Abstract
In the face of the failure of disarmament efforts under the auspices of the United Nations so far to yield any results, Ethiopia, together with seven other Members of the United Nations, proposed at the fifteenth session that the Assembly adopt a declaration prohibiting the use of nuclear and thermo-nuclear weapons.1 As explained by the Ethiopian representative, the draft declaration was not designed as a substitute for the guiding principles which the Assembly should furnish the disarmament negotiating committee. Its adoption would be a modest step towards the ultimate goal of disarmament.2 No action was taken on the proposal by the Assembly. At the sixteenth session, the proposal was resubmitted by twelve Member states.3 It was approved by the First Committee and adopted by the Assembly4 not without some serious objections. With the exception of the USSR, the big powers voted against its adoption.
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U.N. Doc. A/G.1/L.254. Three other Members joined later as co-sponsors, U.N. Doc. A/C.l/L.254/Add. 1, and Add. 2 and 3.
U.N Gen. Ass. Off. Rec. 15th Sess., 1st Comm. 86 (A/C.l/SR.1098) (1960).
U.N Gen. Ass. Off. Rec. 16th Sess., Annexes, Agenda Item Nos. 72 & 73, at 13 (A/G.1/L. 292 and Add. 1-3).
G.A. resolution 1653 (XVI), 24 November 1961. The voting was 55 in favor, 20 against, and 26 abstaining.
The relevant paragraphs read: Recalling that the use of weapons of mass destruction, causing unnecessary human suffering, was in the past prohibited, as being contrary to the laws of humanity and to the principles of international law, by international declarations and binding agreements, such as the Declaration of St. Petersburg of 1868, the Declaration of the Brussels Conference of 1874 the Conventions of the Hague Peace Conferences of 1899 and 1907, and the Geneva Protocol of 1925, to which the majority of nations are still parties, Considering that the use of nuclear and thermo-nuclear weapons would bring about indiscriminate suffering and destruction to mankind and civilization to an even greater extent than the use of those weapons declared by the aforementioned international declarations and agreements to be contrary to the laws of humanity and a crime under international law, Believing that the use of weapons of mass destruction, such as nuclear and thermo-nuclear weapons, is a direct negation of the high ideals and objectives which the United Nations has been established to achieve through the protection of succeeding generations from the scourge of war and through the preservation of succeeding generations and promotion of their cultures, 1. Declares that: (a) The use of nuclear and thermo-nuclear 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) The use of nuclear and thermo-nuclear weapons would exceed even the scope of war and cause indiscriminate suffering and destruction to mankind and civilization, and, as such, is contrary to the rules of international law and to the laws of humanity; (c) The use of nuclear and thermo-nuclear weapons is a war directed not against an enemy or enemies alone but also against mankind in general, since the peoples of the world not involved in such a war will be subjected to all the evils generated by the use of such weapons; (d) Any State using nuclear and thermo-nuclear weapons is to be considered as violating the Charter of the United Nations, as acting contrary to the laws of humanity and as commiting a crime against mankind and civilization;”
For text of the treaty, see 57 Am. J. Int’l L. 1026 (1963).
II Oppenheim, International Law 348 (8th ed. Lauterpacht 1955). For similar language, see Singh, Nuclear Weapons and International Law 17-19 (1959).
For references, see Schwarzenberger, The Legality of Nuclear Weapons 7-9 (1958). In the Corfu Channel Case (Merits), the Court stated one of the sources of the obligation incumbent upon Albania to warn of the existence of minefields in her territorial waters and the danger to which the British ships were exposed as “well-recognized principles, namely, elementary considerations of humanity…” (1949) I.C.J. Rep. 22.
See, for instance, Singh, op. cit. supra note 7, at 64. He says: “In fact, it is the principle of humanity coupled with that of chivalry which has furnished the raison d’être of both conventional and customary laws of war…” But see, McDougal, M. S. and Schlei, “The Hydrogen Bomb Tests in Perspective: Lawful Measures for Security,” 64 Yale L. J. 689 (1955). They refer to the fundamental policy underlying conventional prohibition of the use of certain weapons in warfare and the laws of war generally as minimum destruction of values, i.e., balancing “military necessity” for “legitimate objectives” against “humanitarianism” and the “disproportionate or irrelevant destruction of values.”
Schwarzenberger, op. cit. supra note 8, at 7.
See also Operative paragraph 1a, supra note S.
See infra dit 106.
Oppenheim, op. cit. supra note 7, at 349; see also Singh, op. cit. supra note 7, at 92-107.
U.N. Gen. Ass. Off. Rec. 15th Sess., 1st Comm. 86. (A/C.1/SR.1098) (1960).
