World Court Delivers Opinion On Legality of Nuclear Weapons Use

July 1996

By Burrus M. Carnahan

In a landmark case addressing the legality of nuclear weapons, the Inter­national Court of Justice (ICJ) on July 8 unanimously agreed that any use or threat to use nuclear weapons would have to comply with those provisions of the UN Charter which prohibit the use of force ex­cept in cases of self-defense, and with the rules of international law applicable to armed conflict. However, a majority of the 14 participating judges (11-3) agreed that in current international law there is no "com­prehensive and universal prohibition of the threat or use of nuclear weapons." 

The ICJ, known also as the World Court, was responding to a request from the UN General Assembly for a non-bind­ing advisory opinion on whether the threat or use of nuclear weapons was "consistent with international law." In October and November 1995, the court heard arguments from 22 UN member-states (See ACT, Feb­ruary 1996). The United States, Russia, France and the United Kingdom unsuc­cessfully urged the court not to answer the General Assembly's question at all.

The ICJ did, however, refuse to answer a similar question from the World Health Organization, on the grounds that the issue of the legality of nuclear weapons was out­side the scope of that body's legitimate activities. 

The court split evenly (7-7) on one part of its opinion that combined two questions. When such a split occurs, the president of the court is allowed to cast a second vote to break the tie. The current president, Mo­hammed Bedjaoui of Algeria, voted to make the decision part of the court's opin­ion. One part of the decision found that the threat or use of nuclear weapons would "generally be contrary" to the rules of in­ternational law, while the second part found that, "in view of the current state of international law," the court could not con­clude "definitively" that the threat or use of nuclear weapons would be "lawful or w1-lawful in an extreme circumstance of self ­defense, in which the very survival of a State would be at stake." 

As a result of the two questions being combined into one decision, an unusual  alliance of judges voted against the meas­ure: three judges from Guyana, Sri Lanka and Sierra Leone, who believed any use of nuclear weapons to be illegal, were joined by judges from the United States, the United Kingdom, France and Japan, who believed the court had gone too far by saying that use of nuclear weapons would "generally" violate international law. 

The judges also unanimously decided that "There exists an obligation [in interna­tional law] to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament...." In effect, the court declared that Article VI of the nuclear Non-Proliferation Treaty (NPT), from which this language was drawn, was now so widely accepted that it had become part of customary international law, binding even on non-NPT states like India, Israel and Pakistan. By offering new arguments in favor of nuclear disarmament, and ex­tending the reach of NPT Article VI, this may be the most influential part of the court's opinion in the long run. 

International Reaction 

All sides in the nuclear weapons de­bate will be able to find comfort somewhere in the opinion. State and Defense depart­ment officials have expressed confidence that the ICJ opinion would not require any changes in U.S. nuclear deterrence policy. They noted that the court did not rule against the use of nuclear weapons in repri­sal for another state's use of chemical or biological weapons, and they said the court's reference to "extreme circum­stances" of self-defense would include situ­ations in which a nuclear-weapon state defended the existence of a non-nuclear ally. 

On the other hand, peace and disarma­ment activists point to the conclusion by seven judges that the threat or use of nuclear weapons would "generally" violate international law, and that three more judges believe such use to be always illegal. John Burroughs, legal coordinator for the World Court Project (a consortium of non-governmental organizations that had urged the court to declare nuclear weapons use illegal) and Cora Weiss of Peace Action, both regard the decision as a "great victory" for their positions. 

Burrus M. Carnahan, who was a member of the U.S. delegation to the 1985 NPT review conference, is a senior defense analyst at Science Applications Inter­national Corporation (SAIC) in McLean, VA.