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A non liquet on nuclear weapons — The ICJ avoids the application of general principles of international humanitarian law

Published online by Cambridge University Press:  13 January 2010

Timothy L.H. McCormack
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Extract

The Advisory Opinion delivered by the International Court of Justice (ICJ) on the legality of the Threat or Use of Nuclear Weapons was a somewhat disappointing if not entirely unexpected decision. After the final paragraph, which constitutes the dispositif, all fourteen judges appended either personal declarations, separate opinions or dissenting opinions to indicate the extent to which they agreed or disagreed with specific findings and particular aspects of the reasoning behind the Opinion.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 37 , Special Issue 316: The Advisory Opinion of the International Court of Justice on the legality of nuclear weapons and international humanitarian law , February 1997 , pp. 76 - 91
Copyright
Copyright © International Committee of the Red Cross 1997

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References

1 International Court of Justice, Legality of the threat or use of nuclear weapons, Advisory Opinion of 8 07 1996 Google Scholar, Dissenting Opinion of Judge Higgins, para. 32.

2 International Court of Justice, Legality of the threat or use of nuclear weapons, Advisory Opinion of 8 07 1996 Google Scholar, Opinion of the Court (hereinafter referred to as “Opinion”).

3 Opinion, para. 105(2)D.

4 Ibid., para. 105(2)F.

5 Ibid., para. 95.

6 Ibid., para. 105(2)E.

7 Ibid., para. 90.

8 Treaty on the Non-Proliferation of Nuclear Weapons, of 1 July 1968.

9 Opinion, para. 57.

10 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, of 10 April 1972.

11 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, of 13 January 1993.

12 Opinion, para. 57.

13 Article VI of the NPT (see note 8) states: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control”.

14 Opinion, para. 57.

15 As at 30 September 1996.

16 Treaty for the Prohibition of Nuclear Weapons in Latin America, of 14 February 1967.

17 Treaty on the South Pacific Nuclear-Weapon-Free Zone, of 6 August 1985.

18 The positive declarations are to the effect that the nuclear-weapon States will come to the assistance of any non-nuclear-weapon State Party the subject of an attack by nuclear weapons.

19 The negative security guarantees are to the effect that the nuclear-weapon States will not use nuclear weapons against the non-nuclear-weapon States party to the various instruments. These guarantees are usually accompanied by reservations whereby the guarantee will not apply where the non-nuclear-weapon State Party is an ally of a nuclear-weapon State involved in armed conflict against another State. On the security guarantees pursuant to the Treaties of Tlatelolco and Rarotonga, see Jozef Goldblat, Arms Control, 1994, pp. 150–155.

20 See UN Doc. S/Res/984 (1995), noting the assurances of the nuclear-weapon States.

21 Opinion, para. 62(b).

22 Ibid., para. 62(c).

23 Dissenting Opinion of Judge Schwebel.

24 The succession of resolutions commenced with UN GA Res. 1653 (1961).

25 Dissenting Opinion of Judge Schwebel.

26 Security Treaty between Australia, New Zealand and the United States of America, of 1 September 1951.

27 See, e.g., oral statement on behalf of Australia by Senator Gareth Evans QC, Minister of Foreign Affairs, “International Court of Justice: Requests for Advisory Opinions on nuclear weapons submitted by the World Health Organization and the United Nations General Assembly — The case for illegality”, reprinted in Australian International Law Journal, 1994–1995, p. 178.Google Scholar

28 See, e.g., statement by Richard Starr, Ambassador for Disarmament, Main Committee 1 of the Review and Extension Conference of the States Parties to the NPT, New York, 19 April 1995; and concluding statement by Richard Butler, Permanent Representative of Australia to the Review and Extension Conference of the States Parties to the NPT, New York, 12 May 1995 (copies on file with author). See also Gareth Evans and Bruce Grant, Australia's foreign relations: In the world of the 1990's, 2nd ed., 1995, p. 86.Google Scholar

29 It should be noted that at least one other State has completed unilateral nuclear disarmament and has become a non-nuclear-weapon State party to the NPT.

30 Dissenting Opinion of Judge Schwebel.

31 Articles II, IV and V.

32 Article VI.

33 While the significant reduction of the nuclear arsenals of the US and the Russian Federation pursuant to the bilateral START Agreements between the two States has been encouraging, the remaining levels of nuclear warheads are still unwarranted. See, in particular, Report of the Canberra Commission on the Elimination of Nuclear Weapons, Department of Foreign Affairs and Trade, Canberra, 1996, pp. 24–28.Google Scholar

34 As evidenced by statements made to this effect at the 1995 Review and Extension Conference of the States Parties to the NPT.

35 Opinion, para. 105(2)F.

36 Ibid., para. 35.

37 Ibid.

38 Ibid., para. 22.

39 Article 22, Hague Regulations respecting the Laws and Customs of War on Land, of 18 October 1907; Opinion, para. 77.

40 Opinion, para. 78.

41 See the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949.

42 Opinion, para. 78.

43 Ibid.

44 See, e.g. O'Brien, William, “Legitimate military necessity in nuclear war”, 2 World Polity, 1960, p. 35 Google Scholar. For analyses generally discussing the (in)compatibility of tactical nuclear weapons with international humanitarian law, see, e.g., Weston, Burns H., “Nuclear weapons versus international law: A contextual reassessment”, 28 McGill Law Journal, 1983, pp. 543, 581, 587 Google Scholar; Hearn, William R., “The international legal regime regulating nuclear deterrence and warfare”, 61 British Yearbook of International Law, 1990, pp. 199, 232–44Google Scholar; Arbess, Daniel J., “The international law of armed conflict in light of contemporary deterrence strategies: Empty promise or meaningful restraint?”, 30 McGill Law Journal, 1984, pp. 89, 111–121 Google Scholar; Meyrowitz, Elliot, Prohibition of nuclear weapons: The relevance of international law, 1990, pp. 41–86.Google Scholar

45 Opinion, para. 95.

46 Dissenting Opinion of Judge Higgins, para. 25.

47 See Dissenting Opinions of Judge Weeramantry and Judge Koroma.

48 Dissenting Opinion of Judge Shahabuddeen.

49 Dissenting Opinion of Judge Higgins, para. 24.

50 Ibid.

51 Opinion, para. 97 (emphasis added).

52 Dissenting Opinion of Judge Higgins, para. 29.

53 Ibid.

54 See Opinion, para. 22.

55 These three States are Israel, India and Pakistan. The other non-parties to the NPT, with the exception of Brazil, which has committed itself to full-scale nuclear safeguards in a bilateral agreement with Argentina, include Angola, Cook Islands, Cuba, Djibouti, Hong Kong, Oman and Taiwan. These entities hardly represent a major threat in terms of the proliferation of nuclear weapons.

56 See Opinion, paras. 98–103.

57 The text of the CTBT was tabled at the UN General Assembly as UN Doc A/50/1027 (26 August 1996). The text was approved in a resolution at a special meeting reconvening the 50th Session of the UN GA. See A/RES/50/245 (20 September 1996).

58 See the text of Protocol IV to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, of 13 October 1995 (not yet in force). See also Carnahan, B.M. and Robertson, M., “The Protocol on ‘Blinding Laser Weapons’: A new direction for international humanitarian law”, American Journal of International Law, 1996, p. 484 Google Scholar; “The Vienna Review Conference: Success on blinding laser weapons but deadlock on landmines”, International Review of the Red Cross, No. 309, 11–12 1995, p. 672.Google Scholar