Office of the Prime Minister of New Zealand

REQUESTS TO THE INTERNATIONAL COURT OF JUSTICE BY THE WORLD HEALTH ASSEMBLY AND THE UNITED NATIONS GENERAL ASSEMBLY FOR ADVISORY OPINIONS ON THE THREAT OR USE OF NUCLEAR WEAPONS

ORAL STATEMENTS BY NEW ZEALAND

OPENING STATEMENT: Hon Paul East, Attorney-General of New Zealand

Introduction

May I say how privileged I am to represent the Government and people of New Zealand before this High Tribunal on this most vital matter. Members of the Court will appreciate that the questions brought before them by the World Health Assembly and the United Nations General Assembly are closely related to those matters which I addressed here just two months ago when New Zealand sought an examination of issues relating to French Nuclear Testing.

It will be our purpose on this occasion to supplement and develop the written statements which the Government has already filed in response to the Court's orders relating to the two requests for advisory opinions.

At the outset I would like to acknowledge groups and individuals from New Zealand, some of them present here today, who have worked so hard and played such a major role in bringing this matter before the Court.

Mr President, New Zealand voted for resolution 49/75K on 15 December 1994 whereby the United Nations General Assembly decided to request the advisory opinion of the Court on an urgent basis. In New Zealand's view, the question is an entirely fit and proper one for the United Nations General Assembly to be putting to the Court. To our mind, the Court unquestionably has jurisdiction in this case and it would be unthinkable to us for it not to decide the matter or for it to give an answer that would harm the cause or the process of nuclear disarmament and arms control. We would draw attention to the obligation on the Court to give its opinion on legal questions put to it by the main political organ of the United Nations. On a question as clear and as fundamental to the international legal order as this, the Court is, we suggest, bound to exercise its jurisdiction to reach a decision on the substantive issue put to it. As I will go on to show, the answer to the question put to the Court should be no; the threat or use of nuclear weapons should no longer be permitted under international law.

In brief, the New Zealand position on the Court's competence is:

1. That the Court has jurisdiction to answer the questions put to it by the World Health Assembly and the United Nations General Assembly.

2. That the Court ought to answer the questions- there are no "compelling reasons" standing in the way of its general duty to cooperate with other organs of the United Nations system.

I would also like to make mention of nuclear testing at this early point. I will come back to this subject later in my submissions, but I wanted to record at the outset New Zealand's outrage at the resumption of French nuclear testing in our region of the world. South Pacific countries have had to put up with nuclear testing for far too long. They have made it plain, at various meetings in the region and in international fora, that the latest series of French nuclear tests is unacceptable. These tests, and France's refusal to stop them forthwith, have only reinforced in our mind that the international community must turn up the pressure on nuclear weapons. Simply put, the world must now be rid of them.

Jurisdiction

Mr President, the first of the two propositions that I have just mentioned is that the Court has jurisdiction to answer the questions. That proposition is easily established. Under Article 96 of the Charter and Article 65 of the Statute, the Court has jurisdiction to give advisory opinions on "legal questions" put to it by the United Nations General Assembly and by the World Health Assembly as an authorised body of a specialised agency. The questions put to the Court are without doubt "legal questions". The requests expressly refer to the obligations of states under international law and to what is permitted by international law. The fact that the question might be considered abstract does not affect that conclusion. The Court, in giving its very first opinion on the Admission of Members, rejected the argument that it was not competent to answer abstract questions as "a mere affirmation devoid of any justification", 1947-8 ICJ 57, 61. There is of course practice to show that the Court may have to interpret a question to facilitate the giving of an answer.

Any problem about the competence of the World Health Assembly to ask for an opinion has been made hypothetical by the request made by the United Nations General Assembly. Article 96 of the Charter of the United Nations and Article 65 of the Statute of the International Court place no explicit limit on the power of the General Assembly to request an opinion on any legal question. In any event matters of nuclear disarmament and indeed of disarmament generally are preeminently within the competence of the General Assembly. If authority is needed for that proposition it is to be found in Article II of the Charter and in the very first resolution adopted by the General Assembly at its first session. The fact that the Security Council has relevant powers under Articles 24 and 26 of the Charter does not affect that broad responsibility of the principal organ comprised of representatives of all Members of the United Nations.

