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Roared the unquenchable crimson conflagrations of the atomic bombs, industry was completely disorganized, and every city, every thickly populated area, was starving or trembled on the verge of starvation. Most of the capital cities of the world were burning; millions of people had already perished, and over great areas, government was at an end.

H.G. Wells, The World Set Free, 1914

 

 

INTRODUCTION 

In this science fiction novel, written back in 1914, decades before the invention of nuclear weapons, Wells described atomic bomb warfare and its terrifying consequences on the world. It took a few decades for the nuclear bomb to transform from fiction to reality. Immediately after the invention of atomic energy and nuclear weapons, in the aftermath of World War II (WWII), the great powers clearly understood the need for atomic energy and nuclear arms control. At first, they attempted to put atomic energy under the control of the Atomic Energy Commission of the United Nations but failed to do so. They afterwards negotiated dozens of treaties aimed at the prevention of the proliferation of atomic weapons on a multilateral level, controlling the arms of two nuclear superpowers, the USSR and the U.S., on a bilateral level and prohibition of all types of nuclear tests, which stands in the core of the development of atomic weapons.

Today, the framework for nuclear arms control has effectively collapsed, with atomic attack rhetoric becoming more prevalent, particularly after the renewed conflict in Ukraine. This phase of confrontation involves nations with the largest nuclear arsenals and advanced delivery systems, and threats of nuclear use have been openly expressed at the highest levels.^[1] At the same time, the second war in Ukraine has led to the termination of the last nuclear arms control treaty, the "New Strategic Arms Control Treaty" between the U.S. and the Russian Federation, and the withdrawal of the Russian Federation from the Comprehensive Nuclear Test Ban Treaty (CNTBT). The expert community has marked these actions as an "unprecedented move"^[2], but the destruction of the nuclear arms control regime has not been something of an unprecedented nature. On the contrary, as will be further demonstrated, this has been regular over the past decades.

In the meantime, the United Nations (U.N.) regularly issues warnings on the risk of the use of nuclear weapons. Senior disarmament officials warned the Security Council that against the backdrop of the conflict in Ukraine, the risk such arms will be used is higher today than at any time since the end of the Cold War.^[3] During the annual meeting of the Arms Control Association, the Secretary-General of the U.N. remarked that humanity is on a knife's edge due to  reckless threats of nuclear catastrophe, qualitative arms control race, as well as the risk of a nuclear weapon being used, which, according to him has reached heights not seen since the Cold War.^[4] According to Guterres, the regime designed to prevent the use, testing, and proliferation of nuclear weapons is weakening, and the world needs disarmament now.^[5] As strange as it may seem, the U.N.'s Chief's remarks are somewhat optimistic, especially regarding the weakening of the nuclear regime established in the aftermath of WWII. The regime is not weakening; it does not exist de facto. Disarmament has failed since the only treaty that prohibits the threats and use of nuclear arms, the Treaty on Prohibition of Nuclear Weapons, advanced by the U.N., has not been ratified by a single nuclear state, and there are no prospects that it will ever succeed.

 

INFLAMMATORY NUCLEAR RHETORICS 

The North Atlantic Treaty Organization (NATO) Secretary General Stoltenberg, in an interview with the British "The Telegraph" on June 17, issued a response to Russia's threats of using nuclear weapons. He mentioned that NATO is in talks to deploy more nuclear weapons in the face of growing threats from Russia and China and stated that the bloc must show its nuclear arsenal to the world to send a direct message to its foes. According to Stoltenberg, Members of NATO are in consultation to take missiles out of storage and place them on standby.^[6] Kremlin Spokesperson Peskov called NATO's chief's remarks another escalation of tensions.^[7] According to the Kremlin, earlier escalation of tensions came from the statements of French President Macron, who did not rule out the direct involvement of French troops in the Ukrainian conflict, and U.K. Foreign Minister Cameron's statement about the right of Ukraine to use British weapons to strike facilities inside Russia.^[8] Peskov called these comments dangerous on May 3. On May 6, Russia announced military drills involving nuclear tactical weapons, which, according to Russia's Ministry of Defense, was a response to provocative statements and threats from certain Western officials regarding the Russian Federation.^[9] The outrage caused by Russia's propaganda anchor Margarita Simonian over testing a nuclear weapon someplace in Siberia to send a "nuclear ultimatum" to the West has also generated a lot of attention^[10] and extensive debates over the resumption of such tests in Valdai Discussion Club in Sochi, where Russia's President did not exclude resumption of nuclear tests. These are just a few examples of continuously escalating nuclear threat rhetoric.

What does international law say about such threats? On December 15, 1994, the General Assembly of the U.N. requested the International Court of Justice's (I.C.J.) Advisory Opinion asking the following question:

 

"Is the threat or use of nuclear weapons in any circumstances permitted under international law?"^[11]

 

If we look retrospectively, the position of the U.S., UK, France, and several other countries was right regarding their call for the  I.C.J. to exercise its discretional power to refuse the issuance of the Opinion. They argued that the question was formulated vaguely and abstractly and claimed that the Opinion has the potential to undermine progress made or being made on the sensitive subject matter.^[12] The I.C.J. did not exercise its discretional power and issued the Opinion where it found that international law neither specifically authorizes nor specifically prohibits the threat or use of nuclear weapons. It also found that the threat or use of nuclear weapons must comply with relevant articles of the UN Charter concerning the use of force (Article 2(4) and Article 51), general requirements of international law related to armed conflicts, and treaty obligations expressly dealing with nuclear weapons.

