The World Court and Nuclear Weapons: Who is Listening?

On 8 July 1996, the International Court of Justice (ICJ), otherwise known as the World Court, delivered an historic opinion on the legality of the threat or use of nuclear weapons. Citing international laws of war and specific treaties, a majority of the judges declared that the threat or use of nuclear weapons would generally be illegal, and all 14 declared "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 Court's opinion prompted a flurry of claims and counter-claims. Nuclear-weapon States said that their policies were in accordance with the decision; most others claimed the opposite. The confusion arose because the judges did not condemn nuclear weapons absolutely. While stating that the threat or use of nuclear weapons would generally be illegal, the Court said that it could not rule definitively on whether such illegality would hold "in an extreme circumstance of self defence, in which the very survival of a State would be at stake." The nuclear-weapon States then argued that they only intend to use nuclear weapons in extreme circumstances. Other commentators responded that the nuclear-weapon States were conveniently ignoring a unanimous holding by the ICJ, namely that a threat or use of nuclear weapons "should also be compatible with the requirements of international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law ...". This holding wo uld apply in all circumstances, even extreme ones.

Since then, nuclear-weapon States have made no progress towards agreements to eliminate or even reduce their nuclear stockpiles. They continue with policies to use nuclear weapons in a variety of unspecified circumstances. Four of the official nuclear-weapon States maintain policies of first-use of nuclear weapons. Research, testing, design and deployment of new nuclear weapons continue. Russia, Belarus and Ukraine are backing away from nuclear disarmament agreements as a result of the expansion of the North Atlantic Treaty Organization (NATO) and its bombing of Yugoslavia. The United States is set to develop theatre-missile defense, which threatens both the Anti-Ballistic Missile Treaty and the START II Treaty, which is still not ratified by Russia. Two additional countries--India and Pakistan--have come out into the open as nuclear-weapon States following nuclear tests they conducted in 1998.

So the question must be asked: Was anyone listening to the World Court when it made its decision? Will anything change, or will the world slide inexorably towards nuclear armageddon in the twenty-first century?

The Bulletin of Atomic Scientists has already moved back the hands of its "Doomsday Clock" towards midnight and expert committees such as the Canberra Commission on the Elimination of Nuclear Weapons have warned that "the risk of use (of nuclear weapons) has increased", and that "the proposition that nuclear weapons can be retained in perpetuity and never used--accidentally or by decision--defies credibility".

Ann Fagan Ginger, in her book Nuclear Weapons Are Illegal: The Historic Opinion of the World Court and How It Will Be Enforced, sets out these principles and rules of international law, which include a prohibition on using weapons that are indiscriminate, violate neutral territory, cause long-term and severe damage to the environment and unnecessary suffering, or are disproportionate to the act of provocaton. Ms. Ginger argues that any nuclear weapon currently in existence, if used, would violate some or all of these rules. The Court itself appeared to agree when it said it did not have enough evidence to conclude that the use of "clean" smaller nuclear weapons would possibly be legal. Ms. Ginger argues therefore that the "hole" presumably opened by the Court's indecision on the extreme circumstance situation actually leads to "an impenetrable wall of steel" covered by the unyielding prohibition on the threat or use of weapons which would violate humanitarian laws of warfare.

Japanese Professor of International Law Terumi Furukawa likens the Court's opinion to Portia's acceptance in The Merchant of Venice of Shylock's persistent claim to cut off a pound of flesh nearest the heart, declaring that such an act is allowed only if "this bond doth give thee no jot of blood"; thus making it impossible. Virtually all of the nuclear weapons deployed by the nuclear-weapon States are not "small" mini-nukes, but strategic weapons with explosive powers many times that of the bombs that destroyed Hiroshima and Nagasaki, i.e. weapons the use of which could not possibly be "compatible with the requirements of international law".

Regardless of whether or not there may possibly be a legal use of a small nuclear weapon in an extreme circumstance, the duty, as unanimously declared by the Court, is for States to negotiate for their elimination. John Burroughs, in his book The Legality of Threat or Use of Nuclear Weapons: A Guide to the Historic Opinion of the International Court of Justice, explores this duty and argues that the current policies and practices of the nuclear weapon States violate it.

