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Thursday, 2 June 1994
Page: 1206


Senator MARGETTS —My question is directed to the Minister for Foreign Affairs. I refer him to a speech made in the other place on 30 May 1994 by the honourable member for Moreton, Mr Gibson, who claimed that the minister, in a letter dated 4 May 1994, supports so-called stable deterrence. I ask the minister: firstly, did his party colleague in the other place correctly represent his views? If not, how was he misrepresented? Secondly, how does the government see stable nuclear deterrence operating in the post-Cold War world, especially in light of the Russian and American decisions to stop targeting each other with nuclear weapons? Thirdly, has the government submitted, or will it be submitting, to the World Court a statement on the legal status of nuclear weapons? Will the minister table in the Senate a copy of any such statement? If not, why not? Fourthly, will he also table the letter referred to by his colleague in the other place? If not, why not?


Senator GARETH EVANS —I am very happy indeed to seek leave to incorporate in Hansard that particular letter to my colleague Garrie Gibson to which Senator Margetts refers. I am particularly pleased to do so because the paragraph of that letter referring to stable deterrence makes very clear that our support for that principle is only in the context of managing the nuclear weapon situation until such time as absolute disarmament is achieved. It is something which remains very much our objective. The passage of the letter beginning `In order to manage the possession but non-use of these weapons' to the end of that paragraph in the document, which I seek leave to incorporate, makes that position very clear.

  Leave granted.

  The letter read as follows:

4 May 1994

Mr Garrie Gibson, MP

Member for Moreton

PGA Australian Parliamentary Group

Parliament

CANBERRA ACT 2600

Dear Garrie,

Thank you for your letter dated 24 March 1994 concerning the World Court Project on the illegality of nuclear weapons.

As you are aware, this government is completely committed to nuclear disarmament and non-proliferation. Australia is amongst the most active countries internationally in promoting these objectives. Apart from our strong support and encouragement for nuclear disarmament negotiations (including the unilateral and bilateral agreements of the recent past between the United States and Russia), we are actively involved in strengthening and extending indefinitely the Nuclear Non-Proliferation Treaty (NPT) and are taking a leading role in the conclusion of a Comprehensive Test Ban Treaty. We are seeking agreement on arrangements against the use of nuclear weapons (Negative Security Assurances) and on the conclusion of a Convention providing for the cut-off of the production of fissionable material for weapons purposes.

Given our strong commitment to nuclear disarmament, evidenced by our promotion of these practical measures, it will come as no surprise that the Government and I, personally, understand very well

the motivation of the proponents in calling for an advisory opinion on the legality of the use or threat of use of nuclear weapons by the International Court of Justice (ICJ). There are, however, some rather complex aspects to this question which raise some real concerns in my mind (which I know are shared by many of my colleagues around the world) about seeking such an opinion.

Proponents of the project seem to assume the Court will find that the possession and/or use of nuclear weapons are necessarily illegal. I have doubts about this. I fear that the Court may well rule that certain uses of nuclear weapons may be legal in particular circumstances. These include if the weapons were used for defensive or retaliatory purposes in a manner proportion to the attack and with due regard to discrimination in targeting. The Court could hold that the use of nuclear weapons might be legal as a response to a nuclear attack. The Court's decision could even extend beyond a finding that the use of nuclear weapons might be legal as a response to a nuclear attack only. I do not think that it can be assumed, for example, that the Court would necessarily reject NATO's "flexible response" doctrine, under which nuclear weapons are maintained as an option for responding to an overwhelming conventional attack. I am not certain that such a ruling would assist the cause of nuclear disarmament or move us any closer to the complete elimination of nuclear weapons. Indeed, such a finding could complicate the already difficult process of extending the NPT in 1995.

