Legality of the Threat or Use of Nuclear Weapons - (Request for Advisory Opinion by the General Assembly of the United Nations) - Advisory Opinion

INTERNATIONAL COURT OFJUSTICE
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Communiqué

unofficial
for inmediaterelease

No. 96/23
8 July 1996

Le-alie of the Threat or Use of Nuclear Weapons
uest for Advisory~inion bv the General Assembly of the United Nations)

Advisory Opinion

The Hague, 8July 1996. TheInternationalCourtof Justicetodayhandeddown its Advisory
Opinion on the request made by the General Assembly of the United Nations in the.
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: PresidentBedjaoui; Vice-President Schwebel; Jud~esGuillaume,
Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer,Koroma,
Vereshchetin, Ferrari Bravo, Higgins;

AGAINST: Jud~eOda.

(2) Re~lies 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
authorizationof the threat or use of nuclear weapons;

B. By eleven votes to three,

There is inneithercustomarynor conventionalinternationallawany comprehensive
and universal prohibition ofthe threat or use of nuclear weaponsas

IN FAVOUR: PresidentBedjaoui; Vice-President Schwebel; Jud~esOda, Guillaume,
Ranjeva, Herczegh, Shi,Fleischhauer, Vereshchetin, Ferrari Bravo,Higgins;

AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.

C. Unanimously,

A threat or use of force by of nuclear weaponsthat is contraryto Article 2,
paragraph 4, oftheUnited NationsCharterandthatfailsto meetal1the requirements
of Article1, is unlawful; D. Unanimously,

A threat oruse of nuclear weapons should alsobe compatiblewith the requirements
of the international law applicable in anned conflict particularly those of the
principles and rules of international humanitarian law, as well as with specific
obligationsunder treatiesand other undertakingswhich expressly dealwith nuclear
weapons;

E. By seven votes to seven, by the President'scasting vote,

It follows from the above-mentioned requirementsthat the threat or use of nuclear
weaponswould generally be contraryto the rules of internationallaw applicablein
armed conflict, andin 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 cannotconcludedefinitivelywhether 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; Judnes Ranjeva, Herczegh, Shi, Fleischhauer,

Vereschetin, Ferrari Bravo;

AGAINST: Vice-PresidentSchwebel;JudgesOda,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 ail its aspects under strict and
effective internationalcontrol".

The Court was composed as follows: President Bedjaoui, Vice-President Schwebel;
Jud~es Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer,
Koroma, Vereshchetin, Ferrari Bravo, Higgins; Reeistrar Valencia-Ospina.

President Bedjaoui, Judges Herczegh, Shi, Vereshchetin and Ferrari Bravo appended
declarationsto the Advisory Opinion ofthe Court; Judges Guillaume, Ranjeva and Fleischhauer
appended separateopinions; Vice-PresidentSchwebel,JudnesOda Shahabuddeen, Weeramantry,
Koroma and Higgins appended dissenting opinions.

(A brief summaryof the declarationsand of the opinionsmay be foundin the Annexto this
Press Communiqué.)

The printed text of the Advisory Opinion and of the declarations and opinions appendedto
itwill becomeavailableindue course(ordersandenquiriesshouldbe addressedto theDistribution
and Sales Section, Office of the United Nations, 1211 Geneva 10; the Sales Section, United
Nations, New York, N.Y. 10017; or any appropriatespecialized bookshop).

A summary of the Advisory Opinion is given below. It has been prepared by the Registry
forthe use ofthe Pressand in no way involvesthe responsibilityof the Court. It cannotbe quoted
against the text of the Advisory Opinion, of which it does not constitute an interpretation. Summary of the Advisorv O~inion

Submission of the request and subsequent procedure (paras. 1-9)

The Court beginsbyrecallingthat by a letterdated 19 December 1994, filed intheRegistry
on 6 January 1995, the Secretary-General of the United Nations officially communicatedto the
Registrar the decision taken by the General Assembly to submit a question to the Court for an
advisory opinion. The finalparagraphof Resolution 49/75 K, adopted by the General Assembly
on 15 December 1994,which sets forth the question, provides that the General Assembly

"Decides,pursuanttoArticle 96,paragraph 1,oftheCharteroftheUnited Nations,torequest
the InternationalCourt of Justice urgentlyto render itsadvisory opiniononthe followingquestion:
'1sthe threat or use of nuclear weaponsin any circumstance permittedunder internationallaw?."

The Court then recapitulatesthe various stages of the proceedings.

Jurisdiction of the Court paras. 10-18)

The Court first considerswhether it hasthejurisdiction to give a reply to the request of the
General Assembly foran Advisory Opinion andwhether, shouldthe answer be in the affirmative,
there is any reason it should decline to exerciseany suchjurisdiction.

