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The Use and Threat of Nuclear Weapons — Is it legally sound?

By Jasper Ang , International Court Of Justice

Published: 19 Mar 2019 - 09:23 PM

After the nuclear bombing in Japan in 1945, the use of nuclear weapons was put into question. Furthermore, nuclear weapons were used during the Cold War as a deterrence tactic, to dissuade either party from attacking, based on the destructive consequences of nuclear warfare. As such, this tactic was seen as baneful because the consequences of nuclear warfare were used to discourage war, which at the same time escalated tensions between countries. Therefore, treaties revolving around the threat of nuclear weapons and what had to be done about this controversy were signed. The treaties were all checked in 1996 but the council was suspicious of loopholes present in those treaties and wanted them re-checked. Concurrently, new treaties had evolved after 1996 and those treaties would require checking also. However due to time constraints, the council had chosen to single out the treaties that would have utmost relevance to the topic discussed.

Firstly, the Non-Proliferation Treaty (NPT) was an international treaty, implemented in 1970, to prevent the spread of nuclear weapons, to promote the peaceful uses of nuclear energy and to further the goal of achieving nuclear disarmament. This treaty mainly prevented the sale of nuclear weapons from one party to another and resulted in huge stockpiles concentrated in a few countries. The council came to a unanimous conclusion that the NPT was very relevant and would be worth discussing, in terms of deciding whether the use of nuclear weapons is legal, for its objectives were widespread.

Next, the International Humanitarian Law sought to limit the effects of armed conflict, protecting human rights. With this law, no countries were allowed to use nuclear weapons in resolving any disputes. In considering the legality of the use of nuclear weapons, the council sat on the fence, unable to determine how relevant this law was. Some countries believed that this law was relevant for it prohibited the use of nuclear weapons in resolving conflicts. Other countries felt that this law was not really relevant because there are more important treaties to look at and there would not be ample time to look at such a minor treaty.

In addition, the Geneva Convention was implemented, comprising of four treaties and three additional protocols, that established the standards of international law for humanitarian treatment in war. In summary, the treaties and protocols listed out the treatment victims of war should receive in international and non-international armed conflicts. With the establishment of these rights, countries would think twice before using nuclear weapons and this reduces the use of nuclear material. Countries within the council, however, had differing views. Some countries thought that this convention was very relevant to the topic discussed because it was related to International Humanitarian Law which mainly protected human rights. Other countries thought that this convention was not as important, compared to NPT, and so did not feel that it was relevant to the topic.

Following that, the Convention on the Physical Protection of Nuclear Material was signed in March 1980. It was the only international legally binding undertaking in the area of physical protection of nuclear material. It established measures related to the prevention, detection and punishment of offences relating to nuclear material. The council believed that this convention was very relevant to the topic discussed at hand because it stated measures which prevented, detected and punished the use of nuclear weapons. This implied that there might have been loopholes in this convention which needed to be taken into account.

From 1996 onwards, the Comprehensive Nuclear-Test-Ban Treaty (CTBT) was signed, which curbed the development of new nuclear weapons and the improvement of existing nuclear weapon designs. When the Treaty came into effect, it provides a legally binding norm against nuclear testing. The Treaty also helped to prevent human suffering and environmental damages caused by nuclear testing. Although the council felt that this treaty had great relevance to the topic at hand, the council doubted that this treaty would have any loopholes. As a result, the council decided not to single out this treaty.

The 2017 treaty on the prohibition of nuclear weapons is signed and it prohibited countries from developing, testing, producing, acquiring, possessing, stockpiling, using or threatening to use nuclear weapons. It also prohibited the deployment of nuclear weapons on national territory and the provision of assistance to any state in the conduct of prohibited activities. The council decided that, since this treaty had great importance and relevance to the topic discussed, they would be checking this treaty for any infringements in the terms.

As the council meeting came to an end, the necessary treaties were singled out and checked before the determination of the legality of the use of nuclear weapons.

A picture of a nuclear bomb.

A picture of a nuclear bomb.