STATEMENT OF INTERNATIONAL LAW ON NUCLEAR WEAPONS

STATEMENT OF INTERNATIONAL LAW ON NUCLEAR WEAPONS

April 2, 1999

The Standing Committee on Foreign Affairs and International Trade has recently concluded hearings on nuclear weapons conducted over a two year period. Their Report was released on December 10, 1998.

The Standing Committee have recommended that Canada:

1. "intensify its efforts to advance the process of nuclear disarmament" and "encourage the Nuclear Weapons States to demonstrate their unequivocal commitment to enter into and conclude negotiations leading to the elimination of nuclear weapons" (Recommendation 3).

2. support several practical ideas for steps toward elimination of nuclear weapons (Recommendations 5,6, 9 and 14), and

3. "argue forcefully within NATO that the present re-examination and update as necessary of the Alliance Strategic Concept should include its nuclear component"(Recommendation 15).

These recommendations are supported by international law and we commend them to you for your approval and support.

Canada should work vigorously for the adoption by NATO of a policy of "No first use" of nuclear weapons because such a policy is required by operation of the rules of international law.

We would like to provide you with a brief explanation of the law affecting these policy recommendations.

ON THE OBLIGATION TO NEGOTIATE A BAN ON NUCLEAR WEAPONS

Canada is obligated under international law to support the call for a commitment from the nuclear weapons states to the elimination of their nuclear weapons. Some of the sources of this obligation are:

1. The Treaty on the Non-Proliferation of Nuclear Weapons ("NPT") states in Article VI:

"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, and on a treaty on general and complete disarmament under strict and effective international control."

This has been an obligation of the nuclear weapons states since the NPT entered into force in March of 1970. Canada and some 186 other states are signatories.

2. In 1995, the Principles and Objectives for Nuclear Non-Proliferation and Disarmament were signed by Canada and other NPT signatories at the conclusion of the NPT Review conference. In this document, the Nuclear Weapon States reaffirmed "their commitment, as stated in Article VI, to pursue in good faith negotiations on effective measures relating to nuclear disarmament".

3. The July 8, 1996 Advisory Opinion of the International Court of Justice ("ICJ"), rendered in response to a Resolution of the UN General Assembly, provided the ICJ's advice on the legality of the threat and use of nuclear weapons. The ICJ is the highest legal body in the world. It has the formal competence to adjudicate questions of international law. Although this decision is advisory rather than binding, it is considered an authoritative determination of the law.

The Court noted the obligation under Article VI of the Non-Proliferation Treaty of all 182 States signatories to negotiate "in good faith" for nuclear disarmament and concluded:

"The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result - nuclear disarmament in all its aspects - by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith."(para. 99)

ON THE LEGALITY OF NUCLEAR WEAPONS

1. As noted earlier the ICJ also ruled on the legality of nuclear weapons. The Court advised:

"...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".

The Court recognized one exception to this sweeping declaration of illegality:

"...the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake". (para. 97)

This "exception" portion of the judgment was the subject of specific comment by the President of the Court, Judge Bedjaoui. He stressed this exception could not be interpreted as "leaving the door ajar to recognition of the legality of the threat or use of nuclear weapons". (para 11, Declaration of President Bedjaoui)

Indeed he added that:

"it would thus be quite foolhardy unhesitatingly to set the survival of a State above all other considerations, in particular the survival of mankind itself." (para. 22, Bedjaoui)

Judge Bedjaoui stated that:

"...self-defence - if exercised in extreme circumstances in which the very survival of a State is in question - cannot engender a situation in which a State would exonerate itself from compliance with the 'intransgressible' norms of international humanitarian law'." (para. 22, Bedjaoui)

Thus even a situation of extreme self-defence does not constitute an exception to the other rules of international law applicable. Rather self-defence might, in a rare case, simply provide a fact situation that fell within the rules. The Judges all agreed that the rules of international humanitarian law apply at all times. (para 105(2)(d) of the Opinion.)