The Court observesthatitdraws its competencein respectof advisory opinionsfromArticle
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 SecurityCouncilmayask for an advisory opinionon any legalquestion 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 Assemblyhas
competencein anyeventto seisethe Court. Referringto Articles 10,11and 13ofthe 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 includingthose relating to the threat or use of
force in international relations, the disarmament process, andthe 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 ofa reply based on law .. .[and] appear ... to be questions
of a legal character" (WesternSahara.Adviso~ 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 askedto rule on the compatibilityof the threat or use of nuclear weaponswith
the relevant principles and rules of international law. To do this, the Court must identi% the
existing principlesand rules,interpretthem andapplythem to the threat oruse of nuclearweapons,

thus offering a reply to the question posed basedon 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 "legalquestion" and to "deprivethe Court of a competenceexpressly conferred on
it by its Statute". Nor are the political nature of the motives whichmay 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 togive 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 mg give an advisory
opinion .. ." (Emphasis added.) This is more than an enabling provision. As the Court has
repeatedlyemphasized,the Statute leaves a discretionas to whetheror not it will givean 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:

"TheCourt'sOpinion is given not to the States, butto the organ which is entitled
to request it; the reply of the Court, itselfan 'organ ofthe United Nations', represents
its participationin the activities of the Organization,and, in principle, shouldnot be
refused." (Interpretationof Peace Treatieswith Bulgaria.Hun-ary and Romania.First
Phase. Advisory Opinion. I.C.J. Reports 1950,p. 71; .. .)"

Inthe history ofthe presentCourttherehasbeen norefusal,based onthe discretionarypower
of the Court, to act upon a request for advisoryopinion; inthe case concemingthe Le-aiity of the
Use bv a State of Nuclear Wea~ons in Armed Conflict the refusa1to give the World Health
Organization theadvisory opinion requested by it was justified by the Court'slack ofjurisdiction

in that case.

Severalreasonswere adduced in these proceedingsinorderto persuadethe Courtthat inthe
exerciseof its discretionarypower it should declineto renderthe opinion requestedbythe General
Assembly. Some States, in contending that the question put to the Court is vague and abstract,
appearedto meanbythis that there exists no specificdisputeonthe subject-matterofthe question.
In orderto respondto this argument, itis necessaryto distinguishbetweenrequirementsgoverning
contentious procedure and those applicable to advisory opinions. The purpose of the advisory
function is not to settleat least directly-disputes between States,but to offer legaladvice to the
organsand institutionsrequestingthe opinion. The fact thatthe question putto the Court doesnot
relate to a specific dispute should consequentlynot lead the Court to decline to give the opinion
requested. Otherarguments concernedthe fearthat the abstract natureof the questionmight lead
the Courtto makehypotheticalor speculativedeclarationsoutsidethe scopeof itsjudicial function;

the factthat the General Assemblyhas not explainedto theCourtforwhatprecisepurposesit 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 interestof 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 Courtdoes not acceptthose argumentsand concludesthat it hasthe authorityto deliver
an opinion on the question posed bythe General Assembly, and that there exist no "compelling
reasons"which would lead the Court to exercise its discretionnot to do so. It points out, however,
that it is an entirely different question whether, under the constraintsplaced upon it as a judicial
organ, itwill be able to give a complete answerto the questionasked of it. But that is a different
matter from a refusa1to answer at ail.Formulation of the question posed (paras. 20 and 22)

TheCourt finds it unnecessaryto pronounceonthe possible divergencesbetweenthe 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 conceming the legal
conclusions to be drawn from the use of the word "permitted",and thequestions 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 noms availableto 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 fromthe 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 entai1the 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 lawrelatingto the protection andsafeguardingofthe environment doesnot specifically
prohibit the use of nuclear weapons, it indicates important environmental factorsthat 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 concludesthat the most directly relevant applicable
law governingthe 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 specifictreatieson nuclearweaponsthatthe 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 destructivecapacity,their capacity to causeuntold human suffering, and their ability to cause

damage to generations to come.

Provisions of the Charter relatingto 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 recognizesthe inherent rightof individualor
collective self-defence if an armed attack occurs. A further lawful use of force is envisaged in

Article 42, wherebythe SecurityCouncil may take military enforcementmeasures in conformity
with Chapter VI1of the Charter.

Theseprovisionsdonotreferto specificweapons. Theyapplyto anyuseof 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
necessityandproportionality. As the Court stated in the caseconcemingMilita- and Paramilita~y
-gus Niçaraeuaicvr.gunited Statesof America)(1.C.J.Reports 1986,
p. 94,para. 176): "thereis aspecificrulewhereby self-defencewouldwarrantonlymeasures which
are proportional to the armed attack and necessary to respond to it, a rule well established in

customary international law".

The proportionalityprinciple may thus not in itself exclude the use of nuclear weapons in
self-defencein al1circumstances.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 arrnedconflict which comprise in particularthe principlesand rules of humanitarian
law. And the Court notes that the very nature of al1nuclear weapons and the profound risks
associated therewith are further considerations to be borne in mind by States believingthey can
exercisea nuclearresponse in self-defencein accordancewiththe requirementsof proportionality.

In orderto lessen or eliminatethe risk of unlawfulattack, States sometimessignalthat they
possess certainweapons to use in self-defenceagainst any Stateviolatingtheir territorial integrity
or political independence. Whethera signalled intention touse 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, paragraph4, of the Charter standtogether
in the sensethat ifthe use of force itself in a given case is illegal- for whatever rea-the threat
to use such force will likewisebe illegal. In short, if it is to be lawfûl, the declared readiness of
a Stateto use force must be a use of force that is in conformitywith the Charter. For the rest, no
State - whether or not it defendedthe policy of deterrence -suggestedto the Court that it would
be lawful to threaten to use force if the use of force contemplatedwould be illegal.

Rules on the lawfulness or unlawfulnessof nuclear weapons as such (paras. 49-73)

Havingdealtwith theCharterprovisionsrelatingtothethreat or useofforce, the Courtturns
to the law applicable in situationsof armed conflict. Itfirst addressesthe question whether there
are specific rules in international law regulating the legality or illegality of recourse to nuclear
weapons per se; it then examinesthe questionput to it inthe light of the law applicable in armed

conflict proper, i.e. the principles and rules of humanitarianlaw applicable in armed conflict, and
the law of neutrality.

The Courtnotes by way of introductionthat internationalcustomaryandtreaty lawdoes not
contain any specific prescription authorizing the threat or use of nuclear weapons or any other
weapon in generalor in certaincircumstances,in particularthoseof the exerciseof legitimateself-
defence. Nor, however, is there any principle or rule of internationallaw which would makethe
legality of the threat or use of nuclear weaponsor of any other weaponsdependent 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 contras., is formulated in terms of
prohibition. It does not seem to the Courtthat the use of nuclearweaponscan be regarded as specifically
prohibited on the basis of certain provisions of the Second Hague Declaration of 1899, the
RegulationsannexedtotheHagueConventionIVof 1907orthe 1925GenevaProtocol.Thepattern
until now has beenfor weaponsof mass destruction tobe declared illegal by specific instruments.
But the Court does not find any specific prohibition of recourse to nuclear weapons in treaties
expressly prohibitingthe useof certain weapons ofmassdestruction; and observes that, although,
inthe lasttwo decades, agreatmanynegotiationshavebeen conductedregardingnuclearweapons,
they have not resultedin a treaty of general prohibition oftheekind as for bacteriologicaland
chemical weapons.

The Court notes that the treaties dealing exclusively with acquisition, manufacture,

possession,deploymentandtestingof nuclearweapons,without specificallyaddressingtheirthreat
or use,certainlypoint to an increasingconcern inthe international communitywiththese weapons;
It concludesfiom this that thesetreaties couldthereforebe seen as foreshadowinga 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
declarationsmadeinconnectionwith the indefiniteextensionoftheTreatyontheNon-Proliferation
of Nuclear Weapons, it emergesfrom these instrumentsthat:

@ a number of States have undertaken not to use nuclear weapons in specific zones (Latin
America; theSouth Pacific)or againstcertain otherStates (non-nuclear-weaponStateswhich
are parties to the Treaty on the Non-Proliferationof Nuclear Weapons);

&J nevertheless, even within this framework,the nuclear-weaponStates have reserved the right
to use nuclearweapons 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 Courtthen turnsto an examinationof customary internationallawto determinewhether
a prohibition of the threat or use of nuclearweapons as such flows fiom that source of law.

It notes that the Members of the internationalcommunity are profoundly divided on the
matter of whether non-recourse to nuclear weapons over the past fifty years constitutes the
expressionof an gpiniojuris. Under these circumstancesthe Court doesnot consider itself ableto
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 toconclude 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 specificallyprohibiting theuse of nuclear weapons as such is hampered
by the continuingtensions between the nascent opiniojuris on the one hand, and the still strong

adherenceto the doctrine of deterrence(inwhich the right to use those weapons in the exercise of
the rightto self-defenceagainst an armedattackthreateningthe vital security interests of the State
is reserved) on the other.

International humanitarianlaw (paras. 74-87)

Not having found a conventional mle of general scope, nor a customary rule specifically
proscribing the threat or use of nuclear weapons ger se, the Court then deals with the question
whetherrecourseto nuclear weaponsmustbeconsideredas illegalinthe light of the principlesand
rules of international humanitarianlaw applicable in armed conflict and ofthe law of neutrality. Afier sketchingthe historicaldevelopmentof the bodyof rules which originallywere called
"laws andcustoms of warnandlatercame to be termed "internationalhumanitarian law",the Court
observes that the cardinal principlescontained in the texts constitutingthe fabric of humanitarian
law are the following. The first is aimed at the protection of the civilian population and civilian
objects andestablishesthe distinctionbetween combatantsandnon-combatants; Statesmust never
make civiliansthe objectof attackand must consequentlyneveruse weaponsthat 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 oruselessly aggravating their suffering. In application of that
secondprinciple, Statesdonot haveunlimited freedomof choiceof meansinthe weapons theyuse.

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
modem version of that clause is to be found in Article 1,paragraph2, of AdditionalProtocol 1of
1977, which reads as follows:

"In cases not covered by this Protocol or by other international agreements,

civilians and combatantsremain under the protection and authority of the principles
of internationallawderivedfromestablished custom, fiom the principles of humanity
and fiom the dictates of public conscience."

Theextensivecodificationofhumanitarianlawandthe extentoftheaccessiontotheresultant
treaties, aswell as the factthat the denunciationclausesthat existed inthe codificationinstruments
have never been used, have providedthe internationalcommunitywith a corpus oftreaty rules the
great majority of which had alreadybecome customary and which reflectedthe most universally
recognized humanitarian principles. These rules indicate the normal conduct and behaviour
expected of States.

