NSU Law Review Duties to Future Generations [Vol: 1]
[1]

DUTIES TO FUTURE GENERATIONS AND NUCLEAR
WEAPONS DISARMAMENT
Dr. Norman K. Swazo



ABSTRACT
There is no consensus among philosophers, including philosophers of law, whether the
present generation has duties to future generations or whether future generations have rights
for which the present generation is accountable. Where the moral or legal argument is
advanced that we do have duties to future generations in view of their rights, that argument
reasonably includes concern for the abolition of nuclear weapons. There is ample moral
warrant (e.g., from the moral philosophy of John Rawls) and legal warrant (e.g., from the legal
assessment of the International Court of Justice) in the present (1) to account for such duties
and (2) for those of our generation to take requisite action that protects the rights of future
generations against nuclear catastrophe. Hence, there is a reasonably defensible moral and
legal argument in favor of nuclear disarmament.
Keywords: nuclear weapons, international law, future generations, Rawls, Weeramantry.
***
. . . There should be no niche in the legal principle, within which a nation may seek
refuge, constituting itself the sole judge in its own cause on so important a matter. …
It would be a paradox if international law, a system intended to promote world peace
and order, should have a place within it for an entity that can cause total destruction of
the world system, the millennia of civilization which have produced it, and humanity
itself. - Judge Christopher Weeramantry
1


I. INTRODUCTION
Are nuclear weapons today morally and legally indefensible in view of the supposed duties
we in the present have to future generations? This is the question at issue here. The occasion


Professor of Philosophy, Department of History and Philosophy, & Director, Office of Research-NSU in the
Office of the Vice Chancellor, North South University.
1
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) [1996] ICJ Rep (ICJ) 226
(Dissenting Opinion of Judge Christopher Weeramantry).

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and motivation for this question are given in current events in evidence that threaten present
and future generations. Consider that, in its Yearbook 2023, the Stockholm International Peace
Research Institute (SIPRI) warned that the nine nuclear-armed states continued ‘long-term
force modernization’ even as ‘expansion plans progressed,’ including deployment of ‘new
nuclear-armed or nuclear-capable weapons systems in 2022,’ many ‘kept in a state of high
operational alert.’
2

Significantly, this modernization occurs in the context of a series of withdrawals from
treaties regulating nuclear weapons:
1. The USA withdrew from the Anti-Ballistic Missile Treaty
3
in 2002, with Russia
responding by rejecting the terms of the Strategic Arms Reduction Treaty II.
4

2. The US withdrew from the Intermediate Range Nuclear Forces Treaty, 1987, in 2019,
along with a heightened threat to peace in Europe consequent to Russia’s invasion of
Ukraine in February 2022, Russian President Vladimir Putin signaling his readiness to
use nuclear weapons if necessary, given the prospect of a military response from North
Atlantic Treaty Organization (NATO) member-states.
3. Russia then announced in February 2023 its suspension of the 2010 Treaty on Measures
for the Further Reduction and Limitation of Strategic Offensive Arms (‘New
START’—Strategic Arms Reduction Talks).
5
More recently, Sergei Karagonov, Chair
of the Russian think-tank Council on Foreign and Defense Policy and advisor to
Russian President Putin, asserted that, ‘the enemy must know that we are ready to
deliver a pre-emptive strike…to prevent a slide into global thermonuclear war.’
6


These developments, threatening international security and the future of humanity on the
scale of an existential threat, are salient to the elaboration of a philosophical-practical and legal
rationality that insists on a critique of the failures of efforts at international nuclear
disarmament (notwithstanding occasionally negotiated arms reductions), both relative to the

2
Stockholm International Peace Research Institute, SIPRI Yearbook 2023: Armaments, Disarmament and
International Security (Oxford University Press, 2009).
3
Treaty Between the United States of America and the Union of Soviet Socialist Republics on the Limitation of
Anti-Ballistic Missile Systems, Anti-Ballistic Missile Treaty, signed 26 May 1972, [944 UNTS 13] (entered into
force 3 October 1972).
4
Treaty Between the United States of America and the Russian Federation on Further Reduction and Limitation
of Strategic Offensive Arms, Strategic Arms Reduction Treaty II, signed 3 January 1993.
5
Shannon Bugos, ‘Russia Suspends New START ’ Arms Control Association, March 2023,
<https://www.armscontrol.org/act/2023-03/news/russia-suspends-new-start> accessed 08 January 2024.
6
Sergei Karaganov, ‘A Difficult but Necessary Decision’ Russia in Global Affairs, 13 June 2023,
<https://eng.globalaffairs.ru/articles/a-difficult-but-necessary-decision/> accessed 06 January 2024.

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concerns of the present generation and concerns for duties to future generations.
7
In contrast to
concern for such duties with reference to the global environment, the moral problem of nuclear
disarmament is not simply a matter of what philosopher Martin Heidegger calls ‘calculative
thinking’ (rechnendes Denken).
8
Such calculation is all too often present in mitigation
strategies focused on ‘technological fixes.’ Yet, the significance of nuclear disarmament for
the human prospect is not a function of ‘trade-off’ between the value preferences of those who
live today and what one may assume reasonably to be the value preferences of future
generations, were they able to articulate those preferences in the present.
9

The rights of future generations weigh upon the present and upon the assertion of the
present generation’s duties to those future generations. This claim will be argued here through
engagement of moral philosopher John Rawls’s thinking about justice with reference to the
requisites of intergenerational justice.
II. UNTHINKABLE/INDEFENSIBLE, YET THINKABLE/DEFENSIBLE,
WEAPONS?
After the atomic bombing of Hiroshima and Nagasaki on 06 and 09 August 1945,
respectively, many regarded the use of nuclear weapons to be both unthinkable and
indefensible in view of a dire existential threat for global humanity and the prospect of an
irrecoverable planetary-scale catastrophe. Already in 1945, e.g., scientists involved in the
Manhattan Project at the Los Alamos Laboratory and test site for atomic bombs estimated it
would take ‘only in the neighborhood of 10 to 100 Supers’ (meaning here thermonuclear
weapons) to destroy life on Earth as we know it. As a declassified technical report from the
Manhattan Project put it, ‘a uniformity of insight had grown up among the working scientists
of the Manhattan District. They had come to realize that atomic warfare would prove

7
By ‘future generations’ the author means all those who may be born and live in time frames other than ‘the
present generation,’ using a ‘cross-cultural estimation’ of a ‘human generation interval’ averaging thirty years.
See, Jack N. Fenner, ‘Cross-Cultural Estimation of the Human Generation Interval for Use in Genetics-Based
Population Divergence Studies’ (2005) 128 American Journal of Physical Anthropology 415.
8
Martin Heidegger, Memorial Address: Discourse on Thinking (Harper & Row, 1966) at 46 (that calculative
thinking is peculiar insofar as ‘whenever we plan, research, and organize, we always reckon with conditions that
are given. We take them into account with the calculated intention of their serving specific purposes. Thus, we
can count on definite results. This calculation is the mark of all thinking that plans and investigates. Such thinking
remains calculation even if it neither works with numbers nor uses an addition machine or computer. Calculative
thinking computes.’)
9
The reality of ‘nuclear despotism’ makes the moral and legal problem of nuclear weapons far more dire than
that of the prospect of environmental catastrophe. On this, see the later discussion of the problem of nuclear
deterrence doctrine.

