Written Comments of the Government of EwptX.EGAL1.I-Y OF THFtEAx OR USE l
OF NUCLEAR -NS
(REQUEST FOR ADVISORYOPINION)
ORDER OF 1 FEBRUARY 1995
*
WRITTEN COHWZNTSOF EGYPT
ON OTHER WRITTEN STATEHENTS
(ARTICLE 66, PARAGRAPH 4. OF THE STATUTE) Table of Contents .-
INTRODUCTION
1. Should the Court Render its Advisory Opinion on the Present
Question?
Arguments against the Court rendering an opinion
1. The abstract character of the question
2. The allegedly political nature of the question
3. Would an advisory opinion on the question put to the
Court serve any useful legal purpose?
4. Would an advisory opinion on the question put to the
Court have a nefarious effect on the ongoing disarma-
ment efforts?
II. Is there a General Prohibition on the ~hreat or Use of
Nuclear Weapons in General International Law?
III. The Threat or Use of Nuclear Weapons Violates the Laws of
Armed Conflict
1. The obligation to distlnguish in al2 circonstances be-
tween civilian populations and objects and military person-
nel and objectives
2. The prohibition against the use of weaponç which cause
unnecessary sufferfng
3. The prohibition against causing videspread, long-term and
severe damage :O the environnent, and the obligation not to
prejudice the health or survival of the population
IV. The Threat or Use of Nuclear Weapons is Contrary to Numerous
other ?=inciples and nules on Contemporary International Law
A. The International Law of Hunan Rights
1. The right to life
2. The right ro enjoy the highest attainable standard
of physical and mental heal th
B. The prohibition of genocide and crimes against humanity: INTRODUCTION
12 The Government of the Arab Republic of Egypt has the honour
to submit to the Court, in accordance with Article 66. paragraph
4 of the Statute, its written comments on other written state-
ments relating to the request for an advisory opinion by the
General Assembly in its resolution 49/75K of 15 December 1994.
2. The question contained in resolution 49/75K. for which Egypt
has voted. reads as follows:
"1s the threat or use of nuclear weapons in any circumstance penaitted
under international Law?"
3. The World Health Assembly, in resolution WHA46/40 of 14 Uay
1993, had also requested the Court to give an advisory opinion on
the follouing:
"In view of the health and environmental effects. uould the use of
nuclear weapons by a State LI var or other armed conflict be a breach of
its obl'&ations under L~ternational lau, including the WHO Constitu-
tion?"
=. Zgypt ïelcomes the decision oL the Court to consolidate the
oral hearings on both requests and addresses these comments to
statements made in relation to both of them. While the two
questions put to the Court are essentially similar, the question
of the General Assembly is larger in scope, totally covering that
of the World Health Assembly as uell. This is the reason why the
prosent comments are mainly addressed to the question of the
General Assembly, uhile refezring to the World Health Assembly's
question whenever it is deemed necessary.
5. The written statement of Egypt of June 1995, together with
the present comments constituto the position of Egypt on the two
questions. Egypt belioves thai the question put to the Court by
the General Assembly of the United Nations should be answered in
the negative, whereas the answer to the question of the World
Health Assembly should be in the affirmative.6. Egypt notes thac a large majority of'.~tates who have pre-
sented written statements relating to the two questions have
adopted the same views as those she has put forward.
1. Should the Court Render its Advisory
Opinion on the Present Question?=
Arguments against the Court rendering an opinion:
7. Several States have maintained in their statements that the
Court should decline to give the requested advisory opinion. It
has thus been argued that "[tlhe 'propriety' of judicial involve-
ment with [the] question is more than doubtf~l",~ and that the
Court should not give the requested advisory opinion in the
present case because there were several "compelling reasons" for
-L4. no: to do so,J e.g. that "[tlhe General ~s~embly's request
... leads to the question of Court's integrity ... since there
is the danger O: a pointiess procedure."4
". The reasons given for cnis ne&a:lve attitude can be synthet-
ically fornulated as folioïs:
- That the question is abscrac:;
- Tha: i: is political;
- That the opinion car, heve no useiul legal effect; or
alternatively, and paradoxically
- That i: vil1 definicelu have a nefarious effect on the
ongoing disarmament anc arms limi:ation negotiations.
These argumenïs aie explained and refuted in turn.
The tenos "present question", "present request" or "present case"
refer to the requesi nade ÜY the Ceneral ksembly.
2 Written statement of Ge-y, para. 2 at p. 3.
Written statements of France, P. 5; andGermsny, loc. cit.
* Written statement of Germany. para. 2 at p. 5.
-2- 1. The abstract character of the question: .
9. It has been argued that the wording of the question of the
General Assembly was broad, general and abstract, that it vas
hypothetical because it has not arisen within the context of a
concrete legal or factual situation involving a specific use or
threat to use nuclear weapons, that it required the Court to make
speculative statements going beyond its judicial function, and
that the question cannot be answered without reference to the
numerous different combinations of circumstances in which . the
threat or use of nuclear weapons might be contemplated.5 There-
fore, the Court was invited to decline to answer the question
posed by the General Assembly,e and not to engage in speeula-
tions about unknown future situations.'
10. That the abstract and general character of the question
posed is a reason for the Court to decline to answer it in the
exercise of its advisory rather than its comtentious function, is
2 nere affirmation devoid of any justification and an inadmissi-
ble confusion betueen its tvo functions. The Court has declared
ihat:
"Accord- to A-ticle 96 cf the C>z-ser ad. Psticle 65 of the Statute,
the Court may give an cpkjon Gn any legal guestim, abstract or
othervise. "8
5 Written statenents of kssia, p. 5; Netherlands, para. 15, at p. 5;
United States, pp. 1 and 4; France, para. 5 at pp. 13 f.; United Ringdom,
paza. 2.38, at p. 16; Gemy, pars. 2 ar p. 5; and Finland, p. 1.
Written statenent of the United Kingdom, para. 1.3, at p. 1 and para.
2.23, at p. 9.
7 Written statement of the United States, p. 4
Italics added. Aahission of a State to the United Nations (Charter,
kt. 4), Advisory Opinion: I. C.J. Reports 19Q8, p. 57 at p. 61. See also
Fffect of avam's of compensation made oy the U.N. Administrative Tribunal,
Advisory OPiRim of July 13, 1954: 1.C.J Reports 1954, p. 47 at p. 51; and
Legal Consegoences for States of the Continued Presence of South Africa in
Namibia (South West Af-rica) notvithstanding Security Council Resolutim 276
(1970), Advisory ûpinion of 21 June 1971, I.C.J. Reports 1971, p. 16, para.40
at P. 27.In fact, in the exercise of its advisory fun'ction, the Court has
more than once held tha: it is its "duty ... to envisage the
question submitted to it only in the abstract form which has been
given to it ..."s Moreover, as pointed out by Judge Azevedo, it
is quite fitting for the advisory function of the Court to give
an answer in abstracto which may eventually be applied to several
de facto situations : minima circumstantia facti magnam
di versi tatem juris. 10
11. Therefore, to argue that the question cannot be answered
vithout reference to the numerous different combinations of
circumstances in which the threat or use of nuclear weapons might
be contemplated, and the factual matrix within which a specific
use or threat to use nuclear weapons takes place. reveals a
fundamental misunderstanding of the advisory function based on a :
confusion between it and the contentious function of the Court:
The purpose of the advisory function is not to settle an actual
dispute which cannot be understood without iis factual and legal
background, but to enliahten the rsquesting organ on certain
legal issues which it hss t; Usal xick i?: dischargin2 its func-
T lons.
