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Third observation: The extreme circumstance provision was only - only - a statement of inability to reach a conclusion, and in no way a recognition of the legitimacy of threat or use in such a circumstance. The remarks of President Bedjaoui underlining this simple point are critical here. I wish to draw attention to a little remarked statement of Bedjaoui's: The opinion reflects "a current trend towards the replacement of one rule of international law by another, where the first is already defunct and its successor does not yet exist". Here Bedjaoui is saying that the norm of absolute prohibition of threat or use is emerging.

This is not just idle chatter on Bedjaoui's part. Let me give an example. In the negotiation of Protocol I to the Geneva Conventions, the nuclear weapon states resisted subjecting nuclear weapons to developing international law regarding environmental damage. For this reason, the Court while noting the relevance of environmental consequences in assessing the necessity and proportionality of threat or use of nuclear weapons had been unable to clearly state a universally binding rule.

But just two years after the advisory opinion, we find the following rule accepted, including by US negotiators, as binding customary law in the Statute of the International Criminal Court: it is a war crime to intentionally launch an attack in the knowledge that it will cause "widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated".

Now let us apply the normative framework represented but not wholly captured by the ICJ opinion to present day deterrence doctrines.

First, the threat of certain massive retaliation against nuclear attack. For the United States, at least, this threat is based on targeting of nuclear facilities, other military capabilities, and allegedly war-related industry and infrastructure. It is not targeting of civilian populations per se. As General Lee Butler has pointed out, this is a plan which makes most sense if executed preemptively. So massive retaliation is operationally closely associated with the maintenance of a first strike capability.

But massive retaliation, whether as a matter of first or second use, causes civilian injury and death at the same order of magnitude as a direct attack on civilian populations. So it is clearly barred by the prohibition of the infliction of indiscriminate harm.

Second, the option of first use in response to an overwhelming conventional attack. It is doubtful this option can meet the requirements of necessity and proportionality. In any event, it would violate the rules protecting civilians and combatants against indiscriminate and unnecessary harm, and the rules protecting neutral nations and the environment.

Third, the option of first use in defense of vital interests. Illegal for the same reasons, and in most cases also barred by the negative security assurances given parties to NWFZS and to the NPT.

Fourth, the option of first use in response to the threat or use of chemical and biological weapons. This of course is the scenario that has been most prominent in efforts in the United States to relegitimize nuclear weapons. No one should underestimate the strength of these efforts. Again illegal for the same reasons, the prohibitions of inflicting indiscriminate harm, unnecessary suffering, damage to the environment, harm to neutral nations, etc. Arguably also contrary to negative security assurances, though this is not as clear as one might like in the case of an actual attack with chemical or biological weapons where a nuclear response could be defended as a reprisal aimed at stopping further illegal attacks with chemical or biological weapons.

Compare here the law on retaliatory use of chemical and biological weapons. Clearly prohibited in the case of chemical weapons; the CWC says chemical weapons "shall never in any circumstance" be used. No such clear prohibition in the case of biological weapons, but one never hears the argument that biological reprisals are permissible.

So why should nuclear reprisals, in any circumstance, still less nuclear preemptions, be permissible? They should not be, and under the emerging rule identified by Bedjaoui, they are not.

What then of "reducing the role of nuclear weapons in security doctrines"? One can propose that the inviolability of negative security assurances be recognized and legally confirmed, including in the case of chemical or biological attacks; that the option of first use in defense of vital interests or against overwhelming conventional attack be repudiated; that the doctrine of certain massive retaliation against nuclear attack be abandoned. This would leave, at most, extremely selective nuclear response to a nuclear attack, aimed only at stopping further nuclear attacks; the recommendation of the National Academy of Sciences committee.

And much discussion of "reducing the role of nuclear weapons in security doctrines" proceeds along these lines. I wish to leave you with the following question, however. Did the ICJ have it right in saying that at present the only uncertainty resides with respect to an attack jeopardizing the very survival of a state? And with some imagination, it must be admitted that such attacks can come in a variety of forms - they need not only be nuclear. And therefore, is it not the case that the "reducing the role of nuclear weapons in security doctrines" must, as is true now of chemical and biological weapons, boil down to the conclusion that nuclear weapons must never be used or threatened to be used, whatever the circumstance? That this is the emerging rule alluded to by Bedjaoui. And that this rule leads, as it does for chemical and biological weapons, as the ICJ unanimously recognized, to a recognition of the imperative of eliminating nuclear weapons globally as the companion to the imperative of non-use?

I end with the words of Judge Weeramantry, who identified, like Bedjaoui, the direction of the Court's opinion: "A global regime which makes safety the result of terror and can speak of survival and annihilation as twin alternatives makes peace and human future dependent upon terror. This is not a basis for world order which this Court can endorse." Neither can we endorse terror as a basis for world order. The only viable basis is a reaffirmation of the centrality of morality and law.

Los Alamos Study Group • 2901 Summit Place NE • Albuquerque, NM 87106 • ph 505-265-1200

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