1 Indias Credible Minimum Doctrine and the Case for Regulating Nuclear Deterrence 1 Like speeches, plays or poems,

legal opinions can be viewed in terms of their genesis, their content, and their impact. They may have a profound effect on the course of history, or vanish like blips on a radar screen. 2 Indias detonation of five nuclear devices in the summer of 1998 will be remembered for ushering a tectonic shift in South Asias security paradigm. Some have argued that Pokhran II catalysed a nuclear arms race in the region, while others have decried the event as a shock to the very foundations of the Nuclear Non-Proliferation Treaty (NPT) and global efforts at disarmament. In the years that followed the tests, there was, and continues to be, much debate in Indias policy space over the strategic imperatives to build and maintain a nuclear weapons arsenal. It is not in doubt that Indias entry into an elite club of nuclear weapon states was supported by a groundswell of domestic public opinion vindicated, to some extent, by the 2005 Indo-U.S. nuclear deal. The legal historian, nevertheless, will measure the events of 1998 by another yardstick; one that has largely been ignored in the longstanding battle between international norms and national security regimes. Pokhran II was not only the first detonation since the NPT regime was made permanent, but also the first to have taken place since the International Court of Justice (ICJ) issued its Advisory Opinion (the Opinion) on the use and threat of use of nuclear weapons (Nuclear Weapons case). 3 To link a now-critical component of Indias military strategy with an analytical framework bereft of enforceability may seem counterintuitive. After all, the ICJs Opinion hinged on the seemingly irreconcilable differences between nuclear weapons and international humanitarian law, by virtue of the formers inherent destructive capacity. Yet, Indias case is remarkable for the possibility it presents to set a normative agenda for the use or threat of use of nuclear weapons. On May 27, 1998, a fortnight after the last tests were conducted in Pokhran, the Prime Minister of India Atal Behari Vajpayee presented a paper in Parliament explaining the evolution of Indias nuclear policy. Among other aspects, he suggested 4: One of the member initiatives to which we attach great importance [is] the reference to the International Court of Justice (ICJ) resulting in [...] the advisory opinion handed down on 8 July 1996. India was one of the countries that appealed to the ICJ on this issue. No other nuclear-weapon State has supported this judgment; in fact, they have sought to decry its value. An unequivocal affirmation of the ICJs Advisory Opinion, from the head of a government that went nuclear only a few weeks before, is staggering for two reasons. The ICJs Opinion and the General Assembly (GA) resolution that led up to the Opinion were met with opposition from four of five established nuclear weapon states. Barring China, which was absent during the GA vote, the United

1 2

Arun Mohan Sukumar, MALD Candidate (2013), The Fletcher School of Law and Diplomacy, Tufts University. Peter Weiss, The World Court Tackles the Fate of the Earth: An Introduction to the ICJ Advisory Opinion on the Legality of the Threat and Use of Nuclear Weapons, 7 Transnat'l L. & Contemp. Probs (1997), p. 313. 3 Legality Of The Threat Or Use Of Nuclear Weapons, Advisory Opinion of 8 July 1996, http://www.icjcij.org/docket/files/95/7497.pdf [Last Accessed December 20, 2011] 4 See Annex to UNGA/Res./A/53/150, General and complete disarmament, 20 August, 1998.

2 States, France, Russia, and the United Kingdom all expressed their reservations to the Opinion. 5 If the United States accepted the ICJs jurisdiction but argued vehemently against it accepting the GAs request, the United Kingdom and Russia saw it an exercise to force a political question down the Courts throat. 6 France went to the extent of claiming the Opinion was not a judicial act. 7 In subsequent years the nuclear weapon states, with the exception of China, has acted consistently against any GA resolution that refers to the Opinion. For its part, China has neither endorsed nor rejected the Opinion, choosing merely to reiterate its support for disarmament. Secondly, Indias position in this regard is unique. As a leading member of the Non-Aligned Movement, New Delhi sponsored several proposals to kick-start disarmament efforts in the Cold War era. Between 1982 and 1995, each regular session of the General Assembly considered a draft resolution urging the Committee on Disarmament to undertake negotiations, with a view to achieving an agreement prohibiting the use or threat of use of nuclear weapons in any circumstances. 8 And as one ICJ judge observes in his dissenting opinion on the Nuclear Weapons case, these drafts were invariably introduced by India. 9 Apart from supporting GA Resolution No.49/75K, India also submitted a written statement to the ICJ, calling for an absolute prohibition on the use or threat of use of nuclear weapons. 10 On the issue of deterrence whether nuclear deterrence can be distinguished at all from the threat of use is examined later in this analysis the written statement suggested that disarmament take precedence 11 over the former. That India tested nuclear devices in the aftermath of the Opinion casts a shadow on its purported intentions, especially towards disarmament. On the other hand, the tests have not stood in the way of India embracing the Opinion, at least in principle. As the Prime Ministers remarks followed up by numerous and consistent declarations, made by the Permanent Representative of the Indian Mission to the UN, to adhere to the ICJs opinion12 indicate, India has demonstrated a clear willingness to be regulated by international norms regarding its nuclear posture.

