Is the Use of Nuclear Weapons Prohibited by International Humanitarian Law - Essay Example

Is the use of nuclear weapons prohibited by international humanitarian law? Introduction I have decided to choose this theme for the work because the nuclear weapon cannot bring good, it is necessary to forbid it. In my opinion, a problem facing to mankind is not to admit the race of nuclear arms and its distribution in other states. Carrying out of peace policy, the resolution of conflicts between the countries by negotiations and coordination, obligatory observance of all resolutions of the United Nations and International Atomic Energy Agency - all is the primary goals facing to mankind for preservation of life of all of us. Scientific knowledge can serve and to the purposes humane, noble, and to the purposes barbarous. All depends on in what hands there is a science and the results extracted by it who and for what reasons is engaged in scientific activity, what moral foundations and social views of people of a science. These questions have arisen before mankind during that moment when the nuclear bomb became real threat. I consider, that the nuclear weapon - the most powerful weapon for today. It is on arms of five countries: Russia, the USA, the Great Britain, France and China. There is also a number of the states which conduct more or less successful development of the nuclear weapon, however their researches or are not finished, or these countries do not possess necessary means of delivery of the weapon to the purpose that does its senseless. India, Pakistan, Northern Korea, Iraq, Iran have development of the nuclear weapon at different levels, Germany, Israel, the republic of South Africa and Japan theoretically possess necessary capacities for creation of the nuclear weapon in rather short terms1. The role of nuclear weapons It is difficult to overestimate a role of the nuclear weapon. In my opinion, on the one hand, this powerful means of intimidation, from another - the most effective tool of strengthening of the world and prevention of the militarian by conflicts between powers which possess this weapon. From the moment of the first application of a nuclear bomb in Hiroshima has passed 58 years. The world community has close approached to comprehension of that nuclear war will inevitably lead to global ecological accident which will make the further existence of mankind impossible. The legal mechanisms were for many years created, called to unload intensity and to weaken opposition between nuclear powers.2 So the set of contracts about reduction of nuclear potential of powers, for example, has been signed, the Convention on Non-distribution of the Nuclear Weapon has been signed, on which countries-owners have undertaken to not transfer the "know-how" of this weapon to other countries, and the countries which are not having the nuclear weapon, have undertaken to not undertake steps for its development; at last, more recently superstates have agreed about full prohibition of nuclear tests. It is obvious, that the nuclear weapon is the major tool which became an adjusting symbol of the whole epoch in history of the international attitudes and in history of mankind … From the history of nuclear weapons Like any event, the creation of atomic weapon has their history. The first signals about the fact that the enormous reserves of energy are hidden inside the atoms, entered exactly from that element, which subsequently and prompted the method of its extraction. In the very end of the XIX-th century Antoine Henri Becquerel, who was attempting himself to reveal X-ray the emission of the salts of uranium, it opened the phenomenon of radioactivity - Becquerel rays. The discovery by Becquerel is interesting for many, but the first they realized to the end, which fell by it into hands, there were f. Soddi even 3. Rutherfords3. F. Soddy wrote: "Nuclear power has much larger capacity than molecular energy, and consciousness This fact should lead us to consider the planet on which we live as a warehouse of explosives, possessing incredible shock force." In 1932, James Chadwick, finally opens the neutron, predicted by E. Rutherford, his teacher at Cambridge. Barely got to researchers hands this "effective tool" as the opening poured avalanche. A breakthrough in nuclear physics for three years (1932 - 1934) was such significant that, already in 1934 had all theoretical physics prerequisites for the creation of the atomic bomb - uranium division, a chain character, this division and, in fact, has already opened plutonium4.        August 5, in 5 hours 23 minutes 15 seconds was made in the first history of atomic bombing of the city of Hiroshima. Ingress was almost ideal: a bomb exploded 200 metres from goal. It was assumed that opulation in shelters, but this has not happened for several reasons: first, not the alarm was given, secondly, over Hiroshima already in the past the group flew planes that are not dropping bombs. After the success of the bombing of Hiroshima on August 9, has been appointed the 2nd bombing. On the 9the of August bomb "fatso" was dropped on the city Nagasaki. It exploded at an altitude of 567 metres.        