The Prohibition of Nuclear Weapons in Light of the Prohibition of Genocide and Jus Cogens Norms

Abstract

This article addresses whether the threat or use of nuclear weapons entails intent to commit genocide, thus violating the Genocide Convention and, therefore, whether the use of such weapons is a violation of jus cogens (peremptory) norms contrary to the greater human interest and the fundamental values that ground international law. The extended argument advanced here answers in the affirmative. It is grounded in a moralphilosophical conceptual framework on justice and practical rationality elaborated by moral philosopher Alasdair MacIntyre and a perspective on international law that emphasizes associative obligations of States (contrary to State claims of 'unrestricted sovereignty') and the principle of salience (in contrast to the principle of consent) as elaborated by Ronald Dworkin. The authors conclude with a reminder of the ineradicable ambiguity and lack of fail-safe mechanisms in chains of command in nuclear security decision-making, as was manifested e.g., during the Cuban Missile Crisis.

Keywords: International law, Nuclear weapons, Peremptory norms (jus cogens), , Humanitarian law, Moral Legal Philosophy, law, legal, public international law, legal philosophy