The project of understanding how norms originate in the international system is critical from different perspectives. My effort in this study has been to participate in an ongoing debate between Realists and Constructivists on norm creation.1 While the focus here is primarily confined to the origin of norms, it is important to recognize that differences regarding the efficacy of norms on state behaviour also animate both Realism and Constructivism. While the Realist is less inclined to believe that norms impact on state conduct across issue areas, the Constructivist privileges ideational influences over purely material explanations.
The realist complacency about the origin of the norms stems from a belief in the exclusive dominion of major powers over most of international politics. I argue that a Constructivist account is much more valuable in evaluating the sources of norm emergence. The disdain for norms in the Realist theoretical framework emerges not from a refusal to acknowledge their presence in the international system but rather from the potential for their subversion by major powers in the service of direct material interests. Such an evaluation is especially made in the context of classical high politics arenas. It is the issue of norm compliance, which appears most problematic from the Realist point of view. The genesis of norms as a reflection of major power interests is a settled question as far as Realists are concerned.
Constructivists however are unwilling to see norm emergence as merely another story of major powers registering their interests over a certain issue area. They concentrate, rather, on the manner in which a certain norm comes into existence over a long duration of time and eventually alters the way we conceive of the issue-area in which the norm makes its presence felt. The norm that is arrived at is not necessarily consistent with all major power interests. The July 1996 Advisory Opinion of the Court on nuclear threat or use is another instance of this phenomenon. Much to the chagrin of the NWSs, the Court did respond to the request made by the UNGA and also cast the issue ultimately in the language of illegality. An initiative on these lines was not going to be made by any of the major powers or the NWSs in this context.
It is also appears increasingly clear that major powers tend in the interests of political correctness to invoke these norms at various moments in their national and international engagements.2 What is perhaps critical about the issue of nuclear threat or use is that NWSs today cannot completely ignore the fact of the July Opinion however much they may be tempted to. Either by way of agreement or disagreement, the July Opinion becomes the referent for all future thinking on the international legal status of nuclear threat or use.3
Another important dimension relating to norm creation is the contestation by various actors in the international system besides the major powers. This phenomenon is again illustrated in the case of the July 1996 advisory opinion of the International Court of Justice (ICJ) on the legality of nuclear threat or use. What was particularly glaring in the context of the July Opinion was the extent of non-state actor involvement along with small South Pacific states and middle powers in securing a response from the Court on the legality of nuclear threat or use.4 While a Neo-Realist like Waltz would concede partially at least the role of non-state actors in the international system, the accent will however be clearly pivoted on major states. Such an exclusive focus is unlikely to yield insight into how the norm of “general illegality” came into place. The role of individual international lawyers and physicians in creating a climate for the eventual consideration of the question in July 1996 must be taken into any history of the origins of the Opinion. These factors necessitate a closer study of the elements that compose a politics of norm creation way beyond standard Realist prescription. An inquiry along these lines also leads one to acknowledge the role of timing as essential to the success of the World Court Project. A combination of factors came together at an appropriate political juncture to increase the likelihood of norm creation.
I have, during the course of the book, drawn on existing scholarship that has demonstrated how the idea of nuclear delegitimization has a life dating back to Hiroshima and Nagasaki. It however took over fifty years before this idea found legal consideration from the premier judicial organ in the world. The end of the Cold War appears to have made a decisive influence in terms of the receptivity of the Court to the question. This is not, however, to suggest that the major powers were willing to concede ground on this issue more easily after the end of the Cold War. The oral presentations and written submissions made by the nuclear weapon states (NWSs) are proof of their unease with the idea of legally evaluating nuclear threat or use as late as the 1990s. The end of the Cold War did, though, provide an opportunity to the campaigners to internationalize the issue more effectively for the first time.
Second, the book consciously also seeks to unearth the political lineage of an international legal development. I have sought to emphasize the efforts made in the past to establish restraints over the use of force. Judge Christopher Gregory Weeramantry brings urgent attention to the multicultural resources around the world, which show us thinking on ethics and war far before modern international law.5 In more recent times, the Hague Conventions and the Geneva Protocol are cited as landmark precursors in the history of efforts to humanize modern warfare. A series of arms control agreements have also been established in the past that have banned testing in outer space, the seas and the atmosphere.
