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Nuclear weapons: a weighty matter for the International Court of Justice: Jura non novit curia?

Published online by Cambridge University Press:  13 January 2010

Luigi Condorelli
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Extract

It is easy to heap scorn on the Advisory Opinion handed down by the International Court of Justice on 8 July 1996 on the legality of the threat or use of nuclear weapons. No great cerebral effort is required; one need only choose any of the numerous and often harsh criticisms to be found in the declarations and the separate or dissenting opinions that all fourteen judges present took care to formulate, whether they agreed with the whole of the decision or voted against any of its paragraphs.

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. 9 - 20
Copyright
Copyright © International Committee of the Red Cross 1997

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References

1 “The fundamental principles of international humanitarian law (…) categorically and unequivocally prohibit the use of weapons of mass destruction and, among these, nuclear weapons” (ICRC translation). See para. 2 of Judge Herczegh's Declaration.

2 Judge Ferrari Bravo's position is in fact extremely difficult to classify. First of all he concludes: “I think that there is not as yet any precise and specific rule that prohibits atomic weapons and takes into account all the consequences of such a prohibition”. That opinion seems essentially in agreement with the vote cast. But he goes on to say that the events of the Cold War “merely prevented the implementation of the ban (…) whereas the ban itself, the ban pure and simple, so to speak, still stands and is still in effect …”. (Declaration, pp. 3–4: ICRC translation.) But if the ban, pure and simple or otherwise, exists, it is hard to see why the use of the weapon covered by it should not also be called (“purely and simply” no doubt) illegal.

3 In the first place Judge Ranjeva stresses that “… there can be no doubt as to the validity of the principle of unlawfulness in the law of armed conflict”, and a little further on gives the reasons that “… in my view make the exception of ‘extreme self-defence’ baseless both in logic and in law”. (Declaration, pp. 6–7: ICRC translation.)

4 Judge Oda was alone in affirming that the Court should not have answered the question posed by the General Assembly. His Dissenting Opinion, however, clearly indicates his position on the issue.

5 It should be pointed out that, as will be seen below, the Court gives as reasons for its uncertainty first the insufficiency of the elements of fact made known to it, and secondly what it calls (as opposed to the “elements of fact at its disposal”), “the present state of international law viewed as a whole” (para. 97 of the Opinion). In other words, the Court does not take cover solely behind the inadequacy of the factual data placed before it (paras. 94 and 95). The Court also indicates very clearly that it cannot come to a conclusion because the legal data pertinent to the issue appear to be fundamentally ambiguous and contradictory (paras. 95 and 96). It is in this latter connection that one can well ask what has become of the principle jura novit curia, translated by the Court itself as follows: “… the law lies within the judicial knowledge of the Court” (Fisheries Jurisdiction Case, Judgment of 24 July 1974, ICJ Reports, 1974, p. 9, para. 17). It is indeed undeniable that the Court “… states the existing law and does not legislate” (as the Advisory Opinion under discussion stresses in para. 18), given that “its task is to engage in its normal judicial function of ascertaining the existence or otherwise of legal principles and rules applicable” (ibid.). But if this is “its normal judicial function”, and if it must be pursued according to the principle of jura novit curia, it is surely nothing less than an act of abdication for the Court to confess that it is not able to say what legal regime applies to a given activity, what is lawful and what is not, what is allowable and what is prohibited.

6 General Assembly resolution 49/75 K of 15 December 1994 posed the question in the following terms: “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” (emphasis added).

7 In the light of these remarks and in view of the (exceptional) fact that all fourteen judges explained their personal views, I cannot resist making a guess — pure speculation based on an interpretation of each judge's opinion — as to what the result might have been if the following single question had been put to the vote: “Is the threat or use of nuclear weapons always prohibited, or might it not be prohibited in an extreme circumstance of self-defence in which the very survival of the State would be at stake?” According to my calculations, there would probably have been five votes in favour of the absolute prohibition of such weapons (Ranjeva, Herczegh, Shahabuddeen, Weeramantry and Koroma), or perhaps six (Ferrari Bravo), and eight votes for their “conditional” prohibition (Bedjaoui, Shi, Fleischhauer, Vereshchetin, Schwebel, Oda, Guillaume and Higgins), or perhaps nine (Ferrari Bravo).

