Passion is not invariably a fuel
conducive to insight and cogency in either
legal or policy analysis. To be sure, passion can unlock the availability
of nearly endless reservoirs of energy, hard work, and dedication in those it animates, and it is obviously of great value
in any effort to make the world a better place. Without great care,
however, passion can lead one over the line into abandoning the perspective and
the rigor that is essential to good analysis and improved understanding.
With apologies to the vipassana teacher
and author Jack Kornfield—who popularized the term in a very different
context—one might say that the “near enemy” of passion is fixation:
an error that looks and feels perilously close to its twinned virtue, and into
which it can be terribly easy to slip when earnestly pursuing the good. (Such
an error is probably especially tempting in an era, such as our own, that seems
not merely to reject the possibility of
achieving real objectivity, but indeed to be increasingly contemptuous
even of those who merely valorize its pursuit as a means to encourage
honesty and clarity, and to distinguish between weaker and stronger lines of
argumentation.) Questions of socio-political direction that elicit great
passion are therefore not only essential and inescapable subjects for public
policy debate, but also topics about which responsible leaders need to be
constantly careful and self-aware precisely because of and in
proportion to the passion that such matters elicit.
In this author’s
professional experience in the public policy community, at least, few
topics elicit as much passion as the role, morality, and future of nuclear weaponry. Far too often, debate
on such critical questions tends to cluster
into mutually unintelligible “silos” of solipsistic argumentation that do not merely discount and dismiss contrary
perspectives, but in some sense even
deny their existence by assuming a priori that opposing views are not
really legitimate perspectives at all, but rather crass rationalizations driven
by discreditable or even sinister ulterior motives (e.g., ugly and atavistic
warmongering or mindlessly craven appeasement and civilizational self-hatred,
as the case may be) and thus not really worth even the oxygen expended in
expressing them. If we are truly to deal with these questions—not just finding
sensible answers today, but in fact developing approaches to handle such grave challenges that will be
effective and sustainable over time—we
need to do better than simply talking past each other in reciprocal
incomprehension and disgust.
To date, much scholarly work skeptical or
dismissive of the legality of nuclear weaponry has had something of an aspirational
air, as if seeking less to understand and describe international law than to
find whatever legal arguments it can to buttress antecedent conclusions in
pursuit of the longstanding policy objective of nuclear disarmament. (The lex
ferenda of what it is felt the law should be in the future, in other words,
is pervasively mistaken for the lex lata of what the law actually is.)
For its part, work defending nuclear weapons possession sometimes slips into
analogously axiomatic axe-grinding about the
purportedly inevitable logics of geopolitical threat and nuclear response, and
the corresponding impossibility that
the law would, or could, decree anything at odds with such elemental
For both sides—though it must be admitted
that this is a particularly common failing in the disarmament community, in its
efforts to use ostensibly legal discourse as a policy cudgel—the factor of
“legality” sometimes seems to be viewed as having almost magical value, as if
the Gordian knot of nuclear weapons and disarmament policy could be cut simply
by the talismanic invocation of “the law” as a tool before which opponents must perforce cower in submission. To
truly find a way forward, however, we need to do better than this.
In this article, I will take a view that
both sides may find somewhat contrarian. I
do not aim precisely to sidestep questions of legality, for as will be seen, I have clear views thereupon. What I hope
to do, however, is to draw out how it
is that fetishizing a definitive, all-solving “legal” answer to the nuclear weapons problem can lead us to miss
the true challenge. I hope, also,
to point to how we may be able to make more progress—specifically, toward the
secure and stable nuclear weapons-free world that most participants in these debates
claim to desire—by putting aside the framing of “legality,” at least for now.
In its place, we should concentrate directly upon trying to ameliorate the substantive
security challenges that drive real-world national leaders to feel that it is
still, at the very least, premature to abandon direct or indirect
reliance upon nuclear weaponry, irrespective of what various passionate legal
writers and advocates may argue.
II. Legality of the
Threat of Nuclear Weapons Use
On one level, it is
almost surprising to ask the question that is the central subject of this conference.
In essence, given that Article 2(4) of the United Nations (U.N.) Charter
provides that “[a]ll Members shall refrain in their international relations
from the threat or use of force against the territorial integrity or political independence of any state,” we are asked: “If
it is illegal to issue a first
nuclear strike, is it similarly illegal to threaten to issue a first strike?” This might certainly be said to be a
foundational question for the entire enterprise of nuclear
deterrence—which, of course, has for many decades revolved in large part around
being willing to threaten nuclear attack,
not merely in response to a nuclear strike, but also potentially in order
to forestall devastating conventional or
other non-nuclear attack or invasion.
Yet for the most
part, the basic legal questions in play here have already been asked and answered, as it were, fully a quarter
century ago by the International Court of Justice (ICJ) in its advisory opinion
of July 1996. Moreover, the question as
presented in this conference also encodes a conditional statement—assuming that
“it is illegal to issue a first nuclear strike”—that is itself not supported by
the ICJ’s decision or any actual source of
law. There being no reason to think the ICJ misunderstood the law in
1996 and no reason to think the law has changed, it is hard to imagine a legal
reason to revisit the matter. The following pages will outline these points in
To begin, it is worth remembering what
the ICJ actually said in its non-binding advisory opinion and what it did not.
The question it had been asked was straightforward: “Is the threat or use of
nuclear weapons in any circumstance permitted under international law?”
After an extensive evaluation of the arguments and briefs submitted by various
parties, the Court reached a number of formal conclusions.
the ICJ declared that there was “in neither customary nor conventional international law” either
“any specific authorization of the threat or use of nuclear weapons” or
“any comprehensive and universal prohibition of the threat or use of nuclear
weapons as such.” Having thus ruled out
such a direct answer to the question presented, the Court declared that any
threat or use of nuclear weapons would be unlawful if it did not comply
with Article 2, paragraph 4, of the U.N. Charter, or if it failed to meet the
requirements of Article 51. It also made clear that
any threat or use of nuclear weapons needed to be compatible with the requirements of the international law applicable in armed conflict, “particularly those
of the principles and rules of
international humanitarian law, as well as with specific obligations
under treaties and other undertakings which expressly deal with nuclear weapons.”
In what has turned out to be its most
controversial holding, the ICJ then opined 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.” Nevertheless—and crucially—the ICJ’s 1996 advisory opinion also
declared that “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
In light of the passions aroused by the
case, this careful phrasing was notably
diplomatic, even to the point of disingenuousness. To see this, one must
recall the longstanding understanding in international law that unfettered
freedom of action for sovereign states is the default mode of the system, and that
such freedom will only be limited where a clear legal rule can be identified to
that effect. To international law experts, therefore, the ICJ’s holding was thus crystal clear, even if its
wording may have helped to lead laymen to conclude that something
remained ambiguous or unsettled. Since in international law anything not
specifically prohibited is legal,
to say that one “cannot conclude definitively” that the threat or use of
nuclear weapons would be unlawful in cases of existential threat is thus precisely
the same thing as declaring that the threat or use of nuclear
weapons is legal in such cases.
Notably, moreover, in
light of the question presented for this
conference—which seems to assume that “a first nuclear strike” would be unlawful—the Court said nothing to support this
view. (One would search the 1996
opinion in vain, for instance, for the phrase “first strike” or
references to concepts such as
“preemption.”) To the contrary, as we have seen, the ICJ went out of its way to specify that nuclear
weapons were subject to the same legal rules that all uses
of force are subject.
Accordingly, it follows that there is
also nothing special, in legal terms, about a nuclear strike being “first.” Its
legality does not stand or fall depending on
its “firstness,” as it were, but rather upon all the “regular” legal criteria involved in assessing the lawfulness of
a use of force. Significantly, the law is not generally understood to
preclude striking “first” in any use-of-force
context, provided that appropriate criteria are met (e.g., the presence
of an imminent threat), and under the ICJ’s 1996 holding this would be no
different in the nuclear realm.
