The nuclear weapons decision by the international court of justice: Locating the raison behind raison d'état

Millenium

Volumn 27, Issue 2, 1998, Pages 299-324

  Warner, Daniel ^a  

^a GRADUATE INSTITUTE OF INTERNATIONAL AND DEVELOPMENT STUDIES   (Switzerland)

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[No Author keywords available]

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EID: 0039485304     PISSN: 03058298     EISSN: None     Source Type: Journal    
DOI: 10.1177/03058298980270020701     Document Type: Article

References (71)

1. The traditional distinction between International Relations as a discipline and international relations as practice is used here.
2. For example, Friedrich Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), and Nicholas Onuf, World of Our Making (Columbia, SC: University of South Carolina Press, 1989). Recent examples to bridge this gap are Anne-Marie Slaughter Burley, 'International Law and International Relations Theory: A Dual Agenda', American Journal of International Law (Vol. 87, No. 2, 1993), pp. 205-39, and Robert O. Keohane, 'International Relations and International Law: Two Optics', Harvard International Law Journal (Vol. 38, No. 2, 1997), pp. 487-502. Most important from the legal perspective are Philip Allott, Eunomia (Oxford: Oxford University Press, 1990), and Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustanos, 1989).
3. For example, Friedrich Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), and Nicholas Onuf, World of Our Making (Columbia, SC: University of South Carolina Press, 1989). Recent examples to bridge this gap are Anne-Marie Slaughter Burley, 'International Law and International Relations Theory: A Dual Agenda', American Journal of International Law (Vol. 87, No. 2, 1993), pp. 205-39, and Robert O. Keohane, 'International Relations and International Law: Two Optics', Harvard International Law Journal (Vol. 38, No. 2, 1997), pp. 487-502. Most important from the legal perspective are Philip Allott, Eunomia (Oxford: Oxford University Press, 1990), and Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustanos, 1989).
4. For example, Friedrich Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), and Nicholas Onuf, World of Our Making (Columbia, SC: University of South Carolina Press, 1989). Recent examples to bridge this gap are Anne-Marie Slaughter Burley, 'International Law and International Relations Theory: A Dual Agenda', American Journal of International Law (Vol. 87, No. 2, 1993), pp. 205-39, and Robert O. Keohane, 'International Relations and International Law: Two Optics', Harvard International Law Journal (Vol. 38, No. 2, 1997), pp. 487-502. Most important from the legal perspective are Philip Allott, Eunomia (Oxford: Oxford University Press, 1990), and Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustanos, 1989).
5. For example, Friedrich Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), and Nicholas Onuf, World of Our Making (Columbia, SC: University of South Carolina Press, 1989). Recent examples to bridge this gap are Anne-Marie Slaughter Burley, 'International Law and International Relations Theory: A Dual Agenda', American Journal of International Law (Vol. 87, No. 2, 1993), pp. 205-39, and Robert O. Keohane, 'International Relations and International Law: Two Optics', Harvard International Law Journal (Vol. 38, No. 2, 1997), pp. 487-502. Most important from the legal perspective are Philip Allott, Eunomia (Oxford: Oxford University Press, 1990), and Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustanos, 1989).
6. For example, Friedrich Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), and Nicholas Onuf, World of Our Making (Columbia, SC: University of South Carolina Press, 1989). Recent examples to bridge this gap are Anne-Marie Slaughter Burley, 'International Law and International Relations Theory: A Dual Agenda', American Journal of International Law (Vol. 87, No. 2, 1993), pp. 205-39, and Robert O. Keohane, 'International Relations and International Law: Two Optics', Harvard International Law Journal (Vol. 38, No. 2, 1997), pp. 487-502. Most important from the legal perspective are Philip Allott, Eunomia (Oxford: Oxford University Press, 1990), and Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustanos, 1989).
