LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS


Advisory Opinion of 8 July 1996
The Court handed down its Advisory Opinion on the request made by the General
Assembly of the United Nations on the question concerning the Legality of the Threat
or Use of Nuclear Weapons. The final paragraph of the Opinion reads as follows:
"For these reasons,
THE COURT
(1) By thirteen votes to one,
Decides to comply with the request for an advisory opinion;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel;
Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh,
Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judge Oda.
(2) Replies in the following manner to the question put by the
General Assembly:
A. Unanimously,
There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons;
B. By eleven votes to three,
There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear
weapons as such;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel;
Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer,
Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.
C. Unanimously,
A threat or use of force by means of nuclear weapons that is contrary
to Article 2, paragraph 4, of the United Nations Charter and that fails
to meet all the requirements of Article 51, is unlawful;
D. Unanimously,
A threat or use of nuclear weapons should also be compatible with the
requirements of the international law applicable in armed conflict
particularly those of the principles and rules of international
humanitarian law, as well as with specific obligations under treaties
and other undertakings which expressly deal with nuclear weapons;
E. By seven votes to seven, by the President's casting vote,
It follows from the above-mentioned requirements that the threat or use
of nuclear weapons would generally be contrary to the rules of
international law applicable in armed conflict, and in particular the
principles and rules of humanitarian law;
However, in view of the current state of international law, and of the
elements of fact at its disposal, the Court cannot conclude definitively
whether the threat or use of nuclear weapons would be lawful or
unlawful in an extreme circumstance of self-defence, in which the very
survival of a State would be at stake;
IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi,
Fleischhauer, Vereshchetin, Ferrari Bravo;
AGAINST: Vice-President Schwebel; Judges Oda, Guillaume,
Shahabuddeen, Weeramantry, Koroma, Higgins.
F. Unanimously,
There exists an obligation to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control".
*
The Court was composed as follows: President Bedjaoui, Vice-President Schwebel;
Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi,
Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins; Registrar Valencia-
Ospina.
President Bedjaoui, Judges Herczegh, Shi, Vereshchetin and Ferrari Bravo appended
declarations to the Advisory Opinion of the Court; Judges Guillaume, Ranjeva and
Fleischhauer appended separate opinions; Vice-President Schwebel, Judges Oda
Shahabuddeen, Weeramantry, Koroma and Higgins appended dissenting opinions.
_________
Summary of the Advisory Opinion
Submission of the request and subsequent procedure (paras. 1-9)
The Court begins by recalling that by a letter dated 19 December 1994, filed in the
Registry on 6 January 1995, the Secretary-General of the United Nations officially
communicated to the Registrar the decision taken by the General Assembly to submit
a question to the Court for an advisory opinion. The final paragraph of Resolution
49/75 K, adopted by the General Assembly on 15 December 1994, which sets forth
the question, provides that the General Assembly
"Decides, pursuant to Article 96, paragraph 1, of the Charter of the
United Nations, to request the International Court of Justice urgently to
render its advisory opinion on the following question: 'Is the threat or
use of nuclear weapons in any circumstance permitted under
international law?'."
The Court then recapitulates the various stages of the proceedings.
Jurisdiction of the Court paras. 10-18)
The Court first considers whether it has the jurisdiction to give a reply to the request
of the General Assembly for an Advisory Opinion and whether, should the answer be
in the affirmative, there is any reason it should decline to exercise any such
jurisdiction.
The Court observes that it draws its competence in respect of advisory opinions from
Article 65, paragraph 1, of its Statute, while Article 96, paragraph 1 of the Charter
provides that:
"The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal
question."
Some States which oppose the giving of an opinion by the Court argued that the
General Assembly and Security Council may ask for an advisory opinion on any legal
question only within the scope of their activities. In the view of the Court, it matters
little whether this interpretation of Article 96, paragraph 1, is or is not correct; in the
present case, the General Assembly has competence in any event to seise the Court.
Referring to Articles 10, 11 and 13 of the Charter, the Court finds that, indeed, the
question put to the Court has a relevance to many aspects of the activities and
concerns of the General Assembly including those relating to the threat or use of force
in international relations, the disarmament process, and the progressive development
of international law.
"Legal Question" (para. 13)
The Court observes that it has already had occasion to indicate that questions
"framed in terms of law and rais[ing] problems of international law . . . are by their
very nature susceptible of a reply based on law . . . [and] appear . . . to be questions of
a legal character" (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18,
para. 15).
It finds that the question put to the Court by the General Assembly is indeed a legal
one, since the Court is asked to rule on the compatibility of the threat or use of nuclear
weapons with the relevant principles and rules of international law. To do this, the
Court must identify the existing principles and rules, interpret them and apply them to
the threat or use of nuclear weapons, thus offering a reply to the question posed based
on law.
The fact that this question also has political aspects, as, in the nature of things, is the
case with so many questions which arise in international life, does not suffice to
deprive it of its character as a "legal question" and to "deprive the Court of a
competence expressly conferred on it by its Statute". Nor are the political nature of
the motives which may be said to have inspired the request or the political
implications that the opinion given might have of relevance in the establishment of
the Court's jurisdiction to give such an opinion.
Discretion of the Court to give an advisory opinion (paras. 14-19)
Article 65, paragraph 1, of the Statute provides: "The Court may give an advisory
opinion . . ." (Emphasis added.) This is more than an enabling provision. As the Court
has repeatedly emphasized, the Statute leaves a discretion as to whether or not it will
give an advisory opinion that has been requested of it, once it has established its
competence to do so. In this context, the Court has previously noted as follows:
"The Court's Opinion is given not to the States, but to the organ which
is entitled to request it; the reply of the Court, itself an 'organ of the
United Nations', represents its participation in the activities of the
Organization, and, in principle, should not be refused." (Interpretation
of Peace Treaties with Bulgaria, Hungary and Romania, First Phase,
Advisory Opinion, I.C.J. Reports 1950, p. 71; . . .)"