To be sure, some scholars have tried to
argue that the enactment of Article 51 of the U.N. Charter erased prior
understandings permitting anticipatory self-defense in case of imminent
threat—such as the so-called Caroline formula, named after a
nineteenth-century diplomatic dispute involving
a vessel by that name. Mary Ellen
O’Connell, for instance, reads Article
51 as having entirely superseded earlier understandings. She relies in making this argument, however, upon an
ICJ case that she herself concedes did not actually consider the question of
when self-defense actually begins,
and admits that her argument is not consistent with the actual text of Article
51 describing the right of self-defense as being “inherent”—an inconvenient
fact that she dismisses with the offhand comment that the existence of a genuinely
“inherent” right to self-defense would be “at odds with the Charter’s design”
as she interprets it.
The stronger position,
by contrast, is that prior understandings of anticipatory self-defense did not
evaporate with the adoption of the U.N. Charter, which merely supplemented the
traditional law of self-defense with some additional rules applying to and
between U.N. Member States (e.g., that one must report one’s use of force in
self-defense to the Security Council). As noted, the text of Article 51 clearly
describes the right to self-defense as being “inherent,” thus making clear that
such a right already existed before and independent of the adoption of
the U.N. Charter, and indeed arguably signaling that, as an “inherent”
right, the Charter was powerless to abridge it in any event.
As we have seen, it is a
foundational concept of international law that states enjoy a basic sovereign
freedom that shall only be deemed to have been restricted where some clear rule
of international law can be shown. Critics of anticipatory self-defense have
not carried this burden, however, and the customary legal rule articulated in
the Caroline principle clearly survives to the present day—a conclusion
buttressed by references to the Caroline in both the Nuremburg and Tokyo
war crimes trials held even “at the very
time the [U.N.] Charter was drafted and entering into force.”
Terry Gill and Paul Ducheine thus summarize it:
In both the nineteenth century and at the time the Charter was adopted, armed attack [giving rise to
a right of self-defense] was considered to include clear and
manifest preparations, even the intention to attack in the proximate future, when their existence was supported by clear
. . . .
. . . [T]here is ample evidence that the right of self-defense
contained an anticipatory element at the time the Charter was adopted and that
it continues to do so now. In the absence of
conclusive evidence that the law has been altered since the Charter entered
into force, there is no reason to
assume that anticipatory self-defense when exercised within the confines
of the Caroline criteria has become unlawful.
In short, an armed attack was considered to have “occurred” at a time
it was evident an attack was going to take place in the near future, even
though this was well before any forces ever
crossed the frontier, or even concrete measures—as opposed to
preparations—had been taken to initiate an attack . . . .
Accordingly, “a State need not wait idly as the enemy
prepares to attack. Instead, a State may
defend itself once an armed attack is ‘imminent’” pursuant to international legal principles dating back at least to the
Caroline precedent, which “has survived as the classic expression of the
temporal threshold.” (This is also the
view of U.S. and British law-of-war authorities.)
It is incorrect, therefore, to argue that
a “first” nuclear strike would be per se unlawful, since there remains
at least some potential scope for anticipatory self-defense here as in any
other use-of-force context. Nor, in fact, would there be any requirement that
an imminent threat justifying a first blow
actually have to be a nuclear threat. (A nuclear weapons policy of
“no first use” cannot intelligibly be
shoehorned in here!) To the contrary, a sufficiently grave non-nuclear
threat or combination of threats might also be
perfectly adequate to justify nuclear use, provided that they actually rose
to the specified level of creating an “extreme circumstance of self-defence, in
which the very survival of a State would be at stake.”
There is thus
nothing here that would preclude nuclear weapons policies such as those adopted by the United States over
successive presidential administrations since the 1996 case. Significantly,
U.S. official statements of nuclear weapons declaratory policy in recent
decades have closely tracked the 1996 formulation describing the ICJ’s
understanding of when nuclear weapons use would be lawful, making clear that
nuclear weapons use would only be considered
in “extreme circumstances” to defend the vital interests of the United
States or its allies. This, for instance, is the position expressed in both the
Obama Administration’s Nuclear Posture Review of 2010 and the Trump Administration’s similar 2018
Review. Nuclear weapons policy statements by
both Britain and France use this basic formulation
as well, and even Russian, Pakistani, and Indian
formulations tend to use analogous terms.
All thirty countries that make up the NATO alliance, moreover, use such
language in describing their reliance upon nuclear deterrence,
while even China’s supposed “no first use” nuclear weapons policy
inherently implies the possibility of responsive use—which is certainly
not inconsistent with the ICJ’s “extreme circumstances” formulation but would
be unlawful if nuclear weapons use were per se illegal. From the
perspective of customary international law formation, therefore, it is surely
significant that essentially all of the “States who are specially
by the question of nuclear deterrence clearly endorse the “extreme
circumstances” concept of lawful use; there is thus not even a whisper of new
customary law formation here.
furthermore, that if the actual use of nuclear weapons in such extreme cases is not prohibited, it is necessarily
not unlawful to threaten such use—provided, presumably, that one only
threatens to use them in circumstances, or in a fashion, that would not
contravene the U.N. Charter, law of armed conflict principles, or any other
applicable rules, as noted by the ICJ. And
indeed, as we have seen, the Court’s own phrasing also did not
distinguish threat and use in any such way, speaking in its holdings of “the
threat or use of nuclear weapons” together.
There is, therefore, no real question
about whether the use of nuclear threats is a lawful way to deter either
nuclear or non-nuclear aggression of a sort
that could create the aforementioned “extreme circumstances.” Nor is there any reason to think the ICJ misunderstood
the law in 1996. If anything, the
Court actually overreached by going as far as it did, for it exceeded its authority in its final holding,
addressing the meaning of Article VI of the Treaty on the Non-Proliferation of
Nuclear Weapons (NPT).
Furthermore, there is no
reason today to think that the law has changed in the intervening years. To be
sure, a sizeable community of civil society activists
and disarmament-minded governments has certainly been trying to
create new rules under which nuclear weaponry would be flatly outlawed. This is the purpose, for instance, of the Treaty
on the Prohibition of Nuclear Weapons (TPNW). To date, however, no nuclear
weapons possessor has joined the TPNW, nor has any country that relies even
indirectly upon nuclear weaponry for its security (e.g., a member of an
alliance such as NATO that has a policy of nuclear deterrence).
So far, in fact, TPNW
signatories include no state with any experience with or background in
nuclear weapons questions whatsoever, with the arguable minor exceptions of
South Africa (the government of which was carefully
denied the opportunity to possess nuclear weapons by the apartheid regime’s dismantlement of such
weapons before the transfer of power in
1994), Kazakhstan (which relinquished Soviet-era nuclear weapons that
had been stranded in its territory by the collapse of the USSR, but which it
could not maintain or likely actually employ in combat anyway), and Brazil and Libya (both of which in the past undertook
nuclear weapons development efforts, in the latter case in violation of
Article II of the NPT, but never actually manufactured a nuclear device). As
noted, essentially all “specially affected States” in effect agree with
the ICJ that nuclear weapons use can be
lawful in extreme circumstances of self-defense.
In effect, therefore,
the TPNW so far amounts to no more than a collection
of states that have come together to promise in a new instrument to do
what they were all already obliged to do by Article II of the NPT: namely, not to have nuclear weapons. (Most TPNW signatories,
moreover, are also already signatories to one of the various Nuclear Weapons
Free Zone Treaties,
making the “ban” instrument doubly superfluous in legal terms.)
Furthermore, all the nuclear weapons states and their allies have stated
repeatedly and clearly not only that they
will not join the new instrument, but
also that they do not agree with the idea of a nuclear weapons ban in the first
place (at least at this time) and that they feel there to be no legal
obligation upon them in such respects—thus
undermining any basis for concluding that a norm of customary international law
might be emerging. As a result, the TPNW changes
precisely nothing with respect to the continuing validity of the ICJ’s
Teleology and Subjectivity in International Law
Despite the clarity of the abovementioned
conclusions, however—or perhaps precisely because
of that clarity—disarmament activists in the legal community have spent
a great deal of time working to revisit and to close the supposed “loophole” in
the Court’s “extreme circumstances” holding in order to be able to declare
nuclear weapons per se “illegal” after all. That they might imagine this
“look again and try harder” approach to be a potentially promising one is
perhaps not surprising.
