LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS
Author's Note: In 1993,
the UN General Assembly's World Health Organization expressed
its concern about post-Cold War possession and potential use
of nuclear weapons. In 1994, the UN General Assembly requested
an Advisory Opinion from the ICJ on the question: "Is the
threat or use of nuclear weapons in any circumstance permitted
under international law?"
.....Written statements were filed by: Bosnia and Herzegovina, Burundi, Democratic People's Republic of Korea, Ecuador, Egypt, Finland, France, Germany, India, Ireland, Islamic Republic of Iran, Italy, Japan, Lesotho, Malaysia, Marshall Islands, Mexico, Nauru, The Netherlands, New Zealand, Qatar, Russian Federation, Samoa, San Marino, Solomon Islands, Sweden, United Kingdom of Great Britain and Northern Ireland, and the US. In addition, written comments on those written statements were submitted by: Egypt, Nauru, and the Solomon Islands.
.....This issue obviously drew the attention of many States--both those with, and without, nuclear capability. Twenty-five nations participated in oral proceedings before the Court.
Testimony: Mr. Takekazu
Kawamura, Ambassador, Director General for Arms Control
Mr. KAWAMURA: Thank you, Mr. President, for giving
me the floor. Mr. President and Honourable Members of the Court,
the Government of Japan has expressed its views on the use of
nuclear weapons by submitting the written statements concerning
the requests for advisory opinions.
|Almost five years after this judgment: On January 14, 2000, Russia's new President, Vladamir Putkin, announced that--in contrast to the US and Russia's own former foreign policy statements--a new security doctrine opens the door to the Kremlin's being the first to use a nuclear strike in a military conflict. Because of increasing concern with NATO's expansion eastward--especially the integration of the Czech Republic, Hungary, and Poland into NATO--Putin stated: "The Russian Federation considers it possible ... to use all forces and equipment at its disposal, including nuclear weapons, to repel armed aggression if all other means ... have been exhausted or proven ineffective." Boston Globe, Jan. 14, 2000. Under prior doctrine, when the Warsaw Pact nations provided a buffer between eastern and western Europe, the Soviet Union's official policy was to reject "first use" of nuclear weapons.|
38. The Charter contains several provisions relating to the threat and use of force. In Article 2, paragraph 4, the threat or use of force against the territorial integrity or political independence of another State or in any other manner inconsistent with the purposes of the United Nations is prohibited. That paragraph provides:
.....This prohibition of the use of force is to be considered in the light of other relevant provisions of the Charter. In Article 51, the Charter recognizes the inherent right of individual or collective self-defence if an armed attack occurs. A further lawful use of force is envisaged in Article 42, whereby the Security Council may take military enforcement measures in conformity with Chapter VII of the Charter.
39. These provisions do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a legitimate purpose under the Charter.
40. The entitlement to resort to self-defence under Article 51 is subject to certain constraints. Some of these constraints are inherent in the very concept of self defence. Other requirements are specified in Article 51.
41. The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (I.C.J. Reports 1986, p. 94, para. 176): "there is a specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law". This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed.
42. The proportionality
principle may thus not in itself exclude the use of nuclear weapons
in self-defence in all circumstances. But at the same time, a
use of force that is proportionate under the law of self-defence,
must, in order to be lawful, also meet the requirements of the
law applicable in armed conflict which comprise in particular
the principles and rules of humanitarian law.
52. The Court notes by way of introduction that international customary and treaty law does not contain any specific prescription authorizing the threat or use of nuclear weapons or any other weapon in general or in certain circumstances, in particular those of the exercise of legitimate self defence. Nor, however, is there any principle or rule of international law which would make the legality of the threat or use of nuclear weapons or of any other weapons dependent on a specific authorization. State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition.
53. The Court must therefore now examine whether there is any prohibition of recourse to nuclear weapons as such; it will first ascertain whether there is a conventional prescription to this effect.