2. The allegedly political nature of the question:
1
id. It has Been su~~os?ed that ~he question posed by the General
Sssemn?y vas not a legal ques;ion out a political one,ll and
:ha: "en opinion by the Court offering advice on what is in many 1
respects essentially 2 political natter could undermine its
aÿthority and effec:iveness.":2 1: has also been argued that the
Io Cf., individual oeinion of 2u&e Philadelph0 Azevedo, Admission of a
State to tne United Natlms <Ch&-ter, Pz?. 4), Advisory Opinion: I.C.J.
Reports 1948, p. 57 at p. 74.
1 Written staremer.is of France, pp. 12 f.; and Germany, para. 2 at p.
2.
'2 Written statement of the Unicd States, p. 6. use of nuclear weapons "cannot be assess'ed using the norms of
international law without such an assessment turning from a
judicial into a political one."l=
13. The mere fact that the question may have been politically
motivated cannot prevent the Court from rendering its advisory
opinion. The Court has stated that:
"It is not concerna3 with the motives which may have inspired ... [the]
request ..."14
The Court has also affirmed that:
"in institutions in which political considerations are prominent it may
be particularly necessary for an international organization to obtain an
advisory opinion from the Court as to the legal principles applicable
with respect to the matter under debate ..." 15
On another occasion, the Court said:
"It has been aryed t.hat the question put to the Court is intertwined
with political questions. and that fo: this reason the Court should
refuse to jive an opinion. It is true that most interpretations of the
CL-ter of the United Nacions vil1 have political significance, great or
-11. In the nature of thirgs it could not be otheruise. The Court,
hoïever, cannot attrioute a political cnaracter to a request which
invites it to undertake an essentislly judicial task 16
Thus. it is not for the Court to delve into the motivation which
leads a duly authorizad organ to request an advisory opinion on a
legal question obvious?~ falling within the jurisdiction of that
organ even vhen that question relates to an issue which has other
important political facets or is itsel: essentially political. In
the tvo requests beforo the Court, the legal questions are clear
'3 Written statement of Germy. para. 2 at p. 2.
14 I.C.J. Reports 1948, 2. 57 at p. 61.
Interpretation of the Agreement of 25 March 1951 between the YHO and
Egypt, I.C.J. Reports 1980, p. 73, para. 33 at p. 87.
le Certain benses of the LW, Mvisory opinim of 20 July 1962, I.C.J.
Reports 1962, p. 151 at p. 155.and the Court can answer them without enquithg into any apparent
or hidden political nocives or other political facets of the
issue.
14. In the same vein, it vas suggested, as a basis for the
contention that the Court should decline to give the opinion,
that there was very substantial d.isagreement within the interna-
tional community as to whether such a request was appropri-
ate.17 On a previous occasion the Court had clearly indicated
that the political controversy at the background of the question
was not a reason for it to decline to give the advisory opinion
requested.18 "Differences of views among States on legal is-
sues". explained the Court, "have existed in practically every
advisory proceeding; if al1 were agreed, the need to resort to
the Court for advice would not arise."le
15. It makes no difference that Resolution 49/75K vas adopted
amidst political controversy or whether it vas adopted by a large
majority or not. What natters is thzt it vas properly adopted by
the constitutionally requirec m~jority. It has thus to be consid-
ered as :ne expression of the legally v~lid uill ûf the General
Asseibly.
3. Would an advisory opinion on the question put to the Court
serve any useful legal purpose?:
16. 1: has been arguod :ha: an advisory opinion on the question
put to the Court uould serve no usefu? lega? purpose, and would
thus be a futile exercise of the judicial function, vhich dis-
" Written stateloen: cf the United States. p. 6. Emphasis has been put
on the circumstances of adopthg resolution 49/75K and on its voting renilts.
It vas passd by 78 to 43 votes, with 38 abstentions.
le Legal Consegumces for Stats of the Cmtinued Presence of South
Africa in Nmibia (South West .4frics) notui thstanding Security Council
3esolution 276 (1970), Advisory @inion of 21 June 1971, I.C.J. Reports 1971,
2. 16, para. 40 at p. 27.
ls Ibid., para. 34 a: p. 24 qualifies the request on grounds of "proprietu". The argument
goes on to explain that this is because the question does not
fa11 in any of the categories of cases on which the Court has
given advisory opinions up to the present.Z0 Those categories
were enumerated as follows:
" (a) Cases vhere the legal question inwlveà the interpretation of a
constitutional provision vhich bas became the subject of dispute in the
organ making the request. "
" (b) Cffies where the le& question inmlves matters on vhich the
requesting organ or agenc~ seeksmidance in the exercise of its
constitutional functions."
"CC) Cases uhere the legal question inwlves the interpretation of
agreements betm the Organization and a Menber State."
Cases uhere the 1-1 question
d concerns the 0bligati~~ of Hember
States conseguential upon decisions or resolutims of the cnztpetmt
organs of the organization '21
17. This list is obviously a mere academic representation. It is
one among manu, and of course does not bind the Court nor can it
-- it the ambit of its advisory jurisdiction in any way. But even
.-
:r, a=guendo, it did, one can easiiy see :ha: the present request
falls undef (b) as shall be apparent from tne following point.'
Eüt uhat is contzolling hero is no: this list but the Statute.
And tne Statute is crystal clear wnen it provides that "[tlhe
Court may give an zdvisory opinion on any legal question".22
The only condition is that the question be of a "legal nature"
and failing within the jurisdicrion of the requesting organ,
ïhich is for the General Assemblv coextensive with the Charter.
18. Here again there is an impermissibie confusion betveen the
advisory and contentious functions of the Court. There is no need
here, as in contentious proceedings, to prove a "legal interest"
as a condition of admissibility of a case before the Court. In
advisory proceedings, the Charter, including the Statute. leaves
20 Written statement of the Uni:ed Kingdom, para. 2.27, at p. 11.
21 Ibid., pp. 12-15.
22 ATticle 65 of the Statute of the Court. it to the discretion of the requesting organ to evaluate the
appropriateness and the eventual usefulness .of the requested
advisory opinion for its current and future uork.
19. The Court has on numerous occasions affirmed its duty as
"the principal judicial organ of the United Nations",z3 to
respond to such requests:
"The repl~ of the Court, itself Organ of the United Nations, represents
its participation in the activities of the Organization, and in princi-
ple should not be refused." 24
indeed, the Court considered that:
"no State, ... can prevent the giving of an Pdvisory Opinion uhich the
United Nations considers to be desirable in order to obtain enlighten-
ment as to the course of action it should take. "25
It is not for the Court to decide in place of the General Assem-
bly on the "desirability" or the "opportunity" of the request or
io ovar rule it, uhen the Assembly had elready considered it
desirable.
23. It has been argued. nevertbeless, thet the nature of the
case is such that the Court uould be unable to give an advisory
opinion uhich uould be of positive assistance to the General
Assembly and the other crgans of United Nations, particularly in
the field of disarsament and security.26 It has also been ar-
aued that the Court "uould be forced ;O ove~step the bounds of
ics function as "the principzi judiciai organ of the United Na-
23 Article 92, Cha-ter OS the kit& Nations.
24 In terprzta tion of Pesce Trea ties (first phase), Advisory OPinian,
I.C. J. Reports 1950, p. ô5 at p. 71; w.d 2eservations ta the Conwntion on the
?revmtion and Punishment of the C=&e of &nocide, I. C.J. Reports 1951, p. 15
a: p. 19.
Zs I.C.J. Reports 1950, 2. 65 at p. 71.
