Professor Bilder has clearly identified the legal arguments on both sides of this issue. 1 Like most legal debate, there is logic in those arguments, and, depending upon the role that one assumes and the values and interests one wishes to serve, both sides appear equally convincing. As a teacher of international law, it was extremely hard for me to avoid the temptation of writing a paper debating the legality of the issue, but I take a slightly different approach here.
I have pointed out, in an earlier paper, 2 the pragmatic character of the decision taken by the International Court of Justice in the Nuclear Test Cases. 3 Cautious pragmatism, I had argued, was a natural outcome of the court's desire not to lose its legitimacy in the eyes of those powerful nations with nuclear capabilities and on whose support the very life of the court may depend. A decision to the contrary, declaring the French nuclear tests illegal, would certainly not have been respected by the French. Further, I believe, through their steadfast and publically maintained silence throughout the history of the case, the other nuclear states, including the United States and Soviet Union, had sent clear signals to the court about what they wanted the outcome to be. It may sound as if I am suggesting the court was a puppet of the big powers. I am not. All I am suggesting is the near impossibility for the International Court of Justice, or any court, for that matter—international or national—reaching a decision that it has reason to believe will not be followed either in content or spirit by the concerned actors. Equality as an underlying principle of American constitutional structure, for example, was not translated and interpreted in a way respectful of black aspirations for humane treatment until recently. How could it have been otherwise without at least some indication of its acceptance by the people in the rest of the social milieu? It is the same kind
* This essay is based on remarks delivered at the Conference on Nuclear Weapons and Law held at Nova University Center for the Study of Law on February 5, 1983.
** Associate Professor, City University of New York Law School at Queens College.