Nuclear Weapons and Law

By Arthur Selwyn Miller; Martin Feinrider | Go to book overview

7.

Toward a Legal Regime for Nuclear Weapons *

Richard Falk**


I.The Ultimate International Law Challenge

Nuclear weapons have inevitably placed a normative strain on political leaders. 1 This strain was “managed” during the first three decades after 1945 in various ways: by periodic calls for disarmament, by a general Western policy that emphasized defense against aggression and by a diplomacy that from the 1960s onwards sought arms control arrangements to abate the arms race and maintain public confidence in the stability of the overall nuclear situation. More recently, the rising costs and dangers of a quickening arms race have given rise to widespread public anxiety in North America, Western Europe and Japan about the relationship of nuclear weapons to the security of states and to the viability of a global political order constituted principally, but not exclusively, by sovereign states. 2

* Reprinted, with permission, from McGill Law Journal, Volume 28, Number 3 (1983).

** Of the Woodrow Wilson School of Public and International Affairs, Princeton University, and co-author, with Robert J. Lifton, of Indefensible Weapons: The Political and Psychological Case Against Nuclearism (1982), and a Senior Fellow of the World Policy Institute.

1 “Normative” is used throughout this article to encompass legal, moral, cultural, and biological standards which help draw boundaries between what is morally permissible and appropriate and what is morally impermissible and inappropriate at different levels of societal organization. The focus of this article is upon the interplay between legal norms and the nation-state, in relation to external uses of military power, and more particularly, to reliance on nuclear weapons. In the context of the law of war, there has always been a strong relationship of coherence among these various sources of normative authority. There has also always been a tension between the power orientation of the modern state and the acceptance of normative guidelines in relation to issues of war and peace. This tension has been made more serious in recent decades as a consequence of the steady application of technological innovation to warfare, in a way that makes adherence to normative guidelines strike political leaders as unrealistic. In a sense, this “unrealistic” demand for a modification of such policy prerogatives lies at the core of the current renewed normative inquiry into the status and role of nuclear weapons.

2 This anxiety also reflects the erosion of the United Nations' position as a source of normative authority, constituted originally to counterbalance and eventually modify the power-centered, fragmented behavior of independent sovereign states and such alliances of these states which aggregate like-minded and partisan political attitudes. The combined effect of the growing dominance of the state over internal political, economic and cultural spheres of action and belief, and its autonomy (or sovereignty) in relation to supranational frameworks, especially in matters of national security, fosters an impression that such states operate in a normative vacuum, especially the superpowers. For a discussion of these depressing dual aspects of the international situation, see Falk, Nuclear Weapons and the End of Democracy (1982) 2 Praxis Int'l 1; and Falk, “The Decline of International Order: Normative Regression and Geopolitical Maelstrom” in Yearbook of World Affairs 1982 (1982) 10.

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