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The Criminality of Nuclear Deterrence

By Francis A. Boyle | Go to book overview

CHAPTER FIVE
THE CRIMINALITY OF
NUCLEAR DETERRENCE

Introduction

In my book The Future of International Law and American Foreign Policy (Transnational Publishers Inc.: 1989), I traced the origins of the idea to request an Advisory Opinion on the Legality of Nuclear Weapons from the International Court of Justice—the so-called World Court of the United Nations System—to the late Sean MacBride, the International Peace Bureau, the Lawyers Committee on Nuclear Policy, the International Association of Lawyers Against Nuclear Arms (IALANA), and others. 1 This suggestion was formally taken up and consolidated into a Joint Project launched by the International Association of Lawyers Against Nuclear Arms, the International Peace Bureau, and the International Physicians for the Prevention of Nuclear War, and was then entitled The World Court Project on Nuclear Weapons and International Law. 2 These anti-nuclear ideas, sentiments and efforts eventually bore fruit— not surprisingly—among the member states of the United Nations General Assembly constituting the Non-Aligned Movement. At their initiative, on 15 December 1994, the General Assembly adopted Resolution 49/75K, requesting the International Court of Justice “urgently” to render its Advisory Opinion on the following question: “Is the threat or use of nuclear weapons in any circumstances permitted under international law?” (Emphasis added.) Resolution 49/75K was adopted by 78 votes in favor, to 43 against, with 38 abstentions.

In response thereto, on 8 July 1996, the International Court of Justice issued its Advisory Opinion entitled Legality of the Threat or Use of Nuclear Weapons. It is not my purpose here to provide a detailed, comprehensive analysis of this World Court Advisory Opinion, together with its appended Declarations by five Judges, its appended Separate Opinions by three Judges, and its appended Dissenting Opinions by six Judges. That endeavor would require the publication of an entire book. Rather, it is my precise purpose here to explain how this World Court Advisory Opinion on nuclear weapons can be used by lawyers in order to defend anti-nuclear resisters from criminal prosecution on the basis of international law. Furthermore, this analysis has also been written for the express purpose of providing some guidance to pro se anti-nuclear resisters who seek to defend themselves from criminal prosecution by using international law without the assistance of an attorney.

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