Legal Fallout: The Legality of Nuclear Weapons under International Law

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

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. The 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... (see full summary)

 
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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: Einsteins Letter.
4. Id.
5. Jonathan Grano, Nuclear Weapons, Ethics, Morals, and Law. 4 BYU L. R.
1413, 1416. (2000).

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