Nuclear Weapons in the 21th Century - A Legal Examination of the Possession of Unmodern Nuclear Weapons and International Law

Abstract: In its Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons, the ICJ affirmed that the principles and rules of IHL and international environmental law are applicable to the question of nuclear weapons. Further, the effects of a nuclear weapon explosion are undoubtedly disastrous, it is however not the effects of a detonation that separates unmodern nuclear weapons from modern nuclear weapons, it is their respective level of security. Modern nuclear weapons are equipped with Permissive Action Links and tamper resistance, which makes them practically impossible to detonate, even under the most optimum circumstances, without an authorizing code. Unmodern nuclear weapons do not have these modern security features which makes an unauthorized detonation practically possible. In the fields of IHL and international environmental law there are two rules that have direct legal consequences for the possession of unmodern nuclear weapons: Article 58, paragraph B of Additional Protocol I and Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, Article 3. Article 58, paragraph B of Additional Protocol I, limits the possibilities of placements for nuclear weapons (both modern and unmodern). States are not allowed to place nuclear weapons in, or in the near proximity of, densely populated areas. The restriction in question derives from the threat that nuclear weapons pose to the public by their destructive capabilities. In the field of international environmental law, Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, Article 3, prescribes that all States shall take all appropriate measures to prevent significant transboundary harm or at any event to minimize the risk thereof. The obligation to act preventive is limited to hazardous activities a category which nuclear activities is a part of. Draft Article 3 could be interpreted as prohibiting the existence of unmodern nuclear weapons, or at least prescribing States to keep them in safe locations. Nevertheless, does Draft Article 3 constitute the most influential part of international law regarding the legal relationship between the possession of unmodern nuclear weapons and international law.