WAR OR HEALTH?
Edited by Ilkka Taipale et al
Zed Books, London & New York, 2002
The World Court Project
Kate Dewes and Robert D. Green
From 1986 to 1996, a worldwide network of peace activists, doctors and lawyers evolved the World Court Project (WCP). This was based on a simple premise: while the chemical and biological weapons conventions outlaw those weapons of mass destruction, there is no such specific prohibition on nuclear weapons. They succeeded in persuading the UN to ask the International Court of Justice (ICJ), or World Court, for two advisory opinions on the legal status of nuclear weapons. The court’s historic decision in July 1996 confirmed that the threat or use of nuclear weapons would generally be illegal, and that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to complete nuclear disarmament under strict and effective international control. In May 1993, the World Health Organization (WHO) adopted a resolution asking the court whether the use of nuclear weapons in war would violate international law in view of the weapon’s health and environmental effects. A year later the UN General Assembly adopted a resolution asking whether the threat or use of nuclear weapons in any circumstance would be permitted under international law. Chapter 48 traces how the WHO resolution was a crucial precursor to the General Assembly success.
The path which led to the water-hole was narrow with a steep rock face on either side and one day the elephant sat down in the middle and would not budge. He faced the on-coming traffic of cattle, dogs, horses and hyenas with disdainful equanimity: a roar, a blast of the trumpet or a nudge with the tusks and they backed off smartly.
Then the Woolly-Haired Ox (WHO) remembered something. He went to the mouse-hole and called: ‘Little mouse, little mouse (ICJ*), could you please tell the elephant to get out of the road?’ – ‘Moi?’ asked the little mouse, ‘He’ll never listen to little me’. However, as soon as Jumbo saw mousie he let out a yell and trotted off in haste. (Itsy-bitsy Curly-tailed Jay-mouse = ICJ*) Erich Geiringer 1992
Ever since the nuclear age began, there have been serious initiatives to outlaw nuclear weapons by a variety of states and citizen groups within the United Nations. These included calls for a Nuclear Weapons Convention, and attempts to include nuclear weapons in the 1949 Geneva conventions along with chemical and biological weapons. All were blocked by the states with nuclear weapons using their economic and political power, including their Security Council veto. A paradox exists where they now accept the illegality of chemical and biological weapons while insisting on their right to maintain their nuclear arsenals, thereby sustaining a discriminatory, immoral and destabilizing position.
Citizen groups in a number of countries, including Japan, Germany, the USA, UK, Canada and the Netherlands, attempted to challenge the legality of nuclear weapons at state level through local and national courts.1 In 1973, Aotearoa/New Zealand (NZ)2 and Australia took France to the World Court in a contentious case over the legality of its atmospheric nuclear tests in the South Pacific. In the early 1980s, International Peace Bureau (IPB) President Sean MacBride, the US Lawyers’ Committee on Nuclear Policy (LCNP) and others suggested using the World Court advisory opinion route through the UN General Assembly.
However, the first concerted effort to convince governments to sponsor a UN resolution to request such an opinion did not begin until 1986, when retired New Zealand (NZ) magistrate Harold Evans initiated a campaign which became known as the World Court Project (WCP). In 1988 he addressed the NZ branch of the International Physicians for the Prevention of Nuclear War (IPPNW). Later that year IPPNW’s World Congress adopted a NZ-sponsored resolution supporting his initiative. In 1993, IPPNW worked closely with two other co-sponsors of the WCP – the International Association of Lawyers Against Nuclear Arms (IALANA) and the IPB – plus 22 governments to persuade the World Health Organization (WHO) at its annual assembly (WHA) to request an advisory opinion from the court on the legality of the ‘health and environmental effects of the use of nuclear weapons’. A year later the UN General Assembly adopted a more ambitious resolution asking for an opinion on the threat or use of nuclear weapons.
Early initiatives by physicians and the WHO
Prior to the early 1950s, few physicians had spoken out strongly against nuclear weapons, and the general public remained largely unaware of the ongoing health and environmental effects of nuclear testing. As doctors and scientists began disseminating information about the health effects of the 1954 US nuclear test at Bikini Atoll, worldwide protests grew rapidly.
