Legality of Nuclear Demonstration Shots in Wartime
Posted: July 8, 2016 Filed under: Nuclear 14 CommentsI’m very pleased to host a guest post by Theodore Richard, an attorney with the United States Strategic Command (USSTRATCOM). The piece is on the fascinating topic of “nuclear demonstration shots” during armed conflict. I confess that I had never heard of this concept. In the piece, the author argues that such demonstration shots are, in theory, not in violation of international law. I’ll jump in in the comments section with some thoughts and questions, and of course I encourage others to do the same, in a collegial and engaging manner.
The author wishes to make it clear that the views expressed in this article are solely those of the author and do not reflect the official policy or position of the DoD or the U.S. Government.
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Legality of Nuclear Demonstration Shots in Wartime
By Theodore Richard
Dr. Justin Anderson posted an article and follow up about the application of the laws of war to the potential use of nuclear weapons. One point he made was that not every potential use of nuclear weapons would have catastrophic humanitarian consequences. He provided examples, specifically identifying a high altitude demonstration shot as having limited humanitarian consequences.
This example, however, generates a question about the legality of potential nuclear demonstration shots. Could it be possible to interpret the 1963 Limited Test Ban Treaty (LTBT) as prohibiting wartime use of nuclear weapons, including demonstration shots? Neither the United States nor the Soviet Union held such a view during the Cold War. In the early 1980s, the Washington Post reported that in the event of a Soviet invasion, NATO contemplated whether its “first use” of a nuclear weapon in response should be a demonstration shot detonated over empty water to show resolve.
At a glance, the first paragraph of the LTBT might appear to support the prohibition of this or any demonstration shot. It says, “Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: … in the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas… .”
The treaty, however, does not support that interpretation when looking at the entire document, including its historical background. The complete reading, rather than an assessment of isolated text, is necessary to understand the treaty’s meaning. Article 31 of the Vienna Convention on the Law of Treaties holds that a treaty is to be interpreted in accordance with the plain meaning of terms, in their context, and in light of the treaty’s object and purpose. The United States and Soviet position in 1963 was that the treaty prohibited testing, not wartime use. The treaty’s scope is limited in the title, which establishes that the treaty’s object and purpose is limited to testing. The treaty’s text then further defines the prohibition as to testing within the atmosphere, outer space, or the oceans.
President Kennedy made this point clear in 1963, when he explained the LTBT to the nation. He clarified that the LTBT only restricted nuclear testing. The treaty would not “mean an end to the threat of nuclear war. It will not reduce nuclear stockpiles; it will not halt the production of nuclear weapons; it will not restrict their use in time of war.”
Although Secretary of State Dean Rusk and the White House Special Counsel Ted Sorensen thought that applying the LTBT to wartime use was “far-fetched,” others were concerned that the LTBT might be read in a way to prohibit wartime use. Ultimately, the United States asked for the Soviet position on the question. Soviet Foreign Minister Gromyko was presented with the “possibility that Article One might be read to outlaw use of nuclear weapons in war. Gromyko looked baffled. He said ‘this treaty deals with the prohibition of nuclear tests in three environments. Of course it is not a prohibition of nuclear weapons or weapons in general, although the USSR is in favor of general and complete disarmament. The scope of the treaty is self-explanatory.’”
Similarly, Secretary Rusk told the Joint Chiefs of Staff in August 1963, “Article I of the treaty in no way inhibited our ability to use nuclear weapons in either general or limited hostilities and pointed out that this had been made categorically clear in the President’s speech, the Secretary’s speech at the time of signing the treaty, the President’s message transmitting the treaty to the Senate, and the Secretary’s testimony before the Foreign Relations Committee. It was not a ‘ban the bomb’ treaty. Mr Harriman stated that, when he had raised the subject with Gromyko, the latter had appeared to be baffled as to our reason for raising the question.”
Could other treaties limit nuclear demonstration shots during wartime? They were not prohibited by the 1899 or 1907 Hague Conventions, nor by the 1949 Geneva Conventions. The other potential source would be the 1977 Additional Protocol I to the Geneva Conventions, but it was negotiated with the understanding that it applied only to conventional weapons. Even if it did apply, it would not necessarily prohibit a demonstration or warning shot where neither the adversary nor a civilian population was actually affected because such a shot would not rise to the level of an attack under Article 49.
If the concern relates to an electromagnetic pulse (EMP) generated from the blast adversely impacting civilians, then Article 52(2) of Additional Protocol I would require the EMP effects to be directed against a legitimate military objective; Article 57 would require an attacker to take feasible precautions to avoid civilian loss of life and property damage; and Article 51(5)(b) would require the effects be proportional (meaning that the expected loss of civilian life, injury to civilians, and damage to civilian objects cannot be excessive in relation to the concrete and direct military advantage anticipated from the EMP).
