Nuclear as by expressing consent ** the opinio

Nuclear weapon itself has been an issue starting from
its creation, as the aims for the construction of it at the core base was to
use it as the means and instrument of war. Starting from the first usage of it,
which is registered as at the end of World War II it lead to huge discussions
and almost the whole United Nations systems was build on the peacekeeping and future potential of use nuclear
weapon, as in a history it Now the issue of nuclear weapon prohibition is at its
peak, North Korea is not *??
??????* threatening the world with its nuclear weapon, the *escalation* of
discussions regarding the law on prohibiton of nuclear weapon. * (((Even by the end of Cold War status of nuclear
weapon did not received something concrete and exact, as two super powers were
competing with each other as well as in the possession of this terrifying
weapon…)))
The situation with North Korea is even worsening and complicating the situation
around this issue by creating more Now it’s a huge issue in defining whether there is a
certain customary law that prohibits use of nuclear weapon or not. There is a
significant legal gap in the international law As said *citation form
Nyuesten’s work*INTRO1.1:Customary law itself is not really factual thing, it’s
more about moral perception of each individual and county, customary law has Customary
law is created and formed basing on the existing law?? The difference between customary and treaty law
relatively is quit significant. As scholar Joshua Pollack points customary law
has more value than a treaty law, in comparison, customary law is more powerful
as it could be applied for everyone, even in the absence of signs of some
countries, while treaties could work only to those ones who signed it.1In the ICJ Statute the definition for the customary
law was given as «evidence of a general practice accepted as law»2, so
that states should have accept it, as well as by expressing consent ** the
opinio juris… As it was noted in the work of  Karol Wolfke “a true custom is not intentionally
created by anybody.”, it is actually something that develops during some
time and became «naturally» common law for everyone.3 Custom
The issue of illegality of the use of nuclear weapon
still is under question and on the venge of discussion. The resolution of this
issue is actually very critical, as it causes a lot of disputes and conflicts
on the basis of it,The meanings of possession and use in fact have some
differences, even in the legal means, There is a “paragone” between possession, threat and
use.- Article 51, does no allow states to use threat to defendMAIN BODY:The question regarding the legal basis for using the
nuclear weapon is still under question, as from the one hand there is a Nuclear
Proliferation Treaty, which was ratified by the majority of countries in the
world, however it does not specifically ban the use of nuclear weapon. From the
other hand there was also issued by ICJ Advisory Opinion of 1996 on the
Legality of the Threat or Use of Nuclear Weapons, which itself is quit
controversial and still not clear, whether countries are actually permitted to
use nuclear weapon or not. Here we have very important legal issue for the
world peace and stability… According to customary international
humanitarian law which is binding on all States and on all parties to an armed
conflict, the use of biological and chemical weapons is prohibited .This norm is based on the ancient taboo
against the use in war of ” plague and poison ” , which has been
passed down for generations in diverse cultures. It was most recently codified
in the 1925 Geneva Protocol and subsequently in the 1972 Biological Weapons
Convention and in the 1993 Chemical Weapons Convention. The great majority of
States are parties to these three treaties. The prohibitions based on these
texts cover not only the use, but also the development, production and
stockpiling of biological and chemical weapons.It should be emphasized that in situations of
armed conflict this absolute prohibition applies to all biological
and chemical agents, whether labelled ” lethal ” or ” non-lethal
” . For example, even the use of riot control agents which is permitted
for domestic riot control purposes is prohibited in situations of armed
conflict. (https://www.icrc.org/eng/resources/documents/misc/5ksk7q.htm) ARGUMENT 1- There’s a customary law NPT-? Why not? NPT was signed in 1968 by UN GA members
Later
on in 2015-2017, 2010-2017 there were held discussions regarding the
modification and renewel of NPT , which lead **development of nptAlso,
there exist NPFZ, however, this treaty is not accepted globally, only #, the
NPFZ is composed of several treaties. In comparison with NPT it *?????????? ??????? ?????? problem On 20
September, 2017 officially was opened the 4Nuclear
Weapons ban test, was created and formed, it’s still not ratified, but in the
process, # of states signed it,But major problem here is that “great powers”
didn’t voted yet.  IHL-  ihl
customary law, according to International Red Cross Organization, which hugely
supports the movement of  .In jus in
bello, jus ad bellum, and Hague treaty it is prohibited to attack
non-combatants, and . There is international customary humanitarian law. There
could be a clue for the customary law In the submissions of IALANA and SLND to the UN Human
Rights Committee they claim that the only fact of possession of nuclear weapon
already violates the right to life described in the international humanitarian
law.5
The use of it will then completely contradict to the core values of the international
humanitarian law, so that could be considered as breach of populations safe
co-existence in this world.  From our point of view, the right to
life is violated even if, implausibly, nuclear weapons are possessed and
deployed indefinitely into the future but not used.*Geneva Protocols*Environmental treaty, also, does
not accept nuclear weapon as such. As an example hubokusya-japanese sufferers.*Movements- Semey, Nevada, to stop
and eliminate all nuclear weapons.*US-NK fight regarding nuclear battle,
which is even looks worth than during cold war times. Critics of NK, by UK, bla
blah*Why should Pakistan, India, Israel,
NK accept nuclear disarmament? Critics, *Even
for the self-defense, there were a discussion regarding ARGUMENT
2- There’s no Customary Law The
existence of Advisory Opinion do completely under If to take into consideration Marshall island’s case
of 2014, when applicant’s submission was rejected by the Court, as there wasn’t
any jurisdiction, so that UK, Pakistan and India did not violate the not
existing law, that prohibits possession of nuclear weapon. *** The Advisory Opinion on the Legality of the Threat or
Use of Nuclear Weapons, which was requested by General Assembly,  oppositely to the pre in the Advisory
Opinion of 1996 the Court found that «There is neither customary nor
conventional international law on 
comprehensive and universal prohibition on the threat or use of nuclear
weapons as such». From that follows that Court is not really telling us *** The Nuclear Proliferation Treaty does not include
in its *** There has been justified the use of nuclear weapon
in the conditions of jus ad bellum and jus in bello, in the book of Gro
Nuyuesten, were considered these 2 conditions of war and right to go to war,
gave as a hint, explains somehow that in the sake of defense, the weapon could
be usedSelf-defense, CONCLUSION:With the “absence” of real prohibition in
international law US is actively showing it’s intentions to enlarge the use of
nuclear weapon, Trump is saying it in response to NK (https://www.theguardian.com/us-news/2017/dec/18/nuclear-weapons-trump-national-security-strategy).  The world should have accept and
come up to the common decision as the maintenance of com. Possession at least of 5 well-known
members of Security Council creates the dissonance in the world, as they have
to reflect the ideal security and peacekeepers of international arena and
politics, but how can other states trust them and accept the idea of complete
disarmament of nuclear weapon? How could co-exist customary law on
the prohibition of use of nuclear weapon, while there are still some states
that do possess and even do not have intentions to give up their weapon, this
notion creates contradiction. The world should decide whether it wants to live
without nuclear weapon or it wants to keep it as well as to preserve the world
security, as the state do justifies it.  There
should be only one way, so states could have equality and proportional
distribution of the rights of each state. Here comes the liberalistic approach
of the world (?), international order mostly depends on the main figures of the
Security Council. On July, 2017 UK made a claim that
they will not sign the Treaty on Nuclear Weapon Prohibition, as from their
point of view it does not take the world for global and complete nuclear
disarmament. The states that already possess nuclear weapon shall not refrain
from it, as it will complicate and put under danger the international security,
as long as UK and other members of Security Council has this weapon in their
arsenal, the world peace is not under threat.6Also, in the publication of Foreign and
Commonwealth office of UK they tried to show that the role of this treaty is
not so crucial and would not play legally binding role “the UK would not accept
any argument that this treaty can constitute a development of customary
international law binding on the UK or on other non-parties” by stating it UK
created a significant barrier in enforcing this law.7
 However, not only UK showed it’s
negative attitude to the treaty, as well as remaining 4 members and possessors
of nuclear weapon expressed their readiness to resist to the treaty. They are
going preserve their point of view of strong opposition regarding the treaty
and it is clear that they are not intended to make an effort to ratify the
treaty. For the UK, US and France adoption of this treaty does not seem as
something critically necessary to change the world’s order, moreover it may
affect on the NPT core rules that permits the permanent members of Security
Council to possess this weapon. “A ban treaty also risk undermining the
existing international security architecture which contributes to the
maintenance of international peace and security”, from that follows that these
states care more about keeping nuclear weapon and are convinced that it allows
them to control the situation and conquer other potential threats for the world
security by meaning as well as the recent situation with North Korea’s nuclear
program.8However, scholar Gaukhar Mukatzhanova
is more positive about the future of this treaty, the fact that 122 states
voted for the approval of the final-text of the treaty means a lot that give us
a hope** ???????????????Despite the fact that still some
states do not accept the law, but if this number increases it may give an
effect of the domino effect and consequently at the end it may gradually shift
to the path of customary law.

