This is the background of the legal developments, from 1945 onward, which led to the World Court's ruling that nuclear weapons are illegal. Elsewhere on this site is my analysis of that ruling.

Gaillard T. Hunt
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THE JUDGMENT OF THE JURISTS

 

 

The Law of Nations and Nuclear Weapons

 

 

The debate in 1945 within the American government about whether and how to use the atomic bomb never invoked legal terms. One reason was the preponderance of scientists in the discussion, but more important was the feeling among American officials that legality, as distinct from vaguer concepts like morality and humanity, had been swept away early in the war. Schaffer's studies of strategic bombing 1 show how deep and widespread was this feeling.

The feeling was mistaken. International law is the collection of arguments and doctrines that learned officials use when dealing with each other, so it did not go away. Jurists often embrace what they call "legal realism." At the extreme they may argue that law consists of practical predictions of what is going to happen, so no prohibition is "real" unless there is a predictable sanction attached to it. And there is an extreme beyond that extreme: some may argue that a prohibition is not real unless a given government has put it in writing and intends to abide by it.2 The trouble with this realism is that it is highly unrealistic. In the real world, diplomats and foreign offices claim to rest their actions on generally defensible rules, and tend to demand of their friends and foes that they do likewise. The law of war is no more likely to disappear than war itself.

We shall see that the International Court of Justice at the Hague has recently condemned the use of nuclear weapons. Before we analyze that confusing but nevertheless welcome ruling, we must go over the last half century and watch those formal utterances that international law recognizes as legal authorities. We will see that the jurists of the world did not bring themselves to condemn the atomic bombings immediately, but have amply done so in later years. We will also come to see why the law responded as slowly as it did.

 

The Japanese Protest

As early as 1944 the Japanese had transmitted to the U.S. State Department objections to the bombing of targets on Okinawa which the Japanese claimed were civilian. Foreign Relations of the United States contains a memorandum from the Secretary of State to the Secretary of War, dated January 18, 1945, concluding that it was best to ignore these protests:

As the War Department is doubtless aware, the rules of international law relative to such an attack as that protested by the Japanese Government are by no means firmly established or universally accepted. Under the circumstances, it is believed that most serious consideration should be given the question whether it is deemed desirable to engage at this time in any legal controversy with the Japanese Government over a question as uncertain as that raised by the protest under consideration.
FRUS, Diplomatic Papers, 1945,vol. VI, The British Commonwealth and the Far East (Washington: GPO, 1969), 469-70.

After Curtis LeMay's fires had been raging for several months, the Japanese cabled further protests through the Swiss embassy:

. . . Especially the attacks made by United States airplanes on Tokyo, Nagoya, Osaka, Kobe, Yokkaichi, and many other cities since the 25th February this year, when judged from the method of attack could not but be regarded as having been exclusively aimed at the wounding and killing of innocent civilians. . . . The Japanese Government strongly condemns these cruel inhuman and indiscriminate bombings carried out by United States Airplanes as violations of the principles of humanity and the rules of international law . . .
July 30, 1945, ibid., 471- 72.

Within days after Hiroshima, the Japanese foreign office put together a protest which the Swiss embassy transmitted to Washington on August 11, 1945:3

. . . there is involved a bomb having the most cruel effects humanity has ever known, not only as far as the extensive and immense damage is concerned, but also for reasons of suffering endured by each victim. . . . Since the beginning of the present war, the American Government has declared on various occasions that the use of gas or other inhuman means of combat were considered illegal in the public opinion of civilized human society and that it would not avail itself of these means before enemy countries resorted to them. The bombs in question, used by the Americans, by their cruelty and by their terrorizing effects, surpass by far gas or any other arm the use of which is prohibited by the treaties for reasons of their characteristics. . . .
August 11, 1945, ibid., 473.

This is as clear a summary of the humanitarian legal argument against the bomb as has been put together to this day. But Truman's announcement that an atomic bomb had been used on Hiroshima said the bomb would be used again and again. "If they do not now accept our terms they may expect a rain of ruin from the air, the like of which has never been seen on this earth," Truman's August 6 statement said,4 and indeed the bomb was used on Nagasaki two days later. Thus was the legal issue joined. Within a week of Hiroshima, the two contradictory positions on whether the use of the bomb was legal had been laid on the table.

The issue was referred to the lawyers and diplomats of the "Special War Problems Division," who should have defended their client. We should have in the record the lawyers' briefs giving the strongest possible arguments in defense of the bomb. Instead the lawyers on September 5, 1945, recommended to the State-War-Navy Coordinating Committee:

(1) That the receipt of the Swiss memorandum be merely acknowledged.
(2) That no reply be made to this Japanese protest in view of the events which have transpired since the receipt of this note from the Swiss Legation.
(3) That no publicity whatsoever be given to the receipt of this protest from the Japanese Government.
September 5, 1945, ibid., 474.

It would go too far to call this silence an admission of the illegality of the bombings, but if conscience can speak as a still, small voice, may not an uncharacteristic silence from lawyers have some meaning?

 

Antecedent and Prospective Illegality Distinguished

If the State Department lawyers were silent no one else was. By that date, early September 1945, almost everyone with access to a typewriter or microphone had gone on record: the bomb must be banned -- banned by agreement, that is, prospectively, for the future. Logically this demand was not inconsistent with a belief that the bomb was already illegal, a malum in se under unwritten principles of international law, the law of humanity, but an honest reading of the comments from that era forces us to admit that there was little or no discussion of such antecedent illegality.

When we speak of antecedent illegality, we are invoking a distinction between the two basic sources of international law. On the one hand there are universal obligations, resting on the nature of states and the inherent needs of humankind. This can give rise to what we are calling antecedent or intrinsic illegality. On the other hand we have specific agreements, or "conventional" law.5 The earliest authorities on international law derived the first category of rules from the nature of things and therefore called them "natural law," a term still in legitimate use6 despite a bad odor lingering from its Eurocentric origins. These rules are hard to prove. One must show both a consistent pattern of practice or restraint of most states, and also their general "opinio juris," or belief that the given practice or restraint rests in obligation. The second category of rules -- explicit, posited agreements between states -- is often called "positive law," and is easier to show, since it is written down. Both sources are important, so the line between what the law ought to be and what the law is, usually relatively clear on the domestic level, is far from clear on the international level. The absence of final arbiters who may lay down and conclusively interpret the rules complicates things, but it does not discourage arguments from custom, morals, and utility. It makes room for them.

