Trident Ploughshares was asked by the Scottish Government to prepare a summary of the UK’s position on the legality of Trident. We have done this as fairly as possible by taking quotes direct from the Written Statement to the International Court of Justice 16 June 1995. We have put a few very brief observations at the end explaining why we think the UK Government’s position is fatally flawed and mendacious. We have also included as a separate bundle, documents which cover in more depth the arguments against the UK’s position including the book ’Trident and International Law – Scotland’s Obligations’, the submissions by Angie Zelter at the LAR No.1 of 2000, and Charles Moxley’s refutation entitled ’The Unlawfulness of the United Kingdom’s Policy of Nuclear Deterrence: The Invalidity of the Scottish High Court’s Decision’.
This summary attempts to pick out the salient points of the UK position on the legality of nuclear weapons. The Written Statement to the ICJ in the Nuclear Weapons Case is the fullest account we have of this. A huge number of letters from Government departments since then contains nothing essentially new. Nick Harvey, Minister of State at the Ministry of Defence to George Farebrother, by way of Charles Hendry MP, 28 September 2010: ‘I am wholly satisfied with the legality of our position on the circumstances in which the Government might consider the use of the UK’s nuclear weapons. … Legality would have to be determined in the light of the specific circumstances applying when such use was being contemplated, and would depend on the application of the general rules of international law, including those regulating the use of force and the conduct of hostilities (i.e. principles of international humanitarian law). This was stated in the 1995 submissions to the lCJ, the 2006 White Paper and the UK’s Manual of the Law of Armed Conflict. The Government’s view of its international obligations remains as set out in the 1995 submissions.’ The main headings and sub-headings (in bold or underlined) of this summary comprise what seem to be the general underlying UK assumptions. The numbered extracts below are from the Statement and do not follow their original order. Some can be categorised under more than one heading and so there is some repetition. To avoid complication, footnote numbers are not included. Readers can cross check with the Statement on http://www.icj-cij.org/docket/files/95/8802.pdf ………………………………
1. THE UK PRESUPPOSES SOME GENERAL LEGAL PRINCIPLES. A. IN INTERNATIONAL LAW ANYTHING WHICH IS NOT SPECIFICALLY FORBIDDEN IS PERMITTED. 3.3 It is… axiomatic that in the absence of a prohibitive rule … the conduct of the State in question must be permissible. In contrast the question [before the Court] as formulated is implicitly cast in terms of a presumption of illegality, rebuttable on proof that the conduct in question is permitted. The principle … flows in some measure from the often quoted statement of the Permanent Court in the Lotus case that international law leaves to States ’a wide measure of discretion which is only limited in certain cases by prohibitive rules’.
3.4 … the correct interpretation of the question would therefore be whether the threat or use of nuclear weapons is in any circumstance prohibited by any rule of international law. In the absence of proof that this is so it would follow that the conduct in question is lawful. 3.88 … it is a fundamental principle of the law of treaties that a prohibitive rule, purporting to exclude a particular activity from the scope of permissible State practice, must be clearly stated. 3.89 As a basic proposition, one cannot, therefore, infer from general words, or a treaty of general application, a prohibitive rule of specific content that would have the effect of limiting the scope of otherwise permissible State conduct. 4.1 … the question put to the Court is in vague and abstract terms, whereas an answer would require detailed examination of the circumstances of any possible use of nuclear weapons or the threat thereof and the necessary material regarding such circumstances could not be brought before the Court. B. THE LAWS OF WAR APPLY ONLY IN TIME OF WAR 3.108 … the law of human rights is concerned primarily with the protection of human rights in peacetime, whereas the law of armed conflict is a lex specialis designed to regulate the conduct of hostilities. It is entirely appropriate that the human rights agreements should, in effect, refer to the law of armed conflict in order to determine whether or not any particular instance of the deprivation of life in wartime is arbitrary. C. STATE PRACTICE AND ITS INTERNATIONAL ACCEPTANCE, OR AT LEAST FAILURE OF STATES TO OBJECT, ARE A PRINCIPLE SOURCE OF LAW. 4.2 State practice regarding the possession of nuclear weapons necessarily implies that the use of nuclear weapons would be lawful in proper circumstances. 3.38 Whatever the theoretical criticisms voiced of the idea of deterrence, the fact is, first, that it has worked and, second, that for many years a number of States have based their self-defence upon that idea, in the belief that the possession of nuclear weapons, and the threat to use them in self-defence is legitimate. There must be a coherent body of State practice. That practice must be of sufficient generality to show widespread support among States. 3.24 For the Court to find … that a rule of customary international law embodying such a prohibition [on the threat or use of nuclear weapons] exists, it would need to be provided with clear evidence that that rule enjoys the support of the generality of States. The existence of the nuclear-weapon States already weakens the argument that there is a sufficient ’generality’ in support of a prohibitive rule. To this number must be added the number of States failing to make any challenge to the declarations and assurances. 3.30 … the significance of the General Assembly resolutions [on nuclear weapons] has to be seen in the light of State practice as a whole, including … the failure to adopt a convention [on nuclear weapons] of the kind called for in the resolutions themselves, the decision not to discuss nuclear weapons at the Diplomatic Conference on the Development of Humanitarian Law and the statements and security assurances made by the nuclear powers in the context of the Non-Proliferation Treaty and the Treaty of Tlatelolco all … indicate that there is no consistent State practice from which a customary law prohibition of nuclear weapons might have developed. 3.113 It is, of course, axiomatic that the material of customary international law is to be looked for primarily in the actual practice and opinio juris of States, even though multilateral conventions may have an important role to play in recording and defining rules deriving from custom, or indeed in developing them.