The two atomic bombs dropped on Japan, in seconds destroyed more than 200 thousand people. Hiroshima and Nagasaki - it is a warning for the future5. At a time when the worlds nuclear weapons exist and the state owing it, the policy of non-nuclear countries to ensure its own national security can be conducted in the following areas6: enter into a military alliance with a nuclear-weapon States; assurances that nuclear weapons will not be used against non- nuclear countries; develop, produce or acquire their own nuclear weapons. Preparation States to the development and manufacture of nuclear weapons begins, naturally, with the adoption of a political solution, and then attract significant resources for industrial and scientific complexes. While this certainly is kept secret, but that such a decision is taken, the issue following circumstantial evidence: failure of the Treaty on the Non-Proliferation of Nuclear Weapons, the refusal to participate in international negotiations on the issues of nuclear non-proliferation; refusal to put its nuclear activities under IAEA supervision; Establishment of management structures, directly under the supreme leadership of the country and endowed with special powers, functions while clearly not relevant to the claimed body; Creation of special organs in external economic structures with special rights and greater financial capacity to purchase abroad appropriate raw materials, equipment, engineering samples7. Direct evidence of the work on nuclear weapons can be considered: Creation of a set of industries, providing material for nuclear weapons; A charge of the construction of gas-dynamic tests; Implementation of nuclear experiments and full-scale underground tests; the emergence of specific radioactive gas electrical products, noble gases, and tritium, increased gamma neutron background radon concentrations, the presence of induced radioactivity8. There is no simple means to the risk of nuclear proliferation. No country alone can solve the problem. That is why improving the control of non-proliferation of nuclear weapons in todays environment is one of the most important activities of the international community to ensure the stability of inter-state relations9. Now, as you know, this kind of monitoring activities carried out under the auspices of the IAEA. Their main content along with the test documentation on the production and transfer of nuclear materials are also verification, inspection, studies and measurements in order to confirm the actual movement of nuclear and fissile materials used for peaceful purposes. For the current control procedures is the smooth and clear the IAEAs safeguards system to ensure effective monitoring of the presence and movements of 95% of the worlds production of fissionable materials. According to the physical characteristics nuclear weapons is incompatible with the norms of the legal community, it is contrary to the spirit, letter and the notion of the law. Yet, a minority consisting of a few powerful states, continues to keep him in their arsenals and used in politics, since nuclear weapons have become a symbol of strength, influence and status. The nuclear-weapon States saw its expression of its independence10. Nuclear weapons are under the jurisdiction of international law in many respects, including - because of the particular treaty (Treaty on the Non-Proliferation Treaty on the reduction of strategic weapons, the Treaty on the total ban of nuclear tests), common contractual structures that underlie current international law (Constitution UN), and because the law of armed conflict, humanitarian law and law of neutrality. International humanitarian law and nuclear weapons There are detailed studies on international law and nuclear weapons. Here we look at the law with regard to nuclear disarmament in the form of a treaty and the international legal system, its structure and jurisprudence. Namely11: 1. Obligations under the NPT. 2. UN Charter (jus ad bellum). 3. The conclusion of the International Court of Justice (interpretation of existing laws, especially the law of armed conflict jus in bello, albeit with restrictions current political system). 4. Special Judge Weeramantry (authoritative interpretation of law, in which the logical and legal opinions brought to the end, which, for political reasons, the court was unable to do). The NPT The Treaty on the Non-Proliferation of Nuclear Weapons (NPT), opened for signature in 1968 and entered into force in 1970, among other things was a contract between the five nuclear powers and the rest of the world (currently 182 non-nuclear-weapon state). By virtue of the treaty last renounce the acquisition of nuclear weapons in exchange for that first start negotiations on nuclear disarmament. The obligation under Article VI of the NPT: "Each of the Parties to the Treaty undertakes to pursue in good faith negotiations on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control"12. "Each of the Parties" suggests that obligation extend beyond the process of bilateral treaties on the Strategic Arms Reduction Treaty (START) and go to the multilateral negotiations. This commitment is supported by a