By Kate Dewes and Rob Green

Introduction

The World Court Project (WCP) is an international citizens' campaign which has succeeded in persuading the UN to request the International Court of Justice (ICJ) at The Hague for its first-ever advisory opinion on the legal status of nuclear weapons. Initiated nine years ago in New Zealand by retired Christchurch judge Harold Evans, it has captured the imagination and support of millions of people worldwide.

The WCP was officially launched in 1992 by three co-sponsoring organisations, the International Peace Bureau (IPB), International Physicians for the Prevention of Nuclear War (IPPNW), and the International Association of Lawyers Against Nuclear Arms (IALANA). A year later the World Health Organisation (WHO) passed a resolution at its annual assembly asking the Court whether the use of nuclear weapons in war would violate international law in view of their health and environmental effects.

Aware of criticism from the NATO nuclear states, echoed by the Australian and NZ governments, that the UN General Assembly (UNGA) was the correct forum for disarmament issues, the WCP lobbied the Non-Aligned Movement (NAM) - 113 of the UN's 185 member states - to table a more ambitious resolution at the 1993 UNGA session. This asked the ICJ "urgently to render its advisory opinion on the following question: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?'"

In broadening and strengthening the WHO question, it directly challenged the legality of nuclear deterrence doctrine. More than that, the nuclear weapon states correctly perceived it as threatening their privileged status as permanent members of the UN Security Council.

The NAM agreed by consensus to introduce the resolution, but intense pressure by the NATO nuclear states broke the consensus, and the resolution was deferred. However, it was retabled in 1994 and, despite bitter opposition led by the US, UK and France, on 15 December the UNGA adopted it by 78 votes to 43, with 38 abstentions and 25 not voting.

Public pressure affected both the votes and later the submissions of the normally compliant Western caucus of non-nuclear states. By abstaining, Canada and Norway broke ranks with NATO, Japan and Australia with the USA, and Ireland, Sweden and Austria with the European Union (EU). New Zealand and San Marino were the only ones to support it.

Because the UNGA request was urgent, the Court decided to consider both questions simultaneously and followed its earlier timetable for the WHO question. Governments were invited to make written submissions by 20 September 1995, and oral proceedings were held at The Hague from 30 October to 15 November 1995.

43 governments and the WHO made written submissions, and 22 and the WHO made oral statements - the biggest participation in an ICJ case. These constitute a representative sample of current world opinion on the issue. The authors lobbied at the 1993 UNGA disarmament session and attended the ICJ oral proceedings. They offer the following interpretation of the arguments presented, with particular reference to the NZ and Australian positions.

Government Participation

The Appendix lists which governments made written submissions and oral statements on both the WHO and UN General Assembly (UNGA) questions. It incorporates an assessment of the line taken. The reduced number of written submissions on the UNGA question reflects its much more sensitive nature.

Australia's failure to make a submission on the UNGA question, having argued for inadmissibility on the WHO question, is interesting. Its silence reflected the government's dilemma as public opinion raged over the nuclear tests and peace groups rallied to pressure politicians to argue for illegality, along with the majority of other states within the region (including India and Japan, ten had indicated they would give oral statements).

New Zealand's firmly anti-nuclear submission on the UNGA question showed a decisive shift off the fence from its earlier one on the WHO question. This was particularly remarkable bearing in mind the National government's history of support for nuclear deterrence, efforts to undermine the Nuclear Free Act and resistance to the World Court Project.

Lack of enthusiasm among non-nuclear NATO governments for expressing a view is shown by the absence of any evidence from half its membership (Belgium, Denmark, Greece, Iceland, Luxembourg, Portugal, Spain or Turkey). When it came to oral statements, only two non-nuclear states - Germany and Italy - testified in support of the NATO line. China took no part, having not even voted on the UNGA resolution.

With negotiations imminent on a common European Union (EU) security policy, both Ireland and Sweden made anti-nuclear written submissions; and San Marino made a strongly anti-nuclear oral statement.

Other Comments On Oral Statements

Withdrawals Four anti-nuclear governments (Colombia, Guyana, India and Nauru) applied to give oral statements, but later withdrew with no explanation - the first two on the morning they were programmed to testify. Rumours were rife of intimidation from the nuclear cartel.

