Are Nuclear Weapons Illegal? The Role of Public International Law and the International Court of Justice

Abstract

Conventional international law contains various limitations on nuclear weapons, such as possession, testing, deployment, use or threat of use. There are a number of general principles of customary nature that could be considered as well with reference to the legality of these weapons of mass destruction. It is argued that given the current threats in the nuclear proliferation, a comprehensive abolition of nuclear weapons through international legal instruments is crucial. This article examines the jurisprudence of the International court of justice (ICJ) on the question of the legality of nuclear weapons in the light of progressive development of international law and recent state practice. It is suggested that modern technological and political developments in the area of nuclear weapons might be supportive of another advisory opinion by the ICJ that could enhance the debate on the comprehensive legal prohibition of nuclear weapons. Possible subject-matter to be included in a request to the ICJ to render an advisory opinion might be whether nuclear-weapon States fulfil their obligation and bring to a conclusion negotiations leading to the comprehensive and effective abolition of these weapons of mass destruction. The article concludes that an appropriate framing of the request would reinforce the practical measures towards effective nuclear disarmament under the law. The ICJ could contribute to changing the whole concept of global and individual States’ security based on a comprehensive convention creating legal obligations for both states and non-states actors.