number of resolutions of the UN General Assembly, down to the first13. UN Charter UN Charter is the foundation of contemporary international law, although a large part of systematization is a pre-existing customary international law. Article 2 (4): "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State or in any other manner inconsistent with the Purposes of the United Nations." Article 51: "The present Charter shall in no way impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the Organization, until the Security Council has taken measures necessary to maintain international peace and security". According to these two provisions, the State may use or threaten to use force only in situations of individual or collective self-defence in response to an armed attack, and only when the situation is not controlled by the Security Council. Naturally, the state started to argue that the threat or use of force on their part is self-defense, perceive it as an aggression similar statements and actions by all other countries. Nuclear weapons bring this contradiction to the absurdity14. Nevertheless, the core of the legislative principles is the desire for a just and effective international legal order. Crashes in his work are largely attributable to the installation of psychological and mistrust that fear, greed and the desire for power entered the political structures. At the same time, these structures are now presented challenges, the solution of which is not necessarily, but certainly will provide an opportunity to move towards a more equitable world order based on the force of law, not the law of force15. The International Court of Justice This transition moment is reflected in the Advisory Opinion of the International Court of 1996 on the legality of the threat or use of nuclear weapons. The International Court of Justice was to mediate between the shaped his political authorities and the future of the legal and political system that could arise. Politically, the Court reached the limits of their capabilities, declaring it illegal nature of nuclear weapons, but he could not articulate clearly logical and legal conclusions, the following of its own discourse. A separate opinion of Judge Weeramantry (presented as dissent) in this regard is a competent interpretation of the law, the final legal reasoning, the Court suggested16. C International Court of Justice in its advisory statement dated 8 1996 g. decided that: "... the threat or use of nuclear weapons, as a rule, would be contrary to the rules of international law applicable in armed conflict, in particular - the principles and rules of humanitarian law". [§ 105 (2) (E)] Overall, the Court, however, was unable to "come to a definite conclusion on the legality or illegality of the use of nuclear weapons in an emergency state of self-defence when threatened is the survival of the State itself. [§ 105 (2) (E)] President of the Court, Judge Bijou, particularly commented that "exclusion" in a statement Suda6. He stressed that this exception should not be interpreted as "a loophole for recognition of the legitimate threat or use of nuclear weapons". Judge Bedjaoui said that: "... self-defense - if it is carried out in emergency situations that threaten the very existence of the State - does not mean that the State can consider itself free from compliance with the" imperative "of international humanitarian law". He added: "Thus, it would be foolhardy to put too high above the existence of all other considerations, in particular - above the very existence of mankind"17. So, even in a situation of extreme self-defence are not allowed exceptions to the relevant rules of international law. All the judges agreed that the rules of international humanitarian law applicable in all cases. Further, the Court held unanimously that any threat or use of nuclear weapons "... also to comply with the requirements of international law applicable in armed conflict, in particular - the principles and rules of international humanitarian law, as well as specific commitments in accordance with treaties and other arrangements related directly to nuclear weapons ..." [§ 105 (2) (D)] The absence of a specific conclusions regarding emergency situations of self-defence, as believed, was the result of political compromise, concluded with a view to recruit a sufficient number of votes for recognition by the general illegality in the face of political constraints, which were a judge. (Traditionally, five of the 15 judges - citizens of the five official nuclear powers, which are also permanent members of the Security Council.) However, three of the seven negative votes on the overall illegality expressed a dissenting opinion, objecting to the possibility of exceptions in emergency situations of self-defence and insist that nuclear weapons are illegal under any circumstances. This category includes dissenting opinion Weeramantry, which will be discussed further18. With regard to the principles of humanitarian law, the Court observed: "... the principles and rules of law applicable in armed conflict - based on the recognition of the paramount importance of humanity - imposed a number of stringent