54. In this regard, the argument has been advanced that nuclear weapons should be treated in the same way as poisoned weapons. In that case, they would be prohibited under:
55. The Court will observe that the Regulations annexed to the Hague Convention IV do not define what is to be understood by "poison or poisoned weapons" and that different interpretations exist on the issue. Nor does the 1925 Protocol specify the meaning to be given to the term "analogous materials or devices". The terms have been understood, in the practice of States, in their ordinary sense as covering weapons whose prime, or even exclusive, effect is to poison or asphyxiate. This practice is clear, and the parties to those instruments have not treated them as referring to nuclear weapons.
56. In view of this, it does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the above-mentioned provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol (see paragraph 54 above).
57. The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. The most recent such instruments are the Convention of 10 April 1972 on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their destruction which prohibits the possession of bacteriological and toxic weapons and reinforces the prohibition of their use and the Convention of 13 January 1993 on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction which prohibits all use of chemical weapons and requires the destruction of existing stocks. Each of these instruments has been negotiated and adopted in its own context and for its own reasons. The Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction.
58. In the last two decades,
a great many negotiations have been conducted regarding nuclear
weapons; they have not resulted in a treaty of general prohibition
of the same kind as for bacteriological and chemical weapons.
61. Those States who defend the position that recourse to nuclear weapons is legal in certain circumstances see a logical contradiction in reaching such a conclusion. According to them, those Treaties, such as the Treaty on the Non-Proliferation of Nuclear Weapons, as well as Security Council resolutions 255 (1968) and 984 (1995) which take note of the security assurances given by the nuclear-weapon States to the non-nuclear-weapon States in relation to any nuclear aggression against the latter, cannot be understood as prohibiting the use of nuclear weapons, and such a claim is contrary to the very text of those instruments. For those who support the legality in certain circumstances of recourse to nuclear weapons, there is no absolute prohibition against the use of such weapons. The very logic and construction of the Treaty on the Non-Proliferation of Nuclear Weapons, they assert, confirm this. This Treaty, whereby, they contend, the possession of nuclear weapons by the five nuclear-weapon States has been accepted, cannot be seen as a treaty banning their use by those States; to accept the fact that those States possess nuclear weapons is tantamount to recognizing that such weapons may be used in certain circumstances. Nor, they contend, could the security assurances given by the nuclear-weapon States in 1968, and more recently in connection with the Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons in 1995, have been conceived without its being supposed that there were circumstances in which nuclear weapons could be used in a lawful manner. For those who defend the legality of the use, in certain circumstances, of nuclear weapons, the acceptance of those instruments by the different non-nuclear-weapon States confirms and reinforces the evident logic upon which those instruments are based.
62. The Court notes that
the treaties dealing exclusively with acquisition, manufacture,
possession, deployment and testing of nuclear weapons, without
specifically addressing their threat or use, certainly point
to an increasing concern in the international community with
these weapons; the Court concludes from this that these treaties
could therefore be seen as foreshadowing a future general
prohibition of the use of such weapons, but they do not constitute
such a prohibition by themselves.
65. States which hold the view that the use of nuclear weapons is illegal have endeavoured to demonstrate the existence of a customary rule prohibiting this use. They refer to a consistent practice of non-utilization of nuclear weapons by States since 1945 and they would see in that practice the expression of an opinio juris on the part of those who possess such weapons.
66. Some other States, which assert the legality of the threat and use of nuclear weapons in certain circumstances, invoked the doctrine and practice of deterrence in support of their argument. They recall that they have always, in concert with certain other States, reserved the right to use those weapons in the exercise of the right to self-defence against an armed attack threatening their vital security interests. In their view, if nuclear weapons have not been used since 1945, it is not on account of an existing or nascent custom but merely because circumstances that might justify their use have fortunately not arisen.
