Once they were created, and scientific knowledge spread, it has proved very difficult to remove nuclear weapons from the international security landscape. However, if the broader international constitutional architecture, which includes the UN Charter as well as the Nuclear Non-Proliferation Treaty (NPT), is considered, the doctrine of nuclear deterrence can be contained and, moreover, pathways to nuclear disarmament can be laid. This Chapter places the non-proliferation regime and the doctrine of nuclear deterrence within the wider constitutional order derived from the UN Charter. In this order ‘security’ and ‘law’ are separate but related, and nuclear deterrence sits uneasily between the two. ‘Security’ is defined by the five Permanent Members/recognised nuclear-weapon States. This has an influence on non-proliferation law especially as regards non-State actors, executive law making, and non-forcible measures against Iran and North Korea. Beyond these measures the five States have used their position in the constitutional order to protect the existing nuclear hierarchy and with it the doctrine of nuclear deterrence. Although the UN General Assembly and disarmament bodies have provided balance by consensual law making in the area of non-proliferation law, the fulfilment of Article VI of the NPT will require a recognition and management of nuclear deterrence.
White, N. D. (2019). Understanding nuclear deterrence within the international constitutional architecture. In J. Black-Branch, & D. Fleck (Eds.), Nuclear Non-Proliferation in International Law - Volume V - Legal Challenges for Nuclear Security and Deterrence. T.M.C. Asser Press