International law has long had a flavor
to it of both aspiration and improvisation.
Many of its proponents, in fact, often seem to feel themselves part of a
great teleological movement of law-creation and law-improvement—a world-historical progression that will in time end
international law’s inferiority complex vis-ŕ-vis domestic jurisprudence by closing the gap between the “thickness” and
detail of domestic legal rule-sets and the (so far) still much sparser
landscape of international jurisprudence.
The Finnish legal scholar Martti
Koskenniemi memorably described this phenomenon in the E.H. Carr Memorial Lecture at Aberystwyth University in 2011,
noting the “persistence of teleology” in international legal thinking ever
since the field of international law was first established as a distinct
professional practice in European law schools in the early nineteenth century.
In his characterization, international law was from the outset infused with
“the idea of progressive history” and retains this flavor even in today’s more
cynical postmodern era, with international lawyers these days being “about
the only group of human beings who still use the vocabulary of progress.”
The spirit of the international bar, as
it were, is thus suffused with deep assumptions
of progress in an “intrinsic teleology expressed by and accomplished through
international law,” and in which legal practice “possesses an inbuilt moral direction to make human rights, justice and peace universal.” To “do”
international law, Koskenniemi contends, is often assumed to mean that one “operate[s] with a
teleology that points from humankind’s
separation to unity.”
[I]nternational lawyers . . . tend to be united in our understanding
that legal modernity is moving towards what an influential Latin
American jurist labelled in 2005 a new jus
individuals (and not states) across the globe, giving expression to “the needs
and aspirations of humankind” . . . [and in
territorial systems are being replaced by
intrinsically global, functional ones.
In this telling, the geopolitical
tensions and existential rivalries of the Cold War represented something of an
uncomfortable and unwelcome realpolitikal
pause—a hiatus in which “international lawyers were compelled to modesty in their ambitions about
international government.” Nevertheless,
given the enthusiasms in the field for relentless forward movement toward goals that it was everyone’s
responsibility to help advance, “it was unsurprising when after 1989
they began to dust off the teleologies of
the interwar period.” Those intervening years of great power
competition, it was felt, “had signified only a temporary halt in the liberal
progress of humankind”—and the push to build a brave new legal order revived.
Nor was this desire for forward movement,
it would seem, just about a perceived need to drive toward some kind of
ideologically axiomatic global human end-state. The field of international law
has also sometimes seemed to display an almost arriviste status desperation,
with the relative “thinness” of international jurisprudence being perhaps
something of an embarrassment in comparison to the depth and intricacy of the
systems of domestic law with which we are all familiar within our own
Moreover, unlike domestic legislation—in
democracies, at least—the positivist enactments of sovereign states in broad
multilateral conventions have also long
quietly suffered from an intrinsic legitimacy deficit. After all,
despite its teleological aspiration to unite all of humanity and perhaps supersede the state-territorial construct
entirely, the international system has no particularly compelling
ethical basis upon which to defend agreements arrived at “democratically” by
state sovereign consent when so many of the diplomats who draft and sign
international conventions are themselves representatives
of regimes that have no actual democratic legitimacy themselves. There are, one imagines, relatively
few multilateral agreements and
institutions formed exclusively by national governments that can be said
genuinely to represent the sovereign peoples over whom they rule and in whose
name they purport to speak in international rulemaking.
Perhaps for these reasons, the claims
made by legal scholars as to the existence
of certain international legal rules in service of the teleology have
sometimes advanced as much by willpower and passion as by meticulous demonstration. This can produce a kind of
derivational slipperiness, under which international legal thinkers have
sometimes been willing to countenance law-creation through mechanisms
unlikely to be accepted in a domestic jurisdiction.
prominent of these mechanisms can be seen in international legal doctrines of customary
international law, which is said to be “independent of treaty law” and based upon the
jurist’s conclusions about what
appears to be “accepted as law.” Specifically, it is said, customary law can arise—considering, importantly but rather
imprecisely, “the overall context,
the nature of the rule, and the particular circumstances in which the evidence
in question is to be found”—where there is “a general practice that is
accepted as law.”
The combination of state practice and opinio
juris, in other words, creates new law even where no state representatives
have ever debated or enacted such a thing. If states act in a certain
way and seem to think that doing so is legally required—as opposed to it just
being a good idea, or simply necessary under the circumstances—then international
lawyers deem that practice in fact to be mandatory.
This has a certain
logic, one supposes, but it certainly is not the kind of thing that one imagines would be easily accepted in a
domestic context. In some sense, moreover, customary law doctrine exacerbates
the democratic deficit of international rule-making inasmuch as it not only
allows the creation of new legal rules simply by aggregating the decisions of
states irrespective of the democratic credentials of the decision-makers, but
in fact permits such rule-creation to occur sub
silentio, without express consideration and debate at all.
Another example can
perhaps be seen in the doctrine of jus cogens: the idea that certain “peremptory norms” exist in
international law such that countries will be bound by them even in the face of
an express agreement to the contrary made
through the very mechanisms of state-sovereign law-making that form the traditional default standard for
international legal legitimacy. The Vienna Convention on the Law of
Treaties describes “a peremptory norm of
international law” as “a norm accepted and recognized by the
international community of States as a whole as a norm from which no derogation is permitted and which can be modified
only by a subsequent norm of general international law having the same
A treaty that conflicts with a jus cogens norm will be deemed void.
As for where these supernorms originate,
however—and how one is actually to tell what their substantive content
is—international legal theory provides
little insight. To begin, such norms are not quite unchangeable
foundational rules akin to natural law, inasmuch as they are said to be
amenable to change as broad international conceptions of right and wrong evolve
over time. Yet they do expressly prohibit states from “contracting out”
of their strictures by the mechanisms of agreement that give rise to other
international legal rules.
Precisely how jus
cogens norms arise, what their content is at any given point in time, and how (and when) they can be said to
have changed has never fully been explained.
As one jurist described things at the time, for the drafters of the
Vienna Convention, “the concept of jus cogens expressed some higher
social need. . . . Ultimately, it was more society and less the law itself
which defined the content of jus cogens.”
This conception of a
“higher social need” that conjures up new, unbreakable legal rules (apparently
simply because they are needed) suggests how
close to the mark is Koskenniemi’s description of the international legal project as being motivated by
teleological “progress of history”
thinking—rather than, say, by rigorous principles of doctrinal stability,
derivational rectitude, and procedural legitimacy. Ultimately, despite their
benevolent intentions, peremptory norms thus necessarily remain somewhat
mysterious, for they are
without definable legal pedigree or doctrinal grounding; we may not be able to
explain them yet we think—to borrow a phrase—that we know them when we see
Ultimately, rules of jus cogens may derive
from no conventional doctrinal “source” other than the “conscience” of the international community.
Yet, for all that, international
lawyers defend their existence as the strongest and most urgent rules in the global system.