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unendurable.’
10
Further, this group of scientists understood, ‘atomic bombs were offensive or
retaliatory weapons, their existence was a threat to the security of every nation, which it could
not venture, without the gravest risk, to meet on the military plane alone.’
11

The above statement is salient for placing thermonuclear weapons (the destructive power
of which is today measured in megatons of TNT explosive power)
12
in the category of
offensive or retaliatory, rather than defensive, weapons. With the size and complexity of
today’s nuclear arsenals, the existential threat to humanity is amplified by far greater magnitude
than estimated in 1947. As of 2022, of approximately 12,700 nuclear warheads in stockpile
worldwide (deliverable by way of land, sea, and air-based systems), it is estimated that the
USA has 5,428 and Russia has 5,977.
13
Of these totals, the Federation of American Scientists
estimates the USA has 1,644 ‘deployed/strategic’ and 1,964 ‘reserve/nondeployed,’ others
retired, while Russia has 1,588 ‘deployed/strategic’ and 2,889 ‘reserve/nondeployed,’ and
others retired,
14
even though some studies suggest several hundred such weapons are a
sufficiently credible nuclear deterrent.
15
As an article in the Wall Street Journal put it, ‘the U.S.
has enough nuclear warheads to destroy the world more than 10 times over.’
16

That stark reality makes it clear: Worldwide thermonuclear war is today quite thinkable for
politicians, military and security policy analysts, and physical scientists engaged in the
technological innovations that lead to newer weapons designs and planned modernization of
such weapons systems. And (rightly or wrongly), many deem the prior ‘indefensible’ thinking
now morally and legally defensible (the latter more often than not by appeal to the principle of
state sovereignty), even though innovations in weapons technologies contribute to perpetual
global insecurity amidst unprecedented geopolitical complexity and calculative uncertainty in

10
‘Manhattan District History’ Los Alamos Project (Y)-Book Viii, Volume 2 Technical, Atomic Weapons Data Cy
2a, Revision Date 29 April 1947, <https://ia903409.us.archive.org/14/items/ManhattanDistrictHistory/MDH-
B8V02P01-LosAlamos-Technical.pdf>, accessed 27 March 2022.
11
Ibid, at XX-2.
12
See, e.g., Owen Jarus, ‘The 9 most powerful nuclear weapon explosions ’ Livescience,
<https://www.livescience.com/most-powerful-nuclear-explosions> accessed 28 March 2022. See also, Alex
Wellerstein, ‘An Unearthly Spectacle: The untold story of the world’s biggest nuclear bomb’ Bulletin of The
Atomic Scientists, 29 October 2021, <https://thebulletin.org/2021/11/the-untold-story-of-the-worlds-biggest-
nuclear-bomb/> accessed 28 March 2022.
13
Hans Kristensen et al., ‘Status of World Nuclear Forces’ Federation of American Scientists
<https://fas.org/issues/nuclear-weapons/status-world-nuclear-forces/> accessed 27 March 2022.
14
Ibid.
15
See Hans M. Kristensen, Robert S. Norris, and Ivan Oelrich, ‘From Counterforce to Minimal Deterrence: A
New Nuclear Policy on the Path Toward Eliminating Nuclear Weapons’ (Occasional Paper No. 7, Washington
DC: Federation of American Scientists & The Natural Resources Defense Council, April 2009),
<https://pubs.fas.org/_docs/occasionalpaper7.pdf>, accessed 28 March 2022.
16
Wall Street Journal, ‘How Many Nukes Is Too Many? ’ 13 February 2022,
<https://www.wsj.com/articles/china-nukes-nuclear-weapons-arsenal-11644614407> accessed 27 March 2022.

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the ‘nuclear decision calculus’ of both the USA and Russia.
17
Clearly, no one can imagine
accurately the fate of humanity and Earth’s global ecology consequent to an actual employment
of these weapons, except plausibly to predict an extinction-level eventuality for innumerable
species—the latter eventuality consequent to destruction of much of the extant global built
infrastructure, a long-term ionizing radioactive global environment in much of the northern
hemisphere (with effects spreading south of the equator), subsequent nuclear winter,
18
and
sheer devastation of most of the planet’s fertile agricultural lands, thus blocking future growth
and productivity essential to human survival within the global ecosystem. All of this manifests
an existential threat not only for the present generation, but also for future generations, hence
the dire moral and legal problem being engaged here.
That stark prognosis contributes to questions about both the morality and legality of nuclear
weapons. After the ostensible close of the Cold War (c. 1991), the 49
th
United Nations General
Assembly (UNGA), in a resolution adopted on 15 December 1994 (A49/75K),
19
requested the
International Court of Justice (ICJ) to opine on the legality of the threat or use of nuclear
weapons. Referencing the UN Charter, the ICJ accounted for the rule of customary
international law that States have a right of self-defense under conditions of necessity,
howsoever constrained by the rule of proportionality. Further, examining extant treaty law, the

17
The position of the USA in 2018 was published in the U.S. Department of Defense’s ‘Nuclear Posture Review’
Office of the Secretary of Defense, February 2018, <https://media.defense.gov/2018/Feb/02/2001872886/-1/-
1/1/2018-NUCLEAR-POSTURE-REVIEW-FINAL-REPORT.PDF accessed 29 March 2022>. Russia’s position
was expressed in a document published in 2020 (Principles of State Policy of the Russian Federation in the Sphere
of Nuclear Deterrence) , see here ,
<http://publication.pravo.gov.ru/Document/View/0001202006020040?index=0&rangeSize=1> accessed 29
March 2022. For elaboration, see Cynthia Roberts, ‘Revelations About Russia’s Nuclear Deterrence Policy’ War
on Rocks, 19 June 2020, <https://warontherocks.com/2020/06/revelations-about-russias-nuclear-deterrence-
policy/> accessed 29 March 2022. See also, Polina Sinovets and Bettina Renz, ‘Russia’s 2014 Military Doctrine
and beyond: threat perceptions, capabilities and ambitions’ NATO Research Paper, No. 117, July 2015, NATO
Defense College, Rome; Reuters, ‘Kremlin: Russia would only use nuclear weapons if its existence were
threatened’ 23 March 2022, <https://www.reuters.com/world/europe/kremlin-russia-would-only-use-nuclear-
weapons-if-its-existence-were-threatened-2022-03-22/> accessed 29 March 2022. More recently, the Trump
Administration issued its policy, ‘National Security Strategy of the United States of America’ The White House,
November 2025, <https://www.whitehouse.gov/wp-content/uploads/2025/12/2025-National-Security-
Strategy.pdf> accessed 15 December 2025. The ‘strategy’ includes the USA having ‘the world’s most robust,
credible, and modern nuclear deterrent, plus next-generation missile defenses, including a Golden Dome for the
American homeland….’ At 23, the strategy document asserts that, ‘in the long term, maintaining American
economic and technological preeminence is the surest way to deter and prevent a large-scale military conflict.’
18
See Seth Baum, ‘The Risk of Nuclear Winter’ Public Interest Report, Federation of American Scientists, 29
May 2015, <https://fas.org/pir-pubs/risk-nuclear-winter/> accessed 30 March 2022. For a classical discussion, see
R.P. Turco et al., ‘Nuclear Winter: Global Consequences of Multiple Nuclear Explosions’ Science, 222(4630) 23
December 1983, <https://www.science.org/doi/10.1126/science.222.4630.1283> accessed 30 March 2022.
19
United Nations General Assembly, GA Resolution A/RES/49/75, 49
th
Session, Agenda Item 62, 09 January
1995, <https://documents-dds-ny.un.org/doc/UNDOC/GEN/N95/760/03/PDF/N9576003.pdf?OpenElement>
accessed 08 January 2024.

