ICJ Summary of Advisory Opinion of 8 July 1996 on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict

8/8/2019 ICJ Summary of Advisory Opinion of 8 July 1996 on the Legality of the Use by a State of Nuclear Weapons in Arme

1/11

LEGALITY OF THE THREA T OR IJSE OF NUCLEAR WEAPONSAdvisory Opinion of 8 July 1996

The Court handed down its advisory opinion on therequest made by the General Assembly of the United Nationson the question concerning the Legality of the Threat orUse of Nuclear Weapons.The final paragraph of the opinion reads as follows:"For these reasons,THECOURT,(1) By thirteen votes to one,Decides to conlply with the request for an advisoryopinion;IN FAVOUR: President Bedjaoui; Vice-PresidentSchwebel; Judges Guillaume, Shahabuddeen,Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer,

Kororna, Vereshchetin, Ferrari Bravo, Higgins;AGAINST: Judge Oda;(2) Replies in the following manner to the questionput by the General Assembly:A. Unanimously,There is in neither customary nor conventionalinternational law any specific authorization of thethreat or use of nuclear weapons;

B. By eleven votes to three,There is in neither customary nor conventionalinternational law any comprehensive and universalprohibition of the threat or use of nuclear weapons assuch;IN FAVOUR: resident Bedjaoui; Vice-PresidentSchwebel; Judges Oda, Guillaume, Ranjeva, Iierczegh,Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;AGAINST: udges Shahabuddeen, Weeramantry,Koroma;C. Unanimously,A threat or use of force by means of nuclear weap-ons that is contrary to Article 2, paragraph 4, of theCharter of the United Nations and that fails to meet allthe requirements of Article 5 1 is unlawful;D. Unanimously,A threat or use of nuclear weapons should also becompatible with the requirements of the internationallaw applicable in armed conflict, particularly those of

the principles and rules of international humanitarianlaw, as well as with specific obligations under treatiesand other undertakings which expressly deal withnuclear weapons;

erally be contrary to the rules of international lawapplicable in armed conflict, and in particular theprinciples and rules of humanitarian law;However, in view of the current state of interna-tional law, and of the elements of fact at its disposal,the Court cannot conclude definitively whether thethreat or use of nuclear weapons would be lawful orunlawful 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,Ciuillaume, Shahabuddeen, Weeramantry, Koroma,Higgins;F. ZJnanimously,There exists an obligation to pursue in good faithand bring to a conclusion negotiations leading to nuclear'disarmament in all its aspects under strict and effec-tive 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 and Judges Herczegh, Shi,Vereshchetin and Ferrari Bravo appended declarations to theadvisory opinion of the Court; Judges Guillaume, Ranjevaand Fleischhauer appended separate opinions; Vice-PresidentSchwebel and Judges Oda, Shahabuddeen, Weeramantry,Koroma and Higgins appended dissenting opinions.

Submission of the request and subsequent procedure(paras. 1-9)E. By seven votes to seven, by the President's The: Court begins by recalling that by a letter datedcasting vote, 19 December 1994, filed in the Registry on 6 January 1995,It follows from the above-mentioned requirements the Secretary-General of the United Nations oficially com-that the threat or use of nuclear weapons would gen- municated to the Registrar the decision taken by the Gen-

Continued on next page

Summaries of Judgments, Advisory Opinions and Orders of the International Court of JusticeNot an official document


2/11

era1 Assem bly to submit a. question to th e Co urt for a n ad- Court of a competence expressly conferred on it by itsvisory op inion. The final ]paragraph of resolution 49/75 K, Statute". Nor are the political nature of the motives whichadoipted by the General Assembly on 15 December 1994, may be said to have inspired the request or the politicalwhich sets forth the ques tion, provides that the Ge neral implications that the opinion given might have of relevanceAssembly in the establishment of the Court's jurisdiction to give such"Decides, pursuant to A rticle 96, paragraph 1, of the an opinion.Charter of the United Nations, to request the Interna-tional Court of Justice urgently to render its advisory Discretion of the Court to give an advisory opinionopinion on the followirig question: 'Is the threat or use (paras. 14-19)of nuclear weapons in any circumstance permitted underir~tern ationa l aw?'." Article 65, paragraph 1, of the Statute provides: "TheThe Court then recapitulates the various stages of the Court may give an advisory opinion . . .". (Emphasis added.)proceedings. This is more than an enabling provision. As the C ourt hasrepeatedly emphasized, the Statute leaves discretion as to

Jurisdiction of the Court whether or not it will give an advisory opinion that has(paras. 10-18) been requested of it, once it has established its competenceto do so. In this context, the Court has previously noted asThe C ourt first c0ns ide. r~ hether it has the jurisdiction f01lows:to give a reply to the request of the General Assembly "The Court's Opinion is given not to the States, but tofor i3n advisory opinion and w hethe r, shou ld t:he answ er be the organ which is entitled to request it; the reply of thein the affirmative, there is; any reason it should decline to Court, itself an 'organ of the United Nations', representsexercise any such jurisdiction. its participation in the activitie s of the Organization, and,The Court observes tha.t it draws its competence in re- in principle, should not be refused." (Interpretation ofspec:t of advisory op inions from Article 65, paragraph 1, of Peace Treaties with Bulgaria, Hungary and Romania,its !Statute, while Article 96, paragraph 1, of the Charter Firsf Ph ase, Adviso ry O pinion, I .C .J . ~ e ~ o r t s950,provides that: p. 71.)- ~ h ~~~~~~l~ ~ ~ ~ ~ b l ~r the security , ~ ~ ~ ~ ~ i lay In the history of the present Court there has been nore:quest the International court of Justice to give an refusal, based on the discretionary power of the court,advisory opinion on any legal question." to act upon a request for an advisory opinion; in the caseSome States which oppose the giving of an opinion by concerning the Legality of the Use by a State of NuclearWeapons in Armed Conflict the refusal to give the Worldthe Court argued that the General Assembly and the Secu- Health Organization the advisory opinion requested .byrity Council may ask for an advisory opinion on any legalquestion only within the scope of their activities. In the ' it was justified by the Cou rt's lack of jurisdiction in thatview of the Court, it matters little whether this interpreta- case.tion of Article 96, paragr~~ph, is or is not correct; in the Several reasons were adduced in these proceedings inpresent case, the General Assembly has competence in any order to persuade the Churt that in the exercise of itsevent to seise the Court. Referring to Articles 10, 1 1 and discretionary power it should decline to render the opinion13 o,f the Charter, the Couirt finds that, inde ed, the question requested by the General Assembly. Some States, in con-put to the Court has relevance to many aspects of the tending that the question Put to the Court is vague andactivities and concerns of the General Assembly, including abstract, appear ed to mean b y this that there e xists no SPe-those relating to the threa:t or use of force in international cific dispute on the subject-m atter of the question. In orderrelations, the disarmament process, and the progressive de- to respond to this argument, it is necessary to distinguishvelopment of international law. between requirements governing contentious procedureand those applicable to advisory opinions. The purpose of' l eg a l quest ion" the advisory function is not to settle-at least directly-(para. 13) disputes between States, but to offer legal advice to theorga ns and institutions requesting the opinion. The fact thatT he Court ~ b ~ e r v e shat it has already had occasion to the question put to the Court does not relate to a specificindicate that questions dispute should consequently not lead the Court to decline"framed in terms of law and rais[ing] problems of inter- to give the opinion requested. Other arguments concernednational law . . .are by their very nature susceptible of a the fear that the abstract nature of the question might leadre:ply based on law . . . [and] appear. . . o be questions the Court to make hypothetical or speculative declarationsof a legal character" (Western Sahara, Advisory Opinion, outside the scope of its judicial function; the fact that theI.8C.J. Reports 1975 , p. 18, para. 15). General Assembly has not explained to the Court for whatIt finds that the question put to the Court by the General precise purposes it seek s the advisory opinion; that a replyAssem bly is indeed a legail one, since the Couirt is asked to from the Court in this case might adversely affect disarma-rule on the compatibility of the threat or use of nuclear ment negotiations and would, therefore, be contrary towealpons with the relevant principles and rules of interna- the intcrest of the United Nations; and that in answeringtionid law. To do this, the Court must identify the existing the question posed, the Court would be going beyond itsprinciples and rules, interpret them and apply them to the judicial role and would be taking upon itself a law-makingthreilt o r use o f nuclear weapons, thus offering a reply to capacity.the question posed based on law. The Court does not accept those arguments and con-The fact that this question also has political aspects, as, cludes that it has the authority to deliver an opinion o nin the nature o f things, is the case with so many questions the question posed by the General Assembly and thatwhich arise in international life, does not suffice to deprive there exist no "compelling reasons" which would lead theit of its character as a "legal question" and to "deprive the Cou rt to exercise its discretion not to do so. It points out,

