The Legality of the Use of Low-Yield Earth-Penetrating Nuclear Weapons under International Law

Abstract

In its 1996 advisory opinion regarding the legality of the use of nuclear weapons and the threat thereof, the International Court of Justice (I.C.J.) stated that, although the use and threat of use of nuclear weapons is incompatible with International Humanitarian Law (IHL), the Court was unable to render an opinion on small nuclear weapons, since the Court had no information under which circumstances the use of such low-yield nuclear weapons was envisaged nor whether the use of small nuclear weapons would bear the risk of an escalation of the conflict in question to an all-out nuclear war. With recent developments, both of a technological as well as of a political nature, this situation has changed. The author examines the legality under International Law of the use of such weapons, specifically with regard to International Humanitarian Law, the effect of the environment and the special obligations the United States has agreed to unter the framework of the Nuclear Non-Proliferation Treaty (NPT).