Letter dated 19 June 1995 from the Honorary Consul of Solomon Islands in London, together with Written Comments of the Government of Solomon Islands

Leîter dated 19 June 1995 from theHonorary Consul of

Solomon Islands in London, together with Wriîten Comments
of the Governmentof Solomon Islands Governmeof SolomonIslam3

HlGHCOMMISSIONE RORSOLOMON ISLANDS

HONORARY CONSULATE -SOLOMON ISLANDS

(08I) 95552 19 SpringfieldRoad.
(081) 946 1744 LondonSWI9 7AL
FAX +44 181 946 1744
ICJ43

1:June 1995

Registrar, International Court of Justice
Peace Palace, The Hague, The Netherlands.

Sir,
WORLD HEALTH ORGANISATIO- ADVISORY OPINION

By the direction of the Minister for Foreign Affairs, Solomon
Islands, 1 have pleasure in sending you herewith, on behalf of
on Other Governments' Written Observations in respect of the
request by the World Health Organisation for an Advisory
Opinion from the International Court of Justice.

In view of the importance of the request made by the World
form of the submission of Written Observations by 34 States,
and the nature of the international legal questions arising
thereunder, Solomon Islands considers that it would be
appropriate for an oral hearing to be held on thiser.
1 would be grateful if correspondence could continue to be
addressed to me at the above address, with copies to the
Minister of Foreign affairs at:O Box G10, Honiara, Solomon
Islands.

1 remain Sir,

AJpL

Honorary ConsulREQUEST BTHE WORLD HEALTHORGANIZATION
FOR ANADVISOR YPINION ON TLEGALITY
OFTHE USEOFNUCLEAR WEAPONSINVIEW

OF THEIEFFECT SN
HUIVIAHEALTH AND THENVIRON~IENT

FURTHERWRITTENOBSERVATIO NSB~~ED
BY THE GOVER~%IENTSOLOMON ISLANDS
TO THE ~'~TRNATIONCOURTOF JUSTICE

Governmeniof SolomonIslandsINTRODUCTION .................................... (1.1-1.27)

(A) Scope of the question .............................. (1.5-1.17)

(B) Applicationof the rule of law ......................... (1.18-1.27)

PART I COMPETENCE ............................ (2.1-2.45) ..

(A) The WHO has wmpetence over the effects of nuclear weaponson
humanhealth and theenvironmentandover thelegalityof their
use ...................................... (2.62.26)

(a) The WHO has competenceover the healthand environmental
effectsof the useof nuclearweapons ............ (2.7-2110)

(b) WHOpractice in relationto the legalityof the useof weapons
confirrnsits competence .................... (2.11-2.17)

The practice of other international organisations: analogous
(c)
principles ............................. (2.18-2.20)

(d) The relevance of internationallaw and the contribution its
development can make to the fulfilment of an
internationalorganisation'spurposes ............ (2.21-2.25)

(e) Conclusion ................................... (2.26)

(B) WHO has a special interest in the legality of the use of nuclear
weaponsby referenceto their effectson humanhealthand the
environment,to sorecognisewould notexpandthe scopeof its
activities, and to answer thequestion would not require the
court to pronounce on a question concerning the mutual
relationshipsof WHOand UN .................... (2.27-2.36)

(a) WHO'Sspecialinterest ............................ (2.29)

(b) Delimitation of competencies between various international
organisations........................... (2.30-2.33)

(c) Impingement upon the rights of other international
organisations,includingthat oftheSecurityCouncil and
theGeneralAssembly ..................... (2.34-2.36)

(C) Other claimsregardingcompetence ...................... (2.37-2.44)

(D) Conclusion ........................................ (2.45)PART LI PROPRIETY . . ....... ........ . ..... .. ..... (3.1-3.27)

(A) No "compellingreasons" havebeen shownwhichrequire the court not
to give an Advisory Opinion ...... . . .......... . .. (3.5-3.10)

(B) Anypoliticaicharacterwhichthe questionmighthavedoesnot prevent
the Court from giving an Opinion .... ..... ......... (3.11-3.13)

(C) The Court'sintervention would notbe detrimentalto effortsto achieve
nucleardisarmament ... . .. .. .. . .. .. ..... ...... (3.14-3.18) :

@) The Advisory Opinionwill be of practical utility for tWHO and is
not tw abstract or general........ . ..... . . ... .. . .(3.19-3.26)

(E) Conclusion ... .. .. . .... ........ .... ............ ... .(3.27)

The questionis not too abstract or general . ... ... . ...... .. . (4.3-4.24)
(A)
The use of nuclear weapons is illegal by reason of the
(1) significanceof the destructionthey wouldcause ... .. (4.4-4.12)

Nuclear weaponsrender death inevitable ... . . . . .... .. .(4.5)
(a)
Nuclear weaponscause superfluousinjury .. . . . . .. . (4.6-4.7)
@)
(c) Nuclear weaponshave indiscriminate effects . . . . ... (4.8-4.10)

(d) The use of nuclear weapons could lead to a general
nuclear war . . . . . . . . . . . ..... . . . ..(4.11-4.12)

(2) The effectsof use of nuclear weaponsrenders them illegal . .. (4.13-4.24)

(B) international law prohibits the use of nuclear weapon. .... ... .. (4.25-4.54)

(1) The claim that noactual rule of internationallaw prohibits the
use of nuclear weapons . . ... .. . . . .. . ... ... (4.26-4.42)

(a) The claim thatno treaty specificallyprohibiting the use
of nuclear weaponshas ever been adopted .. .. (4.27-4.29)

@) The claim that a prohibition on the use of a weapon
necessarily implies the existenceof an express
prohibition . . . . . ... . ... . .. . .. .... (4.30-4.36)

(c) The claim thatany negotiationson a treaty prohibiting
the use of nuclear weapons have never been
successful .. . . . . ... .. . .. .. .. ... .. (4.37-4.38) (d) The claim that UN Generai Assembly resolutions
prohibiting the use of nuclear weaponsdo not
represent the opini joris of the international
community ........................ (4.39-4.42)

(2) Certain internationalhumanitarianlawinstrumentsdo notapply
to the use of nuclear weapons ................ (4.43-4.54)

(a) The applicabilityof the 1977GenevaProtocol 1 to the
use ofnuclear weapons ................... (4.44)

@) The claim that the Conventionfor the Prevention and
Punishmentof the crime of genocideapplies to
nuclear weapons .................... (4.45-4.48)

(c) The claim thatthe law of neutrality does not apply to
the use ofnuclear weapons ............. (4.49-4.54)

(C) Various international instrumentsdo not imply the existenceof a rule
authonsing the use of nuclear weapons ............... (4.55-4.82)

(1) The claim that treaties which limit the possessionof nuclear
weapons implythe nght to use nuclear weaponsduring
an armed conflict ........................ (4.56-4.64)

(a) A pseudo-logicalargument ..................... (4.58)

@) A unilateral and inaccurate interpretation of the
applicablelaw ..................... (4.59-4.60)

(c) A blurred vision of reality.................. (4.61-4.64)

(2) The claim that treaties whichal1for "denuclearisedzones" in
some partsof the world imply theright to usenuclear
weaponsin an arrnedconflict ................. (4.65-4.67)

(3) The claim that the unilateraldeclarationsby states on treaties
limiting the possession or deployment of nuclear
weaponsby which they reserve the nght to use nuclear
weaponsin the eventof an armed conflict impliestheir
nght to be used ......................... (4.68-4.71)

(4) The claim that the use of nuclear weapons is compatiblewith
internationalhumanitarianlaw ................ (4.72-4.81)

(a) The claim thatself-defencejustifies the use of nuclear
weaponsduring an armed conflict ......... (4.73-4.76)

(b) The claim that certainniles of law of med conflicts

iii wouldnotprohibittheuseof nuclearweapons .. (4.77-4.81)

(D) HumanRightsandthe Environment ...... ; .............. (4.83-4.93)

(a) Humannghtsandhumanhealth ................... (4.85.4.87)

(b) Environment ............................... (4.88-4.93)

(E) Jus Cogens ..................................... (4.94-4.96)

PART IV SUBMISSIONS .............................. (5.1.5.2) WHO/Solomon Islands' Funher WrittenObservations: (Introduction)

1.1 On 10June 1994SolomonIslandssubmittedWntten ObservationstotheInternational
Court of Justice pursuant to the requestby the Assemblyof the World Health
Organization(WHO)for an Advisory Opinionon the use ofnuclear weaponsunder
international law, including the WHO Constitution. These Further Wntten

Observationsare nowsubmittedby SolomonIslandsin responseto theCourt'sOrder ..
of 20 June 1994 fixing20 June 1995 as the time-limit within which States and
organisationshavingpresentedwntten statementsmay submitwntten commentson
the other wnnen statements.

1.2 The purposeof theseFurther WrittenObservationsis to respondto points raised by
other member countries of the WHO in their Written Observations to the Court.
Theseaddressthree issues:

- the competenceof the WHOto makethe request(Part 1,paras. 2.1-2.45);

-
whether the Court should exercise its discretionin favour of answeringthe
question(Part II, paras. 3.1-3.27); and

- the substantivelegalissuesraisedby the request, includinghumanrightsand
environment(Part III paras. 4.1-4.96).

1.3 Bywayof introduction,SolomonIslands welcomes thefact that 34Memberwuntries
of the WHO submitted Written Observations. Thisis apparently thelargest number
of Statesever to participatein thewnttenphaseof a requestforan AdvisoryOpinion,
reflectingthe importanceof thequestionposed byWHO andrelated issues.For many
of these States, including Solomon Islands, it is the first time that they -have

participatedin proceedingsbefore theCourt. This is a noteworthyfeatureof these
proceedings,in the Decadeof InternationalLaw.

1.4 Beforerespondingin detailtothewnttenobservationsof thoseStateswhichadvocate
that the Courtshouldeitherdeclineto givean Advisory Opinionin the present case
or give anegativereply to thequestionput by the WHO,SolomonIslandswishes to

putonrecord somegeneralobservations.Theserelatetothescopeof thequestion(A)
and theissues concerningthe applicationof the rule of law whichare raised by the
WHO'Srequest (B).

(A) Scope of the question

1.5 As will be recalled, the questionput tothe Courtis the following:

'inview of the healthandenvironmenteffects, would the use of nuclenrweaponsby a
Stateinwaror otherarinedconflictbea breachof itsobligationsunderinternationallaw
includingtWHO Constitution?" WHOlSolomonIslands'FurtherWrittenOhsz~ations:(Intmduction)

The question thus relates only to the situation wherean actuuse of one or more
nuclearweapons occurs. It doesnotencompass mcrepossession of a nuclearweapon
by a State, or therhrea of use ofsuch weapons.This distinctionis important, as
some of the States submittingwnnen observationssuggest that possession would
equateto or implya nght of useor thatthequestionposedin realityseeks to address
the legalityof possession.

1.6 It is submitted that except where a treatyexpressly recognises that the righof
possessionentailsthe nght of use, sucaninferenceis ill-founded.Thus the vanous
conventionson nuclear test bansimplicitiyadmit the possessionof nuclearweapons
by some Statesand the use butonlyfor restpurposes,providedthat suchuse would

nottake placein geographicareas where nucleartestsare banned:
-
AntarcticTreaty, 1 December1959, (ArticleV);

- Treaty banning nuclear weapontests in the atmosphere,in outer space and
under water, 5 August 1963,(Article 1);

- Treaty on the prohibitionof the emplacementof nuclear weapons andother
weaponsof mass destructionon the seabed and the ocean floor and in the
subsoilthereof, 11February 1971, (Article1);

- Treaty on pnnciples governingthe activitiesof States in the exploratand
useof outerspace, includingthe moonand othercelestial bodies, 27January

1967, (Article IV);
-
Agreementgoverningthe activitiesof Stateson the moon andother celestial
bodies, 5December 1979, (Article3, paras. 3 and 4).

Ontheother hand, othertreatiesprohibitnon-nucleax weaponState Partiesfromeven
possessingnuclear weapons:

- Treatyon the non-proliferationof nuclearweapons, 1July 1968,(ArticleII);

- TreatyofTlatelolco establishina nuclearweapon-freezonein LatinAmenca,
14 February 1967,(Article l), and Protocol IIsigned by the five nuclear
weaponStates;and

-
Treaty of Rarotonga establishing anuclear free zone in the SouthPacific6
August 1985,(Articles5, 6 and 7) and its ProtocolsII anIIIsignedby the
five nuclear weaponStates.

1.7 No treatyStates,however,that thenuclearweaponStateshavea nght to usenuclear
weaponsfor purposesof war or armedconflict. At best, reservationis madefor the WHO/SolornonIslands'FurtherWrittenOhsrwations: (introduction)

peacefuluse ofnuclear energy (not weapons)T . hus, ArticleIV, para 1 of theNPT
provides:

'NothinginthisTreatyshallbeinterpretedasaffectingtheindienableri@ of ailParties
to the Treato develop research,productionuseofnuclear eneraforpeoce~
purposes withoutdiscriminationandinconformitywith 1andcIlof this Treaty.'

1.8 The distinctionbetween use.and.possessionis cmcial to-the present proceedings.
Fust, with regard to thejunsdicrion of the Court, WHO requests the Court to
adjudicateonlyon the legalityof the use andnot on totallyunrelatedquestionssuch

as negotiationsconceming the NPT or a comprehensivetest ban treaty, or the
strategicpoliciesofcertain nuclearweaponStates.To suggest that theWHOisasking
the Courtto act as a legislatorin thesernattersis whollyil1conceived.The Courtis
not beingasked to adviseon the typeof actionsthe nuclearweaponStatesshouldor
shouldnot adopt in these (or other) negotiations,but only to record that thuse of

nuclear weapons in war or in other armedconflict would be a breach of their
obligationsunderinternationallawincludingtheWHOConstitution.Asthe Courtwill
appreciate, such a differenceis cmcial when decidingwhether the request for an
Advisory Opinionon the legaiity of such use fails within the competenceof the
WHO.

1.9 Second,the distinctionbetween use and possession is aiso of the utmostimportance
in order to decidewherherif ispropcrfor the ICI to cxerciseifs discrcrionatynght
togivean Advisory Opinion in the presentcase. Contraryto whathasben suggested
in somewntten observations, thepresent requestdid not disruptthe negotiationsfor

an extension of the NPT (see infra. 3.14-3.15) and'will not adversely affect
negotiationsforthe CornprehensiveTest BanTreaty. Nor would an AdvisoryOpinion
reflect adverselyon the current detenence policies of some States. Indeed, the
Court'sAdvisory Opinion is confinedto the use, and need (and should)not address
issues of possession. Such a differenceis again decisivewhen findingwhetherthe

request for an Advisory Opinion is suitablefor adjudication.

1.10 These observationsare not intendedto suggest thatuse andpossessionare totally
unrelated.As statedin the Australianwntten observations:

"Ifthe Courtwerr to advise that nuclearweapons couldbe used in response to a
conventionalack (...the futureof the Conferenceon Disarmamentnegotiationson
strengtheningNegativeSecurity Assur(..couldbejeopardised.'

