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The Advisory Opinion Of The ICJ

One of my first memories is a beautiful warm summer night, sitting in the garden with my grandfather, looking up to the stars. Then my grandfather started to talk about two powerful men in the world, who have all the capability just by pushing two buttons to destroy the entire planet. The bombs would come with great light and unbearable heat and there would be nowhere to hide. Everybody and everything would be destroyed. I remember the shock I felt, I could not understand why would somebody want to destroy me.

This was precipitation of the Cold War in a remote village of Eastern Europe. With the end of the Cold War the whole international climate seemed to change fundamentally. The theory that there is no stronger basis to human coexistence than “genocidal fear” was weakened. The arms race ended and it seemed clear that we are at crossroads. Disarmament was a political reality for the first time since the bomb was created. It soon became clear however, that there was no real political intention to do so.

Security continued to be identified by nuclear strategy. It turned out also that the cease of enmity between the superpowers did not turn the world into a peaceful heaven. The last decade of this century has been just as violent as the previous ones, with the major conflict situations in Yugoslavia and the Gulf and several bloody conflicts in different third world countries. It seemed also that the international community’s attention had been averted from the question of disarmament.

The question of nuclear weapons came back to the picture when allegations were spread in the media about Iraq having or almost having weapons of mass destruction; chemical and biological weapons and maybe nuclear weapons. This exposed the vulnerability and the imperfectness of the present regime of monitoring proliferation of nuclear weapons. The nuclear tests by France, India and Pakistan also showed that we are still leaving in a world of a possible nuclear war. The spread of the weapons of mass destruction to officially non-nuclear state mean also a higher risk that it is actually going to be used- intentionally or by accident.

In this tense environment the United Nations General Assembly (UNGA) adopted a resolution requesting the International Court of Justice (ICJ) to render its Advisory Opinion on the following question: “Is the threat or use of nuclear weapons in any circumstances permitted under international law? ” In many respects both the question and the Court’s actual opinion are of historical importance. The ICJ dealt with the question despite the fact that most nuclear weapon states held that the Court has no jurisdiction on the matter.

Basically, the court concluded, that the threat or use of nuclear weapons (without drawing any distinctions between the two) falls under the principles and rules of jus in bello, particularly international humanitarian law, and thus it is generally unlawful- because it fails to comply with the requirements of its rules such as proportionality, discrimination between combatants and non-combatants, prohibition of causing unnecessary suffering, obligation of respecting the integrity of non-belligerent states, prohibition on genocide and crimes against humanity, prohibition against causing lasting and severe damage to the environment (ecocide)

The court could not conclude even in an “extreme circumstance of self-defence” that the use or threat of nuclear weapons would be lawful, though it failed to state that the use or threat of nuclear weapons is unlawful in every circumstance whatsoever. (2E) All of the dissenting opinions emphasised however, that this failure by no means should be interpreted as the Court actually legitimising the threat or use of nuclear weapons in any circumstances. To underline its determination on the subject the Court found that there exists an obligation under international law to pursue disarmament. This was not part of the original question, however.

The Court’s Advisory Opinion bears of great importance; this was the first case that the question of nuclear weapons was dealt with by any tribunals in the world, which proved that nuclear weapons are subject to international law. The Court looked at all relevant legal materials; treaties, customary law. Its first role was to find what is the law on nuclear weapons. It was of great importance, since in the light of the ICJ’s findings it became clear that under international law it is extremely hard to justify the threat or use of nuclear weapons; indeed the very existence of such devices.

It is troubling however, that in the Court could not give a clear answer on the question of extreme circumstance of self-defence. The courts’ non liquet answer exposed the fact that “the construction of a solid edifice for the total prohibition on the use of nuclear weapon is not yet complete” and also that this is due to “lack of willingness not of building materials” It is very sad that the Advisory Opinion did not get much publicity and even the few articles misinterpreted the Courts’ stance. These misinterpretations show that it was quite dangerous to leave a grey area on the law.

