Legality of the use of Nuclear Weapons | Law Optional Notes for UPSC PDF Download

Introduction

In today's world, numerous countries possess nuclear warheads, and the ongoing tensions between the US and Iran have brought nuclear weapons into the spotlight. These weapons are incredibly potent and have the capacity to devastate entire cities in an instant. The majority of nuclear warheads are owned by the United States and Russia, accounting for over 90% of them. There is ongoing debate and discussion about who has the right to possess, use, manufacture, or develop these weapons. Understanding the legal aspects surrounding these massively destructive weapons is of paramount importance and interest. This article aims to provide insight into the legal framework governing the use of nuclear weapons and related matters.

Summary of the Landmark Case "Legality of the Use of Nuclear Weapons"

The issue of the legality of using nuclear weapons was initially raised by the World Health Organization (WHO) before the International Court of Justice (ICJ) on May 14, 1993. WHO requested the ICJ to provide an advisory opinion on whether the use of nuclear weapons by a state in times of war or armed conflict would constitute a violation of its international obligations, including those outlined in the WHO Constitution. This request was made through a resolution.

Subsequently, on December 15, 1994, the United Nations General Assembly adopted a resolution that asked the ICJ to provide an advisory opinion on the circumstances under which the use or threat of nuclear weapons would be considered permissible under international law. While the ICJ declined to address the question posed by WHO, citing that WHO lacked the authority to raise it, the ICJ did respond to the United Nations General Assembly's request for an advisory opinion.

Determination of Applicable Laws

To address the question regarding the legality of using nuclear weapons, it is crucial for the Court to consider the relevant areas of international law that may apply.

• Human Rights: In accordance with the fundamental principle of the right to life, every individual possesses an inherent right to life. This right is safeguarded by various legal frameworks. The International Covenant on Civil and Political Rights (ICCPR) contains a provision that explicitly states that no one shall be deprived of their right to life arbitrarily. Consequently, the right to life must be upheld both during times of war and in peacetime.
• Environmental Law: When examining environmental laws, the Court made reference to two treaties. Firstly, Protocol I prohibits the use of "methods or means of warfare that are intended or expected to cause widespread and serious damage to the natural environment." Secondly, the Environmental Modification Convention includes provisions that specifically prohibit the use of weapons with severe environmental effects. In line with the principles outlined in the Rio Declaration and the Stockholm Declaration, states bear a duty to ensure that they do not engage in activities that harm the environment. It is important to note that the duty to avoid causing harm across borders is considered customary law. Additionally, the use of nuclear weapons during wartime requires states to assess the necessity and proportionality of such military actions.

The International Court of Justice (ICJ) addressed five key substantive questions in its advisory opinion

Is there any treaty or customary law that explicitly authorizes or discusses the use of nuclear weapons?

The ICJ determined that neither treaties nor customary law explicitly authorize the use of nuclear weapons. In line with the principle established in the Lotus Case, it stated that states are generally free to threaten or use nuclear weapons unless it can be proven that they are bound not to do so. The Court also examined if any treaty or customary law universally prohibits the threat or use of nuclear weapons.

Does any treaty or customary law contain an absolute prohibition on the use or threat to use nuclear weapons?

The ICJ examined nuclear weapons treaties to ascertain whether any of them categorically prohibit the threat or use of nuclear weapons. It distinguished between poison weapons and nuclear weapons, concluding that almost all nuclear treaties primarily address the acquisition, possession, manufacture, or testing of nuclear weapons. The Court ultimately found that no treaty contains an absolute prohibition on the use or threat to use nuclear weapons.

Does customary international law provide an absolute prohibition on the use of nuclear weapons?

The ICJ analyzed customary international law and found that state practices and opinio juris (the belief that certain actions are legally required) regarding the use of nuclear weapons vary from state to state. Since World War II, many states have discouraged the use of nuclear weapons and adopted a policy of nuclear non-use. However, there is no established conventional or customary rule that per se prohibits the threat or use of nuclear weapons.

Is the use of nuclear weapons compatible with international humanitarian law and other relevant laws?

The ICJ examined the compatibility of the use of nuclear weapons with international law applicable to armed conflicts, including the UN Charter and international humanitarian law. While the UN Charter neither expressly permits nor prohibits nuclear weapons, it asserts that any threat or use of force, including nuclear weapons, must be proportionate and necessary for self-defense. The Court also emphasized that even if the use of nuclear weapons is lawful, it must still comply with the provisions of laws governing armed conflicts and humanitarian laws.

