Usage of Nuclear Weapons in Legal Way Under Humanitarian Law
The legality of the usage of the nuclear weapons is the question of the fierce debate lasting for years. In fact, the usage of nuclear weapons from the political or economical concerns poses the risks to the living of the human. In this regard, the introduction of this type of weapon is deliberately controlled for the prevention of the possible harm to the life of the human on earth. In order to determine the legality of the usage of nuclear weapons, the author suggest to dwell on its notion provided in the current humanitarian legislation. The nuclear weapon represents the weapon of mass destruction, featured with the nuclear reaction resulting to the production of the destructive force. There is a range of the weapons and instruments of mass destruction falling within the scope of the nuclear weapons and fusion bombs, hydrogen bombs and atomic elements. Given the possible effect from the usage of nuclear weapons, it is seemed reasonable to avoid the existence of these weapons between the states, while its usage should be prohibited in full. With that, the use of nuclear weapons is not banned directly by the imperative norms of international law.
There are a lot of legal instruments existing within the framework of the international law that maintain the framework for the usage of the nuclear weapons and pose the rules to the range of the states regarding the ownership of the nuclear weapons among the rest of the military instruments. The International Court of Justice presented separate advisory opinion on the Legality of the Threat of Use of Nuclear Weapons where the judiciaries agreed that the current system of the international law has no customary nor conventional norm of comprehensive or universal form of prohibition to the threat or use of the nuclear weapons. At the same time, the ICJ declared that there is no rule within the international legal system providing the authorisation to the usage or threat of nuclear weapons. From this perspective, one may state that there is no unique approach among the subjects of the international law to the nuclear weapons as instruments posing the risks to the livelihood of the human. Accordingly, the International Court of Justice reaffirmed that there is no opportunity to decide as to whether the usage of nuclear weapons may be lawful or unlawful. This approach of the judiciaries is grounded on the Article 52 of the Charter of the United Nations stipulating the right of the states to refer to the measures of self-defence in case of the extreme risks to the survival of the country.
The close analysis of the advisory opinion of the ICJ on the usage of the nuclear weapons shows that the court has developed and adopted the concept of non liquet. This legal doctrine implies that there is no applicable law that may govern the issue of the prohibition of the usage of the nuclear weapons. Based on the findings provided in Lotus case considered by the ICJ, in case there is no explicit prohibition in the system of the international law on the usage of the nuclear weapons, the countries have an opportunity to refer to the usage of these forms of the instruments for the reasons of self-defence. The nature of the nuclear weapons results in the fact that the threat or use of these instruments should be governed with the norms of the international humanitarian law as the group of norms devoted to the analysis of the armed conflicts and its consequences to the life of the human. The international humanitarian legislation sets prohibition as to the exposure to indiscriminate attacks for the purposes of the creation of evident distinction between the civilian population under the risks and members of hostility groups. Furthermore, Article 51(4) of the 1977 Additional Protocol I defines that the attack may be regarded as indiscriminate in case this action does not ground on the military aims. In this respect, the usage of the nuclear weapons will be considered as the permanent infringement of the norms of the international humanitarian legislation in case the nature of this action is contended with the indiscriminate attack aimed to undermine the life of the civilian population of the country. Furthermore, any nuclear weapon that is deprived of the technical opportunity to differentiate the civilian population from the military zones and objectives will be treated as the violation of the international law. In addition, the provisions of the Additional Protocol II apply accordingly to the non-international armed conflicts in the manner that the civilian population should be prohibited against the attacks.
Beyond the findings of the court regarding the nature of the weapons as the instruments of mass destruction, the judges of the International Court of Justice did no reach consensus as to the interpretation of the scope of the use of the nuclear weapons. This implies, that some judges have dissenting opinions regarding the legality of the use of nuclear weapons and its extent. In fact, Judge Higgins drew attention to the definition of indiscriminate weapons for the clarification of the effects caused with the use of nuclear weapons. She stated that the nuclear weapon is seemed to be prohibited from the early beginning if only it is not able to be targeted at the military zones and objectives. In addition, she underlined that the use of the nuclear weapon will be unlawful to the extent it will not be capable of the right distinction. This position was supported with some other judges and representatives of the Red Cross as the primary organization in the sphere of the international humanitarian law. The opinion of these people is supported with the fact that the nuclear weapon should be considered as blind weapons bringing the detrimental effects to the stability of the humanitarian law system. Despite the fact that the nuclear weapons have no ability to differentiate between the civilians and combatants, its devastating effect and destruction options should be taken into account.