3.116 The fact that there is no evidence of ’widespread and representative’ support for the existence of a rule of custom prohibiting per se the threat or use of nuclear weapons, as well as the absence of opinio juris on the part of States concerning the existence of such a rule has effectively precluded the emergence of a rule of customary international law to this effect. 3.114 Resolutions of the General Assembly and other bodies may be relied upon as evidence of customary international law only if they command widespread and representative support, State practice regarding nuclear weapons and their doctrine over decades has not been contested by other states in international agreements. This is recognised in: The official records of negotiations in treaties (travaux preparatoires) 3.35 The elaboration of this provision [The inherent right of individual or collective self-defence in the UN Charter] at San Francisco in 1945 did not … turn on a discussion of different types of weapons and certainly there is nothing in the travaux preparatoires to suggest that any particular type of weapon was, per se incapable of use in self-defence. It follows … that discussion of the legality of the use or threat of use of nuclear weapons in the exercise of the right of self-defence must centre on whether such use of nuclear weapons would meet the traditional criteria for lawful self-defence. Statements of understanding that various treaties were not to apply to nuclear weapons The Nuclear Weapon States have made Reservations regarding the Protocols Additional to the Geneva Conventions. 3.11 …a number of States made declarations, on signature or ratification, [of the Additional Protocols to the Geneva Conventions] to the effect that the new rules contained in Protocol I did not apply to nuclear weapons. 3.46 It therefore continued to be the [UK] government’s understanding that the new rules were not intended to have any effect on and did not regulate or prohibit the use of nuclear or other non-conventional weapons 3.77 Articles 35(3) and 55 of Additional Protocol I are broader in scope than the Environmental Modification Convention, in that they are applicable to the incidental effects on the environment of the use of weapons. They were, however, innovative provisions when included in Additional Protocol I. Manuals of military law 3.53 The treatment of this question in the military manuals of a number of States confirms that the new rules in Additional Protocol I do not apply to the use of nuclear weapons. Thus, the Manual published by the Federal Republic of Germany states that: ’The new rules introduced by Additional Protocol I have been established with the intention of being applied to conventional weapons irrespective of other rules of international law applicable to other types of weapons. They do not influence, regulate or prohibit the use of nuclear weapons.’ The NPT and related issues do not proscribe current NWS practice or doctrine. 3.23 The entire structure of the Non-Proliferation Treaty … presupposes that the parties did not regard the use of nuclear weapons as being proscribed in all circumstances. 2.22 None of the decisions, statements and resolutions – [the NPT itself, the 1995 Review and Extension Conference … on the Non-Proliferation of Nuclear Weapons, the Decision on Principles and Objectives for Nuclear Non-Proliferation and Disarmament, the strengthening the Review Process for the Treaty, the work of the Conference on Disarmament], … refer to, or address the need for, an opinion on the legality or otherwise of the use or threat of use of nuclear weapons. Intensive negotiations were required by the States concerned to conclude those texts. In the course of those negotiations, and of the proceedings at the Conference, the issue of whether or not the use or threat of use of nuclear weapons would or would not be lawful was not a factor. D. LEGITIMATE SELF-DEFENCE IS OF OVERRIDING IMPORTANCE 4.2 … the threat or use of nuclear weapons will not be contrary to the Charter of the United Nations if it meets the criteria for the exercise of the right of self-defence. 3.34 The terms of Article 51 [of the UN Charter] are well known: ’Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs…’ 3.33 Although for Member States of the United Nations Article 51 of the Charter recognizes their right to self-defence, Article 51 is not the source of that right. Indeed, the use of the word ’inherent’ in Article 51 was intended to mark the pre-existence of this right, based on customary international law. 3.42 The notion that the use of nuclear weapons in response to an armed attack should not be regarded as necessarily unlawful but is capable of falling within the scope of the right of self-defence finds confirmation in Security Council Resolution 984 (1995). ’The Security Council: Considering further that in accordance with the relevant provisions of the Charter of the United Nations, any aggression with the use of nuclear weapons would endanger international peace and security….’ The Council did not, therefore, characterise every use of nuclear weapons as incompatible with the Charter but only acts of aggression with the use of such weapons. Indeed, the resolution clearly envisages that such aggression might give rise to a lawful use of nuclear weapons against the aggressor. 3.43 It follows, therefore, that not only have States not accepted the view that nuclear weapons are per se incompatible with self-defence but, equally, that no absolute, all-embracing postulate, either directed to their legality or illegality, can be made. 3.98 … the issue before the Court in respect of the law of human rights and the law on protection of the environment is not whether the use or threat of use of nuclear weapons is in the abstract compatible with those laws. Rather, it is whether any of the rules of the law of human rights or the law on environmental protection can be construed in accordance with the general principles [relating to treaties] … as prohibiting the use or threat of nuclear weapons when carried out by way of legitimate self-defence. 3.112 … a prohibitive rule must be clearly stated, that the interpretation and performance of treaties are subject to the obligation of good faith and that treaties must be construed against the background of the inherent right of individual and collective self-defence. The UK would only use nuclear weapons in extreme circumstances of self-defence when its very survival would be at stake. 3.37 The notion has long been accepted that States should only use force in self-defence as a matter of last resort. This is inherent in the concept of self-defence. The burden of showing necessity would exist whether the weapons used are nuclear or conventional. E. THE UK ARGUMENTS ARE AIMED AT REFUTING THE SUPPOSED CLAIM THAT ANY POSSIBLE USE OF NUCLEAR WEAPONS WOULD ALWAYS BE ILLEGAL 3.67 A further argument … is that the use of any nuclear weapon would necessarily have such terrible effects upon civilians that it would violate those rules of the law of armed conflict which exist for their protection. 