Harry H. Almond, Jr.*
Major policies are engaged when states prepare themselves for warfare, for their security, and for self-defense. Major policies are engaged, in general, whenever a nation decides that it must resort to the use of force and justify that use before the global community it shares. States in the past have recognized, and in the foreseeable future will continue to recognize, that certain uses of force are permissible, even justifiable on the highest moral principles relating to their survival. The legality of nuclear weapons is accordingly examined in this paper in a policy-oriented perspective.
Law is conceived as part of the authoritative decision flow, and the shaping of law is perceived as a continuing process aimed at policy goals and policy-oriented objectives. Conceived in the policy dimensions, we are enabled to analyze law in terms of policy functions—to avoid the limitations imposed by insisting that law is sufficient because treaties have been drafted, or because the prescriptions, through instruments or international agreements, or otherwise, have been laid down. Moreover, this conception puts particular stress on customary international law, because that law develops both in terms of prescription and application, each, in a sense, synergistically reinforcing and supporting the other function.
The legality of nuclear weapons is most appropriately analyzed against the deployment and use of such weapons to maintain the checks and balancing equilibrium associated with the establishment of deterrence under the major arms control agreements. Such an analysis necessarily compels us
* Professor of International Law, National War College, Washington, D.C. This paper is based upon but an enlargement of a presentation made at the Conference on Nuclear Weapons and Law held at Nova University Center for the Study of Law on February 5, 1983. None of the views or statements in this paper should be attributed to the United States Government or any of its agencies, nor to the National War College; the views expressed herein are entirely those of the author.