THE WITHDRAWAL AND TRANSFER OF ARTICLE 51 ON THE INHERENT RIGHT OF SELF-DEFENCE AND CLOSING THE NON-LIQUET IN THE INTERNATIONAL LAW ON THE THREAT AND USE OF NUCLEAR WEAPONS.
AUTHOR: KESTER GRAHAM DON.
Based on the premises that the non-liquet in the international law on the legality of the threat or use of nuclear weapons is impossible to close with a definitive and express prohibition of the threat or use of nuclear weapons because there exist some major legal dilemmas as long as states continue to retain their inherent right of self-defence and the control of armaments for that purpose. And that those legal dilemmas can only be solved by the withdrawal and transfer of the inherent right of self-defence from states, and further, that this withdrawal and transfer is only possible within a universal legal order in which the monopoly of armaments is controlled by an institution of a neutral universal government for the defence of humankind nations. The work analyzes those legal dilemmas faced by the International Court of Justice (ICJ) in its ruling that made non-liquet the inevitable outcome of its decision which pronounced that it cannot be expressly or definitively concluded, given the current state of international law, whether it would be lawful or unlawful to threaten or use nuclear weapons in situations where the very survival of the state would be at stake. This analysis leads to the conclusion that the closure of the non-liquet with an express and a definitive prohibition of the threat or use of nuclear weapons demand that the universal government be created.
On July 8, 1996, the ICJ delivered its opinion on the United Nations General Assembly’s (UNGA) question. The question is: “Is the threat or use of nuclear weapons in any circumstances permitted under international law”? The context of this question to the ICJ is as follows. States are divided into three groups about nuclear threat ad bellum[1]. One group are the nuclear armed states and who predictable, invariable defended ad bellum threatening of force with nuclear weapons as lawful[2]. The second group are those states that are not nuclear armed but are under the nuclear umbrella of the nuclear armed states who are their allied, while the third group comprises of numerous states who are neither nuclear armed nor under the nuclear umbrella of any nuclear armed state and who hold the view that since it is illegal to use nuclear weapons in any circumstances, even for self-defence or reprisal, it must also be illegal to threaten or use nuclear weapons under any circumstances[3]. The interpretation of international law on nuclear weapons by nuclear armed states tend to be that their threat or use is not expressly prohibited by any rule of international law[4]. And that in the absence of such express prohibition, it is permitted to use nuclear weapons against enemy combatants and other military objectives, and that under Article 51 of the United Nations (UN) Charter on legitimate self-defence, threatening the use of nuclear weapons to deter attack is lawful and permissible[5]. These nuclear armed states interpretation of the law is based on the ‘prohibitive theory’ permitting any action that is not expressly prohibited, the alternative way the law can be interpreted being that of the ‘permissive theory’ which holds that only what is expressly permitted can only be freely done by states[6]. The court decided that the question before it raises problem of international law and that it is of a legal character if it is susceptible to an opinion based on law[7]. And this even though the main argument by the nuclear weapons states and their allies who are in favor of nuclear weapons (except for China who did not participate) was that the question was essentially political in nature and therefore the court should refuse to answer it[8]. And that if the ICJ nevertheless proceeded to giving an opinion, the court findings should be that the threat or use of nuclear weapons are not necessarily unlawful, but rather, its threat or use should be dependent on circumstances of each specific instances of their threat or use[9]. This is the context.
