By John Burroughs
Foreword by Phon van den Biesen
INTERNATIONAL ASSOCIATION OF
LAWYERS AGAINST NUCLEAR ARMS
Lit Verlag, 1997
[What follows is the introduction summarizing
the opinion and its implications. Link here if you would like
to order the entire book.]
In an historic opinion issued 8 July 1996, the International
Court of Justice (ICJ) held that the threat or use of nuclear weapons
is generally illegal, and that states are obligated to bring to a conclusion
negotiations on nuclear disarmament in all its aspects.
Popularly known as the World Court, the ICJ is the
judicial branch of the United Nations, and the highest and most authoritative
court in the world on questions of international law. Its statement
of the law governing nuclear weapons is therefore of signal importance.
General illegality of the threat or use of nuclear
In a formal conclusion, the Court held that "the threat
or use of nuclear weapons would generally be contrary to the rules of
international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law." (2)
conclusion is powerfully supported by key elements of the Court's analysis,
- Nuclear weapons have "unique characteristics," including "their
destructive capacity, their capacity to cause untold human suffering,
and their ability to cause damage to generations to come;" their "destructive
power … cannot be contained in either space or time;" a nuclear explosion
"releases not only immense quantities of heat and energy, but also
powerful and prolonged radiation," which "would affect health, agriculture,
natural resources and demography over a very wide area," and "has
the potential to damage the future environment, food and marine ecosystem,
and to cause genetic defects and illness in future generations;"
- Under humanitarian law, "methods and means of warfare, which would
preclude any distinction between civilian and military targets, or
which would result in unnecessary suffering to combatants, are prohibited.
In view of the unique characteristics of nuclear weapons, …
the use of such weapons in fact seems scarcely reconcilable with respect
for such requirements;" (4)
- Self-defence warrants "only measures which are proportional to
the armed attack and necessary to respond to it," and "a use of force
that is proportionate under the law of self-defence, must, in order
to be lawful, also meet the requirements of the law applicable in
armed conflict which comprise in particular the principles and rules
of humanitarian law;" (5)
- The environment "represents the living space, the quality of life
and the very health of human beings, including generations unborn,"
and "States must take environmental considerations into account when
assessing what is necessary and proportionate in the pursuit of legitimate
military objectives" and in implementation of the law applicable in
armed conflict; (6)
- The nuclear weapon states failed to demonstrate that any use of
nuclear weapons, including a "clean" use involving "low yield" weapons,
could comply with legal requirements or avoid catastrophic escalation;
- "[I]f the use of force itself in a given case is illegal - for
whatever reason - the threat to use such force will likewise be illegal."
The force of the holding that threat or use is generally illegal is thus
overwhelming when viewed in the context of the entire opinion. It
was qualified by the statement that "the Court cannot conclude definitely
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." (9)
the Court referred to the right of self-defence, the policy of deterrence,
whose legality the Court declined directly to assess, and the elements
of fact and law at its disposal. However, threat or use in such
a circumstance remains subject to the requirements of humanitarian law.
As the Court stated, a "fundamental" and "intransgressible" rule is that
"States must never make civilians the object of attack and must consequently
never use weapons that are incapable of distinguishing between civilian
and military targets." (10)
The strength of the general illegality conclusion is further revealed
by the voting pattern. Both that conclusion and the extreme circumstance/survival
of the state provision are set forth in paragraph 2E of the dispositif,
which records the Court's formal conclusions. The entire paragraph
was voted for by seven of the fourteen judges then serving on the Court,
and was adopted as the Court's opinion based on the casting vote of the
President, Mohammed Bedjaoui. But, the judges' separate statements
show that while the extreme circumstance/survival of the state provision
was intensely controversial, support for general or categorical illegality
was broad and deep. Three judges declined to vote for paragraph
2E because it did not definitively hold threat or use of nuclear weapons
to be categorically illegal, that is, illegal in every circumstance. Thus
ten judges supported at least a holding of general illegality.
The obligation to eliminate nuclear weapons
In paragraph 2F of the dispositif, the Court unanimously
held that "[t]here exists an obligation to pursue in good faith and bring
to a conclusion negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control." The Court
explained that Article VI of the Nuclear Non-Proliferation Treaty (NPT)
imposes "an obligation to achieve a precise result - nuclear disarmament
in all its aspects - by adopting a particular course of conduct, namely,
the pursuit of negotiations on the matter in good faith." (11)
The Court observed that 182 states, "the vast majority of the international
community," are parties to the NPT, and that nuclear disarmament is "an
objective of vital importance to the whole of the international community
Endorsed by every judge on the Court, this is now the authoritative interpretation
of Article VI of the NPT, and is perhaps the most important result of
the case. Its importance is underlined by the fact that it was not
required by the request of the General Assembly of the United Nations
for clarification of the legal status of threat or use of nuclear weapons,
but rather was produced on the Court's own initiative. In the Court's
view, elimination of nuclear weapons is the only adequate response to
the dilemmas and risks posed by the nuclear age. Of special significance
is the holding that Article VI requires states to achieve nuclear disarmament
through good faith negotiation. Talking is not enough; the talk
must lead to action. Also important is that the Court delinked the
obligation to achieve nuclear disarmament from the obligation, also found
in Article VI, to establish a treaty on general and complete disarmament.