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Court noted that it did not find ‘any specific prohibition of recourse to nuclear weapons in
treaties expressly prohibiting the use of certain weapons of mass destruction.’
20

The ICJ issued its advisory opinion on 08 July 1996, observing that, ‘in view of the current
state of international law and of the elements of fact at its disposal [it] cannot conclude
definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an
extreme circumstance of self-defense, in which the very survival of a State would be at stake.’
21

The Court replied to the UNGA thus:
1. By unanimity: ‘There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons.’
22

2. By vote of 11-3: ‘There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons as
such.’
23

3. By unanimity: ‘A threat or use of force by means of nuclear weapons that is contrary
to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the
requirements of Article 51, is unlawful.’
24

4. By unanimity: ‘A threat or use of nuclear weapons should also be compatible with the
requirements of the international law applicable in armed conflict, particularly those of
the principles and rules of international humanitarian law, as well as with specific
obligations under treaties and other undertakings which expressly deal with nuclear
weapons.’
25

5. By a divided vote of 7-7, with the court’s President casting in favor: ‘…the threat or
use of nuclear weapons would generally be contrary to the rules of international law
applicable in armed conflict, and in particular the principles and rules of humanitarian
law.’
6. ‘However, in view of the current state of international law, and of the elements of fact
at its disposal, the Court cannot conclude definitively whether the threat or unlawful
use of nuclear weapons would be lawful or unlawful in an extreme circumstance of
self-defense, in which the very survival of a State would be at stake.’
26


20
Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Report 1996 226 at 248.
21
Ibid, at 263.
22
Ibid, at 266.
23
Ibid, at 266.
24
Ibid, at 266.
25
Ibid, at 266.
26
Ibid, at 266.

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In short, the ICJ allowed for the possibility that a State could declare a ‘supreme
emergency’
27
and, acting on ‘the rule of necessity’ (necessity knows no rules), therefore a State
could legally (i.e., as a matter of positive law) wage a war with nuclear weapons on a claim of
necessity of ‘State survival’—notwithstanding that the just war tradition and the law of armed
conflict normally stipulate a principle of discrimination prohibiting military hostilities against
non-combatant ‘innocent civilians.’ On the Court’s final statement—regrettably for those
seeking the legal prohibition of the use of nuclear weapons and their eventual elimination—
the principle of necessity prevails over the principle of discrimination to legitimate a war in
which such weapons of mass destruction are used. Morally, of course, the appeal to supreme
emergency and the principle of necessity is by no means without objection.
The ICJ advisory opinion was disappointing for the ambiguity it left in place. Notably, the
Government of Japan, contributing to the legal proceedings at the time, opined that ‘the use of
nuclear weapons is clearly contrary to the spirit of humanity that gives international law its
foundation.’
28
On this view, a mere appeal to the authority of positive law (and thus to the letter
of that law) fails to meet the stricter demands of the spirit of the law. In contrast, the
Government of the United States (taking exception to the UNGA request as a matter involving
‘an abstract question’) opined, ‘in particular, the United States believes that the Court, in the
exercise of the discretion provided by Article 65, paragraph 1, of its Statute, should decline to
provide an opinion,’ arguing further that (a) ‘there is no general prohibition in conventional or
customary international law on the threat or use of nuclear weapons,’ and (b) nothing in the
body of international humanitarian law of armed conflict indicates that nuclear weapons are
prohibited per se.
29
Representing the victims of the atomic bombings, of course, the
Government of Japan argued against the legality of nuclear weapons;
30
while the Government
of the USA (as the first to use such indiscriminate weapons) sought to preserve its legal right
(not to say, moral right) to use its nuclear arsenal in the future, notwithstanding the peril of
mutually assured destruction by warring nuclear-powered states and despite any legal appeal
to the principle of necessity.
31


27
See Michael Walzer, Just and Unjust Wars (Basic Books, 2
nd
ed, 1992).
28
‘Letter dated 14 June 1995 from Minister at the Embassy of Japan, together with Written Statement of the
Government of Japan’, Legality of the Threat or Use of Nuclear Weapons (Written Proceeding) [1995].
29
Letter dated 20 June 1995 from the Acting Legal Advisor to the Department of State, together with Written
Statement of the Government of the United States of America’, Legality of the Threat or Use of Nuclear Weapons
(Written Proceeding) [1995].
30
Letter from Minister, above note 28.
31
Letter from the Acting Legal Advisor, above note 29.

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Indeed, even with ample effort after World War 2, successfully negotiating arms control
treaties,
32
the threat of a global nuclear war today remains a real and growing probability.
33

Hence, it is of the utmost importance that, despite the earlier ICJ advisory opinion, the legality
of nuclear weapons has now been settled by the entry into force of the Treaty on the Prohibition
of Nuclear Weapons
34
in January 2021. This fact should give pause to all who are involved in
nuclear security policy studies and who fail to account for the implications of this treaty for
duties to future generations that those living today have, including the duty to avoid an
irreversible global catastrophe caused by thermonuclear warfare.
The futurist Herman Kahn, writing in the latter half of the 20
th
century and engaging in
thought-experiments (Gedanken) examining the consequences and ethical implications of
nuclear weapons, wrote two provocative works for those concerned about global human
security—On Thermonuclear War, 1960 and Thinking about the Unthinkable, 1962, the latter
revisited in his Thinking about the Unthinkable in the 1980s, published in 1984. Kahn remarked
in the latter volume, ‘much of today’s conventional wisdom preaches the inevitability of
disaster—an “apocalyptic vision” that only radical disarmament, or a “freeze”, can prevent.’
35

Even so, Kahn noted in the latter book, ‘there are too many unknowns and uncertainties’ when
a supposed ‘balance of power’—promoted by adherents of Realpolitik—gradually morphs into
a ‘balance of terror.’ This remains so in the early 21
st
century. Furthermore, Kahn opined that
one cannot prove beyond a reasonable doubt that such weapons are morally indefensible, at

32
Various declarations include: the Nuclear Non-proliferation Treaty, signed on 1 July 1968, 729 UNTS 161
(entered into force on 5 March 1970); the Interim Agreement Between the United States of America and the Union
of Soviet Socialist Republics on Certain Measures with Respect to the Limitation of Strategic Offensive Arms
(SALT I), signed on 26 May 1972, 23 UST 3462 (entered into force on 3 October 1972); the Treaty Between the
United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile
Systems, signed on 26 May 1972, 944 UNTS 13 (entered into force on 3 October 1972); the Treaty Between the
United States of America and the Union of Soviet Socialist Republics on the Limitation of Strategic Offensive
Arms (SALT II), signed on 18 June 1979; the Intermediate-Range Nuclear Forces Treaty, signed on 8 December
1987 (entered into force on June 1 1988); the Treaty Between the United States of America and the Union of Soviet
Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms and Associated Documents,
signed on 31 July 1991 (entered into force 5 July 1994); the Treaty Between the United States of America and the
Russian Federation on Further Reduction and Limitation of Strategic Offensive Arms, signed on 3 January 1993;
United Nations General Assembly, GA Resolution A/RES/50/245, Comprehensive Test Ban Treaty, 17 September
1996; the Treaty between the United States of America and the Russian Federation on Measures for the Further
Reduction and Limitation of Strategic Offensive Arms, signed on 8 April 2010 (entered into force on 5 February
2011); and the Treaty on the Prohibition of Nuclear Weapons, signed on 7 July 2017, 3370 UNTS (entered into
force on 22 January 2021.
33
One measure is given in the Doomsday Clock set by the Science and Security Board of the Bulletin of Atomic
Scientists, which in 2023 is set at ‘90 seconds to midnight.’ See Bulletin of the Atomic Scientist, ‘A time of
unprecedented danger: It is 90 seconds to midnight’ <https://thebulletin.org/doomsday-clock/current-time/>
accessed 24 January 2023.
34
Treaty on the Prohibition of Nuclear Weapons, signed on 7 July 2017, 3370 UNTS (entered into force on 22
January 2021.
35
Herman Kahn, Thinking About the Unthinkable in the 1980s (Simon & Schuster, 1984) at 17.

