Legal Fallout: The Legality of Nuclear Weapons under International Law

• Author: Andrew Rock
• Position: University of Mississippi School of Law
• Pages: 495-535

e Indonesian Journal of International & Comparative Law

ISSN: 2338-7602; E-ISSN: 2338-770X

http://www.ijil.org

© 2019 e Institute for Migrant Rights Press

lEgal fallout

THE LEGALITY OF NUCLEAR WEAPONS UNDER

INTERNATIONAL LAW

Andrew Rock

University of Mississippi School of Law

Email: rockandrew04@gmail.com

Legal Fallout argues that while nuclear weapons are illegal under the modern

regime of international law, they were legal at the end of World War II and

throughout the Cold War. e article makes these arguments by giving a brief

history of nuclear weapons and the tenets of international law that govern their

use, and how the bulk of international humanitarian law indicated that use of

the weapons was legal until recently. It considers the evolution of international

law, and how that evolution ultimately led to nuclear weapons becoming unac-

ceptable. Finally, Legal Fallout considers a hypothetical scenario where nuclear

weapons could still be legal, even under the modern iteration of international

humanitarian law.

Keywords: Nuclear Weapons, International Law of Forces, International Relations,

International Legal eory.

VI Indonesian Journal of International & Comparative Law 495-535 (October 2019)

496

Rock

INTRODUCTION

is article argues that nuclear weapons were compatible with interna-

tional humanitarian law (IHL) during their initial use during the Sec-

ond World War as well as during the Cold War, due to their necessity

in bringing the conict to an end with less bloodshed, and the need

for deterrence between the superpowers, respectively. However, since

the fall of the Berlin Wall and subsequent collapse of the Soviet Union,

nuclear weapons are not immediately necessary for any legitimate

purpose, with the possible exception of deterring a resurgent Russia

or ascendant China. erefore, nuclear weapons are far less likely to

comport with IHL in a post-Cold War world, especially in light of the

evolution of this eld of law in the last 20 years.

is paper argues that the use and threat of use of nuclear weapons

in 1945 and during the Cold War was acceptable under international

law, but now contravenes it due to changes in geopolitical reality. Part

I gives a brief history of nuclear weapons and the law surrounding

them. It also argues that the use of nuclear weapons was militarily

necessary to end the war with Japan in 1945, and thus comported with

international law. Part II argues that both the threat and use of nuclear

weapons was consistent with international law during the Cold War,

based on the evolution of international law and the requirements of

necessity, proportionality, and distinction/controllability.

ese arguments for the legality of using nuclear weapons are

solely limited to a conict between the United States and Soviet Union

and their respective allies. Part III argues that the modern state of

international law and lack of Cold War exigency means that nuclear

weapons no longer comport with international law and thus calls for

reductions in accordance with the requirements of the Nonproliferation

Treaty. Finally, Part IV considers a rare scenario in which the use or

threat of use of nuclear weapons could be acceptable despite the vast

changes in international law and the global order since 1991.

Many historians and legal scholars have addressed the issue of

nuclear weapons, and have reached the general consensus that modern

international law prohibits them.1 Scholars have also considered the

1. See generally Charles J. Moxley, John Burroughs, & Jonathan Grano, Nuclear

497

Legal Fallout

Rock

evolution of international humanitarian law, notably its shi from

favoring military necessity to protection of civilians and human rights.2

However, no commentator has considered the legality of nuclear

weapons in light of this recent evolution of international law, particularly

its evolution in the last 20 years. Specically, no commentator has

analyzed the legality of nuclear weapons by contrasting the modern

state of aairs with the exigencies of World War II and the Cold

War, and argued that the radically dierent geopolitical reality helps

determine the legality of nuclear weapons. In addition, no current

scholarship has presented a scenario which could prove an exception

to international law’s current prohibition on use or threatened use of

nuclear weapons. Legal Fallout thus addresses an important gap in the

academic conversation surrounding nuclear weapons and international

law from an angle no other commentator has addressed.

PART I

A: Historical Background

e world has arguably labored under the threat of nuclear re since

Albert Einstein penned his famous letter to then-President Franklin

Delano Roosevelt.3 Einstein warned President Roosevelt of the

destructive power of the atom and the world-shattering consequences

of Germany developing atomic weapons before the Allies.4 is helped

spur the United States to undertake the secret Manhattan Project,

which culminated in the rst nuclear detonation in the Nevada desert

in the summer of 1945.5 In August of the same year, the United States

Weapons and Compliance with International Humanitarian Law and the

Nuclear Non-Proliferation Treaty, 34 F I’ L. J. 595 (2011).

2. Amanda Alexander, A Short History of International Humanitarian Law, 26

E. J.  I’ L. 109, 110 (2015).

3. U.S Department of Energy, Oce of Scientic and Technical Information,

Manhattan Project: Einstein’s Letter.

4. Id.

5. Jonathan Grano, Nuclear Weapons, Ethics, Morals, and Law. 4 BYU L. R.

1413, 1416. (2000).