This Note argues that customary international law does not prohibit the use of nuclear weapons in self-defense. Part I describes the characteristics of nuclear weapons, including their destructive capabilities and health effects. Part I also discusses the development of the laws of war and the process by which a generally accepted principle or practice ascends to customary international law. Further, Part I presents existing treaties concerning non-proliferation and other nuclear weapons-related issues. Part II examines the application of the laws of war to nuclear weapons use and the resulting conflict over the legality of the use of nuclear weapons. Part III argues that the international community has neither expressly consented to nor evidenced their intent to accept a ban on nuclear weapons use. Customary international law, therefore, does not contain a rule forbidding the use of nuclear weapons in all circumstances. This Note concludes that prospective measures designed to deter the use and proliferation of nuclear weapons are more effective than a decision determining the legality of nuclear weapons.
Jill M. Sheldon,
Nuclear Weapons and the Laws of War: Does Customary International Law Prohibit the use of Nuclear Weapons in all Circumstances?,
20 Fordham Int'l L.J. 181
Available at: http://ir.lawnet.fordham.edu/ilj/vol20/iss1/5