OVERVIEW OF LEGALITY OF THE USE OF NUCLEAR WEAPONS IN INTERNATIONAL LAW BY OLORUNTUYI OLUWASEUN EMMANUEL
INTRODUCTION
I ask you to stop and think for a moment what it would mean to have nuclear weapons in so many hands, in the hands of countries large and small, stable and unstable, responsible and irresponsible,scattered throughout the world. ~ President John F. Kennedy
This rhetoric assertion made by former
president of the United States of America depict the morality and legality of
nuclear weapons if placed at everyone's disposal, nuclear weapons has been the
most destructive weapons which has cause irreparable damage to our planet. Nuclear
weapons are weapons of mass destruction made with chemicals which is capable of
destroying a whole city, killing millions of inhabitants, jeopardizing the
natural environment and causing catastrophic damage to future generations.
After the first world war which took
place between 1914-1918 some nations took it upon themselves in making of
nuclear weapons in order to get themselves ready for war if it ever suffice,
this was a very big challenge The League of Nations never took into
consideration and that led to the second world war (1939-1945) and which also
lead to the fall of The League of Nations, Nuclear weapons were used during the
second world war which led to mass destruction of lives and properties, they
were used in bombing of Hiroshima and
Nagasaki in 1945 and that led to total Wipeout of the entire area, apart from warfare
nuclear weapons are been tested in some areas and this has cause panic in the heart
of the inhabitants, there have been over 2,000 nuclear tests conducted to date.
In 1945, after world war ll(1939-1945) which led to the birth of The United Nations, as it's mantra in maintaining world Peace and peaceful co-existence on the planet UN sought to eliminate Nuclear weapons and other weapons of mass destruction which is capable of causing irreparable damage and in it's bid to prevent another occurrence of blood war made some resolutions, the first resolution adopted by UN General Assembly in 1946 established a Commission to deal with problems related to the discovery of atomic energy among others. The Commission was to make proposals for, inter alia, the control of atomic energy to the extent necessary to ensure its use only for peaceful purposes. The resolution also decided that the Commission should make proposals for “the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction.”
A number of multilateral treaties have been
established in the aim of discouraging and preventing the use of nuclear
weapons proliferation and testing because of the cause of it's damage and
promoting disarment in nuclear weapons, these treaties are listed below:
a. Treaty on the Non-proliferation of Nuclear weapons(NPT)
b. Partial
Test Ban Treaty (treaty banning nuclear weapons test in the
atmosphere,outerspace and under water)
c. Comprehensive Nuclear Test Ban Treaty(CTBT)
d. Treaty on the prohibition of Nuclear weapons (TPNW)
TREATIES, NON-PROLIFERATION AND
DISARMAMENT
A number of bilateral and plurilateral
treaties and arrangements seek to reduce or eliminate certain categories of
nuclear weapons, to prevent the proliferation of such weapons and their
delivery vehicles. These range from
several treaties between the United States of America and Russian Federation as
well as various other initiatives, to the Nuclear Suppliers Group, the Missile
Technology Control Regime, the Hague Code of Conduct against Ballistic Missile
Proliferation, and the Wassenaar Arrangement, this measures are being taken in
order to reduce or eliminate nuclear weapons from the face of the Earth because
of its capability of mass destruction which the world is try to avert.
United Nations Office of Disarmament Affairs
(UNODA) was established in 1998 as the department of disarmament,The Office for
Disarmament Affairs supports multilateral efforts aimed at achieving the
ultimate goal of general and complete disarmament under strict and effective
international control. The mandate for the programme is derived from the
priorities established in relevant General Assembly resolutions and decisions
in the field of disarmament, including the Final Document of the Tenth Special
Session of the General Assembly, the first special session devoted to
disarmament. Weapons of mass destruction, in particular nuclear weapons,
continue to be of primary concern owing to their destructive power and the
threat that they pose to humanity. The Office also works to address the
humanitarian impact of major conventional weapons and emerging weapon
technologies, such as autonomous weapons, as these issues have received increased
attention from the international community.
UNODA foster disarmament measures
through dialogue, transparency and confident-building military matters, and
encourage regional disarmament measures; these include United Nations Register of
Conventional Arms and Regional Forums, it also provides objective, impartial
and up-to-date information on multilateral disarmament issues and activities to
Member States, States parties to multilateral agreements, intergovernmental
organizations and institutions, departments and agencies of the United Nations
system, research and educational institutions, civil society, especially
non-governmental organizations, the media and the general public.
CASE LAWS, ADVISORY OPINIONS
In rescent years dispute has eropted
among nations on the use and testing of nuclear weapons in their territory and
the Judicial arm of the United Nations (Cour Internationale de Justice) has
been able to accommodate disputes, a nuclear weapon test case between New
Zealand and France in 1974 Nuclear Tests (New Zealand v. France), Judgment, I.C.J.
Reports 1974, p. 457, which was brought before Court Internationale de Justice
in peace palace Hague, Netherlands for determination;
On 9th of may 1973 New Zealand instituted
a proceeding against France in respect of a dispute concerning the legality of
atmospheric nuclear test carried out by France in the South Pacific Region,In
order to found the jurisdiction of the Court, the Application relied on Article
36, paragraph 1, and Article 37 of the Statute of the Court and Article 17 of
the General Act for the Pacific
Settlernent of International Disputes done at Geneva on 26 Septernber 1928,
and, in the alternative, on Article 36, paragraphs 2 and 5, of the Statute of
the Court.
