On July 8, the International Court of Justice (ICJ) announced an historic advisory opinion. In terms of international peace law and the fettering of the discretion of states, it may be without parallel.
The ICJ held that the threat or use of nuclear weapons is "contrary to rules of international law applicable in armed conflict," with one exception. The ruling has been welcomed by NGOs, peace movements, and governments worldwide.
The court's exception found 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." While the Court voted 7-7 on this exception, three judges dissented because they held that nuclear weapons were still illegal in "extreme circumstances of self-defence." Retired U.S. Navy Rear Admiral Eugene Carroll stated that the Court erred in equating the use of nuclear weapons with defence. Another opinion is that the Court refused to deal with the kernel of the issue and abrogated its role as "principal judicial organ" of the international system. Its decision that the legality of nuclear weapons in extreme cases of self-defence is not clear shows the Court's unwillingness to apply the law to Realpolitik. This view was stated most notably by the Court's vice-president, Schwebel. He stated that "if this was to be its ultimate holding, the Court would have done better to have drawn on its undoubted discretion not to render an opinion at all." The significance of the exception cannot be known until it is tested.
Some expected the Court, which includes a judge from each of the nuclear weapons states, to bow to the U.K., the U.S., France, and Russia, who argued that the case was outside the realm of international law and not an issue to be decided by the ICJ. It is a tribute to the strength of international law and the ICJ that it did not reject the case as being of political and not legal nature. However, the Court did reject the case of the World Health Organisation (WHO). When the World Court Project began, it successfully lobbied the WHO to refer the legality of the use of nuclear weapons to the ICJ. The Non-Aligned Movement in the General Assembly of the U.N. took the case further and referred the legality of both the use and the threat of use of nuclear weapons to the Court. This broadened the issue and strengthened the standing of the petitioners. And while the Court ultimately rejected the WHO's standing, it used much of the evidence it presented during the judgments. This rejection could be seen as a small concession to the nuclear weapons states.
The Court held unanimously 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." This element of the decision was unexpected. According to ICJ president Bedjouai, the obligation to negotiate the elimination of nuclear weapons, in accordance with Article VI of the Nuclear Non-Proliferation Treaty (NPT), has attained the status of customary international law. This means that it is binding on all states, whether or not they have ratified or signed the NPT.
Nuclear weapons states can no longer vacillate with regard to the Test Ban Treaty and the NPT. They are obliged under international law to negotiate to disarm. That the Court would bring the force of law so explicitly into the realm of politics and security is a very positive development. As retired Royal Navy commander Robert Green of World Court Project U.K. stated, "This places a duty on the military to review their whole attitude towards nuclear weapons, which are now effectively in the same category as chemical and biological weapons."
Defence analyst Daniel Ellsberg pointed out an immediate consequence of the decision at the World Court Project's press conference. He said it would outlaw threats of first use of nuclear weapons, such as those recently made by U.S. Defence Secretary Perry against Libya. That international law can proscribe such action on the part of the world's great military powers is a significant step for the rule of law over politics.
Daniel Mac Sweeney is a law graduate and scholar at the World Federalist Movement in New York. He is working on a finance structure for the prospective International Criminal Court.
Peace Magazine Sep-Oct 1996, page 15. Some rights reserved.
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