While the United States has rejected Additional Protocol I for ratification and rejects the applicability of its new rules, it applies fundamental principles of the law of war to nuclear weapon use. Thus, the United States would still evaluate demonstration shots for compliance with longstanding, fundamental rules of warfare. Wartime demonstration shots would not be prohibited by any currently existing treaty unless they otherwise violate the law of war.
Arms Control Law 
So yes, this is the first time I’ve heard of the idea of detonating a nuclear weapon over the open ocean, in the atmosphere, as part of an armed conflict strategy purposed to “show resolve” to the enemy. Reading over your article, Theodore, I think I can get on board with your arguments about the Partial Test Ban Treaty, and that such a use of nuclear weapons in armed conflict would fall outside of the remit of that treaty. I also can see how most of the basic principles of the law of armed conflict wouldn’t apply either, e.g. discrimination and proportionality, because there is no target, and no likely direct civilian casualties.
But I suppose the biggest concern I would have would be the environmental damage certain to be caused by such a detonation. The applicable law would be in Articles 35 and 55 of Additional Protocol I, as well as in environmental protection treaties, and human rights treaties. This UN report gives a pretty comprehensive rundown of the applicable legal principles:
Click to access int_law.pdf
I don’t think I would agree that AP I is not applicable to the use of nuclear weapons in armed conflict. It certainly doesn’t say that it is limited to conventional weapons. And while the U.S. is not a party to API, the ICRC in its study of customary international humanitarian law found that the prohibition in AP I on the use of methods or means of warfare that may be expected “to cause widespread, long-term and severe damage to the natural environment” had been established in parallel customary law.
What would you say in response to these concerns about environmental damage caused by a nuclear demonstration shot?
Great question. You are raising several issues which have been debated for years. Regarding your specific question on environmental damage and the law–the U.S. responded to the ICRC study on customary international law and rejected the finding that the prohibition on “The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment… .”
Click to access irrc_866_bellinger.pdf
According to the State Department response,
“In addition to maintaining that Articles 35(3) and 55 are not customary international law with regard to the use of weapons generally, specially affected States possessing nuclear weapon capabilities have asserted repeatedly that these articles do not apply to the use of nuclear weapons. For instance, certain specially affected States such as the United States, the United Kingdom, Russia, and France so argued in submissions to the International Court of Justice (‘‘ICJ’’).”
That said, to the extent environmental damage would cause the subsequent loss of civilian life or damage to property, then the action would need to be proportional.
Thanks for that interesting post . It is just , that one should consider also , constitutional purposes of treaties concerned of such . The INF treaty for example , states clearly in its preamble :
” Guided by the objective of strengthening strategic stability,”
End of quotation :
So , how such shot of demonstration , may strength strategic stability ?? Such impact , such shot presented , may only enhance future races ( at least ) . And more from the LTBT itself ( preamble ) :
” …..and eliminate the incentive to the production and testing of all kinds of weapons, including nuclear weapons,”
End of quotation :
So , it would enhance the incentive for production and testing of nuclear weapons . And more :
” ……. and desiring to put an end to the contamination of mans environment by radioactive substances, ”
End of quotation :
And how would it put an end to contaminations ?? So , even if it has deterrent impact , yet , legally , seems to contradict clearly , constitutional purposes .
Thanks
Thanks for the question. According to the Vienna Convention on the Law of Treaties, a preamble may provide context for the instrument.
Click to access volume-1155-I-18232-English.pdf
As the UK explained to the International Court of Justice:
“the preambles, substantive provisions and drafting histories of the various treaties which have deait with the question of nuclear weapons clearly place those treaties in the context of disarmament. as steps on the road to the goal of a more general disarmament by agreement berween the States specially concemed, or between all States. Neither expressly nor impliedly do they attempt to outlaw ail uses of nuclear weapons in any circumstances.”
Click to access 8802.pdf
Finally, the circumstances for a nuclear demonstration shot to be legal is in a wartime situation. Demonstrations outside the wartime context would be covered by the test ban treaty. The Cold War theory was to use the shot to communicate allied resolve — akin to a warning shot. In theory, it would be accompanied by messages to preclude confusion about intentions.
Thanks for the comment . One should only notice :
Communicating warning, whether by explosion, or by conventional message even , particularly in wartime, would then enhance incentives for production of nuclear weapon .This is because of simply inferiority perception or disadvantage perception , that would enhance, the need to avoid such leverage at the hands of the enemy, in the next round or confrontation. And how : simply by producing , or communicating counter deterring message of that kind , to the other side , next time . That is how , ” balance of terror ” is built up . Balance of terror of such , clearly contradicts the purpose of such treaties .