67. The Court does not intend to pronounce here upon the practice known as the "policy of deterrence". ...
68. According to certain
States, the important series of General Assembly resolutions,
beginning with resolution 1653 (XVI) of 24 November 1961, that
deal with nuclear weapons and that affirm, with consistent regularity,
the illegality of nuclear weapons, signify the existence of a
rule of international customary law which prohibits recourse
to those weapons. According to other States, however, the resolutions
in question have no binding character on their own account and
are not declaratory of any customary rule of prohibition of nuclear
weapons; some of these States have also pointed out that this
series of resolutions not only did not meet with the approval
of all of the nuclear-weapon States but of many other States
86. The Court shares that view. Indeed, nuclear weapons were invented after most of the principles and rules of humanitarian law applicable in armed conflict had already come into existence; the Conferences of 1949 and 1974-1977 left these weapons aside, and there is a qualitative as well as quantitative difference between nuclear weapons and all conventional arms. However, it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future. In this respect it seems significant that the thesis that the rules of humanitarian law do not apply to the new weaponry, because of the newness of the latter, has not been advocated in the present proceedings. On the contrary, the newness of nuclear weapons has been expressly rejected as an argument against the application to them of international humanitarian law:
.....None of the statements made
before the Court in any way advocated a freedom to use nuclear
weapons without regard to humanitarian constraints.
91. According to one point of view, the fact that recourse to nuclear weapons is subject to and regulated by the law of armed conflict does not necessarily mean that such recourse is as such prohibited. As one State put it to the Court:
92. Another view holds
that recourse to nuclear weapons could never be compatible with
the principles and rules of humanitarian law and is therefore
prohibited. In the event of their use, nuclear weapons would
in all circumstances be unable to draw any distinction between
the civilian population and combatants, or between civilian objects
and military objectives, and their effects, largely uncontrollable,
could not be restricted, either in time or in space, to lawful
military targets. Such weapons would kill and destroy in a necessarily
indiscriminate manner, on account of the blast, heat and radiation
occasioned by the nuclear explosion and the effects induced;
and the number of casualties which would ensue would be enormous.
The use of nuclear weapons would therefore be prohibited in any
circumstance, notwithstanding the absence of any explicit conventional
prohibition. That view lay at the basis of the assertions by
certain States before the Court that nuclear weapons are by their
nature illegal under customary international law, by virtue of
the fundamental principle of humanity.
97. Accordingly, in view
of the present state of international law viewed as a whole,
as examined above by the Court, and of the elements of fact at
its disposal, the Court is led to observe that it cannot reach
a definitive conclusion as to the legality or illegality of the
use of nuclear weapons by a State in an extreme circumstance
of self-defence, in which its very survival would be at stake.
Notes & Questions
1. What did the ICJ actually decide in the Nuclear Weapons Case?
2. What are the basic arguments for, and against, the use of nuclear weapons in self-defense?
3. Article 6 of the Treaty on the Non-Proliferation of Nuclear Weapons obligates its parties to undertake to pursue.negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control." At the 2000 review conference, five States (China, France, Russia, the United Kingdom, and the United States) accepted--for the first time--an unequivocal commitment to eliminate nuclear weapons.
....See S. Murphy, Nuclear Weapons States Pledge to Unequivocal Elimination, 94 Amer. J. Int'l L. 706.(2000).
4. In November 2001, Russian President Putin and Bush announced that they intended to cut their respective nuclear weapons arsenals by two-thirds during the next ten years.
5. The International Atomic Energy Agency Board of Governors Nuclear Verification and Security Materials statement (Physical Protection Objectives and Fundamental Principles), GOV/2001/41 (August 15, 2001) addresses the need for international cooperation in the protection of nuclear materials and facilities. The Board stressed that physical protection played an important part in supporting nuclear non-proliferation objectives and in protecting public health and safety and the environment.
.....These Objectives are supposed to: (1) protect against unauthorized removal of nuclear material; (2) ensure the implementation of rapid and comprehensive measures by states to locate and recover missing or stolen nuclear material; (3) protect against sabotage of nuclear facilities and materials; and (4) mitigate or minimize the radiological consequences of sabotage. Twelve proposed Principles (A through L) provide that States will be exclusively responsible for the establishment, implementation and maintenance of their physical protection regime--in addition to the establishment and maintenance of a legislative and regulatory framework governing physical protection. Each state party should establish or designate a competent authority responsible for the implementation of the legislative and regulatory framework. GC(45)/INF/14
of 14 September 2001.ILIB 03.19/02.
........................Go To Chapter 10, Section 10.2,
text p.471, Notes & Questions,
................................................after Nuclear Weapons Case reference to this web page.