I turn secondly to the Court's discretion to answer the questions put to it. It is plain from the Statute of the Court, that the Court is not bound to answer a request for an advisory opinion. Article 65(1) reads, in part "the Court may (I emphasise may) give an advisory opinion on any legal question at the request" of an authorised body.

The Court does not need to be reminded that it is both a judicial organ and an organ of the United Nations. The Court, in terms of Articles 7 and 92 of the Charter and Article I of the Statute, is the principal judicial organ of the United Nations. As a principal organ of the United Nations it is under a general duty to cooperate, whenever possible, with the other organs and with member States in the attempted attainment of the objects of the Organisation. The Court has clearly recognised that duty from the outset. For instance, in 1950 in the Peace Treaties case where its competence to answer the questions put to it had been challenged and where it was further argued that it should exercise its discretion against giving an opinion, the Court said in a very important passage:

The reply of the Court, itself "an organ of the United Nations", represents its participation in the activities of the Organisation, and, in principle, should not be refused. (1950 ICJ Reports 65, 71).

The Court has maintained that position without any deviation ever since. I will not weary the Court with all the references, but to refer to its recent advisory opinion, on the Applicability of the Convention on the Privileges and Immunities of the United Nations, the Court declared that:

It is well settled in the Court's jurisprudence that when a request is made under Article 96 of the Charter by an organ of the United Nations or a specialised agency for an advisory opinion by way of guidance or enlightenment on a question of law, it should entertain the request and give its opinion unless there are "compelling reasons" to the contrary. 1989 ICJ Reports 191.

Any such compelling reasons would most likely relate to possible compromise of the Court's judicial character. It is not only a principal organ of the United Nations; it is also a judicial organ and must remain true to that character. So far the Court has not ever considered itself prevented from answering questions put to it by reference to such reasons. It has answered each and every question put to it, although in some cases it has had to interpret the question. The objection of an interested State to an opinion being given is not itself a reason for refusal. The Court has made that clear in several cases, from the Peace Treaties case to the Western Sahara case.

The statements and practice of the Court do however give some indication of the reasons relating to its judicial character which might compel it to refuse to answer. They could concern only one of three matters. The first is that interested States and parties should have full and equal opportunity to present their case in writing and orally and to reply to the arguments made by other participants in the process. The second requirement is that the Court must be provided with all the information necessary to enable it to answer the question put. Thirdly, the process must be a public one.

In the present proceedings, all of those requirements in our submission have been amply satisfied. The Court, through the orders it has made and the procedures it has followed, has given all interested States an ample opportunity to present their cases in writing and orally. The Court has been and is being provided with a wide range of information and argument. The Court and its members can themselves, of course, seek further information from the organs which requested the opinions as well as from States participating in the process; as is indeed already happening. And the process itself is a public one.

In our submission it would be quite improper for the Court to question the motivations and reasons of the requesting organs. It would also be contrary to the separation of powers within the organised world community. The Court has plainly recognised these considerations. In the very first opinion which it gave, on the Admission of Members, it stressed its legal and judicial function, as opposed to any political role:

the Court cannot attribute a political character to a request which, framed in abstract terms, invites it to undertake an essentially judicial task..... It is not concerned with the motives which may have inspired this request.... (1947-48 ICE Reports 5 7, 6 1).

That is to say whether the requesting organ should or should not make the request is a matter for it and its members and for it and them alone. If the requesting organ considers it no longer requires the opinion it can vote to withdraw the request, as has happened just once, in 1925 in the case of Expulsion of the Oecumenical Patriarch, PCIJ E3 p 1 84. Neither body has taken that action. These requests remain before the Court. In New Zealand's opinion the wisdom of making the request is not a matter that can be the subject of legal evaluation by the Court to which the request comes.