See generally, Written Statements of the United States of America, the United Kingdom, the French Republic, and the Russian Federation available at http://www.icj-cij.org/docket/index.php[Last Accessed December 20, 2011]. 6 See generally, Michael J. Matheson, The ICJ Opinions on Nuclear Weapons, 7 Transnatl L. & Contemp. Probs. (1997), p. 357. 7 Letter from the Press Attache of the French Embassy in Wellington to John Hampton, (Feb. 25, 1997) via Peter Weiss, Supra n.1 at p. 331. 8 See generally, Official Records of the General Assembly, Twelfth Special Session, Supplement No. 6; AIS-12/32 A/S- 12/32, 20 ; A/S- 12/AC. 11 L.4 [Last Accessed via United Nations Official Documentation System on December 20,2011]. 9 Dissenting Opinion Of Judge Oda, Legality Of The Threat Or Use Of Nuclear Weapons, p. 348. 10 Letter dated 20 June 1995 from the Ambassador of India, together with Written Statement of the Government of India, http://www.icj-cij.org/docket/files/95/8688.pdf [Last Accessed December 20, 2011]. 11 Ibid at p. 5. 12 See Disarmament Commission 2001 substantive session 9 April 2001 A/CN.10/2007/WG.I/WP.1; General Assembly Fifty-fifth session First Committee 7th meeting, 6 October 2000, A/C.1/55/PV.7, Disarmament Commission 2001 substantive session,12 April 2001 A/CN.10/2001/WG.I/WP.3; General Assembly Fifty-sixth session First Committee 10th meeting, 16 October 2001; A/C.1/56/PV.10, General Assembly Official Records Fifty-first session, First Committee, A/C.1/51/PV.18; Fifty-fourth session Item 76 (p) of the provisional agenda General and complete disarmament: follow-up to the advisory opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons 11 November 1996, A/54/161/Add.1. [Last Accessed via United Nations Official Documentation System on December 20,2011].

3 In August 1999, Indias National Security Advisory Board formulated a draft report on the countrys nuclear doctrine. This policy, now known as that of credible minimum deterrence(CMD), was approved by the Government of India in 2003, with all but one significant change. 13 A plain reading of the doctrine suggests it is cognizant of non-proliferation and disarmament goals. Accepted at face value, the CMD doctrine is in essence a justificatory discourse brought about by the patent lack of commitment from nuclear weapon states to disarm. Even in strategic terms, Indias doctrine is the only espousal by any nuclear weapon state of minimum deterrence with no-first use. It is certainly not unreasonable to presume Indias stance before the ICJ was mindful of its preparations towards testing a nuclear device. Efforts to bring Operation Shakti to fruition had moved into top gear in 1995, when India approached the Court with its written statement. 14 At the risk of speculation, a deliberative back-and-forth at the highest levels of policy-making may also have been the reason behind Indias submission of its written arguments on the very last day to do so. In any event, the preponderance of declarations and practices show India to have adopted a nuclear doctrine, not with the intention to contravene international norms, but with a readiness to be chaperoned by them. What are the norms concerning deterrence, if they do exist in the first place? The question prompts a substantive analysis of the ICJs Advisory Opinion and its formulations, including those in the declarations, separate and dissenting opinions, on nuclear deterrence. Subsequently, this paper examines the doctrine of credible minimum deterrence as enunciated by Indias security establishment and attempts to evaluate its tenability with the Opinions regulatory framework. Where possible, this analysis endeavours to outline issues of compliance and juxtapose them with the strategic concerns posited by India. Based on this comparison, some policy recommendations are offered to bring Indias nuclear deterrence policy closer to the international legal regime. The Advisory Opinion and Nuclear Deterrence In direct terms, the Opinion steered clear of pronouncing upon the policy of deterrence, stating it was not the Courts intention to do so. 15This statement, used to justify extant policies of nuclear weapon states, 16 is more a stumbling block than a helpful guide. In fact, the Opinion makes several references to nuclear deterrence, some of which throw light on its scope and permissibility. The Advisory Opinion recognized consistent state practice in the sphere of nuclear deterrence, with nuclear weapon states maintaining this policy for nearly half a century. Nevertheless, the Court was [un]able to find opinio juris that would legitimize the practice. [..] the members of the international community are profoundly divided on the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the expression of an opinio juris.17

13 14

C. Raja Mohan, Nuclear Command Authority comes into being, THE HINDU, January 5, 2003. Tim Weiner, U.S. Suspects India Prepares To Conduct Nuclear Test, THE NEW YORK TIMES, December 15, 1995. 15 Supra n. 2 at 67. 16 Supra n.5 at p. 417. 17 Supra n.15.

4 Strong subscription to the practice of nuclear deterrence was in fact influential in the Courts ultimate, and now intensely scrutinized, conclusion that there existed neither prohibition nor authorization of the use of nuclear weapons in international law. The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons as such is hampered by the continuing tensions between the nascent opinio juris on the one hand, and the still strong adherence to the practice of deterrence on the other.18 The ICJs Advisory Opinion, taken together with the views of individual judges, offers a two-fold characterization of deterrence. Through its refusal to comment on such practice, and by acknowledging its adoption by nuclear weapon states, the Court elevated deterrence to a policy standard, raising serious concerns as to the scope of its regulation. The Courts non-denial denial of regulatory autonomy to States that pursue nuclear deterrence has been subject to criticism from within. On the other hand, the Opinion also contextualized deterrence within the framework of threat of use of force, as envisaged in Article 2(4) of the UN Charter. The General Assembly asked the ICJ if the use or threat of use of nuclear weapons is permissible under international law in any circumstance. The Court categorically affirmed that the threat to use force would be impermissible if the use contemplated therein was illegal. But to the billion dollar question whether the use of nuclear weapons was illegal, the Opinion had no conclusive answer. However, in paragraph 2C of its response to the GA, the Court unanimously declared those threats or uses of nuclear weapons contrary to Article 2(4) or the requirements of Art. 51 of the UN Charter to be unlawful. Paragraph 2C is an attempt by the Court to arrive at a modus vivendi, suggesting that deterrence as a threat to use force is not entirely unbridled. By circumscribing such threats within Articles 2(4) and 51, the Opinion subjected deterrence to well-recognized principles of proportionality and necessity. Stripped bare of all complexities, the Court found no reason to accord an exceptional status for nuclear deterrence as a threat to use force. However in paragraph 2E, the Court found the use or threat of use of nuclear weapons to be generally contrary to principles of international law applicable to armed conflict and to norms embedded in international humanitarian law. This finding of general unlawfulness was further qualified and the ICJ could not conclude whether the use or threat of use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the survival of the State was at stake. Paragraph 2E poses an enormous challenge to the policy of nuclear deterrence. In defining two sets of results applicable to the use of force under the UN Charter and under laws of armed conflict, the Court separated respectively, jus ad bellum and jus in bello principles relating to nuclear weapons. This also seems to have been the intention of States which submitted written arguments before the Court. 19 Yet, in the case of nuclear deterrence, the threat to use force as a means of preventing war is contingent on the actual use of force in the event of armed conflict. In other words, deterrence is
18 19

