Quote

A sword never kills anybody; it is a tool in the killers hand.

-Seneca

LEGALITY OF THE
THREAT OR USE OF
NUCLEAR WEAPON
[PIL-502]

SUBMITTED BY:
TUSHAR JALAN (1282118)
BBALLB (B), 5th SEMESTER

CONTENTS
1. Overview....................................................................................................................................2
2. Nuclear weapon.........................................................................................................................3
3. Advisory opinion.......................................................................................................................5
3.1. Background.........................................................................................................................6
3.2. Jurisdiction.........................................................................................................................6
3.3. The Applicable Law...........................................................................................................7
3.4. Provisions of the Charter relating to the threat or use of force...........................................8
3.5. Rules on the lawfulness or unlawfulness of nuclear weapons............................................8
3.6. International Humanitarian Law.......................................................................................10
3.7. Obligation to negotiate nuclear disarmament...................................................................11
4. Judgement................................................................................................................................12
5. Analysis...................................................................................................................................13
6. Bibliography............................................................................................................................14

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OVERVIEW
Since the first and only use of nuclear weapons in 1945, the international community has
wrestled with the issue of how the law of war applies to such weapons.
Nuclear weapons have severe consequences in humanitarian terms. These consequences result
from the heat, blast and radiation generated by a nuclear explosion and the distances over which
these forces may be spread. As was seen from the bombings of Hiroshima and Nagasaki in 1945,
the detonation of a nuclear weapon in or near a populated area can cause enormous numbers of
casualties and extensive damage to civilian infrastructure. It can also destroy medical
infrastructure and services making the provision of aid and assistance almost impossible in the
immediate aftermath. Many of those who survive the blast will fall victim to radiation sickness in
the weeks and months that follow while others face an increased risk of developing certain
cancers later in life.
A number of multilateral treaties have since been established with the aim of preventing nuclear
proliferation and testing, while promoting progress in nuclear disarmament. These include the
Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the Treaty Banning Nuclear Weapon
Tests In The Atmosphere, In Outer Space And Under Water, also known as the Partial Test Ban
Treaty (PTBT), and the Comprehensive Nuclear-Test-Ban Treaty (CTBT), which was signed in
1996 but has yet to enter into force.
There is no comprehensive or universal ban on nuclear weapons in international law, although in
1996 the International Court of Justice concluded that the use of nuclear weapons would be
generally contrary to the principles and rules of international humanitarian law (IHL). The Court
also concluded that States were under an obligation to pursue and conclude negotiations leading
to nuclear disarmament.
For decades the discourse about nuclear weapons was focused on their military and security
aspects and concerns about their proliferation. Increasingly, however, States are expanding the
debate to include their catastrophic humanitarian consequences and IHL implications. In parallel,
many States and organizations are increasing or re-emphasizing calls for a treaty to prohibit and
eliminate nuclear weapons.
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NUCLEAR WEAPON
Before we started to discuss about the legality of the use of nuclear weapon. We must understand
the nature of nuclear warfare. How it is different? What makes it so special that we should have
separate criteria to regulate its uses in the international warfare? To answer all the above question
we have to first distinguish between a weapon and a nuclear weapon.
Nuclear weapon is a weapon for mass destruction. It does not kill few individuals, but it has the
power to level cities, bringing anarchy and a total chaos in any healthy system. Nuclear weapons
are the most destructive technology ever developed by mankind. It is capable of changing the
course of nature, paralyzing countries and taking us back to the Stone Age. As Einstein said I
know not with what weapons World War III will be fought, but World War IV will be fought with
sticks and stones. He was correct in his assessment as any outbreak of war will have disastrous
consequences on us the homo sapiens. It will cripple the mankind both socially and
economically. The world in which this discovery was made is convulsed by war, paranoia, and
totalitarian cruelty that had made the translation of theoretical possibility into actuality
inevitable. The world has been fortunate in the extreme that their only role so far has been to
close the worst chapter in the history of war, instead of opening a new one.
Nuclear weapon is a device designed to release energy in an explosive manner as a result of
nuclear fission, nuclear fusion, or a combination of the two processes. Fission weapons are
commonly referred to as atomic bombs. Fusion weapons are also referred to as thermonuclear
bombs or, more commonly, hydrogen bombs; they are usually defined as nuclear weapons in
which at least a portion of the energy is released by nuclear fusion.1
From the day fission was discovered in 1938, the problem of controlling this technology has
been of central importance to the human race. The first successful nuclear warhead was built by
J. Oppenheimer under the Manhattan project. He is often referred as one of the father of nuclear
weapon. After watching the first atomic detonation, he realized the negative consequences of the
discovery. After the atomic bomb detonation in Hiroshima (Little Boy) and Nagasaki (Fat Man),

