Nuclear weapons and law for the future: The application of principles protecting future generations in international tribunals
By Alyn Ware*
Paper presented at ‘Taking Legal Action on Behalf of Future Generations’, an international conference held from November 17-18, 2017 hosted by the University of Caen (France) and organized by Region Normandy as part of the Normandy for Peace series.
The development of law relating to future generations is an exciting field with some aspects now being tested in international tribunals, including in relation to climate change and nuclear weapons. With regard to nuclear weapons, legal responsibility to future generations has been considered in three cases in the International Court of Justice and in an informal People’s International Tribunal on Nuclear Weapons and the Destruction of Human Civilisation.
1974 International Court of Justice Nuclear Tests Cases
On 9 May 1973, Australia and New Zealand instituted proceedings against France concerning tests of nuclear weapons which France proposed to carry out in the atmosphere in the South Pacific region. Already France had conducted 46 atmospheric nuclear explosions from their testing facilities on Moruroa and Fangataufa Atolls.
In their application to the Court, New Zealand alleged that the nuclear tests conducted by France from 1966 to 1973 had caused radioactive fallout to New Zealand and to territories under New Zealand’s protection (Cook Islands, Niue and the Tokelau Islands); that this radioactive fallout constituted a hazard to human health and to the environment of these territories; and as a consequence the nuclear tests violated the sovereignty of New Zealand.
New Zealand also alleged that the actions by France to cordon off areas of the high seas during nuclear tests were a violation of the right of New Zealand and others to freedom of navigation on the high seas.
And New Zealand argued that the tests were linked to the planning and preparation for nuclear war which was inconsistent with the rights of the global community to peace and security, and the common aspirations for the elimination of nuclear weapons. As such, the harm to the populations of New Zealand and territories under its protection was not confined to damage or potential damage to physical health, but also to increased risks, anxieties and fears of global nuclear war.
The New Zealand application added a futures framework to the threat of nuclear war arising from the tests, stating that they ‘hinder the attainment of further disarmament measures which are universally considered essential for the attainment of future international Security.
Reference to the future in the application also extended to the rights of future generations to be protected. New Zealand argued that the nuclear tests generated ‘hazards to the health of current and future generations’ not only in New Zealand but globally due to ‘the dispersal over wide areas of the globe of radioactive fallout’, as well as due to the long lives of radioactive isotopes from nuclear tests and the trans-generational impact of these isotopes through their damage to human genes and reproduction.
Australia’s application included many of the same arguments as New Zealand, including references to the rights of future generations. With regard to the harm to human health, Australia submitted that ‘Radiation exposure of human populations can be expected to bring about some increase in deleterious genetic mutations which can be transmitted to the offspring of exposed persons and to future generations.’
Decisions of the Court and dissenting opinions
Early in the proceedings (June 22, 1973) the Court granted an injunction against further tests by France while the cases proceeded. However, the merits (legal status) of the arguments presented by New Zealand and Australia were not tested by the Court because of the announcement by France on Oct 11, 1974 that they would no longer conduct atmospheric nuclear tests. As the object of the legal action by New Zealand and Australia had been met, i.e. the prevention of further atmospheric nuclear tests, the Court announced in judgements delivered on December 20, 1974 that they no longer were required to give a decision on the legality of the French nuclear tests.
Not all the judges agreed with this decision. In a joint dissenting opinion, Judges Onyeama Dillard, Jiménez de Aréchaga and Sir Humphrey Waldock noted that there were a number of reasons that the case should have continued to be considered, most notably because there could be legal obligations arising from the ‘future damage’ caused by the nuclear tests already conducted by France.
1996 International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons
On 8 July 1996, the International Court of Justice delivered a decision on a legal question asked of it by the United Nations General Assembly: Is the threat or use of nuclear weapons in any circumstance permitted under international law?
The Court held that ‘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;’ but that there might be a possible exception to this prohibition, in that it ‘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.”
Finally, the court concluded unanimously 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.’
The Court recognised that there is no specific treaty which provides a general or universal prohibition on the threat or use of nuclear weapons. However, the Court based its conclusion of general illegality on the application of customary law to nuclear weapons, in particular the ‘principles and rules of international humanitarian law.’
In its decision, the Court referred a number of times to future generations or the transgenerational impact of nuclear weapons. The Court noted, for example, that ‘the use of nuclear weapons would be a serious danger to future generations. Ionizing radiation has the potential to damage the future environment, food and marine ecosystem, and to cause genetic defects and illness in future generations,’ and that ‘By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also powerful and prolonged radiation. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time.’