Tuming to the applicability ofthe principles and rules of humanitarian law to a possible
threat or use of nuclear weapons, the Court notes that nuclear weapons were inventedafier most
of theprinciplesand rulesof humanitarianlaw applicable in armed conflicthad alreadycome into
existence; the Conferences of 1949 and 1974-1977 left these weapons aside, and there is a
qualitative as well as quantitativedifference between nuclear weapons and al1conventionalarms.
However, in the Court's view,it cannotbe concluded fiom this that the establishedprinciples and
rules of humanitarian law applicable in armed conflict did not apply to nuclear weapons. Sucha
conclusion would be incompatible with the intrinsically humanitarian character of the legal
principles in questionwhich permeatesthe entire law of armed conflictand appliesto al1forms of

warfare andto al1kinds of weapons,those of the past, those ofthe presentand those of the future.
In this respectit seems significantthat 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 Courtfindsthat as in thecase of the principlesof humanitarianlaw applicablein armed
conflict, international law leaves no doubt that the principle of neutrality, whateverits content,
which is of a fundamental character similar to that of the humanitarian principles andrules, is

applicable (subject to the relevant provisions of the United Nations Charter), to al1intemational
armed conflict, whatevertype of weapons might be used.

Conclusionsto be drawn from the applicability of internationalhumanitarian lawand the
principle of neutrality(paras. 90-97)

TheCourtobservesthat, althoughthe applicabilityoftheprinciplesandrulesofhumanitarian
law and ofthe principle of neutralityto nuclear weapons is hardly disputed,the conclusionsto be
drawn fiom this applicability are, on the other hand, controversial. According to one point of view, the fact that recourse to nuclear weapons is subjectto 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 compatiblewith the principles and rules
of humanitarian law and is therefore prohibited. A similarview has been expressed with respect
to the effects of the principle of neutrality. Likethe 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 considersnevertheless,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 illegalityof the use of nuclear weapons
by a State in an extremecircumstance of self-defence, inwhich 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 al1the law applicable inarmed conflictto nuclear weapons, the Court considersthat 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 disarmamentappears 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 theNon-Proliferation ofNuclear Weaponsof an obligationto 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 al1its 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 forgeneral and completedisarmament,especially nuclear
disarmament, necessitates the CO-operationof al1States.

TheCourt finally emphasizesthat itsreply 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, al1their importance. Annex to Press CommuniauéNo. 96/23

Declaration of President Bedjaoui

Afier having pointed out that paragraph E of the operative part was adopted by seven votes
to seven, with his own castingvote, President Bedjaoui began by stressingthat the Court had been
extremely meticulous and had shown an acute sense of its responsibilities when proceeding to
consider al1the 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 thatthe 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 obsemed 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 emphasising the particularly exacting nature of international law
and the way in which it is designed to be applied in al1 circumstances. More specifically, he
concluded that "the vey nature of this blind weapon therefore has a destabilizing effect on

humanitarian law which repulates 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 weaDonsis therefore a challen~eto the very existence of humanitarian law, not to mention
their long-term effects of damage to the human environment, in respect to which the richt to life
can be exercised".

President Bedjaoui consideredthat "self-defence - if exercisedunder extreme circumstances
in which the very sumival of a State is in question - cannot engender a situation in which a State
would exonerate itself fiom compliance with the "intrans~ressible" noms of international
humanitarian law". According to him it would be very rash to accord, without any hesitation, a
higher priority to the sumival of a State than to the sumival 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
considersfor his part that it is possible to go beyond the conclusions of the Court inthis regard and
to assert "that there in fact exists a twofold general obli~ation,opposable erga omnes, to negotiate
in good faith and to achieve a specified result"; in other words, given the at least formally
unanimous supportforthat object,thatobligation hasnow - inhis view -assumedcustomaryforce.Declaration of Judge Hercze~h

Judge Herczegh, in his declaration, takes the view that the Advisory Opinioncould 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". Hevoted in favour of
the Advisory Opinionand, more particularly, in favour of paragraph 105,sub-paragraphE, as he
did not wish to disassociatehimself fromthe largenumber ofconclusionsthat were expressedand
integrated into the Advisory Opinion, and which he fully endorses.

Declaration Judye Shi

Judge Shi has voted in favour of the operative paragraphsof the Advisory Opinionof the
Court. However, he has reservationswith regardto the role whichthe Court assigns tothe policy
of deterrence in determiningthe existence of a customary rule on the use of nuclearweapons.

In his view, "nucleardeterrence"is an instrumentof policyto whichcertain nuclear-weapon
States, supported by those States accepting nuclear umbrella protection,adhere in their relations
with other States. Thispractice is within the realm of internationalpolitics 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 hardlycompatiblewith the Court'sjudicial function ifthe 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 importantand powefil members of the international community and playing
an importantrole on the stage of internationalpolitics, 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 Statesand their allies in termsof material
power, rather should have regard of them fiom the standpointof international law. Any undue
emphasisonthe practiceof thesemateriallypowerfulStates,constitutinga fraction of membership
of the community of States, would not only be contray to the principle of sovereignequality 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 nuclearweapons.

Declaration of Judge Vereshchetin

In his declaration Judge Vereshchetin explains the reasons whichhave led him to vote in
favour of paragraph 2Eof the dispositif,which carries the implicationofthe indecisivenessof the
Court. In his view, in advisory procedure, wherethe Court is requested not to resolve an actual
dispute, but to state the law as it finds it, the Court may not try to fil1any lacuna or improve the
law which isimperfect. The Court cannot be blarnedfor indecisivenessor evasivenesswhere the
law, upon which it is called to pronounce, is itself inconclusive.

