The Decision
When the Court gave its decision on 8 July 1996, it prompted a flurry of claims and counter claims.Some nuclear weapon states said that their policies were in accordance with the decision; most others claimed the opposite. The confusion arose because the judges failed to condemn nuclear weapons absolutely. While stating that the threat or use of nuclear weapons would generally be illegal, the Court concluded that it could not rule definitively on whether such illegality would hold “in an extreme circumstance of self defense, in which the very survival of a state would be at stake.”
The nuclear weapons states then argued that they only intend to use nuclear weapons in extreme circumstances. Other commentators responded that the nuclear weapon states were conveniently ignoring a unanimous holding by the ICJ, namely that a threat or use of nuclear weapons “should also be compatible with the requirements of international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law”. This holding would apply in all circumstances, even extreme ones.
Ann Fagan Ginger51 sets out these principles and rules of international law, which include a prohibition on using weapons which are indiscriminate, violate neutral territory, cause long-term and severe damage to the environment, cause unnecessary suffering or are disproportionate to the act of provocation. Ginger argues that any nuclear weapon currently in existence, if used, would violate some or all of these rules.
The Court itself appeared to agree when it stated it did not have enough evidence to conclude that the use of smaller nuclear weapons could possibly be legal. Ginger argues therefore that the “hole” presumably opened by the Court’s indecision on the extreme circumstance situation, actually leads to “an impenetrable wall of steel” covered by the unyielding prohibition on the threat or use of weapons which would violate humanitarian laws of warfare.
Japanese Professor of International Law Terumi Furukawa likens the Court’s decision to that of Portia in Shakespeare’s The Merchant of Venice. After finally accepting Shylock’s persistent claim to cut off a pound of flesh nearest the heart, Portia declares that such an act is allowed only if “This bond doth give thee no jot of blood,” thus making the act impossible.
More important is the fact that virtually all of the nuclear weapons deployed by the nuclear weapon states are not “small” mini-nukes, but strategic weapons with explosive powers many times that of the bombs that destroyed Hiroshima and Nagasaki.52 Therefore, using theseweapons could not possibly be “compatible with the requirements of international law.”
Regardless of whether or not there may possibly be a legal use of a small nuclear weapon in an extreme circumstance, the duty, as unanimously declared by the court, is for states to negotiate for their elimination. John Burroughs53 argues that the current policies and practices of the nuclear weapon states violate this duty.
Influence on individual states
The main response of the nuclear weapon states, as expected, was to claim that their policies did not violate the ICJ decision. However, there is evidence of some influence on the United Kingdom government, which acknowledged the status of the Court and has since made some changes to policy and practice. These include standing down its nuclear weapons from high alert, making a commitment to a nuclear weapons convention,54 and undertaking a study on verification for the elimination of nuclear weapons.55
In the US a group of congressional members, encouraged by constituents who were part of the WCP, drafted a letter to President Clinton asking him to comply with the ICJ opinion by initiating a review of nuclear policy.56 This was followed by a draft resolution citing the ICJ opinion and calling on the President to implement it by initiating negotiations for a nuclear weapons convention.57
The decision had a more immediately tangible influence on non-nuclear states, emboldening them to call more stridently for the NWS to achieve nuclear disarmament and, in the interim, to change their nuclear doctrine.
The day after the ICJ delivered its decision, Philippines President Ramos welcomed the decision and called on NPT members to convene immediately to “negotiate a comprehensive Nuclear Weapons Convention pursuant to their obligation and responsibility under Article VI.”58
The decision prompted Canada, a member of the NATO nuclear alliance, to implement a review of its nuclear weapons policy in light of the Court’s conclusions. Moreover, the government involved public participation in the review, influenced most likely by the high level of public interest and participation in the WCP.59
Canberra Commission
Another collaborative initiative between governments and NGOs that was influenced by the World Court Project was the Canberra Commission on the Elimination of Nuclear Weapons. The Australian government came under considerable pressure from its peace movement to make a disarmament initiative when it failed to support the UN resolution requesting the ICJ advisory opinion in 1994. Parliamentarians and activists recalled the rationale offered by the government that such an opinion could upset negotiations on the CTBT. However, when France resumed nuclear testing in the Pacific in 1995, this rationale appeared ludicrous. The huge anti-testing protests that erupted were directed as much against the Australian government for its weakness as against the French government for the testing.
