JS

10 - Nuclear Weapons

Title and Citation

  • Title: Legality of the Threat or Use of Nuclear Weapons

  • Citation: Advisory Opinion, I.C.J. Reports 1996, p. 226

  • Official Citation in French: Licéité de la menace ou de l'emploi d'armes nucléaires, avis consultatif, C.I.J. Recueil 1996, p. 226

Court Information

  • Court: International Court of Justice

  • Date: 8 July 1996

  • General List: No. 95

Jurisdiction of the Court

  • Legal Grounds:

    • Article 65, Paragraph 1: Court’s authority to give advisory opinions

    • Article 96, Paragraphs 1 and 2: Bodies authorized to request an opinion

    • General Assembly's Role: Must be relevant to the Court's activities

    • Political Implications: The motives behind the request and the potential implications of the opinion are considered.

    • Not to Legislate: Court must not create laws but provide legal interpretations.

Formulation of the Question

  • Main Question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?"

  • Burden of Proof:

    • Applicable laws include:

      • International Covenant on Civil and Political Rights

      • Convention on Genocide

      • Environmental laws relating to armed conflict

    • Unique characteristics of nuclear weapons must be considered.

Legal Framework

  • Provisions of the Charter:

    • Article 2, Paragraph 4: Prohibits the use of force against other states unless justified.

    • Article 51: Right of self-defense must comply with conditions of necessity and proportionality.

  • Regulatory Framework for Nuclear Weapons:

    • No explicit treaty prohibits the use or threat of nuclear weapons.

    • Customary law and existing treaties do not provide comprehensive prohibitions on nuclear weapons.

    • Instruments exist that limit their scope and development, rather than prohibiting them completely.

Humanitarian Law Considerations

  • International Humanitarian Law:

    • Prohibits methods of warfare that do not discriminate between civilian and military targets.

    • Martens Clause: Principles of humanity and public conscience govern the use of all weapons, including nuclear.

  • Applicability to Nuclear Weapons:

    • Courts cannot ignore existing humanitarian law principles due to nuclear weapons' characteristics.

Conclusion of the Court

  • Advisory Opinion Decisions:

    • A: No specific authorization for the use of nuclear weapons in international law.

    • B: No comprehensive prohibition of the use of nuclear weapons in customary or conventional international law.

    • C: Any unlawful use of nuclear weapons contradicts Article 2, paragraph 4 of the UN Charter.

    • D: Use must comply with international law applicable in armed conflict, including humanitarian law.

    • E: Court could not definitively conclude whether nuclear weapons' use could be lawful in self-defense situations.

    • F: States must negotiate in good faith towards complete nuclear disarmament, with strict international control.

Final Remarks

  • Date of the Opinion: 8 July 1996, signed at the Peace Palace, The Hague.

  • Document Structure: Joint decree with deliberations documented, separate opinions attached.

  • Participation: Multiple judges contributed through declarations, separate opinions, and dissenting opinions.

The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons

I. Introduction

  • On July 8, 1996, the International Court of Justice (ICJ) delivered advisory opinions regarding the legality of the threat or use of nuclear weapons at the request of the WHO and UNGA.

  • The opinions should be viewed in the context of international law and may influence law relating to force in conventional situations.

  • The request was initiated by anti-nuclear NGOs through the "World Court Project" aimed at declaring any threat or use of nuclear weapons unlawful.

II. Court's Responses to Requests

A. Advisory Opinion Requests
  • The WHO request was deemed outside its scope of activities; the UNGA request was accepted as it related to a legal question within its competence.

  • Forty-one states participated, providing written or oral statements.

III. Legal Findings of the ICJ

A. General Conclusions
  • International law does not specifically authorize or prohibit nuclear weapons' threat or use but must comply with rules concerning the use of force (UN Charter Articles 2(4) and 51).

  • Findings were adopted by a closely divided Supreme Court: (7-7), with President Bedjaoui casting the deciding vote.

B. Qualification of Findings
  • The ICJ specified that threats or uses of nuclear weapons would generally violate international laws applicable to armed conflict, primarily humanitarian law.

  • However, it concluded it could not definitively determine legality in extreme self-defense scenarios where a state's survival is at stake.

  • The opinion did not express a stance on nuclear deterrence or reprisals involving nuclear weapons.

IV. Advisory Opinion Mechanism

A. Scope and Competence
  • The ICJ's advisory opinion capability is guided by the UN Charter, permitting various organs to seek legal advice.

  • The WHO was found to lack the competence to address nuclear legality as it relates to public health impacts.

  • Rejection of the WHO's request was correct, avoiding the politicization of technical bodies by raising policy issues.

B. UNGA's Broader Competence
  • The UNGA has comprehensive authority over issues like arms control.

  • This situation was unique; advisory requests were largely hypothetical and aimed at achieving political objectives rather than resolving specific disputes.

