NGO and Government Cooperation in Setting the Disarmament Agenda: The Impact of the 1996 International Court of Justice Advisory Opinion.[1]

Alyn Ware[2]

Courageous States from the developing world, working in concert with visionary lawyers, physicians and other sectors of international civil society, boldly obtained astonishing results from the highest court in the world.

Malaysian Ambassador Razali Ismail, President of the United Nations 1996-1997.[3]

Introduction

The 1980s saw large anti-nuclear movements protesting in the streets of London, New York, Bonn, Sydney and other major cities, indicating considerable public opposition to nuclear weapons. However, these protests appeared to have little effect on the policies of the nuclear weapon states. Nuclear testing continued - albeit underground – new designs of nuclear weapons were developed and deployed, large stockpiles of nuclear weapons remained ready to be fired at a moments notice and nuclear deterrence remained dominant in security doctrine.

The 1980s also saw the development of another approach to confronting the nuclear juggernaut – an approach that had initial successes in non-nuclear countries and paved the way for later international campaigns. In a number of these countries, citizen groups complemented the traditional activist models of street protest and direct confrontation with the Nuclear Weapon States (NWS), with another approach including dialogue with decision-makers to discuss collaborative strategies for pursuing nuclear disarmament. These strategies included opposition to nuclear testing and the creation of nuclear weapon free zones.

In the 1990s, the successes of these campaigns began to influence the methods of international peace movements. While public protest declined markedly, anti-nuclear groups increased their engagement in international disarmament arenas such as the United Nations and the Conference on Disarmament, particularly through building alliances with non-nuclear governments which had representation in such bodies.

A prime example of such cooperation was the World Court Project, a campaign to have the International Court of Justice (ICJ) rule on the legal status of nuclear weapons. While the idea of an ICJ case against nuclear weapons had been discussed in academic and activist circles since the 1950s[4], it did not appear to be a possibility until peace activists starting building alliances with non-nuclear states, such as those in the Non-Aligned Movement[5], in the late 1980s early 1990s, and thus generated sufficient official support within the United Nations to take the case to the Court.

The Court's 1996 opinion opened the door for similar collaboration between Non Governmental Organisations and governments in a number of arenas including the United Nations General Assembly, Non-Proliferation Treaty Review process[6], and International Criminal Court negotiations, and paved the way for other initiatives, such as the New Agenda Group[7].

International campaigners are using the experiences from the World Court Project, to develop collaborative strategies with non-nuclear weapon states (NNWS) that aim to strengthen the norm against nuclear weapons and engage the nuclear weapon states (NWS) in a constructive disarmament process. In this way, the current resistance of the NWS to nuclear disarmament could be overcome and the abolition of nuclear weapons achieved.

The ICJ Case

On 8 July 1996, the International Court of Justice (ICJ) – also known as the World Court – delivered advisory opinions on two questions regarding the legality of nuclear weapons. The first from the World Health Organisation asked:

In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?

The second from the United Nations General Assembly asked:

Is the threat or use of nuclear weapons in any circumstance permitted under international law?

The Court declined to answer the first, stating that the World Health Organisation did not have the mandate to ask such a question. In answer to the second question the Court gave a 105-paragraph decision, the conclusions of which (para 105) stated:

A. There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons;

B. There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such;

C. A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful;

D. A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;

E. It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law;

However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;

F. 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.[8]

The nuclear weapons case was unique not only in the political significance and global implications of the subject, but also in the origins and driving force that brought it to the Court. Unlike most cases in the ICJ, it did not originate in the foreign ministries or legal departments of disputing states nor the legal departments of international organisations. Rather, it originated, was guided, and was made successful ultimately by the World Court Project (WCP) - a loose network of individual activists and non-governmental organisations (NGOs) who built working alliances with states in order to use the United Nations system to mount a powerful challenge to the nuclear status quo and forge a path to nuclear disarmament.

The World Court Project was launched in 1992 by the International Physicians for the Prevention of Nuclear War, the International Peace Bureau and the International Association of Lawyers Against Nuclear Arms, with the aim of achieving a decision from the International Court of Justice on the legal status of nuclear weapons.[9]

NGOs do not have direct access to the International Court of Justice, either to lodge a case or to testify on a case that is lodged. The mandate of the ICJ renders it open to hearing contentious cases between states or to giving advisory opinions at the request of accredited international organisations such as the United Nations General Assembly and Security Council. Cases between states require the acceptance by each state of ICJ jurisdiction, either generally or for the specific situation. The UK is the only NWS that accepts general jurisdiction of the ICJ.[10]

Thus, the WCP aimed for an ICJ advisory opinion requested by appropriate international bodies. They approached member States of the World Health Organisation and the United Nations to introduce resolutions in the World Health Assembly (WHA) and the UN General Assembly requesting the ICJ to give such an opinion. In order for such resolutions to be adopted, the WCP had to work with member States in order to build enough support to withstand the economic and political counter lobbying from the NWS. Once the case was in Court, the World Court Project had to again work with supportive States to ensure that convincing legal arguments were presented to the Court, and to ensure that the Court understood that there was strong international support for a ruling against nuclear weapons.

