Cadmus

Simulated ICJ Judgment: Revisiting the Lawfulness of the Threat or Use of Nuclear Weapons

Abstract
The author prepared this simulated judgment at the request of Cadmus editors to demonstrate that there is ample ground for revisiting and revising the landmark 1996 advisory opinion of the ICJ on the legality of nuclear weapons. The ICJ failed to anticipate the proliferation of nuclear weapons, which expands the evolution of the concept of sovereignty, the potential cataclysmic impact of nuclear war on climate change, the multiplication of nuclear-weapon-free zones as evidence of a widespread rejection, mounting evidence regarding the physical and psychological harm, and unwillingness of the nuclear weapons states to fulfill their obligations under the NPT. This article challenges the notion that a few sovereign states should be the sole arbiters of international law and affirms the legitimate claim of the global community of protection from the existential threat posed by nuclear weapons. The use or threat of use undermines foundational values of the international legal system and the specific rules of self-defense and humanitarian law. The contribution seeks to give an accentuated role for the explicit use of the fundamental values of international legal order, in crafting an innovative methodology for the formulation of the judgment. The very existence of these weapons undermines the rights of all of humanity. The ICJ should be moved to categorically declare the use and possession of nuclear weapons a crime against humanity.

1. Summary of Findings of 1996 Rulings
The principal findings of the Court in its 1996 advisory opinion are as follows:
1. By a vote of 14-0 the Court found that “There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons”;
2. By a vote of 11-3 the Court found that “There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such”;
3. By a vote of 14-0 the Court found that “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful”;
4. By a vote of 14-0 the Court found that “A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons”;
5. By a vote of 7-7 the Court found that “The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake”;
6. By a vote of 14-0 the Court found 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”.