7. For example, Friedrich Kratochwil, Rules, Norms and Decisions: On the Conditions of Practical and Legal Reasoning in International Relations and Domestic Affairs (Cambridge: Cambridge University Press, 1989), and Nicholas Onuf, World of Our Making (Columbia, SC: University of South Carolina Press, 1989). Recent examples to bridge this gap are Anne-Marie Slaughter Burley, 'International Law and International Relations Theory: A Dual Agenda', American Journal of International Law (Vol. 87, No. 2, 1993), pp. 205-39, and Robert O. Keohane, 'International Relations and International Law: Two Optics', Harvard International Law Journal (Vol. 38, No. 2, 1997), pp. 487-502. Most important from the legal perspective are Philip Allott, Eunomia (Oxford: Oxford University Press, 1990), and Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki: Lakimiesliiton Kustanos, 1989).
8. As Judge Georges Abi-Saab noted, '[t]he advisory opinion delivered by the Court at the request of the General Assembly will probably prove to be its most important and controversial pronouncement in the nineties'. Georges Abi-Saab, 'The Court and the Bomb: A Case of Mutual Deterrence?', Transnational Law & Contemporary Problems: A Journal of the University of Iowa College of Law (Vol. 7, No. 2, 1997), p. 453.
9. International Legal Materials (hereafter I.L.M.) (Vol. XXXV, No. 4, 1996), p. 831.
10. As clear alternatives, see, for example, the New Haven School of Myres McDougal and Harold Laswell or Critical Legal Studies. See David Kennedy and Chris Tennant, 'New Approaches to International Law: A Bibliography', Harvard International Law Journal (Vol. 35, No. 2, 1994), pp. 417-60. It would be interesting to compare the Critical Legal Studies movement with critical movements in IR, such as Critical Security Studies. See Keith Krause and Michael C. Williams (eds.), Critical Security Studies (Minneapolis, MN: University of Minnesota Press, 1997) to see the intersection of the two. While this article criticises the realism of the Court's decision, it also invites the type of joint efforts a comparison of critical movements would make .
11. As clear alternatives, see, for example, the New Haven School of Myres McDougal and Harold Laswell or Critical Legal Studies. See David Kennedy and Chris Tennant, 'New Approaches to International Law: A Bibliography', Harvard International Law Journal (Vol. 35, No. 2, 1994), pp. 417-60. It would be interesting to compare the Critical Legal Studies movement with critical movements in IR, such as Critical Security Studies. See Keith Krause and Michael C. Williams (eds.), Critical Security Studies (Minneapolis, MN: University of Minnesota Press, 1997) to see the intersection of the two. While this article criticises the realism of the Court's decision, it also invites the type of joint efforts a comparison of critical movements would make .
12. An example of this would be Jens Bartelson, A Genealogy of Sovereignty (Cambridge: Cambridge University Press, 1995).
13. See, for example, Steve Charnovitz, 'Two Centuries of Participation: NGOs and International Governance', Michigan Journal of International Law(Vol. 18, No. 2, 1997), pp. 183-286, and Thomas G. Weiss and Leon Gordenker (eds.), NGOs, the UN, & Global Governance (Boulder, CO: Lynne Rienner, 1996).
14. See, for example, Steve Charnovitz, 'Two Centuries of Participation: NGOs and International Governance', Michigan Journal of International Law(Vol. 18, No. 2, 1997), pp. 183-286, and Thomas G. Weiss and Leon Gordenker (eds.), NGOs, the UN, & Global Governance (Boulder, CO: Lynne Rienner, 1996).
15. This is not to say that one cannot use certain divisions of competence to show how similar domestic and international systems may be. It is a problem, nonetheless, for international lawyers who argue on the one hand that international law is law, but then also have to argue that international law is not like domestic law when it coms to punishment, sanctions, etc.
16. The use of the domestic analogy, whether explicit or implicit, is one of the great dangers of International Relations. For a critique of the use of the analogy, see Daniel Warner, An Ethic of Responsibility in International Relations (Boulder, CO: Lynne Rienner, 1991), pp. 37-45.
17. Article 59 of the UN Charter says: 'The decision of the Court has no binding force except between the parties and in respect of that particular case'.
18. Certain dangers - see footnote 9 - cannot always be avoided.
19. See Ved P. Nanda, 'The Establishment of a Permanent Criminal Court: Challenges Ahead', Human Rights Quarterly (Vol. 20. No. 2, 1998), pp. 413-28.
