Impermissibility of the Use or
Threat of Use
of Nuclear Weapons: A Case for an
Advisory Opinion
From the International Court
of Justice[1]
Dr.
M. Javad Zarif
Dr.
Jamshid Momtaz
Dr.
Said Mirzaee[2]
1. Background
On 14
May 1993, the World Health Assembly adopted resolution 46.40, requesting the
International Court of Justice to give an advisory opinion on the following
question:
In
view of the health and environmental effects, would the use of nuclear weapons
by a state in war or other armed conflict be a breach of its obligations under
international law including the WHO constitution?
On 15
December 1994, the General Assembly of the United Nations, by resolution 49/75
K, requested the Court to render its advisory opinion on the following
question:
Is
the threat or use of nuclear weapons in any circumstances permitted under international law?
Two
similar requests for an advisory opinion of the Court provide true testimony of
the vital importance of the case to the international community, and also
reflect a significant responsibility conferred upon the Court in this
respect.
The
International Court of Justice decided to hold one oral hearing for both cases
during November 1995. Thirty Seven
states presented written statements on the issue, out of which twenty two
states[3] and
WHO appeared before the Court to present additional points in support of their
written submissions. The opinions
presented were divided primarily on the basis of access to nuclear
weapons. In other words, nuclear-weapon
states along with non-nuclear members of NATO, who are protected by NATO
nuclear umbrella, argued against the competence of the Court to deal with the
issue and rejected the illegality of the use or threat of use of nuclear
weapons. On the other hand, non-nuclear
states, including those who traditionally associate themselves with major
Western powers, such as Australia, urged the ICJ to determine that any use or
threat of use of nuclear weapons, regardless of circumstances, were illegal and
unjustifiable.
The
Islamic Republic of Iran participated actively in the process, presenting two
written briefs and a rather lengthy oral submission. Iran's interest in the question before the
Court stems from the fact that it ratified the 1968 Treaty on the
Non-Proliferation of Nuclear Weapons on February 2, 1970 and is committed to
the application of nuclear energy solely for peaceful purposes. Furthermore,
Iran has concluded Safeguard Agreements with the International Atomic Energy
Agency and has opened all its nuclear facilities for routine and special
inspections. Reports prepared by the I.A.E.A. experts have made it clear that
Iran uses its nuclear facilities exclusively for peaceful purposes.
However,
as a Third World and Non-Aligned state, Iran's interest in this case is not
limited to treaty obligations, but is rooted in a very serious security
consideration, caused by the continued and exacerbated presence of nuclear
weapons, especially in the Middle East, and in particular the acquisition of
these weapons by Israel. For this
reason, Iran has been one of the adamant proponents of a Nuclear Weapons Free
Zone in the Middle East, and was one of the most active supporters of total nuclear
disarmament in the 1995 N.P.T. Review and Extension Conference.
2.
Validity and Opportunity of Requests for Advisory Opinions
As to
the validity of the requests for the opinion of the Court, reference should be
made to Article 96, paragraph 1 of the Charter of the United Nations which authorizes
the General Assembly and the Security Council to request the Court to render an
advisory opinion on any legal question.
2.1.
The Validity of the Request by the General Assembly
A
decision of the General Assembly to seek an advisory opinion of the Court
requires a simple majority. This is so because Article 18, paragraph 2 of the
Charter, does not specify seeking of advisory opinions as an important
question. Furthermore, the General Assembly has followed this procedure for the
past fifty years. Thus, General Assembly resolution 49/75 k was adopted in
accordance with its rules of procedure. The Court should respond to the request
duly made to it by the competent organ of the United Nations. The Court has
observed in the Interpretation of Peace Treaties case:
No
state, whether a member of the United Nations or not, can prevent the giving of
advisory opinion which the United Nations considers to be desirable in order to
obtain enlightenment as to the course of action it should take.[4]
The
General Assembly has a mandate, in accordance with Article 11 of the Charter,
to "consider the general principles of co-operation in the maintenance of
international peace and security, including the principles governing
disarmament and the regulation of armaments" in order to "make
recommendations with regard to such principles to members or to the Security
Council or both."
The
General Assembly has consistently addressed the issue of nuclear disarmament
and, from its very first resolution, has called for the elimination of nuclear
weapons. Since its inception, it has adopted numerous resolutions dealing with
nuclear weapons, many of them condemning their use as a violation of
international law, some calling their use a crime against humanity. For
instance, the "Declaration on the Prohibition of the Use of Nuclear and
Thermonuclear Weapons" adopted in 1962,[5] and
the Resolution on Non-Use of Nuclear Weapons and Prevention of Nuclear War,
adopted in 1981, could be mentioned.[6]
Therefore,
the request for an advisory opinion on the illegality of threat or use of force
falls, without a doubt, within the scope of "functions and powers" of
the General Assembly. Certainly, an opinion from the Court would assist the
General Assembly to fulfill the mandate entrusted to it and, with the
obligations of member states with
respect to principles governing disarmament and regulations of armaments. Thus,
such a ruling will be of immense help to the United Nations as well as to the
cause of peace and security of the international community.
2.2. The Validity of the Request by WHO
As
regards the request made by WHO, it should be recalled that in accordance with
Article 96, paragraph 2 of the Charter, other organs of the United Nations and
specialized agencies, if authorized by the General Assembly, may also request
advisory opinions of the Court on legal questions arising within the scope of
their activities.
