“What Lawyers Should be Doing is Strengthening the Law:” The Significance of John Peters Humphrey’s “International Law and the Legality of Nuclear Weapons” Speech

By Emma Noradounkian

Since the atomic bombings of Hiroshima and Nagasaki, the international community has grappled with the issue of legalizing nuclear weapons, and with little success. John Peters Humphrey’s “International Law and the Legality of Nuclear Weapons” speech at the 1987 Canadian Conference on Nuclear Weapons and the Law lays out the parameters of this debate. The significance of his speech lies in its historical context and its contents. Firstly, it presents a variety of legal views, including Humphrey’s, on the legality of nuclear weapons during the nuclear age. This is significant given that lawyers were nearly absent (and shockingly so) from international discussions surrounding this issue up until this Conference.[1] Secondly, this speech is also significant in that Humphrey makes a novel argument. Rather than suggesting, like his legal counterparts, that the illegality of such weapons can be deduced from existing international laws, he proposes the creation of new ones to internationally control the possession and use of such weapons.[2] Underlying Humphrey’s proposition is the assumption that human rights  are playing a catch-up game, nearly forty years after the nuclear devastation of Japan. In codifying novel international rules, not only would these laws control, if not abolish, these weapons, but they would also serve to finally protect the lives and liberties of entire peoples. The right to life was denied to Japanese civilians attacked in Hiroshima and Nagasaki, and yet it is a right enshrined in the Universal Declaration of Human Rights.[3]

Humphrey’s speech was one among many that were presented at the Canadian Conference on Nuclear Weapons and the Law, which was held in Ottawa from June 15 to 18 in 1987. The former International Court of Justice judge Maxwell Cohen and the Canadian Bar Association President Bryan Williams organized the conference with the aim of giving a voice to lawyers, judges, politicians, and activists worldwide on the ambiguous role of the law in the international nuclear debate.[4] In addition to this principle objective, Cohen admits in his Lawyers and the Nuclear Debate that the four-hundredth anniversary of the birth of the “father of international law,” Hugo Grotius, also moved him to establish the Conference.[5]

Humphrey’s speech is significant as it offers a plethora of legal perspectives that were generally absent, or silenced, throughout the Cold War. Despite the bombings of Hiroshima and Nagasaki and the imminent threat of nuclear war, at times, during this period, the question of nuclear legality was mainly entertained by two legal scholars in the late 1950s: Georg Schwarzenberger and Nagendra Singh.[6] Schwarzenberger contended that “in an all-out contest by force between the super-powers,” the use of nuclear weapons was inevitable, regardless of the creation of new laws, while Singh had argued that nuclear weapons were already prohibited under existing international laws of war.[7] Humphrey’s speech, on the other hand, reveals the diverse legal opinions from around the world– including his own–that were not restricted to Schwarzenberger’s pessimism and Singh’s practicality. They emerged from the long period of silence – some drawing correlations to current international laws and others pushing for their reconceptualization.[8]

Humphrey’s speech is also significant in that it represents a new argument in the nuclear debate. Humphrey summarizes the arguments made by other speakers at the Conference, which formed the dominant view at the event.[9] He then states that these lawyers falsely found the illegality of nuclear weapons in the three principle sources of international law: international conventions, international custom, and general principles. In the first instance, Humphrey asserts that no convention prohibiting nuclear weapons had yet to be agreed upon. Secondly, he holds that similar international customs do not exist, as the great nuclear powers behave contrary to such supposed customs.[10] Finally, he concludes that the “generalized principles of law recognized by civilized nations” do not contain rules that forbid the use of nuclear weapons. Even if these sources of law were applicable, Humphrey argues that their analogous interpretation of the legality of such weapons would have weakened international law and, in turn, its legally binding force upon the great powers.[11] In place of this solution, Humphrey offers a unique perspective. He suggests that “what lawyers should be doing is strengthening international law” by agreeing upon and creating new laws that effectively control the international use and possession of nuclear weapons.[12] Only in this manner can lawyers hold a place alongside the leaders of nuclear states in the creation of nuclear arms-control treaties.

Humphrey’s speech is noteworthy because of its historical context and contents. It is significant, as it presents a variety of legal perspectives that were virtually unheard on the issue of nuclear legality during the Cold War. Prior to the Conference, this matter had solely received the attention of two legal figures, Schwarzenberger and Singh, who had, respectively, argued for the ineffectiveness of law in the face of an unavoidable future nuclear war and for the illegality of nuclear weapons under existing laws of war. Humphrey’s speech is also significant, in that he offers a fresh perspective on the issue. He denies the predominant view shared by many of the conference participants that the principle sources of international law outlaw nuclear weapons. Humphrey perceives that such inferences from existing laws as ways weaken international law as a whole. He instead suggests strengthening international law through the creation of entirely new laws that would limit the possession and use of nuclear weapons.