Supra n.2 at 73. See Individual Opinion of Judge Guillaume, Legality of the Threat or Use of Nuclear Weapons, 8.

5 essentially a jus ad bellum measure, intrinsic to the use of force governed by jus in bello. In strategic terms, no State would be willing to adopt a posture that relies on deterrence without backing it up with a credible threat to use nuclear weapons in retaliation. What then, does a concomitant reading of paragraphs 2E and 2C a suggestion put forth incidentally by a judge of the Court 20 lead one to conclude? Nuclear deterrence as a principle of self-defense, is arguably permissible under international law, provided the conditionalities in Articles 2(4) and 51 of the UN Charter are met. Governed by the Courts exposition of Article 51 in Nicaragua,21 and virtually proscribed by principles of necessity and proportionality, a first-use nuclear doctrine would almost always unlawful. However, the Opinion does not offer guidance per se to the status of firstuse in an armed conflict as an extreme circumstance of self-defence. Although the Court was careful not to tread on a States sovereign right to make this existential evaluation, it nevertheless suggested: [...] the conduct of military operations is governed by a body of legal prescriptions. This is so because "the right of belligerents to adopt means of injuring the enemy is not unlimited" as stated in Article 22 of the 1907 Hague Regulations relating to the laws and customs of war on land. 22 To sketch the normative contours of nuclear deterrence, it is useful to turn to the corpus of declarations, both separate and dissenting, that constitute the periphery of the Opinion. The policy of deterrence was approached with caution by some judges, whereas it found favour with others. President Bedjaoui, who exercised his casting vote in favour of paragraph 2E elaborated at length that the finding of non liquet could not be interpreted as a free rein for States to do as they please. 23 Acts in self-defence, in his opinion, would not relieve States from adhering to intransgressible principles of international humanitarian law even when the operative clauses of extreme circumstances and survival were triggered. 24 Judge Herczegh, who also voted for 2E, wrote that the self-defence requirements under Article 51, and affirmed unanimously in paragraph 2C, would be operative even in the event of an armed conflict although both paragraphs, he admitted, were not easily reconcilable. 25 If Bedjaoui and Herczegh made subtle references to the regulation of nuclear deterrence, this found overt manifestation in Judge Shi who expressed reservations with the Courts treatment of nuclear deterrence as a policy instrument. Moulding legality in accordance with the practice of deterrence, in Shis words, would be to confuse policy with law; [...] the policy of nuclear deterrence should be an object of regulation by law, not vice versa. 26

See generally Individual Opinion of Judge Ranjeva, Legality of the Threat or Use of Nuclear Weapons. See generally, Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), 27 June 1986. 22 Supra n.2 at 77. 23 Declaration of President Bedjaoui, Legality of the Threat or Use of Nuclear Weapons, 16. 24 Ibid, 22. 25 Declaration of Judge Herczegh, Legality of the Threat or Use of Nuclear Weapons, p.54. 26 Declaration of Judge Shi, Legality of the Threat or Use of Nuclear Weapons, p.55.
21

20

6 Shis declaration resonates with the opinion of Judge Bravo, who ventured to suggest that deterrence possessed no legal validity. Rather, he said, the regulatory prescriptions connecting Articles 2(4) and 51 of the UN Charter had been wedged open by the practice of deterrence. 27 A skeletal regulatory framework for nuclear deterrence now emerges, with the aforementioned judges inclined to view the practice less as unbridled policy, and more as a threat of use of force referred to in Article 2(4). Article 51, they suggest, should be interpreted restrictively, so as to confine the parameters of self-defence within the limits of international humanitarian law and rules of armed conflict. Judge Vereshchetins assertion of the legal systems completeness, followed by a recommendation to prohibit courts from declaring non liquet, complements this notion. 28 It is clear that the ICJ judges who voted for paragraph 2E have not left the outlines of its second sentence completely unmarked. The apparent indecision of the Court, wrote Vereshchetin, may prove useful as a guide to action, indicating the criticality of this regulatory approach to nuclear deterrence. 29 This is the starting point for the Courts divergence in opinion. Judge Ranjeva, for instance, suggests a harmonious construction of paragraphs 2E and 2C; to him, the regulatory mechanisms which support this cohesive interpretation should have led the Court to declare patent illegality simply because the very nature of nuclear weapons permit no reconciliation. [...] the operative part combined with the wording of paragraph 2 E poses the problem of the actual consistency of the judicial conclusion in the Advisory Opinion of the Court. It is regrettable that the inherent difficulties of the very subject of nuclear weapons were not turned to advantage by the Court to enable it to exercise its judicial function more definitely.30 Judge Higgins dissent takes aim at the conclusion of general illegality, since the Courts non liquet approach to self-defence in extreme circumstances unwittingly leaves open the possibility of use or threat of use of nuclear weapons in contravention of humanitarian law. Higgins debunks the false dichotomy between the practice of nuclear deterrence and adherence to international humanitarian law. 31 Hypothesizing, she acknowledges the case for accommodating nuclear weapons within the ambit of international humanitarian law concerns like proportionality and collateral civilian damage. If States have pursued nuclear deterrence, she writes, it must not only have been in the belief of adherence to Charter obligations, but also to duties under international humanitarian law. 32 Like Shi, Higgins is amplifying the case for regulating nuclear deterrence, with the difference that the latter espouses built-in restrictions. Even among judges who adopted the hard Lotus 33 approach, viz., what is not expressly prohibited in international law is permissible, and found nuclear deterrence to have been legitimized, there was
Declaration of Judge Bravo, Legality of the Threat or Use of Nuclear Weapons, p.62. Declaration of Judge Vereshchetin, Legality of the Threat or Use of Nuclear Weapons, p.57. 29 Ibid, p.59. 30 Supra n.20 at p.78. 31 Dissenting Opinion of Judge Higgins, Legality of the Threat or Use of Nuclear Weapons, 33. 32 Ibid. 33 Richard A. Falk, Nuclear Weapons, International Law and the World Court: A Historic Encounter, AJIL Vol. 91, No. 1 (Jan., 1997), p.66.
28 27

