Lettedated20 June1995 hm theAcbng LegalAdvisertothe
Departmentof StatetogethewithWritrenStatementfthe
Govemmeno tftheUnited StateofAmerica June 20, 1995
Sir :
Xri rr~Gorùrriiwith ClleCourL's order of Feb~uary 1, 1995,
and Article 66, paragraph 2, of the Statute of the Court, 1
have the honcr tu transmit tu you tireeiiclvsarlWritLeu
Gtatement of the Governmentof the UnitedStatesof America
conceraing the Hequest of the Unitea Nations ~eneral Assembly
for an AdvisoryOpinionon the Legalityof the Threat or Use of
Nuclearweapons.
Accept, sir, the assurances of my highestconsiderstion.
Sincerely,
Michael J. fiatheson
Acting Legal Adviser
Onclosure:
As stated.
Mr. Eduardo Valencia-Ospina,
Registrar,
International Court of Justice,
Peace Palece.
Thc Hague, The Netherlands BEFORETHE
INTERNATIONALCOURT OF JUSTICE
The Hague
The Netherlands
Requestby the United Nations GeneralAssembly
for an AdvisoryOpinionon the Legalityof the
Threat or Use of NuclearWeapons
WRITTEN STATEMEKTOP Tag
GOVERNMENT OP THE UNITH) STATES OF -CA
.
CoriladK. Harper
Legal Adviser
Michael J. Matheson
Deputy LegalAdviser
Bruce C. Rashkow
AssistantLegal Adviser
Officeof the Legal Adviser
Departmentof State
Washington,D. C.
John H. McNeill
SeniorDeputy General Counsel
Departmentof Defense
Washington,D.C.
June 20, 1995 TABLE OP CONTENTS
1. INTRODUCTIONAND SUMMARY
II. IN THE EXERCISE OF ITS DISCRETION,THE COURT SHOULD
DECLINE TO ISSUE AN OPINION
III. THE SUBSTANCE OF THE QUESTION POSED
A. Introduction
B. TNuclear Weaponsral Prohibitionon the Use of
1. CustomaryLaw
2. International Agreements
a. Use of OtherWeapons
b. Agreementson Use of Nuclear Weapons
c. Agreementson Manufacture, Testingor
Possession
d. Agreementson Accidental orUnauthorized
Use
3.. Conduct ofStates
4. Expressed Viewsof States
C. The Law of Armed ConflictDoes Not Prohibitthe Use
of Nuclear Weapons
1. Attacking the CivilianPopulation
2. IndiscriminateWeapons
3. Proportionality
4. Poison Weapons
5. 1925 Geneva Protocol
6. 1977 AdditionalProtocol1
8. EnvironmentalEffects
9. Reprisais
10. Neutrality
11. Renderingàeath inevitable
12. Genocide
D. International EnvironmentaI lnstrumentsDo Not
Prohibitthe Use of Nuclear Weapons
1. InternationalEnvironmentalTreaties
a. 1985 Conventionfor the Protectionof the
Ozone Layer .
b. 1992 Convention onClimateChange
c. 1992 BiodiversityConvention
2. International EnvironmentaD leclarations
a. 1972 Stockholm Declaration on the Human
Environment
b. 1992 Rio Declarationon Environment and
Development
E. Human Rights Instruments Do No: Prohibittne Use of
NuclearWeapons
F. The Same Conclusions A33ly to the Threat of Use of
NuclearWeapons
CONCLUSION 1. INSRODUCTION AND S-Y
~y resolution 49/75K of December 15,1994. the United Nations
General Assembly has requested an advisory opinion£rom the
InternationalCourt of Justiceon the followingquestion:
1s the threat or use of nuclear weapons in any circumstance
permitted under internationallaw?
Upon receiving thiç request, the Court fixed June 20, 1995 as the
time limit within which written statementsrelating to the
question might be submittedby States. The United States hereby
submits its written statement.
This request is closely related to the request of the World
Health Organization (WHO) for an advisoryopinion on the legality
of the use of nuclear weapons. The United States submitted an
.
extensive written statement concerningthat request on June 10,
1994, and iç today submiïtingwritten commentson the submissions
of otner States in that case. In the present statement, the
U2iteà Scates offerç its views on imporzant issues raised by the
recpest of the General Açsembly.
In particular,the United Scates Delieveç.chatthe Court, in
g.neexorcise of the àiscretionprovideà by Article 65, paragraph
1. of iïs Statute, should declineto proviàe an opinion. The
question presented is vague anà-abstract,aààressingcomplex
issues whicn are the subject of considerationamong interesteà
Stacés and within other bodiesof the United Nations which have
an exSress mandate to address these matters. An opinion by the
Court iz regard to the questio?presented would provide no
Sractical assistance to the Gonerai Asçembly in carrying out its
iunctions under the Charzer. Such an opinion has the potentialof underminingprogress alreadymade or being made on this
sensitive subject and, therefore,is contrary to the interests of
the United Nations Organization.
Nonetheless,in view of the possibility that the Court may
decide to provide an opinion, we offer views on the substance of
the legal questionpresented by the request of the General
Assembly. In the view of the United States, there is no general
prohibition in conventionalor customary international law on the
threat or use of nuclear weapons. On the contrary,numerous
agreements regulatingthe possessionor use of nuclear weapons
and other statepractice demonstratethat their threat or use is
not deemedto be generallyunlawful.
Moreover, nothing inthe body of international humanitarian
law of armed conflict indicatesthat nuclearweapons are
prohibitedper se. As in Che case of other weapons, the legality
of use depends on the conformityof the particular usewith the
rules applicableto such weapons. This would, in turn, depend on
factors that can only be guessec a:, includingthe
characteristicsof the particular weapon used and its effects,
the military requirements forthe aestructionof the target in
question and the magnitudeof th. risk to civilians. Judicial
speculationabout hypothecicalfuture circumstances on a matter
of such fundamental importance would, in our view, be
inappropriate
In view of the importance ofthe legal questionpresented,
the United States requests =ne op?ortunity to provide further comments or observations relatingto the question should the
Court determine to respond to the request.
II. IN THE EXERCISE OF ITS DISCRETION.THE COURT
SHOULD DECLINE TO ISSUE AN OPINION
The United Nations General Assembïy does, of course, have the
authority under Article 96, paragraph 1, of the United Nations
Charter to request the Court to give an advisory opinion on any
legal question. It is nonethelesswell established that,
pursuant to Article 65 of its Statute, the Court has discretion
whether to provide an advisory opinioneven where it has
jurisdiction to entertain the request.'
Where the proposed opinionwould serve to assist another
organ of the United Nations in understanding andcarrying out its
responsibilities,the Court has ordinarily beenreluctant to
refuse such a request.' However, in no case (otherthan the WHO
' Intemretation of Peace TreatiesWith Buluaria.Hunuary
anà Romania. Advisorv O~inion. I.C.J. Reports 1950, p. 65 at p.
72; Reservationsto the Conventionon the Prevention and
Punishment ofthe Crime of Genocide. Advisorv O~inion. I.C.J.
the International Court p.(2d ed..19851,nepp. 652, 658, 698:ctice of
Intemretation of Peace TreatiesWith Buluaria.Hunsan
and Romania. I.C.J.ReDOrtS 1950, p. 65 at pp. 71-72;
of the Crime of Genocide. I.C.J.n tRe~ortsen1951,ap.P15iat p.t 19;
Rosenne, supra, p. 709. In other instances, the Court has
decline tothprovide an opinion where it otherwisehas Court
jurisdiction. Judments of the AdministrativeTribunal of the
InternationalLabor Oraanization U~on Com~laintsMade Auainst the
United Nations Educational. Scientificand Cultural Oruanization.
Advison Opinion, I.C.J. Re~Orts 1956, p. 86. In that case, the
Court concluded that :
(continued.. irequest on nuclearweapons) has the Court been asked to provide
an opinion on an abstract question, the answer to whichcould not
reasonablybe expected to provide practical guidance to the
fulfillmentof the functions of the requestingbody. Unlike
other requests for advisory opinions,the present request does
not present a dispute or situationupon which specific legal
advice can usefullybe given. Rather, the requestpresents a
very general and vague question that would of necessity involve
complex legal, technical,political and practical conçiderations.
These matters cannot usefully be addressei dn the abstract .
without reference to the specificcircumstancesunder which any
use of nuclear weapons wouldbe contemplated. The Court should
not, on a matter of such fundamentalimportance,engage in
speculationabout unknown future situations.
Where theissuanceof an opinion will no: provide any
pracïical guidanceto the requesting body,there is little reason
for the Court to grant the request. This is particularlytrue
where the requesting body is a specializedorgan havino limited
.. continued)
Notwirhstandingthe permissivecharacter ofArticle 65 of the
Starute in thematrer of advisory opinions, only compelling
reasons could cause the Courtto adopt in this matter a
negative attitudewhich wouid imperilthe working of the
regime esrablishedby the Statute of the Administrative
Triounal for the judicial protectionof officiais.
