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Perth International Law Journal |
IS THE THREAT OR USE OF NUCLEAR WEAPONS PERMITTED UNDER INTERNATIONAL L AW?:
A CASE NOTE ON THE NUCLEAR WEAPONS ADVISORY OPINION
MATHEO VINCUILLO*
The Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226 is a fundamental case in the history of international law. This case note provides a new comer to international law with an understanding of the boundaries of international law and the jurisdiction of the International Court of Justice as it considers one of the most difficult ethical questions of the 20th century.
I INTRODUCTION
In Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion)1 (Advisory Opinion), the International Court of Justice (ICJ) takes a stand on one of the most burn- ing legal and political questions of our time: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?’2 The ICJ addressed this question in light of first, the United Nations Charter (Charter) provisions relating to the threat or use of force,3 second, specific rules in international law,4 and third, the law in armed conflict proper.5 By President Bedjaoui’s casting vote, a majority6 of the ICJ found it cannot definitively conclude whether the threat or use of nuclear weapons would be law- ful or unlawful in an extreme circumstance of self-defence, in which the very survival of a state would be at stake.7 This essay has two outcomes. First, it explains the majority’s conclusion. It contends that the majority’s conclusion was apt and despite some flaws, represents a triumph for the rule of law in international relations. Second, it examines the outcomes of the Advisory Opinion to identify the role and limits of international law. It asserts that international law maintains order and promotes peace in the international
* Matheo Vinciullo. Juris Doctor Student (The University of Western Australia). Responsibility for the text lies with this author and all errors are his alone.
1 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226.
2 Ibid [10]; Manfred Mohr, ‘Advisory Opinion on the International Court of Justice on the legality of the use of nuclear weapons under international law - A few thoughts on its strengths and weaknesses’ (1997) Inter- national Review of the Red Cross 316.
3 (Advisory Opinion) [1996] ICJ Rep 226, [37].
4 Ibid [51].
5 Ibid [74].
6 The majority consisted of: President Bedjaoui (Algeria); Ranjeva (Madagascar), Herczegh (Hungary), Shi (China), Fleischhauer (Germany), Vereshchetin (Russia) and Ferrari Bravo (Italy) JJ.
7 Ibid, [97].
community, but is limited by its inability to legislate and enforce. These outcomes are demonstrated by first examining the Advisory Opinions’ context, second, the Court’s interpretation and application of the law governing the General Assembly’s question, and third, the majority’s reasoning on paragraph 2E.
II BACKGROUND
A Context
This Government believes that, because of their immense power to cause destruction, the death of and injury to human being, the use of nuclear weapons is clearly contrary to the spirit of humanity that gives international law its philosophical foundation.8
The international community has questioned the legality of nuclear warfare ever since the United States employed the atomic bomb on Japan. Through resolution 49/75K of 15 December 1994, the United Nations (UN) General Assembly requested an urgent ad- visory opinion from the ICJ to answer this question.9 The ICJ received a record number of written statements on the matter from both states and international organisations.10 On July 8 1996, the Court gave the Advisory Opinion. They addressed relevant Charter provisions, specific rules of international law, and the law of armed conflict proper in turn.11 Notably, the Court also considered the unique characteristics of nuclear weapons and their effect on the environment; their destructive capacity that can cause untold human suffering for generations.12 The Court could not definitively answer the question; the majority found no sufficient basis for a definitive conclusion as to the legality or illegality of using nuclear weapons in an extreme circumstance of self-defence.13 This is despite the Court reiterating the clear and justified international concern that state’s share over nuclear warfare.14 Importantly, Advisory Opinions rendered by the ICJ are
8 ‘Written Statement of the Government of Japan’, Legality of the Threat or Use of Nuclear Weapons (Advi- sory Opinion) [1996] ICJ Pleadings 1, [3].
9 Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Rep 226, [10]; Charter of the United Nations art 96.
10 Above n 2, 317.
11 Advisory Opinion [1996] ICJ Rep 226, [34].
12 Ibid [27]-[33].
13 Ibid [97], [105]. Notably, paragraph (2)E.
14 Ibid [63]. The Court noted these ‘testify to a growing awareness of the need to liberate the community from the dangers resulting from nuclear weapons’; [68]-[73]. The Court noted ‘a clear sign of deep concern regarding the problem of nuclear weapons’.
non-binding on states.15 However, the ICJ’s advisory and contentious (binding) jurisdic- tions follow identical rules and procedures.16 The legal reasoning within Advisory Opin- ions are subsequently viewed as the ‘ICJ’s authoritative position’,17 and consequently have a persuasive influence on international relations.18 Importantly, the ICJ advisory jurisdiction does not include law-making; it is a judicial organ of the UN.19 Its purpose is not to settle disputes between states, but to offer legal advice to the requesting organs and institutes.20 Consequently, its judicial function is limited to ascertaining and inter- preting relevant law governing the legal question.21
III THE ADVISORY OPINION
A Analysis of Charter Provisions
In the Advisory Opinion, the Court first considered Charter provisions article 2(4) and article 51. Read conjunctively, article 2(4) and article 51 operate to prohibit a state from the threat or use of force unless they act in self-defence.22 The Court noted customary international law limits article 51 ‘self-defence’ to necessary and proportionate mea- sures.23 Further, the Court identified that the Charter does not refer to or prohibit specific weapons.24 Here, article 2(4) ‘force’ was read to cover all weapon use. States contended that the ‘very nature’ of nuclear weapons and high probability of nuclear retaliation and ‘devastation’ negates the proportionality condition ever being complied with.25 The Court rejected this contention. The Court held that the proportionality principle does not in itself prohibit the use of nuclear weapons.26 Further, the Court held it unnecessary to
15 Charter of the United Nations art 96; Statute of the International Court of Justice art 65. This principle is subject to a express provision contained in an international instrument explicitly referring otherwise.
