published in Disarmament Diplomacy, September 1996
By Alyn Ware*
The bursting of the atom bomb in 1945 prompted Winston Churchill to note that "the Stone Age may return on the gleaming wings of science." The succeeding years of nuclear test explosions lighting up the skies, and nuclear bombs rolling out of the factories five a day, seemed likely to fulfil Churchills stark prophecy.
The collapse of the Berlin Wall in 1989, and with it the superpower standoff, brought a sigh of global relief as people around the world entertained the notion that previously had been considered as idealistic and unrealistic, the elimination of nuclear weapons.
Despite this change in the weather, the nuclear States have been reluctant to give up their nuclear security blanket, holding on to their policies of nuclear deterrence and to over 30,000 nuclear weapons to implement it. And while they hold onto nuclear weapons, there is every likelihood that other states, or even terrorist organizations, will obtain the fissile material and nuclear technology to make and possibly use a bomb.
However, on July 8 this year, the International Court of Justice took a giant step toward kicking the nuclear habit. Sitting only blocks from the International Criminal Tribunal for the former Yugoslavia, and using some of the same principles of law that apply to war crimes and crimes against humanity, the ICJ held that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict."
The Court further declared unanimously that "there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control."
The opinion had been requested by the World Health Organization, out of its concern about the health and environmental effects of nuclear weapons, and the United Nations General Assembly, out of its concern for global security.
While both these bodies are on record as opposing nuclear weapons outright, taking the case to the Court was a risky venture given the uncertainty over the legal status of nuclear weapons and the fact that, while an overwhelming majority of countries reject nuclear weapons, the Court was composed of a majority of judges from nuclear states or their allies.
The decision is much more than a slap on the wrist for the nuclear weapon States, which, with the exception of China, tried to stop the WHO and the UN from taking the case to the Court and then exerted pressure on the Court to decline to give an answer. It is indeed a resounding challenge to the continuing policies of nuclear deterrence, and to the resistance of the nuclear states to agree to negotiations on the elimination of nuclear weapons.
The Right Honorable Jim Bolger, Prime Minister of Aotearoa-New Zealand commented immediately after the decision that "It adds absolute weight to countries like New Zealand who have argued for some time that there cannot be a position where 5 nations hold to themselves the rights of having nuclear weapons and say to the rest of the world "Trust us, were OK, but the rest of you should have none." Now that is not on."
The first response of nuclear weapons States was to jump on an area of uncertainty left by the Court when it said that it could not reach a definitive conclusion as to the legality or illegality of "the use of nuclear weapons by a State in an extreme circumstance of self defense in which its very survival would be at stake." The US and France commented that this therefore justified their policies of threatening to use nuclear weapons.
However the President of the Court, Judge Bedjaoui, noted that the Courts indecision on the extreme circumstance cited, in no way could be interpreted as amounting to a green light in such a circumstance, only a legal uncertainty. Even the extreme circumstance "cannot engender a situation in which a state would exonerate itself from compliance with the intransgressible norms of international humanitarian law."
Thus the main response from the nuclear states has been to attempt to downplay the decision. Jacques Rummelhardt, Spokesperson for the French Foreign Ministry, stated on July 8 that "These opinions, which are not acts of jurisprudence, have no compulsory force."
This however is both incorrect and misleading. An ICJ advisory opinion is an act of jurisprudence as is any case in the Court. The term advisory opinion is so named to distinguish it from contentious cases, the other type of case the Court can consider. Contentious cases concern disputes between two or more states. Advisory opinions concern questions of international law asked by a UN body. In both cases the Court declares the law applicable and declares where necessary the legal rights and obligations that flow from the law so laid down.
It is true that the ICJ has no power to compel states to adhere to its decisions. But this is not its purpose. Its purpose is to declare what the law is, and it is up to other bodies to see to it that the law is implemented. Internationally that could include the UN Security Council and the UN General Assembly. Nationally it could include actions in the supreme or high courts of individual countries.
As to whether the law applied by the Court in this case is binding or not, the answer would have to be that it is. The Court was applying principally the humanitarian laws of warfare which are binding on all states, and include the Geneva and Hague Conventions, which the nuclear weapon states have all ratified.
The decision will thus be likely to generate much debate within the military establishments and foreign ministries of the nuclear weapon states over their existing policies of threat and use of nuclear weapons. No longer will they be able to make nuclear threats such as those made against North Korea and Libya without there being a challenge that these are contrary to the decision of the Court. Similar challenges from within the nuclear militaries could arise regarding the deployment of nuclear weapons systems, which could be claimed to be in violation of the Courts ruling.
Frances disclaimer on the effect of the Courts decision on its policies should be seen in the light of the 1974 Nuclear Tests Case, which challenged atmospheric testing in the South Pacific. Despite making a similar disclaimer in this case, France halted its atmospheric testing the following year.
