|
|
societa'
A JURIDICAL SOLUTION TO THE PROBLEM OF NUCLEAR DISARMAMENT
Paper presented by Roberto VACCA of Rome, Italy to the VIII World Conference of the World Future Studies Federation: THE FUTURES OF PEACE - CULTURAL PERSPECTIVES, San Jose, Costa Rica, December 9-14, 1984.
Existing laws and principles of international law, in their present form or based on their customary application mechanisms, may not provide readymade solutions to the vital problem of nuclear disarmament. However, we recognize that laws and principles are subject to evolutionary processes. Some of these are well known and have been widely discussed in the literature. Here I intend to analyze a number of factors - taken from international treaties and protocols, from precedent, from common law, from generally accepted principles of logic and of equity - and bring them to bear on nuclear disarmament.
I contend, in fact, that nuclear disarmament is an obvious prerequisite to any forecasting, planning or cooperative national or international endeavor.
I contend, further, that even the noblest abstract discussions of principle and any well meaning declaration, demonstration, testimony, march, carried out by individuals and private parties is bound to produce minimal effects, with an extremely low efficiency with respect to the efforts it has required. I contend, finally, that the initiation of a judicial process may be the most effective method of achieving the very difficult goal of nuclear disarmament. In order for this to succeed:
A. the judicial process shall be carried out before a Court that is internationally recognized, and to which the Nations to be indicted or judged, recur for their ordinary quarrels or cases
B. no utterly new principles of international law shall be invoked, as these have no value, unless they have obtained prior acceptance by the interested parties
C. treaties, protocols and/or precedent originated by the systems of law of the same countries that possess nuclear weapons, or explicitly accepted by said countries, shall be quoted or invoked, in order to preempt objections as to the validity of the juridical basis for action
D. the judicial process shall be initiated by one or more nations (which do not possess nuclear weapons and have signed the Non Proliferation Treaty) and it shall set as an essential intermediary goal the establishment of a wide multilateral nuclear disarmament negotiation process.
The present situation in which only the USA and the USSR negotiate on decisions which may affect the whole planet, is unacceptable.
The proposed solution is, then, two pronged. The first factor is represented by a sound, if paradoxical, basis on international law. The second factor is the momentum provided by international public opinion fueled by the very novelty of the judicial approach.
1. SELF-DEFENSE AS A BASIC LEGAL GROUND
Many authors have suggested that the principle of self-defense is an adequate ground on which rests the whole building of law. More specifically, a note emanated by the Government of the United States of America on June 23, 1928 in re the Briand-Kellog Pact indicated that the right of self-defense is inherent in every sovereign state and is implicit in any treaty.
The right of self-defense, then, is also implicit in the Charter of the United Nations. But Art.51 of the UN Charter establishes explicitly that nothing in it "...shall impair the inherent right of individual or collective self-defense". This principle, however, is constrained by the unanimous view that self-defense can be invoked only if the impending danger is grave and imminent.
Now: the danger of nuclear war is certainly grave. Nuclear war would have no winners. In fact also non belligerent countries would lose it, in that they would suffer damage and possibly terminal holocaust caused by fallout and secundary effects. There is also no doubt that the danger of nuclear war is imminent. Intercontinental ballistic and submarine launched missiles, intermediate, short range and cruise missiles have reduced the time from launch to nuclear explosion to a few minutes. Finally the question of a possible excess of self-defense has to be examined. A preemptive nuclear war would certainly be equated to an excess of self-defense. On the contrary there is no way in which a legal action requesting the initiation of an international judicial process could be construed as an excess of self-defense. The very fact that such an action is intended to prevent a grave and imminent danger to all nations of the earth, justifies it and constitutes adequate ground for its legitimacy and admissibility -- on which more later.
2. COMPETENCE OF THE INTERNATIONAL COURT OF JUSTICE OF THE HAGUE
The International Court of Justice of The Hague is defined by Articles 7 and 92 of the UN Charter and by Art.1 of its own Statute as the main judicial organ of the United Nations. Art.36 of the Court's Statute establishes that the Court is competent to judge on all cases referred to it by the parties, such as: "...the interpretation of treaties, any question of international law, the existence of any fact, which,if established, would constitute a breach of an international obligation..."
