By Prof. Bharat H. Desai
The first week of August 2022 brought vivid memories of the lethal capacity of the nuclear bombs that were dropped on the Japanese cities of Hiroshima (6 August) and Nagasaki (9 August). It showed the destructive human streak for nuclear annihilation. The United Nations Secretary-General (UNSG) Antonio Guterres became the second UN chief to personally go to the Hiroshima bombsite in 2022 to share the collective grief of the Japanese people. The UNSG alerted the world about risk of nuclear miscalculation or misunderstanding. "Nuclear weapons are nonsense. They guarantee no safety - only death and destruction. Three quarters of a century later, we must ask what we've learned from the mushroom cloud that swelled above this city in 1945", the UNSG said on 6 August in exasperation.
Hiroshima-Nagasaki as a Metaphor
The world was stunned by the atomic bombs dropped by the US bombers on Hiroshima (Little Boy) and Nagasaki (Fat Boy) on 6 August and 9 August 1945, respectively. They instantly killed between 129,000 and 226,000 people and destroyed the infrastructure of both cities. Left with no choice, Japan surrendered on 15 August 1945 and brought to end the World War II. It seems, propelled by the prospects of the Russian advances that would have forced the Japanese to surrender to them, the US President Truman ordered dropping of nuclear bombs. “Japan was already defeated…dropping the bomb was completely unnecessary”, President Dwight Eisenhower said years later. Even Nobel Laurate Albert Einstein spoke out against the nuclear strikes on Japan that were “unjustified and motivated by US−Soviet politicking”. Einstein regretted for urging, in August 1939, President Roosevelt for an atomic weapons program.
After 71 years, on 27 May 2016, Barack Obama became the first sitting US President to appear at the Hiroshima bombsite. “We stand here in the middle of this city and force ourselves to imagine the moment the bomb fell...we listen to a silent cry…demonstrated that mankind possessed the means to destroy itself”, Obama spoke for the posterity, while laying wreath at Hiroshima Peace Memorial and bowed head in silence to pay homage to the departed souls. Obama did what people do when a place of horrific incident overwhelms.
Quest for Elimination of Nuclear Weapons
Over the last 77 years, global efforts have sought to realize the dream of nuclear weapons free world. The 1968 Non-Proliferation Treaty (NPT), with 192 parties, has been an important pillar. Now the Tenth Review Conference on the NPT (New York; 1-26 August 2022) is underway. On 1 August 2022, the UNSG’s address to the NPT review conference expressed grave concern that the “humanity is just one misunderstanding, one miscalculation away from nuclear annihilation”. “Almost 13,000 nuclear weapons are now being held in arsenals around the world”, Guterres said in inaugural address at the NPT Tenth Review. On 4 August, the US Ambassador Scheinman assured that “the United States will continue the long work toward eventual nuclear disarmament”.
The Tenth NPT Review is taking place after the 3 January 2022 Joint Statement of the Leaders of the Five Nuclear-Weapon States (China, France, Russia, the UK and the USA) for Preventing Nuclear War and avoiding Arms Races. “We affirm that a nuclear war cannot be won and must never be fought. As nuclear use would have far-reaching consequences, we also affirm that nuclear weapons—for as long as they continue to exist—should serve defensive purposes, deter aggression, and prevent war”, the joint statement proclaimed. They reiterated their commitment (NPT article VI) “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament”.
Delegitimizing Use of Nuclear Weapons
In June 2022, ahead of the NPT review, the International Campaign against Nuclear Weapons (ICAN) carried out legal analysis that shows nuclear arsenals of nuclear weapons states have only grown considerably. Did they pursue negotiations in good faith (NPT article VI obligation) to end the nuclear arms race? In the aftermath of the 24 February 2022 Russian special military operation in Ukraine to protect people “facing humiliation and genocide perpetrated in the Kiev regime”. In the wake of sanctions and NATO inching closer, the Russian drawing of ‘red lines’ on the use of nuclear weapons did cause global consternation.
There is a Comprehensive Nuclear-Test-Ban Treaty (CTBT) adopted vide the General Assembly resolution 50/245 on 10 September 1996. It requires ratification by “all States listed in Annex 2 to the Treaty”. The basic obligation under CTBT would be “not to carry out any nuclear weapon test explosion or any other nuclear explosion”. As on 1 August 2022, 174 states have ratified CTBT. Still, seven are left (US; China; India; Pakistan; Israel; Iran; North Korea), out of 44 states (Annex 2, Article XIV) whose ratification is essential for CTBT to come into force.
Interestingly, all the states swear by the ultimate objective of elimination of nuclear weapons. Upon request of the UN General Assembly, the International Court of Justice gave an advisory opinion (8 July 1996) on Legality of the Threat or Use of Nuclear Weapons that echoed (paragraph 105 (2) E) Yudhishthira’s ambivalence (अश्वथाम हतः नरो वा कुञ्जरोवा) in the Mahabharata war, by taking a strange view that “in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively 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”. Contrary to the view of many International Law scholars that the ICJ declared a non-liquet (no law), this author argued in a seminal work (1997 IJIL 37 (2) 218) that the Court could not do so since such an interpretation “would be contrary to the law of the Charter and other corpus juris on the matter and, indeed to the totality of international law”. It drew signed letters (in pre-internet days) from at least six ICJ judges (on file with the author).
In the case of India, even after the emphatic position before the ICJ (20 June 1995) that “the threat or use of nuclear weapons in any circumstance…is illegal or unlawful under international law”, notwithstanding going nuclear in 11-13 May 1998 (ISQ 58 (3). 342-362. 2021) and pronouncing a no-first use doctrine on 4 January 2003, it still swears by the “commitment to the goal of a nuclear weapon free world, through global, verifiable and non-discriminatory nuclear disarmament”.
Ironically, a plenty of technical barriers still remain in the operationalization of the existing international legal instruments for the elimination nuclear weapons. These arise from the basic human insecurity and the streak of nuclear weapon states to dominate non-nuclear states. Time shall have to bring sanity among those who ‘swear by the sword’ of nuclear weapons by delegitimizing their use for survival of life on our only one earth.
Professor Dr. Bharat H. Desai is Jawaharlal Nehru Chair and Professor of International Law at the Centre for International Legal Studies of SIS, JNU. He coordinated the Making SIS Visible initiative (2008-2013) as well as Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and is the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam)