Volume 48
Issue 3
Spring '17

The Legality of Nuclear Weapons for Use and Deterrence

Written By: Christopher Vail

Abstract

After World War II, a new set of treaties concerning the laws of war—the Geneva Conventions—established the standards of international humanitarian law (IHL). Under Additional Protocol I of the Geneva Conventions, the nuclear bombing of Japan would have violated IHL. In fact, using nuclear weapons in any situation would likely violate international law. Due to its potential for utter destruction, nuclear weapons should not exist in our current world and should not be used in any circumstance. But, even today, international law does not ban nuclear weapons. This Note advocates for implementing a stricter amendment to the Non-Proliferation Treaty (NPT)’s disarmament provisions so it can achieve total nuclear disarmament of nuclear-weapon states. The actual use of nuclear weapons—which is a per se violation of current international law—is closely tied to the principle of deterrence under the mutually assured destruction (MAD) doctrine. As a result of maintaining nuclear weapon stockpiles for deterrence purposes under MAD, the United States—a nuclear-weapon state—has had the opportunity to seriously consider using those stockpiles for a nuclear attack in times of conflict. Maintaining nuclear weapon stockpiles for deterrence purposes does not violate current international law or the NPT under the NPT’s current language. However, the fact that nuclear-weapon states have the ability to commit what would inevitably be a violation of international law should they choose to deploy nuclear weapons is sufficient justification for banning nuclear weapons entirely. The NPT should therefore be amended to require complete nuclear disarmament by nuclear-weapon states.

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