Formalism is the idea that conflicts can be eliminated by specifying their results in advance. The idea is that people seem to fight a lot less when both sides know what the outcome will be. As long as the obvious answer and the right answer to this question are both obviously the same, no one has any temptation to test the system, and therefore it is stable.
For example, you are in a state of precise internal formalism if, whenever anyone fights the law, the law always wins. Precise internal formalism is always desirable. It is the same thing sometimes known informally as “rule of law.”
However, nuclear weapons are generally considered overkill in domestic situations. (BTW, what’s up with Sarkozy? Wasn’t he supposed to be doing something with some sort of German power-washing machine? Wiping the scum off the streets, like Travis Bickle? It’s always pretty embarrassing for France when the Italians start to get ahead of her.)
Anyway, in this piece we are considering precise external formalism. This of course matches the old-school entity once known as the law of nations. Note also that the connection between Vattel and our present-day concept of international law is, um, quite attenuated.
However, we are considering neither the old law nor the new law. Frankly, we are not sure either can be described as an absolute and total success. And there is no reason why either should apply particularly well to the nuclear era. So it seems sensible to start from scratch.
The goal is a simple and stable system of rules in which neohominids are very unlikely to find themselves getting fried in their own homes and apartments. Even in a world where H-bombs of hellacious destructive power are getting easier and easier to make. (Frankly, it was pretty stupid to think that this technology, awesomely cool yea though it be, could remain a secret for the next umpteen gazillion years.)
For precise external formalism, our design goal is not to prevent nuclear war, but simply to predict its result. Will Nepal be able to annihilate Bangladesh, roasting Dhaka to a fine crisp, without any harmful result besides a dose of the West’s usual heart-drippings? Or will vast burning clouds rise like new peaks in the Hindu Kush? (Frankly, you can’t get too War Nerd with this stuff—no sane person can take it seriously.)
Under nuclear formalism, the goal of inspection is not to prevent, just to inspect. Nations manage their relationships according to their nuclear capabilities. This is basically how it works now, anyway. You just get it smeared with ponds of gooey self-righteousness.
So let’s say West Bumfuck declares that it has a nuclear program.
Fine. We know all about you West Bumfuckers. Frankly, we’re surprised you can stand on a box to snag a banana. And what can we say about your mothers? What can’t we.
But you say you have a bomb. Okay. We are going to hire us some inspectors. (You will be paying for this inspection. Every cent is billed to you, O taxpayers of West Bumfuck. Our guys fly first class, and they expect good food. If you have any good food in West Bumfuck.)
Our inspectors will expect you to disclose the complete state of your nuclear program, which except for technical secrets they will forward to the public. Their goal is not to dissuade you from building bombs. It is just to understand your capabilities.
How many bombs do you have? What are your delivery mechanisms? Do they actually work? Etc., etc., etc.
The inspectors will certainly demand all kinds of testing. They will probably take your word for it that the warhead and missile actually work correctly in a single strike. You won’t have to pick out a Polynesian atoll and nuke it from halfway around the planet.
But inspectors will want to see testing of both designs in a way that demonstrates that assembly is at least feasible. They will want to look at your entire production chain. And they will especially want to see where you got your gear from, if you didn’t reinvent it yourself.
The idea is to eliminate uncertainty in nuclear conflicts, which is the most plausible cause of an actual outbreak of actual nuclear war. Gun nuts say that you shouldn’t point a gun at someone unless you’re ready to use it. They are trying to protect others from their own stupidity, but they are also trying to protect themselves: the less plausible it is to criminals that their victims won’t shoot if they lunge, the less likely they are to test the proposition.
To make comparison easier, an inspection authority—which can be a private business—can define formal, standard levels of nuclear capability, which entrants to the nuclear game may try to achieve. Standardized capability levels let nuclear strategists think in simple categories about nuclear game theory. Since in a democracy, every citizen gets to be a nuclear strategist, simplicity counts.
Under precise external formalism, any formal system of rules for disputes between sovereign organizations (or sovorgs) with nuclear arms (note that the same model of inspection may, of course, be extended to conventional weapons) must take into account the relative military power of the sovorgs.
(Today’s nation-states are of course sovorgs. At least, all are nominally sovereign. But there is no reason why relatively informal terrorist, mafia or guerrilla organizations cannot play the nucular inspection gameshow, although it is difficult to see how they can compete unless they at least control some substantial contiguous component of territory.)
The whole point of formalism is that formal law should match informal power. It is all very good to say what the law should be, but no law can enforce itself. Whether or not it is officially announced and precisely described, whatever gets enforced is the law, and whatever doesn’t is just a bunch of bullshit.
It is pretty lame to have one system of law which is official, and another which is actually enforced. However, it does seem to happen a lot. Sometimes there are even reasons for it.
Speed limits in the US are a good example. There is a reason that speed limit enforcement in the US is discretionary. It allows cops to use their discretion. When this discretion is abused rather than used, as in the notorious Port Orford speed trap, we feel violated, as if we’d been ass-raped with a flashlight. (And we decline to eat in Port Orford ever again.)