3.70 … it is often assumed both that any use of nuclear weapons would cause extensive civilian losses and that such losses would necessarily be excessive in relation to any military advantage … 3.72 … it has, sometimes been said that the use of nuclear weapons would be unlawful because it would make it impossible for a State to discharge its obligations towards persons and objects protected under the Geneva Conventions, 1949, such as the sick, wounded and prisoners of war or hospitals, as such persons and objects would inevitably be amongst the casualties of any nuclear exchange. 3.78 It has been suggested that the use of nuclear weapons would inevitably have … catastrophic effects on the territory of neutral States. 3.82 So far as the second condition for the conduct of lawful reprisals is concerned, it has been argued that the use of nuclear weapons could never satisfy the requirements of proportionality and preventiveness. F. THERE IS A CONSENSUS THAT NUCLEAR DISARMAMENT MUST PROCEED BY NEGOTIATION 3.21The treaties reviewed here, together with the absence of a general treaty prohibition on the use of nuclear weapons, show that the international community has addressed the question of nuclear weapons through the medium of practical measures of disarmament and non-proliferation by agreement, rather than through an attempt to outlaw nuclear weapons or their use. Deterrence has kept the peace 3.38 For the past forty or so years States have relied upon their possession of nuclear weapons, or on alliance with nuclear-weapon States, and even their targeting of another nuclear-weapon State, as a necessary means of deterring an attack by the latter. … the fact is, first, that it [deterrence] has worked and, second, that for many years a number of States have based their self-defence upon that idea, in the belief that the possession of nuclear weapons, and the threat to use them in self-defence is legitimate. 3.120 The deterrent effect of nuclear weapons has played an essential part in maintaining the self-defence of a number of States without recourse to force proving necessary. In that respect, it cannot be regarded as contrary to the policy underlying Article 2(4) and Article 51 of the Charter. Any declaration of illegality of use would jeopardise future disarmament negotiations 4.1 the request for an opinion should be considered in the context of the effects which such an opinion might have upon the United Nations as a whole and, in particular, upon the disarmament process where an opinion on the legality of nuclear weapons would be unlikely to have any beneficial effects and would be likely to be detrimental to further progress at a time when the prospects for such progress are otherwise promising;
G. NUCLEAR WEAPONS ARE TO BE TREATED AS A SUB-CLASS OF WEAPONS IN GENERAL. 3.2 They [nuclear weapons] are one form, an extreme form, of ’force’ and as such their use is subject to the same prohibitions – and the same exceptions – as the use of ’force’ is in general under the U.N. Charter. 3.32 In the absence of a rule of international law specifically prohibiting the use of nuclear weapons, the legality of their use has to be assessed by reference to the principles of law which are applicable to any use of armed force. 3.35 The elaboration of this provision [The inherent right of individual or collective self-defence in Article 51 of the UN Charter] at San Francisco in 1945 did not in fact turn on a discussion of different types of weapons and certainly there is nothing in the travaux preparatoires to suggest that any particular type of weapon was, per se incapable of use in self-defence. 3.36 These conditions [The Conditions of Lawful Self-defence] are, in particular, that it is necessary to act in self-defence and that the steps taken by way of self-defence are proportionate. These principles are equally applicable to the use of nuclear weapons in self-defence as to the use of any other type of weapon in self-defence. Moreover, it would be entirely arbitrary to exclude ex hypothesi the right of a State to rely on nuclear weapons as a means of defence against a conventional attack. 2. CONCLUSIONS INFERRED BY THE UK A. THE ILLEGALITY OF NUCLEAR WEAPONS CANNOT BE DERIVED FROM EXISTING TREATIES 3.22 Nor do … treaties support the inference that the use of nuclear weapons is regarded as unlawful under existing international law. The effectiveness of treaties would be undermined by inferring conclusions not intended by the parties. 3.112 … a prohibitive rule must be clearly stated, [namely] that the interpretation and performance of treaties are subject to the obligation of good faith and that treaties must be construed against the background of the inherent right of individual and collective self-defence. 3.89 As a basic proposition, one cannot, therefore, infer from general words, or a treaty of general application, a prohibitive rule of specific content that would have the effect of limiting the scope of otherwise permissible State conduct. 3.54 The ICRC Commentary [on the Additional Protocols to the Geneva conventions]. ’Clearly the hypothesis that States acceding to the Protocol bind themselves without wishing to – or even without knowing – with regard to such an. important question as the use of nuclear weapons is not acceptable. The desire not to broach it during the [Diplomatic Conference] is a determining factor in this respect.’ 3.112 If the Convention for the Protection of the World Cultural and Natural Heritage may be construed. In the absence of an express clause to this effect, as prohibiting the threat or use of nuclear weapons so could the European Convention for the Protection of Pet Animals 1987 … which provides that ’nobody shall cause a pet animal unnecessary suffering or distress.’ 3.90 … both the performance and interpretation of treaties are subject to the overriding obligation of good faith. [According to Lord McNair: The Law of Treaties (1961)] ’ … it would be a breach of this obligation for a party to make use of an ambiguity in order to put forward an interpretation which it was known to the negotiators of the treaty not to be the intention of the parties.’ 3.92 Considering this obligation in the light of the principle of effectiveness, Sir Hersch Lauterpacht noted that: ’… good faith requires no more than that effect be given, in a fair and reasonable manner to the intention of the parties. … The principle of effectiveness cannot transform a mere declaration of lofty purpose – such as the Universal Declaration of Human Rights – into a source of legal rights and obligations. … [it is not open] to a judicial tribunal to endow with binding character an expression, however politically or morally weighty.’ Current Treaties cannot be turned into emerging law relating to nuclear weapons.