The ICJ in its determination of the legality or illegality of the threat or use of nuclear weapons decided that the most direct and applicable law governing the question for its opinion consisted of the international law on the use of force provisions of the UN Charter, the principles and rules of international humanitarian law governing armed conflict, the law of neutrality, and any specific treaties on nuclear weapons[10]. And the court considered it imperative to account for certain unique characteristics of nuclear weapons, particularly their destructiveness which can result in untold human suffering across future generations in its application of those laws[11]. Those provisions of the UN Charter that were applied by the ICJ are Article 2 (4) that generally prohibit the threat or use of force, and Article 51 recognizing states’ inherent right of individual and collective self-defence if they are faced with armed attack, and Article 42 which authorizes the United Nations Security Council (UNSC) to take military enforcement measures. The court held in its July, 8, 1996 Advisory Opinion, (a) unanimously, that conventional and customary international law does not authorize the threat or use of nuclear weapons, (b) by eleven votes to three, the court held that there is no comprehensive and universal prohibition of the threat or use of nuclear weapons in conventional and customary international law, (c) Unanimously, it held that it is unlawful to threaten or use force by means of nuclear weapons if it contravenes Article 2 (4) of the UN Charter and if the use of force with nuclear weapons fails to meet all the requirements of Article 51, (d) it unanimously held that a threat or the use of nuclear weapons should not be incompatible with the requirements of the international humanitarian law of armed conflict and specific obligations in treaties and other undertakings dealing expressly with nuclear weapons, (e) by seven votes to seven, that although in general, the threat or use of nuclear weapons is contrary to the rules of international humanitarian law that is applicable in armed conflict, by view of the current state of international law and the facts before the court, the court could not definitively conclude whether the threat or use of nuclear weapons would be lawful or unlawful in extreme circumstances of self-defence in situations in which the very survival of a state would be at stake, (f) and unanimously, that an obligation exist under the provision of the Nuclear Non-Proliferation Treaty (NPT) Article VI for states to pursue in good faith and bring negotiation to conclusion that would lead to nuclear weapons disarmament in all aspects under international control[12].
This work is concerned with the conclusive opinion decision which ruled that the court cannot conclude definitively’ in view of the current state of international law whether the use of nuclear weapons would be legal or illegal in extreme circumstances of self-defence in which the very survival of a state would be at stake. And which is the opinion that introduced non liquet into international law on the use of force in the international legal order[13]. Judge Rosalyn Higgins in her dissenting opinion argued that the court effectively pronounced a non liquet in the central issue on ground of uncertainty in current international law and of fact[14]. Originating in Roman law, the term ‘non liquet’ mean ‘unclear’[15]. It is found in a situation in which a competent court or tribunal fails to decide definitively the merits of an admissible case for reasons such as absence of suitable law, ambiguity of vagueness of rules, inconsistencies in law, or injustice of the legal consequence that may flow from a decision[16]. A non liquet in the ICJ Advisory Opinion was inevitable given the difficulty faced by the court. For as stated by vice-president Schwebel on the court’s decision, the difficulty is how to reconcile the fifty years deterrence practice through nuclear weapons, on the one side, with international humanitarian law, the law on the threat or use of force, and states’ inherent right of self-defence, on the other side[17]. However, something major was missed and overlooked in that court’s vice president analysis. It is not deterrence on the one side, but rather, the inherent right of self-defence on the one side, for which deterrence is but a by-product. To set things in order, it is the inherent right of self-defence on the one side, and international humanitarian law, Article 2 (4) and deterrence on the other side that are difficult to reconcile, and which cannot be done. To bring order to the nature of things, something must give ground and that is the inherent right of self-defence enshrined in Article 51 of the Charter. …
The non liquet in the international law on the legality of the threat or use of nuclear weapons is impossible of closure with an express and a definitive lawfulness or unlawfulness of the threat or use of nuclear weapons because of major legal dilemmas that will flow from such decision as long as states continue to retain their inherent right of self-defence that necessitate their control of armaments. The provisions of Article 51 engender deep division among scholars and states as to whether the provision should be interpreted as giving a wider customary right of self-defence to include not only when an armed attack has occurred, but to the scope of anticipatory, pre-emptory, and preventive self defence[18]. Despite the fundamental division as to the scope of Article 51, all agreed that self-defence must be necessary and proportionate[19]. The ‘necessity’ and ‘proportionality’ requirement, though not explicit in the UN Charter, is a part of customary international law and their customary law character has been reaffirmed in the Nicaragua case, the nuclear weapons Advisory Opinion, the Oil Plateforms Case, and Armed Activities on the Territory of the Congo[20].