To repeat, New Zealand does not see any "compelling reason" standing in the way of the Court answering the questions put to it. On the contrary, the Court should respond to the clear indication given by the requesting organs both in the decisions to seek the opinions and in the terms of the resolutions seeking them of their need for the opinions and of their real interest in having the opinions. For instance, in its resolution, the World Health Assembly recalled earlier studies by the World Health Organisation on the health and environmental effects of nuclear weapons, and affirmed

that primary prevention is the only appropriate means to deal with the health and environmental effects of the use of nuclear weapons.

The Assembly expressed its realisation that primary prevention of health hazards - a matter plainly within the competence of the World Health Organisation - required clarity about the status in international law of the use of nuclear weapons.

The General Assembly in its resolution requesting the opinion, recalled earlier resolutions declaring that the use of nuclear weapons would be a violation of the Charter and a crime against humanity and expressed its conviction that the complete elimination of nuclear weapons is the only guarantee against the threat of nuclear war.

Accordingly New Zealand submits, first, that the Court has jurisdiction to answer the questions asked by the two bodies and, second, that it ought to answer them.

Substantive Issues

Summary

I now turn, Mr President and members of the Court, to the substance of the New Zealand submissions.

The Court already has available to it New Zealand's written statements. It is also hearing from many other states, a record number I understand, attesting to the vital importance of the issues placed before the Court. We will endeavour in our submissions to focus as succinctly as possible on the principal issues.

I will begin with the fundamental principles of International Humanitarian Law. I will contend that, in the context of the developments which we have outlined, those principles forbid the use, in any circumstances, of nuclear weapons and likewise any threat of their use.

I will then emphasise the great importance of the obligations undertaken by the parties to the Nuclear Non-Proliferation Treaty, obligations which look forward to a ban on the very existence of nuclear weapons, let alone their use.

My colleague, Mr Bracegirdle, will then address the development of the practice limiting and prohibiting the development, deployment, testing and use of nuclear weapons and will refer to the law prohibiting the use of force.

I will then return to the rostrum to deal with the testing of nuclear weapons in more detail and to conclude the New Zealand submission.

International Humanitarian Law

Mr President and members of the Court, in this part of New Zealand's submissions, I will seek to persuade you that International Humanitarian Law forbids the use of nuclear weapons. We have long ago passed from the situation described by Cicero in 52BC:

"Silent enim leges inter arma"

"Laws are silent in time of war"

This is clearly no longer the case, and the first point I wish to make about this body of International Humanitarian Law is that in significant part it takes the form of principles. The Court recently recognised the existence of "fundamental general principles of humanitarian law" in the Military and Paramilitary Activities case 1986 ICJ Reports 1 13. That characteristic is important for at least four reasons:

I . The first is that these humanitarian principles endure and provide a continuing standard, even as the activities, weapons and methods and means of warfare to which the principles are to apply change, and as a consequence the detailed law also changes. The continuing relevance of humanitarian principles is evidenced by the new tribunals established in respect of international crimes in Former Yugoslavia and Rwanda.

2. It follows that the principles apply to new weapons and methods and means of warfare; the principles are not bounded by the circumstances and weapons at the time they were first stated; the point is reflected in Article 36 of the First Additional Protocol to the Geneva Conventions concluded in 1977 and now accepted by 140 states; that provision requires a State in the study, development, acquisition or adoption of a new weapon, means or method of warfare, to determine whether the use of the weapon would in some or all circumstances breach international law.

3. The principles are not however immutable, nor do they comprise a closed list; developing circumstances and especially major threats presented by new weapons of mass destruction may well require the development of further principles.

4. The principles continue to give life to the law, even although specific provisions regulating an area in a particular way have not yet been made; the world community has long recognised that proposition in the DeMartens clause included in relevant treaties since last century. In its latest form, in Article 1(2) of the First Additional Protocol of 1977, the principle is stated as follows:

In cases not covered by this protocol or by other 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.