 


[1] Maxwell Cohen and Margaret E. Gouin, Lawyers and the Nuclear Debate: Proceedings of the Canadian Conference on Nuclear Weapons and the Law = Actes De La Conférence Canadienne Sur L’armement Nucléaire Et Le Droit (Ottawa: University of Ottawa Press, 1988), 4.

[2] John Peters Humphrey, “International Law and the Legality of Nuclear Weapons” (speech at the Canadian Conference on Nuclear Weapons and the Law, Ottawa, ON, June 15-18, 1987), 3.

[3] Article 3 of the UDHR indicates that “Everyone has the right to life, liberty and security of person.” “The Universal Declaration of Human Rights,” accessed February 18, 2016, http://www.un.org/en/universal-declaration-human-rights/.

[4] Bruce Torrie,  “Lawyers Confer on How to Make Nuclear Weapons Illegal,” Peace Magazine, August-September 1987, accessed February 15, 2016, http://peacemagazine.org/archive/v03n4p35.htm. Cohen and Gouin, Lawyers and the Nuclear Debate, 1. This nuclear-related global conference was the first of its kind. Cohen and Gouin, Lawyers and the Nuclear Debate, 1. However, it is unclear as to why it took so long to organize such a conference, especially considering that it took place near the end of the Cold War.

[5] Cohen and Gouin, Lawyers and the Nuclear Debate, 1, 371. The Dutch jurist Grotius is infamously known for his 1625 De jure belli ac pacis libri tres (On the Law of War and Peace: Three Books). His work chiefly explores the “just causes” for warring and the appropriate conduct of states in such destructive circumstances. Hugo Grotius, On the Laws of War and Peace (Kitchener: Batoche Books, 2001), 6, 7. He is consequently the principle scholarly authority on the laws of war till this day.  Since nuclear weapons did not exist during Grotius’ time, Cohen contemplated Grotius’ opinions on the legality of these weapons during times of war and hoped to somehow honor his legacy with this Conference. Cohen and Gouin, Lawyers and the Nuclear Debate, 1, 371.

[6] Cohen and Gouin, Lawyers and the Nuclear Debate, 4.The failure to establish laws or at least prompt discussions regarding the duty of the superpowers in possessing such lethal weapons and their ability to fire them thus far into the Cold War is very perplexing, especially considering that the populations of the United States and the Soviet Union were persistently under the threat of lethal nuclear attacks by these opposing sides. Cohen and Gouin, Lawyers and the Nuclear Debate, 342; Torrie,  “Lawyers Confer on How to Make Nuclear Weapons Illegal.”In the case of Americans, the threat of nuclear destruction became very salient when the Soviet Union acquired its launching capability, with the lifting of the Soviet satellite Sputnik in 1957. Cohen and Gouin, Lawyers and the Nuclear Debate, 3.

[7] Georg Schwarzenberger, The Legality of Nuclear Weapons (London: Stevens and Sons, 1958), 58. In essence, Schwarzenberger held that it was be ludicrous to believe that an international lawyer’s opinion on the legality of such weapons would in any way influence the behavior of the great powers. Schwarzenberger The Legality of Nuclear Weapons, 58. Singh, on the other hand, welcomed the creation of laws banning nuclear weapons, but argued that it was unnecessary, “since it would merely prohibit the already prohibited use of nuclear weapons, unless the existing . . .  laws . . . are to be regarded as scraps of paper.” B.S. Chimni, “Nuclear Weapons and International Law: Some Reflections” in International Law in Transition: Essays in Memory of Judge Nagendra Singh, ed. Ramaa Prasad Dhokalia, Singh, Nagendra, and R. S. Pathak (Dordrecht: Martinus Nijhoff, 1992), 140.

[8] Torrie,  “Lawyers Confer on How to Make Nuclear Weapons Illegal.”

[9] Torrie,  “Lawyers Confer on How to Make Nuclear Weapons Illegal.”

[10] That is, for international customs to materialize, states must repeatedly practice the custom that they wish to establish as well as observe opinion juris (i.e. they must feel legally obligated to act in accordance with the behavior in question).

[11] The Attorney General of Canada Ramon Hnatyshyn concurred with Humphrey, similarly arguing that “argument by analogy is not sufficient. . . .to create laws. Nations do not restrain themselves by reasoning from analogy, but only on the basis of precise agreement.” Torrie,  “Lawyers Confer on How to Make Nuclear Weapons Illegal.”

[12] By Humphrey’s logic, if the analogous application of existing laws is equal to the weakening of international law, the opposite of such behavior is the creation of new laws, which would generally strengthen international law.

Comments are closed.

Blog authors are solely responsible for the content of the blogs listed in the directory. Neither the content of these blogs, nor the links to other web sites, are screened, approved, reviewed or endorsed by McGill University. The text and other material on these blogs are the opinion of the specific author and are not statements of advice, opinion, or information of McGill.