Legality Of Use Of Nuclear Weapon

Question 1

Intro

Answer 1

1. Even though force allowed under A42, 39 and 51 of Un charter - no clarity on nature of weapon ..
2. Unc neither permits nor prohibits use of any specific weapon including nw
3. Law regarding prohibition found in customary law or GPL
4. Various conventions on env , health, genocide convention etc
5. One prohibition that is always there is the prohibition of first use of NW bcoz use of force is prohibited.

Question 2

First 3 cases

Answer 2

1. Shimoda case - acc to rules of war no express prohibition. Implied prohibition- bcoz rules of war prevent the use of force against civilian population
2. Australia vs France, Newzealand vs France - legality of nuclear test conducted by France. France gave an undertaking not to do again. Therefore legality quo was not discussed in detail
3. Advisory opinion sought by WHO in ICJ- 1993. Health and env consequences. Returned- WHO not an organ of UN

Question 3

1994 gen assembly refered the legality of use of NW to Icj. 6 points

Answer 3

1. No treaty or customary law authorizing
2. No conventional / customary law preventing
3. Threat or use - violation of art 2(4) of un. Will not fall within the scope of A51
4. Should comply with the rules of IL wrt armed conflict
5. Contrary to humanitarian laws. But court cannot say conclusively
6. There is a need to bring about an agreement for nuclear disarmament and prohibition of use of NW.

Question 4

Npt key points 1968

Answer 4

1. Prohibits non NWS from testing
2. NWS - PURSUE disarmament, pursue negotiations in good faith to stop arms race.
3. IAEA - inspect NON NWS nuclear facility

Question 5

Comprehensive test ban treaty

Answer 5

1. Bans nuclear explosion testing every where

2. Not yet in force. Atleast 44 nuclear technology holding states must ratify

Question 6

Problems with CTBT and NPT. Points specifically pointed out by india

Answer 6

In news for support from USA and china

1. Should aim at complete prohibition. Not Piecemeal
2. Nuclear haves and have nots
3. Developed countries can conduct lab test using simulation models
4. 44 states annex 2 states. Not ratified by 8 of these states
5. Treaty established CTBTO - but not effective sanctions
6. Sub critical tests not explicitly banned. Us undersecretary of energy - 3 subcritical beds

India

1. Discriminatory
2. Unsatisfactory definition of scope.
3. Absence of linkage with total elimination of NW

In 2017- treaty on prohibition of NW. 1st legally binding to comprehensively prohibit. However none of NW states have signed it.