20. Vera Gowlland-Debbas, 'Judicial Insights into Fundamental Values and Interests of the International Community', in A.S. Muller, David Raie, and Johanna M. Thuranszky (eds.), The International Court of Justice (The Hague: Kluwer Law International, 1997), pp. 327-28.
21. See Wolfgang Friedmann, 'Droit de coexistence et droit de cooperation. Quelques observations sur la structure changeante du droit international', Revue Belge de Droit International (Vol. 6, No. 1, 1970-71), pp. 1-9; Hans Jonas, The Imperative of Responsibility: In Search of an Ethics for the Technological Age, trans. H. Jonas with D. Herr (Chicago, IL: University of Chicago Press, 1984); and Haskell Fain, Normative Politics and the Community of Nations (Philadelphia, PA: Temple University Press, 1987).
22. See Wolfgang Friedmann, 'Droit de coexistence et droit de cooperation. Quelques observations sur la structure changeante du droit international', Revue Belge de Droit International (Vol. 6, No. 1, 1970-71), pp. 1-9; Hans Jonas, The Imperative of Responsibility: In Search of an Ethics for the Technological Age, trans. H. Jonas with D. Herr (Chicago, IL: University of Chicago Press, 1984); and Haskell Fain, Normative Politics and the Community of Nations (Philadelphia, PA: Temple University Press, 1987).
23. See Wolfgang Friedmann, 'Droit de coexistence et droit de cooperation. Quelques observations sur la structure changeante du droit international', Revue Belge de Droit International (Vol. 6, No. 1, 1970-71), pp. 1-9; Hans Jonas, The Imperative of Responsibility: In Search of an Ethics for the Technological Age, trans. H. Jonas with D. Herr (Chicago, IL: University of Chicago Press, 1984); and Haskell Fain, Normative Politics and the Community of Nations (Philadelphia, PA: Temple University Press, 1987).
24. For an interesting reading of what response-able in the largest sense might be, see Michael Dillon, The Politics of Security: Towards a Political Philosophy of Continental Thought (New York, NY: Routledge, 1996).
25. Georges Abi-Saab, 'The Concept of "International Crimes" and its Place in Contemporary International Law', in Joseph H.H. Weiler, Antonio Cassese, and Marina Spinedi (eds.), International Crimes of State, A Critical Analysis of the ILC's Draft Article 19 on State Responsibility (New York, NY: W. De Gruyter, 1989), pp. 142-43, quoted in Gowlland-Debbas, op. cit., in note 13, p. 331.
26. Georges Abi-Saab, 'The Concept of "International Crimes" and its Place in Contemporary International Law', in Joseph H.H. Weiler, Antonio Cassese, and Marina Spinedi (eds.), International Crimes of State, A Critical Analysis of the ILC's Draft Article 19 on State Responsibility (New York, NY: W. De Gruyter, 1989), pp. 142-43, quoted in Gowlland-Debbas, op. cit., in note 13, p. 331.
27. Resolution 46/40 of 14 May 1993 of the Assembly of the World Health Organization (WHO). In fact, in 1992, several nongovernmental organisations led by the International Association of Lawyers Against Nuclear Arms, the International Physicians for the Prevention of Nuclear War, and the International Peace Bureau, began a campaign with the title 'World Court Project' within which the WHO demand was a part. The Court refused the WHO request to hear their demand because of jurisdictional reasons.
28. I.L.M., op. cit., in note 4, p. 817.
29. Ibid., p. 818.
30. Indeed, in this particular case, Judge Rosalyn Higgins wrote in her Dissenting Opinion: 'I agree with all that the Court has to say as to why it must render this Opinion and much that it has to say on the substance of the question put to it. I have also voted in favour of paragraphs 2A, 2B, 2C, 2D, and 2F of the dispositif. The first four of these findings are in a sense stepping stones to the heart of the matter, which is to be found in paragraph 2E. I have, with regret, been unable to vote for what the Court there determines'. I.L.M., op. cit., in note 4, p. 934.
