Lew, re your comment on some tentative steps towards disarmament between the US and Russia, right on: blessed are the peacemakers. And at first glance, the recent UN resolution committing all nations to work for a nuclear weapons-free world might give some cause for hope—though the cynic would think that China, Russia, Europe, and America are simply solidifying their nuclear hegemony, while America is starting to build its case for potential future military action against “rogue” nations (Note one purpose of the resolution is to “reduce the risk of nuclear terrorism”—shades of the buildup to the Iraq war!).
Granted, the UN raises concerns about centralization, one-world government, and socialistic resolutions—but nowadays these concerns are very remote. There is little risk of the Powers giving up their sovereignty to the UN or forming a one-world government under anything but their own aegis; rather, the risk is they will just use the UN for cover to dominate and legitimize attacks on smaller states, as Bush deftly did with the Iraq War (Who said he’s stupid? He expertly used the international system to get what he wanted). Still, to the extent the UN is less restricted by positive law and legislation, it—in particular its International Court of Justice—is freer to follow traditional concepts of justice in declaring what international law “is.” For this reason, I’ve always had more hope in international law being potentially more libertarian than modern, legislated municipal law. There is no great barrier to considerations of natural law, for example, being drawn on to decide what international law is. That is, despite the (now remote) danger of centralization and one-world government, and despite its being used and manipulated by the Great Powers to dominate other nations, international law is, and should be expected to remain, more libertarian than the laws of individual states.
A case in point is the ICJ’s advisory opinion in 1996 (in response to a request by the UN’s General Assembly) regarding the Legality of the Threat or Use of Nuclear Weapons, which I noted on the LRC blog in 2003 (see also the companion case, Legality of the Use by a State of Nuclear Weapons in Armed Conflicts. See, in particular, the heroic dissenting opinion (PDF) of Judge Weeramantry of Sri Lanka, which was (quoting from the unofficial summary):
based on the proposition that the use or threat of use of nuclear weapons is illegal in any circumstances whatsoever. It violates the fundamental principles of international law, and represents the very negation of the humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23(a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.
He regretted that the Court had not so held, directly and categorically.
Judge Weeramantry’s Opinion explained that from the time of Henri Dunant, humanitarian law took its origin and inspiration from a realistic perception of the brutalities of war, and the need to restrain them in accordance with the dictates of the conscience of humanity. The brutalities of the nuclear weapon multiplied a thousand-fold all the brutalities of war as known in the pre-nuclear era. It was doubly clear therefore that the principles of humanitarian law governed this situation.
His Opinion examined in some detail the brutalities of nuclear war, showing numerous ways in which the nuclear weapon was unique, even among weapons of mass destruction in injuring human health, damaging the environment, and destroying all the values of civilization.
The nuclear weapon caused death and destruction; induced cancers, leukaemia, keloids and related afflictions; caused gastro intestinal, cardiovascular and related afflictions; continued, for decades after its use, to induce the health-related problems mentioned above; damaged the environmental rights of future generations; caused congenital deformities, mental retardation and genetic damage; carried the potential to cause a nuclear winter; contaminated and destroyed the food chain; imperilled the eco-system; produced lethal levels of heat and blast; produced radiation and radioactive fall-out; produced a disruptive electromagnetic pulse; produced social disintegration; imperilled all civilization; threatened human survival; wreaked cultural devastation; spanned a time range of thousands of years; threatened all life on the planet; irreversibly damaged the rights of future generations; exterminated civilian populations; damaged neighbouring States; produced psychological stress and fear syndromes—as no other weapons do.
While it was true that there was no treaty or rule of law which expressly outlawed nuclear weapons by name, there was an abundance of principles of international law, and particularly international humanitarian law, which left no doubt regarding the illegality of nuclear weapons, when one had regard to their known effects.
Among these principles were the prohibition against causing unnecessary suffering, the principle of proportionality, the principle of discrimination between combatants and civilians, the principle against causing damage to neutral States, the prohibition against causing serious and lasting damage to the environment, the prohibition against genocide, and the basic principles of human rights law.
In addition, there were specific treaty provisions contained in the Geneva Gas Protocol (1925), and the Hague Regulations (1907) which were clearly applicable to nuclear weapons as they prohibited the use of poisons. Radiation directly fell within this description, and the prohibition against the use of poisons was indeed one of the oldest rules of the laws of war.
Judge Weeramantry’s Opinion also draws attention to the multicultural and ancient origins of the laws of war, referring to the recognition of its basic rules in Hindu, Buddhist, Chinese, Judaic, Islamic, African, and modern European cultural traditions. As such, the humanitarian rules of warfare were not to be regarded as a new sentiment, invented in the nineteenth century, and so slenderly rooted in universal tradition that they may be lightly overridden.
… Judge Weerarnantry’s analysis includes philosophical perspectives showing that no credible legal system could contain a rule within itself which rendered legitimate an act which could destroy the entire civilization of which that legal system formed a part. Modern juristic discussions showed that a rule of this nature, which may fmd a place in the rules of a suicide club, could not be part of any reasonable legal system—and international law was pre-eminently such a system.
The Opinion concludes with a reference to the appeal in the Russell-Einstein Manifesto to “remember your humanity and forget the rest”, without which the risk arises of universal death. In this context, the Opinion points out that international law is equipped with the necessary array of principles with which to respond, and that international law could contribute significantly towards rolling back the shadow of the mushroom cloud, and heralding the sunshine of the nuclear-free age.
The question should therefore have been answered by the Court—convincingly, clearly, and categorically.
(Incidentally, Judge Higgins, who wrote this dissenting opinion in that case, was my professor at the London School of Economics in 1991–1992; she was a main inspiration for my intense interest and publications on international law; I reviewed her classic Problems and Process: International Law and How We Use It.)
Note how Weeramantry’s opinion relies on general, traditional principles of international law and even appeals to general legal theory, common sense and notions of common decency, the universal, humanitarian laws of warfare as recognized in various cultures, etc. Such appeals to tradition, common sense, general legal principles, in at least an attempt to do justice, to find a just solution or answer, is increasingly impossible in municipal systems that are mired with positivism and legislation as the primary source of positive law. In such a system, the judge is not free to try to do justice; his job becomes that of a technician trying to interpret the vague, conflicting words of a statute decreed by a legislature. (For more on this, see Another Problem with Legislation: James Carter v. the Field Codes; also my article Legislation and the Discovery of Law in a Free Society, in particular section III.D, “The Proliferation of Laws.”)
(Other resources on international law are collected on legal website here.)
Update: See the recent decisions of various local courts and regional and international tribunals in this ASIL International Law in Brief, for a sample of how these courts tend to be better than the policies of the states; also Internet Access as a Human Right; and U.S. Agrees to Compensation for Victims of US-Iraq War.3:58 pm on September 24, 2009