In raising these doubts I am conscious that the legal opinion of key states, which here includes the nuclear weapon states (NWS), is to some extent definitive of international law, and will have to be considered by the Court. The bitter differences of view on nuclear weapon matters between many non nuclear weapons states (NNWS) and the NWS, in the context of NPT review conferences and the negotiation of the 1977 additional Protocol to the Geneva Conventions (where the NWS entered reservations on the applicability of humanitarian law to the use of nuclear weapons), attest to the unlikelihood of a categorical, let alone enforceable, judicial verdict on the matter of nuclear weapons. Nuclear weapon states are likely to make cases to the ICJ justifying their approach. It is for these reasons that I continue to believe that, whatever the ruling of the ICJ, it is unlikely to affect significantly attitudes of the nuclear weapon states to nuclear disarmament, and may, in fact, even have the effect of hardening their policies.

Even a ruling declaring all uses of nuclear weapons illegal could create problems in the disarmament process, which will necessarily be negotiated carefully by the nuclear weapon states within the context of their own security perceptions. In order to manage the possession but non-use of these weapons until such disarmament is achieved, the Australian Government, along with most others around the world, has supported the principle of stable deterrence—that is, a deterrence based on the perception that any first use of nuclear weapons would be met with a sufficiently large retaliation as to render unattractive such a first strike. Obviously support for that principle is premised upon acquiescence to possession and the threat of use of nuclear weapons, provided that such possession and threat of use is directed to the purpose of deterrence of the use of nuclear weapons by someone else. I do stress that the Government, while supporting stable deterrence, does so only as an interim measure until nuclear disarmament is achieved.

In summary, given these very complex political, legal and strategic considerations my present view is that it is very doubtful whether the World Court Project will contribute to accelerating movement toward the goal it seeks to achieve. Certainly the range of negotiations taking place currently, in the absence of an advisory opinion, suggest that what you and I would regard as a favourable opinion is not a precondition for nuclear disarmament negotiations. Encouraging progress on these issues is being made in the context of START, in the Conference on Disarmament and in a number of other multilateral and regional forums. Australia, of course, will continue to be a central player in most of these forums.

At this stage, the Government has taken no decision on the questions of whether it will be submitting a written statement to the Court on whether we intend to present argument at any oral hearings. This will be a finely balanced judgment which will take into account the arguments I have outlined above—and also the fact that, for better or worse, legal process is now under way. I will certainly let you know our intentions when a decision is made.

Yours sincerely,

(Sgd) GARETH EVANS


Senator GARETH EVANS —On the question of the World Court case, as this letter makes very clear, while the government is certainly very sympathetic to the motivations which lie behind the referral of the question of the legality of the use of nuclear weapons to the World Court, we do have strong doubts as to whether consideration by the court of this question will in fact assist the cause of nuclear disarmament and non-proliferation efforts.

  In summarising a very complex set of concerns in just a couple of sentences, let me say this. A finding that the use of nuclear weapons was in fact legal in some circumstances—even if, for example, only by way of retaliation against certain kinds of attack—would in our judgment have very negative implications for the NPT and global non-proliferation objectives, giving considerable encouragement to those who do not share our disarmament aims. On the other hand, a finding that all use was indeed illegal would be in contradiction to the current stated doctrines of all existing nuclear weapons states and, as such—let us face it, in the real world—is quite unlikely to have any effect in practice on their approaches to nuclear disarmament.

  World Court decisions are not self-executing. They have to be obeyed, and disobedience would undermine the authority of the court at a time when that authority has never been more badly needed. We think that, on balance, the important negotiations now being constructively carried out through bilateral arrangements and in various multilateral forums will simply not be assisted by the court deciding on the legality question. We will accordingly be submitting to the World Court that it exercise its discretion not in fact to determine the substantive matters at stake. If, notwithstanding submissions of that kind, the court does decide to go ahead and deal with the substantive issues, we have by making such a submission reserved the option of making a substantive submission at a later time on the question of legality.

  In relation to the very complex political, legal and strategic considerations involved in considering this matter, what should not be in any doubt is this government's absolute commitment to nuclear disarmament and non-proliferation. In fact, we are one of the most committed and active governments in the world on this particular issue, and we intend to remain so. Mr President, I ask that further questions be placed on the Notice Paper.