16 Statute of the International Court of Justice art 68; P F Bekker, Commentaries on World Court Decisions
(Martinus Nijhoff Publishers, 1st ed, 1998) 24.
17 Roberto Ago, ‘Binding Advisory Opinions of the International Court of Justice’ (1991) 85 Australian Jour- nal of International Law 439, 441.
18 (Advisory Opinion) [1996] ICJ Rep 226, [18].
19 Charter of the United Nations art 92.
20 Statute of the International Court of Justice art 65; M N Shaw, International Law (Cambridge University Press, 6th ed, 2008) 1113.
21 (Advisory Opinion) [1996] ICJ Rep 226, [19].
22 Ibid [38]; Hans Blix, Means and Methods of Combat In: International Dimensions of Armed Conflict (Mar- tinis Nijhoff Publications, 1st ed, 1988) 144-155.
23 Ibid [41].
24 Ibid [39].
25 Ibid [43]; ‘Written Comments of the Government of the Solomon Islands’, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 44-55, [3.44]-[3.63]
26 Ibid [43].
quantify possible risks or enquiries into whether types of nuclear weapons exist.27 The Court explained that such considerations are that of the state, not the ICJ.28 States such as the United States, Russia and the European Union asserted that the use of nuclear weapons in the conduct of Art 51 ‘self-defence’ could be lawful.29 The Court did not directly answer this question. Instead, the Court unanimously held that use of nuclear force contrary to both article 2(4) and article 51 would be unlawful.30 It was also consid- ered that the possession or a signalled intention to nuclear weapons are in itself unlawful threats to use force.31 The Court rejected both propositions.32 The Court unanimously concluded that such conduct constitutes an unlawful ‘threat’ only where contrary to Charter provisions.33
B Analysis of the Specific Rules of International Law
The Court examined international customary and treaty law as ‘specific rules of interna- tional law’.34 First, the Court noted that no principle or rule of international law makes the legality or illegality of the threat or use of weapons dependant on authorisation.35 Consequently, the Court found that illegality should be formulated in terms of prohibi- tion. That is, illegality is determined by custom or treaty specifically prohibiting the use of nuclear weapons. The Court found that no specific treaty prohibited nuclear weap- ons. The Court noted that despite ‘great many negotiations’36 and treaties exclusively limiting the ‘possession, deployment and manufacture’37 of nuclear weapons, that none specifically prohibits their threat or use.38 The Court concluded that this ‘foreshadowed’ a future general prohibition but did not constitute one.39 Here, the Court made a contrast
27 Ibid [44].
28 Ibid [43].
29 Ibid [46]; ‘Written Statement of the Government of the United States of America’, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 30, [9]; ‘Written Statement of the Govern- ment of the Russian Federation’, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 5; ‘Written Statement of the Government of the United Kingdom’, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 36.
30 Ibid [105]. Paragraph (2)A-B.
31 Ibid [47]-[48].
32 Ibid [49].
33 Ibid [105]. Paragraph (2)A-B. Emphasis added.
34 Ibid [51].
35 Ibid [52]. Referring to the reasoning in The Case of the S.S “Lotus” (France v. Turkey) (Judgement) [1927]
P.C.I.J Series A 10.
36 Ibid [58].
37 Ibid [58]. See paragraph for full list of treaties.
38 Ibid [62].
39 Ibid [57], [76].
to treaties specifically prohibiting bacteriological and chemical weapons.40 The Court then found that existing law falls short of establishing a customary rule specifically pro- hibiting the use of nuclear weapons.41 The Court examined post-War practice.42 States contended that non-use of nuclear weapons amounted to opinio juris.43 Alternatively, it was submitted this non-use was a ‘state’s right’ to practice deterrence.44 The Court observed that the international community is divided here. Consequently custom could not be established.45 Further, the Court examined annual General Assembly resolutions which request Member States to prohibit the use of nuclear weapons.46 The Court noted ‘a clear sign of deep concern’ and ‘the desire of a very large section of the international community to...prohibit the use of nuclear weapons’, but not the existence of a custom- ary rule.47 The Court held that continuing tensions between nascent opinio juris on the one hand, and the strong adherence to the practice of deterrence, on the other, prevent the existence of custom.48
C Analysis of the Law of Armed Conflict Proper
The Court identified the rules and principles of international humanitarian law (IHL) and the principle of neutrality as the law of armed conflict proper.49 First, the Court ex- amined IHL.50 The Court noted that the conduct of military operations are governed by legal prescriptions.51 Notably, the Court identified two cardinal principles of IHL; states are prohibited from using weapons which first, have indiscriminate effects, and second, cause unnecessary suffering.52 The Court made reference to weapons that have been prohibited through treaty and convention for contravening these principles.53
40 Ibid [73].
41 Ibid [66].
42 Ibid [64].
43 Ibid [65]. See: Written Statement of the Government of New Zealand, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 11-12, [45]-[50].