Additions On the other hand, international outrage at the resumption of tests by China and France so soon after indefinite extension of the Nuclear Non-Proliferation Treaty (NPT) probably increased the number of governments prepared to testify. In particular the Marshall Islands, with a history of heavy US dependence, showed great courage in making a strong anti-nuclear statement, and including Lijon Eknilang in their delegation. The only ordinary citizen to testify, she was exposed to fallout from the US "Bravo" test in 1954.

Zimbabwe, initially omitted from the programme, was allowed to testify at the last minute. Because governments appeared in alphabetical order, it therefore had the final word after the UK and USA. Its delegation took full advantage with a brilliant summary of all the arguments. This made for a most satisfying end to the oral proceedings for the anti-nuclear camp, not least because Zimbabwe had been the first government to come out in support of the World Court Project, and had initially led the lobbying effort in UNGA.

Pro-Nuclear Arguments Each government considered first the admissibility of the questions, then substantive issues. France, the first nuclear weapon state to appear, gave a surprisingly rambling statement which overran by over half an hour the ninety minutes allotted. Spelling out France's dependence on nuclear deterrence as the "keystone of its security", it warned the Court not to make any judgment which might affect its defence policy. It dwelt at great length on what it saw as the confusing framing of the UNGA question relating to the word "any". It claimed no legal difference between nuclear and conventional weapons, and implied that the WHO's role should be confined to preparing to treat the victims of nuclear war rather than trying to prevent their suffering. Arguing that when use of armed force is legal there is no prohibition on the use of nuclear weapons, it urged the Court to use its discretion to decline to consider both questions.

Russia dismissed arguments against nuclear weapons as "political and emotional". However, it did not argue for deterrence. It claimed that there is no specific convention or principle of international law prohibiting the use of nuclear weapons; and that human rights and environmental law were not intended, and do not, apply to nuclear weapons. It argued that the legality of the uses of nuclear weapons should be decided on a case-by-case basis within the context of customary law.

The UK and USA repeated all these arguments. The UK claimed that calling deterrence into question would be "profoundly destabilising"; and that recourse to use of nuclear weapons may be necessary in self-defence to prevent "subjection to conquest which may be of the most brutal and enslaving character". It argued that it may therefore be necessary to inflict a high level of "collateral civilian casualties". It also savaged the statement by Australian Foreign Minister Gareth Evans in which he had argued that all aspects of nuclear weapons are "inherently illegal" (see below under Australia).

Both the UK and USA claimed that nuclear deterrence had "preserved the peace" for the past fifty years. Both also stated that, since the nuclear states had built up huge nuclear arsenals and relied on them for security along with their allies, there was no international consensus for illegality.

In sum, the pro-nuclear line was that "nuclear weapons are legal as long as we say so", and that the Court should steer clear of what is essentially an extremely sensitive political issue.

Anti-Nuclear Arguments The WHO opened the proceedings with a neutral but detailed description of its work on the health effects of nuclear weapons. It stressed their unique radioactive effects and the enormous casualties expected from nuclear war.

Australia broke ranks from ANZUS by arguing that not just the threat or use, but every aspect including testing and even possession of nuclear weapons is inherently illegal. Gareth Evans went on to urge the Court to declare that the nuclear states have a legal obligation under the Non-Proliferation Treaty (NPT) to abolish nuclear weapons within a reasonable timeframe.

However, consistent with its WHO submission, the Solicitor-General advised the Court not to consider the questions because of the risk that any outcome might be counterproductive to nuclear disarmament. The schizophrenic effect of this was reinforced in Evans' closing remarks when he supported maintenance of "stable deterrence" during the abolition process.

The UK Attorney General seized on this incoherence, saying that Evans' claim of inherent illegality "simply fails to grapple at all with nuclear deterrence". He went on to point out that Australia had admitted that "nuclear weapons were not illegal at the time they were first developed, manufactured and deployed, and apparently for most of the time since then". Challenging him to identify when the change occurred, he taunted Evans with a quote from the Australian Military Manual, emphasising its date of issue as March 1994, which states that although the UNGA "has purported to condemn all nuclear weapons as illegal, the consensus of the international community is that such weapons are not prohibited per se."

