Nuclear Weapons Liability Under Tort Law
Accidental or unintended detonation of nuclear weapons is a virtually unregulated area of international law.[1] Although existing international legal frameworks, such as international criminal law, international human rights law, and the Treaty on the Prohibition of Nuclear Weapons, are particularly applicable to the intentional use of these weapons, the tort doctrine of Abnormally Dangerous Activities may be one avenue to address destruction caused by the mere keeping or inadvertent use of nuclear power.[2]
Under tort law, a person who participates in “abnormally dangerous activities” can be held strictly liable for physical harm caused to others, regardless of the level of care they took.[3] The Second Restatement of Torts (“Second Restatement”) lists six factors to consider when determining whether something is an abnormally dangerous activity.[4] These factors include: (i) the degree of risk of harm to a person, land, or chattels, of others; (ii) the likelihood that harm will be great; (iii) the inability to eliminate the risk even with due care; (iv) whether the activity is uncommon; (v) inappropriateness of the activity to the place; and (vi) the activity’s value to the community against its dangerous attributes.[5] By analyzing these factors, it becomes evident that the majority of them weigh in favor of categorizing the keeping of nuclear weapons as an abnormally dangerous activity.[6]
Factors (i) and (ii). The Second Restatement requires that for an activity to be abnormally dangerous, the degree of risk in the activity must be major and the possible consequences must be sufficiently serious.[7] Studies indicate that the blast and heat damage a nuclear bomb could cause would be thousands of times greater than that caused by conventional weapons, and the United Nations has asserted that “[n]uclear weapons represent a historically new form of weaponry with unparalleled destructive potential.”[8]
Factor (iii). The Second Restatement explains that most activities can eliminate the risk of being abnormally dangerous by exercising reasonable care, but when even reasonable care cannot make the activity safe, then it is categorized as abnormally dangerous.[9] The keeping of nuclear weapons, notwithstanding any and all precautionary measures, is an inherently and abnormally dangerous activity. The Second Restatement agrees that nuclear power is different from most activities, as it reads “there is probably no activity, unless … the use of atomic energy, from which all risks of harm could not be eliminated by the taking of all conceivable precautions.”[10]
Factor (iv). The Second Restatement defines an activity of common usage as one that is “customarily carried on by the great mass of mankind or by many people in the community.”[11] Presently, only nine countries in the international community are considered to be nuclear weapons states.[12] Nine countries out of the existing 195 is certainly not a “great mass” of the world, nor “many [states]” within the global community.[13]
Factor (v). The Second Restatement explains that the appropriateness of location depends less on where the activity takes place, and more on how it interplays with other surrounding factors, such as people and property.[14] The concern with even inadvertent use of nuclear weapons, however, is that the effects are uncontrollable and would spread far and wide, affecting people and property across jurisdictional boundaries and for years to come.[15]
Factor (vi). The Second Restatement acknowledges that even if an activity is abnormally dangerous, it may be so valuable to the community that the danger is not regarded as abnormal.[16] This is the only factor that could be construed in either direction of this analysis. Although the populations of some nuclear states may believe that the benefit of keeping nuclear weapons outweighs the risk of inadvertent use, the populations of other nuclear states may believe that no military strategy is worth the risk that keeping nuclear weapons poses. Regardless of which position is the majority view, the Second Restatement makes clear that none of the six factors are dispositive.[17]
Categorizing the keeping of nuclear weapons as an abnormally dangerous activity would allow inadvertent use to be legally addressed as a tort law violation. Without considering procedural barriers to legal action against state actors, such as the doctrine of sovereign immunity, this interpretation could provide those harmed by the inadvertent use of nuclear weapons with a relievable claim for monetary compensation.[18]
Emma Hazeltine is a staff member of Fordham International Law Journal Volume XLVI.
[1] Emma Hazeltine, Mistaken Detonation: International and Domestic Legal Principles Applicable to Address the Accidental or Unintended Use of Nuclear Weapons, 46 Fordham Int’l L.J. 725 (2023).
[2] See Rome Statute of the International Criminal Court, July 27, 1998, 2187 U.N.T.S. arts. 8, 8 bis (discussing crimes against humanity and the crime of aggression, respectively); Universal Declaration on Human Rights, G.A. Res. 217A (III), U.N. Dec A/810 (Dec. 10, 1948), art. 3 (“Everyone has the right to life, liberty and security of person.”); Treaty on the Prohibition of Nuclear Weapons, opened for signature Sept. 20, 2017, XXVI U.N.T.S. 9, pmbl. (“any use of nuclear weapons would be contrary to the international law applicable in armed conflict, in particular the principles and rules of international humanitarian law”) (emphasis added).
[3] See Abnormally Dangerous Activity, Legal Info. Inst., http://tinyurl.com/9zrh73f8 (last visited Sept. 5, 2023).
[4] See Restatement (Second) of Torts § 520 (Am. L. Inst. 1965) [hereinafter Restatement of Torts § 520].
[5] Id.
[6] See id. cmt. f. (explaining that none of the six factors are dispositive and they are all to be considered and weighed equally).
[7] See id. cmt. g.
[8] See Charles J. Moxley, Jr., Nuclear Weapons and International Law, 282 (2022) (emphasis added).
[9] See Restatement of Torts § 520, supra note 4, cmt. h.
[10] Id. (emphasis added).
[11] Id. cmt. i.
[12] See Moxley, supra note 8, at 576–77 (listing the nine nuclear weapons States: United States, Russia, United Kingdom, France, China, Pakistan, India, Israel, North Korea. Although Israel is known to have nuclear weapons, it has not formally acknowledged having them).
[13] How Many Countries are There in the World?, Worldometer, http://tinyurl.com/2fuafrex (last visited Nov. 30, 2022).
[14] See Restatement of Torts § 520, supra note 4. cmt. j.
[15] See Moxley, supra note 8, at 282–83.
[16] See Restatement of Torts § 520, supra note 4, cmt. k.
[17] Id. cmt. f.
[18] See Sovereign Immunity, Legal Info. Inst., http://tinyurl.com/5yumdrph (last visited Feb. 25, 2022) (defining sovereign immunity as “the fact that the government cannot be sued without its consent”).
This is a student blog post and in no way represents the views of the Fordham International Law Journal.