ICJ Nuclear Weapons Advisory Opinion Case Brief
Order ID 53563633773 Type Essay Writer Level Masters Style APA Sources/References 4 Perfect Number of Pages to Order 5-10 Pages Description/Paper Instructions
(Paras 74-87) Is IHL applicable to the use of nuclear weapons? Are there any exceptions?
Do the rules of customary IHL simply indicate the normal conduct and behaviour expected from States (para. 82) or are they binding on States? Even for the use of nuclear weapons?
Are the Geneva and Hague Conventions applicable to the use of nuclear weapons only insofar as they are customary law?
Can you imagine a specific use of nuclear weapons not prohibited by the principles referred to in para. 78 or by the treaties qualified as customary in para. 79, but which becomes unlawful because of the Martens Clause? Is it because of the Martens Clause that IHL covers the use of nuclear weapons, although no specific provision on those weapons exists?
Is Protocol I applicable to the use of nuclear weapons? Why should it not be? Are only the customary law rules of Protocol I applicable to the use of nuclear weapons? Only the rules which were already customary in 1977, when Protocol I was adopted? Or also those which have become customary in the meantime? Has customary IHL developed since 1977? Are those new rules of customary IHL applicable to the use of nuclear weapons? Even the rules which became customary under the influence of Protocol I?
(Paras 94-97, 105(2)E) Does IHL prohibit the use of nuclear weapons in every circumstance? Does the Court answer this question?
Is the Court unable to conclude definitively due to doubts about the law or doubts about the facts (i.e. because it cannot exclude the possibility of a situation arising in which nuclear weapons are so clearly targeted at a military objective and their effects limited to that objective or in which the civilian collateral damage is not disproportionate that their use conforms to all rules of IHL)?
Does the Court consider that nuclear weapons may be used in an extreme circumstance of self-defence, in which the very survival of a State is at stake?
Has the Court doubts as to whether they may be used in that circumstance? If the Court holds that the use of nuclear weapons would generally be contrary to IHL, but that it cannot exclude its legality in that extreme circumstance, is not the court, in fact, admitting that violations of IHL may be lawful in that extreme circumstance? Do such acts in that extreme circumstance become lawful under IHL or does jus ad bellum then override jus in bello?
May a belligerent torture prisoners of war, execute wounded on the battlefield or transport weapons in ambulances marked with the red cross emblem in an extreme circumstance of self-defence, in which the very survival of a State is at stake? Does IHL have to be respected when engaging in self-defence? Does IHL have to be respected even in an extreme circumstance of self-defence, in which the very survival of a State is at stake? Has the International Court of Justice doubts whether the answer is affirmative? What would the consequences of a negative answer be for IHL?
Who decides whether there is an extreme circumstance of self-defence, in which the very survival of a State is at stake? If a State is violating IHL in that extreme circumstance, what is the likely reaction of its adversary?
How do you explain the Courts division in answering the core question in para. 105(2)E, and that in its answer it seems to confuse jus ad bellum and jus in bello? What would the consequences for the Court and for IHL have been if the Court had given a positive or a negative answer? Would it have been better for IHL if the Court had concluded that the use of nuclear weapons may be lawful under IHL, rather than concluding that it is generally unlawful but may be justified in an extreme circumstance of self-defence, in which the very survival of a State is at stake?
(Para. 25) Is the right to life protected in armed conflicts only by IHL or also by international human rights law? Is not the right to life non-derogable under international human rights law, while IHL admits the right to kill combatants on the battlefield? Can the right to life be invoked against a specific belligerent act in an armed conflict before the UN Human Rights Committee (whose task is to monitor implementation of the UN Covenant on Civil and Political Rights) (See the Commission on Human Rights website: http://www.ohchr.org)?
(Paras 27-33) Is international environmental law applicable in armed conflicts?
Are the general treaties and customary rules on the protection of the environment applicable in armed conflicts?
Is the prohibition contained in Art. 35(3) of Protocol I simply properly to be taken into account when assessing whether an action is in conformity with the principles of necessity and proportionality, or must it be respected in all circumstances? Even when exercising the right of self-defence?
Are the principles of necessity and proportionality mentioned in para. 30 those of IHL? Or does this paragraph only concern jus ad bellum? Or does it mix up jus ad bellum and jus in bello?
(Para. 43) Is the principle of proportionality referred to in para. 43 (and the values to be taken into account) the same as in Art. 51(5)(b) of Protocol I?
(Para. 55) Why are nuclear weapons not poisonous within the meaning of the prohibition of poisonous weapons in IHL? Because poison operates through a chemical process and radioactivity is a physical process?
(Paras 64-73) Is the fact that nuclear weapons have never been used since 1945 proof of a customary law prohibition of the use of nuclear weapons, particularly considering that many armed conflicts have been fought since then including those in the exercise of the right to self-defence and that some of them were lost by States possessing nuclear weapons?
Which aspects of this Advisory Opinion are helpful or harmful to IHL or to the victims of armed conflicts? Would it have been preferable if this opinion had never been requested? Does this opinion show a general direction in which contemporary international law is developing, and if so, what does this direction mean for IHL?
RUBRIC
QUALITY OF RESPONSE NO RESPONSE POOR / UNSATISFACTORY SATISFACTORY GOOD EXCELLENT Content (worth a maximum of 50% of the total points) Zero points: Student failed to submit the final paper. 20 points out of 50: The essay illustrates poor understanding of the relevant material by failing to address or incorrectly addressing the relevant content; failing to identify or inaccurately explaining/defining key concepts/ideas; ignoring or incorrectly explaining key points/claims and the reasoning behind them; and/or incorrectly or inappropriately using terminology; and elements of the response are lacking. 30 points out of 50: The essay illustrates a rudimentary understanding of the relevant material by mentioning but not full explaining the relevant content; identifying some of the key concepts/ideas though failing to fully or accurately explain many of them; using terminology, though sometimes inaccurately or inappropriately; and/or incorporating some key claims/points but failing to explain the reasoning behind them or doing so inaccurately. 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