Denuclearization: The Legal Imperative

10 Jul, 1999    ·   222

M. Siddharth points out the legal imperative to denounce legal weapons in the light of the July 1996 World Court Advisory Opinion

July 1996 entrenched itself  in international legal history after of the first ever Advisory Opinion was given on the legal status of nuclear weapon threat or use. It is important to appreciate the global context in which the Opinion was given in the light of resistance by the nuclear weapon states to any such legal assessment. The demise of the Cold War provided space for legal intervention. It is not surprising that, for the last fifty years, an engagement on this issue was shelved because of bipolar geopolitical tensions.



The role of international non-governmental organizations in this ‘process’ deserves special mention. The International Association of Lawyers Against Nuclear Arms (IALANA), the International Peace Bureau (IPB) and the International Physicians For The Prevention of Nuclear War (IPPNW) were instrumental in building up momentum for a legal appraisal of this subject. The initial request for an Advisory Opinion came from the World Health Organization (WHO). However, the
World Court
turned down its request suggesting that the issue was outside the WHO’s jurisdiction.  Eventually, the United Nations General Assembly (UNGA) made the following request “[i]s the threat or use of nuclear weapons in any circumstance permitted under international law?”.  The
World Court
faced no difficulty in establishing the legal basis for this request or respond to the query.



A whole range of conventional and customary sources of international law were examined to evaluate the diverse claims being made by the proponents and opponents of comprehensive illegality. The Court arrived at a finding of ‘general’ illegality. The provisions which evoked the unanimous support of the fourteen member bench are listed below:



‘A. There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons;



C. 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 requirements of Article 51 is unlawful;



D. A threat or use of nuclear weapons should also be compatible with the requirements of international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, [emphasis mine] as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;



F. 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.’.



What is of particular value in the Court’s treatment of the legal dimensions of nuclear weapon threat or use is its re-iteration that the principles of humanitarian law do apply. Humanitarian law, for instance, demands a distinction between civilian and military targets during war, and explicitly prohibits ‘unnecessary suffering’ inflicted by and on either belligerent. The use of nuclear weapons represents a gross violation of these tenets of humanitarian law.  It is against this backdrop that the Court’s pronouncement on the issue of self-defence needs to be considered. The Court’s deliberation over the ‘extreme circumstance of self-defence’ is in effect qualified since it affirms the position that ‘the use of such weapons in fact seems scarcely reconcilable with respect for such [humanitarian] law requirements. Moreover the Court’s own added emphasis is ‘[t]hat its reply to the question put to it by the General Assembly rests on the totality of the legal grounds set forth by the Court.’ Thus, the Court urges caution. The Opinion represents a movement in the direction of nuclear delegitimisation. There are now not merely persuasive political, strategic, economic and moral reasons to renounce nuclear weapons but an added legal imperative, which needs to be seriously considered by the political leadership and citizens of both the nuclear and non-nuclear weapon states.