¹ Legality of the Threat or Use of Nuclear Weapons, General List No. 95 (Advisory Opinion of July 8, 1996) [hereinafter Nuclear Weapons].

² See International Court of Justice Statute Art. 55(2).

³ Nuclear Weapons, para. 105(2) (A).

⁴ Id., para. 105(2) (B).

⁵ Id., para. 105(2) (C).

⁶ Id., para. 105(2)(D).

⁷ Although the Court’s conclusion here does seem to support strongly the view that the authority of Article 2(4) persists despite a great deal of contrary state practice. Given the importance of the issues, much scholarly attention has been devoted to this tension between Charter norms and the claims of states to use force. See Thomas M. Franck, Who Killed Article 2(4)? or: Changing Norms Governing the Use of Force by States, 64 AJIL 809 (1970); Louis Henkin, The Reports of the Death of Article 2(4) Are Greatly Exaggerated, 65 AJIL 544 (1971); Oscar Schachter, In Defense of International Rules on the Use of Force, 53 U. Chi. L. Rev. 113 (1986); Myres S. McDougal & Florentine P. Feliciano, Law and Minimum World Public Order (1961); Anthony Clark Arend & Robert J. Beck, International Law and the Use of Force (1993).

⁸ Nuclear Weapons, paras. 98–103.

⁹ Id., para. 105(2)(F).

¹⁰ This posture can be contrasted with the proclaimed disarmament goals of the nuclear superpowers that held up through the mid-1960s. The official framework for disarmament policy was set forth in the famous McCloy-Zorin Agreed Principles on Disarmament Negotiations, Sept. 20, 1961. For a skeptical interpretation of this alleged pursuit of disarmament goals, see Richard J. Barnet, Who Wants Disarmament? (1960). A momentary glimmer of commitment to nuclear disarmament occurred at the minisummit of November 1986, when General Secretary Gorbachev and President Reagan met in Reykjavik, Iceland.

¹¹ Nuclear Weapons, Dissenting Opinion of Judge Higgins, para. 41.

¹² This reading is strongly supported by Nuclear Weapons, Declaration of Judge Bedjaoui, paras. 12–16.

¹³ The considerable irony here is that Japan has suffered more direcdy than any other country from the contested weaponry, and it was Japanese society more than any other that exhibited grassroots support for recourse to the International Court of Justice.

¹⁴ Legality of the Use by a State of Nuclear Weapons in Armed Conflict, General List No. 93 (Advisory Opinion of July 8, 1996).

¹⁵ This outcome helps to neutralize the impression of the Lockerbie decision that a majority of the Court is subservient to geopolitical pressures, especially in light of the repudiation of the authority of its earlier decision in the Nicaragua case (Military and Paramilitary Activities in and against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14 (June 27)). See Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK; Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 3, 114 (Orders of Apr. 14). For an important jurisprudential interpretation of the outcome in the Nicaragua case, arguing that the decision was diplomatically effective in shaping a peace process despite the rejection of the authority of the Court by the U.S. Government, see Joaquin Tacsan, The Dynamics of International Law in Conflict Resolution (1992).

¹⁶ Nuclear Weapons, para. 105(2)(E).

¹⁷ Id.

¹⁸ Nuclear Weapons, para. 104.

¹⁹ Id., para. 97 (emphasis added).

²⁰ Id., Separate Opinion of Judge Fleischhauer, para. 6, as reinforced by Declaration of President Bedjaoui, supra note 12, paras. 11, 15.

²¹ For a forceful argument along this line, see Jeremy J. Stone, Less than meets the eye, Bull. Atom. Scientists, Sept./Oct. 1996, at 43–45.

²² It was on such contextual grounds that a Japanese domestic court legally condemned the atomic attacks in the only formal judicial appraisal of these events. For commentary, see Richard A. Falk, The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki, 59 AJIL 759 (1965).

²³ See Judge Schwebel’s dissent for an argument as to the contextual legality of nuclear weapons, but without consideration of claims that run counter to U.S. foreign policy, for example, if China threatens to reincorporate Taiwan.

²⁴ Nuclear Weapons, para. 44.

²⁵ The academic treatment of these issues that most closely resembles the approach and substantive conclusions of the World Court is that of Burns H. Weston, Nuclear Weapons versus International Law: A Contextual Reassessment, 28 McGill L.J. 542 (1983). The main difference is that the majority in the advisory opinion stresses legal uncertainties arising from claims of self-defense in extreme circumstances, whereas Professor Weston focuses on comparable uncertainties associated with first and second defensive uses, that is, differentiating between introducing nuclear weapons into a conflict (first use) and responding to a prior reliance by the aggressor on nuclear weaponry (second use). Since both uses are qualified by Weston as “defensive,” his distinction is an alternative to the Court’s way of identifying extreme occasions of self-defense where recourse to nuclear weapons might be legal. Weston’s approach would meet the objection to the advisory opinion that it potentially authorizes a defensive first use. See note 21 supra.

²⁶ Nuclear Weapons, para. 62.

²⁷ Id., para. 63.

²⁸ Id., para. 73.

²⁹ Id.

³⁰ Nuclear Weapons, para. 67.

³¹ Compare the interesting paragraph on “the question of lacunae” in Rosalyn Higgins, Problems and Process: International Law and How We Use It 10 (1994).

³² Nuclear Weapons, Declaration of Judge Vereshchetin, at 1.

To similar effect is the separate opinion of Judge Fleischhauer, supra note 20, which contains the following important sentence in paragraph 6: “The present state of international law does not permit a more precise drawing of the border-line between unlawfulness and lawfulness of recourse to nuclear weapons.”

This line of interpretation is forcefully elaborated upon in President Bedjaoui’s Declaration, supra note 12, para. 7, where he insists that the essence of judicial responsibility is to apply law as it exists, and neither “denigrate nor embellish” it. See generally on this, id., paras. 6–10.

³³ This assessment is made explicit near the beginning of the Dissenting Opinion of Judge Shahabuddeen, at 1–2.

³⁴ It is not possible here to discuss in an adequate manner the various positions argued by the three dissenters, each of whom contributed a comprehensive and important assessment of the main question as to legality. Judge Weeramantry’s 85-page dissent is likely to be widely studied, commented upon, and quoted, especially by transnational social groupings that over the years since 1945 have been mainly responsible for mounting a challenge to those governments relying on nuclear weaponry and by scholars attentive to the legal debate likely to be generated by the advisory opinion.

³⁵ Nuclear Weapons, Dissenting Opinion of Judge Schwebel, at 1.

³⁶ Id. at 8.

³⁷ For support of such an approach, see Richard A. Falk, The World Order between Inter-State Law and the Law of Humanity: The Role of Civil Society Institutions, in Cosmopolitan Democracy 163 (Daniele Archibugi & David Heldeds., 1995).

³⁸ See citations and discussion in note 15 supra.

³⁹ I have in mind particularly the International Association of Lawyers against Nuclear Arms and the U.S. Lawyers Committee on Nuclear Policy.

⁴⁰ This encouragement is also strongly promoted by the issuance of Report by the Canberra Commission on the Elimination of Nuclear Weapons (Aug. 14, 1996). The Canberra Commission is an independent body consisting of 17 eminent persons, appointed by the Australian Government in November 1995.