Beyond the World Court project: abolition of nuclear weapons

By Alan Phillips

At the time of writing, the International Court of Justice has just completed hearing oral arguments on the two great questions before it concerning nuclear weapons. The court has been asked by the World Health Organization for an advisory opinion whether the use of a nuclear weapon would be a violation of international law, and by the General Assembly of the United Nations whether threat of use or use of nuclear weapons would be a violation. The fact that these questions have reached the ICJ represents one of the biggest achievements of the peace movement since the end of World War II. We, the peoples of the United Nations have persuaded first the World Health Organization, and then the General Assembly itself, to do something that the most powerful nations in the world, the permanent members of the Security Council, actively campaigned against.

By the time this is printed, or soon after, the court will have stated its conclusions. The 14 judges, each from a different country, may say the use or threat of use of nuclear weapons is always illegal; or that there are circumstances when use would not be illegal under existing international laws of war; or that there is no law against the use of nuclear weapons. Or the court may decline to give an opinion.

This is the culmination of the World Court Project, formally set in motion in 1992 by three international peace organizations: the International Peace Bureau (IPB). International Physicians for Prevention of Nuclear War (IPPNW), and International Association of Lawyers Against Nuclear Arms (IALANA).

The World Health Organization's Question

No single nation may ask the International Court of Justice for an Opinion on a matter of principle. Such a request may be made only by an organ of the United Nations. In 1992, many nations represented at the World Health Assembly had agreed to requests by the non-governmental organizations (NGOs) to support a motion to ask the court for an opinion, but the WHA Council kept it off the agenda by a vote of 6 against, 3 for, and 16 abstentions. (Canada was not represented in the Council.) In 1993 it did reach the agenda. The smaller countries were put under such pressure before the meeting of the World Health Assembly that the final vote was taken by secret ballot--an almost unheard-of action in the United Nations. And the motion to ask the court whether the use of a nuclear weapon would be illegal was passed by 73 to 31 with 6 countries abstaining. There followed some months of delaying tactics behind the scenes, including threats that great delays would ensue if special funds were not made available to enable the ICJ to act promptly.

The General Assembly's Question

In the Fall of 1993 the Non-Aligned Movement (NAM) of 110 nations, placed a similar motion on the agenda of the General Assembly. The Canadian Ambassador to the United Nations was quoted in the press as saying there was a state of near hysteria at the embassies of the nuclear powers. Extraordinary pressure on their governments forced the NAM nations to reconsider, and finally persuaded them not to press the motion but to allow it to lapse.

In 1994, in spite of further lobbying and threats, the motion was placed on the agenda and passed by 77 to 33, 21 abstaining. Canada abstained.

Lobbying

Throughout that two years, the peace movement kept up a continuous presence at the United Nations, in the person of Alyn Ware from Aotearoa (New Zealand), working for IALANA and the U.S. Lawyers' Committee on Nuclear Policy. The two other original sponsoring groups, IPPNW and IPB, sent representatives to New York at all critical moments during the campaign.

Pressure from the nuclear weapon states never let up. Canada showed that on this occasion the government was more scared of offending the United States government than it was of offending its own citizens, so our country submitted neither a written brief nor an oral presentation. Four countries withdrew their applications to make oral submissions to the Court: Columbia, Guyana, India and Nauru. Colombia also withdrew its written submission, which argued strongly in favor of illegality.

The Effect Of A Ruling

The judges themselves may be under political pressure to give an opinion in accordance with the wishes of the five permanent members of the Security Council, which of course are the five declared nuclear weapon states. But what could they say which would not offend those states? If use and threat of use are legal, the five are in the clear with their targeting strategies, battle planning, and arguments about the stability of deterrence; but why should not other states also take advantage of this so-called security? If legal in only some circumstances, why should not other states develop weapons for use in such circumstances? And if illegal, what are the Big Five doing, planning at great expense to keep their nuclear arsenals with thousands of the weapons? The governments of other countries cannot fail to notice the huge conventional military power of those Five, and think that perhaps they, with much smaller forces, need the deterrent factor of nuclear weapons even more than the Big Five do.

How much difference will it make what opinion is handed down? No state is bound to accept the judgment of the court, and it is obvious that a statement of illegality is not going to be followed by immediate dismantling of the nuclear arsenals of those states that have them. One retired naval officer (of a nuclear weapons state) says that captains of ballistic missile submarines may refuse to go to sea with their weapons, but another says it would make little difference.

At the other end of the scale, if the court says there is no law against the weapons, non-nuclear states may be more inclined to start developing them, whether or not they have signed the Non-Proliferation Treaty. But making nuclear weapons is a long-term endeavor, expensive, and with political costs in the international sphere. Iraq tried it and has been reduced from a prosperous well-developed oil-exporting state to a country of widespread malnutrition, poverty and disease by U.N. sanctions, continued long after the ostensible purpose of the Gulf War was achieved.

What the court says may make rather little immediate difference to states' actions, but it will make a great deal of difference in what is said in the fora of the United Nations, and by peace-seeking NGOs in all countries. It will also affect the respect with which the ICJ is regarded in the world. If the judges disregard the indiscriminate effects on people, the long-term radioactive contamination of the environment, and other inevitable results of nuclear war that are forbidden by existing treaties, everyone will know that they have succumbed to political pressure.