2. Rationale for Review of the 1996 Judgment
The Court is subject to a request to review its own findings of its earlier advisory opinion issued in 1996.* The Court has determined that it has the jurisdiction to proceed with this question. The court also determines, as it did in 1996, that this question raises matters of a distinctively legal character and therefore it is appropriate for the Court to discharge its obligation to provide advisory opinion on a legal question. Finally, the Court has discretion whether to provide an advisory opinion or not.
In a fundamental sense, law should reflect the basic values and sense of public conscience which emerge from evolving expectations responding to changes in perceptions, attitudes and shared subjectivities of society at large. Law in our time emerges during a very turbulent period. In the aftermath of the Cold War, the prevailing perceptions and attitudes were inevitably colored by the five-decade-long arms race in which the salience of nuclear weapons in national defense strategy was unassailable and a perspective encompassing the security needs of humanity as a whole had yet to emerge. Furthermore, facts and circumstances impacting on an assessment of this issue have changed substantially since our earlier judgment.
1. The vitality and relevance of law are tied to its sensitivity and the responsibility it generates for its impacts on humanity and its social consequences. In our earlier judgment, the Court did not adequately consider that its own response may serve as a justification or stimulus for the further proliferation of nuclear weapons. Since then at least three other countries – India, Pakistan and North Korea – have acquired possession of nuclear weapons, substantially escalating the dangers of an intentional detonation of nuclear weapons. According to testimony of the IAEA, a fourth nation, Iran, may be close to doing so. Studies by respected institutions indicate the likelihood that a continuation of the legal status quo could encourage or provide compelling justification for other nations to acquire nuclear weapons.
2. Recent disclosures regarding accidents relating to nuclear weapons and materials in the USA and the former USSR – both during and since the end of the Cold War – make clearer the magnitude of the danger of a nuclear accident. Evidence has come to light which suggests that the Court may not have sufficiently considered the possible unintended dangers arising from its judgment, since it considered only the question of intended usage. Recent studies tracking fallout from the Fukushima nuclear accident in 2011 indicate that thousands of citizens in other countries around the world may have lost their lives or incurred serious illness as a result of the fallout from the accident. If there is a probability that any action, whether it be erection of a nuclear power plant or possession of nuclear weapons, may lead to unintended consequences that impact on other claimants, then those claimants have a right to seek reasonable protection under law from such actions and the Court has an obligation to examine the issue from this perspective as well.
3. Both of these factors acquire even greater significance in the light of the rising levels of international terrorism over the past two decades, which have plagued and continue to plague the international community since the attack on the World Trade Center in September 2001. While the 1996 judgment directly concerned only the usage of nuclear weapons, sanctioning possible usage necessarily implies a sanction for the possession of nuclear weapons. In doing so, therefore, the Court may have inadvertently undermined the rights of other nation-states and the world community to protection from victimization, as a result of weapons stolen from nuclear weapon states.
4. With the end of the Cold War, it appeared in 1996 that the world may well be nearing the end of its long history of war. Yet, since then, two major destabilizing wars have flared up in Afghanistan and Iraq and spread waves of violence to a neighboring nuclear weapons state, Pakistan. The recent change of leadership in North Korea, also a nuclear weapons state, has heightened tensions and threat levels.
5. While the presumption of earlier testimony before the Court was that the use of nuclear weapons might possibly be required as a last resort for self-defense, since then several nuclear weapon states including the USA and USSR have actually enhanced the status of nuclear weapons as part of their overall defense strategies, including the possibility of first use. This suggests that the Court’s earlier judgment was not sufficiently clear in its pronouncement on the inherent illegality of these weapons.
6. Perhaps, most significant of all, our earlier judgment was made before there was widespread understanding regarding the threat posed by climate change to the security of the entire human race and the potentially devastating impact of nuclear war on global warming, a threat to humanity that could well overshadow all other considerations.
7. Our earlier judgment was predicated around the issue of whether sovereign states had the right to possess and possibly to use nuclear weapons. It did not sufficiently take into account the rights of other non-belligerent states to protection from the possible intended or unintended consequences of possession or use of these weapons.
8. Earlier, the Court acted under the assumption that sovereign states were the sole legitimate participants in the creation and interpretation of law related to nuclear weapons. It now becomes evident that the security and welfare of the entire world community may be directly and very powerfully influenced by the question whether use of nuclear weapons is considered legal under any circumstances. From this perspective, it is necessary to reconsider whether an act by one party in self-defense may be justified when there is a possibility that it may have consequences for the entire world community. Can self-defense of the part be justified if it endangers the security of the whole?
9. The concept of national sovereignty has evolved from the notion of state absolutism to a concern that sovereignty derives its authority from the people, whose interests are reflected in the emergence of norms of good governance which require transparency, accountability, responsibility and a fundamental regard for the human rights and dignity of the people, protected by the rule of law. Sovereign authority does not come from the barrel of a gun but from the individual components of the body politic. There are grounds to question whether the Court’s earlier judgment was founded upon an interpretation of the rights of nation-states which may be at variance with recent developments in international rule of law, which significantly change assumptions of state sovereign absolutism.
10. This issue raises fundamental questions regarding the rightful claimants in this case. Resolutions in the UN General Assembly, efforts to establish regional nuclear-free zones, studies and opinion polls measuring global public opinion in both nuclear and non-nuclear weapon states all indicate a growing abhorrence and rejection of the legitimacy of these weapons. The 2011 resolution of the UN General Assembly calling for a convention to prohibit the use of nuclear weapons was approved by 117 nations. While it is true that the ICJ was originally established by an international treaty signed by nation-states, the ultimate sovereignty and authority of these states must necessarily arise from and rest with their citizens. In recent years, the UN Security Council has recognized the right of the international community to intervene in countries such as Libya when it became evident that national governments were acting in contravention of the will of the majority of their own people. If it be found that the vast majority of the world’s citizens reject the legality of nuclear weapons, then it may be that the legality of prevailing national laws and international treaties is subject to question. Therefore, this issue compels the Court to consider whether in fact claimants other than nation-states may under certain circumstances have legitimate interests that should be accounted for in the expression of international rights and obligations on this important issue.
11. Finally, the Court’s earlier judgment was predicated on the explicit premise that the nuclear weapons powers would pursue and conclude good-faith negotiations leading to complete nuclear disarmament as they are legally bound to do under article VI of the Treaty on the Non-Proliferation of Nuclear Weapons. Events subsequent to the Court’s earlier judgment have not borne out this premise. On the contrary, not only have at least three additional states acquired nuclear weapons, but in addition several of the largest nuclear weapons powers have actually upgraded the salience of nuclear weapons in their military strategies, a move directly counter to their obligations under the Treaty.
In view of the salience of these issues for the future of international law and the future of global society, the Court holds that it lies within its sound discretion to revisit its earlier ruling and to provide a clear and precise legal appraisal of the issue.