The
World Health Organization has been authorized by the General Assembly, in
accordance with Article 96, paragraph 2 of the Charter, to seek the advisory
opinion of the Court on legal questions relating to its activities. Article 76
of the Constitution of the World Health Organization and Article X of the
Agreement between the United Nations and WHO confirm the power given to World
Health Assembly. Resolution 46.40 of the World Health Assembly has been adopted
in accordance with its rules of procedure, and therefore attempts to question
its validity have no legal basis.
The
request by the World Health Organization also falls within the scope of its
mandate, as it is related to the powers and functions of WHO to advance and
promote global health, including the avoidance of present and future health
catastrophes, as defined in its Constitution. There is no doubt that the use of
nuclear weapons would pose catastrophic health problems on an unprecedented
scale. As the Legal Council of WHO stated before the Court on 30 October 1995,
casualties and injury arising out of the use of nuclear weapons could vary from
one million to one billion.[7]
In
making the request to the I.C.J., the World Health Assembly noted: "... it
has been established that no health service in the world can alleviate in any
significant way a situation resulting from use of even one single weapon"
and that "primary prevention is the only appropriate means to deal with
the health and environmental effects of use of nuclear weapons."[8] This
assertion clearly removes any doubt on the genuine concern of WHO for the
question put before the Court regarding the interpretation of its Constitution.
The
Court itself observed in an advisory opinion on the Interpretation of the
Agreement Between the Who and Egypt in 1980: "In situations in which
political considerations are prominent, it may be particularly necessary for an
advisory opinion from the court as to the legal principles applicable with
respect to the matter under debate, especially when these may include the
interpretation of its constitution."[9]
Lauterpacht
has observed in oppenheim's International Law:
The advisory opinion
of the Court has been designed primarily to assist the Security Council and the
General Assembly in the discharge of their duties of conciliation and reporting
upon disputes submitted to them by affording them an authoritative legal
opinion.[10]
2.3. The Practice of the Court
The
Court has taken a progressive view of its advisory competence when it observed
in the case concerning Interpretation of Peace Treaties:
By
lending its assistance in the solution of a problem confronting the General
Assembly, the Court would discharge its responsibilities as the principal
judicial organ of the United Nations.... The Court's opinion is not given to
states but to the organ which is entitled to request it; the reply of the
Court, itself an organ of the United Nations, represents its participation in
the activities of the organization and, in principle it should not be refused.[11]
The
Court further explained in the Western Sahara case conditions that may prevent
it from rendering an advisory opinion:
When the circumstances
disclose that to give a reply would have the effect of circumventing the
principle that a state is not obliged to allow its dispute to be submitted to
judicial settlement without its consent.[12]
As it
is evident, the question before the Court is not related to a dispute between
two states; therefore, it does not undermine the consent principle.
Consequently, there exists no compelling reason for denial of the requested
opinion.
Actually,
the Court has accepted requests for advisory opinions on a number of subjects,
including: interpretation of the Charter; the legal effects of the resolutions
of the United Nations organs; decolonization; etc. In cases not involving a
dispute between two states submitted without the consent of either of the parties,
the present Court until now has never refused to give an opinion even if the
request was politically motivated.
2.4. Political Versus Legal Nature of the Request
It
has been argued that the question before the I.C.J. is basically a political
one, not a legal question. In this respect, it is difficult to perceive any
question relating to violation of a specific rule of international law to be
deemed non-legal in nature. It is obvious that many legal issues may have
political dimensions or connotations. But, this should not, and cannot, prevent
the Court from rendering its opinion on the legal aspect of the question. As
the Court has observed in 1984 on the case concerning Military and Paramilitary
Activities In and Against Nicaragua:
The
[Security] Council has functions of a political nature assigned to it, whereas
the Court exercises purely judicial functions. Both organs can therefore
perform their separate but complementary functions with respect to the same
event.[13]
Fitzmaurice
has observed in this respect:
If the question put to
the court is in itself a legal question (and inter alia, all questions relating
to the interpretation of international instruments, with which requests for
advisory opinions are usually concerned, are ipso facto legal questions)
the fact that it has a political element is irrelevant.[14]
2.5.
Responsibility of the Court
The
responsibility that has been conferred on the International Court of Justice,
as the principal judicial organ of the United Nations, to consider requests for
advisory opinions on a crucial question relating to the very existence of human
species is a historic one. The International Court of Justice, during 50 years
of its existence, has acquired considerable credibility among nations and its
current consideration of this vital question is a true testimony to validity of
this trust.
The
International Court of Justice is requested to fulfill an indispensable
responsibility of issuing an opinion on the illegality of the use of nuclear
weapons. A decision that would reaffirm fundamental principles of international
law, would bring to an end any doubts on this issue, and would constitute a
major step towards achieving the lofty objectives of the United Nations,
"to save succeeding generations from the scourge of war" and "to
establish conditions under which justice and respect for the obligations
arising from treaties and other sources of international law can be
maintained."
The
responsibility bestowed upon the Court is of legal, historic, and moral
importance. Any doubt, hesitation or indecisiveness on this issue may encourage
conditions for the repetition of disasters similar to Hiroshima and Nagasaki.
