The Non-Proliferation Treaty Review Conference:
Breakthrough or Bust in '05?
A BASIC/ORG project, Briefing 9, March 2005
 
Back to the main page on the 2005
NPT Review Conference.
The Illegality of Nuclear Weapons
Background
For nuclear weapons there is no treaty of general prohibition as
there is for biological and chemical weapons. Save where nuclear
weapons are prohibited by particular treaties, like those creating
Nuclear Weapons Free Zones (http://www.basicint.org/nuclear/NPT/2005rc/brief02.htm),
the legality of their use and threatened use must be determined
with reference to the UN Charter and the law of armed conflict.
Article 2(4) of the UN Charter provides:
All Members shall refrain in their international relations from
the threat or use of force against the territorial integrity or
political independence of any State, or in any other manner inconsistent
with the Purposes of the United Nations.
(http://www.un.org/aboutun/charter/index.html)
In the Nuclear Weapons Case (see below), the International
Court of Justice (ICJ) held that ‘threat’ and ‘use’ stand together
so that if the use of force in a given case is illegal for whatever
reason, the threat to use such force is likewise illegal.
One exception is the right of self-defence under Article 51 of
the UN Charter, the exercise of which is subject to the conditions
of necessity and proportionality. However, a use of force that is
necessary and proportionate under the law of self-defence must also
comply with the law of armed conflict, especially international
humanitarian law. If an envisaged use of weapons would violate humanitarian
law, a threat to engage in such use would also violate that law.
The law of armed conflict
The cardinal principles of international humanitarian law are:
- The principle of discrimination: States must never make
civilians the object of attack and consequently must never use
weapons that are incapable of distinguishing between civilian
objects and military objectives; and
- The prohibition against causing unnecessary suffering:
it is prohibited to cause harm to combatants greater than that
unavoidable to achieve legitimate military objectives.
Also relevant are the principle of neutrality, the prohibition
against environmental damage and the Martens Clause. As to the latter,
see Article 1(2) of Additional Protocol I 1977:
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.
The fundamental rules of humanitarian law constitute “intransgressible
principles of international customary law” (Nuclear Weapons Case,
para 79).
Although there is no doubt that international humanitarian law
applies to nuclear weapons, the UK Government (among others) consider
that:
In some cases, such as the use of a low yield nuclear weapon
against warships on the High Seas or troops in sparsely populated
areas, it is possible to envisage a nuclear attack which caused
comparatively few civilian casualties (Nuclear Weapons Case, para
91)
However, this is highly theoretical and even fanciful. Legality
must be determined with due regard for a weapon’s nature and the
foreseeable effects of its use given the ‘actuality’ of the State’s
defence policy and the risk of escalation to full-scale nuclear
war. Because of the blast, heat and especially radiation effects,
the use of nuclear weapons in any realistic military scenario would
violate international humanitarian law.
Even the use of relatively low yield, earth-penetrating nuclear
weapons against underground targets would ventilate highly irradiated
material, contaminating the atmosphere and causing substantial civilian
casualties.
The Nuclear Weapons Case
(http://www.icj-cij.org/icjwww/idecisions.htm)
In response to the General Assembly’s question: “Is the threat
or use of nuclear weapons in any circumstance permitted under international
law?” the ICJ delivered its advisory opinion on 8 July 1996. It
unanimously held that a threat or use of force by means of nuclear
weapons that is contrary to Article 2(4) of the UN Charter and fails
to meet all the requirements of Article 51 is unlawful; and that
a threat or use of nuclear weapons must be compatible with the requirements
of the law applicable in armed conflict, particularly international
humanitarian law. By a majority of one (the President’s casting
vote made it 8-7), the ICJ then held:
It follows from the above-mentioned requirements that the
threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and
in particular the principles and rules of international humanitarian
law.
However, in view of the current state of international law,
and of the elements of fact at its disposal, the Court cannot
conclude definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of self-defence,
in which the very survival of a State would be at stake. (Nuclear
Weapons Case, para 105, point 2E)
Three judges dissented from that part of the ruling because they
considered that the threat or use of nuclear weapons is unlawful
in all circumstances. Thus, the Court was more united than the need
for a casting vote by its President suggested.
Responses to the advisory opinion
The Nuclear Weapon States generally downplayed the ruling’s significance,
asserting that it was not legally binding upon them. The UK Government
responded as follows:
The ICJ opinion does not require a change in the United Kingdom’s
entirely defensive deterrence policy. We would only ever consider
the use of nuclear weapons in the extreme circumstance of self-defence
which includes the defence of our NATO allies (Hansard, HL
Debates, 26 January 1998, Cols 7-8).
However, this wrongly assumes that there is an exception to the
general prohibition of threat or use. With reference to point 2E
of the ruling, the Court’s President stated:
I cannot sufficiently emphasise that the Court’s inability
to go beyond this statement of the situation can in no way be
interpreted to mean that it is leaving the door ajar to recognition
of the legality of the threat or use of nuclear weapons.
Indeed, the text and tenor of the ICJ’s opinion reveal a strong
inclination towards illegality in all circumstances. In view of
“the unique characteristics of nuclear weapons, and in particular
their destructive capacity, their capacity to cause untold human
suffering and their ability to cause damage to generations to come”,
the Court stated that the use of such weapons “seems scarcely reconcilable”
with respect for the law of armed conflict, “at the heart of which
is the overriding consideration of humanity” (Nuclear Weapons
Case, paras 36 and 95).
In contrast, before the Defence Committee on 20 March 2002 (http://www.parliament.the-stationery-office.co.uk/pa/cm200102/cmselect/cmdfence/644/2032008.htm)
and in a subsequent television interview, the UK’s Secretary of
State for Defence indicated a willingness to use nuclear weapons
in response to a nonnuclear attack involving chemical or biological
weapons against troops in the field, and even pre-emptively. Even
if the ICJ had ruled that nuclear weapons may be used “in an extreme
circumstance of self-defence, in which the very survival of a State
would be at stake”, that scenario would not qualify.
Nuclear weapons are considerably more destructive than chemical
or biological weapons, and the willingness to use them pre-emptively
lowers the use threshold to new and dangerous levels.
(http://www.basicint.org/nuclear/NPT/2005rc/brief03.pdf)
Recommendations
1. The NuclearWeapon States must:
- renounce the first use of nuclear weapons and give binding security
assurances to all Non-Nuclear Weapon States; and
- acknowledge that the ICJ did not recognise any exception to
the general prohibition of the use or threatened use of nuclear
weapons and revise their defence policies accordingly.
2. All States Parties should, in good faith, pursue and conclude
a treaty which comprehensively, universally and explicitly prohibits
recourse to nuclear weapons.
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