Nuclear weapon states can no longer plausibly rely on the rationale
that elimination of nuclear weapons must await comprehensive global disarmament.
Also significant is the implication that the obligation applies
to all states, not only those who are party to the NPT, thus binding such
threshold states as India, Israel, and Pakistan.
The Court's holdings came in response to a request
for an advisory opinion by the General Assembly, not in the context of
a contentious case that concerns a specific dispute among states. Because
it is advisory, the opinion as such is not directly binding on the United
Nations or its member states. However, the ICJ has authoritatively
interpreted law which states acknowledge they must follow, including humanitarian
law, the United Nations Charter, and Article VI of the NPT. Accordingly,
the opinion is binding in the sense that states must comply with the law
it applies. It can be cited as an authoritative statement of the
law in any political or legal setting - including NPT review conferences,
the General Assembly, national courts or parliaments, or the ICJ itself
- in which nuclear weapon policies are challenged.
While noting the opinion's advisory character, the nuclear weapon states
have not sought to deny its authority. Rather they have claimed
that their policies comply with the law as stated in the opinion, referring
to the Court's refusal directly to pass upon deterrence, its uncertainty
with respect to an extreme circumstance of self-defence in which the very
survival of a state is at stake, and arms control and non-proliferation
measures such as United States-Russian bilateral reductions and the Comprehensive
Test Ban Treaty. (13)
Most of the world disagrees. One hundred fifteen states voted for
the December 1996 General Assembly resolution initiated by Malaysia calling
for compliance with the opinion by commencement in 1997 of negotiations
leading towards a nuclear weapons convention. (14)
To show that this is workable, the International Association
of Lawyers Against Nuclear Arms, its U.S. affiliate, the Lawyers' Committee
on Nuclear Policy, the International Network of Engineers and Scientists
Against Proliferation, and others have drafted a model nuclear weapons
convention. Like the chemical and biological weapons conventions
already in force, the model convention sets forth an institutional framework
and measures accomplishing the total abolition of nuclear weapons. Numerous
states have also demanded nuclear disarmament in compliance with the opinion
in proceedings reviewing implementation of the NPT.
Other developments are also promising. Abolition 2000: A Global
Network to Eliminate Nuclear Weapons, was formed at the November 1995
hearings on the nuclear weapons case before the ICJ in The Hague and now
comprises more than 700 groups worldwide. The Network has made conclusion
of a nuclear weapons convention its central demand. The Canadian
Abolition 2000 Network, led by former Canadian Ambassador for Disarmament
Douglas Roche, conducted a series of town meetings discussing Canada's
policy in light of the opinion. The conclusions of the process,
in particular that Canada should work for an end to NATO's reliance on
nuclear weapons, were presented at a parliamentary hearing. World
Court Project activists in the United Kingdom similarly have engaged policy-makers
in dialogue about the implications of the case, as have activists in other
countries. Numerous cities have passed resolutions calling for creation
of a nuclear weapon free world in compliance with the opinion. Non-violent
direct action campaigns have demanded the withdrawal of nuclear weapons
from deployment based on the opinion, and it has been cited in defending
against prosecutions arising out of protest actions. (15)
As these initiatives reflect, contrary to the claims of the nuclear weapon
states, deterrence policies are highly vulnerable to challenge in light
of the opinion. While the Court declined to confront deterrence
head on, it did hold that a threat of use of illegal force is itself illegal.
In realistic scenarios, no type of nuclear weapon now deployed can be
used or threatened to be used in compliance with humanitarian and other
applicable law. As a committee of the U.S. National Academy of Sciences
[T]he ICJ unanimously agreed that the threat or use of nuclear
weapons is strictly limited by generally accepted laws and humanitarian
principles that restrict the use of force. Accordingly, any threat
or use of nuclear weapons must be limited to, and necessary for, self
defense; it must not be targeted at civilians, and be capable of distinguishing
between civilian and military targets; and it must not cause unnecessary
suffering to combatants, or harm greater than that unavoidable to achieve
military objectives. In the committee's view, the inherent destructiveness
of nuclear weapons, combined with the unavoidable risk that even the
most restricted use of such weapons would escalate to broader attacks,
makes it extremely unlikely that any contemplated threat or use of nuclear
weapons would meet these criteria. (16)
Moreover, the illegal threat of use is inherent in the postures of deterrence
(hair trigger deployment, declared policies of massive retaliation, first
use, and defence of "vital interests," etc.) now continuously maintained
by the nuclear weapon states absent any extreme circumstance of self-defence
in which their very survival is at stake. (17)
postures are also inconsistent with implementation of the obligation to
eliminate nuclear arsenals through good faith negotiation.