  • The ICJ affirmed that it should grant advisory opinions unless there are compelling reasons not to.

V. Applicability of Peacetime Law to Nuclear Weapons

A. Human Rights and Environmental Law
  • Arguments arose claiming nuclear weapons violate fundamental human rights and environmental agreements, particularly the right to life and environmental protection.

  • The ICJ clarified that such peacetime laws must be viewed through the lens of applicable law during armed conflict, particularly humanitarian law.

B. Key Principles of Armed Conflict
  • Major rules govern military operations, including necessity, proportionality, and distinction between military and civilian targets.

  • While nuclear weapons typically might yield severe humanitarian consequences, their use must be assessed based on specific circumstances.

VI. Comprehensive Review of Arguments

A. Existence of a Prohibition on Nuclear Weapons
  • The Court confirmed no comprehensive legal prohibition on nuclear weapons exists in customary or conventional international law.

  • Customary law necessitates a consensus on prohibition, which is presently lacking, as indicated by the reliance on nuclear deterrence by many states.

B. UNGA Resolutions
  • The UNGA's non-binding resolutions cannot create international law but may provide evidence toward customary law. The Court recognized the opposing votes and abstentions on nuclear resolutions as indicators of a lack of unanimous agreement.

VII. Specific Use Cases of Nuclear Weapons

A. Resolution of Hypotheticals
  • The Court refrained from definitive conclusions on nuclear weapons' legal applications under self-defense, deterrence, or reprisals, indicating a reliance on observing circumstances surrounding each case.

  • The usage of nuclear weapons is assessed under humanitarian law, focusing on adherence to proportionality and necessity.

B. Prominent Executive Orders
  • The Court recognized that the legality of nuclear weapons hinges on the context in which they are threatened or utilized.

  • Militaries may justify nuclear weapon use under extreme situations of self-defense despite potential violations of humanitarian laws.

VIII. Conclusion

  • The Court's findings suggest little alteration needed in nuclear policies of the U.S. or NATO, primarily confirming an existing ambiguity in the legal status of nuclear weapons.

  • The necessity for a renewed commitment to nuclear disarmament negotiations and the implications of resolutions on the general use of force reaffirm the continuously evolving nature of international humanitarian law.

Overview of Nuclear Arms Control (2017)

  • Current state exhibits three significant trends:

    • No ongoing negotiations on arms control among any of the nine nuclear weapons states (NWS).

    • Initiation of the Preparatory Committee (PrepCom) process for the 2020 NPT Review Conference, marking the 50th anniversary of the NPT.

    • Adoption of the Nuclear Weapons Prohibition Treaty (NWPT) on July 7, 2017, with 122 states supporting it.

Nuclear Weapons Prohibition Treaty (NWPT)

Introduction

  • Significant multilateral arms control development in decades.

  • Originates from disillusionment with NPT norms and authority.

  • Aims to create a new normative framework for disarmament.

Key Features of NWPT

  • Prohibits:

    • Acquisition, development, production, manufacturing, transfer, receipt, testing, hosting, and use of nuclear weapons.

  • Opened for signature on September 20, 2017, requiring 50 ratifications to come into force.

Erosion of NPT's Normative Authority

Historical Background

  • NPT has served as the primary framework for global nuclear norms over half a century, impacting nonproliferation and disarmament agendas.

  • Structural deficiencies in NPT led to disillusionment and a global retreat from nuclear power.

Anomalies and Shortcomings of the NPT:

  1. Legal Obligation Limitations:

    • NPT legally binds only signatories; extra-NPT states (India, Israel, Pakistan) are unaccountable under this treaty.

  2. Withdrawal Clause Issues:

    • North Korea’s withdrawal in 2003 remains a legal ambiguity since it weaponized its nuclear capabilities post-exit.

  3. Weak Article VI Obligations:

    • Lack of legally binding commitments for disarmament among NWS undermines the disarmament agenda.

The Reality of Stalled Disarmament Efforts

Breakdown of Disarmament Negotiations

  • Previous efforts like the CTBT and FMCT have stalled, discouraging states regarding the NPT's effectiveness.

  • Disappointment in disarmament progress post-2010 has formed a milieu of pessimism about global nuclear security.

Geopolitical Context

  • Heightened nuclear anxieties due to geopolitical tensions in various regions (Eastern Europe, South Asia).

  • Perceived inadequacies in protecting against escalation risks amid rising nuclear armament.

NWPT's Ideological Shift

Shift in Normative Framework

  • NWPT represents a movement away from power politics to humanitarian imperatives, advocating the abolition of nuclear arms based on moral grounds.

  • Majorities in state communities advocating a complete and irreversible elimination of nuclear weapons.

Humanitarian Principles as Foundational to NWPT

  • Emphasis on the catastrophic consequences of nuclear arms usage aligns with the principles expressed by the International Court of Justice regarding nuclear weapons.