95


3/11

however, that it is an entirely different question whether,unde r the constraints placed upon it as a judicial organ, itwill be able to give a complete answer to the questionasked o f it. B ut that is a different matter from a refusal toanswer at all.Fornzulation of the question posed(paras. 20-22)

The Court finds it unnecessary to pronounce on thepossible divergences between the English and Frenchtexts of the question put. Its real objective is clear: todetermine the legality or illegality of the threat or use ofnuclear weapons. And the argument concerning the legalconclusions to be drawn from the use o f the word "per-mitted", and the questions of burden of proof to whichit was said to give rise, are found by the C ourt to be withoutparticular significance for the disposition o f the issuesbefore it.The applicable law(paras. 23-34)

In seeking to answer the question put to it by the Gene ralAssemb ly, the Cou rt must decide, after consideration o f thegreat corpus of international law norms available to it,what might be the relevant applicable law.The Court considers that the question whether a par-ticular loss of life, through the use of a certain weaponin warfare, is to be considered an arbitrary deprivationof life contrary to article 6 of the International Covenanton Civil and Political Rights, as argued by some of theproponents of the illegality of the use of nuclear weap-ons, can only be decided by reference to the law appli-cable in armed conflict and not deduced from the termsof the Covenant itself. The Court also points out that theprohibition of genocide would be pertinent in this caseif the recourse to nuclear weapons did indeed entail theelement of intent, towards a group as such, required byarticle I1 of the Convention on the Prevention and Punish-ment of the Crime of Genocide. In the view of the Court,it would only be possible to amve at such a conclusionafter having taken due account of the circumstances spe-cific to each case. And the Court further finds that whilethe existing international law relating to the protectionand safeguarding of the environment does not specifi-cally prohibit the use of nuclear weapons, it indicatesimportant environmental factors that are properly to betaken into account in the context of the implementationof the principles and rules of the law applicable in armedconflict.

In the light of the foregoing, the Court concludes thatthe most directly relevant applicable law governing thequestion of which it was seised is that relating to the useof force enshrined in the Ch arter of the United Nationsand the law applicable in armed conflict which regulatesthe conduct of hostilities, together with any specific treatieson nuclear weapons that the Court might determine to berelevant.Unique characteristics of nuclear weapon s(paras. 35-36)

The Court notes that in order correctly to apply to thepresent case the Charter law on the use of force and thelaw applicable in armed con flict, in particular humanitarianlaw, it is imperative for it to take account of the unique

characteristics of nuclear weapons, and in particular theirdestructive capacity, their capacity to cause untold humansuffering, and their ability to cause damage to generationsto Come.Provisions of the Charter relating to the threat or use offorce(paras. 37-50)

The Court then addresses the question of the legality orillegality o f recourse to nuclear weapons in the light of theprovisions of the Charter relating to the threat or use offorce.

In Alticle 2, paragraph 4, of the Charter, the use o f forceagainst the territorial integrity or political independence o fanother State or in any other manner inconsistent with thepurpose:^ of the United Nations is prohibited.

This prohibition of the use of force is to be consideredin the 1,ight of o ther relevant provisions o f the Cha rter. InArticle 5 1, the Cha rter recognizes the inherent right o findividual or collective self-defence if an armed attackoccurs. A further lawful use of force is envisaged in Article 42,whereby the Security Council may take military enforce-ment measures in conformity with Chapter VII of theCharter.These provisions do not refer to specific weapons. Theyapply to any use of force, regardless of the weapons em-ployed. The Charter neither expressly prohibits, nor per-mits, the use of any specific weapon, including nuclearweapons.The entitlement to resort to self-defence under Article 51is subject to the conditions of necessity and proportional-ity. As the Court stated in the case concerning Militaryand Paramilitary Activities in and against Nicaragua(Nicaragua v. United States of America) (I .C . . Reports1986, p. 94, para. 176): "there is a specific rule wherebyself-defence would warrant only measures which are pro-portionill to the armed attack and necessary to respond toit, a rule we ll established in custom ary international law".The proportionality principle may thus not in itself ex-clude the use o f nuclear weapo ns in self-defence in allcircumstances. But at the same time, a use of force thatis proportionate under the law of self-defence must, inorder to be lawful, also meet the requirements of the lawapplicable in armed conflict, which comprise in particularthe principles and rules of hum anitarian law. And the Courtnotes that the very nature of all nuclear weapons and theprofound risks associated therewith are further considera-tions to be borne in mind by States believing they can exer-cise a nuclear response in self-defence in accordance withthe requirements of proportionality.In order to lessen or eliminate the risk of unlawful at-

tack, States sometimes signal that they possess certainweapons to use in self-defence against any State violatingtheir territorial integrity or political independence.W hether a signalled intention to use force if certain eventsoccu r is or is not a "threat" within Article 2, paragraph 4,of the Charter depends upon various factors. The notionsof "threat" and "use" of force under Article 2, para-graph 4, o f the Charter stand together in the sense thatif the use of force itself in a given case is illegal-forwh atever reason-the threat to use such force will like-wise be illegal. In short, if it is to be lawful, the declaredreadiness of a State to use force must be a use of forcethat is in conformity with the Charter. For the rest, no


