Introduction
The world stands at a pivotal crossroads as the Norwegian Nobel Committee awards the Nobel Peace Prize for 2024 to Nihon Hidankyo, the Japanese organization of atomic bomb survivors from Hiroshima and Nagasaki, also known as the Hibakusha. This grassroots movement is recognized for its unwavering efforts to achieve a world free of nuclear weapons and for their powerful witness testimonies that underscore the imperative that such weapons must never be used again. The Hibakusha are more than survivors; they are living embodiments of history's most devastating moments. Their personal stories and educational campaigns have galvanized global opposition to nuclear weapons. By sharing their incomprehensible pain and suffering, they help the world describe the indescribable and think the unthinkable. Their testimonies serve as urgent warnings against the spread and use of nuclear weapons, reminding us of the catastrophic consequences that extend beyond borders and generations.
International law plays a crucial role in the fight against nuclear proliferation. Treaties like the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the Treaty on the Prohibition of Nuclear Weapons (TPNW) provide legal frameworks that discourage the development, stockpiling, and use of nuclear arsenals. These instruments are vital for promoting transparency, fostering trust among nations, and providing mechanisms for verification and enforcement. The Hibakusha's advocacy has been instrumental in shaping these international laws. Their relentless efforts have not only influenced policy but have also kept the nuclear disarmament conversation alive on the global stage. The International Court of Justice (ICJ) delivered its landmark Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons on July 8, 1996. This case is one of the most significant contributions to international law on the subject of nuclear weapons. The ICJ was asked to clarify whether the threat or use of nuclear weapons is permitted under international law, particularly under humanitarian law principles and the UN Charter.
The Court's findings, though not entirely definitive in every aspect, underscored the grave legal and humanitarian concerns surrounding nuclear weapons. Here are key paragraphs and sections from the case that highlight the Court's reasoning and the implications for international law.
Paragraph 105(2)(E) - Conditional Legality
One of the most cited sections of the Advisory Opinion is Paragraph 105(2)(E), where the Court stated:
"The 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."
This paragraph underscores the Court's position that nuclear weapons, by their very nature, are difficult to reconcile with the principles of distinction and proportionality under international humanitarian law (IHL). These principles require that combatants distinguish between civilian and military targets and avoid excessive harm to civilians. Given the catastrophic and indiscriminate impact of nuclear weapons, the ICJ strongly implied that their use would almost always violate IHL.
The Exception - Extreme Circumstances of Self-Defence
However, the ICJ left a narrow window open in Paragraph 105(2)(E) by stating:
"...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."
This ambiguity has been the subject of much debate. While the ICJ recognized the general illegality of nuclear weapons, it stopped short of declaring their use always unlawful, particularly in extreme cases where a state's survival is threatened. This conditional legality introduces a grey area into the international legal framework regarding nuclear weapons, leaving some room for states to argue the legality of their use under extraordinary circumstances.
Humanitarian Law and Environmental Considerations - Paragraph 35
In Paragraph 35, the ICJ addressed the impact of nuclear weapons on the environment and human health:
"The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet."
This paragraph emphasizes the ICJ's concern about the long-term and far-reaching environmental and humanitarian consequences of nuclear weapons. The Court noted that nuclear weapons cause indiscriminate damage that cannot be limited to combatants, violating fundamental principles of humanitarian law. Additionally, their use would have devastating effects on the environment, contributing to the broader illegality of their use under international law.
The Principle of Non-Recourse to Force - Paragraph 38
The UN Charter’s core principle of non-recourse to force except in self-defense was also central to the ICJ's reasoning. In Paragraph 38, the Court reaffirmed:
“A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful.”
This reiterates the prohibition on the use or threat of nuclear weapons unless they are in strict accordance with the right of self-defense under Article 51 of the UN Charter. Any threat or use of nuclear weapons that fails to meet these stringent requirements would violate the UN Charter, further limiting their legal use under international law.
Disarmament Obligations - Paragraph 99
Perhaps one of the most influential parts of the ICJ’s Advisory Opinion concerns disarmament obligations. In Paragraph 99, the Court emphasized:
"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."
This paragraph highlights the legal obligation on all states to actively pursue nuclear disarmament. It reinforces the commitments made under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which requires state parties to negotiate in good faith towards nuclear disarmament. The ICJ’s opinion underscores that this obligation is not merely aspirational but a binding legal duty.
Customary International Law and Nuclear Weapons - Paragraph 86
The ICJ also considered whether there exists any specific rule of customary international law that categorically prohibits the use of nuclear weapons. In Paragraph 86, the Court noted:
"The Court does not consider that, as a matter of customary international law, there is any comprehensive and universal prohibition of the threat or use of nuclear weapons as such."
This finding is significant because it reflects the Court's acknowledgment that no universal custom, at the time of the ruling, unequivocally bans the use of nuclear weapons. However, it simultaneously reflects the need for international efforts to further develop and strengthen norms and rules surrounding nuclear disarmament and non-proliferation.
Conclusion
The ICJ's Advisory Opinion on Nuclear Weapons remains a critical document in understanding the intersection of nuclear weapons and international law. It recognizes the severe humanitarian and environmental consequences of nuclear weapons while grappling with the challenges of fully integrating nuclear disarmament into existing legal frameworks. Though the Court did not conclusively declare nuclear weapons illegal in all circumstances, it reaffirmed states' obligations under international law to work towards nuclear disarmament and respect humanitarian principles. While it is encouraging that no nuclear weapon has been used in war for nearly 80 years—a testament to the efforts of Nihon Hidankyo and others—the current global landscape is troubling. Nuclear powers are modernizing and upgrading their arsenals. New countries appear to be preparing to acquire nuclear weapons, and threats are being made to use them in ongoing conflicts. This erosion of the nuclear taboo is alarming and underscores the urgency of the Hibakusha's message.
Formed in 1956, Nihon Hidankyo united local Hibakusha associations and victims of nuclear weapons tests in the Pacific. Over the decades, they have provided thousands of witness accounts, issued resolutions and public appeals, and sent annual delegations to the United Nations and various peace conferences. Their work has been pivotal in reminding the world of the pressing need for nuclear disarmament. By choosing to use their painful experiences to cultivate hope and engagement for peace, the Hibakusha exemplify the core of Alfred Nobel's vision—that committed individuals can make a difference. The synergy between the Hibakusha's activism and international law is a powerful force for change. Their firsthand accounts have given weight to legal arguments against nuclear weapons, influencing international treaties and norms. This intersection ensures that the legal frameworks are not just theoretical constructs but are grounded in the real, human consequences of nuclear warfare.
As we approach the 80th anniversary of the bombings of Hiroshima and Nagasaki, the Hibakusha's message is more pertinent than ever. Today's nuclear weapons have far greater destructive power and could kill millions while catastrophically impacting the climate. A nuclear war could indeed destroy our civilization. Global cooperation is essential. Nations must recommit to international treaties and support organizations like Nihon Hidankyo. Public awareness and engagement can pressure governments to prioritize nuclear disarmament, making it not just a legal obligation but a moral imperative. One day, the Hibakusha will no longer be among us. However, with a strong culture of remembrance and continued commitment, new generations in Japan and around the world are carrying forward their experiences and messages. They inspire and educate, helping to maintain the nuclear taboo—a precondition for a peaceful future for humanity. The awarding of the Nobel Peace Prize to Nihon Hidankyo is not just an acknowledgment of past efforts but a clarion call for the future. The "Survivors" have shown us the path toward a world without nuclear weapons. It is up to us to heed their warnings and work within the frameworks of international law to ensure that the horrors they endured are never repeated.
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