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The International Court of Justice, Nuclear Weapons and the Law

Published online by Cambridge University Press:  21 May 2009

Simon Chesterman
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Extract

International law as it applies to armed conflict necessarily treads a fine line between irrelevance to and complicity in its subject matter. The emergence of this body of law has been slow and painful, its foundational irony being that the treaty establishing the basis of modern international humanitarian law – the Nuremberg trials – was signed by the Allies on the same day that the United States dropped its second atomic bomb on Japan. This uncertain beginning, combined with the central role that nuclear weapons came to play in Cold War foreign policy, render it hardly surprising that the legal status of this most devastating class of weapons remained unclear for over half a century and is likely to remain so for some time to come.

Type
Research Article
Information
Netherlands International Law Review , Volume 44 , Issue 2 , August 1997 , pp. 149 - 167
Copyright
Copyright © T.M.C. Asser Press 1997

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Footnotes

*

Australian Rhodes Scholar and Probationer Research Student in Law at Oxford University from October 1997. I would like to thank G.R. den Dekker, A. Indrehus, J.H. Leurdijk, E.P. Myjer and M. Wolzak for their critical comments on an earlier draft of this paper.

References

1. Charter of the International Military Tribunal, Annex to the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, London, 8 August 1945, 82 UNTS 279, reprinted in AJIL (1945) p. 257Google Scholar (the date in the Japanese time zone was 9 August 1945). See Simpson, G., ‘War Crimes: A Critical Introduction’, in McCormack, T. and Simpson, G., eds., The Law of War Crimes: National and International Approaches (1997) p. 4.Google Scholar

2. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) (1996) 35 ILM 809 (‘Nuclear Weapons’).Google Scholar

3. GA Res. 49/75 K, in which the General Assembly:

‘Recalling its resolutions 1653 (XVI) of 24 November 1961, 33/71 B of 14 December 1978, 34/83 G of 11 December 1979, 35/152 D of 12 December 1980, 36/92 1 of 9 December 1981, 45/59 B of 4 December 1990 and 46/37 D of 6 December 1991, in which it declared that the use of nuclear weapons would be a violation of the Charter and a crime against humanity,

…

Decides, pursuant to Article 96, paragraph 1, of the Charter of the United Nations, to request the International Court of Justice urgently to render its advisory opinion on the following question: “Is the threat or use of nuclear weapons in any circumstance permitted under international law?”’ The vote in the Assembly was 78 for, 43 against, with 38 abstaining. It is at least arguable that the subject matter of the resolution falls within the scope of ‘important questions’ provided for in UN Charter Art. 18(2) and thus requiring a two-thirds majority. With the exception of Judge Oda in his dissent, however, the vote in the General Assembly was not discussed: see generally Szasz, P.C., ‘The Vote in the General Assembly’, 91 AJIL (1997) p. 133.Google Scholar Cf., Grief, N., ‘Illegality of Use and Threat of Use of Nuclear Weapons’, in Evan, W.M. and Nanda, V.P., eds., Nuclear Proliferation and the Legality of Nuclear Weapons (1995) p. 291.Google Scholar

4. Nuclear Weapons, supra n. 2, para. 105(2)(C).

5. Ibid. para. 105(2)(D).

6. Statute of the International Court of Justice, Art. 55(2).

7. Nuclear Weapons, supra n. 2, para. 105(2)(E).

8. Ibid. para. 105(2)(E) (emphasis added).

9. Falk, R., ‘Nuclear Weapons, International Law and the World Court: A Historic Encounter’, 91 AJIL (1997) p. 64.CrossRefGoogle Scholar

10. ICCPR, Art. 6(1). Cf., Grief, , loc. cit. n. 3, at p. 296.Google Scholar

11. ICCPR, Art. 4.

12. Nuclear Weapons, supra n. 2, paras. 24–25.

13. Cf., Boyle, F.A., ‘The Crimilnality of Nuclear Weapons’, in Evan and Nanda, op. cit. n. 3, pp. 302–303;Google Scholar C. Weeramantry, ‘The Law, Nuclear Weapons, and the Real World’, in Evan and Nanda, ibid., pp. 215–241.