While it is certainly
the case that domestic legal systems have
themselves occasionally had recourse to
analogously slippery and subjective standards
even in interpreting foundational law—such as the U.S. Supreme Court’s occasional
employment of a “shocks the conscience” standard in “substantive due process”
cases under the United States Constitution—such excursions into
doctrinally unmoored subjectivity are invariably controversial, and are a surprising path for an international legal
system that aspires to close its legitimacy deficit vis-ŕ-vis the rigors
of domestic jurisprudence. It would
certainly seem strange to adopt as a general principle the view that
things become illegal simply when one badly enough wants them to be, and
it is not necessary to go as far as Anthony D’Amato—who suggests caustically that jus cogens may be essentially nothing
more than a scam and a confidence
suspect that something in the peremptory norms construct is at least slightly
Moreover, in contrast to domestic legal
systems such as that of the United
States—where activist movement of legal rules toward broad overall goals
by unelected jurists is at least controversial—mechanisms for adding to the corpus of international law outside
strict principles of state-sovereign consent are explicitly built into
the international canon. The Statute of the International Court of Justice, for
instance, explicitly provides its jurists with the opportunity to turn to
sources of law beyond simply international conventions
and even beyond customary law. Specifically, Article 38 of the Statute
also allows judges to draw upon—and, impliedly, empowers them to make decisions
about what qualifies as—“the general principles of law recognized by civilized nations” and
“the teachings of the most highly qualified publicists of the various nations,”
albeit only as “subsidiary means for the determination of rules of law.” Such ambitiously
broad identification of potential “sources” for international law
certainly sits strangely in a system doctrinally grounded in state-sovereign
consent, and in which even decisions by international courts are not
generally binding on states, or even binding as precedent upon such tribunals
Indeed, jurists even in ad hoc
tribunals such as the International Criminal Tribunal for the Former Yugoslavia
(ICTY) and the International Criminal
Tribunal for Rwanda (ICTR) have sometimes flexed these muscles in filling gaps left by more conventional sources
of law, as Alexandra Adams has
detailed in her analysis of ICTY and ICTR jurisprudence concerning how to handle issues of sexual assault. The problem for these
courts in that respect was that “in international criminal law, no
sexual abuse offenses exist” apart from the more specific crime of rape. Rather
than merely draw attention to this gap and urge states to amend relevant
conventions in order to permit prosecution for sexual assault that did not
meet the definition of actual rape—thus “let[ting] it go unpunished” in the
cases specifically before the tribunals—the
ICTY and ICTR judges improvised, “letting go of dogmatically
‘clean’ solutions in favour of ‘feasible’ justice.” In one
case, Adams recounts, the chamber actually ended up adopting a legal
definition that derived from no antecedent source of law at all: instead, the
tribunal “had basically invented it itself.”
It may be difficult to fault the judges
too much for such improvision under the circumstances, of course, and Adams
indeed seems to approve. While criticizing the
specific definitions adopted, for instance, she nonetheless applauds the
ICTY, in particular, for developing “an important law-finding method, which
allows the under-developed international criminal
law to prove certain crimes” by letting judges “fill gaps in the actus
reus of rape” by devising rules at least inspired by definitions used in
various countries’ domestic law. All the same, it
is also difficult not to be struck by the degree to which a remarkable amount of international legal thinking appears
to be little more than bootstrapping of a sort that its proponents defend as creativity in service of the noblest of ends but
that critics would also not be too far wrong to characterize as “making up the
rules you want.”
Returning to the topic of nuclear
weaponry, therefore, it might seem entirely natural that dissatisfaction with
the ICJ’s “incomplete” ruling against nuclear weapons in 1996 would lead to
sustained calls to revisit the question. After all, in dicta in that
case, even the ICJ itself had already engaged in at least a small
excursion in support of disarmament objectives, by reading words into Article
VI of the NPT beyond what its text
actually said. As described earlier,
the meaning of Article VI had been neither briefed
nor argued, and the ICJ had not been asked to examine the question; as a
result, the Court was actually acting ultra vires—beyond its statutory
authority—to address this at all. In effect, therefore,
the Court was improperly freelancing in deliberately misreading Article VI’s
“obligation of conduct” as an “obligation of
ICJ’s judges, however, appear not much to have minded a bit of free-form
inventiveness in a good cause: that holding was unanimously agreed.
So—one imagines the
argument running today—why not today just opt to re-examine the
1996 question, improvise a bit further, and simply declare any threat or use of nuclear weaponry unlawful?
Why scruple about cutting doctrinal corners when one can use the “law”
as a solvent with which to wipe clean the stains of humanity’s mésalliance
with nuclear weapons?
Reframing the Issue
To that question—and even if one does not
find it in some sense offensive for lawyers to invent the legal rules they want
when these cannot be found in accepted legal
sources, conjuring them out of nothing on the fly precisely because they would not
otherwise exist—this article would
suggest at least two answers. The first relates to the integrity of the
international legal system and the other to
the actual prospects for nuclear disarmament.
Law and its Legitimacy
First, reliance upon such bald invention
risks damaging the legitimacy of an international legal system that already
sometimes struggles to defend itself against charges that it is animated not by
real respect for the rule of law but rather by a teleological political agenda
that disregards its own doctrines whenever they get in the way of progress.
Nor is this just about potential risks to
the legitimacy of international law at the margin, for on this
issue—nuclear weaponry—such a judicial excursion would amount to meddling in
strategic policy questions felt by some of the most powerful and consequential
states of the international system, and
their many allies, to have implications of existential importance.
Indeed, precisely to the extent that the ICJ was correct in 1996 that
the only really conceivable use for nuclear weaponry would be in “extreme circumstance[s] of self-defence, in which the very
survival of a State would be at stake,” this is an arena in which
international law would most delegitimize itself with a further
teleological excursion against nuclear deterrence.
By purporting to tell
those states that nonetheless rely upon such weapons that they must refuse to
protect themselves from existential
threats as they feel they must, such a doctrine would tend to pit “the law”
against efforts to ensure national survival through deterring aggression. Can
asking the latter to give ground to the former really foster the advance of
From the perspective
of those of a teleological bent who might hope that the Court would take the additional step of trying to
“close” the remaining legal “loophole” and declare nuclear weapons entirely
impermissible, the ICJ’s 1996 legal
standard is thus, in effect, almost self-confounding. To the degree that
states that still rely directly or indirectly upon nuclear weapons a quarter
century after the 1996 opinion in fact agree with the Court’s assessment of the
law, the very fact of their continued reliance necessarily signals that they feel these questions to have
existential security implications.
In this context, a “legal” pronouncement purporting to declare nuclear weapons illegal risks delegitimizing
itself—and the broader corpus of international law—more than it
stigmatizes those weapons themselves. The nuclear weapons problem, one might
say, is insoluble by mere legal decree in direct proportion to the extent to
which the ICJ was right in 1996 about the exigencies of those “extreme
This problem, moreover, has only gotten
worse in the years since the ICJ case. The timing of that opinion, in fact, may
not have been entirely coincidental. After all, that case was argued, and the
decision rendered, in that happy post-Cold
War period when so many of the world’s leaders seem to have imagined
that great power strategic rivalry had become forever a thing of the past. The mid-1990s were a period in which the nuclear
arsenals of the two former Cold War
adversaries were being dramatically reduced as Washington and Moscow
shed huge numbers of weapons that had become surplusage as a result of the
relaxation of Cold War tensions and then the collapse of the USSR. At least in
the U.S. case, in fact, these reductions continued through the first decade of the
2000s, even being accelerated to bring the U.S. nuclear arsenal down to less than one-quarter
of its size at the end of the Cold
War, and indeed to its lowest point since the Eisenhower administration.
any who lived through them will remember, the post-Cold War years were a heady time for proponents of
an optimistic, globalizing, progressive internationalism—a sort of
that saw itself as both saving the world and building a new one. It was an
especially buoyant time for disarmament
activists, who had waited out the U.S.-Soviet arms race and the long
decades of nuclear confrontation in sometimes all but indescribable fear and
anxiety, but who now saw the superpowers’ Cold War arsenals plummeting, and a
raft of new arms control and arms-prohibitory agreements being negotiated.
To be sure, even at
that point, no nuclear weapons possessor that actually relied upon nuclear
weapons for its security was willing to give
them up. (Four ultimately did, but these
exceptions tend to demonstrate the challenge.
As noted above, South Africa relinquished a small extant nuclear arsenal
not out of strategic benevolence but because
its collapsing apartheid regime did
not wish the African National Congress to inherit atomic weaponry, while three former Soviet republics
relinquished weapons stranded on
their soil by the Soviet collapse that they could neither maintain nor
really use operationally.) Nevertheless, in
the mid-1990s, optimism about the
strategic availability of nuclear disarmament was very much in the air,
and strategic competition felt like it could be ever thereafter viewed in the
rear-view mirror. Under the circumstances,
one might be forgiven for a willingness to have a conversation about the viability of full prohibition—or for
leavening one’s judicial reasoning with a pinch of teleology.