Already legal ramifications are occurring. A High Court case was initiated, following the Court hearings, by an Australian citizen against his government regarding its participation in US nuclear war preparations through hosting such facilities as a nuclear command and communication base at Pine Gap. Also in the South Pacific, Papua New Guinea has raised the question of whether the transit of nuclear armed vessels through international waters can any longer be categorized as "innocent passage." If not, there could be grounds for excluding such passage from nuclear weapon free zones which cover over half the worlds oceans.
Irrespective of the legal implications of this case, the political implications will be profound. Non-nuclear States which for 50 years have been calling unsuccessfully for the nuclear weapon states to disarm their nukes, now have a much strengthened negotiating arm. The legal obligation, which the Court affirmed, on states to conclude negotiations on the elimination of nuclear weapons will be very difficult to avoid. If the nuclear States refuse to accept their legal obligations to begin such negotiations, they will find it that much harder trying to keep other States to their obligations under the Non Proliferation Treaty not to develop nuclear weapons, or, in the case of India, Pakistan and Israel, to make them accept obligations not to test nuclear weapons. One cannot flout the law and expect others to keep it.
Mexico, for example, stated in the hearings of the Court case, that if the nuclear states did not implement their obligations to negotiate for nuclear disarmament, they might feel compelled to reconsider their membership of the NPT, and their obligations therefore to not acquire nuclear weapons.
During the UN debate on the Comprehensive Test Ban Treaty in early September, a number of countries, while not supporting Indias desire to maintain a nuclear option, did join India in criticizing the nuclear states for not accepting their obligations to negotiate for nuclear disarmament.
The pressure on the nuclear states will increase during the current session of the UN General Assembly, when a UN resolution will be introduced welcoming the decision of the ICJ and calling for the beginning of negotiations for a Nuclear Weapons Convention, which would provide for the complete elimination of nuclear weapons under effective international verification and control.
Pressure is likely to build at the preparatory meeting in 1997 for the Non Proliferation Treaty Review Conference. In response to the ICJs decision, Philippines has called for a special conference of States Parties to the NPT to negotiate a Nuclear Weapons Convention.
Such moves are supported by the International Abolition 2000 Network, comprising over 600 citizens organizations worldwide, which was established at the ICJ hearings last November, with the aim of achieving a Nuclear Weapons Convention by the year 2000. While citizens organizations cannot participate in such negotiations directly, the Network is likely to have considerable effect in initiating and guiding such negotiations, much as the ICJ advisory opinion was initiated and guided by citizens organizations under the umbrella of the World Court Project.
Formed in 1992 by the International Association of Lawyers Against Nuclear Arms, the International Peace Bureau and the International Physicians for the Prevention of Nuclear War, the World Court Project lobbied both the World Health Organization and the UN General Assembly in order to get them to request the opinion from the Court. The project also assisted countries in their legal presentations to the Court, and gathered over 3 million declarations of public conscience which were presented to the Court in support of the case.
In order to support the abolition of nuclear weapons by the year 2000, the Abolition 2000 Network is drafting a Model Nuclear Weapons Convention which outlines procedures for verification and enforcement. The Network is also lobbying governments at local, national and international levels, and is gathering further declarations of support from scientists, politicians, religious leaders and other citizens worldwide.
The movement for the complete elimination of nuclear weapons has been given a shot in the arm by the recent release of a report from the Canberra Commission on the Elimination of Nuclear Weapons, a high level group including scientists, military experts, diplomats and politicians, including General Lee Butler; Commander in Chief of the US Strategic Command (1992-94), Field Marshall Lord Carver; Chief of UK Defence Staff (1973-76), Robert McNamara; former US Secretary of Defense, and Michel Rocard; Prime Minster of France (1988-91). The Commission reported that the elimination of nuclear weapons is not only vital in order to prevent the use of nuclear weapons by accident or design, but also that such a course of action is practical and verifiable.
The Canberra Commission, aided in particular by the experience of Rolf Ekeus, Chair of the UN Special Commission on the elimination of Iraqs weapons of mass destruction, described the growing sophistication and effectiveness of monitoring technologies, which would make the verification of the elimination of nuclear weapons, if not perfect, at least capable of verification to a degree that would prevent unacceptable risk. Other political or non-nuclear military measures would be able to be introduced to cope with the small risk of breakout from a non-nuclear regime.
While science has created the potential to send the earth back into the stone age, it can also provide the possibility to effectively eliminate that threat, as long as there is the political will to do so. That is the real challenge that now faces us.
Alyn Ware is the Executive Director of the Lawyers Committee on Nuclear Policy and the Pacific Representative for the International Peace Bureau.