The success of the collaboration between the WCP and governments is indicated by the facts that:

a) both the United Nations General Assembly and the World Health Assembly agreed to take the case to the ICJ despite massive counter-lobbying by the powerful nuclear weapon states and their allies,

b) considerably more countries participated in the hearings of this case than any other in the Court’s history,

c) The decision was surprisingly strong in its legal condemnation of nuclear weapons, despite the fact that a majority of judges were from nuclear weapons states or their nuclear allies.

These successes did not come easily. In both the WHA and the UNGA, the intensity of the counter-lobbying by the NWS squashed the resolutions when they were first introduced, despite initial indications of majority support. Countries that were originally prepared to co-sponsor the UNGA resolution, for example, backed down after “visits” from NWS in their capitals. Maj Britt Theorin, former Disarmament Ambassador of Sweden, commented that “This unacceptable coercion of the non-nuclear states shows that they (NWS) are determined to retain their freedom to threaten the use of nuclear weapons.”[11] Mexico’s Disarmament Ambassador Miguel Marin Bosch noted “The nuclear powers are scared shitless. Their turn is up and they are holding on to the only toys that have been the guarantee of their legitimacy.”[12] It was only through careful strategising between the WCP and supportive governments that it was possible to overcome the NWS and succeed in the UNGA and WHA in subsequent years.

The cooperation and collaboration between NGOs and officials of supportive governments that developed in the WCP, provide both a model and a base of personal and institutional relationships that was extended and utilised in follow-up disarmament projects and arenas including the New Agenda Group, Middle Powers Initiative, Non-Proliferation Treaty 2000 Review, campaign for a Nuclear Weapons Convention, and negotiations for an International Criminal Court.

Seeds of the ICJ Opinion

The detonation of nuclear weapons at Hiroshima and Nagasaki planted the seeds for the ICJ opinion. Immediately following the war the first resolution of the newly formed United Nations called for the “elimination from national armaments of atomic weapons and of all other weapons of mass destruction.”[13] While this addressed the sentiment that nuclear weapons should be prohibited, no mention was made of the legality or otherwise of the use of existing nuclear weapons.

To rectify this omission, the ICRC in 1957 attempted to include recognition of the use of nuclear weapons as a violation of the humanitarian laws of warfare in Draft Rules for the limitation of the dangers incurred by the civilian population in time of war.[14] However, by then a nuclear arms race between the US and USSR was in full swing and the proposal to affirm the illegality of nuclear weapons use in the draft rules led to their rejection.[15]

Although political action on the legality of nuclear weapons was constrained for some time due to Cold War politics, academic attention continued. In 1959, for example, Nagendra Singh, later to become a judge of the International Court of Justice, discussed the legality of nuclear weapons in Nuclear Weapons and International Law.[16]

A key figure in advancing the nuclear illegality agenda was Sean MacBride, who embodied the model of government and NGO cooperation having worn both hats in his disarmament career. He was foreign minister of Ireland before becoming president of the International Peace Bureau, and he pursued the affirmation of the illegality of nuclear weapons through writings,[17] inter-governmental forums such as the negotiations for the Geneva Conventions, appeals such as the Lawyers Appeal on Nuclear Weapons,[18] and through NGO forums such as the 1985 London Nuclear Warfare Tribunal.[19] He also advocated the idea of taking a case to the International Court of Justice on the legality of the threat or use of nuclear weapons.

The concept that the use of nuclear weapons would violate international law found fertile ground with the governments of non-aligned and other non-nuclear countries, many of which had voted in favour of UN resolutions that declared that “the use of nuclear and thermo-nuclear weapons is contrary to the spirit, letter and aims of the UN, and as such, is a direct violation of the Charter of the UN,” and that nuclear weapons use would also constitute “a crime against mankind and civilisation.”[20]

However, such sentiment did not translate into any legal challenge against nuclear weapons in the ICJ. This may have been due in part to the perception that such an approach would be successfully blocked by the nuclear weapon states. Previously, for example, an Indian sponsored resolution in the UN Trusteeship Council requesting an advisory opinion on the legality of atmospheric testing, was successfully blocked.

The issue was first tested in a court of law in 1963, when the Supreme Court of Japan concluded that the nuclear bombing of Hiroshima and Nagasaki violated the humanitarian laws of warfare.[21] However, this had no jurisdiction over the United States or any other nuclear weapon state.

It was not until 1973 that a legal challenge was made against a nuclear weapon state in an international court, and then only in a limited way. Australia and Aotearoa-New Zealand[22] lodged a case in the International Court of Justice against the French nuclear testing program in the Pacific. The court challenge was aided by the work of citizen groups that had campaigned vigorously to make nuclear testing an election issue in both countries. It was an attempt by citizens and governments of small states to use international bodies to challenge a politically powerful nuclear weapon state.