7 near consensus that such practice was subject to regulations. The foundation of nuclear deterrence, Judge Guillaume suggested, lay in the practice adhered to by an appreciable section of the international community. While upholding the primacy of the right of self-defence, Guillaume hinted UN Charter principles would permeate its implementation even during armed conflict: It may be wondered whether [...] the rules of the jus ad bellum may not provide some clarification of the rules of the jus in bello. 34 It is inconceivable that the judge, while testing the waters for importing self-defence Charter principles into armed conflict, chose to overlook the rigors of its application. Similarly Judge Fleischhauer characterized the second sentence of paragraph 2E as an express recognition, inter alia, of nuclear deterrence. If he termed nuclear deterrence as state practice in its legal sense and based on the right to self-defence35, Fleischhauer found the right to self-defence itself to be subject to regulations under the Charter as well as international humanitarian law. To mitigate the friction between nuclear weapons and the law of armed conflict, he justified their use as a last resort against an attack with nuclear, chemical or bacteriological weapons or otherwise threatening the very existence of the victimized State. 36 Vice-President Schwebel suggested the threat of use of force was different from nuclear deterrence by its generality, but held such threat to be inherent in the practice. Consistent nuclear postures of the P5 states and lack of overwhelming consensus in adopting GA resolutions, according to Schwebel, have aborted the birth of opinio juris to render nuclear weapons unlawful. But the judge expressed his strong disapproval of a finding of non liquet a conclusion he rebutted quoting Lauterpacht with approval: "There is not the slightest relation between the content of the right to self-defence and the claim that it is above the law and not amenable to evaluation by law. Such a claim is self-contradictory, inasmuch as it purports to be based on legal right, and as, at the same time, it dissociates itself from regulation and evaluation by the law. Like any other dispute involving important issues, so also the question of the right of recourse to war in self-defence is in itself capable of judicial decision. 37 Judge Oda, who voted against responding to the GA request for lack of a real need to legally ascertain the status of nuclear weapons, adopted the stance that nuclear deterrence continues to be meaningful and valid. 38 There is nothing to indicate that his support for deterrence, bolstered mainly by an entrenched NPT regime, was unqualified Judge Odas dissenting opinion avoids a discourse on self-defence under the UN Charter or rules armed conflict, and it would be speculative to interpret his remarks in this regard.

34 35

Supra n.19 at p.68. Separate Opinion of Judge Fleischhauer, Legality of the Threat or Use of Nuclear Weapons, p.87. 36 Ibid at p. 85. 37 Dissenting Opinion of Judge Schwebel, Legality of the Threat or Use of Nuclear Weapons, p.100. 38 Supra n.9 at p. 142.

8 Even Judge Koroma, who joined dissenting judges Weeramantry and Shahabbudeen in finding the use or threat of use of nuclear weapons prohibited in international law, merely reasoned it was injudicious of the Court to have given legal recognition to the principle of nuclear deterrence. Koromas conclusion that deterrence was a non-legal matter must be read in context with the overarching rationale of his opinion, which subjects (and according to him, ultimately proscribes) recourse to nuclear weapons to the law of armed conflict.39 Judge Shahabuddeen strove to exclude the right to use nuclear weapons from the ambit of the inherent right of self-defense under Article 51, leaving no room for a regulatory framework for deterrence based on Charter principles. His comments as regards the impact of the Opinion on international humanitarian law are, however, worth noting here: [It follows from the Courts Opinion] that humanitarian law does not apply to the use of nuclear weapons in the main circumstance in which a claim to a right of use is advanced is to uphold the substance of the thesis that humanitarian law does not apply at all to the use of nuclear weapons. That view has long been discarded; as the Court itself recalls, the NWS themselves do not advocate it. I am not persuaded that that disfavoured thesis can be brought back through an exception based on self-defence.40 Weeramantrys opinion deals directly with the policy of deterrence and confines it entirely to the threat of use of force. Deterrence, he argues, fails to meet the Charter principles of self-defence, because its practice would always constitute a disproportional reaction. Specifically on minimum deterrence, Weeramantry declares that legal objections to deterrence are not removed by its minimized character. 41 Notwithstanding its substantial contribution to the understanding the place of nuclear weapons in international law, Weeramantrys view on deterrence does not resonate with those of the other judges. Embedded in the plurality of separate and dissenting opinions, therefore, is a clarion call for regulating the deterrence posture of nuclear weapon states. But the hands-off approach adopted by several judges leaves behind a rudimentary system of norms. Nevertheless, it is useful to present them as possible arguments here: 1. Nuclear deterrence, as a policy instrument, is valid but not unconstrained. 2. As a jus ad bellum measure, it is governed by Charter principles in Articles 2(4) and 51. 3. The same principles clarify any course of action - specified in the deterrence policy of states - implemented during armed conflict. 4. The right of self-defence, which a deterrence policy reserves, is regulated by the principles of proportionality and necessity, even when the survival of the State is at stake. Indias Nuclear Posture: Credible Minimum Deterrence From the vantage point of the ICJs Advisory Opinion, an analysis of Indias minimum credible deterrence policy serves two purposes: one, examining substantive compliance and/or derogation

