One casualty of the second Cold War was abandoning many landmark nuclear arms control treaties in the last Cold War and the post-Cold War years.
In addition, the second Cold War has brought a lot of bluster when it comes to using nuclear weapons, an issue addressed in John Burroughs' story "The Inadmissibility of Nuclear Threats". In the summer and autumn of 2017, the United States and North Korea exchanged incendiary warnings of nuclear destruction. In 2019, Pakistan referred to a possible nuclear war in connection to its dispute with India over Kashmir. In recent months, North Korean leader Kim Jong Un reiterated his country's readiness to resort to nuclear arms to defend its fundamental interests. The Russian government, on numerous occasions, beginning with President Vladimir Putin's speech in 2022, has raised the possibility of resorting to nuclear weapons should the United States and its NATO allies intervene to defend Ukraine against the full-scale Russian invasion.
Burroughs said: "Such threats are utterly unacceptable, above all because they greatly increase the risks of a humanitarian and environmental catastrophe resulting from the use of nuclear weapons. The position adopted by the G-20 states, an intergovernmental forum that includes the world's major powers, in a declaration in Bali in November 2022 is striking. The declaration states in part, 'It is essential to uphold international law and the multilateral system that safeguards peace and stability. This includes defending all the Purposes and Principles enshrined in the Charter of the United Nations and adhering to international humanitarian law, including the protection of civilians and infrastructure in armed conflicts. The use or threat of use of nuclear weapons is inadmissible.'" Is a declaration of the "inadmissibility" of the threat and the use of nuclear arms an articulation of a political norm, or does it also have a legal dimension? After all, the reference to inadmissibility does have a legal flavor; in a trial, evidence is found to be admissible or inadmissible. Further, there is a strong case to be made that threats of nuclear weapons use are illegitimate and contrary to international law.
That is true under the law governing when the resort to force is lawful and under the law governing the conduct of conflict, the law of armed conflict, or international humanitarian law. Article 2(4) of the UN Charter said that "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". If using force violates the mentioned Article, a threat to engage in such force violates that article. As the International Court of Justice stated broadly in its 1996 nuclear weapons advisory opinion, "The notions of 'threat' and 'use' of force under Article 2, paragraph 4, of the Charter stand together in the sense that if the use of force itself in a given case is illegal--for whatever reason--the threat to use such force will likewise be illegal."
So, the threat to use nuclear weapons as part of an aggressive attack is illegal. That certainly applies to the nuclear threats made in support of Russia's invasion of Ukraine. The Treaty for the Prohibition of Nuclear Weapons is international law's manifestation of the view of a majority of the world's states that the threat or use of nuclear arms is illegal. In the 2017 Treaty on the Prohibition of Nuclear Weapons and the UN Human Rights Committee's 2018 General Comment on the right to life, the committee found that "the threat or use of weapons of mass destruction, in particular a nuclear weapon is incompatible with respect for the right to life and may amount to a crime under international law", said Burroughs. Such views were also expressed by the International Court of Justice.
Of course, international law is hard to enforce without an inadequate enforcement mechanism. However, if states like Russia would refrain from threatening nuclear war, then perhaps an international norm, which one might be able to define as international law, would emerge. When can we start with this norm?
Jason Sibert is the Lead Writer of the Peace Economy Project
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