weapons in Central Asian nations that are party to the CST.334

Under the Protocol to the 2005 Treaty, each state party undertakes not to use or threaten to use a nuclear weapon or other nuclear explosive device against any state party to the Treaty and not to contribute to any act that constitutes a violation of the Treaty. China, France, Russia, and the United Kingdom are states parties, while the United States is a signatory.

The Humanitarian Initiative

The Humanitarian Initiative was an important contribution to the decision to elaborate and adopt the 2017 Treaty.335 The aim of the Humanitarian Initiative was to highlight the ‘catastrophic, persistent effects of nuclear weapons on our health, societies and the environment’ with a view to underpinning the path towards a prohibition in international law.336 The Humanitarian Initiative, which began in 2010, brought together a core of concerned governments, the International Red Cross and Red Crescent movement, a number of United Nations agencies, and non-governmental organisations, in particular (p. 47) the International Campaign to Abolish Nuclear Weapons (ICAN). As described in what follows,337 three major intergovernmental conferences were convened on the humanitarian impact of nuclear weapons: in Oslo in March 2013 (with 127 states represented),338 in Nayarit (Mexico) in February 2014 (with 146 states represented),339 and lastly in Vienna in December 2014 (with 158 states represented).340

The Negotiation of the 2017 Treaty

The mandate for the negotiation of what would become the Treaty on the Prohibition of Nuclear Weapons was given by the UN General Assembly on 23 December 2016. Resolution 71/258 (‘Taking forward multilateral nuclear disarmament negotiations’), adopted by 113 votes341 to 35342 with 13 abstentions,343 decided to convene in 2017 a UN conference ‘to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination’.344 The resolution followed the convening of an Open-Ended Working Group on taking forward multilateral nuclear disarmament negotiations, which itself had been mandated by the General Assembly, meeting for three sessions in 2016.345 Among the Working Group’s recommendations had been the convening, by the General Assembly, of a conference in 2017, open to all states, with the participation and contribution of international organisations and civil society, to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination.346

(p. 48) At a preparatory organisational meeting on 16 February 2017, by acclamation Ambassador Elayne Whyte Gómez of Costa Rica was elected President of the United Nations diplomatic conference for the negotiation of the 2017 Treaty.347 Presiding over the Conference President’s election was Thomas Markram, its Secretary-General, the Director of the UN Office for Disarmament Affairs and Deputy to the High Representative for Disarmament Affairs.

The First Session of the Diplomatic Conference

On 27 March 2017, at UN Headquarters in New York, Ambassador Whyte Gómez opened the first substantive session of the United Nations Conference to Negotiate a Legally Binding Instrument to Prohibit Nuclear Weapons, Leading Towards their Total Elimination, asserting that peace would triumph over nuclear weapons. Mr Kim Won-soo, then Under Secretary-General and UN High Representative for Disarmament Affairs since 1 June 2015, pledged the UN’s full support to the Conference President. He noted that the diplomatic conference was taking place against the backdrop of rising tensions, claiming that the risk of use of nuclear weapons was as high as it had been for more than sixty years.348 ‘The possession of nuclear weapons, which [is] linked with the threat of their use, is fundamentally incompatible with humanity’s common aspirations for peace and security,’ he said.349 In a seemingly veiled criticism of the process, though, he stressed that progress in disarmament was only achieved when it was ‘inclusive’.

The Vice Foreign Minister of the Holy See, speaking on behalf of His Holiness Pope Francis, declared that peace cannot be based on the threat of destruction and called for the international community ‘to go beyond mutual deterrence’. Peter Maurer, the President of the International Committee of the Red Cross (ICRC), delivered a message by video affirming that ‘as with chemical weapons and biological weapons, a clear and unambiguous prohibition is the cornerstone’ of efforts to eliminate nuclear weapons. Toshiki Fujimori, Assistant Secretary-General of the Japan Confederation of Atomic and Hydrogen Bomb Sufferers Organizations (Nihon Hidankyo) and a hibakusha (the Japanese term for the surviving victims of the 1945 atomic bombings, meaning literally ‘explosion-affected people’), lived through the Hiroshima bombing as an infant. He told the Conference that: ‘Nobody, in any country, deserves seeing the same hell on earth again.’350

Meanwhile, outside the General Assembly room, as the opening session of the Conference was ongoing, the US Ambassador to the United Nations, Nikki Haley, convened a press conference at which she questioned whether countries favouring a nuclear weapons ban understood the nature of global threats. Referring to nations participating in the talks, she said, ‘You have to ask yourself, are they looking out for their people?’.351(p. 49) The United Kingdom’s Ambassador to the UN, Matthew Rycroft, told the press: ‘The UK is not attending the negotiations on a treaty to prohibit nuclear weapons because we do not believe that those negotiations will lead to effective progress on global nuclear disarmament.’ Deputy French UN Ambassador Alexis Lamek said the security conditions were ‘not right’ for a nuclear weapons ban treaty.352

The draft rules of procedure were indirectly amended by a decision of the Conference to allow the state of Palestine to engage as a full participant in the negotiations. The President then proposed the draft rules of procedure, as amended, for adoption.353 Iran proposed that all decisions be taken by consensus but this was not accepted. The rules of procedure were then adopted, despite Iran’s oral objections, allowing for the future Convention to be adopted by a two-thirds majority of participating states present and voting, should it not be possible to reach consensus.354

Once underway, the first session of the diplomatic conference saw a series of general statements by states and others on what they hoped to see in the future Convention. Considerable confluence existed in the positions outlined, with most seeking a treaty containing clear prohibitions but without the incorporation of detailed verification mechanisms. No detailed negotiations were held during the five-day session, but the statements provided the Conference President with the basis on which to elaborate a first draft of the Convention text.

The First Draft of the Convention

Ambassador Whyte Gómez presented her draft text to states on 22 May 2017.355 Article 1(1) of the Draft Convention on the Prohibition of Nuclear Weapons, drawing on language from the NPT and the CTBT, prohibited transfer and test explosions, respectively, as well as the development, production, manufacture, possession, and stockpiling of both nuclear weapons and other nuclear explosive devices. Surprisingly, the putative prohibition of use was only of nuclear weapons. Under Article 1(2), each state party would undertake to prohibit and prevent in its territory or at any place under its jurisdiction or control the stationing, installation, or deployment of any nuclear weapons or other nuclear explosive devices and any nuclear weapon test explosion or any other nuclear explosion.

The draft Convention generally adopted a ‘destroy and join’ approach, meaning that states would be expected to have rid themselves of any nuclear weapons prior to adhering to it. However, an annex put forward as a non-paper by the Conference President sought to cover the scenario where a nuclear-armed state would seek to ‘join and destroy’.356 In (p. 50) presenting the draft Convention, Ambassador Whyte Gómez stated that four principles had guided her work:

  • •  Complementarity (to strengthen and complement existing instruments and in no way undermine the nuclear non-proliferation regime, especially the NPT)

  • •  Reinforcement (avoiding loopholes that could enable any state to evade existing non- proliferation norms)

  • •  Simple and non-discriminatory nature (simple, non-discriminatory, and containing a clear prohibition of nuclear weapons); and

  • •  A basis for the future (flexible and designed to endure for the long term, offering a pathway for future accession of nuclear-armed states).357

The Second Session of the Diplomatic Conference

The second session of the Diplomatic Conference opened on 15 June 2017 and was scheduled to run for fifteen days of negotiations through to 7 July 2017 (excluding Eid al-Fitr and US Independence Day, both of which were UN holidays in New York). Ambassador Whyte Gómez opened the Conference and proposed a timetable and methods of working. General statements from states were not sought; instead, she hoped for comments on her first draft Convention text so that a revised draft could be prepared. To assist her in her work, seven vice-presidents were appointed, from Austria, Chile, Indonesia, Iran, Morocco, New Zealand, and South Africa. As in the first session of the Conference, among nuclear umbrella states with nuclear weapons stationed on their territory, only the Netherlands was a participating state. None of the nuclear-weapons-possessor states attended either session of the Diplomatic Conference.

Several days of comments by the participating states followed during which the delegates identified national preferences and inconsistencies or problems in the draft text. In particular, many states called for threat of use of nuclear weapons to be added as an explicit prohibition in the treaty. There was also general agreement among the participating states that they did not wish an annex to be attached to the future Convention. As discussed in what follows, a number of states called for the title of the draft ‘Convention’ to be changed to ‘Treaty’, reflecting the language of the NPT and the CTBT.

On 27 June 2017, the day after the Eid al-Fitr holiday, the Conference President published her second comprehensive draft of what was now entitled the Draft Treaty on the Prohibition of Nuclear Weapons.358 Aside from a number of typographical issues, perhaps the most surprising aspect of the second draft treaty text was the absence of any reference to a prohibition of threat of use. While a minority of states were unenthusiastic about including the concept in the future treaty, none had strongly opposed its inclusion.

Following a further round of comments in plenary on the revised text the President established a series of informal meetings: on Article 1 (general obligations) under her own auspices; on Articles 2–5 (transparency, stockpile destruction, and verification) facilitated by Ms Helena Nolan of Ireland; on Articles 6–7 (on national implementation and positive obligations for victim assistance and environmental remediation) facilitated by Ambassador Alfredo Labbé of Chile; on final clauses, facilitated by Ambassador Virachai (p. 51) Plasai of Thailand; and finally, on 3 July 2017, on withdrawal and relations with other treaties, facilitated by Ambassador Hasan Kleib of Indonesia. The first four informal discussions reported back to the President on 30 June and the results of their work were made public.359

A third draft of the treaty was published on 3 July 2017.360 This was intended to be the final draft of the treaty, but typographical errors persisted, along with a small number of important omissions. The most significant of these was the absence of a paragraph addressing the responsibility of states parties that use or test nuclear weapons. After its continued omission in the revised text of 5 July 2017,361 several states again raised this issue in the plenary. The final draft of the treaty, which included an amended provision on user and tester responsibility arising from the informal meeting that reconvened under Ambassador Labbé, was published on 6 July 2017 to comply with the so-called twenty-four-hour rule (allowing states one day to consult with capitals before the adoption of a treaty).

The Adoption of the Treaty

On 7 July 2017, the Conference President put the Draft Treaty on the Prohibition of Nuclear Weapons before the Conference for adoption. The Netherlands took the floor to ask for a vote, stating its objection to the treaty text. A total of 129 states had registered to participate in the Conference. Of these, 122 voted in favour in the ensuing vote,362 1 voted against (the Netherlands), and 1 abstained (Singapore). To a standing ovation, a visibly emotional Ambassador Whyte Gómez announced that the Conference had adopted the Treaty on the Prohibition of Nuclear Weapons. Speaking for civil society, Setsuko Thurlow, a Hiroshima survivor, said: ‘I have been waiting for this day for seven decades and I am overjoyed that it has finally arrived. This is the beginning of the end of nuclear weapons.’ Ms Thurlow was thirteen years old when the atomic bomb detonated in Hiroshima.