In the law of war, the customary law of decent restraint finds positive law support in the Martens clause: "populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience." This appears in several duly ratified and binding treaties of the United States, among them the Hague Conventions. 32 Stat. 1803, 1805.

In 1945, most of the bomb's best friends professed a belief that it ought to be, or should become, illegal. In the very week in which he threatened Japan with "ruin from the air," Truman spoke7 of the need for international control of the atom to prevent its use in warfare. Prime Minister Clement Attlee wrote him that the British supported this idea and would issue a statement that it was "the intention of His Majesty's Government to put all their efforts into the promotion of the objects thus foreshadowed . . ."8 Secretary Stimson warned against anyone thinking that the United States could keep its monopoly of atomic bombs by "any long term policy of secrecy."9 He soon gave the president a memo on "Proposed Action for Control of Atomic Bombs," advocating speedy and generous negotiations with the Russians. The resulting agreement, he said, "might also provide that we would be willing to impound what bombs we now have in the United States provided the Russians and the British would agree with us that in no event will they or we use a bomb as an instrument of war unless all three Governments agree to that use."10 (The last phrase shows that Stimson thought the bomb could remain legal in some circumstances.) Likewise a memo from the Joint Chiefs of Staff warned Truman that "the question of [international] political controls [on the bomb] is a matter of immediate importance," because other nations would soon have the secret, and controls should be "promptly and vigorously pressed during the probably limited period of American monopoly."11

Senator Elbert D. Thomas of Utah, a vice president of the American Society of International Law, gave a gloom-and-doom interview to the Society's journal, in which he seemed to find the bomb incompatible with international law. "The bombs can, and perhaps may, destroy much of world civilization. Only a structure of law can save it."12 He went on to admit that international law had been widely violated in World War II, and not just by the enemy. He admitted that American soldiers in the Pacific had sometimes refused to let prisoners surrender. "Things began to be done which under 1939 standards very definitely would have amounted to American, Russian, and English atrocities."13 Such candor was unusual. The same journal carried an editorial comment by Ellery C. Stowell, "The Laws of War and the Atomic Bomb," which stated a different point of view. The idea that new and more brutal weapons have no place in war is mere sentimentalism, said Stowell, and the idea of civilian immunity is obsolete. And even this brutal "realist" agreed that the atomic bomb should be made illegal if there was a risk that other nations would get it soon. The risks of a world armed with atomic weapons would outweigh the benefit to even the most preponderate nuclear power, he admitted.

Truman, Mackenzie King, and Clement Attlee, the leaders of the three nations which had cooperated to develop the bomb, met in Washington in mid-November and issued a joint declaration calling for the establishment of an international commission on atomic energy under the United Nations, "to prevent the use of atomic energy for destructive purposes." Their professed aim was "the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction."14 The emphasis, as in most public statements of this period, was on the evil of atomic energy in war, and its potential as a miraculous source of energy in peace. Though Truman intended to reserve the right to use atomic weapons, and he and Attlee and King believed the law of nations gave every state that right, they did not say so in this joint declaration. But their conduct had been inconsistent with any idea of antecedent illegality.

These statements are of course only a sampling of the firestorm of discussion that greeted the much-hyped birth of the "atomic age." Nor was the consensus that the bomb ought to be made illegal unanimous. Vannevar Bush, for instance, candidly said the United States should be ready to use it when necessary, and denounced as dangerous the common talk about "outlawing the bomb."15

Thus the fall of 1945 passed with few suggestions that the atomic bomb was intrinsically and antecedently illegal and there were even a few dissents from the general wish that it be made illegal by agreement. Early the next year, the "First Committee"16 of the General Assembly discussed atomic energy several times during its initial meetings, in January and February, 1946, with the same emphasis on prospective illegality and silence about antecedent illegality.17 Mr. Connally of the United States said there should be an international Atomic Energy Commission to foster peaceful development of atomic forces and to "protect the world against their use for destructive purposes."18 The Polish delegate suggested that the nations give "a solemn and concrete assurance" against destructive use of atomic energy, but did not say that he believed that they were already bound by such a prohibition.19 On January 24, 1946, the General Assembly approved the recommendation of the First Committee and created the United Nations Atomic Energy Commission, and its charter said nothing about antecedent illegality.20

 

Resons for the Law's Delay in Condemning the Bomb

Thus the Japanese protest remained isolated in its claim that atomic bombs were already illegal. This failure of perception by the world's jurists can be explained by several things: the natural conservatism of the law, its disinclination to respond to anything very quickly, and the triumphant atmosphere following the victory over Axis aggression. Also there was the failure to appreciate the collateral effects of nuclear weapons -- radiation sickness and environmental contamination and fallout. But more important was an obvious fact about Hiroshima and Nagasaki that the anti-nuclearist may not like to admit: those bombings were merely urbicides. They did not involve the risks of omnicide and ecocide that necessarily dominate contemporary nuclear discussion. And the precedent set by the conventional strategic bombings, the several year orgy of destruction of civilians and their cities, had created a temporary illusion that such urbicides were allowed.

It is hard to say when the nuclear powers got the force necessary to destroy civilization as we know it, but the Hiroshima and Nagasaki bombs did not destroy even Japanese civilization. As late as 1949, the Soviet Union proposed an amendment to a resolution which had mentioned the effects of atomic war as "the destruction of civilization." The amendment would have moderated this to "mass extermination of the civilian population and the destruction of peaceful towns."21 This amendment was rejected, as were most Soviet proposals of that era, but it was accurate. At the start, and at least throughout the 1940s, the only threat from nuclear weapons was the possible incineration of non-combatants on a massive scale. And the sad truth is that by the end of World War II legal perception that such was always criminal had become somewhat clouded.