In the history of the present Court there has been no refusal, based on the
discretionary power of the Court, to act upon a request for advisory opinion; in the
case concerning the Legality of the Use by a State of Nuclear Weapons in Armed
Conflict the refusal to give the World Health Organization the advisory opinion
requested by it was justified by the Court's lack of jurisdiction in that case.
Several reasons were adduced in these proceedings in order to persuade the Court that
in the exercise of its discretionary power it should decline to render the opinion
requested by the General Assembly. Some States, in contending that the question put
to the Court is vague and abstract, appeared to mean by this that there exists no
specific dispute on the subject-matter of the question. In order to respond to this
argument, it is necessary to distinguish between requirements governing contentious
procedure and those applicable to advisory opinions. The purpose of the advisory
function is not to settle - at least directly - disputes between States, but to offer legal
advice to the organs and institutions requesting the opinion. The fact that the question
put to the Court does not relate to a specific dispute should consequently not lead the
Court to decline to give the opinion requested. Other arguments concerned the fear
that the abstract nature of the question might lead the Court to make hypothetical or
speculative declarations outside the scope of its judicial function; the fact that the
General Assembly has not explained to the Court for what precise purposes it seeks
the advisory opinion; that a reply from the Court in this case might adversely affect
disarmament negotiations and would, therefore, be contrary to the interest of the
United Nations; and that in answering the question posed, the Court would be going
beyond its judicial role and would be taking upon itself a law-making capacity.
The Court does not accept those arguments and concludes that it has the authority to
deliver an opinion on the question posed by the General Assembly, and that there
exist no "compelling reasons" which would lead the Court to exercise its discretion
not to do so. It points out, however, that it is an entirely different question whether,
under the constraints placed upon it as a judicial organ, it will be able to give a
complete answer to the question asked of it. But that is a different matter from a
refusal to answer at all.
Formulation of the question posed (paras. 20 and 22)
The Court finds it unnecessary to pronounce on the possible divergences between the
English and French texts of the question put. Its real objective is clear: to determine
the legality or illegality of the threat or use of nuclear weapons. And the argument
concerning the legal conclusions to be drawn from the use of the word "permitted",
and the questions of burden of proof to which it was said to give rise, are found by the
Court to be without particular significance for the disposition of the issues before it.
The Applicable Law (paras. 23-34)
In seeking to answer the question put to it by the General Assembly, the Court must
decide, after consideration of the great corpus of international law norms available to
it, what might be the relevant applicable law.
The Court considers that the question whether a particular loss of life, through the use
of a certain weapon in warfare, is to be considered an arbitrary deprivation of life
contrary to Article 6 of the International Covenant on Civil and Political Rights, as
argued by some of the proponents of the illegality of the use of nuclear weapons, can
only be decided by reference to the law applicable in armed conflict and not deduced
from the terms of the Covenant itself. The Court also points out that the prohibition of
genocide would be pertinent in this case if the recourse to nuclear weapons did indeed
entail the element of intent, towards a group as such, required by Article II of the
Convention on the Prevention and Punishment of the Crime of Genocide. In the view
of the Court, it would only be possible to arrive at such a conclusion after having
taken due account of the circumstances specific to each case. And the Court further
finds that while the existing international law relating to the protection and
safeguarding of the environment does not specifically prohibit the use of nuclear
weapons, it indicates important environmental factors that are properly to be taken
into account in the context of the implementation of the principles and rules of the law
applicable in armed conflict.
In the light of the foregoing the Court concludes that the most directly relevant
applicable law governing the question of which it was seised, is that relating to the use
of force enshrined in the United Nations Charter and the law applicable in armed
conflict which regulates the conduct of hostilities, together with any specific treaties
on nuclear weapons that the Court might determine to be relevant.
Unique characteristics of nuclear weapons (paras. 35 and 36)
The Court notes that in order correctly to apply to the present case the Charter law on
the use of force and the law applicable in armed conflict, in particular humanitarian
law, it is imperative for it to take account of the unique characteristics of nuclear
weapons, and in particular their destructive capacity, their capacity to cause untold
human suffering, and their ability to cause damage to generations to come.
Provisions of the Charter relating to the threat or use of force (paras. 37-50)
The Court then addresses the question of the legality or illegality of recourse to
nuclear weapons in the light of the provisions of the Charter relating to the threat or
use of force.
In Article 2, paragraph 4, of the Charter the use of force against the territorial integrity
or political independence of another State or in any other manner inconsistent with the
purposes of the United Nations is prohibited.
This prohibition of the use of force is to be considered in the light of other relevant
provisions of the Charter. In Article 51, the Charter recognizes the inherent right of
individual or collective self-defence if an armed attack occurs. A further lawful use of
force is envisaged in Article 42, whereby the Security Council may take military
enforcement measures in conformity with Chapter VII of the Charter.
These provisions do not refer to specific weapons. They apply to any use of force,
regardless of the weapons employed. The Charter neither expressly prohibits, nor
permits, the use of any specific weapon, including nuclear weapons.
The entitlement to resort to self-defence under Article 51 is subject to the conditions
of necessity and proportionality. As the Court stated in the case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) (I.C.J. Reports 1986, p. 94, para. 176): "there is a specific rule whereby selfdefence
would warrant only measures which are proportional to the armed attack and
necessary to respond to it, a rule well established in customary international law".
The proportionality principle may thus not in itself exclude the use of nuclear
weapons in self-defence in all circumstances. But at the same time, a use of force that
is proportionate under the law of self-defence, must, in order to be lawful, also meet
the requirements of the law applicable in armed conflict which comprise in particular
the principles and rules of humanitarian law. And the Court notes that the very nature
of all nuclear weapons and the profound risks associated therewith are further
considerations to be borne in mind by States believing they can exercise a nuclear
response in self-defence in accordance with the requirements of proportionality.
