July 22, 1996
Peter Weiss
The landmark decision rendered by the International Court of
Justice on July 8 has been hailed by the anti-nuclear movement as a major victory for the
cause of abolition. It has also been disparaged by skeptics and pro-nuclear forces as
"incompetent", decided "by a narrow margin" and contributing nothing
new to the debate on the legality of nuclear weapons. The following notes will demonstrate
why the first of these two views is far closer to the truth than the second.
What the Court Did and What the Court Could Have Done
1. In response to the insistent urgings of the nuclear weapon states (NWS), the Court
could have used its discretionary power to refuse to consider the case altogether. It did
not do so, rejecting, by 13 votes to 1, including those of all the judges from NWS, the
argument that the questions put to it by WHO and the UN General Assembly were essentially
political in nature and that an opinion from the Court would interfere with disarmament
negotiations.
2. The Court could have held that the threat and use of nuclear weapons is illegal in
some circumstances, but not necessarily all, without specifying the exceptional
circumstances, which was essentially the position of the four NWS which participated in
the proceeding - France, Russia, UK, US - and some of their NATO allies. Instead, the
Court held that "the threat and use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and particularly the
principles and rules of humanitarian law." The only possible exception to the
general rule mentioned by the Court was "an extreme circumstance of self-defense, in
which the very survival of a state would be at stake." But as to this "extreme
circumstance", the Court could not decide whether the threat and use of nuclear
weapons would be lawful or unlawful. In other words, the Court said that threat and use
are unlawful, period, and refused to say that, even in the extreme circumstance involving
the very survival of a state, threat and use would be lawful.
3. The Court could have said nothing about the obligation to rid the world of nuclear
weapons, since that question as such was not before it. In fact, the Court held unanimously
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 Numbers Game: Seven to Seven equals Ten to Four, or Maybe More
For some mysterious reason, the Court, which took seven votes on various aspects of the
General Assembly question, plus an eighth vote on the admissibility of the WHO question,
took a single vote on paragraph 2E, its two-part holding of general illegality and
possible "extreme circumstance" exception, thus obscuring the true nature of the
vote. The vote on 2E was seven to seven, with the President of the Court, Muhamad Bedjaoui
of Algeria, casting the deciding vote under the rules of the Court. But of the seven
dissenting judges, three - Shahabuddeen of Guyana, Weeramantry of Sri Lanka and Koroma of
Sierra Leone - made it clear in their separate opinions that the reason for their dissent
was their belief that there could be no exception whatsoever to the principle of general
illegality and a fourth, Oda of Japan, based his dissent principally on his view that the
Court should not have taken the case at all. Thus the position on general illegality was,
in effect, ten to four and the only three judges dissenting from that principle were those
elected to the Court from the three Western NWS, Schwebel (US), Guillaume (France) and
Higgins (UK).
In addition to the majority opinion, which is 37 closely printed pages in length, all
fourteen judges filed a total of 230 additional pages of separate opinions. A close
reading of these opinions reveals many interesting points which go counter to the
"narrow margin" view of the case. Thus,
Judge Schwebel recognizes the relevance of the Martens clause to nuclear weapons and
condemns the use of nuclear weapons as weapons of mass destruction :"It cannot be
accepted that the use of nuclear weapons on a scale which would - or could - result in the
deaths of many millions in indiscriminate inferno and by far-reaching fallout, have
pernicious effects in space and time, and render uninhabitable much or all of the earth,
could be lawful."
Judge Higgins has problems with the Courts analysis and formulation, particularly
the word "generally", but seems to leave open the possibility that a more
profound analysis might have led the Court to conclude in favor of illegality in any
circumstance, stating, inter alia, "I share the Courts view that it has
not been persuasively explained in what circumstances it might be essential to use any
such weaponry" and "I do not ... exclude the possibility that such a weapon
could be unlawful by reference to the humanitarian law, if its use could never comply with
its requirements." As befits the first woman judge in the history of the Court, Judge
Higgins also said "It may well be asked of a judge whether, in engaging in legal
analysis of such concepts as unnecessary suffering, collateral
damage and entitlement to self-defence, one has not lost sight of the
real human circumstances involved."
