Evidence, Commentary, and Judgment

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1.2.4 Supplementary Norms with Legal Force

The United Nations has itself contributed in a variety of respects to the development of international law. General Assembly resolutions have been claimed to have a limited legislative effect under certain conditions of their passage. The UN General Assembly has manifested its concern about the lawful status of nuclear weapons in a long series of widely endorsed resolutions going back to General Assembly Resolution 1603(XVI) which clearly supported the view that threats or uses of nuclear weapons were violations of the UN Charter and constituted Crimes against Humanity. The United States and its NATO allies voted against this and other subsequent resolutions on this subject matter. Does their opposition undermine or erode the legal force of General Assembly efforts in this area?

A closely related concern involves the status of initiating use of nuclear weapons. Both the Soviet Union and China made in 1981, a unilateral and unconditional commitment never to use nuclear weapons first. The Western nuclear powers have not acceded in any formal way to this no-first-use position. What status the no first use position has in contemporary international law is an important issue for this Tribunal to examine.

Natural law criteria of state behaviour are also applicable through a continued reliance on the de Martens Clause, and its invocation of the "laws of humanity" and "the dictates of the public conscience". Such a moral outreach within international law makes it important and entirely appropriate to consider for legal relevance the great variety of statements by religious bodies describing their urgent concern and supporting reasoning about the irreconcilability of current doctrines pertaining to the use of nuclear weapons and the dictates of public conscience. Such an assessment is reinforced by a growing number of independent experts lending their professional judgment to the view that current policies of nuclear weapons states violate international law in flagrant and serious ways and to varying degrees. Such materials by religious bodies or international jurists are not law as such, but evidence as to the content of law, especially given the legal duty by governments to respect the dictates of public conscience in their war-making activities.

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© 1985-2005 Geoffrey Darnton. All rights reserved.