Members of the Court will recall, of course, the similar reference to "elementary considerations of humanity" in the Corfu Channel case, the Judgment in which was given nearly 50 years ago, 1949 ICJ Reports 22.

It follows from these characteristics of the body of International Humanitarian Law, that it is no answer at all to the present questions to say that the use of nuclear weapons is not prohibited by international law since there is no specific treaty to that effect. Rather the question must be determined by reference to broader principle in the context, among other things, of the developments, especially relating to the Nuclear Non-Proliferation Treaty. The Court is being asked to state the law as it now is.

I turn now to the particular principles of International Humanitarian Law, conscious of course that you will already have heard a great deal about them in the last week or two, also about the effect of the use of nuclear weapons in armed conflict.

I begin with the most general principle, one that takes a somewhat negative form. According to this basic principle, the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited. That is to say the world community rejected any doctrine of unlimited warfare or of total war. Rather, both in principle and in treaty obligations since the St Petersburg declaration in 1868, the world community has accepted that limit. It is a limit, of course, which flatly rejects in this area any general proposition that under international law states are free to act unless they are specifically prohibited.

The second principle requires parties to a conflict to distinguish at all times between the civilian population and combatants and between civilian objects and military objectives in order to spare the civilian population and property. Neither the civilian population as such nor civilian persons are to be the objects of attack. Attacks must be directed solely against military objectives. There can of course be collateral civilian damage consequential to an attack on a legitimate military target. That realisation of the harsh facts of war is however tempered by the requirement that the loss of civilian life, injury to civilians, damage to civilian objects or any combination of those losses must not be excessive in relation to the concrete and military advantage anticipated. One member of this Court, citing an earlier President of the Court, has referred to an Indian classic, The Ramayana. That text tells us that the use of a weapon of war which would destroy the entire race of the enemy was forbidden by the virtuous Prince Rama. The reason given is that the weapon would destroy even those who did not bear arms; such destruction en masse was forbidden by the ancient laws of war even though Rama's adversary was fighting an unjust war. (Weeramantry, Nuclear Weapons and Scientific Responsibility (1987) 84 citing Nagendra Singh, Human Rights and the Future of Mankind (1981) 93).

A third basic principle is that parties to a conflict must not use weapons and methods and means of warfare of a nature to cause superfluous injury or unnecessary suffering. Again there is a recognition in this proposition that armed conflict does cause suffering. There is, however, a limit on weapons by reference to superfluity and lack of necessity.

A fourth principle is unlike the preceding three in that it cannot be traced back to last century or even earlier. It has been recognised more recently as the destructive effect of weapons has massively increased. Under this principle parties to a conflict must not use methods or means of warfare which are intended or may be expected to cause widespread, long term and severe damage to the natural environment. Closely related to this principle is the concern for intergenerational damage, a matter touched on by Judge Weeramantty in his dissenting opinion given in this Court two months ago when New Zealand sought to resume the case which it had brought in 1973 relating to French Nuclear Testing. That idea of a continuing obligation owed to future generations is increasingly recognised in environmental law.

Indeed, it is noteworthy that over 200 years ago, an American President, James Madison, espoused a not dissimilar principle when writing in the "National Gazette" on February 2nd, 1792. "Each generation should bear the burden of its own wars", Madison said, "instead of carrying them on, at the expense of other generations".

A fifth relevant principle of International Humanitarian Law is that methods and means of warfare must not violate the neutrality of states which are not participating in the conflict. Belligerents have no right to carry on hostilities within the territory of such a state. Neutral states have the right to freedom from harm and injury arising from an armed conflict with which they are not involved.

Finally is the set of rules prohibiting the use of asphyxiating, poisonous or other gases and all analogous materials. This principle is generally acknowledged as forming part of customary international law and is codified in part in the 1925 Geneva Protocol on the use in war of gases and bacteriological weapons. Given the radiation effects of nuclear weapons many contend that this body of law also applies to nuclear weapons.