39 40

Dissenting Opinion of Judge Koroma, Legality of the Threat or Use of Nuclear Weapons, p.357. Dissenting Opinion of Judge Shahabuddeen, Legality of the Threat or Use of Nuclear Weapons, p.205. 41 Dissenting Opinion of Judge Weeramantry, Legality of the Threat or Use of Nuclear Weapons, p.317.

9 from the Opinion, and two, identifying parameters that would frame the debate on norms regarding nuclear deterrence in general. Given the limited guidance of the Opinion on the subject, is it possible to compare Indias deterrence policy to a formal set of rules? Indias Nuclear Doctrine, as stated previously, was released by its National Security Advisory Board in 1999, and approved by the Government of India in 2003. The then Convenor of the NSAB has suggested there are two structural components to this Doctrine a no-first use posture, and deterrence that is both minimal and credible.42 The Doctrine embraces a no-first use policy based however on punitive retaliation with nuclear weapons to inflict damage unacceptable to the aggressor. 43 The term minimal is conspicuous by the absence of any explanation whatsoever; on the other hand, the Doctrine purports to lend credibility to the deterrent effect by letting adversaries know that India can and will retaliate [...]. 44 Although officials in government have speculated on, and arguably redefined the scope of this doctrine, there have been no institutional attempts to modify it further. The analytical advantage offered by a minimum deterrent based on retaliation is that it falls squarely within the regulations prescribed by the Opinion to use or threat of use of nuclear weapons as selfdefence. To this extent, the preceding discussion on charter principles is applicable as a standard to measure Indias nuclear doctrine. This section focuses on the two main pillars of the deterrence policy adopted by India and deals specifically with compliance issues, strategic concerns and policy recommendations. No first-use (NFU) Compliance issues The NFU posture in deterrence policy signifies that a State will not be the first to use nuclear weapons against an adversary. Within the context of the Advisory Opinion, the NFU policy is central to the tenets of self-defence, under the UN Charter as well as during armed conflict. There are two circumstances under which a first-use option may be envisaged: 1. An attack using nuclear weapons in anticipatory self-defense based on the threat perception of the nuclear weapon state. 2. Recourse to nuclear weapons in response to an armed attack by an adversary using conventional means of warfare. Scholars have adduced persuasive arguments to suggest that anticipatory self-defense under the UN Charter is impermissible45 to some extent, this is supported by the ICJs verdict in Nicaragua. But the fact that Article 51 of the Charter makes no reference to the threat of an armed attack is
42 43

K. Subrahmanyam, No Second Thoughts, THE INDIAN EXPRESS, September 8, 2009. Clause II.iii, Draft Report of National Security Advisory Board on Indian Nuclear Doctrine, August 17, 1999 http://www.pugwash.org/reports/nw/nw7a.htm.[Last Accessed on December 20,2011] 44 Ibid, Clause IV.i. 45 Michael Glennon, The Fog of Law: Self-Defense, Inherence, and Incoherence in Article 51 of the United Nations Charter, 25 Harv. J.L. & Pub. Pol'y (2001-2002), p.546.

10 neither decisive nor has it constrained States from invoking preventive measures. The Bush Doctrine of pre-emption is most prominent in this regard. It is equally noteworthy that the jurisprudence surrounding anticipatory self-defence is far from being unsophisticated, although this exercise will limit itself to the principles application to the particular case at hand. Nevertheless, it is widely accepted that anticipatory self-defense is subject to strict parameters in its implementation. The question to be asked then is: Does the notion of anticipatory self-defence lend support to a policy of first use, where the threat is "instant, overwhelming, and leaving no choice of means, and no moment for deliberation?" 46 The answer, while far from conclusive, seems to be no. If the judges in the Nuclear Weapons case called for deterrence policies to be subject to regulation, they also recognized the dangers inherent in such weapons. In the case of nuclear weapons it may well be argued that the distinction between pre-emptive and preventive self-defense is blurred, simply by virtue of the magnitude of threat posed. However, recourse to nuclear weapons would have to overcome two legal barriers one, that satisfies the norms to trigger self-defense, and two, the prescriptions of necessity and proportionality. Based on an accumulation of events that entail palpable and imminent threats 47, a State may use force in anticipation of a nuclear onslaught, but it seems highly unlikely that such force be permissible in the form of a corresponding nuclear attack. The use of force, by any account, has to be proportional to the threat so faced, and given the lack of unbridled autonomy to frame a deterrence policy, it would hence be difficult to defend a first-use posture. The plea of necessity, while conceived as a safety valve48 is arguably subject to the same standards as self-defence. 49 Far from granting an exceptional status to necessity, there is overwhelming consensus among the ICJ judges that nuclear weapons may be used only in extreme circumstances. Thus, the requirements to render nuclear aggression necessary are higher than those regarding self-defence through conventional modes of warfare. The norms of proportionality and necessity would also inform minimum and credible deterrence. The ICJs Advisory Opinion is remarkable in that it purports, after much struggle, to colour the use of nuclear weapons in armed conflict with norms comparable to that in the UN Charter. Based on the aforesaid evaluations, the tests of proportionality and necessity will therefore apply to their use even in the instance of an armed attack. It is possible to argue that the necessity requirement is closer to being met once an armed attack, based on its scale, has occurred. But the standard of proportionality still holds apart from the reasons introduced by the ICJ in its Advisory Opinion, there is a significant body of judicial pronouncements and academic scholarship that suggests

