image(left): Wikimedia Commons, US President John F. Kennedy shaking hands with Soviet leader Nikita Khrushchev.
image(right): U.S. DepartmentofDefense, Marine Corps Gen. Joe Dunford, chairman of the Joint Chiefs of Staff, and Gen. Fang Fenghui of the Chinese army, chief of China’s joint staff, sign the joint strategic dialogue mechanism following a roundtable discussion at the Ba Yi, the People’s Liberation Army headquarters in Beijing, Aug. 15, 2017. DoD photo by Navy Petty Officer 1st Class Dominique A. Pineiro.
Throughout the nuclear age, states have made a wide array of threats to use nuclear weapons. There is, however, often little clarity as to whether such threats are legal or illegal under international law. This article is the second in a two-part series, and in this piece we examine how two specific sets of international legal rules apply to select examples of past nuclear threats. In particular we analyse the legality of certain threats under the jus ad bellum regime of international law that regulates recourse to war between states, before turning to consider specific threat examples in the context of the jus in bello regime, which applies to regulate the conduct of hostilities during an armed conflict. Throughout the article, we identify a number of complexities and deficiencies in the ways that the rules of jus ad bellum and jus in bello apply to nuclear threats in practice.
Keywords: Nuclear weapons; international law; threat of force; nuclear threat
Authors’ Profile:
Ulrich Kühn is Director of the Arms Control and Emerging Technologies Program at IFSH, University of Hamburg, and a Non-Resident Scholar with the Nuclear Policy Program, Carnegie Endowment for International Peace.
Heather Williams is the Director of the Project on Nuclear Issues at the Center for Strategic and International Studies. She is also an associate fellow with the Project on Managing the Atom, Harvard Belfer Center.
Throughout the nuclear age, states have made a wide array of threats to use nuclear weapons. There is, however, often little clarity as to whether such threats are legal or illegal under international law. This article is the second in a two-part series, and in this piece we examine how two specific sets of international legal rules apply to select examples of past nuclear threats. In particular we analyse the legality of certain threats under the jus ad bellum regime of international law that regulates recourse to war between states, before turning to consider specific threat examples in the context of the jus in bello regime, which applies to regulate the conduct of hostilities during an armed conflict. Throughout the article, we identify a number of complexities and deficiencies in the ways that the rules of jus ad bellum and jus in bello apply to nuclear threats in practice.
Keywords: Nuclear weapons; international law; threat of force; nuclear threat
Authors’ Profile:
Dr Anna Hood is an associate professor at the University of Auckland’s Faculty of Law. Her research focuses primarily on international law and security, and international disarmament law. Within international disarmament law she has particular expertise in, and has published widely on, nuclear weapons law. She is the co-editor, with Dr Treasa Dunworth, of the book Disarmament Law: Reviving the Field (Routledge, 2020) and she has been awarded multiple grants for her work on international disarmament law. In addition to her academic research, Anna provides international law advice to a range of civil society organisations, think tanks and governments.
Dr Monique Cormier is a Senior Lecturer in the Monash University Faculty of Law. Her primary research interests include jurisdiction and immunities in international law and legal issues relating to nuclear non-proliferation. Recent publications include The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties (Cambridge University Press, 2020) and ‘Can Australia Join the Nuclear Ban Treaty without Undermining ANZUS?’ (Melbourne University Law Review, 2020, co-authored with Anna Hood).
The international legal status of threats to use nuclear weapons is uncertain. In this article, we map existing prohibitions against nuclear threats at international law and seek to explain the scope and remit of such laws. To that end, the article explores unilateral negative security assurances; prohibitions on threats to use nuclear weapons in international agreements (including the TPNW, the nuclear weapons free zone treaties and their protocols, and the 1994 Budapest Memorandum); the rules concerning threats in the jus ad bellum regime; and the rules relating to threats in the jus in bello regime. Where there is disagreement about the way these international laws apply to threats to use nuclear weapons, we explain the different views and their significance, and we identify where there are gaps in the existing legal framework. This article is the first in a two-part series on the legality of nuclear threats.
Keywords: Nuclear weapons; international law; threat of force; nuclear threat
Authors’ Profile:
Dr Anna Hood is an associate professor at the University of Auckland’s Faculty of Law. Her research focuses primarily on international law and security, and international disarmament law. Within international disarmament law she has particular expertise in, and has published widely on, nuclear weapons law. She is the co-editor, with Dr Treasa Dunworth, of the book Disarmament Law: Reviving the Field (Routledge, 2020) and she has been awarded multiple grants for her work on international disarmament law. In addition to her academic research, Anna provides international law advice to a range of civil society organisations, think tanks and governments.
Dr Monique Cormier is a Senior Lecturer in the Monash University Faculty of Law. Her primary research interests include jurisdiction and immunities in international law and legal issues relating to nuclear non-proliferation. Recent publications include The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties (Cambridge University Press, 2020) and ‘Can Australia Join the Nuclear Ban Treaty without Undermining ANZUS?’ (Melbourne University Law Review, 2020, co-authored with Anna Hood).
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