Welcome to the second episode of the Youth Fusion podcast series on nuclear weapons in international law. This podcast series was established to help those interested in finding out more about nuclear weapons issues and how they are regulated in international law by providing an overview of the status of international law connected to nuclear weapons. This episode explores questions surrounding the threat and use of nuclear weapons in international law.
Gabriela Maier Tolic, a program assistant at Youth Fusion, sits down with Amela Skiljan, a PhD Candidate at the University of Bremen and Alyn Ware, the Global Coordinator of PNND. Amela Skiljan studied law in Bosnia and Herzegovina. She holds a masters in International and European law (LL.M.Eur) from the University of Bremen and she is currently writing her PhD thesis. Beyond that, she is the Deputy Chairwoman of the International Association of Lawyers Against Nuclear Arms (IALANA) in Germany, a board member of IALANA and a Council Member of the International Peace Bureau. Alyn Ware is a peace educator and nuclear disarmament consultant representing various organizations, such as Aotearoa (New Zeeland Lawyers for Peace), the World Future Council and the Basel Peace Office.
The broad theme of this episode is to look at different legal sources to find out if there are circumstances in which the threat or the use of nuclear weapons would be legal or if it is illegal to use nuclear weapons in every possible case. By going through different sources of international law, such as the law of war (international humanitarian law) and human rights law, Alyn and Amela share that there is a broad basis of longstanding law that can and should be applied when answering questions about the threat or use of nuclear weapons.
One very controversial and well-known source of international law that addresses this question is the 1996 International Court of Justice (ICJ) Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. In this document, the court states that the threat and use of nuclear weapons is generally illegal. However, something that makes this legal document very disputed is the fact that the ICJ was not able to give a definite answer on the question of the threat and use of nuclear weapons in extreme circumstances of self-defense when the survival of the state is in danger. Amela and Alyn explain what this means in more detail, while also addressing the lack of a definition for an extreme circumstance of self-defense and the problems connected to this. They also share that whether a certain weapon can be used does not depend upon the circumstance, but instead, upon its compliance with international humanitarian law.
The podcast then also discusses the specific conditions of international humanitarian law that would need to be fulfilled when using a nuclear weapon, such as the neutrality principle, and the requirement to distinguish between civilians and combatants, which are part of customary international law. They also look at possible scenarios that could constitute a legal use of nuclear weapons, such as targeting a military attack in the desert or a submarine in the middle of the ocean. However, Amela and Alyn argue that these scenarios would still violate international humanitarian law and human rights law. The discussion also includes more general questions, such as how we can define the threat of use of nuclear weapons and whether there are more recent developments in human rights law or environmental law that add restrictions or prohibitions to the threat and use of nuclear weapons.
In the final section of the podcast, possible mechanisms of enforcement of international law regarding the threat and use of nuclear weapons are being discussed, and the speakers share what can be done by countries that want to strengthen law prohibiting nuclear weapons. Ayln and Amela also give advice on how civil society actors can use international law in their non-proliferation and disarmament campaigns. They encourage activists not to solely rely on the Treaty on the Prohibition of Nuclear Weapons as a source of law to state that nuclear weapons threat and use is illegal, given the fact that nuclear armed states can easily reject the idea that the treaty restricts their behavior, since they are not state parties of the treaty. Instead, they say that the broader body of international law can and should be used as a basis for nuclear non-proliferation and disarmament campaigns.
By: Gabriela Maier Tolic