Australia argued that the right of self-defence could not be invoked to justify the threat or use of nuclear weapons. It added that the NPT has become part of customary international law. This means that it applies universally, not just to signatories. Furthermore, the NPT "confers no positive right on the nuclear weapon states to continue to possess such weapons." It told the Court that a decision against nuclear weapons would be welcome and would "materially effect the achievement of...nuclear disarmament."

New Zealand sidestepped the problem of the WHO's competence to ask its question by stating that this had been made hypothetical by the UNGA question. It was unequivocal in arguing admissibility, and that the answer "should be no: the threat or use of nuclear weapons should no longer be permitted under international law." Unlike Australia, it surprisingly no longer had illusions about nuclear deterrence: "If ever used, (nuclear weapons) would most likely ensure the destruction, not the maintenance of the security, of the user... The threat that the weapons represent hangs over the security of the whole international order." (1) It agreed with Australia that nuclear testing is contrary to international law. It ended by stating that "a declaration of illegality would serve as a powerful further step to the elimination of nuclear weapons... The Court needs to play its part in helping to set the scene for that to happen... The potential consequences of failure, for all humanity, are too great to contemplate."

Japan faced a worse dilemma than Australia. Following the tabling of the UNGA resolution in 1993, the Japanese government had confirmed its support for nuclear deterrence in Parliament. A public outcry had then followed the leak of its draft WHO submission which echoed the US line that use of nuclear weapons is legal. It was forced to amend this to stating that use is "clearly contrary to the spirit of humanity that gives international law its philosophical foundation".

Then the 50th anniversary of the atomic bombing of Hiroshima and Nagasaki had coincided with resumption of Chinese and French tests, which had further aroused public opinion. Worse, legal counsel for Nauru had begun negotiations with the Mayors of Hiroshima and Nagasaki for them to testify at the ICJ if their own government failed to present them as expert witnesses.

The combination of these pressures resulted in the government not only making an oral statement, but including the Mayors. It confirmed its earlier position, which stopped short of concluding that they are illegal. The Mayors, independent of the government, then argued that all aspects of nuclear weapons violate international law.

Other governments. Costa Rica, Egypt, Indonesia, Iran, Malaysia, Marshall Islands, Mexico, Philippines, Qatar, San Marino, Solomon Islands and Zimbabwe supported these points in coherent, well-argued statements. The three South Pacific Island states gave a coordinated presentation, while Malaysia hosted meetings of several delegations for each government to focus on a particular aspect.

Debate Summary

As already indicated, Zimbabwe's statement summarised the debate as follows: "The majority of states have argued for the admissibility of the WHO request; a minority against it. A minority has argued for the exercise of negative discretion; the majority against it... On the merits of the question before the Court, one side has based its arguments for illegality on the uniquely destructive and uncontrollable nature of nuclear weapons; the other side has made no reference to this, treating nuclear weapons essentially as if they were just another type of conventional weapon. "The Court, we hope, will see clearly that one side has proved its case, while the other has argued a case not before the Court... It is the Court's role not to judge the wisdom of such a request, but to render the opinion requested of it."

On nuclear deterrence, it encapsulated the anti-nuclear consensus that there are "many better ways to prevent war than threatening to destroy one's potential opponent. The UN Charter sets out some of these ways, including recourse to this Court." Citing other conflict resolution mechanisms, it went on: "...(T)he fact that all of the nuclear states have been involved in wars since 1945 indicates that nuclear deterrence has not kept the peace... nuclear weapons do not provide for peace and security, but on the contrary, threaten peace and security... while it is true that a minority of states have relied on nuclear deterrence as part of their security doctrine, that does not prove its necessity or legality. The minority of States which engage in torture, arbitrary detention and other forms of gross human rights violations are in the habit of justifying these practices as necessary for their national security, a proposition that has never been accepted by the vast majority of human rights-respecting states."

Like others, it drew the Court's attention to the importance of the de Martens clause in the 1907 Hague Convention relating to the part played by the "dictates of the public conscience" in deciding the legal status of a weapon; and to over 3 million Declarations of Public Conscience (2) presented to it on 31 October 1995. Whilst most of these came from Japan, a significant number were from Western nuclear states and their allies.