By a letter dated 16th May 1973 from the
Ambassador of France to the Netherlands, handed by hirn to the Registrar the
same day, the French Government stated that, for reasons set out in the letter
and an Annex thereto, it considered that the Court was manifestly not competent
in the case; that it could not accept the Court's jurisdiction; and that
accordingly the French Governrnent did not intend to appoint an agent, and
requested the Court to remove the case from its list. a number of authoritative statements have been
made on behalf of the French Government concerning its intentions as to future nuclear
testing in the South Pacific region, The significance of these statements, and
their effect for the purposes of the present proceedings. The Application
founds the jurisdiction of the Court on the following basis : "(a)
Articles 36 (1) and 37 of the Statute of the Court and Article 17 of the
General Act for the Pacific Settlement of International Disputes, done at
Geneva on 26 September 1928; and, in the alternative, (6) Article 36 (2) and (5)
of the Statute of the Court."
The Court recall that the submission
made in the Application is that the Court should adjudge and declare "that
the conduct by the French Government of nuclear tests in the South
Pacific region that give rise to
radio-active fall-out constitutes a violation of New Zealand's rights under
international law"-the alleged rights so violated being enumerated in the
Application-and "that these rights will be violated by any further such
tests".
In 1974 Australia also instituted a Nuclear Test cases against France which was also brought before the Court Internationale de Justice for determination.. and also in the war against use of nuclear weapons a case concerning military and paramilitary activities against Nicaragua (Nicaragua vs United States of America) 1984 which was heard by the Court which is a case of United States using military forces against Nicaragua.
The Legality of the use of Nuclear
weapon was brought to air when the security council of the United Nations ask
for an advisory opinion of the Cour Internationale de Justice on the legal
space of the use of nuclear weapons in International law, The Cour
Internationale de Justice on July 8, 1996 replied the Security Counsil of the
United Nations on the space of the use of nuclear weapons in international
law,The Court has already had occasion to indicate that questions "framed
in terms of law and rais[ing] problems of international law ... are by their
verynature susceptible of a reply based on law ... [and] appear ... to be
questions of a legal character"."The Court's Opinion is given not to
the States, but to the organ which is entitled to request it; the reply of the
Court, itself an 'organ of the United Nations', represents its participationin
the activities of the Organization, and, in principle, should not be
refused." Some of the proponents of the illegality of
the use of nuclear weapons have argued that such use would violate the right to
life as guaranteed in Article 6 of the International Covenant on Civil and Political
Rights, as well as in certain regional instruments for the protection of human
rights. Article 6, paragraph 1, of the International Covenant provides as follows:
"Every human being has the inherent right to life. This right shall be
protected by law. No one shall be arbitrarily deprived of his life." In
reply, others contended that the International Covenant on Civil and Political
Rights made no mention of war or weapons, and it had never been envisaged that
the legality of nuclear weapons was regulated by that instrument. It was
suggested that the Covenant was directed to the protection of human rights in
peace time, but that questions relating to unlawful loss of life in hostilities
were governed by the law applicable in armed conflict. The Court observes that
the protection of the International Covenant of 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.
Respect forthe right to life is not, however, such a provision. In principle,
the right not arbitrarily to be deprived of one's life applies also in
hostilities. The test of what is an arbitrary deprivation of life, however,
then falls to be determined by the applicable lex specialis, namely, the law
applicable in armed conflict which is designed to regulate theconduct of
hostilities. Thus whether a particular loss of life, through the use of a
certainweapon in warfare, is to be considered an arbitrary deprivation of life
contrary to Article 6of the Covenant, can only be decided by reference to the
law applicable in armed conflictand not deduced from the terms of the Covenant
itself. Some States also contended that the prohibition against genocide,
contained in theConvention of 9 December 1948 on the Prevention and Punishment
of the Crime ofGenocide, is a relevant rule of customary international law
which the Court must apply. TheCourt recalls that in Article II of the
Convention genocide is defined as Weapons Case "any of the following acts
committed with intent to destroy, in whole or in part, a national, ethnical,
racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental
harm to members of the group;
(c) Deliberately inflicting on the
group conditions of life calculated to bring about itsphysical destruction in
whole or in part;
(d) Imposing measures intended to
prevent births within the group;
(e) Forcibly transferring children of
the group to another group."
CONCLUSION
From this critical analysis as regards
the use of nuclear weapons in international law sphere, it is pertinent to say
that nuclear weapons as a weapon of mass destruction which is capable of causing
a devastating destruction which will claim lives and properties is unlawful and
it is not encouraged. It is against the ethics of international to use nuclear
weapons during conflict which can be settled amicably that led to the emanation
of treaties to put Nations with nuclear arms under the of law in order to
foster world Peace.
OLORUNTUYI OLUWASEUN EMMANUEL
REFERENCES
Introduction to international law by professor Jorge vinuales
Nuclear Tests (New Zealand v. France),
Judgment, I.C.J. Reports 1974, p. 457
Legality
of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226
Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United
States of America), Merits, Judgment, I.C.J. Reports 1986, pp. 92-112, paras. 172-214.
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