With this SolomonIslands is in full agreement. But it should benoted that what
threatens todismpt thesenegotiationsis not the questionposedto the Court, but the
extravagantand dangerousassertion of sorne nuclear weapon States, whilst using

every pressureon the non-nuclearweaponStates to accept disarmamentand non-
proliferationobligations,that theyreserve forthemselvesalonenot onlythe right to
possessnuclear weapons,but also the nghrto use theseweaponsin a conflictunder
certaincircumstances.In otherwords, what is likely toaffectthe negotiationsis the WHOlSolomon Islands' Further Written Observations: (Introduction)

fact that nuclear weapon States proclaim that they have pnvileged nghts. Such a
brutal affirmation of a right of discrimination is hardly calculated to enhance the
negotiation process. This situation will be unaffected by the Court's Advisory

Opinion.

1.11 In its wntten observations the Australian Government contemplates an alternative
possibility in the following terms:

'Converxly, an opinion in whicb the Court concluded tbat al1uses of nuclear weapons
were illegol could create problems in the disarmament proceu, whicb will necessarily
be negotiated carehlly by the nuclear weapon states in tbe context of tbeir own security
perception...'

1.12 This conclusion is not shared by Solomon Islands. It feels, on the contrary, that by
giving tonon-nuclearweaponStatesand nuclear weaponStatesalike legalassuran&
that any use of nuclear weaponsin a state of war or armed conflict wouldbe illegal,

the Court would foster the negotiation process.It wouldensure that thepresent status
of inequalityin the matter of possessionwould be charactensed as a mere matter of
fact which did notentail an inequality in terms of international legal nghts. This
would be fully consistent with the commitments of the signatones of the various

disarmament treatiesnoted above: test ban treaties, nuclear-free zones treaties, and
non-proliferation treaties.Indeed, it is recognisedinthe various preamblesor articles
of these treaties that nuclear war would be catastrophic and that the regime

established by these treaties must be considered as transitory towards a complete
disarmament to be negotiated bonajde in order to achieve equality among States.

1.13 Thus, the preambleto the 1963Treaty BanningNuclear WeaponTests acknowledges

the following:

'desiring to put an end to the conwinination of inan's environinent by radioactive
substances'.

The languageof the preamble to the 1968Non-ProliferationTreaty is even stronger:

'Considering the devastation that would be visitrd upon al1 mankind by a nuclear war
and the consequent need to make every effort to avert the danger of such aIOar and
Iake measures to safeguard the srcurity of p(...)s

Declaring their intention to achieve al the earliest possible date the cessationannsthe nuclear
race andlounderae effective ineiisurrs in the direction of nuclear dis(...)ent

Desiring to further the easing of international tension and the strengthening of tmn between States
inorder to facilitate thc cessation of the manufacture of nuclear wrapons, the liquidation of dl
their existing stockpiles. and the rliinination from national arsenals of nuclear weapons and the
means of their delivery pursuant to a lreaty on general and complete disarmament under strictand
etfective international co(...)

According to Article VI of the NPT WHO/Solomon Islands'FurtherWrittenObsrrvations:(Introduction)

'Eacbof the Partiesto the Treatyunde10apursuenegotiationsgoodfaith on
effectiveesures relatingto cessationof the nucleararmsraceat an earlydateandto
nucleardimament, andon a treatyon generalandcompletedisarmamentunderstrict
andeffective internationalcontrol'.

That aim had already been proclaimed asthe principalaim of the nuclearweapon
Statesin thePreambleof the 1963TreatyBanningNuclearWeaponTests. Additional

Protocols Iand il to the 1967Treaty ofTiatelolcoestablishing a nuclearweapon-free
zone in Latin America, signed by the five nuclear weapon States, contain the
followingparagraphin their preambular part:

"Desiringtocontribute,saaslies intheirpower,towardsendingthearmamenurace.
especiallyin the fieldof nuclearweapons.andtowards strengthenat peace.d
basedon mumalrespectandsovcrcign equaliryof Srutes"(ouremphasis)

1.14 And, perhapsmostsignificantly,withtheadoptionof theMay 1995extensionof the
NPT, the nuclear weaponsStates committed themselvesto ridding the world of
nuclearweapons (see infrapara. 3.15).

In the meantirne, would the deterrencepolicy ofsome States be affected by an
1.15
AdvisoryOpinion?SolomonIslands considersthata rulingby the Courtthatthe use
of nuclearweaponswouldbe illegalwouldnot affect pcr sc sucha policy, provïded
deterrenceis constmedas not being a threatof use. Deterrenceis a policyby which
possession ofa sufficientbut limitednuclearweaponarsenalmust convince apossible

aggressor that the nsk he would take would be greater than the gain he could
anticipatefrom suchaggression(seedefinitiongiven in the Wntten Observations of
France, page 1). So defined, deterrencepolicyis not a threatto use force. Itwould
have this effect only whereit would be addressed specificallyto another State in
supportof a particulardemand,as an ultimatum.By itself, deterrencepolicy is not

an ultimatum, itis a mere general warning. Itis onlywhere the nuclearpower State
wouldbe thevictimof anaggressionthat itreservesthenght to retaiiatewithnuclear
weapons.

1.16 As explainedin theseFurther Observations,SolomonIslandstake theview that the

exercise of such a retaliation would be an illegal act (infra paras. 3.74 er seq).
However,SolomonIslands acceptsthat the merewarningthat it could happenis not
a threat, and is not illegal. Deterrencemust be taken as a matter of fact, of a
temporaryand undoubtedlydangerouscharacter,but notillegal as long as it has not

been exercised.or usedas a threat.

1.17 In consequence,SolomonIslandsconsidersthata findingby the Courton thelegality
of the use of nuclear weaponswould not affect this situationof fact. It does not
involvethe Courtin a legislativeor specifically politicprocess.It onlyrequeststhe
Court to enlightenWHO on thelegalityof use. Asexplainedin the earlier Written

Observations (paras.2.54-2.57 and below), a reply of the Court to that limited WHO/SolomonIslands'FurtheWrittenObsewations:(introduction)

questionwouldhelpWHO in theexerciseof its functionsandthedirectionandnature

of its future'actionsfor the protectionof heaithand environmentin this regard.

(B) Applicationof the mle of law

1.18 Turningto the substanceof the question,SolomonIslandssubmitsthatthe Courthas
never before ben so acutely in a position to make a major contribution to the
affirmationof the nile of law in internationalrelations, and to upholdthe necessity

of the pnnciple of non-contradictionin the global systemof internationallaw. An
AdvisoryOpinionwouldalso affirm therelevanceof internationallawtotheactivities
of international organisations.

1.19 The essenceof the nuclearweaponStates'arguments is the following:

There is no international treaty prohibiting by name the use of nuclear
1)
weapons.This statementis me.

2) Thereis nogeneralcustomspecificallyprohibitingby nametheuse ofnuclear
weapons, at least a custom opposable to the nuclearweaponStates. Thisis
also me subject to what is said hereunder (para. 1.20). There is
unquestionablya custom binding thegreat majonty of Statesin this regard,
but it is not opposableto the NATOand other Stateswhich haveconstantiy

opposedit.

3) TheGeneralAssernblyresolutionswhichcondernnas illegaltheuseof nuclear
weaponsweresimilarlyopposedby thesarneStates.The obligationsembodied
intheseresolutionsreflecttheopiniojurisfortheStateswhichvotedin favour
ofthesetextsandwhosebehaviourwasconsistentwith thesetexts, butcannot
bind only by thernselves theStates which votedagainst them and constantly

opposedthese texts.

This doesnot rnean,however,that nointernationallawappliesto thematterand that
the general customaryrules embodiedin the General Assemblyresolutionsdo not
bind al1States.

1.20 Rather, itissubmitted thatgeneralpnnciplesof humanitarianlawwhichhaveevolved

sincethe nineteenthcenturyand whichare universallyrecognisedtoday govern the
matter(seein particulartheEdinburgh resolutionof theInstituteof InternationalLaw
of 13September1969,whichmakesa specificreferenceto nuclearweapons). Thus,
as indicatedin SolomonIslandsWrittenObservationsand thoseof mostother States
submittingWrittenObservationson the substance, theuseof nuclearweaponswould
violate:

-
the principleof necessity(their effect is generallygreater than that required
to achieve a legitirnatemilitaryobjective); WHOlSolomonIslands'FurtherWrittenObservations: (introduction)

- the pnnciple of discrimination (nuclear weapons have such indiscnminate
effects that theynecessarilyaffect civilians);

-
the pnnciple of non-toxicity (nuclearweaponsare poisonous);

- the pnnciple of humanity(nuclear weaponscause unnecessaryor aggravated
suffenng);

- the pnnciple of proportionality (nuclear weaponsrender death inevitable);

- the pnnciple of protection of the environment (nuclear weapons cause

significantand widespreaddamage tothe environment);

- the pnnciples of the Red Cross conventions concerning protectionof medM
facilities;

- the pnnciple of neutrality; and

-
the human nghts to life and health which cannot be derogated.

1.21 It is accepted by the nuclear weapon States that these pnnciples apply in al1
circumstances. Someof these pnnciples have been reaffirmed in the 1977Protocols
to the Geneva Conventions. The diplomatic consensus to the effect that nuclear
weapons would not be addressed by the Conference does not rneanthat accepted
humanitarian pnnciples do not govem the use of nuclear weapons. It would be
illogical, jundically speaking, to maintain that al1 sorts of minor acts violating

humanitarian law were prohibited bur that a major cnme against humanity would
escape the applicabilityof that law. To accept such a contradictionwouldbe to deny
the rule of law. It wouldmeanthe end of a worldorder premised uponlawand signal
the acceptance as a legal norm the whimsical dictatorship of a small number of
nuclear-weapon States entitled to violate those rules which are compulsory for al1
others.

1.22 The allegationby one nuclear weaponState that the matter is not regulatedat al1by

internationallaw, that there existsa sort of "lacuna"in the internationallegalsystem,
doesnot withstandscrutinyand shouldbecomprehensivelyrejectedby the Court. Not
only are there many treaties and other commitmentsin this field, but humanitarian
law and that pertaining to human nghts and the environment is applicable without
exception in the matter. In the late twentiethcentury, in the Decade of International
Law, the Court should use the opportunitypresentedby this request for an Advisory
Opinion to reaffirm the relevance of international law and the rule of law in
international relations.

1.23 Contrary to the view of that single State,if there is a place wheredoctrinerecognises
that there are rules ofjus cogew which are not controversial, it is in respect of the WHOlSolomonIslands' FurthWrittenObservations:(introduction)

prohibitionor thethreator useof forceandin theprohibitionagainstviolationof the

basicprinciples ofhumanitarianlaw of the commissionof a crime against humanity
(seeinfa paras. 4.94-4.96).

1.24 It has often been suggested thatthe use of "micro" nuclearweapons whoseeffect
would besimilartoconventional weaponsmight not be prohibitedby international
law. Thoughit is doubtfulin the view of SolomonIslands that such weaponscould
ever be developed, it concedesthat if the useof such weaponshad no radioactive
effect likely toendanger human health or third States, if this use would not be

detnmental to the environment and, in general, would conform to the niles of
humanitarianlaw mentionedhereaboveand hereunder (infraparas. 3.1erseq), the
use of these weapons might belegal. Thatsaid, SolomonIslandsis of the view that
this is not theasetoday and it finds it difficultto conceiveof any situationwhere
the use of nuclear weapons could belawful under international law, including'by
referenceto thehealthprevention obligations setforth in the WHO Constitution.

1.25 It hasalsobeen suggested thatthe nght of self-defenceenshnned in theUN Charter
entailsthe nght to usenuclearweaponsundercertain circumstances.Thispositionis
notacceptable.Thenght of self-defenceprovidedin Article 51of theCharter applies
"ifan anned attackoccurs". As such, it is an exception to thepnnciples prohibiting
the useof militaryforcein international relations;it doesnotreflectanypositionwith
regard to the legalityof theans(whateverthenature)usedin resortingto thenght

of self-defence.In other words,self-defencereferstju; ad bellum and not tjus in
bello.These are two different fieldsaltogether(see infra paras. 3.et seq).It has
never been alleged by anyone, forinstance, that self-defencegives the nght to kill
prisonersof war.

1.26 The present requestdealswith the legalityof the use of nuclear weaponsby a State
in war or otherrmedconflict.It doesnotaddressthe situationarisingwhere nuclear
power wouldbe usedfor peacefuluses. In suchcircumstancesit is assumed thatuse

wouldbe madein conditionsnot detnmentalto humanhealth andthe environment.

1.27 On 13th lune 1995France announceda unilateraldecisionto resume nucleartesting
in the Pacificegion, on Mururoa Atoll,far from its own metropolitantemtory but

close to that of Solomon Islands and more than a dozen other Pacific nations.
Mumroa Atoll(FrenchPolynesia)is within thenuclear-freezonearea establishedby
the SouthPacific Nuclear Free ZoneTreaty (Rarotonga,6 August 1985). Solomon
Islands has already indicated to France that it considers such tests would be
unacceptableand would violate her substantiveand procedural obligationsunder
internationallaw, includingthe obligationtocooperateafidconsultin decisionswhich
are likely toaffectsharednaturalresourceswithinthePacificregion. Comingshortly

after the Partiesto the NPT agreed by consensuson a unanimousextensionof the
1968 Treaty on the Non-Proliferationof Nuclear Weapons, this unwelcomeand WHOlSolomonIslands'FurthrrWriiienObservations:~ntroduciion)

surprisingly ill-timed developmentprovides the clearest possible evidence of the
reasons for SolomonIslands' stronginterestin the AdvisoryOpinion soughtby the

WHO. It aiso wnfirms the importanceof the question, the reasonsfor Solomon
Islands'concem, and the needfor the Courttoaffirmthe ruleof law in international
relations. Althoughthis Advisory Opinion does not relate to the testingof nuclear
weapons, it does have important implicationsfor the conduct by nuclear-weapon
Statesof nuclearactivitiesvery far fromtheirown hometemtones and populations.
The French action showsthe casual and arrogant attitude of some nuclear-weapon

Stateswith respect toother States. If onStateisable to act thus in time of peace,
SolomonIslandsfeelsail themoreconcemedaboutwhatcouldhappenin timeof war
or armed conflict. SolomonIslandshopesthat the testsannound last weekwilinot
take place either before or afterthe Court gives thisAdvisoryOpinion. WHOlSolomon Islands' FurtherWrittenObservatioiiPar<1 (Cornpetence)

PART 1

COMPETENCE

The first issuraised by various Membercountries concerns the WHO's competence
2.1
to ask the Advisory Opinion requested of the Court. Solomon Islands notes that 181
Member countries (andtwenty sevenof the thirty five Member whichhave submitted
Written Obsewations) have no[ objected tothe WHO's competence toconsider the
legality of the use of nuclear weapons and request this Advisory Opinion.These

include not only al1developing countries submitting Written Observations, but also
several important developed countries (Australia, Ireland, Japan, New Zealand,
Norway, Sweden)and several former republics of the USSR (Lithuania, Kazakstan,
Moldova and Ukraine). Only eight of the WHO's 189 Member countries (as at'19

May 1994)(Finland, France, Germany, Italy, Netherlands, Russia, United Kingdom
and United States) have objected to the Court that the WHO dws not have the
competence to make the request. At least one nuclear-weaponState has not objected
to the WHO's competence.