4/11

Sta~te-whether or not iit defende d the poilicy of deter-rence---suggested to the C ourt that it woulcl be lawful tothreaten to use force if the use of force conten~ plated ouldbe illegal.Rujes on the lawfirlness or unlav@ulness of nu de ar w eapons

czs such(paras. 49-73)Having dealt with the Charter provisions relating to the

threat or use of force, the C ourt turns to the law applicablein situations of armed conflict. It first addresses the ques-tioin whether there are specific rules in international lawregulating the legality 01- illegality of recourse to nuclearweapons per se; it then examines the question put to it inthe light of the law app1:icable in arm ed c onflict proper,i.e., the principles and rules of huma nitarian law applicablein ;armed conflict, and the law of neutrality.'I'he Court no tes by way of introduction that interna-tioinal customary an d treaty law does not col ~ta in ny spe-cifiic prescription authorizing the threat or rue of nuclearweapons or any other weapon in general or in certaincirc:umstances, in particular tho se of the exercise o f legiti-mate self-defe nce. N or, how ever, is there .any principle

or .rule of international law wh ich would m ake the legal-ity of the threat or use of' nuclear weapons or of any otherweapons dependent on a specific authorization. Statepractice shows that the illegality of the use of certainweapons as such does not result from an absence ofauthorization but, on the contrary, is formulated in termsof ;prohibition.It does not seem to the Court that the use of nuclearweapons can be regarded as specifically prohibited onthe basis of certain ~rovjisions f the Second Hague Dec-lariltion of 1899, thk Regulations annex ed to t& HagueConvention IV of 1907 or the 1925 Geneva Protocol.The pattern until now has been for weapons of mass de-stnlction to be declared illegal by specific instruments.

But the Court does not find any specific prohibition ofrecourse to nuclear weapons in treaties expressly prohibit-ing the use of certain weapons of mass destruction; andobserves that, although, in the last two dec.ades, a greatmany negotiations have been conducted regarding nuclearweapons, they have not resulted in a treaty of generalprohibition of the same kind as for bacteriological andche:mical weapons .The Court notes that the treaties dealing exclusivelywith acquisition, manuhcture, possession, deploymentancl testing of nuclear weapons, without specifically ad-dressing their threat or use, certainly point to an increas-ing concern in the international community with theseweapons. It concludes from this that these treaties couldtherefore be seen a s foreshadowing a future general pro-hibition of the use of such weapons, but that they do notconstitute such a prohibition by themse1ve:s. As to thetreaties of Tlatelolco ancl Rarotonga and their Protocols,and a lso the dec1aration.s made in connection with theindefinite extension of the Treaty on the Non-Proliferationof Nuclear Weapons, it emerges from these: instrumentsthat:(a ) a number o f States have undertaken not to use nuclearweapons in specific zones (Latin America; the South Pacific)or against certain o ther States (non-nuclear-weapon Stateswhiich are parties to the T reaty on the Non-Pro liferation ofNuclear Weapons);

(b) nevertheless, even within this framew ork, the nuclear-weapon States have reserved the right to use nuclear weaponsin certain circumstances; and(c) these reservations met with no objection from theparties to the Tlatelolco or Rarotonga Treaties or from theSecurity Council.The Court then turns to an examination of customaryinternational law to determine whether a prohibition of thethreat or use of nuclear weapons as such flows from that

source of law.It notes that the members of the international commu-nity are profoundly divided on the matter of whethernon-recourse to nuclear weapons over the past 50 yearsconstitutes the expression of an opinio juris. Under thesecircumstances the Court does not consider itself able tofind that there is such an o pinio juris. It points out thatthe adoption each year by the General Assembly, by alarge majority, of resolutions recalling the content ofresolution 1653 (XVI), and requesting the M ember Statesto conclude a convention prohibiting the use of nuclearweapons in any circumstance, reveals the desire of a verylarge section of the international community to take, bya specific and express prohibition of the use of nuclearweapons, a significant step forward along the road tocomplete nuclear disarmament. The emergence, as lex lata,of a customary rule specifically prohibiting the use ofnuclear weapons as such is hampered by the continuingtensions 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 ofthe right to self-defence against an armed attack threaten-ing the vital security interests of the State is reserved), onthe other.International humanitarian law(paras. 74-87)

Not having found a conventional rule of general scope,nor a customary rule specifically proscribing the threat oruse of nuclear weapons per se, the Court then deals withthe question whether recourse to nuclear weapons m ust beconsidered a s illegal in the light of the principles and rulesof international humanitarian law applicable in armed con-flict and of the law of neutrality.

After sketching the historical development of the bodyof rules which originally were called "laws and customsof war" and later came to be termed "internationa l hu-manitarian law", the Court observes that the cardinalprinciples contained in the texts constituting the fabricof humanitarian law are the following. The first is aimedat the protection of the civilian population and civilianobjects and establishes the distinction between combatantsand non-combatants; States must never make civiliansthe object of attack and must consequently never useweapons that are incapable of distinguishing betweencivilian and military targets. According to the secondprinciple, it is prohibited to cause unnecessary sufferingto combatants: it is accordingly prohibited to use weaponscausing them such harm or uselessly aggravating theirsuffering. In application of that second principle, Statesdo not have unlimited freedom of choice of means in theweapons they use.The Court also refers to the Martens Clause, whichwas first included in the Hague Convention I1 with Re-spect to the Laws and Customs of War on Land of 1899


5/11

and which has proved to be an effective means of ad-dressing the rapid evolution of military technology. Amodem version of that clause is to be found in article 1,paragraph 2, of Additional Protocol I of 1977, which readsas follows:"In cases not covered by this Protocol or by otherinternational agreements, civilians and combatants remainunder the protection and authority of the principles ofinternational law derived from established custom, fromthe principles of humanity and from the dictates ofpublic conscience."

