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A Legal Path to a Nuclear Weapons Free World

A Legal Path to a Nuclear Weapons Free World

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Published by marco saba
A Legal Path to a Nuclear Weapons Free World
A Legal Path to a Nuclear Weapons Free World

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Published by: marco saba on Nov 08, 2013
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Austrian Review of International and European Law
15
: 159-172, 2010.© 2013 Koninklijke Brill NV. Printed in the Netherlands.
A Legal Path to a Nuclear Weapons Free World
Peter Weiss
*
Sometimes satire brings you closer to the truth than bare facts. In 1964 a
lm was launched which few who have seen it will ever forget. It was called ‘Dr. Strangelove – How I Learned to Stop Worrying and Love the Bomb’ and dealt with a hypothetical nuclear war between the Soviet Union and the United States, set off as a
rst strike by an American general. Forty six years later, opinion in the nuclear weapons countries and their allies is still divided between those who believe that ‘the bomb’ has kept the peace between old and new enemies and those who fear that the longer nuclear weapons remain in the world’s arsenals the greater is the possibility, if not of a full-
edged nuclear war, at least of a nuclear explosion with dreadful consequences. But
 grosso modo
 the horror is gone. What was once called omnicide or nuclear winter has become another equation to be solved in the complex math of world governance. This article will brie
y trace the role which law has played in attempts to hold the bomb at bay and will then focus on a legal instrument through which this objective can be achieved, the Model Nuclear Weapons Convention (MNWC)
1
.
*
J.D. Yale 1952, President, Lawyers Committee on Nuclear Policy; Vice President and former President, International Association of Lawyers Against Nuclear Arms; Counsel to the Government of Malaysia in the ICJ Nuclear Weapons Case, 1995. This article is based in part on an earlier article by the same author, ‘Taking the Law Seriously: The Imperative Need for a Nuclear Weapons Convention’, 34 Fordham Journal of International Law 776 (2011). I have also greatly bene
ted from consulting an article to be published in the same issue, C. J. Moxley Jr./J. Burroughs/J. Granoff, ‘Nuclear Weapons and Compliance with International Humanitarian Law and the Nuclear Non-Proliferation Treaty’.
1
 Model Nuclear Weapons Conventions (revised version, 2007), UN Doc. A/62/650 (Annex), also available at http://www.icanw.org/ 
les/NWC-english.pdf (last visited 15 August 2011).
 
160
 Austrian Review of International and European Law
I. Early History
The
rst atomic explosion occurred at the US Army White Sands Proving Ground in the New Mexico desert on 16 July 1945. Its appalling enormity prompted Robert Oppenheimer, the scientist in charge of the atomic bomb project, to utter these words from the Baghavad Gita: ‘Now I am become death, the destroyer of worlds.’
2
 A
ssion bomb was dropped on Hiroshima on 6 August 1945 and a thermonuclear bomb on Nagasaki on August 9. It is estimated that within
ve years at least 200,000 people died from the effect of the bombing of Hiroshima
3
 and about 150,000 died within
ve years in Nagasaki. The of 
cial version is that both drops were necessary to bring Japan to its knees, but this has been disputed by a number of historians.
4
 The very
rst resolution adopted by the UN General Assembly on 24 January 1946 called for ‘The Establishment of a Commission to Deal with the Problem Raised by the Discovery of Atomic Energy’.
5
 It instructed the commission to make speci
c proposals for
a. extending between all nations the exchange of scienti
c information for peaceful ends;b. the control of atomic energy to the extent necessary to ensure its use only for peaceful purposes;c. the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction; d. effective safeguards by way of inspection and other means to protect complying states against the hazards of violations and evasions.
The Faustian bargain between the
rst of these four elements – universal access to nuclear technology for peaceful ends – and the other three – ensuring that this new source of energy would not repeat the dreadful
2
 See http://www.youtube.com/watch?v=n8H7Jibx-c0&NR=1 (last visited 15 August 2011).
3
 US Department of Energy, ‘Atomic Bombing of Hiroshima’, The Manhattan Project, 13 May 2008.
4
 See,
e.g.
, G. Alperovitz, ‘Hiroshima: Historians Reassess’, 99 Foreign Policy (1995), 15.
5
 UNGA – Res. 1 (I), The Establishment of a Commission to Deal with the Problem Raised by the Discovery of Atomic Energy, 24 January 1946, 1 UN GAOR, 9, UN Doc. A/RES/1 (I).
 
 A Legal Path to a Nuclear Weapons Free World
 
161
history of Hiroshima and Nagasaki – to this day has never ceased to plague international and domestic lawgivers. On 16 June 1946, Bernard Baruch, the US representative to the newly created United Nations Atomic Energy Commission, presented his plan for implementing the mandate of the General Assembly resolution to the commission.
6
 He began by saying: We are here to make a choice between the quick and the dead. […] Behind the black portent of the new atomic age lies a hope which, seized upon with faith, can work our salvation. If we fail, then we have damned every man to be the slave of Fear. Let us not deceive ourselves: We must elect World Peace or World Destruction.
7
The Baruch Plan proposed the establishment of an International Atomic Development Authority, which was to control all aspects of atomic activity, including cessation of the manufacture of atomic bombs and disposal of existing weapons. But there was a catch, expressed as follows:[b]efore a country is ready to relinquish any winning weapons it must have more than words to reassure it. It must have a guarantee of safety, not only against the offenders in the atomic area, but against the illegal users of other weapons - bacteriological, biological, gas - perhaps - why not! - against war itself.
8
The Soviet Union was not willing to accept this reservation. It offered a counter-proposal, simply banning the use and possession of all nuclear weapons, which the United States, in turn, rejected. As a result, what could have been a convention creating a nuclear weapons free world wound up on the scrap heap of history and the nuclear arms race, fueled by the cold war, was on (the
rst Soviet nuclear device was detonated on 29 August 1949).
6
 ‘The Baruch Plan’, presented to the UN Atomic Energy Commission, 14 June 1946, available at http://www.atomicarchive.com/Docs/Deterrence/BaruchPlan.shtml (last visited August 15, 2011).
7
 
 Ibid.
8
 
 Ibid 
.

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