The Court's Hearing Of Oral Arguments

NGO representatives from many countries were at The Hague for the Hearings. From Canada representatives of Veterans Against Nuclear Arms, Physicians for Global Survival, and Lawyers for Social Responsibility attended. They sent daily reports by e-mail which were exciting reading, and they issued press statements. Unfortunately, the North American press did not take these up.

The Big Five and their allies argued that the court should not give a ruling. Various reasons were put forward, mostly vague, on the lines that a ruling could embarrass other arms control and disarmament negotiations. The French produced the wildest one. They argued that the WHO had no right to put the question because its function is to prepare to treat the victims of nuclear war, not try to prevent the means of their suffering!

The hearings have been a wonderful forum for national governments to state their official position on nuclear weapons, and an encouraging fact has been that a number have said clearly that abolition of nuclear weapons is their objective. On the first day Gareth Evans, Australian Foreign Minister, said: Nuclear weapons are by their nature illegal under customary international law, by virtue of fundamental general principles of humanity. It is therefore illegal not only to use or threaten use of nuclear weapons, but to acquire, develop, test, or possess them. He said that the phased elimination of nuclear weapons is perfectly feasible and practical. This, coming from an ally of the United States, made an inspiring start.

The Japanese government at first stated that nuclear weapons are not illegal per se in its written submission, but changed its position because of the public outcry. In the oral hearings the Ambassador, Mr. Takekazu Kawamura, said: the Government of Japan believes that, because of their immense power to cause destruction, and death and injury to human beings, the use of nuclear weapons is clearly contrary to the spirit of humanity that gives international law its philosophical foundation. It was only because of public pressure that the Mayors of Hiroshima and Nagasaki were included in Japan's delegation. They were instructed not to speak of illegality, but they did so nonetheless after the Ambassador had told the court that the Mayors were not speaking for the government. By describing the damage and injuries caused by the atomic bombs on their two cities, the Mayors made moving appeals for illegality.

I mention these two because they are from countries under the U.S. nuclear umbrella, and they are examples of the power of people when they speak out. Gareth Evans, of course, denied that the Australian position had anything to do with the upcoming elections. That's okay. But we want all the governments in the world to expect to be voted out of office if they fail to work effectively for abolition of nuclear weapons, and for an end to the scourge of war.

Abolition-2000

In 1986, when a visit by IPPNW and a group of scientists had convinced Mikhail Gorbachev that nuclear war would be altogether too destructive, he and Ronald Reagan issued their famous statement that a nuclear war must never be fought. Six heads of governments--Argentina, Greece, India, Mexico, Sweden, and Tanzania--wrote their appeal: We urge you to proceed beyond this affirmation and to ensure that a nuclear war does not occur. As long as nuclear weapons continue to exist, the danger of their being used, either by accident or design, cannot be altogether excluded. The only long-term answer is the complete elimination of these horrible weapons of mass destruction...

In 1993 the Pugwash group of scientists published the first serious study on the subject: A Nuclear-Weapons-Free World--Desirable? Feasible? Writers included eminent political scientists and arms control experts.

In 1995 the Non-Proliferation Treaty Renewal (NPT) conference, the 50-year U.N. commemorations, and the oral hearings at The Hague gave opportunities for representatives of many governments to speak publicly of abolition. On the last day of the NPT conference Mexico called for the Conference on Disarmament in Geneva to put on its agenda the abolition of nuclear weapons as the next logical step. Sweden said: The international community should reaffirm its commitment to progressively eliminate nuclear and other weapons of mass destruction from all nations, and should initiate a program to make that goal a reality in ten to fifteen years. The Philippines called for immediate negotiations on a Comprehensive Nuclear Disarmament Treaty. Switzerland called for commitment to a complete elimination of weapons of mass destruction within precise deadlines. Ireland, Malaysia and many others called for a similar commitment to abolition.

Australia has set up a Commission on the Elimination of Nuclear Weapons, as announced by Prime Minister Keating in a speech at the U.N. 50th anniversary observance. The Commission consists of 15 statesmen, scientists, disarmament experts and military strategists. It includes Joseph Rotblat, a scientist who resigned from the Manhattan Project in 1944 and now has won the 1995 Nobel Peace Prize.

The NGO representatives who were in New York for the NPT Renewal Conference got together and formed the Abolition Caucus. Meeting again in The Hague, they launched Abolition-2000: A Global Network to Eliminate Nuclear Weapons. The objective is to obtain a treaty by the year 2000, making a definite timetable for worldwide elimination of nuclear weapons. Over 250 citizen organizations have already endorsed the project. To make progress in this enterprise, we have to change the thinking of the decision-makers, and more importantly that of their principal advisers whose tenure of office is usually longer. We must persuade them that a nuclear-weapons-free world is not a pious dream but a practical necessity for the world, and is feasible.

Peace Magazine Jan-Feb 1996

Peace Magazine Jan-Feb 1996, page 20. Some rights reserved.

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