31. The fact that States have rarely notified the Security Council is not of paramount importance. Indeed, as Oscar Schacter notes: 'The failures to report have not precluded the Council from considering, and in some cases passing judgement on, such claims when the matter was raised by states that questioned the legality of the use of force. The Council has rejected claims of self-defense in several cases (notably against states whose policies were generally disapproved)....The Council, more often than not, has been precluded by the veto from reaching formal decisions on the validity of such claims. Most of these cases were then considered by the General Assembly, which, unfettered by the veto, generally condemned the alleged self-defense action as a Charter violation'. Oscar Schacter, 'Self-Defense and the Rule of Law', American Journal of International Law (Vol. 83, No. 2, 1989), pp. 263-64.
32. I.L.M., op. cit., in note 4, p. 825.
33. I.L.M., op. cit., in note 4, p. 828.
34. As Derek Bowett notes in his classic text on self-defence, '[t]he correct interpretation of Art. 51 is...only to be achieved by a full appreciation of its relation to Art. 2(4)'. Derek W. Bowett, Self-Defence in International Law (Manchester. University of Manchester Press, 1958), p. 184.
35. Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York, NY: Basic Books, Inc., 1977), p. 21.
36. For a commentary on Grotius, De jure belli ac pacis, Prolegomenes XXIX, see Georges Abi-Saab, Cours Général de Droit International Public (tome 207, 1987), pp. 352-54,
37. 'International law has traditionally distinguished between the law regulating the legitimate resort to force (the jus ad bellum) and the law regulating the actual deployment of force (the jus in bello). Any legitimate exercise of force must be consistent with both sets of principles. The Opinion, however, confuses the jus ad bellum with the in bello'. Timothy L.H. McCormack, 'A non liquet on Nuclear Weapons: The ICJ Avoids the Application of General Principles of International Humanitarian Law', International Review of the Red Cross (No. 316, 1997), p. 77.
38. Walzer, op. cit., in note 25, p. 21.
39. Terry D. Gill. 'The ICJ's Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons and Humanitarian Law', paper presented at the Joint American Society of International Law-Netherlands Society of International Law (The Hague: July 1997), p. 2.
40. Abi-Saab, op. cit., in note 3, p. 444.
41. I.L.M., op. cit., in note 4, pp. 829-30. There is an interesting problem here that was not developed by the Court. We would assume that the Court imagined some kind of limited nuclear war as being acceptable. No other possibility could fit within humanitarian law. If that is the case, it is interesting to note that at the end of the 1950s and early 1960s there was considerable interest in this possibility. Henry Kissinger made his reputation as rapporteur for a Council on Foreign Relations study and the subsequent publication, Nuclear Weapons and Foreign Policy, became one of the largest best sellers in strategic studies. However, the rage was short lived, and even Kissinger retreated when some of the grotesque miscalculations showed how difficult it would be to limit collateral damage. For a brief discussion of the morality of limited nuclear war, see Walzer, op. cit., in note 25, pp. 274-78.
42. I.L.M., op. cit., in note 4, pp. 829-30. There is an interesting problem here that was not developed by the Court. We would assume that the Court imagined some kind of limited nuclear war as being acceptable. No other possibility could fit within humanitarian law. If that is the case, it is interesting to note that at the end of the 1950s and early 1960s there was considerable interest in this possibility. Henry Kissinger made his reputation as rapporteur for a Council on Foreign Relations study and the subsequent publication, Nuclear Weapons and Foreign Policy, became one of the largest best sellers in strategic studies. However, the rage was short lived, and even Kissinger retreated when some of the grotesque miscalculations showed how difficult it would be to limit collateral damage. For a brief discussion of the morality of limited nuclear war, see Walzer, op. cit., in note 25, pp. 274-78.
43. Professor Luigi Condorelli stresses this point in his commentary on the decision: 'The conditions of necessity and proportionality require that the use of nuclear weapons in self-defence could be envisaged only to meet an attack of comparable gravity that could not be neutralized by any other means'. Luigi Condorelli, 'Nuclear Weapons: A Weighty Matter for the International Court of Justice-Jura non novit curia?', International Review of the Red Cross, op. cit., in note 27, p. 15.