Once lodged in Court, the case continued to enjoy strong public support, despite statements by France that they would not recognise the Court’s jurisdiction or abide by any ruling.[23] Ideas and information to support the case flowed from citizens to government officials. A number of citizen yachts sailed to the test site in protest from 1970–73.[24] This stimulated the New Zealand government to dispatch a frigate to the nuclear test site in 1973 to draw international attention to the case. New Zealand Prime Minister Norman Kirk farewelled the HMNZS Otago to Moruroa Atoll saying:

“We are a small nation but we will not abjectly surrender to injustice. We have worked against the development of nuclear weapons. We have opposed their testing anywhere and everywhere. No self respecting nation with right on its side can merely acquiesce to the intransigence of others. Today the Otago leaves on an honorable mission. She leaves not in anger but as a silent accusing witness with the power to bring alive the conscience of the world.”[25]

The Court made an interim order on June 22, 1973 calling on France to “avoid nuclear tests causing the deposit of radioactive fallout on the territory of Aotearoa-New Zealand, the Cook Islands, Nuie or the Tokelau Islands,” pending completion of the hearings, and a similar order with respect to Australia’s claim.[26] France officially refused to acknowledge the order, but in a separate action, taken under increasing international attention to their tests, announced an end to atmospheric testing and a move to underground testing in 1974.

Thus, the 1973 Nuclear Tests Cases demonstrated the political power of citizens and small governments working together to pressure a powerful nuclear state to constrain its nuclear practices.

Attention to legal issues regarding nuclear weapons spread in academic and activist circles in the late 1970s and early 1980s, along with the formation of the Lawyers Committee on Nuclear Policy (LCNP) in 1981 and the publication of a number of articles and books on the issue.[27] LCNP, and later its international parent body the International Association of Lawyers Against Nuclear Arms, supported a number of domestic cases in the USA and its European allies to challenge nuclear deterrence, but these were constrained considerably by jurisdiction issues relating to security policies.[28] LCNP supported Sean MacBride’s proposal to take a case to the ICJ in principle, but did not have the contacts or capacity to move the proposal forward in the international arena with sufficient political weight to counter the NWS.

Acoordingly, the proposal remained just an idea until the World Court Project was initiated in Aotearoa-New Zealand in 1987.[29] What the World Court Project did to achieve success where others had floundered, was to bring the many interested constituents together – the non-nuclear and non-aligned governments with their standing in the UN bodies, the lawyers with their legal expertise, the anti-nuclear activists with their passion and campaigning skills, and the physicians with their medical knowledge of nuclear weapons effects.

Ironically the push for New Zealanders to initiate the World Court Project came primarily in response to US government pressure against the NZ nuclear free policy, which was enacted in 1984 after years of welcoming nuclear warships from the US, UK and France. The US claimed that New Zealand was violating the ANZUS Treaty[30] by its new policy of refusing to allow port visits of US nuclear-armed warships. In 1996, visiting US Law Professor Richard Falk suggested that New Zealand clarify the legal obligations under ANZUS through the International Court of Justice.[31] However, New Zealand was hesitant to antagonise the US more than it was already doing with its anti-nuclear policy, and so was more inclined to support a clarification on the legality of nuclear weapons themselves rather than a case against the US. In addition, the US had withdrawn its acceptance of ICJ jurisdiction for contentious cases after losing a case brought against it by Nicaragua in 1984.[32] Thus getting any case against the US to the ICJ would be difficult if not impossible. Thus the idea of an advisory opinion on the legality of nuclear weapons themselves was a much more attractive option and was taken up by New Zealanders.

In 1987, Harold Evans, a retired stipendiary magistrate from Christchurch, compiled legal materials to support the proposal for a UN General Assembly resolution requesting an advisory opinion. He submitted these to the New Zealand government and sent them to 70 other governments. He also presented the proposal to the Public Advisory Committee on Disarmament and Arms Control (PACDAC), a government appointed body established to advise the government on implementation of the Nuclear Free Zone and Disarmament Act 1987.

At the UN Second Special Session on Disarmament in 1988, PACDAC member Kate Dewes, who was an NGO member of the New Zealand delegation, referred to the proposal.

In 1988, the New Zealand government considered whether it could introduce the proposed UNGA resolution, but concluded that they would not be successful at the UN having already alienated the “Western Block” by “going too far” on nuclear disarmament, and were unable to count on support from the largest voting block – the 105 member Non-Aligned Movement[33] - to which they did not belong.[34] Privately, the project supporters were told to go overseas and build up international support and then the government would come in behind.

Thus, from 1988 - 1991, Evans, Dewes, Dr Robin Briant and this author traveled to New York, Geneva London, the Hague and other key places to ascertain interest from other governments and to build support from the international peace movements. Meanwhile, Erich Gieringer, a doctor from Wellington and member of the International Physicians for the Prevention of Nuclear War (IPPNW), prepared papers supporting the idea of a request from the World Health Organisation and circulated them to IPPNW affiliates.

From this outreach, the project was officially launched in 1992 by the International Association of Lawyers Against Nuclear Arms, IPPNW and the International Peace Bureau. The opening address at the launch was from the Foreign Minister of Zimbabwe, then the chair of the Non-Aligned Movement.

Initial skepticism about the possibility of success was abated with instances of anti-nuclear achievements from the Pacific region. These included the 1974 Nuclear Tests Cases, the New Zealand legislation prohibiting nuclear weapons,[35] and the creation of a South Pacific Nuclear Free Zone.[36]

The New Zealand anti-nuclear legislation was significant in that it was the first time an ally of the United States had reversed its acceptance of nuclear weapons, enshrined this in law and maintained the prohibition in the face of intense pressure from the US, UK and France. The economic weight of the US had blocked or overturned previous attempts in Australia[37] and Palau[38] had been blocked or overturned by the political and economic weight of the US. New Zealand, learning from their neighbour’s experiences, utilised strategies that could counter such pressure in order to maintain its nuclear free status.