Rendering advisory opinions is a mandate given to the Court by its Statute. The
Court observed on the Interpretation of the Agreement Between WHO and Egypt in
1980:
The
function of the Court is to give an opinion based on law, once it has come to
the conclusion that the questions put to it are relevant and have a practical
and contemporary effect and, consequently are not devoid of object or purpose.[15]
It is
quite clear that the opinion of the Court in the present case will have
practical and contemporary effects on the international community. Therefore,
it will not be devoid of object or purpose. President Bedjaoui, speaking before
the Sixth Committee in the Fiftieth session of the General Assembly, emphasized
the preventive nature of advisory opinions when he observed: "The advisory
procedure thus appears, at the minimum, to be an instrument of 'preventive diplomacy',
a particularly suitable means for the Court to defuse tension and ward off
conflicts by determination of law."[16]
3.
Illegality of Threat or Use of Force
3.1.
General Prohibition of Article 2 of the Charter
The
unequivocal rejection of use or threat of use of force, contained in Article 2,
paragraph 4 of the Charter of the United Nations, provides no room for use or
threat of use of nuclear weapons against other states. In addition, this ban,
in accordance with paragraph 6 of Article 2 of the Charter, is extended to
non-members of the United Nations. This norm of international law, as the
International Law Commission has concluded, is "a peremptory norm of
international law."[17] The
International Court of Justice has called it: "not only a principle of customary
international law, but also a fundamental or cardinal principle of such
law."[18]
Accordingly, its violation under any circumstances, irrespective of any
pretext, is unjustifiable. The right to self defense as provided in Article 51
of the Charter, cannot be invoked to justify use of nuclear weapons. The right
to self defense is limited by the general principles of necessity and
proportionality as well as those of International Humanitarian Law, which will
be covered later in this study.
3.2.
General Assembly Resolutions
Numerous
United Nation's General Assembly resolutions and declarations have confirmed
the illegality of use of force in international relations. For instance, the
Declaration on Principles of International Law Concerning Friendly Relations
restates the language of Article 2(4) of the Charter and declares that:
"Such a threat or use of force constitutes a violation of International
Law and the Charter of the United Nations and shall never be employed as a
means of settling international disputes."[19] The
Declaration on the Inadmissibility of Intervention in Domestic Affairs of Other
States further condemns "Armed intervention and all other forms of
interference or attempted threats."[20] And
finally, the 1987 Declaration on the Enhancement of the Principle of Non-Use of
Force emphasizes: "The principle of refraining from the threat or use of
force in international relations is universal in character and is binding,
regardless of each state's political, economic, social or cultural system or relation
of alliance."[21]
Although resolutions of the General Assembly are
commonly perceived to be of a recommendatory nature, declarations interpreting
the provisions of the charter, along with those declaring the principles of
international law, certainly do not constitute mere recommendations.
The
General Assembly Resolution 1653 adopted in 1961 particularly should be
mentioned here. Paragraph 1(a) of this Resolution declared that the use of
nuclear and thermonuclear weapons is contrary to the spirit, letter, and aim of
the United Nations, and, as such, is a direct violation of the Charter of the
United Nations. Clearly, this assertion is also not a mere recommendation
because it is based on Charter provisions.
3.3.
Regional Security Treaties
After
the coming into force of the Charter of the United Nations, a number of
regional security treaties concluded in various parts of the world reaffirmed
the commitment of states with respect to the principle of non-use of force in
international relations. For instance, the North Atlantic Treaty, the Final Act
of the Conference on Security and Co-operation in Europe, the Charter of the
Organization of American States, and constituent instruments of the
Organization of African Unity and the Organization of Islamic Conference
contain such provisions.
3.4.
Non-Distinction between Threat or Use of Force
The
United Nations Charter, treaties, and resolutions pertaining to the prohibition
of the use of force do not distinguish between actual use of force and the threat
to use force. Both, use of force and threats to use force are equally outlawed.
Consequently, the argument advanced by the nuclear weapon states that their
deterrence policies, over the years, have helped to maintain stability and
world peace, seems to be extraneous.
The
very essence of the deterrence policy is based on the threat to use nuclear
arsenal, which contravene the very letter and spirit of the Charter of the
United Nations. Therefore, nuclear deterrence is illegal, pure and simple. The international community still remembers
the Cuban Missile Crisis, and the terrible conditions which prevailed in the
years following that dilemma. The people of the world lived for decades,
between war and peace, in uncertainty; volatile and horrifying circumstances
caused mainly by so called deterrence policies of nuclear-weapon states.
Moreover, nuclear deterrence has not prevented conventional wars. Occurrence of
almost 150 wars in fifty years, with casualties more than those of the second
world war, certainly do not correspond with the better and peaceful world that
the founders of the United Nations had in mind.
4.