The scientists' movement and the supporters of world government confused things by their apocalyptic claims of atomic doom. But they were looking ahead. The jurists, as always, looked behind, at Hiroshima and Nagasaki. The jurists conservatively responded to dangers actually existing, which they conservatively perceived, and those did not yet include the threats of genocide, omnicide, and ecocide.

Legal authorities often linked nuclear weapons with "other major weapons adaptable now and in the future to mass destruction,"22 ignoring the unique, long-lasting perniciousness of radioactive fallout. The charter creating the UN Atomic Energy Commission, for instance, included non-atomic as well as atomic weapons among the instruments of mass destruction which that Commission was to work to eliminate.23 The realization had not yet sunk home that there is an essential difference between being blown to bits by TNT and being blown to bits, and incinerated and irradiated, by a weapon that creates enduring poisons both locally and globally.

Thus there were many reasons the world's jurists did not immediately rush to proclaim the bomb's natural, antecedent illegality.

 

The Baruch Plan

In 1946 some suggestions of antecedent illegality emerged. A resolution proposed at the Santiago conference of the Inter-American Bar Association explicitly criticized the American use of the bomb. The version eventually adopted avoided this point and was silent on Hiroshima and Nagasaki. But it called for a study of international control so that the bomb "will not be used in new wars. . . ." The American jurist reporting this to the fifth session of the American Society of International Law presented this change in the resolution as a ringing endorsement of Hiroshima and Nagasaki,24 but it might just as accurately have been described as an implicit condemnation.

Our candid Senator, Elbert D. Thomas, at the same April 26, 1946, session, amplified his legal view of the bomb (see above):

If the war technique of the bomb is used every refining notion that man has developed in the last two centuries for the protection of private property, for the protection of noncombatants, especially women and children, protection of hospitals, all of the positive laws of war which have developed, especially since our Civil War, will be wiped out by one single act. The story of mankind's great fall in law from a pinnacle of respect for noncombatants to a position of absolutely no respect is one of the great slips in civilization and in history.
American Society of International Law Proceedings, Fifth Session, April 27, 1946, 84, 85.

The most important development of 1946 was the conflict in the UN between the American and Soviet plans to ban the bomb. The deadly deadlock between Baruch and Gromyko came down to the question of when the bomb would become illegal. Baruch wanted the bomb to become illegal after inspections and controls were in place, but to remain legal and a legitimate American monopoly till then. Gromyko proposed immediate illegality, or illegality after a three month period for America to destroy its bombs. The deepening Cold War prevented any hope of compromise an this issue, and so did the underlying factual confusion: the Soviets knew that there were two nuclear powers in the world, but they did not realize that most American officials thought there was only one, and sincerely expected that America's monopoly would last for at least a couple of decades.

Had the Soviets not known that they were only a few years from exploding their own bomb, they might have loudly proclaimed antecedent illegality. They came close to doing so. Gromyko's June 1946 answer to the Baruch Plan declared that the ban on atomic weapons would be binding on all states, whether they were members of the United Nations or not,25 and would have made possession of bombs "a most serious international crime against humanity."26 In a June 1948 meeting of the Security Council the Soviets said, "In insisting on the prohibition of atomic weapons, the U.S.S.R. Government based itself on the evident fact that atomic weapons are aggressive weapons and are designed to exterminate peaceful populations, mainly those of large cities."27 But their bomb project was proceeding apace. They were no more likely than the Americans to denounce as intrinsically illegal a weapon they were pinning great hopes on.

 

J.M. Spaight Condemns the Bomb

In 1947, J.M. Spaight produced a third edition of his work Air Power and War Rights (first edition, London: Longmans, Green, 1924; third edition, 1947). We recall him as the British civil servant who began writing about air power before World War I, advocated a strong air force in the 1930s, and published Bombing Vindicated in 1944. Spaight's 1947 edition defended British nighttime area bombing, but went on to say:

The atomic bomb.--The writer wishes that he could be equally confident about the case to made for the next and more sensational development of aerial bombardment. On 6 August, 1945, an atomic bomb was dropped for the first time in war; it was launched on that morning by a Super-Fortress of the 20th U.S.A.A.F. on the Japanese city of Hiroshima. The effect was catastrophic. . . .

The incinerating of a townful of people in one flash seems more horrible than killing and maiming hundreds on each of many raids; but it may be that the real difference lies only or mainly in the scale of the devastation caused. That difference is, however, not unimportant, legally, at least. Target-area bombing depends ultimately for its justification on the impracticability of bombing a military objective under existing conditions without bombing the area in which it is situated. The area included in the assault is not out of proportion to that which the actual objectives occupy. In atom bombing the disproportion is immense. . . .

J.M. Spaight, Air Power and War Rights(3d edition, London: Longmans, Green, 1947), pages 273-274.

Spaight rejected the argument that the bomb had shortened the war because it is an argument that could be used for any weapon, denounced the lingering effects of radiation, and cited the prohibitions of gas and germ warfare.28 Spaight's condemnation of the atomic bomb was not widely noted, at least not in America.

We examined above how the bomb between 1945 and late 1949, during the period of the American monopoly, came to be accepted as the main defense against the threat of a Soviet takeover of Europe. As long as only one side had the bomb any war would be superficially analogous to the war just finished: a ruthless dictator with a large and effective army could be undermined by destroying his cities. As the atomic dissidents in the Admirals' Revolt pointed out, the analogy not only required massive killing of civilians, it also failed to work on a crucial point: the Red Army had shown itself stronger than the Wehrmacht, and had done so with mass and weight that would be more resistant to strategic bombing, even atomic. In any event, the growing commitment of America to atomic deterrence against that conventional threat insured that there would be no discovery of antecedent illegality by American officials.29

 

The Soviet Bomb

When the American monopoly ended in 1949 with the Soviet bang, that should have jarred loose the deadlock. Some agreement, however distasteful, should have followed between the great adversaries. None did.

The representative of the USSR stated that although the Soviet Union would have as many atom bombs as it would need in the unhappy event of war, it was using its atomic energy for purposes of its own domestic economy; blowing up mountains, changing the course of rivers, irrigating deserts, charting new paths of life in regions untrodden by human foot. . . . The Ukrainian SSR representative pointed out that, despite the fact that the USSR had come into possession of the secrets of atomic energy production, it had not swerved from its insistence upon the prohibition of atomic weapons.

United Nations Year Book, 1948-1949 359.

To which the United States and the United Kingdom replied that if mountains could be levelled30 so could cities, and they were not giving up their bomb till inspections were in place. Id. The U.S. delegate Warren R. Austin cited the Atomic Energy Act of 1946, section 10(a)(1) of which said there could be no exchanges of information till effective and enforceable controls were in place, and said:

The United States does not intend to give up its atomic weapons except under a system of control sufficiently effective to guarantee that other nations do not have, and cannot secure, these weapons. We believe that the majority of nations of the world support us in this position.
Department of State Bulletin, October 31, 1948, 535, 538.

But after the Soviet explosion, India produced one of the first neutral statements assuming antecedent illegality: a proposal to refer the question of atomic control to the International Law Commission for a "Declaration on the duties of States and individuals." The Indian delegate offered this as a step toward the "moral prohibition" of the bomb. Haiti and Argentina offered similar proposals, but none of them were adopted.31

In the year or so after this we find other suggestions of intrinsic illegality. The Philippine delegate, for instance, observed "that the prohibition of the atom bomb was not of extreme urgency since the dreadfulness of the weapon, to some extent carried its own prohibition."32 The Egyptian delegate said the atomic bomb was a weapon "which could not be classed as defensive."33 Egypt proposed that the matter be referred to the "Sixth Committee" to draft a treaty invoking "moral sanctions" alone, since no agreement on inspections could be found.34 The Soviet Union suggested a General Assembly resolution "unconditionally banning the atomic weapon" as a way out of the great power deadlock.35

Nevertheless the bomb was still perceived largely as an urbicide problem between the nuclear powers, not as a threat to neutrals, and the general failure to observe that it was intrinsically illegal continued.

 

Alexander Sack Puts Antecedent Illegality in Play

Around the time of the Soviet explosion, a legal scholar put together a fully reasoned analysis of the intrinsic illegality of the atomic bomb. If the scholar, Alexander N. Sack, was obscure, at least his analysis, a report to the Committee on Prevention of International Crime of the American Branch of the International Law Association, was undeniably legal. His analysis was published as "ABC -- Atomic, Biological, Chemical Warfare in International Law," in the Lawyers Guild Review.36 Law review articles have no official authority in domestic law, but in international law they are often the only evidence available of the opinio juris, the estimation of humankind. Sack showed what a scholar can do with no more than a library and a typewriter, if he keeps his head when all about him are losing theirs.

Sack kept his eye on fundamentals: ". . . the only legitimate object of warfare is to overcome the military forces of the enemy." Written codes and conventions are not the only rules binding on nations at war, the Martens clause preserves "the protection and the rule of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience." Sack said, "One may well sympathize with the point of view of the distinguished statesman, Stimson. . . . Yet, the atomic bombing of Japan was a truly tragic mistake."

It was imperative, in the interests of humanity and civilization generally as well as of the United States, to proclaim, sometime after capitulation of Japan, solemnly and unequivocally that the atomic weapon should never be used again; that renunciation of its use should be formally undertaken by all the nations of the world; and that its use should be denounced in a universal covenant as a war crime and as a crime against humanity, [footnote 71] except in case of supreme necessity of self-defense as a retaliation in kind under International Law. [Footnote 72.]
. . . nothing could have contributed more to the moral prestige of this country. . .
10 Lawyers Guild Review, 1950, 161, 168-69.

In footnote 72 Sack made clear that his exception for supreme necessity was so narrow as to be largely theoretical.

In footnote 71 Sack clarified his view of the criminality of the bomb by stressing the distinction between something illegal because of an agreement and something intrinsically illegal. "ABC warfare is a malum per se, and a formidable danger to the very life of nations and to the civilization."37 He went on to criticize the Baruch plan for its failure to accept immediate or antecedent illegality: "there was nothing in it even implying recognition that the use of the atomic bomb is illegal. It was just a tall program of 'prevention' of its use."38

Sack's article may have been the first fully researched and footnoted analysis of the bomb's legal position in the past and present -- as distinct from the multifarious pleas that the bomb be made illegal in the future -- and it made the case for intrinsic illegality firmly and clearly. It was published shortly after the American monopoly ended. Had the United States heeded Sack's teaching the arms race may well have continued, but at least we would not be to this day burdened with the official fantasy that there is nothing illegal about nuclear warfare. As the Japanese protest showed, this illegality was clear enough in 1945 that any competent advocate could see it, when his own neighbors and countrymen were wasting away from radiation sickness, and Sack showed that an objective observer from the victorious nation could see it as well. The next development was for neutral observers throughout the world, and their governments, to see it, and to start proclaiming that the bomb per se was illegal. This they did, in due course, over the next decade.

 

Soviet Ambiguity

By 1953 the arms race had gone far enough that even the principal contestants seemed to be having qualms. On December 8, 1953, Eisenhower went before the General Assembly with his "Atoms for Peace" proposal, a plan to share peaceful uses with other countries. More important was the breakthrough the Soviet Union finally made from proposals to outlaw the bomb to recognition of its intrinsic illegality. It suggested a declaration that would "recognize that the use of atomic and hydrogen weapons as weapons of aggression and mass destruction was contrary to the conscience and honor of the peoples and incompatible with membership in the United Nations," and that first use of the bomb in any conflict would be a crime against humanity and a war crime. 39 Thus the theory of antecedent illegality was now before the UN. Unfortunately, it was under the sponsorship of a nation that was by that time facing almost universal distrust.

 

The Lucky Dragon Changes Everything

In March of the next year, 1954, the Lucky Dragon shook the world, especially the Eastern and Pacific world. It showed that no place was safe. People could be peacefully fishing in the placid Pacific and et in arcadia ego, the bomb could find them and deal them a nasty lingering illness, even death. And that was in peacetime, from mere testing. The Lucky Dragon was the turning point. It raised problems different from belligerent urbicide - problems the non-belligerent world considered much more serious.