The Reaction to the Adoption of the 2017 Treaty

Following the adoption of the 2017 Treaty, the spokesperson for the Secretary-General of the United Nations, António Guterres, declared that it ‘represents an important step and contribution towards the common aspirations of a world without nuclear weapons’ and expressed the hope that it would ‘promote inclusive dialogue and renewed international (p. 52) cooperation aimed at achieving the long overdue objective of nuclear disarmament’.363 At a press conference at UN Headquarters, Ambassador Whyte Gómez said that: ‘We feel emotional because we are responding to the hopes and dreams of the present and future generations.’ She stated that with the adoption of the 2017 Treaty, the world was ‘one step closer’ to the total elimination of nuclear weapons.364

Three nuclear-armed states, France, the United Kingdom, and the United States, issued a statement noting that they had not taken part in the negotiation of the Treaty and that:

We do not intend to sign, ratify or ever become party to it. Therefore, there will be no change in the legal obligations on our countries with respect to nuclear weapons. For example, we would not accept any claim that this treaty reflects or in any way contributes to the development of customary international law. Importantly, other states possessing nuclear weapons and almost all other states relying on nuclear deterrence have also not taken part in the negotiations. This initiative clearly disregards the realities of the international security environment. Accession to the ban treaty is incompatible with the policy of nuclear deterrence, which has been essential to keeping the peace in Europe and North Asia for over 70 years.365

The three states further asserted that the treaty offered no solution to the grave threat posed by the DPRK’s nuclear programme, ‘nor does it address other security challenges that make nuclear deterrence necessary’. They argued that the treaty risked ‘undermining the existing international security architecture which contributes to the maintenance of international peace and security’ and reiterated their ‘continued commitment’ to the NPT and to ‘further promote its authority, universality and effectiveness’.366

In mid September 2017, a week before the opening for signature of the 2017 Treaty, the Director of the Department for Non-Proliferation and Arms Control in the Russian Ministry of Foreign Affairs gave an interview for a Russian newspaper in which he stated that the Treaty

is at variance with Russia’s national interests and our vision of movement towards nuclear disarmament. We have always reaffirmed our support for the idea of a nuclear-free world and joined many politically binding declarations to this effect. At the same time, we pointed out that this is a strategic goal and that any movement towards it must proceed in stages, that it must be accompanied by the strengthening of strategic stability [and that] it must respect the national security interests of all countries, including Russia, of course.367

A week after the opening for signature of the 2017 Treaty, Vladimir Safronkov, Russia’s Deputy Ambassador to the United Nations in New York, said that he thought the treaty was a ‘mistake’: ‘The document was drafted hastily and contradicts agreements, reached under the NPT framework. We think that provisions of the new treaty create serious risks for the existing system of nuclear non-proliferation and provoke growing estrangement among members of the international community.’368

China has not opined publicly on the text of the 2017 Treaty, though it was the only one of the five NPT nuclear-weapon states that did not vote against initiating the negotiation of (p. 53) the Treaty in the UN General Assembly in December 2016, abstaining in the vote instead.369 On 20 March 2017, Hua Chunying, the Spokesperson of the Chinese Ministry of Foreign Affairs, announced that China would not participate in the negotiations, observing that:

China consistently upholds and actively advocates a final comprehensive ban on and total destruction of nuclear weapons, which is fundamentally in line with the purposes of negotiations on the nuclear weapon ban treaty. China also believes that realizing disarmament, which cannot be achieved overnight, must be pressed ahead in a gradual and incremental way following the principle of safeguarding global strategic stability and compromising the security of no country. Relevant process must be advanced within the existing international disarmament and non-proliferation regime.370

On 18 July 2017, India asserted that the 2017 Treaty does not impose any obligations on it, and further that it ‘in no way constitutes or contributes to the development of any customary international law’.371 It further declared that:

India reiterates its commitment to the goal of a nuclear weapon free world. India believes that this goal can be achieved through a step-by-step process underwritten by a universal commitment and an agreed global and non-discriminatory multilateral framework. In this regard, India supports the commencement of negotiations on a comprehensive Nuclear Weapons Convention in the Conference on Disarmament, which is the world’s single multilateral disarmament negotiation forum working on the basis of consensus.372

The 2017 Treaty and Customary International Law

As recalled above, France, the United Kingdom, and the United States stated that they ‘would not accept any claim that this treaty reflects or in any way contributes to the development of customary international law’.373 From a legal point of view, this statement is partly correct and partly incorrect, at least with regard to a prohibition on the transfer of nuclear weapons.

Custom is a primary source of international law, as set out in Article 38 of the Statute of the International Court of Justice (ICJ). Paragraph 1 of this article determines that the Court shall decide disputes submitted to it based on three primary means: international conventions374 (i.e. treaties);375 ‘international custom, as evidence of a general practice accepted as law’;376 and ‘general principles of law’.377

(p. 54) In fact, as Rosalyn Higgins has observed, despite the particular articulation in the ICJ Statute, the formation of custom is not evidence of a general practice accepted as law, but rather depends on the existence of those two elements (state practice and opinio juris). Indeed, as she suggests, customary international law is better defined as being ‘evidenced by’ a general practice accepted as law.378 This understanding is supported by the ICJ’s dictum in the Continental Shelf case (Libyan Arab Jamahiriya v. Malta) that the substance of customary international law must be ‘looked for primarily in the actual practice and opinio juris of States’.379 These two elements are now discussed in turn.

Usus

Practice—also known by its Latin moniker, usus—describes both what states do (or do not do) and, especially, how they say they act.380 This explains why, for instance, summary execution, enforced disappearance, and torture are all prohibited under customary international law even though they remain prevalent in a significant number of countries.381 As Andrew Clapham observes, ‘Particularly important as sources of evidence are diplomatic correspondence; official instructions to diplomats, consuls, and military commanders; acts of state legislation and decisions of state courts … and opinions of law officers’.382 Treaty-making itself may also constitute relevant practice.383 Further evidence of rules may be found in UN General Assembly and Security Council resolutions.384

The terms of Article 38(1)(b) of the ICJ Statute make it clear that the requisite practice must be general among states, but does not necessarily need to be universal or ‘perfect’. Thus, in its judgment on the merits in the Nicaragua case, the Court stated that:

It is not to be expected that in the practice of States the application of the rules in question should have been perfect . … The Court does not consider that, for a rule to be established as customary, the corresponding practice must be in absolutely rigorous conformity with the rule. In order to deduce the existence of customary rules, the Court deems it sufficient that the conduct of States should, in general, be consistent with such rules, and that instances of State conduct inconsistent with a given rule should generally have been treated as breaches of that rule, not as indications of the recognition of a new rule.385

(p. 55) Further in this vein, as the ICJ enunciated in the North Sea Continental Shelf case, the requisite conduct must ‘amount to a settled practice’.386

Conduct includes refraining from certain acts (omission). This is especially relevant in the context of nuclear weapons. Thus, for example, the fact of not transferring nuclear weapons to another recipient can be considered relevant state practice. Such practice is also reflected in, inter alia, the very extensive adherence to the 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT)387 and the final declarations of its review conferences, as well as UN Security Council Resolutions 1172 (1998), 1540 (2004),388 and 2397 (2017), among others. In Resolution 2397, for instance, the Council once again reaffirmed that proliferation of nuclear weapons, as well as their means of delivery, constitutes a threat to international peace and security.389

A further candidate for state practice that could be attaining the level required for custom is a prohibition of nuclear test explosions. Although the Comprehensive Test Ban Treaty has not yet entered into force (for want of adherence by specific states listed in Annex 2 to the CTBT), 167 states have ratified it (the latest being Thailand in September 2018) and a further seventeen have signed. In 1998, the UN Security Council in its Resolution 1172 demanded that India and Pakistan refrain from further nuclear tests and called upon ‘all States not to carry out any nuclear weapon test explosion or any other nuclear explosion in accordance with the provisions of the Comprehensive Nuclear Test Ban Treaty’.390 In September 2017, the Council in its Resolution 2375 (2017) condemned ‘in the strongest terms the nuclear test conducted by the DPRK’ on 2 September 2017.391 As noted, the DPRK was the last state to carry out a nuclear test explosion.

Opinio Juris

The second of the two elements is that the relevant practice must be ‘accepted as law’. In its judgment in the North Sea Continental Shelf cases, the ICJ clearly evoked the requirement of opinio juris sive necessitatis: the belief that certain conduct is obligated by international law:

Not only must the acts concerned amount to a settled practice, but they must also be such, or be carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the existence of a rule of law requiring it. … The States concerned must therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even habitual character of the acts is not in itself enough. There are many international acts, e.g., in the field of ceremonial and protocol, which are performed almost invariably, but which are motivated only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.392

(p. 56) In its 2012 judgment in the Jurisdictional Immunities of the State case (Germany v. Italy), the ICJ cited voluntary granting of immunity by a state beyond what international law requires as an example of practice that fails to attain the status of custom for want of opinio juris.393

As is the case with practice, opinio juris does not need to be universally consistent, but it must be general and settled. Discerning the necessary level of state acceptance of a general practice as legally required is, however, challenging. For this reason, ‘increasing reference has been made to conduct within international organisations’, ‘particularly with regard to the United Nations’.394 This again encompasses General Assembly resolutions, meaning that the text of a given resolution may, depending on the circumstances, simultaneously constitute practice and opinio juris.395 In the context of nuclear weapons, though, a distinction must be made between resolutions that advocate a total prohibition on use and those that assert that, for instance, use of such weapons is already unequivocally illegal.396

Again, a prime candidate for customary law status is a prohibition on the transfer of nuclear weapons, at least outside the five nuclear-weapon states recognised under the NPT. In 1993, David Koplow was already asserting that ‘it is possible to argue that the norm of nuclear non-proliferation is now so well established that it has evolved into a binding facet of customary international law, enveloping even non-parties and providing an independent source of authority even if the treaty itself were to succumb in 1995.’397

Persistent Objector Status

If, however, the breadth of opinio juris is such as to result in the formation of a customary rule, a state that objects to the rule may still potentially hold the status of persistent objector.398 In its judgment in the Fisheries case, the ICJ stated with respect to an alleged ten-mile rule for the calculation of territorial seas, ‘In any event the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has always opposed any attempt to apply it to the Norwegian coast.’399 This means that while a rule exists in customary law, a state holding the status of persistent objector is not bound by it, at least to the extent that it actively maintains its objection.

While the notion of persistent objection is contentious among commentators, it appears clearly understood that, to the extent it exists, objection must be formulated clearly prior to the rule’s crystallisation. Thirlway argues, though, that with respect to nuclear weapons only universality would do: ‘leaving the dissentients as “persistent objectors” … could hardly be so in the case of nuclear weapons, as only a total ban, universally accepted, would be thinkable’.400 This is questionable. If a single state retained nuclear weapons in the face of otherwise universal condemnation, it is not persuasive that this would prevent the formation of a customary rule against their possession or use. We are, though, a long way from such a scenario.

(p. 57) The Overlap between Treaty and Custom

As Higgins has written, treaty provisions ‘can in certain circumstances be binding even on states which are not parties to the treaty’.401 This may occur because certain provisions are already reflective of customary international law or, where the norms are new, on the basis ‘that customary international law then develops in such a way as to embrace those new norms’.402 This latter possibility, she observes however, is ‘much more difficult’.403 Nonetheless, in its 1985 judgment in the Continental Shelf case, the Court referred to the fact that ‘multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them’.404

In its earlier judgment in the North Sea Continental Shelf cases, the ICJ held that ‘very widespread and representative participation’ in a treaty might suffice for the formation of custom, as long as that participation ‘included that of States whose interests were specially affected.’405 However, in his thoughtful 2017 paper on the notion of a specially affected states doctrine,406 Kevin Jon Heller questions the doctrine’s continuing validity, noting that the ‘ICJ itself has never again explicitly referenced specially-affected states in a main judgment or advisory opinion’.407 With respect to nuclear weapons it is noteworthy that the Court did not apply the doctrine in its 1996 Advisory Opinion on the legality of the threat or use of nuclear weapons,408 even though the United Kingdom and the United States had both affirmed in their pleadings that the possession of nuclear weapons meant each had to be considered specially affected with regard to any customary rule prohibiting their use.409 As Heller recalls, although the Court ultimately determined that no customary international legal rule prohibited the use of nuclear weapons,410 it did not do so because the supposedly specially affected states opposed the rule, but on the basis that there was insufficient practice supported by the requisite opinio juris to sustain its existence.

Heller concludes his analysis by asserting that

the North’s reliance on the doctrine of specially-affected states has been even more ambitious than its efforts to establish persistent objection: unlike the latter, which claims only that persistent objectors are not bound by a customary rule, the former denies that custom formation is even possible over the objections of the specially affected—namely, the US and other powerful states.411

(p. 58) But he goes on to urge the South to employ the doctrine whose existence he has just decried to develop customary rules on the basis that the specially affected states are also those who are harmed by a particular practice. This, he says, is a ‘cri de coeur to the Global South to resist the Global North’s attempts to conceal the doctrine’s transformative potential’.412

Such a potential is evidenced by the ‘glimmer of the doctrine of specially-affected states’ in the Marshall Islands case. Although, as Heller recalls, the Court ultimately dismissed the case for lack of jurisdiction, it suggested in its 2016 judgment of Preliminary Objections that ‘it considered the Marshall Islands specially affected with regard to whether customary international law requires states to affirmatively pursue nuclear disarmament’:413 ‘The Court notes that the Marshall Islands, by virtue of the suffering which its people endured as a result of it being used as a site for extensive nuclear testing programs, has special reasons for concern about nuclear disarmament.’414

Concluding Remarks

It is certain that the 2017 Treaty, in toto, does not reflect customary international law, but its provisions may contribute to the future development of custom. The adoption of the Treaty itself reflects state practice, and widespread adherence to it and respect of its provisions will confirm this. The Treaty, for example, prohibits all transfer of nuclear weapons by any state party. This may be reflective of a customary prohibition on all transfer of nuclear weapons that is either lex lata (settled law) or at least lex ferenda (law in the making). In this respect, the statement by France, the United Kingdom, and the United States that nothing in the 2017 Treaty reflects custom is at least unfortunate, and potentially misplaced.

It is less probable that a prohibition on any nuclear test explosion is lex lata given the failure to achieve entry into force of the CTBT, but this is surely customary law in the making.415 Further, while there is an overriding moral claim for a total prohibition on the use of nuclear weapons, and the circumstances in which the law of armed conflict would permit their use are extremely circumscribed, it is much too soon to claim any customary law status for the prohibition. The level of opinio juris among states has changed little since 1996 when the International Court of Justice was unable to find a customary prohibition on use in its Advisory Opinion. The 2017 Treaty is, though, still a clear exposition of state practice indicating where international law may be expected to travel in the future.

Footnotes:

1  See, e.g., ‘GBU-43/B “Mother Of All Bombs” ’, Global Security, at: https://bit.ly/2B8KL2f. Global Security recalls that, on 11 September 2007, the Russian military announced that it had tested what it called the ‘father of all bombs’. Described as the world’s most powerful non-nuclear air-delivered munition, the Russian military claimed it was four times more powerful than the MOAB, with a yield equivalent to 44 tons of TNT. The bomb was reported to have a blast radius of 300 metres, double that of the American bomb, while the temperature at the epicentre was also reported to be twice as high (ibid).

2  B. Starr and R. Browne, ‘US Drops Largest Non-Nuclear Bomb in Afghanistan’, CNN, 14 April 2017, at: https://cnn.it/2OuigUm.

3  Y. Tayag, ‘How Does the “Mother of All Bombs” Compare to a Nuclear Bomb?’, Inverse, 13 April 2017, at: https://bit.ly/2RWg4Dj.

4  US Department of Energy, ‘The Manhattan Project: The Atomic Bombing of Hiroshima (Hiroshima, Japan, August 6, 1945)’.

5  See, e.g., R. Gigova, ‘Meet the Russian “Father of All Bombs” ’, CNN, 5 May 2017, at: https://cnn.it/2AhK7yu.

6  The Strategic Bombing Survey of the atomic bomb attacks in August 1945 defined ground zero as: ‘the point on the ground directly beneath the point of detonation, or “air zero”.’ United States (US) Strategic Bombing Survey: The Effects of the Atomic Bombings of Hiroshima and Nagasaki, 19 June 1946, p. 5, available at: https://bit.ly/2yOZoob.

7  M. Olson, ‘War of Human Consequences: Health Consequences of the Use of Nuclear Weapons’, Vienna Conference on the Humanitarian Impact of Nuclear Weapons, 8–9 December 2014, Conference Report, Austrian Federal Ministry for Europe, Integration and Foreign Affairs, Vienna, 2015, p. 24.

8  Ibid.

9  The US Department of Defense (DOD) defines initial radiation as: ‘The radiation, essentially neutrons and gamma rays, resulting from a nuclear burst and emitted from the fireball within one minute after burst.’ DOD Dictionary of Military and Associated Terms, September 2018, p. 113, available at: https://bit.ly/2RHg2iq.

10  The US DOD defines residual radiation as: ‘Nuclear radiation caused by fallout, artificial dispersion of radioactive material, or irradiation which results from a nuclear explosion and persists longer than one minute after burst.’ DOD Dictionary of Military and Associated Terms, September 2018, p. 199.

11  Atomic Archive, ‘Nuclear Radiation’, at: https://bit.ly/1oVWAhU.

12  See, e.g., Olson, ‘War of Human Consequences: Health Consequences of the Use of Nuclear Weapons’, p. 24.

13  Fun Fong MD et al., ‘In-Depth Medical Management for Nuclear/Radiological/Conventional Terrorism Agents’, PowerPoint Presentation, available at: https://bit.ly/2CmV9nv.

14  See, e.g., Olson, ‘War of Human Consequences: Health Consequences of the Use of Nuclear Weapons’, p. 24.

15  Statement of the Mayor of Nagasaki to the International Court of Justice, 7 November 1995, p. 36. Leukaemia is reported to appear two or three years after an atomic bombing the incidence of which declines after reaching a peak six or seven years after the bombing. Cancer is said to appear after a latency of more than ten years and then to increase in frequency over time.

16  See, e.g., Olson, ‘War of Human Consequences: Health Consequences of the Use of Nuclear Weapons’, p. 24.

17  M. Simons, ‘Soviet Atom Test Used Thousands as Guinea Pigs, Archives Show’, New York Times, 7 November 1993, at: https://nyti.ms/2RXetgk. Pravda reported on the exercise at the time: ‘The purpose of the test was to examine the effects of nuclear explosion. Valuable results have been obtained that will help Soviet scientists and engineers to successfully solve the task of protecting the country from nuclear attack.’ Pravda, 17 September 1954.

18  E. Carter, ‘The Soviets Trained to Fight Under Nuclear Detonations. Soldiers suffered as a result’, War is Boring, 7 February 2015, at: https://bit.ly/1vbmAmA.

19  L. Freedman, The Future of War: A History, Allen Lane, United Kingdom, 2017, p. 69.

20  Ibid.

21  D. Long, ‘Albert Einstein and the Atomic Bomb’, undated but accessed 9 July 2017 at: https://bit.ly/1pXMjPa. A journalist at the New York Times suggests that the ‘nuclear age’ began in 1938,

over a snowy Christmas holiday in Sweden when Lise Meitner and her nephew, Otto Frisch, tried to make sense of a colleague’s puzzling experiments on uranium. During a hike, the physicists sat on a tree trunk and discussed the unlikely possibility that its atoms had split in two. … Dr. Meitner knew Einstein’s equation. She did a calculation estimating how much energy a split atom might release. Suddenly, all the experimental facts fell into place.

W. J. Broad, ‘US Nuclear History Offers Clues to North Korea’s Progress’, New York Times, 22 May 2017, at: https://nyti.ms/2rLMQcp.

22  Atomic Heritage Foundation, ‘Otto Hahn’, 2017, at: https://bit.ly/2NPKfIW. During the First World War, Otto Hahn had been conscripted into the German Army, where he was placed in a special unit for chemical warfare that developed, tested, and produced poison gas for military purposes. But when he heard of the detonation of the atomic bombs at Hiroshima and Nagasaki, Hahn is said to have been in despair, as he realised that his discovery of nuclear fission had ultimately led to the death and suffering of tens of thousands of innocent Japanese people.

23  Atomic Heritage Foundation, ‘Otto Hahn’; see also Chemical Heritage Foundation, ‘Otto Hahn, Lise Meitner, and Fritz Strassman’, last updated 11 September 2015, at: https://bit.ly/2OvqGux.

24  Atomic Archive, ‘Lise Meitner (1878–1968)’, 2015, at: https://bit.ly/1C7EZ9Y.

25  R. H. Stuewer, ‘Niels Bohr and Nuclear Physics’, in A. P. French and P. J. Kennedy (eds.), Niels Bohr: A Centenary Volume, Harvard University Press, Cambridge, MA, 1985, pp. 197–220.

26  J. A. Wheeler and K. Ford, Geons, Black Holes, and Quantum Foam: A Life in Physics, W. W. Norton & Co., New York, 1998, pp. 27–8.

27  N. Bohr and J. A. Wheeler, ‘The Mechanism of Nuclear Fission’, Physical Review, Vol. 56, No. 5 (1 September 1939), pp. 426–50.

28  Letter available at Wikisource: ‘Albert Einstein to Franklin D. Roosevelt—August 2, 1939’, at:https://bit.ly/2CQkuXX.

29  US Department of Energy, ‘The Manhattan Project: Early Uranium Research (1939–1941)’, undated but accessed 4 July 2017 at: https://bit.ly/2yKK5x4.

30  Fermi would go on to design the world’s first nuclear reactor, the Chicago Pile-1, as part of the Manhattan Project. See, e.g., Atomic Heritage Foundation, ‘Chicago Pile-1’, 1 December 2016, at: https://bit.ly/2K1BBtI.

31  Atomic Archive, ‘The Manhattan Project: Making the Atomic Bomb’, 2015, at: https://bit.ly/2yHVXzM.

32  Atomic Heritage Foundation, ‘German Atomic Bomb Project’, 18 October 2016, at: https://bit.ly/2xXKawJ.

33  See, e.g., J. Ames, ‘The Nazi Nuclear Program—How Close Were the Nazis to Developing an Atomic Bomb?’, The Velvet Rocket, Posted 25 August 2009, at: https://bit.ly/2EvdjWQ.

34  Atomic Heritage Foundation, ‘German Atomic Bomb Project’.

35  ‘Einstein, the Man Who Started It All’, Newsweek, 10 March 1947.

36  See, e.g., R. K. Wilcox, Japan’s Secret War: Japan’s Race Against Time to Build Its Own Atomic Bomb, 2nd rev’d edn, Marlowe & Co., United States, 1995.

37  Atomic Heritage Foundation, ‘Japanese Atomic Bomb Project’, 25 May 2016, at: https://bit.ly/2IG9Bdy.

38  Ibid.

39  J. Adelstein, ‘New Evidence of Japan’s Effort to Build Atom Bomb at the End of WWII’, Los Angeles Times, 5 August 2015.

40  W. J. Broad, ‘Captured Cargo, Captivating Mystery’, New York Times, 31 December 1995, at: https://nyti.ms/2P9FYVk.

41  ‘The Manhattan Project’, at: https://bit.ly/2CQPpDu; see also A. Wellerstein, ‘FDR and the bomb’, The Nuclear Secrecy Blog, 30 September 2016, at: https://bit.ly/2P5wjPH.

42  W. J. Broad, ‘Why They Called It the Manhattan Project’, New York Times, 30 October 2007, at: https://nyti.ms/2OwKGwX. The term Manhattan Engineer District was also used before a senior official settled on the Manhattan Project.

43  J. Bernstein, Nuclear Weapons: What You Need to Know, Cambridge University Press, Cambridge, 2010, p. 114.

44  US Department of Energy, ‘The Manhattan Project: Early Uranium Research (1939–1941)’.

45  US Department of Energy, ‘The Manhattan Project: Difficult Choices (1942)’, undated but accessed 18 October 2018 at: https://bit.ly/2Ex6hRj.

46  UN Nuclear Regulatory Commission, ‘Backgrounder on Plutonium’, March 2017, at: https://bit.ly/2CSqqj5; see also World Nuclear Association, ‘Plutonium’, updated October 2017, at: https://bit.ly/2kUemUo.

47  US Department of Energy, ‘The Manhattan Project: Final Approval to Build the Bomb’, undated but accessed 4 July 2017 at: https://bit.ly/2J4lxni.

48  ‘The Manhattan Project’, at: https://bit.ly/2CQPpDu.

49  Atomic Heritage, ‘J. Robert Oppenheimer’, 2017, at: https://bit.ly/2EnJwiq.

50  See T. Graff Hugo et al., ‘The Nuclear Weapons Criterion: An evaluation of the investment criterion of the Norwegian Government Pension Fund Global (GPFG) as it pertains to nuclear weapons’, unpublished report, July 2017, p. 5.

51  K. Hickman, ‘World War II: The Manhattan Project’, ThoughtCo, 30 June 2017, at: https://bit.ly/2S08049.

52  Atomic Archive, ‘Implosion-Type Bomb: Detonation Sequence’, 2015, at: https://bit.ly/2pYqHsc.

53  US Department of Energy, ‘The Manhattan Project: Final Bomb Design (Los Alamos: Laboratory, 1944–1945)’, undated but accessed 18 October 2018 at: https://bit.ly/2J8rM9S.

