Rendering Moot Mutually Assured Destruction

• Author: Jackson Skinner
• Pages: 149-187

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2021 e Institute for Migrant Rights Press

rEndEring Moot Mutually assurEd

dEstruCtion

Jackson Skinner

e J. Reuben Clark School of Law, Brigham Young University

E-mail: skin533@law.byu.edu

As the Treaty on the Prohibition of Nuclear Weapons takes full eect, the world’s

nuclear powers have shown no inclination to eliminate or limit their nuclear

stockpiles. Non-nuclear states, meanwhile, have limited access to nuclear ener-

gy technologies. is treaty proposal combines an incentive for nuclear weapon

states to disarm with an opening for non-nuclear weapons states to develop do-

mestic nuclear energy industries. By disseminating defensive weapons platforms

throughout the world and obligating participating states to allow destruction of

any launched weapon, nuclear weapon states can more reliably avoid mutually

assured destruction as a strategic tool. e treaty also obligates the United States

to place a nuclear reactor within the borders of other signatories with the goal

of eventually turning over full control of the nuclear program to the host state.

e proposal explores the legality of each piece of this treaty and the feasibility

of its implementation.

VIII Indonesian Journal of International & Comparative Law 149-87 (April 2021)

150

Skinner

INTRODUCTION

As of December 2020, y states have signed and ratied the 2017

Treaty on the Prohibition of Nuclear Weapons [hereinaer TPNW].1

e TPNW will therefore go into full eect January 22, 2021.2 However,

none of the signatories are nuclear weapon states, and the TPNW con-

tains no provisions that are enforceable against non-member states.3

e lack of enforceable provisions against non-member states means

that no nuclear weapon states are likely to sign the treaty, as it would

amount to unilateral removal of that state’s primary deterrence method

against other nuclear weapon states.4 is is not an academic question;

in the latter half of 2020, India and China, both nuclear weapon states,

engaged in deadly skirmishes along their border.5 Disarmament is a

key concern world-wide with very limited realistic options.6

ere is, however, an alternative to mutually assured destruction

deterrent policies. Advocated in the Reagan administration,7 wide-

spread or universal defense arrays combined with similarly wide-

spread treaty obligations to treat all suspected nuclear missile launches

as inherently hostile would prove to be a superior deterrent to the use

of nuclear weapons. is paper proposes a treaty where the United

1. Signature and Ratication Status of the Treaty on the Prohibition of Nuclear

Weapons, https://www.icanw.org/signature_and_ratication_status (last

visited Oct. 30, 2020) (a total of eighty-four states have signed the agreement).

2. https://www.un.org/disarmament/wmd/nuclear/tpnw/

3. Treaty on the Prohibition of Nuclear Weapons, July 7, 2017, 21 I.L.M. 12.

4. See id.

5. Alasdair Pal, U.S. warns of threat posed by China, signs military pact with India,

R, https://www.reuters.com/article/us-usa-asia-india/pompeo-says-u-

s-india-must-focus-on-threat-posed-by-china-idUSKBN27C0OA (last visited

October 30, 2020); Further discussion of volatility in nuclear states (foreign

sponsored nukes in Turkey=> war between Armenia and Azerbaijan)

6. See generally Nuclear Disarmament, Non-proliferation, and Development,

Vatican City: Pontical Acad. of Sci. (2010)

7. See Martin Anderson & Annelise Anderson, Reagan’s Secret War (2010), at

144 (“If the U.S. is the rst to have both oense and defense, we could put

the nuclear genie back into the bottle by volunteering to eliminate oensive

weapons”)

151

Rendering Moot Mutually Assured Destruction

Skinner

States agrees to facilitate nuclear energy advancement in developing

countries in exchange for allowing the United States to operate and

freely deploy defensive technology against all possible nuclear attacks

against all possible targets.8

is proposed treaty calls for two major agreements. First, an

agreement to build or have placed within their borders a missile defense

platform capable, armed, and ready to destroy any active nuclear weapon

that passes through or near its territory [hereinaer Guardian Defense

Network]. Second, any signatory without a well-developed nuclear

energy program may require that one or more other signatories assist it

in building a nuclear energy industry within its borders. is industry

should be domestically controlled, but the assisting country should be

allowed to maintain proprietary information and or get paid for their

services. is paper will examine the legal challenges, implications, and

necessities of both of these agreements and the framework that will

support the treaty’s goals.

is paper is divided into Parts I-IV, with internal subsections

Chapters 1-4 continuing without restarting. At the beginning of each

section or subsection will be the relevant portion of the proposed treaty,

so that the explanation follows behind that portion of the treaty.

Part I will explain the rationale and goals behind the treaty with

regards to developments in international law and the state of the

international community. It begins with the Preamble to the treaty and

then further elaborates on the motivation and reasonings behind the

tr eaty.

Part II will analyze the legality and execution of the missile

defense platform agreement. e rst subsection is an agreement to

unconditionally destroy any active nuclear weapon, here dened as a

nuclear weapon currently in use to attack a state.9 is chapter also

analyzes the legality of various arrangements to carry out this chapter,

including by states who are not signatories. It is preceded by Article II (A)

8. is treaty is bilateral in the sense that the primary agreement is between the

United States and each other signatory. e United States will have actual

trigger control over the defensive weapons platform and is anticipated to

provide all of the nuclear energy technology. However, it is multilateral in the

sense that each signatory is agreeing to the use of their territory for the defense

of all other signatories.

9. See infra Appendix I, article I(C)