The Court noted that the destructive impact of nuclear weapons transcends not only multiple generations, but could cause the end to the future of humanity and the planet itself. ‘They have the potential to destroy all civilization and the entire ecosystem of the planet.’
With regard to the law on trans-generational impact, the Court cited Additional Protocol 1 of 1977 to the Geneva Conventions of 1949, Article 35, paragraph 3, of which prohibits the employment of “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment“; and the Convention of 18 May 1977 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which prohibits the use of weapons which have “widespread, long-lasting or severe effects.”
Transgenerational impact of nuclear tests in the Marshall Islands
My own health has suffered very much, as a result of radiation poisoning. I cannot have children. I have had miscarriages on seven occasions. On one of those occasions, I miscarried after four months. The child I miscarried was severely deformed; it had only one eye…. Some of us had brain tumours and other cancers removed. In more recent years, we have come to learn that some of us had our entire thyroids removed….
Women have experienced many reproductive cancers and abnormal births. Marshallese women suffer silently and differently from the men who were exposed to radiation. Our culture and religion teaches us that reproductive abnormalities are a sign that women have been unfaithful to their husbands. For this reason, many of my friends keep quiet about the strange births they had. In privacy, they give birth, not to children as we like to think of them, but to things we could only describe as “octopuses”, “apples”, “turtles”, and other things in our experience… One woman on Likiep gave birth to a child with two heads. Her cat also gave birth to a kitten with two heads. The most common birth defects on Rongelap and nearby islands have been “jellyfish” babies. These babies are born with no bones in their bodies and with transparent skin. We can see their brains and hearts beating. The babies usually live for a day or two before they stop breathing. Many women die from abnormal pregnancies and those who survive give birth to what looks like purple grapes which we quickly hide away and bury.’
Testimony of Lijon Eknilang, Oral Presentation of the Marshall Islands to the International Court of Justice, Tuesday 14 November 1995
Trans-temporal application of humanitarian law
There is another aspect of the Court’s deliberations which relates to future generations, which is the Court’s acceptance of the trans-temporal nature of the application of international humanitarian law to specific weapons systems. This concept is expressed most clearly in the Martens Clause adopted in the Hague Conventions of 1899 and 1907 and the Geneva Convention Protocols of 1977.
The Hague and Geneva Conventions prohibited methods of warfare that caused superfluous injury or unnecessary suffering or that targeted civilians and other protected groups (such as prisoners of war), and also prohibited specific weapons systems which would violate these laws of warfare.
The Martens Clause, named after Friedrich Martens, the Russian delegate to the Hague Peace Conferences of 1899, held that the laws of warfare also applied in circumstances and to weapons systems not specifically identified in the conventions: ‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.’
In essence the Martens clause indicates that the laws of warfare affirmed by the Hague and Geneva Conventions, reach into the future to apply to weapons systems not yet invented, developed or deployed at the time of the adoption of the conventions.
The ICRC highlighted this trans-temporal nature of international humanitarian law when it noted in its commentary of 1987 that: ‘First, despite the considerable increase in the number of subjects covered by the law of armed conflicts, and despite the detail of its codification, it is not possible for any codification to be complete at any given moment; thus the Martens clause prevents the assumption that anything which is not explicitly prohibited by the relevant treaties is therefore permitted. Secondly, it should be seen as a dynamic factor proclaiming the applicability of the principles mentioned regardless of subsequent developments of types of situation or technology.’
The Court upheld this interpretation of the trans-temporal nature of IHL when it considered the application to nuclear weapons of law in the Hague Conventions of 1899 and 1907 and the Geneva Protocol of 1925, even though these were adopted prior to the existence of nuclear weapons. In making this determination the Court specifically pointed to ‘the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons.’
The court re-affirmed the universal and trans-temporal application of IHL when responding to the arguments of the nuclear armed States that the Geneva protocols of 1977 did not apply to nuclear weapons because nuclear weapons were not mentioned. The Court’s stated in response: ‘… it cannot be concluded from this that the established principles and rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Such a conclusion would be incompatible with the intrinsically humanitarian character of the legal principles in question which permeates the entire law of armed conflict and applies to all forms of warfare and to all kinds of weapons, those of the past, those of the present and those of the future.’
Consideration of the trans-generational impact of nuclear weapons was a strong contributing factor moving the Court to affirm the general illegality of the threat or use of nuclear weapons despite the recognition by the Court that nuclear deterrence was still accepted and relied upon by a considerable sector of the international community.
As such, the Court did not legitimise the nuclear deterrent policies of the nuclear armed states, but nor did the Court condemn them outright in its determination of general illegality. Some judges felt that the Court should have gone further and ruled 100% against the doctrine of nuclear deterrence based upon the principles of international humanitarian law and protection of future generations.