54  Ibid. When 239Pu is irradiated for a length of time it is likely to pick up an additional neutron, transforming it into plutonium-240 (240Pu). Indeed, the plutonium produced in the nuclear reactors at Hanford, Washington, was found to contain amounts of 240Pu. A gun-type bomb would not be fast enough to work properly because before the bomb could be assembled, stray neutrons emitted from spontaneous fission would start a premature chain reaction, leading to a great reduction in the energy released. Atomic Archive, ‘Fat Man: Implosion-Type Bomb’, 2015, at: https://bit.ly/1RVG1Pg.

55  The Trinity test in July 1945 used the term ‘Point Zero’ to describe the location chosen for the test. W. L. Laurence, Dawn over Zero, Museum Press, London, 1947, p. 4.

56  US Department of Energy, ‘The Manhattan Project: The Trinity Test (Trinity Test Site, July 16, 1945)’, undated but accessed 18 October 2018 at: https://bit.ly/1LbsVdO.

57  Ibid.

58  G. Zhukov, The Memoirs of Marshal Zhukov, Delacorte Press, New York, 1971, pp. 674–5.

59  See, e.g., D. Holloway, Stalin and the Bomb. The Soviet Union and Atomic Energy, 1939–1956, Yale University Press, New Haven, 1994.

60  Atomic Heritage Foundation, ‘Soviet Atomic Program—1946’, 5 June 2014, at: https://bit.ly/2NMTYzO.

61  Zhukov, The Memoirs of Marshal Zhukov, p. 675.

62  Nuclear Files, ‘Manhattan Project’, Nuclear Age Peace Foundation, 2017, file no longer available online.

63  1946 Atomic Energy Act, 42 USC § 2011 et seq. (1946), enacted on 1 August 1946.

64  This section is adapted unless otherwise stated from US Department of Energy, ‘The Manhattan Project: The Atomic Bombing of Hiroshima (Hiroshima, Japan, August 6, 1945)’, undated but accessed 5 July 2017 at: https://bit.ly/2hzKCMI; see also the following publication on which the Department of Energy draws: F. G. Gosling, The Manhattan Project: Making the Atomic Bomb, Office of History and Heritage Resources, History Division, Department of Energy, DOE/MA-0001, Washington, DC, January 1999, pp. 51–3.

65  Unless otherwise stated, this section is adapted from US Department of Energy, ‘The Manhattan Project: The Atomic Bombing of Nagasaki (Nagasaki, Japan, August 9, 1945)’, undated but accessed 5 July 2017 at: https://bit.ly/2A82eaY; see also the following publication on which the Department of Energy draws: Gosling, The Manhattan Project: Making the Atomic Bomb, pp. 53–4.

66  UN General Assembly Resolution 1(I), 24 January 1946, para. 5(c).

67  See, e.g., J. Borger, ‘The Truth about Israel’s Secret Nuclear Arsenal’, The Guardian, 2014, at: https://bit.ly/2hC1VwA; Y. Melman, ‘US Suspected Israeli–South African Nuclear Test Behind Mysterious “Flash” ’, The Jerusalem Post, 8 December 2016, at: https://bit.ly/2QTvGWw. On 22 September 1979, a US spy satellite ‘Vela’ registered a powerful flash over the Indian Ocean, several hundred miles off the coast of South Africa.

68  K. Schaul, ‘Eight Countries. 2,056 nuclear Tests. 71 Years.’, Washington Post, updated 9 September 2016 (subscription required).

69  T. Lee and J. Berlinger, ‘North Korea Confirms Sixth Nuclear Test’, CNN, 3 September 2017, at: https://cnn.it/2O9IYl3.

70  For a valuable repository of documentation relating to the Cuban Missile Crisis, see the Harvard Kennedy School’s Belfer Center for Science and International Affairs’ dedicated website, at: https://bit.ly/1Lj7tlQ/.

71  See, e.g., ‘ “I was just doing my job”: Soviet officer who averted nuclear war dies at age 77’, RT, last updated 19 September 2017, at: https://bit.ly/2y8O70a. Mr Petrov passed away in September 2017.

72  See, e.g., Arms Control Association, ‘Nuclear Weapons: Who Has What at a Glance’, updated June 2018, at: https://bit.ly/1P4O892.

73  H. M. Kristensen and R. S. Norris, ‘Status of World Nuclear Forces’, Federation of American Scientists, June 2018, at: https://bit.ly/2gfYTZB.

74  Ibid.

75  Ibid.

76  See, e.g., Arms Control Association, ‘U.S., Russia Meet New START Limits’, October 2018, at: https://www.armscontrol.org/taxonomy/term/125.

77  The 2010 New START treaty, agreed between US President Barack Obama and Russian President Dmitry Medvedev, obliges both states to reduce their strategic arsenals, including land-based ICBMs, submarine-launched missiles, and long-range bombers to 1,550 warheads each by 2018. The number of missile launchers each side may possess is also limited.

78  Arms Control Association, ‘Nuclear Weapons: Who Has What at a Glance’, updated January 2017.

80  V. N. Mikhailov (ed.), USSR Nuclear Weapons Tests and Peaceful Nuclear Explosions: 1949 through 1990, Ministry of the Russian Federation for Atomic Energy and Ministry of Defence of the Russian Federation, 1996; see: ‘Soviet Nuclear Test Summary’, last updated 7 October 1997, at: https://bit.ly/2RZidOu.

81  Atomic Heritage Foundation, ‘Tsar Bomba’, 8 August 2014, at: https://bit.ly/2Ai0HON.

82  A. Lockie, ‘How the US’s Nuclear Weapons Compare to Russia’s’, Business Insider, 28 September 2016, at: https://bit.ly/2EwaiWc.

83  A. Roth, ‘Putin Threatens US Arms Race with New Missiles Declaration’, The Guardian, 1 March 2018, at: https://bit.ly/2EwkRsp.

85  US Department of State, ‘New START Treaty Aggregate Numbers of Strategic Offensive Arms’, Fact Sheet, Bureau of Arms Control, Verification and Compliance, 22 February 2018, at: https://bit.ly/2Paatuk.

86  Arms Control Association, ‘U.S., Russia Meet New START Limits’, 1 March 2018.

87  US Department of Energy, United States Nuclear Tests, July 1945 through September 1992, Doc. DOE/NV--209-REV 15, December 2000, pp. xi, xiii, web page no longer available online.

88  Ibid., p. viii.

89  Ibid., p. xiii.

90  Broad, ‘US Nuclear History Offers Clues to North Korea’s Progress’.

91  Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO), ‘1 March 1954—Castle Bravo’, undated but accessed on 18 October 2018 at: https://bit.ly/2ynfXbA.

92  M. Chan, ‘United States’ first “Smart” Nuclear Bomb Signals New Arms Race with China and Russia: Analysts’, South China Morning Post, last updated 23 August 2016, at: https://bit.ly/2OvAu86.

93  US DOD, Nuclear Posture Review 2018, February 2018, at: https://bit.ly/2nDa4Rw.

94  Ibid., p. X.

95  Ibid., pp. XI–XII.

96  Ibid., p. XII.

97  Kristensen and Norris, ‘Status of World Nuclear Forces’, June 2018. Additional fissile material is believed to be in storage.

98  Preparatory Commission for the CTBTO, ‘China’s Nuclear Testing Programme’, undated but accessed 9 July 2017 at: https://bit.ly/2RZ7BiE.

99  R. Norris, ‘French and Chinese Nuclear Weapon Testing’, Security Dialogue, Vol. 27 (1996), p. 48.

100  ‘China is Speeding Up Its Development of New Nuclear Armaments—Report’, Sputnik News, 29 May 2018, available at: https://bit.ly/2Cq6XoM.

101  B. Gertz, ‘China Tests New Long-Range Missile with Two Guided Warheads’, Washington Free Beacon, 18 August 2015, at: https://bit.ly/2yqaXD5.

102  See, e.g., W. Sun ‘China’s Latest Intercontinental Ballistic Missile Expected to be Deployed Next Year’, People’s Daily Online, 28 November 2017, at: https://bit.ly/2J3Y4mn.

103  See, e.g., J. Yao, ‘New Strategic Bomber to Make PLA Air Force a Strong Force’, China Military, 17 February 2017, at: https://bit.ly/2QZnvIh; ‘New Bomber Will Complete China’s Nuclear Triad’, Outlook India, 25 July 2017, at: https://bit.ly/2P5KT9T; and US DOD, Nuclear Posture Review 2018, February 2018, p. 11.

104  Kristensen and Norris, ‘Status of World Nuclear Forces’, June 2018; J. Marcus, ‘France’s Enduring Nuclear Deterrent’, BBC, 28 March 2012, at: https://bit.ly/2OwOmi5.

105  Missile Threat, ‘M51’, undated but accessed 9 July 2017 at: https://bit.ly/2P6p5Lq.

106  Direction des Applications Militaires, ‘Têtes nucléaires’, last updated 28 February 2017, web page no longer available online; and see, e.g., Col. Y. Udaya Chandar (ret.), The Modern Weaponry of the World’s Armed Forces, Notion Press, India, April 2017.

107  See, e.g., Preparatory Commission for the CTBTO, ‘France’s Nuclear Testing Programme’, undated but accessed 9 July 2017 at: https://bit.ly/2PHgYlk.

108  J. Magdaleno, ‘Algerians Suffering From French Atomic Legacy, 55 Years After Nuke Tests’, Aljazeera, 1 March 2015, at: https://bit.ly/2Ou9LZv.

109  ICJ, Nuclear Tests (Australia v. France; New Zealand v. France), Judgments of 20 December 1974, ICJ Reports 1974, pp. 267–8, paras. 43 and 46; and pp. 472–3, paras. 46 and 49.

110  A. Chrisafis, ‘French Nuclear Tests “Showered Vast Area of Polynesia with Radioactivity” ’, The Guardian, 3 July 2013, at: https://bit.ly/2QZiBet.

112  Federation of American Scientists, ‘Nuclear Weapons: France’, undated but accessed 9 July 2017 at: https://bit.ly/2NKkUjC.

113  UK Government, ‘UK Nuclear Deterrence: What You Need to Know’. Policy paper, updated 24 March 2016, at: https://bit.ly/2NMdWdS.

114  See, e.g., A. Withnall, ‘Trident Debate: There Are 16,000 Nuclear Missiles in the World—But Who Has Them and Does Britain Really Need Its Own Arsenal?’, The Independent, 9 April 2015, at: https://bit.ly/2AhbrNm.

116  G. Allison, ‘Lockheed Martin to Build More Trident Missiles for US and UK’, UK Defence Journal, 15 February 2017, at: https://bit.ly/2Ouax8R.

117  UK Ministry of Defence, ‘The United Kingdom’s Future Nuclear Deterrent: 2016 Update to Parliament’, 20 December 2016, at: https://bit.ly/2yqKu8k.

118  See, e.g., L. Arnold and M. Smith, Britain, Australia and the Bomb: The Nuclear Tests and Their Aftermath, Palgrave Macmillan, Basingstoke, 2006; B. Cathcart, Test of Greatness: Britain’s Struggle for the Atom Bomb, John Murray, London, 1995; and ‘Britain’s Nuclear Weapons, History of the British Nuclear Arsenal’, last updated 30 April 2002, at: http://bit.ly/2CqmXal.

119  See, e.g., C. Bellamy, ‘British H-bomb tests in 1957 “were a bluff”: Research shows even US was fooled by UK claims to have thermonuclear weapon’, The Independent, 14 October 1992, at: https://goo.gl/TGEiv2. Boosted fission bombs are where fusion components are incorporated within a fission bomb to enhance its efficiency and thus its yield. The main yield, though, still comes from nuclear fission.

120  SIPRI, ‘Global nuclear weapons: downsizing but modernizing’, 13 June 2016; SIPRI Yearbook 2015, Stockholm, 2015.

121  In 1965, Pakistani President Z. A. Bhutto had famously said that ‘if India builds the bomb, we will eat grass or leaves, even go hungry, but we will get one of our own. We have no alternative.’ See, generally, F. H. Khan, Eating Grass: The Making of the Pakistani Bomb, Stanford University Press, Stanford, CA, 2012.

122  K. Mizokami, ‘How Pakistan Is Planning to Fight a Nuclear War’, blog post, The National Interest, 25 March 2017, at: http://bit.ly/2P7zkyW.