A convincing, clear and categorical answer would have been of greater educational effect. There needs to be a “reorientation of human consciousness “. The nuclear weapon states also simply ignored the opinion. It is true that the advisory opinions are not legally binding, but in practice they are followed in 90% of the cases. The advisory opinion is authoritative in that it embodies the collective view on a point of law of the highest judicial organ of international law. It shows, however the political reality, that the question of security is still widely identified by the strategy of nuclear defence.

This doctrine is entrenched too deeply in the minds of the strategists of nuclear weapon states and others under the “defence umbrella” of a nuclear superpower. There are more and more voices even in the nuclear states that the nuclear strategy in itself is a paradox. The nuclear weapons are being discredited as military means. Their use appears wholly disproportionate at every circumstance and the use raises enormous risks. The joint statement of Gen. Lee Butler and Gen. Goodpaster stated: “Nuclear weapons are inherently dangerous, hugely expensive, militarily inefficient and morally indefensible.

This inefficiency was clear in the case of Iraq (not to mention the many cases of mutual threatening in the Cold War). It has no power of deterrence unless there is real intention of actually using it. It is hard to imagine any circumstance when a state could use nuclear weapons and the credibility of such threats thus is low. It is very useful though for the leader of the enemy country to convince his people that their very existence is endangered and this common threat unites these people.

The other lesson from Iraq is that collective security works with conventional weapons, and even these conventional weapons together with economic sanctions can cause vast destruction and suffering to the people. A third lesson is clear from the Gulf crisis; that is on the spread of nuclear weapons. With the end of the Cold War the existing monitoring system is not efficient anymore to prevent the spread of nuclear weapons; many of the newly independent countries of the Soviet bloc having the capacities to sell parts and technologies to countries determined to have nuclear weapons.

Thus the risk that a “Saddam Hussein” of the world will actually acquire such weapon (and uses it) is highly increased. “We depend on the eternal absence of madness, miscalculation, accident and bad look. If we look at the course of history it looks a poor bargain. ” Besides the official nuclear weapon states there are several de facto nuclear weapon states: India, Israel, Pakistan, South Africa and several close to have such weapons: Iran, Brazil, Argentina, Taiwan, Iraq, Korea. There could be a longer list than that though.

If nuclear weapon states continue to argue the legality and efficiency of the nuclear weapons than they will encourage other states to have their own nuke. It also sends the message to the international community that the threat of use of nuclear weapons is an acceptable means of diplomacy. The people arguing for the nuclear weapons use the magic word deterrence as their ultimate argument. They argue that nuclear weapons prevented the outbreak of a World War III. It is hard to test the truth of this statement. Such strategists quote Hiroshima as the proof of effectiveness of these weapons.

This is a very weak argument though. In that case nobody else had the bomb so there was no danger of escalation into nuclear war. The bombing of Hiroshima was clearly against humanitarian law- in terms of non-discrimination, causing unnecessary suffering- and as such unlawful. This kind of use of the weapon is unjustifiable even in case of self-defence. From the fact that no nuclear weapon has been used since we can see that the taboo on the use of nuclear weapon is very strong. Any use can lead to mutual destruction. Nuclear weapons are too dangerous to be useable.

Even the threat of use is unacceptable for the public and triggers hostile reactions. Besides the clear risks of a nuclear war it also bears political costs. It is not very popular to play with nuclear weapons even on the level of political rhetoric. International law has outlawed aggression in the Charter of the UN, in Article 4(2), leaving only the narrow space of self- defence and collective self-defence. Criticists of the UN security regime claim that there are widespread violations of Art 2(4) already constitute state practice.

The reality, however, is that there are relatively few blatant violations of the article and those are condemned by large numbers of states. There are three different possible strategies for self-defence: Unlimited self-defence: clearly unlawful; “The right to self-defence is not a licence to use force; it is regulated by law and was never intended to threaten the security of other states” Limited self-defence: i. e. arms limitation, arms reduction, non-proliferation Complete disarmament

It is not very hard to see the ideal option, political reality however shows that we are (? ) in the second phase. As to arms reduction the SALT I and even more the SALT II stand as milestones. These treaties however are only of limited impact on the global picture. The most important treaty on non-proliferation is the NPT, which tried to limit the nuclear weapons club to those that tested the weapons by 1967. The Court dealt with this treaty in great detail. India viewed it as an attempt to legally establish the “nuclear apartheid”.