In order to lessen or eliminate the risk of unlawful attack, States sometimes signal that
they possess certain weapons to use in self-defence against any State violating their
territorial integrity or political independence. Whether a signaled intention to use
force if certain events occur is or is not a "threat" within Article 2, paragraph 4, of the
Charter depends upon various factors. The notions of "threat" and "use" of force
under Article 2, paragraph 4, of the Charter stand together in the sense that if the use
of force itself in a given case is illegal - for whatever reason - the threat to use such
force will likewise be illegal. In short, if it is to be lawful, the declared readiness of a
State to use force must be a use of force that is in conformity with the Charter. For the
rest, no State - whether or not it defended the policy of deterrence - suggested to the
Court that it would be lawful to threaten to use force if the use of force contemplated
would be illegal.
Rules on the lawfulness or unlawfulness of nuclear weapons as such (paras. 49-
73)
Having dealt with the Charter provisions relating to the threat or use of force, the
Court turns to the law applicable in situations of armed conflict. It first addresses the
question whether there are specific rules in international law regulating the legality or
illegality of recourse to nuclear weapons per se; it then examines the question put to it
in the light of the law applicable in armed conflict proper, i.e. the principles and rules
of humanitarian law applicable in armed conflict, and the law of neutrality.
The Court notes by way of introduction that international customary and treaty law
does not contain any specific prescription authorizing the threat or use of nuclear
weapons or any other weapon in general or in certain circumstances, in particular
those of the exercise of legitimate self-defence. Nor, however, is there any principle
or rule of international law which would make the legality of the threat or use of
nuclear weapons or of any other weapons dependent on a specific authorization. State
practice shows that the illegality of the use of certain weapons as such does not result
from an absence of authorization but, on the contrary, is formulated in terms of
prohibition.
It does not seem to the Court that the use of nuclear weapons can be regarded as
specifically prohibited on the basis of certain provisions of the Second Hague
Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or
the 1925 Geneva Protocol. The pattern until now has been for weapons of mass
destruction to be declared illegal by specific instruments. But the Court does not find
any specific prohibition of recourse to nuclear weapons in treaties expressly
prohibiting the use of certain weapons of mass destruction; and observes that,
although, in the last two decades, a great many negotiations have been conducted
regarding nuclear weapons, they have not resulted in a treaty of general prohibition of
the same kind as for bacteriological and chemical weapons.
The Court notes that the treaties dealing exclusively with acquisition, manufacture,
possession, deployment and testing of nuclear weapons, without specifically
addressing their threat or use, certainly point to an increasing concern in the
international community with these weapons; It concludes from this that these treaties
could therefore be seen as foreshadowing a future general prohibition of the use of
such weapons, but that they do not constitute such a prohibition by themselves. As to
the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations
made in connection with the indefinite extension of the Treaty on the Non-
Proliferation of Nuclear Weapons, it emerges from these instruments that:
(a) a number of States have undertaken not to use nuclear weapons in
specific zones (Latin America; the South Pacific) or against certain
other States (non-nuclear-weapon States which are parties to the Treaty
on the Non-Proliferation of Nuclear Weapons);
(b) nevertheless, even within this framework, the nuclear-weapon
States have reserved the right to use nuclear weapons in certain
circumstances; and
© these reservations met with no objection from the parties to the
Tlatelolco or Rarotonga Treaties or from the Security Council.
The Court then turns to an examination of customary international law to determine
whether a prohibition of the threat or use of nuclear weapons as such flows from that
source of law.
It notes that the Members of the international community are profoundly divided on
the matter of whether non-recourse to nuclear weapons over the past fifty years
constitutes the expression of an opinio juris. Under these circumstances the Court
does not consider itself able to find that there is such an opinio juris. It points out that
the adoption each year by the General Assembly, by a large majority, of resolutions
recalling the content of resolution 1653 (XVI), and requesting the member States to
conclude a convention prohibiting the use of nuclear weapons in any circumstance,
reveals the desire of a very large section of the international community to take, by a
specific and express prohibition of the use of nuclear weapons, a significant step
forward along the road to complete nuclear disarmament. The emergence, as lex lata,
of a customary rule specifically prohibiting the use of nuclear weapons as such is
hampered by the continuing tensions between the nascent opinio juris on the one
hand, and the still strong adherence to the doctrine of deterrence(in which the right to
use those weapons in the exercise of the right to self-defence against an armed attack
threatening the vital security interests of the State is reserved) on the other.
International humanitarian law (paras. 74-87)
Not having found a conventional rule of general scope, nor a customary rule
specifically proscribing the threat or use of nuclear weapons per se, the Court then
deals with the question whether recourse to nuclear weapons must be considered as
illegal in the light of the principles and rules of international humanitarian law
applicable in armed conflict and of the law of neutrality.
After sketching the historical development of the body of rules which originally were
called "laws and customs of war" and later came to be termed "international
humanitarian law", the Court observes that the cardinal principles contained in the
texts constituting the fabric of humanitarian law are the following. The first is aimed
at the protection of the civilian population and civilian objects and establishes the
distinction between combatants and non-combatants; States must never make civilians
the object of attack and must consequently never use weapons that are incapable of
distinguishing between civilian and military targets. According to the second
principle, it is prohibited to cause unnecessary suffering to combatants: it is
accordingly prohibited to use weapons causing them such harm or uselessly
aggravating their suffering. In application of that second principle, States do not have
unlimited freedom of choice of means in the weapons they use.
The Court also refers to the Martens Clause, which was first included in the Hague
Convention II with Respect to the Laws and Customs of War on Land of 1899 and
which has proved to be an effective means of addressing the rapid evolution of
military technology. A modern version of that clause is to be found in Article 1,
paragraph 2, of Additional Protocol I of 1977, which reads as follows:
"In cases not covered by this Protocol or by other international
agreements, civilians and combatants remain under the protection and
authority of the principles of international law derived from established
custom, from the principles of humanity and from the dictates of public
conscience."