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least not such as to arrive at a ‘categorical reference’ to right or wrong. Why so? Because, he
claimed, ‘thinking about nuclear war means thinking about the impossible, the improbable, the
implausible, and the unlikely’ all at once, even as ‘it also means making distinctions between
scenarios that are more or less likely, more or less important, and more or less worrisome.’
36

All of this, of course, concerns a commitment to calculative thinking that can by no means
settle the moral or legal dilemma in and of itself.
In today’s context of nuclear security assessment, the probability of nuclear war is no
longer to be estimated as either ‘low’ (<0.5) or ‘remote,’ even as Kahn might today continue
to use the paraphrastic ‘not improbable’ to describe the present. Indeed, the Science and
Security Board (SSB) of the Bulletin of Atomic Scientists finds humanity ‘at doom’s doorstep’
in 2022, and in 2025 set the ‘doomsday clock’ at ‘89 seconds to midnight’—this clock ‘a
universally recognized indicator of the world’s vulnerability to catastrophe from nuclear
weapons, climate change, and disruptive technologies in other domains.’
37
Commenting on
developments worldwide, the SSB cautioned, ‘upcoming decisions on nuclear policies could
generate either salutary or dangerous modifications of an already uncertain and worrisome
security situation.’ The SSB looked positively at the agreement between the USA and Russia
in February 2021 to renew the Strategic Arms Reduction Treaty (START) for five years. Yet,
Russian President Vladimir Putin’s war of aggression in Ukraine in February 2022, with his
placement of the Russian strategic force system on high alert (‘a special regime of combat
duty’) and concern for his threatened use of intermediate range (tactical, battlefield) nuclear
weapons, has compounded the level of risk and added to global uncertainty while leaving many
to think a third world war is ‘not improbable.’
38
Further, as noted earlier, in 2023, Putin decided
to suspend Russia’s participation in the strategic arms reduction talks, thus increasing the
uncertainty as to his intentions and thus the likelihood of ongoing modernization of weapons
systems rather than movement in the direction of disarmament.
39
Hence, it is not surprising

36
Ibid, at 18.
37
Bulletin of the Atomic Scientists, ‘At doom’s doorstep: It is 100 seconds to midnight: 2022 Doomsday Clock
Statement’ 20 January 2022, <https://thebulletin.org/doomsday-clock/current-time/> accessed 27 March 2022; 90
seconds to midnight, above note 33.
38
Shannon Bugos, ‘Putin Orders Russian Nuclear Weapons on High Alert’ Arms Control Association, March
2022, <https://www.armscontrol.org/act/2022-03/news/putin-orders-russian-nuclear-weapons-higher-alert>
accessed 27 March 2022.
39
Charles Maynes, ‘Putin says Russia will stop participating in its last nuclear treaty with the U.S.’ NPR, 21
February 2023, <https://www.npr.org/2023/02/21/1158463688/putin-tells-russian-parliament-the-west-is-
fighting-to-dismember-russia> accessed 12 March 2023. For the position statement of the US State Department,
see US Department of State, ‘Russian Noncompliance with and Invalid Suspension of the New START Treaty’
15 March 2023, <https://www.state.gov/russian-noncompliance-with-and-invalid-suspension-of-the-new-start-
treaty/> accessed 16 March 2023.

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that on 28 January 2025 the SSB remarked: ‘In setting the Clock one second closer to midnight,
the Science and Security Board sends a stark signal: Because the world is already perilously
close to the precipice, a move of even a single second should be taken as an indication of
extreme danger and an unmistakable warning that every second of delay in reversing course
increases the probability of global disaster.’
40

The ambiguity and uncertainty about both Russian and American posture and substance on
the issue of the prospective use of nuclear weapons elicit further serious questions. Among
these is the question whether such weapons are morally indefensible when assessed according
to perceived ‘duties to future generations.’ Thus, the central question engaged here in the
present essay, as noted at the outset, is: Are nuclear weapons today morally and legally
indefensible in view of supposed duties we in the present have to future generations? This
question, of course, requires some engagement of the prior moral-philosophical question of
whether we have such duties, even though at present there is no philosophical consensus that
such duties obtain.
41
This question also requires some philosophical assessment of the temporal
context of moral-philosophical assessment, thus the interpretive position on time consciousness
that is presupposed. These related questions are engaged in sequence in what follows to
thereafter claim that time consciousness makes an important difference in the debate, such that
when properly clarified, therefore, we in the present do indeed have duties to future generations
in view of the rights they possess.
III. THE DEBATE OVER DUTIES TO FUTURE GENERATIONS
A. The Legal Disputation
On the occasion of the entry into force of the Treaty on the Prohibition of Nuclear Weapons
(TPNW) on 22 January 2021, the World Future Council issued a press release expressing ‘deep
concern about the existential threat to humanity and the planet from the 14,000 weapons
possessed by nine nuclear-armed States,’ calling upon nuclear-armed and allied states to
‘affirm that nuclear war cannot be won and must never be fought’ (consistent with the formal
diplomatic position adopted by former American president Ronald Reagan and former Soviet

40
Bulletin of the Atomic Scientists, ‘It is now 89 seconds to midnight’ <https://thebulletin.org/doomsday-clock/>
accessed 15 December 2025.
41
See Joerg Chet Tremmel, ed. Handbook of Intergenerational Justice (Edward Elgar Publishing Inc., 2006).

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premier Mikhail Gorbachev),
42
and to ‘stand down their nuclear forces and affirm policies
never to initiate a nuclear war.’
43
More recently (26 March 2025), the Federation of American
Scientists observed that, ‘in contrast to the overall inventory of nuclear weapons, the number
of warheads in global military stockpiles—which comprises warheads assigned to operational
forces—is increasing once again.’
44

The statement from the World Future Council combines descriptive and normative claims,
of course, since (a) it seems true empirically that a nuclear war cannot be ‘won’ (the word
having connotation quite different from its sense when used with reference to armed conflict
using conventional weapons having a localized lethality, hence the standard refrain that a
nuclear war between the two superpowers would entail a cataclysmic ‘mutually assured
destruction’); and since (b) because of that apparent fact, there is apparently no compelling
moral or legal rationale to fight such a war, even if one accounts for the principle of necessity.
That is, accounting for both elements of just war theory (the jus ad bellum, right to go to war,
and the jus in bello, the right conduct of war) and international humanitarian law, it would not
matter whether such a war were undertaken preemptively (as former American president
George W. Bush considered legal as a matter of ‘preventive’ war), or on the dubious claim of
employing these weapons as a matter of ‘necessity’ (‘State survival’). The latter is an
oxymoronic appeal to the principle of necessity that makes a mockery of the very idea of a
moral or legal principle. Even a ‘realist’ in political philosophy and international relations
theory such as former American secretary of state Henry Kissinger understood this when he
remarked, ‘the European allies should not keep asking us to multiply strategic assurances that
we cannot possibly mean, or if we do mean, we should not want to execute because if we
execute, we risk the destruction of civilization,’
45
not to mention the existential threat to the
whole of the planetary ecosystem.