In 1957, Nobel Laureate and famous physician Albert Schweitzer delivered a substantive Declaration of Conscience from Oslo, highlighting the effects of nuclear tests and calling for an end to them. It was broadcast from 150 transmitters, heard by millions throughout the world and reprinted widely in the press. 3 Within a year he broadcast another three appeals which were soon widely published in the booklet Peace or Atomic War. He also wrote to many of his influential friends, urging them to join the struggle for nuclear abolition:
The argument that these weapons are contrary to international law contains everything that we can reproach them with. It has the advantage of being a legal argument. If the battle is fought along these lines, it will achieve the desired results. No government can deny that these weapons violate international law ... and international law cannot be swept aside! 4
However, when he was asked by US physician Norman Cousins to sign an Appeal with the Pope to the World Court to outlaw nuclear tests in 1958 he declined, challenging lawyers ‘to use and raise the argument that atomic weapons contradict the law of humanity’.5
With the signing of the Partial Test Ban Treaty in 1963, public debate on nuclear issues subsided, especially in Europe. Physicians continued to raise the nuclear issue within the WHO. From 1954 to 1979 the organization focussed principally on the ‘biomedical and environmental aspects of ionizing radiation’. During the 1960s it passed various disarmament resolutions about the effects of radiation, especially in relation to nuclear testing, and called for states to accede to the 1925 Geneva Protocol against gas and germ warfare. In 1970 it called upon:
"...all medical associations and all medical workers to consider it their moral and professional duty to give every possible assistance to the international movement directed towards the complete prohibition of chemical and bacteriological means of waging war."6
In response to a 1981 resolution, the WHO appointed an International Committee of Experts to write a report on the ‘effects of nuclear war on health and health services’ which was presented to the 1983 World Health Assembly. Another resolution was then adopted which declared that ‘nuclear weapons constitute the greatest immediate threat to the health and welfare of mankind’ and ‘prevention is the only answer to the risk of nuclear war’. 7 Immediately following IPPNW’s establishment in 1981, Co-President Bernard Lown met the WHO director-general and other officials to explore how the two organizations could work together. In 1985 IPPNW was granted NGO status and in 1986 Swedish doctor Ann Marie Janson was appointed as the organization’s WHO Liaison Officer. She later played a leading role in the World Court Project (WCP).
Evolution of the World Court Project: 1986–92
In 1986, following a visit to New Zealand by US Law Professor Richard Falk, Harold Evans sent a 100-page Open Letter to the prime ministers of Australia and NZ challenging them to sponsor a UN resolution to seek a World Court opinion on ‘the legality or otherwise of nuclear weaponry’. Australia rejected the idea, but Prime Minister David Lange showed interest. Evans followed it up with appeals to all 71 UN member states with diplomatic representation in Canberra and Wellington. Some Non-Aligned Movement (NAM) states and the Soviet Union (with Gorbachev in power) indicated interest.
Within NZ a dialogue with government ministers and officials ensued, strongly backed by the newly-formed Public Advisory Committee on Disarmament and Arms Control, whose mandate was to monitor the implementation of the Nuclear Free Act. The Chair of IPPNW (NZ), Dr Robin Briant, was one of the eight members along with Kate Dewes. In May 1988, Dewes was one of two citizen advisers in the NZ government delegation to the Third UN Special Session on Disarmament in New York. When addressing a UN Committee, she promoted the WCP and later discussed it with leading NGOs, and with diplomats from India, Mexico, Sweden and Australia.
Spurred on by Evans, the Public Advisory Committee and other leading citizens’ groups, the NZ government began seriously considering the proposal. It would not, however, risk going it alone in the UN and directly challenging the fundamental defence policies of its western allies. NZ was already under intense pressure as a result of its 1987 nuclear free legislation. The realities of the Cold War mindset meant this type of initiative was probably doomed from the outset at that time. Government officials and politicians were wary of exacerbating already tense relationships by pursuing something which might fail, thereby ‘damaging the credibility of the ICJ and the greater cause of nuclear disarmament’. Moreover, they were lobbying for a seat on the UN Security Council.