Although self-defence provisions in the Charter, and the Opinion given by the ICJ on the legality of the threat or use of nuclear weapons made the door very narrow as to when force can be used, including with nuclear weapons, the retention of the right of self-defence by states, coupled with the non liquet of non-existence of law expressly prohibiting or permitting the threat or use of nuclear weapons present humankind with incalculable magnitude of danger which leaves humanity faced with the catastrophe of its extinction given the destructive nature of nuclear weapon if those narrow doors are squeezed through, and as such those doors must be shut tightly closed. And that non liquet cannot be closed because of the following legal dilemmas if states retain the inherent right of self-defence. First, if states’ inherent right of self defence continues to stand, the court envisaged situations when they must defend their very survival but to pronounce that nuclear weapons’ use would be lawful in such situation would have impelled on international humanitarian law as it has developed through the century, for by the very indiscriminate nature of nuclear weapons, it is impossible to satisfy the rules of international humanitarian law. International humanitarian law in their totality seeks the extension of protection to a wide range of people by drawing a basic distinction between combatants and those who are not taking part in actual armed conflict, from the wounded, the sick, prisoners of war to civilian, including restrictions on the types of weapons that can be employed in armed conflict[21]. The court has sought to uphold the body of international humanitarian law with a non liquet,
Second, the court has also sought to avoid impelling on the provisions of Article 2(4), for a definitive declaration that the use of nuclear weapons would be lawful in situation of grave danger to state’s survival would dismantle the prohibition of the use of force against the territorial integrity or political independence of any state since the use of nuclear weapons, if lawful, can only by their very nature be directed against the territory of a state. Third, making it lawful would also impel on the principle of proportionality for the use of nuclear weapons in war, and the high probability of escalation of nuclear exchange and the dangers involved makes the lawfulness of their use one that would make seeking proportions or complying with the principle impossible. Further, lawfulness will also impair the prohibition of ‘threat’ of force under Article 2 (4) and here credible threat of force is demanded for strategy of deterrence to work. While the permission of threat of nuclear weapons will lead to inconsistency in law application by being banned for conventional weapons and permitted for nuclear weapons. With these factors of international humanitarian law, Article 2 (4), and proportionality, the ICJ could not give any opinion endorsing the lawfulness of the use of nuclear weapons. And neither could it make the threat or use of nuclear weapons unlawful.
For the logic of self-defence is that states have the right to use all means to defend their survival. The court was faced with the question whether it is lawful to include the use of nuclear weapons to those means in such situations when the very survival of a state is at stake. Given international historical experience of the use of force in the international legal order, the court would have concluded that there are situations when the very survival of a state becomes the goal and that those threat to survival could be from any weapon, including nuclear weapons to which the principle of necessity demand that the threatened state defend itself in kind or in proportion. The court could not make the use of nuclear weapons unlawful for to do so will pronounce a death sentence on states by making it impossible for them to defend their survival when threatened because their means to respond have been outlawed for use. States will never consent to such law. As such, making the threat or use of nuclear weapons unlawful will impel states exercise of their inherent right of self-defence, and the customary law principle of necessity by extension. The unlawfulness of the use of nuclear weapons will make states sitting docks from the aggression of others. Although act of aggression is banned in international law[22]. However international legal history proves that the rule is broken by state’s practice in some period accompanied with legal justification for initiating armed attack.
All these legal dilemmas of Article 51 on the one side, and international humanitarian law, proportionality, Article 2 (4), necessity, and deterrence on the other hand are irreconcilable for the non liquet to be possible of closure. The ICJ had to leave the door open by non liquet of the indeterminacy of the lawfulness or unlawfulness because those legal dilemmas cannot be reconciled with state inherent right of self-defence. It was then left open to states to judge the circumstances of particular and specific situations in which they deem it necessary to use nuclear weapons including to what proportions, while the court pinned its hope on the Nuclear Non-Proliferation Treaty (NPT) Article VI on the obligation on states to disarm to bring about a status quo in which nuclear weapons does not exist to be used[23].