Jawaharial Nehru, Prime Minister of India, was among the first to give voice to the world's reaction. He discussed the Lucky Dragon in a prepared speech to the Indian Parliament, released with due emphasis and officiality. He noted that the harmful side of the atomic revolution seemed always to fall on his part of the world, not anywhere near the atomic powers. He urged full publicity of both known and "unknown but probable effects." He cited India's record of advocating prohibitions on all the uncontrollable means of destruction -- chemical and biological as well as nuclear. He declared that possible nuclear war, like the testing at Bikini, "menaces all alike." 40 The same newspaper quoted Soviet Premier Malenkov as saying atomic war could mean the destruction of civilization, 41 and reported that "U.S. Avoids Reply to Nehru." 42

Nehru's specific suggestions were modest compared to the alarm he was expressing. He called for "active steps" by the third world to halt testing by the nuclear powers. This is in line with our observation of the conservative style of international law. Prime ministers and others tend to move slowly and confine themselves to sure ground when they talk international law, especially when disagreeing with large and wealthy patrons.

But the Lucky Dragon was not soon forgotten. Scientists began publicizing the dangers of fallout and the public listened. Strontium-90, a chemical analogue of calcium, settles into human bones to give off radiation for a long time, so people the world over began asking why they should have to tolerate its release into the atmosphere with every atomic test.

Proposals multiplied over the next few years, and as they began to get specific some distinctions emerged. Use of atomic weapons is not the same as possession, and use against a conventional foe would not be the same as use against a foe that had already used atomic weapons in a given conflict. There were a few ambitious proposals aimed at actual disarmament, such as the "Rapacki Plan," which would have denuclearized central Europe. But because of the fear of fallout the most urgent attention focused on testing. As the delegate from Cyprus said in support of a test ban, it was a "human appeal prompted by a natural human reaction to the imminence of a danger." 43

The vast majority of nations were firmly convinced that they did not want nuclear weapons and did not want their neighbors to have them, so anti-proliferation proposals proliferated. Ireland's became General Assembly Resolution 1380 (XIV), which passed 68 to 0, with 12 abstentions. 44 Eventually this would give birth to the Nuclear Non-Proliferation Treaty, but that was not until 1968. This resolution only requested that no non-nuclear country acquire a nuclear capacity. In another measure the entire continent of Africa was proposed as a denuclearized zone. 45

 

 

The General Assembly Recognizes Antecedent Illegality

It was Resolution 1653(XVI) that ended the era of legal indecision and declared the opinio juris we have been looking for:

. . . The General Assembly,

* * *

1. Declares that:

(a) The use of nuclear and thermonuclear weapons is contrary to the spirit, letter and aims of the United Nations and, as such, a direct violation of the Charter of the United Nations;

(b) . . . is contrary to the rules of international law and to the laws of humanity;

* * *

(d) Any State using nuclear and thermonuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity and as committing a crime against mankind and civilization; . . .

United Nations Yearbook, 1961, 30-31.

This was adopted by the General Assembly on November 24, 1961, by a vote of 55 to 20, with 26 abstentions. The Soviet Union and other Communist countries supported it. The United States and the NATO countries opposed it. The U.S. delegate Mr. Dean said, "It is simply not true that the use of nuclear weapons is contrary to the Charter and to international law." 46 The Ethiopian delegate, Mr. Gebre-Egzy, claimed the resolution had originally been an Ethiopian idea, and said, "I think the conclusion is clear that the entire human race is for the draft resolution. As a matter of fact, even those who voted against it accepted it -- they could not say they wanted to use atomic weapons. They simply said that they wanted to achieve the same end by other means." 47

Thus at the end of 1961 the intrinsic illegality of using nuclear weapons was recognized by the vast majority of nations but not by the United States and several of its allies. The General Assembly is not a legislature and cannot create a legal obligation. So the exact force of the General Assembly resolution has never been clear.  As Richard Falk put it, "The legal status of nuclear weapons, then, is very inconclusive.  .  .  .  There is fairly convincing evidence of a gathering consensus expressive of the will of the international community and certainly not irrelevant to the creation of binding legal obligations." 48 It was only the dissent of the United States and a few other powers that gave the bomb any continuing defense against outlawry.

 

The Shimoda Decision

As anti-nuclear agitation had grown in Japan around the time of the Lucky Dragon incident, five Hiroshima and Nagasaki hibakusha had filed a lawsuit claiming recompense for the illegality of the atomic bombings.  Their damages were all we would expect.  The lead plaintiff, Shimoda, had been a healthy 47-year-old factory owner with a large family before the bombing.  The bomb left him permanently injured and killed five of his children: girls 4, 7, 10, and 16 and a boy 12. 49 The suit was filed May 24, 1955, in a Tokyo court.  The defendant was the Japanese government, so the precise legal issue was whether the waiver of claims in the peace treaty -- the waiver of all war claims between the United States and Japanese governments -- conferred responsibility on each government to make good the injuries suffered by its own nationals from all violations of the law of war by either side.  This was the issue on which a three-judge court on Pearl Harbor Day, December 7, 1964, eleven years after the suit was started, ruled against the plaintiffs. Whatever the legality of the bombings, the Japanese government did not have to pay.

But the court expressly ruled that the bombings were illegal. The Japanese government took the position that the bombs were not illegal at the time they were used. It admitted it had filed the protest quoted above, but said it was impossible to insist on that position, "taking an objective view, apart from the position of a belligerent." 50 The court applied the positive international law in effect at the time of the bombings, such as the bans on dum-dum bullets, poison gases, etc., 51 and roundly condemned the atomic attacks under these standards.  The bombs were illegal because: 1) They were "indiscriminate aerial bombardment" of undefended cities, even if the cities did contain some military objectives.  2)  They were cruel and inhumane. 20% to 30% of the deaths were from burns.  And 3)  The damage done was grossly disproportionate to any possible military objectives.