Judge Vereshchetin is of the view that the Opinion adequatelyreflects the current legal

situation and shows the most appropriate means to putting an end to the existence of any "grey
areas" in the legal statusof nuclear weapons.

Declaration of Judge Ferrari Bravo

JudgeFerrari Bravoregretsthatthe Court should havearbitrarilydivided intotwo categories
the long line of General Assembly resolutionsthat deal with nuclear weapons. Thoseresolutions
are fundamental. This is the case of resolution 1(1) of 24 January 1946,which clearly points to
the existence of a truly solemn undertaking to eliminate al1forms of nuclear weapons, whosepresence in military arsenals was declared unlawful. TheCold War, which intervened shortly
afterwards,preventedthedevelopmentof this concept of illegality, whilegivingrise to the concept
of nuclear deterrencewhich has po lepal value. The theory of deterrence,while it has occasioned
a practice of the nuclear-weaponStatesand their allies, has not beenableto 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 Assemblyresolutions. Thesehave, fromthe outset,contributedto the formation of a rule
prohibiting nuclear weapons. Thetheory of deterrence hasarrested 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 remainedunchanged and continues to
produce its effects, at leastwith 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 Judye Guillaume

Afier having pondered upon the admissibility of the request for advisory opinion,
Judge Guillaume begins by expressing his agreementwith the Court with regard to the fact that
nuclear weapons, like al1weapons, 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

applicabilityoftraditionalhumanitarianlawto the use -andaboveal1thethreatof 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 beforethe Court between the States.

Moving on to an analysis of the law applicable to armed conflict, he notes that that law
essentially implies comparisonsin which humanitarian considerationshaveto be weighed against
military requirements. Thus the collateral damage caused to the civilian populationmust not be
"excessive"as comparedto the "military advantage"offered. The harmcausedto combatantsmust
not be "greaterthan that unavoidableto achieve legitimatemilitary objectives". Onthat account,
nuclear weapons of mass destruction can only be used lawfully in extreme cases.

In anattempt to define those cases, Judge Guillaumestressesthat neither the Charter of the

United Nations, nor any conventional or customary rule can detract from the natural right of
self-defencerecognizedby Article 51of the Charter. He deducesfrom 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 stressesthat 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 providesno guidanceto States. However
if the law issilent on that matter, the States, in the exercise oftheir sovereignty, remainfiee to act
as they think fit.

Consequently, it follows implicitly but necessarily from paragraph 2 E of the Court's
Advisory Opinionthatthe Statesmayresortto "thethreat or useof nuclearweapons 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 Judoe Ranjeva

In his separateopinion, JudgeR. Ranjeva has made a pointof emphasisingthat, for the first
time, the Court has unambiguously statedthat 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 andulesof humanitarian law. That indirect responseto the question of the General Assembly is, in his view,justified by the very natureof the lawof armedconflict,
applicable without regard tothe status of victim or of aggressor, and that explainswhy the Court
has not gone so far as to uphold the exceptionof extreme self-defencewhenthe very survival of
the State is at stake,as a condition for the suspension of illegality. In hisview,the Statepractice
showsthat a point of no return has beenreached: the principle of the legality ofthe useor threat

of useof nuclearweaponshasnot beenasserted; it is onthe basisof ajustification of anexception
to thatprinciple,acceptedasbeing legal,thatthe nuclear-weaponStatesattemptto givethe reasons
for their policies, and the increasingly closer-knit legal régimes of nuclear weaponshave come
about in the context of the consolidation andimplementationof the final obligation toproduce a
specificresult, Le.,generalizednuclear disarmament. These "givens"thus represent theadvent of
a consistent and uniform practice: an emergent ppinio juris.

Judge Ranjeva considers, however,that the equal treatment that the Advisory Opinion has
given to the principles of legality and illegalitycannot be justified. The General Assemblygave
a very clear definition of the object of its question: does international law authorize the use or
threat of use of nuclear weaponsin anycircumstance? By dealing atthe sametime 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,whilebeing aware of the criticismsthat specialistsin law and
judicial matters will be bound to level at the Advisory Opinion, ultimatelyconsiders that it does
declare the law as it is, while laying down boundaries the exceedingof which is a matter for the
competenceof States. He nonetheless hopesthat no Court will everhave to reacha decisionalong
the lines of the second sub-paragraphof paragraph E.

Se~arate o~inionof Judpe Fleischhauer

Judge Fleischhauer'sseparateopinionhighlightsthat internationallawisstill grapplingwith
and has not yet overcomethe dichotomythat is created by the very existenceof nuclearweapons
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-defenceon the other. Theknown
qualitiesof nuclearweaponslettheir useappearscarcelyreconcilablewith humanitarianlaw,while
the rightto self-defencewouldbe severelycurtailed if for a State,victim of anattack withnuclear,
chemical or bacteriological weapons or othenvise constituting a deadly menace for its very
existence, nuclear weapons were totally ruledout as an ultimate legal option.