42
National Archives, ‘Joint Soviet-United States Statement on the Summit Meeting in Geneva’ Ronald Reagan,
21 November 1985, <https://www.reaganlibrary.gov/archives/speech/joint-soviet-united-states-statement-
summit-meeting-geneva> accessed 07 September 2023.
43
World Future Council, ‘Abolish Nuclear Weapons to Assure a Sustainable Future’ 18 January 2021,
<https://www.worldfuturecouncil.org/abolish-nuclear-disarmament-joint-statement/> accessed 29 March 2022.
44
Hans Kristensen, above note 13.
45
Henry A. Kissinger, ‘NATO Defense and the Soviet Threat’ Survival (November-December, 1979) at 266 (as
cited by Robert S. McNamara, ‘The Military Role of Nuclear Weapons: Perceptions and Misperceptions’ Foreign
Affairs (1983) 59, <https://www.foreignaffairs.com/articles/1983-09-01/military-role-nuclear-weapons-
perceptions-and-misperceptions> accessed 30 March 2022). Despite his commitment to a balance of power
doctrine, in his Nuclear Weapons and Foreign Policy (Harper & Brothers, 1957) at 167, Kissinger understood a
limited nuclear war would be illogical: ‘We would, therefore, be destroying the very people we were seeking to
protect.’

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It is in this context that Judge Christopher Weeramantry, former justice of the International
Court of Justice (from 1991-2000), opined, in dissent from the ICJ advisory opinion on the
legality of nuclear weapons, that the Court ‘must, in its jurisprudence, pay due recognition to
the rights of future generations.’
46
Accounting for ‘philosophical insights,’ ‘one based on
rationality, and the other on fairness.’ Weeramantry reminded: ‘[…] all the postulates of law
presuppose that they contribute to and function within the premise of the continued existence
of the community served by that law.’
47
Referring to the moral philosophy of John Rawls
48
and
the question of what situation one would accept under a ‘veil of ignorance’
49
(i.e., not knowing
one’s factual situation such as where one lives geographically, whether one lives in a nation
having nuclear weapons or not, what status one has as a senior functionary of government or
civilian, etc., thus as a question of justice as fairness), Weeramantry opined:

A nation considering its allegiance to such a system of international law, and not knowing whether it
would fall within the group of nuclear nations or not, could scarcely be expected to subscribe to it if it
contained a rule by which legality would be accorded to the use of a weapon by others which could
annihilate it. Even less would it consent if it is denied even the right to possess such a weapon and, least
of all if it could be annihilated or irreparably damaged in the quarrels of others to which it is not in any
way a party. … By this test of fairness and legitimacy, such a legal system would surely fail.
…By either test [of rationality or fairness], widely accepted in the literature of modern jurisprudence, the
rule of international law applicable to nuclear weapons would be that their use would be impermissible.
50


Although his statement is subjunctive (‘would be’ impermissible) rather than assertoric
(‘is’ impermissible), Weeramantry is unequivocal in his conclusion: ‘the use or threat of use of
nuclear weapons is absolutely prohibited by existing law—in all circumstances and without
reservation.’
51
Notwithstanding, even as he understood that extant law (lex lata) and not future

46
Nuclear Weapons, above note 20, dissenting opinion of Judge Weeramantry, at 455.
47
Nuclear Weapons, above note 20, dissenting opinion of Judge Weeramantry, at 520.
48
See John Rawls, A Theory of Justice (Revised ed, Harvard University Press, 1999). At 3 Rawls writes of ‘justice
as fairness’ in view of the concept of a social contract, arguing, in contrast to a utilitarian calculus, that, ‘each
person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.
For this reason, justice denies that the loss of freedom for some is made right by a great good shared by others. It
does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by
the many.’
49
Ibid, at 11 (‘Veil of ignorance’ is a theoretical device Rawls uses as part of his conceptualization of justice as
fairness and the situation in which one must choose principles of justice, in which there is an ‘original position of
equality’—not ‘as an actual historical state of affairs’ but ‘as a purely hypothetical situation,’ the ‘essential
features’ of this original position being that: ‘no one knows his place in society, his class position or social status,
nor does anyone know his fortune in the distribution of natural assets and abilities, his intelligence, strength, and
the like,’ nor do they know ‘their conceptions of the good or their special psychological propensities.’)
50
Nuclear Weapons, above note 20, dissenting opinion of Judge Weeramantry, at 523.
51
Nuclear Weapons, above note 20, dissenting opinion of Judge Weeramantry, at 553.

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law (lex ferenda) mattered to the disposition of the ICJ advisory opinion, Weeramantry
reminded that, ‘[R]ationality, humanity and concern for the human future are built into the
structure of international law,’
52
in which case, the authority of lex ferenda cannot be ignored.
In subsequent writing, Weeramantry continued to assert that future generations of humanity
have rights to ‘the basic fundamentals of civilized existence,’ even going so far as to consider
violation of such rights a crime under international law.
53
For example, accounting for the fact
of geographically widespread and protracted radioactivity following the detonation of nuclear
weapons, Weeramantry observed: ‘If the half-life of some of the radioactive elements that are
being tinkered with deliberately when building nuclear weapons is 24,000 years, can any
responsible legal system permit such acts to be committed, which will so grievously affect a
thousand generations to come?’
54
The implicit argument is that: (1) this consequence of
employment of strategic nuclear weapons causes nigh irreparable harm to the global
environment; (2) that harm affects future generations (assuming any might yet live after such
a global conflagration); and (3) such harm is manifestly a grievous violation of human rights
to life, health and livelihood that future generations possess; in which case (4) a legal system
operative today cannot but be expected to protect these rights; and (5) to do so in a way that is
enforceable as a matter of international law. Weeramantry’s judgment cannot be gainsaid:
‘[Nuclear] war is not one in which a nation, as we know it, can survive as a viable entity. The
spirit that walks the nuclear wasteland will be a spirit of total despair, haunting victors (if there
are any) and vanquished alike.’
55

B. Philosophical Disputation: Views Contrary to Rawls’s Position
Referencing Weeramantry’s opinion, a critical skeptic such as Oliver Marc Hartwich asks:
‘Is there a basis for claims that future generations have rights?’
56
The question is one of moral,
legal, and political philosophy, but rests on metaphysical and cosmological assumptions,
including that of time consciousness. Precisely because these generations do not ‘now’ exist,
so the ‘non-existence argument’ goes (and as Hartwich opines), it cannot be said that they have
rights: ‘Claiming that non-existing persons possess anything is so evidently absurd that it is

52
Nuclear Weapons, above note 20, dissenting opinion of Judge Weeramantry, at 553.
53
World Future Council, ‘Crimes against Future Generations Need to Become Taboo’ 29 May 2009,
<https://www.worldfuturecouncil.org/crimes-future-generations-need-become-taboo/> accessed 29 March 2022.
54
If one adopts a lifespan of a generation to be thirty years rather than 20-25 years, in 24,000 years, this would
amount to about 800 generations. The point is nonetheless salient to his argument as to the devastation to the
Earth’s planetary ecosystem.
55
Nuclear Weapons, above note 20, dissenting opinion of Judge Weeramantry, at 24.
56
Oliver Marc Hartwich, ‘The Rights of the Future?’ (2009) 25(3) Policy 3-8.