Accordingly, the use of the nuclear weapons should be considered under Hague Regulations of 1907. Article 23(e) of this legal instruments envisages that any weapon causing the harm and suffering to the individual should be prohibited per se. Given the nature of the nuclear weapons and their effects over the individual and livelihood of flora and fauna, the questions of perspective usage with the proper distinction rises. This assumption is grounded on the fact that the use of nuclear weapon is not possible without causing of the suffering as the radioactive effects from the nuclear weapons will proliferate and target the civilian population. Accordingly, the effects of the nuclear weapons have such nature and congenital deformities that the genetic changes will appear in the structure of the organisms of future generations. Therefore, the people suffered from the spread pf the effects of the nuclear weapons will die or live with the several diseased causing pain to the individuals. Thus, the consequences of the use of the nuclear weapons suggest to think that this form of the warfare instruments should be combated for the prevention of unnecessary suffering in terms of the international humanitarian legislation.
Despite the fact that the imperative norms of the international law do not contain direct prohibition of the use of the nuclear weapons, it is possible to note the Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons adopted in 1961 in form of the resolution. This piece of legal regulation stipulates that the use of nuclear weapons is the explicit infringement of the provisions of the United Nations Charter as well as it is in non-compliance with the norms of the international humanitarian legislation due to the fact that this usage should be regarded as form of the crime against mankind and civilization. This provision may set the behaviour of the states in the armed conflict and in the sphere of the international humanitarian law. However, one should bear in mind that the resolutions of the United Nations General Assembly are referred to the “soft law” legislation so that it does not create any obligations to the countries. Due to the absence of the binding nature of this legal act, it is clear that the use of the nuclear weapons will not cause the occurrence of the significant legal consequences for the state in terms of the international law. In this regard, the conduct of the states is not controlled completely that implies the existence of the evident gaps in the international law regulation of the armed conflicts and instruments employed by the countries.
Consequently, the attention should be paid to the norms incorporated in the text of The Hague Convention of 1899, Article 23 (a) of 1899 and 1907 Hague Regulations and the Geneva Gas Protocol. Having analysed the scope of this provision, the International Court of Justice declared to the world that the nuclear weapons are not covered with the lieu of this article because of the aim of the provision to cover instruments causing poison and asphyxiate. However, it is possible to state that the nuclear weapons should be included in the text of this provision having considered the events of the current development of the human and the role of the technological innovations in the life of the individual in any activity and sphere of the life. Accordingly, for the purposes of the identification of the extent of the use of nuclear weapons in legal perspective, its application should be aligned with the principle of proportionality prevailing in the international humanitarian law. This legal norm means that any measure taken by the state during the conflict should be reasonable, necessary and suitable for the achievement of the aim of the proportionate volume. From the perspective of the international humanitarian legislation, the principles of proportionality should be linked to the instruments aimed to reach the military objective and the damage occurred with the application of this instrument. Coming back to the features and consequences of the employment of the nuclear weapons in reality, the damage caused with the nuclear weapons have quite destructive nature. In this regard, the use of the nuclear weapons may be justified only in extreme circumstances if the importance of the military objective may be proved. For the interpretation of the notion “extreme circumstances” the judges of the International Court of Justice stipulated that the country should have no other instrument available for the preservation the living of the population of the country at the zone of the military objective. Therefore, the use of the nuclear weapons will not always illegal under the rules of the international law, while its perspective application should be grounded on the principle of proportionality.
Meanwhile, it is highly important to state that the International Committee of the Red Cross is concerned with the use of the nuclear weapons in the legal manner without any obligations to the state employing it. The President of the organization states that there are no means to justify the use of the nuclear weapons in the compliance with the provisions of the international humanitarian law. In fact, the states do not honour the obligations undertaken under the Non-Proliferation Treaty of 1968 so that the risk in the increase of the amount of the nuclear-weapon states still exists as well as the exposure to the proliferation of the nuclear weapons. The provisions of the Nuclear Non-Proliferation Treaty sets legal framework for the countries to use nuclear technologies in the peaceful manner because of its role in certain spheres and industries as medicine, food processing and production of the power. In this regard, the organization of the international law has evident gaps in the surveillance of the use of the nuclear weapons as there is no exclusive list of the circumstances when the application of these instruments will be legal enough or justifiable. It is clear that the use of the nuclear weapons is possible from the position of the preventive self-defence, while the nature of the pre-emptive self-defence should be considered separately. Furthermore, the nature of the relations between the states in the current globalized world full of the technological innovations suggest that holding of nuclear weapon may be the strong advantage for the country in case of the war. However, any country should bear in mind that the use of the nuclear weapon leads to the destruction of the living zone in full, while the consequences of this activity will be considered by the international community from different perspectives in terms of the international humanitarian law beyond the absence of the direct ban on use of the nuclear weapons. At the same time, there is no affirmative answer as to whether it is possible to define the extent in the use of the nuclear weapons. Any action of the country deciding to apply the nuclear weapons should be considered on the case-by-case basis with the reference to the current norms of the international humanitarian law with the assessment of the volume of damages, principles of proportionality and inclusion of several other factors.
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