Those who, unlike Judges Schwebel and Higgins, voted with the majority, also had
interesting things to say:
President Bedjaoui had this comment on the "exceptional circumstance" clause:
"I cannot insist too strongly on the fact that the Courts inability to go
beyond the conclusion it reached cannot in any manner be interpreted as having opened the
door to the recognition of the legality of the threat and use of nuclear weapons." He
called nuclear weapons "the ultimate evil" and said "By its nature, the
nuclear weapon, this blind weapon, destabilizes humanitarian law, the law of
discrimination in the use of weapons." And, citing Einsteins adage that
"humanity will get the fate it deserves", he threw out this challenge: "The
ultimate aim of every action in the field of nuclear arms will always be nuclear
disarmament, an aim which is no longer utopian and which all have a duty to pursue more
actively than ever."
Judge Herczegh (Hungary) let it be known that he voted for the two-part paragraph
2E only so as not to take a negative position toward certain essential conclusions
contained therein, but indicated that, in his opinion, "the fundamental principles of
international humanitarian law ... categorically and without equivocation forbid the use
of weapons of mass destruction, including nuclear weapons" and that
"international humanitarian law knows no exceptions to these principles."
Judge Shi (China) objected to the fact that the majority, while declining to find that
the practice of deterrence had given legal sanction to this practice, referred to it as
one to which "an appreciable section of the international community adhered for many
years." Deterrence, he said, "has no legal significance from the standpoint of
the formation of a customary rule prohibiting the use of nuclear weapons as such";
"[t]he appreciable section of [the international community] to which the Opinion
refers by no means constitutes a large portion of [that community], and the structure of
the international community is built on the principle of sovereign equality", which
would be violated by "any undue emphasis on this appreciable section
".
Judge Vereshchetin (Russia), while agreeing with the proposition that "the most
appropriate means for putting an end to the existence of any grey areas in the
legal status of nuclear weapons would be nuclear disarmament in all its aspects
under strict and effective international control " also opined that it was
"plausible" that the Court could have deduced from its discussion of the
principles of humanitarian law "a general rule comprehensively proscribing the threat
or use of nuclear weapons, without leaving any room for any grey area, even an
exceptional one."
Judge Ferrari Bravo (Italy) called the Courts opinion "not very courageous
and sometimes difficult to read." He pointed out that, as a result of the many
resolutions passed by the General Assembly of the United Nations before the outbreak of
the cold war, the principle of the illegality of nuclear weapons had become a norm of
international law and only its implementation was sidetracked by the cold war and its
concomitant practice of deterrence. But he emphasized that the concept of nuclear
deterrence has "no legal validity whatsoever" and stated that "the totality
of the normative production of the last fifty years, particularly as concerns the
humanitarian law of war, is irreconcilable with the technological development of the
construction of nuclear weapons."
Judge Ranjeva (Madagascar) expressed, more forcefully than any other member of the
majority, his unhappiness at having had to vote for the two sections of paragraph 2E as a
package. Had he been unable to vote on them separately, he would have voted for the
general proposition of illegality and abstained on the possible extreme circumstance
exception. In fact, he said, there is no exception to the general rule of illegality:
"One cannot find either in the jurisprudence of the Court or in any other
jurisdiction, or in the doctrine, any authority confirming the existence of a distinction
between the general case of the application of the rules of the law of armed conflict and
an exceptional case freeing a belligerent party from respect for the obligations resulting
from the law of armed conflict."
Judge Fleischhauer (Germany), while approving of paragraph 2E in its entirety because
of the dichotomy between "the rules and principles of humanitarian law ... and the
inherent law of self-defense" also agreed with the majority that the use of nuclear
weapons "seems scarcely reconcilable" with humanitarian law because "[t]he
nuclear weapon is, in many ways, the negation of the humanitarian considerations
underlying the law applicable in armed conflict and the principle of neutrality. The
nuclear weapon cannot distinguish between civilian and military targets. It causes
immeasurable suffering. The radiation released by it is unable to respect the territorial
integrity of a neutral State."
It is thus reasonable to conclude, or at least to speculate, that a total of six judges
- Weeramantry, Shahabuddeen, Koroma, Herczegh, Ferrari Bravo and Ranjema - would have
voted for complete illegality without any possible exception, had the vote been structured
differently.