3.8 No treaty has been adopted specifically prohibiting the use of nuclear weapons. 3.9 … the international community has consistently declined to address the question of the lawfulness or unlawfulness of nuclear weapons per se. 3.10 The Diplomatic Conference on the Development of Humanitarian Law. 1974 to 1977, which adopted the two Additional Protocols to the Geneva Conventions of 1949 and which had broader terms of reference than the 1949 Conference, also did not discuss the legality of nuclear weapons…. Treaties relating to nuclear weapons have not dealt with their legal status 3.13 Those treaties which have dealt expressly with the subject of nuclear weapons have not addressed the question whether such weapons are unlawful per se but have concentrated, for the most part, upon issues regarding possession deployment and testing. 3.17The Partial Test Ban Treaty, for example, while prohibiting the parties from conducting atmospheric nuclear tests, does not purport to restrict their use of nuclear weapons in the course of hostilities. Similarly, the Sea Bed Treaty prohibits the emplacement of nuclear weapons on the sea bed but does not restrict the use of nuclear weapons fired from other locations.
Treaties relating to nuclear weapons presuppose legality of threat of use. 3.5 Those treaties which have been adopted regarding nuclear weapons presuppose that there are circumstances in which such weapons might lawfully be used. 3.18 All five permanent members of the Security Council made a declaration on becoming party [to the Treaty of Tlatelolco] in which it indicated the circumstances in which it would regard itself as free to take military action involving the use of nuclear weapons. Thus, the United Kingdom declared that: ’…the Government of the United Kingdom would, in the event of any act of aggression by a Contracting Party to the Treaty in which that Party was supported by a nuclear-weapon State, be free to reconsider the extent to which they could be regarded as committed by the provisions of Additional Protocol.’ 3.22 The commitment made by the nuclear-weapon States in Protocol II to the Treaty of Tlatelolco would be entirely unnecessary if the use of nuclear weapons was in all circumstances prohibited by general international law. Moreover, the declarations made by the nuclear-weapon States at the time of signing or ratifying the Protocol, which were not challenged by the parties to the Treaty of Tlatelolco, indicate that those States consider that there are circumstances in which resort to nuclear weapons would be lawful. 3.23 The entire structure of the Non-Proliferation Treaty … presupposes that the parties did not regard the use of nuclear weapons as being proscribed in all circumstances. Moreover, the security assurances given by the nuclear-weapon States can only be regarded as possessing any significance on the assumption that there are conditions in which nuclear weapons could and might lawfully be used. Documents which urge banning nuclear weapons presuppose their current legality 3.25 The only documents which claim to treat nuclear weapons as unlawful per se are certain resolutions of the United Nations. 3.26 A series of … resolutions declared that the use of nuclear weapons would be unlawful and called upon States to adopt a convention prohibiting their use and the threat of their use. 3.27 Resolution 1653 (XVI) [Declaration on the Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons] was adopted by 55 votes to 20, with 26 abstentions. Of the nuclear powers, France, the United Kingdom and the United States voted against the resolution, while the Soviet Union voted in favour. It is evident, therefore, that as an authoritative United Nations Report stated, this resolution demonstrated not a consensus but rather the sharp conflict of views on this issue. 3.29 … in Resolution 2936 [Non-Use of Force in International Relations and Permanent Prohibition of the Use of Nuclear Weapons] the prohibition of nuclear weapons was expressly linked to the renunciation of the use of force ’in accordance with the Charter of the United Nations’. The resolution thus leaves open the possibility of the lawful use of nuclear weapons, since the renunciation of the use of force was evidently not intended to preclude the exercise of that right. 3.31The Assembly … has expressed its support for the principle of ’an acceptable balance of mutual responsibilities and obligations between nuclear-weapon States and those which do not possess nuclear weapons’, and for the notion of embodying the security assurances given by the nuclear-weapon States in connection with the Non-Proliferation Treaty in an international agreement … such an approach cannot be reconciled with the view that international law already prohibits all use of nuclear weapons. 3.27 These resolutions are not, of course, legally binding instruments. 3.114 Resolutions of the General Assembly and other bodies may be relied upon as evidence of customary international law only if they command widespread and representative support, Treaties on non-nuclear weapons cannot be extended to cover nuclear weapons legality or illegality. 3.59 The use of nuclear weapons has been said to violate the long established prohibition on the use of poison and poisoned weapons because the effects of radiation are described as a form of poisoning. In addition, some commentators have invoked the provisions of the Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases and of Bacteriological Methods of Warfare. 3.60 The prohibitions in both Article (23a) of the Hague Regulations and the 1925 Protocol were, however, intended to apply to weapons whose primary effect was poisonous and not to those where poison was a secondary or incidental effect. … In the case of almost all nuclear weapons, the primary effects are blast and heat and it is these which give the weapon its main military advantages. Treaties on non-weapons issues such as the environment and human rights must not be applied to purposes they were not intended for. 3.98 … the issue before the Court in respect of the law of human rights and the law on protection of the environment is not whether the use or threat of use of nuclear weapons is in the abstract compatible with those laws. Rather, it is whether any of [these] rules … can be construed in accordance with the general principles [relating to treaties] … as prohibiting the use or threat of use of nuclear weapons when carried out by way of legitimate self-defence. Human Rights 3.99 In the written statements submitted to the Court in the WHO [World Heath Organisation] case, it was argued by two States that the use of nuclear weapons would be contrary to the law of human rights and, in particular to the right to life. Thus, Article 6(1) of the International Covenant on Civil and Political Rights, 1966, provides that: ’Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.’ The right to life is also expressly guaranteed by Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 4 of the American Convention on Human Rights and Article 4 of the African Charter on Human and People’s Rights. 3.100 Although the right to life is the most fundamental of all human rights it is not unqualified, other-wise its application in time of armed conflict would invariably render the use of any weapon unlawful. 3.100 Deaths caused by the use of nuclear (or conventional) weapons would violate the right to life only if the particular use of the weapons was contrary to the laws of armed conflict. Article 15(2) [of the European Convention on Human Rights] stipulates that no derogation is permitted from Article 2 which guarantees the right to life, ’except in respect of deaths resulting from lawful acts of war’. 3. 108 the law of human rights is concerned primarily with the protection of human rights in peacetime, whereas the law of armed conflict is a lex specials designed to regulate the conduct of hostilities, it is entirely appropriate that the human rights agreements should, in effect, refer to the law of armed conflict in order to determine whether or not any particular instance of the deprivation of life in wartime is arbitrary. 3.101 … the International Covenant on Civil and Political Rights … prohibits only the ’arbitrary’ deprivation of life. … the use of a weapon to take life in armed conflict could only amount to an arbitrary deprivation of life, for the purposes of Article 6 of the Covenant, if it was contrary to the laws of armed conflict but not otherwise. 3.105 In 1982 [the United Nations Human Rights Committee] observed that: ‘Every effort they make to avert the danger of war, especially thermo-nuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life.’ This comment … expressly recognises that the use of force in self-defence is lawful… The Environment 3.74 A more recent argument is that the use of nuclear weapons is prohibited because of the effect that it would have upon the natural environment. … Article 35(3) of Additional Protocol I [Prohibition of Military or any other Hostile Environmental modification Techniques, 1977], prohibits the employment of ’methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. 3.75 That Convention was designed to deal with the deliberate manipulation of the environment as a method of war. … The effect on the environment would normally be a side-effect of the use of a nuclear weapon, just as it would in the case of use of other weapons. 3.115 Two instruments are sometimes said to be particularly relevant to the use or threat of use of nuclear weapons. Principle 26 of the Stockholm Declaration on the Human Environment, 1972, provides that: ’Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons.’ … Principle 24 of the Rio Declaration on Environment and Development, 1992, provides that: ’Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.’ Quite apart from the non-binding character of these declarations … the language of Principle 26 of the Stockholm Declaration is clearly hortatory in nature. Equally, while Principle 24 of the Rio Declaration provides that States shall respect international law providing protection for the environment in times of armed conflict, it gives no indication of what that law entails. An authoritative proscription of the threat or use of nuclear weapons cannot be inferred from such a statement. B POSSESSION OF NUCLEAR WEAPONS DOES NOT IMPLY THREAT IN ITS STRICT LEGAL SENSE. 3.117 … the only express regulation of the threat of force is contained in Article 2(4) of the United Nations Charter. ’All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.’
3.118 [According to Professor Brownlie] ’A threat of force consists in an express or implied promise by a government of a resort to force conditional on non-acceptance of certain demands of that government. If the promise is to resort to force in conditions in which no justification for the use of force exists, the threat itself is illegal.’ A threat to use nuclear weapons thus involves much more than merely the possession of such weapons. In the absence of a specific commitment by a State not to possess such weapons, their possession cannot, in itself, be contrary to international law. As the Court held in the Case Concerning Military and Paramilitary Activities in and Against Nicaragua, ’in international law there are no rules other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited, and this principle is valid for all State without exception.’ … Nor does the deployment of nuclear weapons amount to a threat of their use unless the surrounding circumstances make clear that such a threat is implicit in the fact of their deployment… 3.119 In circumstances where the actual use of force would be lawful, it follows that the threat to use force would also be lawful. Thus, for one State to make clear (whether by words or deeds) to another State that, if attacked, it will use force to defend itself is not an unlawful threat of force, if, indeed, it can be described as a threat at all. … Similarly for a State to make clear that, if attacked, it will resort to nuclear weapons, would involve no threat of force in violation of Article 2(4) of the Charter … since the first State is not attempting to coerce the second into complying with a demand which it has no right to make and there is no danger that it will use nuclear weapons unless it is itself the victim of an unlawful armed attack. 3.120 … the deterrent effect of nuclear weapons has played an essential part in maintaining the self-defence of a number of States without recourse to force proving necessary. In that respect, it cannot be regarded as contrary to the policy underlying Article 2(4) and Article 51 of the Charter. C. NUCLEAR WEAPONS ARE NOT INHERENTLY ILLEGAL. 4.2 … there is no rule contained in either treaty or customary international law which expressly prohibits the use of nuclear weapons per se, nor can such a rule be inferred from more general treaty provisions. 3.24 Since it is clear that there is no treaty provision which imposes a general prohibition on the threat or use of nuclear weapons, any such prohibition must be derived from customary law. For the Court to find, however, that a rule of customary international law embodying such a prohibition exists, it would need to be provided with clear evidence that that rule enjoys the support of the generality of States. The existence of the nuclear-weapon States already weakens the argument that there is a sufficient ’generality’ in support of a prohibitive rule. To this number must be added the number of States failing to make any challenge to the declarations and assurances. Nuclear Weapons are subject to IHL but nothing in IHL proscribes them explicitly. 