This article has been written by Mr. Dhruva Ranjan, a second-year student of Christ (deemed to be) University, Delhi NCR.
Abstract
Natural law principles played an important role in the early development of international legal theory, but were subsequently displaced by positivist ideals. Within the past half-century, fundamental changes in international society have revealed the limitations of a purely positivist approach to contemporary global concerns, particularly in issues of international peace and security. This article reintroduces a natural law analysis into the framework of international legal theory, and considers as a case study the relevance of natural law principles in addressing the modem dilemma of nuclear disarmament. Recalling the work of early international law scholars, the author describes the dual natural law precepts of reason and the common good and their relation to the principle of the peaceful resolution of disputes. A review of the mixed success of international efforts towards nuclear disarmament indicates that many states continue to regard the right to wage war as a sacrosanct principle in international law, notwithstanding formal declarations to the contrary. Comprehensive nuclear disarmament will not be achieved unless the international community ceases to treat the sovereign will of states as the ultimate source of international norms, and admits the essential incompatibility of aggressive warfare with a just international regime oriented towards the integral fulfilment of individuals.
Introduction
In recent history, the interdependence among nations increased.’ Despite the changing world, sovereignty remains a central issue in international affairs. As nation-states conduct their affairs, traditionally their primary concern has been for the independence of their statehood or sovereignty. Despite such concerns, issues of war and peace drove nation-states to build alliances. Modern developments, however, emphasize global concerns placing globalization at the forefront and national sovereignty in peril.5 With increased globalization of the world community, the efficacy and, consequently, the validity of the individual nation is greatly weakened unless it acts in concert with other nations. Thus, a sovereign state must establish a balance between self-determination and independence on the one hand, and the necessary development and strengthening of the international community on the other.
The aims outlined in Article 1 of the United Nations Charter include nuclear disarmament. In 1996, the International Court of Justice (ICJ) issued an advisory judgment on the legality of nuclear weapons use, stating that governments acting in good faith must aim for nuclear disarmament. In the Marshall Islands Cases, 20 years later, the ICJ was able to examine issues concerning the termination of the nuclear weapons race and nuclear disarmament. However, the ICJ has failed to promote nuclear disarmament in the international community. The Marshall Islands’ application was denied by the ICJ on jurisdictional grounds since the parties did not have a legal dispute. The ICJ in determining the existence of a dispute introduced a subjective awareness test. In this case note, we aim to examine the awareness test and its politico-legal effects in the development of international law. While doing so, we also argue that the test has further rendered the enforcement of nuclear disarmament obligations arduous.
A law, universally accepted by the community of sovereign states, will define this balance Key to the development of an international rule of law, judicial institutions such as the International Court of Justice (ICJ) craft customary law into broadly accepted regulations. Increasing globalization and decreasing sovereignty impact the international legal debate on the legality of nuclear weapons. Before the end of the Cold War, nuclear weapons represented a necessary evil for nation-state security. However, with the advent of increased globalization, nuclear weapons may not be such a necessary or desired security device. The threat or use of nuclear weapons raises a number of global threats including: human rights, the environment, and economics. In fact, with the increase in global concerns of nuclear weapons, the General Assembly request for the advisory opinion of the ICJ on the legality of the use or threat of nuclear weapons represented a perfect opportunity for the Court to set the standard on the illegality of nuclear weapons. Each global threat involves the tug o’ war between globalization and sovereignty. The sovereignty of the nation-state diminishes when international threats become equally important as national, state, and local matters. The International Court of Justice addressed these global threats as part of its advisory opinion on the legality of the threat or use of nuclear weapons as requested by the General Assembly. The implications of the ICJ’s decision vary.’ However, those issues unanswered by the Court are even more compelling than what the Court articulated.’ This piece explores the relationship of the nuclear debate to the globalization versus sovereignty debate. Central to this exploration is the ICJ’s advisory opinion on the legality of the threat or use of nuclear weapons and its discussion of global concerns. Nuclear weapons are the most dangerous weapons on earth. One can destroy a whole city, potentially killing millions, and jeopardizing the natural environment and lives of future generations through its long-term catastrophic effects. The dangers from such weapons arise from their very existence.
Although nuclear weapons have only been used twice in warfare, about 12,500 reportedly remain in our world today and there have been over 2,000 nuclear tests conducted to date. Disarmament is the best protection against such dangers but achieving this goal has been a tremendously difficult challenge.
The UN has sought to eliminate such weapons ever since its establishment. The first resolution adopted by UN in 1946 established a Commission to deal with problems related to the discovery of atomic energy among others. The Commission was to make proposals for, inter alia, the control of atomic energy to the extent necessary to ensure its use only for peaceful purposes.