Although disappointed by the government’s decision not to proceed in 1989, Evans and others were not deterred. They began mobilizing citizen support among a wide range of groups. Encouraged by the knowledge that others were working along similar lines, and advised by key NZ politicians to build up international support, they took their cause to Europe.
Evans attended the IPB’s annual conference in the UK in September 1989, where his strategy was endorsed. A few weeks later his proposal was adopted at IALANA’s inaugural World Congress in The Hague. On his way back, Evans met supportive doctors and lawyers in Malaysia during the Commonwealth Heads of Government Meeting there. He sent letters to six sympathetic Commonwealth leaders asking them to work together to sponsor a resolution.
In March 1991, New Zealander Alyn Ware was visiting New York, representing citizen groups worldwide opposing the Gulf War. He approached several UN missions and found strong support for the WCP idea. Parliamentarians for Global Action (PGA) gave helpful guidance, and Costa Rica began drafting a UN resolution with the intention of co-sponsoring it at the 1992 UN General Assembly. PGA promoted the WCP in its newsletters, which went to 600 members in over 40 countries.
Three months later Dewes and IPB Secretary-General Colin Archer found similar support in Geneva missions. The idea was seen as non-discriminatory and supportive of the UN Decade of International Law, it complemented moves for nuclear-free zones in Africa and the Middle East, and would strengthen efforts to secure a Convention on Prohibition of Use of Nuclear Weapons. However at least 50 states, including some neutral ones, would be needed as co-sponsors to withstand the severe pressure expected from the states with nuclear weapons.8
At the same time, IPB proposed hosting a WCP launch with IALANA and IPPNW during IPB’s centenary in 1992. Encouraged by this growing support, Dewes then visited the UK to meet with a network coordinated by Keith Mothersson, who had pioneered a key aspect of the WCP’s success: harnessing public conscience and the law. IPB published his ideas in a WCP primer, From Hiroshima To The Hague. He proposed invoking the Martens clause from the 1907 Hague Convention, which required the World Court to take account of the ‘dictates of the public conscience’ when deciding any legal question.9
Following its inaugural meeting, WCP(UK) set up a pilot scheme for the collection of individually-signed Declarations of Public Conscience to test public reaction – which was positive, even in a state with nuclear weapons. The idea quickly spread to countries with active anti-nuclear movements, including Australia, Canada, France, Germany, Ireland, Japan, the Netherlands, Norway, NZ , Sweden and the US. Declarations were translated into nearly 40 languages.
Article 96 of the UN Charter and Article 76 of the WHO Constitution state that, in addition to the General Assembly and Security Council, other UN organs and specialized agencies may also request advisory opinions of the court on legal questions arising within the scope of their activities. In late 1991, Wellington doctor Erich Geiringer of IPPNW(NZ) began encouraging IPPNW to spearhead a request to the WHO’s annual assembly.
During 1991, with the Cold War over, initial support for the WCP had already been secured from several leading members of the 110-member Non-Aligned Movement (NAM). At the Geneva launch of the WCP in May 1992, Zimbabwe, as Chair of the NAM, became the first government to announce its support.
At this meeting, an International Steering Committee (ISC) was formed, and Alyn Ware returned to New York as a volunteer with the Lawyers’ Committee on Nuclear Policy (LCNP), IALANA’s US affiliate, to coordinate action on the project at the UN. He was later appointed LCNP’s executive director.
The ISC helped mobilize international support for the WCP. It compiled an international list of endorsing organizations and prominent individuals. By 1994 over 700 bodies had endorsed it, including many city councils, Greenpeace International and the Anglican Communion of Primates. Over 200,000 individual Declarations of Conscience had been collected, plus letters of support from Mikhail Gorbachev and South African Archbishop Desmond Tutu.
World Health Assembly requests an advisory opinion: 1992–93
Just before the May 1992 WCP launch, IPPNW masterminded an attempt to table a resolution in the WHA. The draft resolution called upon the WHO Executive Board:
to study and formulate a request for an advisory opinion from the International Court of Justice on the status in international law of the use of nuclear weapons in view of their serious effects on health and the environment.