2.2 Whilst this is not ofcourse determinativeof the matter, the burden is very much on
these countnes to persuade the Court why they are correct in their analysis and the
other 181 Member countnes of WHO are wrong: the presumption must be that

Resolution46.40 wasvalidlyadopted. Thatisa presumptionrecognisedby theCourt,
which has previously stated that

'[a] resolutionof a proprrlyconstiiutedotheUnitedNationswhich is passedin
accordanceith thatorgui's rulesof procrdurrs,andisdrcliürPresidrnttohave
beensopassed, mustbe presuinedto havebcenvdidly adopted."'

Absent a substantial and representative minority opposing an international
organisation's expression of competence over a matter, the Court should exercise
pnidence in interfenng with that expression. To do otherwise might nsk introducing

instability into theaffairs of international organisations.

2.3 The argumentson competenceraised by these eight countnes generally fa11into two
categones:

(A) whilst WHO has competence over the effectof nuclear weapons on human
health and the environment, it does not have competenceover the legalify of
their use, cannot itself use force or authonse others to do so, and has no

'
Namibia Case, IU Reports 1971, p.22.Szc also Certain Expenses of the United Nations: '[a]s
anticipatedin 194...=ch organ mus1in the firstplace a1least. determineits own juri(ICItion'
Rcpons 1962.p. 168). WHOlSolornonIslands'FurtherWritten~bservations:Part1(Cornpetence)

responsibilityor authonty in regard tothe use ofnuclear weapons, andhas no
wmpetence in respect of mles of "jus ad bellum" and "jus in bello"; and

(B) WHO has no special interest in the matter,.and to recognise the WHO'S
competence would expand the scope of its activities, and to answer the
question would require the Court to pronounceon a question conceming the
mutualrelationshipsof WHO and UN.

Additionally, a numberof other issues have been raised by certain States in relation

to discussions on wmpetence. These are addressed at (C) below (see paras. 2.37-
2.44).

.4 Each of these matters raise valid points (both in relation to this request and more
generaiiy for the activities of intemational organisations)which the Court will'no
doubt wnsider carefully. However, for the rasons set out below SolomonIslands
considers that none raises a real obstacle to the Court's concluding that WHO is

comptent, andthat accordinglythe Court shouldnot rulethe request inadmissible on
the grounds of lack of wmpetence.

2.5 Since some other States have chosen to do so, Solomon Islands considers it
appropriate to comment bnefly on the backgroundto this issue and how it came to
the International Court of Justice. The United Kingdom (Chapter 1, paras. 7-9) and
France (p. 16, para. 13) have highlighted the role played by non-govemmentai

organisations in the adoption of WHA Resolution 46.40 in terms which might be
taken to imply that those States supportingResolution46.40 did so under some form
of "persuasion" from these organisations (see also infra para. 3.13 on the United
Kingdom's view that the activities of such organisations supportsthe view that the
proceedings have an avowedly political character). SolomonIslands considers such
innuendo to be inappropriate. Italso betrays a selectivesense of history. As a smaii

Pacific Island nation Solomon Islands has first hand experience of a major armed
wnflict between thirdparties being foughton its soil. It also has direct experienceof
increases in radiation being caused in the Pacific region as a result of nuclear test
explosions caused by the two above-mentionedand other States in the 1950'sand
1960'sbecause these States were unwillingto subjectthe healthand environmentof
their own populations tothe risks attachedto nuclear tests. SolomonIslands'interest
in clarifying and confirming the rules of international law in relation to use of

nuclear weapons therefore has rather more to do with the past activities of these
Statesthanthe morerecenteffortsof any non-governmentaiorganisations.The efforts
of responsiblenon-governmentalorganisations, includingassociationsof professional
physicians, in raising public awareness and contributing to the processes of
internationallaw are to be welcomed. Thisis especiallythe case where the matterat
issue is of such direct relevance to the public. WHOISolomonIslands'FurthrrWrittrnObservations:Part1(Cornpetence)

(A) The WHO has competence over the effects of nuclear weapons on human health
and the environment and over the legality of their use

2.6 A number of States deny that the WHOhas wmpetence under its Constitutionover
thelegali oftvhe use of nuclear weapons (see e.g. United Kingdom, ChapteIii,

para. 8; United States, p. 9; France, pp. 8-10, para. 7; Italy, p. 1). Variationsof this
theme claim that the WHO is not competent because it cannot itself use force or
authonse others to dso and hasno responsibilityor aiithority in regard to the use
of nuclear weapons(Netherlands, paras. 8-11), or because it has no wmpeteine
respect of rules "jusad bellumm or "jurinbello" (France, p. 9, para. 7These
argumentsare based both on the specificprovisionsof the WHO Constitutionand on
general approaches to treaty interpretation.

TheWHO hmcornpetencc overthehcalthandenvironmentae lffectsofthelcre
(a)
of nuclearweapons

2.7 These claimsare surprising in the sense that there is no dispute over the fact that the
WHOis competentto addressmattersconcemingthehealth andenvironmentaleffects
of the use ofnuclear weapons. Giventhe WHO's practice over thepast twodecades
any other view would be unsustainable. Those countries which deny the WHO's
wmpetence to request the Advisory Opinion have recognisedthis aspect of the
WHO's competence(seee.g. UnitedKingdom("That the effe cfnuclear weapons
on human health has been the concem of WHO cannot be doubted", Chapter III,

para. 18)and United States("the WHO mightconcem itself with masures to protect
human health from the effectsof some hypotheticalfuture use ofnuclear weapons",
P. 12)).

2.8 SolomonIslandshaspreviouslyshown howthe WHOin making the requestis acting
in accordance with its Constitution (Observations, paras. 2.8-2.15) and that it has
competenceover matters relatingto the effectson human health andthe environment
of ionising radiation resulting from the useof nuclear weaponsd., paras. 2.16-
2.34). A majonty of other States, which support the WHO's request, clearly share

this view, which does not amountto construing theWHO Constitutionas prohibiting
aggression by meansof nuclear weapons,as one State claims (UnitedKingdom,pp.
38-9, para. 14). In fact, as indicated below, the WHO has previously addressed
aggressionand the use of force withoutthat country denyingits competencetsodo
(seeinfa para. 2.16 citing WHA resolution42.24).

2.9 On the other hand, a minority of other States have taken a different approach tothe
WHO Constitution,interpreting it incha way as to concludethat the organisation
has no competencetomakethe requestto the Court (seee.g. France, pp. 9-13, paras.

7-11; United Kingdom, pp. 35-39, paras. 10-18;United States, pp. 5-6).

2.10 To the extent that this difference of view reflects an ambiguity it is appropnate to
wnsider the actual practice of the WHO in this area. As indicated in the 1922 WHOlSolomon Islands' FurtherWrittenObservatioPart1 (Cornpetence)

AdvisoryOpinionof the PermanentCourt ofInternationalJusticein theCornpetence
of the International Labour Organisationwith respect to Agncultural Labour
(iterpreting the Treaty establish'ithat organisation):

'If therewere any ambiguity,the Courtmight. for thepurposeof arrivingat the true
rneaning,considerthe action whichhad beentakenunderthe ~reat~."

This approachhas now beencodifiedin the 1969ViennaConventionon the Law of
Treaties, which provides that there should be taken into accounttogether with the

context

'any subsequentpracticebetweenthepartiesregwdingthe interprelationof thetreatyor
the applicationofs provisions.' (Art. 31(3)@)).

WHO practice in relarion IO rhr Iegaliiy of the uss of weapons confimu its
(b)
cornpetence

2.11 Thesubsequentpracticeof theWHOconfirmsitscompetenceover thelegalityof the
use of weapons which mightaffect human health and the environment.This is
reflectedin particularin resolutionsadoptedby WHOin relation to the legalityof the

use of other types of weapons, and in the WHO'S participation in relevant
international conferences,mostnotablythe DiplomaticConferenceon Reaffirmation
and Developmentof InternationalHumanitarianLawapplicablein ArmedConflicts,
whichadopted the1977 GenevaProtocols.

2.12 Nauru bas referred tovariousresolutionof the World Health Assembly as farback
as the late 1960'sand early 1970's (Nauru,II, pp. 6-11, para. 2-3). In Resolution
20.54 the World Heaith Assembly"considered"resolution 2162 (XXI) of the UN
General Assembly which noted, inter alia, that strict observanceof the rules of
internationallaw on the conduct of warfare is in the interest of maintainingthe

acceptednormsof civilization,referred to the WHO's"interestin the consolidation
of peaceas an indienableprerequisiteforpreservationandimprovementof thehealth
of al1 nations",' and called upon al1 WHO Member States to "implement" UN
General Assemblyresolution 2162(XXI). Resolution20.54 alone is sufficientto
demonstrate WHO'scompetence toconsiderand act upon international legal issues

relating to the conductof warfare.

2.13 In fact, the WHO subsequentlywent even further. Two years later, in 1969, in
Resolution 22.58 the Assembly called for the developmentof internationallaw

governing the use of certain types of weapons when it expressed inter alin its
convictionof "the necessityof achieving a rapid international agreementfor the

Ser.B. Nos.2 and 3.pp.40,41.

' CitingWHA Resolutions 11.and 15.51. WHOlSolornon Islands' Funher Wntten Observations: Part I (Cornprtrnce)

wmplete prohibition and disposal of ail types of chemid and bacteriologid
(biologid) weapons".

2.14 And the followingyear, in 1970, in Resolution23.53 ("The Rapid Prohibition of
Chernical and Bacteriologid (Biological) Weapons") it imcr alia appealed to
govemmentsto ratify the GenevaProtocolof 17June 1925,emphasisedthe need to

prohibitthe development,productionand stockpilingof chemicaland bacteriological
weapons "asa necessarymeasure in the fight for human health", and called upon
medicalassociationsand medicalworkers to"give every possible assistance to the
intemationalmovementdirected towards the wrnplete prohibitionof chemicaland
bacteriologid (biologid) meansof wagingwar".

2.15 These thre esolutionscould only have been adopted ifthe WHOhad wmpetence
over the legaiity of the use of chemical andbacteriologid weapons. Since WHO
clearlyhascompetenceoverthe legalityof the useof thoseweapons,it is difficultto
see why it should not have competenceover the legaiity of the use of nuclear
weapons.Thisisail the more so giventhe qualitativelyandqiantitively greaterthreat

to humanhealthposed by nuclear weapons.

2.16 In addition to these three resolutions,in 1989 the Wcrld Health Assernblyagain
addressedlegal aspectsof the use offorce in internationalrelations, appealingin its
resolutionWHA 42.24

'in the spirit of paragraph 4 o2of the United Nations Cha10ail Member
States of the United Nations to abslain from aggression and the use of threau in their
international relations, including threats afainst incdical centres and inadicai production

plants;'4

This resolution clearlyconfirmsWHO'scompetenceover the legalityof theuse of
forceby referenceto itseffectson humanhealth, indicatingthe importantrole which
the niles of internationallawcanplayin thecontextof "theprinciplecontainedin the
WHO Constitution statingthat the health of al1 peoples is findamental to the

attainmentof peace and security" .'

2.17 WHO's practice is also reflected in its long-standingand regular participationin
conferencesandotherinternationaleffortsrelatingto thedevelopmentof international
humanitarianlawin timesof war and armedconflict.For example, in the 1970'sthe
organisation participated in the Diplomatic Conference on Reaffirrnation and

Developmentof International Humanitarian Law applicable in Armed Conflicts,

' WHA42.24 (Effecison Healthof Withholding Mdical SupplieMay 1989. para.2.

' Ibid .rearnhlr. WHOlSolomon Islands' Further Written Observations: Pan 1(Competrncr)

which adopted the 1977Geneva Prot~cols.~And in 1987 it participated in the
Preparatory Cornmitteefor the International Conference on the Relationshipbetween
Disarmamentand Development.'

The praaice of orheriruemrionalorganisationr: amlogousprinciples
(c)

2.18 Butevenabsentsuchpracticeby the WHO (whichitselfis sufficientto establish the ..
organisation'scompetenceover the legality of the use of nuclear weapons), its
wmpetencewouldbeestablishedbyapplicationof thepnnciplesand practiceofother
international organisationsover the legalityof the use ofcertain rnethodsand means

of warfare. Specificallyin relation to theuse ofnuclear weapons, theHumanRights
Cornmitteeina 1984Generai Commen(tRighttoLifeandNuclearWeapons)adopted
by conremus cornmented that

'thedesibning.testing. manufacnire.possessionand deploymentof nuclear weaponsare
among the greatestthreats to the right to life whichconfrontsmankindtoday'

and stated that inreralia the

"use of nuclear weapons should be prohibited and recogasa crime against
h~manit~'.~

Thisexampleclearly reflectsthe fact that thelegalityof the useof nuclearweapons

is not within the exclusivecompetenceof the General Assemblyor the Security
Council. Other organisationa sndbodiesalsohavecornpetenceoverthe subjectinsofar
as it relates toheir ownactivities.

2.19 In a similar vein, international organisationsother than the UnitedNationsGeneral

Assernblyor Secunty Councilhave on occasioncondernnedthe use of force'by a
State in terrns which rnake it quite clear that those two bodies do not have a
monopolyon the subject, as suggestedby certain States. Forexample, in 1981 the
Generai Conferenceof theInternationalAtornicEnergyAgency(another organisation
whoseconstituent instrumentmakes noreferenceto rnethodsor meansof warfare)

'
Report of the UN Secrerary General. UN Doc. Al321144, 15 Auyst 1977, p.8 (indicating che
participation of WHO as an observer at that Conference).

' AICONF. 130/PCIINP/22. p. 15.Se also AICONF.130IPCIING12(Background InformationProvided
by the WHO. attaching the 1987Reporton Effectsof Nuclear War on Health and Health Services. 2nd
ed.).

VenC 14/23. 2 November 1984, paras. 4 and 6, reproduceù in M. Nowak, UN Covenant on Civiland
Political Richts: CCPR Cornmentary(199p..861. WHO/SolomonIslands'FurtherWntten Obsewations:Part1(Cornpetence)

condemned the attack by Israel on an Iraqi nuclear research centre as "an act of

aggression".9

2.20 Practice establishes that international organisations andbodies have competenceover
the legality of the use of certain weaponswhere there is a reasonable nexus with the
general subject matter of the organisation's activities. Just as the Human Rights
Committee has wmpetence over the human nghts aspects of the legality of the use

of nuclear weapons, and the IAEA has wmpetence over legal aspects of the use of
force against nuclear installations, so it follows that WHOhas competenceover the
legality of thuse of force and methodsand means of warfare insofaras it relateto
the protection of human health andthe WHO Constitution.That competence has in
any event been expressed in the Assemblyresolutions identified above.

