Since the International Court of Justice rendered its landmark decision on the legal status of nuclear weapons just two months ago, there has been widespread discussion of the ruling and its legal and political ramifications.
As many readers are aware, the Court responded to the United Nations General Assembly's (UNGA) 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 did come 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." The Court did not identify, therefore, any lawful circumstance for nuclear weapon threat or use, only that it was unable to draw a definitive conclusion one way or the other.
Even the nuclear weapon states supported the Court's statement 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 comprises in particular the principles and rules of humanitarian law."
The President of the Court, Judge Bedjaoui, stated that "legitimate defence - even if it were exercised in extreme conditions putting at issue the very survival of a State cannot generate a situation in which a State would itself be exempted from respect for the 'inviolable' norms of international law."
Judge Bedjaoui stated that it would be rash to give, without any hesitation, a higher priority to the survival of a State than to the survival of humanity itself.
In addition, the Court 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."
In response to the request by the World Health Organization (WHO) for an advisory opinion on the legality of the use of nuclear weapons in view of their health and environmental consequences, the Court stated that the question was "not within the scope of [WHO's] activities" because the question related to the legality of the use and not to their effects on health and the environment. Even though the WHO request for an advisory opinion was not accepted, the role of the question should not be underestimated. It helped pave the way for the UNGA resolution. Also, because the WHO request was dealt with at the same time as the UNGA resolution, health arguments contributed to the issue in a way that has never before been seen in political discussions on nuclear warfare.
The law of armed conflict is derived from a variety of sources, including the U.N. Charter, the Hague and Geneva conventions, other international agreements, and customary practice.
According to the U.N. 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:
The Court also confirmed that the principle of neutrality remains applicable to all states, 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 states that have ratified it) "means of warfare which are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment."
These 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 nuclear plans of the nuclear weapon states must therefore be deemed illegal.
The decision will not lead to the immediate abolition of nuclear weapons. In fact, the initial reaction of the nuclear weapon states has been to claim that the Court's ruling requires no changes at all to their nuclear policies. Therefore, there is every likelihood that they will continue either to ignore or willfully misinterpret it for as long as they can.
Despite the fact that an "advisory opinion" is not binding on any state, the Court ruling does represent the most authoritative interpretation available of the obligations of all states under existing international law. As such it cannot be ignored by any state, or individual, wanting to be certain of complying with international law.
The ruling 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 to add weight and momentum to the global effort to "delegitimize" the possession of nuclear weapons by undermining the still widespread belief not only that nuclear weapons enhance national security but also that some states have the right to possess them. 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 an international convention which sets out a binding timetable for the elimination of all nuclear weapons.
What might be the effects of the ruling in Canada? In Canada the government rules out acquiring a nuclear arsenal of its own, opposes nuclear proliferation, and supports the abolition of nuclear weapons - someday. Yet it 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 provided direct support to those forces in a variety of ways.1
Clearly, the Court's ruling has major implications for Canadian defence policy. The government has not yet made any substantive comments on the Court decision. But prior to the decision's release a representative of the Depart-ment of Foreign Affairs 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.
The success of the World Court Project was the result of a sustained campaign by individuals and organizations around the world. Our job, as supporters of the World Court Project, has not ended because the Court has ruled on the legality of nuclear weapons - it has only just begun. In the days ahead it is vital that we hold our government accountable.
The Chrétien government solemnly affirmed in January 1995 that "the rule of law is the essence of civilized behavior 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 pretense that it respects 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.
Bev Delong is president of Lawyers for Social Responsibility; Bill Robinson is on the staff of Project Ploughshares; and Henrietta Langran DesBrisay coordinated the World Court Project (Canada).
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, July 9, 1996.
3 Canada in the World, Department of Foreign Affairs and International Trade, 1995, p. 36.
WRITE TO AXWORTHY!
Canada's Department of Foreign Affairs has mounted an appeal on its Web site [http://www.dfait.maeci.gc.ca/engish/foreign/disarm/disarm.htm] inviting public input on the implications of the Court decision and on what Canada's next steps to promote nuclear disarmament should be. It asks that comments be sent by: