Legality of Nuclear Testing in Commemoration of the International Day Against Nuclear Tests

Introduction

In 2009, the General Assembly of the United Nations unanimously adopted Resolution 64/35. It declares the 29th of August as the International Day against Nuclear Tests, especially since this particular date signifies the closure of the Semipalatinsk Test Site of Kazakhstan in 1991. The former Soviet Union nuclear testing ground is a testament to the enduring human and environmental costs of these tests. Consequently, the resolution encourages mankind to commemorate this day as a reminder of the destructive power these nuclear weapons possess and to underline the purpose of creating a world free of  nuclear testing. This international day does not only raise global awareness on the severe consequences of nuclear tests; its commemoration equally highlights the significance of the Comprehensive Nuclear Test-Ban Treaty. In addition to the environmental implications associated with such tests, this article deduces that nuclear testing is a violation of international law.

A Brief History into Nuclear Testing

World War II marked the inception of nuclear testing and it has only shown a significant increase of its execution during the Cold War. Specifically on 16 July 1945, the “Trinity” Test became the first nuclear explosion to have ever occurred in the history of mankind and this landed the United States with the title of the first nation to have conducted nuclear testing.  Ever since then, a total of 2,056 nuclear tests have been recorded in history, the most recent of which was executed  by North Korea on 3 September 2017. 

International Law’s Endeavor In The Regulation of Nuclear Tests

Immediate and long-term effects of these tests has led to growing international condemnation and the urge for legal restrictions. The 1963 Partial Test Ban Treaty (PTBT) was an early step in the development of a legal framework against nuclear testing with the intention to minimise radioactive contamination and to reduce the proliferation of nuclear weapons. Be that as it may, the PTBT still permitted underground nuclear testing.

As the initial legal instrument in the realm of nuclear testing, the PTBT grew to become a cornerstone for the development of other legal instruments within the same field, among which is the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the Comprehensive Nuclear-Test-Ban Treaty (CTBT). The objective crystallised within the former aims to prevent the spread of nuclear weapons and to promote disarmament. In particular, Article VI of the NPT obligates nuclear-armed states to pursue nuclear disarmament and the cessation of the nuclear arms race through negotiations in good faith. Despite maintaining such an important objective, the NPT still fails to explicitly prohibit nuclear tests. However, where the NPT lacks this crucial aspect, the CTBT completes it.

CTBT : An Ineffective Progress

In contrast, the CTBT explicitly bans all nuclear explosions, whether for military or civilian purposes. Specifically, Article I of the CTBT sets out basic obligations for states not to carry out nuclear test explosions, to refrain from participating in those tests and to eschew encouragement for conducting such tests, as well as to prevent nuclear testing under its jurisdiction. However, despite its comprehensive scope, the CTBT has yet to enter into force. The CTBT’s entry into force hinges upon the ratification of 44 nuclear-capable states provided in its Annex II. As of now, 8 nuclear-capable states have yet to ratify the CTBT, 7 of which possess nuclear weapons. This presents a hurdle in universally prohibiting nuclear weapons testing. 

Nevertheless, the aim to achieve a nuclear-free world shall not be any less possible; these inefficacious treaties do not conclude the prohibition of nuclear testing as a failed effort. It needs to be reminded that there exists another source of international law that certainly challenges the legality of nuclear testing – the following section will discuss the legality of nuclear weapons beyond treaties.

Nuclear Testing Does Violate Customary International Law

Customary International Law (CIL) is recognised as one of the five sources of international law as stated in Article 38 (1) of the International Court of Justice (ICJ) Statute. In the North Sea Continental Shelf Case, the ICJ clarified that for a treaty provision to become  CIL, it requires (a) extensive and virtually uniform practice as well as to (b) have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved. Therefore, CIL as an alternative source of international law plays a crucial role in determining the legality of actions, such as nuclear testing.

• State Practice

The 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons  highlighted the importance of environmental considerations and the principle of non-proliferation. Today, the practice of states has evidently reflected the rejection of nuclear tests. For instance, the actions of a near global ratification of the CTBT indicates a uniform practice. Consequently, the practice of declining nuclear tests began to emerge since the CTBT opened for signature. This is evidenced by the temporary suspensions of nuclear testing that were declared by nuclear-armed states.

• Opinio Juris

Additionally, the element of opinio juris may be inferred from strong international reactions to nuclear testing. Although India and Pakistan have not ratified the CTBT, these nations have avoided nuclear testing since 1998, adhering to the broader international norm against such activities. This shows that India and Pakistan recognise a sense of legal obligation even without their ratification to the CTBT. With the fulfilment of opinio juris and state practice, the prohibition of nuclear weapons testing is a norm of customary international law. It can then be determined that nuclear testing conducted by states violates customary international law, unless those states could prove that they are persistent objectors to the norm.  

Nuclear Testing Cannot Be Regarded as Self-defence

Article 2(4) of the United Nations Charter (UN Charter) provides that state parties must refrain from the threat or use of force which includes the use of nuclear weaponry. However, Article 51 of the UN Charter provides that such prohibition is exempted in the event of self-defence. The wording of Article 51 is clear that self-defence presupposes an armed attack on the territory of a state. In contrast, the nature of nuclear testing usually serves as intimidation or a display of power. While it can be argued that nuclear tests can deter states from committing armed attacks, the destructive capabilities of nuclear weapons contradicts the principle of proportionality in both environmental and humanitarian aspects. This is because nuclear testing poses long lasting catastrophic consequences that exceed the immediate threat that requires self-defence. Therefore, nuclear testing cannot be justified as self-defence. 

Environmental Considerations

The environmental  dimensions of nuclear testing cannot be overlooked. The principle of intergenerational equity (as mentioned in The Rio Declarations in 1992) mandates that current generations must consider the rights, welfare, and balanced environmental needs of future generations.  Despite this principle, nuclear tests have caused significant environmental damage, long-term health issues for local populations, and intergenerational genetic effects. The tragic legacy of test sites, such as those in the Marshall Islands and Semipalatinsk, underscores the catastrophic consequences of nuclear detonations. 

Nuclear testing in the Marshall Islands was conducted underwater near the island. As a result, certain areas  of the location remain uninhabitable until today. Similar environmental devastation also occurred in Semipalatinsk both in the atmosphere and underground. Consequently, some areas were contaminated by radioactive fallout, in which  people within  the region suffered from such  contamination, ultimately  leading them to experience long-term health issues. Thus, nuclear testing has clearly violated the principle of intergenerational equity by denying future generations’ rights to make use of the environment and nature sources. 

Furthermore, ethical frameworks, including war ethics, also challenges the morality of nuclear tests, considering the indiscriminate and disproportionate harm they inflict. The cause of outlawing nuclear testing has advanced since its discovery due to several advances at the bilateral and global political levels as well as significant movements within civil society.

Conclusion

The legality of nuclear testing is shaped by a complex interplay of international treaties, customary international law, and ethical considerations. While the NPT and CTBT provide strong frameworks to prevent nuclear tests, the persistent non-ratification of the CTBT by key states remains a major obstacle in banning all kinds of nuclear testing. Nevertheless, evolving state practice against nuclear testing contributes to an emerging customary international law,  condemning nuclear tests and frames it as a violation of international law. Hence, commemorating the International Day against Nuclear Tests not only honours the victims of nuclear testing, but that it further reinforces the global commitment to a nuclear-weapon-free world.