123  ‘Pakistan: Nuclear’, NTI, last updated April 2016, at: http://bit.ly/2ynFVvG.

124  H. M. Kristensen and R. S. Norris, ‘Pakistan’s Nuclear Forces, 2011’, Bulletin of the Atomic Scientists, Vol. 67, No. 4 (2011).

125  T. Dalton and M. Krepon, ‘A Normal Nuclear Pakistan’, Stimson Center and Carnegie Endowment for International Peace, 2015, pp. 3 and 33, at: http://bit.ly/2RYFTT5.

126  Stockholm International Peace Research Institute (SIPRI), ‘World Nuclear Forces: India’, at: http://bit.ly/2J4iXOj.

127  A. Pillalamarri, ‘India’s Nuclear-Weapons Program: 5 Things You Need to Know’, The National Interest, 22 April 2015, at: http://bit.ly/2J8X9RG.

128  J. Marcus, ‘Indian-Built Arihant Nuclear Submarine Activated’, BBC, 10 August 2013, at: http://bit.ly/2PFJHXR. SSBN is the US Navy classification for a nuclear-powered, ballistic missile-carrying submarine. The abbreviation denotes ‘Ship, Submersible, Ballistic missile, Nuclear powered’.

129  J. Pike, ‘India Says Its Nuke-Missile-Carrying Submarine Fully Operational’, Sputnik News, 15 May 2018, at: http://bit.ly/2AhhPnx.

130  This section draws heavily on: ‘India: Nuclear’, NTI, last updated August 2016, at: http://bit.ly/2NP2hLc.

131  C. Sublette, ‘What Are the Real Yields of India’s Test?’, The Nuclear Weapon Archive, 8 November 2001, at: http://bit.ly/2yqUU7Z.

132  Arms Control Association, ‘Historical Documents Regarding India’s Misuse of Civilian Nuclear Technology Assistance’, undated but accessed 8 July 2017 at: http://bit.ly/2AhxovG.

133  See NSG, ‘Timeline’, undated but accessed on 18 October 2018 at: http://bit.ly/2PHjjgb.

134  NSG, ‘About the NSG’, undated but accessed on 18 October 2018 at: http://bit.ly/2QUjGEq.

135  M. Hibbs, ‘India May Test Again Because H-Bomb Failed, US Believes’, Nucleonics Week, 26 November 1998, available at: http://bit.ly/2CrcgEy.

136  G. van der Vink, J. Park, R. Allen, T. Wallace, and C. Hennet, ‘False Accusations, Undetected Tests and Implications for the CTB Treaty’, Arms Control Today, Vol. 28 (May 1998), at: http://bit.ly/2J6xj0m; and J. Lewis, ‘India’s H Bomb Revisited’, Arms Control Wonk, 27 August 2009, at: http://bit.ly/2ynTVWh.

137  BBC, ‘1998: India explodes nuclear controversy’, at: https://bbc.in/2NOvENQ.

138  BBC, ‘World concern at nuclear tests’, 1 June 1998, at: http://bit.ly/2Ey1nnj.

139  ‘India’s Draft Nuclear Doctrine’, Arms Control Today, 1 July 1999, esp. §§ 2.3 and 2.4, at: http://bit.ly/2PDqHct.

140  D. Busvine, ‘India nuke enrichment plant expansion operational in 2015—IHS’, Reuters, 20 June 2014, at: https://goo.gl/oa2vgm.

141  A. Cohen, ‘Crossing the Threshold: The Untold Nuclear Dimension of the 1967 Arab–Israeli War and Its Contemporary Lessons’, Arms Control Today, Vol. 37 (June 2007); A. Cohen, ‘Nuclear Arms in Crisis under Secrecy: Israel and the 1967 and 1973 Wars’, in P. Lavoy et al. (eds.), Planning the Unthinkable: How Powers Will Use Nuclear, Biological and Chemical Weapons, Cornell University Press, Ithaca, NY, 2000, pp. 112–13; W. E. Burrows and R. Windrem, Critical Mass: The Dangerous Race for Superweapons in a Fragmenting World, Simon & Schuster, New York, 1994, p. 280.

142  H. M. Kristensen and R. S. Norris, ‘Israeli Nuclear Weapons, 2014’, Bulletin of the Atomic Scientists, Vol. 70, No. 6 (2014).

143  See, e.g., Arms Control Association, ‘Nuclear Weapons: Who Has What at a Glance’, updated January 2017.

145  See, e.g., J. McCurry, ‘Japan Warns North Korea’s Nuclear Weapons Programme Has “Advanced Considerably” ’, The Guardian, 8 August 2017, at: http://bit.ly/2QZdDyh.

146  J. Warrick, E. Nakashima, and A. Fifield, ‘North Korea Now Making Missile-Ready Nuclear Weapons, U.S. Analysts Say’, Washington Post, 8 August 2017, at: http://bit.ly/2CtG43h.

147  See, e.g., G. Corera, Shopping for Bombs: Nuclear Proliferation, Global Insecurity, and the Rise and Fall of the A. Q. Khan Network, Oxford University Press, New York, 2006. In 2004, Mr Khan confessed to selling nuclear secrets to Iran, the DPRK, and Libya and was sentenced to five years’ house arrest by the Islamabad High Court. He was ‘released’ in 2009 but has remained subject to travel restrictions. S. Shah, ‘Pakistan Releases “Father” of Nuclear Bomb from House Arrest’, The Guardian, 6 February 2009, at: http://bit.ly/2OwWdw9; and ‘Abdul Qadeer Khan’, New York Times, at: http://bit.ly/2Cqd8cF.

148  D. E. Sanger, ‘Pakistani Army Linked, in Letter, to Nuclear Sale’, New York Times, 7 July 2011, at: https://goo.gl/Je8a2f.

149  A. Levy and C. Scott-Clark, Deception: Pakistan, the United States, and the Secret Trade in Nuclear Weapons, Walker Books, United States, 2007, p. 278.

150  BBC, ‘North Korea: Tremor was sixth nuclear test, says Japan’, 3 September 2017, at: http://bit.ly/2PIAj5J; BBC, ‘North Korea preparing more missile launches, says South’, 4 September 2017, at: http://bit.ly/2PICjea; J. McCurry, ‘North Korea Threatens to Sink Japan and Turn US to “Ashes And Darkness” ’, The Guardian, 14 September 2017, at: http://bit.ly/2P9eXl3; and F. V. Pabian, J. S. Bermudez Jr., and J. Liu, ‘North Korea’s Punggye-ri Nuclear Test Site: Satellite Imagery Shows Post-Test Effects and New Activity in Alternate Tunnel Portal Areas’, 38 North, 12 September 2017, at: http://bit.ly/2Aik2ze.

151  ‘North Korea’s Nuclear Weapons: Here is All We Know’, Aljazeera, 30 May 2017, at: http://bit.ly/2PD6Fie.

152  UN Security Council Resolution 2356, 2 June 2017, para. 2.

153  See, e.g., A. Gearan and E. Rauhala, ‘North Korea Missile Launch Marks a Direct Challenge to Trump Administration’, Washington Post, 4 July 2017, at: http://bit.ly/2QYaNJS.

154  ‘North Korea fires long-range ICBM missile: Reports’, Aljazeera, 29 July 2017, at: http://bit.ly/2Eww5gr.

155  C. Mindock, ‘CIA Concerned North Korea Could Hit US with a Missile in a “Handful of Months” ’, The Independent, 30 January 2018, at: http://bit.ly/2ykZuVp.

156  See, e.g., D. Kimball, ‘Timeline of the Nuclear Nonproliferation Treaty (NPT)’, Arms Control Association, Fact Sheet, 12 July 2017, at: http://bit.ly/2J6zBMZ.

158  J. McCurry, ‘North Korea Halts Nuclear and Missile Tests Ahead of Planned Trump Summit’, The Guardian, 21 April 2018, at: http://bit.ly/2CtWx7B.

159  J. McCurry, ‘North Korea Nuclear Test Site has Collapsed and May Be Out of Action—China study’, The Guardian, 21 April 2018, at: http://bit.ly/2J55XI1.

160  See, e.g., N. Turak, ‘Korea Leaders Release joint Statement Declaring the War Is Over’, CNBC, 27 April 2018, at: http://bit.ly/2EwATlZ.

161  See, e.g., ‘North Korea summit: Trump, Kim sign ‘comprehensive’ document—live updates as they happened’, CBS News, 12 June 2018, at: http://bit.ly/2q0EiiZ.

162  See generally in relation to Sweden’s nuclear weapons programme T. Jonter, The Key to Nuclear Restraint, Palgrave Macmillan, United Kingdom, 2016.

163  See, generally, E. Arnett, ‘Norms and Nuclear Proliferation: Sweden’s Lessons for Assessing Iran’, The Nonproliferation Review, Winter 1998, pp. 32–43, esp. 34–8, at: http://bit.ly/2NNUH3B; see also P. M. Cole, ‘Atomic Bombast: Nuclear Weapon Decision Making in Sweden 1945–1972’, The Washington Quarterly, Vol. 20, No. 2 (1997), pp. 233–51.

164  See, generally, J. W. de Villiers, R. Jardine, M. Reiss, ‘Why South Africa Gave Up the Bomb’, Foreign Affairs, November/December 1993, at: http://bit.ly/2yqtMGp; and see also e.g., ‘South Africa: Nuclear’, NTI, last updated September 2015, at: http://bit.ly/2CqXIVA.

165  See infra the commentary on Article 1(a).

167  See, e.g., A. von Baeckmann, G. Dillon, and D. Perricos, ‘Nuclear Verification in South Africa’, IAEA Bulletin, 1995, No. 1, pp. 42–8, at: http://bit.ly/2P7AdaH.

168  ‘The Denuclearization of Africa (GC(XXXVI)/RES/577), Report by the Director General’, IAEA General Conference, 9 September 1993, § 20, at: http://bit.ly/2CrgOuO.

169  See, e.g., R. Jeffrey Smith, ‘Obama’s Broken Pledge on Nuclear Weapons’, Foreign Policy, 30 March 2016, at: http://bit.ly/2S1FFe4.

170  ‘Libya: Nuclear’, NTI, last updated January 2015, at: http://bit.ly/2QVz838.

171  IAEA Director General, ‘Implementation of the NPT Safeguards Agreement of the Socialist People’s Libyan Arab Jamahiriya’, Report, IAEA Board of Governors, IAEA doc. GOV/2004/33, 28 May 2004, Annex, para. 15, available at: http://bit.ly/2P7EYkF.

172  P. Slevin, ‘Libya Made Plutonium, Nuclear Watchdog Says’, Washington Post, 21 February 2004, p. A15.

173  IAEA Director General, ‘Implementation of the NPT Safeguards Agreement of the Socialist People’s Libyan Arab Jamahiriya’, para. 23 et seq.

174  D. Albright and C. Hinderstein, ‘Libya’s Gas Centrifuge Procurement: Much Remains Undiscovered’, Institute for Science and International Security, 1 March 2004, at: http://bit.ly/2PJBMZy.

175  G. Kampani, ‘Proliferation Unbound: Nuclear Tales from Pakistan’, CNS Research Story, 23 February 2004, p. 3.

177  See, e.g., R. G. Joseph, Countering WMD: The Libyan Experience, National Institute for Public Policy, United States, 1 December 2008.

178  See, e.g., BBC, ‘Libya to give up WMD’, 20 December 2003, at: http://bit.ly/2QZgIyl.

179  F. L. Leverett, ‘Why Libya Gave Up on the Bomb’, Brookings, Opinion Editorial, 23 January 2004, at: http://bit.ly/2yo3JiL.

180  See, e.g., Federation of American Scientists, ‘Argentina: Nuclear Weapons Program’, 2012, at: http://bit.ly/2yLDRNt; ‘Argentina: Nuclear’, NTI, last updated April 2015, at: http://bit.ly/2Exm96v.

181  Nuclear Files, ‘Argentina’, Nuclear Age Peace Foundation, 2017, at: http://bit.ly/2P7TeK5. The ABACC was set up under the Agreement between Argentina and Brazil for the Exclusively Peaceful Use of Nuclear Energy.