A comparison to the present day, however,
is therefore instructive. Unfortunately, contemporary circumstances—in this era
of revived great power competition and emergent strategic instabilities and
arms race pressures—seem almost tailor-made
to support a case that the sort of “extreme circumstances” referred to by the
ICJ in 1996 are all too imaginable. This seems true, furthermore, not merely
for the direct competitors in today’s
great power struggles, but also for smaller states who rely upon nuclear
deterrence indirectly, through the military alliances they need for their
security against the threats they face from the increasingly well-armed,
assertive, and geopolitically revisionist authoritarian powers of Xi Jinping’s
China and Vladimir Putin’s Russia.
The expansion of Russian and Chinese
nuclear arsenals highlights this point
simply. Moscow, for instance, is expanding its arsenal of non-strategic weapons—including
weapons it retained despite dismantlement promises made to the United States in
the 1990s, as well as the missiles it originally built in violation of the
Intermediate-Range Nuclear Forces Treaty—and it is now also
openly bragging about the new types of strategic delivery system it is
developing. (The Kremlin has also
done much to undermine confidence in the ability of arms control negotiations
to address strategic challenges, by violating most of the arms control
agreements of the of the post-Cold War era.) For its part, Beijing
is engaged in a dramatic full-scope expansion both in the diversity of
the strategic and non-strategic systems and in China’s overall stockpile
numbers. It also recently
announced a major new program for producing
massive new quantities of plutonium that could easily be diverted to
expand its rapid nuclear build up even further,
even while continuing contemptuously to
reject U.S. calls to engage in arms control discussions.
Perhaps even more
dramatically, at least from the perspective of smaller countries located much closer to the scene than
American leaders find themselves, the growing military might and geopolitical
self-assertiveness of the Russian and Chinese regimes have revived threats and
fears of direct attack and territorial invasion in ways not seen for decades. As
of today, China has illegally occupied and militarized large areas of the South
claimed by its neighbors, issued ever more bellicose threats against Taiwan, and
seized hundreds of square miles of Bhutanese territory through the secret
establishment of a network of villages and military outposts.
Most of all, Vladimir Putin’s operations
to invade and seize territory from his neighbors in 2008 and 2014—in the latter
case breaking the very promises Russia made to safeguard Ukraine’s territorial
integrity in the Budapest Memorandum of 1994 as part of the agreement under
which Ukraine agreed to relinquish its Soviet-era nuclear weapons—highlight
just how existential the threats arising out of modern geopolitics are again
becoming, as well as their entanglement with nuclear deterrence. Such
deterrence, alas, is nowadays steadily more, rather than less, salient to the
security interests of many nations.
malleable and subjective international lawyers might wish the law to be in support of the integrationist teleology
referred to by Martti Koskenniemi, this
arena of existential concern by an array
of states up to and including the most powerful countries on the planet
would seem to be notably unwise terrain for a new judicial excursion. In
contrast to the seemingly benign strategic environment of the 1990s when the
ICJ last addressed the question, the threats and challenges of today’s world
make it all the less likely that any such bootstrapping would in fact have the
desired effect of actually solving any nuclear problems—and all the more
likely that such overreaching in support of a policy agenda would damage the legitimacy of the Court itself, and
perhaps the entire international legal project. Especially with there
being no actual doctrinal basis for thinking the core 1996 holding incorrect,
discretion should surely be the better part of valor here.
A Better Way
The second reason to resist the urge for
juridical improvision in this area, however good the cause might be felt to be,
has already been suggested: namely, that approaching disarmament through such a
“legal” prism is unlikely to produce the
desired results. More importantly, there may be a much better—and less
juridically destructive—way to help address the disarmament concerns that have
animated the abolitionist project. The principal message of this article is
that it would be far more productive to shift our focus away from “legality”
entirely, at least for the moment, and to direct attention to where the real
nuclear problems lie.
Ultimately, whatever legal arguments one
might or might not make about nuclear deterrence, the problem of nuclear
weapons cannot, and will not, be solved by declaratory legal means. Instead,
what is needed is attention to the messier and more difficult work of effecting
substantive change in the security environment in order to lessen (and
hopefully ultimately eliminate) the security incentives that real-world leaders
feel to retain nuclear weapons to deter grave threats from nuclear or other
forms of aggression.
If anything, fetishizing the “legal”
here—as if a more congenial ICJ holding or a brace of additional signatures on
a piece of paper in an international meeting hall could magically resolve the
security challenges created by the
interaction of real-world military postures, doctrines, foreign
policies, and strategic ambitions—will at the very least distract from the hard
work needed to truly meet these challenges. Worse still, such a focus might
actually make resolution of these problems more difficult, adding a moralistic
entrenchment around mutually antagonistic legalisms to the many global divides
and tensions that will need to be overcome in order for real and sustained
progress to be had.
In truth, the principal obstacles to a
secure and stable world free of nuclear weapons have little or nothing to do
with any lack of “law” on the subject, nor would even a superabundance of
relevant legal declarations solve those problems. Instead, something further is
needed—an approach that can speak intelligibly about issues of disarmament in
the language of security.
To their credit,
some in the disarmament community have in the last few years at least started to recognize the need to
address disarmament thinking more clearly
and systematically to the security challenges that actually stand in the
way of disarmament progress—especially in this era of revived great power
competition and military rivalry. Beginning in 2017, U.S. officials have led
the development of a new initiative to help draw attention to the need to
address the substantive security concerns that impede disarmament progress and
to reframe global disarmament discourse in order to focus more upon trying to
solve these problems.
other things, by the emphasis placed in the preamble to the NPT upon the
fact that it is “the easing of international tension
and the strengthening of trust between States” that is needed “in order to
this effort matured into the “Creating an Environment for Nuclear Disarmament”
initiative. By late 2020, it had come to involve delegations from forty-two countries, meeting in three working groups,
each exploring a critical series of substantive questions about how
to help bring about
substantive change in the security environment in order to explore ways to
overcome security-related obstacles to disarmament progress.
It should imply no disrespect for the world’s
jurists, nor for the broader international
legal system, to suggest that the solutions for such problems of strategic
stability, geopolitical rivalry, and military competition are beyond their
professional ken and beyond their effective reach. If there are such solutions, they will require at least as much—and
perhaps more—from statesmen, legislators, scholars, military professionals,
educators, and ordinary citizens who comprise the extant democratic
polities of the world than from lawyers and judges. Effective work on such
solutions, moreover, will require engagement through a discourse that is not
principally, and perhaps not even secondarily, “legal” in nature.
From a legal perspective, doctrinal
questions about the legality of the threat or use of nuclear weapons have already
been asked, and they have already been answered. They will be answered no
better, moreover—and will most likely be answered far worse, and more
dangerously both from the perspective of substantive security and from that of
“the law” itself—if the policy community indulges in the fundamental category mistake
of seeing existential security questions as ones amenable to resolution merely
by legal-technocratic pronouncement, however well-intentioned.
Instead, it is now time for a more
productive engagement on how to solve real-world problems. Now that, with Creating an Environment for Nuclear Disarmament
and other such efforts, the disarmament community has finally begun to focus
upon how to resolve or at least lessen the global security challenges that impede disarmament progress, we should not
imperil such progress by returning to the
sort of distracting and counterproductive magical thinking pursuant to
which the problems of the world can be solved by a judge’s pen.
[*]Dr. Christopher A. Ford is a Visiting Fellow with Stanford University’s Hoover Institution, and Distinguished Policy Advisor at MITRE Labs. He previously served as U.S. Assistant Secretary of State for International Security and Nonproliferation, and performed the duties of the Under Secretary for Arms Control and International Security. This article was prepared in conjunction with the author’s participation in a conference hosted by the Center for Ethics and the Rule of Law at the University of Pennsylvania and the Annenberg Public Policy Center of the University of Pennsylvania, entitled “Rethinking U.S. and International Nuclear Policies: Are Current Practices Including Threats of Nuclear Strikes Legal and Morally Justified?” The opinions expressed herein are entirely his own, and do not necessarily reflect the views of anyone at Hoover, MITRE, or in the U.S. Government.
