The Advisory Opinion Of The Icj On The Legality Of Essay

This essay has a total of 2681 words and 9 pages.

The Advisory Opinion Of The Icj On The Legality Of Nuclear Weapons

One of my first memories is a beautiful warm summer night, sitting in the garden with my
grandfather, looking up to the stars. Then my grandfather started to talk about two
powerful men in the world, who have all the capability just by pushing two buttons to
destroy the entire planet. The bombs would come with great light and unbearable heat and
there would be nowhere to hide. Everybody and everything would be destroyed. I remember
the shock I felt, I could not understand why would somebody want to destroy me. This was
precipitation of the Cold War in a remote village of Eastern Europe. With the end of the
Cold War the whole international climate seemed to change fundamentally. The theory that
there is no stronger basis to human coexistence than "genocidal fear" was weakened. The
arms race ended and it seemed clear that we are at crossroads. Disarmament was a political
reality for the first time since the bomb was created. It soon became clear however, that
there was no real political intention to do so. Security continued to be identified by
nuclear strategy. It turned out also that the cease of enmity between the superpowers did
not turn the world into a peaceful heaven. The last decade of this century has been just
as violent as the previous ones, with the major conflict situations in Yugoslavia and the
Gulf and several bloody conflicts in different third world countries. It seemed also that
the international community's attention had been averted from the question of disarmament.
The question of nuclear weapons came back to the picture when allegations were spread in
the media about Iraq having or almost having weapons of mass destruction; chemical and
biological weapons and maybe nuclear weapons. This exposed the vulnerability and the
imperfectness of the present regime of monitoring proliferation of nuclear weapons.The
nuclear tests by France, India and Pakistan also showed that we are still leaving in a
world of a possible nuclear war. The spread of the weapons of mass destruction to
officially non-nuclear state mean also a higher risk that it is actually going to be used-
intentionally or by accident. In this tense environment the United Nations General
Assembly (UNGA) adopted a resolution requesting the International Court of Justice (ICJ)
to render its Advisory Opinion on the following question: "Is the threat or use of nuclear
weapons in any circumstances permitted under international law?" In many respects both the
question and the Court's actual opinion are of historical importance. The ICJ dealt with
the question despite the fact that most nuclear weapon states held that the Court has no
jurisdiction on the matter.Basically, the court concluded, that the threat or use of
nuclear weapons (without drawing any distinctions between the two) falls under the
principles and rules of jus in bello, particularly international humanitarian law, and
thus it is generally unlawful- because it fails to comply with the requirements of its
rules such as proportionality, discrimination between combatants and non-combatants,
prohibition of causing unnecessary suffering, obligation of respecting the integrity of
non-belligerent states, prohibition on genocide and crimes against humanity, prohibition
against causing lasting and severe damage to the environment (ecocide)The court could not
conclude even in an "extreme circumstance of self-defence" that the use or threat of
nuclear weapons would be lawful, though it failed to state that the use or threat of
nuclear weapons is unlawful in every circumstance whatsoever. (2E) All of the dissenting
opinions emphasised however, that this failure by no means should be interpreted as the
Court actually legitimising the threat or use of nuclear weapons in any circumstances.To
underline its determination on the subject the Court found that there exists an obligation
under international law to pursue disarmament. This was not part of the original question,
however.The Court's Advisory Opinion bears of great importance; this was the first case
that the question of nuclear weapons was dealt with by any tribunals in the world, which
proved that nuclear weapons are subject to international law. The Court looked at all
relevant legal materials; treaties, customary law. Its first role was to find what is the
law on nuclear weapons. It was of great importance, since in the light of the ICJ's
findings it became clear that under international law it is extremely hard to justify the
threat or use of nuclear weapons; indeed the very existence of such devices. It is
troubling however, that in the Court could not give a clear answer on the question of
extreme circumstance of self-defence. The courts' non liquet answer exposed the fact that
"the construction of a solid edifice for the total prohibition on the use of nuclear
weapon is not yet complete" and also that this is due to "lack of willingness not of
building materials" It is very sad that the Advisory Opinion did not get much publicity
and even the few articles misinterpreted the Courts' stance. These misinterpretations show
that it was quite dangerous to leave a grey area on the law. A convincing, clear and
categorical answer would have been of greater educational effect. There needs to be a
"reorientation of human consciousness ". The nuclear weapon states also simply ignored the
opinion. It is true that the advisory opinions are not legally binding, but in practice
they are followed in 90% of the cases. The advisory opinion is authoritative in that it
embodies the collective view on a point of law of the highest judicial organ of
international law. It shows, however the political reality, that the question of security
is still widely identified by the strategy of nuclear defence. This doctrine is entrenched
too deeply in the minds of the strategists of nuclear weapon states and others under the
"defence umbrella" of a nuclear superpower. There are more and more voices even in the
nuclear states that the nuclear strategy in itself is a paradox. The nuclear weapons are
being discredited as military means. Their use appears wholly disproportionate at every
circumstance and the use raises enormous risks. The joint statement of Gen. Lee Butler and
Gen. Goodpaster stated: "Nuclear weapons are inherently dangerous, hugely expensive,
militarily inefficient and morally indefensible." This inefficiency was clear in the case
of Iraq (not to mention the many cases of mutual threatening in the Cold War). It has no
power of deterrence unless there is real intention of actually using it. It is hard to
imagine any circumstance when a state could use nuclear weapons and the credibility of
such threats thus is low. It is very useful though for the leader of the enemy country to
convince his people that their very existence is endangered and this common threat unites
these people.The other lesson from Iraq is that collective security works with
conventional weapons, and even these conventional weapons together with economic sanctions
can cause vast destruction and suffering to the people.A third lesson is clear from the
Gulf crisis; that is on the spread of nuclear weapons. With the end of the Cold War the
existing monitoring system is not efficient anymore to prevent the spread of nuclear
weapons; many of the newly independent countries of the Soviet bloc having the capacities
to sell parts and technologies to countries determined to have nuclear weapons. Thus the
risk that a "Saddam Hussein" of the world will actually acquire such weapon (and uses it)
is highly increased. "We depend on the eternal absence of madness, miscalculation,
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