The threat to humanity's existence posed by nuclear weapons has encouraged humans the world over to consider new strategies for influencing their governments. One of these initiatives-the movement to "illegalize" nuclear weapons-may increase participation in new governing structures being created to address global problems. The World Court Project is thus taking its place in the forefront of the antinuclear movement.
Nuclear weapons have never been explicitly declared legal, yet many people argue that they are so.
In two earlier columns, I argued for the inherent illegality of nuclear weapons. Under humanitarian law, such as the Geneva Conventions, nuclear weapons are not considered valid tools of warfare because they do not discriminate in the violence and destruction that they cause. Under the Nuremberg Principles, nuclear weapons' use is a crime against peace, a war crime and a crime against humanity.
More recently, concerned leaders have drafted treaties either to reduce the number of nuclear weapons or to eliminate certain types of these arms. The proliferation of such treaties, however, has had minimal effect on the proliferation of the weapons themselves.
To crystallize a united front against nuclear weaponry, several non-governmental organizations (NGOs)-especially the International Peace Bureau, the International Association of Lawyers Against Nuclear Arms and the International Physicians for the Prevention of Nuclear War-have established a World Court Project. These NGOs have successfully lobbied the "non-aligned" members of the United Nations General Assembly and the U.N.'s World Health Organization to establish, according to customary international law, the illegality of nuclear weapons.
The WHO issued a resolution in May 1993 requesting the U.N.'s International Court of Justice to prepare an advisory opinion about the legality of the use of nuclear weapons. In a separate action, in December 1994, the General Assembly adopted a resolution requesting the International Court of Justice (ICJ) to issue an advisory opinion on both the threat to use and the use of nuclear weapons.
The ICJ decided to consider both resolutions simultaneously. Consequently, the ICJ has recently heard oral arguments on both issues from U.N. member-states and from the WHO's legal counsel. No individuals or NGOs were allowed to present arguments. The 25 member-states that asked to make presentations and the WHO representatives were each allotted about one-and-a-half hours.
Although the ICJ could have made its ruling as soon as all the governments had presented their evidence (by the middle of November), we will probably have to wait until the new year before we have the Court's advisory opinion.
Humanity could have rendered a decisive and compulsory opinion-immediately after the atomic bombings in 1945-that the threat of use or use of nuclear weapons violates human rights, world law, moral teachings and rational thinking. But national governments, reeling in the aftermath of the war, were not ready to take a stand against the only government that has ever used nuclear weapons in war.
Now, it seems, many governments are willing to take this stand. For example, Australian representative Gareth Evans told the Court: "Nuclear weapons are by their nature illegal under customary international law, by virtue of general principles of humanity. It is therefore illegal not only to use or threaten use of nuclear weapons, but to acquire, develop, test, or possess them." The mayors of Hiroshima and Nagasaki, as members of the official Japanese delegation, spoke out against nuclear weapons despite their government's plea to refrain from arguing on behalf of the weapons' illegality. Hiroshima Mayor Takashi Hiraoka said, "The use of nuclear weapons is clearly contrary to the spirit of humanity that gives international law its philosophical foundation."
Despite such bold statements from allies of nuclear-weapons states, it is somewhat uncertain whether the Court will even adjudicate the issue, due to objections raised by the nuclear weapons powers: China, France, Russia, Britain and the United States. All have challenged the Court's jurisdiction to hear the matter.
David Krieger, president of the Nuclear Age Peace Foundation, said, "The U.S. and other nuclear powers are asking the ICJ not to accept jurisdiction because, they argue, this is a political question and not a legal one." A ruling on the merits of the legality or illegality of nuclear weapons will not occur unless the ICJ determines that the oral arguments have presented a question of international law, rather than a political question for governments to hash out, or a hypothetical question that cannot be adjudicated apart from actual nuclear engagement.
Mexico's U.N. representative Sergio Gonzalez Galvez assessed to that latter scenario in this way: "To postpone giving a legal opinion on the threat of use of nuclear weapons until an actual case occurs is like substituting medicine with an autopsy."
The nuclear powers further argued that even if the Court were willing to rule on the merits of the case, it would have to rule in favor of the nuclear weapons' legality. Some of these nations' representatives claimed that nuclear deterrence is what has maintained "international peace and security" since the end of World War II. These representatives disregard the hundred or so wars that have been fought since the atom-bombing of Hiroshima and Nagasaki. And each of those conflicts proves that the threat of nuclear weapons has not deterred governments from initiating warfare.
As we go to press, the ICJ has yet to hear all the oral arguments on each side.
In part two of this column, I will discuss the ongoing nuclear testing by China and France and how individuals and NGOs can take global action to eradicate nuclear weapons. If the ICJ hands down its decision by then, I will also report on the Court's opinion.
David Gallup is the General Counsel of the World Service Authority.