Nuclear Weapons and Law

Saul Mendlovitz**

Let me continue some of the questing aspirational emphasis which Ved Nanda has initiated. I shall take his discussion somewhat further afield, but bring it back in a way which I hope will provide an appropriate context for understanding the reality of the right to peace.

I am struck by the fact that when one looks at the question of human rights beginning with what I would call the modern era—and let me fix that at 1648 with the Treaty of Westphalia, ¹ so that at least my fellow international law colleagues will have a comfortable, if somewhat cliche, resting place—there are two, perhaps two and one-half, periods in the history of the emergence of human rights. First, and most familiar, are the political and civil rights which arose out of the bourgeois revolutions, the American and the French; one, we should remind ourselves, was a war of “national liberation” of the colonies against a “tyrant” king, the other, a spreading republicanism, or democracy, if you will, against an absolute monarch. For our purposes, the content of these rights, which are associated with western liberal democracies, need not be reviewed. There are, however, three common conditions or attributes in both the United States and French revolutions which are of import in understanding the possibility and content of the right to peace.

First, as already noted, these rights emerged out of violent revolution or armed struggle. Second, in carrying out these struggles, the revolutionaries deemed it of highest importance to issue a statement or declaration—in the one case of Independence, ² and in the other, the Rights of Man ³—in which moral

* Reprinted, with permission, from the Brooklyn Journal of International Law, Volume 9, Number 2 (1983).

** Professor of Law, Rutgers Law School (Newark); Director, World Order Models Project, Institute For World Order. These remarks are the author's restatement and modification of a seminal piece by Stephen P. Marks, Emerging Human Rights: A New Generation for the 1980's?, 33 Rutgers L. Rev. 435 (1981) (Symposium Issue on International Conflicts, Law and a Just World Order).

1. Treaty of Westphalia, Oct. 4, 1648, Holy Roman Empire—France, reprinted in 1 A.TOYNBEE, MAJOR PEACE TREATIES OF MODERN HISTORY 1648-1967, at 7-49 (F. Israel ed. 1967).

2. The Declaration of Independence (U.S. 1776).

3. Declaration of the Rights of Man and of the Citizen, reprinted in A.PEASLEE, CONSTITUTIONS OF NATIONS 20 (2d ed. 1956).

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