1 Joshua Pollack. The legal implications of the nuclear ban:
separating fact from fiction. Arms Control Wonk blog (26 May, 2017).

Retrieved from:

Brixey-Williams on the legal implications of the nuclear ban

2 The International Court of Justice Statute ICJ Statue, Article 38 (1)(b)

3 Karol Wolfke, Custom in present
international law XIV (1993, 2nd edition) pp.52-53  

 

4

5 D,Rietiker and J.Burroughs, International Association of
Lawyers against Nuclear Arms(IALANA). Threat
or Use of Weapons of Mass Destruction and the Right to Life: Follow-up
Submissions to the UN Human Rights Committee on draft General Comment no. 36.(5
October, 2017). Retrieved from: https://safna.org/2017/10/05/threat-or-use-of-weapons-of-mass-destruction-and-the-right-to-life-follow-up-submissions-to-the-un-human-rights-committee-on-draft-general-comment-no-36/

 

 

 

6 Foreign
and Commonwealth Office of UK, UK
statement on treaty prohibiting nuclear weapons.(8 July, 2017). Retrieved
from https://www.gov.uk/government/news/uk-statement-on-treaty-prohibiting-nuclear-weapons

7 Ibidem.

8 US. Mission to the United
Nations, “Joint Press Statement From
the Permanent Representatives to the United Nations of the United States,
United Kingdom, and France Following the Adoption of a Treaty Banning Nuclear
Weapons,” (7
July, 2017). Retrieved from: https://usun.state.gov/remarks/7892