requirements to the conduct during armed hostilities. prohibited methods and means of warfare, which does not differ civilian and military purposes, or which would lead to the unnecessary suffering of the warring parties. view of the unique characteristics of nuclear weapons ... use hardly seems compatible with those requirements. "[paragraph 95] Thus, the Court reaffirmed that The Hague and Geneva agreements systemizing law on armed conflict are applicable to nuclear weapons and make use of the whole illegal. According to the principles of the law, the use of any arm19: 1. must be adequately initial attack, 2. to be really necessary for effective defense, 3. should not be directed against civilians or civilian objects, 4. be applied in a way that preserved the opportunity to distinguish military targets and civilian objects, 5. should not lead to excessive or unnecessary suffering of the warring parties, 6. should not affect States not involved in the conflict, 7. should not lead to severe, prolonged or extensive damage the environment. The court also confirmed that if a particular use of a weapon illegally, then so is the threat of its use. With regard to the possession of the Court specifically said: "if the intended use of force itself is illegal, displaying his readiness to use the threat would be prohibited by Article 2, paragraph 4 [of the UN Charter]"20. Therefore, the court observed that "the possession of nuclear weapons can justify withdrawal of the readiness of its application." He added: "Has there been any" threat ", contrary to Article 2, paragraph 4, depends on whether the specific use of force against the territorial integrity and political independence of States, or against the UN goals, and if the force used in self-defence, then inevitably there its use results in the violation of the principles of necessity and appropriateness." [paragraph 48] Since the first use of nuclear weapons would violate principles inevitably need and appropriateness, it could be argued that in itself nuclear-weapons state, holding in its foreign policy principle of a first strike, would be in accordance with the Charter of the threat of use of these weapons. With respect to the obligations in respect of goodwill talks on nuclear disarmament under the NPT, the Court found that: "The legal obligations of the spectrum is broader than the obligation to conduct one, the obligation is an obligation to achieve a specific result - nuclear disarmament in all its aspects - with the help of a certain course of conduct, namely - reference on the subject of good faith negotiations." [paragraph 99] The Court considered this commitment, as a means of correcting the current instability of international law caused by the "exception" in the emergency self-defence. This is not just a casual reminder of the need for negotiations on nuclear disarmament, but permission lack of clarity in the law21. The court unanimously agreed that: "There exists an obligation to follow the spirit of good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control". [§ 105 (2) F] The advisory opinion reflects the changing role of the international community and international law. The court was caught between the structures already existed, and uncertain government, which have yet to arise. What will the new system and what will be the new power structures, it is not clear yet, but the view Weeramantry outlines some direction. Special Judge Weeramantry Weeramantry Minority Report - is accurate, authoritative statement of the law and the presentation of the transition leadership to the recognition of the positive signs of the new system. Particular Weeramantry view is largely based on his notion of a principled opposition to the "general" illegality and with the possible exception of self-defence. He believes that in this respect the legislation sounds quite clear. His interpretation should, and likely will dominate in the future, because, unlike the Court, he has been linked current policy and jurisprudence past22. In the system of nation states last 350 years actors on the international scene were independent, territorially integral state, and the system of international security depends on several dominant role. War and economic inequalities are considered inevitable. It has become commonly accepted allegations that the world is in transition, that it is moving towards globalization, which involves centralization and integration social and economic forces, the global organization of media and communications, both at the governmental and non-government level. This transition is the shift from geopolitics to geoadministration. Will the new system based on human rights and focused on statistics and the market is largely dependent on the nature of participation of transnational civil society and of our ability to see the new structure and to support those who we feel humane. The basic analytical and regulatory principles of humane geoadministration include economic prosperity, social justice, non-violence, environmental stability and a positive personality. A positive sign in favour dissenting opinion Weeramantry, consisting that the interpretation of law