The Shimoda decision was translated in The Japanese Annual of International Law for 1964, pages 212-252, and was digested in 58 American Journal of International Law (October 1965) 759-793. In his February 15, 1965, article in The Nation, Falk said that he had been unable to find any reference to the Shimoda decision in the American press. Thus the Shimoda case influenced American popular thought about as much as any other Japanese court case of that year. But in international law it remains the only court case squarely ruling on the illegality of the two times atomic bombs have been actually used

 

The Nuclear Non-Proliferation Treaty

After 1961, with its General Assembly resolution condemning use of the bomb, the views of the non-nuclear nations grew increasingly anti-nuclear, while the nuclear nations showed spectacular inconsistencies in both word and deed. The nuclear states banned atmospheric testing in 1963 and negotiated various arms control agreements that we need not discuss here. The controversies over who was ahead when and in what categories, and what it all meant, are best left to that most dismal of sciences, "strategic studies." Suffice to say that in the 1960s the proliferation of ballistic missiles made the death of the planet possible within minutes rather than days. The Cuban missile crisis of 1962 left most of the world badly shaken at the apparently narrow 53 escape from Armageddon, but left the Soviet Union with a long-term desire to catch up with the United States, whatever that would mean.

In 1968 the Eighteen Nation Committee on Disarmament, which included the United States and the Soviet Union, proposed a Non-Proliferation Treaty. The objections raised were many: The treaty dealt with acquisition and possession, not with use. Would it not be logical to ban use of nuclear weapons first? 54 The Soviet Union had originally taken this view in the Eighteen Nation Committee, citing the 1961 General Assembly resolution. 55 Others complained that the treaty did not go far enough. France declared it would not sign because the treaty did not call for the total destruction of all existing nuclear weapons as well as the prohibition against any new ones. 56 And most importantly, the non-nuclear nations complained that the proposal only shut off proliferation to them, and left the nations already nuclear free to proliferate their existing arsenals as much as they wished. So the United States and the Soviet Union proposed identical drafts of what would become Article VI:

Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control.

Nuclear Non-Proliferation Treaty, Article VI.

Thus the Treaty became a "north-south," or nuclear/non-nuclear bargain. The nuclear states agreed to give up their nuclear weapons in return for the rest of the world's promise against proliferation. Whether the treaty has actually stopped any "horizontal proliferation" and has kept anyone who would otherwise have gone nuclear from getting the bomb, we can never know. But it did not even slow down "vertical proliferation" in the arsenals already in place. The Soviet determination never again to have to back down as they had in the Cuban crisis expressed itself in new rockets and silos. By the mid-70s they had built enough that President Carter felt compelled to start increasing the American arsenal again, and to hand over to his successor the program that the Freeze advocates found so alarming in Reagan's hands.

The nuclear danger had grown from a threat to the cities of America, Russia, and Europe, to a threat to life on the planetary scale. With several thousand ballistic missiles on each side and thousands of deployed hydrogen warheads, responsible scientists began to talk about the danger of extinguishing the entire terrene ecology. One danger was that a nuclear exchange could send enough smoke and dust into the atmosphere to cause "nuclear winter," or several years without sunshine. Humanity, being among the cleverest and most adaptable of animals (they had just proved that in this scenario, hadn't they?) might carry through a few individuals for a few years, but eventually even they would perish with no supporting ecosystem.

Before long the potential danger was enough to make a few Hiroshimas and Nagasakis look like local problems. So the neutral nations, and many individuals in the nuclear nations, 57 continued to express their growing opinio juris about the illegality of the whole affair. The theoretical views of the two great powers are harder to pin down. The Soviet doctrine seems to have excluded being the first to use nuclear weapons, though some claim to have seen subtle shifts in that doctrine over the years. 58 The tradition of non-use held, but the United States professed to reserve the right of use. 59 In 1978 Secretary of State Cyrus Vance enunciated the "Vance Doctrine," that the United States would not use nuclear weapons against non-nuclear powers, except for one fertile exception: those aligned with a nuclear power. 60 Over the years the United States has consistently refused to say it will never be the first to use nuclear weapons in a conflict with another nuclear power, or against a country aligned with one.

Then during the 1991 Persian Gulf conflict, Vice President Dan Quayle, visiting London, said that nuclear weapons might be used against Iraq. Iraq was one of the signatories of the Non-Proliferation Treaty the United States had agreed could not be so attacked. 61 The Toronto Globe and Mail 62 reported "U.S. backs away from nuclear promises." Leonard Spector of the Carnegie Endowment for International Peace noted that Quayle, former Texas Governor John Connally, and some members of Congress had threatened Iraq with nuclear weapons and said, "Other powers can see that when the chips are down you back away" from commitments not to use nuclear weapons. The furor stirred up by Quayle's remark was largely ignored in the United States, probably because of his lack of personal credibility, but this license did not apply abroad, where it was understandably feared that the incumbent Vice President of the United States might possibly know what he was talking about.

Among the legacies of the nuclear Freeze movement of the 1980s were lawyers' groups, such as the Lawyers' Committee on Nuclear Policy in New York and the International Association of Lawyers Against Nuclear Arms in the Netherlands, and others. Lawyers think of lawsuits, and these groups thought about the World Court, the International Court of Justice at the Hague. The World Court has authority to render an "advisory opinion" when asked by an organ of the United Nations, so the lawyers proposed to ask the Court to ban the bomb by such an advisory opinion. One group used a logo showing an angry little man in a robe kicking a bomb.

The idea caught on, and the World Health Organization in 1993 petitioned the Court for an advisory opinion. The Court invited responses and by June of 1994 had collected about 27. Among them was one from Japan. The Japanese government prepared a response which repeated its position in the Shimoda case: that their wartime note against the bomb was the judgment of a belligerent and that on cooler reflection they were forced to acknowledge "the lawfulness of nuclear weapons." But when the Diet heard of this a bitter debate erupted. The final result was a wordy diplomatic silence:

Simply, we decided, in consideration of the views expressed elsewhere, we would represent our policy consideration to the ICJ; in other words, rather than describing the legal interpretations of the matter, we express our national sentiment, that Japan was victimized, by atomic bombs, Japan adheres to the three non-nuclear principles, Japan promotes nuclear disarmament, and also is pushing ahead the policy of non-nuclear proliferation. But I'm quite sure that you'd be interested in raising another question to make sure whether the Japanese government had changed its position or not. We decided to present our views based on national sentiment regarding nuclear issues, and policies; these are outlines of the answer which was presented to the ICJ. However, what was asked by the ICJ was what would be the legal assessment of the use of nuclear weapons. Our finding that, if you study very carefully the existing international treaties, customs or laws, experts' opinions, we do not see any concrete position which would suggest that the use of nuclear weapons would be prohibited. Mind you, this is simply a legal assessment of existing international laws. Of course, we decided not to include this statement of legal assessment of this question presented to us by the International Court of Justice. Am I clear to you?