Subsequently,the Courthas reiteratedthe view that an opinion
snould be provided unless there are "compellingreasons to the
request for the opinion would have to the UnitedNations system.he
A~~iicabilitvof Article VI. Section 22. of the Conventionon the
Privileoesand Immunities of the UnitedNations,Advisory
O~inion, I.C.J. RoDOrts 1989, p. 191.
4 functions (suchas the World Health Organization). It is also
true even where the requestingbody is anotherprincipal organ of
the Organizationwith more generalresponsiblities,such as the
GeneralAssembly. If the questionposed is too vague and
hypotheticalto provide useful guidanceto the requestingbody,
the court shoulddecline therequest for an opinion.
Moreover,where providingan opinionmight create
difficulties foranother partof the United Nations Organization
in carryingout its responsibilities, or for States in conducting
negotiationsoutside the United Nations, the Court may
appropriatelydetermine that theOrganizationis better served by
i
the court's' declining a request.
An opinionon the complex and sensitivematter of the threat
or use of nuclearweapons could complicatethe work of States or
other United Nations bodies, therebyunderminingthe progress
already madein this area. Marked difierencesof opinion have
been expressedby Member States aDout the lawfulnessof the use
of nuclear weapons.3 The substantialprogressmade to date in
controllingthe possessionand useof nuclear weaponshas been
possiblebecause States have set aside their differencesand
concentratedon agreeingupon practical measures to reduce the
danger of nuclear conflict. Pronouncernentb sy the Court on the
abstract question of the legalityof the threat oruse of nuclear
' This fact was expressiyacknowledgedin the resolution of
the WdO Assembly ("Wi3.A':ha= requestedan advisoryopinion on
the lawfulnessof the use of nuclearweapons. WHA Resolution
46.40 (1993),preamble.weapons could well obstruct this progressand compel States to
turn to a fruitlessdebate aboutthe legal implicationsof the
Court's pronouncements. To the extent that such pronouncements
affected international instruments concerning environmental
protectionor human rights, there could be serious complications
for international negotiation and cooperationin these fields as
well.
Finally,an opinionby the Court offering advice on what is
in many respects essentiallya political matter could undennine
its authorityand effectiveness.
In exercisingits discretion,the Court should, in the view
of the UnitedStates, take into account the significantnumber of
States that did not support this request. The proposa1 for this
request was introducedin the First Cornmittee of the General
Assembly. While 77 Statesvoted for the request, 33 States
opposed it and 21 ab~tained.~ The number of States that did not
support the request was even greater when thematter subsequently
came before the GeneralAssembly. While 78 States voted for the
resolution, 43 States opposed it and 38 a~stained.~ In short
tnere was very substantial disagreement within th enternational
communiry as to whether such a request was appropriate.
' UN GAOR First Comn.,19:h Sess., 24tn Mtg., pp. 12-13; UN
Doc. A/C.1/49/PV.24(1994).
UN GAOR, 49th Sess., 90th Plen. Mtg., pp. 35-36; UN DOc.
A/49/PV.90 (1994). For these various reasons,the United States believes the
Court should, in the exerciseof its discretionunder Article 65
of its Statute,decline to provide a responseto the request.
III. THE SUBSTANCE OF TIIEOUESTION POSED
A. Introduction.
Some States have by agreementundertakennot to possess or
use nuclear weapons under any circumstancesand othershave
undertakennot to use such weapons in certaindefined
geographical areas. Apart £rom this, there is no prohibition =n
conventionalor customary international law on the threat or use
of nuclear weapons. On the contrary,internationallaw is
replete with agreementsthat regulatethe possessionor use of
nuclear weapons,providingcornpelling evidencethat their use is
not deemed to be generally unlawful.The practiceof States,
includingthe PermanentMembers of the SecurityCouncil, all of
which maintain stocks of nuclear weapons,further provesthis
point.
In aàdition,nothing inthe 3oay of the international
humanitarianlaw of armed conflict indicates that nuclear weapons
are prohibited perse. As in the caseof other weapons, the
legalityof use depenason the conformityof the particularuse
with the rules applicableto such weapons. This would, in turn,
àepend on factorsthat can only be guessedat, including the
characteristicsof the particular weaponused and its effects,
the militan requiremencfor the àes~ructionof the target inquestion andthe magnitude ofthe risk to civilians. Judicial
speculationon a matter of such fundamentalimportancewould be
inappropriate.
B. There is No General Prohibitionon the Use of Nuclear
Wea~ons.
It is a fundamentalprinciple of internationallaw that
restrictionson States cannot be presumed but must be found in
conventional lawspecifically accepted by them or in customary
law generallyacceptedby the community of nations. There is no
general prohibitionon the use of nuclear weaponsin any
internationalagreement. There is likewiseno such prohibition
in customary international law. Such a customary prohibition
could only result £rom a general and consistent practiceof
States followedby thernfrom a sense of legal obligation. We
submit,based on the following analysis of the agreements,
conduct and expressedviews of States, that there is no such
practice.
1. CustomarvLaw. Cuszoma-y inrernationallaw is
created Py a generaland consisten:practice of States followed
by :hem £rom a sense of legal ~biigation.~ Evidence ofa .
customarynom requireç inàicationof "extensiveand virtually
unifornu State practice, includingStates whose interestsare
the United Stateste§e102 (1987);oCase Concerninathe Continental
Shelf (LibyanArab Jamahariyav. Malta), I.C.J. R~Do~~s 1985, p.
13 aï pp. 29-30. "speciallyaffected."' Among the actions of States that
contributeto the developmentof customary international law are
international agreements concluded b tyhem, governmentalacts,
and officia1statementsof what the law is consideredto be.
(However,mere hortatorydeclarationsor acts not basedon a
perceptionof legal obligationwould not s~ffice.)~
iiithrespectto the use of nuclear weapons, customarylaw
could not be createdover the objectionof the nuclear-weapon
States,which are theStates whose interestsare most specially
affected. Nor could customarylaw be createdby abstaining from
the use of nuclearweapons for humanitarian, political or
military reasons, ratherthan £rom a belief that such abstention
is requiredby law. Among the more importantindicatorsof State
practice in this area are the international agreements that
regulatebut do not prohibit nuclearweapons, the fact of the
acquisitionand deploymentof nuclearweapons by the major
rnilitarypowers, and the officiaiviews expressedby States on
this question.
2. InrernationalAareernezts.We are aware of no
international agreement -- ana certainlynone to which the United
States is a Party --tnat containsa generalprohibitionon the
use of nuclear weapons. On the contrary,it isevident that
7 North ContinentalSheif Cases (FederalRepublic of
Germanyv. Denmark;Feaeral Re-ublicof Germany v. The
Netherlands), I.C.J. Reports 1969, p. 3 at p. 43.
-ee 7 R. Bernhardt,ed., Encvclo~ediaof Public
InternationalLaw (13841,pp. 62-63.existing agreementsproceed £rom the assumptionthat there is no
such general prohibition.
a. Y--. There are a number of
prohibitionsin internationalagreementson the use of other
specific categoriesof weapons. These include:biological and
chemical weapons ithe 1925 Geneva Protocol) ;$ the use.of
environmentalmodificationtechniquesas weapons ithe 1977
EnvironmentalModificationC~nvention);'~ the use of exploding
bullers (the 1868 Declarationof St. Petersburg);ll and the use
of weapons with non-detectablefragments (the 1981 Conventionon
Specific ConventionalWeapons).12 This pattern irnplies that
there is no such general prohibitionon the use of nuclear
weapons, which would otherwise have found expressionin a similar
internationalagreement.
b. P on.TJçp O f- I . A few
internationalagreementsregulatethe use ofnuclear weapons,
àoino so in a way that indicatestnere is no general prohibition
Protocolfor the Prohibition of the Use in War of
Asphyxiating,Poisonousor Other Gases, and of Bacteriological
Methods of Warfare, 17 June 1925, 94 L.N.T.S. 65.
'O Conventionon the Pronibitionof Military or any other
Hostile Use of Environmental Modificiation Techniques, 18 May
1977, 1125 U.N.T.S. 3. .
DeclarationRenouncingthe Use, in Time of War, of
Explosive Proiectilesunder 400 Grammes Weis-t, Il Decernber 1868.
reDrinted in.Roberts & R. Guelff, Documents on the of
(2nd ed. 1989). p. 63.
l2 Conventionon Prohibitionsor Restrictionson the Use of
Certain Conventional Weapons Which May be Deemed to be
Excessively Injuriousor Co Have InaiscriminateEffects, 10 April
1981, Roberts & Guelff, s~p~a note 11, p. 471.