The Treaty on Non-Proliferation of Nuclear Weapons
It is
quite appropriate to recall the obligations of states arising from the N.P.T.
regime for achieving nuclear disarmament. The treaty on Non-Proliferation of
Nuclear Weapons, which entered into force on March 5, 1970, is an essential
measure towards achieving the goal of nuclear disarmament. Its preamble calls
for: "Cessation of the manufacture of nuclear weapons, the liquidation of
all their existing stockpiles, and the elimination from national arsenals of
nuclear weapons and their means of delivery." Article VI of the Treaty
which has been regarded as the most important part of the arrangements between
nuclear and non-nuclear parties contains a legally binding commitment on all
parties "To pursue negotiations in good faith on effective measures
relating to cessation of the nuclear arms race at an early date and nuclear
disarmament."[22] This
article reflects the undertaking of the nuclear powers to end vertical
proliferation of nuclear weapons and eventually dismantle their nuclear arsenal
and the commitment of non-nuclear states to end horizontal proliferation. This
mutual undertaking was clearly expressed by the then Prime Minister of the
United Kingdom Harold Wilson:
We
know that there are two forms of proliferation, vertical and horizontal. The
countries which do not possess weapons and which are now undertaking an
obligation not to possess them, have the right to expect nuclear-weapon states
will fulfill their part of the bargain.[23]
The
United States Representative, Adrian S. Fisher, stated at the 1968 Geneva
Conference that Article VI of Non-Proliferation of Nuclear Weapons constitutes
a "solemn affirmation of the responsibility of nuclear weapon states to
strive for effective measures regarding cessation of the nuclear arms race and
disarmament. Moreover, the article does not make the negotiations of this
measure conditional upon their inclusion within the framework of a treaty on
general disarmament."[24]
Throughout
the history of the N.P.T., the non-nuclear states have strived for a universal
and non-discriminatory regime like those established by the 1972 Biological
Weapons Convention and the 1993 Chemical Weapons Convention. Each one of these
conventions provides for total elimination of certain classes of mass
destruction weapons. From the beginning of the N.P.T. negotiations, those
states called for the elimination of all nuclear weapons and their delivery
vehicles.
4.1.
The Indefinite Extension of the Treaty
On 11
May 1995, the N.P.T. Review and Extension Conference decided without a vote:
"As a majority exists among states party to the treaty for its indefinite
extension, in accordance with Article X.2, the treaty shall remain in force
indefinitely." It need to be clarified however, that the extension
decision was part of a package of three inter-linked compromise decisions. The
other two decisions were: "Strengthening the Review Process for the
Treaty," which provides for a greater measure of accountability by all
parties, in particular by the nuclear powers, and "Principles and
Objectives for Nuclear Non-Proliferation and Disarmament," which
reiterates the "ultimate goal of the complete elimination of nuclear
weapons and a treaty on general and complete disarmament."
The
indefinite extension of the treaty, therefore, should in no way be interpreted
as legitimizing the continued existence of nuclear weapons, nor should it be
construed as permitting their use. The Decision number 2 on the Principles and
Objectives for Nuclear Non-Proliferation and Disarmament, adopted by the Review
and Extension Conference, affirms this point. Article 4 of this decision
stipulates the obligations of state-parties with respect to achieving nuclear
disarmament which is inherently linked to indefinite extension of the
Non-Proliferation Treaty. These commitments include:
- "The
completion by the Conference on Disarmament of the negotiations on a universal
and internationally and effectively verifiable comprehensive Nuclear-Test-Ban
Treaty no later than 1996,"[25]
- "The
immediate commencement and early conclusion of negotiations on a
non-discriminatory and universally applicable convention banning the production
of fissile material for nuclear weapons or other nuclear explosive
devices,"[26] and
- "The
determined pursuit by the nuclear-weapon states of systematic and progressive
efforts to reduce nuclear weapons globally, with the ultimate goals of
eliminating those weapons."
[27]
The
President of 1995 Review and Extension Conference clearly explained the
feelings of the participants in the conference in following terms: "All
wanted concrete steps taken towards nuclear disarmament and were emphatic that
the indefinite extension of the treaty was not a carte blanche
for the nuclear weapon-states to retain their monopoly over possession of these
weapons forever."[28]
5.
The Security Council Resolutions and Nuclear Weapons
The
Security Council Resolution 255(1968) "...recognizes that aggression with
nuclear weapons or the threat of such aggression against a non-nuclear state
would create a situation in which the Security Council, and above all its
nuclear weapon state permanent members, would have to act immediately in accordance
with their obligations under the United Nations Charter."
The
Security Council Resolution 984 adopted in 1995 "urges all states, as
provided for in Article VI of the Treaty on the Non-Proliferation of Nuclear
Weapons, to pursue negotiations in good faith on effective measures relating to
nuclear disarmament and on a treaty on general and complete disarmament under
strict and effective international control which remains a universal
goal."[29] This
resolution also gives non-nuclear states assurances from the nuclear states
that nuclear weapons will not be threatened or used against them.[30]
Therefore,
resolutions 255 and 984, at the very least, recognize the illegality of the use
of nuclear weapons against a non-nuclear weapon state. They also call for the pursuance
of negotiations in good faith for achieving complete nuclear disarmament.
Inclusion of 'good faith' both in Article VI of the Non-Proliferation Treaty
and in the Security Council Resolution indicates the high value attached to
good faith negotiations.
The
I.C.J. in the Continental Shelf Judgment described negotiations with 'good
faith' in following terms: "The parties are under an obligation to enter
into negotiations with a view to arriving at an agreement." The Court
further added "They are under an obligation so to conduct themselves that
the negotiations are meaningful, which will not be the case when either of them
insists upon its own position without contemplating any modification of
it."