Mr. Temsuke Terada, June 10, 1994.

63

Later in 1994, Indonesia, on behalf of the Movement of Non-Aligned Countries, suggested that the General Assembly join in the request for a World Court ruling. (At the same time the General Assembly was passing a proposed "Convention on the Prohibition of Nuclear Weapons.") Many objections were raised to the advisory opinion request:

. . . France held that the very request for an advisory opinion on the legality of a particular category of arms was tantamount to questioning the inalienable right of any State or group of States to choose its means of defence and was this a violation of the United Nations Charter. . . . The Russian Federation agreed that the question of the advisability of the use of nuclear weapons was a political, not a legal, problem. It noted that the very existence of nuclear weapons was accepted in international law and that there was a wide range of international norms regulating them. The United Kingdom put forward similar arguments and added that the draft resolution would do nothing to further global peace and security. . . .

The United Nations Disarmament Yearbook, volume 19: 1994, P. 88.

Nevertheless the resolution was adopted 71 to 43, with 38 abstentions. 64 It asked the World Court to answer:

"Is the threat or use of nuclear weapons in any circumstance permitted under international law?"

Ibid., page 91.

The resolution helped the Court out a bit by recalling "resolutions 1653 (XVI) of 24 November 1961, 33/71 B of 14 December 1978, 34/83 G of 11 December 1979, 35/152 D of 12 December 1980, 36/92 I of 9 December 1981, 45/59 of 4 December 1990 and 46/37 D of 6 December 1991, in which it [the General Assembly] declared that the use of nuclear weapons would be a violation of the Charter and a crime against humanity. . ." Ibid., page 90.

The World Court solicited further submissions. On June 20, 1995, the "Written Statement of the Government of the United States" was submitted. This brief began by suggesting that the Court exercise its discretion not to answer the question because an answer might in some unspecified way undermine the progress in arms control allegedly being made, and because the question was vague and hypothetical. The brief then turned to the merits. Here it argued that the many partial bans on nuclear weapons logically implied that all nuclear weapons not explicitly banned are legitimate. "With respect to the use of nuclear weapons, customary law could not be created over the objection of the nuclear-weapon States, which are the States whose interests are most specially affected." 65 Nuclear weapons are legal because "there is no consensus on the question of the legality of the use of nuclear weapons. In particular, there is nothing approaching the degree of acceptance [of a ban] by States, and of acceptance by the States most specifically affected, that would be required to create obligations under customary international law." 66 The American brief did not deny that nuclear weapons are subject to the laws of war. 67 Nothing in the brief argued against the Court synthesizing a general rule against the inhumanity of urbicide or mass destruction of civilians. The arguments were all directed against any conclusion that would single out nuclear weapons per se, because they are nuclear. The purpose of the brief seemed less to defend the bomb than to defend its name. It is not evident why this is important to the United States or any other possessor of nuclear weapons.

The other nuclear powers also defended the bomb by admitting it is subject to the law of war, 68 but the majority of filings were from non-nuclear powers who presented many forceful arguments against nuclear weapons as such, per se.

On July 8, 1996, the Court ruled.

 

Go to"The World Court and the Bomb" for G.T. Hunt's analysis of that ruling.

 

 