10 on the use of such weapons. For example,there are agreements
that prohibit the use of nuclearweaponç in particularregions:
Antarctica (theAntarctic Treaty);" Latin Arnerica(the 1967
Treaty of Tlatel~lco);~a ~nd the South Pacific (the South Pacific
Nuclear Free Zone Treaty) .ls
The AntarcticTreaty prohibitsail nuciearexplosionson the
Antarctic continent. The Treaty of Tlatelolco prohibitt she
Latin ~mericanparties fromusing nuclear weaponsunder any
circumstances;at the sarnetime, two separateAdditional
Protocols,to which nuclear-weaponStates are invitedto adhere,
obligate them to observethe same prohibition within a defined
area in the Western Hemisphere. Similarly,Protocol 2 to the
South PacificNuclear Free Zone.Treaty (towhich nuclear-weapon
States are invitedto adhere)prohibits ProtocolParties from
using nuclear weapons againstany Treaty Party. These provisions
would make no sense if there were already a general prohibition
on theuse of nuclear weapons.
c. Amreementson Mancfacture.Testina or
Possession. A number of in~ernational arms controlagreements
prohibit or regulatethe manufacture,tescingor possession of
nuclear weapons or systems for their delivery. These include the
.
'3 AntarcticTreaty. 1 ~ecember 1959, 402 U.N.T.S. 71.
l4 Treaty for the ProhiDitionof Nuclear Weaponsin Latin
America ("Tlatelolco Treazy"), 14 February 1967, 634 U.N.T.S.
281.
1s
Socth Pacifich'uclear 'ree Zone Treaty, 6~ugust 1985.1963 Limited TestBan ~reaty." the 1967 Outer Space Treaty,]'the
1968 Non-Proliferation~reaty, l*the 1971'Seabed Arms Control
Treaty," the 1972 Anti-BallisticMissile (ABM) Treaty,20the 1974
Threshold Test Ban Treaty," the 1987 Intermediate-Range Nuclear
Forces (INFITreaty and the 1991 Treaty on the Reductionand
Limitation of Strategic Offensive Arms (START) .23 These treaties
would be unnecessaryif there were already a generally-accepted
prohibition on the use of nuclear weapons.
Further, the terms of these treaties implicitly acknowledge
in many ways that the continuedpossession and use of such
weapons (withinthe confinesof treaty limitations)are not
l6 Treaty Banning NuclearWeapon Tests in the Atmosphere,
in Outer Space and Under Water, 5 August 1963, 480 U.N.T.S. 43.
" Treaty on PrinciplesGoverning the Activitiesof States
in the Explorationand Use of Outer Space, includingthe Moon and
other CelestialBodies, 27 January 1967, 610 U.N.T.S. 205.
'' Treaty on the Non-proliferaïionof Nuclear Weapons, 1
Juiy 1968, 729 U.N.T.S. 161.
l9 Treaty on the Prohibitionof theEmplacementof Nuclear
Weapons and Other Weaponsof Mass Destructionon the Seabed and
the Ocean Floor and in theSubsoil Thereof, 11 February 1971, 955
U.N.T.S. 115.
2C Treaty on the Limitationof Anti-BallisticMissile
Systems, 26 May 1972, 944 U.N.T.S. 13.
=' Treaty on the Limitationof Underground Nuclear Weapon
Tests, 3 July 1974, 13 InternationalLegal Materials (''ILM")
(1974), p. 906.
" Treaty on the Eliminationof Intenneàiate-rangeand
Snorter-rangeMissiles, 8 December 1987, 27 ILM (1988), p. 84.
23 Treaty on the Reàuctionand Limitation ofStrategic
Arms, 3 January 1993, 16 UX I)isarmamentYearbook (1991),App. II,
p. 450. prohibited. For example,the Limited TestBan Treaty (towhich
there are well over one hundredparties) 'permitsunderground
nuclear weapons testing, while prohibiting testingelsewhere.
This is a clear acknowledgmentthat the possession of such
weaponsby the nuclear-weapon States is lawful and implies that
use in a: least some circumstances wouldalso be lawful, since
possessionand testing of such weapons wouldotherwisebe
purposeleçs. Likewise,the Non-ProliferationTreaty accepts the
lawfulness ofthe developmentand possession of nuclear weapons
Dy the nuclear-weaponStates designatedin the Treaty, which .
would be senselessif al1 uses of such weapons were un-lawful.
The ABM and START Treatiesgo even further in that they
sanctionthe need for deterrent-nuclear-weapon forces,prohibit
the creationof destabiiizingdefenses against them, and prohibit
or restrict offensive forces that could destroy them.
F~rznermore,the START Treaty accepts tne legalityand propriety
of limited deployments of nuclear-weapon systems that are deemed
to contributeto a stable nuclear àeterrentposture. This entire
s:ruîtureof obligationswoüld De mear.ingless if the use of
nuclearweapons were conçidereàto be unlawful under al1
circumstances.
d. Aoreementson Accidontalor Unauthorized Use.
International arms control agreements have been concluded which
attempt in variousways to minimize tne chance of accidentalor
unauthorizeduse of nuclear weapms. Tney includethe 1963 "HotLine" Agreement,=' the 1971 AccidentsMeasuresAg~eement,~~ the
1973 Preventionof Nuclear War Agreementx and the 1987 Nuclear
Risk Reduction ~greement.~' In addressingthe need for
arrangementsto minimize the risk of unintendeduse of nuclear
weapons, these agreementsare additional evidenceof the
acceptanceby States that the possessionand use of such weapons
are not generally prohibited.
3. Conduct of States.It is well known that the
PermanentMembers of theSecurity Councilpossess nuclearweapons
and have developedand deployedsystems for their use in armed .
con£lict ~hese States would not haveborne the expenseand
effort of acquiringand maintainingthese weapons and delivery
systems if they believedthat theuse of nuclear weapons was
generally prohibited. On the contrary,the possible useof these
weapons is an importantfactorin the structureof their military
establishments,the development of their security doctrinesand
strategy,and their effortsto prevent aggressionand provide an
essentialelement of the exerciseof tneir right of self-defense.
'' Memorandumof UnderstandingRegardingthe Establishment
of a Direct Communications("Hoc-Line") Link, 20 June 1963, 472
U.N.T.S. 163.
25 Agreement on Measures to Reduce theRisk of Outbreakof
Niiclear War, 30 September 1971, 807 U.N.T.S. 57.
26 Agreement onthe Preventionof Nuclear War, 22 June
1973, 24 U.N.T.S. 1478.
27 Agreement onthe Esta~liSiimeno tf Nuclear RiskReduction
Cenrers, 15 September 1987.
28 Çee Report of the U.N. Secretary-General on Nuclear
weapons, ~/45/373, 18 Seprember 1990, pp. 19-24. (Thesedeploymentsand doctrinesare discussedin the 1990 Report
of the Secretary-Generalon nuclear weapons.)2gThis patternof
conduct is inconsistentwith the existenceof any general legal
prohibitionon the use of nuclearweapons.
The fact that such weapons haveactuallybeen used in only
one armed conflictdoes not suggest the contrary. Certainly
nuclear-weaponStates have preservedthe option to use nuclear
weapons if necessary,and (asis explainedbelow) have not
refrained £rom furtheruse of these weaponsbecause they believed
such use to be unlawful -- which is an essentialelement in the
developmentof customary international law.
4. Emressed Views of States.Various States have taken
differing viewson the 1egality.ofthe use of nuclear weapons.
As the United NationsSecretary-General has recently concluded,
"no uniform viewhas emerged as yet on the legal aspects of the
possession of nuclearweapons and their use as a means of
~arfare."~' This is confinnedDY the WHO resolutionthat
recpested an advisoryopinion,wnich refers to the fact that
"markeddifferencesof opinion have beenexpresçedby Member
Stateç about the lawfulnessof the use of nuclearweapons."31 The
variety and disparityof views expressedby States dernonstrates
chat there is no generally-accepted prohibitioo nn the use of
nuclear weapons. Under these circumstances,customary
25 M., pp. 61-71.
? Id., p. 130.
" WHA Resolution 46.40 (19931, preambularpara. 9.
15internationallaw cannotbe said to include such a general
prohibition.
The position of thenuclear-weaponStates is best illustrated
by their officialstatementson nuclear-weaponsuse in the
context of the Non-Proliferation Treaty and the Treato yf
Tlatelolco. On April 5, 1995, Secretaryof State Christopher
announcedthat President Clintonhad declared the followingin
the context of the Conference on the extensionof the
Non-ProliferationTreaty:
The United States reaffim that it will not use nuclear
weapons against non-nuclear-weapon States Parties to the
Treaty on the Non-Proliferationof Nuclear Weapons except in
the case ofan invasionor any other attackon the United
States, its territories,its armed forces or other troops,
its allies,or on a State towards whichit has a security
commitment,carried out or sustainedby such a
non-nuclear-weaponState in associationor alliance with a
nuclear-weaponState."
Statements identicalin substancewere made at the same time by
France," Russia3' and the United Kingd~m.~' The Security Council
unanimouslytook note of these statements"with appre~iation",'~
an6 no exceptionwas taken to the rese-nation by these States of
the right to use nuclear wea-ons in certaincircumstances
Likewise, at the time of irs ratificationof Additional
Protocols 1 and II to the TlatelolcoTreaty, the UnitedStates
.
" U.N. Doc. A/50/153 (1995).
