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