Ze Written statements of the United Kingdom, para. 2.27, at p. 11 and
para. 2.37, at p. 16; United States, pp. 1 f.; and France, para. 7 at p. 16.
-8- tions".z7 In this context, it has been ~tated that "[ilf a
response by the Cocrt to a request for.an advisory opinion would,
in fact, be unlikely to provide any constructive assistance to
the other organs of the United Nations but, on the contrary,
would be likely to have a detrimental effect on the activities of
the United Nations family", it was "both the duty of the Court to
protect its own judicial function and the need for it to play its
part as an organ of the United Nations cal1 for it to exercise
its discretion to decline to respond to the request."ze
21. It is submitted, however, that the advisory opinion of the
Court can be of great practical value. The Court has abundantly
reiterated that its advisory activity constitutes its main form
of participation in the activities of the United Nations of which
it is the principal judicial organ and that a request in princi-
?le should not be refused.20 The present request relates to an
issue that lies within the hard core of the first purpose and
principal function of the United Nations, namely the maintenance
sf iaternational peace and security, including disarmament and
eios control. The questioc falls squaroly ïithin the ambit of the
dssenbly's large nandste under Artlcie 10 covering "ail matters
., -
fallina witnin the Cherior . 12 fac:, the General Assembly has
jeen dealing xith the legality of zaclear weapons since its first
session.3" The request raises both the jus ad bellum question
of the threat or use of force (hrricles 2(4) and 51 of the
Charter), as well as that of the jus in bellu relating to certain
ueapons of mess destruction. Ansvering the request by the Court
uould enlighten the General Assembly on the legal context in
uhich its activities are carried out. A statement by the Court on
the legality of the threat or use of nuclear weapons under
international law cannot fail tc have a positive effect on the
long-standing negotistions in the United Nations and elsewhere,
2' Written szaiement of Germy, para. 2 a: p. 4.
28 Writcen statement of the United Kiwdorn, para. 2.26. at p. 11.
Z8 I.C .. Reports 1950, p. 65 at p. 71; and I.C .. Reports 1951, p. 15
a: p. 19.
30 Resoluticn no. 1(I) of 24 January, 1946.
-9-at least by reducing the scope of a legal cbntroversy
4. Would an advisory opinion on the question put to the Court
have a nefarious effect on the ongoing disarnanent efforts?:
22. It has been argued that a judgment on the legality of
nuclear weapons might jeopardize the operation of the Non-Prolif-
eration Treaty in ~articular,~~ and the ongoing negotiations on
nuclear disarmament in general.32 This, it is submitted, is
pure conjecture. A pronouncement by the Court on the subject is
in no way incompatible with the pursuit of negotiations, espe-
cially if they were to be conducted in the light of an authorita-
tive declaration on the issues involved. Confirming the illegal-
ity of the threat or use of nuclear weapons by an authoritative
statement of the Court would play a major role in clarifying the
law and thus, bringing a prolonged debate to a close. Therefore,
such a pronouncement cannot herm the ongoing negotiations on
nuclear disarmament in zeneral.
23. ûn :ne contrazï, mrsz rrobebly, a pronouncement by the Court
ïocld facilitete the inp?ementstion of !.:ticle VI of the Non-
?to?lferazion Trea:y uhlck proviles that the parties should
"2ursue negotiations in good Paith on effective measures relating
to cessation of the nuclear srns :%ce ... and to nuclea: disarma-
nen:, and on a trestï on g~neral and complete disarmament under
strict and effective i2terna:ional contra?."
II. 1s there a General Prohibition on the Threat or Use
of Nuclear Heapons in General International Law?
34. Hoving to the subsrazce of zke ques:ion, it has been argued
31 Written statement of the Netherlands, para. 11, at P. 4
32 Written statenents of the United Xddom, para. 2.27, at p. 11 and
Faras. 2.41 f., a: ?P. 18 f.; United States, pp. 5 f; Germany, para. 2 at p. 5
and Finland, p. 1. that international law does not contain a gèneral prohibition on
the use of nuclear weapons per se, that no treaty or other
binding instrument specifically prohibits the use of nuclea:
weapons in al1 circumstances,~~ and that State practice demon-
strates that their threat or use is not deemed to be generally
unlawful.3' It was suggested that the existence of several
treaties on the prohibition of use in certain geographic regions,
non-proliferation, manufacturing or testing of nuclear weapons
proves that there is no global prohibition on the acquisition or
use of nuclear weapons per se, as these treaties are premissed on
the lawful existence of nuclear weapons and their possession by
States in general.35
25. This understanding of the role and the cumulative legal
significance of the instruments which prohibit nuclear weapons,
each in a certain donain or a certain area, is erroneous for tuo
reasons. In the first place, the existence of numerous treaties
each prohibiting a specific aspect or use of nuclear weapons
bears ïitness to the energence of a comprehensive legal
:rohlbi:ion rather than the rsverse.3e
25. Secondly, the fact tnat there is no general prohibition on
ihe acquisition or detention O: nuclear ïeapons is a separate
33 Written statements of Russia. p. 5, United Kingdom, para. 1.4, at p.
2 and para. 3.5, at p. 22: United States, pp. 2, 8 and 20; France, paras. 13
a1 p. 24, 31atp. 45 u.c! 73 ar p. 53; and Italy, p. 1.
34 Written statement of the United States, pp. 2 and 9
35 Written statements of hssia, pp. 6 f.; and United States, pp. 10-
14.
Je They are the Pztarctic Treaty of 1959, United Nations, Treaty
Series, Vol. 402, p. 71; Treaty 3anning Nuclear Weapons Tests in the Atmo-
sphere, in Outer Space and mie: Water of 1963, op. rit., Vol. 480; Treaty on
Principles Goveming the Activities of States in the FAploration and Use of
Outer Space, including the noon and Other Celestial Bodies of 1967, op. rit.,
Vol. 601, p. 205; Treaiy for the Prohibition of Nuclear Weapons in Latin
America of 1967 (Treaty of Tlatelolco), op. rit., Vol. 634, p. 326; Treaty on
the Prohibition of the hplacement of Nuclear Weapons and Other Weapons of
HESS Destruction on the Sea-Bed and Ocean Floor and the Subsoil Thereof of
1971, op. cit., Vol. 995, p. 115; South Pacific Nuclear Free Zone Treatv of
1985 (Treaty of Rarotonga), 24 I.L.X., 1440 (1985); and the African Nuclear-
Weapon-Free Zone Treaty of 1995.question from, and without prejudice ton the question of their
use or threat thereof.
27. The general significance of these partial efforts to ban or
outlaw different aspects of nuclear weapons has to be assessed in
the light of the relevant resolutions of the General Assembly of
the United Nations which are the clearest indications of the
opinio juris of the international conmunity on the subject.
28. General Assembly resolution no. 1653 (XVI) of 24 November,
1961 entitled "Declaration on the Prohibition of the Use of
Nuclear and Thermo-nuclear Weapons" reads as a prohibition de
lege lata of nuclear weap~ns.~~ It states that "[tlhe use of
nuclear ... weapons is contrary to the spirit, letter and aims of
the United Nations and, as such, a direct violation of the
Charter of the United Nati0ns".3~ The resolution goes on to add
that "[alny State using nuclear ... veapons is to be considered
as ... acting contrary to the laws of humanity and as committing
a crime against mankind and civili~ation."~e
25. Equally, resolution 7936 (1X'iII) of 29 November, 1972 on the
Hon-Use of Force in Internacional nelations and Permanent Prohi-
>;--on of the Use of Nuclecr Ueapcns, ensncietes "the permanent
prohibition of the use of nucieaz xeapons".40
30. These two resoluticns heve been followed, almost annually,
37 Its preamhle statts that:
"the use of weapons of nass destruction, causing mecessazz human
suffering, vas in the past prohihi:&, as being contrary to the laws of
humanity and to the princieles of international law, by international
declarations and bindbg agreements, such as the Declaration of St.