 University of
Pennsylvania Carey Law School, Rethinking U.S. and International Nuclear
Policies, YouTube (Apr. 23,
 U.N. Charter art. 2, ¶ 4.
 Left of Launch:
Communication & Threat Escalation in a Nuclear Age, Univ. of
Penn. L. Sch.,
(last visited Nov. 8, 2021). Questions central to the conference included the following:
Do the traditional methods of analyzing a State’s
compliance with Articles 2(4) and 51 of the U.N. Charter apply in the context
of threat-making when those threats explicitly or implicitly implicate the use
of nuclear weapons?
Does the inherent right of self-defense include the
right to use nuclear weapons?
Is nuclear war so different from other forms of warfare
that traditional legal doctrines no longer apply, or must they be applied in
substantially different ways?
What does the expanding set of complications portend
for nuclear non-proliferation and nuclear disarmament?
Given the current state of rhetoric by leaders of
nuclear sovereigns, are such goals even within the realm of possibility?
What roles will strategic communications and the rule
of law play in de-escalating nuclear tensions?
 Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226 (July 8).
 Id. at 266, ¶ 105(2)(A)–(B).
 Id. ¶ 105(2)(C). Article
51 of the Charter provides that
[n]othing in the present
Charter shall impair the inherent right of individual or collective self-defence if an
armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to
maintain international peace and security. Measures taken by Members in
the exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and
responsibility of the Security Council under the present Charter to take at any
time such action as it deems necessary in
order to maintain or restore international peace and security.
U.N. Charter art. 51.
 Legality of the Threat or
Use of Nuclear Weapons, at 266, ¶
 See, e.g.,
Case of the S.S. “Lotus,” 1927 P.C.I.J. (ser. A) No. 10, at 18–19 (Sept. 7).
The authority of a sovereign state to take actions under the law of war comes
from its inherent rights as a sovereign state rather than from the
existence of any sort of legal rule giving it
“permission.” In this sense, the law of war is merely “prohibitive law,” in
that where it exists and acts, it prohibits rather than authorizes.
See, e.g., Off. of Gen. Couns., U.S. Dep’t of Def.,
Department of Defense Law of War Manual § 184.108.40.206 (12 June 2015) (C3, 13 Dec. 2016) [hereinafter Law of War Manual]. The International Court of Justice (ICJ), therefore, was being disingenuous to the point of
actually being misleading in using phrasing designed to make the legality of nuclear weapons use
in extreme circumstances of self-defense seem
unclear because it could not find “any specific authorization” for such use.
Particularly given its ultra vires excursion into dicta about
Article VI of the Nuclear Nonproliferation Treaty, this was not, to say the
least, the Court’s finest hour.
 See generally, e.g., British-American
Diplomacy: The Caroline Case, Avalon
Project, https://avalon.law.yale.edu/19th_century/br-1842d.asp (last
visited Nov. 17, 2021).
Ellen O’Connell, The Myth of Preemptive Self-Defense 5 (2002).
 Instead of legal arguments, O’Connell
spends most of her article offering expressly policy-based reasons to
favor of her view of Article 51. See id. at 15–20.
 Terry D. Gill & Paul
A.L. Ducheine, Anticipatory Self-Defense in the Cyber Context, 89 Int’l L. Stud. 438, 455 (2013).
 Tallinn Manual
2.0 on the International Law Applicable to Cyber Operations 350–51
(Michael N. Schmitt ed., 2d ed. 2017) [hereinafter Tallinn Manual].
 See, e.g., Law of War Manual, supra note 11, § 220.127.116.11; Nat’l
Sec. L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. &
Sch., U.S. Army, Operational Law Handbook 6–7 (2021); Daniel Bethlehem, Principles Relevant to the Scope of a State’s Right
of Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors,
106 Am. J. Int’l L. 1, 2–3 (2012)
(quoting Lord Goldsmith on 21 April 2004).
 Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 266, ¶ 105(2)(E)
 U.S. Dep’t of
Def., Nuclear Posture Review Report, at viii–ix, 16–17 (2010).
 U.S. Dep’t of
Def., Nuclear Posture Review Report, at ii, viii, xvi, 21, 68 (2018).
 See, e.g., U.K.
Prime Minister, Global Britain in a Competitive Age: The Integrated Review of
Security, Defence, Development and Foreign Policy 76 (2021) (“We would consider using our nuclear weapons only in extreme
circumstances of self-defence, including the defence of our NATO
Allies.”); Republic of Fr., French White
Paper: Defence and National Security 73 (2013) (“The use of nuclear weapons would
only be conceivable in extreme circumstances of legitimate self-defence.
In this respect, nuclear deterrence is the ultimate guarantee of the security,
protection and independence of the Nation.”).
 See, e.g., The Military Doctrine of the Russian
Federation, Embassy of the Russian
Fed’n to the U.K. of Great
Britain & N. Ir. (June 29, 2015), https://rusemb.org.uk/press/2029 (“The
Russian Federation shall reserve the right to use nuclear weapons in response
to the use of nuclear
and other types of weapons of mass destruction against it and/or its allies, as
well as in the event of aggression against
the Russian Federation with the use of conventional weapons when the very existence of the state is in
jeopardy.”); Arms Control and Proliferation Profile: Pakistan, Arms Control Ass’n,
(last visited Nov. 17, 2021) (noting that Pakistani officials “have claimed
that nuclear weapons would be used only as a matter of last resort in . . . a
conflict with India”); Arms Control and
Proliferation Profile: India, Arms Control
Ass’n, https://www.armscontrol.org/factsheets/indiaprofile#bio (last visited Nov. 17, 2021) (noting that Indian officials have claimed that India “would not use nuclear weapons against states that do
not possess such arms and declared that nuclear weapons would only be used to
retaliate against a nuclear attack” and that the government also “reserved the
right to use nuclear weapons in response to biological or chemical weapons
 See, e.g., NATO Nuclear Deterrence,
(last visited Nov. 17, 2021) (declaring that “the circumstances in which NATO might contemplate the use of
[nuclear weapons] are extremely remote” but could include circumstances in
which “the fundamental security of any Ally were to be threatened”).
 See, e.g., Chinese Government Statement on the Complete
Prohibition and Total Destruction of Nuclear Weapons, Ministry of Foreign Affs. of China,
(last visited Nov. 17, 2021).
 “Specially affected” states have been said to be those
“with a distinctive history of participation
in the relevant matter”:
States that have had a wealth of experience, or that
have otherwise had significant opportunities
to develop a carefully considered military doctrine, may be expected to have
contributed a greater quantity and quality of State practice relevant to
the law of war than States that have not.
For example, “specially
affected States” could include, depending upon the relevant matter, the nuclear
powers[ or] other major military powers . . . .
Law of War Manual, supra note 11, § 18.104.22.168.
 See Nikolas
Stürchler, The Threat of Force in International Law (2007), for more
on whatever legal distinction there may be between the use of force and
its mere threat.
 Legality of the Threat or
Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 267, ¶ 105(2)(F)
 This author has described the problem elsewhere,
the question of the meaning of Article VI was not
actually before the court, making that portion of its opinion, as Judge Stephen
Schwebel observed, a mere “dictum.” The ICJ had originally been asked by
the World Health Assembly to render an advisory opinion on the question: “Would
the use of nuclear weapons by a State in war or other armed conflict be a
breach of its obligations under international law including the WHO [World
Health Organization] Constitution?” But the court determined that because the
issue lay outside the WHO’s scope, the question had been improperly asked. The
U.N. General Assembly, however, had also requested that the ICJ render an
advisory opinion on essentially the same question: “Is the threat or use of
nuclear weapons in any circumstance permitted under international law?” The
court accepted this second attempt to pose the question. In neither case,
however, was the meaning of Article VI something that the ICJ was formally
asked to consider.