31
U.N. Doc. A/50/151 (1995)
" U.N. Doc. A/50/152 (1995)
36 UN Security Council Resolucion 984 (1995). para. 1.
16 made a formal statementof understandingsand declarations,
includinga statementthat effectively reserved its right to use
nuclearweapons againstone of the ContractingParties in the'
event of "an armed attack by a ContractingParty, in which it was
assisted bya nuclear-weapon State . . . "17 Similar statements
were made by the United Kingdomand the Soviet Uni~n.~' France
stated thatnothing in the Protocol couldpresent an obstacle to
"the full exerciseof the right of self-defenseconfirmedby
Article 51 of the United NationsCha~ter."~~
Although these statementsdiffer in some respects,they have
certain important common features. In particular,none
acknowledgesany generalprohibitionon the use of nuclear
weapons;on the contrary,each clearly reserves the right to use
nuclearweapons in some circumstances. Further, limits are
offered only with respect tocertain States, thus indicatingthat
there are no comparableconstraintson the use of nuclear weapons
againstStates generally.
Additional statements of nuclear-weaponScates on the use of
nuclear weapons are conraineciin Appendix 1 to the
Secrezary-General's 1990 Repor:.': In each case, the government
37 28 ILM 1423.
-Id. at 1418, 1422.
" -Id. at 1415
'' Report of the U.N. Secretary-General on Nuclear Weapons,
18 September1990, UN Doc. A/45/373 (1990),pp. 61-75; see aïs0
Statementof U.S. Defense Secretary Schlesingerof 1 July 1975,
re~rintedin 1975 Diaest of U.S. Practicein InternationalLaw,
pp. 800-01.in question stated its resolve to act in such a manner as to
avoid the necessityfor the use of nuclear weapons, but in no
case is there a recognition ofany general prohibition on the use
of nuclear weapons.
Beginning with Resolution 16/1653 in 1961, the U.N. General
Assembly has adopted a series of resolutionsdeclaring that the
use of nuclear weapons is contraryto the U.N. Charter and
internationallaw generally." It is well established,however,
that aside £rom certain administrativematters, the General
Assembly does not have the authorityto "legislate"or create
legallybinding obligationson its members." hirther, such
General Assembly resolutionscouid only be declarativeof the
existence of principlesof customary internationallaw to the
extent that such principleshad been recognizedby the
international community. includingthe States most directly
affe~ted.~) In fact, there were a significantnumber of U.N.
GeneralAssembly Resolution35/152 D (1980)tion 33;7UN General Assembly
Resolution 36/92 1 (1981); UN General AssemblyResolution 46/37
D (1991); UN GeneraiAssembly Resolution47/53 C (1992).
" See Charterof the United Nations, -ticle 11 (1) ("The
General Assembiy rnayconsider the general principles of
cooperationin the maintenanceof internationalpeace and
security, . . . and may make reoommendations withregard to such
principles . . . ."); Votina Procedure on OuestionsRelatinq to
Africa. Aàvisorv O~inion. J.C.J.Re~Orts 1955, pp.outh Wes90, 116
(separateopinion of Judge Lauterpacht) (". . . the General
Assembly has no legal power to legislate orbind its Membersby
way of recommendations . . . . ').
43 a, m, S. Schwe~ei,7 Forum Internationale (19851,
pp. 11-12; Letter of U.S. State DepartmentDeputy Legal Adviser
(continued ...) Member States that did not acceptthese resolutions:in
particular,these resolutionswere not acceptedby a majorityof
the nuclear-weaponStates.
For example,Resolution 1653was adopted by a vote of 55 to
20, with 26 abstentions,and each of the subsequentresolutions
attractedat least 16 negativevotes and a number of abstentions.
In each case, the United States,the United Kingdom and France
voted againstthe resolution. The representativeof the United
Kingdom, in explaininghis Government'svote on Resolution 1653,
stated that "so long as Statespossessnuclearweapons, they will
use them in self-defense."" The representativeof the United
States statedthat:
. . . it is simply untrue tp Say that the use of nuclear
weapons iscontraryto the Charter and to internationallaw .
. . . Indeed,the very provisions ofthe Charter approve, and
demand, the exerciseof self-defenseagainstarmed attack.
It is very clear that the Charter saysnothingwhateverabout
self-defensea.''apon or method which may be used for
During the 1980s. the General Assembly adopted a series of
resolutionsurging the nuclear-weaoonStates to adopt a policy of
refrainingfrom thefirst use of nuclear weaponsand to begin
negotiationson a legallybinàing regime includingthe obligation
Stepnen Schwebelofed) 25 April 1975, 1975 Diaest of U.S. Practice
in InternationalLaw, p. 85; S. Schwe~el, "Lamaking in the
United Nations," 4 Feaeral Law Review (1970),pp. 115, 118.
'' 16 UN GAOR, 13tn Sess., 1063rd Mtg., p. 803; UN Doc.
A/13/PV.1063 (1961).
" Id. at 798not to be the first to use nuclearweapons.46 Like the
resolutions cited above, these resolutionson first use were not
accepted by a significant numberof U.N. Member States and in
particular were not acceptedby most nuclear-weaponStates.47
firther, the adoption of these resolutionsimplicitly indicatesa
general understandingthat there is no existing prohibitionon
al1 uses of nuclear weapons,since there would beno need for
first-use resolutionsand agreementsif al1 uses were already
prohibited.
Taken together,these various expressionsof the views of
States demonstratethat thereis no consensuson the question of
the legalityof the use of nuclear weapons. In particular, there
is nothing a~proachingthe degree of acceptanceby States, and of
acceptance by the States most specificallyaffected, that would
be required to create obligationsunder customary international
Finally, there is nothing in the UnitedNations Charter,or
in rules of customaryinternationallaw embodied init, that
-e precludes the use of nuclear weapons. For example, States may
use force wnen authorizedby the Security Councilunder Chapter
46 UN General Assembly Resolution 36/100 (1981); UN General
Assembly Resolution 37/78 J (1982); UN General Assembly
Des(1984); UN8General AssemblyResolution Ass40/152eAol(1985); UN9/148
General AssemblyResolution 41/86 B (1986); UN General Assembly
Resolution 42/42 A (1987); UN General AssemblyResolution 43/78 B
(19881; UN GeneralAssembly Resolucion 44/119 B (1989).
' In each case, the UnitedStates, the United Kingdom and
France voted against and each resolutionattracted at least 17
negative votes anda number of abstentions.
2 O VI1 or in the exercise of individualor collectiveself-defense.
The exerciseof self-defenseis subjectto the rules of necessity
and proportionality,but the applicationof those rules to any
use of nuclear weapons depends on the precise circumstances
involved and cannot be judged in the abstract.
C. The Law of Armed ConflictDoes Not Prohibit the Use of
Nuclear Wea~ons .
The u,nitedStates has longtaken the position thatvarious
principlesof the internationallaw of amed conflictwould apply
to the use of nuclear weapons as well as to other means and
are.'8 This in no way means, however, that the
methods of warf
use of nuclear weapons is precludedby the law of war. As the
following will demonstrate,the issueof the legalitydepends on
.
the precise circumstances.involved in any particularuse of a
nuciear weapon.
It has been argued that the use of nuclear weaponsis
innerentlyprecludedby the principlesof international
humanitarianlaw, regardlessof the circumstancesof their use.
It seems to De assumeà that any use of nuclear weaponswould
inevitablyescalate into a massivestrategic nuclearexchange,
with the àeli~erateàestruction of the populationcentersof the
opposing sides.
Siichassumptionsare speculative inthe extreme, and cannot
De the basis for judgmentsby the Court on the legalityof
hypotneticaluses of nuclearweapons that otherwisecomplywith
a8 -ee International Rec Cross ConferenceResolution
XXVIII, 20th Internation~lRe2 Cross Conference (1965). the principles of internationalhumanitarianlaw. In fact, any
serious analysis of the legalityof a hypotheticaluse of nuclear
weapons wouldof necessity have to consider the precise
circumstancesof that use. Such circumstancescannot be
evaluated in the abstract, and any attempt by the Court to do so
would, in our view, be inappropriate.
Various argumentshave been advanced in support of the
conclusion thatthe use of nuclearweapons is precludedby the
law of armed conflict. In the following,we shall consider these
arguments in turn and indicatewhy we believe each to be
incorrect.
1. Attackinu the CivilianPooulation.It has been argued
that the use of nuclear weap0ns.i~unlawful in that it would
constitutean attack on the civilianpopulation. The law of
armed conflictprecludesmaking civiliansthe object of attack as
SUC~.~~ This, of course, aoes not mean that attacks on military
oDjectivesare prohibitedsimply because they maycause
collateralcivilian injury or aamage -- as is often the case in
armed conflict. This rule woulC no: be violatedby the use of
nuclear weapons to attack targetç thatconstitutelegitimate
military objectives,and in any even.is subject to the right of
, reprisal (seebelow) .
