ICJ ruling on nuclear weapons sets a new precedent

By Brahma Chellaney

NEW DELHI (JP): The United Nations General Assembly will take up next month the recent landmark World Court ruling which declared nuclear-weapons threat or use to be "generally contrary to international law" and pointed to a legal obligation to achieve the complete dismantlement of nuclear arsenals.

Malaysia, with the backing of Indonesia and a number of other nations, has introduced a resolution in the UN. First Committee seeking to implement the court ruling through negotiations on a nuclear weapons convention, modeled on the 1993 Chemical Weapons Convention. The resolution, aimed at achieving total nuclear disarmament, will come up before the General Assembly in the first half of December after it is passed by the First Committee later this month.

The ruling by the International Court of Justice (ICJ), in the form of a non-binding advisory opinion, was in response to a question posed by the General Assembly: "Is the threat or use of nuclear weapons in any circumstances permitted under international law?"

Despite the positive spin sought to be put on the ruling by the great powers, the world's supreme judicial organ not only rebuffed several Western states that petitioned it not to deliver an opinion, but it set forth major new legal principles governing what it called "the ultimate evil" -- nuclear weapons.

As part of its follow-up action on the advisory opynion, the General Assembly will need to carefully weigh how to ensure compliance with the important new legal principles enunciated by the ICJ in July.

The General Assembly has passed many nuclear disarmament resolutions with overwhelming support from its member-states but been unsuccessful in implementing them because of opposition by the nuclear powers and their allies.

The very first resolution passed in early 1946 mandated "the elimination from national armaments of atomic weapons". Since then, the General Assembly has repeatedly called for negotiations on a phased, time-bound disarmament program, and every year the world is reminded that nuclear-weapons use would be "a crime against humanity".

The ICJ decision is a legal endorsement of many of those resolutions and obligates the General Assembly to follow up the ruling. But as the real power in international relations is with the five nuclear powers, who are also the permanent members of the Security Council, the task will not be easy.

While the nuclear continue to thwart international moves to set up a disarmament negotiating committee in Geneva, the 14 ICJ justices -- most from states with nuclear weapons or under a nuclear umbrella -- ruled unanimously that the powers are legally obliged not only to negotiate in good faith, but achieve the dismantlement of all weapons of mass extermination.

"The obligation involved here is an obligation to achieve a precise result -- nuclear disarmament in all its aspects -- by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith," the court said. With the unanimous weight thrown behind it, that twofold obligation, according to ICJ President Mohammed Bedjaoui, has now assumed customary force in international law.

The General Assembly's action should draw on the fact that, for the first time, nuclear weapons have been brought within the provisions of the UN Charter. The court has added nuclear weapons to the Charter prohibition of the use of force against the territorial integrity or political independence of another state.

In setting its most significant legal principle, the court ruled that although neither customary nor conventional International law specifically prohibits nuclear-weapons threat or use, such action nonetheless "would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law".

Nuclear weapons did not exist when the Hague and Geneva conventions were drawn up. With these weapons being flaunted as security assets and as instruments of power and influence, no clear customary law against their use has evolved. Today, they remain the only class of weapons of mass destruction not covered by an international convention.

Yet, the ICJ, with President Bedjaoui casting the deciding vote, established the general illegality principle, but without reaching a definitive conclusion about the legality of nuclear threat or use in a rare self-defense situation where the state's very survival is a stake.

The new general illegality principle would not have emerged had the judges from Russia, China and the NATO states, Germany and Italy, not broken ranks with their American, French and British colleagues backing the relative legality of nuclear arms.

While many not-nuclear states appear disappointed that the court could not decide the use-of-force issue in an extreme situation of self-defense, the failure should not be seen as providing implicit sanction to nuclear threat or use even when a state's existence is at stake.

The existence of nuclear arms is "a challenge to the very existence of humanitarian law", according to Justice Bedjaoui, and the failure cannot "in any way interpreted as leaving the way open to the recognition of the lawfulness of the threat or use of nuclear weapons".

The new legal principles -- a major boost to global efforts to strip nuclear weapons of their halo as lawful instruments of security for the great powers and their allies -- would make it criminal to unleash a Hiroshima or Nagasaki-style nuclear holocaust.

The General Assembly should note that the ruling removes any claim of legitimacy from offensive first-use nuclear doctrines, maintained by four of the five nuclear powers. The fifth power, China, added conditionality last year to its no-first-use posture to exclude its rival India.

Since the only gray area in law now relates to a self-defense situation where the state's very existence is at stake, extended deterrence pivoted on the constant threat to use nuclear arms first should be seen as contrary to international law.

Taking cognizance of this, India has introduced a separate resolution at the UN. First Committee calling for an international no-first-use convention.

The legality of tactical or battlefield "nukes" is also open to challenge since they cannot and are not intended to safeguard the survival of a nation. China is known to have such weapons, while the U.S.-Russian bilateral accord on elimination of tactical arms specifically excludes air-launched "nukes".

While the General Assembly considers the import of the new legal principles and tries to address to current "imperfections in international law" notified by the court, the cause of nuclear disarmament needs to be advanced not only by the nuclear powers but those states ensconced under a nuclear umbrella.

In the aftermath of the ICJ ruling, it will be hypocritical for states like Germany and Japan that aspire to be Security Council permanent members and Australia and Canada which espouse disarmament to continue to bask under a first-use nuclear umbrella, savor its security benefits and sermonize on nonproliferation.

The United States' first-use doctrine, which President Bill Clinton has pledged to preserve in response to the 1994 Nuclear Posture Review, is aimed primarily at safeguarding the credibility of its umbrella.

By suggesting a no-first-use doctrine, the 16 countries shielded by the umbrella can prove that American's allies do not insist on an offensive nuclear posture for their national security.

The writer is a professor of security studies at the Center for Policy Research, an independent think-tank in New Delhi.