1 http://www.britannica.com/EBchecked/topic/421827/nuclear-weapon,
September 11, 2014 at 20:03.
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last

visited

on

he regretted his contribution in making the nuclear weapon. He quoted I am become death, the
destroyer of worlds.2
Nuclear weapons produce enormous explosive energy. Their significance may best be
appreciated by the coining of the words kiloton (1,000 tons) and megaton (1,000,000 tons). That
blast immediately produced a strong shock wave, enormous amounts of heat, and lethal ionizing
radiation. Convection currents created by the explosion drew dust and other debris into the air,
creating the mushroom-shaped cloud that has since become the virtual signature of a nuclear
explosion. In addition, radioactive debris was carried by winds high into the atmosphere, later to
settle to Earth as radioactive fallout.
The most critical materials required for nuclear weapons are special isotopes of particular
elements. Some of these isotopes exist in nature, but are highly diluted by other isotopes of the
same element (e.g. deuterium, Li-6, U-235). 3
Detonation of nuclear weapon has a severe effect on the environment. It produces both
immediate and delayed destructive effects. Immediate effects such as blast, thermal radiation and
prompt ionizing radiation are produced and cause significant destruction within seconds or
minutes of a nuclear detonation. The delayed effects like radioactive fallout and other possible
environmental effects can inflict damage over an extended period ranging from hours to
centuries, and can cause adverse effects in locations very distant from the site of the detonation.4
It does not mean that the nuclear energy can only use as a destructive force. It also has many
positives, if utilized in a productive manner. Nuclear energy is one of the purest form of energy
known to human. It is sustainable in nature. Nuclear power is used to generate electricity. In
todays era nuclear power comprises of 17% of worlds total power supply. It also have medical
applications in diagnostics and radiation treatment. It is also used in oil and gas exploration.
Nuclear well logging is used to predict the commercial viability of new or existing wells. It also
2 http://www.brainyquote.com/quotes/auth/j_robert_oppenheimer.html, last visited on September
11, 2014 at 23:22.
3 http://nuclearweaponarchive.org/Nwfaq/Nfaq6.html, last visited on September 11, 2014 at
23:34.
4 Ibid.
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has a hand in agriculture to induce mutations to produce new or improved species. Controlled
use of nuclear energy has more positives than negative. It is a tool which can be used either as a
constructive force or as a destructive force.

ADVISORY OPINION

1996
COUR INTERNATIOALE DE JUSTICE
[(1997) 35 I.L.M. 809 and 1343]

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Background
In the era of nuclear and thermonuclear weapon any use of armed force by one state against
another inevitably constitutes a danger of being a flashpoint for a nuclear catastrophe. It is
therefore of considerable importance that is should be clearly established what, if any, are the
occasions on which the threat and use of force by state is lawful, and it also follows that it is
desirable that these occasion be few rather than many. The law on the use of force is one of the
most controversial areas of international law and where law seems ineffective.
To get a clear idea about the stand regarding the legality of use of nuclear weapon, the general
assembly sought out the advice of International Court of Justice (herein referred as ICJ) under
Article 92 of UN charter. The question upon which the advisory opinion of the Court has been
requested is set forth in resolution 49/75 K adopted by the General Assembly of the United
Nations (hereinafter called the "General Assembly") on 15 December 1994. By a letter dated 19
December 1994, received in the Registry by facsimile on 20 December 1994 and filed in the
original on 6 January 1995, the Secretary-General of the United Nations officially communicated
to the Registrar the decision taken by the General Assembly to submit the question to the Court
for an advisory opinion. General Assembly requested an opinion on the following question: Is
the threat or use of nuclear weapon in any circumstances permitted under International Law?