3.56It has been suggested that the use of nuclear weapons would violate the principle that the parties to an armed conflict do not have an unlimited choice of the methods and means of warfare … While that principle is undoubtedly well established as part of customary international law, however, it cannot stand alone as a prohibition of a particular category of weapons. In any event, there is no incompatibility between the two propositions (1) that States do not have an unlimited choice of the methods and means of warfare and (ii) that States may use nuclear weapons where this is consistent with their right of self-defence. 3.58 … [The] Martens Clause: [’In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.’] makes clear that the absence of a specific treaty provision on the use of nuclear weapons is not, in itself, sufficient to establish that such weapons are capable of lawful use, the Clause does not, on its own, establish their illegality, The terms of the Martens Clause themselves make it necessary to point to a rule of customary international law which might outlaw the use of nuclear weapons. Since it is the existence of such a rule which is in question, reference to the Martens Clause adds little. Illegality can only be decided in a specific context. Balance with necessity is of the essence. Discussion of future scenarios can only be hypothetical. 4.2 … the threat or use of nuclear weapons will not be contrary to the Charter of the United Nations if it meets the criteria for the exercise of the right of self-defence. Whether the use of nuclear weapons meets those criteria will depend upon the circumstances of each individual case. 4.1 … the question put to the Court is in vague and abstract terms, whereas an answer would require detailed examination of the circumstances of any possible use of nuclear weapons or the threat thereof and the necessary material regarding such circumstances could not be brought before the Court. 3.83 … while some uses of nuclear weapons would violate the laws of armed conflict, the argument that their use would invariably be contrary to this part of international law is unfounded. Whether the use of a nuclear weapon in a particular case is lawful will depend upon the circumstances of that case. Moreover, the scope for variation in those circumstances is so great … that any abstract statement about the legality of using nuclear weapons would be either unhelpful in its generality or misleading. 3.40 The question to be posed is whether, in the actual circumstances of the attack, the use of the particular nuclear weapon was necessary in order to defend the victim State. 3.41The answer to that question may depend upon a host of factors: the nature scale and location of the attack, the means of defence available to the victim State: the extent to which the defensive means chosen (nuclear or non-nuclear) will minimise the danger to non-military targets; whether the damage is caused on the territory of the aggressor or the victim State, and so on. Any nuclear strike must be a balance military necessity and the rules of IHL, such as: Proportionality 3.36 These conditions [The Conditions of Lawful Self-defence] are, in particular, that it is necessary to act in self-defence and that the steps taken by way of self-defence are proportionate. These principles are equally applicable to the use of nuclear weapons in self-defence as to the use of any other type of weapon in self-defence. Moreover, it would be entirely arbitrary to exclude ex hypothesis the right of a State to rely on nuclear weapons as a means of defence against a conventional attack. 3.39 It has always been accepted that self-defence must be proportionate. The controversy has been over the question of what the measures of self-defence have to be proportionate to: to the scale of the attack or to the extent to which the target State is jeopardised. 3.40 The former view has its adherents, but, as Ago wrote as Rapporteur of the I.L.C. [International Law Commission] on State responsibility: ’It would be mistaken … to think that there must be proportionality between the conduct constituting the armed attack and the opposing conduct. … What matters in this respect is the result to be achieved by the “defensive” action, and not the forms substance and strength of the action itself.’ The question to be posed is whether, in the actual circumstances of the attack, the use of the particular nuclear weapon was necessary in order to defend the victim State. 3.41 The answer to that question may depend upon a host of factors: the nature scale and location of the attack, the means of defence available to the victim State: the extent to which the defensive means chosen (nuclear or non-nuclear) will minimise the danger to non-military targets; whether the damage is caused on the territory of the aggressor or the victim State, and so on. 3.68 … the United Kingdom’s and NATO’s current doctrine emphasises that nuclear weapons would only ever be used in a defensive role and that the threat posed by an aggressor which would invite a nuclear response would be of a scale which would make that nuclear response proportionate. Unnecessary Suffering 3.63 It has also been argued that the use of nuclear weapons would violate the prohibition on weapons which cause unnecessary suffering. The most recent statement of this principle is contained in Article 35(2) of Additional Protocol I, 1977, which provides [that]: ‘… it is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.’ 3.64 … The use of a nuclear weapon may be the only way in which a State can concentrate sufficient military force to achieve a legitimate military objective, such as the defeat of an invader. In those circumstances, it cannot be said that the use of such a weapon causes unnecessary suffering however great the casualties which it produces among enemy combatants 3.65 A variation on the unnecessary suffering argument is the contention that the use of nuclear weapons would be unlawful because any use of such a weapon would render death inevitable for those in the immediate area of the explosion. The basis for this argument is the preamble to the St Petersburg Declaration. 1868, which stated: ’That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy; That for this purpose it is sufficient to disable the greatest possible number of men; that this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable.’ 3.66 … all weapons are capable of being used in a way which renders death inevitable …the use of a nuclear weapon must, therefore, be judged by reference to whether the suffering which it causes should be regarded as unnecessary when balanced against the military effectiveness of the weapon in the circumstances in which it is used, rather than by concentrating on whether it will inevitably cause death. This is not a judgement which can be made in the abstract. It can be made only on the basis of a careful appraisal of the circumstances of a particular case. Discrimination. 