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School of Law

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Abstract

This paper examines the legality of using nuclear weapons in self defense through an analysis of the Nuclear Weapons advisory opinion and the doctrine of self-defense. The advisory opinion of the International Court of Justice (ICJ) as presented in this paper did not take a position on the legality of nuclear weapons in situations where the survival of the state was at stake. In order to examine this problem the paper outlines and analyzes the doctrine of self defence as elaborated in the Nicaragua case (Merits, 1986, par. 176) which found that there  are two sources of law which govern the doctrine of self-defence, the United Nations Charter and customary international law.

The paper goes further to analyze the content of both sources paying particular attention to scholarly debates about the relationship between article 2(4) and article 51 in the UN Charter and the customary law elaborated through the Caroline incident. The implications for the use of nuclear weapons, the effect of article 51 in the light on the principles and purposes of the United Nations Charter and the role of the Security Council have also been considered. In the context of the nuclear weapons the paper evaluates the content of the doctrine of self-defence in international customary law and comments on the principles of necessity, proportionality and purpose. It finally concludes by stating that there are some circumstances in which it would be legal to use nuclear weapons in self-defence.

Introduction

Modern debates amongst the international lawyers now realize two models of the right of having self-defense competing. The first model asserts that a nation can make use of force in matters of self-defense if only it has become a victim of an attack using arms or some form of aggression (Tarcisco, 2005, 71-124). On the other hand, there is an endorsement of a narrow anticipatory defense right when such threats become imminent. These sides of present a non-existent impasse; international law has from the past accepted a wide right of pre-emptive self-defense not dependent on a looming attack threat. The UN Articles; 51 and 2(4) present a universal prohibition on the application of force not unless when a country or nation has indeed experienced this kind of hostility or armed attack (Daniel, 2009, pp. 123-234). Well, this force may include weapons of mass destruction which are found in this present age. However, this essay asserts that there are some circumstances in which it would be legal to use nuclear weapons in self-defence.

The interpretation of the UN Articles 51 and 2(4) are unwise decrees. This is basically due to obvious reason. In this era characterized with weapons of mass destruction, vengeance could become very difficult after the initial strike and more particularly for smaller states and nations. Therefore, some kind of defensive or pre-emptive defense is needed. In this nuclear age, common sense cannot expect someone to make an interpretation of an ambiguous statement in a text in manner that moves a country to passively accept the fate that has befallen it prior to its self-defense (Saira, 2009, pp. 33-89).  The most compelling argument which would be made against Article 51 while making an interpretation of it to prohibit anticipatory self-defense under any circumstances is the fact that we are in an era of nuclear weapons and missiles. All the same, such an interpretation would confront the reality that is on the ground (Ashley, 2001, 567-611).

The authority to apply force in self-defense to defeat an imminent attack has been has been enhanced founded on the principles as put down in the Caroline case. The U.S ship, Caroline that supplied arms to the rebels of French-Canada giants the Crown forms a strong basis for these issues. Based on the UN Charter Article 51, the incident is fully protected and develops a policy of preventive self-defense. In fact, nothing in the current charter should be found impairing the collective or individual intrinsic right (Saira, 2009, pp. 33-89).  What makes the incident of Caroline apparently trivial application of force even after a century and particularly pertinent to the modern debates on international law is the number of ICJ judgments which make reference to Caroline and lays focus on its significance as the suitable benchmark for establishing the lawful position of the pre-emptive force (Daniel, 2009, pp. 123-234).

Many of the Caroline discussions lean on the interpretation of the renowned dictum that pre-emptive self defense is allowed when there is a need of having self-defense, immediate, overpowering, leaving no option of other means and no time of discussion.  Looking from this perspective, Caroline appears to make a justification of the application of force in preventive self-defense. This is however in a situation when the threat is found imminent and during a time when there is no room created for discussion. This in fact could be a misreading of the case of the Caroline that overlooks both the obvious contradictions and the clear meaning and implication. Therefore, there is needed much communication that highlights the importance of making provisions of the use weapons of mass destruction like nuclear weapons. A strong policy is needed on matters of pre-emptive force and a very clear discretion on whom and who to be attacked when it comes to self-defense (Thomas, 2002, pp. 111-56). All the same, imminence of attack needs to be backed up by other factors to justify pre-emptive self-defense (Tarcisco, 2005, 71-124).

