LEGALITY OF NUCLEAR WEAPON UNDER INTERNATIONAL LAW

Author: PREETHI.S

College: TN Dr. Ambedkar Law University (School of Excellence in Law), Taramani,Chennai.


Abstract:

This article aims to convey the advisory opinion of ICJ about the legality of use of nuclear weapon. Nuclear weapon is an explosive device that derives its destructive force from nuclear reactions, either fission or combination of fission and fusion. Nuclear weapon is used twice in a war by USA against Japan near the end of World War II. The goal of UN is to promote nuclear disarmament and non-proliferation and the strengthening of disarmament in respect of other weapons. Peaceful nuclear explosion also a treat to the environment as it disturbs the climatic condition which affects the existence of life. So it’s become necessary to prohibit all nuclear explosion regardless of whether they are for peaceful purpose or not.


Introduction:

Nuclear weapon are the most dangerous weapon ever invented and no weapon have such an unspeakable human suffering. No person can escape from its radioactive effect and no one can calculate its survival in the area where it was dropped. No other weapons have such an effect. The very existence of nuclear weapon is a major threat to human survival. The risk of nuclear weapon is the highest since from cold war. Now-a-days, the nuclear armed states are modernised and the alarm for danger is more. The hard truth is that no state or organization could deal with the catastrophic consequence of nuclear bomb. After the attack on Hiroshima and Nagasaki in 1945, ICRC calling for ban on nuclear weapon. Many agreements were made in order to prevent the use of nuclear weapon including Non- proliferation treaty. At last in the year of 2017, July the treaty banning the use of nuclear weapon.


International law on nuclear weapon:

International law regulates the relationship between states. This regulation on states extend in time of peace and war. It lacks control and sanction over member states even it applies on every states without any discrimination. Such sanctions and control measures are provided only in treaties. International law contains Humanitarian law as a part of it which regulates the conduct of civilians and the act towards combatants after or at the time of war. It also says that the use of weapon would cause unnecessary harm to civilian. And also such nuclear weapon cannot distinguish the uniform of soldiers from civilians. Disarmament treaties are made to prevent armed conflicts between the state, in such case both the customary and treaty law become important in aspect of avoiding nuclear weapon. The international conventions do not explicitly ban the production, possession and use of nuclear weapon[1]. The issue of illegality of nuclear weapons, despite the lack of a convention, was considered by the International Court of Justice is an advisory opinion in 1996.[2] Even general public can call for attention in case of infringement of international law. It plays as peace building instrument between states. Unfortunately, the nuclear-weapon states show lack of political will in strengthening the peace building potentials of International law by banning and abolishing nuclear weapons. Here is the case which brought before ICJ by Australia and New Zealand against France going on with its nuclear test. The claim was dismissed as the President of France announced that no more nuclear test.[3]


ICJ Opinion on Legality of use of Nuclear Weapon:

ICJ was asked by UN whether the use of nuclear weapon is an infringement to international law. On July 8, 1996 the ICJ gave its advisory opinion on legality of use of nuclear weapon[4].

“In most of the cases the use of nuclear weapon is considered as a violation of international law as it causes indiscriminate harm. Warning parties use as much as nuclear weapon only to achieve legitimate military objective. Not only states within the armed conflict suffer harm but also the states not in the conflict suffers the harm not only because of harmful radiation but also changes in global climatic conditions that disturbs the world in wide”.

International law prohibits the state from initiating the nuclear conflict towards other states. And also prohibits the state from use of nuclear weapon even it has the right of self-defence. In this sense the question was placed before ICJ that whether the state have the right to use the nuclear weapon as a self-defence even though the use of nuclear weapon was illegal.[5] The court was unable to conclude the legality of use of nuclear weapon when a threat arises to the existence of the state. It added that the use of nuclear weapon was violate in nature of international law. ICJ further stated that every state have the obligation to complete the task of nuclear disarmament as referred in Article VI of NPT.