Jurisdiction
Before giving an advisory opinion regarding the subject matter, the court has to first decide
whether it has the required jurisdiction to give a reply to the general assembly regarding the
advisory opinion. The court drew its competence from Article 65 (1), of its statute. Under this
article the court may give an advisory opinion on any legal question at the request of whatever
body may be authorized by or in accordance with the Charter of the United Nations to make such
a request. For the Court to be competent to give an advisory opinion, it is thus necessary at the
outset for the body requesting the opinion to be "authorized by or in accordance with the Charter
of the United Nations to make such a request". The Charter provides in Article 96, paragraph 1,
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that: "The General Assembly or the Security Council may request the International Court of
Justice to give an advisory opinion on any legal question."
So from the above contention, it can be concluded that the ICJ has the authority to deliver an
opinion on the question posed by the General Assembly, and that there exist no "compelling
reasons" which would lead the Court to exercise its discretion not to do so.

The Applicable Law

In seeking to answer the question put to it by the General Assembly, the Court must decide, after
consideration which international law norms are relevant and applicable to the present scenario.
The court considers the question whether a particular loss of life, through the use of a certain
weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the
International Covenant on Civil and Political Rights, as argued by some of the proponents of the
illegality of the use of nuclear weapons. It can only be decided by reference to the law applicable
in armed conflict and not deduced from the terms of the Covenant itself. The Court observes that
the protection of the International Covenant on Civil and Political Rights does not cease in times
of war, except by operation of Article 4 of the Covenant whereby certain provisions may be
derogated from in a time of national emergency.
It was further argued that any use of nuclear weapons would be unlawful by reference to existing
norms relating to the safeguarding and protection of the environment, in view of their essential
importance. These instruments and other provisions relating to the protection and safeguarding of
the environment were said to apply at all times, in war as well as in peace, and it was contended
that they would be violated by the use of nuclear weapons whose consequences would be
widespread and would have transboundary effects.
In the light of the foregoing the Court concludes that the most directly relevant applicable law
governing the question of which it was seised, is relating to the use of force enshrined in the
United Nations Charter and the law applicable in armed conflict which regulates the conduct of
hostilities, together with any specific treaties on nuclear weapons that the Court might determine
to be relevant.

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Provisions of the Charter relating to the threat or use of force

The Court then addresses the question of the legality or illegality of recourse to nuclear weapons
in the light of the provisions of the Charter relating to the threat or use of force.
In Article 2, paragraph 4, of the Charter the use of force against the territorial integrity or
political independence of another State or in any other manner inconsistent with the purposes of
the United Nations is prohibited.
This prohibition of the use of force is to be considered in the light of other relevant provisions of
the Charter. In Article 51, the Charter recognizes the inherent right of individual or collective
self-defence if an armed attack occurs. A further lawful use of force is envisaged in Article 42,
whereby the Security Council may take military enforcement measures in conformity with
Chapter VII of the Charter.
These provisions do not refer to specific weapons. They apply to any use of force, regardless of
the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any
specific weapon, including nuclear weapons. The entitlement to resort to self-defence under
Article 51 is subject to the conditions of necessity and proportionality. As the Court stated "there
is a specific rule whereby self-defence would warrant only measures which are proportional to
the armed attack and necessary to respond to it, a rule well established in customary international
law".5
The notions of "threat" and "use" of force under Article 2, paragraph 4, of the Charter stand
together in the sense that if the use of force itself in a given case is illegal - for whatever reason the threat to use such force will likewise be illegal. In short, if it is to be lawful, the declared
readiness of a State to use force must be a use of force that is in conformity with the Charter.

