Nuclear arms-are they legal?

Press, 23 November 1988, Page 20

Nuclear arms-are they legal?

Harold Evans, formerly a barrister and solicitor, associate to Mr Justice Northcroft, the New Zealand member of the Military Tribunal in Tokyo after World War 11, is a retired stipendiary magistrate who has devoted much of his time to writing on nuclear disarmament.

EARLY LAST year I put before the Prime Minister a proposal that the Government should seek the guidance of the International Court of Justice on the question of the legality or illegality of nuclear weapons. This proposal seems likely to draw a decision from the Government in the near future. Here I wish to identify and explain the matters which, in my view, lie at the heart of it. The starting-point — elementary, essential — is the worthwhileness of life and the evil of its deliberate extinction by war, especially nuclear war. A century ago, the American General, William T. Sherman, wasting no words, declared that “war is all hell.”

Two centuries earlier, Thomas Hobbes (1588-1679), in a famous passage in his “Leviathan,” took a whole paragraph to describe “whatsoever is consequent to a state of war”; this was only because he was determined to be explicit. Vivid, stark and memorable are his concluding words:

“... no arts, no letters, no society; and, which is worst of all, continual fear, and danger of violent death; and the life of man solitary, poor, nasty, brutish and short.” In dur own era descriptions of “what would be consequent to a state of nuclear war” already abound. The record of the last 40 years is replete with statements, including statements by the nuclear powers themselves, on the perils for all people arising even from the presence and possession (let alone the actual use) of nuclear

arms. The preamble to the “Treaty on the Non-proliferation of Nuclear Weapons” (1968) affords one example. Bear in mind that the treaty bans “horizontal,” not “vertical” proliferation of such weapons. “Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples. “Believing that the proliferation of nuclear weapons would seriously enhance the danger of nuclear war ...”

In its struggle with the problem of war, the world cannot do without law and the judicial process. This point was made and explained by the late Mr Justice Northcroft 40 years ago on his return from participation in the trial of the major Japanese war criminals (1946-48): "It must be recognised that developments in international law can place no limits upon the unscrupulous conduct of nations

which have the power and the will to repudiate the law. The most that can be done is to gain for accepted standards of international conduct the widest and most emphatic support possible, so that the danger of rebellion against those standards is minimised. After all, even in the application of the domestic criminal law of nations, no more than this is. ever attained.” In other words, the law and the judicial process have no built-in guarantee of success. Short of that, however, they are, in combination, positive, practical, and essential. Of equal importance is a recognition of the judicial function, independent of and distinct from the political. In today’s world, in the field of international affairs, the degree or lengths to which violence, actual or threatened, can be allowed to extend is far more than a political issue to be decided by the executive branch of Government. At the very least it is quasijudicial, requiring the best advice and guidance that can be provided by the law and the judiciary at the highest level.

Finally, whatever the worries of politicians and their advisers from the uncertainties of result and outcome in referring the great issue of (il) legality of nuclear weapons to the World Court for advisory opinion, such an initiative by New Zealand (or any other nation) could not be other than even-handed. Anti-nuclear it would be, of course; but no more directed, for example, against the United States Government, than against the Soviet Government, or the United Kingdom Government, or the French Government, or the Chinese Government; or the Government of any other country on the way to becoming a nuclear weapon power. Above all, it would not be directed against the people of any of those countries. The proposal itself, though mine, is actively supported, notably by the six distinguished and experienced international jurists whose opinions are exhibited in full detail in a document (March, 1987) that brought them together. One quotation must suffice as a representative and rounded summing-up of the whole case. It comes from the opinin of Mr Niall Mac Dermot, Q.C., secretary-general (since 1970) of the International Commission of Jurists, Geneva: “It would be naive to imagine ... that a declaration of the illegality of the use of nuclear weapons, even if made by such an authoritative body as the World Court, would lead the nuclear nations to dismantle them from their strategy, still less to agree at once to abandon them.

“It would, however, mark an important step forward in awakening the peoples and governments of the world to the extent to which modern military weapons have outrun all the basic concepts of the international law of war, as well as all morality and humanity.’’

The Government is being pressed, notwithstanding its present domestic preoccupations, to accord the proposal high priority. And urgency: for the impetus of the exercise could be greatly enhanced if the Minister of Foreign Affairs and his officials could be persuaded to seize and exploit the topicality of next month’s celebration of the Universal Declaration of Human Rights (December 10, 1948). Could any more appropriate occasion arise for the introduction of the initiative in the United Nations General Assembly than the 40th anniversary of the day on which it declared to the world (Article 3): “Everyone has the right to life ...”?

It will soon be 20 years since the cosmic event symbolising the technological masery achieved by Planet Earth’s inhabitants — man’s first landing on the Moon (July 20, 1969). In that moment, and in the imagination of millions, Neil Armstrong’s one small step carried with it the possibility of some greater, moral and spiritual advance — “one giant leap for mankind.” Might this not be one towards the goal of human self-mastery, a small nation in the South Pacific being the catalyst?