Several multilateral treaties have since been established with the aim of preventing nuclear proliferation and testing, while promoting progress in nuclear disarmament.
These include the Treaty on Non Proliferation Of Nuclear Weapons, the Treaty Banning Nuclear Weapon Tests In The Atmosphere, In Outer Space And Under Water, also known as the Comprehensive Nuclear Ban Treaty, which was signed in 1996 but has yet to enter into force, and the Treaty on Prohibition of Nuclear Weapons.
The ICJ’s dismissal of the application submitted by Marshall Islands is significant as it is founded on a subjective conception of establishing a legal dispute. The ICJ in determining the existence of a dispute has relied on the respondents’ awareness of the applicant’s positive opposition to its views. This section aims to comprehend and examine the aforementioned conception and its politico-legal effects in the development of international law. In doing so, the section examines the awareness test, the jurisprudence on determining a dispute and the impact of the judgment.
The ICJ has substantially diverged from its past jurisprudence, which had demonstrated a consistent approach commencing with the decisions of the Permanent Court of International Justice (PICJ) and culminating in recent cases such. While relying on the Nicaragua v Columbia case, the ICJ also observed that ‘whether a dispute exists is a matter for objective determination by the ICJ which must turn on an examination of the facts. However, while determining the existence of a dispute between Marshall Islands and the respondent states, the majority of the ICJ introduced a ‘subjective physical criterion’, namely the requirement of the respondents being aware that ‘Marshall Islands was making an allegation that India [respondent] was in breach of its obligations’. This required Marshall Islands to prove that it has expressed its indictment of the respondents in a particular form, making them aware of the dispute, for instance by explicitly naming them in an international conference.
This is not the first time that the awareness test has been employed by an international dispute resolution body.
The ICJ in this case, however, has adopted a relatively restrictive and narrow understanding of the awareness test, when compared with the De Curzio case. This requirement has entrenched the importance of procedure and has made the judicial process comparatively inaccessible. Such procedural firmness and formal rigour were deliberately reduced in the preceding cases. For instance, the ICJ has held that the establishment of a dispute is a question of substance and not a matter of form or procedure. However, the requirement of making the respondents aware of the dispute, especially in an individualised bilateral form, is a procedural prerequisite rather than one of substance. The ICJ has also held that the prior negotiation is not a sine qua non requirement for the existence of a dispute.
In the present case the ICJ has obscured the distinction in the aforementioned cases between a procedural lapse and the existence of a dispute. Though the ICJ in the present case clarified that there is no requirement of a notification to the respondent before the filing of the case to establish the existence of a dispute, the novel requirement of the awareness of the respondent of the existence of a dispute prior to filing of the application comes dangerously close to the requirement of a notification.
The ICJ is the judicial branch of the United Nations, and the highest and most authoritative court in the world on questions of international law.
On 8 July 1996, the ICJ issued its advisory opinion, The Legality of threat. This opinion ruled that nuclear weapons are generally illegal, and all states that possess them are obligated to bring to a conclusion negotiation on nuclear disarmament in all its aspects.
The ICJ found that:
1) the threat or use of nuclear weapons “would generally be contrary” to humanitarian and other international law regulating the conduct of warfare; and
2) under Article VI of the nuclear Non-Proliferation Treaty and other international law, states are obligated to “pursue in good faith and bring to a conclusion negotiation leading to nuclear disarmament in all its aspects under strict and effective international control”.
The opinion was issued in response to a request from the UN General Assembly, spurred on and supported by a global civil society campaign, the World Court Project.
The Court’s reasoning
The Court did not make new law. It merely confirmed certain well-established principles of the law of war, also known as humanitarian law. These are prohibitions against methods and means of warfare which fail to distinguish between civilian and military targets, which result in the infliction of unnecessary suffering on combatants and which violate the neutrality of non-combatant states. The Court described the unique character of nuclear weapons, whose immense destructive power, it said, cannot be contained in either time or space, thus making their use inherently incompatible with the rules of humanitarian law.
In reply to the argument that there was no treaty specifically forbidding the use of nuclear weapons, the Court referred to the famous Martens clause, so named after the Russian foreign minister at the time of the first Hague Peace Conference (1899), which provides that “in cases not covered by international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.”
The seven also held that, given the elements of fact and law at their disposal, they could not decide whether this rule applied “in an extreme circumstance of self-defence in which the very survival of a state would be at stake.” Of the seven dissenting judges, three voted for illegality without exception, thus making the vote for general illegality, in fact, ten to four.