The opinion therefore mandates the immediate implementation of measures
to reduce the level of threat and risk in existing nuclear postures like
those recommended by the U.S. National Academy of Sciences and the Canberra
Commission on the Elimination of Nuclear Weapons. (18)
These include adoption of unconditional no first use commitments, taking
nuclear forces off alert, and separation of warheads from delivery systems.
And, consistent with the calls for the abolition of nuclear weapons now
being made by these and other authorities, most states, and citizens'
groups around the world, the Court unanimously recognized that the only
viable permanent response to the illegality of threat or use is the achievement,
in compliance with the NPT, of nuclear disarmament in all its aspects.
1. Legality of the Threat or
Use of Nuclear Weapons, General List No. 95 (Advisory Opinion of 8 July
1996). Unless otherwise stated, references are to this opinion,
which was requested by the General Assembly, not to the nuclear weapons
advisory opinion requested by the World Health Assembly.
2. Para. 105(2)E.
3. Paras. 35, 36.
4. Para. 95.
5. Paras. 41, 42.
6. Paras. 29, 30, 33.
7. Para. 94.
8. Para. 47.
9. Para. 105(2)E.
10. Paras. 78, 79 (emphasis added).
11. Para. 99.
12. Paras. 100, 103. Since the Court issued
its opinion, the number of states parties has risen to 186.
13. See Appendix B.
14. See Appendix E for the text of the resolution.
15. A case in Germany arising out of trespass
on U.S. Army headquarters in command of nuclear weapons in Europe illustrates
how the opinion can bolster the defence of protesters. While the
decision acquitting the protesters has been vacated on appeal and the
case returned to the trial court for further proceedings, the reasoning
of the initial judge regarding the ICJ opinion is worth noting. He
observed regarding the Court's uncertainty as to an extreme circumstance
of self-defence in which the very survival of a state is at stake:
Because such an extreme situation no longer exists in any case since the
end of the East-West confrontation in Europe, the stationing of nuclear
weapons and the maintenance of installations necessary for their use is
not (any longer) justifiable. The same is true for the related military
strategy which includes still the option of the first use of nuclear weapons
by U.S. Armed Forces as well as NATO.
Amtsgericht Stuttgart (District Court), Judge Wolf, B 8 Ds 1045/93, GJ
9 27928/93, B 8 (870) Cs 1039/96, B 8 Cs 1037/96, judgment dated 3 December
1996 (unofficial translation).
The opinion has also been cited in defending protesters in the United
Kingdom (Reading), where an acquittal followed the prosecution's refusal
to put on evidence; Belgium, where a conviction was vacated based on lack
of jurisdiction; in France, where a conviction was vacated on the same
ground; and in Wisconsin, Maine (the "Plowshares 8"), and Nevada in the
United States. In Wisconsin, a partial acquittal was obtained; defendants
were convicted in other cases.
16. Committee on International Security and Arms
Control, National Academy of Sciences, The Future of U.S. Nuclear Weapons
Policy (Washington, D.C.: National Academy Press, 1997), p. 87 (emphasis
17. Richard Falk comments that the Court "explicitly
avoids making any legal assessment of deterrence in theory and practice.
At the same time, the decision does circumscribe the legal right to threaten
or use nuclear weaponry in a manner that seems inconsistent with the practice
of deterrence in most of its forms, other than possibly so-called minimum
deterrence. A problematic character of the decision arises from
this failure to address more directly the current doctrines and practice
of nuclear weapons states, which leaves in doubt the policy implications
of the advice being given. Admittedly, the court was confronted
by a dilemma: had it attempted to remove doubt as to the legality of current
practice by making detailed commentary on strategic doctrines in various
settings, it would have manifested a degree of technical incompetence
that would likely have considerably damaged its reputation as a responsible
judicial body." Falk, "Nuclear Weapons, International Law and the
World Court: An Historic Encounter," 91 American Journal of International
Law (No. 1, January 1997), pp. 64-75, at pp. 70-71.
18. For the National Academy of Science recommendations,
see The Future of U.S. Nuclear Weapons Policy, op. cit., esp. at pp. 62-63.
The Canberra Commission on the Elimination of Nuclear Weapons was convened
by the Australian government and included a number of distinguished politicians,
military officers, diplomats, and others from around the world.
Its report was released in 1996 and is available from the government of
Australia and on various web-sites, including www.dfat.gov.au/dfat/cc/cchome.html