should be the leading principle of the law itself role in society. His views on nuclear weapons offer this look at the current state of law, which introduces us in "uncharted area of" a world without nuclear weapons23. The advisory opinion also helps to identify gaps in the law on self-defence, which itself is a manifestation of the concept of independence. In the current spectrum of opinion about the meaning and application of self-defense no surprise that the International Court of Justice was unable to reconcile the emergency self-defence with the emergency war funds to date - nuclear weapons. If the law is unclear and inconsistent with respect to the use of force in self-defence, it will be even less specific on the issue of weapons of mass destruction and the very existence of the State ". The Court was unable to resolve the question of self-defense in its relation to existence of the State, because the system arising geoadministration threatens the very existence as a state institution. The concept of "emergency self-defence" emphasizes the futility of trying to hold the line between legal and illegal use of nuclear weapons. The court did not recognize that the right to self-defence must be accompanied by the responsibility: the responsibility of abstinence24. Weeramantry’s analysis of the case "Lotus" indicates a fundamentally new interpretation of the sovereignty of States and acceptable conduct, as opposed to interpretation, which is supported by the nuclear powers. He said that the purpose and effect of law must be seen in the core assumptions on the continuity of existence, community, which adopted the law. The legal system postulated on the basis of the continued existence of society. The law relating to nuclear weapons, there can be only an exercise in jurisprudence. It must take into account the unique nature of nuclear weapons, as well as political and social context, which will continue development and refinement of these weapons25. Policies and practices of defense agencies and military laboratories influence in shaping society and the law. Therefore, in the analysis of the role of law in society must take into account the work of the structures, producing nuclear weapons and other means of mass destruction, as well as new and more sophisticated weapons, which are difficult to even classify. Our law does not give us a unified society, given to continue to invest enormous resources and talents in science destruction. In the field of nuclear weapons is a political offensive by the United States for real or virtual nuclear capabilities of those countries that are qualified and political interest in creating and maintaining the deterrent effect against the United States and its principal regional allies. Today, the number of such countries is Russia, North Korea and Iran. The goal, apparently - not only to bring these capabilities to a minimum, where they exist and prevent their establishment where it looks as likely, but not prevent peretekaniya and relevant technologies from Russia in the Moslem world, as well as to create a political and psychological and internationally legal foundation for the future approach to the problem of nuclear capability by China. In fact, the United States will intensify the development of small nuclear weapons and maintain its strategic potential intact, supporting his creation of a system NMD (National Missile Defense)26. The type emerging global world order is usually described as "hierarchical, authoritarian, US-centered." Legitimate added that he still "institutionalized, the informal, ie Three former and determining its quality is not enshrined in any system of internationally recognized institutions and treaties. Can be called as "the globalization of concepts: the role of the United States was adopted by the world community in the de facto realization of that country, and often under the direct its political and diplomatic and other pressure. USA exercised in relation to the most developed part of the order "programming leadership" in order to wipe out the rudiments of political phenomenon of "great powers" (hence - their appeal to the States to demos in connection with the operation in Iraq)27. The Great Powers (except for China, whose position is harder) to preserve their special status in international relations would take hold in the role of "boyars, or - oligarchs" in the USA (United Kingdom does so through its "special relationship" with the United States, France, Germany, Russia - moderate demonstration of their "special position" in relation to specific aspects of policy Washington) - all the more firmly minds its position in the UN and its Security Council, through their alleged reform. Order But just formed, and ongoing since early 1990-ies processes reflect the logic of its formation, but has not accepted the order, much less its routine operation. Conclusion The humanitarian law provides the balance between observance of interests of the state security and the rights of separate citizens during a confrontation. During such time it serves as a stronghold of humanitarian safety if it is observed there where it can be applied and if it is applied only in