44 Ibid [66]. See: Written Statement of the Government of the United States of America, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 47.
45 Ibid [67], [73].
46 Ibid [73]. Emphasis added.
47 Ibid [71].
48 Ibid [73].
49 Ibid [34].
50 Ibid [74]-[75].
51 Ibid [77].
52 Ibid [78].
53 Ibid [77]. The Court referred to the Hague Convention IV (1907) and the Geneva Protocol (1925).
No states asserted that IHL principles should not apply to nuclear weapons, or be doubt- ed, as they were formulated before nuclear weapons existed.54 The Court clarified this notion. The Court noted these fundamental principles are observed by all states; that they are ‘intransgressible’ principles of international custom.55 Importantly, the Court clarified here that it is not determining the legal character of humanitarian law which would apply to the use of nuclear weapons. The General Assembly’s question merely raised the question of the applicability of that law in cases of recourse to nuclear weap- ons and the consequences of that applicability for the legality of recourse to such weap- ons.56 Further, the Court noted that IHL principles ‘permeate the entire law of armed conflict’.57 Consequently, they apply to nuclear weapon use despite being formulated before nuclear weapons existed.58 The Court then examined the principle of neutrality.59 The principle of neutrality prevents the incursion of belligerent forces into neutral ter- ritory.60 That is, a use of force must respect the sovereign rights of neutral powers. The principle of neutrality was identified as custom and the applicability of the principle to nuclear weapons was not disputed.61
The Court then considered two views. First, that nuclear weapons are subject to and regulated by the law of armed conflict does not ipso facto prohibit their use, and second, that nuclear weapons are prohibited by law as they could never be compatible with the principles and rules of armed conflict.62 The United Kingdom submitted that the applicable armed conflict principles must be assessed in light of the Charter provisions on use of force and not in isolation.63 That is, it must also be considered that a state’s use of nuclear weapons may meet the requirements of self-defence. Further, the United States advanced a scenario where nuclear warfare could comply with armed conflict
54 Ibid [86].
55 Ibid [78]-[79]. The Court made reference to the ‘Martens Clause’ included in The Hague Convention II with Respect to the Laws and Customs of War on Land.
56 Ibid [83].
57 Ibid [79].
58 Ibid [83].
59 Ibid [86].
60 Ibid [88]. The Court referenced: ‘Written Statement of the Government of Naruru, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 35.
61 Ibid [89].
62 Ibid [91]-[92]; ‘Written Statement of the Government of the United Kingdom, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 40, [3.44].
63 Ibid [91]; ‘Written Statement of the Government of the United Kingdom, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 74, [4.2 (3)].
principles.64 Alternatively, a majority of state’s asserted that use of nuclear weapons was inexorable with armed conflict principles, the fundamental principle of humanity,
64 Ibid [91]; ‘Written Statement of the Government of the United States of America, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 34, [89]-[90].
and could escalate into all-out nuclear warfare.65 The Court considered these and found it could not make a valid determination on whether use of nuclear weapons could es- calate into nuclear warfare, be illegal in any circumstance, or whether specific types of nuclear weapons would or would not contravene armed conflict principles.66 The Court recapped the strict requirements applicable in armed conflict and noted that nuclear weapons ‘seem scarcely reconcilable [with the requirements]’.67 However, the Court could not definitively conclude if the use of nuclear weapons would contravene those requirements in any circumstance, notably, in an extreme circumstance of self-defence, in which a state’s very survival would be at stake.68 Importantly, the Court emphasised the fundamental right of every state to survival, the right to self-defence, and the policy of deterrence.69
D Obligation to Disarm
The Court concluded its Advisory Opinion by stating that states have an obligation to achieve nuclear disarmament.70 The Court examined Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, and subsequent conventions reaffirming it.71 The Court held that the vast majority of the international community has a two-fold obligation; to pursue in good faith, and bring to a conclusion, negotiations leading to nuclear disarmament.72 The Court viewed this objective as of ‘vital importance to the whole of the international community today’.73
IV THE MAJORITY’S CONCLUSION
65 Ibid [92]. See: ‘Written Statement of the Government of the Japan, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 1, [3]. The majority of written statements included a state- ment to this effect on the unique characteristics of nuclear weapons.
66 Ibid [94]-[95].
67 Ibid [95].
68 Ibid [96].
69 Ibid.
70 Ibid [103].
71 Ibid [99]; Treaty on the Non-Proliferation of Nuclear Weapons art VI.
72 Ibid [100].
73 Ibid [103].
Following this analysis, a slim majority74 of the Court made two declarations in para- graph 2E. First, nuclear weapons are ‘generally’ contrary to the rules of international law applicable in armed conflict (first limb).75 Second, the legality or illegality of the use or threat of nuclear weapons in an extreme circumstance of self-defence was unable to be determined (second limb).76 These conclusions are understandably controversial. The crux of the majority’s declarations and separate opinions explain this conclusion by reference to first, the incomplete and exacting state of the law, second, the dichotomy created by fundamental international law principles, and third, restrictions on the ICJ’s advisory jurisdiction.77 Further, the composition of the ICJ and the notion of realpolitik also influenced this conclusion.