~ ~
19 Çee, -, U.S. Amy Field Manual 27-10, ChangeNo. 1,
The Law of Land Warfare (1576) 4, para. 40 (a) ("U.S.Army Field
Manual ") . 2. Indiscriminate WeaDons. It has been arguedthat
nuclear weapons areunlawful because they cannot be directed at a
military objectiveM. This argumentignores the ability of modern
delivery systems totarget specificmilitary objectiveswith
nuclear weapons, and the abilityof modern weapondesigners to
tailor the effectsof a nuclearweapon to deal with various types
of military objectives. Sincenuclear weaponscan be directedat
a military objective,they can be used in a discriminatemanner
and are not inherently indiscriminate.
3. Pro~ortionality. It has been argued thatthe use of
nuclear weapons would be unlawfulbecause it would cause
collateralinjuryor damage to civiliansor civilianobjects that
would be excessivein relationto the military advantage
anticipated£rom the attacks'.Whether an attack with nuclear
weapons would be disproportionate depends entirelyon the
circumstances,includingthe natureof the enemythreat, the
importanceof destroyingthe objective,the character, size and
likely effects of the device,and the magnitudeof the risk to
civilians. Nuclearweapons are not innerentlydisproportionate.
4. PoisonWeaoons. 1: has been arguedthat the use of
nuclear weaponswould violate the prohibitionin the 1907 Hague
" For a restatementof tne general rule in this context,
m, e.o., U.S. Army Field Manuàl,sunrà note 49, at 5,
para. 40 (b)(3) and (c).
5' FO~ a restatemeniof :ne general ruie in this context,
çee, m, U.S. Army Fiel2 Manral, suDra note 49, at 5, para. 41.Conventionon the use of poison weaponsn. This prohibitionwas
establishedwith particular referencetoprojectiles that carry
poison into the body of the victim. It was not intended to
apply, and has not been applied, to weapons thatare designedto
injure or cause destructionby other means, even though they also
rnaycreate toxic byproducts.
For example, the prohibitionon poison weapons does not
prohibit conventionalexplosives or incendiaries,even though
they may produce dangerous fumes. By the same token, it does not
prohibit nuclear weapons, which are designedto injure or cause
destructionby means other than poisoningthe victim, even though
nuclear explosions rnayalso create toxic radioactive byproducts.
5. 1925 Geneva Protocol. Ithas been argued that the
use of nuclear weaponswould violate the prohibition in the 1925
Geneva Protocol on the first use inwax of asphyxiating,
poisonous or other gases and analogous liquids,materials and
aevices5'. This prohibitionwas intenàeàto apply to weapons that
are designed to kill or injure by the innalationor other
absorptioninto the body of poisonousgases or analogous
substance^.^
" Hague Convention (IV)Respectingthe Laws and Customs of
War on Land, Annex, Art. 23(a) re~rintedin Roberts & Guelff,
suDra note Il, p. 53.
" Protocol for the Prohibitionof the Use in War of
Asphyxiating,Poiçonous or Other Gases, and of Bacteriological
Methoas of Warfare, 17 June 1925, 94 L.N.T.S. 65.
Law","191eHasueKAcademv of InternationalLaw (Recueilde Cours)
(1985-II),pp. 283-84.
24 This prohibitionwas not intendedto apply, and has not been
applied,to weapons thatare designedto kill or injure byotheç
means, even though they may create asphyxiatingor poisonous
byproducts. Once again, the Protocoldoes not prohibit
conventionalexplosivesor incendiaryweapons, even though they
may produce asphyxiatingor poisonousbyproducts, andit likewise
does not prohibit nuclearweapons.
6. 1977 AdditionalProtocol 1. Additional Protocol 1 to
the 1949 Geneva Conventionssc sontainsa number of new rules on
rneansand methods of warfare,which of course apply onlyto
States thatratify Protocol 1. (Forexample,the provisionson
reprisalsand the protection of the environmentare new rules
that have not been incorporated-into custornaryla^.)^^ It is,
however, clearfrom the negotiating anr datificationrecord of
Protocol 1 that the new rules contained inthe Protocolwere not
intendedto apply to nuclearweapons.
At the outset of the negotiationschat led to Protocol1, the
InternaiionalCommitreeof the Reà Cross (ICRC)stated that:
Prohibitionsrelatingto atomic,bacteriologicaland chemical
warfare are subjectsof international agreements or
negotiationsby governments,and in subrnitting these draft
55 Protoc01 Additionalto the Geneva Conventionsof 12
August 1949, and Relatingtothe Protectionof Victims of
InternationalArmed Conflicts i"Protoco1 1"), 12 Decernber 1977,
1125 U.N.T.S. 3.
5he-e M. Bothe, K. Partsch & W. Solf, New Rules for
Victirnsof Armed Conflicts (19821, pp. 312, 317; International
Commicteeof the Red Cross, Commentarvon the Additional
ProCocolsof 8 June 1977 (1567), p. 662. Additional Protocolsthe ICRC does not intend to broach these
problems ''
Explicit statementsto the same effect were made during the
negotiationsby various delegations,includingFrance, the Soviet
Union, the United Kingdom and the United States.SB
Furthemore, in creating an ad hoc committeeto consider
specific restrictionson the use of conventionalweapons thought
to present specialdangers to the civilianpopulation, the
Conferencerejecteda proposa1 to expand the scopeof this study
to nuclear weapons. The Committee concluded that the predominant
view was acceptanceof "the limitationof the work of this
Conferenceto conventionalweapons",noring in particular the
important function of nuclear weapons in deterringthe outbreak
of armed con£lict 59
Nevertheless,in light of the importanceof this point, a
number of States made clear forma1 statements uponsignature or
ratificationemphasizingthat the new rules adopted in the
o roto would not apply to nuclearweapons. For example, the
signatureof the UnitedKingàcm was Dased on the formal
understandingthat:
'' InternationalCornmittee of the Red Cross, Commentarvon
the AàditionalProtocolsof 8 Juno 1977 (1987), p. xxxii.
u, Official Recoras of the DiplomaticConference of
Geneva, Vol. V, p. 134; Vol. VII, p. 193, 295; Vol. XVI, p. 188.
" 5, Vol. XVI, p. 454.
26 . . . the new rules introduced bythe Protocol are not
intended to have any effect on and do not regulate or
prohibit the use of nuclear weapons .
Similar express formal statements havebeen made on signature or
ratificationby Belgium, Canada, Italy, Germany, the Netherlands,
Spain and the United States."
To Our knowledge,no State made any comment or objection to
any of these formal and clear statementsand declarations,no1
did any State express a contras.view in comection with its own
signature or ratificationof Protocol1. In short, the record of
signature and ratificationof the Protocol reflecta manifest
understandingthat nuclear weapons were not prohibitedor
restrictedby the new rules establishedby the Protocol.
This conclusion is consistent with the analysis of those
experts on internationalhumanitarian lawwho are best informed
on the Conference's work. For example, the Commentary of the
ICRC concluded:that "there is no doubt that during the four
sessions of the Conference agreementwas reached not to discuss
nuclear weapons"; that the principles'reaffirmedin the Protocol
"do not âllow the conclusion that nuclear weapons are prohibited
as suci?by internationalhumanitarianlaw"; and that "the
InternationalCommittee of the Red Cross, Public
InformationDivision, CD-ROM on InternationalHumanitarian Law
(September 1993) (containingup-to-datelist of signatures,
internationalhumanitarian lawtreaties, aselatiwell as the full text
of reservations,declarationsand o~jectionsthereto) (United
Xingdom) .
61 M. (Belgium,Canada, Italy, Germany, Netherlands,
Spain, United States) .hypothesisthat States accedingto the Protocol bind themselves
without wishingto -- or even without knowing -- with regard to
such an important questionas the use of nuclear weapons,is not
acceptable."62Likewise, the extensivecommentaryof Bothe,
Partsch and Solf on the Protocolsconcludes thatthe negotiating
record "showsa realization by the Conferencethat the scope of
its work excluded the specialproblems of the use of nuclear
weapons .
7. Unn~c~sw. f It has been argued that the
use of nuclear weapons would violate the prohibition on the use.
of weapons that are of such a nature as to cause superfluous
injury or unnecessary~uffering.~~This prohibitionwas intended
to precludeweapons designed to.increasethe injury or suffering
of the perçons attacked beyond thatnecessaryto accomplish the
military ~bjective.~' It does not prohibit weaponç that may
cause great injury or sufferingif the use of the weapon is
neceçsary to accomplish the military mission. For example, it
àoes not prohibit the use of anti- tanmunitionswhich must
penetrate annor DY kinetic-energyor incendiaryeffects,even
62 InternationalCommitteeof the Red Cross, Co--
- PPO~OCQLS of 8 JI,, 1977 (1987), pp. 593-94.
Bothe, Partsch & Solf, su~ra note 56, p. 191.
64 % Convention (IV) Respectingthe Laws and Customs of
War on Land, 18 October 1907,' 1Bevans 631,Annex, Art. 23ie).
65 The prohibition has been applied,for example, to lances
with bazbed tips and bullets that are irregularlyshaped, scored
or coatedwith a substance thatwould unnecessarily inflame a
wouna. U.S. ~rmy Field Manual, note 49, p. 18, para. 34. though this may well cause severe and painful burninjuriesto
the tank crew. By the same token, it does not prohibit the use
of nuclearweapons, eventhough such weapons can produce severe
and painful injuries.