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hard to understand how the notion of future generations' rights could ever be taken seriously.’
And, if the claim of such rights is patently absurd, then ‘the “rights” of future generations can
only ever be a fiction that is administered by the present generation.’ In short, setting aside this
fiction, one who champions the non-existence argument may assert, without the slightest
reservation, that only those alive today have moral or legal rights in sensu stricto, in which case
those who violate these rights of living persons are reasonably to be held accountable under
some framework of moral norms and extant national or international laws.
Further, Hartwich claims, ‘legal capacity is always bound to something that exists…. It is
not conceivable how either past or future generations can make their alleged rights heard
today,’
57
although some living in the present claim to speak on their behalf, to be
‘representatives’ of these future generations (e.g., in claims for reparations for past harms;
claims for preservation of the global environment against ecological catastrophe, etc.).
58

Indeed, Hartwich argues, even so-called ‘caretakers’ cannot speak for future generations, since
they speak ‘in accordance with their own present-day ideological predispositions’ and with
manifestly limited (empirically sourced, inductive) knowledge that has at best only a
reasonably high probability of factuality.
Similarly, D. Clayton Hubin, engaging the question of justice vis-à-vis future generations,
assumed that ‘we do not owe obligations to future generations and that when we speak as if we
do, we are speaking either metaphorically or elliptically.’
59
Hubin elaborates, ‘I find it
exceedingly hard, if we hold reasonable metaphysical views, to make sense of the claim that
we now owe an obligation to a person who is not now a person.’
60
Hubin does not state what
he means by ‘reasonable metaphysical views,’ what the criterion for ‘reasonable’ is, and why
or how that criterion is satisfied in this context of argument. Hubin assumes that obligations
make sense in a context of individuals having relationships of mutual benefit (reciprocity),
such as may obtain ‘from explicit or implicit agreement.’ He seeks to make a technical
distinction such that it is ‘possible…to account for much of our duty to provide for future
generations in terms of a duty of justice with regard to future generations (but not owed to
them).’ In short, for Hubin, one can manifest one’s solicitude (concern or care), but not assert
either a moral or legal obligation. Accordingly, Hubin recognizes that ‘we must ask how it is
that duties of justice can extend to include actions the intended beneficiaries of which do not

57
Ibid, at 4.
58
See Richard Vernon, Justice Back and Forth: Duties to the Past and Future (University of Toronto Press, 2016).
59
D. Clayton Hubin, ‘Justice and Future Generations’ (1976) 6(1) Philosophy & Public Affairs 70.
60
Ibid, at 71.

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yet exist.’
61
He makes reference to Rawls’s moral framework in his concern for ‘duties’ of
justice.
We are reminded that Judge Weeramantry had referenced Rawls’s concept of an original
position (in which, appealing to our moral intuition about justice as fairness, we must make
decisions about our individual interests under a veil of ignorance). Weeramantry argued that
international law is meaningful as an idea and as a practice, precisely insofar as it speaks to the
interests of both present and future generations, thus to lex lata and to lex ferenda.
62
In the
present context, e.g., arguments against the legality and morality of nuclear weapons are
advanced with the understanding that we rightly and for good reason do not desire future
generations to suffer the catastrophic effects of the use of such weapons. The moral judgment
is that a future world without nuclear catastrophe is preferable (on any number of variables of
assessment) to a future world devastated by such weapons of mass destruction. That said,
however, one must remember that this is not a utilitarian calculation. It is a matter of the way
in which principles of justice are operative in the moral and legal determination.
Hubin interprets Rawls as choosing ‘to represent the interests of all generations by allowing
the veil of ignorance to extend to the agents’ knowledge of the generation to which they
belong’—i.e., ‘the “present time of entry” interpretation.’
63
Both present and future generations
are ostensibly parties to a ‘contract’ of social cooperation under a veil of ignorance, each
individual having no information not only as to what his or her real interests, social position,
etc., are, but also not knowing ‘the generation to which they belong’—be it the present, that of
five generations from now, or that of one thousand generations from now. ‘Rawls,’ Hubin
observes, ‘repeatedly speaks in this unqualified manner regarding the ignorance of the
contractors about their place in time.’ What matters, then, is having moral and legal principles
of decision that provide for justice as fairness for all generations.
64
One reasonably assumes
that both present and future generations ‘have roughly similar needs and interests, or needs and
interests in various ways complementary, so that mutually advantageous cooperation among
them is possible,’ even as it is to be granted that these persons ‘have their own plans of life.’
65

In all of this, Rawls assumes a shared rationality of the contracting parties in an initial situation
of equality, and where one does not sacrifice the good of the individual to a supposedly

61
Ibid, at 71.
62
Nuclear Weapons, above note 20, dissenting opinion of Judge Weeramantry, at 441 (lex ferenda in the sense of
a principle of illegality ‘waiting to be born’).
63
Ibid, at 72.
64
A Theory of Justice, above note 48, at 289, especially see Chapter III.
65
A Theory of Justice, above note 48, at 110.

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identified greater good. Yet, despite these propositions, it is unclear to proponents of the non-
existence argument how the criterion of mutually advantageous cooperation obtains for those
deemed members of future generations.
Obviously, those living in the present may prefer their own interests be satisfied first and
foremost, rather than allow for the interests of future persons to have moral or legal standing,
thus consideration, much less to prevail in any meaningful deliberation about the terms of the
social contract. Yet, the proposition is that, if one is committed to justice as fairness under the
veil of ignorance in which one does not know one’s time of entry (i.e., being one among the
present generation or a future generation), then one cannot simply privilege one’s own
(contemporary) interests to the exclusion of the interests of future persons on the assumption
that one is among the former and not the latter. One cannot, in short, exempt oneself from the
applicable principles of justice if it is correct that they extend to future generations.
It may be argued, thus, by parity of reason, that the present generation—if it is concerned
to realize justice as fairness—cannot simply exempt itself from accounting for the reasonably
known interests of future generations, i.e., interests that we may identify with a plausible degree
of probability based on symmetry of interests. Rawls might characterize such a plea for
exemption as a manifest collective egoism, given that he recognizes there can be ‘irremediable
injuries to the welfare of future generations.’
66
That means, presumably, that at minimum one
should be concerned about the welfare of future generations and that, within that solicitude,
there should be reasonable effort to avoid irremediable injuries to these generations, thus that
there is room to argue for a moral and legal obligation per se. Accordingly, Rawls says, e.g.,
‘each generation must […] preserve the gains of culture and civilization, and maintain intact
those just institutions that have been established […].’
67

Clearly, any use of nuclear weapons has a very high probability of destroying the gains of
culture and civilization that are the world’s heritage from centuries of human history and
identifiable civilizations, the loss of which heritage would amount to an ‘irremediable injury’
to the welfare of future generations. If one’s time consciousness is limited to the empirically
defined ‘present,’ then clearly both solicitude and obligation are readily, yet problematically,
dismissed from the calculation. Likewise, international law—customary, declaratory,
humanitarian, etc.—is accounted among the just institutions of contemporary society,
howsoever imperfect such law may be, and even as we concede this body of law is yet subject

66
A Theory of Justice, above note 48, at 239.
67
A Theory of Justice, above note 48, at 252.

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to ongoing revision as an approximation of justice due. Weeramantry argued persuasively
(notwithstanding questions that ensue from those critical of Rawls’s theory of justice
supposedly extending to future generations) that such an institution is to be preserved out of
respect for the future of international peace and security, but also with a view to preserving the
rights of future generations of humanity.
The UNGA was concerned in its ICJ request not merely for the present but also for the
future of international peace and security. It is pertinent to the moral and legal argument that
the UNGA, as a political representative of the global public through the participation of the
Member States assembled, has spoken on numerous occasions in favor of nuclear disarmament,
beginning with the UNGA’s first resolution in 1946, in which it ‘identified nuclear
disarmament as a leading goal of the United Nations.’
68
Important to that resolution is the
concern for disarmament, not nuclear arms reductions, such as have been the concern of both
bilateral and multilateral treaties since then. Notably, ‘the General Assembly included nuclear
disarmament as part of the more comprehensive goal of general and complete disarmament
under effective international control.
69
It is the first General Assembly resolution ever to be
sponsored by the entire membership of the United Nations.’
70
Given this historical fact, one
can appreciate the motivation underlying the UNGA request fifty years later for an advisory
opinion from the ICJ, notwithstanding objections from some Member States, including those
possessing these weapons.
These UNGA resolutions constitute what Rawls may describe as part of ‘the informed
collective judgment of the present generation’
71
—without assuming certainty or necessity of
the ‘information’ at hand. Multilateral institutions operating at the international level (i.e.,
international intergovernmental organizations) are thought to be representative of a global
democratic framework of political decision speaking on behalf of the peoples of the world,
notwithstanding the recognized sovereignty of each Member State.
72
As such, these
multilateral institutions are interested in achieving in policy formulation and implementation