The separateopinionendorsesthe Court's findingthatinternationallawapplicable in armed

conflict, and particularlythe rules and principles of humanitarian law,applyto nuclear weapons.
It goes on to agree with the Court'sConclusionthat the threat or use of nuclear weapons would
generally be contraryto the rules applicablein armed conflict, and in particularthe principles and
rules of humanitarianlaw. The separateopinion then welcomes that the Courtdid not stopthere,
but that the Court admittedthatthere canbe qualificationsto that finding. Hadthe Courtnot done
so, then it would have given prevalenceto one set of the principles involvedover the other. The
principles involved are, however, al1legal principles of equal rank.

The separate opinion continues that the Court could and should have gone further andthat
it could and should have stated,that in order to reconcile the conflictingprinciples,their smallest
common denominatorwould apply. That means that recourse to nuclear weapons couldremain a
justified legal optionin an extreme case of individual or collective self-defenceas the last resort

of a State victim of an attack with nuclear, bacteriological or chemical weapons or otherwise
threatening its very existence. The separateopinion sees a confirmation ofthis view inthe legally
relevant State practice relating to matters of self-defence. For a recourse to nuclear weapons to be consideredjustified, however, not only would the
situation have to be extreme, but al1the conditionson which the lawfulness of the exercise of the
right of self-defence depends in international law, inciuding 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 separateopinionendorsesthe existenceof a general obligationof Statesto pursue

in good faith, and bring to a conclusion, negotiations leading to nuclear disarmament in al1 its
aspects under strict and effective international control.

Dissentin- 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 self-defence, 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
Ourage that it has no opinion ...that international law and hence the Court have nothing to Say.
After many months of agonizingappraisal of the law, the Courtdiscoversthat there is none. When
it comes to the supreme interests of State, the Court discards the legal progress of the Twentieth

Century,puts asidethe provisions ofthe UnitedNations Charterof which it is 'theprincipaljudicial
organ',and proclaims, in terms redolent of Realpolitik, its ambivalenceabout the most important
provisions of modem international law. Ifthis wasto be its ultimate holding,the Court would have
done better to have drawn on its undoubted discretion not to render an Opinion at all."

TheCourt'sinconclusivenesswas inaccordance neither with itsStatute,nor itsprecedent, 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

applicationof 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 al1of the
earth, could be lawful." The Court's conclusion that the threat or use of nuclear weapons
"generally" would be contrary to the niles 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 demonstratesthat nuclear weapons have been manufactured and deployed
for some 50years; 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 al1

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
persistentobjector, but a practice ofthe permanent Members of the Security Council, supported by
a large and weighty number of other States, who together representthe bulk of the world'spower
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 resolutionsto the contraryare not law-makingor declaratoryof existing
internationallaw. When facedwith continuingandsignificantopposition,the repetition of General
Assembly resolutions is a mark of ineffectualityin law formationas it is in practical effect.

Dissentine o~inion of Judoe Oda

Judge Oda voted against part one of the Court'sAdvisoryOpinion because of hisview that,
for the reasons of judicial propriety and judicial economy, the Court should have exercised its
dicretionary power to refrain from renderingan Opinion in response to the Request.

In the view of JudgeOda,the questioninthe Request isnotadequatelydrafted andthere was
a lack of meaningful consensus of the General Assembly with regard to the 1994 Request. After
examiningthe developmentsof the relevant General Assemblyresolutionson a conventionon the
prohibition of the use of nuclear weaponsup to 1994, he notesthat the General Assembly is far
fromhaving reached anagreementonthe preparationof a Conventionrenderingthe useof nuclear
weapons illegal. In the light of that history, the Request was prepared anddrafted -not in order
to ascertain the status of existing international law on the subject but to try to promotethe total
elimination of nuclear weapons - that is to Say,with highly plitical motives.

He notes that the perpetuationof the NPT régimerecognizestwo groups of States -the five
nuclear-weaponStatesandthe non-nuclear-weaponStates. Asthefive nuclear-weaponStateshave
repeatedly given assurancesto the non-nuclear-weapon States oftheir intention notto usenuclear
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 shouldonly 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'srequestthattheCourtgiveanadvisoryopinionontheexistinginternationallawrelating
to the use of nuclear weapons. He also emphasizesthat fromthe standpointof judicial economy
the right to request an advisory opinion shouldnot be abused.

In concludinghis Opinion, JudgeOda stresseshis earnest hopethat nuclearweaponswill be
eliminated from the world but states that the decison on this matter is a function of political
negotiations among States in Geneva (the Conference on Disarmament) or New York (United
Nations) but notone which concerns this judicial institution in The Hague.

He voted against sub-paragraphE as the equivocationscontainedtherein serve, in his view,
to confirm his pointthat it wouldhave been prudentfor the Courtto declinefromthe outsetto give
any opinion at al1in the present case.