Treaty on Prohibition of Nuclear Weapon:

On July 7, 2017 the U.N. adopted the first ever treaty imposing a prohibition on Nuclear Weapon. This a movement towards the nuclear weapon free world. More than 120 countries supports the UN. The following questions are answered below.

1) Whether the Nuclear ban treaty is necessary?

2) What is the role of ban treaty in this risk prone world?

3) What are the measures involved minimize the threat nuclear weapon?

The 1968 NPT made the disarmament as a necessary obligation for every states. However this twenty-first century was prone to upgradation of nuclear weapon and the risk of nuclear arm race. Without the treaty on prohibition of nuclear weapon there is no end to nuclear arm race. At the same time the treaty on prohibition on massive destructive weapon is more effective among the states. Hence the TPNW also works effectively among nations. The role of the treaty is the cut off the possession right of the states on nuclear weapon and this treaty applies uniformly to all countries. It fulfils the legal gap in international humanitarian law and creates international norms that delegitimize nuclear weapon.[6] The measures included were banning the assistance with prohibited acts, it create the path to join the treaty and eliminate their weapons and the mechanism is properly verified and requires environmental remediation.

  • OVERVIEW ON TPNW:

The preamble of the treaty[7] starts with “catastrophic consequences” of a nuclear weapon by stating about the surviving victim of 1945 nuclear bomb explosion in Hiroshima and Nagasaki and the victims of nuclear test, by the slow pace of nuclear disarmament and by the continued reliance on nuclear weapons in military and security and security concepts like deterrence. The preamble also recognizes the impact on indigenous peoples. It expresses the compliances with UN charter, humanitarian law, UN resolution on 24 Jan 1946, NPT and etc. It emphasizes the inalienable rights of peaceful use of nuclear energy and recognized the social factors for peace and disarmament.


Impact of nuclear weapon:

As already stated above nuclear weapon is the most destructive weapon ever created which causes unimaginable loss of lives. The impact on the earth is irreparable and even the loss cannot be compensated. Some of the impacts herein,

A single nuclear weapon can destroy a city with millions of casualties. The extreme destruction caused by nuclear weapons cannot be limited to military targets or to combatants. The ionizing radiation out of the nuclear explosion kills thousands and millions of people. The impact of nuclear weapon last not only for present generation it also extends to upcoming generations and causes cancer, genetic damage. It also disturbs the climate. There is no humanitarian response. The spending on nuclear weapons detracts limited resources away from vital social services.


Conclusion:

The destructiveness of nuclear weapon is more and its necessary in hands of ever people to make sure that decision makers understand that nuclear weapons have no place in the world. The abiding nature of international law should be more effective in case of nuclear weapon and the states are bound to accept the rules made by international law in order to have a free and peaceful existence of the world. As the legality of nuclear weapon was tested and concluded as illegal with respect to international law it’s on the hands of state to join the treaty on prohibition of nuclear weapon. These are the only measures to have the nuclear free world.

[1] Legality of the threat or use of nuclear weapons (1996) ICJ 2 [2] International law and nuclear weapons (http://laromkarnvapen.se/en/nuclear-weapons-politics) visited on Oct 14, 2020. [3] Nuclear test ( Australia & New Zealand V. France) ICJ report 1974, p. 253&457. [4] Pieter H.F. Bekker ;Advisory opinion of world court on the legality of nuclear weapons; vol.1 issue.5 ( hhtp://www. Asil.org/insights/volume 1/issue 5/world-court-opinion-legality-nuclear-weapon) visited on 13 Oct 2020. [5] Id., [6] Treaty on prohibition of nuclear weapon,(hhtps://www.psr.org/blog/tag/ban-treaty/), U.S. affiliate of international physicians for the prevention of nuclear war; visited on Oct 14,2020. [7] Nation, ed. ( 6 July 2017). “Draft treaty on the prohibition of nuclear weapons”. Retrieved 8 July 2107. Treaty on ban of Nuclear weapon ( http://www.un.org/disarmanent>tnpw) visited on Oct 14 2020.

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