The move failed due to lack of time to build up government support, and because the resolution was not formally on the agenda. Within weeks, however, IPPNW had attracted 14 co-sponsors for the resolution, and a significant number of health ministers indicated interest.
Following the 1992 WHA, IPPNW coordinated an intense and well-organized campaign in every country where it had members, visited health ministers and advisers in the four former Soviet states and Africa, made ‘soundings’ within the WHO bureaucracy, and visited over 20 diplomatic missions in Geneva to shore up support from the 1992 co-sponsors and others. This was complemented by the LCNP coordinating lobbying in New York and by the other co-sponsors visiting health and foreign ministers in their capitals.
They succeeded in attracting 22 co-sponsors from three key regions – Africa, Latin America and the South Pacific – led by the health ministers from Zambia, Mexico, Tonga and Vanuatu (some of whom were also IPPNW members). The resolution requested an advisory opinion from the World Court on the following question: 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 under the WHO Constitution?
IPPNW organized a strong lobbying team for the effort, led by Ann Marie Janson and including George Salmond, a former NZ director-general of health. Over the years they had amassed insights into the WHO processes and knew many of the delegates. They coordinated meetings with the co-sponsoring countries, prepared comprehensive background papers, countered misinformation and answered questions as they were raised in committees. IPPNW also successfully lobbied the World Federation of Public Health Associations which unanimously supported the initiative.
Arguments by the NATO nuclear-weapon states and their allies that the WHO lacked the competence to ask the question were countered by the fact that the WHO had since 1981 been investigating the health and environmental effects of nuclear weapons. Hilda Lini, Vanuatu’s Health Minister and WHO Regional Vice-President, proved a successful lobbyist on the inside. Her speech, a powerful mix of passion and facts delivered from the point of view of a South Pacific Island woman and mother, apparently had a significant impact on the (female) US surgeon-general. Despite intense lobbying by the western states to block it, countered by a successful ploy by the co-sponsors to invoke a secret ballot, the resolution was adopted on 14 May 1993 by 73 votes to 40, with 10 abstentions.
The question was finally received by the World Court in September 1993, which then invited states to make written submissions on the WHO question by September 1994. Of 35 submissions received, 22 argued that any nuclear weapon use would be illegal. The states with nuclear weapons (except China, which took no part) and some of their allies argued that the case was inadmissible, and/or that the use of nuclear weapons is not necessarily illegal. IALANA and IPPNW drafted model submissions which some states used in the preparation of their cases. Submitting states were then given until June 1995 to comment on submissions by other states.
The WHO resolution’s impact
With hindsight, it is clear that the failure of the 1992 attempt was fortunate. The resolution’s initial wording could have allowed the pro-nuclear lobby to derail it and neither the international movement nor the leading anti-nuclear states were ready to carry it through to the court. By May 1993, the WHA resolution had laid a solid foundation for the forthcoming General Assembly proposal. Its success paved the way for NAM to consider co-sponsorship, knowing it needed the backing of at least 111 states to withstand even greater pressure than that exerted at the WHA. On the other hand, the threats, bribes and other tactics of the pro-nuclear lobby had only served to reinforce NAM’s resolve.
IPPNW’s prominent involvement ensured that at least one case was brought before the court. No one country would have had the courage or incentive to incur the wrath of the nuclear powers. There were only a few economically secure states where public opinion was strong enough to bolster sympathetic politicians and ministry officials. But even those, like NZ and Sweden, were not prepared to go it alone, risking alienation from their friends, and NAM was not cohesive enough to withstand the pressure.
IPPNW had a long and respected history of working with the WHO and health ministries in many countries. Janson and Salmond were astute strategists who were also well-organized and, as already mentioned, knew the WHO processes intimately. Many delegates were friends and colleagues. They developed good relationships with many officials, typists and even ushers who often helped them by sharing vital information or handing documents to delegates on their behalf. IPPNW produced very readable and well-referenced papers and ensured that key delegates understood the arguments, giving them strong support during their presentations to committee meetings. Citizen groups were free to lobby delegates without being accused of being part of the traditional UN power-plays. Delegates understood that these protagonists were motivated by a desire to preserve the health and well-being of humanity. The fact that most of the IPPNW team were fellow health professionals added to their credibility.
