THE Common Law of Scotland should be the basis of legal judgment of his protests against nuclear weapons, says Brian Quail (Letters, February 11). Common law, or customary law, can only be referred to if there is no specific statute covering the matter in hand. In the case of weapons, there is such a statute. Section 47 of the Scottish criminal code says it is an offence to possess an offensive weapon in a public place. Unlike its equivalent in English law, the Scots law does not restrict Section 47 to a scheduled list of weapons. It applies as much to a Trident D warhead as to a flick-knife. However, Section 47 specifies that a defence is “lawful authority or reasonable excuse”. It is unlikely, therefore, that we will see any submarine captains charged under Scots law, nor Scots common law applied to an area covered by statute.
Trident “undoubtedly belongs to a prohibited class of weaponry” Mr Quail goes on to say. The word “undoubtedly” is one of those giveaway terms, only used when the writer has a doubt. He is right to have such a doubt. Biological and chemical weapons of mass destruction are prohibited in international law, but nuclear weapons are not. Perhaps they should be, but the fact is they are not. The General Assembly of the United Nations asked the International Court of Justice (ICJ) to give a considered advisory opinion on the subject in 1996. After carefully weighing conventions and humanitarian international law and principles going back to 1866, the court’s judgment was that nuclear weapons were not authorised in international law, but neither were they prohibited, the Justices concurring in the latter point by 11 to three. They went on to rule that the threat of using nuclear weapons was likewise not prohibited provided that this was in the context of defence, not aggression. Where the Justices split evenly was on the subsequent point of whether, in extremis, a state could legally fire nuclear weapons against an aggressor. Though using a casting vote for the opinion, the ICJ President commented that the UN should regard the final point as one the Court had not given a permanent definitive ruling on.
The International Court of Justice, as the highest authority in international law, has therefore ruled that the acquisition and possession of nuclear weapons by a state is not prohibited, nor is the threat to use them in a defensive context. What the situation is in international law regarding the firing of such weapons remains open, despite the technical ruling in favour. When anti-nuclear protestors claim, therefore, that nuclear weapons are against Scots Law or International Law, they are mistaken. They may have a strong moral case but they have a weak legal case.
Russell Vallance,
4 West Douglas Drive, Helensburgh.
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