Art.38 of the same statute establishes that the Court "shall apply international conventions, whether general or particular which establish rules expressly recognized by the contesting States; international custom as evidence of a general practice accepted as law; the general principles of law recognized by civilized nations; ...judicial decisions and the teachings of the most highly qualified publicists." The article concludes that "...this provision shall not prejudice the power of the Court to decide a case ex aequo et bono..."
In 1933 D. Negulesco, Judge of the Permanent International Court of Justice, (in "Dictionnaire Diplomatique de l'Academie Diplomatique Internationale", Vol.1, p.589) interpreted Art.38 of the Statute in the sense that "...les juges ont le pouvoir non seulement d'appliquer le droit, mais encore de...créer le droit là ou il n'existe pas... Les decisions et les avis de la Cour forment des precedents qui constituent sa propre jurisprudence, source importante de droit qui peut la guider dans la mission qu'elle a à accomplir." ("...the judges have the power not only of applying the law, but also of ... creating the law where it does not exist. ...The decisions and opinions of the Court form precedents which constitute its own jurisprudence, an important source of law to guide the Court in its mission.")
In fact the International Court of Justice has tended in recent years to give obligatory value even to its consultative opinions.
According to R. Quadri (in: "Diritto Internazionale Pubblico", Naples 1968, p.258): "In the application of indisputable principles, the International Court may refuse to apply norms contained in pacts, which contradict those principles or which would infringe on the rights of other countries".
On the competence of the International Court of Justice, however, I have a recent direct opinion emanating from the Court itself.
On November 15,1981 I wrote a registered letter to the Court,which read:
"I hereby request the indictment in front of your Court of: Brezhnev L. (USSR), Mitterrand F. (France), Reagan R. (USA), Thatcher M. (UK) in their quality of pro tempore heads of government in their countries, in that they are guilty of the international crime against peace and humanity of preparing total war and genocide by means of their arsenals of atomic and hydrogen bombs, of other radiation producing weapons and of vectors (aeroplanes, missiles, submarines) capable of hitting with them the whole surface of our planet.
"I request your Court to command that all the weapons quoted above be disassembled under adequate international control and that their constituent materials be eventually recycled for peaceful purposes.
"The right of an international Court to try these crimes was established by the London Charter of August 8, 1945, in which the plenipotentiaries of the governments of France, United Kingdom, USA and USSR established the principle that the mere preparation of total war represents an international crime against peace and humanity. The Nurnberg Court was able to function just on the basis of said principle. Now the heads of government named above are the chief executives exactly in the four countries which signed the London Convention. By extension I request the indictment on the same charges of Zhao Ziyang, head of the Government of the People's Republic of China, although his country had not signed the London Agreement of 1945.
"The competence of your court to try this case is granted by art.36 of your Statute. On May 17, 1922 your Court decided to accept also cases pesented by nations which were not members of the Society of Nations. I request your Court by analogy to accept the present indictment, although it is presented by an individual, a citizen and not a nation. This decision will be justified by the urgent and overwhelming danger represented by the nuclear weapons arsenals. In fact the USA possesses now 11,890 hydrogen bombs (equivalent to 5,450 million tons of high explosive) and the USSR possesses 6,000 hydrogen bombs (equivalent to 6,930 million tons of high explosive). Just these two arsenals contain the equivalent of two tons of high explosive for every man, woman and child in the world. If we add the tens of thousands of atomic bombs possessed by the USA and the USSR and the hydrogen and atomic bombs of France, UK and the People's Republic of China, every inhabitant of our planet is threatened on the average by the equivalent of four or five tons of high explosive. At these levels, armaments cannot be considered dissuasion factors, but only preparation of a total aggressive war and of final genocide.
"I trust you will carry out the requested indictment and I confirm my availability as a witness or as amicus curiae - in order to save mankind, civilization, the planet from a total destruction which could also be unleashed by random factors. Yours sincerely, Roberto Vacca."
(The number of bombs and the destructive power are now slighty different, but the situation is essentially unchanged).
On January 14, 1982 an identical letter was sent to the Court by Alberto Bertuzzi of Brugherio, Italy, and he received an answer from the International Court of Justice dated January 29, 1982, signed by Santiago Torres Bernardez, Clerk of the Court, which said :
"I am sorry to inform you that according to Article 34 of the International Court of Justice, only nations are qualified to present cases to the Court. Consequently the Court has no competence to examine cases presented by individuals."
