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

This essay The Advisory Opinion Of The ICJ On The Legality Of Nuclear Weapons has a total of 2673 words and 13 pages.

The Advisory opinion of the ICJ on the legality of Nuclear Weapons

Natalia Matting

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

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