The Caroline Test; See generally, Christopher Wood The Caroline, Max Planck Encyclopedia of Public International Law [Last Accessed via the Internet on December 20, 2011]. 47 Ibid; See generally Nicaragua. 48 See generally, Document A/35/10, Draft Articles on State Responsibility- International Law Commission, http://untreaty.un.org/ilc/documentation/english/A_35_10.pdf [Last Accessed on December 20, 2011]. 49 Ian Johnstone, The Use of Force in THE UNITED NATIONS AND NUCLEAR ORDERS (eds. Jane Boulden, Ramesh Thakur and Thomas G. Weiss), United Nations University Press (2009).

46

11 proportionality in jus ad bellum and jus in bello are interdependent. The Nuremberg Tribunal, for instance, declared: Whatever may be the cause of a war that has broken out, and whether or no the cause be a so-called just cause, the same rules of international law are valid as to what must not be done, may be done, and must be done by the belligerents themselves in making war against each other, and as between the belligerents and neutral states. This is so, even if the declaration of war is ipso facto a violation of international law .... 50 To justify nuclear aggression in response to an armed attack by conventional means would be to test the very limits of proportionality in the use of force. Argumentatively, therefore, it must follow that a first-use policy enshrined in a countrys deterrence posture would be at odds with the tone and tenor of the Advisory Opinion. Strategic Concerns Indias nuclear deterrence policy espouses an NFU posture, but it is not entirely unqualified. The first hints of an NFU deterrent were offered by the then Prime Minster Vajpayee in 1998, when he declared: India will not be the first to use nuclear weapons. Having stated that, there remains no basis for their use against countries which do not have nuclear weapons. 51 The Draft Nuclear Doctrine released a year later called the first use doctrine offensive and stated in Clause IV of its Objectives that India will not be the first to initiate a nuclear strike, but will respond with punitive retaliation should deterrence fail. Yet the very next clause sought to qualify this assertion: India will not resort to the use or threat of use of nuclear weapons against States which do not possess nuclear weapons, or are not aligned with nuclear weapons powers. In the years leading up to its approval, this position adopted by the Draft Nuclear Doctrine which enlarged the pool of adversaries 52 caused considerable controversy in India. Nevertheless, the expansionist posture still seemed to be based on NFU, under all circumstances. The response from the External Affairs Minister to the controversy, however, eroded this stance. In an interview to The Hindu, he explained:

United States v. List, 11 Trials of War Criminals before the Nuernberg Military Tribunals Under Control Council Law No. 10, at 1230, 1247 (1948) via Judith Gail Gardam, PROPORTIONALITY AND FORCE IN INTERNATIONAL LAW, Am. J. Int'l L. (411) 1993. 51 Supra n.3. 52 Ashley Tellis, India's Emerging Nuclear Posture Between Recessed Deterrent and Ready Arsenal, MR-1127-AF
(RAND Corporation 2001).

50

12 India has declared a no-first use doctrine. This has implicit in the principle that India shall not use nuclear weapons against non-nuclear weapon states. 53 The question arose, then, as to whether the NFU policy was confined only to non-nuclear weapon states. The official nuclear doctrine, released by the Government of India four years after Pokhran II, skirted this issue. Instead, the government added a caveat to the NFU principle to include: In the event of a major attack against India, or Indian forces anywhere, by biological or chemical weapons, India will retain the option of retaliating with nuclear weapons." 54 The official position was the first indication that Indias deterrence posture did not impose a blanket ban on the first use of nuclear weapons. In 2009, the Indian Army Chief suggested that India revisit its no-first use policy 55, in the light of the increasing strength of Pakistans nuclear arsenal. The latest declaration in this regard came from the present National Security Advisor Shivshankar Menon, who suggested in a 2010 speech that: The Indian nuclear doctrine also reflects this strategic culture, with its emphasis on minimal deterrence, no first use against non-nuclear weapon states and its direct linkage to nuclear disarmament. 56 This statement has engendered an intense debate on whether the NFU has been set aside to welcome a more reserved posture that is suited to the nuances of a nuclearized sub-continent. Nevertheless, there is a significant divergence of opinion in Indias strategic community in this regard. K. Subrahmanyam, the former convenor of the NSAB, wrote in the aftermath of the Army Chiefs recommendation: Giving up NFU will only increase nuclear tension without solving the problem of the risk of a possible decapitating strike by the potential enemy. There must be a better understanding of the national no-first-use policy among our armed forces and other decision- and policy-makers, as well as a deeper grasp of the concept of deterrence.57 Policy recommendations Where does Indias NFU-lite sit within the normative framework regarding nuclear deterrence in the Advisory Opinion? I have previously highlighted the difficulties in sustaining a first-use deterrence policy that meets the requirements of self-defence in international law. In the Indian context this presents problems and possibilities, which are outlined below.