3.67 A further argument which has been raised is that the use of any nuclear weapon would necessarily have such terrible effects upon civilians that it would violate those rules of the law of armed conflict which exist for their protection. … The parties to an armed conflict are required to discriminate between civilians and civilian objects on the one hand and combatants and military objectives on the other and to direct their attacks only against the latter. Secondly, the principle of proportionality requires that even a military objective should not be attacked if to do so would cause collateral civilian casualties or damage to civilian objects which would be excessive in relation to the concrete and direct military advantage anticipated from the attack. 3.68 Those who argue that nuclear weapons are inherently indiscriminate and cannot be used without causing excessive civilian casualties frequently fail to differentiate between these two rules. … Modern nuclear weapons are capable of far more precise targeting… 3.69 All weapons, nuclear weapons included, are capable of being used against centres of civilian population or in an indiscriminate way. … such use would be illegal. What is not true is that nuclear weapons cannot be used in any other way. The use of nuclear weapons against specific military objectives would undoubtedly not be contrary to the first of the two principles set out in paragraph 3.67 above. 3.70 … it is often assumed both that any use of nuclear weapons would cause extensive civilian losses and that such losses would necessarily be excessive in relation to any military advantage which might result. These assumptions tend to be based on assessments of the likely effects of a nuclear attack on or near a city. The reality, however, is that nuclear weapons might be used in a wide variety of circumstances with very different results in terms of likely civilian casualties. In some cases, such as the use of a low yield nuclear weapon against warships on the High Seas or troops in sparsely populated areas it is possible to envisage a nuclear attack which caused comparatively few civilian casualties. It is by no means the case that every use of nuclear weapons against a military objective would inevitably cause very great collateral civilian casualties. 3.71Moreover, the principle of proportionality prohibits an attack upon a military objective only if the likely civilian casualties and damage to civilian objects would be excessive in relation to the expected military advantage. … this principle requires a balance to be struck between the military advantage resulting from an attack and the effect on the civilian population……It cannot, however, be right to assume, as an abstract proposition, that those losses would always outweigh that advantage especially where the destruction of a particular military objective was essential to the survival of a State which was under attack (and, perhaps, to the lives of millions of members of that State’s civilian population) and the use of a nuclear weapon offered the only means of destroying that objective. … the question whether the use of a nuclear weapon would be contrary to the principle of proportionality is not one which can be answered in the abstract but only by reference to the circumstances of each individual case. Genocide 3.73 … it has been argued that the use of nuclear weapons would inevitably cause so many civilian casualties that it would amount to the commission of genocide. … genocide is a crime of intent. Article II of the Genocide Convention, 1948, requires ’intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.’ Neutral States 3.78 It has been suggested that the use of nuclear weapons would inevitably have such catastrophic effects on the territory of neutral States. … Whether the use of nuclear weapons would deposit radioactive fall-out on the territory of neutral States would, however, depend upon the type of weapon used and the location at which it was used. … Hague Convention No V was designed to protect the territory of neutral States against incursions by belligerent forces or the deliberate bombardment of targets located in that territory, not to guarantee neutral States against the incidental effects of hostilities. Intention and Side effects 3.60 The prohibitions in both Article 231(a) of the Hague Regulations and the 1925 Protocol were, however, intended to apply to weapons whose primary effect was poisonous and not to those where poison was a secondary or incidental effect. … In the case of almost all nuclear weapons, the primary effects are blast and heat and it is these which give the weapon its main military advantages. 3.75 … The effect on the environment would normally be a side-effect of the use of a nuclear weapon, just as it would in the case of use of other weapons. 4.2 … nuclear weapons are not prohibited per se by the law of armed conflict. Their use will be lawful provided that it complies with the applicable rules of that law. Their use in circumstances which would otherwise be illegal may, moreover, be lawful if it constitutes a legitimate belligerent reprisal:
Reprisals 3.79 A belligerent reprisal is an action taken by a party to an armed conflict, which would normally constitute a violation of the laws of armed conflict but which is lawful because it is taken in response to a prior violation of that law by an adversary. … First, it must not be directed against persons or objects against which the taking of reprisals is specifically prohibited. Secondly, it must meet the criteria for the regulation of reprisals, namely that it is taken in response to a prior wrong, is proportionate, is undertaken for the purpose of putting an end to the enemy’s unlawful conduct and for preventing future illegalities, and is a means of last resort. 3.81 Additional Protocol I [to the Geneva Conventions] prohibits the taking of reprisals against the civilian population. (Article 51(6)), civilian objects, (Article 52(1)), historic monuments, (Article 53(c)), objects indispensable to the survival of the civilian population (Article 54(4)), the natural environment (Article 55(2)), and works and installations containing natural forces (Article 56(4)). … Again, however, these provisions are correctly regarded as innovative and thus as inapplicable to the use of nuclear weapons. 3.82 Whether the use of nuclear weapons would meet the requirements of proportionality cannot be answered in the abstract: it would depend upon the nature and circumstances of the wrong which prompted the taking of reprisal action. Nor can it be ruled out that the retaliatory use of a nuclear weapon might have the effect of putting a stop to a series of violations of the law by an adversary. Indeed, military doctrine for fifty years has been based on the belief that it is the threat of retaliation in kind which is the principal factor deterring the use of nuclear weapons.