(d) me reIevanceof inremarionallawand thecontributionits developrnent can make to
thefilJiIrnentof an intermional organisation'spurposes

2.21 Finaily, even if there were no relevantpractice in the WHO or in other international
organisations, which is not the case, the argument put forward by the United
Kingdom, the United Statesand others is deeply flawed andminimises theimportant
role that internationallaw can play as an instrument of public policy. Coming from

States which pnde themselves on their commitment to the development of
international law and the rule of law it is surpnsing. In effect they are saying that
international law is irrelevant to the activities of the WHO, that it matters not in
practice whether theuse ofnuclear weaponsis lawfulor unlawful, and that the WHO
can(and should) cany on its activitiesof healthpreventionwhich relate to the effects
of nuclear weapons without conceming itself with the legal niceties associatedwith

such use.

2.22 For the United Kingdom it is "entirely false toargue that because an activity poses
a threat to health, therefore the legality of that activity anses within the competence
of WHO" (Chapter III, para. 8).No supporting explanationis given for this view,
save that it is suggested that to conclude othenvise v~ouldmake the WHO "the

guardian of legality over a wide range of State activities, entitled to question the
legaiityof those activities before the InternationalCourt simply on the basis thatthe
activity involved ahealth risk" (Ibid., para. 9).

2.23 SolomonIslandsdoes not share this limited, perhaps overly cynical, view of the role
of internationallaw in contributingto the attainmentof aninternationalorganisation's
objectives. Assuming thatan organisation has competence over a particular matter

consideredby the international communityto be of importance(Le. the healtheffects
of the use of nuclear weapons), and assuming that it has an obligation under its
Constitution to promote the protection of human health, then it does not require a

IAEA GC(XXV)IRES138I(MilitaryAlLackon lraqiNuclearResearchCentreandItsImplicatifor
the Agency), 26 September1981.

16 WHO1SolomonIslands'FuriherWnttrnOhwwalions: Paril (Cornpetence)

grat leap of imaginationto conclude that the developmentof international law
(includiigthrough theprocessofclarification envisagedbytheWHO'Srequest)might
provide one approach to achievingthat objective. It is not, as France somewhat
cynically suggests, simply aboutasking whether "Un hopital a-t-ilbesoin d'erre
eclairksur la liceitéde l'emploidesarmes feupour prevoir les moyens permettant
de soignerles victimesde leur usage?" (p. 9,para.7). It is the use of international

law as an instrumentof publicpolicyin wntributing to importantsocietalobjectives
which inspired the WHOin its activitiesrelated to chemical and bacteriological
weapons,the Human RightsCornmittee in its GeneralComment,and the IAEAon
itsresolutioncondemningthe useof forceagainsta researchreactor. In contributing
to the developmentof the rule of law in internationalrelations sucan approach
should bewelcomed,not rejected.

2.24 Nor does Solomon Islands consider that its view would make the WHO the
"guardian"of the legalityof a host ofa widerange of other activities. Certainlas
an organisationit wouldbe entitledtoexpressan interestin someor evenailof îhose
activities,and it may alsobe entitled toquestionthe legalityof someor al1of those
activities, but its guardianship role would prima facie be limited only to its
Constitutionand those aspectsof the activitieswhichrelate to human health. Since

thoseactivitiesnecessarilyimpingeuponother societalobjectives, itwouldshare its
"guardianship" rolewith other international organisations, themembers of which
would be free to decide on a case-by-casebasis whetherto act in respect of a
particularissue, and if so how.

2.25 Similarconsiderations applytotheviewsexpressedbytheUnitedStates,in particular
the conclusion that"[wlhilethe WHO mightconcernitself with masures to protect

humanhealth from theeffectsof some hypotheticalfuture use of nuclear weapons,
this would not turnin any way onthe Court'sview of the legalityof such use" (p.
12). Althoughthis argumentmighthavemore todo withproprietythan the question
of WHOcompetence(onwhich see infra paras. 3.19-3.26) itis in effectsayingthat
whateverthe Courtdecideson the substanceis irrelevant to the conducb t y WHOof
its activities, contributes nothing to its activities, and falls outside its

competence. This is a limited view of the relevanceof international lawwhich
SolomonIslands does not share. It has previously explainedwhy the question is
relevantandwouldprovidepracticalassistanceto WHOin theconductof itsactivities
(seeSolomonIslands, paras. 2.54-2.57).SolomonIslands assumesthat Statesfulfil
their international obligatio,nd thata findingby the Courtthat theuseof nuclear
weaponswas unlawfulwouldlessenthe likelihoodof their use, andthereforeallow

WHO to channelits limitedfunds to otherareas. It wouldalso provideWHO with
muchneededclarificationon the role it could playon futuredisarmament issues.If,
on the other hand, theCourt were to find that the use of nuclear weaponswas in
certain circumstanceslawful, SolomonIslandswouldconsiderthat thelikelihoodof
their use mightincrease,and wouldact to ensurethatWHOcontinuai to wntribute
to the preparednessof small,developingcountriessuch as SolomonIslandswhichdo
not havethe medicalor relatedresourcesto deal with the healthand environmental WHOlSolomonIslands'FurtherWrittenObservations:Part1(Cornpetence)

consequencesof signifiant increasesin radiation.SincetheUnitedStatesacceptsthat

it isroper'for the WHO to concernitself with measuresto protect human health
fromeffectsof a hypotheticalfutureuse, presumablyit wouldacceptthatthe legality
or othenvise might haveat least consequencefor the measureswhich WHO
oughtto take.

(e) Conclusion

2.26 For aii of thesereasonsSolomonIslandsconsidersthat the questionof the legaiityof

the useof nuclearweaponsfailswithinWHO'scompetence.To findotherwisewould
limit the ability of WHO to contribute to the developmentof internationallaw in
fulfillingits constitutional objectivet ouldalso undermine theactivities of other
organisationsin this field, suchas the HumanRightsCommitteeand the IAEA.

WHO has a special interest in the legality of the use of nuclear weapons by
(B)
reference to their effecîs on health and the environment, to so recognise would
not expand the scope of iîs activities, and to answer the question would not
require the Court to pronounce on a questionconcerningthe mutual relationships
of WHO and UN.

2.27 Thesecondprincipalgrounduponwhichcertain Statesattack the WHO'scompetence
is closelyrelatedto the first: thisclaimsthat the WHO hasno specialinterestin the

question posed (only a general interest in promoting human health and the
environment),that most other specialisedagencies could with equal nght claim a
specialinterest,andthatanswenngthe questionwould requirethe Courtto pronounce
on a questionconcerning themutualrelationshipsof the WHOand the UN(a matter
upon which the WHOannot ask a question)(see e.g. Netherlands, paras.11, 13).
Similady, Germany considersthatif the WHOConstitutionwere to be interpretedto
give itcompetencetoaskthequestion"itwouldcase tobe a specialised organisation

for health issues and become competentin al1aras" and the Secunty Council's
pnmary role, as well as that of the GeneralAssembly, "wouldbe impinged upon"
(Germany,p. 1). Others take a similarview (seee.g. Finland, p. 3).

2.28 Solomon Islands has previously explained why the WHO's competence over this
matter does not derogate from thepnnciple of speciality(Ibid., paras.2.35-2.41).

Threepointsshouldbe emphasised.First, the actualpracticeof the WHOshows that
it doeshave a specialinterestin thismatter.Second,asa general matterinternational
law andthe law ofinternational institutionsdws not know of a strict and absolute
delimitationbetweenthe competenciesof vanous internationalorganisations.Third,
the nghts of the Secunty Council and General Assembly (as well as other
international organisationhavenot been impingedupon by the WHO'srequest, as
is now clear from the fact that the GeneralAssemblyhas now asked the Court to

considera similarbut matenally different question. WHO/SolomonIslands'FurtherWrittenObservations:Part1(Cornpetence)

(a) WHO'S specialintcresi

The variousStatessubmittingdetailedwntten observationsare in agreement that the
2.29
WHO hasa legitimateinterestin the healthand environmentaleffects of the useof
nuclear weapons (see supra para. 2.7). This is expressed in the organisation's
practice. Thatalonegives theWHOa sufficientspecialinterestto raisethe question
askedof the Court,as explainedabove (seeparas. 2.11-2.17). In fact,aparfrom the
UN no other specialisedagency hasaddressedthe subjectof the effects of nuclear

weaponsas comprehensivelyand regularlyas the WHO. Taken together theWHO
Reports of 1983, 1987, 1991 and 1993'' and the UN Repop of 1980and 199û"
provide some basic reference documentson the subject of the effects of nuclear
weapons, andno otherorganisations(withthe exception,perhaps, of the IAEA) are

in a betterpositionto considertheir legality from aglobalperspective.

(b) Delimitationofcornpetencieb senveenvanousinternarionao 1rganisations

2.30 SolomonIslandshas explained,by referenceto the Court's previousjurisprudence,

thattheapplicationof thepnncipleof speciaiitydoesnot meanthatrelationsbetween
thespecialisedagencies and the United Nations should be interpretedin a formalistic
or rigid manner(SolomonIslands,para. 2.38). In thecontextof the interdependence
of different subject matters aflexibleapproachis needed to give organisationsthe
necessary space to properly address those issues which fall fully within their

competence. For the WHO it is those aspects of the use of nuclear weapons
(including legality)whichrelateto the protectionofhumanhealth.That subjectdoes
not attachapriori to thecompetenceof anotherinternational organisation morethan
to theWHO. The UnitedNationshas noexclusive powersin thisdomain(Nauru,p.
15).In a similarvein, the HumanRightsCommitteeis entitled toaddressthehuman

rightsaspectsof nuclearweaponsuse. andthe IAEAis entitled to address theuse of
force against nuclear installations.The WHO'Srequest does nor trespass on the
activitiesof any other international organisations.

2.31 This much is clear from the factthat the General Assembly has now asked its own
question to the Court on international law and the use of nuclear weapons. Its
questionis different(se infra para. 2.34). It doesnot focuspnmarily on the health

'O
Effectsof nuclearwaronhealrhatidhealth services:Repon oftheInternationalCommunityof apms
inmedicalscienceandpublic henlthcrraiedby ResolutiorrWHA34.38, WHO, Geneva, 1984;Effcas
of nuclearwar on healrhanàhcalthservi2nd,cd., Reponfrom the WHOmanagementgmup on
theapplicabiliryof resolr HA36.28. WHO. Geneva. 1987;Effecrsof nuclearwaronhedond
healthservices, Rrpon front the WHOrrrnrin,gtoup on the applicobility of reroWh%ion
36.28, A44/INF.Doc/S, 25 April 19917he Effects of Nuclear Weapofrron Health and the
Environment:Repon of the Director Grfieral,A46130, 26th April 1993.

" ComprehenriveSnidon NuclcarWenporrr: epon ofthe UNSecretaryGeneral.UN Doc. A1351392,
12September1980; Comprehe?ui\eStudyon Nuclmr Wcapons:Repon of the UNSecraary Gemal,
UN Doc. Al451373, 18 Septemher1990. WHO/Solomon Islands' FurtherWrittenObservationPar.1(Competence)

and environmental aspects and it does not consider the WHO Constitution. It does,
however, ask aboutthe threatof use, a maner whichis beyond the competenceof the
WHO since the mere threat does not have direct implicationsfor human health and

the environment, as is clear from the various WHO Reports on the subject.

2.32 The question of the legality of the use of nuclear weaponsdoes not have a centre of
gravity which makesit a disarmamentissueany more than a health issue or a human
rights issue. Indeed, it mightbe saidthat thesubjectmatter'sproper centre of gravity

is human health and the environment, sin- disarmament is not an end in itself but
merely a meys to achievingthe protectionof human healthand the environment.As
Nauru has stated in its written observations:

'Thereareno exclusive powersof theUnitedNationsinthisfield. Quiteto thecontrary.
a traditionof cooperationof the UnitedNationswith otherbodiesQuestions :
regardingpeaceandsecurityand thelawsof armedconflict haveneverbeenconsidered
as a manerexclusivelytreatedby theUnitednations,butrathera coinmonconcernand
functionof the UnitedNationsandof cenainspecialisedagencies. inparticulartheWHO
andUNESCO.' (Nauru,Issuesof CompetenceandAdmissibility,15-16)

2.33 The question posed by the WHO to the Court essentially concerns the rules of
internationallawjus inbello, rather thanjus udbellum.As such, the SecurityCouncil
and General Assemblyhave no greater competencethan the WHO. The UN Charter
has nothing to say expressly aboutjus in bello, and the approach to constitutional

interpretationappiiedby the UnitedKingdom,Franceand the UnitedStatesto the UN
Charter would logically yieid the same conclusionas that theyreached in relation to
the WHO ie. that the UN also would not havecompetence.

Impingemcnrupontherighrsoforhcrinfernuiionalorganisations,includingrharofthe
(c)
SecuriryCouncil and GcncralAsscrnbly

2.34 The clearest evidence, if any isneeded, that the WHOrequest does not impingeupon
the rights of other international organisationsmay be found inGeneral Assembly
resolution 49175K adopted on 15 December 1994 requesting the Court

"Urgentlyto renderits advisoryopinionon the followingquestion:'1sthe threator use
of nuclearweaponsin nnycircurnstanceperrnittedunderinternationallaw?'"

Coming more than one and a half years after the bï-IO's request, the Generai
Assembly's requestis broader than that posedby the WHO. It raises those issues
considered by the General Assemblyto be within its competence, namely including

the threat of use ofnuclear weapons,and it is not premised upon an approach which
considersthe useor threateneduseof nuclear weaponsby reference to environmental
or health considerations. And it does not refer to the WHO Constitution.

2.35 If the GeneralAssemblyconsideredthat itsrightshaveben impingeduponone might

have expected it to make clear that view, perhaps by addressing a communication WHOlSolomonIslands' Further ritten ObservatiP:art1(Competence)

directly to the WHO or by indicating to the Court.There are good precedentsfor
wmmunications of this type.12Alternatively, the General Assernbly might have
indicated to the Courtitsdispleasurewith the WHO request. This it did notdo. Or
alternativelyone mighthaveexpected States whichconsiderd the WHO request to
trespass on the nghts of the General Assemblyto have registered thisview upon

adoptionof GeneralAssemblyresolution49175K.Again, this did not happen.

2.36 For theserasons, SolomonIslandsconsiderthatthe principleof specialisationwould
notbebreachedifthe Courtfoundthat theWHOwaswmpetent to raise thequestion.
The WHO's question does not impinge on the nghts of any other international
organisation,andthe expressionof itscompetencetoactin makingtherequest cannot

be consideredto be limitedin this way.The WHOrequestdoesnot, as Italyclaims,
limitthefreedomof theGeneralAssemblyina fieldof itsspecificcompetence(Italy,
P 2).

(C) Other claims regarding competence

2.37 Numerous other claims are made in support of the view that the WHO was not
wmpetent to ask the questionof the Court. These maybe disposedof bnefly.