those situations to which really concerns. The humanitarian law is capable to provide granting protection and the help to civilians only in the case of restriction of its application to conditions of any confrontation. There are some argues around the humanitarian law, some people say that it has lost the urgency, or, at least, often becomes outdated and requires revision. For this reason today it consider unsuitable for use with reference to terrorism and efforts on struggle against it. Blind application of laws of a confrontation to "to war with terrorism" is so illogical, as well as its application to "to war with drugs" or "to war with poverty" or "to war with a cancer". Thus, the groundless criticism of the right of confrontations for impossibility of its application to such phenomenon as terrorism, as a matter of fact, is similar to charge of the specialized corporate right for impossibility of its application to the decision of business disputes. The humanitarian law considers two categories of confrontations - international and not international. Generally, when the state resorts to use of force against other state (for example when "war with terrorism" includes carrying out of such power operations as in case of with recent intrusion of the USA and their allies into Afghanistan), it is applied international law of the international confrontations. When war with terrorism is reduced to use of force inside of the state, i.e. between this state and group of insurgents, or between groups of insurgents inside of the state, the situation can be classified as not international confrontation if: the scales of operations reach the certain limit and-or operations last on time longer, than that it is accepted to carry to a category of internal or separate disorders; the clashing parties can be defined and designated; Territorial borders of the conflict can be defined and designated; the beginning and the end of the conflict can be defined and designated. And now I’m going to speak about the nuclear weapon. When the bipolar opposition based on nuclear intimidation, became property of history, concern in connection with a question on the nuclear weapon also as though has disappeared from public consciousness. The political, moral and legal factors limiting its practical application, reduce its strategic value even more, however thus the risk of inadvertent war and distribution does not decrease. The research of the problem allowed making some certain conclusions: Achievement of the purposes of nuclear non-distribution is not promoted at all by a position of nuclear powers which still insist that this weapon in their hands strengthens safety, and in hands of others creates threat for an international peace. If we achieved steady progress on a way of disarmament such position would be not so menacing. Unfortunately, business is very much the other way. Negotiations on restriction of strategic offensive arms have stopped, and any negotiations concerning many thousand so-called tactical nuclear ammunition which already are in arsenals, or concerning arms of other nuclear powers, besides the Russian Federation and the United States America, is not conducted at all. Besides if plans of expansion of systems of antimissile defense will not be developed with the consent of all interested parties the progress reached by present time in the field of reduction of a nuclear ammunition, can appear under threat of. That the states have been assured of preservation of the potential of nuclear restraint, it is necessary to strengthen trust. First of all we require new acknowledgement of that at the highest levels political adherence to reduction of threat which create both present arsenals of the nuclear weapon, and the future distribution is kept. To promote focusing of attention on the threat which has hung above us and on opportunities of its reduction available us, I suggest considering the problem on convocation of large international conference which would help to find ways of elimination of nuclear threat. References Charles Moxley, Nuclear Weapons and International Law in the Post Cold War World. Lanham, Maryland & Cumnor Hill, Oxford: Austin & Winfield, 2000; Elliott Meyrowitz, Prohibition of Nuclear Weapons: The Relevance of International Law. Dobbs Ferry, New York: Transnational Publishers, Inc., 1990. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of the International Court of Justice, July 8, 1996), UN Doc. A/51/218 (1996), 35 I.L.M. 809 & 1343 (1996). Saul Mendlovitz & Merav Datan, "Judge Weeramantrys Grotian Quest," in Transnational Law & Contemporary Problems Vol. 7 No. 2, Fall 1997. ICJ Advisory Opinion, Dissenting Opinion of Judge Weeramantry. Richard Falk, "The Grotian Quest" in R. Falk et al., eds., International Law: A Contemporary Perspective. Boulder, CO: Westview Press, 1985 (Studies on a Just World Order, No. 2). S.S. Lotus (Fr. V. Turk.) (1927), Permanent Court of International Justice Publications, Series A, No. 9, at 18 (Sept. 7). http://www.law.berkeley.edu/faculty/ddcaron/Courses/il/il02005.htm http://www.un.org/Depts/dda/WMD/npttext.html. http://www.un.org/Overview/Charter/contents.html. Read More