A State of the Law
The solution arrived at in this Advisory Opinion frankly states the legal reality, while faithfully expressing and reflecting the hope shared by all, peoples and States alike, that nuclear disarmament will always remain the ultimate goal of all action in the field of nuclear weapons.78
The basis of international law obligation rests upon the fundamental principles of sover- eignty and consent.79 Rules must be accepted by the state concerned, by treaty or other- wise, before any obligation can be imposed; restrictions upon the independence of states cannot be presumed.80 This was confirmed by the Permanent Court in the Lotus case81 where it was held that ‘international law leaves to states a wide measure of discretion which is only limited by prohibitive rules’.82
The Court reiterated the ‘principle of prohibition’ reasoning in Advisory Opinion.83 De-
74 The majority consisted of: President Bedjaoui (Algeria); Ranjeva (Madagascar), Herczegh (Hungary), Shi (China), Fleischhauer (Germany), Vereshchetin (Russia) and Ferrari Bravo (Italy) JJ.
75 Ibid [105]. Paragraph 2(E).
76 Ibid [105]. Paragraph 2(E).
77 P F Bekker, Commentaries on World Court Decisions (Martinus Nijhoff Publishers, 1st ed, 1998) 241; L Chazournes, International Law, the International Court of Justice and Nuclear Weapons (Cambridge Univer- sity Press, 1st ed, 1999).
78 ‘Declaration of President Bedjaoui’ Advisory Opinion [1996] ICJ Rep 226, [24].
79 M Shaw, International Law (Cambridge University Press, 6th ed, 2012) 23, 41, 63; The Case of the S.S “Lotus” (France v. Turkey) (Judgement) [1927] P.C.I.J Series A 10, 18.
80 Ibid 21, 31.
81 [1927] P.C.I.J Series A 10
82 Ibid 21, 23.
83 Advisory Opinion [1996] ICJ Rep 226, [53].
spite this, the majority found the law incomplete. The majority made a clear distinction between what was, and wasn’t clear in the current state of the law. It was clear that Charter provisions, and the rules and principles of international law applicable to armed conflict applied to the use or threat of nuclear weapons.84 It was clear that the sovereign right to self defence and the principles of international humanitarian law were exacting; that they applied in all circumstances.85 It was clear that the state of the law, both treaty and custom, did not expressly prohibit the use of nuclear weapons.86 However, it was also clear that the unique characteristics of nuclear weapons ‘challenge’ the very rules of humanitarian law, and are ‘scarcely reconcilable’.87 Importantly, due to the exacting nature of humanitarian law, the threat or use of arms that violate those principles are inherently illegal, despite the absence of an explicit prohibition in treaty law.88 What was not clear was whether a state’s fundamental right to survival, and thus its right to resort to self-defence in accordance with Article 51 of the Charter, made the use of nuclear weapons legal.89 Importantly, due to the exacting nature of the Charter, the fact that use of nuclear arms would generally violate the principles of necessity or proportionality did not deprive a state of that right in ‘extreme circumstances’, in which the very survival of a state is in question.90 Further, President Bedjaoui could not ignore that states have invoked a doctrine of deterrence and reserved the right to use those weapons in the ex- ercise of the right to self-defence against an armed attack.91
In dissent, Judge Shahabudden noted that if international law had nothing to say on the legality of the use of nuclear weapons, this necessarily means either that international law does not include a rule prohibiting such use and absent such a prohibitory rule, states have a right to use nuclear weapons; or, alternatively, that international law does not include a rule authorising such use and absent such authorisation, states do not have a right to use nuclear weapons.92 The questions was asked: why did the majority draw conclusion 2E from its findings as to the absence of a prohibiting or authorising rule?
84 ‘Declaration of President Bedjaoui’ Advisory Opinion [1996] ICJ Rep 226, [21]; ‘Declaration of Judge Herczegh’ Advisory Opinion [1996] ICJ Rep 226, 275-276; ‘Declaration of Judge Vereschcetin Advisory Opinion [1996] ICJ Rep 226, 280.
85 Ibid [19]. See also ‘Declaration of Judge Ferrari Bravo’ Advisory Opinion [1996] ICJ Rep 226, 61.
86 ‘Declaration of Judge Ferrari Bravo’ Advisory Opinion [1996] ICJ Rep 266, 284
87 Advisory Opinion [1996] ICJ Rep 226, [95].
88 Advisory Opinion [1996] ICJ Rep 226, [83].
89 ‘Separate Opinion of Judge Fleischhauer’ Advisory Opinion [1996] ICJ Rep 226, 305-307.
90 Ibid 309. See also: ‘Declaration of President Bedjaoui’ Advisory Opinion [1996] ICJ Rep 226, [19]
91 ‘Declaration of President Bedjaoui’ Advisory Opinion [1996] ICJ Rep 226, [22]. See also: ‘Declaration of Judge Ferrari Bravo Advisory Opinion [1996] ICJ Rep 226, 284.
