POL 309-800, International Law
SUNY Oswego | Spring 2021
Dr. Craig Warkentin
Ch. 10, The Use of Force Including War (586-618)
lex lata (599)
Do you agree with the Court's conclusion that there is no "comprehensive and universal conventional prohibition on the use, or the threat of use of…[nuclear] weapons as such"?
Why does the Court determine that there is no customary rule of international law proscribing the threat or use of nuclear weapons per se? What sort of evidence might have convinced the Court that there was such a rule?
The Court notes that "nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence.…" (paragraph 86). Similarly the principles of neutrality were also largely laid down before nuclear weapons were invented. How then does the Court conclude that the rules of humanitarian law and the principles of neutrality, nonetheless, apply to nuclear weapons?
Does the Court hold that states may use nuclear weapons when exercising the right of self-defense under article 51 of the U.N. Charter?
What exactly are the continuing obligations of states parties to the Treaty on the Non-Proliferation of Nuclear Weapons under article VI of that Treaty?
Did Judge Schwebel's evidence relating to the Gulf War persuade you that the threat to use nuclear weapons is sometimes permissible? If so, under what circumstances is such a threat permissible?
Judge Koroma concluded that the use of nuclear weapons always violates international law because of their indiscriminate devastation Do you agree?
Are you convinced by Judge Weeramantry's notion that because nuclear weapons have the potential to destroy everything, including all legal systems, law cannot possibly condone nuclear weapons? What are the minimum mandatory assumptions that law must adopt if it is to survive as a system for governing human behavior?
The Court rendered this Advisory Opinion in 1996. To what extent to you think customary international law has evolved in relation to the issue of nuclear weapons? Consider the adoption of the Treaty on the Prohibition of Nuclear Weapons discussed above. One hundred twenty-two states voted in favor of adopting the treaty. No nuclear weapons states participated in the negotiation or adoption of the treaty. As of early 2019, twenty-one states have fully expressed consent to be bound by the treaty. According to article 15(1), the treaty will enter into force "90 days after the fiftieth instrument of ratification, acceptance, approval or accession has been deposited."
How would you have ruled on this case? Would the "veil of ignorance" have been useful in helping you decide? Explain your answers.