Following the Court's decision, the United Nations and the European Parliament adopted resolutions calling for the implementation of the decision through the immediate commencement of negotiations leading to the conclusion of a nuclear-weapons convention (treaty), which would prohibit the development, testing, production, stockpiling, transfer, use and threat of use of nuclear weapons and provide for their elimination. India, Pakistan and China supported the UN resolution, but the other nuclear-weapon States opposed it and have blocked any attempts to start such negotiations in the Conference on Disarmament--the negotiating body for such treaties.

The failure of the nuclear-weapon States to implement their disarmament obligations has led to a number of high-level statements and initiatives to renew commitment to nuclear disarmament. Abolition 2000--a global movement of over 1,400 organizations--was formed calling for negotiations on a nuclear-weapons convention by the year 2000. Public opinion polls show that the abolition of nuclear weapons is supported by an overwhelming majority of citizens in the nuclear-weapon States, as well as the non-nuclear-weapon States.

Despite these developments, the nuclear-weapon States refuse to budge. Ms. Ginger argues, in Nuclear Weapons Are illegal, that the enforcement of the ICJ decision will need to be done as much by citizens within the nuclear-weapon States as by international bodies. "We can all insist that our Governments carry out their obligation to support the action of the (UN) General Assembly to enforce the World Court opinion. ... Lawyers, litigants, judges, legislators and administrators have an obligation to start using this opinion in every appropriate case, statute, regulation and budget." More directly, citizens in nuclear-weapon States and in the States where nuclear weapons are deployed have been inspired by the World Court opinion to take action against nuclear weapons at their sites of production, testing, deployment and control.

Modelled on the inspections led by the United Nations Special Commission (UNSCOM) on Iraq's weapons of mass destruction, groups of "citizen weapons inspectors" have attempted to inspect nuclear-weapon facilities in order to determine whether or not they are in compliance with international law as determined by the ICJ. Some weapons inspectors have been arrested for breaking into nuclear facilities after access had been denied. Some activists have gone further and committed acts of "disarmament" on nuclear weapons and their systems, and then been arrested and charged with crimes such as conspiracy and damage of government property. In court cases, the defendants argued that they had a duty to conduct such acts to uphold international law even if they had to break domestic law to do so. They cited the Nuremberg Principles which state that, with respect to war crimes and crimes against humanity, an individual is required to refuse superior orders or domestic regulations if they are in opposition to international law. Such defense has had varying degrees of success in the courts.

Such action is reminiscent of the actions of individuals in opposition to slave laws in the nineteenth century, which eventually led to the abolition of slavery. The abolition of nuclear weapons is sure to follow suit, whether by conscious choice or by a nuclear disaster which destroys civilization as we know it. Conscious choice is of course the preferable path, but the question remains of how to abolish the weapons?

Is it possible to eliminate nuclear weapons? Can we effectively verify that countries would destroy all their nuclear weapons and not hide some? How can we ensure that if a country did cheat, it would not be able to use its nuclear weapons to blackmail the rest of the world?

These critical questions have been the topic of much consideration since the World Court's opinion. In order to address these and other aspects of a nuclear-weapon-free world, the Lawyers' Committee on Nudear Policy, a United States non-governmental organization, brought together scientists, lawyers and disarmament experts to produce a Model Nuclear Weapons Convention, a draft treaty on the complete abolition and elimination of nuclear weapons. After some feedback from States and other experts, the draft treaty was circulated by the United Nations for consideration by all Governments. The treaty and further discussion of critical questions on nuclear abolition are publicly available in a new book, Security and Survival: The Case for a Nuclear Weapons Convention It demonstrates that the desire for a nuclear-weapon-free world is indeed, as former ICJ President Mohammed Bedjaoui says, "no longer utopian", and that all that is required to get there is the political will.

But the real question still remains: are the nuclear-weapon States listening?

Alyn Ware (Aotearoa-New Zealand) is Consultant at Large for the Lawyers' Committee on Nuclear Policy (LCNP), and Pacific Representative for the International Peace Bureau.