The significance of pre-emption was earlier seen by those who drafted the UN charter.  They incorporated the provisions for authorizing pre-emptive war to sustain international security and peace. Thus, the UN has no absolute claim to certainty and moral superiority more than the states that form part of it or even the agents’ conduct. Therefore, whilst the states have advocated for a right of authorizing force against huge threats and breaches of peace, it implies that no peremptory ban can exist on the preventive self-defence. Again, the UN and the nations’ community look forward to pre-emption based on specific conditions (Daniel, 2009, pp. 123-234). It is therefore felt important to address these issues Ashley 2001, 567-611).

Moreover, there is no judicial declaration that can refute the acceptance of Pre-emptive force even though the decisions of the International Court of Justice (ICJ) in the   Nicaragua Case are occasionally and wrongly stating as having such an effect. In Nicaragua, the USA depended on Truman and Monroe doctrines, collective security, roll back and self-defence to make a justification of arming the rebels of Contra against the Soviet-client in Nicaragua (Merits, 1986, par. 176-188). This was threatening to the adjacent El Salvador. The ruling by ICJ based on the merits came up with a decision based on a narrow tip of the law.  The ruling asserted that, for a collective self-defence to be justified as valid, El Salvador should have went through an armed attack. The court however reiterated that this was not the case. The Nicaragua Case involves fact-conditions where pre-emptive self-defence is not a relevant matter. The concerns of Nicaragua are collective security. Based on this fact, the court intentionally abstruse considerations on pre-emption are not binding in law (W. Michael, 1991, 26-45; Ashley 2001, 567-611).

Many discussions on the international law start with its very basic sources which that the state practice and the states; conviction that a practice is legitimate are the things that matter most (Saira, 2009, pp. 33-89). All the same, in establishing the extent to which an inherent right as protected by the UN Charter Article 51, it would be very important to make a consideration of the beginnings of the international law. In establishing the concept of the war of justice in the war and peace law, certain natural rights were derived which could be used to support the use of nuclear weapons in some cases. The law gives a proposition that it be lawful to kill the individual or people that are prepared to kill. Some other self-defence formulations permit a broad authority and right of pre-emption which justifies the application of force against the nations that are just prepared to kill. According to Tarcisco (2005, pp. 71-124), this has not been limited by an imminence test, conceding as it appears that the very prepared position to kill is enough to make a justification of applying force in the effort made towards self-defence.

The safest plan in such cases of aggression is basically to deter evil in all possible ways. A state has the right to oppose the injury inflicted upon by another and to apply force to resist the aggressor (Saira, 2009, pp. 33-89). Looking at the era in which we are living, nuclear weapons and other weapons of mass destruction could find application in such scenarios. The contemporary debate on international law refutes the initial limits made on the use of force since many authoritative legal laws have consequently came up (Tarcisco, 2005, 71-124). Such laws therefore may be misplaced in modern trends. The main issue that is being defended in all these matters is natural rights. Natural rights from the international understanding do not fade away with time or as a result of successive events. The correspondences of Caroline due to the contradictory passages and also due to a right cannot by explanation be superseded easily. The UN charter is very clear in its reluctance to restrict self-defence right (Saira, 2009, pp. 33-89). Article 51 reassures that nothing in the present charter shall damage the inherent collective self-defence or individual right. Therefore, with the provisions of the UN charter in article 51, there is no restriction made to any State in defending using certain weapons like nuclear weapons.

A broad sweep of international and western history shows that nations, both the strong and the weak have all through depended on the pre-emptive use of force and more importantly have immensely accepted pre-emption legality (Daniel, 2009, pp. 123-234).  Article 51 presents a clear exception to the absolute prohibition on the unilateral force application. States and nations could make use of force in efforts of self-defence against any form of armed attack. These propositions are consistent with the clear wording in the Article 51 based on history and the positions of governments on official matters.  Additionally, they are also very much consistent with the Article 51 authoritative interpretation as seen in the International Court of Justice (ICJ).

In all these issues, there still remain questions about when an armed attack, “starts” for the intentions of carrying out self-defence. An attack should be ongoing or should have already taken place necessitating the trigger of the unilateral self-defence right. Apparently, the initial response needs that Security Council approval. There is no self-appointed guarantee to attack a state based on the fear of the targeted state that it is making preparations or else establishing weapons of mass destruction applicable in a hypothetical campaign (Daniel, 2009, pp. 123-234). The real armed attack is well expressed in Article 51. The interpretation by the International Court of Justice in the Nicaragua case was that the collective or individual rights are triggered solely by actions considered to be serious enough to lead to an armed attack (Merits, 1986, par. 176-188).