?etersburg of 1868, the Declaration of the Brussels Conference of 1874,
the Conventions of the Hague Peace Conferences of 1899 and 1907, and the
Geneva Protocol of 1925, to ïhich the mjority of nations are still
parcies".
3e ?armaph 1 (a) by others reiterating the illegality of nuclear weapons, e.g.
resolutions 33/71 8, 35/152 D, 36/92 1; 45/59 B, 46/37 D, 47/56 C
and 48/76 B.
31. It has been argued, however. that the link between the
assertion of the illegality of nuclear weapons in paragraph 1 of
resolution 1653 (XVI), and the request in the same resolution
addressed to the Secretary-General of the United Nations to
consult with Hember States about the conclusion of a convention
to prohibit the use of nuclear weapons, raises the question
whether those States which voted in favour of the resolution
regarded the use of nuclear weapons as unlawful in the absence of
such a convention. This, it was suggested. casted doubts on,the
extent to which those States. which voted in favour of the
resolutions, saw them as containing statements de lege lata about.
the legality of the use of nuclear weapons.41
32. The vote on a resolution calling, inter -alia, for the
conclusion of a convention prohibitin2 the use of nuclear weapons
cannot be construed as e negation of the existence of such a
Srohibition under generzl inceznational iaw. Otherwise, the
conclusion of any codification conveniion would bear the negation
cf the prior existence of the rules it codifies. Such a conven-
Lion is useful in spite of the ?rior existence of the rules,
because it purports to eliminate or reduce the controversies over
:ne;: existence and exact inter2re:ation as rules of general
international ?au.
33. In addition, the States which have voted in favour of
resolution 1653 (XVI) calling. inrer e?la, for the conclusion of
the convention are lergely tnose who have voted for resolutions
declaring that nuclear wer ":r]esolutely, unconditionally and for
al1 time condemnredj ... es being contrary to human conscience
and reason, as the most monstrous crime against peoples and as a
violation of the foremost human right - the right to life",42
41 Written statement of the United Kmgdom, para. 3.28, p. 34.
42 General Assembly resolution no. 38/75 B of 15 December, 1983.
-13-that the use of nuclear weapons would be- a violation of the
Charter of the United Nations and a crime against huma nit^,^^
and that nuclear veapons pose the greatest danger to mankind and
to the survival of civilization.44
34. It has been argued that General Assembly resolutions on
nuclear weapons were not binding in themselve~~~ and did not
offer binding interpretations of the United Nations Charter.qe
It vas held that the resolutions were not accepted by a majority
of the nuclear weapon States. It was also claimed that such
resolutions would only be declaratory of the existence of princi-
ples of customary international law to the extent that such
principles had been recognized by the international community,
including the States "most directly affected".47 The question
of the voting results is raised in order to prove that the.'
resolutions were no: binding and to minimize their va1ue.de
35. The resolutions cf the General Assembly are an important
conponent in the thickening legal netvork on the prohibition of
nuclear veapons pe: se. IL. rs inporfant, therefore, to address
L.ne issue cf their legal signi?icance. Though formally nost
General Assembly resolucions acidressed :O Kember States are mere
recommendations, depending 07 their contents and the circumstanc-
es of their adoption, they can Seai greeter legal significance.
Thus, the Court in its ad-~isor-~ o?i,ion on Namibia declared that:
..
:r vould r;o: be correcr cc usme :.na:, because the General Assembly is
43 ilesolutions nos. 1653 (Xi?>, 33/71 5, 34/83 G, 35/152 D and 36/92 1
45/50 B. 06/37 D, 47/56 L er,d 08/76 3.
44 Paragraph 47 of the T-ha: Document of the First Special Session on
Disrment of the General 2ssenbl-i of 1978.
4 Written sratemen:~ of Che ünited ?kgdom, para. 3.27, at p. 33;
Unite? States, pp. 18 f.; =. c a. 22 at p. 34.
46 Written scatement of Russia. P. 8
47 Written statement of the United States, pp. 18 f. See also written
statement of the United Kingdom, para. 3.27, at p. 33.
4e Written statement of Ital~, ?P. 1 f in principle vested with recommendatory pouers. it is debmred from
adopting, in specific cases within the frmeuork of its conpetence,
resolutions which make deterninations or have operative design."49
They can also interact with the rules of general international
law by having a declaratory, crystallizing or generating effect
on them. 50
36. As for General Assembly resolutions on nuclear veapons, they
should be considered as declaratory of norms of general interna-
tional law because they reveal the illegality of nuclear weapons
in the light of the Charter and other rules of general interna-
tional law. There are a number of factors vhich enhance their
legal significance. The resolutions are drafted in precise legal
language, and mostly make determinations of fact and lau.JL The
voting patterns of those resolutions demonstrate a high and
consistent support from the membership of the United Nations.
Such an accumulation of resolutions can generate, and result in
the formation O: a rule of customary international la^.^* It
domonstrates continuity and eistinguishes those resolutions as
having stable su?pcrt. It equelly inpresses the importance which
States attach :O them.53 RepetiIion cf the resolntions also
însïers the objsction rhat o resolütion may havs only been
4s I.C.J. Re-~orts 1972, p. 16, pms. 105 at p. 50
See ABI-SAAB,Georges: La coutume dans tous ses états ou le dilemme
du développment du droit L~ternational général dans un monde éclaté, in Essays
in Honour of Roberto .&O, Dott. A. Giuffrè cditore, Uilano. 1987, P. 56:
.il est possible de dire qu.a l'heure actuelle la très grande majorité
de la doctrine est d.avis que les r~solutions normatives de 1.Assemblée
générale peuvent ssciter les mêmesmodes d.interaction avec la coutume
que ceux que la Cour a identifié par rapport aux traités de cdifica-
tion. c'est-à-dire qu'elles peuvent prcduire les mêmeseffets potentiels
que ceux-ci, déclaratoires, cristallisants ou générateurs de règles
coutumières."
5: :or example see the ienguago of General Pssenbly resolution no.
38/75 3 of 15 Decenber, 1983 quoted above, mpra, para. 33 at p. 13.
52 Judge Tanaka. dissent^ op-bion, South West Africa, Second Phase,
Judment, I.C.J. Reports 1966, p. ô at p. 291.
Cf., SLOAN, Blaine: Ceneral Assenbly Resolutions Revisitd (Forty
Years Later), 58 B. Y. I.L., p. 132 (1987). ..
adopted to please a temporary majority ln a certain situa-
tion.Jd There is also a strong moral element in the resolutions
which renders contrary practice increasingly of doubtful
legality.
37. As for the claim that General Assembly resolutions on
nuclear weapons were not declaratory of an existing custom
because the nuclear-pouers, being "the most directly affected
States" have voted against them, it is obviously an argument
worthy of consideration, based on some truth, but not the whole
truth. For not only nuclear powers but al1 States of the world
are "most directly affected", as potential recipients of nuclear
wrath, by the issue of thrsat or use of nuclear weapons u,nder
international law.
38. The nuclear States can perhaps delay, but cannot definitely
set obstacle to the energence and consolidation of an opinio
juris underlying a genersl rule of international law to the
effect of the illegalit~ of the thzeet or use of nuclesr weapons
?e-- se, rn sny c~r~ums~a~ce.
