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Law when dealing with the development and possession of nuclear weapons. It has been signed
by 190 countries, to include all the states that have publicly accepted the possession of such
technology.1 The Treaty states in part that “each nuclear-weapon State Party to the Treaty
undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear
explosive devices or control over such weapons or explosive devices directly, or indirectly . . .
Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from
any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control
over such weapons or explosive devices directly, or indirectly.”2 It can be violated by two
different types of countries: countries that already possess nuclear weapons capabilities and
countries that don’t. The countries that possess the nuclear weapon technology and have signed
or acceded to the Treaty, would violate International Law if they provided the non possessors of
nuclear technology with either materials or intellectual aid to produce nuclear weapons. The
state that receives such aid or materials would also be in violation, if they have signed or acceded
The first issue that arises by the examination of the states’ actions in regards to this treaty
would be to define International Law. Of course, a simple definition could be given, such as the
one provided by the Encyclopedia Britannica: “body of legal rules, norms, and standards that
apply between sovereign states and other entities that are legally recognized as international
1
http://www.un.org/Depts/dda/WMD/treaty/
2
Treaty of the Non- Proliferation of Nuclear Weapons
http://www.un.org/disarmament/WMD/Nuclear/pdf/NPTEnglish_Text.pdf
Pablo E. Rivera 2
actors.”3 But, the practical issue with International law is in regards to the enforcement of a body
of laws and treaties, without a global judicial system that rules over all countries.
There is not an entity or organization that has total binding jurisdiction over all the
nations of the world. “International relations are often thought uniquely different from those of
individuals and firms within a nation because of the lack of a strong supranational authority to
enforce international laws and norms.”4 Some countries may incorporate treaties in their
domestic laws, like for example the United States, providing it with legal standing in their
courts.5 This would render the treaty binding for a country that has signed the treaty and its
government has incorporated the terms of it to its laws. Treaties could be said to be analogous to
the most rudimentary forms of contracts, promises that are not enforceable but for the
Professors Goldsmith and Eric A.Posner discard the idea of a set of International laws
and customs that countries abide to because of a sense of moral or legal duty. The same can be
said of treaties, they concluded, where even though there is a written agreement among the
parties involved, this agreement just represents what the interests of each state are, and
sometimes it could just be the imposition of a more powerful state’s interests on others. 6
“Treaties, like customary norms, do not have any binding force in themselves.”7 Even a
3
International law. (2010). In Encyclopedia Britannica. Retrieved March 10, 2010, from
Encyclopedia Britannica Online:
http://www.britannica.com/EBchecked/topic/291011/international-law
4
Posner, Richard A., Economic Analysis of Law 7th ed., Aspen Publishers: New York
5
International Norms and Standards Relating to Disability, United Nations, Department of
Economic and Social Affairs Division for Social Policy and Development, 2003-04
6
Goldsmith, Jack L. & Posner, Eric A., A theory of Customary International Law, 66 U. Chi. L.
Rev. 1113 (1999)
7
Chinen, Mark A., Game Theory and Customary International Law: A Response to Professors
Goldsmith and Posner, 23 Mich. J. Int’l L. 143 (2001)
Pablo E. Rivera 3
signatory country can decide that the benefits, or utility, of reneging a treaty are worth more
than whatever repercussions the other parties might try to impose. Richard A. Posner defines the
blocks that form the body of International Law, treaties, as “contracts, and the economics of
contracts can be applied fruitfully to them.”8 And as such, sometimes the most efficient and
reasonable action of a party to a contract is the strategic breach of it. With this in mind, the
will have to be accompanied with pragmatic and realistic options. Is international law, at this
moment, a successful deterrence of the development and utilization of nuclear weapons? If not,
what are the steps and actions that the American government has to institute in order to achieve
this goal? The United States can either take the necessary measures prescribed by the existing
international law, or modify it in order to accomplish the effective deterrence of the use of
nuclear weapons.
The International community has been trying to deal with rogue states such as North
Korea and Iran, and their nuclear technology development programs. The discussion of nuclear
weapons is a sensitive subject in the International Relations and Law area. The idea that a
weapon of such destructive magnitude is out there, coupled with the reality that only some
countries possess them while others are prohibited from even attempting to develop it, is a
contentious subject. Many are calling for the disappearance of nuclear weapons, and advocating
for a world without nuclear weapons has become the rallying cry of governments and non-
government actors.
