April 2000

Letter to Ambassadors attending the NPT Review Conference

Your Excellencies,

Lawyers for Social Responsibility is a group of Canadian lawyers and professors of law. We support the development of international law and respect for rule of law in the resolution of conflicts.

We are deeply concerned about the failure of the nuclear weapons states to comply with their obligations under international law. This noncompliance leaves humanity and the human environment at risk of destruction due to the daily threat of accidental or deliberate use of nuclear weapons. We call for urgent action to lessen this risk and compliance with international law.

The Legality of the Use and Threat of Use of Nuclear Weapons

On July 8, 1996, the International Court of Justice responded to the request of the United Nations General Assembly for an Advisory Opinion (the “1996 Opinion”) on the legality of the threat and use of nuclear weapons. This Court is the highest court in the world and provides the most authoritative legal opinion available. The Court concluded:

“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.” (para. 105(2))E))

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 a nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.” (para. 105(2)(E))

The President of the Court, Judge Bedjaoui, 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)

He further commented:

”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)

“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 íntransgressible norms of international humanitarian law.” (para. 22, Bedjaoui)

Thus even a situation of extreme self-defence does not constitute an exception to the rules of international law applicable. Rather, self-defence might, in a rare case, simply provide a fact situation that fell within the rules.

More importantly, the Court concluded unanimously that the rules of international humanitarian law apply at all times. (para 105(2)(d) of the Opinion.)

What are these rules of international humanitarian law? A state may not resort to use of weapons unless the state is the subject of an armed attack and the Security Council has not as yet intervened to assist. Then the use of any weapons:

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, the Hague Conventions, the Geneva Conventions and the Additional Protocol of 1977 which govern the use of weapons during war. The Court noted that the fundamental rules set out in the Hague and Geneva Conventions bind all States regardless of whether or not they have ratified these conventions. (para. 79)

Clearly the use of a modern nuclear weapon would not allow respect for these rules. Thus the use and the 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.

The Legality of the Requirement of Negotiations:

All States are obligated under Article VI of the NPT to negotiate in good faith on nuclear disarmament. In its 1996 Opinion, the International Court of Justice unanimously concluded:

“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.” (para. 105(2)(F))

We have observed the failure of states to comply with Article VI of the NPT. There are now almost as many nuclear weapons in existence as there were when this treaty was signed in 1968. We note also the statements by the nuclear weapons states of their dependence upon nuclear weapons for ”defence” as indicated in recent statements from those governments and their military alliances.

We also note the failure of certain states, particularly the United States, to comply with the three promises contained under the Principles and Objectives adopted at the1995 NPT Review and Extension Conference: that is, to complete the Comprehensive Test Ban Treaty by 1996, to commence and conclude a Fissile Material cut-Off Treaty and to pursue efforts to reduce nuclear weapons globally with the ultimate goal of eliminating them.

This failure of the nuclear weapons states to comply with promises made will, and is having the effect of encouraging non-nuclear weapons states and threshold states to develop or acquire nuclear weapons.

We have observed the rather ineffectual results of the “step-by-step“ process of leaving negotiations to nuclear weapons states to handle in a patchwork fashion. We believe the time has come for multilateral negotiations to begin to put new energy into a failing system.

Inasmuch as the current security system threatens the very existence of humanity, it seems clear to us that future negotiations should include the participation of representatives of civil society again to provide greater energy and focus to the negotiations and to allow for a more public accounting of progress.

The Requirements of International Law

We have concluded that international law requires states:

1. To urgently conclude an agreement for the elimination of nuclear weapons.

2. In the interim, to publicly acknowledge the illegality of the doctrine of nuclear deterrence and to proceed to the immediate de-alerting of nuclear weapons, separation of warheads from missiles and placement of all nuclear weaponry and fissile material under international supervision.

We beg you to follow a course of action in compliance with the requirements of international law.

Respectfully submitted,

Beverley Tollefson Delong, President