Abstract
There is a gap at the heart of the law governing the use of nuclear weapons. Repeated threats by Russian leaders to use nuclear weapons against Ukraine highlight the urgency of closing this gap. This article reviews the central holding of the 1996 International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons. The article focuses on the controversial “extreme circumstances” clause, in which the ICJ stated that it could not determine the legality of using nuclear weapons when the survival of a State was in question. This left open the questions of what scenarios qualify as “extreme circumstances” and whether the law applies in such scenarios. This article fills in this “extreme circumstances” gap. In particular, it provides a framework for identifying the existence of “extreme circumstances” and concludes that international law applies even in such scenarios.
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