68
United Nations, ‘International Day for the Total Elimination of Nuclear Weapons’ 26 September 1946,
<https://www.un.org/en/observances/nuclear-weapons-elimination-day> accessed 02 April 2022.
69
United Nations General Assembly, GA Resolution A/RES/ 1378 (XIV), 14
th
Session,
<https://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-
CF6E4FF96FF9%7D/Disarm%20ARES1378.pdf> accessed 07 March 2026.
70
United Nations, above note 68.
71
A Theory of Justice, above note 48, at 260.
72
See, e.g., Dorothy Jones, ‘The Declaratory Tradition in Modern International Law’ in Terry Nardin and David
R. Mapel eds, Traditions of International Ethics (Cambridge University Press, 1992) 2-61; Allen Buchanan, and
Robert O. Keohane, ‘The Legitimacy of Global Governance Institutions’ in Joel H. Rosenthal and Christian Barry
eds, Ethics and International Affairs: A Reader (Georgetown University Press, 2009) 155-183.

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what they deem to be ‘the global public good,’ this normative framework balancing ‘the human
interest’ (broadly conceived) against ‘the national interests’ that are pursued vis-à-vis the
prevailing logic of statecraft and its central principle of sovereignty. These global institutions
are grounded in a commitment to a global representative democracy and a more or less liberal
world order. As such, they attempt to account for the legitimate interests of present and future
generations, as is manifest currently, e.g., in deliberations aimed at requisite global action to
mitigate climate change to avoid a global ecological catastrophe.
73
Rawls appreciates that one
committed to the legitimacy of democratic institutions has a ‘conception of justice [that]
includes a provision for the just claims of future generations.’
74

Granted, Rawls’s statements about future generations retain some unsettled ambiguity.
Claus Dierksmeier, e.g., engages Rawls directly on this issue, questioning the validity of
Rawls’s remarks about ‘inter-temporal’ justice in Rawls’s Political Liberalism. Dierksmeier
concludes, ‘Rawls’ theory cannot provide a satisfactory foundation for the rights of future
generations […].’
75
Dierksmeier’s critical account recalls the metaphysical issue present in
such discourse, ‘since a generation (that is, a generation of people yet unborn) is, by its very
definition, nothing but a metaphysical subject’
76
—not a ‘real’ or ‘actual’ moral or legal subject.
Even so, Dierksmeier attends to the important element of Rawls’s theory: ‘what a society can
distribute is limited by exactly the amount that it is to save for upcoming generations. In other
words, trying to specify what society owes its present citizens requires one to first solve “the
problem of justice between generations”…,’
77
i.e., intergenerational justice. Dierksmeier
thereby asks, consistent with Rawls’s normative logic: ‘So, why not place the decision makers
in a position where they do not know to which generation they belong? Would it not then be in
their interest to optimize the lot of any and all generations?’ But, he answers quite readily: ‘Not
necessarily. As long as deliberating individuals know themselves to be contemporaries—which

73
See, e.g., Robyn Eckersley, ‘Ecological Intervention: Prospects and Limits’ in Joel H. Rosenthal and Christian
Barry eds, Ethics and International Affairs, 131-152. Eckersley speaks of ‘the willful or reckless perpetration of
mass extinctions and massive ecosystem destruction’ that could be regarded as ‘crimes against nature.’ The
perspective here parallels that of concern for thermonuclear war, with the significant difference that while ecocide
involves ‘destruction’ of ecosystems that may likely have viability to return to some measure of normalcy,
thermonuclear war involves ‘devastation,’ blocking all future growth entirely, to the degree of untold generations
of victimization.
74
A Theory of Justice, above note 48, at 261.
75
Claus Dierksmeier, ‘John Rawls on the rights of future generations’ Chapter 4, in Jeorg Chet Tremmel, ed,
Handbook of Intergenerational Justice (Elgar Publishing Ltd., 2006) 72-85.
76
Ibid, at 72, (Dierksmeier explains: ‘A distant future generation, other than one that overlaps with present
generations, is an unspecified theoretical object…. We do not know how, or not even whether, future generations
will exist. Thus, future generations are (metaphysical) objects beyond our empirical reach, accessible only through
(metaphysical) methods such as speculation.’)
77
Ibid. at 74, citing A Theory of Justice, above note 48, at 252.

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is imperative for them to deal effectively with every other aspect of their political lives—
another problem remains. Pondering that, whatever their historic starting position, future (that
is, yet unborn generations) cannot negatively affect them, they could come to the conclusion
not to save at all, and so to maximize their interest.’
78

The key question in that statement, of course, is whether deliberating individuals do indeed
know themselves to be contemporaries. But that allowance in the initial contractual
arrangement seems immediately to defeat the concept of an original position of total ignorance
in the moral-legal thought-experiment, which Rawls insists is essential to elucidating the
consequences of the theory to achieve a distributive justice for any and all individuals,
irrespective of their (unknown yet deliberatively salient) temporal position. If they do not know
the generation to which they belong, then their time consciousness is not limited to the ‘present’
in the usual sense. Dierksmeier notes that Rawls held to “the initial idea that ‘all generations
are virtually represented in the original position’ under ‘the precept that what touches all
concerns all’.”
79
Hence, it cannot be correct to say that deliberating individuals know
themselves to be contemporaries. Instead, they must consider that they may indeed be among
the future generations, whose interests they would be pressed to advance into fair account
rather than ignore or defer; and that would include, in the matter concerned here, the problem
of nuclear weapons and the task of nuclear disarmament.
Of course, if one is to include the interests of future generations, there remains the
conceptual problem ‘that the logic of strictly symmetric exchanges of benefits fails when it
comes to construing relations between persons whose life-times do not overlap.’
80
But, in
Rawls’s ‘re-statement,’ Dierksmeier reminds, Rawls reformulates the idea by saying: ‘The
correct principle [of justice], then, is one the members of any generation (and so all generations)
would adopt as the principle they would want preceding generations to have followed.’
81
This
formulation requires anyone engaged in an original position of deliberation about a social
contract to account for a ‘contemporary’ interest in view of the decisions taken by preceding
generations, with the understanding that those decisions were indeed hopefully but rightfully
at least solicitous of the due interests of future generations. Nonetheless, Dierksmeier is correct
to point out what remains problematic in Rawls’s later efforts to reformulate his theoretical
stance: ‘Wherever there is need for unconditional commitments and duties, all that Rawls’s

78
Ibid, at 75.
79
Ibid, at 76; John Rawls, A Theory of Justice (1971) at 256.
80
Ibid, at 77.
81
John Rawls, Justice as Fairness: A Restatement (Harvard University Press, 2001) at 160.

