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DECLARATION OF
PRESIDENT BEDJAOUI
President of the International Court of
Justice
appended to the Advisory Opinion on the
Legality of the Threat or Use of Nuclear Weapons,
delivered on 8 July 1996
[Original: French]
1. I have never been much in favour of
declarations and other individual or dissenting opinions. I have therefore very rarely had
recourse to them. However, the adoption by the Court of operative paragraph E of this
Opinion by my casting vote as President, in accordance with Article 55 of the Statute, is
in itself a sufficiently exceptional event to prompt me to abandon my usual reticence in
this matter. Moreover, I regard my recourse to this Declaration less as the exercise of a
mere option than as the discharge of a real duty, both on account of the responsibility
which I have thus been led to assume in the normal exercise of my functions as President
and in the light of the implications of the aforementioned paragraph.
* * *
2. With nuclear weapons, humanity is living
on a kind of suspended sentence. For half a century now these terrifying weapons of mass
destruction have formed part of the human condition. Nuclear weapons have entered
into all calculations, all scenarios, all plans. Since Hiroshima, on the morning of 6
August 1945, fear has gradually become man's first nature. His life on earth has taken on
the aspect of what the Koran calls "a long nocturnal journey," like a nightmare
whose end he cannot yet foresee.
3. However, the Atlantic Charter did promise
to deliver mankind from fear, and the San Francisco Charter to "save succeeding
generations from the scourge of war." Much still remains to be done to exorcise this
new terror hanging over man, reminiscent of the terror of his ancestors, who feared being
struck by a thunderbolt from the leaden, storm-laden skies. But twentieth-century man's
situation differs in many ways from that of his ancestors: he is armed with knowledge; he
lays himself open to self-destruction by his own doing; and his fears are better founded.
Although endowed with reason, man has never been so unreasonable; his destiny is
uncertain; his conscience is confused; his vision is clouded and his ethical coordinates
are being shed, like dead leaves from the tree of life.
4. However, it must be acknowledged that man
has made some attempts to emerge from the blackness of his night. Mankind seems, today at
any rate, more at ease than in the 1980s, when it subjected itself to the threat of "star
wars." In those years the mortal blast of a space war, a war which would be
total, highly sophisticated and would rend our planet asunder, was more likely than ever
before to unfurl itself upon humanity. Missiles orbiting close to the Earth could train
their infernal nuclear warheads on our globe, while military satellites - for
reconnaissance, observation, surveillance or communication - proliferated. The lethal
system was about to be established. The "universal government of death,"
the "thanatocracy," as the French historian and philosopher of science
Michel Serres once called it, said he was ready to set up its batteries in the furthest
reaches of the planet. But luckily détente, followed by the end of the cold war, put a
stop to these terrifying preparations.
5. Nevertheless, the proliferation of
nuclear weapons has still not been brought under control, despite the existence of the
Non-Proliferation Treaty. Fear and folly may still link hands at any moment to perform a
final dance of death. Humanity is all the more vulnerable today for being capable of mass
producing nuclear missiles.
* * *
6. Humanity is subjecting itself to a
perverse and unremitting nuclear blackmail. The question is how to put a stop to it. The
Court had a duty to play its part, however small, in this rescue operation for humanity;
it did so in all conscience and all humility, bearing in mind the limits imposed upon it
by both its Statute and by the applicable international law.
7. Indeed, the Court has probably never
subjected the most complex elements of a problem to such close scrutiny as it did when
considering the problem of nuclear weapons. In the drafting of this Opinion the Court was
guided by a sense of its own particular responsibilities and by its wish to state the law
as it is, seeking neither to denigrate nor embellish it. Its aim was to avoid any
temptation to create new law and it certainly did not overplay its role by urging States
to legislate as quickly as possible to complete the work which they have done so
far.
8. This very important question of nuclear
weapons proved alas to be an area in which the Court had to acknowledge that there is no
immediate and clear answer to the question put to it. It is to be hoped that the
international community will give the Court credit for having carried out its mission -
even if its reply may seem unsatisfactory - and will endeavour as quickly as possible to
correct the imperfections of an international law which is ultimately no more than the
creation of the States themselves. The Court will at least have had the merit of pointing
out these imperfections and calling upon international society to correct them.
9. As its Advisory Opinion shows, at no time
did the Court lose sight of the fact that nuclear weapons constitute a potential means of
destruction of all mankind. Not for a moment did it fail to take into account this
eminently crucial factor for the survival of mankind. The moral dilemma which confronted
individual consciences finds many a reflection in the present Opinion. But the Court could
obviously not go beyond what the law says. It could not say what the law does not
say.
10. Accordingly, at the end of its Opinion,
the Court limited itself to stating the situation, finding itself unable to do any more
than this. There are some who will inevitably interpret operative paragraph E as
contemplating the possibility of States having recourse to nuclear weapons in exceptional
circumstances. For my part, and in the light of the foregoing, I feel obliged in all
honesty to construe this paragraph differently, and this has enabled me to give my support
to the text. My explanation of this follows.
