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protection,93 as well as to guard against the continued propagation of cyber attacks.  As has been stated though, a new comprehensive international regime that builds on these treaties would be preferred to the currently available system.


The Analogy of Nuclear War

In 1994 the United Nations General Assembly (“UNGA”) voted to submit a request for an advisory opinion to the ICJ on the question of whether the threat or use of nuclear weapons could ever be lawful.  The U.S. argued in the case that nuclear weapons cannot be banned in the abstract, but rather each case must be examined individually.  Ultimately the Court stated that the threat or use of nuclear weapons “would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.”  But “in view of the current state of international law, and of the elements of fact at its disposal, the court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”94  The ICJ went on to state that:

[T]he principles and rules of law applicable in armed conflict—at the heart of which is the overriding consideration of humanity—make the conduct of armed hostilities subject to a number of strict requirements.  Thus, methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited.  In view of the unique characteristics of nuclear weapons, to which the Court has referred above, the use of such weapons in fact seems scarcely reconcilable with respect for such requirements.95

93 Kenneth Watkin, Controlling the Use of Force: A Role for Human Rights Norms in Contemporary Armed Conflict, 98 AJIL 1 (Jan.  2004).

94 Nuclear Weapons Advisory Opinion ¶ 105.  E., at 36, 35 I.L.M.  at 835.

95 Nuclear Weapons Advisory Opinion ¶ 95, at 32, 35 I.L.M.  at 829.

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