Nuclear Weapons, Ethics, Morals, and Law

Bullets kill men, but atomic bombs kill cities. A tank is a defense against a bullet, but there is no defense against a weapon that can destroy civilization .... Our defense is law and order.1 I. INTRODUCTION The nuclear weapons age began at 5:29:45 a.m. Mountain War Time, July 16, 1945, when the first atom bomb was tested in a portion of the bleak barren Alamogordo bombing range in the New Mexico desert chillingly named tornado de Muerto (Journey of Death).2 After the thunderous roar of the shock wave, a huge pillar of smoke rose 30,000 feet, creating the first icon of the nuclear age-the fearsome mushroom cloud. A blast of energy of unprecedented3 destructive magnitude bathed the surrounding mountain range in a brilliant light that could be seen 150 miles away. J. Robert Oppenheimer, Director of the Los Alamos Laboratory, the organization responsible for the design of the first atomic bomb as part of the Manhattan Engineer District of the War Department, uttered a sober description from the Hindu scripture, the Bhagavad-Gita: "`Now I am become Death, destroyer of worlds.'"4 The new millennium begins with 32,000 nuclear bombs5 possessed by eight nations containing 5,000 megatons of destructive energy.6 This is a global arsenal more than sufficient to destroy the world.7 The United Nations Charter was drafted without the full recognition of the dangers posed by nuclear weapons.8 The very first resolution9 adopted by the General Assembly of the United Nations called for the elimination of atomic bombs. The Treaty on the NonProliferation of Nuclear Weapons (hereinafter the NPT or the Treaty)10 supplements the Charter and is now, with 187 states parties, the most adhered-to treaty in the world. Designed to stop the proliferation of nuclear weapons, it contains five commitments: "acceptance of a political and moral norm against the possession of nuclear weapons; an obligation to eliminate existing stocks; international cooperation in the peaceful uses of energy; special assistance to developing countries; and measures to ensure a world free of nuclear weapons."11 The Treaty entered into force on March 5, 1970, for a twenty-five year period and was indefinitely renewed in 1995.12 In essence, it promises a world in which nuclear weapons are eliminated and technological cooperation is widespread.13 The five declared nuclear weapon states 14-United States, United Kingdom, Russia, China, and France-have solemnly obligated themselves under Article VI of the NPT to nuclear disarmament.15 At the 2000 Review Conference of the NPT, April 24 through May 20, 2000, at the United Nations in New York City, all parties to the Treaty, including the five nuclear weapon states, affirmed "[a]n unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament to which all States parties are committed under Article VI."16 This legal duty does not contain an enforceable timeline. Many of the 182 non-nuclear weapon states parties to the NPT have been induced to legally bind themselves, under the NPT, to refrain from developing nuclear weapons by the commitment of the nuclear weapon states to negotiate nuclear disarmament.17 The Treaty's nonproliferation requirements are recognized as serious and weighty; the nuclear disarmament commitments will not be accomplished without greater political pressure. There is inadequate public understanding of the political,18 scientific,19 legal,20 ethical,21 moral,22 and military23 dimensions of nuclear weapon policy, including preparedness for use.24 Such difficulty may arise because the weapons' effects actually outstrip our imagination.25 The proportion of the fireball in relation to the size of the nuclear device is very difficult to imagine. Their destructive capacity makes them awesome to contemplate,26 and the policies that generated the arsenals are not always amenable to common sense27 or our normal uses of language. …