* * *
11. I cannot sufficiently emphasize the fact
that the Court's inability to go beyond this statement of the situation can in no manner
be interpreted to mean that it is leaving the door ajar to recognition of the legality of
the threat or use of nuclear weapons.
12. The Court's decision in the Lotus
case, which some people will inevitably resurrect, should be understood to be of very
limited application in the particular context of the question which is the subject of this
advisory opinion. It would be to exaggerate the importance of that decision of the
Permanent Court and to distort its scope were it to be divorced from the particular
context, both judicial and temporal, in which it was taken. No doubt this decision
expressed the spirit of the times, the spirit of an international society which as
yet had few institutions and was governed by an international law of strict co-existence,
itself a reflection of the vigour of the principle of State sovereignty.
13. It scarcely needs to be said that the
fact of contemporary international society is much altered. Despite the still limited
emergence of "supra-nationalism," the progress made in terms of the
institutionalization, not to say integration and "globalization," of
international society cannot be denied. Witness the proliferation of international
organizations, the gradual substitution of an international law of cooperation for the
traditional international law of co-existence, the emergence of the concept of "international
community" and its sometimes successful attempts at subjectivization. A testimony
to all these developments is provided by the place which international law now accords to
concepts such as obligations erga omnes, rules of jus cogens, or the common
heritage of mankind. The resolutely positivist, voluntarist approach of international law
which still held sway at the beginning of the century - and to which the Permanent Court
also gave its support in the aforementioned judgment(1) -
has been replaced by an objective conception of international law, a law more readily seen
as the reflection of a collective juridical conscience and as a response to the social
necessities of States organized as a community. Added to the evolution of international
society itself, there is also the progress made in the technological sphere, thanks to
which the total and virtually instantaneous eradication of the human race is now
possible.
14. Furthermore, apart from the time and
context factors, there is everything to distinguish the decision of the Permanent Court
from the Advisory Opinion of the present Court: the nature of the problem posed, the
implications of the Court's pronouncement, and the underlying philosophy of the
submissions upheld. In 1927, the Permanent Court, when considering a much less important
question, in fact concluded that behavior not expressly prohibited by international law
was authorized by that fact alone.(2) In the present
Opinion, on the contrary, the Court does not find the threat or use of nuclear weapons to
be either legal or illegal; from the uncertainties surrounding the law and the facts it
does not infer any freedom to take a position. Nor does it suggest that such licence could
in any way whatever be deduced therefrom. Whereas the Permanent Court gave the green light
of authorization, having found in international law no reason for giving the red light of
prohibition, the present Court does not feel able to give a signal either way.
15. Thus, the Court, in this Opinion, is
showing much more circumspection than its predecessor in the Lotus case in
asserting today that what is not expressly prohibited by international law is not
therefore authorized.
16. While not finding either in favour of or
against the legality of the threat or use of nuclear weapons, the Court takes note, in its
Opinion, the existence of a very advanced process of change in the relevant international
law or, in other words, of a current trend towards the replacement of one rule of
international law by another, where the first is already defunct and its successor does
not yet exist. Once again, if the Court as a judicial body felt that it could do no more
than register this fact, States should not, in my view, see in this any authorization
whatever to act as they please.
17. The Court is obviously aware that, at
first sight, its reply to the General Assembly is unsatisfactory. However, while the Court
may leave some people with the impression that it has left the task assigned to it half
completed, I am on the contrary persuaded that it has discharged its duty by going as far,
in its reply to the question put to it, as the elements at its disposal would
permit.
18. In the second sentence of operative
paragraph E of the Advisory Opinion, the Court indicates that it has reached a point in
its reasoning beyond which it cannot proceed without running the risk of adopting a
conclusion which would go beyond what seems to it to be legitimate. That is the position
of the Court as a judicial body. Some of the Judges supported this position, though no
doubt each with an approach and an interpretation of their own. It will certainly have
been noted that the distribution of the votes, both for an against paragraph E, was in no
way consistent with any geographical split; this is a mark of the independence of the
Members of the Court which I am happy to emphasize. Having thus explained the construction
which I believe should be put on the Court's pronouncement, I would now like to revert
briefly to the substantive reasons which induced me to support it.
* * *
19. International humanitarian law is a
particularly exacting corpus of rules, and these rules are meant to be applied in all
circumstances. The Court has fully recognized this fact.