Suc even if She Court cornes KO the conclusion that , such a
rcle has not yet reacnec rhe c?tisate stage of consolidation, and
that the tnreet cr use of nucle~: ïea?ons is not prohibited per
. ..
se; their use vould still be profirûitec! in any circumstance , by
te effecrs, under the generel us of the law of armed
conf lict.
III. The Threat or Use of Nuclear Weapons in any Circumstance
is Contrary to the Laws of Arned Conflict
33. A11 threst or 250 cf :-:ce, including by nuclear weapons, is
prohibited under Article 2:G) of :ne Charter, which provides only
cvo exceptions to this general prohibition of the threat or use
of force, namely se!?-defenze in acccrdance with Article 51 of
Jd Cf., 10c.cit. the Charter and enforcement actions under Article 42 of the
Charter.
40. As for enforcement action, in such cases where it deems it
necessary to apply military force to "maintain or restore inter-
national peace and security", it is uninaginable that the Securi-
ty Council would resort to or authorize the use of nuclear
weapons with their vide ranging disastrous effects; that which
would surely immensely aggravate any threat to or breach of
peace, rather than restore international peace and security.
41. As to the other and more important exception to the prohibi-
tion of the use of force, as it is not subject to a prior daci-
sion by the Security Council, it has been argued that the ques-
tions put to the Court by the General Assembly and the World..
Health Assembly do not "draw a distinction between the use-of-
nuclear weapons by the aggressor and the use of such weapons in
self-defence".JJ and :ha: genaral international law does not
specifically prohibit the threat or use of nuclear weapons in
self-defence.se IL 22s also claimed that it would be entirely
ez~itrary to excluce . ex hy?othrsl' the right of a State to rely on
nuclear veapons as a means of defence against a conventional
atcack, and tna: tnerr cac Se 2s essy assunption that the ose of
nucleaz ueapons can never be jusrified in response to a conven-
tional attack on tne basis of the "disproportion" between the
tus, because wha: mattered vas tne result to be achieved by the
"defensive" action and not the forms, substance and strength of
the action itself. Ii vas, tnus, SuggeSted that the question to
be posed vas uhether, in :ne accual circumstances of an attack,
:ne use of a particular nuclaar ueapon vas necessary in order to
defend the viczim S~a:e?=~ It uas finally claimed that the
possibility of using nuchar ïeepons in self-defence found
3s Written statenecz sf missia, p. 5
-
Written statemen: of :rance, para. 18 at p. 30.
s7 Written statemen: of the United Kingdom, para. 3.36, at p. 37 and
para. 3.40, at p. 38; see aLso written statement of France, para. 17 at pp. 28
f. confirmation in Security Council resolution no. 984 (1995), and
particularly in its preamble uhich refers only to "any aggres-
sion" with the use of nuclear weapons as "endangering interna-
tional peace and security" "in accordance uith the relevant
provisions of the Charter of the United Nations".
42. By contesting the legality of the threat or use of nuclear
veapons, even in self-defence, it is not suggested that the
cuclear pouers cannot use force in self-defence. It is simply
submitted that the use of force, even in self-defence. has to
conform with the rules of the jus in bello, and that nuclear
veapons by their very nature and inevitable effects fa11 fou1
with these rules, uhich are of absolute nature and do not permit
their setting aside even in retaliation in the form of belliger-
ent reprisals. Thus, even if the State or States exercising self-
defence uere attacked by nuclear weapons this does not mean that
they may respond by nuclear weapons.
43. Xeprisels are prohibited against protected persons and'
abjects according ta :?.e Ceneve Conventions of 1949 and their
odeitional Pro:ocols. T5.i~ prohl5ltion of :eprisal is absolute
and applies to tne use of al1 uezpons. Sn consesuence, the
?ro:ecced persons and oo:ects cen 7eve: btcome targets of any
attack, including nuclear attacki. The 2:ovisions of the Conven-
tions and the Protocols carrying this prohibition of reprisals
against pzotected persons znd objects are considered declaratory
cf customary law.5a
44. Moreover, paragïaph j of A:ric?e 60 of the Vienna Conven-
:ions on the Lau of Treaties of 196958 and 198660 provides
58 Cf. FIONZITIII, fiatali~o: Ti5eLaw of NavalWarfa-e, ed. by N.
aonzit:i, Ha-:linus Nijhoff ?uolishers, 1988, p. 47.
59 Viema Convention on tne Lau of Troaties. Concluded at Viema on 23
May 1969. Enter& hto force on 27 Januery 1980. United Nations, Treaty
Series,Vol. 1155, p. 331.
60 Viema Convention on the Law of Treaties Betueen States and Interna-
tional Organizations or Betueen international Organizations. Concluded at
Vienna on 21 Harch 1986. Not yet in force. A/CONF.129/15. that the rights open to an injured party, 'in terms of suspension
or termination of a treaty in cases of material breach, shall not
apply to treaties of "humanitarian character" ; thus, excluding
the application of the maxim inadimplenti non es:
adinplendum.81 Hence, if a treaty of such a character vas vio-
lated by another party, the injured party or parties may not
proceed toward terminating the treaty or suspending its operation
in whole or in part, or retaliate in kind against the breaching
party. Consequently, even on the hypothesis that the use of
nuclear weapons is at ail permitted, they cannot be used in
reprisals because breached treaties of "humanitarian characfer"
applicable in this case, notably the Geneva Conventions and their
Protocols, will still apply between .the parties durante bello
according to their own terms and by the application of the rules
of the law of treaties. And in any case regardless of the trea-
ties, the relevant principles and rules of humanitarian.. law
expressed in these treaties are part of general international
lzw. They are of a jus cogens character and thus csnnot be
veived.
4K Ir nas been eracel, hcïever, that ncthing in international
numanicarian law indicates thet nucleer veapons were prohibited
. .
2-z se.eZ Hore parriculer!~, ir v2s c~a~sed that nuclea? veap-
ons were not prohibited by the Protscols of 197783 es the Dip-
?ornatic Conferonce ïnich alopte? rhe ?rotocolse4 had decided
not to treat that issue.
Article 60, ?a-wwh 5 arovides that:
"Paragraphs 1 to 3 ào no: apply to provisions relating to the
protection of the niman peercn coonteined in treaties of a tumanitarian
ch&-acter, in par:icu!r- rs 2rovisions prohibiting any form of reprisals
against persons procected DY =ch treaties."
ez Wricten scatemenr of che Unit& Stetes, pp. 2, 7 and 21.
63 Protocols Pdditiona? to the Geneva Conventions of 12 August lMQ,
and Relating to the protecrion of Victiss of International Armed Conflicts of
1977.