2.38 It is suggested thattheWHO'slackof activityon thesubjectof the legalityof theuse

of nuclear weaponsbetween 1945.and 1993reflects its lack of cornpetence(United
Kingdom,ChapterIII, para. 12).Thisreasoningis clearlyerroneous.Apartfromthe
fact that the WHO has been active on the issue of the effectsof nuclear weapons
sincethe early 1980s(seeNauru,II, p.6, para.2) (seesupra para. 2.7)and thatit has
addressedthelegalityof the useof chernical andbiological weaponsas earlyas 1967,
this approachwouldsuggestthatthefailureof an organisation toact in a certainway

in respect of aparticular issue would prejudiceits right to act subsequently.This
cannot possiblebe right sincethe organisationwouldonly actwithinthe framework
of its competence.

2.39 Itis claimed that the answer to the questionwill have noeffect on WHO's work
(France,p. 15,para. 13). Sincethishasnothingto do withcornpetence,but is rather

aboutpropriety, itis addressed below.In anyevent,it is untrue, as SolomonIslands
indicatedin its WrittenObservations.

2:40 It is suggested that the Court's advisory opinionwould be "devoid of purpose"
(Australia,paras. 16-21).Thispointalso relatesto proprietyand is addressedbelow.

'' Seeforexamplrthe communicatinddrasul bytheinternatiol ivil AviationOrganis(ICAO)
to theN GeneralAssemblyconcrminga resolutionadoptulby the latterurgingmembcrsof the
UnitedNationsto refuselandingandtransportfacilitiçstoPortugueseaircrah,theewhichionof
wouldbe consideredby ICAOto violatethe ICA0 Convention:5 486 (1966). WHO/Solomon Islands' Further Written Observations: P1(Compztence)

2.41 It is claimed that the issue contributesnothing to the fulfilment by the WHO of its
functions under its Constitution (United States, p. 12). This is quite wrong.
Presumablythe United States doesnot take thesameapproach tothose resolutionsof

the WHAconceming the legality of the use of chemical and biologieal weapons.

2.42 Reference is made to the views of the WHO's Legal Counsel that legality is not
withinthe competenceof the WHO (United States,pp. 9-10; United Kingdom,p.12;

France p.13). Whilst of some interest the Legal Counsel's viewis not in any way
authoritative for the Court. In any event, the Legal Counsel stated unequivocally in
the 46thWorld Heaith Assemblyshortlybefore the adopSonof resolution46.40 that

'it is ultimately for the World Health Assemblyto decide on the range of iu competence.
including iu competence to refer. The Health Assembly, as a whole,to take
responsibility for iu judgement and its intrrpretation of iu competence under the
ConstitutionoWHO. I...[Utis for you. the delegalesof the WorldHealth Assembly.
tamake the ultimate and final judgment on the range and competence of this World
Health~ssernbl~."'~

SolomonIslands fully endorses this view.

2.43 It is said that the WHO has not participated in negotiations concerning nuclear

disarmament issues(United Kingdom, Chapter II, para. 13). Quite why this should
be relevant to WHO's competenceis unclear. The questionposed to the Court is not
about disarmamentbut about internationallaw applicablein armed conflicts. In fact,

WHO has been a long-standing and regular participant in conferences and other
international efforts relating to this issue.14

It is said that the question of the lawfulnessunder international law of the use of
2.44
nuclear weapons in war or other armed conflict "cannotbe determined simD by v
reference to their health effects" (Finland, p.3). The pint is not whether health
effects&gg wouldprovide the basisfor addressingthat question, but whetherhealth

effectsprovide a materialand reasonably relevant basisfor addressing that question.
Presumably, Finland would agree that health effects are one of the factors that are
reasonably relevant, and by that standard the WHO hasa legitimate interest in the

issue. As the WHA affirmed in its resolution 42.24, heaith is "fundamental to the
attainment of peace and security", and therefore not an incidental or secondary
factor.I5

- -
"
Provisional Verhatim Record of the 13thPlenary Meeting, 46th World Health assembly1993.ay
A46/VR/13.
"
See e.g. Fourth session of the Diplomatic Conference on Reaffinnation and Development of
InternationalmanitarianLaw applicable in Ad Conflicts. Repoofthe.UN SecretaryGenernl.
UN Doc. A1321144, 15Aupust 1977.p.8(indicating the participation of WHanobserver a1that
Conference).

" Supra para. 2.16, note 4 WHOlSolomonIslands'FunberWrittcn~bsrrvations:Pan1(Cornpetence)

(D) Conclusion

2.45 WHO is wmpetent to request an Advisory Opinion from the Court on this question
of the legality of the use of nuclear weapons. The subject falls withinan area in
which WHO has a special interest and in respect of which it has an established
practice going back many years. To find othenvise would threaten to undo WHO'S
important contribution tothe developmentof international humanitarian law and to

limit its role in future effoinsthat field. WHO/SolornonIslands'FurtherWrinrnObservations:ii(Propriety)

PART II

PROPRIETY

3.1 The secondissueraisedby certain Statesasa bar to theCourt'sgiving the Advisory
Opinion requestedrelates topropriety: it is said that the Court should, forthe first

time in its history, exercise its discretioasnot to give the Advisory Opinion
requested.

3.2 As withcompetence,.onlya smallnumberof Statestake thisview. Anoverwhelming
majority of the WHO'S 189 member counuies have either expressed a clear
preference in favour of the Court's giving the opinion or have not opposed it on

grounds of propriety or otherwise.These include not onlal1developingcounhies
submitting Written Observations, but also several important developed countrîes
(ireland,Japan, NewZealand,Norway, Sweden)and severalformerrepublicsof the
USSR (Lithuania,Kazakstan,Moldovaand Ukraine). At least one nuclear weapon
State(China)has notobjectedto the proprietyof theCourt's givingan opinionon the
substance. JustineStates(Australia,Finland,France, Germany,Italy, Netherlands,
Russia, UnitedKingdomand United States) objectedto the requeston grounds of

propriety. In this contextthe burdenis very muchon thoseStatesdenying propriety
to satisfythe Courtas to the "compelling"reasonswhyan AdvisoryOpinion should
not begiven.

3.3 The argumentson propriety made by these countriesare premised upon essentially
three "compelling reasons"(A):-

@) the question isessentiallypoliticalin characterand answering it wouldtake
the Court intoa legislativeorolicy-makingrole;

(C) the Court's interventioncould be detrimental toefforts to achieve nuclear
disarmament:and

(D) the Advisory Opinionwouldbe of nopractical utilityfor theWHO andis too
abstractor general.

3.4 Each of these argumentshas already been addressedby SolomonIslands (Written
Observation, paras.2.42-2.57). This is a legal questionwhich does not relatoa
disputein whichoneof thePartiesisa totalstrangerto theCourt, requiringthe Court

to act withinits judicial function, and whichhas a practicalsignificance.Solomon
Islandsreiteratesthe importantneedfor the WHOto be advisedby the Courton the
legal status of the use of nuclear weapons, notably by taking account of the
consequenceswhichwouldflow from theuseof such weaponson humanhealthand
the environment.The WHO is entitled to request an Advisory Opinion fromthe
Court. The Court,inaccordancewithits longstandingandwell-establishedpractice,
shouldgive an AdvisoryOpinionon the question posed. WHOlSolomonIslands'FurthrrWrittrnOhservaiions:Pari II(Proprirty)

(A) No "compellingreasons" have been shown whichrequire the Coun not ro give an

AdvisoryOpinion

3.5 In conformitywith Article65 of its Statute,the Court is not requiredto answer the
requestand this has been recalledby some States (se- e.g. Germany,p. 2; France,
p. 16). The Courthasalways construedthisprovisionliberaily, insistingon the fact

that only "compelling reasons"would lead it to decline to give an Advisory ..
Opinion.I6Since 1946 it has never refused to give an Advisory Opinion. Its
predecessor,the PermanentCourtof InternationalJustice,refusedto answer a request
only on one occasionand that wasvery clearlyfor "peremptory reasons". Thus, the

United States of America is correct in stating that the Court has "indicatedthat in
pnnciple it shouldnotrefuseto provide an opinionwhenrequestedby anotherorgan
of the United Nationsor a specialisedagency" (Written Observations,p.13). That
principlerequires Statesopposingthe request on the grounds of propnetyto show

"compeiling"reasons.

3.6 Theyhavenotdoneso. TheOpinion requested isofgenuineimportancefortheWHO
in the conductof itsactivitiesrelatedto theeffectsof theuse ofnuclearmaterialsand

weaponson humanhealthand theenvironment. Asignificantmajonty of the WHO
Members havedecided thatit wouldbe helpfulfor the organisation'swork to have
the requestfor an Advisory Opinion answered,andin thatcontext it is difficultsee
whythe Courtshouldinterferewiththatdetermination.The WHO'Srequest seeks to
clarify the internationallegal context in which its activitiesare conducted, and to

provide a proper legal basisfor the conductof its future activities. The requestis
motivatedby humanitarianconcerns, and theseshouldbe taken into accountby the
Court in weighingup the factors in deciding how to exercise its discretion (Costa
Rica, p. 2).

3.7 Contraryto the viewsof certain States(Australia, para.7; Germany,p. 2; Finland,
p. 5), thereis absolutelynoreasonfortheexerciseofjudicialrestraint.The Advisory
Opinion requested from the Court relatesto a legalquestioni7and the answerof the

Court will, in concrete terms,enlightenthe WHOin the conductof its a~tivities.~'
The requested Opiniondoes not relate to a disputewithin the meaningof Eastern
Carelia case.19There is therefore no compelling reasons as envisaged by the
Permanent Courtin thatcaseand the Courtshouldnotdeclineto answer the request

for an Opinion presentedby the WHO.

'Vudgmenr oftheAdrtiinisfrarTributin1ofrIL0 uporlConrplaitirsniagainsrUNESCO. Adv.Op.,
23 Ociober1956. ICIRrp. 1956. p.86Cenairi hpetscs ofne Ut~NedNation.,Adv.Op.. 20 July
1962,ICI Rcp. 1962, p.155.

" Cenain hpcriser of rhc UN. AdvOP.. 20 July 1962, IRcp. 1962. p.155.

WesternSahara, Adv. OP., 16 Octoher1975. ICRep. 1975. p.37.

'' PCU, opinionof 23 July 1928Srriet;B No5pp.27-28. WHO/SolomonIslands'FurtherWnttenObservations:Pan II(Propriety)

3.8 The United Kingdomhas soughtto identifycategones of cases in which anOpinion
should or should not be given @p. 43-61, paras. 4-36). Whilst helpful, the effort
appears somewhatarbitrary and formalistic. Inrelationto the first categor(cases for
which as a matter of propnety an opinion ought to be given) the effort actually
consists of a categorization of past cases on a rather descriptive basis. It is not a
reasoned assessment of the applicable pnnciples upon which the Court should base

itsfurure practice. The United Kingdomseems at pains to pointout why this case is
different from al1others and be ought not to be decided. This approach leaves
little, if any, room for the Court to exercise its discretionary power in what is
certainlya differenttype of request from those previously made. Its novelty alone is
presumably not a bar to its propnety.

3.9 The Court has the power to decide if a request for an Opinion fulfils the conditions
of Article 96(2) of the United Nations Charter.20The only concern of the Court
while accomplishingits tasks as the principaljudicial organof the United Nations is
to enlighten that Organisationand its Specialised Agencieson the proper conduct of
their activities. The assertion that thepresent case falls within the second set of cases

is, in SolomonIslands view, wrong.

3.10 There are no further cnteria which shouldprevent the Court from giving anOpinion
in a matter relating to a question which satisfiesthe conditions set forth by the UN
Charter. It very clearly appears that the Government of the United Kingdom has
misunderstood or even misinterpreted the practice of the Court. The Opinion

requested by the WHO clearly relates to a question arising within the scope of its
activities, a question on which the Court has competence to give an Opinion.

(B) Anypoliricalcharactcrwhichthequesrionmighrhaïe docs norprevcnrrhcCounfrom
giving an Opinion

3.11 The question pur to the Court relates to the cornpatibility of the use of nuclear
weapons with international law, includingthe Constitutionof the WHO. The WHO
is therefore invitingthe Court to address a legal questionand carry out a task clearly
within itsjudicial function. In this context, contrary to the assertions of some States
(see e.g. Russia, p. 2; France, p. 20), the fact that the question has political
implicationsis not in itself an obstacleto the competenceof the Court. In giving the

Opinion the Court would not go beyond its judicial function and embark upon a
legislativeor policy-makingcourse, as some States have suggested(France, p. 20,
para. 17; Finland, pp. 3-4, para. 2.2; Australia, paras. 7-9). When the Court has
ben asked to characterize a particular form of conduct with respect to international

" Thisprincipleof cardinal importaeasrmlled by Judge Bedjaoui inaerythoughtfulanalysof
the advisoryfunctionof the CourLes ressources offenes par lafonc~iori mmuiderhw Cour
Inrernarionalede Jwrice. Bilan erpcrs/~eUnited NationsCongres onPuhlicInternatiolaw,
13-17March1995. p.32 WHOlSolomonIslands'FurtherWriitrnObservationsParII(Propriay)

law, the Court is performing a task which is essentiallylegal." Solomon Islands

sharesthe viewexpressedby Ireland, whichdws not see the approach ofrequesting
an AdvisoryOpinionfrom theCourt "as in any way incompatiblewith ...effortin
the politicalfieldto securethe abolitionof suchweapons"(Ireland, p. 3, para. 11).
In any eventit is difficult tsee why a confirmationof the illegalityof the use of
nuclear weaponswouldcomplicatedisarmamentnegotiations.The logicbehind this
reasoningis difficulttocomprehend.On thecontrary:a clear statementby the Court

about the illegalityof the use ofnuclear weaponswould encourage nuclear weapon
Statesto nd themselvesof weaponsthe use ofwhichwouldviolateinternational law.
In any case,it wouldbe delicatefor the Court to refusetogive anAdvisory Opinion
because of the political consequenceswhich would result without also leaving its
judicial ~haracter.~

3.12 The Court hasconstantlyreaffirmedthatthepoliticalcharacterof a legalquestion is
not a bar to giving an Opinion.= As Nauru nghtly emphasizes, the political
implicationsof the questiondo not exclude the legal character of thequestion
(written Observations, II,p~.18-19).~~

3.13 The fact that certain non-govemmental organisations have supported the WHO'S
request is wholly irrelevantto the Court's determination, for thrasons indicated

above(seepara.2.5). And it is similarlyirrelevantwhetherthe legal questionraised
is incidentalto a politicalcampaign,as oneState suggests (UnitedKingdom,p. 55,
para. 22).Moreover,it is not for the Courtto second-guesstheAssemblyanddecide
that the questionit is really asking is about the possession ofnuclear weapons,as
France suggests (p.20, para. 17).

(C) The Coun'sinrcrvcnrion would nor bc dcrrimenral IO cffons ro achicvc nuclear
disarmamenl

3.14 SomeStatesmaintainthatan Advisory Opinion on the questioncould be detrimental
to efforts to achievenuclear disarmament, in particular by underminingthe 1968
Treatyon Non-Proliferationof the NuclearWeapons (NPT) or influence the course

of thenegotiations for itsextensionAustralia,paras. 12-14;Finland, p. 5; France,
pp. 20-21; Netherlands, p.7).This unsubstantiatedand entirelytheoreticalclaimhas
been shownby eventssubsequentto the filingof WrittenObservations as wrong.

l' CenainErpciisesofrheUN.Adv.Op.. 20 July 196ICI Rcp.1961p.155.