What is significant is that none of these arms control measures came about in a manner similar to that of the July Opinion. In most other instances, at least one major power was involved in an initiative to change the status quo and bring a certain degree of restraint to modern warfare. This was not the case in the run up to the July Opinion. In fact, the processes leading up to the opinion reveals the United States, Great Britain, France and Russia making their displeasure evident in their submissions. China was a quiet spectator and did not add overtly to the resistance of the global nuclear establishment.6
Third, the study takes into account constraints stemming from past influences obstructing a genuinely inclusive and fair consideration of the question. I have sought to draw attention to the original moorings of contemporary international law as also the differences of perception with regard to the proper scope of the advisory function and the reception accorded to the Court's broadening international mandate.7 Antony Anghie's reading of the production of “universality” in contemporary international law reveals all the tensions inherent in the international law of yore.8 Not very long ago, colonialism had been aided by an international legal ethic that was largely Eurocentric and dismissive of non-sovereign peoples around the world.9 It was only after the waves of decolonization that international law became more receptive to difference and began a widening process of inclusion as opposed to the exclusionary practices of the not very distant past. This is a process that is still going on and is best reflected in the tension between claims to equity as the guiding principle on which international law must be based in marked contrast to Stephen M. Schwebel's directive to the Court to respect material power in the international system.10 The compact between legal positivism with its deference to state practice and Realism in international relations with its emphasis on state centrality made it difficult for the Court to totally disregard the perceptions of the major powers.11 It is here that the credibility of the Court appears to have played on the minds of judges.12
Finally, with regard to the advisory scope of the Court, traditional scholars like Shabtai Rosenne were critical of the Court addressing the UNGA request on nuclear threat or use.13 Their contention was that the advisory function was limited to resolving concrete disputes and not abstract or general questions. However, other authorities like Michla Pomerance and Paul C. Szaz have a broader understanding of the advisory scope that acknowledge the Court's right to address questions of a more general nature as well.14 The Court in its July 1996 Opinion veered towards a broader interpretation of its advisory scope when it came to the UNGA request, although it appeared to have relied on a more limited interpretation when it came to an earlier WHO request. The international community stands to gain from a more liberal interpretation of the advisory function in the future. Legal norms have a different resonance from the quotidian norms of social life and this makes it all the more vital from the point of view of an enabling politics especially in realms like nuclear politics which are extremely resistant to change. International law could however also turn out to be an ally of the nuclear status quo and this has indeed happened in the past.15 However, July 1996 was different from the very start. It represented a transmutation of standard Realist expectations in the very possibility that the Court would be pronouncing on a subject like nuclear threat or use hitherto considered exclusively a matter of sovereign discretion by all NWSs.
What is the current standing of the opinion? The opinion continues to be studied closely by members who were actively involved in the World Court Project. On October 19, 1999, a Draft Resolution specifically titled “Follow-Up to the ICJ Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons” was presented in the United Nations. It stated clearly the need “for the intensification of … efforts to accelerate the significant reduction of nuclear weapons arsenals.”16 Most importantly it reiterated “once again the unanimous conclusion of the International Court of Justice that there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”17 Mention must also be made in this context of a resolution (numbered 82) on advancing the cause of nuclear disarmament submitted in the US House of Representatives on February 24, 1999. Also christened as the Woolsey resolution, it reaffirms the importance of nuclear disarmament and argues from the US point of view that “the only security from the threat of nuclear weapons is their elimination under strict and effective international control.”18
Another important dimensions related to the Opinion is its more recent invocations by domestic courts in NATO states.19 Such a development needs to be highlighted, as quite evidently “there is an underlying political and jurisprudential strategy that the opinion, when used in domestic courts, supports, buttresses and helps formulate the international law principle of illegality.”20 These cases have been addressing anti-nuclear civil resistance in different areas. The Lawyers Committee on Nuclear Policy, which maintains a database on these cases, attests to at least “six cases in which the defendants have been acquitted on all charges.”21 Two of these were in England, a similar two in Scotland, while single cases of acquittal were reported both in the United States and France.22 There have been sixteen convictions in similar cases as well. According to one account “[t]he international law justification for non-violent direct action against nuclear weapons has two basic components: (a) condemnation of current policy as contrary to the requirements of international law; and (b) vindication of protest as a proper means of upholding these requirements.”23 It has been argued in this context that these developments augur well for the long-term acceptance of the ICJ Opinion both nationally and internationally. Further, they are seen as useful precursors to “moving the principle of illegality of nuclear weapons from soft law to hard law.”24
It is not hard to fathom the sense of disbelief that must have greeted the initial advocates of the idea of deligitimizing nuclear threat or use fifty years ago. However, the July 1996 Opinion reflects the translation of this aspiration into reality. In the light of the heavy resistance by the NWSs, the influential compact between Legal Positivism and international relations Realism, and attempt to narrowly restrict the advisory scope of the Court, the finding of “general illegality” may well be regarded as a relative success. For all those who claim that reality is given and must be treated as axiomatic in certain realms, the ICJ Advisory Opinion is a useful reminder that we can scarcely afford to be complacent with regard to the emergence of new norms in international society. These may be evident in areas where one least expects them such as questions of nuclear threat or use, which will no longer have the same resonance as prior to July 1996.