When there was a great deal of tension and endless news reports about the potential of North Korea to develop nuclear weapons, I heard a lot of people asking in frustrated perplexity why it was that the bigger, more powerful countries could build a nuclear arsenal and then feel justified putting pressure on the smaller countires, even if they were "rogue states". I've heard similar questions now that the US and Russia are holding new talks on reducing their nuclear weapons stockpiling. Given the last decade's uproar over "WMDs", these questions are justified. And the legal answer is fairly simple.
Soon after the infamous Hiroshima and Nagasaki bombs "Little Boy" and "Fat Man" were dropped and the Second World War was brought to a dramatic close, nations other than the US began developing nuclear bombs. A new balance of power was sought in the creation of the UN and the 5 permanent members of the Security Council: China, Russia, France, the UK and the US formed what was to be the stablising political force in this new international political body. The idea was to maintain a multi-polar balance of power to avoid future large scale wars.
And so the Nucelar Non-Proliferation Treaty (NPT) was born in 1970, as an attempt to ensure that these 5 main powers would be the only ones who were nuclear powers. Other countries to sign were in fact agreeing not to develop and stockpile nuclear weapons. The five superpowers were allowed to have nuclear bombs but not to give them to anybody else. The idea was they would protect interests around the globe and we were all supposed to feel safer for it.
The NPT was designed to prevent further proliferation of nuclear weapons, to encourage disarmament or reduction of existing weaponry, and to allow development of so-called peaceful use of nuclear technology, for instance for energy and medicine.
This multi-polar balance of power shifted in the 1970's and 1980's when the US and Russia rose up to the rank of super-power and a bi-polar system ocurred almost by default. This is when the nuclear arms race became fundamental to the new balance of power in the Cold War period. There is a fascinating acronym for the policy that everyone was convinced would keep us safe: Mutually Assured Destruction, or MAD. If "we" have as many bombs as "they" have, then neither party will dare to strike first as they know a retaliation would mean destruction of their own country. Clearly MADness, as it justified both Russia and the US in expanding rather than reducing their nuclear stockpiles.
When countries which hadn't even signed the NPT started to develop nuclear capability, such as Israel, Pakistan, India, Iran and North Korea, that's when international concern was raised. These countries are not bound by the NPT and so they are unrestricted according to international law. Granted, the instability of domestic politics in some of these countries leads to a justified concern about such a development, particularly given the tensions between some of the countries which neighbour each other. But one could question wether these so-called "rogue states" are more dangerous hands for the potential of nuclear destruction to be in, than the hands of super powers.
Tom Lehrer sang a fantastic satirical song in 1959 when the big news was that China had detonated a test nuclear bomb - it was the first time the US press used the word "bomb" instead of "device", the new vocabulary obviously chosen to turn the public opinon. Have a listen
An attempt was made to clarify whether producing nuclear wepaons which have the potential to destroy populations and environments on a mass scale can be legal at all. There are rules about the methods and means by which war can be fought in the body of law known as International Humanitarian Law, or the Law of Armed Conflict. These rules say that weapons which are indescriminate (not just soldiers and military targets will get hit, but civilians and protected places and persons such as hospitals, schools, children) are illegal. A case was brought to the world court, the International Court of Justice in The Hague, to ask for an adivsory opinon on the matter. It was an unfortunate outcome that the court said in principle nuclear weapons are illegal, but that they may be justified if used in self defense. This leaves a grey area of whether the very possession and development of nuclear weapons is legal or not, which goes against the intention of the NPT. It's a shame the world court did not dare to be bolder in its conclusion.
Critics also argue that an agreement between the US and UK on the transfer of nuclear technology - called the Mutual Defence Agreement 1958 - also breaks the NPT. This is because, they say, the NPT forbids the transfer of nuclear weapons, even between nuclear-weapon states. The UK argues that is only transferring techonlogy, and not weapons, so it is not breaching the NPT.
One of the weaker points of the NPT is that is obliges those countries which signed it to "undertake 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". International lawyers disagree as to the correct interpretation of the obligation countries undergo - do they only have to negotiate, or do they actually have to disarm? And what are "effective measures"?
The NPT is not the only treaty that has been set up as a kind of contract between countries to minimise nuclear proliferation. As part of the NPT regime, which is a multi-party treaty signed by many different countries, some bi-lateral agreements (treaties between two countries) were also made. The discussions that the US and Russia are undertaking now are a result of the fact that their bi-lateral agreement of 1991 called START (Strategic Arms Reduction Treaty) has now expired and these countries are seeking to establish a new agreement now that there are attempts to create new relations under the Obama regime.
This international lawyer is of the humble opinon that in fact the rules of International Humanitarian Law do make the use of nuclear weapons illegal. For those countries which have signed the NPT this means building new stockpiles and refusing to disarm is a breach of thier international obligations. And for those countries which ave not signed the NPT, they are still bound by the fact that use - or even threat of use - is illegal.