InJudge Shahabuddeen'sdissentingopinion,the essenceofthe GeneralAssembiy'squestion
was whether, in the special case of nuclear weapons, itwas possible to reconcile the imperative
need ofa Stateto defend itself with theno less imperative needto ensure that, in doingso, it did
not imperil the survival of the human species. If a reconciliation was not possible, which side
shouldgive way? The questionwas, adrnittedly,a difficultone; but the responsibilityofthe Court
to answer it was clear. He was notpersuadedthat there was anydeficiencyin the lawor the facts
which prevented the Court from returning a definitive answer to the real point of the General
Assembly's question. Inhis respectful view, the Court shouldand could have givena definitive
answer -one way or another.

dissent in^opinion Of Jud~eWeeramantw

Judge Weerarnantry's Opinion is based on the proposition that the use or threat of use of
nuclear weapons is illegalinany cire-ces whatsoever. Itviolates the fundamentalprinciples
of internationallaw, and represents thevery negation of the humanitarianconcerns whichunderliethe structureof humanitarianlaw. It offendsconventionallaw and, in particular, the GenevaGas
Protocol of 1925, and Article 23u of the Hague Regulations of 1907. It contradicts the
fundamentalprinciple of the dignity andworth of the humanperson on which al1law depends. It
endangers the human environment in a manner whichthreatens 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 whichwere of value, in that it
expressly held that nuclear weapons were subject to limitations flowingfrom the United Nations
Charter, thegeneralprinciplesofinternationallaw,theprinciplesofinternationalhumanitarianlaw ,
and by a variety of treaty obligations. It was the first internationaljudicialdeterminationto this
effect and further clarificationswere possible in the future.

Judge Weeramantry's Opinionexplained thatfrom the time of Henri Dunant, humanitarian
law tookits origin and inspirationfrom a realisticperceptionofthe brutalitiesof war, and theneed

to restrain them in accordance with the dictates of the conscienceof humanity. The brutalities of
the nuclearweaponmultiplieda thousand-fold al1the brutalitiesofwar as knowninthepre-nuclear
era. It was doubly clear therefore that the principles of humanitarianlaw governed this situation.

HisOpinion examinedin some detailthebrutalitiesofnuclearwar, showingnumerousways
in which the nuclear weaponwas unique, even among weaponsof mass destruction in injuring
human health, damagingthe environment, and destroying al1the values of civilization.

The nuclear weaponcauseddeath anddestruction; inducedcancers, leukaemia, keloidsand
related afflictions;caused gastro intestinal, cardiovascularand related afflictions; continued, for
decades after its use, to induce the health-related problems mentionedabove; damaged the

environmentalrights of future generations; caused congenitaldeformities, mental retardationand
geneticdarnage; carried the potential tocause a nuclear winter; contaminated anddestroyed the
food chain; imperilled the eco-system; produced lethal levels of heat and blast; produced
radiation and radioactivefall-out; produced a disruptive electromagneticpulse; produced social
disintegration; irnperilled al1 civilization; threatened human survival; wreaked cultural
devastation; spanned a time range of thousands of years; threatened al1 life on the planet;
irreversiblydamaged therightsof futuregenerations; exterminated civilianpopulations; damaged
neighbouringStates; produced psychologicalstress and fearsyndromes - as no other weaponsd~.

While it was true that there was notreaty or rule of law which expressly outlawed nuclear
weapons by name, there was an abundance of principles of international law, and particularly

international humanitarianlaw, which left no doubt regarding the illegalityof 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 discriminationbetween combatants andcivilians, the
principle against causing damage to neutral States, the prohibition against causingserious 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),andtheHagueRegulations (1907)whichwere clearlyapplicableto nuclear weaponsas they
prohibited the use of poisons. Radiationdirectly fell withinthis description, and the prohibition
against the use of poisons was indeed oneof the oldest rules of the laws of war.

Judge Weeramantry's Opinion also draws attentionto the multiculturaland ancient origins
of the laws of war, referring to the recognition of its basic rules in Hindu, Buddhist, Chinese,
Judaic, Islamic,African,andmodem Europeanculturaltraditions. Assuch, thehumanitarianrules
of warfarewere not to be regarded as a new sentiment, inventedin the nineteenthcentury, and so
slenderly rooted in universal tradition that they may be lightly overridden. The Opinion also points outthat there cannotbe two sets of the lawsof war applicable
simultaneouslyto the same conflict - one to conventionalweapons, and the other to nuclear
weapons .

Judge Weerarnantry's analysisincludes philosophicalperspectivesshowingthatno credible
legalsystemcould containa rulewithinitself whichrenderedlegitimateanactwhichcoulddestroy
theentirecivilizationofwhichthatlegalsystemformed apart. Modernjuristic discussions showed

that a rule of this nature, whichmay fmd a placein the rules of a suicideclub, couldnot be part
of any reasonable legal system - and international lawwas pre-eminentlysuch a system.

The Opinionconcludeswith a referenceto the appealin the Russell-Einstein Manifesto to
"rememberyour humanityand forget therest", withoutwhichthe risk arisesof universaldeath.
In this context, the Opinion pointsoutthat internationallaw is equippedwiththe necessaryarray
of principles with which to respond, and that international law couldcontribute significantly
towards rollingback the shadowofthemushroomcloud, andheraldingthesunshineofthenuclear-
free age.

The questionshouldthereforehavebeen answeredby theCourt - convincingly,clearly,and
categorically.

In his Dissenting Opinion,Judge Koroma stated thathe fundamentally disagreed with the
Court's findingthat:

"...in view of the current state of internationallaw, and of the elementsof fact at its
disposal, the Courtcannotconcludedefinitively whetherthe threator useofnuclear weapons
wouldbe lawfulor unlawfulin an extreme circumstanceof self-defence, in whichthe very
su~ival of a State wouldbe at stake".

Such a finding, he maintained,couldnot be sustainedon the basis of existinginternational
law, nor inthe face of theweight and abundanceof evidenceand materialpresentedto theCourt.
In his view, on the basis of the existing law, particularly humanitarianlaw and the material
available to the Court, the use of nuclear weaponsin any circumstancewould at the very least
result in the violationof the principles andrules of that law andis thereforeunlawful.

