The Bulletin of the Atomic Scientists September/October 1996,

And now, abolition

Vol 52, No. 5

By Peter Weiss

In its prolonged deliberations on the nuclear weapons case, the World Court labored mightily. It did not bring forth a mouse, as some had predicted, but a great victory for the anti-nuclear movement. The 37 closely printed pages of the majority opinion, followed by 230 pages of concurrence and dissent by each of the 14 participating judges – the fifteenth judge died just before the hearings began last November – contain much that will strengthen and clarify the law of warfare (as well as a little that will help to obscure it).

The repeated postponements of “Opinion Day” – from March to July – lead one to suppose that an enormous amount of discussion preceded the final drafting and that it would have been fascinating to be a fly on the wall during these discussions.

The crucial elements of the decision are to be found in Paragraphs E and F of the conclusions. Paragraph E has two sections, one stating that “the threat or use of nuclear weapons would generally be contrary to the rules of international law… and in particular [to] the principles and rules of humanitarian law” the other that “in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.”

Paragraph E was adopted when President Mohammed Bedjaoui of Algeria cast a tie-breaking vote, thus making it the official opinion of the court. But numbers can be misleading, and many journalists were misled when they used terms like “a narrow margin” or “an evenly divided court.” One of the seven nay voters, Shigeru Oda of Japan, was expressing his view that the court should not have taken the case at all. Three other dissenters – Stephen M. Schwebel of the United States, Gilbert Guillaume of France, and Rosalyn Higgins of Britain – voted against the declaration of general unlawfulness. But the three remaining dissenters, Mohammed Shahabuddeen of Guyana, Abdul Koroma of Sierra Leone, and Christopher Weeramantry of Sri Lanka, objected to the idea that an exception should be made in an “extreme circumstance.” These judges favored a ruling of illegality in all circumstances.

Thus, the vote in favor of declaring nuclear weapons illegal was really 10 to four, and the vote against a finding of illegality was, in fact, cast only by judges from the three Western nuclear powers. Judge Oda stated that he was “among the first to hope that nuclear weapons can be totally eliminated from the world.”

Why the court decided to bundle the vote on both elements in Paragraph E, producing the misleading seven-to-seven result, is a question that must await the work of judicial historians – but perhaps it was one of the factors that delayed the court’s opinion for three months.

In any case, a clear majority of the court came within a hair’s breadth of adopting the proposition advanced by the great majority of the 45 countries that took part in the case – that the threat or use of nuclear weapons is illegal in any circumstance. Even the dissenters acknowledged this fact: At the beginning of his magisterial 88-page dissent, which bids fair to become a classic of legal literature, Judge Weeramantry states that the court’s opinion takes “the law far on the road to total prohibition.”

The “extreme circumstance” exception – on the legality of which the court declined to rule – would not justify any of the instances of the past 50 years in which the nuclear powers have threatened to use nuclear weapons or, as has more frequently been the case, refused to rule out the option of using them. The nuking of North Korea to halt its suspected nuclear weapons program or of Libya to end its presumed chemical weapons effort could not be justified as an “extreme circumstance” – nor could the bombing of Hiroshima and Nagasaki. In none of these instances was the survival of a state at risk.

No doubt the “extreme circumstance” exception will be cited by advocates of continuing reliance on nuclear weapons as having given back with the right hand what the left hand has taken away. We can expect to hear choruses of “We’d never use nukes except in extreme circumstances, anyway.” But the qualifier – “the survival of a state” – will be intoned in a whisper if at all.

But that interpretation would be a grave misreading of the World Court’s decision. The court dealt with the internal ambiguity of Paragraph E by unanimously affirming in Paragraph F that “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

It would be difficult to read “in all its aspects” as calling for anything other that “total” or “complete” disarmament. Even Judge Schwebel, the American, who in several questions during the hearings sought to link nuclear disarmament to general and complete disarmament, apparently abandoned that position. In his dissent, dealing mainly with his disagreement with the holding of general illegality, he calls Paragraph F “another anodyne asseveration of the obvious,” at least as applied to members of the Nuclear Non-Proliferation Treaty.

A word, then, to critics in the disarmament and arms control movements: You have said that negotiation, not law, is the way to achieve the abolition of nuclear weapons. And, in any case, you suggested that the campaign to have nuclear weapons outlawed would never get anywhere. Those of us involved in the World Court Project will gloat quietly over the fact that we did get somewhere. But now we should all pull together on the road to abolition through negotiation – not in small, distanced, incremental steps, but within a time frame and “in all its aspects” – in keeping with the unanimous view of the court.

Calling nuclear weapons “the ultimate evil,” President Bedjaoui wrote in a separate opinion that the lesson of the World Court’s opinion is that “the ultimate aim of any action in the field of nuclear weapons will always be nuclear disarmament, that this aim is no longer utopian, and that it is the duty of all to pursue it more actively than ever.” He concluded by quoting Einstein: “Humanity will get the fate it deserves.” Peter Weiss is co-president of the International Association of Lawyers Against Nuclear Arms, which was instrumental in organizing the World Court Project.