A legal obligation to ban nuclear weapons
a. Global citizens need a promise from the Nuclear Weapon States to eliminate the nuclear weapons they possess.
DONE! This promise was originally given in the Treaty on the Non-Proliferation of Nuclear Weapons (the NPT). Under the NPT, all States Parties have agreed as follows:
Article VI: Each of the parties to the Treaty undertakes to pursue negotiations in good faith 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.
This promise was confirmed in May 2000 at the Review Conference on the NPT. All 187 States Parties to the NPT agreed on 13 practical steps for the implementation of Article VI of the NPT. Step 6 reads as follows:
6. An unequivocal undertaking by the nuclear-wean States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament to which all States parties are committed under Article VI.
b. Global citizens had to make clear that nuclear weapons are illegal.
In response to a citizens' action called The World Court Project, the UN General Assembly called upon the International Court of Justice (the "ICJ" or "World Court") to render an advisory opinion on the legality of the use and threat of use of nuclear weapons. The , The ICJ advised on July 8, 1996 that:
"...the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law".
The Court stated it could not reach "...a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake".
But the Court said that any use of any weapons is bound by the rules of international humanitarian law. These rules require that the use of any weapon:
must be proportional to the initial attack,
must be necessary for effective self-defence,
must not be directed at civilians or civilian objects,
must be used in a manner that makes it possible to discriminate between military targets and civilian non-targets,
must not cause unnecessary or aggravated suffering to combatants,
must not affect States that are not parties to the conflict, and
must not cause severe, widespread, or long-term damage to the environment.
This is just a partial list of the rules established by the UN Charter and the Geneva Conventions which govern the use of weapons during war.
Thus the use and threat of use of nuclear weapons has, for all practical purposes, been declared illegal by the Court. We ignore that law at the peril of all humanity.
c. Global citizens had to make clear that negotiations on a ban are to begin and be concluded.
DONE! The International Court of Justice in its July 8, 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons examined Art. VI of the NPT and concluded:
Unanimously, There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective control.
Thus all states are obligated to start and conclude negotiations for nuclear disarmament.
The Advisory Opinion of the International Court of Justice:
Canada, IHL and Nuclear Weapons, a Brief History: here
d. The development of international humanitarian law has made even stronger the call for a global legal ban on nuclear weapons.
In 2010, the Swiss and Austrian governments funded work by the Monterey Institute on the implications of international humanitarian law on nuclear weapons. They have published Delegitimizing Nuclear Weapons: Examining the Validity of Nuclear Deterrence.
2011, a meeting of international lawyers concluded with the publication of the Vancouver Declaration: Law's Imperative for the Urgent Achievement of a Nuclear-Weapon-Free World which notes that recent progress in the development of international humanitarian law makes even more imperative work on a global ban on nuclear weapons. That Declaration in part said:
The ICJ’s declaration that nuclear weapons are subject to international humanitarian law was affirmed by the 2010 Nuclear Non-Proliferation Treaty (NPT) Review Conference. In its Final Document approved by all participating states, including the nuclear-weapon states, the Conference “expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons, and reaffirms the need for all states at all times to comply with applicable international law, including international humanitarian law.”
It is unconscionable that nuclear-weapon states acknowledge their obligation to achieve the elimination of nuclear weapons but at the same time refuse to commence and then “bring to a conclusion,” as the ICJ unanimously mandated, “negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”
In statements made during the 2010 NPT Review Conference, one hundred and thirty countries called for a convention prohibiting and eliminating nuclear weapons globally. And the Conference collectively affirmed in its Final Document “that all states need to make special efforts to establish the necessary framework to achieve and maintain a world without nuclear weapons,” and noted the “five-point proposal for nuclear disarmament of the Secretary-General of the United Nations, which proposes, inter alia, consideration of negotiations on a nuclear weapons convention or agreement on a framework of separate mutually reinforcing instruments, backed by a strong system of verification.”
An “absolute evil,” as the President of the ICJ called nuclear weapons, requires an absolute prohibition.