In a dissenting opinion, Judge Weeramantry for example, argued that any threat or use of nuclear weapons, without exception, would be illegal based on application of a wide body of law including the afore-mentioned principles.
With regard to the rights of future generations, Weearmantry cited the responsibility under the UN Charter to ‘protect future generations from the scourge of war’, observed that the atom bomb ‘is unique as a source of peril to the human future,’ and argued that ‘This Court [the ICJ], as the principal judicial organ of the United Nations, empowered to state and apply international law with an authority matched by no other tribunal must, in its jurisprudence, pay due recognition to the rights of future generations.’
Furthermore, Judge Weeramantry argued that ‘It is to be noted in this context that the rights of future generations have passed the stage when they were merely an embryonic right struggling for recognition. They have woven themselves into international law through major treaties, through juristic opinion and through general principles of law recognized by civilized nations.’
Weeramantry added that ‘When incontrovertible scientific evidence speaks of pollution of the environment on a scale that spans hundreds of generations, this Court would fail in its trust if it did not take serious note of the ways in which the distant future is protected by present law.’
Judge Shahabudeen, also cited protection of future generations in his dissenting opinion where he agreed with Weeramantry that international law rules out any use of nuclear weapons. Shahabudeen argued that the use of nuclear weapons not only impacts on future generations, but it would be an act of ‘war’ on future generations. ‘The weapon continues to strike for years after the initial blow, thus presenting the disturbing and unique portrait of war being waged by a present generation on future ones – on future ones with which its successors could well be at peace.’
Indeed, Shahabudeen indicates that the unique nature of nuclear weapons to inflict indiscriminate damage across space and time require the application to nuclear weapons of legal principles protecting future generations in addition to the application of international humanitarian law. ‘International law includes the principles of the law of armed conflict. These principles, with roots reaching into the past of different civilizations, were constructed on the unspoken premise that weapons, however destructive, would be limited in impact, both in space and in time. That assumption held good throughout the ages. New and deadlier weapons continued to appear, but none had the power to wage war on future generations or to threaten the survival of the human species. Until now.’
Judge Bedjaoui, who presided over the case, also made a separate declaration which serves as a further explanation of the decision of the Court. Judge Bedjaoui refers to the UN Charter obligation to save succeeding generations from the scourge of war, and then comments more directly on the threat of nuclear weapons to the ‘survival of mankind’. He then explains that in order to exercise its responsibility to protect ‘mankind’, the court turned the Lotus principle on it’s head with respect to nuclear weapons.
In the Lotus case of 1927 the Permanent Court of Arbitration held that actions which are not specifically prohibited under international law are permissible. Bedjaoui explained that the Court’s current decision indicates a presumption of illegality with regards to the threat or use of nuclear weapons, with any exception to that presumption needing to be established, rather than the reverse. ‘I cannot sufficiently emphasize that the Court’s inability to go beyond this statement of the situation can in no way be interpreted to mean that it is leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons… the Court, in this Opinion, is far more circumspect than its predecessor in the “Lotus” case in asserting today that what is not expressly prohibited by international law is not therefore authorized.’
The approach of the Court in the nuclear weapons case, as explained by its President Bedjaoui, has some similarities to the precautionary principle in international environmental law, which provides some level of constraint regarding actions that could cause serious and irrevocable harm, but lacks the clarity of a comprehensive and legally binding prohibition on such actions.
In conclusion, one can argue that an emerging recognition of the rights of future generations was influential in the 1996 ICJ advisory opinion, but was not sufficiently strong to swing the decision from a precautionary approach regarding the legality of threat and use of nuclear weapons to a comprehensive legal proscription with no possible exceptions.
2016 International Court of Justice Nuclear Disarmament Cases
On 24 April 2014, the Marshall Islands filed Applications in the International Court of Justice against the three nuclear armed states which accept compulsory jurisdiction of the International Court of Justice for contentious cases (India, Pakistan and the United Kingdom). Marshall Islands charged these countries with not fulfilling their treaty and customary obligations to negotiate for the comprehensive prohibition and elimination of nuclear weapons.
In their applications, the Marshall Islands cited the conclusion of the ICJ 1996 case that: ‘[t]he destructive power of nuclear weapons cannot be contained in either space or time’ and that such weapons ‘have the potential to destroy all civilization and the entire ecosystem of the planet… the unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.’
The Marshall Islands cited evidence from its testimony to the Court in 1995 on the devastating trans-generational impacts of nuclear weapons tests to the population and environment of the Marshall Islands.
