One of the great fears that face humanity nowadays is related to the question of whether our species is going to stand the test of time, or go extinct like many others. From the many versions of how our civilization is going to end, the greatest fear of all is self-destruction through the use of nuclear weapons. Nuclear apocalypse was and is still present in the imagination of our cultures. As a result of that, one would expect the international community to have a very firm view on the illegality of the use of such weapons of mass destruction. Surprisingly enough, the International Court of Justice in its advisory opinion on the threat or use of nuclear weapons was actually inconclusive. I am going to argue against this ambiguous opinion of the ICJ. I am going to clarify the reasons why the ICJ’s opinion should have been definitive on the illegality of the threat or use of nuclear weapons no matter what. Although this advisory opinion was in July 1996, I think we need to reemphasize the issue again. The reason for this is that we are living in a more insecure world. There is more Climate Change problems which are affecting the economies of many countries. Also there are more religious and political conflicts. All of this sets the world for more competition and more rivalry, which should make us wary of the danger of the existence of nuclear weapons.
According to the advisory opinion of the ICJ, the threat or use of nuclear weapons is generally contrary to the principles of the international law with the exception of the extreme cases of self defense. This is demonstrated in point (E) of the second clause of the dispositif;
It follows from the above-mentioned requirements that the threat
or use of nuclear weapons would generally be contrary to the rules
of international law applicable in armed conflict, and in particular
the principles and rules of humanitarian law;
However, 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
The controversy of the point of extreme case of self defense is clarified by the voting on this clause, as it was seven votes to seven by the president’s casting vote. This controversy one would expect from a political discussion not in an opinion of the ICJ. This point is the main direction of my critique, but there is also point (B) in the same clause in which the court states that;
There is in neither customary nor conventional international law
any comprehensive and universal prohibition of the threat or use
of nuclear weapons as such
From the court’s point of view the fact that nuclear weapons have grave effects on the environment does not conclude the total ban of their use in certain circumstances. It is because the environmental concerns can possibly be tolerated if there exists the requisite military necessity. We can accept this if the effects of nuclear weapons are of limited effect and can be contained, but it is obvious that the effects of nuclear weapons cannot be controlled. These effects are of great and massive effects not preceded by any other type of weaponry. Thus their effects on the environment do not concern just the parties involved in the conflict; they involve the whole planet.
According to the ICRC, international humanitarian law bans the use of weapons which cause superfluous injuries or unnecessary suffering by their nature. Although IHL does not explicitly ban the threat or use of nuclear weapons, but the very nature of these weapons contradicts with the ban of superfluous or unnecessary suffering. The use of nuclear weapons also contradicts with the principles of protecting civilians in armed conflicts, as they do not discriminate in their destruction. This is because even if they are targeted in a way to only achieve military objectives, their effects such as radiation cannot be controlled. They might also violate the right of neutrality, as they might harm other states that are not party to the conflict.
As for the point of using nuclear weapons in self defense, it is known that any state in using its legitimate right of self defense has to follow the principles of necessity and proportionality. The ICJ does not clarify in its opinion the difference between the extreme case of self defense and the normal case. This is a new type of classification originated by the court. Perhaps the court meant to explain this by inserting the phrase ‘when the very survival of the state is at stake’, but even this is a very vague statement. It can be interpreted differently which contradicts with the purpose of the advisory opinion. May be what is meant is the case when the state is facing a nuclear attack. In that case, I do not see the reason for the probable legality for their use of nuclear weapons as a means of defense. Nuclear weapons by their nature can only be used for offense. If we assume that a state is being attacked by a nuclear weapon, how can it use a nuclear weapon to defend itself? It would be an act of reprisal that is not allowed by international law. The argument that an attacking state will learn that it will be equally damaged if it uses a nuclear weapon is not a good argument or else we can use it to justify any reprisal actions.
My critique can be wonderfully represented in the dissenting opinion of judge Weeramantry in which he states;
My considered opinion is that the use or threat of use of nuclear weapons
is illegal in any circumstances whatsoever. It violates the fundamental
principles of international law, and represents the very negation of the
humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23 (a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.
He is on the firm ground that the court should have settled the legal question in favor of banning the threat or use of nuclear weapons under any circumstances.
In conclusion, the topic in question clearly shows the indeterminacy of international law on the matter, which clearly shows the need for a direct global cooperation on the general ban on the threat or use of nuclear weapons under any circumstances. The use of such weapons is not of the concern of the individual wills of states, it is a matter of global importance and the political consideration should be put aside in such an issue that involves the survival of our species and our whole planet.