The Prophetic Voices of Dissent
If the history of law is the history of the progression from dissent to norm, then this
decision is an eloquent harbinger of things to come:
The 88 page dissent of Judge Weeramantry bids fair to become a classic of international
law and deserves to be reprinted and widely circulated as the ultimate legal statement on
"the ultimate weapon." Replete with citations from the literature and
jurisprudence of many cultures, it contains the detailed analysis of the unique and
uniquely destructive nature of nuclear weapons which Judge Higgins would have wished to
see from the majority. It also deals, patiently and convincingly, with every last argument
advanced by the NWS in support of their position, including deterrence, reprisals,
internal wars, the doctrine of necessity, "mini-nukes" and the relevance of the
NPT and other nuclear weapon treaties to the question before the Court. It is,
furthermore, a ringing affirmation of the role of international law in international
affairs and an answer to the skeptics who dismiss the pronouncements of the Court as
"merely advisory" and "unenforceable." For, as Judge Weeramantry put
it, "[a] decision soundly based on law will carry respect by virtue of its own
authority. It will assist in building up a climate of opinion in which law is respected.
It will enhance the authority of the Court in that it will be seen to be discharging its
duty of clarifying and developing the law, regardless of political
considerations."And, while regretting that the Court, in its Opinion, did not go the
last mile toward total, unqualified illegality, Judge Weeramantry begins his discussion by
stating that the Opinion "contains positive pronouncements of significant value"
which "take the law far on the road toward total prohibition."
Judge Koroma also allows that "the positive findings" contained in the
Opinion "should be regarded as a step forward in the historic process of imposing
legal restraints in armed conflicts." But he develops, at considerable length, his
reasons for disagreeing with any possible exception to the general principle of
illegality, basing himself in large part on the moving testimony of the effects of nuclear
weapons presented to the Court by the mayors of Hiroshima and Nagasaki. His conclusion,
stated at the outset of his opinion, is that "based on the existing law and the
available evidence ... the use of nuclear weapons in any circumstance would be unlawful
under international law."
It remained for Judge Shahabuddeen to give the most persuasive rebuttal to the
Courts professed inability to rule on the lawfulness of threat and use in an extreme
circumstance involving the very survival of a state. Citing an Islamic commentator, Ibn
Khaldun, to the effect that laws "are based upon the effort to preserve
civilization", he discusses the well known phenomenon of nuclear escalation and asks
"is there anything in the sovereignty of a State which would entitle it to embark on
a course of action which could effectively wipe out the existence of all States by ending
civilization and annihilating mankind?" In other words, in a community of equally
sovereign nations under law, can recourse to nuclear weapons in defense of the survival of
one State possibly be lawful if it leads, or could lead, to the destruction of all States,
or a number of other States? As an illustration of the richness of thought and comment
scattered throughout the principal opinion and the various separate opinions, consider the
following footnote by Judge Shahabuddeen:
The dilemma recalls that which confronted the learned judges of Persia when, asked by
king Cambyses whether he could marry his sister, they made prudent answer "that
though they could discover no law which allowed brother to marry sister, there was
undoubtedly a law which permitted the king of Persia to do whatever he pleased." ...
So here, an affirmative answer to the General Assemblys question would mean that,
while the Court could discover no law allowing a State to put the planet to death, there
is undoubtedly a law which permits a State to accomplish the same result through an
exercise of its sovereign powers.
In Conclusion
For the reasons stated by members of the majority as well as the minority, the decision
of the International Court of Justice is not perfect. But it will go down as one of the
most important decisions in the history of the Court and of the law of warfare. And it is
close to perfect in that it affirms that the threat and use of nuclear weapons are subject
to humanitarian law, environmental law and human rights law; that the threat and use of
nuclear weapons are generally prohibited under international law, subject to an extremely
narrow and highly speculative possible exception; that nuclear deterrence cannot be
said to be sanctioned by law and that there is a solemn obligation to conduct and conclude
negotiations leading to the complete abolition of nuclear weapons - not at some distant
date in the next century, but now, before the advent of holocaust by inertia.
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