At the insistence of A. Bertuzzi, the Court replied again on March 31, 1982, confirming the previous letter and adding that :
" ... la Cour, ne pouvant connaitre que des affaires dont elle est regulierement saisie, le fait d'appeler son attention sur telle ou telle situation, aussi regrettable soit-elle, ne saurait avoir de consequence pratique." ("... since the Court can only consider cases legitimately conferred upon it, the fact of calling its attention to this or that situation, regrettable as they may be, could not have any practical consequence.")
These statements confirm that the Court would be bound to consider and carry out an indictment presented to it by the legal government of a nation. Then all the considerations presented in Section 1. would apply and all the consequences examined above would have to be drawn.
The present paper is a plea to peace loving nations to present to the International Court of Justice an indictment it cannot ignore. No hostility is intended towards the governments of countries that do have nuclear arsenals. Rather this modest proposal is intended as a way out from the tragic impasse in which they have fallen.
3. TREATIES AND PROTOCOLS TO BE USED
The Geneva Protocol of 17 June, 1925 outlawed chemical and bacteriological war. Some authors contended that nuclear warfare is also illegal by extension of this Geneva Protocol (see : Schwarzenberger, "The Legality of Nuclear Weapons", in The Library of the London Institute of World Affairs, No.43; Singh, "Nuclear Weapons and International Law", 1959).
The relevance of said Geneva Protocol can be invoked on good authority, and once accepted, it would be certainly decisive. However, Art.2 of the IV Convention of The Hague, establishes that international treaties can be applied only to signatory nations. This entails a strong corollary in that the London Agreement of August 8, 1945 - signed by the plenipotentiaries of: USA, USSR, United Kingdom and France - certainly applies at least to these four countries. In fact it applies also to all nations which are members of UNO, since on December 13, 1946 the UN General Assembly approved unanimously the principles of international law recognized by the Statute of the Nuremberg Tribunal (which was part of the London Agreement above referred to).
The 1945 London Agreement is the first document in which crimes against peace and against humanity are mentioned. Crimes against peace are: "planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances". Crimes against humanity are: "murder, extermination ... or other inhumane acts committed against any civilian population". By these definitions, implementation and upkeep of nuclear weapons arsenals are a crime against peace (since they represent preparation of a war in violation of the very 1945 London Agreement). They are a crime against humanity, since they would serve to exterminate civilian populations.
4.- TRANSITIVENESS OF DUTIES OF PROTECTING STATES AND THE JURIDICAL EFFECTS OF CHANGES IN PREVALENT CONDITIONS
Individuals are not subjects of international law - but states have the duty of protecting foreigners in their own territory and guaranteeing to them the rights to: life, liberty and ownership.
International culpability of a state does not exist when a state has harmed or damaged foreign nationals on its own territory. It exists when the violation consists of an illicit act contrary to international law. The condition of culpability exists then vis-a-vis the state of which the foreign nationals are citizens.
The latter state has the common law duty and in many cases the constitutional duty of protecting its citizens when they are abroad. Therefore, seeing that its rights have been infringed upon and being unable to fulfill its duties towards its citizens, it will affirm the culpability of the offending state in front of a competent international court. The goal of this action is obligation of the offending state to desist and, possibly, compensation of damages.
The above considerations of the right of foreign nationals on the territory of another state, however, are not literally applicable any longer since modern technology enables the governments of certain powers to produce by remote control long distance effects of their actions, for example, by means of intercontinental ballistic missiles or by means of radioactive fallout clouds consequent to nuclear explosions.
Now, the rules and principles of international law repeatedly affirmed by the Society of Nations and by the United Nations Organization to the effects indicated above, may be construed to constitute a multiple international contract. Now there is only one way to avoid "frustration of contract" due to the radical change in the de facto situation produced by modern technological advances, and by the existence of nuclear arsenals in particular. This is the extension of the duty of any state to protect foreign nationals on its own territory to include protection outside that territory.
This opinion runs quite contrary to that presented by some authors to the effect that so called cosmic weapons (e.g.: ICBM's with nuclear warheads) have a special status as pertains to their possible, even accidental, employ against neutrals. Verplaetse ("The Law of War and Neutrality in Outer Space", in Acta Scandinavica Juris Gentium, 1959, p.49 ff.) goes so far as to affirm that a neutral state hit by bombs launched from outer space, could not claim that its neutrality has been violated (quoted by Quadri, "Diritto Internazionale Pubblico", Naples 1968, p. 337).