India Not To Engage in N-Arms Race: Jaswant, THE HINDU, December 3, 2001. Supra n.13. 55 May Have To Revisit Nuclear No-First Use Policy: Army Chief, THE TIMES OF INDIA, September 6, 2009. 56 Speech by NSA Shri Shivshankar Menon at NDC on The Role of Force in Strategic Affairs http://www.mea.gov.in/mystart.php?id=530116584 [Last Accessed December 20, 2011]. 57 Supra n.42.
54

53

13 Strategic ambiguity has been a defining aspect of Indias nuclear doctrine for a number of reasons. For one, a nebulous policy allows for operational autonomy in the event of military strikes. 58 Moreover, a deterrent policy is only as effective as the adversarys perception of threat capabilities. 59 This is a crucial reason why the Indian government has been reticent to define the contours of NFU and minimum deterrence as understood in its official doctrine. Most importantly, the lack of instructive regulations reveals the official establishments discomfiture in cementing the place of nuclear weapons in its strategic discourse. Despite the nationalist sentiment and pride associated with the pursuit of nuclearization in India, there is compelling reason to argue that nuclear weapons are not central to the countrys military strategy. 60 This presents a Catch-22 situation. One the one hand, the governments attempts at moulding its deterrence policy into a political doctrine61 offers some assurance that the threat of use of nuclear weapons will not be realized, but for truly exceptional circumstances. However, limiting a deterrence policy within the political realm provides no incentives to declare its operational features in concrete terms. Consequently, it becomes difficult to evaluate this posture based on any framework, including the ICJs Advisory Opinion. In Indias case, this problem has a direct bearing on the NFU aspect of deterrence. Most public declarations concerning nuclear weapons from the Indian establishment have been careful to criticize the first-use doctrine, and yet eschew a clear policy on the same. In as much as the strategic community may want to proscribe first use of nuclear weapons, such possibility is limited by the nuclearized neighbourhood in South Asia. Pakistan is yet to express support for an NFU posture as one of the smallest countries to possess nuclear weapons capability, its strategic calculus is understandably governed by the disparate territorial strength of its neighbour. 62 In other words, Pakistan cannot afford to rely on a second strike posture, because its very survival may be threatened by a single successful nuclear attack. This holds true particularly in light of the fact that both countries are grossly mismatched, to Pakistans detriment, in their conventional military strength. 63 The situation presents a huge complication that reflects on Indias deterrence posture as well. The conventional military thinking in New Delhi is that a formal embrace of a catch-all NFU policy will lend a strategic edge to Pakistan. A comprehensive renunciation of the first-use posture by the Indian government would therefore be desirable, if it were to indicate compliance with the ICJs Advisory Opinion. However, the strategic concerns cannot simply be wished away. One plausible course of action would be to facilitate a framework that extracts a commitment from Pakistan in favour of a NFU doctrine. To induce Pakistan into rejecting a first-use doctrine will require India to offer carrots in the form of military concessions, which makes this difficult. Nonetheless, India has already initiated some steps in this regard.

58 59

Rajesh M. Basrur, Minimum Deterrence and Indias Nuclear Security, p. 25 (NUS Press, 2009). See generally, Rajesh M. Basrur, Indias Escalation-Resistant Nuclear Posture, (Washington DC: Stimson Center, September 2006) http://www.stimson.org/images/uploads/researchpdfs/ESCCONTROLCHAPTER3.pdf [Last Accessed on December 20,2011] 60 Supra n.59 at p.57. 61 Ibid. 62 Farah Zahra, Credible minimum nuclear deterrence II, THE DAILY TIMES, August 26, 2011. 63 S. Arun Mohan, Behind the F-16 Deal, a Tale of Many Wheels, THE HINDU, May 30, 2011.

14 In October 2010, India presented a proposal to the UN General Assembly to place the NFU policy within a binding framework. To quote Indias representative: As part of its credible minimum nuclear deterrent, India has espoused the policy of no first use against nuclear-weapon States and non-use against non-nuclearweapon States, and is prepared to convert those policies into multilateral legal arrangements.64 It is important, and remarkable, to note that this statement not only puts forth a suggestion to regulate the deterrent stature from policy to law, but also round rejects first use by India against nuclear weapon states. However, the speech quoted previously by the National Security Advisor was made exactly a week after Indias UNGA statement, leaving the policy again in a state of limbo. Minimum and Credible Deterrence Compliance Issues The ICJs Advisory Opinion does not specifically address the quantitative dimensions of using or threatening to use nuclear weapons. The question of whether tactical weapons deployed to cause minimal damage would conform to Charter principles or rules of armed conflict was thus left open.65 However, by regulating the scope of deterrence policies within these international legal regimes, the Court rendered an exploratory evaluation possible. Minimum deterrence, according to one definition, is a threat to enforce the lowest level of damage necessary to prevent attack, with the fewest number of nuclear weapons possible. 66 While it seems inoffensive compared to the maximalist nuclear strategies of the Cold War era, the doctrine of minimum deterrence poses a fundamental challenge to the norms highlighted in the Nuclear Weapons case. From the perspective of global disarmament, a minimal stockpile of nuclear weapons is the first step to Article VI (NPT) negotiations in good faith. The Advisory Opinion reinforces this principle, and requires nuclear weapons states to pursue and conclude negotiations to disarm themselves. 67 That a State is not engaged in a relentless pursuit of nuclear ammunition casts its intention to negotiate in a favourable light. But the very essence of minimal deterrence is that it eschews quantity in favour of causing unacceptable damage a term that Indias nuclear doctrine expressly adopts. And therein lies the rub. In other words, a State pursuing minimum deterrence will endeavour to show that any nuclear strikes in its territory will be met with severe punishment. This assertion exhibits a prima facie disregard for proportionality - if States were to assert that the use of nuclear weapons will be proportionate to the attack countenanced, the very foundations of deterrence will serve no purpose. Credibility is a natural corollary to the minimum deterrence policy. It seeks to reinforce the adversarys estimation of the unacceptable damage that will ensue in the form of nuclear

64

General Assembly Sixty-fifth session First Committee 11th meeting, 15 October 2010, A/C.1/65/PV.11. [Accessed via the UN Official Documentation System on December 20, 2011] 65 Advisory Opinion, 94. 66 Supra n.58. 67 Advisory Opinion, 100.