92 ‘Dissenting opinion of Judge Shahabudden’ Advisory Opinion ICJ Rep 226, [1]-[2].
President Bedjaoui explained the Charter provisions on the use of force or the law the applicable in armed conflict in isolation.93 To follow this would have ignored the Court’s ‘imperative’ to consider the destructive capacity of nuclear weapons to cause untold human suffering to generations to come. Further, the President contended that explicitly authorising or prohibiting the use of nuclear weapons would not accurate- ly describe the state of the law in relation to the characteristics of nuclear weapons.94 Interestingly, in doing so the majority made a distinction from the ruling in the Lotus decision. Consequently, the majority reached the view that the current state of the law was at a crossroads. While ‘generally’ incompatible with humanitarian principles, the law neither explicitly authorised or prohibited the use or threat of nuclear weapons in an extreme circumstance of self defence. The conclusion stated the legal reality. This difficulty to conclude lay in the reconciliation of the 50-year old practice of deterrence through nuclear weapons, on the one hand, with the principles of international human- itarian law and the law relating to the threat or use of force and the inherent right of self-defence, on the other.95 Within the latter category, a further dichotomy exists. This will be discussed further.
B Dichotomy of Rights
The principles and rules of the humanitarian law and the other principles of law applica- ble in armed conflict, such as the principle of neutrality on the one side and the inherent right of self-defence on the other, which are through the very existence of the nuclear weapon in sharp opposition to each other, are all principles and rules of law. None of these principles and rules is above the law, they are of equal rank in law and they can be altered by law.96
In Advisory Opinion, President Bedjaoui explained that it would be ‘quite foolhardy unhesitatingly’ to set the survival of a state above the rules and principles of human- itarian law, or vice versa.97 Put simply, to conclude definitely would have meant that the law applicable in armed conflict, in particular humanitarian law, which are ‘overrid- ing considerations of humanity’, was given precedence over the fundamental right of
93 ‘Declaration of President Bedjaoui’ Advisory Opinion [1996] ICJ Rep 226, [2]-[5].
94 Ibid [13].
95 P F Bekker, Commentaries on World Court Decisions (Martinus Nijhoff Publishers, 1st ed, 1998) 240.
96 ‘Declaration of Judge Fleischhauer’ Advisory Opinion ICJ Rep 226, [5].
97 ‘Declaration of President Bedjaoui’ Advisory Opinion ICJ Rep 226, [22].
self-defence, which every state possesses as a matter of sovereign equality, as preserved in Article 51 of the Charter. The inherent contradiction of terms in doing so is clear.
Judge Fleischhauer pointed out that the conclusion reflects a terrible dilemma confront- ing international law; that while each rule or principle is justiciable, there is no rule in international law according to which one of the conflicting principles would prevail over the other.98 The Judge explained his majority conclusion with a scenario: ‘A basic right would be severely curtailed if for a state, victim of an attack with weapons constituting a deadly menace for its survival, nuclear weapons were totally ruled out as an ultimate legal option in self defence’.99 Further, the majority could not legalise nuclear weapons in a state of self-defence because their very nature conflicts with humanitarian princi- ples; it would be to choose one principle for another.100
In dissent, Judge Weeramantry strongly asserted that a dichotomy did not exist. The Judge found that a ‘convincing, clear and categorical’ ruling could have been made in favour of humanitarian principles.101 This opinion (and absence of opinion on the funda- mental right of state sovereignty) is represented in almost all the dissenting judgements and understandably, the majority of the international community.102 However, the major- ity reasoning suggests that such a finding could not be made; a finding that amounted to an explicit approval or denial of one principle would not have been a correct statement of the law.
In dissent, Vice-President Schwebel also criticised this reasoning and the Court for not making an opinion. Both similarly and in the alternative, the Vice-President asserted the supreme interests of the state were not adequately considered.103 The Vice-President argued that there is sufficient evidence to suggest that the use of nuclear weapons is legal in an extreme circumstance of self-defence.104 This argument, and that of Judge Weeramantry is circular. The majority did not, and could not decide on the hierarchy of fundamental principles. Underlining the incomplete state of the law and the dichotomy
98 ‘Declaration of Judge Fleischhauer’ Advisory Opinion ICJ Rep 226, [1].
99 Ibid [3].
100 Ibid [1]-[7]. See also: ‘Declaration of President Bedjaoui’ Advisory Opinion ICJ Rep 226, [21]-[22].
101 ‘Dissenting opinion of Judge Weeramantry’ Advisory Opinion ICJ Rep 226, [332].
102 ‘Dissenting opinion of Judge Shahabudden’ Advisory Opinion ICJ Rep 226, 376; ‘Dissenting opinion of Judge Koroma’ Advisory Opinion ICJ Rep 226, 335; L Chazournes, International Law, the International Court of Justice and Nuclear Weapons (Cambridge University Press, 1st ed, 1999), 13.
103 ‘Dissenting opinion of Vice President Schwebel’ Advisory Opinion ICJ Rep 226, 323.
104 Ibid 323-325
issue is the advisory capacity of the ICJ; the legislative and judicial restraints placed on the Court. This will be discussed further.
