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World court to rule on legality of nuclear weapons

Nuclear Monitor Issue: 
#443
24/11/1995
Article

 

(November 24, 1995) Fifty years after atomic bombs devastated Hiroshima and Nagasaki, the International Court of Justice, is preparing to make a landmark, though non-binding, pronouncement on the legality of nuclear weapons. As the United Nations' main judicial body, the court has been asked by the World Health Organization and the U.N. General Assembly to deliver an advisory opinion on the issue.

(443.4381) Colin Archer - This is supported by the World Court Project, which is an international alliance of citizens' groups. It was founded in 1992 with the aim of bringing the legality of nuclear weapons before the International Court of Justice at The Hague. The co-founding organizations are the International Peace Bureau (IPB), The International Association of Lawyers Against Nuclear Arms (IALANA) and International Physicians for the Prevention of Nuclear War (IPPNW).

The Court is now considering whether the threat or use of nuclear weapons is permitted under international law. It is expected to make its ruling early in 1996.

Peter Weiss, one of the lawyers working with the World Court Project, believes that nothing but good can come from this historic hearing: "If a majority of the Court says that nuclear weapons are not totally illegal, there will be a tremendous push to get a convention outlawing them like the treaties abolishing chemical and biological weapons. If a majority say they are totally illegal, as they should, there will be an equally strong movement for such a convention to implement the Court's opinion."
The World Court Project believes that clarification of the law by the International Court of Justice is a vital step towards the global abolition of nuclear weapons.

43 states, a record number, have made written submissions to the World Court on the question of whether the threat or use of nuclear weapons violates international law.
Oral Proceedings were held from 30 October to 15 November. They were open to the public and were carefully monitored by the World Court Project office which was set up in The Hague:

The World Health Organization and 26 states applied to make statements. Four of these withdrew from making statements, without explanation. Each of these states had prepared strongly anti-nuclear statements.

The representative of The World Health Organization gave a sober and detailed account of the special nature of nuclear weapons,stressing their radioactive effects which are impossible to contain either in space or in time.

France argued that nuclear weapons are not fundamentally different from other weapons, that when the use of armed force is legal there is no prohibition on the use of nuclear weapons. Germany and Italy, both members of the NATO nuclear alliance, supported nuclear legality, arguing that disarmament negotiations might be endangered by a Court ruling.

As the only negotiations under way at the moment are those about a Test Ban Treaty and the control of fissile materials, it is difficult to see how this argument applies.

Russia followed the line of the other nuclear weapon states, arguing that there are no specific treaties on nuclear weapons and that humanitarian law does not apply in this case.

However, Egypt, Mexico, Iran, Indonesia, The Soloman Islands, Samoa, Australia, New Zealand, San Marino, The Marshall Islands, Qatar, Malaysia, Costa Rica, Zimbabwe and the Philippines have produced strong anti-nuclear arguments, presented with great coherence. Mexico and Iran warned of their potential withdrawal from the Nuclear Non Proliferation Treaty should the nuclear weapon states fail to fulfill their disarmament obligations. Malaysia called on the Court to reject the nuclear domination of the five permanent members of the Security Council and rule in favour of the overwhelming majority of countries supporting the illegality of nuclear weapons.

Australia argued that the judges should decline to hear the case because they might come to the wrong decision - that nuclear weapons were lawful in some circumstances. However, in a stunning shift away from his countries previous support of US nuclear policy, foreign minister Gareth Evans argued: Self-defense is not a justification for genocide, for ordering that there shall be no enemy survivors in combat, or for indiscriminate attacks on the civilian population. Nor is it a justification for the use of nuclear weapons. He concluded that it "is, illegal not only to use, or to threaten to use, nuclear weapons, but to acquire, develop, test, or possess them." In a direct challenge to the nuclear weapon states he declared that they must, "within a reasonable time, take systematic action to eliminate completely all nuclear weapons."

The New Zealand Attorney General Paul East said: The answer to the question put to the Court should be 'no': the threat or use of nuclear weapons should no longer be permitted under international law. Arguing a strong, detailed case he concluded: "... a declaration of illegality would serve as a powerful further step to the elimination of nuclear weapons ... the potential consequences of failure, for all humanity, are too great".

Japan, in spite of heavy US pressure, argued that nuclear weapons are clearly contrary to the spirit of humanity that gives international law its philosophical foundation, but stopped short of concluding that the weapons are illegal.

The ambassador then presented the mayors of Hiroshima and Nagasaki, emphasizing that their testimony was independent of the governments view. Hiroshimas mayor, Takashi Hiraoka, reminded the Court that, the mind-numbing damage these weapons brought shook the foundations of human existence. He concluded: "It is clear that the use of nuclear weapons, which causes indiscriminate mass murder, that leave survivors to suffer for decades, is a violation of international law."

Qatar argued that whatever decision the Court came to could only be good for nuclear disarmament. The general trend in international law, with the Nuclear Non Proliferation Treaty and the spread of nuclear-free zones, is clearly against nuclear weapons. Appealing to the judges Dr. Al-Nauimi said: Quatar views your role as the means to ensure peace for future generations. In a brief, but effective, presentation San Marino said that, "not even the right of self-defense could justify the resort to nuclear weapons", and emphasized the immorality of investing in nuclear arsenals while millions suffered from starvation and disease.

Co-ordinating their presentations, Samoa, and the Marshall and Solomon Islands, they expressed their outrage at nuclear testing and the suffering it had caused. Their detailed legal arguments supported the competence of the World Health Organisation to request the Court's opinion. Special tribute was paid to the citizens' groups which had made the hearings possible.

On the final day the UK and the USA insisted that the Court should refuse to answer the questions. The USA defended nuclear deterrence by claiming that it had been used to keep the peace for the last half century: and the UK said that calling the system of deterrence into question would be profoundly destabilising. Both states argued that since the nuclear states have built up huge arsenals, and no treaty specifically prohibits nuclear weapons, the Court cannot rely on an international consensus of illegality.

The final state to appear, Zimbabwe, was able to summarise the arguments brought before the Court and came down powerfully in favour of nuclear illegality.

Also, the Register of the Court received over 3 million declarations, which citizens all over the world have sent in, against nuclear weapons. This was a good reminder of the strength of world feeling against nuclear weapons and the work of the World Court Project.

Source: Reuter, 26 October 1995 / International Peace Bureau (IPB), Hague WCP Summary, 16 November 1995
Contact: International Peace Bureau, Rue de Zurich 41, 1201 Geneva, Switzerland
Tel +41-22-731 6429, Fax +41-22-738 9419