The extensive codification of humanitarian law and the extent of the accession to the
resultant treaties, as well as the fact that the denunciation clauses that existed in the
codification instruments have never been used, have provided the international
community with a corpus of treaty rules the great majority of which had already
become customary and which reflected the most universally recognized humanitarian
principles. These rules indicate the normal conduct and behaviour expected of States.
Turning to the applicability of the principles and rules of humanitarian law to a
possible threat or use of nuclear weapons, the Court notes that nuclear weapons were
invented after most of the principles and rules of humanitarian law applicable in
armed conflict had already come into existence; the Conferences of 1949 and 1974-
1977 left these weapons aside, and there is a qualitative as well as quantitative
difference between nuclear weapons and all conventional arms. However, in the
Court's view, it cannot be concluded from this that the established principles and rules
of humanitarian law applicable in armed conflict did not apply to nuclear weapons.
Such a conclusion would be incompatible with the intrinsically humanitarian
character of the legal principles in question which permeates the entire law of armed
conflict and applies to all forms of warfare and to all kinds of weapons, those of the
past, those of the present and those of the future. In this respect it seems significant
that the thesis that the rules of humanitarian law do not apply to the new weaponry,
because of the newness of the latter, has not been advocated in the present
proceedings.
The principle of neutrality (paras. 88 and 89)
The Court finds that as in the case of the principles of humanitarian law applicable in
armed conflict, international law leaves no doubt that the principle of neutrality,
whatever its content, which is of a fundamental character similar to that of the
humanitarian principles and rules, is applicable (subject to the relevant provisions of
the United Nations Charter), to all international armed conflict, whatever type of
weapons might be used.
Conclusions to be drawn from the applicability of international humanitarian
law and the principle of neutrality (paras. 90-97)
The Court observes that, although the applicability of the principles and rules of
humanitarian law and of the principle of neutrality to nuclear weapons is hardly
disputed, the conclusions to be drawn from this applicability are, on the other hand,
controversial.
According to one point of view, the fact that recourse to nuclear weapons is subject to
and regulated by the law of armed conflict, does not necessarily mean that such
recourse is as such prohibited. Another view holds that recourse to nuclear weapons,
in view of the necessarily indiscriminate consequences of their use, could never be
compatible with the principles and rules of humanitarian law and is therefore
prohibited. A similar view has been expressed with respect to the effects of the
principle of neutrality. Like the principles and rules of humanitarian law, that
principle has therefore been considered by some to rule out the use of a weapon the
effects of which simply cannot be contained within the territories of the contending
States.
The Court observes that, in view of the unique characteristics of nuclear weapons, to
which the Court has referred above, the use of such weapons in fact seems scarcely
reconcilable with respect for the requirements of the law applicable in armed conflict.
It considers nevertheless, that it does not have sufficient elements to enable it to
conclude with certainty that the use of nuclear weapons would necessarily be at
variance with the principles and rules of law applicable in armed conflict in any
circumstance. Furthermore, the Court cannot lose sight of the fundamental right of
every State to survival, and thus its right to resort to self-defence, in accordance with
Article 51 of the Charter, when its survival is at stake. Nor can it ignore the practice
referred to as "policy of deterrence", to which an appreciable section of the
international community adhered for many years.
Accordingly, in view of the present state of international law viewed as a whole, as
examined by the Court, and of the elements of fact at its disposal, the Court is led to
observe that it cannot reach a definitive conclusion as to the legality or illegality of
the use of nuclear weapons by a State in an extreme circumstance of self-defence, in
which its very survival would be at stake.
Obligation to negotiate nuclear disarmament (paras. 98-103)
Given the eminently difficult issues that arise in applying the law on the use of force
and above all the law applicable in armed conflict to nuclear weapons, the Court
considers that it needs to examine one further aspect of the question before it, seen in
a broader context.
In the long run, international law, and with it the stability of the international order
which it is intended to govern, are bound to suffer from the continuing difference of
views with regard to the legal status of weapons as deadly as nuclear weapons. It is
consequently important to put an end to this state of affairs: the long-promised
complete nuclear disarmament appears to be the most appropriate means of achieving
that result.
In these circumstances, the Court appreciates the full importance of the recognition by
Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an
obligation to negotiate in good faith a nuclear disarmament. The legal import of that
obligation goes beyond that of a mere obligation of conduct; the obligation involved
here is an obligation to achieve a precise result - nuclear disarmament in all its
aspects - by adopting a particular course of conduct, namely, the pursuit of
negotiations on the matter in good faith. This twofold obligation to pursue and to
conclude negotiations formally concerns the 182 States parties to the Treaty on the
Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the
international community. Indeed, any realistic search for general and complete
disarmament, especially nuclear disarmament, necessitates the co-operation of all
States.
*
The Court finally emphasizes that its reply to the question put to it by the
General Assembly rests on the totality of the legal grounds set forth by the Court
above (paragraphs 20 to 103), each of which is to be read in the light of the others.
Some of these grounds are not such as to form the object of formal conclusions in the
final paragraph of the Opinion; they nevertheless retain, in the view of the Court, all
their importance.
__________
Declaration of President Bedjaoui
After having pointed out that paragraph E of the operative part was adopted by seven
votes to seven, with his own casting vote, President Bedjaoui began by stressing that
the Court had been extremely meticulous and had shown an acute sense of its
responsibilities when proceeding to consider all the aspects of the complex question
put to it by the General Assembly. He indicated that the Court had, however, had to
find that in the current state of international law, the question was one to which it was
unfortunately not in a position to give a clear answer. In his view, the Advisory
Opinion thus rendered does at least have the merit of pointing to the imperfections of
international law and inviting the States to correct them.
President Bedjaoui indicated that the fact that the Court was unable to go any further
should not "in any way be interpreted as leaving the way open to the recognition of
the lawfulness of the threat or use of nuclear weapons". According to him, the Court
does no more than place on record the existence of a legal uncertainty. After having
observed that the voting of the Members of the Court on paragraph E of the operative
part is not the reflection of any geographical dividing line, he gives the reasons that
led him to approve the pronouncement of the Court.