C Advisory Jurisdiction
It is not the role of the judge to take the place of the legislator...the international com- munity has made considerable progress towards the prohibition of nuclear weapons. But this process has not been completed, and the Court must limit itself to recording the state of the law without being able to substitute its assessment for the will of sovereign states.105
The ICJ, in both its contentious and advisory jurisdiction, provides a means by which the law is authoritatively stated; it determines international law applicable to a dispute or question.106 The majority reasons this was performed to its fullest extent. The ma- jority did not reach a definitive conclusion because it could not first, legislate for what the state’s have not done, and second, conclude on circumstantial law.107 Further, as aforementioned, the Court was also unable to determine a framework for assessing the hierarchy and interaction of fundamental rights.
First, the majority could not speak to assertions that the existing treaties and practices were evidence of customary law prohibiting nuclear weapons. The majority referred extensively to weapons banned by international humanitarian law standards explicitly in treaties and conventions.108 The majority then noted although specific and special restrictions on nuclear weapons had been established by way of international treaties, no prohibition exists. Judge Vereschcetin reasoned that these ‘undoubtedly point to the course of action chosen by the international community as most appropriate for the total prohibition on the use and eventual elimination of weapons of mass destructions’.109 Further, President Bedjaoui explained that the majority stated the law ‘as it is, seeking neither to denigrate nor embellish it’;110 they sought to avoid any temptation to create new law.
The Court was undeniably tempted. The Court heard countless accounts and submis-
105 ‘Separate opinion of Judge Guillaume’ Advisory Opinion ICJ Rep 226, [14].
106 Leo Gross, ‘Review of the Role of the International Court of Justice’ (1972) 66 The American Journal of International Law 479, 481-482.
107 Above n 102, 54; Above n 77, 1-3, 9-11.
108 ‘Declaration of Judge Shi’ Advisory Opinion ICJ Rep 226, 277.
109 ‘Declaration of Judge Vereschcetin’ Advisory Opinion ICJ Rep 226, 280.
110 ‘Declaration of President Bedjaoui’ Advisory Opinion ICJ Rep 226, [7].
sions from states, International Organizations and persons as to how or how-not nuclear warfare could satisfy the conditions of self-defence, or be at variance with the princi- ples of humanitarian law. Further, the Court heard compelling accounts in relation to environmental considerations and human rights.111 The majority reasoned that to hear and apply these ‘submissions’ to assessments of proportionality, further than a general consideration of the unique characteristics of nuclear weapons, was outside of the ICJ’s advisory jurisdiction.112 Understandably, this would hold states to circumstances that first, have not existed, and second, they have not consented to. Judge Ferraro Bravo held this ‘would fly in the face of the principles undermining international law’.113 Further, Judge Guilaume reasoned that the ICJ ‘cannot hold international law to these facts [that have not occurred], and hopes it never will.114
The majority consequently found that the applicable law at hand did not and could not answer the General Assembly’s question. Judge Vereshchetin aptly noted that ‘where the Court finds a lacuna in the law or finds the law to be imperfect, it ought merely to state this without trying to fill the lacuna or improve the law by way of judicial legisla- tion’.115 Understandably, this outcome is disappointing when contrasted to a municipal Court system. However, what is definitive is that there is no applicable law prohibiting or authorising the use of nuclear weapons, and no law solving the dichotomy of funda- mental legal principles. Consequently, as Judge Vereshchetin reasoned, the Court cannot be blamed for indecisiveness or evasiveness where international law, upon which it is called to pronounce, is itself inconclusive.116
D Other Considerations
The Advisory Opinion is a matter of high political salience. Understandably, the General Assembly’s question led the Court into territory riddled with legal and moral difficul- ties. As Vice-President Schwebel stated in the opening words of his dissenting opinion,
111 Advisory Opinion ICJ Rep 226, [27]-[33]. See also: ‘Written Statement of the Government of New Zea- land’, Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] ICJ Pleadings 1, [73], [101].
112 Above n 77, 241. See also: ‘Declaration of President Bedjaoui’ Advisory Opinion ICJ Rep 226, [14]; ‘Sep- arate Opinion of Judge Ranjeva’ Advisory Opinion ICJ Rep 226.
113 ‘Declaration of Judge Ferraro Bravo’ Advisory Opinion ICJ Rep 226, 285. 114 ‘Separate Opinion of Judge Ranjeva’ Advisory Opinion ICJ Rep 226, 304 115 ‘Declaration of Judge Vereshchetin’ Advisory Opinion ICJ Rep 226, 280. 116 Ibid 280.
‘more than any case in the history of the Court, this proceeding presents a titanic tension between state practice and legal principle.’117 The majority’s evident struggle with these concepts also underline some of their reasons for deciding in favour of conclusion 2E. Judge Ranjeva, despite disagreeing with the second limb of paragraph 2E, voted in the majority as he did not ‘want to send a positive message to nuclear states’.118 Likewise, Judge Ferrari Bravo voted in the majority ultimately because this answer may increase the likelihood of resolving a deadlock’.119 Further, Judge Ranjeva reasoned that this ‘indecision has more to do with diplomatic, technical or political expendicy than with juridical considerations’.120 Judge Vereschcetin also explained that - despite agreeing with the majority reasoning (aforementioned), that indecisiveness was the only choice; a green light to use nuclear weapons would have lead to terror and worry whereas a red light would be a substantial blow to the principles of international law.121 These argu- ments represent the majority’s - at sometimes blatant, desire to both rid the international community from nuclear weapons, and to international stability. It also represents that there can never be a complete separation between international law and policy. The ICJ, which must represent the main forms of civilisation and the principal legal systems of the world, was perhaps unsurprisingly, not excused from this.122
V BROADER IMPLICATIONS
The Advisory Opinion emphasises international law’s primary role in resolving disputes between states, and promoting peace and stability in the international community. Fur- ther, it marks the rise of modern developments in international law: international organ- isation and globalisation, and how that role is expanding. The Advisory Opinion also highlights the inherent weaknesses in the legal system; namely, the lack of an efficient system of enforcement and inability to legislate.
