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DISARMAMENT: Groups Seek World Court Opinion on Nukes

Thalif Deen

UNITED NATIONS, May 11 2009 (IPS) - A coalition of international non-governmental organisations (NGOs) is seeking an advisory opinion from the International Court of Justice (ICJ) – the second in 13 years – on the legality and use of nuclear weapons.

Christopher Weeramantry, a former ICJ judge and president of the International Association of Lawyers Against Nuclear Arms (IALANA), says more than a decade has passed since the Court unanimously declared that nuclear weapons have the "potential to destroy all civilisation and the entire ecosystem of the planet."

Based in The Hague, Netherlands, the Court is the principal judicial organ of the United Nations. Its 15 judges are elected for nine-year terms by the General Assembly and the Security Council.

Although the ICJ pronounced against nuclear weapons, there has been a continued readiness not only to develop them but also to maintain existing arsenals.

The five declared nuclear powers are the United States, Britain, France, China and Russia, while the three undeclared powers are India, Pakistan and Israel. Both Iran and North Korea are on the sidelines.

The July 1996 opinion said that "there exists 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."

The organisations seeking a new ICJ advisory opinion include IALANA and the International Human Rights Clinic at Harvard Law School.

The move is being backed by the Lawyers Committee on Nuclear Policy (LCNP) and International Physicians for the Prevention of Nuclear War.

"Given the failure to act and ongoing debates about what conduct is legally required for states to meet the good faith negotiation obligation, it is time to return to the Court to obtain guidance for the disarmament enterprise and to ensure that the legal obligation is effectively implemented," says a legal memorandum submitted by the groups.

The 192-member U.N. General Assembly, however, would have to adopt a resolution asking the ICJ to provide an opinion. This is what was done for the first opinion on nuclear weapons back in 1996.

John Burroughs, executive director of LCNP, told IPS the first opinion has been far more influential than is commonly realised.

There is very wide acceptance of the ICJ's unanimous conclusion that Article VI of the Nuclear Non-Proliferation Treaty (NPT) requires states to pursue and to conclude negotiations on complete nuclear disarmament.

"That is, there is not only a duty to make best efforts through negotiation, there is a duty to succeed through negotiations in eliminating nuclear arsenals," he added.

In votes on the annual General Assembly resolution following up on the ICJ resolution, there have also been votes on separate paragraphs welcoming the ICJ conclusion regarding the nuclear disarmament obligation.

Burroughs said almost all countries, including India and Pakistan, have voted for that paragraph. Only three countries have voted against it: the United States, Russia and Israel.

In the legal memorandum making a case for a second ICJ opinion, the two groups say that because of conflicting views and failures of implementation, the world is in need of clear guidelines as to what state behaviour is required to meet the nuclear disarmament obligation.

The long-promised complete nuclear disarmament, which the ICJ referred to in its 1996 advisory opinion, is not only a political commitment but also a binding legal undertaking.

"Therefore, the ICJ, as the principal organ of the United Nations, should be called upon to articulate much-needed legal guidance resolving current controversies over how to implement the obligation," says the memorandum. "It should provide the world community with the insights needed to turn the promise into reality."

Weeramantry points out that recent statements at the highest international and national levels have raised hopes that the goal of total elimination of nuclear weapons "is not illusory but within reach".

Among these are Secretary-General Ban Ki-moon's five-point proposal for progress on disarmament announced in October 2008 and U.S. President Barack Obama's categorical statement in Prague in April pledging "America's commitment to seek the peace and security of a world without nuclear weapons."

"The fact that the goal of a nuclear-free world is altogether attainable renders it all the more imperative that the route prescribed by the Court should be meticulously followed," he added.

And the 2010 NPT Review Conference, whose two-week long preparatory meetings conclude Friday, "offers an outstanding opportunity to pursue this objective," Weeramantry added.

Burroughs told IPS that the 1996 ICJ opinion has filtered into public and professional discourse.

He said it is taught as part of a course on law of armed conflict in West Point, the U.S. military academy.

What IALANA and the International Human Rights Clinic at Harvard Law School are recommending is that the General Assembly seek clarification from the Court on the legal implications of the disarmament obligation.

Burroughs said among the questions proposed were whether compliance in good faith with the disarmament obligation requires immediate commencement of multilateral negotiations leading to the total elimination of nuclear weapons within a time-bound framework.

This is a position held by a large majority of governments, but refused by some nuclear weapons states.

Another question: Would a lack of compliance in good faith with the obligation be demonstrated by planning and implementing long-term retention, maintenance, and modernisation of nuclear arsenals, delivery systems, and supportive technical complexes?

"Today the nuclear weapon states are investing large sums in, and planning for, maintaining nuclear forces for decades to come," he said.

This hardly seems compatible with an intent to achieve disarmament, he added. But the Court can comment on the legal aspects of this problem.

Another question: Does the obligation apply to all states – thus including states outside the NPT, notably India and Pakistan?

The Court's 1996 opinion leaves this question open. Some of the judges, including President Mohammed Bedjaoui, in their separate opinions said, yes the obligation does apply to all states.

The Court could clarify this important matter, Burroughs said.