8
Posner, Richard A., Economic Analysis of Law 7th ed., Aspen Publishers: New York
Pablo E. Rivera 4
There is a presumption of rationality and unity of the state, where the position of the
United States is only one in relation to the world. “The realist views the state as both unitary and
rational.” 9 The leaders of other states would react in a rational way to the actions of the United
States in the event of an armed conflict. The interactions between the states are calculated, they
are logical, and respond to the interest of each individual state. A state, for which one of its
concerns is national security, has to implement what is necessary to strengthen itself in the arena
of international relations. It is under this assumption, of states as rational actors, that deterrence
is framed. The theory of deterrence is based on the idea that “states are unitary actors, and
logical according to Western concepts of rationality . . . that we can adequately understand the
calculations of an opponent.”10 It is expected that nations behave in the rational way that is
choice in a world . . . Behavior is rational when it conforms to the model of rational choice,
whatever the state of mind of the chooser.”11 So, the deterrence theory applied to the states is
based on this rationality approach, part of the realist theory in international relations, and it
allows for the examination and application of the economics theoretical model to the
Applying Game Theory to this issue would be a useful tool in developing the direction
that the International community, and mainly the United Sates, should take in the effective
deterrence of nuclear weapons’ development and use. “Game theory is the study of the ways in
which strategic interactions among rational players produce outcomes with respect to the
9
Kauppi, Mark V. & Viotti, Paul R. 1999. International Relations Theory- Realism, Pluralism,
Globalism, and Beyond 3rd ed. Allyn & Bacon: Massachusetts.
10
Post Cold War Conflict Deterrence. 1997. Naval Studies Board, National Research Council,
National Academy of Sciences.
11
Posner, Richard A., Economic Analysis of Law 7th ed., Aspen Publishers: New York
Pablo E. Rivera 5
preferences (or utilities) of those players.”12 The international relations arena encompasses a
constant strategic development from the different states. Even if the rationality of a state could
be placed in doubt, the deviation of behavior towards the irrational would render the existence of
Imagine country A, a nuclear country, and state B, a non-nuclear country. Country B has
to decide if its best strategy is to develop nuclear weapons or not, while country A has the
options of either maintain its nuclear capabilities, or renounce and destroy its nuclear weapons
stockpiles.
Fig. 1
Develop No nuclear
The prisoner’s dilemma model in Fig. 1 demonstrates that when applied to the
development of nuclear weapons, with logical reasoning behind the states’ actions, how it would
be almost impossible to achieve such an outcome. Most people would agree that the best
12
Ross, Don, "Game Theory", The Stanford Encyclopedia of Philosophy (Fall 2009 Edition),
Edward N. Zalta (ed.), URL = <http://plato.stanford.edu/archives/fall2009/entries/game-
theory/>.
Pablo E. Rivera 6
possible outcome for the whole world would be the abolishment of nuclear weapons, and that
this would provide most efficient outcome when measuring the payoffs for both countries. It
would promote peace and stability in the world, and it would foster better relations among the
states. But the risk that a country would incur if it decides, unilaterally, to not possess nuclear
weapons is too high. Current nuclear powers would not be willing to renounce to their weapons
and risk that the other countries would develop nuclear weapons’ technology, weakening their
global position and threatening their own security interests. And a non-nuclear country will
pursue the development of nuclear weapons, since this will also provide the biggest payoff. Both
countries will choose to possess nuclear weapons because that guarantees the best payoff without
The only problem with this game model is that it would suggest that every country would
possess nuclear weapons, and that is not the case. There are other factors that affect the strategy
of the states, and they are not taken into account in this model. For example, not every country
or state may believe that it is necessary for them to possess nuclear weapons in order to ensure
their national security, thus diminishing the value that state will assign to possessing nuclear
weapons. Also, developing nuclear weapons “is very expensive. The opportunity cost is usually
regarded as prohibitive.”13 A poor country would be forgoing basic needs of its population if
they decide to spend their scarce resources in the development of nuclear weapons.
Goldsmith and Eric A. Posner identified four behavioral logics that apply to international
relations: coincidence of interest, coercion, cooperation, and coordination.14 From these four
13
Carpenter, Ted G. , U.S. Conduct Creates Perverse Incentives for Proliferation, The Cato
Institute’s Nuclear Proliferation Update, 2009
14
Goldsmith, Jack L. & Posner, Eric A., A theory of Customary International Law, 66 U. Chi. L.