A Dispute Resolution
The Advisory Opinion demonstrates that international law plays a primary role in dis-
117 ‘Dissenting Opinion of Vice-President Schwebel’ Advisory Opinion ICJ Rep 226, [1]
118 ‘Separate Opinion of Judge Ranjeva’ Advisory Opinion ICJ Rep 226, 304. 119 ‘Declaration of Judge Ferrari Bravo’ Advisory Opinion ICJ Rep 226, 282. 120 ‘Separate Opinion of Judge Ranjeva’ Advisory Opinion ICJ Rep 226, 295.
121 ‘Declaration of Judge Vereshchetin’ Advisory Opinion ICJ Rep 226, [281]. Further, Judge Vereshchetin stated that not definitively concluding may prove useful as ‘a guide to action’. ‘Declaration of President Bed- jaoui Advisory Opinion ICJ Rep 226, [13].
122 Statute of the International Court of Justice art 9.
pute resolution. In the sphere of conflict prevention and dispute resolution, the rule of law operates to prevent, manage and resolve disputes.123 Importantly, the rule of law provides a vocabulary or a language spoken by all members of international community at The Hague. When states are involved in a disagreement, recourse to one set of laws that are adequately known, clear and accessible, and applied equally to all, is paramount.
Despite state’s having conflicting interpretations over the legality of nuclear weapons, there was a common frame of reference between all that assisted the process; each state was aware of how another could develop an argument. Consequently, this common lan- guage facilitated a factor of communication amongst dispute over nuclear legality. This is vital since misunderstandings occur so easily, particularly at the international stage, and often with tragic consequences.124
The Advisory Opinion arguably also demonstrates that international law role played a role in reducing tensions surrounding nuclear weaponry. The General Assembly’s ques- tion was one of high political salience; tensions had been burning since it’s employment during WW2. The ICJ’s advisory jurisdiction allowed interested parties to give unprej- udiced and non-directed statements, to a neutral party, on what they believe regarding the legality of a legal question. Although the outcome wasn’t entirely satisfactory, the process subsidised the tensions surrounding the issue. Joseph Rotblat, who’s research on nuclear fission was referenced extensively in the opinion, commented likewise:
In my opinion, every move is important. The worst enemy is to keep it off the agenda. To keep people from talking about it. To make people forget about the issue. To draw people to false conclusions and to drive unneeded tensions surrounding an already tense issue...Therefore, every action to put it on the agenda, whatever the outcome might be, is ultimately good because people will continue to talk about it, instead of fighting about it.125
Further, the role international law has in dispute resolution was reinforced by the Court’s
123 President Peter Tomka, ‘The Rule of Law and the Role of the International Court of Justice in World Affairs’ (Paper presented at the Inaugural Hilding Eek Memorial Lecture, the Stockholm Centre for Interna- tional Law and Justice, 2 December 2013) 2.
124 Above n 79, 1013.
125 J Rotblat and D Ikeda, A Quest for Global Peace: Rotblat and Ikeda on War, Ethics and the Nuclear Threat
(I.B.Tauris, 1st ed, 2006) 94.
emphasis on good-faith and hard-stance on negotiations. The Court noted the reference in article VI of the Treaty on the Non-Proliferation of Nuclear Weapons to ‘pursue nego- tiations in good faith..relating to nuclear disarmament’.126 The Court then declared that the legal import of that obligation goes beyond a ‘mere obligation’; this is an obligation to achieve a precise result by adopting the pursuit of negotiations on the matter in good faith’.127 The Court then unanimously concluded on this point in paragraph 2F, clearly demonstrating the importance international law plays in dispute resolution. However, the Court’s very emphasis on negotiation highlights a primary weakness in international law. The Court has been unable to enforce this ‘obligation to achieve a precise result’.128 The nature of the advisory opinion is not binding on parties and even if it was, an ef- ficient and effective means of security enforcement are not realistically available.129 Today, the proliferation of nuclear firepower has still not been brought under control; the United States itself has over 4800 nuclear weapons.130 Arguably, the Security Council of the UN is unlikely to alter this. Further, the Advisory Opinion demonstrated and clarified that every international situation is not capable of being determined as a matter of law. Consequently, the role of international law is resolving legal disputes is not endless.131 However, the opinion is clearly a ‘hard-case’ and represents an outlier of international laws capabilities.