To that end, he began by emphasizing the particularly exacting nature of international
law and the way in which it is designed to be applied in all circumstances. More
specifically, he concluded that
"the very nature of this blind weapon therefore has a destabilizing
effect on humanitarian law which regulates discernment in the type of
weapon used. Nuclear weapons, the ultimate evil, destabilize
humanitarian law which is the law of the lesser evil. The existence of
nuclear weapons is therefore a challenge to the very existence of
humanitarian law, not to mention their long-term effects of damage to
the human environment, in respect to which the right to life can be
exercised".
President Bedjaoui considered that "self-defence - if exercised under extreme
circumstances in which the very survival of a State is in question - cannot engender a
situation in which a State would exonerate itself from compliance with the
"intransgressible" norms of international humanitarian law". According to him it
would be very rash to accord, without any hesitation, a higher priority to the survival
of a State than to the survival of humanity itself.
As the ultimate objective of any action in the field of nuclear weapons is nuclear
disarmament, President Bedjaoui concludes by stressing the importance of the
obligation to negotiate in good faith for nuclear disarmament - which the Court has
moreover recognized. He considers for his part that it is possible to go beyond the
conclusions of the Court in this regard and to assert "that there in fact exists a twofold
general obligation, opposable erga omnes, to negotiate in good faith and to achieve a
specified result"; in other words, given the at least formally unanimous support for
that object, that obligation has now - in his view - assumed customary force.
__________
Declaration of Judge Herczegh
Judge Herczegh, in his declaration, takes the view that the Advisory Opinion could
have included a more accurate summary of the present state of international law with
regard to the question of the threat and use of nuclear weapons "in any circumstance".
He voted in favour of the Advisory Opinion and, more particularly, in favour of
paragraph 105, sub-paragraph E, as he did not wish to disassociate himself from the
large number of conclusions that were expressed and integrated into the Advisory
Opinion, and which he fully endorses.
__________
Declaration Judge Shi
Judge Shi has voted in favour of the operative paragraphs of the Advisory Opinion of
the Court. However, he has reservations with regard to the role which the Court
assigns to the policy of deterrence in determining the existence of a customary rule on
the use of nuclear weapons.
In his view, "nuclear deterrence" is an instrument of policy to which certain nuclearweapon
States, supported by those States accepting nuclear umbrella protection,
adhere in their relations with other States. This practice is within the realm of
international politics and has no legal value from the standpoint of the formation of a
customary rule prohibiting the use of the weapons as such.
It would be hardly compatible with the Court's judicial function if the Court, in
determining a rule of existing law governing the use of the weapons, were to have
regard to the "policy of deterrence".
Also, leaving aside the nature of the policy of deterrence, States adhering to the policy
of deterrence, though important and powerful members of the international
community and playing an important role on the stage of international politics, by no
means constitute a large proportion of the membership of the international
community.
Besides, the structure of the community of states is built on the principle of sovereign
equality. The Court cannot view these nuclear-weapon States and their allies in terms
of material power, rather should have regard of them from the standpoint of
international law. Any undue emphasis on the practice of these materially powerful
States, constituting a fraction of membership of the community of States, would not
only be contrary to the principle of sovereign equality of States, but also make it more
difficult to give an accurate and proper view of the existence of a customary rule on
the use of nuclear weapons.
__________
Declaration of Judge Vereshchetin
In his declaration Judge Vereshchetin explains the reasons which have led him to vote
in favour of paragraph 2E of the dispositif, which carries the implication of the
indecisiveness of the Court. In his view, in advisory procedure, where the Court is
requested not to resolve an actual dispute, but to state the law as it finds it, the Court
may not try to fill any lacuna or improve the law which is imperfect. The Court
cannot be blamed for indecisiveness or evasiveness where the law, upon which it is
called to pronounce, is itself inconclusive.
Judge Vereshchetin is of the view that the Opinion adequately reflects the current
legal situation and shows the most appropriate means to putting an end to the
existence of any "grey areas" in the legal status of nuclear weapons.
__________
Declaration of Judge Ferrari Bravo
Judge Ferrari Bravo regrets that the Court should have arbitrarily divided into two
categories the long line of General Assembly resolutions that deal with nuclear
weapons. Those resolutions are fundamental. This is the case of resolution 1 (I) of
24 January 1946, which clearly points to the existence of a truly solemn undertaking
to eliminate all forms of nuclear weapons, whose presence in military arsenals was
declared unlawful. The Cold War, which intervened shortly afterwards, prevented the
development of this concept of illegality, while giving rise to the concept of nuclear
deterrence which has no legal value. The theory of deterrence, while it has occasioned
a practice of the nuclear-weapon States and their allies, has not been able to create a
legal practice serving as a basis for the incipient creation of an international custom. It
has, moreover, helped to widen the gap between Article 2, paragraph 4 of the Charter
and Article 51.
The Court should have proceeded to a constructive analysis of the role of the
General Assembly resolutions. These have, from the outset, contributed to the
formation of a rule prohibiting nuclear weapons. The theory of deterrence has arrested
the development of that rule and, while it has prevented the implementation of the
prohibition of nuclear weapons, it is nonetheless still the case that that "bare"
prohibition has remained unchanged and continues to produce its effects, at least with
regard to the burden of proof, by making it more difficult for the nuclear powers to
vindicate their policies within the framework of the theory of deterrence.
__________
Separate opinion of Judge Guillaume
After having pondered upon the admissibility of the request for advisory opinion,
Judge Guillaume begins by expressing his agreement with the Court with regard to
the fact that nuclear weapons, like all weapons, can only be used in the exercise of the
right of self-defence recognized by Article 51 of the Charter. On the other hand, he
says he has had doubts about the applicability of traditional humanitarian law to the
use - and above all the threat of use - of nuclear weapons. He goes on to say, however,
that he has no choice in the matter but to defer to the consensus that has emerged
before the Court between the States.