These included, among other things:

· Emphasising the health and humanitarian effects of nuclear weapons

· Opposing the weapons not the country possessing them

· Building support at the grassroots through unions, city council resolutions and community peace groups

· Implementing peace and disarmament education programs in schools and the community

· Networking with peace movements in other countries to offer support and information and to seek support when Aotearoa-New Zealand needed it

· Engaging with supportive politicians to strategise and strengthen their resolve, and with less supportive ones to encourage change in their positions.

· Engaging in dialogue with government officials

· Utilising and engaging in political processes through political party policy councils, parliamentary debates and resolutions.

· Perseverance in the face of initial setbacks.

New Zealand’s success in withstanding the intense US political and economic pressure to abandon its nuclear free status, gave encouragement to countries that were interested in the World Court Project, but hesitant to support it for fear of reprisals.

One such example was when US threats to impose a trade boycott on New Zealand caused great consternation amongst the dairy industry – a major component of New Zealand’s economy. New Zealand activists sought assistance from sympathetic groups in the US. A “girlcott’ campaign was initiated – the opposite of a boycott - under which US citizens actively bought New Zealand “nuclear free” products, opposed the imposition of the boycott and gave political and moral support to New Zealand’s stand.

More importantly, it became recognised that the economic interests of the US in trade would not likely be subverted by policy differences with respect to nuclear weapons. In other words, the trade threats were probably never intended to be carried out. Ironically the strongest evidence of this came when Australia, which had condemned New Zealand’s nuclear free status and supported the US in the dispute, was in the late 1980s economically hurt by US wheat dumping on the international market, whilst New Zealand exports to the US nearly doubled during the six years following implementation of the nuclear free policy.

A key to Aotearoa-New Zealand maintaining its nuclear free policy was the development of a greater degree of collaboration between the peace movement and the government. At first there was suspicion on both sides, with peace movement representatives believing the government was secretly planning to give-in to the US as Australia had done, while many in the government felt that the peace movement was too extreme and unrealistic in that it supported withdrawal from the ANZUS alliance and a move to a more pacifist non-aligned foreign policy.[39]

However, Prime Minister David Lange recognised that the peace movement was essential to counter resistance from the conservatives in the foreign ministry and parliament who would have abandoned the anti-nuclear policy. In particular the peace movement rallied anti-nuclear forces in the United States to support New Zealand’s nuclear free stand, thus demolishing the conservatives’ argument that the anti-nuclear policy was anti-American.[40] In addition, peace movement research was essential in exposing and thwarting US attempts to destabilise the New Zealand government.[41]

Thus, the peace movement gained valuable experience in the art of engagement and productive collaboration with government even when there remained considerable distances between peace movement policies and the government.

Getting to Court

The New Zealand experiences were important when the WCP sought support from governments, many of whom had policies or practices, in other peace related areas, for which peace movements were very critical. One example was Indonesia which chaired the Non-Aligned Movement (NAM) working group on disarmament and was thus vital to work with in order to obtain NAM support for the UN resolution. On the other hand, some of the same WCP activists who were working in collaboration with Indonesia on the resolution, where also speaking in other UN bodies against Indonesia’s military occupation of East Timor and human rights violations in the territory.

The WCP successfully developed relationships with key governments, including Colombia, Vanuatu, Costa Rica, Mexico, Indonesia and Zimbabwe, with whom they helped draft resolutions to submit to the World Health Assembly and the United Nations General Assembly. In order to build support from the Non-Aligned Movement, and other non-nuclear countries, to support these resolutions, the project reached out to countries at both grassroots and official levels. At the grassroots level, the project asked city councils, unions, peace groups, and other community organisations to endorse the initiative. By 1994 the WCP had enlisted over 700 endorsing organisations around the world.

The WCP established an opportunity for individuals to make their voices heard through declarations that would be presented to the Court as evidence of the “dictates of public conscience.” This embodied the Martens Clause in the Hague Conventions, which held that:

“in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations as they result from the usages established among civilised people, from the laws of humanity, and the dictates of public conscience.”[42]

At the official level, WCP members met with delegates of countries to the UN and WHA, and traveled to the capitals of many countries to meet with foreign ministry officials, and build up support from many citizen groups. Declarations of public conscience and endorsements from individual countries were used in lobbying the officials of those countries to support the resolutions. WCP members often acted as a bridge between the civil society organisations in countries and their government representatives at the UN and WHA. One example of this was when an ambassador from a small Pacific state was about to abstain on the vote in the UN. When a WCP representative produced a copy of a letter from the Prime Minister of the country to one of the peace groups saying that the country would support the initiative, the ambassador proceeded not only to vote in favour, but to make an intervention encouraging others to support.[43]

Particular attention was paid to the question of how to move states to support the initiative without exposing them to economic and political reprisals from the NWS. It appeared that the best way to do this was to encourage the Non-Aligned Movement to act as a group and collectively introduce the resolution to the United Nations. The WCP thus worked with key NAM states including Mexico, Indonesia, Colombia, India and Zimbabwe on drafting a resolution for NAM to introduce to the UN. However, once the resolution was submitted in 1993, counter lobbying by the NWS forced the NAM to table the resolution, i.e. to request that no action be taken on it. Usually, at the UNGA, this signifies the death of an initiative.