With the current state of the law, assessing the use of force by means of nuclear weapons by states in self-defence against other states in the context of necessity and proportionality ad bellum, and in reference to the ICJ’s Adisory Opinion on the Legality of the Threat or Use of Nuclear Weapons will lead to the following judgment: necessity ad bellum resulting from immediacy or imminency of armed attack that constitutes an existential threat is an extreme circumstances in which the very survival of a state would be at stake; and such situations establishes necessity ad bellum. Further, with the non-liquet in international law on the legality of the threat or use of nuclear weapons interpreted according to the ‘prohibitive theory’ by nuclear weapons armed states, that establishment of necessity ad bellum by the extremeness of the circumstances in which the very survival of the state is at stake, would make the use of nuclear weapons in self defence legal, for the necessity ad bellum captures all the requirement that must be met under Article 51, and such action in self-defence could exclude the action provided for in Chapter VII of the UN Charter if the necessity ad bellum develops from instant and overwhelming situation that leaves no choice of means and moment for deliberation. And that legality of the use of nuclear weapons in such situations of self defence will negate Article 2(4) whose observance as delivered in the ICJ opinion on the legality of the threat or use of nuclear weapons is presumed to narrow the use of nuclear weapons door. For such use of nuclear weapons can only be directed at the territory of other states to destroy their nuclear capabilities to forestall a retaliatory strike from emanating from that state if the state is nuclear armed. In a choice between self-defence against extinction or the observance of the law, Article 2(4) cannot hold its ground against its breach and that breach is justifiable under necessity ad bellum. And whether the necessity ad bellum developed from the conventional weapons attack by the offending state, which threatens the existence or survival of another state, it would also be legal in that necessity ad bellum context if the defending state exercises its right of self-defence by means of nuclear weapons. The inherent right of self-defence in the context of necessity ad bellum that arises from extreme circumstances of existential threat to survival gives the use of force by means of nuclear weapons its legality. This is a dangerous situation that must be corrected. And the 1968 NPT Article VI is not the solution.
The 1968 NPT Article VI provides that “Each of the parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to the 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[24]. This shift by the court to the NPT Article VI is, first, to the wrong ground, for as the ICJ ruling is based on when survival of a state is at stake, and which means, self-defence that may involve the use of nuclear weapons, the main Article provision that applies is Article 51 of the Charter and the question is then what to do about it. It is not NPT Article VI but Article 51 that should constitute the central focus to solving the problem of the non liquet. And whichever way Article 51 is turned, weighed, and examined, it is not susceptible to further development by legal rules or principles as to solve the problem of the non liquet. Humankind has run into an unscalable brick wall in international law on the use of force in the international legal order except Article 51 of the inherent right of self-defence is withdrawn. A brick wall which when pressured by the retention of Article 51 and which has nuclear weapons as its component of defence would crumble and bury humankind under the rubble of the destructiveness of nuclear weapons. A wall that can only be scaled by the building of a universal government as a step toward the other side of a global order of peace and security.
The inherent right of self-defence having been established as central, the shift by the ICJ to NPT Article VI was not only a resort and recourse to the wrong avenue, but its disarmament obligation is also impossible and imprudent. For the nuclear weapons age is a reality that cannot be revised. The gene cannot be put back into the bottle and closed. Nuclear disarmament would leave nations open to the potential technological know-how of developing nuclear weapons by any state without the others having a defence against it having disarmed. And that disarmament is impossible as no state can trust the other to disarm completely or to abide by disarmament commitments when justification of state’s need for nuclear weapons arises. A balance, therefore, must be struck between the nuclear age as a reality that cannot be revised, and the probable use of nuclear weapons, the balance between them being through the creation of an environment in the middle in which they cannot be used. NPT Article VI being the incorrect ground to seek the solution to the problem posed by nuclear weapons, and its disarmament obligation being imprudent and impossible, and further, development of Article 51 with more legal principles being impossible, addressing those legal dilemmas with solutions that does not impel on international humanitarian law, necessity, proportionality, Article 2 (4), and that meet the need of nations’ defence mean that the inherent right of self-defence must be withdrawn to close the non liquet that was left open because of those dilemmas. And that withdrawal is only possible within a universal legal order in which the monopoly of armaments is controlled by an institution of a neutral universal government who would defend nations.