" Ibid.

= Ibid.

" Milirary and Paranrilira? Aniiirier iir arui apaitnr Nicaragua,lurisdinion and Admusibiliry.
JudgementICJ Rep.,1984. p.437. WHO/SolomonIslands'FunherWrittenObservations:PartII(Propriety)

In May 1995theReviewandExtensionConferenceof thePartiesto the NPT adopted
an indefinite extension of the NPT, in accordance with Article X(2) of its
provisions.2sThat extensionwas supportedby SolomonIslands, a positionwhich it
believes is entirely consistentwith the viewsit has set forth in these and its prior
Written Observations.The argumentthata WHOrequestmightbe demmentalto the
NPT negotiations has been shown to be entirely without foundation. Similar

considerationsapply tofuture negotiations.

Ifanything,the WHO'Srequestfor an AdvisoryOpinioncontributedto that body of
international opinion emphasizing the need to address by various avenues of
internationallawal1aspectsof theregulationof nuclear weapons,andhelpeddevelop
the momentum necessaryto ensurean indefinite extension.In adoptingthe indefuiite
extension theParties to the NPT also underscoredtheir desire to use other legal

means to reduce the threatposed by nuclear weapons,including a cornmitmenito
commence immediately and concludeearly negotiationson a convention banningthe
productionof fissile material for nuclear weapons andthe "determinedpursuit by
nuclear-weapon States of systematic and progressive efforts to reduce nuclear
weapons globally, with the ultimate goal of eliminatingthose weapon~."~~In the
contextof thesecommitmentsit is difficultto see how the WHO requestcouldeven

threatento be detrimental.

In any event, the issues of legaiity of use anddisarmamentare related but clearly
distinguishable.The WHO request does not addressdisarmament.It only addresses
the legalityof the use ofnuclear weaponsby reference totheir effectson healthand
theenvironment. The ascertainmeno tf the legalstatusof the useof nuclearweapons
would allow the WHO to ensure that its activities are canied out properly in a

manner which takes fully into account the priority needs of the international
community.

Placinglimitson the possessionof nuclear weaponsdoes not preclude other efforts
to address the core issueof the legalityof the use of nuclear weapons,particularly
in viewof their effectson humanhealth and theenvironment.Theseare twodifferent

topicsdealtwithin different arenas.One isjusticiableandof clear importancefor the
WHOtocarryon itsactivitieseffectively.The otherisa disarmamentissuedealtwith
by the conveningof a United Nations conference whose task was to consider
extension of an international treaty.There is no concurrence between them and
therefore no cause to fear an impediment on the renewal of a treaty of great
importance for theinternationalcommunity,or of otherrelevant treaties.

TheAdvisory Opinionwill bc ofpracricalurilirfor the WHOand is nortoo abstract
or gcneral

NPTICONF.1995lL.6.9 May 1995(adoptd withoua vote).

NPTICONF.1995/L.5.9 May 1995. para.4(band(c) (adoptai thoatvote). WHOlSolomon Islands' Further WritteObservations: PaII(Propriety)

3.19 Several States claim that the Court's response would be unlikely to provide any
constnictiveassistanceto the WHO, wouldprovide no practical benefit, and would

be incapableof implementation(UK, p. 42, para. 2, p. 60, para. 33; UnitedStates,
p. 14; Australia, paras. 16-21). The United Kingdom considers that "the legal
question,as it affectsthe WHO,isquitespurious"andraisesquestionsof lawentirely
extraneousto the WHOConstitution (p. 55, para. 22).

3.20 SolomonIslandshas previouslyexplainedwhy it wnsiders that the Court's answer
to the WHO'Srequest canprovide real and practical assistance to the organisation
(Written Observations,paras. 2.54-2.57). It is indispensablefor the conductof its
activitiesregardinghealthand environmentalproblemswhichwouldresult from the

use of nuclear weapons thatthe WHO should beenlightenedand informedon the
legal statusof the useof nuclearweapons.

3.21 Austraiia considers that the Advisory Opinion will not have any practical
consequencesfor WHO(para. 19).The UnitedStatesof America (p. 14),Finland @.

4) and France (p. 18,para. 16)considerthatthe questionis tooabstractand general
(UnitedStates, p. 14).Theseargumentsare misleadingas regards to thefunctionof
the Court and as to the presumedabsenceof practicaleffects of the questionraised
by the WHO.

3.22 SolomonIslandscan do no better that quote from the Court's Advisory Opinionin
the Wcsrcrn Sahara case.Thisprovidesa clearindicationof the typeofquestionsthat
canbe addressedto the Courtand the natureand purposeof the advisoryfunction:

'II basundoubtediy been the usual situation for an advisory opinion of the Court to
pronounce on existingifhts and obligations, or on thrir coming into existence,
modification or terinination, or on the powers of international organs. However. rlie
&un may dso 6e reqursred ro givr iIs opinion on questioy of ion, wlriclrdo norfall for
an) pronouncenunc of tlinr kind. though they inay have their place within a wider
problem the solution of which could involve such inatters. This dws not signify that the
Court is any thes coinpetrnt to entertiiin the request if it is satisfied that the questions
are infact legai ones, and to $ive an opinion once ir is sati.rfird rliar rlrcre is no
compclling reason for drclining r" do se.

3.23 The Australian, US and Finnishclaims are aiso misleadingbecause they deny the

practicaleffectsthatthe Advisory Opinionwillhavefor the conductof theactivities
of the WHO. There is a clearlink betweenthe requestof the WHOand its actions.
Thechoicesmade and theactstakenby theWHOwilldependdirectlyonitsknowing
whether theuse of nuclear weapons is legai or illegal. As Malaysiahas indicated,
clarification by the Court "willhelp WHO and the international community to

promote the changeswhich must be brought about to effect primary preventionof
healthand environmental hazardsansing out of the use ofnuclear weapons" (p. 2).
And as Nauru States,the request willclarify the meaningof WHO Constitution (p.
12). and contributeto the developmentof medicalethics. WHOlSolomonIslands'FurtherWritten Observatio:artII(Pmpriety)

3.24 Assuming that theCourt was of the opinionthat under certain conditionsthe use of
nuclear weaponswuld be compatiblewith internationallaw, the WHOwould then

be entitledto rakespecificpreventativeand curativemeasures to attend to theneeds
of the victims of such use. For countries with a limited temtory and financial
resourcesthe active roleof the WHO, in both a preventativeand curativecapacity,
wouldbe indispensableto theirsumival.

3.25 If, on the other hand, theCourt decides that the use ofnuclear weaponswould be
illegalunderinternationallaw, thentheWHOwouldbe entitledunderitsConstitution

toadapt its policies, aime. not only to preventthe effectsanuclear war but also
the very use of nuclear weapons. The identificationof the legal status of nuclear
weapons is essential for the selectionof the measures tobe wnducted and among
others, of additional preventative measusnd efforts, whicharevery muchrelated
to the legal statusof actions at thegin of health and environmentalprejudiual
effects.

3.26 Whateverthe legalregime applicableto the use of nuclearweapons, theOpinionof
the Court will determinethe directionwhich the WHO will take in its action in the
comingyears.

(E) Conclusion

3.27 For the reasons set out above and in the WrittenStatement submittedby Solomon

Islandsto theCourton10 June 1994,the Courtshouldgivean Opinionon the basis
that the WHOis competentto requestan AdvisoryOpinionfrom the Court, andthat
theCourt is competent togive,andshouldgive,an Advisory Opinion on the question
submitted.No "compellingreasons"havebeenshownto suggest that the Court should
declineto answer the question.The Courthasbeen askeda legal question theanswer
to which would nobt e detrimentalto on-going disarmamenteffortsandwould,in the
view of the great rnajonty of WHO Members, be of practical utility to the

organisation. WHOlSolomon IslandFurtheWntten ObservationP:arII(SubstantiLegalIssues)

SUBSTANTIVELEGAL ISSUES

4.1 Bywayof introductionSolomonIslandsnotes thatof the thirty-four Statessubmitting
Wntten Observationsonly four (the Netherlands, United Kingdom, France, and the

United States)havebeenprepared to express theview thattheuseof nuclear weapons
could in any circumsfmc beelawful. Whilst a small number of States have been
sidenton the substantive aspectsof the question posed by WHO, the overwhelming
majorityhaveexpressedthe view that anyuse ofnuclear weaponswouldbe contrary
to internationallaw because of the effects on health and the environment.

4.2 Some of the States challenging the admissibilityof the WHO'S request for an

AdvisoryOpinion have, presumably as a matterof precaution, takena positiononthe
substanceof the question. These Statesconsider that the use of nuclear weaponsby
a State dunng an armed conflict might not, in certain circumstances, violaits
international obligations, including those set forth in the WHO ConstitutionIn
aniving at this conclusion,theseStatesput forward argumentswhiccan be grouped
into four general categones:

(A) it is impossibleto give a generaland abstract answerto thequestion requested
(paras.4.3-4.24);

(B) international law does not prohibit the use of nuclear weapons(paras.4.25-
4.54);

(C) various international instrumentsimply theexistenceof a rule authorisingthe
use of nuclear weapons (paras.4.55-4.71); and

(D) the use of nuclear weaponsis compatiblewith internationalhumanitarianlaw
(paras.4.72-4.81).

Solomon Islands has addressed these issues in its earlier Wntten Observations. In
addition, and for the rasons set out below, Solomon Islandsdoes not consider that
any of these categones provides a basis for allowing the Court to conclude that the
useof nuclear weaponsis anythingother than subjectto internationallaw and, prima
facie incompatible with that law. Solomon Islands also considers the rules of
internationallaw relating to human rightsand the environm(D) and therelevance

to the WHO requestofjus cogens(E).

(A) The question is not too abstract or general

4.3 Several States consider the questionto have been posed in too general and abstract
way (se e.g. Netherlands, p6, paras. 22-23;UnitedSGtes, pp. 26-27, 33; Finland,

p. 4; United Kingdom, p. 6, para. 4). Although this argument concerns the WHOlSolomonIslands'FurtherWdten Observations:PaIn (SubstantiveLegal Issues)

admissibilityof the Advisory Opinion, it du, touches upon the substance of the

matter. It suggests that theuseof nuclear weaponswould notbe illegal perse. This
argument ignorestheparticularand inevitablenature oftheeffectsandconsequences
of theuseof nuclear weaponson humanhealthandtheenvironment.SolomonIslands
haspreviously demonstrated @p.43-62,paras.3.34-3.70), howthe importanceofthe
destnictionnecessarilyresulting fromthe useof nuclearweaponsand the meansand
methodsof useof theseweaponsimplicitlyrecognisethat,primafacie, any such use
is iiiegaper se. This applieseven where such weaponsare directed only against

militarytargets.

(1) The use ofnuclear weapons is illegalby reason of the significance of the
destruction they would cause

4.4 The use ofnuclear weapons isillegaibecause

(a) they render death inevitable;

(b) they cause superfluousinjury;

(c) their effects are indiscriminate;and

they can lead to a general nuclearwar.
(d)

(a) Nuclearwcaponrrenrlerdrarhincdrable

4.5 Combatants who find themselves within a certain radius of a nuclear weapon
"explosion" have absolutely no chance of surviving. The use of such weapons
thereforeviolatestheprohibition againstusingweaponswhichrenderdeathinevitable

(SolomonIslands, pp.47-49, para. 3.42-3.43and references). The "only legitimate
aim" of war is "to weaken the enemy forces" (St. Petersburg Declaration, 11
December 1868,2nd preambular paragraph).It is not their completeannihilation.It
may indeed be argued that every type of explosive causeslethal effects to anyone
within a certain rangeof the explosion,and that it would therefore be prohibited
undertheSt. Petersburgrule. Thisis reall noyt thecase. Shouldit, then, be inferred
thatthe prohibitionis out of date?There is no reasonto thinkso:firstof ail therule

has never beenrepealed. Moreover, by contrast a conventionai explosionis not a
weapon whichrenders death inevitableat dl times and in al1circumstances.With
appropriateprotection (e.g. by a sheltea)personstandingin a spacewhere, without
such protection, would surely be killed, can survive a conventional explosion.The
power of a nuclear explosion,on the other hand, is so great that, within a certain
range - dependinguponthe powerof theweapon - norhingcan providethe victims
withappropriateprotection.Death is an absolurccertainty. WHOlSolomonIslands'FurthrrWrittrnObservations:ParIII(SiibstantiveLegalIssurs)

The inevitable lethal effects of al1nuclear weapons implies the per se illegality of
their use as provided for in the St. Petersburg prohibition.

(b) Nuclcarweaponscausesupefluousinjury

4.6 The use of nuclearweaponsnecessariiycauses "superfiuousinjury" toits victims.To
that end their use violatesvarious instrumentswhichexpress a rule derived fromthe
law of med conflicts: the "lawof the lesser hmnn (SolomonIslands, p.49, para.
3.44; see also Sri Lanka, p. 2). Proponents of the legality of the use of nuclear
weapons challenge theidea that it is possible to comparein an abstract and general

manner nuclear weapons with other weapons which cause superfluous injury. They
suggest that there is no unnecessary suffering where there exists a reasonable link
between the military advantagegained and the damage caused to the enemy. (See
e.g., United Kingdom, p. 87, para. 37; Nethedands pi 9-10, para. 26-29; United
States p. 30). In other words, suffenng caused efficiently would not be suffenng
caused unnecessarily. The utility of the suffenng inflicted upon the victims would

depend only on the efficiency of the military operation! This approach disregards
fundamental principles of humanitarian law. It subordinates the characteristic of
excessive sufferingcaused by the use of nuclear weaponsto the whim of the military
strategy employed, in other words to the subjective opinion of those in charge of
militaryactivities. The conceptof "unnecessarysuffering" does not depend on what

a particular armyjudges to be good or bad in terms of militaryadvantage, but on an
objective determinationof the victims' injury. It is their suffenng which is at issue,
not the interest of obtaining military advantage.

4.7 The mle prohibitingthe useof weapons causing unnecessarysufferingor their means
and methods of use is deduced directly from international humanitarian law which

aimsto guaranteetheprotectionof victims.The title to the 1977AdditionalProtocols
refers to "the protection of the victimsof internationaland non-international armed
conflicts". Andin the thirdpreambularparagraph theStateparties emphasise theneed
"to reaffirm and develop the provisions protectingthe victims of armed conflicts"
(A.P. l),as well as "to ensure a better protection for the victims of those armed
conflicts"(A.P. 2). The conceptsof "unnecessarysuffering"and "superfluousinjury"

ensure that theinterest of the victim is given paramountcy, rather than the interests
of any particular militarystrategy.The conventional lawof armed conflictswnfinns
this view when it says that war can only aim at putting the enemy out of combat,
nothing more (see the St. Petersburg Declaration); the enemy's death, mutilation,
subsequent aggravation of injuries, or an attack on descendants caused by genetic
change cannot be considered legitimate goalsof war; such effects may derive from

a military operation, but they do not have to be a nccessary consequence of it.
However, these consequencesnecessarilyderive from the use of nuclear weapons.

