India's five underground nuclear
explosions detonated on May 11-13, 1998, raise
such international law questions as these:
Is India prohibited by any applicable treaty
or customary rule of international law from
testing or possessing nuclear weapons? Is
there any other source of international law
that might prohibit India's testing or possessing
nuclear weapons? If India may test and possess
them, under what circumstances would it be
lawful to use them? Do India's tests provide
any other states, such as Pakistan, with legal
justification to conduct their own nuclear
tests?
In September 1996 the United
Nations General Assembly adopted the Comprehensive
Test Ban Treaty, which would prohibit states
parties from carrying out any nuclear weapons
test explosion. India did not sign the treaty,
and it is not in force. It will not enter
into force until 180 days after 44 named states
ratify it. India is one of those named states,
and thus can unilaterally preclude the treaty
from entering into force..
Nor is India a party to the
Nuclear Nonproliferation Treaty (NPT). Thus,
even though the NPT is in force, India is
not bound by the direct undertaking on the
part of non-nuclear weapon states parties
to the NPT to refrain from manufacturing or
otherwise acquiring nuclear weapons.
In July 1996 the International
Court of Justice (the World Court) issued
an advisory opinion at the request of the
UN General Assembly, on The Legality of the
Threat or Use of Nuclear Weapons. The Court
found no generally-applicable treaty or customary
rule specifically prohibiting the threat or
use of nuclear weapons as such. Nor did it
find an indirect prohibition stemming from
international environmental law. Nevertheless,
it held that any threat or use of nuclear
weapons would have to meet all the requirements
of self-defense as set out in Article 51 of
the UN Charter, would have to be compatible
with the humanitarian law of war (which seeks
to limit unnecessary harm during wartime,
particularly to noncombatants and nonmilitary
property), and would have to comply with any
specific obligations (such as regional or
bilateral treaties) which expressly deal with
nuclear weapons. But the World Court was deeply
split on the ultimate legal consequences of
these points. By a tie vote, with the President
of the Court casting a deciding vote, the
Court concluded:
It follows from the above-mentioned
requirements that the threat or use of nuclear
weapons would generally be contrary to the
rules of international law applicable in armed
conflict, and in particular the principles
and rules of humanitarian law;
However, 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.
India has asserted that it
needs nuclear weapons for self-defense, and
that its current series of underground testing
is necessary to develop those weapons. To
support its assertion, India points to a nuclear
power, China, on its border, and to a putative
nuclear power, Pakistan, with which it has
had serious conflict, also on its border.
Since the World Court was not able to conclude
definitively that the use of nuclear weapons
by India or any other nuclear-weapons state
would be unlawful under all circumstances,
India has some room to argue that its development
of nuclear weapons has the legitimate purpose
of ultimate self defense. If so, testing-an
integral part of development, at least at
the stage at which India finds itself-would
arguably be permissible, at least if it is
credible that the weapons could be needed
to preserve the survival of the state.
In April the Indian Defense
Minister, George Fernandez, reportedly told
the U.S. Ambassador to the United Nations,
Bill Richardson, that India was in the process
of a national defense review and planned no
nuclear testing. Moreover, in March he said
publicly that the decision on atomic weapons
would depend on a thorough strategic review.
The review apparently had not been concluded
when the tests occurred. If India did perform
the tests without conducting what its Defense
Minister said was a needed defense review,
it may be hard pressed to show that there
is a real necessity at this time to have an
operable nuclear capability for self-defense.
It is arguable that the Indian
Defense Minister's statements of intention
created an obligation similar to a treaty
obligation under international law to refrain
from from nuclear testing until the defense
review had been completed and had shown the
need for testing in self defense. In a 1974
case the World Court said that French government
assurances to the world at large that it would
terminate atmospheric nuclear tests amounted
to a legal undertaking to the international
community that French atmospheric testing
would cease. As a result, the Court declined
to hear a case brought by Australia and New
Zealand against France seeking the Court's
judgment that atmospheric nuclear tests are
unlawful in themselves. It is not certain,
however, that the Indian Defense Minister's
statements would be regarded as solemn undertakings
(relating to abstention from any testing in
the absence of a completed review showing
necessity) in the same sense as the French
government's assurances (relating to abstention
from atmospheric testing) were.
There is one more aspect of
the World Court's 1996 advisory opinion on
Nuclear Weapons that could affect India's
freedom to test. The Court concluded, unanimously,
that "There exists an obligation to pursue
in good faith and bring to a conclusion negotiations
leading to nuclear disarmament in all its
aspects under strict and effective international
control." Although it relied in part on the
NPT for this obligation, it did not limit
the obligation to NPT states parties. One
could argue that India's continuing development
of its nuclear warfare capability, as evidenced
by the tests, runs counter to that good-faith
obligation-particularly when the obvious risk
of nuclear proliferation on the Indian subcontinent
is taken into account. On the other hand,
it could be argued that as the stakes rise,
the incentive for meaningful disarmament negotiations
rises as well, even in the case of acknowledged
nuclear powers. If India genuinely intends
to pursue those negotiations seriously and
in a timely manner, its tests would not necessarily
run counter to its good faith duty.
Finally, India's nuclear tests strengthen
Pakistan's self-defense rationale if Pakistan
should now decide to conduct its own nuclear
tests. Pakistan may argue that past experience
and current tensions make it impossible to
be assured that India's nuclear capability
is purely defensive. Pakistan may also argue
that it cannot simply rely on statements from
acknowledged nuclear powers that they would
defend Pakistan from any Indian nuclear attack.
Any Pakistani tests could in turn strengthen
India's self-defense argument, and an arms
race at the nuclear level could be on.
About
the author:
Frederic L. Kirgis is Law School Association
Alumni Professor at Washington and Lee University
School of Law. He has written a book and several
articles on United Nations law, and is a member
of the Board of Editors of the American
Journal of International Law.
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