Judge Koromaalso pointed outthatalthoughthe viewsof states are dividedon thequestion
ofthe effectsofthe useof nuclear weapons,or asto whetherthe matter shouldhavebeenbrought
before the Court, he tookthe view thatonce the Court had foundthat the GeneralAssemblywas
competent toposethe question,and that nocompellingreasonexistedagainstrenderinganopinion,
the Court should haveperforrneditsjudicial function anddecidethe case onthe basisof existing
international law. He expressedhis regret that the Court, even after holdingthat:

"the threat or use of nuclear weapons wouldgenerally be contrary to the rules of
internationallaw applicablein armed conflict,and in particular the principlesand rules of
humanitarian law ".

A finding with whichhe concurred, Savefor the word "generally"- the Courthad flinchedfrom
answeringtheactualquestionputto itthatthethreator use ofnuclearweapons inany circurnstance

wouldbe unlawful under internationallaw.

He maintainedthat the Court's answer to the questionhad turned on the "survivalof the
state", whereas the question posedto the Court was about the lawfulnessof the use of nuclear
weapons. He thereforefoundthe Court'sjudgmentnotonlyuntenableinlaw, butevenpotentially
destabilizingof the existing international legalorder, as it not only made states that might be
disposed touse such weaponsjudges aboutthe lawfulnessof the use of theuse ofsuchweapons,
but it also threw the regime regarding the prohibitionof the use of force and self-defenceasregulated by the United Nations Charter into doubt, while at the same time albeit unintentionally
it made inroadsintothe legalrestraintsimposedon nuclearweapontatesregardingsuchweapons.

Judge Koroma, in his DissentingOpinion, undertook a survey of what, in his view, is the
law applicable to the question, analyzedtheerialbefore the Court and came to the conclusion
that it is wholly unconvincingfor the Court to have ruled that in view of the "current stateof the
law", it could not conclude definitively whetherthe use of nuclear weapons wouldbe illegal. In
his opinion, not onlyoes the law exist in substantial and ampleform, but it is also precise and
the purported lacuna is entirelyunpersuasive. In his opinion, there was no room for a finding of
Donliquet in the matter before the Court.

On the other hand, after analysingthe evidence, Judge Koroma cameto the conclusionas
the Court that nuclear weapons, whenused, are incapableof distinguishing between civilians and
military personnel, would result in the death of thousands if not millions of civilians, cause
superfluous injury and unnecessary suffering to survivors, affect future generations, damage
hospitals and contaminate the natural environment, food and drinking water, with radioactivity,
thereby depriving survivors of thens of survivalcontrary to the Geneva Conventionsof 1949
and the 1977 Additional Protocolthereto. It followed, therefore, that the use of such weapons

would be unlawful.

His dissent from the Court's main finding notwithstanding,Judge Koroma stated thatthe
Opinion should not be viewed as entirely without legal significanceorit. The normative
findings contained in it shouldbe regarded as a step forward in theic process of imposing
legal restraints in armed conflicts and in reaffirming that nuclear weapons are subject to
international law and to the rule of law. The Court's Advisory Opinion, in his view, constitutes
for the first in history that a tribunalof this standing hasdeclared and reaffirmedthat the threator
use of nuclear weapons that is contrary to Article 2, paragraph 4, of the Charter prohibitingthe
use of force is unlawful and would be incompatible with the requirements of international law
applicable in armed conflict. The finding, though qualified, tantamounts toa rejection of the
argument thatbecause nuclear weaponswere inventedafter the advent of humanitarianlaw, they
are therefore not subjected to that law.

In conclusion, Judge Koroma regretted that the Court did not followthrough withse
normative conclusions andmakethe only and inescapable findingthat becauseof their established
characteristics, it is impossibletoiveof any circumstancewhen the use of nuclear weapons
in an armed conflict wouldnot be unlawful.uch a conclusionby the Court would have been a
most invaluablecontributionby the Court as the guardian of legalityof the UnitedNations system
to what hasbeendescribedasthemostimportantaspectof internationallawfacinghumanitytoday.

Judge Higgins appendeda dissentingopinion in which she explained thatshe was not able
to support that key finding of the court in paragraph 2E. In her view the Court had not applied
the rules of humanitarian law in a systematic and transparent way to show how it reached the
conclusionin the first part ofparagraph 2E of thes N orwiaft.e meaningof the firstpart
of paragraph 2E clear. Judge Higgins also opposed the IUDAQU~ in the second part of
paragraph 2E, believing it tobe unnecessary and wrong in law. f--3 f /Ji /*:2/ q Lf J-

INTERNATIONAL COURTOFJUSTICE
PeacePalace,257KTTheHague.TeL(070-302 23 23).Cables:Interco, heHague.

Telefa(070-36499 28).Telex32323.

Communiqué
unofficial
for immediatereleaee

No. 96/23 corr.
8 July 1996
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Corri~endumto Press CommuniquéNo. 96/23

Onpage2 of Press Communiqéo. 96/23, the firstline of point(2) E. of the final
paragrapof the Opinion shouldreadas :ollows

«E. By sevenvotes to seven, by the sasting vote,»