Would all States please repeat after me, “You are not special. You are not a beautiful or unique snowflake. You’re the same decaying organic matter as everything else.” – Unless, you are a nuclear weapon State. Because your nuclear weapons are probably going to last forever.
Despite Chuck Palhinuks slightly depressing perspective, the International Court of Justice (ICJ) does view some States as special in the formation of customary international law. It was in the ICJ’s foundational judgement of the North Sea Continental Shelf case of 1969, that customary international law – law that binds all States – is formed through widespread and representative State practice accompanied by opinio juris. When determining whether there is sufficient State practice to constitute customary international law, the Court can look towards the actions of States whose interests are specially affected.
So, what happens when there is a weapon with the potential to affect every State’s interests, but are only possessed by a few? When considering nuclear weapons, the big question is – whose interests are the most specially affected by nuclear weapons? Nuclear weapon States or non-nuclear weapon States?
Nuclear weapon States make an obvious case for why their interests are specially affected. Their nuclear weapons, of course!
Currently, there are nine nuclear weapon States – United States, United Kingdom, China, France, Russia, Israel, Pakistan, India and North Korea. All nine States are vehement about keeping their nuclear weapons for “deterrence” purposes. Any customary international law prohibiting or restricting nuclear weapons, would specifically affect their interests by impeding the use of their strongest weapons. Which, in turn, runs the risk of only certain States conforming to the restrictions and creating a further imbalance of power.
Previously, the United States stated that nuclear weapon States are the most specially affected States when it comes to nuclear weapons. In his inaugural address, President Trump stated that one day there may be no need for nuclear weapons but due to rising tensions they will not give up their strongest weapon. In its 1996 advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, the International Court of Justice held on the side of nuclear weapon States because these States are directly engaging in the practice of nuclear weapons. However, this statement is based on the assumption that specially affected States are only those which are engaging in the practice at issue, rather than the States that have actually been harmed by the practice or those who have the potential for being harmed. Essentially, the holding ignores the other 184 non-nuclear States that are at the mercy of nuclear weapon States.
Those who have actually been harmed by nuclear weapons are not always the forefront of international talks on nuclear weapons, but perhaps they should be.
Japan and numerous island States have suffered the generational consequences of the use and testing of nuclear weapons. In their separate dissenting opinions in the advisory opinion of 1996, Judges Weeramantry and Shahabuddeen pointed out the ICJ’s own failure to address non-nuclear weapon States affected by nuclear weapons. 20 years later, the International Court of Justice dismissed the Marshall Islands case against several States in breach of their nuclear disarmament obligations due to a lack of jurisdiction. However, the Court noted that by virtue of suffering from severe nuclear weapons testing, the Marshall Islands has special reasons for being concerned about nuclear disarmament.
2017 marked a drastic change with the creation of the Treaty for the Prohibition of Nuclear Weapons. 121 States attended the negotiations with the intention to prevent the disastrous effects nuclear weapons have had by eliminating them. Six months later, the Treaty for the Prohibition of Nuclear Weapons has only been signed and ratified by three States.
This poses the question, if nuclear weapons present such a drastic threat to humanity and the very existence of non-nuclear weapon States, then why hasn’t the treaty come into force?
Japan’s Foreign Minister Fumio Kishida indicated that any such negotiations are unrealistic without the participation of major nuclear weapon States. Further stating that the negotiations “not only do not realistically help create a world without nuclear weapons but could also deepen the rift between nuclear and non-nuclear weapon states and cause an adverse effect”.
It is self-evident that to create a customary international law prohibiting the use of nuclear weapons, the ICJ would consider nuclear weapon States to be specially affected. However, there is no questioning the devastating humanitarian, environmental and economic effects the use and testing of nuclear weapons have. Nuclear weapons’ potential immeasurable fall out and destruction affect every State’s interest – making every State a specially affected State.
The ICJ’s recent comments show a shift towards this understanding, but there is a long way to go until there is a binding prohibition on nuclear weapons. Whether the international community is willing to give up their bigger and stronger red buttons is another issue entirely.
Louise Dinnie is a fourth-year Law student at Murdoch University who enjoys dissenting opinions and complaining about things she can’t change – what do you mean they are the same thing?