14. Nuclear Weapons, supra n. 2, para. 26.

15. These included Additional Protocol I of 1977 to the Geneva Conventions of 1949, Art 35. para. 3, of which prohibits the employment of ‘methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment’; and the Convention of 18 May 1977 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which prohibits the use of weapons which have ‘widespread, long-lasting or severe effects’ on the environment (Art. 1). See further Nanda, V.P. and Lowe, J.C., ‘Nuclear Weapons and the Ecology: Is International Law Helpless to Address the Problem?’, in Evan and Nanda, op. cit. n. 3, p. 247.Google Scholar

16. Nuclear Weapons, supra n. 2, para. 30. Cf., Principle 24 of the Rio Declaration: ‘Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary’.

17. Nuclear Weapons, supra n. 2, para. 33.

18. Ibid. para. 34.

19. Ibid. paras. 38–39.

20. Ibid. para. 41, recalling Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), ICJ Rep. (1986) 14, 94, para. 176: ‘there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’.

21. Nuclear Weapons, supra n. 2, para. 43.

22. Ibid. paras. 47–48.

23. Ibid. para. 52.

24. Ibid. (emphasis added). Cf., the ‘hard Lotus’ position of Vice-President Schwebel, discussed infra nn. 68–69 and accompanying text.

25. International Convention With Respect to the Laws and Customs of War, signed on 29 July 1899, 2 Martens Nouveau Recueil (2d) 949 (‘First Hague, II’), prohibiting ‘the use of projectiles the object of which is the diffusion of asphyxiating or deleterious gases’; Convention Respecting the Laws and Customs of War on Land, signed on 18 October 1907, 3 Martens Nouveau Recueil (3d) 461, 36 Stat. 2277, 1 Bevans 631 (‘Second Hague, IV’), Art. 23(a), whereby ‘it is especially forbidden: … to employ poison or poisoned weapons’; and the Geneva Protocol of 17 June 1925 which prohibits ‘the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices’.

26. Notably the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction; and the Convention of 13 January 1993 on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.

27. Nuclear Weapons, supra n. 2, para. 57.

28. Ibid. para. 58.

29. Peace Treaties of 10 February 1947; State Treaty for the Re-establishment of an Independent and Democratic Austria of 15 May 1955; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968, 729 UNTS 161 (entered into force 1970), reprinted in 7 ILM 809 (‘Non-Proliferation Treaty’); Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon-Free Zone of the South Pacific, and its Protocols; Treaty of 12 September 1990 on the Final Settlement with respect to Germany.

30. Antarctic Treaty of 1 December 1959; Treaty of 27 January 1967 on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty of 11 February 1971 on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof; Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon-Free Zone of the South Pacific, and its Protocol.

31. Antarctic Treaty of 1 December 1959; Treaty of 5 August 1963 Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water; Treaty of 27 January 1967 on Principles Governing the Activities of State Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon-Free Zone of the South Pacific, and its Protocols.

32. Nuclear Weapons, supra n. 2, para. 62.

33. Ibid.

34. Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear Weapons in Latin America.

35. Treaty of Rarotonga of 6 August 1985, establishing a South Pacific Nuclear Free Zone.

36. At the time of its signing in 1968 the United States, the United Kingdom and the USSR gave various security assurances to the non-nuclear-weapon States that were parties to the Treaty. In Resolution 255 (1968) the Security Council took note with satisfaction of the intention expressed by those three States to:

‘provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation … that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used.’

When the 1995 Review Conference voted to extend the Nuclear Non-Proliferation Treaty indefinitely, the Security Council adopted Resolution 984 (1995) in which it:

‘1. Takes note with appreciation of the statements made by each of the nuclear-weapon States … in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation of Nuclear Weapons,

…

7. Welcomes the intention expressed by certain States that they will provide or support immediate assistance, in accordance with the Charter, to any non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of an act of, or an object of a threat of, aggression in which nuclear weapons are used.’

37. See Nuclear Weapons, supra n. 2, paras. 59,61. Cf., the reservations entered by the United Kingdom and the United States to the First Protocol to the Geneva Conventions of 1977, discussed infra n. 45.

