Is War a Legal Emergency? Implications for the Permissibility of Nuclear Strikes

• In Event: Rethinking the Strategy, Law, and Ethics of Nuclear Weapons

Abstract

This paper develops the concept of a “hybrid emergency” to capture the status of war in the global legal order and articulates a coherence account of the permissibility of using nuclear weapons. The unilateral resort to force by state A against state B triggers both an exceptional empowerment of state B to use force within the law (what I call a member emergency) and an emergency exception to the rule of international law (referred to as a community emergency) for both states to fight until one overcomes the other militarily. I argue that in as much as war loses the status of a community emergency and becomes merely a member emergency, i.e. a legally circumscribed self-defense empowerment, the coherence of international law demands a general prohibition on the use of nuclear weapons. The currently ambiguous status of war as a hybrid emergency, in turn, undercuts the argument for a general prohibition on the use of nuclear weapons as recently formulated in the Nuclear Weapons Ban.

Author

• Janina Dill, University of Oxford