ICJ ruling on nuclear weapons sets a new precedent

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.