PYONGYANG, April 10 – RAPSI, Ingrid Burke. If North Korea makes good on its threats of nuclear warfare, international law will likely be the last thing on anyone’s mind. The nuclear sparring match presently bouncing back and forth the Pacific begs the question: can international law pass muster to the threat of nuclear warfare? In an effort to create a David that could prove formidable in the face of the nuclear giant, the UN and ICJ focused in great depth on this very issue in the direct aftermath of the Cold War.  

ICJ opinion

In 1994, the UN General Assembly requested that the International Court of Justice (ICJ) issue an advisory opinion on the legality of the threat and use of nuclear weaponry: “Conscious that the continuing existence and development of nuclear weapons pose serious risks to humanity… is the threat or use of nuclear weapons in any circumstance permitted under international law?”

The following year, prior to the ICJ’s consideration of the question, North Korea’s UN representative Pak Gil Yon presented a written statement to the Court contending: “The Government of the Democratic People’s Republic of Korea takes it that the threat or use of nuclear weapons in any case is violation of the UN Charter and the existing international laws, and therefore should not be allowed on any account.”

The court considered a plethora of written and oral statements by concerned states before presenting its opinion in July 1996.

Notably, advisory opinions are generally not binding. One of the ICJ’s key roles is that of navigating the murkiest grey areas of international law. The court is authorized to render advisory opinions at the request of certain public international organizations – primarily those falling under the UN umbrella. 

Applicable international law

Various theories and instruments of international law were considered before the ICJ concluded that the use and threat of nuclear arms should be governed by the UN Charter as pertaining to the use of force, and to the laws of armed conflict.

Some advocates had argued that the Right to Life, as guaranteed by Article 6 of the International Covenant on Civil and Political Rights (ICCPR) should be interpreted to outlaw the use of nuclear arms. Detractors had argued that while the ICCPR serves to protect peacetime human rights, the laws applicable to armed conflict would govern during war time. The court disagreed, finding that the ICCPR applies for the most part during times of peace and of war, but held that this particular issue created an exception. According to the judgment, “whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the Covenant itself.”

Other proponents argued that the Convention of 9 December 1948 on the Prevention and Punishment of the Crime of Genocide (1948 Convention). The 1948 Convention describes the mens rea element of the crime of genocide with reference to the “intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such.” Supporters of the theory noted the capability of nuclear arms to cause massive amounts of casualties, and that intent could be inferred from the very use of such arms in the face of their known potential impact. The ICJ concluded, however, that the specificity of the 1948 Convention’s mens rea element called for a case-by-case analysis, rather than a sweeping judgment.

Others argued that international law pertaining to the environment should be considered in light of the ICJ’s analysis. The court agreed that “the use of nuclear weapons could constitute a catastrophe for the environment,” but added that environmental concerns may not trump the right of each nation to self-defense: “The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment.” Still, this doesn’t provide a state with unlimited rights to decimate the environment. The opinion noted that environmental impact must be considered by a state in assessing whether its actions are “necessary and proportionate in the pursuit of legitimate military objectives.”

As explained by the International Red Cross and Red Crescent movement (ICRC), launching an attack that could cause disproportionate threat to the vitality and livelihood of a civilian population in view of the concrete threat posed by enemy forces is prohibited under International Humanitarian Law.

The ICRC described the principle of necessity as “the limitation of means and methods to those which are strictly necessary to counter the threat posed.”

Ultimately, however, the court concluded that the laws of armed conflict and the UN Charter as pertaining to the use of force should govern in the present situation, albeit with special attention paid to the potential of nuclear warfare for enormous devastation: “[The ICJ] notes that nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are vastly more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the entire ecosystem of the planet.”

In light of the relevant law, the Court ultimately arrived at six conclusions – four being unanimous, two by majority.

Unanimous: “There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons.”

Taken alone, this provision doesn’t sound too promising for the post arms-race world. It seems to be made even weaker by the following point.

Majority of 11 to three: “There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such.”

This apparent absence of law is tempered, however, by the unanimous conclusion that the threat or use of nuclear force is squarely prohibited except in certain limited circumstances.

Unanimous: “A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful.”

Article 2, paragraph 4 provides that, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

The purposes of the UN, as established by Article 1 of the Charter, include the maintenance of international peace and security, the development of friendly international relations, successful international cooperation toward combating issues with the potential for global impact, and harmonization of national efforts toward these ends.

Article 52 provides for the right of each nation to self-defense, stating specifically: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”

Although it was included in the list of the ICJ’s conclusions, the court was split seven to seven on the issue of “whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.” 

North Korean state media outlet the Korean Central News Agency cited self-defense as a central concern Tuesday, stating: " The U.S. has stepped up the moves to stifle the DPRK militarily with main emphasis put on disabling the DPRK's nuclear deterrence for self-defence and forcing it to disarm.”

As comprehensive as the opinion is, this unsettled loophole – particularly when paired with the malleability of the concept of self-defense – raises the issue perhaps most relevant to the present nuclear crisis.