Is threat or use of nuclear weapons in particular

Is nuclear weapon use illegal?BackgroundIn 1996, the International Court of Justice gave an advisory
opinion on the “Legality of the Threat or Use of Nuclear Weapons” in response
to a question from the United Nations General Assembly, “Is the threat or use
of nuclear weapons in any circumstance permitted under international law?”1 which could be seen as a
follow up to a similar request by the World Health Organisation (WHO) in 1993.
The Court refused to give an advisory opinion to the 1993 request on the basis
that the WHO lacked the competence to ask for an advisory opinion on the topic
as it is not in its scope of activities2. In the 1996 advisory
opinion, the Court examines whether it is legal or not to resort to the threat
or use of nuclear weapons in particular situations such as self-defence and in
defence of non-nuclear weapon states, as well as the legality of possession of
nuclear weapons. The conclusion of the CourtThe 7-7 split of the Court has led to the emergence of the
view that the Court was not decided on the legality of the threat or use of
nuclear weapons and is therefore not unlawful. This is, however, is somewhat
misleading in that the judges presiding the 1996 advisory opinion broadly
agreed that it would be difficult to reconcile nuclear weapons with
international law3
but, on the basis of a lack of a categorical prohibition, the Court could not “conclude
definitively whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defence”4.Sovereignty States are sovereign equals and cannot be compelled to
partake in activities they have not subscribed to. Therefore, in light of this, the lack of
an explicitly binding instrument of international law that prohibits nuclear
weapon use in all circumstances
and in reference to the Lotus Principle from the Case of the S.S. Lotus (Turkey v. France) in which it was
established that “restrictions upon the independence of States cannot therefore
be presumed”5
the legality of their use is unclear. However, those who dissent the Lotus
Principle argue that this would give states unlimited power, for instance Judge
Weiss6.
This unchecked power would allow states that are not party to binding
restrictions on nuclear arms to use them.Deterrence and Threat of UseAccording to the United Nations Charter, all member states
are to refrain from the threat of force against “the territorial integrity or
political independence of any State”7 as it goes against the
goal of preventing another world war. States opposing their use argued that
mere possession of nuclear weapons implied “an element of intent” to use the
weapons and, as such, was a threat to other states. The proponents, on the other hand, “invoked the doctrine and
practice of deterrence8” – the possession of
nuclear weapons by a state to discourage the use of nuclear weapons against the
state – to counter that argument. They also argues that they would only use
nuclear weapons in a defensive capacity. That being said, the policy of
deterrence has led to a large build-up of nuclear arsenals9  spawning discussion on its effectiveness.To some extent, it is counterproductive to the Court’s
opinion of concluding negotiations on nuclear disarmament10 but the fear of mutually
assured destruction (MAD) keeps states from engaging in nuclear weapon use. The
policy of deterrence was not discussed by the Court but it did acknowledge that
the practice has been in place since the cold war. Nonetheless, the legality of
deterrence was not expressly stated by the Court in the proceedings as they
could not find evidence of opinio juris
– the sense of obligation to a norm required from states for the norm to become
an international customary law.Self-defence States for the use of nuclear weapons inquired as to whether
it would be legal to resort to nuclear weapons in self-defence in extreme
cases. In the case, the Court established that self-defence only warrants a
force that is equal to the attack and in necessary for the survival of the
state11. The states argued that,
per the principle of proportionality12, they had the right to
use nuclear weapons if it was to respond to a nuclear attack. This customary
law on proportionality was expounded on in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua
(Nicaragua v. United States of America). Nonetheless, the possibility of
mutual devastation negated “the possibility of the condition of proportionality
being complied with”13. Moreover, the force used
must be in line with international humanitarian law.International humanitarian lawInternational humanitarian law is a set of rules which seek,
for humanitarian reasons, to limit the effects of armed conflict14. It is based on two “cardinal
principles”; the principle of distinction which entails the protection of
civilians and civilian objects; and the second, where it is prohibited to cause
unnecessary suffering to combatants15.  This has led to the explicit prohibition of
various weapons such as chemical and biological weapons16. However, there was, and
still is, no explicit prohibition of nuclear weapons and so the Court turned to
international humanitarian law. Generally speaking, the use of nuclear weapons
would be unlawful17. States for their use
argued that Security assurances  Neutral parties  Environmental considerationsIt is difficult, if not impossible to contain the effects of
nuclear weapons – their heat, blast and radiation – to one particular area.
This raised concerns in that the effects could unintentionally affect neutral
states and, as such, nuclear weapons would be unlawful. The Geneva Convention
Protocol of 1977 prohibits weapons capable of causing long-term, widespread
effects to the environment18Treaty reservationsDespite existing treaties on nuclear weapon use, there is no
comprehensive or universally binding law against their use19; states have either not
subscribed to them, have not ratified them or have made reservations on their
use. Implications in today’s worldIn 2014, the Republic of the Marshall Islands filed suit nine
nuclear states, namely China, North Korea, France, India, Israel, Pakistan,
Russia, the United Kingdom, and the United States “fulfilling their obligations
with respect to the cessation of the nuclear arms race at an early date and to
nuclear disarmament.” As only India, Pakistan and the United Kingdom recognised
the jurisdiction of the ICJ, only they appeared before the court. Nonetheless,
the Court did not proceed with the cases after determining it did not have
jurisdiction. Even though Marshall Islands lost, the effort has greatly
contributed to the fight for nuclear disarmament.20