183  S. Christian, ‘Argentina and Brazil Renounce Atomic Weapons’, New York Times, 29 November 1990, at: http://bit.ly/2CRTlE7.

184  ‘Brazil: Overview’, NTI, last updated July 2015, at: http://bit.ly/2yovat2.

185  World Nuclear Association, ‘Nuclear Power in Brazil’, 1 May 2015, at: https://goo.gl/tuwWG2; see also A. R. de Almeida Silva and J. A. Abreu de Moura, ‘The Brazilian Navy’s Nuclear-Powered Submarine Program’, The Nonproliferation Review, Vol. 23, Nos. 5–6 (2016).

186  This section draws on: ‘Algeria: Nuclear’, NTI, last updated April 2018, at: http://bit.ly/2PHs4H3.

187  ‘ES-Salam, General Information’, IAEA Research Reactor Database, November 2011; and see, e.g., Rezoug, Kh, Es-Salam Research Reactor’, Nuclear Research Center of Birine, Commissariat à L’Energie Atomique, Algeria, at: http://bit.ly/2EwD9tt.

188  B. Gertz, ‘China Helps Algeria Develop Nuclear Weapons’, Washington Times, 11 April 1991; see also ‘Algeria Special Weapons’, 2011, at: http://bit.ly/2NPxGNI.

189  See Ch. 5 in Nuclear Programmes in the Middle East: In the Shadow of Iran, International Institute for Strategic Studies, London, 2008, p. 110.

190  This section draws on ‘Former Yugoslavia’, NTI, last updated June 2015, at: https://bit.ly/2EskxKY.

191  W. C. Potter, D. Miljanic, and I. Slaus, ‘Tito’s Nuclear Legacy’, Bulletin of the Atomic Scientists, Vol. 56, No. 2 (March/April 2000).

192  This section draws heavily on: ‘Iraq: Nuclear’, NTI, last updated July 2017, at: http://bit.ly/2R2DtBM.

193  Nuclear Control Institute, ‘Iraq’s Crash Program to Build A-Bomb Should Come as No Surprise’, 26 August 1995, at: http://bit.ly/2J5Bytf.

194  See, e.g., B. Ramberg, ‘Osirak and Its Lessons for Iran Policy’, Arms Control Association, May 2012; and D. Reiter, ‘Preventive Attacks Against Nuclear Programs and the “Success” at Osiraq’, The Nonproliferation Review, Vol. 12, No. 2 (July 2005).

195  CIA, ‘Comprehensive Report of the Special Advisor to the DCI on Iraq’s WMD’, No. 1, 30 September 2004, p. 24.

196  ‘Fourth Consolidated Report of the Director General of the International Atomic Energy Agency under Paragraph 16 of Resolution 1051 (1996)’, UN doc. S/1997/779, 8 October 1997.

197  Comprehensive Report of the Special Advisor to the DCI on Iraq’s WMD, Vol. 2, 30 September 2004, ‘Nuclear’, p. 1, available at: http://bit.ly/2pZwLkr.

198  This section draws heavily on Nuclear Threat Initiative (NTI), ‘Syria’, last updated April 2018, at: http://bit.ly/2S0LtV5.

199  See, e.g., D. Makovsky, ‘The Silent Strike’, The New Yorker, 17 September 2012, at: http://bit.ly/2AigDQK.

200  ‘Report by the Director General: Implementation of the NPT Safeguards Agreement in the Syrian Arab Republic’, IAEA doc. GOV/2011/30, 24 May 2011, para. 2, at: http://bit.ly/2QZhAmB; and A. H. Cordesman, ‘The Israeli Nuclear Reactor Strike and Syrian Weapons of Mass Destruction: A Background Analysis’, Center for Strategic and International Studies, 24 October 2007, at: http://bit.ly/2J510iw.

201  ‘Implementation of the NPT safeguards agreement in the Syrian Arab Republic, Resolution adopted by the Board of Governors on 9 June 2011’, IAEA doc. GOV/2011/41, 9 June 2011, esp. paras. 1 and 3, at: http://bit.ly/2PGuGVz.

202  B. Haas, ‘South Korean Media Call for Country to Build Its Own Nuclear Weapons’, The Guardian, 4 September 2017, at: http://bit.ly/2yLExCv.

203  R. Lloyd Parry, ‘Japan Should Consider Nuclear Weapons to Counter North Korea Threat, Says Former Minister’, The Times, 7 September 2017, at: http://bit.ly/2S6S4NQ.

204  Art. V, 1960 Treaty of Mutual Cooperation and Security between Japan and the United States of America, concluded at Washington, 19 January 1960, available at: http://bit.ly/2NU6jSU.

205  H. Kristensen, ‘Japan under the US Nuclear Umbrella’, Nautilus Institute for Security and Sustainability, 21 July 1999, at: http://bit.ly/2QZ9vhE.

207  R. Windrem, ‘Japan Has Nuclear ‘Bomb in the Basement’, and China Isn’t Happy’, NBC News, 11 March 2014, at: http://bit.ly/2yNx4CS.

208  ‘Nuclear Weapons Program’, GlobalSecurity.org, 21 December 2016, at: http://bit.ly/2AinMAM.

209  See, e.g., G. Porter, ‘When the Ayatollah Said No to Nukes’, Foreign Policy, 16 October 2014, at: http://bit.ly/2q1IiPW.

210  ‘Iran: Nuclear’, NTI, last updated May 2018, at: http://bit.ly/2yM3oG3.

211  ‘Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran’, Report by the IAEA Director General, IAEA doc. GOV/2004/83, 15 November 2004, at: http://bit.ly/2Eyu3MV.

212  See, e.g., ‘Iranian Nuclear Program Plagued by Technical Difficulties’, 23 November 2010, available at: http://bit.ly/2J58FgF.

213  See, e.g., N. Alexander, ‘Did the Israeli-American Stuxnet Virus Launch a Cyber World War?’, Haaretz, 15 July 2016, at: http://bit.ly/2CXdokq.

214  BBC, ‘Iran Nuclear Deal: Key Details’, 16 January 2016, at: http://bit.ly/2OuLouy.

215  Available at: http://bit.ly/2AiTf5D.

216  ‘IAEA Director General’s Statement on Iran’, IAEA, Last modified 16 January 2016, at: http://bit.ly/2CTqcZc.

217  See, e.g., BBC, ‘Iran nuclear crisis: Six key points’, 14 July 2015, at: http://bit.ly/2ypJW2x.

218  ‘Transcript: Trump’s Remarks on Iran Nuclear Deal’, NPR, 13 October 2017, at: http://bit.ly/2CSSvH3.

219  Ibid.

220  R. Blakely and B. Trew, ‘Iran to Dash for Bomb if Trump Cancels Deal’, The Times, 23 April 2018, at: http://bit.ly/2yn2NLK.

221  Ibid.

222  M. Landler, ‘Trump Withdraws US from ‘One-Sided’ Iran Nuclear Deal’, New York Times, 8 May 2018.

223  M. Urban, ‘Saudi Nuclear Weapons “On Order” from Pakistan’, BBC, 6 November 2013, at: http://bit.ly/2yMDT7D.

224  Y. Torbati and J. Edwards, ‘Saudi Arabia Satisfied with Obama’s Assurances on Iran Deal’, Reuters, 4 September 2015, at: http://bit.ly/2R2KW3G.

225  S. Burkhard, E. Wenig, D. Albright, and A. Stricker, Saudi Arabia’s Nuclear Ambitions and Proliferation Risks, Institute for Science and International Security, Washington, DC, 30 March 2017, p. 1, available at: http://bit.ly/2yokudQ.

226  P. Wintour, ‘Saudi Crown Prince Warns It Will Build Nuclear Bomb if Tehran Does the Same’, The Guardian, 15 March 2018, at: http://bit.ly/2CU3yQs.

227  Ibid.

228  ‘Nuclear Deterrence’, at: http://bit.ly/2OzM1Dh.

229  R. Merrick, ‘Theresa May would fire UK’s Nuclear Weapons as a “First Strike”, says Defence Secretary Michael Fallon’, The Independent, 24 April 2017, at: http://bit.ly/2CRUjjJ.

230  J. Louth, T. Taylor, and A. Tyler, Defence Innovation and the UK: Responding to the Risks Identified by the US Third Offset Strategy, Occasional Paper, RUSI, London, 10 July 2017, p. viii, at: http://bit.ly/2R0Q1cy.

231  R. S. Norris and H. M. Kristensen, ‘Chinese Nuclear Forces, 2011’, Bulletin of the Atomic Scientists, Vol. 67, No. 6 (1 November 2011), pp. 81–5.

232  M. Finaud, ‘China and Nuclear Weapons: Implications of a No First Use Doctrine’, Blog entry, China Policy Institute, 3 April 2017, at: http://bit.ly/2yoOkPe.

233  M. I. Khan, ‘Why Pakistan is Opening Up over Its Nuclear Program’, BBC, 21 October 2015, at: http://bit.ly/2AiAhMP.

235  B. Brodie, ‘The Anatomy of Deterrence’ in Strategy in the Missile Age, Princeton University Press, Princeton, 1959, pp. 264–304.

236  See, e.g., D. Majumdar, ‘5 Russian Nuclear ‘Weapons’ of War the West Should Fear’, The National Interest, 31 January 2015, at: http://bit.ly/2AirIkM.

238  Available at: http://bit.ly/2Ovp8Rk.

239  ‘Essentials of Post-Cold War Deterrence’, 1995, p. 7.

240  Ibid.

241  The Independent Task Force on US Nuclear Weapons Policy, US Nuclear Weapons Policy, Report, 27 April 2009, at: https://on.cfr.org/2AioAWk.

242  NATO, Active Engagement, Modern Defence: Strategic Concept for the Defence and Security of the Members of the North Atlantic Treaty Organization, Adopted by Heads of State and Government at the NATO Summit in Lisbon, 19–20 November 2010, at: http://bit.ly/2EtYOmc.

243  NATO, ‘Strategic Concepts’, last updated 11 November 2014, at: http://bit.ly/2OyfUDL.

244  Ibid., p. 5.

245  Ibid., para. 17.

246  W. J. Broad and D. E. Sangerjan, ‘As U.S. Modernizes Nuclear Weapons, “Smaller” Leaves Some Uneasy’, New York Times, 11 January 2016, at: http://bit.ly/2CsSmsL.

247  Z. Keck, ‘China Tests Its Most Dangerous Nuclear Weapon of All Time’, The National Interest, 19 August 2015, at: http://bit.ly/2J7OGOH.

248  Ibid.

249  Ibid.

250  J. S. Wit and S. Y. Ahn, ‘North Korea’s Nuclear Futures: Technology and Strategy’, US–Korea Institute at SAIS, United States, 2015, pp. 8, 13, 18, 20, at: http://bit.ly/2q2dhM4.

251  ‘North Korea threatens USA with nuclear war’, The Day, 19 April 2017, at: http://bit.ly/2yoqEKW.

252  Cited in: J. Le Miere, ‘U.S. Could Use Military Force Against North Korea, As Nikki Haley Warns “catastrophe” Is Imminent’, Newsweek, 7 July 2017, at: http://bit.ly/2J4s69l.

253  G. P. Shultz, W. J. Perry, H. A. Kissinger, and S. Nunn, ‘A World Free of Nuclear Weapons’, Commentary, Wall Street Journal, 4 January 2007, at: http://bit.ly/2ExrFWL.

254  Ibid.

255  US DOD, Nuclear Posture Review 2018, February 2018, p. 20.

256  Ibid., p. 22.

257  The US Department of State uses the term to describe the model of the 1959 Antarctic Treaty for treaties that exclude nuclear weapons from outer space, from Latin America, and from the seabed. Bureau of Arms Control, Verification, and Compliance, ‘Antarctic Treaty’, US Department of State, undated but accessed 18 October 2018 at: http://bit.ly/2PGbeIz.

258  Bureau of Arms Control, Verification, and Compliance, ‘Antarctic Treaty’, US Department of State.

259  Ibid.

260  Art. I, 1959 Antarctic Treaty.

261  Arts I(1) and V, 1959 Antarctic Treaty.

262  Art. I(2), 1959 Antarctic Treaty.

263  Art. VI, 1959 Antarctic Treaty.

264  Art. VII, 1959 Antarctic Treaty.

265  See, e.g., Bureau of Arms Control, Verification, and Compliance, ‘Antarctic Treaty’, US Department of State; and Secretariat of the Antarctic Treaty (ATS), ‘Peaceful use and Inspections’, 2011, at: http://bit.ly/2Ai43kE.