The extensive codification of humanitarian law andthe extent of the accession to the resultant treaties, aswell a s the fact that the denun ciation clauses that existedin the codification instruments have never been used,have provided the international community with a corpusof treaty rules the great majority of which had alreadybecome customary and which reflected the most univer-sally recognized humanitarian principles. These rulesindicate the normal conduct and behaviour expected ofStates.Turning to the applicability of the principles and rulesof humanitarian law to a possible threat or use of nuclearweapons, the Court notes that nuclear weapons were in-

vented after most of the principles and rules of humanita-rian law applicable in armed conflict had already com e intoexistence; the Conferences of 1949 and 1974-1977 leftthese weapons aside, and there is a qualitative as well asquantitative difference between nuclear weapons and allconventional arms. How ever, in the Court's view, it cannotbe concluded from this that the established principles andrules of humanitarian law applicable in armed conflict didnot apply to nuclear weapons. Such a conclusion would beincompatible with the intrinsically humanitarian characterof the legal principles in question which permeates theentire law of armed c onflict and applies to all forms of war-fare and to all kinds of weapons, those of the past, thoseof the present and those of the future. In this respect itseems significant that the thesis that the rules of humani-tarian law do not apply to the new weaponry, because ofthe newness of the latter, has not been advocated in thepresent proceedings.The principle of neutrality(paras. 88-89)

The Court f inds that, as.in the case of the principlesof humanitarian law applicable in armed conflict, inter-national law leaves no doubt that the principle of neu-trality, whatever its content, which is of a fundamentalcharacter similar to that of the humanitarian principlesand rules, is applicable (subject to the relevant provi-sions of the Charter of the United Nations) to all inter-national armed conflict, whatever type of weapons mightbe used.Conclusions to be drawn from the applicability of interna-tional humanitarian law and the principle of neutrality(paras. 90-97)

The Court observes that, although the applicability ofthe principles and rules of humanitarian law and of theprinciple of neutrality to nuclear weapons is hardly dis-puted, the conclusions to be drawn from this applicabilityare, on the other hand, controversial.

According to one point of view, the fact that recourseto nuclear weapons is subject to and regulated by the lawof armed conflict does not necessarily mean that suchrecourse is as such prohibited. Another view holds thatrecourse to nuclear weapons, in view of the necessarilyindiscriminate consequences of their use, could never becompatible with the principles and rules of humanitarianlaw and is therefore prohibited. A similar view has beenexpressed with respect to the effects of the principle of neu-trality. Like the principles and rules of humanitarian law,that principle has therefore been considered by some torule cut the use of a weapon the effects of which simplycannot be contained within the territories of the contendingStates;.The Court observes that, in view of the unique char-acteristics of nuclear weapons, to which the Court hasreferred above, the use of such weapons in fact seemsscarci:ly recon cilable with resp ect for the requirem ents ofthe 1a.w applicable in armed conflict. It considers, never-theless, that it does not have sufficient elements to enableit to c:onclude with certainty that the use of nuc lear weap-ons would necessarily be at variance with the principlesand rules of law applicable in armed conflict in any cir-cumstance. Furthermore, the C ourt cannot lose sight of thefundamental right of every State to survival, and thus itsright to resort to self-defence, in accordance with A rticle 5 1of the Charter, when its survival is at stake. Nor can itignore the practice referred to as "policy of deterrence",to which an appreciable section of the international com-munity adhered for many years.Accordingly, in v iew of the present state of internationallaw viewed as a whole, as examined by the Court, and ofthe elements of fact at its disposal, the Court is led to ob-serve that it cannot reach a definitive conclusion as to thelegality or illegality of the use of nuclear weapons by aState in an extreme circumstance of self-defence, in whichits very survival would be at stake.

Obligation to negotiate nuclear disarmanzent(para:;. 9 8- 103)Given the eminently difficult issues that arise in apply-ing the law on the use of force and above all the lawapplicable in armed conflict to nuclear weap ons, the Courtconsiders that it needs to exa mine one further aspect of thequestion before it, seen in a broader context.In the long run, international law, and w ith it the stabilityof thc: international order which it is intended to govern, isbound to suffer from the continuing difference of viewswith regard to the legal status of weapons as deadly asnuclear weapo ns. It is consequently im portant to put an endto this state of affairs: the long-prom ised complete nuclear

disannament appears to be the most appropriate means ofachieving that result.In these circumstances, th e Court app reciates the fullimportance of the recognition by article VI of the Treatyon the Non-Proliferation of Nuclear Weapons of an obli-gation to negotiate in good faith a nuclear disarmament.The legal import of that obligation goes beyond that of amere obligation of conduct; the obligation involved here isan obligation to achieve a precise result-nuclear disarma-ment in all its aspects-by adop ting a particu lar course ofconduct, namely, the pursuit o f negotiations on the matterin good faith. This twofold obligation to pursue and toconclude negotiations formally concerns the 182 States


6/11

parties to the Treaty on the Non-Proliferation of NuclearWeapons, or, in other words, the vast majority of the inter-national community. Indeed, any realistic search for generaland complete disarmamend, especially nuclei~rdisarma-ment, necessitates the cooperation of all States..

The Court finally empha.sizes that its reply to the ques-tion put to it by the General Assembly rests on the totalityof th,e legal grounds set forth by the Court a'bove (para-graphs 20 to 103), each of which is to be read in the lightof the others. Some of these grounds are not such as to fornithe object of formal concli~sionsn the final paragraph ofthe opinion; they nevertheless retain, in the view of theCourt, all their importance.Declaration of President Bedjaoui

After having pointed out that paragraph E o:F the opera-tive part was adopted by 7 votes to 7, with his own castingvote, President Bedjaoui began by stressing that the Courthad been extremely meticulous and had shown an acutesense of its responsibilities when proceeding to considerall the aspects of the complex question put to it by tlieGeneral Assembly. He indicated that the Coun: had, how-ever, had to find that in the current state of ir~ternationallaw the question was one to which it was unfortunatelynot in a position to give a clear answer. In his view, theadvislory opinion thus rendered does at least have the meritof pointing to the imperfections of international law andinviting the States to correct them.

President Bedjaoui indicated that the fact th2.t the Courtwas unable to go any further should not "in any way beinterpreted as leaving the way open to the recognition ofthe lawfulness of the threat or use of nuclear weapons".According to him, the Court does no more tha.n place onrecord the existence of a legal uncertainty. After havingobserved that the voting of'the Members of the Court onparagraph E of the operative part is not the re:flection ofany geographical dividing line, he gives the reasons thatled him to approve the prorrouncement of the Court.To that end, he began by emphasizing the particularlyexacti.ng nature of international law and the way in whichit is designed to be applied in all circumstances. More spe-cifically, he concluded that "the very nature o , f this blindweapon therefore has a destabilizing ef ec t on humanita-rian law which reglilates discernment in the type ofweapon used. Nuclear weqpons, the ultimate evil, desta-bilize humanitarian law wh ich is the law of the lesser evil.The existence qf nuclear weapons is therefore I;! challengeto the very existence ofhumanitarian law , not to mention their

long-term effects of damage: to the human environment, inrespect to which the right to life can be exercised".President Bedjaoui considered that "self-defence-ifexercised under extreme circumstances in whic.h the verysurvival of a State is in quest ion-cannot engender a situ-ation :in which a State would exonerate itself from compli-ance with the 'intran~gressi~ble'orms of international hu-manitarian law". According to him, it would be very rashto accord, without any hesitation, a higher priclrity to thesurvival of a State than to the survival of humanity itself.As the ultimate objective: of any action in tile field ofnuclear weapons is nuclear disarmament, President Bedjaoui

co~icludes y stressing the importance of the obligation tonegotiate in good faith for nuclear disarmament-whichthe Court has, moreover, recognized. He considers for his partthat it is possible to go beyond the conclusions of the Courtin this regard and to assert "that there in fact exists a two-fold general obligation, opposable erga omnes, to negotiatein good faith and to achieve a specified result"; in otherwords, given the at least formally unanimous support for thatobject, that obligation has now-in his view-assumedcustomary force.Declaration of Judge Herczegh

