International Law and the Proliferation of Nuclear Weapons

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I. INTRODUCTION

International nuclear non-proliferation and disarmament efforts represent a unique synthesis between the theories and instruments of international law, international relations, and national security. States have long pursued international legal instruments - treaties, resolutions, conventions, etc. - to promote security interests. Since the time before the first nuclear weapon was tested in July of 1945, policymakers, diplomats and others have worried about the consequences of the increasing number of states developing or otherwise acquiring nuclear weapons, and have pursued international law as a means of controlling that threat. Indeed, the first resolution passed by the United Nations General Assembly called for the elimination of nuclear weapons.1 While the Cold War focused attention on efforts to control the bilateral U.S.-Soviet nuclear arms race, the demise of the superpower rivalry has shifted full attention to the proliferation question in arms control efforts.

Today, the international community recognizes that weapons of mass destruction, principally nuclear weapons, are the primary threat to international peace and security.2 To address this danger, a vast array of legal instruments have been assembled to maintain peace and security in the nuclear age by reducing existing nuclear arsenals, limiting the circumstances in which nuclear weapons may be used and preventing more nations from acquiring them. This article will argue that the system of international law built to control the spread of nuclear weapons is being weakened by the lack of progress by the nuclear weapon states4 toward fulfilling their nuclear disarmament commitments.

II. WORLD PEACE THROUGH WORLD LAW

International law, as it relates to the control and spread of nuclear weapons, consists of a collection of largely Cold War-era treaties predicated on the belief that both the spread and existence of large arsenals of nuclear weapons represent a threat to international peace and security. More importantly, these agreements, particularly those in the 1970s that placed limits on U.S. and Soviet nuclear arsenals, were based on the idea that nuclear arms limitations and arms reductions could not be undertaken unless done verifiably and in parallel.

The idea of enforceable, parallel and incremental arms reduction was explored in World Peace Through World Law, Louis Sohn and Grenville Clark's precedential book on enhancing the peacemaking and enforcing capacities of the United Nations.5 Sohn and Clark put forth a comprehensive plan for strengthening the UN Charter to give the organization broad powers to promote and enforce international peace.6 They argued that the key to lasting and sustainable world peace "lies in recognizing without reserve that there can in truth be `no peace without law,' and that for world order disarmament is indispensable."7 Mindful of the specter of increasingly large arsenals of increasingly destructive nuclear weapons spreading to an ever-growing number of nations, they argued that the traditional balance of power, i.e. efforts to prevent war through deterrence or a "balance of terror," would provide no solid assurance of peace." Sohn and Clark instead advocated a process through which all nations would verifiably, gradually, and in parallel relinquish their national military forces over a twelve-year period.9

Their proposal, first made in a 1953 document entitled Peace through Disarmament and Charter Revision, was offered in the context of a comprehensive plan for an effective system of enforceable world law. In addition to complete disarmament under international safeguards, Sohn and Clark advocated the creation of a system of laws against international violence including the use of force except in self defense, world judicial tribunals to interpret and apply laws, an international police force operated by the strengthened United Nations, and effective world machinery to mitigate global disparities between rich and poor nations, binding on all states. …

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