266  Art. XIII(5), 1959 Antarctic Treaty.

267  See the ATS list of states parties, at: http://bit.ly/2NPzztU.

268  Art. I(1), 1963 Partial Test Ban Treaty.

269  Art. I(2), 1963 Partial Test Ban Treaty.

270  See, e.g., UN Office for Disarmament Affairs (UNODA), at: http://bit.ly/2PCCQ17.

271  UN General Assembly Resolution 2222 (XXI), 19 December 1966.

272  UN General Assembly Resolution 1962 (XVIII), 13 December 1963.

273  Fourth preambular para., 1967 Outer Space Treaty.

274  United Nations Treaties and Principles on Outer Space, UN Publication ST/SPACE/11, p. vi.

275  US Department of Defense, Law of War Manual, June 2015 (USDOD 2015 Law of War Manual), § 14.10.3.1, at: http://bit.ly/2EsApNE.

276  USDOD 2015 Law of War Manual, § 14.10.4.

277  The term ‘source material’ includes uranium containing the mixture of isotopes occurring in nature, uranium depleted in the isotope 235, and thorium. The term ‘special fissionable material’ means 239Pu, 233U, and ‘uranium enriched in the isotopes 235 or 233’. See Art. XX, Statute of the IAEA; and NSG Part 1 Guidelines—INFCIRC/254/Rev.13/Part 1, ‘Material and Equipment’, § 1.1 and 1.2, at: http://bit.ly/2EzebK6.

278  ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, dispositif F.

279  The United Nations Office for Disarmament Affairs (UNODA) has observed that: ‘On 10 January 2003, the Democratic People’s Republic of Korea (DPRK) announced its withdrawal from the Treaty in a public statement. States parties to the Treaty continue to express divergent views regarding the status of the DPRK under the NPT.’ UNODA, ‘Democratic People’s Republic of Korea: Accession to Treaty on the Non-Proliferation of Nuclear Weapons (NPT)’, at: http://bit.ly/2S1NaSg.

280  NTI, ‘Seabed Treaty’, undated but accessed on 10 July 2017 at: http://bit.ly/2R1r9l4.

281  Arts I and II, 1971 Seabed Treaty.

282  Art. III, 1971 Seabed Treaty.

283  NTI, ‘Seabed Treaty’.

284  UN General Assembly Resolution 2660 (XXV), 7 December 1970, adopted by 104 votes to 2 (El Salvador and Peru), with 2 abstentions (Ecuador and France).

285  See UNODA list at: http://bit.ly/2pZGWp1.

286  Arms Control Association, ‘The Intermediate-Range Nuclear Forces (INF) Treaty at a Glance’, updated April 2018, at: http://bit.ly/2P6Hwzy.

287  Ibid.

288  J. Marcus, ‘US briefs Nato on Russian “nuclear treaty breach” ’, BBC, 30 January 2014, at: http://bit.ly/2yn5UmU.

289  Cited in ‘Russia: US claims on nuclear missiles treaty unfounded, we have questions too’, RT, 30 July 2014, at: http://bit.ly/2OAvcIg.

290  G. Hellman and B. Bender, ‘The Other Treaty on the Chopping Block’, Politico, 24 June 2017, at: http://bit.ly/2PEEKyt.

291  Sen. Tom Cotton (Senatorial website), ‘Cotton, Johnson, Rubio, Poe, and Rogers Introduce Intermediate-Range Forces Treaty Preservation Act’, Press release, 16 February 2017, at: http://bit.ly/2PIrl8H.

292  Ibid.; and see also Hellman and Bender, ‘The other treaty on the chopping block’.

293  N. Ault, ‘Sen. Cotton: Army Modernization Crucial for Challenging Russia’, Washington Times, 17 July 2017, at: http://bit.ly/2R1MZET.

294  D. Majumdar, ‘Novator 9M729: The Russian Missile that Broke INF Treaty’s Back?’, The National Interest, 7 December 2017, at: http://bit.ly/2P7C3bI.

295  Statement by the North Atlantic Council on the Intermediate-Range Nuclear Forces (INF) Treaty, Press Release (2017) 180, 15 December 2017, at: http://bit.ly/2OzJFnY.

296  D. Kimball, ‘The Intermediate-Range Nuclear Forces (INF) Treaty at a Glance’, Fact Sheet, Arms Control Association, updated April 2018, at: http://bit.ly/2EzzzPf.

297  Ibid.

298  ‘Trump Administration INF Treaty Integrated Strategy’, Press Statement by Heather Nauert, Spokesperson for the US Department of State, Washington, DC, 8 December 2017, at: http://bit.ly/2OwXP9f.

299  Ibid.; and see A. Panda, ‘The Uncertain Future of the INF Treaty’, Backgrounder, Council on Foreign Relations, last updated 21 February 2018, at: http://bit.ly/2OvuwUy.

300  BBC, ‘Russia nuclear treaty: Gorbachev warns Trump plan will undermine disarmament’, 21 October 2018, at: https://bbc.in/2ODVAkt.

301  Federation of American Scientists, ‘Strategic Arms Reduction Treaty (START I) Chronology’, at: http://bit.ly/2CsAM8g.

302  US Department of State, New START, at: http://bit.ly/2pZAq1F.

303  Ibid.

304  J. Borger, ‘US and Russian Nuclear Arsenals Set to Be Unchecked for First Time Since 1972’, The Guardian, 17 April 2018, at: http://bit.ly/2S28EOT.

305  Art. XIV(2), New START Treaty.

306  NTI, ‘Treaty between the United States of America and the Union of Soviet Socialist Republics on Strategic Offensive Reductions (START II)’, last updated 26 October 2011, at: http://bit.ly/2R6JU6T.

307  Arms Control Association, ‘The START III Framework at a Glance’, updated January 2003, at: http://bit.ly/2CvPeN5.

308  Art. I(1), CTBT.

309  Art. I(2), CTBT.

310  See, e.g., NTI, ‘Comprehensive Nuclear-Test-Ban Treaty (CTBT)’, 31 July 2018, at: https://goo.gl/tq9KZK.

311  Art. II(1 and 3), CTBT.

312  Resolution establishing the Preparatory Commission for the Comprehensive Nuclear Test-Ban Treaty Organization, Adopted on 19 November 1996 by a Meeting of States Signatories, at: http://bit.ly/2Csv46w.

313  CTBTO Preparatory Commission, ‘Status of signature and ratification’, at: http://bit.ly/2NPOy7c.

314  NTI, ‘Proposed Fissile Material (Cut-Off) Treaty (FMCT)’, 31 May 2017, at: http://bit.ly/2yMHtP6.

315  Ibid.

316  UN General Assembly Resolution 72/24, adopted without a vote on 4 December 2017, para. 1.

317  NTI, ‘Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (LANWFZ) (Tlatelolco Treaty)’, Last updated 30 April 2018, at: http://bit.ly/2pZZS6Y.

318  Cuba was the last of the thirty-three nations of Latin America and the Caribbean to adhere to the Treaty of Tlatelolco, ratifying on 23 October 2002. Its ratification was accompanied by a reservation that achieving a solution to the United States hostility to Cuba and the use of the Guantánamo Bay military base for US nuclear weapons was a precondition to Cuba’s continued membership of the Treaty.

319  See: NTI, ‘South Pacific Nuclear-Free Zone (SPNFZ) Treaty of Rarotonga’, last updated 30 April 2018, at: http://bit.ly/2AhO1r5; and US Department of State, ‘South Pacific Nuclear Free Zone Treaty and Protocols’, Bureau of International Security and Nonproliferation, at: http://bit.ly/2RZBXl3.

320  The South Pacific Forum was renamed the Pacific Islands Forum in 2000.

321  UN General Assembly Resolution 3477(XXX), adopted on 11 December 1975 by 110 votes to 0 with 20 abstentions.

322  Australia, the Cook Islands, Fiji, Kiribati, Nauru, New Zealand, Niue, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu, and Vanuatu.

323  The Secretary General of the Pacific Islands Forum Secretariat as depositary of the Treaty received France’s ratification on 20 September 1996 with the following statement: ‘no provision of the Protocols or the articles of the Treaty to which the Protocols refer shall impair the full exercise of the inherent right of self-defence provided for in Article 51 of the United Nations Charter’.

324  US Department of State, ‘South Pacific Nuclear Free Zone Treaty and Protocols’, Bureau of International Security and Nonproliferation, at: http://bit.ly/2yNgR0h.

325  See: NTI, ‘Southeast Asian Nuclear-Weapon-Free-Zone (SEANWFZ) Treaty (Bangkok Treaty)’, last updated 30 April 2018, at: http://bit.ly/2yoO4A6.

326  Brunei Darussalam, Cambodia, Indonesia, the Lao People’s Democratic Republic, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Viet Nam.

327  NTI, ‘Southeast Asian Nuclear-Weapon-Free-Zone (SEANWFZ) Treaty (Bangkok Treaty)’.

328  NTI, ‘African Nuclear-Weapon-Free-Zone (ANWFZ) Treaty (Pelindaba Treaty)’, last updated 30 April 2018, at: http://bit.ly/2EwliCR.

329  UN General Assembly Resolution 1652(XVI) adopted on 24 November 1961 by 55 votes to 0 with 44 abstentions.

330  UN General Assembly Resolution 45/56A, adopted on 4 December 1990 by 145 votes to 0 with 4 abstentions.

331  Surprisingly, the United Nations does not list the Sahrawi Arab Democratic Republic as a state party.

332  See, e.g., P. H. Sand, ‘Diego Garcia: British–American Legal Black Hole in the Indian Ocean?’, Journal of Environmental Law, Vol. 21, No. 1 (1 January 2009), pp. 113–37.

333  NTI, ‘Central Asia Nuclear-Weapon-Free-Zone (CANWFZ)’, last updated 30 April 2018, at: http://bit.ly/2R0XxnN.

334  See, e.g., C. Ibragimova, ‘Free Zone: Greater Security for the Region?’, Russian International Affairs Council, 24 July 2015, at: http://bit.ly/2J5cWkd.

335  For further detail on the Initiative and its significance, see, e.g., Kjølv Egeland, ‘The Road to Prohibition: Nuclear Hierarchy and Disarmament, 1968–2017’, thesis submitted for DPhil in International Relations, University of Oxford, December 2017, pp. 175 ff.

336  International Campaign to Abolish Nuclear Weapons (ICAN), ‘Humanitarian Initiative’, at: http://bit.ly/2PbWGDI.

337  See, infra, the commentary on preambular paragraph 2.

338  See ‘Conference: Humanitarian Impact of Nuclear weapons, Oslo, 4–5 March 2013’, last updated 11 March 2013, at: http://bit.ly/2NQ5YQZ.

339  ‘Second Conference on the Humanitarian Impact of Nuclear Weapons—Chair’s Summary’, at: http://bit.ly/2PHAwGt.

340  See, e.g., Vienna Conference on the Humanitarian Impact of Nuclear Weapons, 8–9 December 2014, Conference Report, Austrian Federal Ministry for Europe, Integration and Foreign Affairs, Vienna, 2015, p. 4.

341  Afghanistan, Albania, Algeria, Angola, Antigua and Barbuda, Argentina, Austria, Azerbaijan, the Bahamas, Bahrain, Bangladesh, Barbados, Bhutan, Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Cabo Verde, Cambodia, Chad, Chile, Colombia, Comoros, Congo, Costa Rica, Côte d’Ivoire, Cuba, Cyprus, Djibouti, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Eritrea, Estonia, Ethiopia, Fiji, Gabon, Ghana, Guatemala, Guyana, Honduras, Indonesia, Iran, Iraq, Ireland, Italy, Jamaica, Jordan, Kazakhstan, Kenya, Kiribati, Kuwait, Lao PDR, Lebanon, Lesotho, Libya, Liechtenstein, Madagascar, Malaysia, the Maldives, Malta, the Marshall Islands, Mauritania, Mauritius, Mexico, Mongolia, Mozambique, Myanmar, Namibia, Nepal, New Zealand, Niger, Nigeria, Oman, Palau, Panama, Papua New Guinea, Paraguay, Peru, Philippines, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, San Marino, Saudi Arabia, Senegal, Sierra Leone, Singapore, South Africa, Sri Lanka, Suriname, Sweden, Tajikistan, Tanzania, Thailand, the former Yugoslav Republic of Macedonia, Timor-Leste, Togo, Tonga, Trinidad and Tobago, Tunisia, Uganda, the United Arab Emirates, Uruguay, Vanuatu, Venezuela, Viet Nam, Yemen, and Zimbabwe.

