Case Analysis: Faith, Identity, and the Killing of the Innocent: International Lawyers and Nuclear Weapons

Leiden Journal of International Law

Volumn 10, Issue 1, 1997, Pages 137-162

  Koskenniemi, Martti ^a  

^a NONE

Author keywords

International Court of Justice; international law; lawyers; legal philosophy; nuclear weapons

Indexed keywords

EID: 85009613884     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156597000149     Document Type: Article

References (40)

1. R. M. Unger, The Critical Legal Studies Movement 11 (1986).
2. UN Doc. GA/RES/49/75K (1994). For a good review of the handling of this controversial request by the General Assembly, cf. M. Lailach, The General Assembly's Request for Advisory Opinion From the International Court of Justice on the Legality of the ThreaL ur Use of Nuclear Weapons, 8 LJIL 401-411 (1995).
3. WHO Res 46/40 (1993).
4. Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 ICJ Reports.
5. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, 1996 ICJ Rep., para. 105.
6. I.e. the principle of the plenitude of sovereignty, or that everything is permitted that is not subject to a definite prohjbition. The Court dismkspH rhic qiiestion rapidly by noting that as even states possessing nuclear weapons admitted that their right to use these weapons was not unlimited, the question could be addressed through seeking out where, precisely, those limits were, id,, at paras. 20-22.
7. Cf. e.g. M. Koskenniemi, The Politics of Intemationd Law, 1 Ejil 1 (1991).
8. The Court took a Delphic position, arguing, on the one hand, that it “does not intend to pronounce here upon the practice known as the ‘policy of deterrence'” (para. 67), but observed, nonetheless, that the existence of this pohcy “hampered” ihe “eiiicigcutc, as aIvx Uta, of a customary rule specifically prohibiting the use of nuclear weapons as such (para. 73).
9. Paras. 94-95 and 97.
10. See also H. Shue, Conflicting Conceptions of Deterrence, in E. Frankel Paul, F. D. Miller, J. Paul fe J. Ahrens (Eds.), Nuclear Rights, Nuclear Wrongs 45 (1986).
11. Regarding such rules, cf. T. M. Franck, The Power of Legitimacy among Nations 67-83 (1990).
12. I mean justifiable under legal reason. I can perfeccly well understand a moral argument to the effect that in the choice between utilitarianism and absolutism, the latter is always the better inasmuch as war and massacre are concerned. Cf. Th. Nagel, Mortal Questions 53-74 (1979).
13. R. Falk, L. Meyrowitz & J. Sanderson, Nuclear Weapons and International Law 78 (1981). See also L. Meyrowitz, The Laws of War and Nuclear Weapons, in A.S. Miller 8c M. Fein-rider (Eds.), Nuclear ‘Weapons and Law 48 (1984).
14. This is also the argument in the dissenting opinions of Judges Shahabuddeen, Weeramantry and Korotna.
15. Cf, Shahabuddeen, dissenting opinion at 4-8; Weeramantry, dissenting opinion at 11 (Para. 1.7), 13-31 (Para. II) and 58-62 (Para. IV); Koroma, dissenting opinion at 1; “Nuclear weapons are thus not just another kind of weapon, they are considered the absolute-weapon and are far more pervasive in terms of their destructive effects than any conventional weapon.”
16. An example also referred to in Schwebel, dissenting opinion at 7.
17. Thus, the Court found that there was no specific prohibition of the use or threat of use of nuclear weapons in treaty law (paras. 53-63) or custom (paras. 64-73).
18. Cf. Rausching, Thus, the Court found that there was no specific prohibition of the use or threat of use of nuclear weapons in treaty law (paras. 53-63) or custom (paras. 64-73) note 20, at 46-49.
19. Paras. 25 and 26.
20. Para. 33.
21. Answering this seems dependent on whether we identify the state in terms of its ‘idea’, its institutions, or physical base. Cf. B. Buzan, People, States 6c Fear 57-107 (1991).
22. Cf. B. A. Brody, The International Dene of Liberty, in-. Frankel Paul, Miller, Paul &c Ahrens, Answering this seems dependent on whether we identify the state in terms of its ‘idea’ note 12, at 30-31.
23. Para. 15.
24. Para. 95.
25. Cf. J. Stone, Conflict through Consensus. United Aproaches to Aggression (1977).
26. See T. Nagel, Mortal Questions 59 (1979).
27. Z. Bauman, Modernity and the Holocaust 28 (1989).
28. The argument for the limitation of law understood as formal rules and principles draws inspiration from Emmanuel Levinas’ seminal but difficult philosophical work, especially as developed in 2. Baiunan, Postmodern Ethics (1993); D. Furrow, Against Theory Continental and Analytic Challenhes in Moral Philosophy (1995), especially at 133-193; and (to a lesser extent, focusing on the continued relevance of judging actions by reference to their consequences) T. May, The Moral Theory of Poststructuiism (1995). The most accessible introduction to Levinas remains: Levinas, Ethics and Infinity. Conversations with Philippe Nemo (1985).
29. J. F. Lyotard, The Differend. Phrases in Dispute (1988), at 117 (para. 176).
30. Id, at 9, Cf. Furrow, The Differend note 35, at 33-34 and 161-193.
31. Cf. C. Smart, Feminism and the Power of Law 26-49 (1989).
32. Id.
33. E.g. Kelsen, Id note 36.
34. L. Wittgenstem, Philosophical Investigations (1995), at 85a (para. 217)
35. J.J. Rousseau, The Social Contract (translated & introduced by M. Cranston, 1986), at 51.
36. For a famous experiment to this effect, cf. S. Miigram, Obedience to Authority. An Experimental View (1974), See also the discussion of its implications in Bauman, The Social Contract note 34, at 151-165.
37. This point was made, somewhat more diplomatically, by Judge Oda, arguing that the request did not really seek the Court's opinion but the “endorsement of an alleged legal axiom”, dissenting opinion, para. 3.
38. A. MacIntyre, After Virtue (1985).
39. See also M. Davies, Delimiting the Law 93-99 (1996).
40. J. Habermas, Autotiomy and Solidarity 243 (1992).