…………………………………………………. OUR BRIEF OBSERVATIONS There is much in the UK material which is unarguable. However, time and again the UK assumes that arguments for the illegality of use presuppose that any conceivable launch of a nuclear weapon would inevitably be unlawful. But it is not required to claim that any conceivable nuclear strike would necessarily result in disproportionate civilian casualties or other violations of the rules of war. Anything is empirically possible. Furthermore, it is clear that even unintended civilian harm would not inevitably contravene the rule of Proportionality. However, the UK Manual of the Law of Armed Conflict (5.32.1) states: Additional Protocol 1 lays down a general obligation on the parties to the conflict to take care in the conduct of military operations to spare civilians.” and (5.32.1 .c) [those who plan or decide upon an attack shall]: refrain from deciding to launch any attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated. The effects of any weapon can never be foreseen completely accurately. However, the unique unpredictability of radiation effects, bearing in mind the vagaries of atmospheric conditions at the moment of launch, makes it impossible to make any valid assessment of the balance between military advantage and civilian harm. Chemical weapons suffer in the same way. Thus it is the impossibility of exercising the Duty of Care, as required by Additional Protocol 1 and the Manual, which is the source of illegality, rather than any violation of discrimination in any specific nuclear strike. As a result, the UK Government’s arguments about the applicability or otherwise of the rules of International Humanitarian Law are undercut. If the effects of any actual nuclear strike cannot be forecast with any credible degree of accuracy, then neither can that strike’s compliance with the law be estimated. In addition, there is the practical issue of human fallibility. The UK states that “… whether the use of a nuclear weapon in a particular case is lawful will depend upon the circumstances of that case” (3.83). It is difficult to believe that a calm and rational assessment of the legal criteria could be carried out in the stress of a crisis when fateful decisions may well have to be taken within minutes. The Government has never provided any satisfactory response to this argument. Another major problem with all the arguments presented to the ICJ by the UK Government is that they do not address the actual nuclear weapon system that the UK deploys in reality (nor the actual targets ready prepared). There is no way that the threat or use of the 100 kt nuclear bombs on Trident can comply with any of the international humanitarian laws governing war even if used in self-defence. The misleading approach of the UK Government is only possible because they argue from the assumption that all the arguments have to apply to even a tiny, as yet unknown and un-deployed nuclear weapon that might possibly be used in the future. Another major logical and legal flaw in the UK’s arguments is that they rely on the ’deterrence’ argument. Nuclear deterrence only makes sense if the nuclear weapons systems, policies and targets can wreak massive damage (which is how they are structured in actual fact at the current time). Nuclear deterrence is not based on a threat to take out a few ships in the middle of the ocean which conventional weapons can achieve quite easily. It is a weapon of mass destruction. The many counter arguments and refutations of the UK’s arguments are spelled out in the book edited by Rebecca Johnson and Angie Zelter and entitled ’Trident and International Law – Scotland’s Obligations’. Perhaps the most pertinent quote on page 91 is from judge Bedjaoui (the President of the International Court of Justice from 1994-1997 which includes the period when the Court gave its Advisory Opinion on the Use and Threat of Use of Nuclear Weapons):- ’for the use of all those in Scotland wishing to ensure full compliance with international humanitarian law, I would like to stress that the International Court of Justice in its Advisory Opinion of July 8, 1996, did not have at its disposal adequate elements of fact to permit concluding with certainty whether a specific nuclear weapon system would be contrary to the principles and rules of the law applicable in armed conflict. The Court was asked to rule on a general question of use and threat of use of nuclear weapons. If the Court had been asked to rule on the legality of a specific nuclear weapons system or doctrine the conclusion we arrived at might well have been much clearer.
I have been asked to give a personal opinion on the legality of a nuclear weapons system that deploys over 100 nuclear warheads with an approximate yield of 100 kt per warhead. Bearing in mind that warheads of this size constitute around eight times the explosive power of the bomb that flattened Hiroshima in 1945 and killed over 100,000 civilians, it follows that the use of even a single such warhead in any circumstance, whether a first or second use and whether intended to be targeted against civilian populations or military objectives, would inevitably violate the prohibitions on the infliction of unnecessary suffering and indiscriminate harm as well as the rule of proportionality including with respect to the environment. In my opinion, such a system deployed and ready for action would be unlawful. In accordance with evidence heard by the Court, it is clear that an explosion caused by the detonation of just one 100 kt warhead would release powerful and prolonged ionising radiation, which could not be contained in space or time, and which would harmfully affect civilians as well as combatants, neutral as well as belligerent states states, and future generations as well as people targeted in the present time. In view of these extraordinarily powerful characteristics and effects, any use of such a warhead would contravene international and humanitarian laws and precepts. In other words, even in an extreme circumstance of self-defence, in which the very survival of a State would be at stake, the use of a 100 kt nuclear warhead – regardless of whether it was targeted to land accurately on or above a military target — would always fail the tests of controllability, discrimination, civilian immunity, and neutral rights and would thus be unlawful.
In my opinion, any state that aids and abets another country, in the deployment and maintenance of nuclear warheads of 100 kt or comparable explosive power would also be acting unlawfully.
The modernisation, updating or renewal of such a nuclear weapon system would also be a material breach of NPT obligations, particularly the unequivocal undertaking by the nuclear weapon states to “accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament” and the fundamental Article 6 obligation to negotiate in good faith on cessation of the arms race and on nuclear disarmament, with the understanding that these negotiations must be pursued in good faith and brought to conclusion in a timely manner.’
These 21 pages were written and edited by George Farebrother and Angie Zelter. 4th February 2012.