Rev. 1113 (1999)
Pablo E. Rivera 7
strategies the most important and relevant to the nuclear deterrence question is coercion.
Coincidence of interest would result in the states acting to the most efficient outcome, because it
is in the best interest of each actor to behave in a certain manner without regards to what the
other actor does. Cooperation and coordination may arise when there is a need to obtain support
for the implementation of sanctions against a country or state that is violating the Treaty, but
Coercion, as a tool of deterrence, is the only strategy that the United States can
implement in order to preclude a rogue state from developing nuclear weapons. Coercion occurs
when “one state, or a coalition of states with convergent interests, forces other states to engage in
actions that serve the interest of the first state or states.”15 Deterrence would be achieved when a
state understands with a high degree of certainty that there would be repercussions to their
particular action would elicit a response resulting in unacceptable damage that would outweigh
Deterrence will then occur when the utility derived from developing or using nuclear
weapons would be less than the possible consequences or repercussions. Assuming that a
country possesses the resources to develop nuclear weapons, i.e. technology, materials, money,
If U≤ S(r) x P(r),
U= the utility that the country will obtain by the use or development of nuclear weapons
15
Id.
16
Post Cold War Conflict Deterrence. 1997. Naval Studies Board, National Research Council,
National Academy of Sciences.
Pablo E. Rivera 8
P(r)= Probability, how certain it is, that the international community is going to retaliate.
If the utility that a non-nuclear country obtains from the development of nuclear weapons
is equal or less than the cost of the retaliation that another country, or countries, will take against
it then that country will not develop nuclear weapons. This would disrupt the equilibrium that is
present in the game model of Fig. 1. A costly retaliation, such as one that cripples or overthrows
the government of the state, will affect the payoffs that country B will obtain from developing
nuclear weapons– at that point the payoffs for developing nuclear weapons would be negative.
At the present moment the punishment that a country would be most likely subjected to,
sanctions have been found to be an ineffective method of coercion against states. “Efforts to
impair a foreign adversary's military potential, or otherwise to change its policies in a major way,
[have] succeeded infrequently.”17 Once they acquire the technology, the rest of the world will
gradually reestablish its economic relationship with them. To utilize powerful nuclear weapons
and obliterate a country’s cities is not a real option, since it would not be a proportionate
response and it would fail in destroying the nuclear capabilities of that country.
In today’s world it can be observed that there are great incentives to develop nuclear
weapons. North Korea has acquired nuclear weapons, so did India and Pakistan years ago, and
the latter are now accepted in the global community as nuclear powers. Iran would have great
incentives to develop nuclear weapons. Since the benefits of developing nuclear weapons, like
17
Gary Clyde Hufbauer, Jeffrey J. Schott, and Kimberly Ann Elliott, Economic Sanctions
Reconsidered, second edition, revised, 2 vols. (Washington, Institute for International
Economics, December 1990).
Pablo E. Rivera 9
major bargaining power in the global arena and protection against nuclear states they consider
enemies such as the United States and Israel, then the payoffs that resulted from the model game
in Fig. 1 would be once again applicable. Once the utility of developing nuclear weapons
outweighs the possible cost of retaliation, then the reasonable and logical way to act would be to
develop them.
“Unless the world’s major disputes are resolved – for example, on the Korean Peninsula,
across the Taiwan Strait, and around the Persian Gulf – or the U.S. military pulls back from these
regions, the United states will sooner or later find itself embroiled in conventional wars with
nuclear armed-adversaries.”18 Current International Law is currently not the most effective tool
in the deterrence of nuclear weapons development, like the cases Pakistan and India demonstrate,
thus heightening the number of nuclear-armed adversaries that the U.S. might have to face in a
conflict. “If the United States hopes to deter nuclear attacks during conventional wars, it must
figure out how it might respond to such attacks, and it must retain nuclear forces to do so.”19
The United States not only has to safeguard its security by maintaining nuclear weapons
available in its arsenal, but must develop a comprehensive plan that is effectively used as
deterrence. During the Cold War, it was thought that the best deterrence for war was that both
superpowers possessed nuclear weapons. 20 But we have to take into account that deterrence was
possible because of the possibility of Mutual Assured Destruction, which “reflected the theory of
deterrence: that a potential aggressor will be discouraged from launching a ‘first strike’ nuclear
18
Id.