Judge Herczegh, in his declaration, takes the view thatthe advisory opinion could have included a more accuratesummary of the present state of international law withregard to the question of the threat and use of nuclearweapons "in any circumstance". I-Ie voted in favour of theadvisory opinion and, more particularly, in favour of para-graph 105, subparagraph E, as he did not wish to dissociatehimself from the large number of conclusions that wereexpressed and integrated into the advisory opinion, andwhich he fully endorses.

Declaration of Judge ShiJudge Shi has voted in favour of the operative para-graphs of the advisory opinion of the Court. However, hehas reservations with regard to the role which the Courtassigns to the policy of deterrence in deterniining the ex-istence of a customary rule on the use of nuclear weapons.In his view, "nuclear deterrence" is an instrument ofpolicy to which certain nuclear-weapon States, supportedby those States accepting nuclear umbrella protection, adherein their relations with other States. This practice is withinthe realm of international politics and has no legal valuefrom the standpoint of the formation of a customary ruleprohibiting 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 lawgoverning the use of the weapons, were to have regard tothe "policy of deterrence".Also, leaving aside the nature of the policy of deter-rence, States adhering to the policy of deterrence, thoughimportant and powerful members of the international com-munity and playing an important role on the stage of inter-national politics, by no means constitute a large proportionof the membership of the international community.Besides, the structure of the community of States is builton the principle of sovereign equality. The Court cannotview these nuclear-weapon States and their allies in termsof material power, but rather should have regard of themfrom the standpoint of international law. Any undue em-

phasis on the practice of these materially powerful States,constituting a fraction of the membership of the commu-nity of States, would not only be contrary to the principleof sovereign equality of States, but also make it more dif-ficult to give an accurate and proper view of the existenceof a customary rule on tlie use of nuclear weapons.Declaration of Judge Vereshchetin

In his declaration, Judge Vereshchetin explains the reasonswhich have led him to vote in favour of paragraph 2 E ofthe dispositif; which carries the implication of the indeci-siveness of the Court. In his view, in advisory procedure,


7/11

where the Court is requested not to resolve an actual dis-pute, but to state the law as it finds it, the Court may nottry to fill any lacuna or improve the law that is imperfect.The Court cannot be blamed for indecisiveness or evasive-ness where the law, upon which it is called to pronounce,is itself inconclusive.Judge Vereshchetin is of the view that the opinion ade-quately reflects the current legal situation and shows the

In an attempt to define those cases, Judge Guillaumestresses that neither the Charter of the United Nations norany conventional or customary rule can detract from thenatural right of self-defence recognized by Article 51 ofthe Cbarter. He deduces from this that international lawcannot deprive a State of the right to resort to nuclearweapo:nry if that resort constitutes the ultimate means bywhich it can ensure its survival.

Declaration of Judge Ferrari BravoJudge Ferrari Bravo regrets that the Court should havearbitrarily divided into two categories the long line of Gen-eral Assembly resolutions that deal with nuclear weapons.Those resolutions are fundamental. This is the case of reso-lution 1 (I) of 24 January 1946, which clearly points to theexistence of a truly solemn undertaking to eliminate allforms of nuclear weapons, whose presence in militaryarsenals was declared unlawful. The cold war, which inter-vened shortly afterwards, prevented the development of thisconcept of illegality, while giving rise to the concept ofnuclear deterrence which has no legal value. The theoryof deterrence, while it has occasioned a practice of the

nuclear-weapon States and their allies, has not been ableto create a legal practice serving as a basis for the incipientcreation of an international custom. It has, moreover,helped to widen the gap between Article 2, paragraph 4, ofthe Charter and Article 51.The Court should have proceeded to a constructiveanalysis of the role of the General Assembly resolutions.These have, from the outset, contributed to the formationof a rule prohibiting nuclear weapons. The theory of deter-rence has arrested the development of that rule and, whileit has prevented the implementation of the prohibition ofnuclear weapons, it is none the less still the case that that"bare" prohibition has remained unchanged and continuesto produce its effects, at least with regard to the burden of

proof, by making it more difficult for the nuclear Powersto vindicate their policies within the framework of thetheory of deterrence.Separate opinion of Judge Guillaume

After having pondered upon the admissibility of therequest for an advisory opinion, Judge Guillaume beginsby expressing his agreement with the Court with regard tothe fact that nuclear weapons, like all weapons, can onlybe used in the exercise of the right of self-defence recog-nized by Article 51 of the Charter. On the other hand, hesays he has had doubts about the applicability of traditionalhumanitarian law to the use-and above all the threat ofuse-of nuclear weapons. He goes on to say, however, thathe has no choice in the matter but to defer to the consensusthat has emerged before the Court between the States.

Moving on to an analysis of the law applicable to armedconflict, he notes that that law essentially implies compari-sons in which humanitarian considerations have to beweighed against military requirements. Thus, the collateraldamage caused to the civilian population must not be'Lexcessive" as compared to the "military advantage"offered. The harm caused to combatants must not be"greater than that unavoidable to achieve legitimate mili-tary objectives". On that account, nuclear weapons of massdestruction can only be used lawfully in extreme cases.

tainly ~:oncluded hat it could not, in those extreme circum-stances, make a definitive finding of either legality orillegality in relation to nuclear weapons. In other words, ithas taken the view that, in such circumstances, the law pro-vides no guidance to States. However, if the law is silenton that matter, the States, in the exercise of their sover-eignty,, remain free to act as they think fit.Consequently, it follows implicitly but necessarily fromparagraph 2 E of the Court's advisory opinion that theStates may resort to "the threat or use of nuclear weaponsin an extreme circumstance of self-defence, in which thevery survival of a State would be at stake". When recog-nizing such a right the Court, by so doing, has recognizedthe legality of policies of deterrence.