The most recent authoritative statement supporting the propositions I have stated is the First Additional Protocol of 1977 relating to the protection of the victims of armed conflict. In the course of the preparation of that agreement, nuclear powers made it clear that they did not consider that text governed the use of nuclear weapons. I do not intend to take up the particular legal effect of those various statements and declarations. Rather it is enough for present purposes to make the point that in the present context that text is simply a convenient statement of well established principle existing under customary international law independently of the formal status of the 1977 Protocol and its exact interpretation. This Court did of course, in 1986 in its Judgment in the case concerning Military and Paramilitary Activities, recognise the customary force of the Geneva Conventions. The force, it said, does not derive only from the conventions themselves but from the general principles of humanitarian law to which the conventions merely give specific expression.

I might note, Mr President and members of the Court, that such fundamental principles which have the character of jus cogens do not fall within the scope of the primacy provision in Article 103 of the Charter; the obligations arising from those principles are not to be found simply in "any other international agreement". They have a much more basic character.

Nuclear Non-Proliferation Treaty

Mr President, I would now like to consider the fundamental legal obligations that exist concerning nuclear weapons, particularly in the context of the Treaty on the NonProliferation of Nuclear Weapons. In 1968 many countries around the world entered into a compact. Non-nuclear-weapon States agreed not to develop nuclear weapons. Nuclear-weapon States, for their part, agreed to negotiate in good faith on bringing the nuclear arms race to an end at an early date and on nuclear disarmament.

These were commitments of the most solemn kind. Security is a fundamental concern of nation states and the United Nations. Countries do not lightly renounce whole categories of weapons that they have come to see as being, or as holding out the promise of being, essential to their security. But in 1968, the paradoxical nature of nuclear weapons was already well understood. If ever used, they would most likely ensure the destruction, not the maintenance of the security, of the user. It is trite today to observe that these weapons were wholly different from anything that humanity had previously had to deal with. The threat and fear of such weapons and of their proliferation was very real. They posed a unique challenge to the international legal order.

That concern remains with us today, even if the worst fears of the 1960s have not been realised. It was widely recognised that nuclear weapons posed an overwhelming danger to humanity. Their further proliferation, whether "horizontally", involving the acquisition of nuclear weapons by additional countries, or "vertically", through the development of greater numbers of nuclear weapons and of new types that might appear to make nuclear weapons more "usable" and thereby supposedly enhance their deterrent value, would not be in anyone's interests. The overriding security imperative that underpins the Nuclear Non-Proliferation Treaty adopted in 1968 is that nuclear weapons are too dangerous for humanity and must be eliminated. That is the central and fundamental point of the treaty, as its preamble makes clear. This security imperative remains as valid today as in 1968. The willingness of the parties, at their Review and Extension Conference in May 1995, to make the treaty permanent, is the strongest evidence that that is so. That decision also emphasises that the international community's rejection of nuclear weapons that is the very basis of the treaty is a permanent rejection.

In New Zealand's view, it is very significant that this treaty has broad international support. It is not yet universally accepted, but only a handful of countries have not yet committed themselves to its terms. Some 180 countries are party to it. What is especially significant is that all five nuclear-weapon States are now party to it. They are bound to work to eliminate their nuclear weapons, and the non-nuclear-weapon States Parties are bound not to acquire nuclear weapons. The principle of non-proliferation, of the unacceptability, of nuclear weapons is so widely accepted that it can now be said that it has attained the status of a norm at international law which binds all countries, even though the terms of the treaty itself do not yet bind all.

The agreed premise of the treaty is that a world free of nuclear weapons would be a better and more secure place. The treaty held out the promise of that goal being reached without undue delay. Even those states that are not party to the treaty would be hardly likely to disagree with the elimination of nuclear weapons. That has not happened. For most of the life of the treaty, the nuclear arms race accelerated rather than going into decline. Only in recent years has the nuclear arms race been reversed. It is due to the fact that that promise has not been fulfilled that this opinion is now being sought. The requests to the Court reflect the impatience and concern of the international community at the failure to live up to this promise.