8. Environmental Effects.Article 1 of the 1977
Environmental Modification e on vent pronhibits "rnilitaryor
any other hostile use of environmental modification techniques
having widespread, long-lastingor severe effects as the means of
destruction, damage or injury to any other State Party." Article
II defines the term "environmental modificationtechniquesuas
"any techniquesfor changing -- through the deliberate
manipulationof natural processes -- the dynamics, composition or
structure ofthe Earth, including its biota, lithosphere,
hydrosphereand atmosphere,or of outer space."
Although one might imagine a hypotheticaluse of nuclear
weapons to create an environmentalmodificationtechnique (for
example,to cause an earthpake or tidalwave), the Convention
does not prohibit other uses of nuclear wear>ons(orany other
weapon), even if they cause seriousaamage tj the environment.
Only tne "àeliberatemanipulation"of environmentalforces to
cause destructionis covereà.
Articles 35(3) and 55 of AàditionalProtocol 1 to the 1949
Geneva Conventionspronibitthe use of "methodsor means or
warfare which are intended,or may expected,to cause
65
Convention onthe Prohibitionof Militaryor any other
1977, 13.25U.X.T.S.ro3.entalModificiationTechniques, 18 Maywidespread,long-termand severe damage to the natural
environment." This is one of the new rules establishedby the
Protocolthat, as explained above, do not applyto nuclear
weapons .
9. Benriçals. It has been argued that the use of
nuclear weapons would not be consistent with the law of
reprisals. For the purpose of the law of armed conflict,
reprisals are lawful acts of retaliationin the fom of conduct
that would otherwisebe unlawful, resorted to by one belligerent
in response to violations ofthe law of war by another
belligerent. Such reprisalswould be lawful if conducted in
accordancewith the applicableprinciples governing belligerent
reprisals. Specifically,the reprisalsmust be taken with the
intent to cause theenemy to ceaçe violationsof the law of armed
conflict,other means of securing compliance should be exhausted,
and the reprisalsmust be proportionateto the violation^. As'
in the case of other requirements of the law of aned conflict, a
judgment about complianceof any use of nuclearweapons with
these revirements would have to be made on the basis of the
actual circumstancesin each case, and could not be made in
advance or in the abstract. (Of.course, as shown elsewhere in
this submission.possible lawfuluse of nuclearweapons is not
limited to reprisals.)
'' U.S. Army Field Manual, note 49, p. 177,
para. 497.
3O Variouç provisionsof AdditionalProtocol1 contain
prohibitionson reprisalsagainst specifictypes of persons or
objects, includingthe civilianpopulationor individual
civilians (Article 51(6)) , civilianobjects (Article 52 (1)),
cultural objectsand places or worship (Article53(c) ), objects
indispensableto the survivalof the civilianpopulation (Article
54(4)), the natural environment (Article 55(2) , and works and
installationscontainingdangerous forces (Article 56(4)). These
are among the new rules establishedby the Protocol that, as
explainedabove, do not apply to nuclearweapons.
10. Neutrality. It has been asserted thatthe rules of
neutralityin the law of armed conflictapply to and prohibit the
use of nuclear weapons. Howevey.the principleof neutrality6'
is not a broad guaranteeto neutral States of immunity from the
effects of war,whether economicor environmental. Its purpose
was to precludemilitary invasionor bonbardmentof neutral
territory,and otherwiseto define complementaryrights and
ojligationsof neutrals and belligerenr~.~' We are aware of no
case in which abelligeren:nas Deen nelc responsiblefor
-ee Hague Convention V Respectingthe Rights and Duties
of Neutra1 Powers andPersonsin Case of War on Land, 18 October
1907, re~rintedin Roberts & Guelff,suDra note 11, p. 63.
69 Çee, m, Greenspan, Tho Modern Law of Land Warfare,
p. 356 (1959); W. Bishop, Jr., International Law: Cases and
Materials,pp. 1019-20 (1971).collateraldamage to neutral territoryfor lawful acts of war
committed outside that territory.'O
Further,the argument thatthe principle of neutrality
prohibits the use of nuclear weaponsis evidentlybased on the
assertion that the use of such weapons would inevitably cause
severe damage in the territoryof neutral States. This
assumptionis incorrect and in any event highly speculative. The
find chat such damage would occur without knowing
Court could not
the precise circumstancesof a particularuse. Like any other
weapon, nuclear weapons could be used to violate neutrality,but
this in no way means that nuclearweapons are prohibited
by neutralityprinciples.
11. -. It has been argued that
the use of nuclear weaponswould violate the principle expressed
in the 1868 St. Petersburg Declarationconcerningweapons that
"renderdeath inevitableU.'lThis assertionis evidently based
on the argumentthat no nuclear weaponwould leave those within
the immediatevicinity of theexplosionwith any reasonable
chance of survival.
This argument is based on a misconceptionof the St.
Petersburg principle,which was directedat anti-personnel
weapons tnat were deliberately àesigned to kill when thatdesign
7C ,%ceG. Schwarzenberger, _,w as
''~;bU2d&, Vol. II, pp. 582-591 (1968).
Explosive ProjectilesUndercing400 Grammes Weight, W11,December 1868,
rer>'-inted. Roberts & Guelff, note 12, p. 29.
3 2 featurewas not needed to disable enemy c~mbatants.'~This does
not mean that it is unlawful to use a weapon that hasa high
probabilityof killing personsin its immediatevicinity if that
design featureis required to fulfill a legitimatemilitary
mission.
For example,any large high-explosive or fragmentation weapon
has a high probabilityof killing exposedpersons within a
certain distance ofthe detonation. An effectiveanti-submarine,
anti-aircraftor anti-tankweapon has a high probabilityof
killing the crews of these vehicles. This fact does not rnake .
these weaponsunlawful,since these lethaleffects are necessary
for the effective accomplishment of their legitimatemission.
By the same token, a nuclearweapon is not prohibited
by the St. Petersburgprincipleif its effects are required for a
legitimate military mission.For example,the use of a nuclear
weapon to destroy a navalvesse1 or an armored formationdoes not
violate this principle, even thoughthere would likelybe a very
high casualtyrate among targetedcorrbaiants.
12. -. It has been argue6 that any useof nuclear
weapons which affects a large number of non-combatants could
constitutegenocide,anà thac the eiement of intent for genocide
could be inferred£rom the mere failureof the person using the
nuclear weapons to take account of its full effects. This is a
" The only specific weapons prohibiteb ày the St.
PetersburgDeclarationare projectilesweighing lessthan 400
grams tnat are explosive or"chargeawith fulminatingor
inflammablesubstances." 2.
33 serious misstatementof the elementsof the offense ofgenocide,
which is only committedif violent actsare done "with intent to
destroy, in whole or in part, a national, ethnical,racial or
religious group, assuch."" The deliberate killingof large
numbers of people is notsufficientto establishthis offense
unless this genocidal intent is demonstrated ialthoughsuch
killing might, dependingon the circumstances, constitute a
violation of other rules of internationalhumanitarianlaw).
Like any other weapon £rom firearms to poison gas, nuclear
weapons could be used to commitgenocide,but this tact in no way
renders their use illegal pgf S.
No internationalenvironmental instrument is expressly
applicable in aned conflict. No such instrumentexpressly
prohibits or regulatesthe use of nuclear weapons. Consequently,
sucn an internationalenvironmentalinstrument could be
applicable only by inference. Such an inferenceis not warranted
~ecause none of these instrumentswas negotiatedwith the
intention that it would be applicablein aned conflict or to any
use of nuclear weapons. Furtner, such an implicationis not
.
. warranted by the textual inte-retation of these instruments.
1. -Env;- 'ITreatieç. It has been
suggesïed that there is a tfPYinciple of EnvironmentalSecurity"
' Convention onthe Preventionand Punishment ofthe Crime
of Genocide, 9 DecemDer 1948, General AssemblyResolution 260
AiIII), 78 UhSS 277, Ar:. II. which supposedlyforms part of the law of war. This principleis
said to be evidencedby the provisions of anumber of
internationalenvironmental law treaties, includingthe 1985
Vienna Conventionfor the Protection of the Ozone Layer, the 1992
FrameworkConvention onClimateChange, and the 1992 Convention
on BiologicalDiversity. However.none of the cited
environmental treaties definesany "environmental security"
principle, nordoes any of them state or even suggest that there
is such a principle.
None of these treaties was negotiatedwith any idea that it-
was to be applicablein armed conflict,much less toprohibit the
use ofnuclear weapons. None of themmakes specific or veiled
referenceto armed conflict , and none of them relates in any
concreteway to the use of nuclear weapons. The applicationof
these treatiesto nuclear weaponswould be for a purpose wholly
Cifferent£rom that which was contemplated by the negotiating
States
ention for th- 30tpc-- O
a. -5 Conv f tha oz. .