Separate opinion of Judge RanjevaIn his separate opinion, Judge Ranjeva has made a pointof emphasizing that, for the first time, the Court has unam-biguously stated that the use or threat of use of nuclearweapons is contrary to the rules of international law appli-cable, inter alia, to armed conflict and, more particularly, tothe principles and rules of humanitarian law. That indirectresponse to the question of the General Assembly is, in hisview, justified by the very nature of the law of armed con-flict, applicable without regard to the status of victim or ofaggressor, and that explains why the Court has not gone sofar as to uphold the exception of extreme self-defence

when the very survival of the State is at stake, as a condi-tion for the suspension of illegality. In his view, State prac-tice shows that a point of no return has been reached: theprinciple of the legality of the use or threat of use ofnuclear weapons has not been asserted; it is on the basis ofa justification of an exception to that principle, accepted asbeing legal, that the nuclear-weapon States attempt to givethe reasons for their policies, and the increasingly closer-knit legal regimes of nuclear weapons have come about inthe context of the consolidation and implementation of thefinal obligation to produce a specific result, i.e., generalizednuclear disarmament. These "givens" thus represent theadvent of a consistent and uniform practice: an emergentopinio jttris.Judge Ranjeva considers, however, that the equal treat-ment that the advisory opinion has given to the principlesof legality and illegality cannot be justified. The GeneralAssenibly gave a very clear definition of the object of itsquestion: Does international law authorize the use or threatof use of nuclear weapons in any circumstance? By dealingat the same time and, above all, on the same level with bothlegality and illegality, the Court has been led to adopt aliberal acceptation of the concept of a "legal question" in anadvisory proceeding, as henceforth any question whose objectis to ask the Court to look into matters that some peopledo not seek to understand will be seen as admissible.


8/11

In conclusion, Judge Ranjeva, while being aware of thecriticisms that specialists in law and judicial matters willbe bound to level at the advisory opinion, ultimately con-siders that it does declare the law as it is, while layingdown bou ndaries the ex ceeding of w hich is a miitter for thecompetence of States. He none the less hopes that no Courtwill ewer have to reach a decision along the lines of thesecond subparagraph of paragraph E.Sepa rate opinion of Judg e Fleischhauer

Juclge Fleischhauer's separate opinion highlights thatinternational law is still grappling with and has not yetovercome the dichotomy that is created by the very exist-ence of nuclear weapons between the law ap.plicabie inarmed conflict, and in particular the rules and principles ofhumanitarian law, on the one side, and the inherent rightof se1.f-defence, on the other. T he known qu alities of nuclearweapons let their use appear scarcely reconcilable withhuma nitarian law, w hile the: right to se lf-defenc:ewould beseverlely curtailed if for a State, victim of an attack withnuclear, chemical or bacteriological weapons or otherwiseconstituting a deadly mena ce for its very existence, nuclearweapons were totally ruled out as an ultimate lagal option.-Thle separate opinion endorses the Court's linding thatinternational law applicable: in arm ed conflict, :particularlythe rules and principles of' humanitarian law! applies tonuclear weap ons. It go es on to agree with the C:ourt's con -clusion that the threat or use of nuclear weapons wouldgenerally be contrary to the rules applicable in armed con-flict, and in particular the principles and rules of humani-tarian~ aw. The separate opinion then welcorr~es hat theCourt did not stop there, but that the Court admitted thatthere can be qualifications to that finding. Had the Courtnot done so, then it would have given preva1t:nce to oneset of principles involved over the other. The: principlesinvolved are, how ever, all liegal principles of equal rank.Th'e separate opinion continues that the C o u ~ tould andshould have gone further ar ~dhat it could and should havestatecl that in o rder to r eco ~ic ile he conflicting principles,their smallest common denominator would apply. Thatmeans that recourse to nulslear weapons could remain ajustified legal option in an extreme case of individual orcollec%ive elf-defence as the last resort of a State victim ofan attack with nuclear, bacteriological or chemical weaponsor otherwise threatening its very existence. The separateopinion sees a confirmation.of this view in the lega lly rele-vant State practice relating to matters of self-defence.

For a recourse to nuclear weapons to be considered jus-tified, however, not only would the situation have to beextreme, but all the conditions on which the lawfulness ofthe ertercise'of the right ol' self-defence depends in inter-national law, including the requirement of proportionality,would have to be met. Therefore, the margin for consider-ing that a particular thre at clr use of nuclear w eitpons couldbe legal is extremely narrow.

Finally, the separate opinion endorses the existence of ageneral obligation of States to pursue in good faith, andbring to a conclusion, negotiations leading to nuclear dis-armament in all its aspects under strict and effective inter-national control.Dissenting opinion of Vice-President Schwebel

Vice-President Schw ebel, while agreeing with much o fthe body o f the Court's opinion, dissented because of his

"profound" disagreem ent with its principal operative con-clusion: "The Court cannot conclude definitively whetherthe threat or use of nuclear weapons would be lawful orunlawful in an extreme circumstance of self-defence, inwhich the very survival of a State would be at stake." TheCourt thereby concluded "on the suprem e issue of thethreat or use of force of our age that it has no opinion . . .that international law and hence the Court have nothing tosay. After many m onths of agonizing appraisal of the law,the Court discovers that there is none. When it comes tothe supreme interests of State, the Court discards the legalprogress of the twentieth century, puts aside the provisionsof the Charter of the United Nations of which it is 'the prin-cipal judicial organ', and proclaims, in terms redolent ofRealpolitik, its ambivalence about the most important pro-visions of modem international law. If this was to be itsultimate holding, the Court would have done better to havedrawn on its undoubted discretion not to render an opinionat all."

The Court's inconclusiveness was in accordance neitherwith its Statute, nor with its precedent, nor with eventswhich demonstrate the legality of the threat or use of nuclearweapons in extraordinary circumstances. E.g., the threatwhich Iraq took as a nuclear threat that may have deterredit from using chemical and biological weapons againstcoalition forces in the Gulf War was "not only eminentlylawful but intensely desirable".

While the principles of international humanitarian lawgovern the use of nuclear weapons, and while "i t isextraordinarily difficult to reconcile the use . . . of nuclearweapon s with the application of those principles", it doesnot follow that the use of nuclear weapons necessarily andinvariably will contravene those principles. But it cannotbe accepted that the use of nuclear weapons on a scalewhich would--or could-result in the deaths of "manymillions in indiscriminate inferno and by far-re aching fall-out . . .and render uninhabitable much or all of the earth,could be lawful". The Court's conclusion that the threat oruse of nuclear weapons "generally" would be contrary tothe rules of international law applicable in armed conflict'5s not unreasonable".The case as a w hole presents an unparalleled tensionbetween State practice and legal principle. State practicedemonstrates that nuclear weapons have been manufac-tured and deployed for some 50 years; that in that deploy-ment inheres a threat of possible use ("deterrence"); andthat the international community, far from outlawing thethreat or use of nuclear weapons in all circumstances, hasrecognized in effect or in terms that in certain circum-stances nuclear weapons may be used or their use threat-ened. This State practice is not that of a lone and secondarypersistent objector, but a practice of the permanent mem-bers of the Security Council, supported by a large and

weighty number o f other States, which together representthe bulk of the world's power and much of its population.The Nuclear Non-Proliferation Treaty and the negativeand positive security assurances of the nuclear Powersunanimo usly accepted by the Security Council indicate theacceptance by the international community of the threat oruse of nuclear weapons in certain circumstances. Othernuclear treaties equally infer that nuclear weapons are notcomprehensively prohibited either by treaty or by custom-ary international law.General Assembly resolutions to the contrary are notlaw-making or declaratory of existing international law.