44. Ibid., pp. 19-20. The lack of exception to the applicability of humanitarian law is confirmed by Professor Hisakazu Fujita: 'No reason may therefore be invoked to claim that humanitarian law is not equally applicable in a case of self-defence, or even in an extreme circumstance of self-defence'. Hisakazu Fujita, 'The Advisory Opinion of the International Court of Justice on the Legality of Nuclear Weapons', International Review of the Red Cross, op. cit., in note 27, p. 62.
45. Ibid., pp. 19-20. The lack of exception to the applicability of humanitarian law is confirmed by Professor Hisakazu Fujita: 'No reason may therefore be invoked to claim that humanitarian law is not equally applicable in a case of self-defence, or even in an extreme circumstance of self-defence'. Hisakazu Fujita, 'The Advisory Opinion of the International Court of Justice on the Legality of Nuclear Weapons', International Review of the Red Cross, op. cit., in note 27, p. 62.
46. Christopher Greenwood, 'The Advisory Opinion on Nuclear Weapons and the Contribution of the International Court to International Humanitarian Law', International Review of the Red Cross, op. cit., in note 27, p. 74.
47. Gill, op. cit., in note 29, pp. 2-3.
48. Bowett, op. cit., in note 24, p. 193.
49. Schacter, op. cit., in note 21, p. 277.
50. Condorelli, op. cit., in note 32, p. 19.
51. Bowett, op. cit., in note 24, pp. 272 and 275.
52. I.L.M., op. cit., in note 4, p. 926.
53. Ibid.
54. I.L.M., op. cit., in note 4, p .930.
55. For example, the raison d'état of Machiavelli, as Meinecke describes, goes beyond the State to the interests of the Prince, just as Gentillet's criticism of Machiavelli focussed on the interests of civil power. Friedrich Meinecke, Machiavellism: The Doctrine of raison d'état and its Place in Modern History, trans. D. Scott (Boulder, CO: Westview Press, 1984), pp. 1-3.
56. An excellent discussion of this problem for corporations appears in John C. Coffee Jr., "No Soul to Damn: No Body to Kick": An Unscandalized Inquiry into the Problem of Corporate Punishment', Michigan Law Review (Vol. 79, No. 3, 1981), pp. 386-460.
57. I.L.M., op. cit., in note 4.
58. I.L.M., op. cit., in note 4, p. 936.
59. McCormack. op. cit., in note 27, p. 87.
60. Cited in Bombs Away. Newsletter of the Lawyers'Committee on Nuclear Policy (Vol. 11, No. 2, 1997) p. 2.
61. A similar question could be raised about the capacities of the Judges on the ICJ to discuss nuclear policy such as deterrence and the effects of fallout.
62. See Nicaragua v. United States (Military and Paramilitary Activity in and against Nicaragua 1986) for a major decision on limitations on self-defence. In that decision, the major case of the 1980s, the Judges concluded that self-defence presupposed an armed attack.
63. For a positive spin on the Court's decision, see Richard Falk, 'Nuclear Weapons, International Law, and the World Court: An Historic Encounter', Die Friedens-Warte: Blätter für internationale Verständigung und zwischenstaatliche Organisation (Band 71, Heft 3, 1996), pp. 235-48.
64. A helpful history of modern realism can be found in Michael J. Smith, Realist Thought from Weber to Kissinger (Baton Rouge, LA: Louisiana State University Press, 1986).
65. The edited version appeared as Robert O. Keohane, 'International Institutions: Two Approaches', International Studies Quarterly (Vol. 32, No. 4, 1988), pp. 379-96.
66. Ibid., p. 380.
67. Ibid., p. 381.
68. Ibid., p. 382.
69. See Yosef Lapid and Friedrich Kratochwil (eds.), The Return of Culture and Identity in IR Theory (Boulder, CO: Lynne Rienner, 1996).
70. For a brief perspective of the debates in International Relations, see Warner, op. cit., in note 9, pp. 125-29.
71. In a most insightful comment, Chris Brown recently noted that: 'Contrary to the near-universal acceptance of justice as a legitimate topic in political theory, orthodox International Relations theory is at best indifferent, at worst actively hostile, to the idea of international justice as a focus for intellectual effort'. Chris Brown, 'Review Article: Theories of International Justice', British Journal of Political Science (Vol. 27, Part 2, 1997), pp. 273-74.