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 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. Page Id: 9ReferencesUnited States Code (United States [us])Title 42 The Public Health and Welfare, Chapter 23 Development and Control of Atomic Energy, Division A Atomic Energy, Subchapter I General Provisions, §2011 Congressional declaration of policy [Atomic Energy Act 1954](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.

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

Other Nuclear Weapons Development Programmes

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. Page Id: 31ReferencesTreaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms(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 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 Page Id: 33ReferencesAntarctic Treaty 402 UNTS 71, UN Reg No I-5778, 12 UST 794Art.I Peaceful PurposesArt.I Peaceful Purposes, (1)Art.V Nuclear ActivityComprehensive Nuclear Test Ban Treaty (United Nations [UN]) UN Doc A/50/1027, AnnexTreaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water 480 UNTS 43, UN Reg No I-6964(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

Page Id: 34ReferencesAntarctic Treaty 402 UNTS 71, UN Reg No I-5778, 12 UST 794Art.I Peaceful Purposes, (2)Art.VI Geographical coverageArt.VII InspectionsArt.XIII Ratification and entry into force, (5)Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water 480 UNTS 43, UN Reg No I-6964Art.I(1)Art.I(2)Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (United Nations [UN]) 610 UNTS 205, UN Reg No I-8843United Nations General Assembly Resolution 1962 (XVIII): Declaration of Legal Principles Governing the Activities of States in the Exploration and Uses of Outer Space (United Nations General Assembly [UNGA]) UN Doc A/RES/1962(XVIII), GAOR 18th Session Supp 15, 15United Nations General Assembly Resolution 2222 (XXI) (1966) on the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (United Nations General Assembly [UNGA])(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).

Page Id: 35ReferencesCharter of the United Nations (done at San Francisco, United States, on 26 June 1945) (United Nations [UN]) 1 UNTS XVI, 59 Stat 1031, TS 993, 3 Bevans 1153, 145 BSP 805, 892 UNTS 119Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (United Nations [UN]) 610 UNTS 205, UN Reg No I-8843PreambleArt.IVArt.IV(1)Art.IV(2)Treaty on the Non-Proliferation of Nuclear Weapons 729 UNTS 161, IAEA Doc INFCIRC/140, UN Reg No I-10485(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:

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 Page Id: 36ReferencesLegality of the Threat or Use of Nuclear Weapons, Advisory opinion, ICJ GL No 95, [1996] ICJ Rep 226, ICGJ 205 (ICJ 1996), (1996) 35 ILM 1345, 8th July 1996, United Nations [UN]; International Court of Justice [ICJ] ICGJStatute of the International Atomic Energy Agency (International Atomic Energy Agency [IAEA]) 276 UNTS 3Main Text, Art.XX DefinitionsTreaty on the Non-Proliferation of Nuclear Weapons 729 UNTS 161, IAEA Doc INFCIRC/140, UN Reg No I-10485Art.IArt.IIArt.IIIArt.III(1)Art.III(2)Art.VI(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 Page Id: 37ReferencesTreaty between the United States of America and the Union of Soviet Socialist Republics on the Elimination of their Intermediate-Range and Shorter-Range Missiles 1657 UNTS 2Treaty 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 955 UNTS 115Art.IArt.IIArt.IIIUnited Nations General Assembly Resolution 2660 (XXV) on 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 (United Nations General Assembly [UNGA]) UN Doc A/RES/2660(XXV)(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

Page Id: 40ReferencesTreaty between the United States of America and the Russian Federation on Further Reduction and Limitation of Strategic Offensive ArmsTreaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive ArmsArt.XIV(2)Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems 944 UNTS 13, UN Reg No I-13446, 23 UST 3435Treaty between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms Senate Treaty Doc No 102-20(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

Page Id: 41ReferencesComprehensive Nuclear Test Ban Treaty (United Nations [UN]) UN Doc A/50/1027, AnnexArt.I(1)Art.I(2)Art.II(1)Art.II(3)Protocol to the Comprehensive Nuclear-Test-Ban TreatyProtocol to the Comprehensive Nuclear-Test-Ban Treaty, Pt.IProtocol to the Comprehensive Nuclear-Test-Ban Treaty, Pt.IIProtocol to the Comprehensive Nuclear-Test-Ban Treaty, Pt.IIIProtocol to the Comprehensive Nuclear-Test-Ban Treaty, Annex 1Protocol to the Comprehensive Nuclear-Test-Ban Treaty, Annex 2Treaty on the Non-Proliferation of Nuclear Weapons 729 UNTS 161, IAEA Doc INFCIRC/140, UN Reg No I-10485Art.VIUnited Nations General Assembly Resolution 50/245: Comprehensive Nuclear-Test-Ban Treaty (United Nations General Assembly [UNGA]) UN Doc A/RES/50/245(p. 42) Regional Nuclear-Weapons-Free Zones

