The JCLU held the Eighth Kubota Memorial Symposium on December 7, 1996, with a theme "Nuclear Weapons: ICJ Advisory Opinion and Japan," to examine the significance of an advisory opinion given by the International Court of Justice (ICJ) on July 8, 1996.
In its opinion, the ICJ found that the use of nuclear weapons, in general, contravenes provisions in the law applicable in armed conflict, and principles of international humanitarian law. However, concerning their "use in an extreme circumstance of self-defence, in which its very survival would be at stake," the ICJ stated that "it cannot reach a definitive conclusion as to the legality or illegality."
The symposium had three speakers who reviewed the issue in connection with legal arguments, Japanese diplomacy, and the civil movement.
The advisory opinion of the ICJ is given when requested by the organization of the United Nations (UN). The opinion itself is not legally binding but nevertheless has significant legal authority. While the ICJ rejected the request made by the World Health Organization (WHO), it granted the request from the UN General Assembly regarding the legality of nuclear weapons and gave an advisory opinion.
The ICJ stated that certain treaties cannot be applied on a general basis. Such treaties include the International Covenant on Civil and Political Rights (Article 6: the right to life, in particular), the Convention on the Prevention and Punishment of the Crime of Genocide, and treaties regarding environment. The ICJ avoided judging directly from the above treaties, relying instead on the Charter of the United Nations (UN Charter) and international humanitarian law. Article 2 (4) of the UN Charter stipulates that "All Members shall refrain ... from the threat or use of force." The ICJ did not make a special distinction between the threat and the use, stating that if nuclear weapons are to be used in either way, they are to be deemed illegal.
Concerning international humanitarian law, the ICJ mentioned that although there is no general international law that prohibits nuclear weapons, it is possible to apply general norms -- such as the prohibition of weapons of indiscriminate destruction or the prohibition of the conferment of unnecessary suffering -- to their use. The ICJ stated, however, that it cannot reach distinctive conclusion about legality of the use of nuclear weapons in circumstances in which a nation's security is at stake.
The ICJ came to the following conclusions: A) There is no international law that permits the threat and use of force involving nuclear weapons. B) There is no comprehensive and universal international law that specifically stipulates the prohibition of the threat and use of nuclear weapons. C) The threat and use of force involving nuclear weapons is contrary to Article 2 (4), of the UN Charter and is illegal. D) Regarding the threat and use of nuclear weapons, the international community must take into consideration the principles of international humanitarian law and the demands made by treaties concerning nuclear weapons. E) The threat and use of nuclear weapons is in general illegal, particularly in light of the principles of international humanitarian law. However, under extreme circumstances involving self-defense -- when the very survival of a state is at stake -- the legality of the threat and use of nuclear weapons cannot be determined. F) There lies an obligation to negotiate in good faith in an attempt to achieve nuclear disarmament in all its aspects.
It is evident that there are some problems with the ICJ's opinion. First of all, the ICJ does not make a distinction between the threat and the use of nuclear weapons. In other words, if the use of nuclear weapons is legal, then the threat may as well be legal. This problematic lack of distinction may be due to the lingering influence of the policy of nuclear deterrence during the Cold War.
Secondly, the term "general" illegality is unclear. We cannot discern whether the ICJ means that all threat and use of force involving nuclear weapons -- except in self-defense -- is illegal, or whether there are other situations in which such actions would not go against humanitarian law.
Thirdly, when one considers the concept of an extreme circumstance of self-defense -- in which the very survival of a state is at stake -- it is important to keep in mind that the decision to engage in self-defense must be made by each state. The ICJ's words could be construed to mean that a state can use the term "self-defense" to justify not only its use or threat of nuclear weapons to protect its own borders but to protect allied countries that do not have nuclear capabilities. In contrast to conclusion E), we are given the impression that international humanitarian law may not be applied in such circumstances. If we are to take into consideration the desire for small states to arm themselves with nuclear weapons for self-defense, there is a danger that conflicts will arise with the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), and with Conclusion F) as well.
Lastly, we should acknowledge that the ICJ's statement obligating nations to conclude nuclear disarmament treaties is a major step forward, considering that the NPT only stipulates an obligation to negotiate. We must also acknowledge that this decision represents positive steps in judicial law-making.
Though we must not overestimate the ICJ's advisory opinion, it is basically praiseworthy in that it declares the general illegality of nuclear weapons. States with nuclear weapons have also welcomed this opinion. Although it may not alter the policies of various nations, the UN General Assembly's reactions to the views of the ICJ are worth observing.