Moving on to an analysis of the law applicable to armed conflict, he notes that that
law essentially implies comparisons in which humanitarian considerations have to be
weighed against military requirements. Thus the collateral damage caused to the
civilian population must not be "excessive" as compared to the "military advantage"
offered. The harm caused to combatants must not be "greater than that unavoidable to
achieve legitimate military objectives". On that account, nuclear weapons of mass
destruction can only be used lawfully in extreme cases.
In an attempt to define those cases, Judge Guillaume stresses that neither the Charter
of the United Nations, nor any conventional or customary rule can detract from the
natural right of self-defence recognized by Article 51 of the Charter. He deduces from
this that international law cannot deprive a State of the right to resort to nuclear
weaponry if that resort constitutes the ultimate means by which it can ensure its
survival.
He regrets that the Court has not explicitly recognized this, but stresses that it has
done so implicitly. It has certainly concluded that it could not, in those extreme
circumstances, make a definitive finding either of legality of illegality in relation to
nuclear weapons. In other words, it has taken the view that, in such circumstances, the
law provides no guidance to States. However if the law is silent on that matter, the
States, in the exercise of their sovereignty, remain free to act as they think fit.
Consequently, it follows implicitly but necessarily from paragraph 2 E of the Court's
Advisory Opinion that the States may resort to "the threat or use of nuclear weapons
in an extreme circumstance of self-defence, in which the very survival of a State
would be at stake". When recognizing such a right the Court, by so doing, has
recognized the legality of policies of deterrence.
__________
Separate opinion of Judge Ranjeva
In his separate opinion, Judge Ranjeva has made a point of emphasizing that, for the
first time, the Court has unambiguously stated that the use or threat of use of nuclear
weapons is contrary to the rules of international law applicable inter alia to armed
conflict and, more particularly, to the principles and rules of humanitarian law. That
indirect response to the question of the General Assembly is, in his view, justified by
the very nature of the law of armed conflict, applicable without regard to the status of
victim or of aggressor, and that explains why the Court has not gone so far as to
uphold the exception of extreme self-defence when the very survival of the State is at
stake, as a condition for the suspension of illegality. In his view, the State practice
shows that a point of no return has been reached: the principle of the legality of the
use or threat of use of nuclear weapons has not been asserted; it is on the basis of a
justification of an exception to that principle, accepted as being legal, that the nuclearweapon
States attempt to give the reasons for their policies, and the increasingly
closer-knit legal régimes of nuclear weapons have come about in the context of the
consolidation and implementation of the final obligation to produce a specific result,
i.e., generalized nuclear disarmament. These "givens" thus represent the advent of a
consistent and uniform practice: an emergent opinio juris.
Judge Ranjeva considers, however, that the equal treatment that the Advisory Opinion
has given to the principles of legality and illegality cannot be justified. The
General Assembly gave a very clear definition of the object of its question: does
international law authorize the use or threat of use of nuclear weapons in any
circumstance? By dealing at the same time and, above all, on the same level with both
legality and illegality, the Court has been led to adopt a liberal acceptation of the
concept of a "legal question" in an advisory proceeding, as henceforth any question
whose object is to ask the Court to look into matters that some people do not seek to
understand, will be seen as admissible.
In conclusion, Judge Ranjeva, while being aware of the criticisms that specialists in
law and judicial matters will be bound to level at the Advisory Opinion, ultimately
considers that it does declare the law as it is, while laying down boundaries the
exceeding of which is a matter for the competence of States. He nonetheless hopes
that no Court will ever have to reach a decision along the lines of the second subparagraph
of paragraph E.
__________
Separate opinion of Judge Fleischhauer
Judge Fleischhauer's separate opinion highlights that international law is still
grappling with and has not yet overcome the dichotomy that is created by the very
existence of nuclear weapons between the law applicable in armed conflict, and in
particular the rules and principles of humanitarian law on the one side, and the
inherent right of self-defence on the other. The known qualities of nuclear weapons let
their use appear scarcely reconcilable with humanitarian law, while the right to selfdefence
would be severely curtailed if for a State, victim of an attack with nuclear,
chemical or bacteriological weapons or otherwise constituting a deadly menace for its
very existence, nuclear weapons were totally ruled out as an ultimate legal option.
The separate opinion endorses the Court's finding that international law applicable in
armed conflict, and particularly the rules and principles of humanitarian law, apply to
nuclear weapons. It goes on to agree with the Court's Conclusion that the threat or use
of nuclear weapons would generally be contrary to the rules applicable in armed
conflict, and in particular the principles and rules of humanitarian law. The separate
opinion then welcomes that the Court did not stop there, but that the Court admitted
that there can be qualifications to that finding. Had the Court not done so, then it
would have given prevalence to one set of the principles involved over the other. The
principles involved are, however, all legal principles of equal rank.
The separate opinion continues that the Court could and should have gone further and
that it could and should have stated, that in order to reconcile the conflicting
principles, their smallest common denominator would apply. That means that recourse
to nuclear weapons could remain a justified legal option in an extreme case of
individual or collective self-defence as the last resort of a State victim of an attack
with nuclear, bacteriological or chemical weapons or otherwise threatening its very
existence. The separate opinion sees a confirmation of this view in the legally relevant
State practice relating to matters of self-defence.
For a recourse to nuclear weapons to be considered justified, however, not only would
the situation have to be extreme, but all the conditions on which the lawfulness of the
exercise of the right of self-defence depends in international law, including the
requirement of proportionality, would have to be met. Therefore the margin for
considering that a particular threat or use of nuclear weapons could be legal, is
extremely narrow.
Finally, the separate opinion endorses the existence of a general obligation of States to
pursue in good faith, and bring to a conclusion, negotiations leading to nuclear
disarmament in all its aspects under strict and effective international control.