The challenge to the Court that this case presents is a very large one. Nuclear arms control and disarmament has long been one of the highest objectives of the international community. The Court is bound to ensure that its opinions support and assist the achievement of that objective and do not jeopardise it in any way. The Nuclear NonProliferation Treaty, as reinforced by the recent decision of the parties to make it permanent, has "delegitimised" nuclear weapons. The international community is committed to their complete elimination. That this is so is clear beyond doubt as a matter of international law. There can be no turning back now from the treaty commitments. The Court must seize the opportunity to help in building on that process and achieving the objective of the treaty as rapidly as possible. It cannot do otherwise, and in particular must avoid any weakening of the process. New Zealand is confident that the Court's findings in this matter will be consonant with other developments in nuclear arms control and nuclear disarmament, including the rededication of commitment to the Nuclear Non-Proliferation Treaty, the imminent conclusion of a comprehensive nuclear test ban treaty, and further rapid progress in bilateral nuclear arms control talks.

Mr President, it is sometimes claimed that the Nuclear Non-Proliferation Treaty created two classes of countries, the nuclear-weapon States and the non-nuclear-weapon States, the "haves" and the "have-nots". Certainly, it recognised the reality of the world at the time, where some countries already had nuclear weapons and others did not. But more important, it set out the conditions by which equality could be restored between both sets of countries, that is, a world in which nuclear weapons would be eliminated as quickly as possible. In providing for the elimination of nuclear weapons, it was plainly not aiming to maintain the status quo or encourage renewed development of nuclear arsenals by the nuclear-weapon States. No distortion of that kind stands up to scrutiny.

Nor can an argument that the nuclear-weapon States were being given a legal basis for the maintenance of their nuclear weapons be sustained. That is simply not what the treaty provides. It does not provide a basis for the nuclear-weapon States to argue that nuclear arms control and nuclear disarmament can be deferred. Article VI does not make that process conditional on a treaty on general and complete disarmament under strict and effective international control. Such an argument ignores the very raison d'être of the treaty, which is based on a recognition that nuclear weapons are different.

The judgment made was that, in view of the uniquely destructive potential of such weapons, and human nature being what it is, the only option for humanity was to rid itself of these weapons entirely. The threat that the weapons represent hangs over the security of the whole international community. They also constitute a threat, and a challenge, to the very international legal order. The Nuclear Non-Proliferation Treaty is the most important response to date to that challenge.

The closest parallels to nuclear weapons are biological weapons and chemical weapons, which are also commonly referred to as weapons of mass destruction. Both these latter two categories of weapons, and in effect their use, are of course subject to comprehensive prohibitions which are now incorporated in a single treaty in each case. Despite their even more threatening nature, the abolition of nuclear weapons has proceeded down a more complicated track. The general terms of Article VI of the Nuclear Non-Proliferation Treaty to negotiate in good faith towards the elimination of such weapons stands by itself as a powerful, if only partly met, obligation to that end. It is reinforced by a large amount of additional international law, both treaty law and customary law, that bears on nuclear weapons and their use.

This law, some of which long predates the Nuclear Non-Proliferation Treaty and even the advent of nuclear weapons, and some being of more recent origin, contains a whole series of sometimes overlapping obligations and prohibitions which circumscribes, inter alia, the threat or use of nuclear weapons in many ways. The comprehensiveness of that law is, in New Zealand's view, now beyond debate. In no realistic scenario of nuclear war can it today be said that the use of nuclear weapons would be taking place in conformity with international law. For many years, the direction of international law has been overwhelmingly clear; it has now reached a point where a conclusive answer can be given to the question before the Court.

Mr President, I would now like to ask my colleague, Mr Bracegirdle, to address state practice in the area of disarmament and arms control.