However , Article 1 reads so :
” Each of the Parties to this Treaty undertakes to prohibit, to prevent, and not to carry out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control: ”
End of quotation :
So reading it ( with the preamble ) clearly dictates : ” …or any other nuclear explosion ” and : ” at any place under its jurisdiction or control ” . So , the word : ” control ” , must comprise , the area , where the shot takes place , even if not in the jurisdiction of the controller , because if he can use it , detonate it , then must be under his immediate control . And : ” any other nuclear explosion ” comprises shot of such surly , simply because of the residual wording : ” other ” .
If such shot has taken place , it means then , that using such shot , is not for critical survival , but for : communicating warning . It means, that using such nuclear weapon, is not a critical last resort use of the controller . So , whatever , it is , one may argue : out of wartime use , since it is simply , not an actual use of it .
Thanks
I think we may need to agree to disagree. The Limited Test Ban Treaty, by its intent and history, does not apply to wartime scenarios.
Just to present here , the essence of the advisory opinion of the IJC concerning the use , or threat of use of nuclear weapons , here I quote :
“However . . . 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.”
End of quotation :
One can conclude clearly then : If not at stake , if not desperate last resort , it is unlawful to use or the threat to use it . In such , one may argue , that such shot , is not a wartime one , neither physically ( not in the front lines ) nor mentally ( Not intended for actual use of it , as a last resort weapon ) .
See link to the déclaration de m. herczegh , p.54 :
Click to access 7501.pdf
Thanks
Just correcting it :
The reader may reach last page ( and not as been stated : P. 54 )
Thanks
I would think that a single demonstration shot could not result in environment damage in terms that could be characterized as long-term, widespread and severe. There have been hundreds of atmospheric nuclear tests, and their radiological impact is world-wide in the sense that one could likely measure the fallout radiation today. Widespread, yes. Long- term, yes. But not severe. I would argue, that even for the hundreds of tests, one cannot reasonably assert that the damage is severe. One more could not change this conclusion.
One could say that people are part of the environment. Some analysts have predicted hundreds of thousands of new cancer cases would emerge over decades. But in this time frame there are hundreds of millions of cancer deaths and the impact of nuclear explosions could not be measured against this background, except perhaps for Hiroshima.
Finally, one demonstration shot might prevent the use of hundreds of nuclear weapons and the impact of the one would be negligible.
One might disagree, but I would say that a demonstration shot if it met other laws of war requirements would not be prohibited in this way.
Thanks for the interesting post. A few points:
1) Where does the ‘demonstration shot’ take place? This is the important question. If it is in an area covered by the LTBT, then the shot would be unlawful. There are also other treaties that may play a role, for instance those on nuclear weapon-free zones (if the US, for instance, wanted to carry out the demonstration shot in one of its territories in the South Pacific or Latin America).
2) Secondly, if the demonstration shot takes place during armed conflict, you need to demonstrate that the LTBT applies in time of war, and not only in time of peace. There are good arguments in favour of both views, although I am inclined to think that its application would be suspended. See the ILC Articles on the Effects of Armed Conflict on Treaties,
3) Even in time of peace, a demonstration shot may be unlawful if it constitutes a ‘threat of force’ in the sense of Article 2(4) of the UN Charter.
4) In my view, in time of armed conflict a demonstration shot would be an ‘attack’ in the sense of Article 49 AP1. An attack is ‘an act of violence, whether in offence or in defence’: a nuclear explosion, even a demonstrative one, certainly fits this definition, and the fact that there are targets or civilians affected by the explosion or not is irrelevant to the existence of an attack under Article 49. If it is an attack, the demonstration shot would be subject to all relevant rules of the law of targeting. These include, among many others, the rule that prohibits ‘[a]cts or threats of violence the primary purpose of which is to spread terror among the civilian population’ (Article 51(2) AP1), which may also be relevant here (although only when terrorising the population is the primary purpose of the demonstration shot, and not an incidental consequence of it).
Dear all,
Thank you for this interesting discussion. I would like to add a few comments.
1. Nuclear demonstration shots were already contemplated prior to the bombings of Hiroshima and Nagasaki. The Franck Report of 11 June 1945 indeed suggested to demonstrate the effects of the bomb to Japan in an uninhabited desert or island, either in the US or in Japan. At that time nuclear weapons (or ‘atomic bombs’) were an unknown commodity and therefore it was believed that a demonstration would make sense. That rationale does not seem to apply anymore.
2. Indeed, as stated by Marco Roscini, it is unlikely that the LTBT (or any other arms control or disarmament treaty for that matter) would remain in force in times of armed conflict (see in particular Article 6 of the 2011 Draft Articles on the Effects of Armed Conflicts on Treaties and the illustrative list of treaties which will likely remain in force in times of armed conflict).
3. In order to assess the legality of a demonstration shot during armed conflict, you would have to distinguish between the applicable rules between belligerent states inter se and between belligerent states and non-belligerent states. The former relationship is regulated by the law of armed conflict; the latter relationship is regulated by general public international law / peacetime norms of public international law.
4. I agree with Dan Joyner that the most relevant rules in case of a demonstration shot relate to the protection of the environment.
5. It is arguable that under most circumstances a demonstration shot would be in breach of a state’s obligations under the law of armed conflict (towards the other belligerent-state). In particular, such demonstration would arguably be in breach of a belligerent state’s customary duty of care for the environment in times of armed conflict or – in the words of the ICRC – its customary obligation to show due regard for the environment (Rule 44 of the Customary IHL study). It would also be arguable that a demonstration shot would in breach of Article 35(3) AP I (if applicable), irrespective of the reservations made by certain (nuclear weapon) states upon signature or ratification of AP I. The term ‘severe’ should be interpreted in accordance with current views on protection and preservation of the environment.
6. It is most likely that a demonstration shot would be in breach of the prohibition to cause significant transboundary pollution. Unless the demonstration would take place in outer space, the nuclear radition which will result from a nuclear explosion will be felt across the globe, in particular by farmers, food producers and ultimately the general population. Similarly, such demonstration would be in breach of a belligerent state’s obligation to respect the inviolability of a neutral state’s territory which is laid down in the 1907 Hague Conventions V (land warfare) an XIII (naval warfare), which norm also arguably applies to air warfare.
I agree with Erik’s observations in general.
In addition, I would add that Richard’s conclusion is weak–both on legal and
practical grounds.
He did not discuss at all the current international law on use or threat of use of
nuclear weapons as laid down by the 1996 Advisory Opinion of the ICJ, which is
the highest court in the international community.
In its concluding opinion, the Court stated that it “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.”
Under the Court’s ruling, the test is very severe and high: The demonstration shot may be allowed only in a defensive manner, within its own territorial jurisdiction, with a sufficient warning, when a state is in danger of being occupied or fully defeated militarily by an enemy state. It is also to be noted that there were three justices of the Court who declared that any threat or use of nuclear weapons are illegal under all circumstances.
Furthermore, it is dubious at best whether such a demonstration shot would achieve its defensive objective, especially if the attacking party is a nuclear power. It can lead to a dangerous escalation of armed conflict to an all-out nuclear war. For instance, the attacking party may also show its resolve by conducting its own demonstration shot or preemptively striking the defending state with nuclear weapons. Perhaps, it may work if the attacking party is a non-nuclear power.
In any case, it will be wise for all nuclear states, in particular, to avoid any open armed conflicts by all means. Any problems arising between states should be resolved peacefully through direct negotiations, mediation or presenting their cases to the ICJ.
I don’t disagree with your points about the practical effectiveness of a demonstration shot, risks for escalation, or preference to seek peaceful settlements of disputes.
The ICJ opinion is not as decisive on this issue as indicated. Indeed, the court expressly declined to rule on the nature of the facts and circumstances upon which the use of nuclear weapons would be lawful, other than a general condition of an “extreme circumstance of self-defense”. Ten years after the ICJ decision, the US State Department deputy legal advisor pointed out that the ICJ had not “provided any meaningful guidance” for potential use of the weapons. He further explained, “We also made clear that the United States did not believe the Court’s response, which as I noted is not binding on Governments in any event, necessitated any changes in the nuclear posture and policy of the United States[.]” See http://www.state.gov/s/l/2006/98879.htm
Although the ICJ opinion was not decisive, it was one of the most serious deliberations of international jurists on the legal issue in question. Its deciding opinion, plus the wise opinion of the three dissenting justices who pronounced the illegality of the use or threat of use of nuclear weapons under all circumstances, provided strong guidelines against nuclear weapons–making a great contribution to the further development of international law for arms control and disarmament in regard to nuclear weapons.
To ignore or minimize the historic importance of the ICJ opinion, as the State Department legal advisor did so arrogantly, is a great disservice to the cause of international law, the U.S. constitution, and the UN Charter which created the court. Article 38 (d) of the Statue of the ICJ states clearly that “judicial decisions” are considered as a part of international law. We need to show more respect for the ICJ opinions if we want to uphold the rule of law, instead of rule of brute force.