Until the 1980s, Japan had not taken an active role in the nuclear weapons controversy. In the 1980s, however, the Japanese government began to oppose, one by one, resolutions involving nuclear disarmament. This position might be tolerable when Japan was not an economically powerful country, but nowadays its position seems increasingly inflexible and inappropriate. Despite the end of the Cold War, this position has not changed.
In 1990, when the South Pacific Denuclearization Resolution -- opposed only by the United States and supported by Europe -- was voted on, Japan was the only country to abstain, despite the fact that it did not have a vital interest in the outcome. From 1989 to 1991, Japan continued to firmly oppose denuclearization in the Indian Ocean. In addition, when the illegality of nuclear weapons was discussed in the ICJ, Japan was about to submit to the ICJ a government opinion stating that nuclear weapons are not illegal within the context of international law, though in the end it did not. These facts indicate that Japan did not change its position, even with the end of the Cold-War. Japan has taken its position through its own initiative, not because it is being forced by the outside world.
Due to the influence of internal public opinion criticizing Japan's diplomatic position in the Gulf War, as well as the influence of the Diet, Japan changed its position regarding the denuclearization of the Indian Ocean, eventually supporting such a measure. Japanese government changed its official position because denuclearization is one of the areas in which Japan can afford to be flexible without jeopardizing its diplomatic relationship with the United States.
Not only should the Japanese government be blamed, but the Japanese citizens who ignored the government's irresponsible attitude toward nuclear disarmament. If Japanese citizens paid more attention to government activities and took action, the attitude of the government would certainly change.
The Ministry of Foreign Affairs is in a position to use international public law for the realization of its diplomatic policy. Its position has been to use international law to realize its policies, ignoring it when useless. At present, one of the top priorities of the Ministry of Foreign Affairs regarding United Nations policy is to become the permanent member of the UN Security Council. The fact that nations with nuclear weapons can veto Japan's membership might encourage the Japanese government not to support denuclearization. Only 40% of the member states of the UN General Assembly consented to a request to the ICJ for an advisory opinion regarding the legality of nuclear weapons. This outcome was due to the fact that some African and other states in economic crisis had been influenced by more powerful states not to consent. Even this level of support in the General Assembly will probably not be achieved again.
In the future, the solution will be to collect information, analyze it, and make it public. It is necessary to keep track of which delegations hold which opinions and elaborate on strategies to approach each delegation.
The international movement to make the ICJ address nuclear weapons was first proposed by the International Association of Lawyers Against Nuclear Arms, and started with two other international NGOs. The movement developed unexpectedly fast and led to the resolutions adopted by the WHO and the United Nations General Assembly. It was non-allied nations in the South Pacific, which have been affected by nuclear testing, that composed a driving force to realize these actions of the two organizations. The resolutions prompted civil actions all over the world. In Japan, a-bomb survivors of Hiroshima/Nagasaki and the co-op played a remarkable role.
This was the first time that the civic action movement, in conjunction with NGOs, organized themselves to influence UN organs to request the ICJ for an advisory opinion. Domestically, bringing actions before the court is a commonly used method to attract public attention. But in this case, the citizenry had a recourse to the ICJ, which is normally used to resolve political conflicts between states. It was due to the inaction of the states concerning the legality of nuclear weapons. The main purpose of this movement was to establish a precedent to utilize the ICJ as a means to mobilize public opinion.
Since an advisory opinion is not legally binding, the main purpose of this movement was not to get a judgment per se, but to set a precedent where the ICJ could be used as a means to mobilize public opinion. As the judgement itself had a low expectation, the decision which found the general illegality of nuclear weapons and the obligation to achieve nuclear disarmament came as a pleasant surprise.
The UN has immediately responded to the advisory opinion. The 51st session of its General Assembly adopted a resolution requesting to begin negotiation of nuclear disarmament by a vote of 115 for, 22 against, and 32 abstention. In terms of the movement, the present trend calls for not only banning tests but also abolishing nuclear weapons altogether. Concerned groups already began formulating drafts for the nuclear abolishment treaty, and started organizing an international movement to realize this treaty.
The movement was the first successful case that effectuated a civil right by utilizing the ICJ and will no doubt be a precedent for the future use of the ICJ by civil rights groups. The domestic movement has been active in incorporating the positive aspects of the judgement into their strategy. As a world movement, we should also take the positive aspects of the advisory opinion to counter the nuclear power that may use the opinion to justify keeping nuclear armaments. It is the task of the world citizenry.
In the past, the nuclear powers did not take international campaigns for abolishing nuclear arms seriously or had ever dreamed that the ICJ would be judging the legality of nuclear weapons. The movement was significant in that it involved the ICJ. I hope it will enhance all efforts in abolishing nuclear weapons in the future.