8 The role played by para. 2F of the decision (and paras. 98–103 of the Opinion) deserves mention in this context. Here the Court goes so far as to affirm that States are under a real obligation to bring to a conclusion negotiations leading to nuclear disarmament. What the scope and legal effects of such an obligation might be is not clear. Evidently, in making such a statement the Court is answering a question it was never asked; quite apart from the formal implications (is this a case of ultra petita? and does that concept apply to advisory proceedings?) one might wonder whether the Court was not trying to sugar the pill that those supporting the illegality of nuclear weapons have had to swallow.

9 Vice-President Schwebel is right to stress (in pp. 1 and 2 of his Dissenting Opinion) that the situation here has nothing to do with that of the “persistent objector”, the attitude and practice are those “… of five of the world's major Powers, of the permanent Members of the Security Council, significantly supported for almost 50 years by their allies and other States sheltering under their nuclear umbrellas”.

10 Incidentally, the Lotus principle seems no more relevant to this discussion than the “persistent objector” principle mentioned in note 9 above. The point is not what is to be thought of the time-honoured axiom “Anything that is not forbidden is allowed”; the real problem here is whether a rule of international law can come into being and bind substantial groups of States against their will.

11 This should be understood as comprising both actual possession of nuclear weapons and the declared intention to use them in specified circumstances.

12 Emphasis added.

13 Idem.

14 Idem.

15 If these principles belong to jus cogens, no treaty can abrogate them. In that case the Court should not have given priority to discussion of the treaty rules on nuclear weapons (as it admits openly having done — see para. 74 of the Opinion). In any case it is surely obvious that one of the Court's main concerns should have been to decide whether or not the relevant rules of international humanitarian law were or were not peremptory rules.

16 See Condorelli, L., de Chazournes, L. Boisson, “Quelques remarques à propos de l'obligation des États de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances’”, in Swinarski, (ed.), Studies and essays on international humanitarian law and Red Cross principles, in honour of Jean Pictet, ICRC/Martinus Nijhoff Publishers, Geneva/The Hague, 1984, p. 17 ff.Google Scholar

17 While by no means going deeply into the subject, the Court admits this de plano in para. 95 of the Opinion and para. 2E, clause 1, of the decision. It was most certainly (and rightly!) convinced of the intrinsically catastrophic nature of nuclear weapons and of the impossibility of containing their devastating effects in either space or time (para. 35 of the Opinion). In the view of Judge Higgins, however, that intermediate conclusion deserves strong criticism, on the grounds that the Court should not have confined itself to generalities and approximations, but should have closely examined the specific provisions of humanitarian law. Judge Higgins draws special attention to those provisions which, provided that combatants and not the civilian population are attacked, describe the suffering inflicted on combatants as “superfluous” and collateral damage suffered by civilians as “excessive” — not in the absolute sense of their magnitude only, but in terms of the extent to which they are proportionate to the legitimate aims of the military operation (such as repelling an aggressor) and to the military advantage expected. Going by the opinion examined, a study of this kind would doubtless have led the Court to conclude that “in the present stage of weapon development, there may be very limited prospects of a State being able to comply with the requirements of humanitarian law” if nuclear weapons were used (Dissenting Opinion, para. 26). This possibility, however, cannot be ruled out categorically and a priori. Clearly, this was an attempt to “reconcile the irreconcilable” — to reconcile humanitarian law with nuclear weapons; a very clever attempt, but a completely hopeless one if nuclear weapons have the characteristics and effects described by the Court. In my opinion, and for the reasons I have given, it would be preferable to condemn the blatant contradiction on this subject that lies within the international legal order.

18 Together with the principles of jus ad bellum relating to self-defence, whose restrictive effect, arising mainly from the condition of proportionality, has already been pointed out.

19 As Judge Ranjeva stresses on p. 6 of his Separate Opinion.

20 Paragraph 104 states that the Court's reply to the question put to it by the General Assembly “rests on the totality of the legal grounds set forth (…) above (paragraphs 20 to 103)”, and goes on to stress: “Some of these grounds are not such as to form the object of formal conclusions in the final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all their importance”.