According to IPPNW’s Director Michael Christ, the WCP energized affiliates like no previous campaign. Members saw it as:
a shining light that held the federation together through difficult times, because it was clear what the objective was and there was a time-frame. It was a project where a whole range of affiliates could participate in a whole lot of different ways, ranging from writing a letter to their minister of health to a full-blown campaign of public education with the media, collection of Declarations of Public Conscience, and face-to-face meetings with decision makers.10
Lessons learned at the two WHAs were also extremely valuable for the preparation for the UN General Assembly. As 1993 drew to a close, nearly a million Declarations of Public Conscience had been collected and the WCP had gained prominence in Japan, Australia and other influential western states. Citizen groups encouraged governments to put in a submission on the WHO question and vote in favour of the resolution. Unlike many other peace movement objectives, these were achievable goals within a set time-frame, and a growing number of groups in the international movement began to make it a priority.
UN General Assembly challenges nuclear deterrence: 1993–94
A major objection to the WHO resolution by western governments was that the General Assembly was the correct forum for the issue. Following the WHO success, Zimbabwe’s foreign minister convinced NAM to table a more ambitious resolution at the 1993 UN disarmament session. This asked the World Court 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, NAM directly challenged the legality of nuclear deterrence doctrine and the privileged status of the nuclear powers as permanent members of the UN Security Council.
Ware coordinated the UN lobbying and helped in the preparation of legal submissions from New York. During the last week of October 1993 Zimbabwe, backed by a determined group of South Pacific states, lobbied hard within the First Committee. They were helped by a WCP team including Hilda Lini and Maori elder Pauline Tangiora. The presence of two indigenous women from the South Pacific had a powerful impact on the diplomats of small-island states, who treated both women with deep respect because of their senior positions within their tribes. They also knew of Lini’s role at the WHA and of NZ’s citizen leadership in the project.
After some crucial lobbying by Vanuatu and others, the resolution was introduced reluctantly by Indonesia as chair of NAM. Peggy Mason, Canada’s Disarmament Ambassador, described the reaction: ‘Hysteria is not too strong a word to describe the nuclear weapon states’ point of view around here’.11 The US, UK and France sent delegations to many NAM capitals threatening trade and aid if the resolution was not withdrawn. On 19 November, the NAM consensus cracked, and Indonesia announced that action had been deferred. Nonetheless, every UN member government probably now knew about the WCP, and how it threatened the privileged position of the states with nuclear weapons.
In June 1994, Zimbabwe again persuaded NAM foreign ministers not just to re-introduce the 1993 resolution, but put it to a vote. The NATO nuclear states continued their intense opposition to the resolution. The UK claimed that the resolution risked ‘being seen as a deliberate attempt to exert pressure over the Court to prejudice its response [to the WHO question] ... [it] can do nothing to further global peace and security’. 12 The French showed signs of hysteria: ‘It is a blatant violation of the UN Charter. It goes against the law. It goes against reason’.13
NAM was not deflected. On 18 November 1994 the resolution was adopted in the First Committee by 77 votes to 33, with 21 abstentions and 53 not voting. Despite it being the most radical resolution on the UN’s disarmament agenda, China did not vote, Ukraine abstained and the normally compliant western caucus of non-nuclear states collapsed. By abstaining, Canada and Norway broke ranks with NATO; Japan and Australia with the US; and Ireland with the European Union along with two prospective neutral non-NATO members Sweden and Austria.
The most serious insubordination, however, was that NZ, then a Security Council member, voted in favour, the only western-allied state to do so. This undid at a stroke the progress made by the US in luring the one such state with nuclear-free legislation back under Washington’s control. The NZ government had been under intense pressure from the peace movement and politicians from various parties to support the resolution. Despite several high-level visits by both US and UK military and diplomatic personnel, the government withstood the pressure to abstain.