Other interpretation of the treaty is that it does not legalise the threat or use of nuclear weapons and it gives only temporal authorisation for the states already in possession of such devices, the realisation of the status quo with the obligation to pursue disarmament. One who argues for the legality of the use of nuclear weapons has to realise that if it is true than the NPT has no meaning. The argument of legality of use is inconsistent with the denial of the 185 member states of the UN of even the right of possession of such weapons.

The most fundamental principle of international law is the equality of states- so if we don’t want to find ourselves in an Orwellian international society where some States are “more equal”, than everybody has the right to acquire nuclear weapons. As to arms limitation there was not much achieved except that the non-use seemed to be the norm. In the eighties, however there was constant testing, apparently integrand part of the nuclear defence strategy. Most of the testing of the Western powers took place on remote islands of the Southern Pacific or under the surface in controlled circumstances.

There were and are however well-established cases showing that due to these tests there were deaths from cancer, leukaemia and other diseases in increased number, that the harms passed onto the next generation with a high number of irregular births, and immense harm to the environment which in the end of the day is self-destruction. As these facts has been justified by professional bodies and as all have seen the consequences (yet not all of it) of the nuclear catastrophe of Chernobyl, the nuclear weapon states could no longer argue that the effects of testing is unknown and rather unproved.

It finally led in the heels of the Advisory Opinion of the ICJ to the Comprehensive Test Ban Treaty (CTBT) which opened for signing on 24th September 1996. This treaty is the next step towards disarmament and the respect of the rights of non-nuclear states. It has some weak sides to it though. The good news is that it prohibits the test of nuclear weapons- full stop. The bad news is that 44 states must sign and ratify the treaty before it enters into universal force. Only 15 of the 44 has ratified it so far, which shows that it is not number one priority of the majority of even non-nuclear states to reduce the dangers of nuclear testing.

Other weakness of the treaty is that it does not ban the improving of arsenals by other means such as computer imitation. The political reality shows that we have long way to go, there are steps towards the right direction but the elimination of nuclear weapons will take many years if ever. Until it actually happens law may have a powerful role in regulating this issue; a multilateral treaty could be drawn up with no-use obligation and the violation of the treaty could be sanctioned as crime under international law and treated as such, embodied in the charter of the Permanent International Criminal Court.

The logic of annihilation still has a role in international relations. As the case of nuclear weapons shows; with the rapid development of warfare technology the possible scale of destruction multiplied and reached a level never experienced before. Human race reached the point in history where the old strategies are not working anymore. It possesses all the devices needed for a global suicide. The very existence of nuclear systems feeds the security dilemma. There are some signs that the situation is not altogether hopeless.

This new logic of condemning aggression and violence is strongly expressed in the principles of international law emerging from the bloodshed of the two world wars of this century. The main aim of the UN regime is to maintain international peace and security. Disarmament is an aim that the UN has to endorse given the holistic nature of security. As Judge Weeramantry so thoroughly analysed it in his dissenting opinion, international law, and particularly humanitarian law is built on the ancient morals of the universal human culture.

He puts it into the context of the religions, cultures and philosophic traditions of the world to emphasise its binding force that no State and no individual can ignore. These rules leave no room for legal use of nuclear weapons “My considered opinion is that the use or threat of nuclear weapons is illegal in any circumstances whatsoever (… ) It contradicts the fundamental principle of the dignity and worth of human persons on which all law depends. It endangers the human environment. (…

International law could contribute significantly towards rolling back the shadow of the mushroom cloud, and heralding the sunshine of the nuclear-free age” The ICJ already has made a big contribution by finding that nuclear weapons fall under international law, showing the responsibilities and obligations of every State to pursue disarmament. The Advisory Opinion of the ICJ follows the spirit of the UN Charter, which envisages a world built on co-operation rather than annihilation. It also showed that international law can be a powerful means to fight for a nuclear-free and therefore more peaceful and safer world.

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