1
1
Legality of the Threat or Use of Nuclear
Weapons of 8 July 1996, Advisory Opinion, I.C.J. Reports, p. 226,

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2Dakshinie
Ruwanthika Gunaratne, The Nuclear Weapons Advisory Opinion (General Assembly Request)
https://ruwanthikagunaratne.wordpress.com/2017/04/04/nuclear-weapons-advisory-opinion/.
Viewed on 16/1/2018

3
Louis Maresca, Nuclear weapons: 20 years since the ICJ advisory opinion and
still difficult to reconcile with international humanitarian law, 8/07/2016.http://blogs.icrc.org/law-and-policy/2016/07/08/nuclear-weapons-20-years-icj-opinion/,
viewed on 16/01/2018

4
Legality of the Threat or Use of Nuclear
Weapons of 8 July 1996, Advisory Opinion, I.C.J. Reports, p226, paragraph
105, (2)E.

 

5
Dunoff, J., & Trachtman, J. (2010) The Lotus Eaters https://www.ejiltalk.org/the-lotus-eaters/.
Viewed on 17/01/2018

6
The S.S. Lotus (France. v. Turkey.), 1927
P.C.I.J. (ser. A) No. 10 (Sept. 7) ld.
at 42(dissenting opinion of M. Weiss). “…this implies that she (Turkey) can
do as she thinks fit as regards persons or things unless a specific provision
in a treaty or an established custom in international relations prevents her
from so doing. This power is thus in its essence unlimited …”

7
Charter of the United Nations, Article 2 paragraph 4.

8
Legality of the Threat or Use of Nuclear
Weapons of 8 July 1996, Advisory Opinion, I.C.J. Reports, p226, paragraph
66.

9
This article first appeared as Kugler, Jacek, A. F. K. Organski, and Daniel J.
Fox, “Deterrence and the arms race: the impotence of power,”
International Security, Vol. 4, No. 4 (Spring, 1980), pp. 105-138, and can be
found online at http://www.jstor.org/stable/ pdfplus/2626670.pdf. Viewed on
17/01/2018

10
Legality of the Threat or Use of Nuclear
Weapons of 8 July 1996, Advisory Opinion, I.C.J. Reports, p226, paragraph
105, (2)F. The Court highlighted the obligation of states to conclude
negotiations in good faith so as to bring about global nuclear disarmament in
“all its aspects”.

11
Military and Paramilitary Activities in
und against Nicaragua (Nicaragua v. United States of America). Merits,
Judgment. I.C.J. Reports 1986, p. 14.

12 Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, 1. C.J. Reports 1996, p.
226 paragraph 41

13 Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J.
Reports 1996, p.226
paragraph   43

14International
Committee of The Red Cross. https://www.icrc.org/en/document/what-international-humanitarian-law.
Viewed on 16/1/2018

15
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1. C.J.
Reports 1996, p. 226 paragraph 78

16 Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, 1. C.J. Reports 1996, p.
226

Paragraph 76

17 Legality of the Threat or Use of Nuclear Weapons, Advisory
Opinion, 1. C.J. Reports 1996, p. 226

Paragraph
105 (2)E

18
Campaign for Nuclear Disarmament. http://www.cnduk.org/campaigns/global-abolition/legalities.
Viewed on 16/1/2018

19
International Committee of The Red Cross. https://www.icrc.org/en/document/nuclear-weapons.
Viewed on 16/1/2018

20
Ankit Panda, No Luck for Marshall Islands in Nuclear Disarmament Case Against
India, Pakistan, and UK, 16/10/2016. https://thediplomat.com/2016/10/no-luck-for-marshall-islands-in-nuclear-disarmament-case-against-india-pakistan-and-uk/.
Viewed on 16/1/2018.