B Peace and Stability
International law has always considered its fundamental purpose to be the maintenance of peace.132 The Advisory Opinion, although limited by not having binding precedent, is an instrument of preventive diplomacy with peace-keeping virtues. Advisory opin- ions contribute to the elucidation and development of international law.133 The Court’s jurisprudence is subsequently an essential element in developing a climate of respect for the peaceful legal order within the framework of which states should conduct their
126 Advisory Opinion ICJ Rep 226, [98].
127 Ibid [99], [105]. Paragraph 2(F).
128 Ibid [105]. Paragraph 2(F).
129 Above n 77, 23; G.G Fitzmaurice, ‘The Foundations of The Authority of International Law and The Prob- lem of Enforcement’ (1956) 19 The Modern Law Review 1, 3. Note: the article generally discusses the limits associated with international law enforcement.
130 PJ Garrity, SA Maaranen, Nuclear Weapons in the Changing World: Perspectives from Europe, Asia, and North America (Springer Science & Business Media, 1st ed, 2012) 18.
131 Above n 79, 99. Shaw stated that every situation is capable of being determined as a matter of law with enough time.
132 Above n 77, 3.
133 Above n 79, 1108-1110.
international relations.134 Here, the Advisory Opinion’s density and coverage of the law applicable to armed conflict symbolises a body of judge made law similar to common law countries. By disposing of substantive issues, the boundaries, limits and freedoms of states regarding nuclear weapons are adequately made known, clear and accessible.135 Despite the Court not concluding on paragraph 2E, a positive message was sent to the international community regarding the low tolerance the Court had for the use or threat of nuclear weapons. Consequently, advisory opinions and international law generally strengthen the peaceful relations between states.
C Broader Observations
The Advisory Opinion demonstrates that the role of international law has expanded to include a broader range of topics. The Court considered the legality or illegality of nuclear weapons in light of specialised problems of contemporary society; notably environmental considerations, the unique characteristics of weapons, and the protec- tion of human rights more generally.136 The role of international law has consequently broadened from dealing exclusively with issues relating to the territory or jurisdiction of states.137 Importantly, a record number of states, non-government organisations, and individuals around the world made statements to the ICJ regarding the legality or il- legality of nuclear weapons.138 This in itself demonstrates both the credibility being afforded to the role of international law, and that the role has extended to facilitating the achievement of common interests that cannot be achieved by individual action. Further, the Advisory Opinion demonstrated the reality and importance of international organi- sations in international law. Not only did international organisations, such as the WHO, present statements to the Court, they instigated the proceedings initially (General As- sembly).139 While states remain the primary subjects of international law, international organisations are becoming more important, and a principal player in world-affairs.140
134 Above n 77, ix-x (foreword).
135 Above n 123, 2.
136 Advisory Opinion ICJ Rep 226, [29]-[35].
137 Above n 79, 48.
138 Above n 2, 316.
139 Advisory Opinion ICJ Rep 226, [4].
140 M Finnemore and M Barnett, Rules for the World: International Organizations in Global Politics (Cornell University Press, 1st ed, 2004) 2-4; Especially see: ‘Declaration of President Bedjaoui’ Advisory Opinion ICJ Rep 226, [13].
Phillip Bobbit asserts that the Advisory Opinion challenges the ‘nation-state’ system and highlights the rise of globalisation.141 This assertion lies on the Courts emphasis ‘that at the heart of rules concerning humanitarian law lies the overriding consideration of humanity’. Further, the Court also noted that ‘respect for the environment goes to assessing whether an action is in conformity with the principles of necessity and pro- portionality’, and thus, in accordance with the right of self-defence.142 These statements challenge a state’s sovereign right to independence. This suggests that the future of international law has a broader role in regulating the law of armed conflict, independent of national regulation.
D Limits
The Advisory Opinion exemplifies the fact that, ‘no legal system can be better than the society is serves’.143 International law has no role in compulsion; it can recommend but it cannot compel states to change. Jurisdiction to its courts are ipso facto consent-driven, it’s advisory jurisdiction is non-binding.144 Further, it’s lack of legislative capabilities
- which partially lead to the lacuna finding in Advisory Opinion, demonstrate that inter- national ‘law’ is state driven and inherently limited by political will.145 Importantly, it’s subjects - the international community, think this should not change.146 The nature of international laws ‘limitations’ are exemplified only when contrasting the role of inter- national law, say through its Court system, to that of municipal law. The ICJ does not sit, as the High Court does for Australia, as the final arbiter of the international legal system. And it should not. The Advisory Opinion illustrates that international law’s lawmaking and law applying institutions are too diffuse and variegated to submit to hierarchical rules.147 The reality is that international law role in world affairs is symbiotic; without the law, nothing could happen, but the law alone is not going to produce it.148 That is,
141 Above n 79, 48 citing P Bobbit, The Shield of Achilles: War, Peace and the Course of History (Penguin Group, 1st ed, 2002).
142 Advisory Opinion ICJ Rep 226, [30].
143 Judge Sir Christopher Greenwood, ‘Can International Law Change the World?’ (Speech delivered at the Old Theatre, London School of Economics and Political Science, 18 February 2009) <https://www.youtube. com/watch?v=gH8yIqcG13c>.
144 Above n 77, 13; Statute of the International Court of Justice art 65-68.
145 Above n 143.
146 Ibid.
147 Above n 77, x (foreword).
148 Above n 143.
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