THE LEGAL CASE FOR DE-ALERTING NUCLEAR WEAPONS

The United States and Russia each now have about 2500 nuclear warheads deployed on hair-trigger alert, ready for launch from land and submarine-based missiles against pre-designated targets within minutes of an order to do so. The deployment is accompanied by declared policies of massive retaliation against nuclear attack and of possible first use in response to non-nuclear aggression by nuclear-armed states and their allies.

This posture places these countries in an ongoing state of illegality. The International Court of Justice explained that international law prohibits threats of use of force which would inflict indiscriminate harm, unnecessary suffering, and disproportionate damage to the environment. While stating no definitive position regarding an extreme circumstance of self-defense in which the very survival of a state is at stake, the Court concluded that threats of use of nuclear weapons are generally illegal. Yet through their present force deployment and policies regarding use the United States and Russia are continuously making such threats.

De-alerting involves separation of warheads from delivery systems and other measures lowering readiness for use and consequently also reducing the chance of inadvertent, unauthorized, or accidental use. De-alerting through coordinated actions carried out by the United States, Russia, and other nuclear weapon states, together with changes in declaratory policies, would enable cessation of the practice of threatening to employ indiscriminate, unnecessary, and disproportionate force. Global de-alerting would eliminate any perceived risk of imminent deliberate nuclear use by another state, and nuclear threats could no longer be defended as necessary to national survival because they deter such use.

De-alerting would also provide a space free of the nuclear threat for the peaceful resolution of international disputes as required by the United Nations Charter and for the negotiated elimination of nuclear arsenals as required by the Nuclear Non-Proliferation Treaty. The International Court of Justice affirmed that there is a legal obligation to pursue in good faith and bring to a conclusion negotiations on nuclear disarmament in all its aspects.

De-alerting as part of a transition to abolition would also begin to move the nuclear weapon states out of the condition of immorality inherent in the possession of nuclear weapons. It would contribute to ending what Lee Butler, former commander of US strategic nuclear forces, called the "spectacle of democratic societies clinging to the proposition that threats to the lives of tens of millions of people can be reconciled with the underlying tenets of our political philosophy".

De-alerting in its own right and as a step towards abolition is necessary to reduce the risk of unintended use and to meet elementary requirements of humanity, law, and morality.

May 1999

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