LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS

ADVISORY OPINION OF 8 JULY 1996

Digest Author: Cornelio

DOCTRINE:

There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear
weapons.

There is in neither customary nor conventional international law any comprehensive and universal prohibition of the
threat or use of nuclear weapons as such.

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 al1 the requirements of Article 51, is unlawful.

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.

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.

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament
in al1 its aspects under strict and effective international control.

FACTS:

 The question upon which the advisory opinion of the Court has been requested is set forth in resolution 49/75 K
adopted by the General Assembly of the United Nations.
 By an Order, the Court decided that the States entitled to appear before it and the United Nations were likely
to be able to furnish information on the question, in accordance with Article 66, paragraph 2, of the Statute.
 Written statements were filed by the following States: Bosnia and Herzegovina, Burundi, Democratic People's
Republic of Korea, Ecuador, Egypt, Finland, France, Germany, India, Ireland, Islamic Republic of Iran, Italy,
Japan, Lesotho, Malaysia, Marshall Islands, Mexico, Nauru, Netherlands, New Zealand, Qatar, Russian
Federation, Samoa, San Marino, Solomon Islands, Sweden, United Kingdom of Great Britain and Northern
Ireland, and United States of America. In addition, written comments on those written statements were
submitted by the following States: Egypt, Nauru and Solomon Islands.


ISSUE:

1) Whether the Court has jurisdiction to render an advisory opinion – YES

RULING:

Jurisdiction

The Court draws its competence in respect of advisory opinions from Article 65, paragraph 1, of its Statute. Under this
Article, the Court "may give an advisory opinion on any legal question at the request of whatever body may be
authorized by or in accordance with the Charter of the United Nations to make such a request".

For the Court to be competent to give an advisory opinion, it is thus necessary at the outset for the body requesting the
opinion to be "authorized by or in accordance with the Charter of the United Nations to make such a request". The
Charter provides in Article 96, paragraph 1, that: "The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any legal question."
Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to "any questions or
any matters" within the scope of the Charter. Article 11 has specifically provided it with a competence to "consider the
general principles . . . in the maintenance of international peace and security, including the principles governing
disarmament and the regulation of armaments". Lastly, according to Article 13, the General Assemblv "shall initiate
studies and make recommendations for the purpose of. . . encouraging the progressive development of international
law and its codification".

The Court 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.

Merits

The Court observes that the protection of the International Covenant of Civil and Political Rights does not cease in times
of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of
national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to
be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to
be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to
regulate the conduct of hostilities. Thus 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 Covenant, 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 has noted the definitions of nuclear weapons contained in various treaties and accords. It also notes that
nuclear weapons are explosive devices whose energy results from the fusion or fission of the atom. By its very nature, that
process, in nuclear weapons as they exist today, releases not only immense quantities of heat and energy, but also
powerful and prolonged radiation. According to the material before the Court, the first two causes of damage are vastly
more powerful than the damage caused by other weapons, while the phenomenon of radiation is said to be peculiar to
nuclear weapons. These characteristics render the nuclear weapon potentially catastrophic. The destructive power of
nuclear weapons cannot be contained in either space or time. They have the potential to destroy all civilization and the
entire ecosystem of the planet.

Legality/Illegality of the Use of Nuclear Weapons

The Charter contains several provisions relating to the threat and use of force. In Article 2, paragraph 4, the threat or 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. That paragraph provides : "All Members shall refrain in their
international relations from the threat or use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United Nations." 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 VI1 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. A
weapon that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used
for a legitimate purpose under the Charter.

The entitlement to resort to self-defence under Article 51 is subject to certain constraints. Some of these constraints are
inherent in the very concept of self-defence.

The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of
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.

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 signalled
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. If the envisaged use of force is itself unlawful, the stated readiness to use it would be a threat
prohibited under Article 2, paragraph 4. Thus it would be illegal for a State to threaten force to secure territory from
another State, or to cause it to follow or not follow certain political or economic paths. 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.

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; the Court concludes from this that these treaties could therefore be seen
as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition
by themselves.

Prohibition of the threat or use of nuclear weapons under Customary International Law

The Court does not intend to pronounce here upon the practice known as the "policy of deterrence". It notes that it is a
fact that a number of States adhered to that practice during the greater part of the Cold War and continue to adhere
to it. Furthermore, the members of the international community are profoundly divided on the matter of whether non-
recourse to nuclear weapons over the past 50 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.

The Court notes that General Assembly resolutions, even if they are not binding, may sometimes have normative value.
They can, in certain circumstances, provide evidence important for establishing the existence of a rule or the
emergence of an opinio juris. Examined in their totality, the General Assembly resolutions put before the Court declare
that the use of nuclear weapons would be "a direct violation of the Charter of the United Nations; and in certain
formulations that such use "should be prohibited". Although those resolutions are a clear sign of deep concern regarding
the problem of nuclear weapons, they still fall short of establishing the existence of an opinio juris on the illegality of the
use of such weapons

Having said this, the Court 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 practice of deterrence on the other.

Use of Weapons under International Humanitarian Law

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 would likewise refer, in relation to these principles, 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 1 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."

In conformity with the aforementioned principles, humanitarian law, at a very early stage, prohibited certain types of
weapons either because of their indiscriminate effect on combatants and civilians or because of the unnecessary
suffering caused to combatants, that is to Say, a harm greater than that unavoidable to achieve legitimate military
objectives. If an envisaged use of weapons would not meet the requirements of humanitarian law, a threat to engage in
such use would also be contrary to that law.

The Court shares the view 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 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. On the contrary,
the newness of nuclear weapons has been expressly rejected as an argument against the application to them of
international humanitarian law: "In general, international humanitarian law bears on the threat or use of nuclear weapons
as it does of other weapons. International humanitarian law has evolved to meet contemporary circumstances, and is
not limited in its application to weaponry of an earlier time. The fundamental principles of this law endure: to mitigate
and circumscribe the cruelty of war for humanitarian reasons."

None of the statements made before the Court in any way advocated a freedom to use nuclear weapons without
regard to humanitarian constraints.

Finally, the Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an
affirmation that the principles and rules of humanitarian law apply to nuclear weapons.

Principle of Neutrality

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.

On applying the law on use of force

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. This provision is
worded as follows: "Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective
measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty
on general and complete disarmament under strict and effective international control."

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 al1 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 NonProliferation of Nuclear Weapons, or, in other words, the vast majority of the international community. Virtually
the whole of this community appears moreover to have been involved when resolutions of the United Nations General
Assembly concerning nuclear disarmament have repeatedly been unanimously adopted. Indeed, any realistic search
for general and complete disarmament, especially nuclear disarmament, necessitates the Coooperation of all States.