84 The Diplornatic Conference on Reaffirmation and Development of
International iiumanitarian Law Asplicable in Armed Conflicts, Geneva, 1974-77.46. Indeed the United States, the United Ki-ngdom and France made
declarations at the time of signature and ratification (by those
among them who ratified) to the effect that their understanding.
which vas generally accepted by the Conference according to them,
vas to consider the negotiations as well as the ensuing instru-
ments as not covering nuclear weapons. This vas made in the form
of an interpretative declaration (revealing their own understand-
ing of vhat happened) and not as a reservation subject to objec-
;ions by other parties to the instruments; though several of the
latter did append differing interpretative declarations on this
point to their own signature or ratification. In fact, the
American, British and French declarations have unreasonably
stretched the significance of the decision of the Conference' not
to deal specifically with weapons and particularly with weapons
of mass destruction and more particularly nuclear arms, leaving
it to other fora where negotiations on their prohibition per se
uere in process or about to start. The general understanding was
that these weapons will no: be addressed specifically. But this
ïas ïithout prejudice tc the a?plicability to such ueapons of the
general rules of humaniczria? la? shich uere in process of
:saffirmetion end CeveSopmenc in the Ccnference. What uas exclud-
ed ::os c5e emcit OF the Conference and Che ensuing Protocols uas
s?ecific treatnent of the nGclecr ïeapons, and not the applica-
5ility of general rules to them 2s to all other weapons uhether
existing or non-existing ,et. This ccnes clesrly from the Commen-
zary c; the inte-nstionzl Ccmmittee of the Red Cross on the
?:c:occls uhich reaes:
"delegations agreed not to liscïss nuciee- weapons. But it cannot be
inferrd from that t:mt ?ne rules of Protocol 1 do not apply to nuclear
veapons. On the cor.tr&-j. :f the rules of Protocol 1 do not prohibit the
use of nuclear ueapons, they nevertneless seriously restrict such
use S 5
47. Thus, ïhet?er t5e Conferecce di6 or did not specifically
eiscuss nucleaz weapons is a natter that has no bearing on the
applicsoility O: tne provisions of Protocol 1 to nuclear weapons,
as long as the effeczs of L5ese ueapons violate the rules and
es Para. 1851 at p. 603 principles expressed therein. The mere fact-that the Protocol, or
any other instrument. does not speclfically ,prohibit the use of
nuclear weapons, does not imply that their use is permissible if
such use falls within the patterns of conduct prohibited by the
provisions of these instruments.
48. Indeed the use of nuclear weapons violates several fundamen-
ta1 principles and rules of the international law of armed
conflicts, prominent among them are the following:
49. 1. The obligation to distinguish in al1 circumstances
between civilian populations and objects and military : personnel
and obj'ectives: One of the most fundamental rules of tiumanitarian
international law is that "Ctlhe civilian population ... as aell
as individual civilians, shall not be the object of attack."ee ..
50. It is especially forbidden "[tlo destroy ... the enemy's
property, unless such destruction ... be imperatively demanded by
:ne necessities of war".s7 The attack or bombardment, bu what-
sver means, of touns, villages, cuellings, or buildings which are
undefended is pronibite1.Be Zquaiiy,- in "bombardments" al1
necessary precautions mcst 5e take? so spare buildings dedicated
zo religion, art, sciencs, o: cnaritabie purposes. historic monu-
nents, hospitals, and places ïnere tne sick and wounded are
coliected.8~ Furthermore, it is also prohibited to attack ci-
-~i?ian hospitals, convoys of vehi-les, hospital trains, hospital
ships, aircraft exclusive!^ exployed for the removal of wounded
and sick civilians, or -Re transport of medical personnel and
-.
e8 Azticle 52(2) of the :::st Protocol
87 .Article 23 (gr) of the Hague Regulations Respecting the Laws of and
Customs of War on Land annexe3 to Convention No. IV of 1907.
Ibid., Pzticle 25.
Article 27 of the First Protocol of 1977 1 -
equipment .70
51. In order to ensure compliance with this prohibition the
parties to the conflict are required at al1 times to "distinguish
between the civilian population and combatants and between
civilian objects and military objectives and accordingly ...
direct their operations only against military objectives."7' In
other words, indiscriminate attacks are absolutely prohibit-
ed .72
52. This fundamental principle of the laws of armed conflict,
most recently reiterated in the First Protocol of 1977, is a well
established and uncontested rule of general international law". It
applies to the use of any weapon old or new, existing or to corne,
conventional or non-conventional. It is not the nature of the
weapon as such but the effect of its use which makes it fa11
under the prohibition. Thus, the most precise weapons can be used
in an indiscriminate manne:. au: some weapons, by their massive
and uncontro?lable effocis in terns of destruction, killing and
70 Piricles le, 31 &id 72 of the Coneva Convention Relative to the
Protection of Civilian iersons ;,n. 7-e of %a-, of 12 hgust 1949. United
Nations. TreatySeries, Vol. 75, 3. 3eE. %ho, kticles 12, 22 and 23 of the
rirst Protocol of 1977.
7 Ibid., .4rticles 45 and 51(2)
72 ISid., Pzticle 51. A.cco~Ii~g tû this =ticle indiscriminate attacks
:
"4. ...
C) those vhich enploy a mechcd or means of combat the effects of
uhich canr.ot De :bit& es requirsi by ~his Protocol;
and consequen:?~ ... a-9 of a nature to scrike military objectives and
civilians or civlliar. objects uithout distinction.
5. hong others, the folloijiii :.mes of attacks are to be considerd as
Lidiscriminate :
8) an attzck by Donbardment by any nethcds or means which treats
as a single nilitary oojective a number of clearly separated and
distinct milita-Y objectives located in a city, tom, village or
other =ea containing a s~hllar concentration of civilians or
civilian objects; and
b) an attack uhich may be expected to cause incidental loss of
civilian life, ixjury to civilians, damage to civilian objects, or
a combination thereof, which would be excessive in relation to the
concrete and direct mi lit&^ advantage anticipated." pollution, are not amenable to discriminate use, directed only
against military personnel and objectives; they are constitution-
ally (i.e. by their physical nature) "indiscriminate" in their
effects.
53. This is the case of nuclear weapons. By their inherent
qualitative and quantitative characteristics, the effects of
nuclear weapons are necessarily and inescapably cataclysmic and
indiscriminate. They cannot distinguish, it is submitted, between
combatants and non-combatants and between protected and unpro-
tected objects. They are expected to cause immense incidental
loss of civilian life, injury to civilians, damage to civilian
objects and to the environnent, or a combination thereof, ex'ces-
sive in relation to any concrete and direct military advantage.
...
54. It has been contended, uithout being proven, that like any
ather ueapons, nuclear ones can target military objectives,
particularly uhen they are situated in isolated areas auay from
civilian concentrations, and thst incidental damage to civilian
populstion an2 objects, is collateral damage which is tolerated
... nunanitarian la: as long as the nilicazy advantago outweigh
the ri~ks.~3 Thus, it cinnot be szid befsre hand and in general
fhat the use of nuclear ueapons is prohihited in a?? cases. as it
will depend on the circur~stances of each case.
55. 1: has been argued, fürthermore, that modern nuclear weapons
were capable of precise tergeting and can be, therefore, directed
ageinst specifiî nilifary 08jec:ivss without indiscriminate
effect on the civilian ?0pulation,~4 and that modern weapon-
designers uere able to railor the effects of a nuclear weapon to
deal vith various types of milicary objectives.'J However,
zhese arguments ignore, in:-= eliz, the surrounding natural
environnent of the oojecfive, and the risk-factor of error which
can De exrrenely costly in cases of use of nuclear ueapons, as
73 Written statement of the Unitect States, p. 22
74 Written statement of the United Kddom, para. 3.68, at p. 52.
75 Written statement of the United States, P. 23.well as the incalculable effects as to the' general environnent
and the future generations, as certain effects cannot be locally
contained and can be vehicled by the natural elements such as
water and air.
56. One should thus not be misled by the concept of the so-
called "low ~ield nuclear weapon", which remains a nuclear weapon
with al1 the inherent effects and dangers of such weapons.'e
57. Apart from the fundamental principle of discrimination at
al1 times between military personnel and objectives and civilian
populations and objects, several other principles and rules of
the law of armed conflict also render the use of nuclear weapons
illegal in any circunstance.