The common theme in this breakdown in western cohesion was the strength of public support for the WCP. The work to collect signed Declarations of Public Conscience and other endorsements had borne fruit. A probably decisive factor, however, was a carefully-focused faxing campaign to capitals of supportive states. In the run-up to the vote, several hundred individual letter-writers worldwide faxed prime ministers personally with expressions of gratitude, and encouraged them to withstand any coercion by the nuclear states. In one instance, a South Pacific representative to the UN who had received middle-level instructions to abstain was shown a letter from his prime minister replying to a WCP correspondent which stated that his government’s support for the resolution would stand. On the basis of this the representative not only voted in favour but also spoke, encouraging other countries to support this resolution.
Resolutions adopted by the First Committee are normally confirmed by the General Assembly in a final plenary session, without any noticeable change in votes. However, a UK representative told Ware that NATO intended to ‘kill’ the resolution. The WCP launched a new faxing campaign, adjusted to capitals of supportive states which had abstained or not voted. In the plenary session on 15 December 1994, there was an attempt to pass a resolution calling for ‘no action’ and another trying to remove the word ‘urgently’, but both were defeated. Eventually, the resolution was adopted by 78 votes to 43, with 38 abstentions and 25 not voting, including China. William Epstein, a distinguished disarmament adviser at the UN, described it as ‘the most exciting night in the UN for thirty years’.
Because of the word ‘urgently’, the World Court received the Assembly resolution within a few days. On 2 February 1995, the court called for new written submissions by June 1995, and written comments on other states’ submissions by September 1995. Eight of the 28 submissions made were from states which had not responded to the WHO case. The court then decided to consider the WHO and General Assembly questions separately but simultaneously, with oral presentations, in The Hague during November.
Oral proceedings on advisory opinions: 1995
Before the court’s public hearings began on 30 October 1995, another citizen delegation presented nearly 4 million more declarations, over 3 million of them from Japan. A team from IALANA offered on-the-spot legal advice to supportive government deputations. The hearings opened with WHO’s legal counsel, who acknowledged that it was a ‘delicate task’ to represent a ‘neutral’ position. There was no consensus among the 190 member states and sometimes their views were ‘diametrically opposed’ on this issue. 14
For the first time citizen witnesses addressed the court and confronted the judges with the horrific situation of the victims of nuclear weapons. After strong public pressure, the Japanese government allowed the Mayors of Hiroshima and Nagasaki to testify. Their presentation included huge photographs of the bombings, and was accompanied by the muted sobs of the hibakusha (surviving victims) present. Then Lijon Eknilang from the Marshall Islands described the intergenerational effects of the 1954 US tests. Women gave birth to ‘jellyfish’ babies: ... these ... are born with no bones in their bodies and with transparent skin. We can see their brains and hearts beating’. Dressed in white with a wreath of flowers in her hair, she held the court spellbound.
The WCP played an important part in promoting debate on these issues. It 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 Non-Proliferation Treaty; also, governments of the western nuclear states were forced to defend the legality of their nuclear deterrence policies in a court. It also helped to revive public opinion against nuclear weapons after the end of the Cold War had initially eased people’s concerns about them. Certain western non-nuclear states, especially NZ and Australia, publicly distanced themselves from their nuclear allies.
Through the WCP, a sound working relationship developed between citizen groups and anti-nuclear governments, which was to prove most valuable in the follow-up to the World Court decision. Most importantly, it led to an historic decision from the court which has had a considerable global impact.
The World Court’s decision: 1996
The court lived up to its historic challenge by responsibly addressing the momentous question posed by the General Assembly about the legal status of a threat or use of nuclear weapons... As with other normative projects, such as the abolition of slavery and the repudiation of apartheid, perseverance, struggle and historical circumstance will shape the future with respect to nuclear weaponry, but this process has been pushed forward in a mainly beneficial direction by this milestone decision of the World Court. 15 Professor Richard Falk
On 8 July 1996, the International Court of Justice delivered its findings on the two questions before it on the legal status of nuclear weapons. The court did not give an advisory opinion on the WHO question, because it judged that the question did not arise within the scope of WHO’s responsibilities. It relied, however, upon WHO’s evidence of the health and environmental effects of nuclear weapons for both questions. Moreover, WHO’s request had prepared the ground for the broader and deeper General Assembly question.
