What Are the International Laws regarding Nuclear Weapon Use

From 27 to 31 March, the first round of UN negotiations on a treaty banning nuclear weapons was held in New York. More than 120 countries took part in the negotiations. However, the United States has led a boycott of the nine nuclear-weapon states and most of their allies. Discussions focused in particular on the objectives of the Treaty, the preambular paragraphs and fundamental prohibitions, as well as its legal and institutional provisions. Although states generally agreed on broad inclusions in the ban treaty, some issues remained controversial. States were divided on whether or not the ban treaty required its own verification protocols in addition to those existing under the NPT. States have not agreed on how to effectively end the stockpiling, transit and trans-shipment of nuclear weapons. States also disagreed on whether language should be included prohibiting nuclear tests and prohibiting the threat of nuclear weapons. Nuclear explosions, of course, are more than big explosions. The resulting ionizing radiation persists for decades, increasing the risk of cancer. The Unnecessary Injury and Suffering Regulations contain an implied obligation to consider alternatives to the weapon intended for use. As legal scholar Stuart Casey-Maslen argues, «If a proposed use of nuclear weapons satisfies both the rule of distinction and the rule of proportionality, a new assessment must be made to determine whether other, less destructive weapons could adequately perform the military task.» 13 The second particularly important provision is the principle of proportionality. According to this rule, even if an attack is successfully directed against military targets, the attack may still be considered unlawful if it causes damage to civilians and civilian objects that would be «excessive in relation to the concrete and direct military advantage anticipated».

8 Because of their fundamental characteristics, nuclear weapons are difficult to use without inflicting serious collateral damage on civilians and civilian objects. However, this does not mean that legal use is unthinkable. In his dissenting opinion on the 1996 ICJ opinion, Judge Stephen Schwebel considered scenarios in which nuclear weapons could be lawfully used. He concluded that the use of nuclear weapons «may well be lawful» if, for example, it is used against a submarine far out at sea.9 Article 3 obliges parties that do not possess nuclear weapons to maintain existing IAEA safeguards and, if they have not already done so, to accept safeguards modelled on non-nuclear-weapon States under the NPT. A UN treaty banning nuclear weapons entered into force on Friday after being ratified by at least 50 countries. But the ban is largely symbolic: the United States and the world`s other nuclear powers have not signed the treaty. Contrary to the government`s position in a number of countries, several recent opinion polls – including Australia[60] and Norway[61] – have shown strong public support for negotiating an international ban on nuclear weapons. The Netherlands voted against the adoption of the treaty, while Germany did not participate despite opinion polls against the presence of nuclear weapons in both countries. [62] [63] In summary, a first draft of a ban treaty[29] was presented by Elayne Whyte Gómez on May 22. [30] The German section of the International Campaign to Abolish Nuclear Weapons (ICAN) highlighted Article 1, 2a, which prohibits any stationing of nuclear weapons on its own territory. For example, several NATO countries – Germany, the Netherlands, Belgium, Italy and Turkey – would have to terminate nuclear-sharing treaties with the United States before they could possibly sign the negotiated ban treaty. [31] Already in 2010, the German Bundestag decided by a large majority to withdraw the atomic bombs from Germany, but this was never achieved.

[32] In June 2017, however, Foreign Minister Sigmar Gabriel reaffirmed the nuclear power plant in Germany and the principle of nuclear balance deterrence against Russia. Therefore, Germany could not support the ban process. [33] The only NATO member to participate in the treaty negotiations was the Netherlands. [34] On December 7, the UN General Assembly adopted resolution 70/33, which established a working group to «examine the content of concrete and effective legal measures, legislation, and standards that need to be complemented in order to achieve and maintain a nuclear-weapon-free world.» International humanitarian law, sometimes referred to as the law of war or the law of war, is perhaps the most important legal regime with regard to the legality of the use of nuclear weapons. In addition to customary international law, the central instrument is Protocol I of 1977 to the Geneva Conventions of 1949. Several rules set out here are of particular importance. The main purpose of the Charter of the United Nations is to «save succeeding generations from the scourge of war». The Charter prohibits the use of military force against States in general, but provides exceptions for self-defence and the use of force authorized by the Security Council. These rules of the Charter also apply to any use of force against States, regardless of the type of weapon. There are no restrictions on nuclear weapons as such. All this may be for another day. The immediate «what happens now» is the entry into force of the TPNW on 22 January 2021.

A day that many of those who are in favour of disarmament and who have campaigned for it for decades will nevertheless celebrate. 22. Nick Ritchie, «Trident: The Deal Isn`t Done,» Bradford Disarmament Research Centre, Dec. 2007, p. 11, note 38, www.brad.ac.uk/acad/bdrc/nuclear/trident/trident_deal_isnt_done.pdf. As for the prohibition on the threat to use or use nuclear weapons, it is a little more complicated. In its 1996 opinion on the threat or use of nuclear weapons, the ICJ unanimously declared that there was no «specific authorization of the threat or use of nuclear weapons» and stated 11-3 that there was no «complete and universal prohibition of the threat or use of nuclear weapons as such» either in customary or conventional international law (para. 105). In many ways, the TPNW leaves this conclusion unchanged.

There is now comprehensive regulation for some states in a treaty (the TPNW). However, it is not a universal prohibition unless all States sign the TPNW or the obligation acquires the status of customary international law. If an independent Scotland were to sign the TPNW, Article 1 states that States «should not permit the stationing, installation or stationing of nuclear weapons or other nuclear explosive devices in their territory or anywhere under their jurisdiction or control». Article 4 provides that «any State Party that possesses, in its territory or in a place under its jurisdiction or control, nuclear weapons or other nuclear explosive devices owned, possessed or controlled by another State Party shall ensure their prompt removal as soon as practicable». Both provisions would create problems for an independent Scottish government that would approve some sort of lease of Faslane and Coulport to the British government. But let`s not be in a hurry, the Scottish government – or a majority for independence – should first win the 2021 election. 2. «Undertaking presented to the Vienna Conference on the Humanitarian Impact of Nuclear Weapons by Austrian Deputy Foreign Minister Michael Linhart», undated, www.bmeia.gv.at/en/european-foreign-policy/disarmament/weapons-of-mass-destruction/nuclear-weapons-and-nuclear-terrorism/vienna-conference-on-the-humanitarian-impact-of-nuclear-weapons/chairs-summary/. According to the International Campaign to Abolish Nuclear Weapons (ICAN), a coalition of non-governmental organizations, the main supporters of the Treaty on the Prohibition of Nuclear Weapons are Ireland, Austria,[47][48][49] Brazil, Indonesia, Mexico, Nigeria, South Africa and Thailand. [50] The 54 African countries (all but one of which have signed or ratified the 1996 Treaty of Pelindaba establishing a nuclear-weapon-free zone on the continent)[51] and the 33 countries of Latin America and the Caribbean (already in a nuclear-weapon-free zone under the 1967 Treaty of Tlatelolco)[52] had signed common regional positions, who support a ban treaty.

These include commitments not to develop, test, manufacture, acquire, possess, stockpile, use or threaten to use nuclear weapons. The treaty also prohibits the stationing of nuclear weapons on national territory and assistance to a State in carrying out prohibited activities. States parties are obliged to prevent and prohibit any activity prohibited under the Treaty on the Prohibition of Nuclear Weapons undertaken by persons or on their territory under their jurisdiction or control. The Treaty further requires States parties to provide adequate assistance to persons affected by the use or testing of nuclear weapons and to take necessary and appropriate measures to restore the environment in areas under their jurisdiction or control contaminated as a result of activities related to the testing or use of nuclear weapons.