Time to return to the World Court?

On 8 July 1996 the International Court of Justice (ICJ), at the request of the United Nations General Assembly, delivered an advisory opinion on the legality of the threat or use of nuclear weapons in which it concluded that the threat or use of nuclear weapons was generally illegal and that there is 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 decision addressed two key aspects of nuclear weapons policy - doctrine on threat or use, and commitment to disarmament. Nearly nine years later little seems to have changed in either area. At the 2000 NPT Review Conference the Nuclear Weapon States (NWS) made an unequivocal undertaking to achieve the elimination of nuclear arsenals and agreed on a number of steps towards that goal, including reducing the role of nuclear weapons in security policies.

However, these agreements could have been written in invisible ink and they would have had more impact on the NWS actual policies and practices than what has occurred since 2000. The major NWS have no further disarmament plans and collectively possess tens of thousands of nuclear weapons. If anything, they have broadened the role of nuclear weapons in their doctrines to include the threat or use of nuclear weapons in a wide variety of circumstances, most of which would likely be in violation of the ICJ’s decision. In addition they maintain nuclear sharing arrangements with non- NWS members of NATO, which possibly violate the NPT prohibition on transfer of nuclear weapons.

Thus the question to be asked, especially if there is no progress at the 2005 NPT Review Conference in May, is whether it is time to return to the ICJ to ascertain whether the NWS are in compliance with their obligations under international law as determined by the 1996 Advisory Opinion and the NPT, and if not, what measures should they be required to take?

Such a case could also consider whether the allies of the NWS are in compliance with their obligations, considering the facts that they subscribe to extended nuclear deterrence doctrines and most of them have joined the NWS in blocking proposed negotiations on nuclear disarmament. It could also consider the legal obligations of States not parties to the NPT, on the grounds that the ICJ’s conclusions applied to all States regardless of whether or not they were NPT Parties.

As such, IALANA has started exploring the possibilities and potential political impact of lodging a follow-up case in the ICJ.

IALANA Netherlands has prepared a model application to the ICJ for a case on the issue of compliance with nuclear disarmament obligations. Rebecca Netter and Alyn Ware of the IALANA Pacific Office are preparing legal briefs considering cases against the States mentioned above covering issues of compliance with disarmament obligations as well as questions on a) the transfer of nuclear weapons and nuclear weapons technology from NWS to any other recipient, b) withdrawal from the NPT, c) development of nuclear weapons programs by States not parties to the NPT, d) policies of threat or use of nuclear weapons, and e) transparency of nuclear weapons development and doctrines.

The political issues being considered by IALANA include: a) against which countries to lodge a case, b) whether to pursue and advisory or contentious case, c) whether a case will have a positive impact on the disarmament agenda, d) what progress is being made in the various disarmament fora, and e) whether a case against only the most serious violators would have more chance of success but more likelihood of being perceived as discriminatory.

IALANA will thus be ready to consult with States and non-governmental organisations following the 2005 NPT Review Conference on the potential for such a case if little progress is made in May.