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Kate Dewes, Aotearoa/New Zealand, is mother of three daughters. Her voluntary work for 25 years as a peace educator, disarmament campaigner and “citizen disarmament adviser” to the government proved essential background and training when she helped pioneer the World Court Project, served on its International Steering Committee and recently completed a doctoral thesis on its history. She is a Vice President of the International Peace Bureau. (More on: http://www.napf.org/abolition2000/index.html)

TAKING NUCLEAR WEAPONS TO COURT

Kate Dewes

“The very fact of asking for an advisory opinion on the legality of a particular category of arms amounts to questioning the inalienable right of any State or group of States to remain sovereign... Such an approach is a blatant violation of the UN Charter. It goes against law. It goes against reason...” This over-reaction by France’s Ambassador in the United Nations General Assembly in November 1994 showed that the World Court Project, a citizens’ initiative launched in 1992, was achieving its aim: using the law and public opinion to make nuclear disarmament unstoppable.
Ever since the bombings of Hiroshima and Nagasaki in 1945, the Western nuclear weapon states — the United States (US), United Kingdom (UK) and France — had succeeded in blocking all attempts to use the laws of war to ban nuclear weapons. Nevertheless, despite intense intimidation from these states, the UN adopted a resolution in December 1994 asking the International Court of Justice — also known as the World Court — “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” (A UN veteran described it as “the most exciting night at the UN in thirty years!”)
Within two years, in July 1996, the Court confirmed that the threat or use of nuclear weapons was generally illegal, strongly condemning them and advising unanimously that they must conform to international humanitarian law. Although there are treaties outlawing chemical and biological weapons of mass destruction, there is no such specific treaty to ban nuclear weapons — yet only nuclear weapons can destroy all life on Earth. How then could they be legal?
At times, some courageous citizens have tried to use domestic and international law to oppose nuclear weapons. However, legal confrontations by states with the superpowers over their nuclear policies have been rare. The first example was in 1973 when the Australian and Aotearoa/New Zealand (NZ) governments took France to the World Court to challenge the legality of its nuclear testing in the South Pacific. Another prominent example was in 1984, when New Zealanders elected a government committed to passing legislation banning both nuclear weapons and power from its territory. The US and UK immediately threatened harsh sanctions to try to stem further rebellion from other allies. In 1985, the French government ordered the sinking of the anti-nuclear flagship ’Rainbow Warrior’ in Auckland. The NZ government withstood this outrageous pressure, sustained by overwhelming public support; and a Nuclear Free Act became law in 1987.
The NZ peace movement responded by seeking ways of outlawing nuclear weapons worldwide. In 1987, Harold Evans, a retired District Court judge, who had become interested in international law after working with the NZ delegation at the 1946 Tokyo War Crimes Tribunal, wrote Open Letters to the Prime Ministers of Australia, NZ and 71 other states challenging them to sponsor a UN resolution asking the World Court for an advisory opinion. Australia refused; but NZ, along with the Soviet Union, India and several other non-aligned states, showed initial interest.
However, in 1989, despite vigorous lobbying, the NZ government backed off. Officials warned against directly challenging the Western alliance: “It would not gain sufficient support to succeed during the Cold War; it would cost too much; it would jeopardise disarmament negotiations; the Court would not dare to outlaw the nuclear policies of the five permanent Security Counci