To put it simply, Article 2(4) prohibits the use or threat of force against the territorial integrity or political independence of other States or in any other manner inconsistent with the purposes of the United Nations. Suppose the Security Council finds that there has been a threat to peace or an act of aggression, and it can take measures to resolve the situation, including recommending operations by air, sea, or land forces. Before the Security Council takes measures, the States may respond to an armed attack in self-defence under Article 51 of the Charter or act collectively, provided that principles of necessity and proportionality are kept. The textually simple but practically complicated mechanism is also applicable towards the threat or use of nuclear weapons. 

The Court also ruled that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict and, in particular, the principles and rules of humanitarian law. In subsequent paragraphs, it also stated that in view of the current state of international law, it could not conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence in which the very survival of a State would be at stake. The Court's Opinion has been sharply criticized by many. To an extent, the Advisory Opinion was controversial, Judges who participated in the proceedings issued five Declarations, three Separate Opinions and six Dissenting Opinions.

Judge Hertszegh expressed his disagreement and declared that "the fundamental principles of international humanitarian law, rightly emphasized in the reasons of the Advisory Opinion, categorically and unequivocally prohibit the use of weapons of mass destruction, including nuclear weapons". Judge Hertszegh further emphasized that "international humanitarian law does not recognise any exceptions to these principles." ^[13]

On the same matter of extreme circumstance of self-defence, the I.C.J. Vice President Schwebel called the Advisory Opinion an "astounding conclusion to be reached by the International Court of Justice". The Vice President went on to state that "after many months of agonizing appraisal of the law, the Court discovers there is none, discards the legal progress of the twentieth century, puts aside the provisions of the Charter of the U.N. of which it is the principal judicial organ, and proclaims in terms of redolent of Realpolitik, its ambivalence about the most important provision of modern international law". According to the Vice President, "if this were to be the Court's ultimate holding, the Court would have done better to have drawn on its undoubted discretion not to render an opinion at all.”^[14]

The criticism of the I.C.J. is justified. Numerous international conventions explicitly prohibit using some weapons that may have mass destruction effects: the Biological Weapons Convention of 1972, the Chemical Weapons Convention of 1983, the Ottawa Convention concerning the Total Ban of Anti-Personnel Mines of 1977, the Oslo Convention concerning the Total Ban on Cluster Munition. I.C.J. could, at a time, remedy the lacuna in the arms control regime when it comes to the prohibition of nuclear weapons and threats to use those weapons, but it did nothing but create more uncertainties. Afterwards, the Convention on Prohibition of Nuclear Weapons was adopted in 2017, which prohibits the threat or use of nuclear weapons, but nuclear states have never ratified it. 

In light of these, States are frivolous in using the rhetoric of nuclear threats since they do not face any international legal constraints when it comes to nuclear weapons if they do not violate the Charter of the U.N. The question remains: what if the U.N. General Assembly referred for Advisory Opinion now? What will be different in light of the threats used by the Russian Federation during the present escalation in Ukraine? Does the Russian Federation or Belarus comply with the U.N. Charter while making such threats? 

 

ARMS CONTROL REGIME- HISTORICALLY 

Historically, there were numerous attempts to achieve arms control and disarmament, but in all cases States, as well as international organizations failed to achieve these important objectives. The development of modern arms control as a distinct field of international relations and international law emerged in the 20^th century in response to the increased destructive potential of weaponry and the desire to prevent conflicts and manage global security challenges. The first efforts to outlaw some specific means of war that seemed inhumane were made during the First Hague Peace Conference of 1897, which led to the adoption of two Conventions and three declarations related to the prohibition on using expansive bullets, discharge of projectiles and explosives from balloons, and declaration on the prohibition of the use of projectiles with the sole object to spread asphyxiating poisonous gases.^[15] The Second Hague Peace Conference was more successful and led to the adoption of numerous conventions related to arms control and the conduct of war. However, it did not prevent World War I, one of the deadliest conflicts in history, with the employment of all kinds of new weapons available at that time (tanks, rapid-firing machine guns, high-explosive artillery shells and poison gas).^[16] World War I ended by signing the Treaty of Versailles, where the contracting parties agreed to the Covenant of the League of Nations, and again the matter of arms control and disarmament came to the forefront of international relations. The League of Nations integrated many Conventions in its text, including the Convention on the Pacific Settlement International Disputes, and established the Permanent Court of International Justice (predecessor of the International Court of Justice) to settle disputes through arbitration, mediation and peaceful means. Within the League of Nations, a Disarmament Commission was established to achieve general and complete disarmament; an ambitious, but failed goal. The League of Nations succeeded in prohibiting chemical and biological weapons, aiming to prevent using these indiscriminate and inhumane weapons.