We turn then to the rules of international humanitarian law. A state using any weapon is governed by these rules:

1. the State must be the subject of an armed attack;

2. the Security Council must not as yet have intervened to assist; and

3. the use of any weapon

a. must be proportional to the initial attack,

b. must be necessary for effective self-defence,

c. must not be directed at civilians or civilian objects,

d. must be used in a manner that makes it possible to discriminate between military targets and civilian non-targets,

e. must not cause unnecessary or aggravated suffering to combatants,

f. must not affect States that are not parties to the conflict, and

g. must not cause severe, widespread, or long-term damage to the environment.

This is just a partial list of the rules established by the UN Charter and the Geneva Conventions which govern the use of weapons during war.

Thus the use and threat of use of nuclear weapons has, for all practical purposes, been declared illegal by the Court. We ignore that law at the peril of all humanity.

ON THE THREAT OF USE OF NUCLEAR WEAPONS WITHIN NATO

Apart from the illegality of threat of use of the weapon itself, there may be further breaches of international law occurring. Article II of the NPT requires:

"Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; ...."

This Article may be interpreted as prohibiting Canada from participation in a nuclear-armed NATO as our involvement in the Nuclear Planning Group places us in indirect

control over nuclear weapons and our involvement in NATO forces may place Canadian military officers in command or physical control over nuclear weapons.

Further, current NATO policy allows nuclear weapons to be used in response to a non-nuclear attack. This policy of "first use" of nuclear weapons breaches international rules requiring a proportionate response, a discriminate response and a response necessary to the situation.

IMPLICATIONS OF INTERNATIONAL LAW FOR CANADA

1. Canada must support the call for an unequivocal commitment to negotiate an agreement eliminating nuclear weapons. The issue of nuclear weapons negotiations should be raised in every fora within which Canada participates (as was done during the landmines campaign).

2. Canada must withdraw its support for policies of nuclear use within NATO and most urgently, must confine its policy to one of no first use of nuclear weapons. We do not see any scenarios within which NATO would be involved which would fall within the exceptions that may have been created by the ICJ. Current planned use would violate international law.

Military and policy officials within the Government of Canada must review the Nuremberg obligations to adhere to international law in the course of planning or executing any military strategy. A copy of the Nuremberg Principles is attached. The adherence to international law is the key element that distinguishes military officers from terrorists or mercenaries.

Thus the recommendations of the Standing Committee on Foreign Affairs and International Trade are not simply matters of policy advice, but rather indications of steps that Canada must take to remain compliant with international law. Compliance with international law is one of the principled approaches that has established our well-respected position within the international community.

STATEMENT OF INTERNATIONAL LAW ON NUCLEAR WEAPONS

April 2, 1999

Endorsers:

Professor Dawn Ann Russell

Dean, Dalhousie Law School

Professor Moira McConnell

Dalhousie Law School

David Matas, M.A. (Princeton), B.A. (Juris, Oxford), B.C.L.

Director, Lawyers for Social Responsibility

Beverley J.T. Delong, B.A., LL.B. (Queen’s)

President, Lawyers for Social Responsibility (Canada)

Chairperson, Canadian Network to Abolish Nuclear Weapons

Penelope C. Simons, LL.B (Dalhousie), LL.M., Ph.D.(Cantab)

Vice-President, The Simons Foundation

Professor John W. Foster

Ariel F. Sallows Prof. Of Human Rights

College of Law, University of Saskatchewan

Professor Tim Quigley

Professor of Law

University of Saskatchewan

Dean Anne Warner LaForest

University of New Brunswick

Kolluru Venkata Raman

Professor of Law

Queen’s University

Hugh M. Kindred

Professor of Law

Dalhousie University

Elaine Gibson

Associate Professor of Law

Dalhousie University

Richard Lewis Evans

Associate Professor of Law

Dalhousie University