However, the WCP had come a long way and wasn’t going to give up. A similar setback in the World Health Assembly the previous year had been overcome with a strong educational and lobbying effort by IPPNW and sympathetic Ministers of Health, resulting in the WHA adopting a resolution in 1993 requesting the ICJ to give an advisory opinion on the legality of the use of nuclear weapons. It was important for the UNGA to come in behind this with a request on the legality of the threat or use, particularly as there were concerns, which later proved correct, that the ICJ might turn down the WHA’s request on grounds that it did not have the mandate to ask such a question.

The WCP worked with key NAM states to find a way to bypass the lobbying power of the NWS and get the resolution voted upon in the 1994 UNGA. This was done by taking the question to the NAM Summit in Cairo in June 1994. The Summit adopted a simple resolution, which stated that the draft resolution seeking an ICJ opinion would be re-introduced “and put to the vote.” When NAM brought the draft UN resolution back to the General Assembly in October and the NWS turned on the pressure, NAM ambassadors deflected the pressure by saying that it was not up to them to change a decision already made by their leaders at the NAM Summit.

Thus the draft resolution was introduced and adopted in 1994 and the UNGA question to the ICJ was added to the WHA one.

In Court

The WCP then turned its attention to the case itself. Prior to launching the campaign, a rough analysis was made of the likely result of such a case.[44] This included consideration of the judges and their likely positions and concluded that a positive result was likely. However, since then the composition of the Court had changed. By the time the case was in Court, a majority of the judges were from nuclear weapon states or their allies, potentially leading to a negative impact on the result. There was thus an added impetus to ensure that strong legal arguments were presented to the Court and that the anti-nuclear case was strengthened politically through the participation of a large number of countries.

The ICJ invited interested states, the WHA and the UN to provide submissions. The Lawyers Committee on Nuclear Policy prepared model submissions for the WHA and the UNGA questions and circulated them to states.[45] This encouraged states to make submissions, assisted those that had limited time and resources, and also ensured that states had a wide range of legal and factual information to submit.

LCNP and IPPNW also provided advice to the WHA and the UN for their submissions, and individual assistance to a number of countries to help shape submissions to fit their own experience and perspectives. The result was that 45 countries participated either with written statements or in the oral hearings – more than twice the number of countries than for any other case in the history of the Court.

When the oral hearings were held in 1995, the WCP established a base in the Hague to provide legal assistance and technical information about nuclear weapons to participating states, coordinate the presentation of nearly 4 million declarations of public conscience to the Court to support the case, and provide publicity about the case as it progressed.

NGO assistance to states was greatly appreciated. Many states had very limited budgets and legal or technical experience in the area. They were opposed by the NWS and some of their allies[46] which invested considerable resources to support their nuclear policies.

The NWS attempted to discredit the NGOs hinting that they were pushing their biased agenda onto small helpless states.

The UK for example submitted that the requests:

"are the result of a sustained campaign by a group of non-governmental organizations ... which have long been active in promoting what they have termed 'The World Court Project’”

Ambassador Slade, representing Samoa, replied that:

My Government is not at all offended by the involvement of NGOs in this matter. The

United Nations Charter begins with the lofty words:

"We the Peoples of the United Nations determined to save succeeding generations

from the scourge of war, which twice in our lifetime has brought untold sorrow to

mankind ..."

One might consider the reference to the "peoples" as no more than a pious phrase, a conceit perhaps, were it not for Article 71 of the Charter which gives an institutionalized standing to those NGOs which have consultative status. The Charter takes NGOs seriously. Indeed Article 66 of the Statute of this Court empowers the Court to avail itself in advisory proceedings of information furnished by NGOs. The United Nations and WHO are strengthened by the efforts of NGOs, inconvenient and demanding as those bodies may sometimes be.[47]

The WCP also assisted the Marshall Islands to bring Lijong Eknilang, a survivor of nuclear testing in the Pacific, to the Court. Lijong’s personal experiences of miscarriages and deformed babies resulting from a nuclear explosion 100 miles from her island, and her testimony of similar effects on many other women, impressed on the judges the inhumanity and indiscriminate nature of these weapons.

My own health has suffered very much, as a result of radiation poisoning. I cannot have

children. I have had miscarriages on seven occasions. On one of those occasions, I miscarried after four months. The child I miscarried was severely deformed; it had only one eye. I have also had thyroid surgery to remove nodules. I am taking thyroid medication which I need every day for the rest of my life. Doctors recently found more nodules in my thyroid, which have to be removed in the near future. I have lumps in my breasts, as well as kidney and stomach problems, for which I am receiving treatment. My eyesight is blurred, and everything looks foggy to me.