Impacts of the NWPT

Normative Influence on Nuclear Policy

  • The NWPT is expected to affect the global normative structure around nuclear weapons, challenging the legitimacy of NWS to possess nuclear arms.

  • Main goal is to stigmatize nuclear weapons, delegitimizing their use in international relations.

Long-term Viability and Challenges

  • The effectiveness of the NWPT hinges on its adoption by key states, which currently are non-signatories.

  • Criticism that the treaty lacks operational resolution mechanisms to eliminate existing stocks and realities of power dynamics remains.

Conclusion

  • The NWPT attempts to redefine the global conversation around nuclear disarmament, aiming to reduce the perceived legitimacy of possessing such weapons.

  • Future dialogues, especially before subsequent NPT Review Conferences, will focus on integrating strategies from both NPT and NWPT frameworks to strengthen global nuclear nonproliferation and disarmament efforts.

United Nations Conference on Nuclear Weapons

  • Purpose: Negotiate a legally binding instrument to prohibit nuclear weapons and work towards their total elimination.

  • Dates: New York, 27-31 March and 15 June-7 July 2017.

  • Agenda Item: Negotiations as per General Assembly Resolution 71/258.

Treaty on the Prohibition of Nuclear Weapons

  • Aim: Contribute to the UN Charter's principles and achieve nuclear disarmament.

  • Concerns:

    • Humanitarian consequences of nuclear weapon use.

    • Risks from existing nuclear arsenals (accidents, miscalculations, etc.).

    • Transnational implications for human survival, environment, economy, and health.

    • Impact on vulnerable populations, especially women and girls.

Objectives and Commitments

  • Urgency: Address catastrophic consequences and ethical imperatives for disarmament.

  • Victims of Nuclear Weapons: Acknowledge suffering of hibakusha (survivors) and others affected by nuclear tests.

  • Compliance with International Law: States must adhere to humanitarian and human rights laws to ensure protection.

Key Principles of International Humanitarian Law

  • Limitations of warfare methods/means:

    • Principle of distinction.

    • Prohibition against indiscriminate attacks.

    • Precautions in attacks (proportionality).

    • Prohibition of weapons causing unnecessary suffering.

    • Environmental protection rules.

Nuclear Disarmament Challenges

  • Nuclear Disarmament Pace: Concern over slow progress and military reliance on nuclear weapons.

  • Legal Prohibition: Establishing a legally binding prohibition on nuclear weapons is crucial for a nuclear-free world.

  • Non-Proliferation Treaty: Reaffirm importance and role in international peace and security.

Articles of the Treaty

Article 1: Prohibitions

  • States must not:

    • Develop, test, or acquire nuclear weapons.

    • Transfer control over nuclear weapons.

    • Use or threaten to use nuclear weapons.

    • Assist any activity prohibited by the Treaty.

Article 2: Declarations

  • States must declare ownership or control of nuclear weapons within 30 days of Treaty enforcement.

  • Secretary-General to transmit all declarations.

Article 3: Safeguards

  • States to maintain their international atomic energy safeguards.

  • Comprehensive safeguards agreements to be established.

Article 4: Total Elimination of Nuclear Weapons

  • States to cooperate with international authorities for verifying elimination of nuclear programs.

  • Obligations for safe and gradual destruction of nuclear arsenals outlined.

Article 5: National Implementation

  • Obligation to adopt measures ensuring compliance with Treaty obligations.

Article 6: Victim Assistance and Environmental Remediation

  • States must provide aid to individuals affected by nuclear activities.

  • Environmental remediation measures required for contaminated areas.

Article 7: International Cooperation and Assistance

  • States are encouraged to share resources and support for Treaty implementation.

Article 8: Meetings of States Parties

  • Regular meetings to assess Treaty status and decisions regarding disarmament efforts.

Article 9: Costs

  • Responsibilities for cost covering of meetings and implementation measures.

Article 10: Amendments

  • Procedure for proposing amendments detailed.

Article 11: Settlement of Disputes

  • Mechanisms for dispute resolution outlined.

Article 12: Universality

  • Encouragement for non-signatory states to adopt the Treaty.

Article 13: Signature

  • Treaty open for signature from 20 September 2017.

Article 14: Ratification

  • Guidelines for ratification and accession.

Article 15: Entry into Force

  • Conditions for the Treaty to become active.

Article 16: Reservations

  • No reservations allowed on articles of the Treaty.

Article 17: Duration and Withdrawal

  • Unlimited duration with rights for States to withdraw under certain conditions.

Article 18: Relationship with Other Agreements

  • Clarification on how the Treaty interacts with existing international agreements.

Article 19: Depositary

  • UN Secretary-General designated as the Depositary of the Treaty.

Article 20: Authentic Texts

  • Multilingual authenticity of the Treaty confirmed.