Simulated ICJ Judgment : Revisiting the Lawfulness of the Threat or Use of Nuclear Weapons

The author prepared this simulated judgment at the request of Cadmus editors to demonstrate that there is ample ground for revisiting and revising the landmark 1996 advisory opinion of the ICJ on the legality of nuclear weapons. The ICJ failed to anticipate the proliferation of nuclear weapons, which expands the evolution of the concept of sovereignty, the potential cataclysmic impact of nuclear war on climate change, the multiplication of nuclear-weapon-free zones as evidence of a widespread rejection, mounting evidence regarding the physical and psychological harm, and unwillingness of the nuclear weapons states to fulfill their obligations under the NPT. This article challenges the notion that a few sovereign states should be the sole arbiters of international law and affirms the legitimate claim of the global community of protection from the existential threat posed by nuclear weapons. The use or threat of use undermines foundational values of the international legal system and the specific rules of self-defense and humanitarian law. The contribution seeks to give an accentuated role for the explicit use of the fundamental values of international legal order, in crafting an innovative methodology for the formulation of the judgment. The very existence of these weapons undermines the rights of all of humanity. The ICJ should be moved to categorically declare the use and possession of nuclear weapons a crime against humanity.