Women have experienced many reproductive cancers and abnormal births. Marshallese

women suffer silently and differently from the men who were exposed to radiation. Our culture and religion teaches us that reproductive abnormalities are a sign that women have been unfaithful to their husbands. For this reason, many of my friends keep quiet about the strange births they had. In privacy, they give birth, not to children as we like to think of them, but to things we could only describe as "octopuses", "apples", "turtles", and other things in our experience. We do not have Marshallese words for these kinds of babies because they were never born before the radiation came.[48]

A key strategy employed by many of the states participating was to condemn nuclear weapons, not the NWS. The Marshall Islands, for example, did not criticise the US for the nuclear tests in their territories, despite evidence that US often showed scant regard for the populations, but rather noted that:

We are assured by the responsible party that every reasonable effort was made to avoid any human injury, as well as any damage to inhabited islands. The only conclusion that we may reasonably reach, then, is that nuclear weapons, by their nature, are indiscriminate in their effects - and very seriously so.[49]

Similarly New Zealand specifically commended US adherence to legal principles relating to the protection of the environment and subsequent generations,

That idea of a continuing obligation owed to future generations is increasingly recognized in environmental law. Indeed, it is noteworthy that over 200 years ago, an American President, James Madison, espoused a not dissimilar principle when writing in the National Gazette on 2nd February 1792:

"Each generation should bear the burden of its own wars, instead of carrying them on, at the expense of other generations."[50]

This strategy was designed to impress upon the judges that the rationale for the case was not to conduct a political vendetta against the NWS, but rather to address genuine concerns about nuclear weapons themselves.

The Decision

When the Court gave its decision on 8 July 1996, it prompted a flurry of claims and counter claims. Some nuclear weapon states said that their policies were in accordance with the decision; most others claimed the opposite. The confusion arose because the judges failed to condemn nuclear weapons absolutely. While stating that the threat or use of nuclear weapons would generally be illegal, the Court concluded that it could not rule definitively on whether such illegality would hold “in an extreme circumstance of self defense, in which the very survival of a state would be at stake.”

The nuclear weapons states then argued that they only intend to use nuclear weapons in extreme circumstances. Other commentators responded that the nuclear weapon states were conveniently ignoring a unanimous holding by the ICJ, namely that a threat or use of nuclear weapons “should also be compatible with the requirements of international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law¼” This holding would apply in all circumstances, even extreme ones.

Ann Fagan Ginger[51] sets out these principles and rules of international law, which include a prohibition on using weapons which are indiscriminate, violate neutral territory, cause long-term and severe damage to the environment, cause unnecessary suffering or are disproportionate to the act of provocation. Ginger argues that any nuclear weapon currently in existence, if used, would violate some or all of these rules.

The Court itself appeared to agree when it stated it did not have enough evidence to conclude that the use of smaller nuclear weapons could possibly be legal. Ginger argues therefore that the “hole” presumably opened by the Court’s indecision on the extreme circumstance situation, actually leads to “an impenetrable wall of steel” covered by the unyielding prohibition on the threat or use of weapons which would violate humanitarian laws of warfare.

Japanese Professor of International Law Terumi Furukawa likens the Court’s decision to that of Portia in Shakespeare’s The Merchant of Venice. After finally accepting Shylock’s persistent claim to cut off a pound of flesh nearest the heart, Portia declares that such an act is allowed only if “This bond doth give thee no jot of blood,” thus making the act impossible.

More important is the fact that virtually all of the nuclear weapons deployed by the nuclear weapon states are not “small” mini-nukes, but strategic weapons with explosive powers many times that of the bombs that destroyed Hiroshima and Nagasaki.[52] Therefore, using these weapons could not possibly be “compatible with the requirements of international law.”

Regardless of whether or not there may possibly be a legal use of a small nuclear weapon in an extreme circumstance, the duty, as unanimously declared by the court, is for states to negotiate for their elimination. John Burroughs[53] argues that the current policies and practices of the nuclear weapon states violate this duty.

Influence on individual states

The main response of the nuclear weapon states, as expected, was to claim that their policies did not violate the ICJ decision. However, there is evidence of some influence on the United Kingdom government, which acknowledged the status of the Court and has since made some changes to policy and practice. These include standing down its nuclear weapons from high alert, making a commitment to a nuclear weapons convention,[54] and undertaking a study on verification for the elimination of nuclear weapons.[55]

In the US a group of congressional members, encouraged by constituents who were part of the WCP, drafted a letter to President Clinton asking him to comply with the ICJ opinion by initiating a review of nuclear policy.[56] This was followed by a draft resolution citing the ICJ opinion and calling on the President to implement it by initiating negotiations for a nuclear weapons convention.[57]

The decision had a more immediately tangible influence on non-nuclear states, emboldening them to call more stridently for the NWS to achieve nuclear disarmament and, in the interim, to change their nuclear doctrine.

The day after the ICJ delivered its decision, Philippines President Ramos welcomed the decision and called on NPT members to convene immediately to “negotiate a comprehensive Nuclear Weapons Convention pursuant to their obligation and responsibility under Article VI.”[58]

The decision prompted Canada, a member of the NATO nuclear alliance, to implement a review of its nuclear weapons policy in light of the Court’s conclusions. Moreover, the government involved public participation in the review, influenced most likely by the high level of public interest and participation in the WCP.[59]

Canberra Commission

Another collaborative initiative between governments and NGOs that was influenced by the World Court Project was the Canberra Commission on the Elimination of Nuclear Weapons. The Australian government came under considerable pressure from its peace movement to make a disarmament initiative when it failed to support the UN resolution requesting the ICJ advisory opinion in 1994. Parliamentarians and activists recalled the rationale offered by the government that such an opinion could upset negotiations on the CTBT. However, when France resumed nuclear testing in the Pacific in 1995, this rationale appeared ludicrous. The huge anti-testing protests that erupted were directed as much against the Australian government for its weakness as against the French government for the testing.