38. Nuclear Weapons, supra n. 2, para. 63.

39. Ibid. para. 64, citing Continental Shelf (Libyan Arab Jamahiriya/Malta) (Judgment), ICJ Rep. (1985) 13, 29, para. 27.Google Scholar

40. Nuclear Weapons, supra n. 2, paras. 64–67.

41. Ibid. para. 71.

42. Ibid. para. 73.

43. Ibid. para. 71.

44. Ibid. para. 73.

45. Ibid. para. 78. See, e.g., Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS No. 17512, UN Doc. A/32/144 Annex I (entered into force 1978) (’ 1977 Geneva Protocol I’), Arts. 48, 51. Significantly, both the United Kingdom and the United States entered reservations to the Protocol that expressly exempt nuclear weapons use from the prohibition against indiscriminate attacks: see Sheldon, J.M., ‘Nuclear Weapons and the Laws of War: Does Customary International Law Prohibit the Use of Nuclear Weapons in All Circumstances?’, 20 Fordham ILJ (1997) pp. 181, 260.Google Scholar

46. Nuclear Weapons, supra n. 2, para. 78. See, e.g., Second Hague, IV, supra n. 25, Art. 23(e). See also Sheldon, , op. cit. n. 45, pp. 238–240; Report of the Secretary-General, Nuclear Weapons: A Comprehensive Study (Disarmament: Study Series No. 21) (1991) UN Doc. A/45/373, para. 511.Google Scholar

47. Nuclear Weapons, supra n. 2, para. 79. Note that the Court emphasises elsewhere that it was not called upon to decide whether the principles and rules of international humanitarian law are part of jus cogens. This is a question of the ‘legal character’ of the norm, whereas the question asked of the Court concerned the applicability of humanitarian law: ibid. para. 83.

48. A form of this clause was first included in the First Hague, II, supra n. 25.

49. 1977 Geneva Protocol I, supra n. 45, Art. 1(2).

50. Nuclear Weapons, supra n. 2, paras. 85–86.

51. Ibid. para. 86.

52. Ibid. para. 89.

53. See, e.g., McDougal, M.S. and Feliciano, F.P., The International Lew of War: Transnational Coercion and World Public Order (1994) p. 78.Google Scholar

54. Nuclear Weapons, supra n. 2, para. 91, quoting United Kingdom, Written Statement, p. 53, para. 3.70. The Court also referred to United States of America, Oral Statement, CR 95/34, pp. 89–90.

55. Nuclear Weapons, supra n. 2, para. 94. Cf., Grief, N., ‘The Legality of Nuclear Weapons’, in Pogany, I., ed., Nuclear Weapons and International Law (1987) p. 36.Google Scholar

56. Nuclear Weapons, supra n. 2, para. 94.

57. Ibid. para. 92 (emphasis added).

58. See, e.g., Meyrowitz, E.L., ‘The Laws of War and Nuclear Weapons’, 9 Brooklyn JIL (1983) pp. 234–235;Google Scholar Grief, , loc. cit. n. 55, p. 28;Google Scholar Falk, R. et al. , Nuclear Weapons and International Law (1981) pp. 25–26.Google Scholar

59. Nuclear Weapons, supra n. 2, para. 93. Cf., McDougal, and Feliciano, , op. cit. n. 53, pp. 388–389.Google Scholar

60. Nuclear Weapons, supra n. 2, para. 95.

61. Ibid. para. 96.

62. Ibid. para. 105(2)(E); cf., ibid. para. 97.

63. Ibid. para. 105(2)(A).

64. Ibid. para. 105(2)(B).

65. Falk, , loc. cit. n. 9, p. 67. President Bedjaoui made this clear in his separate statement: ‘I cannot insist strongly enough that the inability of the Court to go further … cannot in any way be interpreted as itself evidence of a half–open door for the recognition of the legal permissibility of using nuclear weapons’.Google Scholar

66. For an earlier discussion by Judge Weeramantry, see Weeramantry, , loc. cit. n. 13.Google Scholar

67. See Falk, , loc. cit. n. 9, pp. 67, 72.Google Scholar

68. Ibid. p. 66. The reference is to The Lotus Case (Francev. Turkey) (1927) PCIJ Rep, series A, no. 10, and denotes an approach to international law that presumes that whatever is not explicitly forbidden to a State is permitted.