Disarmament obligation
The opinion ended with the following unanimously adopted clause: “There exists an obligation to pursue in good faith and bring to a conclusion negotiation leading to nuclear disarmament in all its aspects under strict and effective international control.” This is now the authoritative interpretation of Article VI of the Nuclear Non-proliferation Treaty. In General Assembly resolutions following up on the opinion, the interpretation has been endorsed almost all states. In 2002 the vote on the paragraph containing the Court’s conclusion was 161-4 with one abstention.
Conclusion
The nexus between natural law principles and the contemporary global issue of nuclear disarmament presents a compelling framework for re-evaluating international legal perspectives. The evolution of international society over the past half-century has underscored the inadequacies of a purely positivist approach, particularly in addressing pressing concerns related to international peace and security. This article has sought to reintroduce a natural law analysis into the fabric of international legal theory, with a specific focus on the International Court of Justice’s (ICJ) role in the context of nuclear disarmament.
The interdependence among nations has heightened in recent history, challenging traditional notions of sovereignty as nation-states grapple with the delicate balance between self-determination and cooperation on a global scale. The United Nations Charter, with its commitment to nuclear disarmament outlined in Article 1, establishes a foundation for addressing the urgent need to eliminate the most dangerous weapons on Earth – nuclear weapons. However, the ICJ’s role in promoting nuclear disarmament, as evidenced by the Marshall Islands Cases, reveals both its potential impact and limitations.
The ICJ’s advisory judgment in 1996 on the legality of nuclear weapons use laid the groundwork for addressing nuclear disarmament. The Court emphasized that governments, acting in good faith, must aim for nuclear disarmament. Yet, the subsequent Marshall Islands Cases, occurring two decades later, demonstrated the challenges in translating such legal principles into concrete action. The ICJ’s denial of jurisdiction in the Marshall Islands’ application raised questions about the effectiveness of the Court in promoting nuclear disarmament, especially in the face of states upholding the perceived sacrosanct principle of the right to wage war.
The awareness test introduced by the ICJ in determining the existence of a legal dispute has become a critical factor in the enforcement of nuclear disarmament obligations. The subjective awareness test, requiring the respondents to be aware of the applicant’s specific allegations, has added complexity to the legal landscape. This test, while not unprecedented, represents a departure from the Court’s past jurisprudence and introduces a procedural hurdle that could impede progress in nuclear disarmament.
Moreover, the global debate on nuclear weapons intertwines with broader discussions on globalization versus sovereignty. The ICJ’s advisory opinion on the threat or use of nuclear weapons recognized the global threats posed by these weapons, including impacts on human rights, the environment, and economics. The tension between globalization and sovereignty becomes evident as international threats gain prominence alongside traditional national concerns.
Despite the dangers posed by nuclear weapons, achieving comprehensive disarmament has proven to be a formidable challenge. The United Nations, through various multilateral treaties, has endeavoured to prevent nuclear proliferation and testing while pushing for progress in disarmament. However, the ICJ’s role in facilitating this process is nuanced, as demonstrated by its handling of the Marshall Islands Cases.
The ICJ, as the highest and most authoritative court in the world on matters of international law, must navigate the delicate balance between state sovereignty and global concerns. The natural law principles of reason and the common good, highlighted in this article, underscore the imperative for the international community to move beyond treating the sovereign will of states as the ultimate source of norms. A just international regime, oriented towards the integral fulfilment of individuals, requires a concerted effort to overcome obstacles and work towards the common goal of nuclear disarmament. The awareness test, as employed by the ICJ, demands scrutiny for its potential impact on the advancement of international law and the pursuit of a safer, more secure global future.
References
- This article was originally written by Phon van den Biesen published on Reaching Critical Will website. The link for the same is herein.
https://www.reachingcriticalwill.org/resources/fact-sheets/critical-issues/4744-international-court-of-justice-and-its-1996-advisory-opinion#:~:text=On%208%20July%201996%2C%20the,disarmament%20in%20all%20its%20aspects.
- This article was originally written by Kai Ambos published on Ejil Talk website. The link for the same is herein.
https://www.ejiltalk.org/the-icj-and-nuclear-disarmament-towards-a-universal-obligation/
- This article was originally written by Pieter H.F Bekker published on American Society of International Law website. The link for the same is herein. https://www.asil.org/insights/volume/1/issue/5/advisory-opinions-world-court-legality-nuclear-weapons
- This article was originally written by Daryl G. Kimball published on Arms Control Association website. The link for the same is herein. https://www.armscontrol.org/act/2016-03/news-briefs/icj-hears-nuclear-disarmament-case
- This article was originally written by Meenakshi Ramkumar published on Utrecht Journal of International and European Law website. The link for the same is herein. https://utrechtjournal.org/articles/10.5334/ujiel.422