19
Lieber, Keir A. & Press, Daryl G. 2009. The Nukes We Need- Preserving the American
Deterrent. Foreign affairs (November/December 2009)
20
Post Cold War Conflict Deterrence. 1997. Naval Studies Board, National Research Council,
National Academy of Sciences.
Pablo E. Rivera 10
attack by the knowledge that the enemy is capable of inflicting ‘unacceptable damage’ in a
counterstrike.” 21
It is possible that the most important use of nuclear weapons exists in the deterrence of
their use by other states during an already ongoing conflict, and not in the deterrence of war
itself.22 There is no dispute that the military power of the United State to fight a conventional
war is far superior that any other country. If faced with the immediacy of a defeat by the hands
of the United States, a country that possesses nuclear weapons might be tempted to use their
nuclear weapons as the only option of survival. “In a conventional war, U.S. adversaries would
have powerful incentives to brandish or use nuclear weapons because their lives, their families,
and the survival of their regimes would be at stake . . . Such escalatory strategies are rational.”23
As a result, the adversary may attempt to utilize nuclear weapons to obtain a “cease-fire and
remain in power.”24 The United States cannot threaten a country that may possess a limited
number of nuclear warheads with complete obliteration, if that country just targeted military
targets when utilizing nuclear weapons. “First, this threat lacks credibility. Destroying cities
would be a vastly disproportionate response if an enemy used nuclear weapons against a purely
military target . . . Moreover, a retaliatory strike on an enemy city would not even achieve
critical military objectives, so the horrendous consequences would be inflicted for little
purpose.”25
21
http://encyclopedia.farlex.com/mutual+assured+destruction
22
Lieber, Keir A. & Press, Daryl G. 2009. The Nukes We Need- Preserving the American
Deterrent. Foreign affairs (November/December 2009)
23
Lieber, Keir A. & Press, Daryl G. 2009. The Nukes We Need- Preserving the American
Deterrent. Foreign affairs (November/December 2009)
24
Lieber, Keir A. & Press, Daryl G. 2009. The Nukes We Need- Preserving the American
Deterrent. Foreign affairs (November/December 2009)
25
Id.
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The United States has committed itself to the protection of its allies, and with military
bases sprawled all over the world, the U.S. needs an effective response to any attempt to utilize a
nuclear weapon by any adversary or rogue state. Nuclear weapons are part of the reality of
International Relations, and to even contemplate the total abrogation of these weapons is a
fallacy. If the United States is unable to utilize International Law to deter the development of
nuclear weapons, then it must assure itself of having the necessary capabilities of deterring a
nuclear attack. Both objectives could be achieved if it guarantees that the cost of such action
would be much higher than whatever benefit that country may obtain, and that can only be
achieved if it is not an empty threat. The states will behave guided by their self-interest and in a
rational manner– game theory thus would provide a more accurate picture of their actions and
Addendum
This discussion has centered on how to deal with states or countries as rational
actors in the issue of nuclear weapons deterrence. Even though not discussed in this paper, it is
of general knowledge how central terrorist groups are to the discussion of the threat of a nuclear
attack in today’s world. President Obama emphasized that point at the past “nuclear security
summit, warning that the atomic aspirations of groups like Al-Qaeda are the most serious
security threat to the United States.”26 Some scholars might argue that there is a lack of
rationality to terrorists groups and that their actions deviate from behavior that would advance
their self-interest; while others believe that there is certain rationality to their strategy.
“Terrorism in general, and suicidal terrorism in particular, is popularly seen as irrational, but
26
RFI English, Terrorists are biggest nuclear threat, Obama warns ahead of summit, 2010.
Retrieved from http://www.english.rfi.fr/general/20100412-terrorists-are-biggest-nuclear-
threat-obama-warns-ahead-summit
Pablo E. Rivera 13
many economists and political scientists argue otherwise.”27 The discussion of how game theory
may apply to terrorist organizations and their nuclear weapons aspirations would be better left
for another day, and it would depend on the conclusion of the rationality of such actors.
27
Caplan, Bryan, Terrorism: The Relevance of the Rational Choice Model, Department of
Economic sand Center for Study of Public Choice George Mason University (2005)