Nukes Aren't Green; International Judges Stress Ecological Concerns in Ruling on the Legality of Nuclear Weapons

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International law has edged a little further toward rejecting nuclear weapons and accepting environmental responsibility as a significant constraint on human actions.

The advances have come in an International Court of Justice (ICJ) ruling on a question referred to the Court by the United Nations General Assembly in 1994: "Is the threat or use of nuclear weapons in any circumstance permitted in international law?"

As the principal judicial organ of the UN, the ICJ is the final arbiter of international law. Consequently the opinion of the 14 judges (usually there are 15, but one died immediately before the nuclear weapons hearing) on any point of international law is considered authoritative.

The Court's response to the nuclear weapon question - the July 1996 advisory opinion on The Legality of the Threat or Use of Nuclear Weapons - is not simple or definite. The 14 judges who heard the case set out individual positions on several different aspects of the question and reached full agreement only on some of them.(1)

Nevertheless, the Court confirmed the illegality of both the threat and use of nuclear weapons under international law in most imaginable circumstances. In fact, some commentators who have calculated the effect of each judge's comments on the seven questions believe that if the questions had been framed differently, a clear majority of the judges would have found nuclear weapons to be illegal in all circumstances.(2)

Peace activists have now begun to rely on the ICJ opinion in campaigns by focusing on the illegality of nuclear weapons and holding their governments accountable to the rule of law.

A narrow majority of the Court concluded that international law does not have a definitive answer to the question of "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." At the same time, however, the judges were unanimous in finding that any use or threat to use nuclear weapons is subject to the UN Charter and other international humanitarian law applicable in armed conflict.

These requirements, which include provisions forbidding the use of weapons that do not distinguish between civilian and military targets, appear to rule out nuclear weapons. As the Court observed, "The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet."(3)

In the course of its opinion, the ICJ made a number of important statements about environmental constraints on the use or threat of nuclear weapons, the status of international environmental conventions, and the impact of commitments to sustainable development.

Recognizing the relevance of environmental considerations, the Court considered the use of nuclear weapons in light of the various protocols to the Geneva Conventions (on War) of 1949. These include the protocol of 1977, which prohibits the employment of"methods or means of warfare which are intended or may be expected, to cause widespread, long-term and severe damage to the natural environment." The Court also referred to Principle 21 of the Stockholm Declaration (1972); and Principle 2 of the Rio Declaration (1992).

The ICJ concluded:

Taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage, and the prohibition of attacks against the natural environment by way of reprisals. …