9/11

When faced with continuing and significant opposition, therepetition of General Assembly resolutions is a mark ofineffectuality in law formation as it is in practical effect.Dissenting o pinion of Judge Oda

Judge Oda voted against part one of the Court's advisoryopinion because of his view that, for the reasons of judicialpropriety and judicial economy, the Court should haveexercised its discretionary power to refrain from renderingan opinion in response to the request.In the view of Judge Oda, the question in the requestis not adequately drafted and there was a lack of a mean-ingful consensus of the General Assembly with regard tothe 1994 request. After examining the developments of therelevant General Assembly resolutions on a convention onthe prohibition of the use of nuclear weapons up to 1994,he notes that the General Assembly is far from havingreached an agreement on the preparation of a Conventionrendering the use of nuclear weapons illegal. In the lightof that history, the request was prepared and drafted-notin order to ascertain the status of existing international lawon the subject but to try to promote the total elimination ofnuclear weapons-that is to say, with highly politicalmotives.He notes that the perpetuation of the NPT regime recog-nizes two groups of States-the five nuclear-weapon Statesand the non-nuclear-weapon States. As the five nuclear-weapon States have repeatedly given assurances to thenon-nuclear-weapon States of their intention not to usenuclear weapons against them, there is almost no prob-ability of any use of nuclear weapons given the currentdoctrine of nuclear deterrence.Judge Oda maintains that an advisory opinion shouldonly be given in the event of a real need. In the presentinstance there is no need and no rational justification forthe General Assembly's request that the Court give anadvisory opinion on the existing international law relatingto the use of nuclear weapons. He also emphasizes thatfrom the standpoint ofjudicial economy the right to requestan advisory opinion should not be abused.In concluding his opinion, Judge Oda stresses his earnesthope that nuclear weapons will be eliminated from theworld but states that the decision on this matter is a func-tion of political negotiations among States in Geneva (theConference on Disarmament) or New York (the UnitedNations) but not one which concerns this judicial institu-tion in The Hague.He voted against subparagraphE as the equivocations con-tained therein serve, in his view, to confirm his point thatit would have been prudent for the Court to decline fromthe outset to give any opinion at all in the present case.

Dissenting opinion of Judge ShahabuddeenIn Judge Shahabuddeen's dissenting opinion, the essenceof the General Assembly's question was whether, in thespecial case of nuclear weapons, it was possible to recon-cile the imperative need of a State to defend itself with theno less imperative need to ensure that, in doing so, it didnot imperil the survival of the human species. If a recon-ciliation was not possible, which side should give way?The question was, admittedly, a difficult one; but the re-sponsibility of the Court to answer it was clear. He wasnot persuaded that there was any deficiency in the law or

the facts which prevented the Court from returning a de-finitive answer to the real point of the General Assembly'squestion. In his respectful view, the Court should and couldhave given a definitive answer--one way or another.Dissenting opinion of Judge Weerantantiy

Judge Weeramantry's opinion is based on the proposi-tion that the use or threat of use of nuclear weapons isillegal in any circumstances whatsoever. It violates thefundamental principles of international law, and representsthe very negation of the humanitarian concerns whichunderlie the structure of humanitarian law. It offends con-ventional law and, in particular, the Geneva Gas Protocolof 1925 and article 23 ( a ) of the Hague Regulations of1907. It contradicts the fundamental principle of the dig-nity a.nd worth of the human person on which all lawdepends. It endangers the human environment in a mannerwhich threatens the entirety of life on the planet.

He regretted that the Court had not so held, directly andcategorically.However, there were some portions of the Court'sopinion which were of value, in that it expressly held thatnuclear weapons were subject to limitations flowing fromthe Charter of the United Nations, the general principles of

international law, the principles of international humanita-rian law, and a variety of treaty obligations. It was the firstinternational judicial determination to this effect and fur-ther clarifications were possible in the future.Judge Weeramantry's opinion explained that from thetime of Henri Dunant, humanitarian law took its originand inspiration from, a realistic perception of the brutalitiesof war, and the need to restrain them in accordance withthe dictates of the conscience of humanity. The brutalitiesof the nuclear weapon multiplied a thousandfold all thebrutalities of war as known in the pre-nuclear era. It wasdoubly clear therefore that the principles of humanitarianlaw governed this situation.His opinion examined in some detail the brutalities ofnuclear war, showing numerous ways in which the nuclearweapon was unique, even among weapons of mass destruc-tion, in injuring human health, damaging the environmentand destroying all the values of civilization.The nuclear weapon caused death and destruction; inducedcancers, leukaemia, keloids and related afflictions; causedgastrointestinal, cardiovascular and related afflictions;contiiiued, for decades after its use, to induce the health-related problems mentioned above; damaged the environ-mental rights of future generations; caused congenitaldefonnities, mental retardation and genetic damage; camedthe potential to cause a nuclear winter; contaminated anddestroyed the food chain; imperilled the ecosystem; producedlethal levels of heat and blast; produced radiation and radio-

active: fallout; 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 alllife on the planet; irreversibly damaged the rights of futuregenerations; exterminated civilian populations; damagedneighbouring States; and produced psychological stressand fear syndromes--as no other weapons do.While it was true that there was no treaty or rule of lawwhich expressly outlawed nuclear weapons by name, therewas an abundance of principles of international law, andpartic:ularly international humanitarian law, which left no