In the Anglo-American tradition, obiter
dictum refers to a comment made in a legal opinion on matters not actually
raised in the case at hand. As comments on extraneous matters, dicta
generally are regarded as having minimal
authority or value as precedent. The ICJ’s comments on Article VI are
clearly such. Worse still, because the court was not asked to give any advice
on Article VI, its pronouncement on the subject may in fact have been ultra vires—beyond its powers. After all, the
ICJ is only authorized to give an advisory opinion upon request from a properly
authorized body. The ICJ’s statute also requires that “questions upon which the advisory opinion of the Court is asked
shall be laid before the Court by
means of a written request containing an exact statement of the question
upon which an opinion is required.” Since no one had actually asked the ICJ to
interpret Article VI, its eagerness to pronounce upon the subject may have led
it to exceed its authority.
Christopher A. Ford, Debating
Disarmament: Interpreting Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, 14 Nonproliferation
Rev. 401, 402 (2007) (citations omitted).
 Treaty on the Prohibition of Nuclear Weapons, opened
for signature July 7, 2017 (entered into force Jan. 22, 2021).
 Treaty on the Non-Proliferation of Nuclear Weapons
art. II, opened for signature July 1, 1968, 21 U.S.T. 483, 729 U.N.T.S.
161 (entered into force Mar. 5, 1970) (“Each non-nuclear-weapon State Party to the Treaty undertakes not to
receive the transfer from any transferor whatsoever of nuclear weapons or other
nuclear explosive devices or of control over such weapons or explosive devices
directly, or indirectly; not to manufacture or otherwise acquire nuclear
weapons or other nuclear explosive devices; and not to seek or receive any
assistance in the manufacture of nuclear weapons
or other nuclear explosive devices.”).
 The author is indebted to Tobias Vestner of the Geneva
Centre for Security Policy for pointing
this out. E-mail from Tobias Vestner, Head of Sec. & L., Geneva Ctr. for
Sec. Pol’y, to author (Apr. 26, 2021).
 See, e.g., Christopher Ford, Assistant Sec’y of
State, The Treaty on the Prohibition of Nuclear
Weapons: A Well-Intentioned Mistake (Oct. 30, 2018),
The United States has declared that
proposed Treaty would neither make nuclear weapons illegal nor lead to the elimination of
even a single nuclear weapon. Contrary to what its supporters might wish, it
makes no impact that would support any new
norm of customary international law that would in any way be binding on any
state having nuclear weapons today. In particular, all NPT
nuclear-weapon States consistently and openly oppose the “Ban,” along with
their military allies around the world. The text of the treaty itself
is inconsistent with creation of any norm of non-possession of nuclear
weapons, inasmuch as it does not actually prohibit States from joining while
still having nuclear weapons, and only envisions them relinquishing such
devices at an unspecified future date and under unspecified future circumstances. Far from contributing to some kind of
non-possession norm, the Treaty seems itself to prove there’s no such thing.
Koskenniemi, Law, Teleology and
International Relations: An Essay in Counterdisciplinarity, 26 Int’l Rels. 3, 3–4, 5 (2011). So pervasive does the “teleological impulse” seem to be in international legal circles
that the panel of legal experts who drew up the Tallinn Manual on
cyberspace operations law apparently felt it necessary to distinguish their
project from the field’s general instinct to press the law forward in desired
policy directions. The introduction to the Tallinn
Manual takes pains to emphasize that it “does not represent
‘progressive development of the law’, and is policy and politics neutral. In
other words, Tallinn Manual 2.0 is intended as an objective restatement
of the lex lata [current law as it is]. Therefore, the Experts involved
. . . assiduously avoided including statements reflecting lex ferenda
[future law, or law as it aspires to be].” Michael Schmitt, Introduction
to Tallinn Manual, supra note 19, at 3.
 Koskenniemi, supra
note 36, at 4.
 Id. at 4–5
author has elsewhere described this as the “origins problem of
is, its positivist roots in
the decisions of functionaries many of whom lack any right to speak for
such purposes on behalf of the sovereign populations whose will and consent
necessarily represent the fundamental source of legitimacy for anything done
in the international arena.” Christopher A. Ford, Democratic Legitimacy and
International Society: Debating a “League
of Democracies”, in 3 Human Rights, Human Security, and State Security 1, 27 (Saul Takahashi
ed., 2014) (emphasis added).
 G.A. Res. 73/203,
annex, Identification of Customary International Law, at 2 (Dec. 20, 2018); see, e.g., Customary International Law, Int’l Comm. of the Red Cross (Oct. 29, 2010),
https://www.icrc.org/en/document/customary-international-humanitarian-law-0 (declaring that customary law “fills
gaps left by treaty law” with rules that “derive from ‘a general practice accepted as law.’ To prove that a certain
rule is customary, one has to show that it is reflected in state practice and
that the international community believes that such practice is required as a
matter of law”).
 Jus Cogens, Black’s
Law Dictionary (11th ed. 2019).
 Vienna Convention on the Law
of Treaties art. 53, May 23, 1969, 1155 U.N.T.S. 331.
 Summary Records of the 685th Meeting, 
1 Y.B. Int’l L. Comm’n 73, U.N. Doc. A/CN.4/SER.A/1963.
 See generally, e.g., Christopher A. Ford, Adjudicating Jus Cogens, 13 Wis. Int’l L.J. 145, 152 (1994).
 See, e.g., Rochin v. California, 342 U.S.
165, 172 (1952) (declaring that the police actions against a defendant
constituted “conduct that shocks the conscience” and were “methods too close to
the rack and the screw to permit of constitutional differentiation”).
 Anthony D’Amato, It’s
a Bird, It’s a Plane, It’s Jus Cogens!, 6 Conn. J. Int’l L. 1, 1 (1990) (arguing that “the sheer ephemerality of jus cogens is an asset,
enabling any writer to christen any ordinary norm of his or her choice
as a new jus cogens norm, thereby in one stroke investing it with
magical power,” and that if anyone were actually able to articulate an
intelligible theory of jus cogens, that person would deserve an
of the International Court of Justice, art. 38(1)(c). The subtext here that
some subset of “civilized” nations is empowered
to establish legal standards binding upon the rest of humanity is unmistakable.
Nevertheless, despite international law’s origin in Western, European, and Christian ethico-religious
traditions, modern progressives—though otherwise notably quick to try to exorcise the baleful influence of “dead White
males” from educational curricula
and historical memory—have been intriguingly slow to condemn international law
as a presumptively illegitimate relic of a racist and imperialist age. Even
though the seminal instruments and concepts of international humanitarian law
were indeed primarily the handiwork of such
dead White males, and seem to have grown quite directly out of Christian
“just war” thinking and chivalric notions of martial honor and the protection of
innocents, there would appear to be an implicit recognition that to
“decolonize” the law of war might open the legal door to notably uncivilized
behavior. Perhaps for this reason, the modern academy
has tended to focus more upon augmenting or improving the law of war rather
than upon delegitimizing and erasing it. There is perhaps a salutary
 Id. art. 38(1)(d). In
explaining this provision, the U.S. Defense Department’s authoritative Law of War Manual offers the caution that “[t]he
writings [‘of the most highly qualified publicists’]
should only be relied upon to the degree they accurately reflect existing law . . . .” Law of War Manual, supra note 11, § 1.9.2. This formulation merely begs the
question, however, by presupposing that one knows existing law. One should
certainly not rely upon the writing of publicists who do not accurately
reflect existing law, of course, since doing so would undermine the law’s
rootedness in state sovereign decisions and would make a mockery of the very idea
of international legality by reducing its demonstration to a mere matter of
arbitrarily picking and choosing from among counterpoised assertions and policy
preferences. Yet if one already knows the
legal answer—which is the only sure way to avoid reliance upon an incorrect publicist—there would be no need to resort
to “subsidiary means” in the first
place. Ultimately, one struggles to find much useful meaning at all in
Article 38’s comment about reliance upon publicists. Interestingly, the Law
of War Manual seems to distrust some of the legal writings of the
International Committee of the Red Cross on just such grounds, hinting that
they may have substituted the policy advocacy of lex ferenda for the
legal description of lex lata. Cf. id. § 1.9 (“[T]he
United States has said that it is not in a position to accept without further
analysis the conclusions in a study on customary international humanitarian law
published by the ICRC.”).
generally, e.g., Law of
War Manual, supra
note 11, § 1.9.1 (“Judicial decisions are generally consulted as only persuasive
authority because a judgment rendered by an international court generally binds
only the parties to the case in respect of that particular case. The legal reasoning underlying the
decisions of the International Court of Justice is not binding on States. Similarly, the decisions of .