Prominent among them is the general principle enunciated in
the Preamble of the Declaration of St. Petersburg of 1868'7
tnat:
"the only iegjtbete objecc uhich States should endeavour to accomplish
during waz is to veeken the millte-y Forcesof the enemyM.78
Sisilerly, ne principle ex7:esset in .A.r:icle 22 of the Hague
3eguia:icns cf 1907 s:a:es chez:
"the r'bht of the belligerent to dopr seans of injuring the enemy is
not unliniteb."
These are, however, general injunctions, specified further inter
alia in the following p:inci?les.
58. 2. The prohibi ti0~ agsinst tne use of weapons which cause
unnecessary sufferina: It has been ergued that the use of nuclear
7e For more detsils see rhe thorough examination of the question of
"micro-nukes", "mini-nukes" and ":by-nukes" in Mernoriai of the Goverment of
the Repubiic of Nauru, Septenber 1991, de in connection with the request for
and advisory opinion made by :ne World Health ksembly, at pp. 53-8.
77 Signed at St. Petersburg 29 Novenber - 11 Decenber 1868.
78 Italics addei weapons would not necessarily lead to a Violation of the rule
laid down in Article 23(e) of the Hague Regulations of 1907 which
forbids belligerents "to employ arms, projectiles, or materials
calculated to cause unnecessary suffering". It was suggested that
suffering may be called "unnecessary" only when its infliction is
not necessary to attain a lawful military advantage or greatly
exceeds what could reasonably have been considered necessary to
attain that military ad~antage,~~ that the question of whether
a specific use is in contravention of the said obligation cannot,
therefore, be answered until the exact implications, both as to
the military advantage gained and to the injury caused. 'are
known .a0
59. It was argued, furthermore. that the prohibition vas intend-
ed for weapons designed to increase the injury or suffering of
the persons attacked beyond what is necessary to put them "hors
combat";el for example weapons which would unnecessarily in-
f lame wounds. 82
50. Since the nineteenth century, this principle has been
esbodieci in two rules: one forjids the ES= of poisons, while the
other prohibits the use of weapons carable of causing S~perfluous
i?.juries. Nuclear weapons fsll in th? lstter cazegory by reason,
of their enormous blast waves, air blasts, fires, residual
nuclear radiation or radioactive fallout, electromagnetic impuls-
es and thermal rzdiation vhich cause extensive "unnecessary
suffering".eJ By their poisonous effect. the use of nuclear
weapons also violates the other rules as well as the 1925 Geneva
irotoco!.
7B Written statement cf rhe Netherlands, para. 20. at p. 7. On a
shilar opinion see written siaiement of the United Kingdom, paras. 3.64 and
3.6E, a: ?p. 50-52.
80 Written statement of the Netherlands, para. 22. at p. B
Written statement of ihe L'nitec.States, p. 28.
82 Written statement of the United States, f.n. 65 at p. 28.
e3 Cf. General Assembly resolution no. 1653 (XVI) of 24 November, 1961.61. 3. The prohibition against causing uidespread, long-term anc
severe dsmage tu the environment, and the obligation not Co
prejudire the health or survival of the population: It has been
argued that the prohibition to use "methods or neans OP warfare
which are intended, or may be expected, to cause widespread,
long-tern and severe damage to the natural environnent'' in the
First Protocol of 197784 did not apply to nuclear weapons on
the basis that the Protocol did not apply to such weapons.85
62. However, as it has been demonstrated, the Protocol governs
:ne use and the effects of nuclear weapons. Thus, these prohibi-
tions apply to them.88 Even, if it vere not used with the in-
tent to attack the environnent, the use of nuclear weapons
becomes unlawfu? because its use vil1 inevitably and on a wider
scaleharm the environ~ent,~~ and would thereby prejudice the
nealth or the survival of the population.8e
IV. The Threat or Use of Nuclear Weapons is Contrary to
Nunerous other Principles and Rules of
Contenporar? International Law
Tne fcl!owing are Su: e samele cf some important principles
of contemporary inti-nacionoi 1s.d xhich would be violated by the
threat or use of nuclear ïtapons iz any eircumstance.
95 Written scatemenc of the Unit& Staces, pp. 29 f
86 It is equelly proni5ited ts r%-rf out "[alttacks agauist the natural
environment by way of rt~risals". k:icle 55 (2) of the First Protocol of
1377.
87 The violetion by nuclea- xeapons OB xles regulating the environnent
wili be dealt with later, infra, paras. 70-73 at pp. ...
88 Article 55 of the First Protocol of 1977.
-26- , -
A. The International Law of Hunan Rights: '.
63. 1. The right to life: It has been argued that the right to
life did not mean that it was not possible to deprive a person of
his life through legitimate use of force.ae Attention vas draun
to Azticles 2, paragraph 2, and 15, paragraph 2, of the European
Convention on the Protection of Human Rights and Fundamental
Freedoms of 1950 which respectively provide that:
"Deprivation of life shall not be regard4 as inflicted in contravention
of this article vhen it results from the use of force which ..: is
absolutely necessary ... in defence of any person from unlawful violence
and that:
"No derogation from Article 2, except in respect of deaths resulting
from lawful acts of var ... shall be nade under this provision."
Horeover, it has been argued that according to the International
Covenant on Civil and Pglitical Rights,eo the "deliberate tak-
ing of life" is pi-onibiïsd only if it is done "erbitrarily".el
It uas aiso argued thet deazh r5sulting from the use of nuclear
weapons in self-drfence wotild thus not fall undrr these prohibi-
tions.
64. Article 6(1) of the International Covenant on Civil and
Political Rightss2 provides that "Every human being has the
inherent right to life."e3 Althotigh i: is expected that in
Wricten statements of Russie, p. 9; and the Netherlands, para. 27,
at p. 10.
00 Article 6(?). United Natigns, fieaty Series, Vol. 999, p. 171.
81 Written statements of the U~ited Kingdom, para. 3.101, at pp. 65 f.;
and United States, p. 43.
82 United Nations, Treacy Series, Vol. 999, p. 171
e3 See also article 3 of the Universal Declaration of Human Rights of
1948. times of var human beings, whether nilitary or civilians, might
perish, the killing of human beings should no.t exceed the limits
of lawful acts of war. It should be recalled, however, that
Article 40 of the Fourth Geneva Convention stipulates that "[ilt
is prohibited to order that there shall be no survivors". Al-
though an order to use nuclear weapons may not intend that "there
shall be no survivors". it is an indirect orde: to do so by
virtue of the immense lethal capabilities of such weapons. The
use of nuclear weapons necessarily causes wide-scale deaths, thus
"arbitrarily" depriving human beings of the right to life.
65. 2. The right to enjoy the highest attainable standard of
physical and mental health: Everyone has a right to "the enjoy-
ment of the highest attainable standard of physical and mental
health:'e4 It is needless to say that the adverse effects of''
nuclear explosions on the human health are immeasurable and
irreparable. Two generstions continue to suffer from the Hiroshi-
ma and Nagasaki bombs. It is noteworthy that existing modern
nucleer weapons n2y be hundreds of tines more powerful and
azinaging than those throun over 2=?ez in 1945. The use of nuclaar
ïeepons is en absoluce in-ecnens rs che "ecjoyment of the
hibhesf attainable stenderl cf >hysicai and mental health" by
nusan beings.
B. The prohibition of genocide and crimes against humanity:
ô6. It has been arguec that the mere use of nuclear weapons does
not constitute genocide if it ïas not "committed vith the intent
to destroy. in whole or in pert, a national, ethnical, racial or
religious group" on the grounds :ha: genocide was a crime of
intent.g5 It vas, further, clsined that the prohibition of
genocide vas clearly not iirected at collateral casualties
resulting fron attack on miLifar7 objectives.