This appeared to be one of the main motivating factors for the government to launch the Canberra Commission. To its credit, the government appointed a sterling commission comprising leaders from military, civilian, scientific and non-governmental communities.[60]

In its report the Commission:

“noted with satisfaction the response of the International Court of Justice made in July 1996 to a request from the General Assembly of the United Nations for an advisory opinion on the legality of the threat or use of nuclear weapons. The Court's statement that there existed 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 is precisely the obligation that the Commission wishes to see implemented.”[61]

The Commission developed a disarmament plan that later served as a basis for the New Agenda Declaration (see below). The plan called on the NWS to give the lead by committing themselves, unequivocally, to the elimination of all nuclear weapons. It also outlined immediate disarmament steps including:

· Taking nuclear forces off alert

· Removal of warheads from delivery vehicles

· Ending deployment of non-strategic nuclear weapons

· Ending nuclear testing

· Initiating negotiations to further reduce United States and Russian nuclear arsenals

· Agreement amongst the nuclear weapon states of reciprocal no first use undertakings, and of a non-use undertaking by them in relation to the non-nuclear weapon states,

and reinforcing steps including:

· Action to prevent further horizontal proliferation

· Developing verification arrangements for a nuclear weapon free world

· Cessation of the production of fissile material for nuclear explosive purposes.

Influence in international arenas

Following the Court’s decision the United Nations and the European Parliament adopted resolutions calling for its implementation through the immediate commencement of negotiations leading to the conclusion of a nuclear weapons convention (treaty) which would prohibit the development, testing, production, stockpiling, transfer, use and threat of use of nuclear weapons and provide for their elimination.[62]

The resolutions arose from the connections and relationships built between governments and NGOs during the World Court Project. LCNP, whose President was on the Malaysian legal team for the case, helped Malaysia draft the resolution and lobby for its adoption at the UN. Many of the co-sponsoring states had worked on the case with LCNP and other WCP members.

The ICJ decision and the follow-up UN resolution also empowered Abolition 2000 (A2000), a global movement now numbering over 2000 organizations, which was formed during the ICJ hearings[63]. A2000’s principal call is for the immediate commencement of negotiations on a nuclear weapons convention (NWC).

In 1997 the United Nations circulated a Model Nuclear Weapons Convention, submitted by Costa Rica in order to assist in the implementation of the ICJ decision and the UN call for negotiations leading to a NWC. The Model NWC had been drafted by a consortium of lawyers, scientists and disarmament experts led by the Lawyers’ Committee on Nuclear Policy. Costa Rica explained that the Model NWC sets forth “the legal, technical and political issues that should be considered in order to obtain an actual nuclear weapons convention.”[64]

The UN Secretary-General circulated the Model NWC for states to consider.[65] It has also been the subject of a number of scientific, academic and diplomatic conferences in the UK, China, Geneva, New York, Canada and India, and stimulated further consideration in the 2000 Non-Proliferation Treaty Review Conference of the steps towards nuclear disarmament and the elements of a nuclear weapon free regime.[66]

Influence on peace activists

Citizens in nuclear weapon states and in the states where nuclear weapons are deployed, have been inspired by the World Court opinion to take action against nuclear weapons at their sites of production, testing, deployment and control.

Modeled on the inspections conducted by the United Nations Special Committee on Iraq’s weapons of mass destruction (UNSCOM), groups of “citizen weapons inspectors” have attempted to inspect nuclear weapons facilities in order to determine whether or not they are in compliance with international law as determined by the International Court of Justice. Some weapons inspectors have been arrested for breaking into nuclear facilities after access has been denied. Some activists have gone further and committed symbolic acts of “disarmament” on nuclear weapons and their systems and then been arrested and charged with crimes such as conspiracy and damage of government property. In the court cases, the defendants argue that they had a duty to conduct such acts to uphold international law even if they had to break domestic law to do so. They cite the Nuremberg Principles, which state that, with respect to war crimes and crimes against humanity, an individual is required to refuse superior orders or domestic regulations if they are in opposition to international law. Such defense has had varying degrees of success in the Courts. While some defendants have been convicted and sentenced to prison terms, others have been acquitted. An acquittal by a Scottish court in October 1999 of three women who damaged equipment for the UK Trident nuclear weapons system[67] led to the Scottish Parliament debating whether nuclear weapons are illegal and should thus be removed from the UK.[68]

International Criminal Court

On July 17, 1998, after two years of intense negotiations, the Statute for an International Criminal Court was adopted in Rome. The Statute provides for the establishment of a court to try individuals accused of serious crimes including genocide, war crimes and crimes against humanity, and outlines the elements of such crimes over which the court would have jurisdiction.

The ICJ advisory opinion was influential in two main respects:

· Language from the ICJ opinion on weapons which are “inherently indiscriminate” made its way into the description of weapons the use of which would be a crime under the Statute.

· An attempt by the NWS to legitimise their nuclear policies by specifically including the employment of chemical and biological weapons but excluding nuclear weapons and landmines, was thwarted by other States referring to the illegality of nuclear weapons as affirmed by the ICJ.

