Vol. 8 No. 4 (April 1998) pp. 200-202.

THE CASE AGAINST THE BOMB: MARSHALL ISLANDS, SAMOA, AND SOLOMON ISLANDS BEFORE THE INTERNATIONAL COURT OF JUSTICE IN ADVISORY PROCEEDINGS ON THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS by Roger S. Clark and Madeleine Sann (Editors). New Jersey: Rutgers University School of Law, 1996. 354 pp. Paper $20.00 ISBN: 0-9655578-0-4.

Reviewed by Anna L. Hadley, Department of Political Science, University of New Mexico.

Few political issues are packed with as much emotional energy and moral importance as nuclear weapons. The morality and legality of their possession, let alone use, has been a salient question for many states for decades, but even more so for those directly affected by testing. It was not until November 1995, however, that the question of the legality of the threat or use of nuclear weapons was brought before a court of law. Roger S. Clark, counsel to Samoa, and Madeleine Sann provide this book as a record of that appearance before the International Court of Justice in the United Nations (heretofore referred to as "the Court").

The book's purpose is clearly stated at the outset, seeking to record a historical case, maybe one of the most important ever brought before the Court. The perspective of the authors is consequential too, however. Clark, as counsel to Samoa, speaks in the first person in the introduction, expressing his vested interest in the outcome of the case. He is disappointed with some aspects of the findings, but content with getting more from the Court in the form of a decision of illegality than anyone expected, and exhibiting a certain amount of pride in the performance of the island states in both their written and oral testimony. Even through this perspective, THE CASE AGAINST THE BOMB is an outstanding book for those interested in the legal aspects of nuclear weapons, whether they support such weapons or not. As the title suggests, however, one should not expect extensive presentation of the arguments supporting the legality of the threat or use of nuclear weapons.

Clark and Sann begin the book with an introduction outlining the process of application to the Court, the relevant questions and the judgment brought down by the Court. Important here is the rationale behind the Court's decision to decline the World Health Organization's (WHO) request for an advisory opinion, while accepting the General Assembly's (GA). Clark and Sann point out two important causes for the ruling, one of only two advisory opinion requests ever to be refused: (1) WHO failed to convince the court of the relevance of the question to the functionality of WHO and therefore its competence to bring the question; and (2) the WHO did not address the legality of the weapons in reference to relevant international law regarding armed conflict. The General Assembly, on the other hand, was found competent to address the question and framed it in reference to relevant legal precedents.

Another point brought out by the introductory discussion was that the question brought before the Court was not addressing the possession of nuclear weapons, as many General Assembly resolutions and the NonProliferation Treaty (NPT) do. Instead, the question addressed the threat or use of nuclear weapons. Indeed, this was a very intelligent decision since questioning the possession of nuclear weapons would have been a difficult legal argument, as states have possessed these weapons for the past 50 years. Even the NPT allows the present possession of nuclear weapons and only insists on good faith negotiations for future disarmament.

The second chapter consists of the Solomon Islands' written observations on the WHO request, a request, which Clark is disappointed, was not granted. The WHO's justification for requesting the opinion is based on the connection between the use of nuclear weapons and the impact on world health, as well as the resulting efforts the WHO must make in the forms of preparation. Clark argues that the WHO question was worded more clearly than the GA question, and from a legal perspective more carefully drafted and better focused. As he later observes, however, the Court saw the most pertinent issue the law of armed conflict (p.20) and since the WHO did not address this aspect, the Court did not find a compelling reason to grant the opinion.

The written observations of the Marshall Islands, Somoa, and Solomon Islands regarding the GA request compose the next three chapters. The Solomon Islands provided the most extensive and detailed written observations, detailed almost to the point of tedium in fact. In any case, placing these after the WHO observations provides a powerful point of comparison for why the Court would accept the GA's request but not the WHO's. The strongest distinguishing characteristics were (1) the argument of the GA's competence, and (2) the use of international law regarding armed conflict. The most important differentiating factor in the GA's competence argument was a strong precedence in the consideration of the legality of the use of nuclear weapons. As for legal arguments, the Solomon Islands chronicle one after another the relevant laws of armed conflict and how the use of nuclear weapons is in violation of them. In all, the arguments put forth are convincing, thorough and persuasive.

The next set of chapters is comprised of a variety of oral presentations by members of the Somoa, Marshall Islands and Solomon Islands delegations. The presentations are well-organized and provide the reader with a deeper understanding of a wide variety of issues, including the interests of the island states, issues of competence and propriety, issues on the applicable law and sources of law, impact of use on states and its implications for future use, and moving personal experiences. While the legal arguments are compelling, it is Lijon Eknilang's story of her experiences on the Rongelap Atoll (Marshall Islands) that captures the emotions of the reader. Her testimony is clear, while at the same time horrifying, recounting radioactive fall-out and the devastation it brought to their civilization.

The final chapters consist of the questions posed by the Court, the answers submitted jointly by the Marshall Islands, Samoa, and the Solomon Islands and the Court's findings. A particularly important question submitted by one of the justices addressed France's position that their possession of nuclear weapons had contributed to the "maintenance and stability of world peace" (p. 298). The delegations answer included the insightful comment that, "political scientists disagree about the real impact of the policy of deterrence on world peace and stability, and the question is hardly one which the Court as a judicial body can resolve" (p. 298).

The findings include short discussions of each of the relevant legal aspects of the case, such as the UN Charter, the proportionality principle, different international conventions and treaties addressing weapons of mass destruction and armed conflict more generally, and environmental and human rights law. A particularly important and interesting part of the discussion for political scientists is found in their examination of deterrence. Some states argued that possession of nuclear weapons was an unlawful threat to use force because deterrence requires a credible threat of use. The Court agreed that if the threat or use of a nuclear weapon was illegal then deterrence would be also (p. 329). As is seen below, however, the complete illegality of the threat or use could not be determined.

The Court agreed unanimously that a specific authorization of the threat or use of nuclear weapons does not exist in international law and agreed by eleven votes to three that neither does a comprehensive or universal prohibition. They found unanimously that any threat or use of nuclear weapons must not violate Article 2, paragraph 4 of the UN Charter and must fulfill the requirements of Article 51 in addition to being compatible with all the requirements of international law applicable in armed conflict. By seven votes to seven, the Court found that the threat or use of nuclear weapons would generally be contrary to international law, but could not conclude definitively whether the threat or use would be lawful or unlawful in an "extreme circumstance of self-defence, in which the very survival of a State would be at stake" (p. 354). As such, deterrence could not be illegal since in extreme circumstances of defense, use might be legal. The Court's final finding was a unanimous statement of obligation of all states to bring to a conclusion negotiations leading to nuclear disarmament.

Clark and Sann provide a coherent, informative account of an important milestone in the relationship between nuclear weapons and international law. The Court, with assistance from participating countries provides a rigorous investigation into how the use of nuclear weapons fits into the rubric of international law. Clark hopes that this finding will encourage states to conclude complete disarmament negotiations sooner, rather than later (p. 29). It is at best unclear whether the Court's ruling will have any such impact on the states themselves. What is more clear, however, is that this book provides the public with legal as well as moral arguments for the destruction of nuclear weapons. As such, it is provocative and necessary reading for anyone interested in the issue of nuclear weapons, including laypeople, political scientists, lawyers, and policymakers. With the help of this account, THE CASE AGAINST THE BOMB will certainly find its place in history.
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