Considering Humanity: How the Martens Clause Implies a Legal Obligation to Conduct Risk Analysis in Decisions Regarding the Actual or Threatened Use of Nuclear Weapons
The possession and threatened use of nuclear weapons pose an unprecedented risk of man-made catastrophe, on a scale far beyond that of conventional weapons. The known potential effects of nuclear weapons are wide-ranging, with both immediate and long-term impact on human populations far beyond a localized blast area. Because nuclear weapons have only been used in single strike instances and in testing, the sheer magnitude of a potential nuclear exchange could inflict devastation far beyond what any model may be able to predict.
Still, there is no statement of international law to which the United States is a party that considers possessing or using nuclear weapons per se unlawful. For this reason, any planning regarding the potential use or threatened use of a nuclear weapon demands a level of precaution that far surpasses traditional military considerations, including those that informed the existing US methodology for military risk analysis. Despite the United States’ acceptance of the application of the general international humanitarian law principle of proportionality, necessity, and distinction to potential or actual uses of nuclear weapons, the statements contained in US military doctrine have placed significant and prohibitive constraints on the extent to which these rules require precaution in the form of risk analysis in the employment or planning surrounding nuclear weapons.
To remain compliant with its existing international obligations, and to address the significant moral imperatives borne by nuclear-armed states, the United States must adopt a more standardized and robust approach to military risk analysis. Failure to do so would be a failure to fully comply with the principles of proportionality, necessity, and distinction, as read with respect to the principle of humanity. These principles require states to (a) weigh the expected incidental harm to civilians against the anticipated military advantage of an attack, and (b) consider all feasible alternatives to a use of a nuclear weapon to minimize unnecessary suffering. Both obligations imply a duty for states to conduct comprehensive risk analysis to appropriately assess the potential outcomes of their actions. The DoD’s reluctance to fully apply these principles to decisions regarding nuclear weapons, as exemplified by its decision to exclude “remote harms” from proportionality assessments, fundamentally undermines the principle of humanity and runs contrary to the obligations of the United States to comply with customary international law.
If the framework proposed by this Note makes it appear nearly impossible for a risk owner to authorize the deployment of a nuclear weapon following these steps, that is precisely the point. Even without the ICJ ruling conclusively on the per se illegality of nuclear weapons, any realistic engagement into what a “lawful nuclear strike” could look like makes clear that the concept itself is an oxymoron. Though the drafters of the Hague Conventions did not foresee the development of nuclear weapons, they did account for the realities of technological advancement. This is precisely why clauses such as the Martens Clause exist. In fact, some have argued that in proposing this clause at the Hague Conference, Martens “intended to introduce through it a novel and radical means of international lawmaking, by elevating humanity and the dictates of conscience to the rank of new sources of international law.” Interpreting the clause in this way, the dictates of humanity and public conscience that the drafters asserted as law leave little room for the deployment of weapons whose effects cannot be predictably contained within the bounds of the law.
Recommended Citation: Emily Jones, Considering Humanity: How the Martens Clause Implies a Legal Obligation to Conduct Risk Analysis in Decisions Regarding the Actual or Threatened Use of Nuclear Weapons, 49 Fordham Int'l L.J. 1379 (2026).