How do self-defense provisions apply to the use of nuclear weapons?

Article 51 of the UN Charter addresses self-defense and imposes certain restrictions. It requires that the use of force be in self-defense only, that the defending state report its measures to the UN Security Council, and that the measures taken for self-defense conform to customary international principles of necessity and proportionality. The Court acknowledged that assessing proportionality is challenging due to the unique destructive capabilities of different weapons, including the potential for ecological harm and environmental consequences. Therefore, proportionality analysis must consider various factors, such as destructive capabilities and environmental impact, when exercising the right of self-defense.

Additionally, the ICJ emphasized the importance of promoting nuclear disarmament, suggesting that states should continue negotiations and agreements towards achieving nuclear disarmament for the sake of environmental protection and human welfare.

Principle of Neutrality

The principle of neutrality is a crucial element of customary international law that must be considered when discussing armed conflicts. Neutrality is a formal status granted to a state that is not involved in an armed conflict. This principle confers both rights and responsibilities upon both neutral and belligerent states. Neutral states have the right to remain uninvolved in the conflict and should not be harmed. They are also expected to adhere to the duties of impartiality. Thus, it is essential to take the principle of neutrality into account when assessing the legality of using nuclear weapons.

Environmental Law and Self-defense

It is widely acknowledged that nuclear weapons cause severe and lasting damage to the environment. Therefore, it is imperative for states to consider environmental factors when determining the necessity and proportionality of self-defense actions. Even if the use of nuclear weapons is not deemed illegal, it is important to respect environmental laws by adhering to them. In the landmark ICJ opinion on the "Legality of the Use or Threat to Use Nuclear Weapons," the Court recognized a state's duty not to cause harm across borders and emphasized the significance of environmental factors when evaluating necessity and proportionality, thereby limiting the scope of the latter principle. This approach not only strikes a balance between justifiable self-defense and environmental protection but also fosters respect for the environment. The Court's opinion underscores the necessity of incorporating environmental concerns into the laws of armed conflict. According to this approach, a belligerent state may harm the ecosystem in self-defense only to the extent necessary and proportionate to legitimate military activities, especially when considering the use of nuclear weapons. In conclusion, it is crucial to strike a balance between the two important doctrines of self-defense and environmental laws.

Ban on Nuclear Weapons Testing

The proliferation of nuclear warheads among states has reached a dangerous level, prompting public protests against nuclear weapons testing. These tests are conducted to assess the effectiveness and destructive potential of nuclear weapons, whether in the atmosphere, underground, or underwater. It is well-documented that nuclear weapons tests have had significant health and environmental consequences, with the Hiroshima and Nagasaki nuclear tests serving as stark examples. The discussion surrounding the prohibition of nuclear testing has been ongoing for a considerable period. Numerous treaties exist that prohibit nuclear weapons testing, with examples including the Partial Nuclear Test Ban Treaty and the Comprehensive Nuclear Test Ban Treaty. The latter has been signed by more than 180 nations, although some countries, such as India, North Korea, and Pakistan, have not ratified it yet. These treaties play a crucial role in addressing the dangers associated with nuclear testing.

Nuclear Non-Proliferation Treaty (NPT)

The NPT's primary objectives are to advance nuclear disarmament and prevent the proliferation of nuclear technology. This landmark international treaty was made available for signature in 1968 and currently boasts more than 190 member countries, including the five recognized nuclear weapon states: the United States, United Kingdom, France, Russia, and China.
The NPT serves as a foundational element of the global non-proliferation framework and encourages cooperation in the peaceful application of nuclear energy. Notably, 2020 marked the 50th anniversary of the NPT.

Limited Test Ban Treaty (LTBT)

The Limited Test Ban Treaty, also known as the Partial Test Ban Treaty, prohibits the testing of nuclear weapons in the atmosphere, outer space, and underwater.

Comprehensive Test Ban Treaty (CTBT)

In contrast to the LTBT, the Comprehensive Test Ban Treaty bans nuclear explosions in all environments. Despite having garnered over 190 signatories, the treaty has not yet come into effect as it requires ratification by at least 44 specific states possessing nuclear technology, as stipulated in Article XIV of the treaty.

Conclusion

In conclusion, it's essential to emphasize that although various measures have been taken to promote complete nuclear disarmament, there is no absolute prohibition on the use or threat of nuclear weapons in international law. Nevertheless, it remains imperative to implement stringent measures to regulate the use and testing of nuclear weapons to minimize their environmental impact and reduce the health hazards resulting from radiation exposure.