W. A review of the text of the Vienna Conventionfor the
Protection ofthe Ozone Layer7'revealsno intent,whether
expressor implied,to addressthe iegality ofthe use of nuclear
weapons orany other form of armed conflict. The only provision
of the Convention thateven purports :O regulatethe conduct of
the Parties is a general statementin Article 2(1):
71
Conventionfor tne Protectionof the OzoneLayer, 22
March 1985, 26 IL! (1987), p. 1529.
35 The Parties shall take appropriatemeasures in accordance
with the provisionsof this Convention . . . to protect human
health and the environment againstadverse effects resulting
or likely to result from human activitieswhich modify or are
likely to modifythe ozone layer.
Article 2(1) does not containany language which suggests that
the Partiesintended to prohibit any specificactivities, and
certainly none which suggests an intent to prohibit the use of
any category of weapons :
Rirther,-ex 1 to the Conventionsets forth an agenda for
future research concerning substances and processes thatmay
adversely affect the ozone layer. No reference is made, however,
to researchregarding the effects of the use of nuclear weapons,
or to the effects of the use of any other weapons or means of
warfare. The absence of any such reference further indicates
that the Partiesdid not contemplatethat the Conventionwould
apply to such matters.
b. 2997 COI~VP i o n . . Nothing in
che UN Framework Conventionon Climate ~nange" addresses,
e-ressly or by implication, the use of nuclear weapons or any
other aspectof armed conflict. The objectiveof the Convention,
as staced in Article 2, is to achieve "stabilizationof
greenhouse gas concentrations in . the atmosphere . . . ."
Similarly, the operativeprovisionsof the Conventioncal1 on
Parties to take various measures relatedto emissionsof
greenhouse gases. The Conventiondoes not identifythe use of
' United Nations FrameworC konventionon Climate Change, 9
May 1992, 31 ILM (1992), p. 849. nuclear weaponsas a sourceof greenhouse gasesialthoughit
identifiesother such sources).
The record of the preparatorywork fox the Convention further
establishesthat the negotiating States did not intend to address
the use of nuclear weapons. During preparatorywork conductedby
the United Nations Environment Programme (UNEP)/WHO
Intergovernmental Panel on ClimateChange that was tasked to
developpossible elements of a convention,three proposals
relating toamed conflictwere suggested:one to refer to the
1977 EnvironmentalModificationConventi~n,'a ~ second suggesting
a requirernent that the climatebe used only for "peaceful
pu-oses", and a third suggesting that a linkagebe established
between nuclearstockpilesand climate change." It appears,
however, thatnone of these proposals (oranythingsimilar)was
pu: forward orQiscussedduring the negotiationson the
Convenrionthat followed, norwere any such proposalsincluded in
the Conven:ion text. The inescapable conclusioi ns that the
States char negotiateà theConvenrioncià no; intend to deal with
sucn matrers in that instrunen:.
'"onvention on the prohibitionof Militaryor any other
Hosrile Use of EnvironmentalModificiationTechniques, 18 May
1977, 1125 U.N.T.S. 3.
77
"Reporton Legal Measnres by the Topic Coordinators",
ResponseSrraregiesWorkinc Group, Iztergovernmental Panel on
ClirnateChange (1990). c- 1992 R-tv p-. Nothing in the
text of the Conventionon Biological ~iv~?rsit~' States or
implies that it applies to the use of nuclearweapons or any
other aspect of amed conflict. The only provision of even
arguable relevance is Article.14,which requires that, in cases
where an activity within a Party's jurisdictionposes an
"imminentor grave danger" to biologicaldiversity outside its
jurisdiction,that Party shall "as far as possible and as
appropriate"notify the States potentiallyaffected and initiate
action to "preventor minimize" the danger. This provision is
not deçigned to deal with armed conflictand in any event
recognizesthat there may be circumstancesin which it is not
possible or appropriateto prevent or minimizedanger to
biological diversity.Nothing in the negotiatingrecord of which
we are aware suggeststhat this general admonitionwas intended
to regulate armed conflict,mucn less to pronibit nuclear
weapons .
2, F irop~oclaratlonç . It has
also Deen argued that theuse of nuclear weapons would be
contrary to a series of non-legallybinding environmental
instruments. As will be seen from an examinationof those
.
instruments,this conclusionis wholly unwarranted.
-. The 1972 Stockholm Declarationof the United
Convention onBiologicalDiversity, 5 June 1992, 31 ILM
(1992). p. 822. Nations Conferenceon the Human En~ironment'~ is not a legally
binding instrument,but rather a political statementof
aspirations. Nothingin the Declaration purports to ban the use
of nuclearweaponsin armed conflict. Indeed, the one principle
(Principle 26) expresslyaddressingnuclear weapons merely States
that:
Man and his environmentmust be spared the effects of nuclear
weapons and al1 other means of mass destruction. States must
strive to reach prompt agreement,in the relevant
internationalorgans, on the eliminationand complete
destructionof such weapons.
At most, thisis only a statementof a policy objectiveand is
certainlynot a statementof a legal prohibitionon the use of
nuclearweapons. Al1 efforts a: the Conferencetoprohibit the
use of such weapons in armed conflictwere reje~ted.~'
Principle 21 of the Declaration provides:
States have, in accordancewith the Charter of the United
Nations andthe principles of internationallaw, the
sovereignright to exploit theirown resourcespursuant to
their own environmental policies, and the responsibility to
do not cause damage to the environment of otherorStates or of
areas beyond the limits of national jurisdiction.
1: is clear, from a reading of the wnole text of Principle 21,
that it was designedto balance a statement ofsovereign rights
to exploit a State's own natural resourceswith a statementof
the responsibility toensure tnat the exercise of those rights
" StocknolmDeclarationon the Human Environment (16June
1972),section 1 of the Repor: of the United NationsConference
on the Human Environment, UN Doc. A/CONF.48/14 & Corr.1 (1972).
Environment."1,4 -var6The Int'? :..J_(1973),op.n423eat pp. 508-11.
39does not result in damage to otherç. It was obviouslynot
drafted to apply to the conductof armed'conflict,much less to
the use of nuclearweapons in foreign territory.
b.
-. The Rio Declarationon Environmentand
Development," like the StockholmDeclaration,iç a non-legally
binding politicalstatementof principles and goals, adopted by
consensus at the 1992 United Nations Conferenceon Environment
and Development (UNCED) . It does not address,even by inference,
the legality of the use of nuclearweapons in armed conflict.
Only one of the principlesof the Rio Declarationaddresses
armed conflict. Principle 24 provides:
Warfare is inherently destructive of sustainabledevelopment.
States shall thereforerespect internationallaw providing
protection for the environmentin times of armed conflict and
cooperatein its further developrnen ,tas necessary .
Thus Principle 24 calls or.States to respect the existing
internarional lawproviding protectionfor the environmentin
cimes of armed conflict,but does not in any way identify the
content of that law, or expressan opinion on the aàequacy of its
content. Althoughsome States at the Rio Conferencesought a
general principle condemning weaponsof mass destruction,they
failed in this effort ."
'' Rio Declarationon ~nvironmentand Development il4 June
1552), United Nations Conferenceon Environmentand Development,
m- Doc. A/CONF.151/5/Rev.l(1992) .
82 % J. Kovar, "A short Guide to the Rio Declaration" , 4
Co_o_ao ~.,~r;Plw (1993),p. 119 at
p. 138. Principles 1, 2 and 25 of the Rio Declaration havebeen cited
for the propositionthat the threator use of nuclear weapons in
an armed conflictwould constitute a breach of generallyaccepted
principlesof international environmental law. However, none of
these principles addresses armed confict or the use of nuclear
weapons
Principle 1 provides:
Human beings are at the centre of concernsfor sustainable
development. They are entitledto a healthyand productive
life in harmony withnature.
Principle2 is a restatementof Principle 21 of the Stockholm
Declaration. Principle2 provides:
States have, in accordancewith the Charterof the United
Nations and the principlesof internationallaw, the
sovereignright to exploit their own resourcespursuant to
their own environmentaland developmentalpolicies,and the
responsibilityto ensure that activities withintheir
jurisdictionor control do notcause damageto the
environmentof other States or of areas beyond thelimits of
national jurisdiction.
This text simply addsto StockholmPrinciple 21 the words
"and developmental" aLter the worà "environmentalu in the phrase
"pursuantto their own environmencaland.aevelopmentalpolicies."
It thus no more today supportsthe posizionthat international
law prohibitsthe use in armed conflictof nuclear weapons than
it did twenty years ago.
Principle 25 proviaestnat:
Peace, àevelopmentand environmental protection are
interàependentand inCivisible.
While this principle identifies peace as an essential
orerequisiteto sustainableaev?lopmen:,it doesnot purport tooutlaw war, or to make the use of nuclear weapons in armed
conflict unlawful.
Neither the nuclear-weapon States northose States that rely
for their security on the nuclear-weapon capabilities of others
would ever have accepteda prohibitionon the use of nuclear
weapons in the context of such an instrument. Theattempt
p~sr to interpretthese instrumentsas if such a
prohibitionhad been accepted would be to stand these instruments
on their collectivehead and reverse the clear intent of the
States that negotiatedthem.