69. Falk, , loc. cit. n. 9, p. 72.Google Scholar

70. Nuclear Weapons, supra n. 2, para. 105(2)(E).

71. Falk, , loc. cit. n. 9, pp. 68–69.Google Scholar

72. See, e.g., Franck, T.M., Judging the World Court (1986) p. 53 (discussing US State Department reactions to the decision in Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States) [1986] ICJ 14).Google Scholar

73. In the South West Africa Cases, ICJ Rep. (1966) 4, the Court held, also by the President's casting vote, that Ethiopia and Liberia had no interest in bringing an action against South Africa's apartheid regime as it applied to the territory now known as Namibia, then the subject of a mandate. This appeared to be a reopening and reversal of the 1962 decision in the first (jurisdictional) phase: see, e.g., Dissenting Opinion of Judge Koretsky, ICJ Rep. (1966) 4, 237.Google Scholar

74. The full text of India's reservation to the Statute of the ICJ are available at URL: http://www.un.org/Depts/Treaty/final/ts2/newfiles/part_boo/i_boo/i_4.html. It excludes, inter alia, disputes:

‘relating to or connected with facts or situations of hostilities, armed conflicts, individual or collective actions taken in self-defence, resistance to aggression, fulfilment of obligations imposed by international bodies, and other similar or related acts, measures or situations in which India is, has been or may in future be involved.’

75. See ibid.

76. Nuclear Tests (Australia v. France) (Judgment), ICJ Rep. (1974) 253.Google Scholar

77. Ibid. paras. 34–41, 49.

78. Ibid. para. 58, quoting Northern Cameroons (Judgment), ICJ Rep. (1963) 38.Google Scholar See also Nuclear Tests (Australia v. France) (Judgment), ICJ Rep. (1974) 253, paras. 55–59, 62.Google Scholar

79. For a sympathetic discussion of the case, see Khsola, D., ‘Nuclear Weapons, Global Values and International Law’, in Miller, A.S. and Feinrider, M., Nuclear Weapons and Law (1984) pp. 13–14, acknowledging the ‘near impossibility for the International Court of Justice, or any court … reaching a decision that it has reason to believe will not be followed either in content or spirit by the concerned actors’.Google Scholar

80. Nuclear Weapons, supra n. 2, para. 67.

81. Ibid. para. 96.

82. Ibid. Declaration of Judge Shi, 35 ILM 832, 832. He continued:

‘The Court, when exercising its judicial function of determining a rule of existing law governing the use of nuclear weapons, simply cannot have regard to this policy practice of certain States as, if it were to do so, it would be making the law accord with the needs of the policy of deterrence. The Court would not only be confusing policy with law, but also take a legal position with respect to the policy of nuclear deterrence, thus involving itself in international politics – which would hardly be compatible with its judicial function.’

83. See, e.g., Jervis, R., The Illogic of American Nuclear Strategy (1984);Google Scholar Boyle, , loc. cit. n. 13, pp. 309–310.Google Scholar Cf., Weeramantry, , loc. cit. n. 13, pp. 231–232.Google Scholar

84. Nuclear Weapons, supra n. 2, para. 105(2)(E).

85. Ibid. para. 105(2)(E).

86. Ibid. para. 97.

87. See further R. Green and G. Farebrother (World Court Project UK), ‘NATO Nuclear Illegality’, available on-line at URL: http://www.web.net/pgs/pages/a2natol.htm.

88. I am grateful to G.R. den Dekker for raising this issue with me.

89. North Atlantic Treaty, 4 April 1949, Art. 5.

90. Ibid. (emphasis added).

91. Non-Proliferation Treaty, supra n. 29, Arts. 1 and 2 prohibit the transfer of nuclear weapons or of ‘control over such weapons or explosive devices directly, or indirectly’ (emphasis added).