Footnotes

1. Ronald Schaffer, Wings of Judgment: American Bombing in World War II (New York: Oxford University Press, 1985); "American Military Ethics in World War II: The Bombing of German Civilians," 67 Journal of American History (September 1980) 318-334. [return to text]
2. This view was the thrust of the American filing in the ICJ case.[ret]
3. Stars and Stripes (London edition), August 11, 1945, 3, "Japan Protests to U.S. on Use of Atom Bomb," quoted the Japanese as denouncing the bomb as "a new crime against the whole of humanity and civilization."[ret]
4. New York Times, August 7, 1945, 4:2.[ret]
5. The term "conventional" here means resting on "conventions" or treaties, as opposed to "conventional" in the sense of "customary."[ret]
6. E.g., see John P. Humphrey, "On the Foundations of International Law," 39 American Journal of International Law (1945), 231-243; Henry B. Veatch, Swimming Against the Current in Contemporary Philosophy: Occasional Essays and Papers (Washington: Catholic University Press, 1990); David F. Forte, ed., Natural Law and Contemporary Public Policy (Washington: Georgetown University Press, 1998).[ret]
7. Radio broadcast, August 9, 1945.[ret]
8. Attlee to Truman, 11 August, 1945, FRUS, 1945, vol. 2, 40.[ret]
9. New York Times, August 10, 1945.[ret]
10. FRUS, 1945, vol. 2, 41,43.[ret]
11. Harry Truman, Year of Decisions (Garden City: Doubleday, 1955), 527-528.[ret]
12. 39 American Journal of International Law (1945) 736-744, 738.[ret]
13. Id., 740.[ret]
14. Text, New York Times, November 16, 1945, 16.[ret]
15. FRUS, 1945, vol. 2, 71.[ret]
16. When the General Assembly discusses security matters it sits as the First Committee. Reports of these sittings appear in the microfiche documents as A/C.1/..., for "Assembly, Committee 1."[ret]
17. A/C.1/3, A/C.1/7, and A/C.1/18.[ret]
18. A/C.1/3, January 21, 1946.[ret]
19. A/C.1/3, January 21, 1946, 11.[ret]
20. United Nations Yearbook, 1946-1947, 64-66.[ret]
21. United Nations Yearbook, 1948-1949, 358.[ret]
22. December 14, 1946, General Assembly Resolution, calling for a draft convention to ban all such evils. United Nations Yearbook, 1946-1947, 446.[ret]
23. United Nations Yearbook, 1946-1947, 64-66.[ret]
24. William R. Vallance, American Society of International Law Proceedings, 1946, page 105-106.
25.United Nations Yearbook, 1947-1948, 466-467, Article 7.
26.United Nations Yearbook, 1947-1948, 466-467, Article 2.
27.United Nations Yearbook, 1947-1948, 473.
28. Spaight had made this point in a letter in The Spectator, December 20, 1946, in reply to Peter Fleming's observation that the atomic bomb should not be considered "a new low in man's inhumanity to man" because it involved neither prolonged, nor inter-personal, nor personally malicious infliction of suffering. The Spectator, December 13, 1946.
29. Bernard Baruch to John Foster Dulles, October 5, 1948: "The only thing that stands in the way of the over-running of Europe today is the atom bomb. When once we outlaw that, there is nothing to stop the Russian advance." Foreign Relations of the United States, 1948, vol. I, General: The United Nations, part 1, 448-450.
30. The peaceful, industrial strength nuclear explosion, like the military explosion, lives on in men's minds despite fifty years' failure of anyone to contrive one. Daniel T. O'Neill, The Firecracker Boys (New York: St. Martin's, 1994, 1995) tells the story of an American proposal for the Alaskan north slope. It would be interesting to know what the Soviets may have contemplated along these lines.
31. United Nations Yearbook, 1948-1949, 358.
32. United Nations Yearbook, 1951, 174.
33. United Nations Yearbook, 1951, 176.
34. United Nations Yearbook, 1951, 174.
35. United Nations Yearbook, 1951, 173.
36. Alexander N. Sack, "Atomic, Biological, Chemical Warfare in International Law," 10 Lawyers Guild Review (Winter, 1950) 161.
37. Antecedently illegal, naturally illegal, intrinsically illegal, illegal per se, malum per se, malum in se -- all these terms point to the same concept.
38. 10 Lawyers Guild Review, 1950, 161, 170.
39 United Nations Yearbook, 1953, 263.
40. New York Times, April 3, 1954, 1.
41. New York Times, April 3, 1954, 2, col. 8.
42. New York Times, April 3, 1954, 2, col. 3.
43. October 23, 1961, A/C.1/P.V.1174.
44. United Nations Yearbook, 1959, 17-19. India took the precaution of specifically denying an argument that is still heard from time to time: that the ban on new nuclear powers legitimizes those that already exist.
45. United Nations Yearbook, 1961, 26-27.
46. A/PV.1063, November 24, 1961, General Assembly meeting.
47. A/PV.1063, November 24, 1961, page 806.
48. Richard Falk, 59 American Journal of International Law 793.
49. Richard A. Falk, "The Claimants of Hiroshima," The Nation, February 15, 1965, pages 157-161. Falk sheds some light on the cryptic Italian art movie La Dolce Vita, and the suicide of the character Steiner.  In the Italian original Steiner explained his despair with explicit reference to Hiroshima and Nagasaki, Falk tells us.  To protect American sensibilities, the reference was removed from prints sent to the United States. Falk, Ibid., page 158.
50. Richard A. Falk, "The Shimoda Case: A Legal Appraisal of the Atomic Attacks upon Hiroshima and Nagasaki," 59 American Journal of International Law 759-793. See below for yet more tergiversations in the Japanese position.
51. Among the authorities cited were the Draft Rules of Air Warfare of 1923, which were never adopted, so Falk comments that "the formal status of a legal standard may not be very critical to its role as an authoritative basis for decision." Falk, ibid., 771.
52. Can this be true?
53. Even McGeorge Bundy, who believed that at no other time has the world "even come close" to nuclear war, conceded that the Cuban missile crisis was risky. Danger and Survival: Choices About the Bomb in the First Fifty Years (New York: Random House, 1988; Vintage Books, 1990).
54. United Nations Yearbook, 1968, 14-15.
55. Ibid., 22-31.
56. Ibid., 8.
57. E.g., Jonathan Schell, The Fate of the Earth, (New York: Knopf, 1982),which originally ran in The New Yorker.
58. See Elliott L. Meyrowitz, The Prohibition of Nuclear Weapons: The Relevance of International Law (Dobbs Ferry, New York: Transnational Publishers, 1990), 224, note 9.
59. H. Fujita in 3 Kansai University Review of Law and Politics (1982) 57 claims that the American position stiffened from a mid-1950s position that nuclear weapons could be used in retaliation against a nuclear attack to the doctrine that nuclear weapons can be used for any self-defense. But from the very start in the 1940s an American nuclear deterrent was offered against Soviet conventional aggression.
60. Announced June 12, 1978, according to Robert S. McNamara, Blundering into Disaster: Surveying the First Century of the Nuclear Age (New York: Pantheon, 1986), 94.
61. This assurance was given in 1968 and renewed in 1995. See Security Council Resolution 984 (1995), 11 April 1995.
62. Linda Hossie, Toronto Globe and Mail, February 15, 1991, p. A11.
63. Press secretary, Ministry of Foreign Affairs, press conference on June 10, 1994. Transcript supplied by the Japanese embassy in Washington.
64. A/49/PV.90 (1994). The resolution in the First Committee is at A/C.1/49/PV.24 (1994).
65. Written Statement of the Government of the United States of America, June 20, 1995, before the International Court of Justice, on the Request of the General Assembly for an Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, p. 9, not published.
66. Ibid., page 20.
67. "The United States has long taken the position that various principles of the international law of armed conflict would apply to the use of nuclear weapons as well as to other means and methods of warfare." U.S. submission, June 20, 1995, page 21, citing "International Red Cross Conference Resolution XXVIII, 20th International Red Cross Conference (1965)."
68. Some are quoted in paragraph 86. of the ICJ Opinion:

"Restrictions set by the rules applicable to armed conflicts in respect of means and methods of warfare definitely also extend to nuclear weapons" (Russian Federation, CR 95/29, p. 52;)

"So far as the customary law of war is concerned, the United Kingdom has always accepted that the use of nuclear weapons is subject to the general principles of the jus in bello" (United Kingdom, CR 95/34, p. 45;) and


"The United States has long shared the view that the law of armed conflict governs the use of nuclear weapons just as it governs the use of conventional weapons" (United States of America, CR 95/34, p. 85)