This appeared to be one of the main motivating factors for the government to launch the Canberra Commission. To its credit, the government appointed a sterling commission comprising leaders from military, civilian, scientific and non-governmental communities.60
In its report the Commission:
“noted with satisfaction the response of the International Court of Justice made in July 1996 to a request from the General Assembly of the United Nations for an advisory opinion on the legality of the threat or use of nuclear weapons. The Court's statement that there existed 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 is precisely the obligation that the Commission wishes to see implemented.”61
The Commission developed a disarmament plan that later served as a basis for the New Agenda Declaration (see below). The plan called on the NWS to give the lead by committing themselves, unequivocally, to the elimination of all nuclear weapons. It also outlined immediate disarmament steps including:
Taking nuclear forces off alert
Removal of warheads from delivery vehicles
Ending deployment of non-strategic nuclear weapons
Ending nuclear testing
Initiating negotiations to further reduce United States and Russian nuclear arsenals
Agreement amongst the nuclear weapon states of reciprocal no first use undertakings, and of a non-use undertaking by them in relation to the non-nuclear weapon states,
and reinforcing steps including:
Action to prevent further horizontal proliferation
Developing verification arrangements for a nuclear weapon free world
Cessation of the production of fissile material for nuclear explosive purposes.
Influence in international arenas
Following the Court’s decision the United Nations and the European Parliament adopted resolutions calling for its implementation through the immediate commencement of negotiations leading to the conclusion of a nuclear weapons convention (treaty) which would prohibit the development, testing, production, stockpiling, transfer, use and threat of use of nuclear weapons and provide for their elimination.62
The resolutions arose from the connections and relationships built between governments and NGOs during the World Court Project. LCNP, whose President was on the Malaysian legal team for the case, helped Malaysia draft the resolution and lobby for its adoption at the UN. Many of the co-sponsoring states had worked on the case with LCNP and other WCP members.
The ICJ decision and the follow-up UN resolution also empowered Abolition 2000 (A2000), a global movement now numbering over 2000 organizations, which was formed during the ICJ hearings63. A2000’s principal call is for the immediate commencement of negotiations on a nuclear weapons convention (NWC).
In 1997 the United Nations circulated a Model Nuclear Weapons Convention, submitted by Costa Rica in order to assist in the implementation of the ICJ decision and the UN call for negotiations leading to a NWC.The Model NWC had been drafted by a consortium of lawyers, scientists and disarmament experts led by the Lawyers’ Committee on Nuclear Policy. Costa Rica explained that the Model NWC sets forth “the legal, technical and political issues that should be considered in order to obtain an actual nuclear weapons convention.”64
The UN Secretary-General circulated the Model NWC for states to consider.65 It has also been the subject of a number of scientific, academic and diplomatic conferences in the UK, China, Geneva, New York, Canada and India, and stimulated further consideration in the 2000 Non-Proliferation Treaty Review Conference of the steps towards nuclear disarmament and the elements of a nuclear weapon free regime.66
Influence on peace activists
Citizens in nuclear weapon states and in the states where nuclear weapons are deployed, have been inspired by the World Court opinion to take action against nuclear weapons at their sites of production, testing, deployment and control.
Modeled on the inspections conducted by the United Nations Special Committee on Iraq’s weapons of mass destruction (UNSCOM), groups of “citizen weapons inspectors” have attempted to inspect nuclear weapons facilities in order to determine whether or not they are in compliance with international law as determined by the International Court of Justice. Some weapons inspectors have been arrested for breaking into nuclear facilities after access has been denied. Some activists have gone further and committed symbolic acts of “disarmament” on nuclear weapons and their systems and then been arrested and charged with crimes such as conspiracy and damage of government property. In the court cases, the defendants argue that they had a duty to conduct such acts to uphold international law even if they had to break domestic law to do so. They cite the Nuremberg Principles, which state that, with respect to war crimes and crimes against humanity, an individual is required to refuse superior orders or domestic regulations if they are in opposition to international law. Such defense has had varying degrees of success in the Courts. While some defendants have been convicted and sentenced to prison terms, others have been acquitted. An acquittal by a Scottish court in October 1999 of three women who damaged equipment for the UK Trident nuclear weapons system67 led to the Scottish Parliament debating whether nuclear weapons are illegal and should thus be removed from the UK