In addition, the Marshall Islands submitted evidence that wasn’t available in 1995 on the catastrophic and trans-generational impact of the use of nuclear weapons on the global economy and on the climate. They cited the conclusion of the Vienna Conference on the Humanitarian Impacts of Nuclear Weapons that; ‘The impact of a nuclear weapon detonation, irrespective of the cause, would not be constrained by national borders and could have regional and even global consequences, causing destruction, death and displacement as well as profound and long-term damage to the environment, climate, human health and well-being socioeconomic development, social order and could even threaten the survival of humankind.’
However, the Court did not consider the merits of the cases, dismissing them on admissibility and jurisdiction grounds.
2017 People’s International Tribunal
In August 2017, a People’s International Tribunal on Nuclear Weapons and the Destruction of Human Civilisation was held in Sydney to consider the application of international law to nuclear weapons and the responsibility of those most responsible for nuclear weapons policies.
Civil society tribunals do not have formal legal standing and their findings do not have compulsory legal force. However, they provide a court-like environment with the prosecution and defence putting forward legal arguments and evidence, as well as opportunities for testimony from witnesses, and judges or a jury who are required to make a judgement based on the evidence and law presented to them. In this way, they can provide a test of legal arguments applicable to the situation at hand.
They can contribute to the development of opinio juris (as a reflection or interpretation of international custom, general principles of law and the teachings of highly qualified publicists), and they can pave the way for applications to formal courts. The London Nuclear Warfare Tribunal of 1985, for example, paved the way for an international network of lawyers, medical professionals and peace activists to launch the successful effort to get the case on legality of the threat or use of nuclear weapons into the International Court of Justice.
The prosecution laid charges against the leaders of the nine nuclear armed States (China, France, India, Israel, North Korea, Pakistan, Russia, United Kingdom and the United States) and the leader of Australia – a state relying on under extended nuclear deterrence from the United States.
On August 16, the Tribunal delivered its verdict. The leaders of the nuclear armed States were ‘convicted’ of war crimes, crimes against humanity, crimes against peace and crimes of threatening, planning and preparing acts which would constitute genocide, ecocide and omnicide. In addition, the tribunal ‘convicted’ the leader of Australia for complicity, i.e. aiding and abetting the planning and preparation for the use of nuclear weapons which would constitute a crime, and for making illegal threats to facilitate and support the use nuclear weapons.
In reaching its decision the tribunal considered the application of international humanitarian law and the law on peace and security, as well as human rights, environmental, and criminal law. Most significantly the tribunal included a specific focus on protecting the rights of future generations.In this, the judges drew heavily from testimony to the court provided by Prof Emilie Gaillard, an expert on law protecting future generations. Prof Gaillard provided considerable theoretical and legal background on the status of inter-generational justice, the rights of future generations under international law, the responsibility to protect future generations and the application of this law to nuclear weapons.
The prosecution, in its rebuttal and closing statement, also focused on inter-generational justice and the rights of future generations. The prosecution argued that: ‘If there is any remaining doubt that every use of nuclear weapons is now clearly illegal, the inter-generational application of international humanitarian law closes and locks the door completely. Even if there was some remaining possibility that a nuclear weapon could be used on military installations and personnel in a way that did not spread radiation to civilians, the offspring of surviving military personnel, and their subsequent generations, would be impacted by the radiation – both through long-lasting radionuclides and through inter-generational damage to genes. It is clearly illegal for the weapons to cause this damage to future generations. They may be offspring of military personnel, but they have their own human rights and are protected under international humanitarian law.’
The tribunal judges placed a high importance on the issue of inter-generational justice and rights of future generations in their judgement, dedicating a whole chapter on the issue. The Tribunal then concluded, with specific reference to inter-generational justice, that: ‘The evidence before the Tribunal showed the impossibility of the use of nuclear weapons, not stopping at neutral borders, wreaking destruction on present and future generations, thus breaching all of the above and therefore being unlawful.’
The judges reaffirmed that the threat or use of nuclear weapons would violate a number of principles and expressions of international law including ‘Protection of future generations – the widespread damage by nuclear weapons … environmental, ecological and genetic would be on such a scale that the fundamental human rights of those future generations and the legal protections afforded to them would be totally breached.’
* Alyn Ware is Coordinator of the World Future Council Peace and Disarmament Program, International Representative of Aotearoa Lawyers for Peace and Consultant for the International Association of Lawyers Against Nuclear Arms. A longer version of this article is included in Legal Actions for Future Generations, Emilie Gaillard and David Forman (eds), Peter Lang publishers, 2020.