Further, to the extent that the Court were to decide that the
use of nuclear weapons is prohibited or restricted by
internationalenvironmentalagreementsor principles,very
serious damage could be caused to internationalcooperationand
the developmentof legal noms in this area. Any determination
by the Court chat these instrumentsprohibit or restrictthe use
of nuclear weapons wouldintroduce a new and highly divisive
element into internationalcooperâtionin this field.
E. 1. nt5 DO Nor mit -- t'n=_llseof
-.
The argument hasbeen made that the use of nuclear weapons
violates the internationally guaranteed right to life, based on
such international instruments as the UniversalDeclarationof
Human Rights, the InternationalCovenantof Civil andPolitical
Rights, the American Convention onHuman Rights and theEuropean
Conventionon Human Rignts. However, in the view of the United States, the use of nuclearweapons inthe exercise oflegitimate
self-defensewould not be in any way inconsistentwith such a
right to life.
The human rights instruments which recoynizea right to life
do not by their terms prohibit the use of nuclear or any other
weapons. For example,the Universal Declaration provides in
Article 3 that "[elveryonehas the right to life, liberty and
securityof person."" Nowhere in the Universal Declarationis
there any mention of a limitationor prohibitionon the use of
any form of weaponry. The formulationcontainedin the
International Covenant on Civil and PoliticalRights differs only
slightly, primarily by adding to this basic assertionthat no one
shall be "arbitrarilydeprived".oflife.84
None of these instruments prohibits, directly or indirectly,
the taking of life for legitimate purposes, includini gn the
exerciseof the right toself-defense. Thatinherent righthas
long beenunderstoodand intenaedto comprehendthe right to use
lethal force, and it is inconceivablethat the various human
Universal Declarationof Yuman Rights, UNGA Res. 217A
(III),UN Doc. A/811, aaopted Dec. 10, 1948.
' Art. 6 (1)of the 1966 International Covenant on Civil and
PoliticalRights proviaes: "Every human being has theinherent
righï to life. This right shall be protectedby law. No one shall
be arbitrarily deprived of his life." .'&e&SQ the 1969 Arnerican
Conventionon Human Rights,Art. 4 (1: "Everypersonhas the right
to have his life respected. This right shall be protected bylaw,
and, in general, £rom the moment of conception. No one shall be
arbitrarilydeprivedof his life." Article 4 of the 1981 African
Charter on Human and Peoples' Rights States: "Human beings are
inviolable. Every humanbeing snallbe entitledto respectfor his
life and the integrityof his person. No one may be arbitrarily
deprived of this righ:."rights instruments cited couldhave been intendedto abridgethat
right so long as the rules of armed confiictand the limitations
of the U.N. Charterare observed.
Thus. the prohibitionin the InternationalCovenanton Civil
and PoliticalRights againstarbitrarilydeprivingsomeoneof his
or her life was clearlyunderstoodby its draftersto excludethe
lawful taking of human life. During the negotiationof the text
which became Article 6, variousdelegationsindicated a
preferencefor including anexplicitstatementof the
circumstances under which thetaking of life would notbe deemed
a violationof the generalobligationto protect life, including
àlia killingsresultingfrom the use of force whichis no
more than absolutelynecessary,.or which occurin case of self-
defense,or whichare lawfullycommittedby the militaryin time
of war.@= Ratherthan attemptto identifyal1 the possible
circumsrancesunder which the taking of life mightbe justified,
the draftersagreedto a simpleprohibitionon the "arbitrary"
deprivationof life. In any event,we know of no significant
oppositionto the proposition:ha: the deprivationof life as a
"lawful actof war" would not be violativeof the protected right
to life. ~he EuropeanConvention,which alsoguaranteesthe
.
85 SM, -, BossUyt and Humphrey, ad- to the "Tra-
iypsu of thP -1 p._orial~- Cl.v.l
Biahtç (1987). pp. 115-125.
44 right to life, specifically recognizes the right of States to
deprive persons of their lives through lawfulacts of war."
It has been suggestedthat the Human Rights Committee,in
General Commentsissued in 1982 and 1984, has construedthe
Covenant on Civil andPoliticalRights asprohibitingthe
possession and use of nuclear weapons. That is not, however,
what the Committee actually said, and those Comments are aPi in
fact inconsistent with the view thatthe Covenant does not
prohibit the taking of lifefor legitimatepurposes, including
the proper exerciseof the right ofself-defense.
The 1982 Comment,for example,notes that the U.N. Charter
prohibits the threat oruse of force by one State against
another, but expresslyrecognizes theinherentright of self-
defen~e.'~ The 1984 Comment,while recognizing that nuclear
weapons are among the greatest threatt so the right to life, does
not purport to declare that possessionor use of such weapons is
86 Article 2 of the European Conventionon Human Rights
prohibits the intentional taking of life, save in the case of
capital punishment;or followingthe useof force which isno more
than absolutely necessary in quelling riots or insurrections,
preventing the escape of a lawfully-heldprisoner, effecting a
lawful arrestor in self-defense.Article 15prohibits derogations
from Article 2"exceptin respectof deathsresulting£rom lawful
acts of war."
67 & General Comment 6/16, July 27, 1982, at paragraph 2:
"The Committeeobserves that war and other acts of mass violence
continue to be a scourge of humanity and take the lives of
thousands of innocenthuman beings every year. Under the Charter
of the United Nations the threat or use of force by any State
against anotherState, except in exerciseof the inherentright of
self-defence,is alreadyprohibited. The Committeeconsidersthat
States have the supreme auty to prevent.wars, acts of genocide and
XRI/GEN/l/Rev.maisat p.e6c(1594).ng arbitraryloss of life."prohibited s by internationallaw. Rather, it simply
proclaimsthat theproduction,testing,possession, deplopent
and use of such weapons "should"be prohibited,thereby
expressingan aspirational goalto be achieved and not a binding
rule of international la^.'^
Accordingly,the citation of human rights instrumentsadds
nothing to the analysis of the questionwhether the use of
nuclear weaponsis consistentwith existing international law.
The answer to that question is determined,as it must be, not by
referenceto human rights instrumentsbut by applicationof the
principlesof internationallaw governingthe use of force and
the conduct of armed conflict.
F. -v to the Th7eat of Use of Nuclear
-.
The request of the GeneralAssembly is somewhat broaderthan
the request of the World Health Organization. Specifically,
while the WHO request refers to "the use ofnuclear weaponsby a
State in war or other aned conflict",the General Assembly
request refers to "the threat or use of nuclear weaponç in any
circumstance". But even if this ciifference in the scope of the
&e General Comment 14/23, Nov. 2, 1984, paras. 4 and 6:
" [Tlhedesigning, testing, manufacture, possession and deployment
of nuclear weaponsare among thegreatest threats to the right to
life which confront mankind today. Thisthreat is compoundedby
the danger that the actual use of such weapons may be 'brought
about, not only in the event of war, but even through human or
mechanicalerroror failure.. ..Theproduction,testing, possession,
àeployment and use of nuclear weapons should be prohibited and
(1994)i.eaas crimes aoainst humanity." HRI/GEN/l/Rev.1 at p. 6 requestwas purposive,it does not lead to any different
conclusionin substance.
In particular,if there is no prohibition pe~: on the use
of a class ofweapons, the "threat"to use such weapons is
likewisenot prohibited ~e. States whichrnaintain stocks of
nuclearweapons for possible use in self-defenseif the
unfortunate necessity for such use should ever arise,and for the
purposeof deterring aggression and hostile use of nuclear
weaponsby others, do not therebyviolate internationallaw if
there is not an applicable prohibitionon the possessionor use.
of such weapons. (Thisis, of course, withoutprejudice to any
specificobligationnot to acquire,possess, deploy or use
nuclearweapons thatStates may.acceptthrough such international
agreementsas the Non-Proliferation Treaty, the Tlatelolco
Treaty,and the Outer Space Treaty.)
Indeed,many Stateç rely fortheir securityin large parton
the nuclear capabilities of nuclear-weaponStates,which have
enteredinto murual defensearrangemenïçconçisïent withthe
coliectiveself-àefenseprinciplerecognizedin Article 51 of the
Charter. Nuclear deterrence:lascontri~utedçignificantlyduring
the pasc 50 years to the enhancement of strategicstability,the
avoiàanceof global conflic;and the maintenanceof international
peace andsecurity. IV. CONCLUÇION -
The United Statesbelievesthat the Courtshould, in the
exerciseof the discretion provided by Article 65, paragraph 1,
of its Statute,declineto provide the opinionrequested. In any
event, there is no generalprohibitionin conventionalor
customary international law on the use of nuclear weapons, and
there is no basis for speculationby the Courtas to the mariner
in which the law of armed conflictmight apply to the use of
nuclear weapons in hypotheticalfuturesituations.
Letter dated 20 June 1995 from the Acting Legal Adviser to the Department of State, together with Written Statement of the Government of the United States of America