[31]
To
say the least on the good faith negotiations, the words of nuclear weapon
states do not correspond with their deeds. In this respect, the Minister for
Foreign Affairs of Australia, in his statement before the Court on November 30,
1995, elucidated the aspects of the "continuous and profound developments"
in nuclear technology. It is difficult to believe proclaimed intentions of the
nuclear-weapon states to pursue negotiations with good faith, while witnessing
the ongoing endeavors to acquire ever more destructive, ever more deadly
nuclear technology, and ever more efficient delivery systems.
6.
Nuclear Weapons and the Law of Armed Conflict
6.1. The Effects of Nuclear Weapons
Although
the world has not experienced a large scale use of nuclear weapons, the
consequences of the first use of atomic bombs in Hiroshima and Nagasaki still
disturb the health and environment of those cities. WHO's 1987 study clearly
describes the gravity of the destructive force of nuclear weapons in comparison
to conventional weapons:
Qualitatively, the
difference between nuclear and conventional weapons is of ever greater
significance. In conventional weapons the two most lethal are blast and heat.
Blast and heat both cause injury and death when nuclear weapons are used, but
to an extent thousands of times greater. Nuclear weapons, however, also produce
additional lethal effects by radiation. Apart from the direct effects of
radiation, the radioactive materials from a nuclear bomb can be transported to
a great distance from the site of the explosion, as has recently been
demonstrated on a very much smaller scale by the accident at the nuclear power
plant in Chernobyl. Moreover, radiation from the fallout may be an obstacle to
rescue operations and effective care of injured survivors and have harmful or
lethal effects long after the explosion. Its deleterious effects may indeed
continue to be felt in future generations, long after hostilities would have
ended.[32]
6.2.
The Law of Armed Conflict
The
endeavor of the people of the world to avoid war and achieve peace is as old as
human history. Yet, despite the
categorical rejection of use or threat of use of force in accordance with the
Charter, armed conflicts continue to persist in international relations.
Therefore, the international community over the years has ventured to place
certain limitations on techniques and methods of war in order to bring
hostilities under control and make them more compatible with the governing
norms and principles of humanity. The objectives of the laws of armed conflict
are as follows: Limiting conflicts to combatants and avoidance of attacking
non-combatants; limiting conflicts to war zones and prohibiting attacks on
civilian areas; limiting devices of fighting; and finally, limiting conflicts
to the belligerent and prohibiting attacks on neutral powers. Thus far, many
declaration, treaties and conventions have been adopted, mainly in the Hague
and Geneva, codifying or setting a number of rules to achieve the
above-mentioned objectives.
6.3.
International Humanitarian Law
Among
these rules, the International Humanitarian Law has acquired particular
importance, and it is especially relevant to the current case before the
International Court of Justice. There are well established principles of
International Humanitarian Law, expressed in a variety of specific conventions,
that are widely regarded by states and publicists as part of customary
international law and applicable to wars on land, sea and air. They are
customary rules because their origins are found in the Hague rules, which
mainly codified the customary laws of war. These principles are neither new nor
established by protocols. As has been stated by the Secretary-General of the
United Nations: "Much of the conventional law of war has beyond doubt
become part of customary law."[33] Universal adherence to these rules by states
is another reason for their customary status. Moreover, the general principles
accepted through instruments relating to International Humanitarian Law, as has
been declared by the International Conference of the Red Cross, apply to
nuclear weapons as well.[34]
6.3.1.
Means of Injury Are Not Unlimited
Article
22 of the Regulations Annexed to the Hague Convention No. IV of 1907 provides
that the right of belligerent to adopt
means of injuring the enemy is not unlimited. This principle is reaffirmed in
Article 35(I) of the Additional Protocol I of 1977. The ban on extremely
inhuman weapons dates back to the 1868 St. Petersburg Declaration.[35]
Since then, a number of other weapons that cause unnecessary suffering have
been outlawed. For instance, the 1925 Geneva Protocol on the Prohibition of Use
of Chemical Weapons and the 1993 Convention on the Prohibition of the
Development, Production, Stockpiling and Use of Chemical Weapons and on their
Destruction can be mentioned.
The
burn and blast effects of nuclear weapons and their instant and long-range
aftermath, including genetic consequences, place them in the category of
weapons that cause superfluous and excessive destruction and anguish.
Therefore, use of these types of weapons would violate the above mentioned
principle of International Humanitarian Law.
6.3.2.
Discrimination Between Combatants and Non-Combatants
The
prohibition of weapons or tactics that cause indiscriminate harm between
combatants and non-combatants is another argument against the legality of the
use of nuclear weapons. Article 27 of
the Hague Regulations, Articles 22 and 24 of the Draft Hague Rules on Air
Warfare of 1923, largely accepted as customary law, and Articles 51 and 52 of
Additional Protocol I, all prohibit indiscriminate attacks.
If a
nuclear device with the yield of up to several megatons is delivered, in
practice it would be impossible to differentiate between combatants and
non-combatants. A convincing statement
of the indiscriminate nature of nuclear weapons is found in the preamble of the
1967 Treaty for the Prohibition of Nuclear Weapons in Latin America:
Nuclear
weapons, whose terrible effects are suffered indiscriminately and inexorably by
military forces and civilian populations alike, constitute, through the
persistence of the radioactivity they release, an attack on the integrity of
the human species and ultimately may even render the whole earth uninhabitable.