See preambular para. 4 and operative para. 1c.
Schwarzenberger, op. cit. supra note 8, at 15.
See generally, Singh, op. cit. supra note 7, at 167-173; Oppenheim, op. cit… supra note 7, Part II Chapter III.
Schwarzenberger, op. cit. supra note 8, at 18.
See Christian Damson v. Germany (U.S. — German Mixed Claims Commission) 7 U.N. Rep. Int’l Arb. Awards 184 (1925).
Schwarzenberger, op. cit. supra note 8, at 21-22.
See also Schwarzenberger, op. cit. supra note 8, at 22; Oppenheim, op. cit. supra note 7, at 205-208. Preambular paragraph 6 and operative paragraph 1c are relevant in this respect. For the texts see note 5.
Singh, op. cit. supra note 7, at 147-154. The author, however, appears to regard the use of “tactical nuclear weapons” as not infringing upon these rules. For qualified claims see Oppenheim, op. cit. supra note 7, at 348.
Schwarzenberger, op. cit. supra note 8, at 37.
Oppenheim, op. cit. supra note 7, at 342.
Schwarzenberger, op. cit. supra note 8, at 37.
Id., at 38.
Id., at 26-38; Oppenheim, op. cit. supra note 7, at 348.
Singh, op. cit. supra note 7, at 155-166.
Report of the UN Scientific Committee on Effects of Atomic Radiation, U.N. Gen. Ass. Of. Rec. 13th Sess., Supp. No. 17 (A/3838) (1958).
Schwarzenberger, op. cit. supra note 8, at 28.
Singh, op. cit. supra note 7, at 157.
E.g. U.S.A., U.N. Gen. Ass. Off. Rec. 16th Sess., Plenary 797 (A/PV.1063) (1961).
McDougal, M. S. and Schlei, op. cit. supra note 9, at 689; See also France, U.N. Gen. Ass. Off. Rec. 16th Sess., 1st Comm. 158 (A/C.l/SR. 1193) (1961).
Ethiopia, U.N Gen. Ass. Off. Rec. 16th Sess., 1st Comm. 151 (A/C.1/SR.1191) (1961) 8; Ibid, 1st Comm. 86 (A/C. 1/SR.1098) (1960). See also Draper, “The Legal Limitations Upon the Employment of Weapons by the United Nations Force in the Congo,” 12 Int’l& Comp.L.Q. 408 (1963).
Singh, op. cit. supra note 7, at 155; Schwarzenberger, op. cit. supra note 8, at 35, 38. Oppenheim regards Article 23 of the Hague Regulations prohibiting the use of poison, etc., as expressing customary rules of international law. He also states that the Hague Declaration of July 29, 1899 stipulating that signatory powers should abstain from the use in war of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases gives expression to the customary rules prohibiting the use of poison and of material causing unnecessary suffering. Both these rules were formally enacted in Articles 23(a) and 23(e) of the Hague Regulations. He states further, with regard to the tendency to universality in the prohibition of chemical warfare, that “the cumulative effect of customary law and of the existing instruments having binding force … is probably to render such prohibition legally effective upon practically all states.” Oppenheim, op. cit. supra note 7, at 344. Nevertheless, he points out that there is some controversy both as to the decisive relevance of consider ations of humanity in warfare and the possibility of recourse to atomic weapons against objectives in relation to which such considerations would not be relevant. “For these reasons it is difficult to express a clear view as to whether an explicit prohibition of the use of the atomic weapon in warfare would be merely declaratory of existing principles of International Law.” Id., at 351.
Preambular paragraph 7 and operative paragraph 1a & d, see note 5 supra 101-102.
In this regard reliance is placed upon the case of the Caroline, VII Moore, Digest of International Law 919 (1906).
Denmark, U.N.Gen. Ass. Of. Rec. 16th Sess., 1st Comm. 161 (A/C.1/SR.1193) (1961); Spain, Ibid., U.K., Id., 1st Comm. 145 (A/C.1/SR.1190); U.S.A., Id., Plenary 797 (A/PV. 1063) (1961).
Afghanistan, U.N.Gen. Ass. Off.Rec. 16th Sess., 1st Comm. 159 (A/C.1/SR.1193) (1961); Cyprus, Id., 1st Comm. 165 (A/C.1/SR.1194) (1961); Ethiopia, Id. 15th Sess., 1st Comm. 86 (A/C.1/SR.1098) (1960); India, Id. 16th Sess., 1st Comm. 156 (A/C.1/SR.1192) (1961); Tunisia, Id., 1st Comm. 153 (A/C.1/SR.1191) (1961); Venezuela, Id., 1st Comm. 162 (A/C.1/SR.1193) (1961).
