Abstract
The International Court of Justice (ICJ) advisory opinion on the Legality of the Threat or Use of Nuclear Weapons in 1996 was a landmark case because, for the first time in history, the legal aspect of nuclear weapons was addressed. The decision has evoked controversies regarding the Court’s conclusion, the legal status of international humanitarian law in relation to nuclear weapons, and a newly introduced concept of state survival. While much legal scholarship discusses and criticizes the legal significance of the opinion, there has not been enough scholarship examining the Court’s specific choice of words and concepts that sustain its wider ideological and political position in the opinion. The paper argues that the Court’s vague and controversial logic is attributed to its confrontation with two international orders/codes: the legal order (or international law) and the political order (or state practice). The paper engages in legal semiotics as methodology to decode legal text and discover a deep structure that sustains networks of codes, according to which text is interpreted. Through the semiotic examination of three sets of key concepts (1) “permitted” and “prohibited,” (2) “threat of use” and “possession of the weapon,” and (3) “state survival,” the paper shows the ICJ’s confrontation with two orders/codes and eventual prioritization of the political order over the international legal order. The analysis of the opinion based on legal semiotics indicates an intimate and inseparable relationship between state practice and international law, which must be disentangled for the sake of the rule of law.
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Notes
As Eco argues, “[s]emiotics is concerned with everything that can be taken as a sign. A sign is everything which can be taken as significantly substituting for something else” [8, p 7].
Tiefenbrun nicely defines the purpose of legal semiotics as to “attempt to identify, classify, and describe in a systematic fashion, and in standard language, modes of signification present in legal discourse that give rise to interpretation.” Tiefenbrun [21], 96.
Legal semiotics encourages readers to engage in texts regardless of their age. “Reading legal texts in a semiotic mode tells us, that lawyers do not need new texts or a new and modernized language, but they should unfold a deeper and often different angle on understanding their texts as a central issue of their profession” Broekman, [3], 20.
For example, see Tiefenbrun, “Legal Semiotics” [23].
According to Anastassov, under international humanitarian law, there are seven references for the principles of proportionality and necessity. Anastassov [1], 69–70.
The term refers to the belief that a certain action was conducted because it was a legal obligation.
This means that the “prohibited” question in turn embraces “assumed legality.” Therefore, the burden of proof is to illegalize the weapons; otherwise, the weapons are legal (See ASSUMPTION B).
Emphasis added by the author.
Whether international humanitarian law is part of jus cogens is still debatable. While the Court avoided making remarks on it, Judge Bedjaoui considered the law as jus cogens, and Judge Guillame pointed out that this rule was absolute. See Werksman and Khalastchi [24] (international humanitarian law is included in jus cogens); Nieto-Navia [15] (a categorical study demonstrates that the entire international humanitarian law is not included in jus cogens.).
Segal well articulates this point: “the theory of deterrence implies that it is the existence of nuclear weapons that has insured peace so far and will do so in the future. ‘They are too terrible’, it is said, ‘Nobody would be mad enough to use them.’” Segal [19], 36.
Emphasis added by the author.
Dinstein interprets the Opinion’s hierarchical understanding of use and threat to use (if the use of force is illegal, the threat to use the force is illegal) as follows: “If a State declares its readiness to use force in conformity with the Charter, this is not an illegal ‘threat’ but a legitimate warning and reminder.” Dinstein [6], 86.
Judicial globalization is defined as “diverse and messy process[es] of judicial interaction across, above, and below borders, exchanging ideas and cooperating in cases involving national as much as international law.” Slaughter [21], 1104.
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Teraoka, T. A Court as the Process of Signification: Legal Semiotics of the International Court of Justice Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. Int J Semiot Law 30, 115–127 (2017). https://doi.org/10.1007/s11196-016-9484-7
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DOI: https://doi.org/10.1007/s11196-016-9484-7