By Linda Kaucher
This year, the International Court of Justice (ICJ) could declare the use, and threat of use, of nuclear weapons illegal, as a result of the United Nations General Assembly's December resolution to refer the question to the court. The court's advisory opinion could come before the end of this year, the 50th anniversary of Hiroshima and Nagasaki.
If the World Court decides this way, the anomaly of having no such judgment on nuclear weapons, when less potent biological and chemical weapons are banned by international conventions, may take a step towards resolution.
It would challenge the inconsistency between the nuclear powers' claim to the right to have a nuclear deterrent while denying this right to other countries (barring Israel), a situation that the Non-Proliferation Treaty (NPT) accommodates.
Such a decision would also question the right to permanent membership of the UN Security Council, which presently rests, unstated, on the possession of nuclear weapons.
The possible outcomes of the General Assembly's referral include a court decision for legality, illegality, or that the use and threat of use of nuclear weapons are legal in some circumstances.
The court could also decline to deal with the question. The ICJ's 15 judges will be under great pressure to drop the case because almost any judgment would cause grave problems for the nuclear weapons states.
An advisory decision of illegality would not be mandatory, but would cause enormous problems for those in charge of nuclear weapons and would put considerable legal and moral pressure on nuclear states to disarm.
In Britain, with its Polaris and Trident nuclear arsenal, the Manual of Military Law states: "If a person ... receives an order to do some act that is manifestly illegal, he is bound under a legal duty to refuse to carry out that order".
A decision of legality would damage the reputation of the ICJ and question its viability because weapons that cause needless suffering, violate neutral states, use poison or cause widespread, long-term and severe environmental damage, are already forbidden. A decision of legality would indicate that nuclear doctrines had taken over the law. However, this would force the nuclear powers to decide between a free-for-all situation or a nuclear weapons convention.
If the ICJ decided that use and threat of use is legal under some circumstances, it would likewise undermine the ICJ's credibility.
In April in New York the nuclear powers will be seeking to extend the Non-Proliferation Treaty. The Non-Aligned Movement will seek a limited extension of the NPT, which would allow for more pressure to be placed on the nuclear powers to disarm.
A deadlock on the NPT in April would warrant a delay until after the ICJ had made its decision. An indefinite extension of the NPT would indicate that the international community supported an indefinite continuation of the present situation.
Australia abstained from the General Assembly resolution in December, along with 24 other countries; 78 states supported the resolution and 43 voted against it. Aotearoa /New Zealand was the only Western country which voted for it. It was strongly supported by South Pacific and Asian nations. The debate elicited a hysterical response from France regarding the "right" to choose its own means of defence.
According to New Zealander Kate Boanas-Dewes, who was encouraging submissions and positive votes at the UN, small nations were subjected to arms aid bribery and aid and trade threats before the vote.
Although states will make their submissions to the ICJ, international law permits anyone, or any organisation, to make a "Declaration of Public Conscience" stating why they believe nuclear weapons are against the laws of humanity. These can be sent directly to the ICJ or the UN General Assembly, bypassing governments. Many thousands of declarations have been sent, as part of the World Court Project, particularly from the UK and NZ. Only a few thousand have been sent from Australia.
The World Court Project (WCP) was started in May 1992 by International Physicians for the Prevention of Nuclear War, the International Peace Bureau and the International Association of Lawyers against Nuclear Arms.
Rob Green, a former commander and nuclear bomber navigator in the UK Royal Navy who is now working on the World Court Project, visited Australia recently to speak. In the UK, he said, the WCP is inviting foreign affairs and defence officials to an off-the-record seminar on the possible outcomes from the ICJ, to encourage the government to consider contingency plans.
For further information on the World Court Project, contact People for Nuclear Disarmament on (02) 319 4296, or at 499 Elizabeth St, Surry Hills NSW 2000