DavidE.. Priticipdedroit desco~flian112s.B~ssels. Bniyianl,1994,206-207,279. 332md
336.

33 WHOlSolomon Islands' Further Writien Observations: Part III (Subslantive Lrgal Issues)

Furthemore, this use will also lead to "unnecessary suffenng" or "superfiuous
injury" becauseof its inevitablelethaleffects (suprapara. 4.5): a weapon which kills

aii those within a certain zone gws beyond that which is permissible in armed
wnflict. Even if no other rule prohibits the use ofsuch a weapon - quod non - by
this one consequencealone. its useconstitutesan abuse of law. Morwver, the nature
of the damageand injury whichnuclear weaponscause to survivors also render them

unlawful (see SolomonIslands pp. 56-61,para. 3.59-3.61, 3.66-3.67).

Nuclearweaponshaveindiscriminate effects
(c)

4.8 The use of nuclear weapons necessarily has indiscriminate effects prohibited by
international law (SolomonIslands, pp. 50-54,para. 3.48-3.54). Proponents of the
legalityof the useof nuclear weaponsrecognisethat indiscriminateattacksare illegal,

but consider that some nuclearweapons couldbe used ina precise and discriminate
manner. Thus:

"It is unlawful to conduct any indiscriminateattack. including those employiareeapons that
not or cannot be directed at a military objective (see Add.51Para. 4)(Ofcourse.
this dws not mean that attacks are prohibited simply because they may cause collateral civilian
damage or injur- as is often the case in arlned confiict.) Nuclear weapons can be directed al
a military target and thus can be usrd in a discriininareinanner (United States. p. 27).

Similarly:

"Modern nuclear weajionsare capable of precise targeting and rnanyare drsigned for use against
military objectives of quite sinxll sire.' (United Kingdoin. p. 88,alsaparas. 38e
and 40)

4.9 These assertionsare notewonhy: theyimplythat the onlynuclear weaponswhoseuse

would be legal are those whose effects could be limited in a discnminate manner to
militarytargets. Sincemilitarytargetsrarely extendbeyonda baseor armycorps, this
implies that the area affected by the use of a nuclear weapon should beconfined to
a maximum area of a few square kilometres. Considenng that a nuclear weapon of

13KT (Hiroshima style) will produce lethal effects in a radius ranging from 1400
metres2'to 2 kilometresZ9 from the explosion(corresponding to an area of 6 to 12
square kilometres), it follows that the force of a 13KT weapon is largely sufficient
to destroy any military unit. Any weapon ofgreater strengthwould necessarily have

greater effects of an "indiscnminate" character. Accordingly, by the logic of their
own argument, the United Statesand the United Kingdornare implicitlyrecognizing
the illegality of the use of al1nuclear weapons having greater force than 13 KT.

" Comprebensive study on nuclzar weapons: UN Rephytthe Secretary-GeneraUNDoc. A/45/373,

18 Seplember 1990p. 81. para. 297 (-1990 UN Report').
"
Levi.B. and von HippelF.. "Attaques limitkcontreIsE.U. et l'union sovi6tiqueEffe tsla
guerre nucléaire sur la sariréer les services de sariré,O.M.S.. G4..va1987, p. 106. WHOlSolomonIslands'FurtherWrittenObservations:partIII(Subsmtive LegalIssues)

4.10 However, evenas regardsa nuclearweapon witha powerof less than 13 KT, their
effectswouldbe indixriminate, since:

- the radioactivefallout could never be wnfined to the military targets but
wouldaffect, dependingon factorssuch aswind,locationandthe forceof the
weapon, a great numberof innocentnon-militarypeople?'

- the use of a singlenuclearweapon,againstan army in the desert or against
a war flet in the rniddleof the ocean would have indixriminate effects
because they affect indistinctlycombatantsand health servicesof the target
forces.

Accordingly, SolomonIslandsconsidersthat any use ofnuclear weaponswouldbe
likely to have indiscriminateeffectsand wouldaccordinglybe unlawful.This view
is supportedby manyStates(se e.g. India,p. 1; Mexico,p. 5, para. 14;Sri Lanka,
P. 2).

(d) me use ofnuclcarweaponrcouldlead ro a gencralnuclcarwar

4.11 Finaily, thereis the real nsk that the useof a singlenuclearweapon mightlead to a
general nuclearconflict, violatingthe general obligationof ail States to avoid any
action that would encouragethe violationof the lawsof armed conflicts (Solomon

Islands, pp.49-50, paras.3.45-3.47).

4.12 The lethal effects of nuclear weapons,the unnecessarysuffenng which theycause,

their indiscriminate effectsand the risks of a general nuclearconflictare inherent
characteristicsof theseweapons.The illegaiityof theiruseaccording to international
humanitarianlaw is thereforeindcpendcnr of theparticular circumstances.

The effects of use of nuclear weapons renders them illegal
(2)

4.13 Nuclear weaponsare similartochemicalweaponsand poisonweaponsbecauseof the
radioactivitythey necessarilyemit followingthe fission of uranium or plutonium
atoms. This characteristicis inherentin every typeof nuclearweaponirrespectiveof

a See thegraphson radioactivefalloutas a resultof nuclearattacksdirectedagainststrategicAmericao
andSoviet militaryunitsin February,ibid.. pp. 121-122.It has beenstimatd lhatthe numberof
victimsimmediatelyfollowinga massivenuclearattackdirectedagainst AmencannodSoviet
nuclear forcesamountedto hetwcen 12 an 27 million deathsanIo714 millioninjuredon the
Americansideand 15 to32 milliondeathsand7 to25 millioninjuredon theSovie...ibid.pp.
115and 117. WHOlSolomon Islands' Further Wntten Observations: Part III (Substantive Legal Issues)

its size. This is recognised by the scientificcornrnunityand by States, including
rnernbersof NATOwho have so definedatomicweaponsin AnnexII of Protocol 3

of the Paris Accordsof 23 October 1954on the control of weapons (see Solomon
Islands, p. 59, para. 3.62).

4.14 Consequentiy, it follows that nuclear weapons are illegal in so far as they are
wnsidered qua1 or analogous to chernicaland poison weapons.Any use would :
violate the prohibitionon using chernicalweaponsfound in various instruments,"

including the ParisDeclarationof 11 January 1989on the prohibitionof chemical
weap~ns,)~and the Paris Conventionof 13 January 1993on the prohibitionof the
development, production, stockpiling and use of chemical weapons and their

destr~ction,~~as well as various rnilitaryrnanuals;" and the prohibitionon the use
of poison ~eapons.~~

4.15 Proponentsof the legalityof theuse of nuclear weaponschallenge the notion that
these prohibitions are applicable to nuclear weapons. They consider that this
prohibition islirnitedto weaponswhoseprincipal effectsis topoisonthehumanbody
and does not cover any secondaryconsequences.Thus:

"The prohibition in bothUrt(a) and the 1925Prolocol. however. were intendedto apply only
to weapons whose principal effectwas poisonousand no1Io those where poison was a wondary
effect. Asone leadingcoinmentatorsaysof the 1925Protocol, its draïting history makesclear that
'the wope rdonc mnrcnac of the Protocol is rest10weapons the effect of which
is to asphyxiate or poison theadversary (Kalshoven. 'Arms. Arinarnenü and International Law'
191Rrc. & Cours(collecrcdcourses). 1985p.1284;seealsaMc Dougal and Feliciano, Lw

and MinimumWorIdPublic Ordrr. 1961.p. 663). IIIthe case of alinost al1nucleartheapons.
primary effects are blast and heat." (United Kingdoin. p. 85. para. 34)

Similarly:

' Hague Declaration (JV.2), of 29 July 1899concerning gas asphyxiation; Treaty of Versaille of 28 June
1919 between Germany and the Allies. Art. 171: Treaty of Saint Germain of 10 Srptember 1919
between Austria and the Allies. Art. 135; Treaty of Neuilly of 27 Novemher 1919 between Bulgaria
and the Allies. Art. 82: Treaty of Trianon of 4 June 1920hetwwn 'lungary and the Allies, Ari. 119;

Geneva Protocol of 17 June 1925; andRes. 2603 A (XXIV), 16 Drcember 1969 (80-3-36).

32 R.G.D.I.P..1989. p. 251

" See texinRepon of the Corflcrcrrceor!Dirmn~arnrrir, UNDoc A/47/27, 23 September 1992115p.
ss;R.G.D.I.P..1993, pp. 456-499.

Y
Inicrnmional law ruk relaritig ro rhrprohihiriori or the resrriciiocmoin weaponr.oshidy
esiablished by the UN Secretary-General, UN Doc. A/9215, vol. 1, p. 142.

" Seee.g. Art. 23 (a). Hague Regulations 1899 and 1907; Pace Treaties of VersailGermain,t
Neuilly. Trianon, other arrangements citai below; and vanous miliîary manuals. WHO/Solomon Islands' Further Written Observations: ParIII(Substantive LegaIssues)

'The 1907 Hague Convention includes a prohibition on the use of poison weapons IArt.23 (a)].
This prohibitiwas established mth panicular reference to projectiles that carry poison into the
body of the victim.was not intende10 apply. and has not been applied, to weaponsanhat
designed to injure or cause dest~ction by otber means. even though tmay create tolic
byproducu. For example, the prohibition on poison weapons docs not prohibit conventional
explosives or incendiaries, even though they may produce dangerous fumes. By the same token.
il does not prohibit nuclear weapons, which are designed Io injure or cause dmeansction by
other than poisoning of the victim, even though nuclear weapons may alsocreate toxic radioactive

byproducu.' (United States, p. 27).

The UnitedStates expresses thesamereasoningwithrespect to theGenevaProtocol

(Wntten Observations, p.28; similarlysee Netherlands,p. 9, para. 25).

4.16 Theseargumentscal1for certain observations.First, by declanng that "[iln the &se
of almost al1 nuclear weapons, theprimary effects are blast and heat" (emphasis
added), the United Kingdom implicitly recognises that there are some nuclear

weaponswhoseprincipaleffectsarenot blastandheat. Presumablytheyhavein mind
the neutron bomb. Neutron bombs produce:

'much higher levels of initial neutron radiation than an ordinary fission weapon of equal yield.
while at theame tiine suppressing the level of blast and heat. thus considerably reducinp the
expecteddamage to the ~urroundings'~~

To the extent that the principal effect of the neutron bomb is the emission of
radiationswhich react with living matter, analogouslychemicalor poison weapons
(SolomonIslands, pp. 58-59 para. 3.62), proponentsof the legalityof the use of
nuclearweaponsseem to be admitting thatsuchweaponsare analogous to chemical

or poison weapons. This is recognisedby both the United States and the United
Kingdom. In the sentencethat followsthat cited in the United Kingdom'swntten
observations (supra para. 4.15), ProfessorKalshovenwntes:

'If a nuclear device were usrd the primary effect of which would precisely be radiation (asthe
sosalled neutron grenade, or 'enhanced radiation reduced blast' nuclearweapon, was reponcdly
designed to have). the use of this panicular device might then probably be regarded asa
contravention of the Protaiol [the 1925 Geneva Protocol]."'

Those who denythe associationof nuclear weaponsto chemicalor poisonweapons
thus accept that such an associationis appropriatefor neutron bombs.The same
conclusionmustapplyto al1nuclear weapons by referenceto their effects.It is quite

wrongto advocatethe opposite view.

1990 UN Report, p29. para. 113; sczalso Solomon Islandsp.44. para.3.35.

" Kalshoven,F., "Am. Armaments and InternationalLaw",R.C.A.D.I., 1985, vol. 191-11p. 284. WHOlSolomonIslands' FurtheW r rittenObservations:PartIII(SubstantLegaiIssues)

4.17 Second, the United Kingdom, the United States and the Netherlands affirmthat
nuclear weapons cannot fall under the mles which prohibit the use of chemical and
poison weaponssincetheseprohibitionsonly apply to weaponswhoseprimary effect

is toasphyxiate or poison the adversary. This simple but unconvincing view is
supported by reference to doctrines whose limitations have been demonstrated and
whichcouldjust as easilybe used insupportof the oppsite view. The use ofnuclear
weapons does not produce only "an initial nuclear radiation", but also residual :
radioactivityresultingfromtheradioactive fallout(SolomonIslands, pp. 56-61,paras.

3.59-3.68). Since such radiation is one of the essenrial andrypical consequencesof
any nuclear reaction in which radioactive fissile matters are used, use do not extend
the meaning by saying that such a consequence confers on nuclear weapons the
characteristics of a 'chemicaiweapon'. The 1990 UN Report states that "the most
specific medicaieffects related to a nuclear explosionare the radiation injuries"."

Incalculatingthe numberof victims followinga massivenuclear attackon exclusively
military targets in the United Statesand the Soviet Union, it was concluded that "the
number of victims as a result of the blast and the heat is comparable tothe der

of vicrim asa result of radioactivefall~ur."~~

These are only estimates. Under certain scenarios (e,g. climatic and topographic
conditionsetc.), the numberof victims asa result of radioactive fallout can be double
the number of victims from theblast and the heat.40

4.18 To claim that radioactivity is not one of the principal effects of a nuclear reaction
evidencesa refusalto acknowledgereality. Evenif thechemicalandpoisonouseffects
are not those intended by the user of a nuclear weapon, they are nevertheless the
actualeffects. Theyare neither secondarynor incidentai.Theyare as importantas the

effects of blast and heat in terms of the injury to human health and possibly more so
in the case of the environment.To compare, as the United States does (supra para.
4.15), the radiation froma nuclear explosion which can extend over thousands of
kilometreswith the "dangerousfumes" emitted from theuse of fire arms is a wholly

unrealisticcomparison.In this context, itis significantthat the 1925GenevaProtocol
refers to "asphyxiating, poisonous or orher gases. and [...]al1 amlogous liquids,
mafenals or devices" (emphasis added). This indicates that there was no desire to
limit the prohibition to a restricted category of weapons. In fact, the United States
which would havewanted to useradiological weapons against Japan in 1942,

1990UN Report,p. 90. para.327.

39 Levi, B. andvon Hippel.F.loc.cic.p. 109(emphasisaddul. aulhor'stranslation).

Ibid. WHOlSolomon Islands' Further Written Observations: Part Iii (Substantive Legal Issues)

concededthat "atomicpoisonsappear to fall directly under the GenevaConvention
on gas used duringwar"" (author'stranslation).

Internationalhumanitarianlawcannotberestrictivelyinterpretedwhenit concernsthe
.19
life or the physicalintegrityof the victimsit is intendedto p~otect.~T *he protection
of the victim,as already mentioned, is the standard againstwhich humanitarianlaw
is to be ir~terpreted.'The terms of the MartensClause4"reiterates this approach:
it is difficult to see how "humanitarianlaws" and "the requiremenis of public

consciousness"wuld permitthe use ofnuclearweapons whilstprohibitingthe use of
chemicalweaponson the bais thatthe emissionof radiationis not the onlyeffectof
the useof nuclearweapons.