The negotiations provided a useful forum for raising the issue of the criminality of use of nuclear weapons and laid the groundwork for specific inclusion of the threat or use of nuclear weapons as a crime under the ICC’s jurisdiction in the future.[69]

New Agenda Declaration

In June 1998, the foreign ministers of Aotearoa-New Zealand, Brazil, Egypt, Ireland, Mexico, Slovenia, South Africa and Sweden released a joint declaration entitled Towards a Nuclear-Weapon-Free World: The Need for a New Agenda. It called for renewed international efforts towards nuclear disarmament and outlined a program to achieve this.

The New Agenda countries actively promoted the agenda in international fora, and were very influential in forging a successful outcome to the 2000 NPT Review Conference.

The Court’s decision was highlighted in the New Agenda Declaration, the New Agenda resolution at the United Nations and the NPT 2000 Final document.

Other influences

The WCP involved a unprecedented level of NGO involvement in UN arenas in which they had participated very little previously. This included the World Health Assembly, UN General Assembly First Committee (Disarmament and Security) and the International Court of Justice. The ICJ was not used to such a level of NGO and media interest, nor quite prepared for it, and had to open up previously unused rooms and add video monitors to relay the hearings.

Dewes notes that as a result of this heightened NGO activity in these UN organs in a professional collaborative manner :

“There is no doubt that especially during 1992 – 1995 the WCP helped democratise three key UN organs: the ICJ, WHA and UNGA. It was unequalled in terms of effective peace movement coalitions working in close partnerships with a wide range of governments within the UN.”[70]

The World Court Project appears to have stimulated greater interest in and respect for the International Court of Justice contributing to the dramatic increase in states referring disputes to the Court. Prior to the case, many non-aligned countries, for example, suspected that the Court, like the UN Security Council, was another discriminatory institutional tool used by the nuclear weapon states and their allies to dominate developing and non-aligned countries. Malaysian Ambassador Razali Ismail indicated this when he told the court:

The Court is being asked by the nuclear-weapon States, in essence, to perpetuate the right of these five countries to that power apparatus, even when the rest of humanity rejects the diabolical potential interest in nuclear weapons. If the laws of humanity and the dictates of the public conscience demand the prohibition of such weapons, the five nuclear-weapon States, however powerful, cannot stand against them. International law cannot be utilized to support State practices which deviate from fundamental principles and mainstream aspirations. Otherwise we would be legitimizing the principle that might is right and we would have to come to the frightening conclusion that international law is on the side of the powerful, as interpreted by the powerful.[71]

The Court’s decision in this case, while not being watertight against the nuclear weapon states, was an incredibly powerful challenge to their nuclear policies. Ismail noted that the case achieved “astonishing results from the highest court in the world. The World Court clearly ruled that the threat or use of nuclear weapons is illegal in almost all conceivable circumstances.”

Razali went on to become the President of the United Nations General Assembly from 1996 – 97 during which time he appeared to use the positive experience from working closely with NGOs on the WCP to open up the UNGA to greater NGO participation.

The WCP also had some influence on NGO participation in the negotiations for the Statute for the International Criminal Court and in the NPT 2000 Review Conference., Key WCP activists used the diplomatic contacts they had developed in the WCP to advance proposals through government delegations to these meetings and, in some cases, to be appointed onto government delegations. Such delegations included Samoa, Philippines, New Zealand, Malaysia, Costa Rica and Ireland.

Looking Forward

The WCP involved collaboration between NGOs, and NNWS to successfully confront the policies of the NWS. The challenge following the ICJ decision is how to most effectively use the decision to achieve nuclear disarmament. While there is still a role for initiatives which confront the NWS - such as domestic court actions, critical UN resolutions and further actions in the ICJ – there is a greater need to engage constructively with States, including the NWS, on the development of plans for nuclear disarmament. This entails taking into consideration the security needs of States and the legal, technical and political requirements for the complete abolition and elimination of nuclear weapons[72].

The Model Nuclear Weapons Convention provides opportunities for disarmament advocates and NWS officials to discuss concrete elements of a nuclear abolition regime without requiring a politically difficult prior commitment to support either the specific elements or the entire convention. Such dialogue shifts the debate from a polarizing one where parties are defending different positions on disarmament issues[73], to one of collaborative problem solving. Dialogue about the MNWC does not focus on whether States currently support or oppose specific disarmament steps, but rather on how to collectively build a regime for nuclear disarmament in which all States (and citizens) have confidence and security.[74]

As such, the MNWC has enabled nuclear disarmament advocates and NWS policy makers to engage in constructive dialogue on nuclear disarmament elements in a number of settings including: [75]

In August 1997, a roundtable consultation of delegates from 20 countries to the UN in Geneva discussed various aspects of the MNWC.
In March 1998, policy makers from China, France, India, Pakistan, Russia, UK and US discussed the MNWC at a retreat in Neemrana, India.
In June 1998, US Representative Lynn Woolsey hosted a seminar on the MNWC which was attended by representatives from 30 congressional offices.
At various lobbying days organized by disarmament groups, and at other informal meetings with members of the US Administration, Department of Energy, Department of Defense and Congress, advocates have used the MNWC as a tool for engaging in discussion about the possibilities of nuclear disarmament.
The Nuclear Weapons Convention Monitor, which includes discussion on the MNWC, has attracted both readers and contributors from NWS.[76]