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

Page Id: 47ReferencesUnited Nations General Assembly Resolution 70/33 on taking forward multilateral nuclear disarmament negotiations (United Nations General Assembly [UNGA]) UN Doc A/RES/70/33United Nations General Assembly Resolution 71/258 on taking forward multilateral nuclear disarmament negotiations: Statement of financial implications (A/71/710) (United Nations General Assembly [UNGA]) UN Doc A/RES/71/258para.8(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 Page Id: 49ReferencesTreaty on the Non-Proliferation of Nuclear Weapons 729 UNTS 161, IAEA Doc INFCIRC/140, UN Reg No I-10485(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 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 Page Id: 52ReferencesTreaty on the Non-Proliferation of Nuclear Weapons 729 UNTS 161, IAEA Doc INFCIRC/140, UN Reg No I-10485(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

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

Page Id: 53ReferencesStatute of the International Court of Justice (United Nations [UN]) 33 UNTS 993, UKTS 67 (1946) Cmd 7015, 3 Bevans 1179, 59 Stat 1055, 145 BSP 832, TS 993Ch.II Competence of the Court, Art.38 ICCh.II Competence of the Court, Art.38, (1) ICCh.II Competence of the Court, Art.38, (1), (b) ICCh.II Competence of the Court, Art.38, (1), (c) IC(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:

Page Id: 54ReferencesContinental Shelf, Libyan Arab Jamahiriya v Malta, Merits, ICJ GL No 68, [1985] ICJ Rep 13, ICGJ 118 (ICJ 1985), 3rd June 1985, United Nations [UN]; International Court of Justice [ICJ] ICGJJurisdictional Immunities of the State, Germany v Italy, Judgment, ICJ GL No 143, [2012] ICJ Rep 99, ICGJ 434 (ICJ 2012), 3rd February 2012, United Nations [UN]; International Court of Justice [ICJ] ICGJLegal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory opinion, ICJ GL No 131, [2004] ICJ Rep 136, ICGJ 203 (ICJ 2004), (2004) 43 ILM 1009, 9th July 2004, United Nations [UN]; International Court of Justice [ICJ] ICGJMilitary and Paramilitary Activities in and Against Nicaragua, Nicaragua v United States, Merits, ICJ GL No 70, [1986] ICJ Rep 14, ICGJ 112 (ICJ 1986), OXIO 88, 27th June 1986, United Nations [UN]; International Court of Justice [ICJ] ICGJ OXIOStatute of the International Court of Justice (United Nations [UN]) 33 UNTS 993, UKTS 67 (1946) Cmd 7015, 3 Bevans 1179, 59 Stat 1055, 145 BSP 832, TS 993Ch.II Competence of the Court, Art.38, (1), (b) ICCh.II Competence of the Court, Art.38, (1), (d) IC(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:

Page Id: 55ReferencesComprehensive Nuclear Test Ban Treaty (United Nations [UN]) UN Doc A/50/1027, AnnexAnnex 2North Sea Continental Shelf, Germany v Denmark, Judgment, merits, ICJ GL No 51, [1969] ICJ Rep 3, ICGJ 150 (ICJ 1969), 20th February 1969, United Nations [UN]; International Court of Justice [ICJ] ICGJTreaty on the Non-Proliferation of Nuclear Weapons 729 UNTS 161, IAEA Doc INFCIRC/140, UN Reg No I-10485United Nations Security Council Resolution 1172 (1998) on international peace and security (United Nations Security Council [UNSC]) UN Doc S/RES/1172(1998), SCOR 53rd Year 104para.3United Nations Security Council Resolution 1540 (2004) on Non-proliferation of Nuclear, Chemical and Biological Weapons (United Nations Security Council [UNSC]) UN Doc S/RES/1540 (2004), SCOR 59th Year 214 OXIOUnited Nations Security Council Resolution 2375 (2017) on non-proliferation/Democratic People's Republic of Korea (United Nations Security Council [UNSC]) UN Doc S/RES/2375(2017)para.1United Nations Security Council Resolution 2397 (2017) on non-proliferation/Democratic People's Republic of Korea (United Nations Security Council [UNSC]) UN Doc S/RES/2397(2017)Preamble(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.

Page Id: 56ReferencesFisheries Case, United Kingdom v Norway, Judgment, ICJ GL No 5, [1951] ICJ Rep 116, ICGJ 196 (ICJ 1951), 18th December 1951, United Nations [UN]; International Court of Justice [ICJ] ICGJJurisdictional Immunities of the State, Germany v Italy, Judgment, ICJ GL No 143, [2012] ICJ Rep 99, ICGJ 434 (ICJ 2012), 3rd February 2012, United Nations [UN]; International Court of Justice [ICJ] ICGJ(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

Page Id: 57ReferencesContinental Shelf, Libyan Arab Jamahiriya v Malta, Merits, ICJ GL No 68, [1985] ICJ Rep 13, ICGJ 118 (ICJ 1985), 3rd June 1985, United Nations [UN]; International Court of Justice [ICJ] ICGJLegality of the Threat or Use of Nuclear Weapons, Advisory opinion, ICJ GL No 95, [1996] ICJ Rep 226, ICGJ 205 (ICJ 1996), (1996) 35 ILM 1345, 8th July 1996, United Nations [UN]; International Court of Justice [ICJ] ICGJNorth Sea Continental Shelf, Germany v Denmark, Judgment, merits, ICJ GL No 51, [1969] ICJ Rep 3, ICGJ 150 (ICJ 1969), 20th February 1969, United Nations [UN]; International Court of Justice [ICJ] ICGJ(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.