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Nuclear Weapons Challenge the World’s Highest Court

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By Ramesh Jaura | IDN-InDepthNews Analysis


BERLIN | THE HAGUE (IDN) - After ten days of public hearings involving teams of eminent international lawyers – some backed by staunch proponents of ‘nuclear zero’ and others clinging to the doctrine of ‘nuclear deterrence’ – the world’s highest court is faced with a challenging task of far-reaching significance.

Not the least because this year marks the twentieth anniversaries of the 1996 'advisory opinion' by the International Court of Justice (ICJ) and the opening for signature of the CTBT, the treaty banning all nuclear tests everywhere – nuclear tests that are at the heart of nuclear proliferation.

Explaining the core subject for ICJ’s deliberation, a famous Dutch lawyer Phon van den Biesen said, “from a legal perspective”, the issues presented by the three legal cases “are ordinary ones, but a positive outcome will, spectacularly, change the world”.

This is because there are more than 15,000 nuclear weapons in the world today. “Their use could render meaningless in an instant all of humankind's efforts to resolve global problems,” warns Buddhist philosopher, educator, author, and anti-nuclear activist, Daisaku Ikeda. He is President of the Tokyo-based lay Buddhist organisation Soka Gakkai International (SGI).

In his 2016 annual Peace Proposal, Ikeda declared: “If nuclear weapons were to be used in a hostile exchange in any corner of the world, the impact – whether in terms of the number of lives lost or the number of people who would suffer aftereffects – staggers the imagination.”

In fact, recent research warns of the devastating impact of even a geographically limited nuclear exchange on the global ecology; the impact on the world's climate would undermine food production, resulting in a "nuclear famine".

Explaining the motivation of the Pacific Republic of the Marshall Islands (RMI) to turn to the International Court of Justice (ICJ), former Foreign Minister Tony de Brum said: “I have seen with my very own eyes nuclear devastation and know with conviction that nuclear weapons must never again be visited upon humanity. Nuclear weapons are a senseless threat to survival and there are basic norms that compel those who possess them to pursue and achieve their elimination.”

The RMI is home to the Bikini Atoll nuclear testing grounds. Along with Hiroshima and Nagasaki in Japan, which suffered atomic bombings in 1945, the RMI is one among few non-nuclear-armed states in the world to see the devastation caused by nuclear weapons at close range.

The U.S. carried out 67 nuclear explosive tests between 1946 and 1958, including the infamous Castle Bravo test, which, at 15 megatons, involved the most powerful U.S. nuclear device ever to see atmospheric testing.

According to reports, the size of the Castle Bravo test on March 1, 1954 far exceeded expectations, causing widespread radioactive contamination. The fallout spread traces of radioactive material as far as Australia, India and Japan, and even the United States and parts of Europe. Though organized as a secret test, Castle Bravo quickly became an international incident, prompting calls for a ban on the atmospheric testing of thermonuclear devices.

The RMI claims that the nuclear-armed nations are in breach of nuclear disarmament obligations under existing international law. This applies to the P5 (permanent members of the UN Security Council: U.S., Russia, UK, France and China) that are signatories to the nuclear Non-Proliferation Treaty (NPT) as well as to the four non-NPT signatories (Israel, India, Pakistan and North Korea) under customary international law.

Accordingly, the Marshall Islands had filed lawsuits against all nine nuclear weapons countries in April 2014. But the U.S., Russia, China, France, Israel and North Korea do not accept the “compulsory jurisdiction” of the ICJ and ignored the cases brought against them. Only India, Pakistan and UK accepted.

Prior to the start of the oral proceedings on March 8, Pakistan, which had duly participated in the written proceedings, informed the Court that it would not participate in the hearings, because, in particular, it “[did] not feel that [such] participation [would] add anything to what ha[d] already been submitted through its Counter-Memorial” – responding to the Marshall Islands charges.

Subsequently, though only India and the United Kingdom took part in the oral public hearings, all three strongly object to the “admissibility and jurisdiction” of the ICJ in the case filed by the RMI.

UK argues that in common with the other NPT parties, it acknowledges its obligation under Article VI of the treaty and work towards disarmament. India insists that the NPT is discriminatory, de facto allowing the P5 modernize their nuclear weapons.

Phon van den Biesen, Co-Agent for the RMI and attorney at law in Amsterdam, who was leading the Marshall Islands’ international Legal Team, said: “We are, basically, asking the Court to tell the respondent states (India, Pakistan and the United Kingdom) to live up to their obligations under international law.”

In particular, the RMI is asking the ICJ to follow up on its earlier findings in the Advisory Opinion it delivered in 1996 on the illegality of the threat or use of nuclear weapons. At the time the Court considered that the continued international debate on the legality of these deadly weapons threatens the stability of the international order.

It added that “the long-promised complete nuclear disarmament appears to be the most appropriate means” to put an end to that untenable situation. (para. 98, http://www.icj-cij.org/docket/files/95/7495.pdf)

The minimum the international lawyers supporting the RMI expect of the ICJ is to reiterate the ICJ’s 1996 advisory opinion: “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.”

In his 2009 five-point proposal, UN Secretary-General Ban Ki-moon also urged “all NPT parties, in particular the nuclear-weapon-states, to fulfil their obligation under the treaty to undertake negotiations on effective measures leading to nuclear disarmament”.

The public hearings at the ICJ were preceded by the Open Ended Working Group’s first meeting in February 22-26 in Geneva, which did not succeed in breaking the stalemate on nuclear weapons disarmament. The next two sessions are scheduled for May and August.

Whether the 15 ICJ judges, along with judge-ad-hoc Mohammed Bedjaoui, would by then have deliberated on jurisdiction and admissibility issues raised in the written and oral pleadings, is far from certain.

Concluding public hearings – comprising rather complicated legal aspects and profound political implications – on the question of jurisdiction, the United Nations’ principal judicial organ ICJ announced on March 16: “The Court’s judgment on the question of jurisdiction will be delivered at a public sitting, the date of which will be announced in due course.”

A close observer of the ICJ public hearings, Kazuo Ishiwatari, Vice Executive Director of the Peace and Global Issues at SGI said: "We need to raise public awareness about nuclear weapons and the consequences of their use . . . Access to knowledge empowers people to work more effectively for a world without nuclear weapons. Ultimately, we need to see that our choice is between systems of national security premised on the suffering and sacrifice of ordinary citizens and ways of thinking and acting that prioritize human security." [IDN-InDepthNews – 17 March 2016]

IDN is the flagship of International Press Syndicate.

Photo: Nuclear weapon test Bravo (yield 15 Mt) on Bikini Atoll. The test was part of the Operation Castle. The Bravo event was an experimental thermonuclear device surface event. Credit: Wikimedia Commons.

2016 IDN-InDepthNews | Analysis That Matters

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