The Judges' Responsibility

Over the next few months, the judges are charged with making an impartial assessment of probably the most important legal question of all time. Their task is complicated by the sudden death of the Venezuelan judge on the eve of the oral proceedings. In the event of a tied vote among the 14 remaining judges, the Algerian Court President will have a second casting vote. The responsibility on the five judges from each of the declared nuclear weapon states is particularly heavy. The World Court Project has highlighted the excessive influence of the permanent members of the UN Security Council. Although there is no entitlement to membership on the part of any state, the World Court has almost always included judges of the nationality of the five permanent members.

The following statement from UK judge Rosalyn Higgins is therefore significant: "I believe the judges take their Oath of Impartiality very seriously. To my knowledge, governments do not at all try to influence the judges in cases before the Court in which their national interests are deemed to be at stake. All governments would regard this as crude and improper. Indeed, it is when a case from one's own country is before the Court that the judges are most sensitive to demonstrate their independence." (3) Her first case was the contentious one between New Zealand and France over nuclear tests; this is her second. The Court's decision is expected by May 1996.

Review of Australia/New Zealand Positions

Because the World Court Project was pioneered in New Zealand, the government has been under sustained domestic pressure to support it. This was why it voted for the UNGA resolution, whereas Australia abstained. NZ indicated publicly as early as 1993 that it would have supported the resolution had it been put to a vote.

NZ was therefore under greater pressure than Australia to make a written submission arguing for illegality on the UNGA question. However it had taken a weak position on the WHO question in a one-page submission in the hope that the Court would decide not to proceed and the UNGA would not vote on the NAM resolution. Like Australia however, it reserved the right to submit further evidence if the case went ahead.

Australia on the other hand came close to supporting the nuclear weapon states' line on the WHO question, by arguing for inadmissibility and that the ICJ should decline to give an opinion. NZ then argued strongly for illegality in their 25-page UNGA submission, while Australia failed to make one.

When it came to the oral proceedings, Australia therefore had to make a much greater anti-nuclear shift in order to catch up with domestic opinion fuelled by strong opposition to French testing. This was why Gareth Evans' statement made such an impact. Australia had never dared challenge the legality of nuclear weapons while remaining in a cosy relationship with the Western nuclear states. Indeed it had publicly criticised and tried to undermine NZ's nuclear free stance and consequent estrangement from ANZUS following the declaration of illegality of nuclear weapons through legislation in 1987.

NZ had also taken France to the ICJ over testing six weeks before the oral proceedings began. Australia had joined it along with four other South Pacific states. The competition for anti-nuclear leadership between Bolger and Keating intensified in the run-up to the ICJ oral proceedings, which coincided with the 50th anniversary of the founding of the UN on 24 October and the Commonwealth Heads of Government Meeting (CHOGM) in Auckland on 10-13 November 1995.

Apart from French tests, an important reason for both governments' strengthened anti-nuclear positions at the ICJ was growing awareness of the need to support their neighbouring governments. In particular Australia was secretly negotiating a security pact with Indonesia, which had been Chair of the NAM when the UNGA resolution was put to a vote. Also ten states were about to establish a South East Asian Nuclear Weapon Free Zone along with creation of a similar zone in Africa effectively making most of the Southern Hemisphere nuclear-free.

Shifts in NZ's support for nuclear deterrence were indicated as early as August/September 1995. Bolger argued on French television that nuclear deterrence did not work, and called for elimination. On UN Day, Keating announced his initiative to establish the Canberra Commission on the Elimination of Nuclear Weapons (4). Evans reinforced this shift a few days later at the ICJ. Then at CHOGM, Keating questioned the relevance of deterrence (5).

UK support for French testing, exemplified by Major's intransigence at CHOGM, the republican debate and imminent elections were significant factors in both countries. Australia was forced to move closer to NZ's position in choosing to side with their neighbours rather than clinging to their colonial/ANZUS ties. For Australia, as host of several important US bases and supplier of raw materials for the nuclear weapons/energy industry from uranium and mineral sands mining, the dilemma is acute and immediate. It poses a fundamental realignment of its foreign and security policy towards Asia, more in line with its economic policy.