Rules on the lawfulness or unlawfulness of nuclear weapons

It was noted by the Court by way of introduction that international customary and treaty law
does not contain any specific prescription authorizing the threat or use of nuclear weapons or any
5 Nicaragua v. U.S.A, I.C.J Reports 1986, p. 94.
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other weapon in general or in certain circumstances, in particular those of the exercise of

legitimate self-defence. Nor, however, is there any principle or rule of international law which
would make the legality of the threat or use of nuclear weapons or of any other weapons
dependent on a specific authorization. State practice shows that the illegality of the use of certain
weapons as such does not result from an absence of authorization but, on the contrary, is
formulated in terms of prohibition.
It was not observed by the Court that the use of nuclear weapons can be regarded as specifically
prohibited on the basis of certain provisions of the Second Hague Declaration of 1899, the
Regulations annexed to The Hague Convention IV of 1907 or the 1925 Geneva Protocol. The
pattern until now has been for weapons of mass destruction to be declared illegal by specific
instruments. But the Court does not find any specific prohibition of recourse to nuclear weapons
in treaties expressly prohibiting the use of certain weapons of mass destruction; and observes
that, although, in the last two decades, a great many negotiations have been conducted regarding
nuclear weapons, they have not resulted in a treaty of general prohibition of the same kind as for
bacteriological and chemical weapons.
Now we should examine if there is a customary international law to determine whether a
prohibition of the threat or use of nuclear weapons as such flows from that source of law. As the
Court has stated, the substance of that law must be "looked for primarily in the actual practice
and opinio juris of States"6
States which hold the view that the use of nuclear weapons is illegal have endeavored to
demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent
practice of non-utilization of nuclear weapons by States since 1945 and they would see in that
practice the expression of an opinio juris on the part of those who possess such weapons.
According to certain States, the important series of General Assembly resolutions, beginning
with resolution 1653 (XVI) of 24 November 1961, that deal with nuclear weapons and that
affirm, with consistent regularity, the illegality of nuclear weapons, signify the existence of a rule
of international customary law which prohibits recourse to those weapons. According to other
States, however, the resolutions in question have no binding character on their own account and
6 Continental Shelf, I.C.J Reports 1985, p. 29.
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are not declaratory of any customary rule of prohibition of nuclear weapons; some of these States
have also pointed out that this series of resolutions not only did not meet with the approval of all
of the nuclear-weapon States but of many other States as well. It was also noted that General
Assembly resolutions, even if they are not binding, may sometimes have normative value. To
establish whether this is true of a given General Assembly resolution, it is necessary to look at its
content and the conditions of its adoption; it is also necessary to see whether an opinio juris
exists as to its normative character.
That application by the General Assembly of general rules of customary law to the particular
case of nuclear weapons indicates that, there was no specific rule of customary law which
prohibited the use of nuclear weapons; if such a rule had existed, the General Assembly could
simply have referred to it and would not have needed to undertake such an exercise of legal
qualification.

International Humanitarian Law

Not having found a conventional rule of general scope, nor a customary rule specifically
proscribing the threat or use of nuclear weapons, it will now deal with the question whether
recourse to nuclear weapons must be considered as illegal in the light of the principles and rules
of international humanitarian law applicable in armed conflict and of the law of neutrality.
After sketching the historical development of the body of rules which originally were called
"laws and customs of war and later came to be termed "international humanitarian law", the
Court observes that the cardinal principles contained in the texts constituting the fabric of
humanitarian law are the following. The first is aimed at the protection of the civilian population
and civilian objects and establishes the distinction between combatants and non-combatants;
States must never make civilians the object of attack and must consequently never use weapons
that are incapable of distinguishing between civilian and military targets. According to the
second principle, it is prohibited to cause unnecessary suffering to combatants: it is accordingly
prohibited to use weapons causing them such harm or uselessly aggravating their suffering. In
application of that second principle, States do not have unlimited freedom of choice of means in
the weapons they use.
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"In cases not covered by this Protocol or by other international agreements, civilians and
combatants remain under the protection and authority of the principles of international law
derived from established custom, from the principles of humanity and from the dictates of public
conscience."7
Turning to the applicability of the principles and rules of humanitarian law to a possible threat or
use of nuclear weapons, it was noted that nuclear weapons were invented after most of the
principles and rules of humanitarian law applicable in armed conflict had already come into
existence and there is a qualitative as well as quantitative difference between nuclear weapons
and all conventional arms. However, it cannot be concluded from this that the established
principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear
weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character
of the legal principles in question which permeates the entire law of armed conflict and applies to
all forms of warfare and to all kinds of weapons, those of the past, those of the present and those
of the future. In this respect it seems significant that the thesis that the rules of humanitarian law
do not apply to the new weaponry, because of the newness of the latter, has not been advocated
in the present proceedings.
Finally, the Court points to the Martens Clause, whose continuing existence and applicability is
not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to
nuclear weapons.