It
should be emphasized that use of both tactical and strategic nuclear weapons
will cause non-discriminatory destruction and injury. All types of nuclear
weapons release radioactivity which is destructive, detrimental to human being
and environment and their incalculable effects are uncontrollable. So called
"Micro-nukes", "Mini-nukes" and "Tiny-nukes", all
are considered to be weapons of mass destruction. Thus, their use irrespective
of type and size will constitute violation of this principle of International
Humanitarian Law.
6.3.3.
Belligerent Duties Under the Geneva Conventions
The
use of nuclear weapons inevitably will impair fulfillment of certain duties of belligerents under the
Geneva Conventions of 1949, and would also cause damage to legally protected
persons and property. These duties include, inter-alia: collection of wounded
or dead; individual burial; evacuation of prisoners; and the ban on exposing
prisoners to unnecessary danger; and, on protection of persons and property,
including wounded and sick members of armed forces, hospital ships and medical
transports.
6.3.4.
The Obligations of Belligerent Parties towards Neutral Powers
Given
the very high likelihood of fall-out being transmitted from the area of
conflict to the territory of such states, any use of nuclear weapons would
violate the neutrality rights of states not participating in the conflict. Hence, nuclear weapons, due to their
uncontrollable effects, constitute neutrality-violating devices par
excellence.
6.3.5.
Marten's Clause
"Marten's
clause, "which was developed by the St. Petersburg Declaration of 1868 and
later found a place in the Hague Rules and Geneva Conventions of 1949, along
with Additional Protocol I, provides that "In cases not covered by this
protocol or by other international agreements, civilians and combatants remain
under the protection and authority of principles of international law derived
from established custom, from principles of humanity and from the dictates of
public conscience." Thus the argument that prohibition of use of nuclear
weapons is not specifically mentioned in any international instrument seems to
overlook "Marten's Clause."
As
has been stated by Tokyo District Court in the Shimoda Case in 1963:
"Specific prohibitions embody a wider principle and this principle extends
to new weapons development not foreseen at the time when the prohibition was
agreed upon."[36]
6.3.6.
Use of Nuclear Weapons as a Grave Breach
Article
147 of the Fourth Geneva Convention has specified among others, commission of
acts against protected persons, serious injury to body or health, and extensive
destruction of property not justified by military necessity, as grave breaches
of the provisions of the Convention. Furthermore, in accordance with Article 89
of Protocol I, "Making the civilian population or individual civilian the
object of attack", and "launching an indiscriminate attack affecting
the civilian population or civilian objects in the knowledge that such attack
will cause excessive loss of life, injury to civilians or damage to civilian
objects" considered to be as "grave breaches" of the protocol
and of the convention and constitute "war crimes."[37]
Furthermore, Article 19 (3) (d) of the first part the International Law
Commission's project on state responsibility adopted by the commission in 1976,
classifies massive pollution of the atmosphere or of the seas as an
international crime of state.
Due
to uncontrollable deleterious effects of nuclear weapons, if they are used, it
will not be possible to distinguish protected persons and property from
civilian property and objects. Consequently, their use will form grave breaches
of the convention and of the protocol and will constitute "war
crimes."
7. Nuclear Weapons and the Environment
It is
quite clear that use of nuclear weapons will cause widespread, long-term and
severe damage to the natural environment.[38]
Thus, their use goes against Article 35(3) and Article 55 of the Additional
Protocol I of 1977 and Article 1 of the U.N. Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Techniques of
1977. It is quite pertinent to quote here again a paragraph from WHO's 1987
classic study, which is a concise and excellent illustration of the effects of
the use of nuclear weapons on health and the environment:
Less
quantifiable effects of nuclear war include atmospheric changes detrimental to
agriculture and the economy, not only in the countries where the war takes
place, but also in others not engaged in hostilities. Moreover, since the world
has never experienced a large-scale nuclear war, other unpredictable direct and
indirect effects cannot be excluded. Any assessment of the effects of a nuclear
war must therefore be attended by a high degree of uncertainty. However, on the
basis of the information derived from the explosions at Hiroshima and Nagasaki,
the tests of nuclear weapons and accidents at nuclear power plants, research in
radiation physics and biology, and earthquakes, fires, floods, volcanic
eruptions, and other natural disasters, it is possible to predict with
reasonable accuracy the main effects on people and their environment. Those
effects would not be limited to the people of the area where the bombs fell;
some of them would be felt by people throughout most of the world.[39]
The
above words explicitly indicate the magnitude of the effects of use of nuclear
weapons on the environment. There are two categories of law on the protection
of the environment. While environmental law entails protection of the environment
in general, the law of the armed conflict tends to protect unnecessary damage
to the environment in time of war, in particular.
7.1.
Environment and the Law of Armed Conflict
Both
the customary rules and the provisions of treaty law prohibit belligerent
parties, directly or indirectly, from inflicting unnecessary damage on the
environment. Parties to the armed conflict are obliged , in accordance with
well-established rules of customary law pertaining to armed conflict, to
protect the environment in time of armed conflict. These rules include
proportionality and the prohibition on military operations not directed against
legitimate military targets, as well as the prohibition of destruction of enemy
property not imperatively demanded by the necessities of war.
