THE HAGUE -- The World Court declared the threat and use of nuclear weapons to be generally contrary to international law on 8 July in the Peace Palace in the Hague. The International Court of Justice (ICJ), highest judicial body in the world, unanimously upheld that the complete elimination of nuclear weapons is a legally binding obligation.
Responding to a request by the U.N. General Assembly, the ICJ delivered its advisory opinion despite appeals by four of the five nuclear weapon states to decline to issue a judgment. The court refused a related request from the World Health Organization, claiming lack of jurisdiction because the issue of nuclear weapons legality falls outside the scope of WHO's activities.
The unprecedented requests, and remarkable written and oral debate they engendered, exposed a major grey area in international law. In its advisory opinion, the Court concluded that it cannot fully answer the question put by the General Assembly: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?"
According to the Court, international law contains neither express authorization nor universal prohibition of the use of nuclear arms. Any use is unlawful if it fails to meet the requirements of "individual or collective self-defense" under Article 51 of the U.N. Charter. Even then, the rules governing armed conflict, especially humanitarian laws and principles, cast doubt over whether a nuclear attack could ever be legally justified.
These provisions aside, the Court's fourteen judges were evenly split over how to answer the question directly. President Mohammed Bedjaoui of Algeria cast the deciding vote in favor of general illegality with the proviso that "in view of the current state of international law and of the elements of fact at its disposal, the Court cannot definitely conclude whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self- defense, in which the very survival of a state would be at stake."
In a separate declaration, Bedjaoui insisted that the Court's non-liquet, or decision not to decide, "cannot in any manner be interpreted as a door half-open to the recognition of the legality of the threat or use of nuclear weapons." Nevertheless, the U.S. State Department offered such an interpretation in its official response to the judgment, stating that "the ruling would seem, from our perspective, to state that the use and the threat of use of nuclear weapons can be justified and can be legal under current international law."
President Bedjaoui's declaration also states, "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..."
It was this challenge that prompted the unanimous conclusion that "There 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." In the Court's view, the legal disputes and dilemmas surrounding nuclear weapons are bound to damage international law and the stability of the international order. Only the elimination of these weapons -- as called for in the very first resolution passed by the General Assembly in 1946 and repeated over the years, most recently when the Non-Proliferation Treaty was indefinitely extended in 1995 -- can put an end to this state of affairs.
Dissenting votes were cast by the judges from France, Japan, the United Kingdom and the United States. They were joined by judges from Sri Lanka, Guyana and Sierra Leone, who objected to the Court's hedge on the self-defense issue. Thus, ten of the fourteen judges accepted the general view of nuclear weapons illegality.
The case stemmed from a non-governmental initiative. An international coalition led by the International Peace Bureau, International Physicians for the Prevention of Nuclear War and International Association of Lawyers Against Nuclear Arms launched the World Court Project in 1992 with the aim of securing an advisory opinion from the ICJ, the supreme judicial organ of the United Nations. Having no direct access to the Court, the World Court Project successfully lobbied the World Health Assembly, and subsequently the General Assembly, to pass resolutions requesting the Court's opinion.
Forty-five states supplied written testimony to the Court relating to the two requests, far more than took part in any previous case in the history of the ICJ. Twenty-two countries made oral statements last autumn. The large majority of states participating in the oral hearings urged the Court to return a ruling of illegality. France, Germany, Italy, Russia, the U.K. and the U.S. argued that the court should refuse to consider the case, asserting that the question was political rather than legal and that an advisory opinion would disrupt disarmament negotiations. China did not participate in the ICJ case and did not vote on the G.A. resolution.
In its advisory opinion, the Court emphasized the unique characteristics of nuclear weapons, noting that use of weapons of such destructive capacity "seeems scarcely reconcilable" with respect for humanitarian rules protecting civilians from direct attack and combatants from unnecessary suffering.
In particular, the Court referred to the Martens Clause, first included in the Hague Conventions of 1899. This clause affirms the applicability of "principles of international law derived from established custom, from the principles of humanity and from the dictates of the public conscience" in cases not directly covered by statutes or international agreements. Taking its cue from the Martens Clause, the World Court Project collected nearly four million signatures condemning nuclear weapons and submitted them to the Court as evidence of the public conscience. This was the first known instance of the ICJ accepting such evidence from citizens.
(Roger K. Smith is the Network Coordinator of the NGO Committee on Disarmament.)