.Article 17 of the international Covenant on Economic, Social and
Cùltural Rights. United Nations, Treaty Series, Vol. 999, p. 3.
O5 Written statements of Fussia. p. 9; the Netherlands, para. 26, at p.
10; United Kingdom, para. 3.73, p. 54; and United States, pp. 33 f.
-28- 67. According to Article II of the Convention on the Prevention
and Punishment of the Crime of c en oc ide of 1949ee any acts
"committed uith the intent to destroy, in Ùhole or in part, a
national, ethnicai. racial or religious group" is considered
genocide. It has alread~ been demonstrated that by the inherent
qualitative and quantitative characteristics of their effects,
collateral damage of the use of nuclear weapons necessarily
results in cataclysmic and indiscriminate effects, and is expect-
ed to cause immense incidental loss of civilian life inevitably
excessive in relation to any concrete and direct military advan-
tage anticipated. Therefore, their use cannot at al1 be justified
by stating that extensive losses in life are simply collateral
damage.
68. This is of special relevance to the argument that genocide
is a crime of intent. For as long as it uas unambiguously clear
and knoun before hand to the user of nuclear ueapons that their
use vould result in immense incidental loss -of life, how can it
still be a;gued that nuclear ueapons can be laufully used on the
basis chat thert vas no inte~tion :O cause such vide killing, or
thet the primary ocjec;ive ?as something else? The question of
incen: applies to cases ~Rere the resclt ïes unexpected and the
user could no: have predicted i:s occurrence. Hence, the use of
nuclear weapons necesâarily inplies an intent to destroy, or at
least not to nind destroyind, in vhole or in part, the groups
within which the terze: is situated.
C. The International Law of Environnent:
69. It has been srgued :ha: no international environmental
instrument is expressly a?p?icable in armed conflict, or ex-
press17 arohibits or regldlares the use of nuclear ueapons.s7 It
vas nentioned that oc: of the some 300 multilateral treaties, 900
86 United Nations, Treetj. Series, Vol. 78, p. 278
e7 Written statements of the United States, p. 34; and France, para. 26
at p. 38.bilateral treaties and 200 other instruments on the protection of
the environnent scarcely any of them makes any references to the
use of nuclear weapons.ge
70. Every State has, in accordance with the Charter of the
United Nations and the principles of international law, the
responsibility to ensure that activities within its jurisdiction
or under its control do not cause damage to the environnent of
other States or areas beyond the limits of national jurisdic-
tion.88 This general rule, which figures in Principle 21 of the
Stockholm Declaration, is further specified in numerous other
instruments. For example the Convention for the Protection of the
World Cultural and Natural Heritage of 1972,100 and the ~ienna
Convention for the Protection of the Ozone Layer of 1985101
provide that States Parties shall not take deliberate measures
which night danage the cultural or natural heritage and that they
shall take appropriate measures to protect the environnent
against adverse effects resulting from human activities which
nodify or are likely to modif~ the ozone layer.102 More em-
?hatical?y, ?rinciple 26 cl the Szockholn Derlaration of 1972
stazes, ln ter slia, that:
"Ken and his environnent must Se ma-4 the offects of nuciear weapons
and al1 other means of mess destruccion:'
1: has been argued tha: this tex; as se?? as the Rio Declaration
have no binding legai effac:.=oJ It is submitted, however,
that those Declaraticns must be seen as declaratory of the
Pzuiciple 21 of the Stockholn DeclUation of the United Nations
Conference cn the Human Z?virormenc of 1972. ii I.L.H., 1416 (1972); and
Principle 2 of the Rio Decle-ation. 31 ?.L.X., 851 (1992).
100 11 I.L.H. ,358 (i972).
loZ Articles 6(3) and 2( 1) of the Convention on Cultural and Natural
Heritage, and the Ozone Layer Viema Convention respectively.
103 Written statement of France, para. 26 at p. 39. evolving normative regulation for the.-protection of the
environnent, including from the effects of the use of nuclear
weapons
71. It has been argued, more concretely, that the Convention on
the Prohibition of Hilitary or Any Other Hostile Use of Environ-
mental Hodification Techniques (ENHOD) of 19771O4 was not ap-
plicable to most cases in which nuclear weapons might be used. It
vas atgued that the Convention vas designed to deal with the
"deliberate manipulation" of the environnent as a method- of
var. 10s
72. Article 1 of the ENHOD Convention provides that it.: is
prohibited "to engage in military or any other hostile use of
environmental modification techniques having widespread, long-.
lasting or severe effects as the means of destruction, damage-or
injury to any other State Party." It also prohibits States from
assistïng, encouraging or inducing any State., group of States or
international organization tc engsge in activities contrary to
che provisions of peragra?ki 1 of %rti.cle 1. Obviously, the use of
nuclear veapons has SUC~ "xides?road, 15ng-lasting or severe
effects" on the environment, os tc fell cnder the ~rohibition of
the Conventicn.
D. Use of nuclear weapons violates the neutrality and the terri-
torial sovereignty of other States:
73. It has been argued that the principle of neutrality was not
a broae guarantee to necrral States of immunity from the effects
of uar. It vas equally naintainad that no belligerent vas held
rosponsible for collatercl damegr to such States for acts of var
. .
zommit:ed ou-side tne~r territories.l3e In addition, it has
204 United Naticns, Treeiy Seriss,Vol. 1108, p. 151
IOs Writren statemer.ts of the United Kingdom, para. 3.75, at p. 56; and
United States, p. 29.
'OB Written statement of the United States, pp. 31 f.
-31-been argued that the Court could not find that such damage would
occur without knowing the precise circumstances of a particular
use. IO7
74. Such arguments would render the principle of neutrality
devoid of al1 meaning and legal value. But in international law,
on the contrary, if a belligerent carries out a policy which
infringes the rights of neutrals, the latter can not only protest
but also take measures aimed at ending the illegal policy of the
belligerent.lo8
75. Horeover, as vas just mentioned in relation to environmental
law, States have. in accordance with the Charter of the United
Nations and the principles of international law, the responsibil-
ity to ensure that ectivities within their jurisdiction or'
control do not cause damage to the environnent of the other
States or of aress beyond the limits of national jurisdic-
tion.los However, electromagnetic impulses resulting fron a
nuclear explosion at an altitude of 100 k.s. may travel to up to
1100 k.m.llo 3adicactive contasinetion may also reach the
nelghbouring countries c? the S:eze in uhich the explosion
occurred.
76. In consequence, the use of nuclser ueapons would necessarily
violate the territorial sovsreignty of other States, where the
impact is bound to Se felt, ukich is a fundamental principle of
international laï, and the principle of good neighbourliness
provided for in Article 74 ci rhe Charter of the United Nations.
107 Written sratemen; zf :he Unitd States, p. 32.
'08 EUNZI'ITI, NatalL-O: The Law of Naval Uarfare, ed. by N. Ronzitti,
Mstinus Nijhoff Fublishers, 1988, p. 50.
los Principle 21 of the Stockioh Declaration of 1972 and Principle 2
of the Rio Declaration of 1992.
110 1987 WHO Report, para. 13 at p. 11 (French)77. In the light of the foregoing, Egypt maintains its submis-
sions concluding its statement of 20 June. 1995.
78. As some States have reserved the right to make further
çubnisçions with regard to the request of the General Assembly
should the Court decide to respond to it, Egypt reserves the
right to respond to such submissions should the Court decide to
receive them and in the manner which the Court uill prescribe
Written Comments of the Government of Egypt