Despite these initiatives, the League of Nations faced immense challenges in achieving comprehensive arms control and disarmament goals, eventually leading to the organization's dissolution with the outbreak of World War II.

After World War II, the attempts to establish an arms control regime and achieve disarmament continued, and a more destructive weapon emerged; nuclear weapons. Where does the world stand now in achieving nuclear disarmament and arms control?

 

FAILURE OF THE UNITED NATIONS TO TAKE NUCLEAR ENERGY UNDER CONTROL

The first session of the U.N. General Assembly took place, where the resolution on establishing a commission to deal with the problems raised by the discovery of atomic energy was adopted.^[17] The Commission had four main areas of activities: the sharing of basic scientific information for peaceful purposes between all nations, control of nuclear power to the extent necessary to ensure its use only for peaceful purposes, elimination from national armaments of atomic weapons and all other major weapons adaptable to mass destruction, effective safeguards by way of inspections to protect complying states against the hazards.^[18] The Commission was mandated to submit its reports and recommendations to the U.N. Security Council.^[19]

At the same time, despite resistance from different groups, arms control planning moved forward in the U.S., where the Acheson-Lilienthal Report was adopted.^[20] The report called for the creation of an Atomic Development Authority (A.D.A.), outside or inside the United Nations system, that would take possession of all the earth's uranium and thorium deposits; the only known atomic energy sources. A.D.A. would also operate all critical facilities producing or utilizing nuclear energy.^[21] The report was very detailed and ambitious, including definitions of dangerous and non-dangerous activities involving atomic energy usage and the functions of A.D.A. and its organizational issues.^[22] According to the report, no nation or private organization would be allowed to engage in dangerous activities, thus prohibiting countries from operating atomic energy facilities that could be transformed into nuclear weapons plants. Non-dangerous and relatively non-dangerous activities would be left in the domain of individual states, including research (except for explosives) and the construction and operation of non-dangerous power-producing piles, under minimum supervision of the international organization.

On June 14, 1946, the United States presented to the Commission the Baruch Plan, a modification of the Acheson-Lilienthal report, and further deliberations took place at the Commission. There were two essential differences between the Acheson-Lilienthal report and the Baruch Plan. Similarly to the Acheson-Lilienthal report, the Baruch Plan proposed an International Atomic Development Authority with atomic energy ownership and control starting at the raw material stage. However, the difference was that according to the Baruch plan, the U.N. Security Council should be mandated to punish nations that violated it through sanctions. At the same time, it proposed that regarding atomic matters, all members of the Security Council should forfeit their veto power. According to Baruch, there should be no veto to protect those who violate their solemn agreement not to develop or use atomic energy for destructive purposes. In addition, the U.S. administration declared that the U.S. would destroy its nuclear arsenal once all arrangements were set in place. The document that served as a basis for negotiations was the Baruch Plan. 

However, there were certain disagreements related to the scope of the potential Treaty and several other important details, which were reflected in U.S.S.R. Foreign Affairs Minister Gromyko's response to the Baruch Plan (Gromyko's Plan).^[23] During the Commission's second meeting, Gromyko proposed to conclude an international convention prohibiting the production and employment of weapons based on the use of atomic energy for mass destruction. According to Gromyko, the object of such a Convention should be the prohibition and employment of nuclear weapons, the destruction of existing stocks (the U.S. stocks, since at that time only the U.S. had atomic weapons), followed by acts ensuring strict observation of obligations under the Convention and the taking of decisions related to sanctions applicable towards violators. During his speech, Gromyko proposed a Convention consisting of 8 articles, which committed parties not to use atomic weapons in any circumstances,^[24]prohibited the production and storing of such weapons,^[25] and called for the destruction of finished or unfinished stocks of weapons within three months from the date of entry into force of the Convention.^[26] The Convention also considered that within six months from the entry into force, the Parties should have introduced domestic legislation, which would entail several penalties for violating the Convention.^[27] Gromyko also declared that using atomic bombs is the most serious international crime against humanity,^[28] in connection with using nuclear energy for peaceful purposes, emphasizing the importance of sharing information amongst the States to build trust.

Gromyko's proposals were, in fact, the rejection of the Baruch Plan. The differences between them were apparent. Baruch proposed sanctioning the violating states by the United Nations, while Gromyko's proposals left the punishment in each State's domain, making the matter purely domestic. Baruch's proposals were significantly broader, and the prohibition of the use of nuclear weapons was only one element of the plan. In contrast, U.S.S.R. proposals only touched upon the ban on nuclear weapons. According to Baruch's plan, the countries could not maintain their veto power on nuclear issues, while for the U.S.S.R., keeping the right of veto was the essential condition.^[29] There were also divisions of opinion between the U.S and the U.S.S.R. on the timing of the destruction of existing nuclear weapons, the character of the international organization which should be established, as well as the matter of onsite inspections^[30] and perhaps the only element on which parties agreed with each other was the need to prohibit nuclear weapons. Eventually, after years of intensive work and deliberation, the Commission was dissolved without recording success in 1952. This has moved the nuclear arms control issue to other forums.