ICJ ruling on nuclear weapons sets a new precedent<\/p>\n
By Brahma Chellaney<\/p>\n
NEW DELHI (JP): The United Nations General Assembly will take
\nup next month the recent landmark World Court ruling which
\ndeclared nuclear-weapons threat or use to be \"generally contrary
\nto international law\" and pointed to a legal obligation to
\nachieve the complete dismantlement of nuclear arsenals.<\/p>\n
Malaysia, with the backing of Indonesia and a number of other
\nnations, has introduced a resolution in the UN. First Committee
\nseeking to implement the court ruling through negotiations on a
\nnuclear weapons convention, modeled on the 1993 Chemical Weapons
\nConvention. The resolution, aimed at achieving total nuclear
\ndisarmament, will come up before the General Assembly in the
\nfirst half of December after it is passed by the First Committee
\nlater this month.<\/p>\n
The ruling by the International Court of Justice (ICJ), in the
\nform of a non-binding advisory opinion, was in response to a
\nquestion posed by the General Assembly: \"Is the threat or use of
\nnuclear weapons in any circumstances permitted under
\ninternational law?\"<\/p>\n
Despite the positive spin sought to be put on the ruling by
\nthe great powers, the world's supreme judicial organ not only
\nrebuffed several Western states that petitioned it not to deliver
\nan opinion, but it set forth major new legal principles governing
\nwhat it called \"the ultimate evil\" -- nuclear weapons.<\/p>\n
As part of its follow-up action on the advisory opynion, the
\nGeneral Assembly will need to carefully weigh how to ensure
\ncompliance with the important new legal principles enunciated by
\nthe ICJ in July.<\/p>\n
The General Assembly has passed many nuclear disarmament
\nresolutions with overwhelming support from its member-states but
\nbeen unsuccessful in implementing them because of opposition by
\nthe nuclear powers and their allies.<\/p>\n
The very first resolution passed in early 1946 mandated \"the
\nelimination from national armaments of atomic weapons\". Since
\nthen, the General Assembly has repeatedly called for negotiations
\non a phased, time-bound disarmament program, and every year the
\nworld is reminded that nuclear-weapons use would be \"a crime
\nagainst humanity\".<\/p>\n
The ICJ decision is a legal endorsement of many of those
\nresolutions and obligates the General Assembly to follow up the
\nruling. But as the real power in international relations is with
\nthe five nuclear powers, who are also the permanent members of
\nthe Security Council, the task will not be easy.<\/p>\n
While the nuclear continue to thwart international moves to
\nset up a disarmament negotiating committee in Geneva, the 14 ICJ
\njustices -- most from states with nuclear weapons or under a
\nnuclear umbrella -- ruled unanimously that the powers are legally
\nobliged not only to negotiate in good faith, but achieve the
\ndismantlement of all weapons of mass extermination.<\/p>\n
\"The obligation involved here is an obligation to achieve a
\nprecise result -- nuclear disarmament in all its aspects -- by
\nadopting a particular course of conduct, namely, the pursuit of
\nnegotiations on the matter in good faith,\" the court said. With
\nthe unanimous weight thrown behind it, that twofold obligation,
\naccording to ICJ President Mohammed Bedjaoui, has now assumed
\ncustomary force in international law.<\/p>\n
The General Assembly's action should draw on the fact that,
\nfor the first time, nuclear weapons have been brought within the
\nprovisions of the UN Charter. The court has added nuclear weapons
\nto the Charter prohibition of the use of force against the
\nterritorial integrity or political independence of another state.<\/p>\n
In setting its most significant legal principle, the court
\nruled that although neither customary nor conventional
\nInternational law specifically prohibits nuclear-weapons threat
\nor use, such action nonetheless \"would generally be contrary to
\nthe rules of international law applicable in armed conflict, and
\nin particular the principles and rules of humanitarian law\".<\/p>\n
Nuclear weapons did not exist when the Hague and Geneva
\nconventions were drawn up. With these weapons being flaunted as
\nsecurity assets and as instruments of power and influence, no
\nclear customary law against their use has evolved. Today, they
\nremain the only class of weapons of mass destruction not covered
\nby an international convention.<\/p>\n
Yet, the ICJ, with President Bedjaoui casting the deciding
\nvote, established the general illegality principle, but without
\nreaching a definitive conclusion about the legality of nuclear
\nthreat or use in a rare self-defense situation where the state's
\nvery survival is a stake.<\/p>\n
The new general illegality principle would not have emerged
\nhad the judges from Russia, China and the NATO states, Germany
\nand Italy, not broken ranks with their American, French and
\nBritish colleagues backing the relative legality of nuclear arms.<\/p>\n
While many not-nuclear states appear disappointed that the
\ncourt could not decide the use-of-force issue in an extreme
\nsituation of self-defense, the failure should not be seen as
\nproviding implicit sanction to nuclear threat or use even when a
\nstate's existence is at stake.<\/p>\n
The existence of nuclear arms is \"a challenge to the very
\nexistence of humanitarian law\", according to Justice Bedjaoui,
\nand the failure cannot \"in any way interpreted as leaving the way
\nopen to the recognition of the lawfulness of the threat or use of
\nnuclear weapons\".<\/p>\n
The new legal principles -- a major boost to global efforts to
\nstrip nuclear weapons of their halo as lawful instruments of
\nsecurity for the great powers and their allies -- would make it
\ncriminal to unleash a Hiroshima or Nagasaki-style nuclear
\nholocaust.<\/p>\n
The General Assembly should note that the ruling removes any
\nclaim of legitimacy from offensive first-use nuclear doctrines,
\nmaintained by four of the five nuclear powers. The fifth power,
\nChina, added conditionality last year to its no-first-use posture
\nto exclude its rival India.<\/p>\n
Since the only gray area in law now relates to a self-defense
\nsituation where the state's very existence is at stake, extended
\ndeterrence pivoted on the constant threat to use nuclear arms
\nfirst should be seen as contrary to international law.<\/p>\n
Taking cognizance of this, India has introduced a separate
\nresolution at the UN. First Committee calling for an
\ninternational no-first-use convention.<\/p>\n
The legality of tactical or battlefield \"nukes\" is also open
\nto challenge since they cannot and are not intended to safeguard
\nthe survival of a nation. China is known to have such weapons,
\nwhile the U.S.-Russian bilateral accord on elimination of
\ntactical arms specifically excludes air-launched \"nukes\".<\/p>\n
While the General Assembly considers the import of the new
\nlegal principles and tries to address to current \"imperfections
\nin international law\" notified by the court, the cause of nuclear
\ndisarmament needs to be advanced not only by the nuclear powers
\nbut those states ensconced under a nuclear umbrella.<\/p>\n
In the aftermath of the ICJ ruling, it will be hypocritical
\nfor states like Germany and Japan that aspire to be Security
\nCouncil permanent members and Australia and Canada which espouse
\ndisarmament to continue to bask under a first-use nuclear
\numbrella, savor its security benefits and sermonize on
\nnonproliferation.<\/p>\n
The United States' first-use doctrine, which President Bill
\nClinton has pledged to preserve in response to the 1994 Nuclear
\nPosture Review, is aimed primarily at safeguarding the
\ncredibility of its umbrella.<\/p>\n
By suggesting a no-first-use doctrine, the 16 countries
\nshielded by the umbrella can prove that American's allies do not
\ninsist on an offensive nuclear posture for their national
\nsecurity.<\/p>\n
The writer is a professor of security studies at the Center
\nfor Policy Research, an independent think-tank in New Delhi.<\/p>",
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