Legality Of The Use Of Nuclear Weapons
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This Blog is written by Ashutosh Agarwal from National Law University, Delhi. Edited by Prakriti Dadsena.
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INTRODUCTION
Nuclear weapons in their current capabilities carry immense destruction power. In their first use against Japan by the United States, the ill effects of a nuclear-based attack weapon were brought in front of the whole world. The debate which was then initiated revolves around the legality of possessing such powerful destructive weapons and the lack of robust legal infrastructure to deal with its regulation. No international convention has direct regulation over nuclear weapons till now, which has raised concerns around the world about their use and highly devastative after effects.
HISTORY
For the very first time and the only time till now, a nuclear bomb was used on August 6, 1945, when a B-29 bomber aircraft of the United States of America dropped a uranium bomb over the Japanese cities of Hiroshima and Nagasaki. The real death toll could never be known, but estimates show that about 80,000 deaths occurred in Hiroshima while Nagasaki’s toll amounted to more than 45,000. These brutal incidents which resulted in the loss of innocent human lives resulted in Japan surrendering, which put an official end to World War II.
STATUTORY PROVISIONS
Geneva Convention:
As a reaction to the Hiroshima and Nagasaki Bombings, other powerful nations like the erstwhile Soviet Union and China began developing nuclear weapons as part of their military modernization plans and keeping up with the United States, which was then their enemy. After World War II was finally over, the Geneva Convention was set up, which would act as a set of laws governing international armed conflicts. The Geneva Convention is made up of four treaties and three additional protocols. Along with governing international armed conflicts, the Geneva Conventions also set the standards for dealing with humane treatment in times of armed conflicts or wars. Article 35 of the Additional Protocol I, which was added in the year 1977, prohibits employment of weapons, which can cause “unnecessary suffering along with “severe damage” to the natural environment.
Along with the above, it also makes up the International Humanitarian Law (IHL). The two essential principles of international humanitarian law, which can help in assessing the legality of a nuclear attack like the one which happened in the year 1945, are the principles of proportionality and distinction. Firstly, the principle of distinction aims at protecting the rights and interests of individuals who are not involved with the armed conflict. It does so by protecting the lives of civilians by preventing armed forces involved in the conflict from attacking any military target. On the other hand, the principle of proportionality restricts the parties involved in the armed conflict from using over excessive force than required in order to defeat the enemy.
It can be clearly said that by the above set out provisions in the Additional Protocol I of the Geneva Conventions, a nuclear attack is highly against it. It goes against both the principles of proportionality along with distinction. As is evident from the single case of bombings on Japan by the United States of America, it caused direct hard to innocent individuals and their loved ones as they were not a part of the armed conflict and were living a healthy life in their homes and secondly, the magnitude of the impact of dropping the bomb over a large landmass of no military significance to the enemy of the United States completely goes against the principle of proportionality. However, a state can justify its use of nuclear weapons, as discussed below, using the ICJ opinion.
International Court of Justice:
The World Health Organization (WHO) requested an advisory opinion in the year 1993. However, the same was rejected by the International Court of Justice (ICJ) as it considered WHO’s request as ultra vires. On December 15, 1994, the United Nations General Assembly through its resolution A/RES/49/75K, requesting ICJ to render an advisory opinion on the question:
“Is the threat or use of nuclear weapons in any circumstances permitted under international law?”
The resolution asked the court to render its opinion urgently. Following which, written statements towards the issue were filed by 28 member states, and 22 states presented their oral arguments.
On July 8, 1996, the International Court of Justice rendered its Advisory Opinion as requested by the UN General Assembly in the case of “Legality of the Threat or Use of Nuclear Weapons” [1996] ICJ 2. There were fifteen judges appointed to the ICJ who took part in rendering the advisory opinion. The court, in its proceedings, noted that the principle of proportionality enshrined in the international humanitarian law might not be excusable concerning the use of nuclear weapons in self-defense of a state in every circumstance. The court, in its arguments, utilized the United Nations Charter along with international law to examine the question before it. By studying the convention law, it concluded that there is no sign of complete prohibition of the use of nuclear weapons flowing from such sources, nor any specific treaty exists, which can provide such support to the question of regulating these weapons of mass destruction.
The Court also makes a note of the point that a state has no right to make an unarmed civilian of its enemy state a target of any armed attack, along with using weapons that lack the capability to distinguish between armed forces and civilians. It also added that the States do not have unlimited freedom to choose the kind of weapons they use in an armed conflict. However, when the point of a state reacting with an armed attack using a nuclear weapon while exercising its right to self-defense, the court was unable to reach a particular conclusion about the legality and the right of the state to adopt such a method of exercising its right of self-defense.
The conclusions which were drawn towards the end were confusing and yet controversial. The Court held that in the current state of the prevailing international law and other legal frameworks, it is unable to reach a definite conclusion whether the threat or use of a nuclear-based weapon is against the principles of international law or not, or whether it can be termed as an extreme step by a state when exercising its right to self-defense or in “extreme circumstances”. Therefore, it remains unclear whether the use of nuclear weapons is legal or not.
ANALYSIS
Nuclear weapons are highly advanced products of chemical science which carry the ability to act as agents of mass destruction, whether it be an armed conflict between two nations or even a possibility of being used by unauthorised armed groups against a particular state. Such technology can have a deadly effect on the world if it falls into the wrong hands. The world realised its ill-effects, and hence ICJ was given a chance to clarify its stance on the sensitive issue. However, the current international law is made such a way where no substantive method exists to initiate an action against manufacturing or even the use of a nuclear-based weapon system. With the recent introduction of the Treaty on the Prohibition of Nuclear Weapons, it marks the first step towards a legally binding international agreement between different countries to put a complete prohibition on nuclear weapons, including their development, testing, and threat to use them. Adopted by the United Nations General Assembly in 2016, there have been 38 signatories and ratifications till now. The treaty, when it reaches 50 ratifications, will come into effect, thus marking the first steps towards nuclear disarmament. A major setback for such a step could occur from the current nuclear powers like the United States, China, Russia, and others. None of the current nuclear states have become a signatory to the treaty and strong opposition from many of them have been lodged, including many NATO non-nuclear states like Japan and Australia, citing the deterrence policy of the United States of America where it keeps massive stockpiles of nuclear weapons and promises to use it only in cases of mutual destruction only. Even though the number of nuclear warheads around the world has decreased from approximately 70,000 to 14,000 to the current time, they still pose a significant danger to human life and societal peace at large.
CONCLUSION
Till now, civil society has not been able to put out a blanket ban on nuclear-based weapons. The day when the nuclear bomb was dropped on Hiroshima and Nagasaki, it was successful in taking away innocent lives along with bringing about a change in the new modern world of armed conflicts. With the introduction of the recent treaty promoting disarmament, it would be a good time for the world to start realising its ill-effects and take into consideration the priceless value of human life into account while making decisions which involve such weapons of mass destruction and the ability they carry which can impact the world for many more years to come. ICJ and many other world organizations have spoken out loud against the use of such weapons, and looking back in history, Hiroshima and Nagasaki should act as a deterrent from indulging in activities promoting nuclear warfare. It takes only one of the thousands of nuclear devices to impact a significant part of society, and the single major lesson to be learned from the events of 1945 is that such an act should remain intact in history only irrespective of the question of the legality of doing such an act once again against anyone.
REFERENCE
[1] https://www.britannica.com/technology/nuclear-weapon