15 retaliation. To the extent that it purports to announce a disproportionate reprisal, credibility also creates hurdles to norm compliance. These regulatory difficulties are not easily overcome, and Indias strategic concerns compound the problem. Strategic concerns Since 1998, when the Indian government first announced the pursuit of a deterrence policy, several international actors, including the United States, have requested it to specify the notion of minimum as understood therein. 68 To this date, no clarification has been forthcoming. There are strong reasons, both normative and strategic, for the Indian establishment to refrain from defining a quantitative limit to its nuclear arsenal. For one, the minimum deterrence policy is essentially a compromise on the one hand, a State seeks to maintain a threshold quantity of nuclear weapons; on the other, it cannot afford to reveal the threshold since this would allow the adversary to engage in a cost-benefit analysis of a nuclear strike.69 If the adversary decides that the minimal threshold of the State in question may be withstood, that creates a divisive turnaround in the psycho-strategic calculus of armed conflict. If information is asymmetric, conventional military thinking presumes, States will err on the side of caution. 70 However, several experts have debunked the notion of opacity while pursuing minimum deterrence. The question of what is unacceptable damage, they assert, cannot be measured in terms of the number of weapons or nuclear strikes. Even the prospect of one successful attack, given the destructive capacity of nuclear weapons, would suffice to deter a nation from resorting to them in the first place. 71 The focus then is not on the number of weapons stockpiled, but on enhancing strike capabilities through an efficient control-and-command system. 72 To this school of thought, revealing the minimum capability of a nuclear weapon state is both desirable and advisable. Not only would it prevent wild speculation on the part of warring nations, but a clear understanding of nuclear weapons capability will contribute immensely to the reduction of an arms race. The arguments advanced on this count are more compelling in light of the situation in South Asia, where Pakistans territorial constraints make it particularly vulnerable to even the smallest nuclear attack. Simply put, any retaliation would be punitive in nature. Policy recommendations Given the divergence in views, how can the minimal and credible tenets of Indias nuclear doctrine be reconciled with the substantive requirements proposed in the Advisory Opinion?

68

See generally, Strobe Talbott Good Day for India, Bad Day for Non-Proliferation, Nuclear Age Peace Foundation, July 21, 2005 http://www.wagingpeace.org/articles/2005/07/21_talbott_good-day-india.htm [Last accessed on December 20, 2011], 69 K. Subrahmanyam, Because the Bluff Might be Called (Part-II), The Indian Express, September 16, 2009. 70 Ibid. 71 Supra n.58. 72 K. Subrahmanyam, Thinking through the Unthinkable (Part-I), The Indian Express, September 15, 2009.

16 It is important to bear in mind that Indias nuclear strategy is not aimed solely at Pakistan, or for that matter, China. As a tenet of its national security framework, the CMD attempts to deter any adversary that might contemplate a nuclear strike against India. For this reason alone, it is difficult to tailor policy recommendations that check all the normative boxes as described previously. On this count, the Indian establishment could initiate a review of its Nuclear Doctrine. Even formal changes to the policy, without enforcing a shift in its strategic paradigm, could bring the doctrine closer to international legal regimes. Some suggestions follow: 1. Eschewing any references to unacceptable and punitive damage The change is unlikely to bring about any serious re-evaluation of Indias nuclear capability estimates. In its current form, the term does violence to the notion of proportionality and is thus, best avoided. 2. Announcing Indias nuclear capability A doctrine of minimum deterrence is greatly augmented by announcing Indias threshold capability. Presently it is estimated that India and Pakistan both possess nuclear warheads ranging from 70 to 100 announcing an accurate estimate, given the realities on the ground, is unlikely to change the balance of power in the region. A declaration to this effect, however, must be preceded by widespread changes to Indias national security apparatus, to allow for prompt and efficient secondstrike capabilities. 3. Qualifying assured retaliation It would be counterproductive to suggest that India avoid any reference to assured retaliation, since that is the life and soul of its deterrence policy. However, the government may qualify the term further. Presently, the doctrine suggests that any use of nuclear weapons on India will automatically trigger retaliation. While this is quintessential to maintain the deterrence policys credibility, such retaliation can purport to be based on, say, rigorous analysis at the highest levels of decision-making. The qualification, purely formal in nature, would lend credence to the argument that any use of nuclear weapons will be contingent on the necessity to resort to them. Deterrence and Disarmament In lieu of its unconditional support for the ICJs Advisory Opinion, Indias nuclear doctrine is a laboratory to hypothesize and experiment with the parameters for a normative debate on deterrence policies. However, as this analysis reveals, it is difficult to reconcile national security strategies on nuclear weapons and bring them in compliance with the international legal regime. However, Indias case offers promise and potential in that the minimum credible deterrent is also subscribed to by Pakistan. Although Islamabad has not formally exposited its nuclear strategy, it is clear that the deterrence policy is closely in alignment with Indias for political and strategic reasons. Pakistan has also endorsed the ICJs Advisory Opinion wholeheartedly. The link between deterrence and disarmament is often understated. Deterrence is viewed primarily in the context of stockpiling nuclear weapons. The ICJs reluctance to comment on its legitimacy is a serious setback to efforts at global disarmament. To some extent, a policy of minimal deterrence bridges this gap. It is this authors belief that a regulatory framework for nuclear deterrence will lend stability and predictability to the threat or use of nuclear weapons, both in self-defence and during armed conflict. Delineating its contours will not only be a confidence-building measure among

17 nuclear weapon states but also relegate the discourse on nuclear weapons to the political domain consequently, the strategic flourish on nuclear deterrence, which currently stands in the way of disarmament, will assume a role of lesser significance.