Prohibition
of the destruction of non-military enemy property, which is also a customary
rule, is included in the Hague Rules on Land Warfare: Article 23(g) of these
rules prohibits the destruction or seizure of enemy property "unless such
destruction or seizure be imperatively demanded by necessities of war."
In
addition to the obligation under customary law, parties to armed conflict are
obliged, in accordance with treaty law, to protect the environment in time of
war. Almost all states are legally bound by the Geneva Conventions of 1949, and
are committed to comply with them in an international conflict. Articles 53 and
147 of the Fourth Geneva Convention provide a degree of indirect protection for
the environment, in the context of protecting property rights in occupied
territories. Thus, an occupying power that destroys, for example, industrial
installations in an occupied territory, causing consequent damage to the
environment, would be in violation of the Fourth Geneva convention, provided
that such destruction is not justified by military necessity. If such
destruction is extensive, it would constitute a grave breach of the Convention,
or even a war crime, in accordance with the provision of Article 147.
Additional
Protocol I of 1977 also contains a number of articles relevant to the
protection of the environment. The articles of particular relevance are Article
35(3), which prohibits the employment of methods or means of warfare which
"are indeed, or may be expected to cause widespread, long term and severe
damage to the natural environment"; Article 55, which imposes an
obligation upon the states parties to be careful in conducting war in order to
protect the environment against such damage; Article 54, which protects objects
indispensable to the survival of the civilian population; and, article 56,
which protects certain works and installations containing dangerous forces.
Thus, consideration of the provisions of Protocol I leads to the conclusion
that it prohibits clearly (a) attacks on the environment and (b) use of the
environment as a tool of warfare. Since the use of nuclear weapons will have
above mentioned effects on the environment, therefore it will breach rules
pertaining to the protection of the environment.
Apart
from the above mentioned, there are other instruments that have indirect
relevance to the protection of the environment. For instance, the 1925 Geneva
Protocol on the prohibition of use of chemical and bacteriological weapons in
time of war is pertinent.
7.2.
The Law on the Protection of the Environment
It
must be pointed out that the general principles of customary international law
clearly contain specific rules pertaining to protection of the environment. A
fundamental rule of customary international law, incorporated in the Principle
21 of 1972 Stockholm Declaration, is the obligation of states not to damage or
endanger significantly the environment beyond their jurisdiction. There are a
considerable number of international and regional agreements that support this
rule, including among these, the United Nations Convention on the Law of the
Sea, the 1978 Kuwait Convention on the Protection of Marine Environment in the
Persian Gulf and Sea of Oman, the 1985 Vienna Convention on the Protection of
the Ozone Layer, 1992 Framework Convention on Climate Change, and the 1992
Convention on Biological Diversity.
The
Principle of Environmental Security, apart from the above mentioned agreements,
is included in the Principle 24 of the Rio Declaration on Environment and
Development which stipulates 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
co-operate in its future development, as necessary."
In
1991, Protection of the Environment in Times of Armed Conflict was included on
the agenda of the General Assembly. The Sixth Committee entrusted the
International Committee of the Red Cross to carry out a study on the subject
and report to the General Assembly. The I.C.R.C. organized a meeting of experts, and
summarized the conclusions of its study in a report to the Secretary General as
follows:
The
idea of creating an entirely new body of international rules for protection of
the environment was ruled out. Most experts insisted on the importance of
existing law, while acknowledging that there were a number of gaps in the rules
currently applicable. The first step, therefore, was to ensure that even more
states accede to or ratify existing treaties, that they observe their existing
obligations and, at the same time, enact coordinate domestic legislation."[40]
This
conclusion of the I.C.R.C., which was confirmed by the Sixth Committee,
undeniably, covers the protection of the environment against the use of nuclear
weapons.
8.
Use of Nuclear Weapons and Public Conscience
As
provided in Marten's Clause, a customary rule of international law, in cases
not covered by international instruments, civilians and combatants "remain
under the protection and authority of principles of international law derived
from established custom, from principles of humanity and from the dictates of
public conscience." Since the case before the Court has vital importance
as it is linked to the destiny of the human race, the Court needs to endeavor
to determine the law on the subject. To this end the Court is authorized in
accordance with Article 38(d) of its Statute to apply "subsidiary means
for determination of law."
8.1.
Existence of Opinio Juris
It
can convincingly be argued that there exists an Opinio Juris on the
cruel and inhuman nature of nuclear weapons as well as on the prohibition of
their use as violating the generally accepted principles of International
Humanitarian Law. A scrutiny of statements, draft rules, declarations,
resolutions, and other communications expressed by governments and highly
qualified persons and institutions leads to the conclusion that a rule
concerning prohibition of the use of nuclear weapons, as professor Abi-Saab
mentioned before the Court, is in the "process of crystallization."[41]
8.1.1.
Expression of Opinio Juris through Declarations of General Assembly
A
number of resolutions adopted by the General Assembly of the United Nations
during its fifty years life, have called for the non-use of nuclear weapons and
prevention of nuclear war. For instance the "Declaration on the
Prohibition of the Use of Nuclear and Thermonuclear Weapons" adopted in
1962,[42] and
the Resolution on Non-use of Nuclear Weapons and Prevention of Nuclear War, adopted
in 1981, could be mentioned.[43]
These resolutions, certainly, reflect the views of the governments concerning
abhorrence and illegality of the use or threat of use of nuclear weapons.