92. Falk1, supra n. 69. Cf., Stone, J., Legal Controls of International Conflict (1954) p. 344Google Scholar (stating that some nations did not question the legality of the use of nuclear weapons); Thomas, E., ‘Atomic Warfare and International Law’, 40 Am. Soc. Int. L Prov. (1946) pp. 84, 85Google Scholar (arguing the obsolescence of the laws of war after the emergence of the atomic bomb). In the only judicial review of the use of atomic weapons in the Second World War, the Tokyo District Court held that the US violated customary international law by causing unnecessary suffering: Shimoda v. State (Japanese Government) 8 Jap. Ann. Int. L (1964) p. 212, at p. 242.Google Scholar The case was brought by Japanese citizens against the Japanese Government on the basis that by waiving the claims of its citizens against the United States for the bombings it assumed responsibility for those injuries. The Court dismissed the claims, finding that international law does not recognise individuals’ claims until provided for in a treaty: ibid., pp. 249–250. See generally Falk, R., “The Shimoda Case: A Legal Appraisal of the Atomic Attacks Upon Hiroshima and Nagasaki’, 59 AJIL (1965) p. 759.CrossRefGoogle Scholar

93. Contra, Nuclear Weapons, supra n. 2, Dissenting Opinion of Vice-President Schwebel, 35 ILM 836, 840, arguing that Desert Storm ‘constitute[s] a striking illustration of a circumstance in which the perceived threat of the use of nuclear weapons was not only eminently lawful but intensely desirable’ (emphasis added).

94. Falk, , loc. cit. n. 9, p. 69.Google Scholar

95. Nuclear Weapons, supra n. 2, para. 98.

96. Treaty on the Non-Proliferation of Nuclear Weapons, 1 July 1968,729 UNTS 161 (entered into force 1970), reprinted in 7 ILM 809 (‘Non-Proliferation Treaty’), Art. VI: ‘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’.Google Scholar

97. Nuclear Weapons, supra n. 2, para. 99.

98. Ibid. paras. 100–101. See Nuclear Weapons, supra n. 2. Dissenting Opinion of Oda, Judge, 35 ILM 843, paras. 20–25 and Table III.Google Scholar

99. Nuclear Weapons, supra n. 2, para. 105(2)(F). Judge Fleischhauer noted that this paragraph, strictly speaking, goes beyond the question asked of the Court: Separate Opinion of Fleishhauer, Judge, 35 ILM 834,Google Scholar para. 7. Vice-President Schwebel stated that it is to be treated as dicta: Dissenting Opinion of Vice-President Schwebel, 35 ILM 836, 842.Google Scholar Judge Oda held that as it simply reproduces Art. VI of the Non-Proliferation Treaty it should not have been included in the dispositif: Dissenting Opinion of Oda, Judge, 35 ILM 843, para. 55.Google Scholar

100. Non-Proliferation Treaty, supra n. 96, Art. VI.

101. Ibid. Art. X(2); 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, Annex, Decision 3: Extension of the Treaty on the Non-Proliferation of Nuclear Weapons (‘NPT Review Conference’), reprinted in 34 ILM 959.Google Scholar

102. NPT Review Conference, Decision 2, para. 3.

103. Ibid. para. 4(c) (emphasis added).

104. Falk, , loc. cit. n. 9, p. 66.Google Scholar

105. UN Charter, Art. 2(2).

106. GA Res. 2625 (XXV) of 24 October 1970.

107. Final Act of the Helsinki Conference of 1 August 1975, Art. X.

108. Vienna Convention on the Law of Treaties of 23 May 1969, Art. 26.

109. Nuclear Tests (Australia v. France) (Judgment), ICJ Rep. (1974) p. 253, para. 46.Google Scholar

110. Perhaps the most obvious judicial expression of this precariousness is seen in the dissenting opinion of Judge Higgins, who states in the final sentence of her dissent:

‘It is not clear to me that either a pronouncement of illegality in all circumstances of the use of nuclear weapons or the answers formulated by the Court in paragraph 2E best serve to protect mankind against the unimaginable suffering that we all fear.’

Nuclear Weapons, Dissenting Opinion of Judge Higgins, para. 41.

111. See supra nn. 76–79 and accompanying text.