By Ware, Alyn
UN Chronicle , Vol. 36, No. 4
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. …