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Nuclear Blackmail in International Legal System with Focus on Nuclear Weapon Ban Treaty of 2017

Nuclear blackmail entails resorting to nuclear threats, by which the threatener seeks to realize financial gain or obtain other concessions. The concept of threat means the use of destructive power of nuclear energy, including the threat of releasing radioactive materials or the threat of using nuclear weapons. Accordingly, nuclear blackmail would work through nuclear intimidation.
June 2020
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Seyyed Mostafa Meshkat, Abumohammad Asgarkhani

Nuclear blackmail entails resorting to nuclear threats, by which the threatener seeks to realize financial gain or obtain other concessions. The concept of threat means the use of destructive power of nuclear energy, including the threat of releasing radioactive materials or the threat of using nuclear weapons. Accordingly, nuclear blackmail would work through nuclear intimidation.

 Thus, the issue of nuclear blackmail entails nuclear threats, which may include the threat of using nuclear weapons or other nuclear explosive devices, or the threat of releasing nuclear materials, including nuclear waste.

 Nuclear blackmail has come into being since around the mid-20th century. It was for the first time used by the US during the Korean War. The Soviet Union later resorted to nuclear blackmail amid the Suez Crisis. The pervasiveness of nuclear technology has raised the potential for the fulfillment of nuclear blackmail.

 The main adverse consequences of the nuclear blackmail approach include a threat against international peace and security, the pervasive production of nuclear weapons under the nuclear deterrence policy, the violation of international humanitarian law in wartime, and the violation of nuclear security.

 Nuclear Blackmail in the International Legal System

 

  1. International Documents

 Although the prohibition of nuclear blackmail had not been specifically mentioned in the international documents prior to the 2017 Treaty on the Prohibition of Nuclear Weapons, a series of documents have applied to certain issues that pertain to such activities. Among such documents is the United Nations Charter which forbids all members from resorting to the threat or use of force.

 All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Article 2(4) of the UN Charter stipulates that “all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

 As a result, both the threat and use of force have been equally mentioned in legal terms. Although the threat or use of force has been strictly forbidden, the document has not provided a precise definition of the term ‘threat’. Moreover, no answer has been still provided as to whether or not this article applies to the threat of using nuclear explosive devices (excluding nuclear weapons) or the threat of releasing nuclear materials.

 Furthermore, Article 3 of the Resolution 984 adopted by the UN Security Council in April 1995 stipulates that “in case of aggression with nuclear weapons or the threat of such aggression against a non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons, any State may bring the matter immediately to the attention of the Security Council to enable the Council to take urgent action to assist, in accordance with the Charter, to the State victim of an act of, or object of a threat of, such aggression.”

 Another group of international documents on nuclear blackmail is the treaties on the establishment of Nuclear-Weapon-Free Zones (NWFZs). Those treaties have not explicitly mentioned the prohibition of the threat of using nuclear weapons, but since their topic is the establishment of Nuclear-Weapon-Free Zones, it could be inferred that the prohibition of threat of using nuclear weapons has been a subject of tacit agreement among the signatories.

 

  1. Customary International Law

 At present, the customary international law does not contain any specific international principle defining a rule on the nuclear blackmail. Nor, does the customary international law contain any rule on the legality or illegality of the threat or use of nuclear weapons, according to an advisory opinion given by the International Court of Justice (ICJ) on 8 July 1996.

 

  1. Judicial Rulings

 The International Court of Justice has not issued any ruling on the nuclear blackmail so far. However, according to the advisory opinion of the International Court of Justice (ICJ) on 8 July 1996 concerning the legality of the threat or use of nuclear weapons, no definite ruling has been provided to the international community on the threat or use of nuclear weapons, and the court could not make a decision either on legality or illegality of the threat or use of nuclear weapons. The advisory opinion of the court notes that there is neither a customary international law nor an international treaty on the comprehensive and universal prohibition of the threat or use of nuclear weapons. As a result, it must be mentioned that in the opinions given by the ICJ about the threat of using nuclear weapons, which amounts to the nuclear blackmail, no ruling has been issued so far.

  

2017 Treaty on the Prohibition of Nuclear Weapons

 Following the adoption of the Treaty on the Prohibition of Nuclear Weapons, addressing nuclear blackmail in the international legal system entered a new phase. The treaty is the first international document that prohibits all State parties from using, possessing, developing, and stockpiling nuclear weapons. A key point in the treaty is that the legality of the nuclear deterrence policy has been challenged. One of the strong points of the treaty is that the issue of threat has not been confined to the nuclear weapons alone, but applies to all nuclear explosive devices. Clause (d) of Article 1 of the treaty notes, “Each State Party undertakes never under any circumstances to: (d) Use or threaten to use nuclear weapons or other nuclear explosive devices.”

 One of the positive measures taken in drafting the Treaty is that the State Parties have been obligated to impose penal sanctions to prevent and suppress any activity prohibited under the Treaty. According to clause 2 of Article 5, each State Party must impose the penal sanctions regarding any activity prohibited under the Treaty, including the nuclear blackmail.

 Since a series of measures threaten the international order, according to the latter part of the clause 2 of Article 5 about the prosecution of and penalties for the activities prohibited under the Treaty, the territorial and the universal jurisdiction have become the focus of attention together.

 It is evident that the Treaty on the Prohibition of Nuclear Weapons is a milestone in the fight against nuclear blackmail, considering that the Treaty obligates the State Parties to adopt preventive measures, imposes broad jurisdiction arrangements, defines easy conditions for binding instruments, recommends devising penal sanctions, and absolutely forbids the threat of using nuclear weapons or other nuclear explosive devices.

 However, the lack of a clear definition and determination of the scope of concepts such as threat, nuclear weapons, and nuclear explosive devices are among the shortcomings in the Treaty, because the threat of releasing nuclear materials also amounts to the nuclear blackmail, which has not been declared illegal in the Treaty.

 The original article is available in the Foreign Policy quarterly, year 33, volume 3, fall 2019.

(The opinions expressed are those of the authors and do not purport to reflect the opinions or views of the IPIS)

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