__________
Dissenting opinion of Vice-President Schwebel
Vice-President Schwebel, while agreeing with much of the body of the Court's
Opinion, dissented because of his "profound" disagreement with its principal
operative conclusion: "The Court cannot conclude definitively whether the threat or
use of nuclear weapons would be lawful or unlawful an extreme circumstance of selfdefence,
in which the very survival of a State would be at stake." The Court thereby
concluded "on the supreme issue of the threat or use of force of our age that it has no
opinion . . . that international law and hence the Court have nothing to say. After
many months of agonizing appraisal of the law, the Court discovers that there is none.
When it comes to the supreme interests of State, the Court discards the legal progress
of the Twentieth Century, puts aside the provisions of the United Nations Charter of
which it is 'the principal judicial organ', and proclaims, in terms redolent of
Realpolitik, its ambivalence about the most important provisions of modern
international law. If this was to be its ultimate holding, the Court would have done
better to have drawn on its undoubted discretion not to render an Opinion at all."
The Court's inconclusiveness was in accordance neither with its Statute, nor its
precedent, nor with events which demonstrate the legality of the threat or use of
nuclear weapons in extraordinary circumstances. E.g., the threat which Iraq took as a
nuclear threat that may have deterred it from using chemical and biological weapons
against coalition forces in the Gulf War was "not only eminently lawful but intensely
desirable".
While the principles of international humanitarian law govern the use of nuclear
weapons, and while "it is extraordinarily difficult to reconcile the use . . . of nuclear
weapons with the application of those principles", it does not follow that the use of
nuclear weapons necessarily and invariably will contravene those principles. But it
cannot be accepted that the use of nuclear weapons on a scale which would - or could
- result in the deaths of "many millions in indiscriminate inferno and by far-reaching
fallout . . . and render uninhabitable much or all of the earth, could be lawful." The
Court's conclusion that the threat or use of nuclear weapons "generally" would be
contrary to the rules of international law applicable in armed conflict "is not
unreasonable."
The case as a whole presents an unparalleled tension between State practice and legal
principle. State practice demonstrates that nuclear weapons have been manufactured
and deployed for some 50 years; that in that deployment inheres a threat of possible
use ("deterrence"); and that the international community, far from outlawing the threat
or use of nuclear weapons in all circumstances, has recognized in effect or in terms
that in certain circumstances nuclear weapons may be used or their use threatened.
This State practice is not that of a lone and secondary persistent objector, but a
practice of the permanent Members of the Security Council, supported by a large and
weighty number of other States, who together represent the bulk of the world's power
and much of its population.
The Nuclear Non-Proliferation Treaty and the negative and positive security
assurances of the nuclear Powers unanimously accepted by the Security Council
indicate the acceptance by the international community of the threat or use of nuclear
weapons in certain circumstances. Other nuclear treaties equally infer that nuclear
weapons are not comprehensively prohibited either by treaty or customary
international law.
General Assembly resolutions to the contrary are not law-making or declaratory of
existing international law. When faced with continuing and significant opposition, the
repetition of General Assembly resolutions is a mark of ineffectuality in law
formation as it is in practical effect.
__________
Dissenting opinion of Judge Oda
Judge Oda voted against part one of the Court's Advisory Opinion because of his view
that, for the reasons of judicial propriety and judicial economy, the Court should have
exercised its discretionary power to refrain from rendering an Opinion in response to
the Request.
In the view of Judge Oda, the question in the Request is not adequately drafted and
there was a lack of meaningful consensus of the General Assembly with regard to the
1994 Request. After examining the developments of the relevant General Assembly
resolutions on a convention on the prohibition of the use of nuclear weapons up to
1994, he notes that the General Assembly is far from having reached an agreement on
the preparation of a Convention rendering the use of nuclear weapons illegal. In the
light of that history, the Request was prepared and drafted - not in order to ascertain
the status of existing international law on the subject but to try to promote the total
elimination of nuclear weapons - that is to say, with highly political motives.
He notes that the perpetuation of the NPT régime recognizes two groups of States -
the five nuclear-weapon States and the non-nuclear-weapon States. As the five
nuclear-weapon States have repeatedly given assurances to the non-nuclear-weapon
States of their intention not to use nuclear weapons against them, there is almost no
probability of any use of nuclear weapons given the current doctrine of nuclear
deterrence.
Judge Oda maintains that an advisory opinion should only be given in the event of a
real need. In the present instance there is no need and no rational justification for the
General Assembly's request that the Court give an advisory opinion on the existing
international law relating to the use of nuclear weapons. He also emphasizes that from
the standpoint of judicial economy the right to request an advisory opinion should not
be abused.
In concluding his Opinion, Judge Oda stresses his earnest hope that nuclear weapons
will be eliminated from the world but states that the decision on this matter is a
function of political negotiations among States in Geneva (the Conference on
Disarmament) or New York (United Nations) but not one which concerns this judicial
institution in The Hague.
He voted against sub-paragraph E as the equivocations contained therein serve, in his
view, to confirm his point that it would have been prudent for the Court to decline
from the outset to give any opinion at all in the present case.
__________
Dissenting opinion of Judge Shahabuddeen
In Judge Shahabuddeen's dissenting opinion, the essence of the General Assembly's
question was whether, in the special case of nuclear weapons, it was possible to
reconcile the imperative need of a State to defend itself with the no less imperative
need to ensure that, in doing so, it did not imperil the survival of the human species. If
a reconciliation was not possible, which side should give way? The question was,
admittedly, a difficult one; but the responsibility of the Court to answer it was clear.
He was not persuaded that there was any deficiency in the law or the facts which
prevented the Court from returning a definitive answer to the real point of the General
Assembly's question. In his respectful view, the Court should and could have given a
definitive answer - one way or another.
__________
Dissenting opinion of Judge Weeramantry
Judge Weeramantry's Opinion is based on the proposition that the use or threat of use
of nuclear weapons is illegal in any circumstances whatsoever. It violates the
fundamental principles of international law, and represents the very negation of the
humanitarian concerns which underlie the structure of humanitarian law. It offends
conventional law and, in particular, the Geneva Gas Protocol of 1925, and
Article 23(a) of the Hague Regulations of 1907. It contradicts the fundamental
principle of the dignity and worth of the human person on which all law depends. It
endangers the human environment in a manner which threatens the entirety of life on
the planet.
