Judging the Illegality of Nuclear Weapons: Arms Control Moves to the World Court
Mendlovitz, Saul, Weiss, Peter, Arms Control Today
At precisely 10 a.m. on October 30, 1995, the 14 judges of the International Court of Justice (ICJ), popularly known as the World Court, took their seats in the Peace Palace in The Hague to hear oral arguments in one of the more momentous cases in the court's history. The case represents the most concerted effort to date to apply the laws and norms of the international legal system to the process of nuclear disarmament. In effect, the court has been asked to judge the legality of nuclear weapons.
Specifically, the ICJ has been asked to render "advisory opinions" on the legality of the use or threatened use of nuclear weapons under international law. The judges are now considering two related questions submitted separately to the court by the World Health Organization (WHO)-the principal UN agency dealing with health matters-in 1993 and by the UN General Assembly in 1994. The question submitted by the WHO is: "In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?" The question posed by the General Assembly is: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?" [Emphasis added.]
During the nearly three weeks of hearings, which ended on November 15, the court heard oral arguments from the WHO and 22 countries, 19 of which had previously submitted written statements (as did 23 other countries), making it the most widely participated-in case in ICJ history The court, which is now deliberating as to whether it will address either or both of the petitions and, if so, what advisory opinion or opinions will be rendered, is expected to announce its decision on both these issues this spring.
The nuclear weapons case before the ICJ is unusual in a number of ways. First, unlike most cases to come before the court and unlike most arms control initiatives, it originated with civil society rather than national governments or UN agencies. Second, the case, as a disarmament initiative, clearly apposes the nuclear-weapon states and the non-nuclear-weapon states. Finally, the case seeks to hold the nuclearweapons states to pre-existing norms of international law rather than creating new international law by treaty or convention.
The International Court of Justice
The ICJ is "the principal judicial organ of the United Nations."' As such, it is the supreme authority on questions of international law, or as close to supreme as any authority gets. The court has 15 members, no two of whom may be of the same nationality.2 They are elected by majority votes of the General Assembly and the UN Security Council. While the court's members are elected for nine-year terms, their terms are staggered (determined by lot drawn by the UN secretary-general) so that every three years five judges are appointed. The judges may stand for re-election and many have been re-elected. The next election is in 1997, at which time Mohammed Bedjaoui of Algeria, the current court president, will be, we understand, considered for re-election. Serving on the ICJ is a full-time occupation, although in the past the court's docket has frequently been rather thin.
The ICJ is a court of first and last instance. It has two types of jurisdiction: contentious and advisory. Contentious jurisdiction is concerned with disputes between states, and comprises "all cases which the parties refer to it and all matters specially provided for in the Charter of the United Nations or in treaties and conventions in force."3 Individuals do not have access to the court.
Advisory opinion cases arise under Article 96 of the UN Charter, which authorizes the General Assembly or the Security Council to request such opinions on "any legal question." It also permits other organs of the United Nations and specialized agencies, if so authorized by the General Assembly, to request advisory opinions on "legal questions arising within the scope of their activities. …