In the Nicaragua hearing, the interpretation by the court gave an explanation of the limits based on the customary international law instead of the provision of a Charter. Consequently, the findings proved that there were no content difference between the customary law and Article 51. These instances could even allow the use of nuclear weapons in self-defence. An armed attack which triggers unilateral self-defence could incorporate delegation by a particular State of groups, mercenaries, armed bands or irregulars which conduct actions of the armed force in response to another State having such kind of gravity to lead to a real armed attack carried out by regular forces (Saira, 2009, pp. 33-89). The Court was making an evaluation of the claim by the United States of America that the application of force against Nicaragua was a legitimate collective self-defence act of El Salvador. The argument made by the United States was that, Nicaragua used illegitimate force in the first occasion by offering supplies and weapons to the rebels of El Salvador. The court however insisted that Nicaragua was not proved to be accountable for the weapons provision and the supplies made to the rebels. Further reiteration by the court asserted that the weapons supply was could not be equalled to an armed attack (W. Michael, 1991, 26-45).

Still on the Nicaragua case, El Salvador did not report to the Security Council, nor were there invitations to the United States to help in self-defence. The conclusion that can be made based on the Nicaragua case is that in a situation that the State or country faces a threat through force not leading to an armed attack, the resort should be measures that are less than armed self-defence (W. Michael, 1991, 26-45). Alternatively, the State can seek more action from the Security Council. Moreover, countries are held tight by the principles of prohibition on armed retaliations and state responsibility. An armed retaliation is the application of punishment, revenge or even general deterrence (Saira, 2009, pp. 33-89).  The resolutions previously made by the General Assembly of the UN term armed retaliations as illegitimate and that nations are obligated to refrain from them. The right to self-defence is constricted to the cooperation and friendly relations among states based on the United Nations’ Charter (Daniel, 2009, pp. 123-234; Merits, 1986, par. 176-188).

Again in the Nicaragua case, it is not absolutely clear whether the Court purposed to assert that offering weapons and other pertinent supplies could not have led to an armed attack. Moreover, it is also not clear where the level of weapons coupled with the supplies acted as proof in the specific cases which did not lead to an armed attack. Force for any of the intentions would be retaliations. Generally, reprisals come to place to impose reparation for losses and harm realised to compel a reasonable dispute settlement resulting from an illegitimate act through the other State or even to induce the felonious State to go by the law (Thomas, 2002, pp. 111-56). Based on their nature, reprisals originate following the events and after the harm are already inflicted. Based on friendly relations, the declaration offers a duty to abstain from reprisal acts which involve the application of force (Saira, 2009, pp. 33-89). The authority to make use of attack in progress to deter future attacks by the enemy following a previous attack or even to reverse the results of the attack by the enemy like ending an occupation (W. Michael, 1991, 26-45).

The nation acting in self-defense could seek the destruction of the enemy on attack when the attack is considered necessary and in a similar proportion to its individual defence (Daniel, 2009, pp. 123-234).  The threat legality or the application of the nuclear weapons must however be guided by the proportionality and necessity as presented in the decision arrived at by the armed force. Proportionality hinders force which could be expected to lead to incidental harm to the life of the civilians, their objects or a combination of all of these. This could be excessive looking at the direct and concrete advantage of the military which is anticipated. The Charter provision pertinent to the threat or the application of force as in Article 2(4) does not expressly prohibit or allow the use of a particular weapon. Article 51 highlights the conditions of proportionality and necessity. The beliefs about threat and the consequent use of force are intertwined in matters of possessing weapons of nuclear, threat and deterrence (Thomas, 2002, pp. 111-56).

Certain rules which regulate the unlawfulness or lawfulness of the alternative to nuclear weapons like that.  The absence of this specific prescription which authorizes threat or even the nuclear weapons use gives room for a choice of any lawful approach to be applied in self-defence. There is no refusal inclined to the court’s discretionary power to act on the demand for consultative opinion in the olden times of the current Court; in matters concerning the legitimate use of nuclear weapons by a State in armed conflict (Thomas, 2002, pp. 111-56).  The rejection to offer the WHO the consultative opinion has been in the past justified through the lack of jurisdiction by the court. The permanent ICJ stood on the view on one instance that it recognized that the environment could be under threat and that the nuclear weapons use would amount to a catastrophe for the thriving of human beings (W. Michael, 1991, 26-45).