10/11

doubt regarding the illegality of nuclear weapons, whenone had regard to the ir known effects.Arnong these principles were the prohibition againstcausing unnecessary suffering, the principle of proportion-ality, the principle of discrimination between combatantsand civilians, the principle against causing dam ai~ eo neutralStates, the prohibition against causing serious and lastingdamage to the environment, the prohibition against geno-cide, and the basic principles of human rights law.In addition, there were specific treaty provisions con-tained in the Geneva Gas Protocol (1925) ancl the HagueRegulations (1 907) which were clearly ap plicable to nuclearweapons, as they prohibited the use of poison:;. Radiationfell directly within this description, and the prohibitionagainst the use of poisons was indeed one of the oldestrules of the laws of w ar.Judge W eeramantry's opinion also draws attention to themulticultural and ancient origins of the laws o:f war, refer-ring to the recog nition of it!; basic rules in Hind u, Bud dhist,Chinese, Judaic, Islamic, African and modern Europeancultural traditions. As such, the humanitarian rules of war-fare were not to be regarded as a new sentiment, inventedin th,e nineteenth century, and so slenderly rooted in uni-versa.1 tradition that they may be lightly overridden.Th.e opinion also points o ut that there cannot be two s etsof the laws of war applicable simultaneously to the sameconflict--one to conven tional weapo ns, and 1:he othe r tonuclear weapons.Judge Weeramantry's analysis includes pl~ilosophicalperspectives showing that no credible legal system couldcontain a rule within itse1.f which rendered 1e:gitimate anact which could destroy the entire civilization of w hich thatlegal system formed a part. Modem juristic discussionsshowed that a rule of this nature, which may find a placein the rules of a suicide club, could not be part of anyreasonab le legal system-and international law wa s pre-eminently such a system.The opinion concludes w ith a reference to the appeal inthe Russell-Einstein Manifesto to "remember your human-ity and forget the rest", without which the risk arises ofuniversal death. In this context, the opinion points out thatintennational law is equipped with the necessary array ofprinciples with w hich to respond , and that intenlational lawcould contribute significantly towards rolling back theshadow of the mushro om clloud, and heralding the sun shineof the nuclear-free age.The question should therefore have been answered bythe Court--convincingly, clearly and categorically.

Dissenting opinion of Judge Koroma

would at the very least result in the violation of the prin-ciples and rules of that law and is therefore unlawful.Judge Korom a also pointed out that although the viewsof States are divided on the question of the effects of theuse of nuclear weapons, or as to whether the matter shouldhave been brought before the C ourt, he took the view thatonce the Court had found that the General Assembly wascompetent to pose the question, and that no compellingreason existed against rendering an opinion, the Court

should have performed its judicial function and decided thecase on the basis of existing international law. He ex-pressed his regret that the Court, even after holding that:"the threat or use of nuclear weapons w ould generally becontrary to the rules of international law applicable inarmed conflict, and in particular the principles and rulesof humanitarian law"-a finding with which he concu rred, save for the word"generallyw-the Cou rt had flinched from answe ring theactual question put to it that the threat or use of nuclearweapons in any circumstance would be unlawful underinternational law.

He maintained that the Court's answer to the questionhad turned on the "survival o f the State", whereas thequestion posed to the Court was about the lawfulness ofthe use of nuclear weapons. He therefore found the Co urt'sJudgment not only untenable in law, but even potentiallydestabilizing of the existing international legal order, as itnot only made States that might be disposed to use suchweapons judges about the lawfulness of the use of suchweapons, but also threw the regime regarding the prohibi-tion of the use of force and self-defence as regulated by theCharter of the United Nations into d oubt, while at the sametime, albeit unintentionally, it made inroads into the legalrestraints imposed on nuclear-weapon States regardingsuch weapons.Judge Koroma, in his dissenting opinion, undertook asurvey of what, in his view, is the law applicable to thequestion, analysed the material before the C ourt and came

to the conclusion that it is wholly unconvincing for theCourt to have ruled that, in view of the "current state ofthe law", it could not conclude definitively whether the useof nuclear weapons would be illegal. In his opinion, notonly does the law exist in substantial and ample form,butit is also precise and the purported lacuna is entirely un-persuasive. In his opinion, there w as no room for a findingof non liquet in the matter before the Cou rt.On the other hand, after analysing the evidence, JudgeKoroma came to the same conclusion as the Court thatnuclear weapons, when used, are incapable of distinguishingbetween civilians and military personnel, and would resultin the death of thousands if not millions of civilians, causeIn his dissenting opinion, Judge Koroma stated that he superfluous injury and unnecessary suffering to sukivors,fundamentally disagreed with the C ourt's finding that: affect future generations, damage hospitals and contami-. . . n view of the currerlt state ofintem atiollal law , and nate the natural environment, food and drinking w ater withof the elements of fact alt its disposal, the Court cannot radioactivity, thereby depriving survivors of the n ~e an s fconclud e definitively wh.ether the threat or use of nuclear survival, contrary to the G eneva Conventions of 1949 andweapons would be lawful or unlawful in an extreme the 1977 Add itional Protocol I thereto. It followe d, there-circumstance of self-defence, in which the very survival fore, that the use of such weapons would be unlawful.of a S tate would b e at stake". His dissent from the C ourt's main finding notwithstand-Su.ch a finding, he maintained , could not be su stained on ing, Judge Koroma stated that the opinion should not bethe basis of existing internitional law, or in the face of the viewed as entirely without legal significance or merit. Theweight and abundance of evidence and material presented norm ative find ings contained in it should be regarded asto the Court. In his view, on the basis of the existing law, a step forward in the historic proce ss of impo sing legalparticularly human itarian law and the material available to restraints in armed conflicts and in reaffirming that nuclearthe C:ourt, the use of nuclear weapon s in any c:ircumstance weapo ns are subject to international law and to the rule of

103


11/11

law. The Court's advisory opinion, in his view, constitutesthe first time in history that a tribunal of this standing h asdeclared and reaffirmed that the threat or use of nuclearweapons that is contrary to Article 2, paragraph 4, of theCharter prohibiting the u se of force is unlawful and wouldbe incompatible with the requirements o f international lawapplicable in armed conflict. T he finding, though qualified,is tantamount to a rejection of the argument that becausenuclear weapons were invented after the advent of humani-tarian law, they are therefore not subject to that law.In conclusion, Judge Korom a regretted that the Court d id

not follow through with those normative conclusions andmake the only possible and inescapable finding that be-cause of their established characteristics, it is impossibleto conceive of any circumstance when the use of nuclearweapons in an armed conflict would not be unlawful. Sucha conclusion by the Court wou ld have been a most invalu-

able contribution by the Court, as the guardian of legalityof the United Nations system, to what has been describedas the most impo rtant aspect of international law facinghumanity today.Dissenting opinion of Judge Higgins

Judge Higgins appended a dissenting opinion in whichshe explained that she was not able to support that keyfinding of the Court in paragraph 2 E. In her view, theCou~rt ad not applied the rules of humanitarian law in asyst:ematic and transparent way to show how it reachedthe conclusion in the first part of paragraph 2 E of thedispositif: Nor was the meaning of the first part of para-graph 2 E clear. Judge H iggins also opposed the non liquetin the second part of paragraph 2 E, believing it to beunnecessary and wrong in law.

Documents

ICJ Summary of Advisory Opinion of 8 July 1996 on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict