Legality of the threat or use of the Nuclear Weapons

Oct. 31, 2020, 1:48 a.m.   suryasikha98  
Pens of Law students   Reports    

Profile of the Author: Bhagyashree Chauhan is pursuing her final year in BBA LL.B. from Symbiosis Law University, Hyderabad. Her primary areas of interest are Constitution, Criminal and Socio-Legal issues.

The international communities have devoted their attention majorly to the humanitarian, environmental, and developmental consequences for the sustainable development of the world. A country will not be in a phase to develop if it is facing continuous war. There are certain laws and customs which restricts the countries, so that they are in their limits and there are less disputes, but no one can stop counties from disputing. There are laws that explicitly restrains on the conduct of war, but the applicably of these laws have never been on check. These laws are not the general rule, they are not binding[1].

Recently International court of Justice Advisory opinion on legality of the threat to use nuclear weapon was considered in the context of armed conflict and environmental law. The question raised in the case is that is the threat or use of nuclear weapon is permitted under international law?

This article deals with the controversy of international law and law of armed forces and with the rule of international humanitarian law. The reference of Rio declaration and Stockholm conference and Geneva Convention of 1949 is given in the case of legality of the threat or use of nuclear weapon.

Much arguments are often made of the fact that the Court’s conclusion on the use of nuclear weapon and the laws of IHL were split. This certainly gives the impression that the ICJ was divided on the legality of nuclear weapons. But this division is somewhat misleading as there was, in fact, broader agreement among the judges that the use of nuclear weapons could be difficult to resolve with IHL rules. Clearly, the 7 judges who voted in favor of the Court’s conclusions on this point held that position. Yet, 2 of the 7 dissenting judges voted against this part of the Court’s opinion because they felt that it did not go far enough to prove a pint in support of it. In their views, the Court should have explicitly determined that the use of nuclear weapons would be unlawful in all conditions.

In addition, although he excluded the idea that nuclear weapons were fundamentally indiscriminate, Judge Schwoebel noted in his dissent, the Court’s conclusion that the use of nuclear weapons would be generally contrary to IHL rules “while imprecise, is not unreasonable.”[2]  He noted that the nuclear weapons may not always offend IHL rules but that a calculation must be made on a case by case basis. The remaining dissenting judges did not give any specific opinions on the legality of nuclear weapons but objected to the Court’s charge and conclusions on procedural or other grounds.

Thus, although views were divided and dissented, a clear majority of the Court shared serious reservations about whether nuclear weapon use could be constant with IHL. Yet, the courts also clearly noticed that there are other fundamental IHL rules and regulations which are a part of customary international law, such as the rules of the 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Land and the 1949 Geneva Conventions and such laws need to be recognized and respected[3].

On 8 July 1996, the Court rendered its Advisory Opinion. Having concluded that it had jurisdiction to render an opinion on the question put to it and that there was no compelling reason to exercise its discretion not to render an opinion, the Court found that the most directly relevant applicable law was that relating to the use of force, as enshrined in the United Nations Charter, and the law applicable in armed conflict, together with any specific treaties on nuclear weapons that the Court might find relevant[4].

The Court indicated that, although the applicability to nuclear weapons of the principles and rules of humanitarian law and of the principle of neutrality was not disputed, the conclusions to be drawn from it were, on the other hand, controversial. It pointed out that, in view of the unique characteristics of nuclear weapons, the use of such weapons seemed scarcely reconcilable with respect for the requirements of the law applicable in armed conflict. The Court was led to observe 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”. The Court added, lastly, that there was an obligation to pursue in good faith and to conclude negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

122 states voted in favor of a legally binding instrument prohibiting nuclear weapons on 7 July 2017. The Treaty on the Prohibition of Nuclear Weapons, signed at a United Nations conference, makes the possession of such hideous weapons of mass destruction illegal, along with other related practices, such as nuclear weapons research, use, production or assistance (including, but not limited to, funding or preparing to use them). The treaty also provides measures to assist victims of the use and testing of nuclear weapons and the remediation of the environment. It is the first treaty to accept that nuclear weapons have a disproportionate effect on indigenous communities and on women.

The accomplishment of this agreement is an extraordinary feat of collective action by individuals who have come together to do something that has not been attempted before. It is the culmination of decades of lobbying by WILPF and other civil society groups for the elimination of nuclear weapons. WILPF has been part of the International Movement to Prohibit Nuclear Weapons (ICAN) since 2007[5], which has been working to bring this ban to fruition through states, international organizations, scholars and activists. We have been working to establish a renewed emphasis on the humane effects of nuclear weapons, opening up room for consideration of the most acceptable political and legal reactions to the presence of nuclear weapons. This treaty, as we have all understood, has not magically abolished nuclear weapons overnight. But as Setsuko Thurlow, an atomic bomb survivor, said in her remarkable closing speech to the negotiating conference on 7 July, "This is the beginning of an end to nuclear weapons." As a way of promoting disarmament, this treaty was designed as a mechanism that could help transform the politics and economics of nuclear weapons. It offers a firm basis for reforming policies and practices, as well as for further shifting the thought and debate on nuclear weapons. As a way to promote disarmament, this treaty was designed as a mechanism that might help transform the politics and economics of nuclear weapons. It offers a solid framework for changing policies and procedures, as well as for further changing the thought and debate on nuclear weapons.

Frequently Asked Questions (FAQs):

Q. What are nuclear weapons?

A. Nuclear weapons release huge amounts of radiation - which can cause radiation sickness - so their actual impact lasts longer than the blast. But they've only ever been used twice in history - against Japan in 1945 during World War Two where they caused huge devastation and enormous loss of life. The radiation from the bomb dropped on the city of Hiroshima lasted several months and killed an estimated 80,000 people. And the bomb dropped on Nagasaki killed more than 70,000 people. They haven't been detonated in war since then. Nine countries currently have nuclear weapons: the US, UK, Russia, France, China, India, Pakistan, Israel and North Korea.

[1] Treaty on the prohibition of nuclear weapons, United Nations (24-10-2020,7:26 PM)

[2] Timothy J. Heverin Legality of the Threat or Use of Nuclear Weapons: Environmental and Humanitarian Limits on Self Defense (24-10-2020,5:36 PM)

[3] The influence of humanitarian principles in the negotiation of arms control treaties, International Committee of the red cross (24-10-2020,7:30 PM)

[4] John Burroughs, Looking Back: The 1996 Advisory Opinion of the International Court of Justice (2016) Arms Control Association (24-10-2020,7:28 PM)

[5] Abolishing nuclear weapons, Reaching Critical Will (24-10-2020,7:27 PM)

The author undertakes that the work submitted is an original creation of the author. The author has not previously submitted the article for the purpose of publication. Any similarity with a previously published content is not intentional. The author shall be personally liable for any infringement of intellectual property of any person, organization, government or institution.

Liked the article ?
Share this:


