History is written by the victors. Thus, the heinous massacre that was Hiroshima has been handed down to us as a perfectly justified act of war…. It is clear that the use of nuclear weapons, which cause indiscriminate mass murder that leaves survivors to suffer for decades, is a violation of international law.”– Hiroshima Mayor Takashi Hiraoka before the International Court of Justice, Nov. 7, 1995

Viewpoint by Jacqueline Cabasso*

July 8, 2021, marks the 25th anniversary of the International Court of Justice’s (ICJ’s) Advisory Opinion on the legal status of nuclear weapons.

The Court found unanimously: “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.”

The Court also found that threat or use of nuclear weapons is “generally” contrary to international law forbidding the infliction of indiscriminate and disproportionate harm on civilians and the environment. This was hardly the first time nuclear weapons had been subjected to scrutiny under international law.

The very first United Nations General Assembly resolution, adopted by consensus on January 24, 1946, established a commission of the UN Security Council to ensure “the elimination from national armaments of atomic weapons and all other major weapons adaptable to mass destruction.”

The 1961 landmark “Declaration on the prohibition of the use of nuclear and thermo-nuclear weapons,” adopted by more than two-thirds of the United National General Assembly, including the USSR, but opposed by the United States, the United Kingdom, France and China, stated that the use of nuclear weaponry “would exceed even the scope of war and cause indiscriminate suffering and destruction to mankind and civilization and, as such, is contrary to the rules of international law and to the laws of humanity.”

The 1970 Nuclear Nonproliferation Treaty (NPT) includes a legal obligation of nuclear disarmament binding on the five original nuclear-armed States, the United States, the United Kingdom, Russia, France, and China, stating: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament….”

The NPT’s disarmament obligations have been reiterated and reinforced by agreements made in connection with the 1995 NPT Extension Decision and the 2000 and 2010 NPT Review Conferences, as well as the ICJ’s 1996 Advisory Opinion.

In 1984, the United Nations Human Rights Committee found: “It is evident that the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today.” The right to life is enshrined in the International Covenant on Civil and Political Rights ICCPR), to which all nine nuclear-armed states except China are parties. (China has signed but not ratified.)

In 2018, the Human Rights Committee revisited the question, and declared: “The threat or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate in effect and are of a nature to cause destruction of human life on a catastrophic scale, is incompatible with respect for the right to life and may amount to a crime under international law.”

Citing the ICJ’s opinion, the Committee further found that states parties to the ICCPR must “respect their international obligations to pursue in good faith negotiations in order to achieve the aim of nuclear disarmament under strict and effective international control.”

Another recent and widely heralded development was the 2017 negotiation of the Treaty on the Prohibition of Nuclear Weapons (TPNW), which entered into force on January 22, 2021. The TPNW specifically prohibits the development, acquisition, possession, use or threat of use of nuclear weapons for those countries that have ratified it. It thus reinforces the existing illegality of the threat or use of nuclear arms applicable to all states and adds another layer to the prohibitions on development and possession applicable to most states, set forth in the NPT and regional nuclear weapon free zone treaties.

While the TPNW represents the total repudiation of nuclear weapons by most of the states that do not possess them, the United States, the eight other nuclear-armed states and almost all of the countries under the U.S. nuclear umbrella boycotted the negotiations. In a joint statement following the July 7, 2017, United Nations vote to adopt the Treaty, the U.S., France, and the United Kingdom declared: “We do not intend to sign, ratify or ever become party to [the Treaty].”

Twenty-five years after the International Court of Justice declared the obligation to achieve nuclear disarmament through good-faith negotiation, where does the world stand? On January 27, 2021, the Bulletin of the Atomic Scientists announced it is keeping the hands of its Doomsday Clock at 100 seconds to midnight, the closest we’ve ever been to global oblivion, stating: “By our estimation, the potential for the world to stumble into nuclear war—an ever-present danger over the last 75 years—increased in 2020.”

Indeed, tensions between the United States and Russia and the United States and China have increased dangerously, with flashpoints in the Ukraine and Taiwan that could potentially spawn nuclear confrontations.

Despite hopes for the new U.S. administration, President Biden’s 2022 budget request extends funding for all nuclear warhead and delivery system upgrades in the Trump budget as well as a massive investment in the nuclear weapons infrastructure, intended to project nuclear weapons research, development, production, and deployment well into the second half of this century.

All of the nuclear-armed states are qualitatively modernizing, and in some cases quantitively increasing their nuclear arsenals. In the midst of a global pandemic, according to a recent report by the International Campaign to Abolish Nuclear Weapons (ICAN), in 2020, the nine nuclear-armed states spent $72.6 billion on nuclear weapons, with the U.S. leading the pack at $37.4 billion, or $70,881 per minute.

The Joint Statement by U.S. President Biden and Russian President Putin on June 21, 2021, in which they “reaffirm the principle that a nuclear war cannot be won and must never be fought,” must signal the start of a new era of intensive diplomatic efforts centrally involving the United States, Russia, and China. Dramatic reductions of U.S. and Russian nuclear stockpiles could lead to comprehensive disarmament negotiations with the other nuclear-armed states.

The Doomsday Clock is ticking. The nuclear-armed states and their allies should reverse their opposition to the TPNW. They should welcome the Treaty as a positive step towards the negotiation of a long-overdue, comprehensive agreement on the achievement and permanent maintenance of a world free of nuclear weapons, in conformity with the ICJ opinion and other requirements of international law preceding the TPNW by decades. [IDN-InDepthNews – 05 July 2021]

* Jacqueline Cabasso is Executive Director of the Western States Legal Foundation, an affiliate of the International Association of Lawyers Against Nuclear Arms.

Photo: The aftermath of a nuclear test carried out in Licorne in French Polynesia in 1971. Credit: The Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO).

The original article can be found here