This conclusion is obviously absurd, since it contradicts common law and the common sense of equity. Since it cannot be denied that neutrality has to be a choice open to nations, so called cosmic war (military use of outer space) and nuclear weapons have to be outlawed and dismantled. A corollary of this line of reasoning is that any pledge of non first use of nuclear weapons is void and irrelevant - although, admittedly, it just sounds good, rational and humane. In fact the first use of nuclear weapons would be fatally followed by second and nth uses - after which there would be no further way to indict, judge, punish or even just blame any state that contravened the pledge.
5. INADEQUACY OF OTHER RATIONAL MEANS OR TECHNICAL FIXES FOR DISARMAMENT IMPOSES OUTLAWING OF NUCLEAR WEAPONS.
Balance of nuclear destructive power has been often quoted as a positive feature of the existence of arsenals of nuclear weapons. Some authors contend that the balance of nuclear destructive power was the real cause of avoidance of a major world war in the four decades after World War II. This is debatable. It is curious and ironic to find the balance of nuclear terror referred to as a positive factor in bona fide texts of international law. In fact the balance of nuclear destructive power constitutes the main threat of a nuclear holocaust. On the other hand, there is no legal or juridical basis for considering a situation of parity of destructive power (among only two states or blocks) more equitable or acceptable to all the states that have no parity, no means for achieving parity or no will to achieve parity.
The so called Star Wars Technology total defence has been advocated by the highest levels of government as a final solution to the problem of nuclear war. Certainly if the ultimate surefire defense against all nuclear weapons really existed, juridical problems would be academical and the danger of a nuclear holocaust would not exist. The specialists assure us that this is far from being the case. These purely hypothetical solutions, then, appear to be juridically irrelevant.
The same can be said of technological fixes like the Freeman Dyson solution of deescalating to a minimum number of offensive weapons plus some small precision defensive missiles (Dyson, F. - "Weapons and Hope", 1984). This, in fact, coincides with the ABM (antiballistic missile) solution, already restricted by the 1972 and 1974 ABM Treaties between USA and USSR, which limited the number of ABM launchers and missiles and even the number of deployed radars.
R. Axelrod (in "The Evolution of Cooperation"), reports that the most effective and advantageous cooperation strategy in a sequential Prisoner's Dilemma tournament, is Tit for Tat proposed by A. Rapoport. This consists in cooperating on the first move and then doing whatever the other player did on the previous move
Even if we equate the nuclear disarmament dilemma to a Prisoner's dilemma, the Tit for Tat strategy could not succeed since the first nuclear tat already would unleash nuclear war, with the direst consequences.
Therefore the outlawing of all nuclear weapons appears as mandatory, since it appears that there are no other rational solutions.
There is of course no precedent for a case like the one illustrated here. D. Negulesco (op.cit.) discusses the autolimitation of the sovereignty of a state as a consequence of its own voluntary deliberations. It appears that the four governments of France, United Kingdom, USA and USSR did limit voluntarily their own national sovereignties forbidding to themselves, on August 8, 1945, even the mere preparation of total war, which they declared as criminal for the members of the Nazi government. The fact that the destructive potential possessed by each of these four governments is now many times larger and deadlier than that of Nazi Germany appears to represent a prima facie evidence of guilt.
The personal individual responsibility of pro tempore heads of state would have been certainly denied by all traditional principles of international law. The 1945 London Agreement has affirmed personal responsibility, which was the object of convictions and sentences at the Nuremberg trials. There would appear to be no reason why personal responsibility of pro tempore heads of state should not be affirmed in the case of nuclear arsenals. The question of responsibility of past pro tempore heads of state would have to be decided.
According to Art.31 of the Statute of the International Court of Justice, each country may choose a person to sit as a judge, if the Court includes upon its Bench a judge of the nationality of one of the other countries. Then at least one American, one British, one French, one Soviet judge and a judge who is a national of the indicting country would sit on the bench. If the number of countries requesting the indictment were to grow considerably, it is an interesting point that also the number of judges sitting on the Court would become quite high. But very many interesting points will arise - if this indictment is acted upon.
1
|
|
