A Critique of the Advisory Opinion of the International Court of Justice on the Legality of the Threat or Use of Nuclear Weapons, 8 July 1996 : The Nuclear Weapons Case

The General Assembly of the United Nations, by Resolution, requested the International Court of Justice to give its Advisory Opinion on the following legal question: Is the threat or use of nuclear weapons in any circumstance permitted under Intemational law? The question raises a number of legal, political and moral issues which go to the heart of the development of public international law, and of relations between States in the United Nations era. Central to all such issues is the tension, both legal and political, which exists between the five declared nuclear weapon States (the Permanent Members of the United Nations Security Council) and most non-nuclear weapon States. Essentially, the latter take the view that the threat or use of nuclear weapons should be illegal in all circumstances, largely in terms of the humanitarian laws of armed conflict. The former insist that, in the absence of specific prohibition, nuclear weapons are not illegal in all foreseeable circumstances. This dichotomy has been institutionalised in the 1968 Nuclear Non-proliferation Treaty, which solidified the discriminatory treatment accorded to nuclear weapons by the nuclear weapon States during the Cold War practice of deterrence. The nub of the Court's findings was that it was unable to conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in extreme circumstances of self-defence, in which the very survival of a State would be at stake. This thesis examines, in five Chapters, the legal and political background to the Case, the text of the Opinion, and the evidence and argument led by States. It evaluates the Opinion in terms of the Dissenting and other Opinions of individual judges of the Court, its dicta, and the coherence of its argument. Finally, it draws conclusions concerning the outcomes, relevance and impact of the. Opinion for the judicial independence and integrity of the Court; nuclear deterrence, non-proliferation and disarmament; principles of self-defence in international law; and a rights-based approach to international relations and law.