On the latter question, it gave a 34-page main advisory opinion followed by over 200 pages of individual statements and dissenting opinions by the 14 judges (one died just before the oral proceedings began).
In a crucial subparagraph, the court decided that ‘a 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’. In doing so, it confirmed that the Nuremberg Principles apply to nuclear weapons.
It added a caveat:
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.
Nonetheless, even in such an extreme case, threat or use must comply with the principles and rules of humanitarian law. The court also treated threat and use as a single, indivisible concept.
Finally, the judges unanimously agreed that:
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.
For such an historic event, media coverage in western Europe and North America was suspiciously sparse, superficial and, at times, inaccurate. However, in NZ and Australia the event was reported extensively, reflecting the level of public interest. The positive responses from the two countries which Harold Evans had approached a decade earlier was in marked contrast to their opposition to the case until 1995. Australia’s Foreign Minister Gareth Evans claimed the opinion would ‘drive Australia’s push to eliminate the world’s nuclear arsenal’ and ‘help very much the role of the Canberra Commission’. 16 NZ’s Prime Minister Bolger hailed it as a ‘tremendous victory ... a watershed decision ... (which) vindicated the anti-nuclear crusade’.17
The advisory opinion has become an extremely useful tool for both governments and the peace movement. Following the decision, the UN General Assembly adopted a resolution calling for its implementation through the immediate commencement of negotiations leading to the conclusion of a Nuclear Weapons Convention ( NWC), that is to say an internationally-verified agreement on the abolition of nuclear weapons. The European Parliament followed with a similar resolution in 1997. A model NWC was subsequently drafted by peace movement experts and has been published and circulated by the UN. The model NWC has been considered by a number of governments at the UN Conference on Disarmament, and submitted to the US Congress in a resolution calling for negotiations to achieve an NWC.
In western nuclear and allied states, anti-nuclear activists are using it in high-profile, ingenious civil-obedience campaigns to expose their governments and challenge them to comply with the law. This in turn has helped force debate amongst some NATO states and Japan about how the opinion affects their defence policies. A new coalition of influential middle-power states has referred to the court’s decision in a new initiative at foreign minister level calling for the immediate start of serious negotiations to eliminate nuclear weapons and for the implementation of practical steps towards that goal.
The WCP provided the international peace movement with a unique opportunity to work together for a focussed goal with deadlines, using existing networks with access to key decision-makers. It built on earlier campaigns, drawing together many strands of activity from a wide range of countries, which included the perspectives of women and indigenous peoples.
Vigilant citizen groups based at the key nodes of the WHO, the UN‑General Assembly and the World Court helped to hold decision-makers accountable. The collection of declarations, endorsement by over 700 citizen groups worldwide and an impressive list of prominent supporters helped sympathetic politicians and diplomats withstand pressure from the nuclear states and their allies, and reminded the judges that the eyes of the world were on them. Draft submissions, books and papers prepared by lawyers and doctors were important tools for diplomats in countries where expertise in international law and the medical effects of nuclear weapons was lacking.
Grassroots activists also had a role in the collection of Declarations of Public Conscience, writing to politicians and newspapers, and faxing ambassadors. They frequently elicited responses from decision-makers which were used to apply pressure even in the highly formalized proceedings of the UN. The WCP gave hope to ordinary citizens that an ICJ opinion could succeed in breaking the logjam and inertia surrounding nuclear disarmament, and achieve real change. It also became a conduit for creating a more democratic United Nations, bringing nearer the realization of the original vision expressed in the opening words of the UN Charter: ‘We the peoples ... determined to save succeeding generations from the scourge of war ...’.