But whether we like it or not, there is a use for discretion in domestic law enforcement. This is not true, however, in the law of nations. At least not under precise external formalism.
Precision is essential when designing rules which bind competing sovorgs. Your territorial waters may end at 200 miles, or 173 miles, or 389.2 miles, from your coastline. They have no good reason to end at “a couple hundred miles” or “farther than the eye can see” or “a safe and prudent distance.”
When rules are imprecise, they may be interpreted differently by different sides in a conflict. This can confuse these sides into believing that they are acting in self-defense. Unless you are so stupid that you abjure self-defence, a condition in which there is simply no hope for you, you have to act. In most recent wars, both sides have held this perception.
In nuclear deterrence, imprecision is especially expensive. It can result in a nuclear exchange.
It is impossible and counterproductive to expect nuclear weapons to not be used for conventional deterrence. NATO itself used nuclear weapons for conventional deterrence. It is really difficult to castigate the West Bumfuckers as some kind of huge moral sinners—let’s say they’re Nazi racist cannibals who eat Jews for lunch, using their slaves as tables—for adopting the same nuclear strategy as NATO.
But if you use nuclear weapons for conventional deterrence, you have to have some kind of red line beyond which no attacker may go. While this line may be determined by an independent system of formal resolution rather than by you yourself, if it is not actually red, there is no point at all in having it. And if the line is defined imprecisely, an attacker may interpret as aggression what you interpret as self-defense. Thus both sides are acting in self-defense, the normal mental attitude in any state of war.
This is one essential engineering principle of nuclear law. The other principle has already been mentioned above: formal power and informal power should match. In other words, there should be no informal incentive to break the formal rules.
This is why we need formal nuclear performance inspections. With nuclear performance inspections, we can understand the informal game structure of any conflict between sovorgs. This allows us to devise formal rules which preresolve the conflicts.
For example, here is one simple system of nuclear law that relies on performance inspections. This design is conflict-free and nonproliferative. However, it is not politically correct.
First, there are two types of sovorgs, nuclear sovorgs and nonnuclear sovorgs.
Second, delivery is assumed, and inspection is as simple as possible: anyone who can test a working bomb is a nuclear sovorg. Inspectors define “working” by their own judgment.
Third, every nonnuclear sovorg must maintain an official affiliation with one, and only one, nuclear sovorg. The nonnuclear sovorg is the client of the nuclear sovorg, which is the protector. A nuclear protector and its affiliates are a nuclear bloc. Either the client or the protector may sever this relationship, for any reason, at any time.
Fourth, an unaffiliated nonnuclear sovorg, or total defector, has no protection. Anyone may conquer and retain it. If multiple forces make the attempt, they should try and agree on a partition beforehand.
Fifth, in all suits between nuclear and nonnuclear sovorgs, whether or not the latter is affiliated with the former, the nuclear power prevails in all disputes except those solely affecting the territory of the nonnuclear sovorgs, in which case the nonnuclear sovorg prevails. Essentially, a nonnuclear sovorg controls its borders, everything inside them, and nothing else.
Sixth, all suits between nonnuclear sovorgs within a single nuclear bloc are judged by the protector. All suits between nonnuclear sovorgs in different blocs are judged by arbitrators appointed by agreement of both protectors. The same is the case for suits between nuclear sovorg, which hopefully will be rare.
Seventh, no nuclear sovorg allows its territory or the territory of its affiliates to be used for the planning or preparation of military attacks against any other sovorg, noting only that this rule cannot be invoked to demand any restriction on free expression.
Eighth, missile defense systems are prohibited, until they can be made as reliable as missiles. If this technical assessment changes, this rule should be revisited, but any missile defense system should be a joint effort between all nuclear sovorgs, designed only for total defectors.
It should be clear that anyone who feels the need to break these rules is a major psycho, and needs to be suppressed or at least contained by any means necessary. The idea of asymmetric war—a war in which different sides play by different rules—is one of the sickest jokes of the twentieth century. If you could explain this concept to Emerich de Vattel, he’d be retching for hours with awful, agonizing laughter. Washcorp can stop playing this game any time it decides it’s done.
It should also be clear that this design is antiproliferative. A nuclear protector has absolutely no incentive to allow its clients to go nuclear. It would lose a customer and gain a competitor.
Therefore, it will require that any client which does not have a nuclear program be prepared to prove it. And it will sever its ties with any client which does not comply. Presumably the latter will happen in time for the client to be devoured, like a shark in the shark tank, by its local competitors. Perhaps with some military aid from the protector if absolutely needed. If the rogue sovorg is to find another protector, it will face exactly the same ban.
Nuclear powers will also place golden handcuffs on their nuclear scientists, paying them like rock stars and placing restrictions on their movements and communication. There is no reason to do otherwise. Not all scientists will accept this bargain, but enough will.
Note that this system of nuclear law does not come with any transition plan. There is no obvious way to get from here to there. Perhaps it involves blowing some shit up, though, which would definitely be cool. (It’s hard to escape the feeling that the postwar West is suffering from a serious case of progressive miliphobia.)