著者

山田 寿則

出版者

文教大学

雑誌

文教大学国際学部紀要 = Journal of the Faculty of International Studies Bunkyo University (ISSN:09173072)

巻号頁・発行日

vol.28, no.1, pp.141-161, 2017-07-31

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In this paper we will examine the legal situation on the threat or use of nuclear weapons andhow the legal argument progresses under the humanitarian approach to nuclear disarmamentas preliminary observations for the treaty to prohibit nuclear weapons on which now are undernegotiations.The upcoming treaty is based on the assertion that it is legally required to identify and pursueeffective measures to fill the legal gap for the prohibition and elimination of nuclear weapons. Butwith regard to the threat or use of nuclear weapons, there is no gap in the law. International Courtof Justice (ICJ) identified several legal principles and rules applicable to nuclear weapons in its1996 Advisory Opinion. Its “non liquet ” on “an extreme circumstance of self-defence” was causedby inappropriate application of the principles and rules to nuclear weapons inadequately for somereasons.All Nuclear Weapon States explicitly or implicitly acknowledge the application of internationallaw, and especially international humanitarian law (IHL) to nuclear weapons. Under the discourse ofthe humanitarian approach to nuclear disarmament, many states and commentators also insist theiropinions on the premise of applicability of IHL. There is gap not in the law, but in application of the law.Against this legal background, the upcoming treaty should be carefully formed to strengthen thelaw against nuclear weapons.