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system can offer are merely conditional agreements of people who give only under the
condition that they receive, who contribute only insofar as they benefit, who help only as long
as it furthers their interests. In other words, Rawls cannot conceive of ethical obligations where
no reciprocity is to be expected.’
82
So much, then, for any genuine concern for the welfare of
future generations, from whom there can be no manifest reciprocity in the usual sense of what
Rawls means by mutually advantageous cooperation.
What, then, of the expressed concern for nuclear disarmament, as discussed above? It is
clearly a normative concern of the present generation and, at minimum, with regard for the
interests of future generations if not as a matter of what is owed them (in the strict sense of
moral and legal obligation). It is not clear that Rawls would be supportive of this quest, at least
given what he has to say in The Law of Peoples. Writing in 2013, Thomas E. Doyle II complains
of the ‘nuclear despotism’ present in the nuclear deterrence doctrine that seeks to retain nuclear
arsenals for some (such as the USA, Russia, UK), with negotiated reductions, but without a
firm commitment to disarmament, as long as there is concerted effort to prevent proliferation.
Doyle reminds that Rawls provides justification for ‘liberal democratic nuclear deterrence in
the post-Cold War era.’
83
He rightly asks: ‘Can a liberal democracy retain nuclear deterrence
without ultimately corrupting its democratic character?’
84
At issue here is not merely nuclear
deterrence against a ‘superpower’ (such as between the USA and Russia) but ‘against rogue
nuclear aspirant states’ (e.g., North Korea). Doyle cites the relevant passage from Rawls’s The
Law of Peoples:

. . . among reasonably just liberal and decent peoples the control of such [nuclear] weapons
would be relatively easy, since they could be effectively banned. These peoples have no reason
for going to war with one another. Yet so long as there are outlaw states—as we suppose—
some nuclear weapons need to be retained to keep those states at bay and to make sure they do
not obtain and use those weapons against liberal or decent peoples.
85


Clearly, Rawls accepts a limited nuclear weapons arsenal for some while opposing these
for others, presuming upon the goodwill of those he characterizes as ‘liberal or decent peoples’
while presuming the ill will of those he denominates rogue states. However, even if one allows

82
John Rawls on the rights of future generations, above note 75, at 80.
83
Thomas E. Doyle II, ‘Liberal Democracy and nuclear despotism: two ethical foreign policy dilemmas’ (2013)
6(3) Ethics & Global Politics 155-174.
84
Ibid, at 156-157.
85
Ibid, at 158, citing John Rawls, The Law of Peoples, With ‘The Idea of Public Reason’ Revisited (Harvard
University Press, 1999) at 10.

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that the former states would ‘ban’ such weapons, the fact is that a ban is not equivalent to
disarmament per se. The former merely moves to constrain their use, not to eliminate or
eradicate (i.e., dismantle) those weapons entirely. Rawls further assumes that, as Doyle says,
‘outlaw states lack any serious respect for international law’—'certain regimes refuse to comply
with a reasonable Law of Peoples.’
86
The prior assumption is that democratic states or decent
(non-liberal but peaceful) societies acknowledge the importance of a law of nations (jus
gentium), one that includes a doctrine of nuclear deterrence in the context of a nonproliferation
regime.
Doyle refers us to Daniel H. Deudney’s position:

Nuclear explosives are intrinsically despotic for three related reasons: the speed of nuclear use
decisions, the concentration of the nuclear use decision into the hands of one individual, and the
lack of accountability stemming from the inability of affected groups to have their interests
represented at the moment of nuclear use. Nuclear despotism increases the possibilities of
nuclear use because of the inherent fallibility and corruptibility of the lone individual.
87


This is a novel, yet stark, reminder that one cannot assume (as Rawls does) that supposedly
liberal and decent peoples, vesting their power in ostensibly representative officials, can be
trusted to make rationally defensible decisions about the use of nuclear weapons only for
‘defensive’ purposes. In the decision-making process in the USA and Russia, there remains the
‘lone individual’ authority for a decision to employ nuclear weapons—that of the President. In
the case of the USA, there is no obligatory recourse to the US Congress for a prior declaration
of war, no assurance that the decision is genuinely taken legally in view of a verified ‘imminent
attack,’ no clarity that the President identifies a ‘supreme emergency,’ thus no assurance of a
bona fide ‘existential threat’ to the survival of the nation.
88


86
John Rawls, The Law of Peoples, With ‘The Idea of Public Reason’ Revisited (Harvard University Press, 1999)
at 5.
87
Thomas E. Doyle II, above note 82, at 159, citing Daniel H. Deudney, Bounding Power: Republican Security
Theory from the Polis to the Global Village (Princeton University Press, 2007) 255-256.
88
This became especially evident during the Trump Administration. See Andrew Bacevich, ‘Op-Ed: Gen. Milley
did the wrong thing for honorable reasons. We need new rules for starting nuclear war’ Los Angeles Times, 16
September 2021, <https://www.latimes.com/opinion/story/2021-09-16/mark-milley-china-donald-trump-bob-
woodward-robert-costas> accessed 03 April 2022. As narrated: ‘In the waning weeks of the Trump administration
Gen. Mark Milley…twice called his counterpart, Gen. Li Zuocheng, of the People’s Liberation Army, offering
assurances that the United States was not about to launch an attack against China…. “If we’re going to attack,”
Milley told Li, according to Woodward and Costa, “I’m going to call you ahead of time. It’s not going to be a
surprise.”’ The point is clear as to rules for decision: ‘[A]nother Trump figure—or Trump himself—may win the
White House again. Americans are not immune from conferring the presidency on figures who may not be models
of stability and good sense.’

NSU Law Review Duties to Future Generations [Vol: 1]
[22]

At the time of Russian President Putin’s war of aggression against Ukraine initiated in
February 2022, then Donald Trump commented that, if he were yet president, he would
threaten Russia with launch of nuclear weapons from American submarines.
89
That a lone
individual such as Trump could think to make such a decision, effectively ignoring the
legitimate survival interests of the other peoples of the world, diminishes the validity of
Rawls’s assumptions about the legitimacy of nuclear deterrence for liberal democratic states.
The mere fact of a liberal democracy is not a sure barrier to thermonuclear war when
individuals such as Trump are prepared to behave irrationally relative to any number of national
security criteria and the international law of armed conflict. Similarly, the apparent willingness
of Russian national security officials to consider seriously the preemptive strike option is not
to be ignored for the threat it presents.
From the vantage point of ‘all other peoples,’ nuclear despotism undermines the presumed
commitment to a law of peoples that instantiates justice as fairness. Doyle states the point
clearly: ‘If Rawls’s central point is that liberal political order must be secured from the nihilism
of outlaw states, the paradoxical outcome is that nuclear despotism ultimately subverts liberal
constitutionalism.’
90
Indeed, Doyle adds, ‘Rawls did not foresee two important implications of
his view—i.e., how the implementation of liberal nuclear deterrence can ensnare liberal
peoples with an illiberal and immoral appetite for nuclear retaliation and how the need to secure
the country against rogue state and terrorist nuclear espionage leads to the weakening of
constitutional liberties.’
91

Recalling Weeramantry’s point about the significance of international law as both idea and
practice working to the benefit of both present and future generations, it is patent that Doyle
reminds of a related comportment: ‘In addition to the ethical imperative to secure liberal society
from illiberal aggression, liberal societies also assume that they have binding legal obligations
to the international community and an ethical obligation to uphold the rule of international law
generally as the legitimate method of international conflict resolution.’
92
If one takes this
comportment seriously, one cannot defensibly restrict this obligation only to the concerns and
interests of the present generation and the political order they structure through the nation-state
system. All law is living law, necessarily futural in its scope of authority, hence its trans-
temporal normativity. Nuclear disarmament thus remains a moral and legal obligation.

89
See Martin Pengelly, ‘Trump: I would threaten Russia with nuclear submarines if still president’ The Guardian,
23 March 2022, <https://www.theguardian.com/us-news/2022/mar/23/donald-trump-nuclear-weapons-russia>
accessed 03 April 2022.
90
Thomas E. Doyle II, above note 82, at 160.
91
Thomas E. Doyle II, above note 82, at 161.
92
Thomas E. Doyle II, above note 82, at 163.