Making nuclear weapons illegal

George Farebrother discusses the illegality of nuclear weapons and the urgent need for a global abolition treaty to ban them and ensure their permament elimination.
 
 
At the 2010 Review Conference of the nuclear Non-Proliferation Treaty (NPT), 189 countries, including the five nuclear-armed states, unanimously stressed the “catastrophic humanitarian consequences of any use of nuclear weapons” and demanded that all states “at all times” comply with “applicable international law, including international humanitarian law.”

Legal restrictions on nuclear weapons were confirmed in 1996 by the International Court of Justice (ICJ). It stressed that weapons must never be used when they could not distinguish civilian from military targets.
 
The 1977 Additional Protocols to the Geneva Conventions said that field commanders or their political superiors must decide whether the immediate military advantage of a nuclear strike would outweigh the civilian suffering it would entail.
 
But it would be impossible to do this with nuclear weapons because no one could reliably forecast the complex atmospheric conditions and the direction of the wind at the moment of launch. The radiation effects would be so unpredictable that accurate targeting would be irrelevant.
 
Realistically, the nuclear-armed states are deploying weapons which could never be used legally.
 
The security of people, not the alleged security of states, must be at the centre of the drive towards a world free of nuclear weapons. International law is the way to achieve this. It gives us a framework which entails the unlawfulness of any use of nuclear weapons.
 
Our task now is to achieve a global convention, or treaty, outlawing their possession. This would be similar to the Chemical and Biological Weapons Conventions which are now part of international law.
 
How can we achieve this? The only globally binding treaty making nuclear disarmament a legal requirement is the NPT. Article VI reads:
 
“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.”
 
The ICJ went further by stipulating that there is a legal obligation not merely to negotiate, but to achieve a result – the global abolition of nuclear weapons.
 
The NPT is not designed to set negotiations in train. It does not specify the forum or a pathway or an expected outcome. Every five years, the NPT's Review Conference discusses the progress of the Treaty and could theoretically amend it; but this has never been attempted.
 
Each Review Conference struggles to agree a final statement and these are vague because agreement is by consensus: the five nuclear-armed NPT states can block any specific disarmament procedures or timetables.
 
The same is true of the Conference on Disarmament which is tasked by the United Nations with disarmament negotiations. It is usually bogged down by the competing perceived interests of states and beset by procedural wrangles. For several years it has achieved little.
 
However, we do have a model for success. Good progress has been made with outlawing anti-personnel mines and cluster munitions. This was achieved by like-minded states working with experts and concerned citizens.
 
A similar coalition could thrash out an agreement that any use of nuclear weapons would be criminal and then go on to deal with their possession. They could use the experience of the Nuclear Weapon-Free Zones which cover practically all the Southern Hemisphere.
 
The need to seek consensus would evaporate and the nuclear-armed states would not have to be involved at first. They could be brought in later when the global drive towards a convention banning nuclear weapons becomes irresistible. 

 
George Farebrother is Secretary of the World Court Project