International law versus the bomb.

In a landmark decision, on 8 July 1996, the highest court in the world, the International Court of Justice at The Hague, responded to the UN General Assembly's request for a ruling on the legality of the threat or use of nuclear weapons with the declaration 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 rules and principles of humanitarian law."

The Court came close to ruling that the threat or use of nuclear weapons would be illegal under all circumstances. But in the end it also ruled that, "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-defence, in which the very survival of a State would be at stake." Even in this case, however, the Court did not conclude that the use of nuclear weapons necessarily would be lawful - only that it was unable to draw a definitive conclusion one way or the other.

The debate over the full meaning of the Court's ruling probably will provide fodder for lawyers for years to come, not least because of the wide range of views that were expressed by the individual judges themselves. The Court did state clearly, however, that nuclear weapons cannot be considered exempt from the law: any use of force "must, in order to be lawful,... meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law." Even the nuclear weapon states supported this proposition. It does not appear, therefore, that the Court meant to suggest that the right of self-defence might in some cases override the requirements of humanitarian law.

Law of armed conflict 

The law of armed conflict is derived from a variety of sources, including the UN Charter, the Hague and Geneva Conventions, other international agreements, and customary international practice.

According to the UN Charter, all states have the right to use force in self-defence (until the Security Council has taken measures to maintain or restore international peace and security). The Court made it clear, however, that this right is conditional. It is subject to the principles of proportionality and necessity - only those measures that are proportional to the armed attack and are necessary to respond to it are lawful. These rules apply to all states.

In addition, the Court confirmed that the provisions of the Hague and Geneva Conventions constitute a system of "international humanitarian law" that must be observed by all states, whether or not they have ratified the conventions themselves. The cardinal principles of this system are that:

* it is prohibited to make civilians the object of attack, and consequently to use weapons that are incapable of distinguishing between civilians and military targets; and

* it is prohibited to cause unnecessary suffering to combatants, and consequently to use weapons causing such harm or uselessly aggravating their suffering.

The Court also confirmed that the principle of neutrality remains applicable to all states, and thus that belligerent forces must not violate the territory of neutral states.

Finally, the Court concluded that "states must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives," and noted that Additional Protocol I to the Geneva Conventions prohibits (for those states that have ratified it) "methods or means of warfare which are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment."

Taken together, these rules suggest that a state might be able to use nuclear weapons legally, but only if:

* the state is the subject of an armed attack,

* the Security Council has not as yet intervened to assist, and

* the use

- is proportional to the initial attack,

- is necessary for effective self-defence,

- is not directed at civilians or civilian objects,

- is used in such a way that it is possible to discriminate between military targets and civilian non-targets,

- does not cause unnecessary or aggravated suffering to combatants,

- does not affect states that are not parties to the conflict, and

- does not cause severe, widespread, or long-term damage to the environment. It is conceivable that the use of an extremely small nuclear bomb to destroy a warship isolated in the middle of the ocean might meet all of these requirements, if it were done in self-defence (although the questions of necessity and proportionality would still seem difficult). But almost any other, more significant use of nuclear weapons probably would be unlawful, and it certainly would be impossible to justify the use of a nuclear bomb to attack a city - even if the nominal target were a military facility within it. Three of the judges concluded that these requirements effectively rule out all use of nuclear weapons.

The rules also apply to any threat to use nuclear weapons. The Court made it clear that "if the use of force itself in a given case is illegal - for whatever reason - the threat to use such force will likewise be illegal." Virtually all of the nuclear plans of the nuclear weapon states must therefore be considered illegal.

The Court also stated unanimously that, in accordance with Article VI of the Non-Proliferation Treaty, "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." This aspect of the ruling adds further weight to the abolition movement's call for the start of negotiations on a global Nuclear Weapons Convention to ban all nuclear weapons.

Consequences

Of course, none of this will lead to the immediate abolition of nuclear weapons. The initial reaction of the nuclear weapon states has been to claim that the Court's ruling requires no changes at all in their nuclear policies. There is every likelihood that they will continue either to ignore or wilfully to misinterpret it for as long as they can. In any case, as an "advisory opinion," the ruling is not binding on any state.

Nevertheless, it does represent the most authoritative interpretation available of the obligations of all states under existing international law - which is binding. As such, it cannot be ignored by any state, or individual, wanting to be certain of complying with international law.

It is likely to provide a strong basis for legal challenges in the nuclear weapon states' own courts, as well as in the courts of allied states, and it will add momentum to the global effort to "delegitimize" the possession of nuclear weapons by undermining the still widespread idea that some states have the right to possess these weapons.

By the same token, the ruling will add further legitimacy to the worldwide nuclear abolition movement and serve as an important educational tool in the movement's efforts to build public awareness and public pressure for abolition.

Canada and the Bomb

The Canadian government rules out acquiring a nuclear arsenal of its own, opposes nuclear proliferation, and supports the abolition of nuclear weapons - someday. But it also participates in a nuclear-armed alliance, considers the "nuclear umbrella" provided by its allies to be a useful - even necessary - element of Canada's defence policy, opposes any immediate steps toward the elimination of allied nuclear forces, and provides direct support to those forces in a variety of ways. (1)

Clearly, then, the Court's ruling has major implications for Canadian defence policy. The government has yet to make any substantive comments on these implications. But prior to the decision's release a representative of the Department of Foreign Affairs already was dismissive of its importance, denying, for example, that it would lead to reconsideration of NATO's nuclear doctrine. (2)

This position cannot go unchallenged. There can be little doubt that Canada, as a participant in NATO's nuclear planning and a contributor to allied preparations for the possible use of nuclear weapons, is a party both to illegal threats to use nuclear weapons and to preparations for the illegal use of nuclear weapons. In January 1995, the Chretien government solemnly affirmed that "The rule of law is the essence of civilized behaviour both within and among nations.... Canada will remain in the forefront of those countries working to expand the rule of law internationally." (3) If the Canadian government wants to maintain even a pretence that it respects that international law, it needs to initiate an immediate review of the legality of all of Canada's nuclear-related activities in the light of the Court's ruling and to move quickly to end all activities of questionable legality. (See the 20-Minute Peace Workout on page 24.)

(1) See Bill Robinson, "Canada and nuclear weapons: Kicking the nuclear habit," Ploughshares Monitor, June 1995.

(2) Juliet O'Neill, "Activists cheer anti-nuclear ruling," Ottawa Citizen, 9 July 1996.

(3) Canada in the World, Department of Foreign Affairs and International Trade, 1996, p. 36.