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Nuclear Weapons Resolutions and International Law Essay

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Updated: Mar 30th, 2021

Summarize the court’s argument, explaining the distinction in the sources of law mentioned

The International Court of Justice relied on different sources of law to offer its opinion on the legality of the threat or use of nuclear weapons. The sources included the Charter, customary international law, humanitarian law, international treaties, and Martens Clause (International Court of Justice, 1996). As per Article 2, paragraph 4 of the Charter, the Court observed the need to use force against any threat posed to the political independence or territorial integrity of a state.

Again, the Court concurred with Article 51 of the Charter that states have the right to self-defense in case of an armed attack. Notably, the Court observed that the identified articles in the Charter do specify the type of weapons that a state should for self-defense or military enforcement (International Court of Justice, 1996). Again, it noted that the Charter does not permit or prohibit the threat and use of nuclear weapons. In this regard, the Court opined that self-defense should be proportional to the armed attack; however, it failed to exclude the use of nuclear weapons.

As per treaties, the Court failed to find any particular prohibition of recourse to nuclear weapons (bacteriological or chemical weapons) in treaties expressly prohibiting the use of nuclear weapons. Notably, the Second Hague Declaration of 1899 provisions, the 1925 Geneva protocol, and 1907 Hague Convention IV regulations do not specifically prohibit the use of nuclear weapons. Based on the customary international law, the Court observed that the international community is widely divided on the use of nuclear weapons as opinion Juris. Although, most of the international community is geared towards disarmament the Court identified the existence of the tension between opinion Juris and a strong doctrine of deterrence.

On humanitarian law, the Court observed the need for protecting the civilian population and defining the difference between non-combatant and combatant. It argued that states must not make civilians the objects of attack. Besides, states should avoid the use of weapons that cannot distinguish between civilians and military targets (International Court of Justice, 1996). Further, the Court concurred with the humanitarian law that states should not cause unnecessary suffering among the people.

Further, the Court acknowledged the effectiveness of the Martens Clause in curbing the swift advancement of military technology about the principles of humanity and the dictates of public conscience.

The Court observed that it did not find sufficient evidence to conclude with certainty about the legality of the threat or use of nuclear weapons. Notably, it identified nuclear weapons as unique, and thus their use seems scarcely reconcilable with the requirements of laws useful in armed conflict. The Court concurred with Article 51 of the Charter that states should exercise self-defense when their survival is at stake (International Court of Justice, 1996). Further, the Court observed that the policy of deterrence on the use of nuclear weapons should be highly embraced to protect people from suffering.

What are the legal and political challenges of outlawing the threat or use of nuclear weapons?

Outlawing the threat or use of nuclear weapons poses numerous legal and political challenges. The main challenge relates to the violation of political independence or territorial integrity of a country. Mainly, some states manufacture, acquire, possess, deploy, and test nuclear weapons as a self-defense mechanism in case another state threatens to attack. In this regard, states with a feeling of being threatened or attacked by their neighbors or other countries with dissimilar interests are unlikely to support the outlawing of the use of nuclear weapons let alone relinquishing the nuclear weapons they already have in their military domain.

Another challenge of outlawing the threat and or the use of nuclear weapons relates to the customary international law. Notably, the international community is widely divided on the use of nuclear weapons as opinion Juris (International Court of Justice, 1996). The majority of resolutions of each general assembly recall the Content of Resolution 1653 (XVI) and request member states to conclude a convention that prohibits the use of nuclear weapons in all circumstances (International Court of Justice, 1996).

Such frequent calls across the globe demonstrate the desire of the international community to move towards nuclear weapons disarmament. However, the goal of outlawing the use of nuclear weapons is not easily achievable due to the tension existing between opinion Juris and the strong doctrine of deterrence.

Are international dispute resolution mechanisms of any help here?

The major cause of countries to use nuclear weapons is self-defense in case other states violate their political independence or territorial integrity. Notably, countries eliminate or reduce the risk of unlawful attacks by admitting that they possess nuclear weapons (International Court of Justice, 1996). In this regard, international dispute resolution mechanisms help curb the use of nuclear weapons in situations relating to political independence or territorial integrity disputes.

Such resolutions can be solved effectively by resolutions passed by member states of particular treaties. For instance, the declaration by member parties of treaties of Rarotonga and Tlatelolco not to use nuclear weapons in certain zones such as South Pacific and Latin America may be a strong foundation for solving the issues relating to the threat and use of nuclear weapons (International Court of Justice, 1996).

The state members of treaties should vow not to use nuclear weapons. So far, member parties of the Rarotonga and Tlatelolco treaties have vowed not to use nuclear weapons against non-nuclear states that are members of the Treaty on Non-proliferation of Nuclear Weapons (International Court of Justice, 1996). Such vows enhance the chance of using international dispute resolution mechanisms to solve nuclear weapons cases.

The major weakness of relying on treaties such as Rarotonga and Tlatelolco to solve nuclear weapons cases using international dispute resolution mechanisms is that they do not prohibit their members from using such weapons. Despite their weakness as a foundation for solving nuclear weapons disputes, such treaties demonstrate common behaviors and trends towards the prohibition of the threat and the use of nuclear weapons.

Make a realistic proposal for how international law can be used to better protect humanity from nuclear weapons

A vast majority of the international community is members of certain treaties. As such, their treaties should collaborate in enacting an international law that pursues nuclear weapons disarmament among state members. Besides, treaties should embrace the codification of humanitarian law and the accession of resultant treaties to provide the international community with a set of treaty rules that show uniformity in recognizing humanitarian principles.

Notably, international law should focus on the long-term disarmament of states from nuclear weapons as the most appropriate approach for protecting humanity from nuclear weapons. Besides, treaties such as the Treaty on the Non-Proliferation of Nuclear Weapons should compel their member states to pursue nuclear weapons disarmament in good faith. In a different vein, in situations where complete disarmament is impossible, international law should guide which circumstances a state should use nuclear weapons.

References

International Court of Justice (1996). Legality of the threat or use of nuclear weapons: An advisory opinion of 8 July 1996, 94-104. Web.

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