The World Court opinion has underpinned many recent initiatives by both citizen groups and states calling for nuclear abolition. There has been a succession of authoritative reports, including the Canberra Commission on the Elimination of Nuclear Weapons and statements by 61 former generals and admirals and 117 civilian leaders. Public opinion polls in the United States and the United Kingdom show 87 per cent support for negotiating a Nuclear Weapons Convention and 92 per cent of Canadians and Norwegians and 72 per cent of Belgians want their governments to lead on this. Over 1600 citizen groups supported a Convention being signed by the end of the year 2000. For the first time in decades a growing number of governments are reviewing their policies in light of the World Court opinion, and seriously considering total elimination. There is a sense of urgency amongst citizens and governments as they work together to achieve a new millennium free from the threat of nuclear annihilation.
The World Court Project provided the international anti-nuclear movement with a way of raising the consciousness about the legality of nuclear weapons. Michael Christ describes how:
We created a new political forum, a new political opportunity which didn’t exist before until citizens’ groups decided that this was going to happen and we created it out of nothing. It was an idea... it is WE … it is not just lawyers, the doctors or the Peace Bureau … it is no one group … it has been like a thousand points of light..18
REFERENCES AND NOTES
1 Dewes, Kate and Robert D. Green (1998), ‘The World Court Project: how a citizen network can influence the United Nations’, in Ann Fagan Ginger (ed.), Nuclear Weapons Are Illegal: the historic opinion of the World Court and how it will be enforced, New York: Apex Press, pp. 473–95.
2 Aotearoa is the Maori name, New Zealand the European. Both are official.
3 Jack, Homer (ed.) (1988), Albert Schweitzer on Nuclear War and Peace, Illinois: Brethren Press, pp. 57–67, 96–7; Norman Cousins (1985), Albert Schweitzer’s Mission: Healing and Peace, New York: Norton, pp. 173–5.
4 Letter from Schweitzer to Pablo Casals in Hans Walter Bahr (ed.) (1992), Albert Schweitzer, Letters 1905–1965, New York: Macmillan, pp. 279–80; Pauling, Linus (1958), No More War!, New York: Dodd, Mead and Co, pp. 255–67.
5 See Jack, p.182 and Cousins, pp. 213–14, no. 3 above.
6 Geiringer, Erich (1993), ‘WHA Resolutions on Arms Control and Cognate Matters before 1992’, WCP (NZ) Working Paper, February, 4 pp.
7 WHO Resolution 36.28, 1983.
8 Report of meetings with missions by Dewes and Colin Archer, July 1991.
9 Mothersson, Keith (1992), From Hiroshima to the Hague, Geneva: IPB, pp. 143–8.
10 Ibid. For more details of the 1992–93 WHAs, see Dewes, Kate (1998), ‘The World Court Project: the evolution and impact of an effective citizens’ movement’, PhD thesis, Christchurch, pp. 190–235.
11 Schapiro, Mark (1993), ‘Mutiny on the Nuclear Bounty’, The Nation, 27 December .
12 UK Explanation of vote on Draft Resolution A/C.1/49/L.36 ‘Request for an Advisory Opinion from the ICJ on the Legality of Nuclear Weapons’, Agenda Item 62, 18 November 1994.
13 Explanation of vote by France on Agenda Item 62, 18 November 1994.
14 Presentation by Claude-Henri Vignes, Legal Counsel of WHO, to the World Court, 30 October 1995.
15 Falk, Richard (1997), ‘Nuclear Weapons, International Law and the World Court: a historic encounter’, The American Journal of International Law 91 (1) (January).
16 Attwood, Alan (1996), ‘Nuclear Arms Ruling Helps to Make World Safer, says Evans’, The Age, 10 July; ‘Australian Win in Fight to Ban Bomb’, West Australian, 10 July.
17 Rentoul, Michael (1996), ‘PM Hails World Court Decision: “tide turns” against N-weapons’, The Press, 10 July; Simon Kilroy, ‘Bolger Welcomes Nuclear Ruling’, The Dominion, 9 July.
18 Interview with Michael Christ by Kate Dewes, 25 April 1995, New York (see n. 10 above).
Address for correspondence
Disarmament and Security Centre, P O Box 8390, Christchurch, Aotearoa/New Zealand