Obligation to negotiate nuclear disarmament

In the long run, international laws are bound to suffer from the continuing difference of views
with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently
important to put an end to this state of affairs: the long-promised complete nuclear disarmament
appears to be the most appropriate means of achieving that result.
In these circumstances, the Court appreciates the full importance of the recognition by Article VI
of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good
7 Article 1 (2), Additional Protocol I (1997).
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faith a nuclear disarmament. The legal import of that obligation goes beyond that of a mere
obligation of conduct; the obligation involved here is an obligation to achieve a precise result of
nuclear disarmament in all its aspects by adopting a particular course of conduct. Indeed, any
realistic search for general and complete disarmament, especially nuclear disarmament,
necessitates the co-operation of all States.

JUDGEMENT
The ICJ gave advisory opinion to the questions asked by the General Assembly in the following
manner:
1. It was unanimously decided that, there is in neither customary nor conventional
international law which mentions any specific authorization of the threat or use of nuclear
weapons.
2. It was also decided that the threat or use of force by means of nuclear weapons that is
contrary to Article 2, paragraph 4, of the United Nations Charter and which fails to meet
all the requirements of Article 51, is unlawful.
3. The threat or use of nuclear weapons should also be compatible with the requirements of
the international law applicable in armed conflict particularly those of the principles and
rules of international humanitarian law, as well as with specific obligations under treaties
and other undertakings which expressly deal with nuclear weapons.
4. There exists an obligation to pursue in good faith and bring to a conclusion negotiations
leading to nuclear disarmament in all its aspects under strict and effective international
control.

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ANALYSIS
The above opinion given by the ICJ talks about the legality of the use of nuclear weapon. It
takes into consideration the nature of nuclear weapon. I agree that there is no legal obligation of
the states under customary international law on to the prohibition of use of nuclear weapon. But
is should be prohibited on a humanitarian ground.
No one is eager to utilize nuclear warheads as the first line of defense nor offence. Every state
understands the consequence of doing so. One use of nuclear weapon as an offence could throw
the world into chaos. It will bring unimaginable pain to the mankind. It will destroy it. It has the
power to change the world.
I agree to the concept of nuclear disbarment in the long run. We need to propound peace and
should leave in harmony. If any chance the weapons went into the hand of unscrupulous. It will
led to the destruction of the world. But we cannot force someone to abide by the regulations. For
that we need the wholehearted support of the states.
In the legal sense, the international law should focus on nuclear arm disbarment. So that it led to
the dismantle of all the nuclear warheads. We cannot stop someone but we can prevent them
from using it.

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BIBLIOGRAPHY
Brownlie, BASIC DOCUMENTS ON INTERNATIONAL LAW, 6th ed., Oxford University
press.
Brownlie, PRINCIPAL OF INTERNATIONAL LAW, 7th ed., 2008, Oxford University press.
Harris, CASES AND MATERIALS ON INTERNATIONAL LAW, 6th ed., Sweet and Maxwell.
Gardenia, TREATY INTERPRETATION, Oxford Central law agency.
Kapoor, INTERNATIONAL LAW AND HUMAN RIGHTS, 19th edition, Central Law Agency.
Shaw, INTERNATIONAL LAW, 6th edition, Cambridge.

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