USSR, U.N. Gen. Ass. Off. Rec. 16th Sess., Plenary 800 (A/PV.1063) (1961); also Id., lst Comm. 160 (A/C.l/SR.l 193) (1961).
Ethiopia, U.N. Gen. Ass. Off. Rec. 16th Sess., 1st Comm. 141 (A/C.l/SR.l 189) (1961).
U.N. Gen. Ass. Off. Rec. 16th Sess., Annexes, Agenda Items 72 & 73, at 13 (VIII) (A/C.1/L.295).
See, e.g., Afghanistan, U.N. Gen. Ass. Off. Rec. 16th Sess., 1st Comm. 159 (A/C.l/SR. 1193) (1961); Tunisia, Id., 1st Comm. 159 (A/C.l/SR.l 193) (1961).
See, e.g., Schwarzenberger, op. cit. supra note 8, at 57-61.
Oppenheim, op. cit. supra note 9, at 351. McDougal and Schlei, op. cit. supra note 9, at 688; Schwarzenberger, op. cit. supra note 8, at 40.
McDougal and Schlei, op. cit. supra note 9, at 689-690.
Oppenheim, op. cit. supra note 7, at 351.
Id., at 351 note 2. A variation of this theme is the justification for the use of the weapons in defense of human dignity — see McDougal and Schlei, op. cit. supra note 9, at 689-690. In their words: “It is not necessarily a mark of moral superiority, but perhaps rather of suicidal arrogance, to suggest that no possible uses of the hydrogen bomb could conceivable be within the scope of‘military necessity’ for objectives legitimate by standards of respect for human dignity… “It is not the particular physical modality of destruction that is relevant to law and policy but rather the purposes and the effects of the destruction and the relation of these purposes and effects to the values of a free world society.”
Oppenheim, op. cit. supra note 7, at 56.
The Hostages Trial, (1948) Ann. Dig. 632, 642 (No. 215); Naulilaa Case 2 U.N. Rep. Int’l Arb. Awards 1028 (1928).
Singh, op. cit. supra note 7, at 220-223.
Schwarzenberger, op. cit. supra note 8, at 41.
The Hostages Trial, supra note 50. The German High Command Trial, (1948) Ann. Dig. 376 (No. 119). In re Krupp & others, (1948) Ann. Dig. 620-628 (No. 214).
Schwarzenberger, op. cit. supra note 8, at 42.
See Re Thiele and Steinert, decided by the U.S. Military Commission in 1945 in which the plea failed on a charge involving the killing of a wounded U.S. officer taken prisoner by troops under the command of Thiele. (1946) Ann. Dig. 305 (No. 128).
Schwarzenberger, op. cit. supra note 8, at 41-42.
U.N. Gen. Ass. Off. Rec. 16th Sess., 1st Comm. 153 (A/C.1/SR.1191) (1961).
U.N. Gen. Ass. Off. Rec. 16th Sess., 1st Comm. 160 (A/C.l/SR.1193) (1961).
U.N. Gen. Ass. Off. Rec. 16th Sess., 1st Comm. 158 (A/C.l/SR.l193) (1960).
U.N. Gen. Ass. Off. Rec. 16th Sess., 1st Comm. 146 (A/C.l/SR.l190) (1961).
Ethiopia, U.N. Gen. Ass. Off. Rec. 15th Sess., 1st Comm. 86 (A/C.1/SR.1098) (1961).
Schwelb, “The Nuclear Test Ban Treaty and International Law,” 58 Am. J. int’l L. 646 (1964).
Oppenheim, op. cit. supra note 7, at 348.
For similar views, see Stone, Legal Controls of International Conflict 343 (1954).
It stated in preambular paragraph 2 and 3 that: “The General Assembly, Mindful of its responsibility under the Charter of the United Nations in the maintenance of international peace and security, as well as in the consideration of principles governing disarmament. Gravely concerned that, while negotiations on disarmament have not so far achieved satisfactory results, the armaments race, particularly in the nuclear and thermo-nuclear fields, has reached a dangerous stage requiring all possible precautionary measures to protect humanity and civilization from the hazard of nuclear and thermo-nuclear catastrophe.”
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© 1966 Martinus Nijhoff, The Hague, Netherlands
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Asamoah, O.Y. (1966). The Declaration on the Prohibition of the Use of Nuclear and Thermo-Nuclear Weapons. In: The Legal Significance of the Declarations of the General Assembly of the United Nations. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-9495-2_10
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