Time to return to the World Court?
On 8 July 1996 the International Court of Justice (ICJ),
at the request of the United Nations General Assembly, delivered
an advisory opinion on the legality of the threat or use of
nuclear weapons in which it concluded that the threat or use
of nuclear weapons was generally illegal and that there is
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 decision addressed two key aspects of nuclear weapons
policy - doctrine on threat or use, and commitment to disarmament.
Nearly nine years later little seems to have changed in either
area. At the 2000 NPT Review Conference the Nuclear Weapon
States (NWS) made an unequivocal undertaking to achieve the
elimination of nuclear arsenals and agreed on a number of
steps towards that goal, including reducing the role of nuclear
weapons in security policies.
However, these agreements could have been written in invisible
ink and they would have had more impact on the NWS actual
policies and practices than what has occurred since 2000.
The major NWS have no further disarmament plans and collectively
possess tens of thousands of nuclear weapons. If anything,
they have broadened the role of nuclear weapons in their doctrines
to include the threat or use of nuclear weapons in a wide
variety of circumstances, most of which would likely be in
violation of the ICJ’s decision. In addition they maintain
nuclear sharing arrangements with non- NWS members of NATO,
which possibly violate the NPT prohibition on transfer of
Thus the question to be asked, especially if there is no
progress at the 2005 NPT Review Conference in May, is whether
it is time to return to the ICJ to ascertain whether the NWS
are in compliance with their obligations under international
law as determined by the 1996 Advisory Opinion and the NPT,
and if not, what measures should they be required to take?
Such a case could also consider whether the allies of the
NWS are in compliance with their obligations, considering
the facts that they subscribe to extended nuclear deterrence
doctrines and most of them have joined the NWS in blocking
proposed negotiations on nuclear disarmament. It could also
consider the legal obligations of States not parties to the
NPT, on the grounds that the ICJ’s conclusions applied to
all States regardless of whether or not they were NPT Parties.
As such, IALANA has started exploring the possibilities and
potential political impact of lodging a follow-up case in
IALANA Netherlands has prepared a model application to the
ICJ for a case on the issue of compliance with nuclear disarmament
obligations. Rebecca Netter and Alyn Ware of the IALANA Pacific
Office are preparing legal briefs considering cases against
the States mentioned above covering issues of compliance with
disarmament obligations as well as questions on a) the transfer
of nuclear weapons and nuclear weapons technology from NWS
to any other recipient, b) withdrawal from the NPT, c) development
of nuclear weapons programs by States not parties to the NPT,
d) policies of threat or use of nuclear weapons, and e) transparency
of nuclear weapons development and doctrines.
The political issues being considered by IALANA include:
a) against which countries to lodge a case, b) whether to
pursue and advisory or contentious case, c) whether a case
will have a positive impact on the disarmament agenda, d)
what progress is being made in the various disarmament fora,
and e) whether a case against only the most serious violators
would have more chance of success but more likelihood of being
perceived as discriminatory.
IALANA will thus be ready to consult with States and non-governmental
organisations following the 2005 NPT Review Conference on
the potential for such a case if little progress is made in