The solution to closing the non liquet repose, therefore, in control of global armaments, rather than disarmament. There are two casts of the notion of government, and they are the Weberian Cast which implies a monopoly on the legitimate use of force, and the other is associated less with force than with the existence of laws and institutions for the maintenance of order[25]. The second denotation means the existence of government and law with a legislature to write them, and enforceable by a judiciary, and administered by the executive[26]. This work is restricted to the first cast denoting monopoly of control and legitimate possession of armament by a government, and this work also does not deal with technicalities of that monopoly of force such as composition of armaments. Work is restricted only to where the legal right of self- defence possessed by nations should be withdrawn and transferred. The idea of the international control of armaments goes a step further beyond collective security in that its possession and application of collective force for defence no longer reside within the control of individual nations, but rather, rest under the command of an international institution[27]. And this institution must be neutral to be able to defend any nation regardless of the ideological underpinning and interest of that nation, and such a neutral role can only be played by a government. And only the combined global conventional and nuclear weapons arsenal under a single global control will deter a nation or a combination of them from developing nuclear weapons for whatever inclination because the military power possessed by that international institution cannot be matched and therefore can deter.
While technical details need to be worked out, humankind nations should transfer the control of their military power capabilities-conventional and nuclear- to a universal government with their use based on majority vote of nations. And with the manner of its use, determined by the universal government, which will mean that no state or alliance of states acting on their own can command their military to engage in war. That global military power then becomes an institution of universal legal order. Such universal government shall make the retention of the inherent right of self-defence unnecessary and as such can be withdrawn. And this will make it possible to close expressly and definitively the non liquet by the prohibition of all threat or use of nuclear weapons. And further, this withdrawal of the rights from nations because of the existence of a universal government for the defence of all nations will make Article 2 (4) prohibitions effective and therefore, international peace and security will be secure.
To conclude, the universal law and legal policy here created is that the defence of humankind nations shall be the prerogative of a universal government whose enforcement measures shall be set in motion by majority vote of nations. And this shall withdraw nations’ right to defend themselves and which will in turn make possible the prohibition of the threat or use of nuclear weapons by the closure of the non-liquet in international law of the threat and use of nuclear weapons.
[1] S. Casey-Maslen. Nuclear Weapons Under International law (2014 Cambridge University Press)
[7] S, Smiss and V. Borght. The Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Vol.27, No. 2, PP 345-388 (1999 University of Geogia)
[8] E. Krisjansdo. The Legality of the Threat or Use of Nuclear Weapons Under Current International Law: The argument behind the world court’s advisory opinion. Issue 3 & $ PP 485 (1998 New York University Journal of International Law and Politics)
[10] J. Bello and P. Bekker. Legality of the Threat or Use of Nuclear Weapons. The American Journal of International Law. Vol.91, No.1 (1997 Cambridge University Press)
[13] R. Falk. Nuclear Weapons, International Law, and the World Court: A historic encounter. American Journal of International Law. Vol. 91, No. 1 PP 64-75 (1997 Cambridge University Press)
[14] M. Aznar-Gomez. The 1996 Nuclear Weapons Advisory Opinion and Non Liquet in International Law. The ICL Quarterly. Vol. 48, No. 1 PP 3-19 (1999 Cambridge University Press)
[25] H. Milner. The Assumption of Anarchy in International Relations Theory: A critique. Review of International Studies. Vol.17, No. 1 (1991 Cambridge University Press)
