The International Court of Justice and the Use of Nuclear Weapons
Schmitt, Michael N., Naval War College Review
IN JULY 1996, THE INTERNATIONAL COURT OF JUSTICE (ICJ) issued an opinion on the use of nuclear weapons that has since generated both confusion and controversy in the legal, military, and policy communities. Did it outlaw the threat or use of nuclear weapons? If not, under what circumstances might those weapons be used? What effect should the opinion have on existing nuclear arsenals? To what extent, if any, is it binding on states? Is the thirty-fourpage pronouncement, with lengthy dissenting and separate opinions attached, nothing more than jurisprudential chitchat?1
The brouhaha has been engendered by a number of factors. There is little question that the matter is highly emotive; indeed, the mayors of Hiroshima and Nagasaki testified at the hearings in The Hague. It is also a politically charged topic, in some respects a battle between the nuclear haves and have-nots. The fact that a group of antinuclear nongovernmental organizations was the driving force behind the effort to have the Court address the issue only exacerbated matters. However, neither emotionalism nor politicization contributes much to defusing the threat that all rational people and entities recognize in nuclear weaponry.
This article will attempt to clarify the substance and meaning of the case known as Legality of the Threat or Use of Nuclear Weapons, one clearly unique, in terms of both import and subject matter, in the ICJ's fifty-two-year history.3
The intent is to clear away some of the fog that surrounds the decision, a necessary first step for those who are charged with making, executing, or analyzing national policy. The discussion begins with a survey of how the matter came to the ICJ's attention, why the Court declined to rule in a companion case, and the decision to exercise jurisdiction. With the groundwork laid, the findings and their legal basis will be analyzed and assessed. The article will conclude with reflections on the significance of the Court's decision. Genesis of the Case
Cases that come before the International Court of Justice usually involve either disputes over territory or questions regarding the competence of United Nations organs4The present case breaks this mold, being instead the product of global interest-group pressure. Interestingly, however, the effort to seek international adjudication on the subject of nuclear weapons has an extensive lineage. A seminal event in the process was the publication in 1980 of an article by Richard Falk, Elliot Meyrowitz, and Jack Sanderson arguing the illegality of nuclear weapons.5 Soon thereafter, a group of attorneys in the United States formed the Lawyers' Committee on Nuclear Policy, which in 1988 joined antinuclear legal organizations from abroad to establish the International Association of Lawyers Against Nuclear Arms (IALANA).6 Equally active in the antinuclear movement was the medical community; in fact, the International Physicians for the Prevention of Nuclear War (IPPNW) was awarded the Nobel Peace Prize in 1985.
It was individual activism that instigated the move towards judicial attention, when Harold Evans, a retired judge in Christchurch, New Zealand, launched his own campaign against nuclear weapons. In a 1987 open letter to the prime ministers of New Zealand and Australia, and in separate letters to other governments, he urged the steps necessary to bring the issue before the ICJ.The following year he secured the support of the New Zealand chapter of the IPPNW, which led in turn to backing for the idea by the organization as a whole. In 1989, it suggested that the matter be brought to the ICJ through the World Health Organization (WHO), a specialized United Nations agency entitled to seek opinions of the Court under the United Nations Charter.7
Meanwhile, activists in the legal community were headed in the same direction. During its 1989 convention at The Hague, the IALANA adopted a declaration labeling the use of nuclear weapons a war crime and a crime against humanity, and calling on United Nations member states to seek a General Assembly resolution requesting an ICJ advisory opinion on the subject. …