20. Nuclear weapons can be expected - in the
present state of scientific development at least - to cause indiscriminate victims among
combatants and non-combatants alike, as well as unnecessary suffering among both
categories. The very nature of this blind weapon therefore has a destabilizing effect
on humanitarian law which regulates discernment in the type of weapon used. Nuclear
weapons, the ultimate evil, destabilize humanitarian law which is the law of the lesser
evil. The existence of nuclear weapons is therefore a challenge to the very existence of
humanitarian law, not to mention their long-term effects of damage to the human
environment, in respect to which the right to life can be exercised. Until scientists are
able to develop a "clean" nuclear weapon which would distinguish between
combatants and non-combatants, nuclear weapons will clearly have indiscriminate effects
and constitute an absolute challenge to humanitarian law. Atomic warfare and
humanitarian law therefore appear to be mutually exclusive: the existence of the one
automatically implies the non-existence of the other.
21. I have no doubt that most of the
principles and rules of humanitarian law and, in any event, the two principles, one of
which prohibits the use of weapons with indiscriminate effects and the other use of arms
causing unnecessary suffering, are a part of jus cogens. The Court raised this
question in the present Opinion; but it nevertheless stated that it did not have to reach
a finding on the point since the question of the nature of the humanitarian law applicable
to nuclear weapons did not fall within the framework of the request addressed to it by the
General Assembly of the United Nations. Nonetheless, the Court expressly stated the view
that these fundamental rules constitute "intransgressible principles of
international customary law."(3)
22. A State's right to survival is also a
fundamental law, similar in many respects to a "natural" law. However,
self-defence - if exercised in extreme circumstances in which the very survival of a State
is in question - cannot engender a situation in which a State would exonerate itself from
compliance with the "intransgressible" norms of international
humanitarian law. In certain circumstances, therefore, a relentless opposition can arise,
a head-on collision of fundamental principles, neither one of which can be reduced to the
other. The fact remains that the use of nuclear weapons by a State in circumstances in
which its survival is at stake risks in its turn endangering the survival of all mankind,
precisely because of the inextricable link between terror and escalation in the use of
such weapons. It would thus be quite foolhardy unhesitatingly to set the survival of a
State above all other considerations, in particular above the survival of mankind
itself.
* * *
23. As the Court has acknowledged, the
obligation to negotiated in good faith for nuclear disarmament concerns the 182 or so
States parties to the Non-Proliferation Treaty. I think one can go beyond that conclusion
and assert that there is in fact a twofold general obligation, opposable erga
omnes, to negotiate in good faith and to achieve the desired result. Indeed, it is not
unreasonable to think that, considering the at least formal unanimity in this field, this
twofold obligation to negotiate in good faith and achieve the desired result has now, 50
years on, acquired a customary character. For the rest, I fully share the Court's
opinion as to the legal scope of this obligation. I would merely stress once again the
great importance of the goal to be attained, particularly in view of the uncertainties
which still persist. The Court patently had to say this. Owing to the, by the nature of
things, very close link between this question and the question of the legality of
illegality of the threat or use of nuclear weapons, the Court cannot be reproached for
having reached a finding ultra petita, a notion which in any event is alien to the
advisory procedure.
* * *
24. The solution arrived at in this Advisory
Opinion frankly states the legal reality, while faithfully expressing and reflecting the
hope, shared by all, peoples and States alike, that nuclear disarmament will always
remain the ultimate goal of all action in the field of nuclear weapons, that the goal is
no longer utopian and that it is the duty of all to seek to attain it more actively than
ever. The destiny of man depends on the will to enter into this commitment, for as
Albert Einstein wrote, "Man's destiny will be the one he deserves."(4)
(Signed) Mohammed BEDJAOUI
1. "International law governs relations
between independent States. The rules of law binding upon States therefore emanate from
their own free will as expressed in conventions or by usages generally accepted as
expressing principles of law and established in order to regulate the relations between
these co-existing independent communities or with a view to the achievement of common
aims," Lotus case, Judgment No. 9 of 7 September 1927, P.C.I.J., Series A,
No. 10, p. 18.
2. "The Court therefore must, in any
event, ascertain whether or not there exists a rule of international law limiting the
freedom of States to extend the criminal jurisdiction of their courts to a situation
uniting the circumstances of the present case" (ibid., p. 21); and the Court
concluded: "It must therefore be held that there is no principle of international
law, within the meaning of Article 15 of the Convention of Lausanne of July 24, 1923,
which precludes the institution of the criminal proceedings under consideration.
Consequently, Turkey, by instituting, in virtue of the discretion which international law
leaves to every sovereign State, the criminal proceedings in question, has not, in the
absence of such principles, acted in a manner contrary to the principles of international
law within the meaning of the special agreement" (ibid., p. 31).
3. See paragraph 79 of the Advisory Opinion,
which reads: "It is undoubtedly because a great many rules of humanitarian law
applicable in armed conflict are so fundamental to the respect of the human person and
`elementary considerations of humanity' as the Court put it in its Judgment of 9 April
1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22) that the Hague
and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are
to be observed by all States whether or not they have ratified the conventions that
contain them, because they constitute intransgressible principles of international
customary law."
4. Albert Einstein, How I See The World
(tr. into French by Colonel Cros), Paris, Flammarion, p. 84.
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