The legality of the use of nuclear weapons in international law

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After the Second World War, the views of some military leaders on the use of nuclear weapons changed dramatically. Previously, the use of nuclear weapons was considered an incredible fact. In the minds of many, this view has been replaced by the notion that limited nuclear war is possible and winnable. Such a mentality raises a fundamental question: does any use of nuclear weapons have priority under international law.
 Although there is no international convention that expressly prohibits the use of nuclear weapons, the consequences of the use of any weapon are governed by numerous conventions and customary international law. A decision that nuclear weapons would violate one or more principles of humanity enshrined in positive or customary international law cannot be decisive. When a state uses a weapon that emits any gaseous substance or violates the territory of a neutral state, that state is itself violating international law. However, some violations of international law, including the prohibition of causing unnecessary suffering and indiscriminate harm between combatants and non-combatants, may be justified by military necessity if their use is proportionate to military necessity, retaliation or self-defense.
 This article examines the various uses of nuclear weapons and assesses their legality under positive and customary international law. It concluded that any nuclear weapons would be subject to a ban on gas and other related weapons. Furthermore, we conclude that in all but the most limited circumstances, the use of nuclear weapons would cause unnecessary suffering, would not distinguish between combatants and non-combatants, and would violate the territorial integrity of neutral States. Even if this remedy is violated by national law, this article demonstrates that the practical necessity of using nuclear weapons, and any resulting military advantage, is inherently disproportionate to the damage caused by any use of nuclear weapons, and thus, accordingly under international law, the use of nuclear weapons is illegal.