8.1.2.
Immediate Reaction Following the First Use
In
reaction to the use of nuclear weapons by the United States after the bombing
of Hiroshima, the Japanese Government strongly protested the "killing and
injuring in one second a large number of civilians and destroying a great part
of the town." The note of protest recalls "an elementary principle of
International Public Law that in time of war the belligerent do not have
unlimited right in the choice of the means of attack and that they cannot
resort to projectile arms or any other means capable of causing the enemy
needless suffering."[44] This
note of protest makes it clear that "the bombs on question used by
Americans, by their cruelty and by their terrorizing effects, surpass by far
gas or any other arm, the use of which is prohibited by treaties for reasons of
their characteristics"[45] and
calls it "a new crime against humanity and civilization."[46]
Furthermore,
immediately after the Hiroshima and Nagasaki bombings of August and September
1945, the I.C.R.C., in a circular letter to national Red Cross societies
stated: "It is realized now, somewhat late, that the massive bombardment
of cities did not pay from a military standpoint. Such bombardments were not
justified either morally-legally or even from a practical point of view. Most
jurists now consider that the use of atomic bombs is contrary to law."
Therefore, following the first and only use of nuclear weapon, the consensus in
the international community, clearly establishing Opinio Juris, was that
the use of atomic bomb constituted a clear violation of international law.[47]
8.2. Impermissibility of Nuclear Weapons Based on
Other Sources of Law
At
its Edinburgh Conference of 1969, the Institut de Droit International adopted a
resolution on "the distinction between military objectives and
non-military objects in general and particularly the problems associated with
weapons of mass destruction." This resolution particularly prohibits
"the use of weapons, the destructive effect of which is so great that it
cannot be limited to specific military objectives or is otherwise uncontrollable."[48]
The
Nuclear Free Zone treaties that have been concluded in three regions of the
world are a clear examples of the conviction and commitment of the states of
these regions to the prohibition of use, testing, manufacturing, production and
acquisition of these types of weapons.[49] It
must be added that there are ongoing endeavors, in and outside the United
Nations, for declaring certain other regions of the world as nuclear weapons
free zones. Obviously, due to political reasons, these objectives have yet to
be realized.
Non-Aligned
States on various occasions have repeatedly called for nuclear disarmament on
the grounds that the use of nuclear weapons would be a crime against humanity.
For instance, while speaking on behalf of the Non-Aligned countries before the
First Committee of the General Assembly in 1993, Ambassador of Indonesia
stated: "The advent of nuclear weapons has added a new and frightening
dimension to the potentialities for world catastrophe. Their possession
constitutes an unprecedented threat to human society and civilization. For what
is at stake is the most fundamental right of humans and nations which is the
right to their survival." He continued by stating that "the
immorality and illegality inherent in the present situation can no longer be
perpetuated."[50]
9. Conclusion
It is
pertinent to recall Aristotle's unsurpassed definition of war: "The aim of
all war is peace." In this definition he underlines, on the one hand, that
war is an interruption, a temporary replacement of normalcy, or the explosion
of a gradually developed disequilibrium, that must result in a new normalcy. On
the other hand, Aristotle's dictum also describes the overall philosophy of the
20th century's law of war, and suggest that within a relatively short
historical perspective, every war will come to an end.
Hence,
in the law of U.N. Charter which provides a general prohibition of resort to
force except in self-defense, even such legitimate use of force must be
conducted in accordance with laws of war, and
with the post war situation in mind. It must not lead to disorganization
so great as to ruin even the defeated. Article 40 of Additional Protocol I
prohibits exactly what the use of nuclear weapons will cause. It prohibits
"to order that there shall be no survivors, to threaten an adversary
therewith or to conduct hostilities on this basis." Given the
uncontrollable nature of the effects of the use of nuclear weapons, it is quite
clear that their use is not aimed at achieving peace but, to destroy everything.
Thus,
the International Court of Justice should confirm the common belief of every
sensible human being, and declare the threat or use of nuclear weapons as
illegal and unjustifiable. Certainly, an opinion of the Court in this respect
would reaffirm fundamental principles of International Law; would constitute a
major step towards achieving the noble objectives of the Charter; will assist
the requesting bodies in discharge of their functions; will serve as an
instrument of preventive diplomacy and, will help eliminate conditions that may
lead to the repetition of catastrophes which will clearly be far more
horrifying than Hiroshima and Nagasaki disasters.
[1]This paper formed the
basis of the oral presentation by Dr. M. Javad Zarif before the ICJ on behalf
of the Islamic Republic of Iran.
[2]Dr. Zarif is the
Deputy Foreign Minister of the Islamic Republic of Iran for International and
Legal Affairs. Dr. Momtaz is Professor
of International Law at Tehran University.
Dr. Mirzaee is the Director of the Department of Legal Affairs at the
Iranian Foreign Ministry.
[3]The states
participating in the hearing of the Court were Australia, Costa Rica, Egypt,
France, Germany, Indonesia, Iran, Italy, Japan, Malaysia, Marshall Islands,
Mexico, Nauru, New Zealand, the Philippines, Qatar, Russian Federation, Samoa,
San Marino, Solomon Islands, United Kingdom, United States.
[4]I.C.J. Reports, 1950, p. 71.