342  Andorra, Australia, Belgium, Bosnia and Herzegovina, Bulgaria, Canada, Croatia, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Israel, Japan, Latvia, Lithuania, Luxembourg, Micronesia, Monaco, Montenegro, Norway, Poland, Portugal, the Republic of Korea, Romania, the Russian Federation, Serbia, Slovakia, Slovenia, Spain, Turkey, the United Kingdom, and the United States.

343  Armenia, Belarus, China, Finland, India, Mali, Morocco, the Netherlands, Nicaragua, Pakistan, Sudan, Switzerland, and Uzbekistan.

344  UN General Assembly Resolution 71/258, para. 8.

345  UN General Assembly Resolution 70/33; and see ‘Taking forward multilateral nuclear disarmament negotiations. Note by the Secretary-General’, UN doc. A/71/371, 1 September 2016.

346  ‘Taking forward multilateral nuclear disarmament negotiations. Note by the Secretary-General’, para. 67, p. 18.

347  UN, ‘United Nations Conference to Negotiate Ban on Nuclear Weapons Holds First Organizational Meeting, Adopts Agenda for 2017 Substantive Session’, UN doc. DC/3685, 16 February 2017, at: http://bit.ly/2EwlK41.

348  Whether, in fact, the risk is higher today than it was during the Cuban Missile Crisis is open to question.

349  ‘Possessing nuclear weapons “fundamentally incompatible” with world’s aspiration for peace—UN official’, UN News Centre, 27 March 2017, at: http://bit.ly/2CScWE5.

350  ‘Address by hibakusha Toshiki Fujimori at U.N. conference to ban nuclear weapons’, Mainichi Japan, 28 March 2017, at: http://bit.ly/2q0qBAo.

351  S. Sengupta and R. Gladstone, ‘United States and Allies Protest U.N. Talks to Ban Nuclear Weapons’, New York Times, 27 March 2017, at: http://bit.ly/2R12o8B.

352  Reuters, ‘U.S., Britain, France, others skip nuclear weapons ban treaty talks’, 27 March 2017, at: http://bit.ly/2J4mZpI.

353  UN doc. A/CONF.229/2017/L.1.

354  Rule 35(1), Rules of procedure of the United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination, UN doc. A/CONF.229/2017/5, 13 June 2017.

355  Draft Convention on the Prohibition of Nuclear Weapons, UN doc. A/CONF.229/2017/CRP.1, 22 May 2017.

356  ‘Indicative list of objectives of the verification of the completeness of its inventory of nuclear material and nuclear installations in States Parties that have manufactured, possessed or otherwise acquired nuclear weapons or other nuclear explosive devices after 5 December 2001’, Non-paper by the President of the United Nations conference to negotiate a legally binding instrument to prohibit nuclear weapons, leading towards their total elimination.

357  See Remarks by Ambassador Elayne Whyte Gómez of Costa Rica, Geneva, 22 May 2017, available at: http://bit.ly/2QYomZO.

358  UN doc. A/CONF.229/2017/CRP.1/Rev.1, 27 June 2017.

359  See ‘Papers by the facilitators—30 June 2017’, at: http://bit.ly/2AiuUwM.

360  Draft treaty on the prohibition of nuclear weapons, UN doc. A/CONF.229/2017/L.3, 3 July 2017.

361  A/CONF.229/2017/L.X, undated but 5 July 2017.

362  Afghanistan, Algeria, Angola, Antigua and Barbuda, Argentina, Austria, Azerbaijan, the Bahamas, Bahrain, Bangladesh, Belize, Benin, Bhutan, Bolivia, Botswana, Brazil, Brunei Darussalam, Burkina Faso, Burundi, Cabo Verde, Cambodia, Chad, Chile, Colombia, Congo, Costa Rica, Côte d’Ivoire, Cuba, Cyprus, Democratic Republic of Congo, Djibouti, Dominican Republic, Ecuador, Egypt, El Salvador, Equatorial Guinea, Eritrea, Ethiopia, Fiji, Gabon, the Gambia, Ghana, Grenada, Guatemala, Guinea-Bissau, Guyana, Haiti, the Holy See, Honduras, Indonesia, Iran, Iraq, Ireland, Jamaica, Jordan, Kazakhstan, Kenya, Kiribati, Kuwait, Lao PDR, Lebanon, Lesotho, Liberia, Liechtenstein, Madagascar, Malawi, Malaysia, Malta, the Marshall Islands, Mauritania, Mauritius, Mexico, Moldova, Mongolia, Morocco, Mozambique, Myanmar, Namibia, Nepal, New Zealand, Nigeria, Oman, Palau, Palestine, Panama, Papua New Guinea, Paraguay, Peru, the Philippines, Qatar, Saint Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, San Marino, Sao Tome and Principe, Saudi Arabia, Senegal, the Seychelles, Sierra Leone, Solomon Islands, South Africa, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Tanzania, Thailand, Timor-Leste, Togo, Tonga, Trinidad and Tobago, Tunisia, Uganda, the United Arab Emirates, Uruguay, Vanuatu, Venezuela, Viet Nam, Yemen, and Zimbabwe.

363  GlobalSecurity.org, ‘UN conference adopts treaty banning nuclear weapons’, 7 July 2017.

364  Ibid.

365  ‘Statement from UK, US, France, on ban treaty’, 7 July 2017, statement no longer available online.

366  Ibid.

367  ‘Director of the Foreign Ministry Department for Non-Proliferation and Arms Control Mikhail Ulyanov’s interview with the newspaper Kommersant’, Russian Embassy to the United States, Washington, DC, 13 September 2017.

368  ‘Senior Russian diplomat calls nuclear arms prohibition treaty “mistake” ’, TASS, 27 September 2017, at: http://bit.ly/2yMso06.

369  See, e.g., T. Zhao and R. Wang, ‘China and the Nuclear Weapons Prohibition Treaty’, Carnegie Tsinghua Centre for Global Policy, 21 September 2017, at: http://bit.ly/2q03fuP.

370  Foreign Ministry Spokesperson Hua Chunying’s Regular Press Conference on 20 March, Ministry of Foreign Affairs of the People’s Republic of China, 20 March 2017, at: http://bit.ly/2PIQEHN.

371  Ministry of External Affairs, Government of India, ‘Response by the Official Spokesperson to a Media Query regarding India’s view on the Treaty to Ban Nuclear Weapons’, 18 July 2017, at: http://bit.ly/2CQQ6ws; and see also V. Udayachandran, ‘India and the Legitimacy of Nuclear Weapons’, FICHL Policy Brief Series, No. 87 (2018), p. 3.

372  Ibid.

373  ‘Statement from UK, US, France, on ban treaty’, 7 July 2017. As just seen (supra), a similar statement was made by India.

374  Art. 38(1)(a), Statute of the ICJ.

375  See infra, para. 0.05.

376  Art. 38(1)(b), Statute of the ICJ.

377  Art. 38(1)(c), Statute of the ICJ. These days we tend to conveniently ignore the words that follow in subparagraph (c): ‘recognized by civilized nations’. Subsidiary means for the determination of rules of law are ‘judicial decisions and the teachings of the most highly qualified publicists of the various nations’. Art. 38(1)(d), Statute of the ICJ.

378  R. Higgins, Problems and Process: International Law and How We Use It, Clarendon Press, Oxford, 1994, p. 18, citing also P. Van Hoof, Rethinking the Sources of International Law, Deventer, the Netherlands,1983, p. 87.

379  ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, 3 June 1985, para. 27.

380  H. Thirlway, The Sources of International Law, Oxford University Press, Oxford, 2014, p. 66.

381  Though see in this regard Thirlway, The Sources of International Law, p. 63.

382  A. Clapham, Brierly’s Law of Nations, 7th edn, Oxford University Press, Oxford, 2012, pp. 58–9. See also ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Judgment, 3 February 2012, para. 55:

In the present context, State practice of particular significance is to be found in the judgments of national courts faced with the question whether a foreign State is immune, the legislation of those States which have enacted statutes dealing with immunity, the claims to immunity advanced by States before foreign courts and the statements made by States, first in the course of the extensive study of the subject by the International Law Commission and then in the context of the adoption of the United Nations Convention.

383  M. N. Shaw, International Law, 8th edn, Cambridge University Press, Cambridge, 2017, p. 60.

384  ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 9 July 2004, para. 86.

385  ICJ, Nicaragua v. United States, Judgment (Merits), 27 June 1986, para. 186.

386  ICJ, North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. The Netherlands), Judgment, 20 February 1969, para. 77.

387  One hundred and ninety-one states (if one includes the DPRK) are party to the NPT. See: UNODA, ‘Treaty on the Non-Proliferation of Nuclear Weapons’, at: http://bit.ly/2yn7G7y.

388  UN Security Council Resolution 1540 on the non-proliferation of weapons of mass destruction, adopted unanimously on 28 April 2004.

389  UN Security Council Resolution 2397, adopted unanimously on 22 December 2017, second preambular paragraph.

390  UN Security Council Resolution 1172, adopted unanimously on 6 June 1998, para. 3.

391  UN Security Council Resolution 2375, adopted unanimously on 11 September 2017, para. 1.

392  ICJ, North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. The Netherlands), Judgment, 20 February 1969, para. 77. See also ICJ, Nicaragua v. United States, Judgment (Merits), 27 June 1986, para. 188.

393  ICJ, Jurisdictional Immunities of the State (Germany v. Italy), Judgment, 3 February 2012, para. 55.

394  Shaw, International Law, 8th edn, pp. 65–6.

396  Ibid., p. 61 and note 28.

397  D. A. Koplow, ‘Parsing Good Faith: Has the United States Violated Article VI of the Nuclear Non-Proliferation Treaty?’, Wisconsin Law Review, No. 2 (1993), pp. 301–94, at: http://bit.ly/2Cuf6Zl.

398  See, e.g. Thirlway, The Sources of International Law, pp. 86–8.

399  ICJ, Fisheries Case (United Kingdom v. Norway), Judgment, 18 December 1951, p. 19.

402  Ibid., p. 29.

403  Ibid.

404  ICJ, Continental Shelf (Libyan Arab Jamahiriya v. Malta), Judgment, 3 June 1985, para. 27.

405  ICJ, North Sea Continental Shelf Cases (Germany v. Denmark; Germany v. The Netherlands), Judgment, 20 February 1969, para. 73.

406  K. J. Heller, ‘Specially-Affected States and the Formation of Custom’, Amsterdam Law School Research Paper No. 2017-45, 25 October 2017, available at: http://bit.ly/2PFSEQQ.

407  Ibid., p. 1, citing D. Tladi, ‘Progressive Development and Codification of International Law: The Work of the International Law Commission During Its Sixty-Sixth Session’, South African Yearbook of International Law, Vol. 38 (2013), pp. 124 ff, at 130.

408  ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996.

409  See Letter of 16 June 1995 from the Legal Adviser to the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, Together with Written Comments of the United Kingdom; and Letter of 20 June 1995 from the Acting Legal Adviser to the Department of State, Together with Written Statement of the Government of the United States of America.

410  ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, dispositif B.

412  Ibid., pp. 60–1.   

413  Ibid., pp. 7–8.

414  ICJ, Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom), Judgment (Preliminary Objections), 5 October 2016, para. 44.

415  In its 2018 Nuclear Posture Review, the United States declared that it ‘will not resume nuclear explosive testing unless necessary to ensure the safety and effectiveness of the U.S. nuclear arsenal, and calls on all states possessing nuclear weapons to declare or maintain a moratorium on nuclear testing.’ US DOD, Nuclear Posture Review 2018, February 2018, p. XVII. This falls some way short of evincing the requisite opinio juris.