india ads fairnesscreams tv ads ban proposal anti ageing creams government 2006 micro small review enterprises development act big India Juvenile Justice Women justice Jurisdiction Constitution caa secularism amendment sedition Arbitration consumer complaint filing international laws wildlife protection animal laws USA china women empowerment pornography legal prostitution sex trafficking laws legalising Economy Measures RBI Coronavirus Reserve Bank of India stability coronavirus impact liquidity shantikanta das monetary policy repo rate moratorium disinformation fake news state of frenzy social media anger hate issue EpidemicDiseaseAct uniformcivilcode equality secular illegalimmigrants immigration assisteddying euthanasia police brutality custodial violence police efforts jail separation divorce hindu marriage family laws economic slowdown unemployment percapitaincome inflation GDP growth aggregate demand commercial surrogacy bill armed forces equal rights landmark judgement indian army transgender living conditions third gender Disability rights rape law Criminal law IPC regulatory sandbox IRDA framework IRDA guidelines live environment RBI regulations pollution womeninmates punishment sexualassault wrongfulconvictions IPR EnvironmentLaws JudicialActivism Jurisprudence Internship singleparent adoption niti manthan phase 1 prison reforms Phase 1 Niti manthan e-fradus cyber crimes It Laws Medico legal aid Media technology and democracy legal literacy Body Offences Housing infrastructure Infra accessibility for the persons with disability indian law global laws right to health fundamental right article 21 Indian penal code criminal law crimes against women rapecases IntellectualPropertyRights Trademark NuclearSecurity Cyberlaws judiciary petitions mercy petition review petition curative petition zero draft human rights business United nations ADR Law mediation Alternative dispute resolution mechanism negotiation conciliation Mahatama Gandhi Gandhian Concept of Law economics technology technological unemployment network online consumption production working remotely law of sedition article 19 right to freedom and expression moblynching violence offence animalrights gayparenting pronouns fundamental duties Indian law Constitution of India covid19 criminal justice system constitutional administrative litigation Courts order commission report speedy trial Corrections legal aid legislature Police Successionlaw casestudy SARFAESI e-debate maritalrape 498A IPC Misuse nirbhaya rape case death penalty deterent theory covid-19 force majuere events Force Majeure Clauses coronavirus outbreak doctorine of frustration clauses contract UAPA 2019 Review indigenous people LabourLaws Familylaw dowry death white collar crimes plea bargaining menstruation myths defamation forgery events Results Phase 2 trespass mental health Patent rights crimes lockdown child abuse traditional crime crime rate phishing ransomware cybercrime malware domestic violence doctoring lis pendens applicability conditions insensitive media coverage media Death News channel ayodhya judgement Group Discussion Exceprts naturaljustice legalprincipals Supremecourt crpc Bail Legalethics legal guidelines telemedicine legal issues Laws Section 269 Section 270 cholera privacy concern Divorce Muslim Women retention of property yemen conflict competition law 10 years administrativelaw PiracyLaw juvenile justice EIA Draft 2020 30th June 2020 Environmental Impact Assessment Climate Change Laws Dissent Research Group juvenile crimes Administration environment conservation Sustainable Oceans Énvironment Service laws Compassionate Appointments policy legislation webinar scientist climatologist report policy change TPA property patent law section 144 principles of natural justice justice delayed instant justice work from home InformationTechnology persons with disabilities discrimination health girls disease community duties individual contemporary world common interests duality MRTP Act Indian economy competition commission of india Competition Act appraisal singaporean court section 377 Navtej singh judgement IHL war crimes humanitarian law ipc beyond india extra territorial jurisdiction wife maintenance desertion marriage #digital strike #cyber security chinese apps #chinese apps #ad-hoc arbitration #institutional arbitration #environmental law #environment #human rights #strict liability Lok Adalats US-India Abortion laws Live-in-relationships Indian Judiciary Universal Healthcare Rules Based World Order. YL3 victim dying declaration wish last wish truth balanced cooperative bank sarfaesi act Internet Ban Censorship Website Ban #DPSP #state #covid #IP black money racism Skin colour Political system Unrest accountability Jammu and Kashmir Article 370 Abrogation Kidnapping and Abduction Indo-Nepal brutality dk basu guidelines Conflict Changing dynamics democracy prostitution in India extradition laws and treaties Surrogacy laws case study Law and Order society Legal Implications regulatory framework Betting Gambling Seventh Schedule Central Government Betting Laws cyber delinquency Juvenile Justice Act Doctrine Part Performance Section 53-A CERC sustainable development Grid Code electricity laws electricity control Mental HealthCare Act WHO National Trust Act Disaster Mangement Indian legal Framework Female Criminality social structure Corporate Laws Corporate Veil Company Election Laws Electoral Reforms Law Commission of India Article 324 Election Commission contempt of court rule of law supreme court principle of natural justice judges criticism high court Fertility Assisted Reproductive Technology Assisted Reproductive Technology (Regulation) Bill Legal Evolution Literature growth goods and services Predatory Pricing Market legal remedies cryptocurrency virtual currency santhanam committee ethical behavior border LAC Aksai Chin revenge porn FIR SC/ ST Reservation artificialintelligence Privacy privacy specialmarriageact constitutional constitutionality Article 139A Education National Education Policy HRDMinistry feminism Gender Inequality Sex god juristic personality PIL earth nature ecosystem public trust Section 420 ASCI Advertisements Covid-19 Online Dispute Resolution dispute JusticeOnTime Cyber Space election Cloning Senior citizens Human Rights arrest CrPC procedural laws curative legislation Ration card Judicial Review Writ Jurisdiction indian passport foreigners-act extradition law laws in India Inheritance Laws Section 6 Domicile CLAT NLU belgium extradition treaty vicarious liability law of torts common law International Commercial Arbitration Private Defence Legal Right energy consumption national solar mission international law economic sanction tax structure Reforms NDPS Act Section64A genocide research projects internships summer school Virtual Courts Digital India NDHM Press Regulation italian-marines fishermen kerala international waters arbitration womenrights witchhunting janaushadischeme medical national health policy healthcare national digital health mission world health organisation legal jurisprudente draft health data management 2020 concerns drawbacks ministry of health and family affair sting operations media trial press rights right to privacy Twitter Prashant Bhushan period leave probate essentials for will will Technical biometrics Laws for women settlement mandalcommission 30 years gandhi principles Indianlegalsystem CELRA Climate Change Phase 3 sakshiaggarwal communication skills youcanskilldevelopment client counselling soumikghoshal sbi protest farm acts agriculture farmers anti-farmers men Executive power constitutional law Article 73 finance transparency political parties bonds Sexual Harassment Ministry of Human Resource Development Educational Reforms sabarimala case untouchability cruelty misuse by women gender biased 488A ban of apps section 69A tiktok app compensation section 357A state s bankruptcy Insolvency_law_committee insolvency_bankruptcy_act insolvency nclt students accessibility #righttoeducation nuclear weapon treaty legality advisory opinion international restorative justice punishment theory copyright law distance education virtual teaching SC/ST Forest Rights Act Forest Conservation vaccination love jihad ibc suspension financial creditors ministry of corporate affairs symbol substantial acquisition takeover public announcement control rape culture sacred ashwatthama mythology out of court settlement history banking law sebi stressed assets banking regulation dispute resolution professionalism private sector fund sourcing banks code of wages worker wage publication copyright infringement publishing house penguin environmental jurisprudence 2020 indian legal system