He regretted that the Court had not so held, directly and categorically.
However, there were some portions of the Court's Opinion which were of value, in
that it expressly held that nuclear weapons were subject to limitations flowing from
the United Nations Charter, the general principles of international law, the principles
of international humanitarian law, and by a variety of treaty obligations. It was the
first international judicial determination to this effect and further clarifications were
possible in the future.
Judge Weeramantry's Opinion explained that from the time of Henri Dunant,
humanitarian law took its origin and inspiration from a realistic perception of the
brutalities of war, and the need to restrain them in accordance with the dictates of the
conscience of humanity. The brutalities of the nuclear weapon multiplied a thousandfold
all the brutalities of war as known in the pre-nuclear era. It was doubly clear
therefore that the principles of humanitarian law governed this situation.
His Opinion examined in some detail the brutalities of nuclear war, showing
numerous ways in which the nuclear weapon was unique, even among weapons of
mass destruction in injuring human health, damaging the environment, and destroying
all the values of civilization.
The nuclear weapon caused death and destruction; induced cancers, leukaemia,
keloids and related afflictions; caused gastro intestinal, cardiovascular and related
afflictions; continued, for decades after its use, to induce the health-related problems
mentioned above; damaged the environmental rights of future generations; caused
congenital deformities, mental retardation and genetic damage; carried the potential to
cause a nuclear winter; contaminated and destroyed the food chain; imperilled the
eco-system; produced lethal levels of heat and blast; produced radiation and
radioactive fall-out; produced a disruptive electromagnetic pulse; produced social
disintegration; imperilled all civilization; threatened human survival; wreaked cultural
devastation; spanned a time range of thousands of years; threatened all life on the
planet; irreversibly damaged the rights of future generations; exterminated civilian
populations; damaged neighbouring States; produced psychological stress and fear
syndromes - as no other weapons do.
While it was true that there was no treaty or rule of law which expressly outlawed
nuclear weapons by name, there was an abundance of principles of international law,
and particularly international humanitarian law, which left no doubt regarding the
illegality of nuclear weapons, when one had regard to their known effects.
Among these principles were the prohibition against causing unnecessary suffering,
the principle of proportionality, the principle of discrimination between combatants
and civilians, the principle against causing damage to neutral states, the prohibition
against causing serious and lasting damage to the environment, the prohibition against
genocide, and the basic principles of human rights law.
In addition, there were specific treaty provisions contained in the Geneva Gas
Protocol (1925), and the Hague Regulations (1907) which were clearly applicable to
nuclear weapons as they prohibited the use of poisons. Radiation directly fell within
this description, and the prohibition against the use of poisons was indeed one of the
oldest rules of the laws of war.
Judge Weeramantry's Opinion also draws attention to the multicultural and ancient
origins of the laws of war, referring to the recognition of its basic rules in Hindu,
Buddhist, Chinese, Judaic, Islamic, African, and modern European cultural traditions.
As such, the humanitarian rules of warfare were not to be regarded as a new
sentiment, invented in the nineteenth century, and so slenderly rooted in universal
tradition that they may be lightly overridden.
The Opinion also points out that there cannot be two sets of the laws of war applicable
simultaneously to the same conflict - one to conventional weapons, and the other to
nuclear weapons.
Judge Weeramantry's analysis includes philosophical perspectives showing that no
credible legal system could contain a rule within itself which rendered legitimate an
act which could destroy the entire civilization of which that legal system formed a
part. Modern juristic discussions showed that a rule of this nature, which may find a
place in the rules of a suicide club, could not be part of any reasonable legal system -
and international law was pre-eminently such a system.
The Opinion concludes with a reference to the appeal in the Russell-Einstein
Manifesto to "remember your humanity and forget the rest", without which the risk
arises of universal death. In this context, the Opinion points out that international law
is equipped with the necessary array of principles with which to respond, and that
international law could contribute significantly towards rolling back the shadow of the
mushroom cloud, and heralding the sunshine of the nuclear-free age.
The question should therefore have been answered by the Court - convincingly,
clearly, and categorically.
__________
Dissenting opinion of Judge Koroma
In his Dissenting Opinion, Judge Koroma stated that he fundamentally disagreed with
the Court's finding that:
"in view of the current state of international law, and of the elements of
fact at its disposal, the Court cannot conclude definitively whether the
threat or use of nuclear weapons would be lawful or unlawful in an
extreme circumstance of self-defence, in which the very survival of a
State would be at stake".
Such a finding, he maintained, could not be sustained on the basis of existing
international law, nor in the face of the weight and abundance of evidence and
material presented to the Court. In his view, on the basis of the existing law,
particularly humanitarian law and the material available to the Court, the use of
nuclear weapons in any circumstance would at the very least result in the violation of
the principles and rules of that law and is therefore unlawful.
Judge Koroma also pointed out that although the views of states are divided on the
question of the effects of the use of nuclear weapons, or as to whether the matter
should have been brought before the Court, he took the view that once the Court had
found that the General Assembly was competent to pose the question, and that no
compelling reason existed against rendering an opinion, the Court should have
performed its judicial function and decide the case on the basis of existing
international law. He expressed his regret that the Court, even after holding that:
"the threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and in
particular the principles and rules of humanitarian law".
A finding with which he concurred, save for the word "generally" - the Court had
flinched from answering the actual question put to it that the threat or use of nuclear
weapons in any circumstance would be unlawful under international law.
He maintained that the Court's answer to the question had turned on the "survival of
the state", whereas the question posed to the Court was about the lawfulness of the
use of nuclear weapons. He therefore found the Court's judgment not only untenable
in law, but even potentially destabilizing of the existing international legal order, as it
not only