To court the bomb: the Non-Proliferation Treaty and the World Court cases

By Alyn Ware | 1995-07-01 12:00:00

The most safe, sure and swift way to deal with nuclear arms is to do away with them in every regard. This should be our vision of the future. No more testing. No more production. No more sales or transfers. Reduction and destruction of all nuclear weapons and the means to make them should be humanity's great common cause." Boutros Boutros Ghali, addressing the opening of the Non-Proliferation Treaty Review and Extension (NPT R&E) Conference.

Despite these words spoken forcefully by the Secretary-General of the United Nations, the nuclear weapon States made no new commitments towards nuclear disarmament at the recent NPT R&E Conference, and walked away with an indefinite unconditional extension of the status quo. The only gain from the Conference was the establishment of a stronger review process of the NPT, which included the adoption of principles and objectives to serve as guides to future disarmament negotiations.

A number of non nuclear States had wanted the Treaty to be extended by either one fixed period or a series of rolling periods in order to provide greater accountability for nuclear States to fulfill their obligations under Article VI of the Treaty to negotiating nuclear disarmament "at an early date." Some of these countries, and over 200 citizen's groups from around the world, called unsuccessfully for the beginning of negotiations for a convention to eliminate nuclear weapons.

Now that the Treaty has been extended indefinitely, the nuclear States are free to continue their policies of nuclear deterrence, including research, production, and testing of nuclear weapons. As if to underscore this pessimistic scenario, China conducted a nuclear test a week after the NPT R&E Conference concluded. France is planning to resume nuclear testing in the South Pacific.

The current disarmament negotiations in Geneva are unlikely to achieve much to stop the nuclear States. The proposed Comprehensive Test Ban is unlikely to prohibit Above Ground Experiments, a range of nuclear testing technologies which do not require large physical explosions, but will aid the modernization of nuclear weapons.

There are no plans for the Conference on Disarmament to begin negotiating a convention prohibiting the use or threat to use nuclear weapons, let alone a convention to eliminate nuclear weapons.

The only remaining international initiative which could seriously challenge the continuing nuclear hegemony is the World Court Project. Initiated by three citizen's groups, the International Peace Bureau (IPB), the International Physicians for the Prevention of Nuclear War (IPPNW), and the International Association of Lawyers Against Nuclear Arms (IALANA), the Project has now moved both the World Health Organization (WHO) and the United Nations General Assembly to raise the issue of the legality of nuclear weapons in the International Court of Justice, more commonly known as the World Court.

If the Court rules that the threat and use of nuclear weapons is illegal, the nuclear States would be placed in the uncomfortable position of either having to change their policies or be charged with violating international law, an option which would clearly be hypocritical while they are trying to get threshold countries such as Iran and North Korea to uphold their legal obligations under the NPT not to develop nuclear weapons. A Court ruling would also make it easier for anti-nuclear personnel in the armed forces to refuse to operate nuclear weapons, and could be used by anti-nuclear politicians to move their countries toward nuclear disarmament negotiating.

The nuclear States, aware of the problems a Court ruling could cause them, worked hard to prevent the WHO and the United Nations from asking the question, but they underestimated the RINGOS ("random idiot non Governmental Organizations," the description Robert Rosenstock gave to IPPNW, IALANA, and IPB when the resolution to approach the Court was introduced in the U.N.). Ambassador Miguel Marin Bosch, referring to the World Court Project, noted that "the nuclear powers are scared shitless. Their turn is up. And they are holding onto the only toys that have been the guarantee of their legitimacy." Canadian Disarmament Ambassador Peggy Mason noted that "Hysteria is not too strong a word to describe the nuclear weapons states' point of view around here." (The Nation, Dec. 27, 1993).

Unable to prevent the case from going to the Court, the nuclear states are now trying to convince the Court to decline to give an opinion on the grounds that it would undermine what they claim as "substantial progress" made on nuclear disarmament. In addition, the nuclear States are arguing that if the Court decides to consider the cases, it should conclude that the use and threat to use nuclear weapons are not illegal.

The NPT is an important part of this debate. The U.K. has stated to the Court that treaties which have been adopted regarding nuclear weapons may lawfully be used. Both the U.S. and the U.K. have told the Court that the Non Proliferation Treaty accepts the lawfulness of the development and possession of nuclear weapons, which presupposes that use of these weapons must be lawful in certain (unspecified) circumstances.

Sri Lanka has argued against this, stating that over 150 States have rejected nuclear weapons by joining the NPT as non-nuclear states consolidating a norm supportive of the illegality of the use of nuclear weapons.

The result of the case will effect the NPT review process in particular, as well as disarmament in general. Claims, such as those made by Mexican Ambassador Marin Bosch at the NPT R&E Conference, that the nuclear States are violating the NPT will have even greater credibility and force if the Court determines that the continuing policies of the nuclear states are indeed illegal.

The Court cases may be the international event that could lift the NPT out of the quagmire it is now in and help it achieve its aims of "the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery" (NPT preamble).

Ambassador Dhanapala, Chair of the NPT R&E Conference, referred to the importance of the World Court Case in his opening statement to the NPT R&E Conference and compared nuclear to chemical and biological weapons; "Those weapons (chemical, biological, inhumane) were not disinvented. They were declared illegal. That is how we put the genie back in the bottle--verifying at the same time that it remains there."

Citizen Support

You can help nuclear weapons be declared illegal. International humanitarian law relies on "dictates of public conscience," as referred to in the Geneva and Hague Conventions. You can write a declaration of public conscience and send it to Canadian Physicians for Global Survival, 170A Booth Street, Ottawa, Ontario K1R7W1, and we will present it to the Court.

Alyn Ware is the executive director of the Lawyers' Committee on Nuclear Policy (USA) , Steering Committee member of the World Court Project, and Council Member of the International Peace Bureau.