Well, the recognition made by the court is the fact that the environment can never be an abstraction although it is representative of the living space, the very health of the people and the life quality thereby. These are basically some of the grounds on which the use of nuclear weapons has been prohibited. However, the question remains, what is the need of making preservations of the environment at the expense of the threats to the people of the State.  That notwithstanding, the existence of the universal States’ obligation is to see to it that activities within their control and jurisdiction preserve respect to surroundings of other States. This forms part of the international law on matters pertinent to the environment and its protection (Tarcisco, 2005, 71-124). All the same, the protection that is made to the environment is for the good reason of protecting human existence. Therefore, the court has found that now that there is the international law pertinent to safeguarding and protecting the environment, there is no specific prohibition on the application of nuclear weapons.  The law basically is indicative of the significant factors of environment that are clearly to be considered in the implementation context of the rules and principles of the law that is suitably applicable in any form of armed attack and conflict (W. Michael, 1991, 26-45).

Based on the past, the Courts asserts that the most pertinent law that is applicable in the exercise of force preserved in the Charter of the United Nations and the law that can be applied in the armed conflict which can regulate the hostility conduct as well as any particular treaty on nuclear weapons that the ICJ could establish to be relevant in application and use in self-defence.  The mission of the exercise on this matter is to put into practice the right to self-defence to the situations based on proportionality and necessity as a rule of customary universal law and its provisions. Looking at the Court and the Nicaragua case, there is a particular ruling in which self-defence would guarantee such measures that are proportional and comparative to the armed attack and essential to react to it (Merits, 1986, par. 176-188).

This is a rule that is very well developed and enhanced in the customary international law. The nature of this condition again is provided by Article 51 of the UN Charter regardless of the means of self-defence and force used. Thus, based on this information, there are some circumstances that will obviously guarantee the use of nuclear weapons.  Therefore, the principle of proportionality should not in itself be seen to make deterrence on the application of nuclear weapons when it comes to matters of self-defence in any circumstance (W. Michael, 1991, 26-45). However, the use of force that is proportionate based on the self-defence law should measure up to the requirements of the law that is applicable in order to be legitimate in the armed attack and conflict (Tarcisco, 2005, 71-124). This must incorporate the rules and principles as contained in the humanitarian law.

Some countries in their oral and written pleadings made a suggestion that when it comes to nuclear weapons; the proportionality condition should be examined taking into account some other factors. Within the provisions of any law, it ought to be accompanied by some limits otherwise it could have detrimental effects. States contend that the true nature of weapons of mass destruction like nuclear weapons and the high chance of an increasing exchange of nuclear there is high devastation risk. The factor of risk is perceived to negate the likelihood of the proportionality condition being conformed to (Daniel, 2009, pp. 123-234). The Court has not found it important to deal with the quantification of these risks and neither is it required to enquire into the matter of strategic nuclear weapons existence which are enough to limit such kind of risks.

Indeed, the very nature of any king of nuclear weapon as noted by the Court together with the risks linked therein are much more considerations to be created in the ideologies of States which believe in the exercise of nuclear use in matters of self-defence according to the proportionality requirements (W. Michael, 1991, 26-45; Ashley 2001, 567-611). Therefore, there is needed much communication that highlights the importance of making such considerations of nuclear weapons in self-defence as they could be most efficacious when a state is responding to the issue of armed attack and conflict.  

Far much beyond the proportionality and necessity conditions, Article 51 particularly requires the States to take measures in exercising the right to self-defence through making reports to the Security Council. Article 51 again makes provision for any measures to be taken not to be in any manner affect the responsibility and authority of the Security Council. This is based on the Charter to undertake actions as thought important for the reason of sustaining and restoring international security and peace (Saira, 2009, pp. 33-89). Therefore, the Article 51 requirements apply under all circumstances regardless of the kind of force that has been applied in self-defence against armed conflict and attack.

Therefore, self defence as seen in the provisions of the UN charter in Article 5 and Article 2 (4) reveals a lot of possibilities in the interpretation. Despites the conflict of interest to the environment and neighbouring states, self-defence and the use of force is very fundamental when exercising protection against any armed attack and conflict for any State (Thomas, 2002, pp. 111-56). Looking at the era, in which we are living, the provisions the ruling of the ICJ in matters of self defence must consider a number of factors. Ultimately, it is true that there are some circumstances in which it would be legal to use nuclear weapons in self-defence.

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