. . the International Criminal Tribunal for Rwanda cannot, as a strictly
legal matter, ‘bind’ other courts. The legal principle of stare decisis [settled, binding precedent] does not generally apply between
international tribunals, i.e., customary international law does
not require that one international tribunal follow the judicial precedent of another tribunal in dealing with questions of
international law. Moreover, depending on the international tribunal, a
tribunal may not be bound by its [own] prior decisions.” (citations omitted)).
 Alexandra Adams, The
Legacy of the International Criminal Tribunals for the Former Yugoslavia and
Rwanda and Their Contribution to the Crime of Rape, 29 Eur. J. Int’l L. 749 (2018).
 The ICJ declared that
Article VI created a ‘‘twofold obligation to pursue and to conclude
negotiations’’ on disarmament. Legality of the Threat
or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 264, ¶ 100 (July
8) (emphasis added). The actual treaty, however, rather carefully says merely that the Parties are obliged “to pursue [such] negotiations in good faith.”
Treaty on the
Non-Proliferation of Nuclear Weapons,
supra note 33,
art. VI. This is, to be charitable, an odd excursion,
since classically, obligations to negotiate are obligations to exert
best efforts—and not, for instance, obligations to reach an agreement
irrespective of its substantive merits, the
good faith of one’s counterparty, or even whether there is any party who
has proven willing to negotiate at all.
 See Ford, supra note 31.
 Cf. Tallinn
Manual, supra note 19, at 289 (“Obligations of conduct generally
require States to undertake their ‘best
efforts’ to comply by a means of their choice. Such obligations do not
impose a duty on States to succeed in their efforts . . . .”). Indeed, it would
surely be perverse to find State A in
violation of Article VI because State B refused its good faith efforts
to negotiate. It is also worth remembering
that Article VI applies not just to nuclear weapons states but to all
states and that it requires them to pursue negotiations not just on nuclear
disarmament but also “on a treaty on general and complete disarmament under
strict and effective international
on the Non-Proliferation of Nuclear Weapons, supra note 33,
If the ICJ were correct that Article VI contains an obligation of result rather than simply one of
conduct, every State party to the NPT must have been in violation ever
since that treaty entered into force in 1970. (There has not been an actual
effort to negotiate general disarmament since
the Preparatory Commission for the World Disarmament Conference pursued
under League of Nations auspices in the 1920s, much less agreement upon any
such treaty. See generally, e.g., Dick Richardson, The Evolution of British Disarmament
Policy in the 1920s, at 52–95 (1989) (recounting debates at the Preparatory Commission).) It is easy to see, therefore, why
although the disarmament community
frequently invokes the ICJ’s Article VI excursion, no one has yet
offered an intelligible defense of its logic.
 See, e.g., Christopher A. Ford, A New
Paradigm: Shattering Obsolete Thinking on Arms Control and Nonproliferation,
Arms Control Ass’n, https://www.armscontrol.org/act/2008-11/features/new-paradigm-shattering-obsolete-thinking-arms-control-nonproliferation (Nov. 5, 2008).
 The phrase is that
of Samuel Moyn and Andrew Sartori. See, e.g., Samuel Moyn & Andrew Sartori, Approaches to Global Intellectual
History, in Global
Intellectual History 3, 24
(Samuel Moyn & Andrew Sartori eds., 2013).
 See generally, e.g., U.S. Dep’t of State, Adherence to and Compliance with Arms Control, Nonproliferation, and Disarmament
Agreements and Commitments 12–21, 23–26 (2020).
 See, e.g., Laurel Wamsley, Putin Says Russia
Has New Nuclear Weapons That Can’t Be Intercepted, NPR, https://www.npr.org/sections/thetwo-way/2018/03/01/589830396/putin-says-russia-has-nuclear-powered-missiles-that-cant-be-intercepted
(Mar. 1, 2018, 9:55 AM).
 Christopher A.
Ford, Russian Arms Control Compliance: A Report Card, 1984–2020, at 3–10
 See, e.g., Off. of
the Sec’y of Def., U.S. Dep’t of Def., Military and Security Developments Involving the People’s Republic
of China 92 (2021) (“Beijing has accelerated its nuclear expansion,
which may enable the PRC to have up to 700 deliverable nuclear weapons by 2027
and likely intends to have at least 1,000 warheads by 2030.”); see also, e.g., Christopher Ford, China’s Nuclear Weapons Buildup, Geopolitical
Ambition, and Strategic Threat (Oct. 17, 2021),
 See, e.g., Nonproliferation
Pol’y Educ. Ctr., China’s Civil Nuclear Sector: Plowshares to Swords? (Henry D.
Sokolski ed., 2021).
 See, e.g., Jon Xie, China Rejects US Nuclear Talks
Invitation as Beijing Adds to Its Arsenal, Voice of Am. (July 13, 2020, 3:38 PM),
 See, e.g., In re South China Sea
Arbitration (Phil. v. China), Case No. 2013-19 (Perm. Ct. Arb. 2016),
 See, e.g., Paul D. Shinkman, China Issues
New Threats to Taiwan: ‘The Island’s Military Won’t Stand a Chance’, U.S. News (Apr. 9, 2021, 11:14 AM), https://www.usnews.com/news/world-report/articles/2021-04-09/china-issues-new-threats-to-taiwan-the-islands-military-wont-stand-a-chance; Taiwan: ‘Record
Number’ of China Jets Enter Air Zone, BBC (Apr. 13, 2021), https://www.bbc.com/news/world-asia-56728072.
 See, e.g., Robert Barnett, China Is Building Entire Villages
in Another Country’s Territory, Foreign
Pol’y (May 7, 2021, 4:02 PM), https://foreignpolicy.com/2021/05/07/china-bhutan-border-villages-security-forces.
 Memorandum on Security Assurances in Connection with
Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons
para. 2 (Dec. 5, 1994) (reaffirming that signatories, including the Russian
Federation, promise “to refrain from the threat or use of force against the
territorial integrity or political independence of Ukraine”), http://www.pircenter.org/media/content/files/12/13943175580.pdf.
 This has been an interest of the author for some
years. See, e.g., Christopher Ford, Learning to Speak Disarmament in the
Language of Security (Sept. 29, 2009), https://www.newparadigmsforum.com/p117.
Unfortunately, the particular disarmament approach discussed in those 2009
remarks did not prove viable. See Christopher
A. Ford, Nuclear Weapons Reconstitution and
its Discontents: Challenges of “Weaponless Deterrence” (2010).
 See, e.g., Christopher Ford, Assistant Sec’y of State,
From “Planning” to “Doing”: CEND Gets to Work (Nov. 24, 2020), https://www.newparadigmsforum.com/p2884.
 Treaty on the
Non-Proliferation of Nuclear Weapons,
supra note 33,
pmbl. (declaring that States party desire “to further the easing of international tension and the
strengthening of trust
between States in order to facilitate the
cessation of the manufacture of nuclear weapons, the liquidation of all
their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery
pursuant to a Treaty on general and complete disarmament under strict
and effective international control”).
 See, e.g., Christopher Ford, Assistant Sec’y of State, Reframing
Disarmament Discourse, (Sept. 3, 2020), https://www.newparadigmsforum.com/p2755.
 See generally, e.g., Christopher A. Ford, Four Years of Innovation and Continuity in U.S.
Policy: Arms Control and International Security Since January 2017, at 19.