3. Evolution of the Concept of Sovereignty
In 1996 we provided an important clarification concerning the unique characteristics of nuclear weapons and the scope of the applicable International Law. This approach rejected the arguments of nuclear-enabled states which argued that there was no specific rule of customary international law or treaty law that specifically held the threat or use of nuclear weapons to be illegal or that there was no international prohibition on its face that the threat or use of nuclear weapons was incompatible with international law. This proposition was based on the Lotus Case decided by the PCIJ in 1926.**
The case involved a collision on the high seas between a French and a Turkish ship in peace time. Turkey had sought to prosecute the Officer of the Watch on the French ship for criminal negligence. The Court ruled in favor of France. Essentially, Turkey could point to no international treaty or customary rule that gave it jurisdiction over French personnel with regard to an accident occurring on the high seas. In short, the Court ruled that since there was no specific rule of international law to which the parties had consented, there could be no restraint based on International Law imposed on a sovereign State. The context of this case did not emerge under the shadow of the laws of war or contemporary human rights obligations. As a consequence, the precedent provides no guidance for the current problem. Additionally implicit in the Lotus Case is a strong version of sovereignty, a version significantly modified by the expanded scope of international obligation under the UN Charter.
The concept of sovereignty and the implication of state absolutism have been considerably modified by the UN Charter and state practice since WWII. For example, the Preamble of the UN Charter begins with the phrase “We the peoples of the United Nations determine…” While it is true that membership in the UNO is confined to Sovereign states, those states condition UN membership on agreeing to subordinate sovereignty to the major purposes of the UN Charter. These include the values of peace and security, friendship between nations, the value of humanitarian and human rights law, which implicate universal dignity, and a commitment to the rule of law. Additionally, the post-war period has emerged with a principle of universal jurisdiction for certain crimes against humanity, grave violations of human rights and genocide. Additionally, the international system has developed a class of obligations known as obligations erga omnes, obligations which trump sovereignty. In addition, international law has developed the principle of peremptory norms of international law, jus cogens, which is also a principle which trumps sovereign absolutism. Finally, there is emerging, in international law, a further limitation on the notion of sovereign absolutism.
This is the emergence of the abuse of the idea of sovereignty which is specifically designed to diminish sovereign absolutism when significant or serious violations of human rights happen.
The doctrinal basis of sovereignty gives preference to the legal personality of the state but has historically had the consequence of viewing the individual as not a subject of international law, but an object of it. This extinguishes individual identity and correspondingly the individual as an articulator of individuated interests in the international legal system. This is an outgrowth of objective positivism, which seeks to base law solely on external fact and explicit agreement ignoring the subjective reality of human aspirations, inalienable rights and universal human values. The state is viewed as an entity apart, something separate from the individuals who constitute its members, an objective reality in its own right, even its right to impose itself on its own people. It bases itself on faith in a mechanical process of ordering and organization which may fail to perceive or honor the subjective aspirations and values of those it seeks to govern. The subjective reality is based on the developing self-consciousness of humanity and its quest for self-realization.
As indicated, a condition of membership in the UN is that a State is able and willing to honor the obligations codified in the UN Charter itself. Moreover, judicial method has itself evolved in the exposition of law. The idea of law as a set of narrowly formulated rules to be mechanistically followed is incompatible with the fundamental principle embedded in the UN Charter that law should be construed in the light of the major object, purposes and values of that instrument. In short, in the absence of specific rules it is completely unnecessary, and possibly irresponsible, to consign vitally important aspects of human conduct to a legal vacuum in our global social and legal process. To this end, modern law brings to legal discourse more than simply “rules”; it brings to the discourse higher level principles, standards, doctrines and fundamental legal values for the complete and careful discharge of the judicial function. More than that, adjudication, be it advisory or contentious, must understand the problem before the Court in its appropriate context. It must be alert to the possible value of a multidisciplinary perspective, it must keep in mind the basic values which are ultimately the foundation of the law itself and must see law as an important expression of authoritative and controlling responses in the common interest of all mankind.
As national law is ultimately founded on the fundamental rights of individual human beings, the true basis of international law cannot be relegated solely to the rights of national entities represented by their governments, but must be ultimately founded on the rights of all human beings. So too, it must not only recognize the existence and rights of sovereign nation-states to protect their territory and freedom to determine their way of life, but also and equally the existence and rights of the global human community to protect the global commons and freedom from compulsions dictated by smaller collectives. Prevailing international law is based on the need to control the egoism of individual nation-states, but this is an insufficient basis for the evolution of global governance. Sovereignty is not a matter of supremacy of the nation-state over its own people or freedom from binding obligation to humanity. The individual, the nation-state and the global community all have a legitimate claim for protection and freedom, and justice necessitates evolution of a rule of law that recognizes, harmonizes and reconciles rather than merely balances and compromises the claims of all three.


* Legality of the Threat or Use of Nuclear Weapons, ICJ Advisory Opinion (8 July 1996).
** S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10 (Sept. 7)


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