Conclusion

The World Court Project has played an important part in promoting debate on these issues. It has provided a forum for the non-nuclear majority of states to challenge the status quo that had threatened to persist with indefinite extension of the NPT. Also it has forced governments of the Western nuclear states to defend their nuclear deterrence policies in the post-Cold War era, and helped to mobilise public opinion against nuclear weapons. For certain Western non-nuclear states, especially Australia and New Zealand, this has forced them to publicly distance themselves from their nuclear allies. The Court's decision could have far-reaching implications for how this process develops.

1. Former NZ Prime Minister David Lange, in his book Nuclear Free, The New Zealand Way on page 194, described his struggle to prevent officials equivocating over nuclear deterrence: "Left to themselves, our diplomats would certainly have surrendered the nuclear-free policy... The test of membership of the alliance was belief in the doctrine of nuclear deterrence. As New Zealand found out, there wasn't any other test. You had to subscribe to deterrence to be in the alliance, and to prove it, you had to share in its risks."

2. The novel concept of individually signed Declarations of Public Conscience not only linked the de Martens clause with the custodians of the public conscience, but also empowered them to exercise it. Only World Court judges can decide the legal status of nuclear weapons; but ordinary citizens now had a way to express whether they think nuclear weapons are right or wrong - and these decisions should be linked. Moreover, in accepting 3.3 million of them the Court acknowledged the strength of public concern about the issue.

3. Letter dated 26 October 1995 to Peter Norris, co-author of Going To Court Not War, a booklet promoting the Court and its work. The first woman World Court judge, she was elected in July 1995 and replaced Sir Peter Jennings, the former Court President.

4. In a speech in Parliament House on 24 October 1995, Keating announced that, as Australia's contribution to looking at "the means by which we can advance the cause of a nuclear weapons-free world...the Government will establish a group of knowledgeable and imaginative individuals from around the world...tasked to produce a report to...examine the problems of security in a nuclear weapons-free world and suggest practical steps towards the goal..."

5. Report on CHOGM by David McIntyre, NZ International Review January/February 1996, page 4.

Appendix (by NK) Written replies by twenty-seven nations to the UN Question (October-November 1995), graded 1-5 as follows: 5 - affirming the inherent illegality of deploying nuclear weapons with readiness to use them; 4 - that the Court is entitled to give an opinion, but coming short of declaring illegality as such; 3 - fence-sitting; 2 - that the Court is not entitled to give an opinion; 1 - that nuclear weapons policies are not necessarily illegal and that it would be better for the Court not to reply (the NATO line).

5: North Korea, Samoa, San Marino, Iran, Nauru, Burundi, Egypt, India, Sweden, Mexico, Malaysia, Lesotho, Solomon Islands (103 pp), Ecuador, Marshall Islands.

4: Japan (airy and vague), New Zealand (commends direction of movement towards the concept of illegality), Quatar.

3: Ireland: does not see "the approach reflected in these referrals...as in any way incompatible with our own efforts ... to secure the abolition of nuclear weapons."

2: Russia: the Court should not give an opinion, and there is no prohibition as such, but qualifications are made; FRG: against a reply being given, but does not affirm conditional legality

1: Netherlands, UK, US, Italy, France and Finland (the Court "could not remain faithful to its character as a judicial organ" were it to give an opinion).

Australia abstained in the UN motion, giving a written submission only to the WHO Question (claiming that the case was inadmissable) and finally came out with an oral submission contradicting its written statement. India voted for the UN motion, giving a written submission on the WHO Question but not that of the UN, then backed out from making an oral statement.

More nations gave submissions on the earlier and more straightforward WHO Question (35 of them), as to whether use would be illegal. Using the same grading as above, Rob Green counted scores as: position five, 21 nations; four, 2; three, 3 (New Zealand, Japan and Norway), four 4, five 5. He summarised this as "about 23 are for us, 9 are against." It was evidently easier for nations to reach an answer to this question than the UN one. In the final oral submissions, 16 nations were supportive and 6 were pro-nuclear.