4.20 Third, it is somewhatsurprisingto suggest,as certain States have, that an action

which is prohibitedbecauseof its effectsbecomespermissiblewhere and becausi:it
alsohasother effects.1sit reasonableto concludethat theexpectedeffects(blastand
heat) justify theunwantedconsequences(radiation)?It is difficult to see how the
effectsof blastand heatgeneratedby a nuclearexplosion could justify the poisonous
effects of the radiation producedby this explosion.To say that the use of nuclear

weapons does not violatethe prohibitionon chernicalweaponson the bais that the
radiationthey produceisnottheir primary effect(apartfrombeingincorrect)amounts
to saying that thespeedlimitimposedby the road trafficlawsdo notapply toracing
cars becausetheirprimarypurposeis notto be drivenon a road!Theexampleof the

neutron bombillustratesthe absurdityof an approachwhich claims that the use of
nuclear weapons does not violate the prohibition againstusing chemical weapons
becausethe radiationcausedis not a principal effect. According to the studyby the
UN Secretary-Generalon nuclearweapons, thedevelopmentof the neutronbombis
the result of research to improve the flexibilityand variety of methods of using

nuclear weapons.

'112. One way of pursuing versatilitythrough diversificationof the nuclear itbentory, is
"tailoring"of warheadsto enhanceor suppressvariousrffrcts of theexplosion.Thibyis done
selecting different fission-to-fusionratios to produce the desired total yield, combined with
differentdrsigns of thecasingand other stwctural componentsof thewarhead.

" Goldschmidt, B., L'aw~irurearoniiquc.Ses aspectspolitiqueset lechriiques,Pans. 1962. p. 55cited

by Meyrowitz. H., "Lz projet am6ricano-sovidtique de trait6 sur l'interdiction des armes
radiologiques', A.F.D.I., 1979, p. 97.
'
E. David, 'Examen de certaines justifica..."thbriquesà l'emploi de l'arme nucléaire"Lcr
conséquencesjuridiques di, I'i~rrrnllntive~rrucees niissiles Cruke et Pershing enEumpe,
Bruxelles. Bruylant, 1984.p.21.

' Id.. Principe.., op. cil., pp. 101. 158, 191, 209,225.

Preamble of the 18992nd Hague Convention;4th Hague Convention 1907.8th preambular paragraph;
1949 G.C., common art. 63/62/1421158; A.P. 1. art. 1 para. 2; A.P. 2, 4th preambular'paragraph;
United Nations Convention of 10 October 1980, 5th prramhular paragrapb. WHO/Solomon IslandFurthrrWntten Observations: PaIII(Substantive Legal Issues)

113. The best-knownexampleof 'tailorin&'is the'enhancedradiation'weapon or the so-~allcd
'neutronbomb'. a weak fusion dwitha special design.'"

4.21 Some proponents ofthe legaiityof the useof nuclear weaponsappear to accept that
neutron weaponsare similar to chemicalweapons (supra 4.16), and thattherefore

their use would beillegal.Their approachleadsto the followingresult: aslong as a
nuclearweaponproducesmuchblastand heatand a great deal of destruction,its use
islegaisolong as theradiationemittedis insignificant.Itsdestructive forceprecludes
it from beingcategonsed asa chemicaiweapon.Butwhere its effectsfrom the blast

and heatare limited and the weapon produces signifiant radiation, it causes las
destruction and becomes illegai! The logic of this approach is, to say the least,
disconcerting:he whodoesmorecannotdo less; thegreater thedestructionthe more
likelythe legalityof theweapon.The absurdityof the conclusionis matchedon1y:by
the absurdityof the reasoning.

4.22 In fact, nuclear weaponsare subject to the same rules of technicalprogress as any
other product: howeverattractive thatnewproduct, it cannotbe used if it produces
harmfuleffectswhich are not permittedin earlier products. Itmightappear strange
to evaluatethe legalityof the use of nuclearweaponsaccordingto one of the most

elementaryrules of consumerprotection, but these rules are also found inthe laws
of armed conflict.Thus Article36 of 1977 GenevaProtocol1Additionalto the 1949
GenevaConvention, providesthat:

'In the smdy. developinent. acquisition or adoption of a nrw weapon, mkns or melbods of
warfarr. a High ContractingPartyndrran ohlifation to drterminrwhetemployrnent
would. insome circuinstances.br prohihitedby this Protocolor by anyothernile of international
law applicablein the High ContractingParty."

4.23 In conclusion, the fact that thedevelopersof nuclear weaponshad not intended to
producea chemicalor poisonous weapon,doesnotmeanthatnuclearweapons should

be consideredto be different (see Malaysia, p. 12; Nauru,p. 4). Nuclear weapons
havemanyof the samecharacteristicsas chemicalor poisonweaponsin their effects.
These effects are far from beingsecondary or incidental. Weneed only remind
ourselvesof the tens of thousandsof peoplewho survivedHiroshimaand Nagasaki

bombingsonlyto die subsequentlyfrom theradiation towhichtheyhad ben subject
can no doubt testify.

"
1990 UN Report, p28-29.paras112-113.

4O WHOlSolomonIslands' FurtheWrittrnObservations:PariIII(SubstantiveLegal Issues)

4.24 To summarise,taking into account their individualand collectivequalities, nuclear
weaponsandtheiruseareprimafane illegalper se notwithstandingthecircumstances
in which theymay be used. In the eventthat their use wouldor might:

- annihilate any person located within a certain distance from point
"zero" with no hopeof sumival, or

- cause unspeakableand difficult, if notimpossible, tocure, suffenng
for al1those outside the lethal range but that havenonethelessbeen
affectedby the explosionor radiation,or

-
destroy or affectpeople afterhostilitieshavceased, or affectpeople
who have nothingto do with the conflict,or

- cause the outbreakof a generalnuclearwar, or

- haveonhumanbeingsthesameeffect aschernicalandpoisonweapons
haveon humanbeing,

then they wouldviolate the internationalrules prohibiting, infer alia, the use of
weaponswhich:

- render deathinevitable;

-
cause "superfluous"and "unnecessary"harm;

- haveindiscriminate effects;

- havechernicaland poisonouscharacteristics;and

- contnbuteto theescalationof a generalnuclearwar.

Such violationsof the rules of internationallaw would arise independentlyof the
context in which they havebeen comrnittedand the manner in which the nuclear
weaponhasbeen used.They applyto any useof sucha weaponin an armedcontlict
or otherwise.This confirmsthatthe Court cannotrespondto thequestionin spiteof
its relative generalitysincethe rules ofjus in belloare clear and unambiguous. WHOlSolomonIslands'FunherWrittenObservations:Pan (SubstantiLepalIssues)

(B) Internationallaw prohibits theuse of nuclear weapons

4.25 Proponentsof the legalityof nuclearweaponsaffirm that internationallaw does not
expresslyor specificallyprohibit their u(1).and thatcertain instrumentsinvoked
tojustify the illegaiityof their use of nuclear weapons, are inapplicableto nuclear
weapons(2).

(1) The claim that no actual rule of international law prohibitsthe use of
nuclear weapons

4.26 Proponents of the legalityof the use of nuclear weaponsexpress in this regard a
numberof arguments:

no treaty specifically prohibitinguse ofnuclear weapons hasever
(a)
been adopted;

@) anyprohibitionon the useof a weaponnecessarilyimplies an express
prohibition;

(c) any negotiationson a treaty prohibiting theuse of nuclear weapons
havenever been successful;

(d) UN General Assembly resolutions prohibitingthe use of nuclear
weapons do not represent the opinio juris of the international
wmmunity.

SolomonIslandsturns to considereach of thesearguments.

(a) ïhc clairnrharnorrcaryspcciJical1p yrohihiringthe useof nuclearweapom
hm cvcrbccnudoprcd

4.27 Many of those States proposingthe legalityof nuclear weaponsuse have notedthat
no treaty specifically prohibits theiruse (se United Kingdom, p. 62, para. 2;
Germany,pp. 3-4; France, pp. 2 ss., paras 20-22; Russia, p. 2; United States,pp.
16-17). These States seem to be concluding that in the absence of an express

prohibition,theyare notprohibitedfromusingnuclear weaponsin the contextof their
legitimatenght to self-defence.

4.28 SolomonIslandshas previouslymade its positionclear on this argument: first, the
absence of a specificrule does not imply that one does not exist, and second, the
generai law of armed conflicts applies to nuclearweapons dong with ail other
weapons @p.25-29, para. 3.3-3.10; seealsoIran p. 1).This hasbeenrecognisedby

the proponentsof the legalityof nuclear weapons.The absence of an express and WHO/Solomon Islands' Further Written Observations: Part III (Substantive Lgal Issues)

specificprohibitiondoes not irnplya conrrariothe nght to use these weaponsin an
armedconflict.

4.29 The use of nuclear weapons is subject to thegenenc prohibitions recognisedby
internationallaw as referred to above (supraparas. 4.3-4.24). To suggestthat the
absenceof a "nominal"prohibition impliesthe existenceof a correlativenght is as
erroneousas suggestingthatit is permissibleto torturepnsoners or to inflictelectnc :

shockson them underthe pretext thatthe pain from thetorture or the use ofelecmc
shocks are not specifically prohibited byany particular internationalmle. Cleariy
suchbehaviouris illegalby reasonof the genericprohibitionagainst torture orbad
treatment.

IbJ Theclaimthat a prohibirionon rheuse of a weaponnecessanlyimplies'the

existenceof an express prohibition

4.30 A similarargumentclaimsthata generalprohibitionon the useof nuclearweapons,
if it existed, would give rise to a specificprohibitivenorm, and that such practice

would havebecornecustornary law.Accordingto France:

'La pratique ginirale, et on peut m5ine parler là d'd.ans le domaine de l'interdiction
ou de la réglementation des armements est du reste deider par voie conventionnelle.
L'interdictionrtielle ou totale d'emploi d'armes d6terininéessuppose des règlesprécisesqui sont
établiespar des conventions spiciales [suit la liste des conventions ~onclues en 1925. 1977. 1980
et 1993 pour interdire cenains types d'annesl. L'exigence de cesconventions spécifiquesconfirme
bien qu'on ne sauraitire une restriction précise de l'emploid'armes determinéesde principes
généraux qui, parnaNre. s'applAtous les armements sansdiscrimination. et 5 aucun d'entre
eux enpaniculier1...II parait donc iinpossible de formuler sur la base de règles généralesen
vigueur un principe d'interdiction d'emploi des armess qui en serait déduyserait
implicitment contenu. Une telle interdiction ne saurait risulter que d'une rkgle spéciale. liantles

Etats qui I'acceptent."(France. pp. 33-27;sec also United Stap.s18)

4.31 Behaviour,evenif frequent,becornespracticebut notcustornarylaw in the absence
of opiniojuris. lt is hard to see how the fact of havingconcludedvarious treaties

prohibiting theuse of certain types of weapons would imply "a belief thatthis
practiceis renderedobligatoryby the existenceof a ruleof lawrequiring Such
treaties do not suggestthat specificallydesignated weaponsare the only type osf
weapons which are prohibited, or that the generic rules only apply to particular

weapons. A more appropriateconclusionis that these Iules apply to theuse ofal1
weaponswhichcause acertain typeof effect.

4.32 Practiceshowsthatgenericrules havetheir own existenceand concretelegaleffect.

For example, the prohibition against the use of weaponswhich cause superfluous
injurywas expressedin the 1868St. Petersburg Declaration,and in the 1907Hague

"
Nonh Sea Cofuif~ef~tSlhelcare. ,judgmrnIU Rep. 1969,p. 44,para. 77

4 3 WHOJSolomon Islands' Further Written ObservationsPari 11(Substantive LegaIssues)

Regulations.By 1907,when the prohibitionwas being repeated, the use of certain
weaponshad already expresslybeen prohibited,such as projectilesof less than 400
grammes capableof explodingor charged with inflammablematter (St.Petersburg,
1868), and gas which causes asphyxiation, and "dum-dum" bullets (the Hague

Regulation, 1899). If, as France and the United States suggest, these specific
prohibitionsare the only ones that matter, and generic prohibitionsare withoutany
legaleffect, it is difficulttsee whytheseandother Stateshaveneverthelessfelt the -
need to repeat a prohibitionwith no effect.

4.33 Similarreasoning can beinvokedin relation to thereappearanceof the prohibition set
forth in the 1977GenevaProtocol 1 (Art. 35 (2)), in spiteof its adoptionin 1925.
in fact, the historyof the prohibitionillustratesits autonomyand the will of States

to maintainit alongside prohibitionson the use of specificweapons. In the 1868St.
Petersbure Declaration. the ~rohibition on the use of weawns which cabse
superfluois injury is skted i; the fourth preambular paragr&h. It appears as a
justificationof the rule prohibitingthe use ofprojectileswith a weightof less than

400 grammes.There thirefore apiears to be a directlinkbeGeen the paragraphand
the prohibition:

'Considering that the progress of civilisation should have the effect of alleviating asmuch as
possible the calamities of War:
That the onlylegitimate object which States should endeavour to accomplish during War is io
weaken the Military Forces of the enemy:
That for thisrpose it is sufficient to disabldthe greatest possible nuinber of men:
That thisobject would be exceeded by the einployinent of arins which uselessly aggravate the
sufferings of disabled men. or render their death inevitable:
That the employmenl of such arins would. thcrefore. be contrary to the laws of humanity;
The Contracting Parties engage mutually to renounce, in case of War ainong thernwlves, (he
employment by their Military or Naval Troops of any Projectiles of a weight below 400 grammes.
which is either Explosive or charfed with Fulininating of Inflammable Substances.

At the 1874BrusselsConferencewhich wasto bring to a conclusionthe project for
a Declarationon the customary lawsof war, the text depositedinitiallyby Russia
stipulated:

11. "Les lois de la guerre ne reconnaissent pas aux parties belligirantes un poivoir illimité quant
au choix des moyens de se nuire réciproqueinent.
12. D'après ce principe. sont interdits
I..]
e) L'emploi d'armes occasionnant des souffrances inutiles. comme: les projectiles remplis de verre
pilé oude matièr~.propàecauser des maux superflus:
f)l'emploi de balles explosiblesd'un poids infiriiur à400 gr et chargésde matières inflammables;
I...)."

"
Mechelynck, A.. Ln Cotrvrtirioti lnHaye coticertiatir les ercourunierde Inguerre sur terre
d'aprèr leanes a docutttc~tirsdes Cot@retidl,Brucllu de 1874et de laHaye de 1899 et1907,
Gand, 1915. p. 238. WHOlSolomon Islands' Further Writtzn Observations:Part U1 (Substantive Lgal Issues)

The final textwas simplifiedand reads:

An. 12.'Les lois de la guerre ne reconnaissent pas aux belligérantsun pouvoir illimitéquant au
choix des moyens de nuire à l'ennemi.'
An. 13. 'D'après ce principe. sont MrMMcN interdits
I...I
e. L'emploi d'armes. de projectiles ou de matiérepropres àcauser des maux supeainsi que
l'usage de projectiles prohibés par la Dtclaration de St. PCtershurg de 1868 I...l'"(emphesis
added)

The existenceof twodistinct clausesin thefirsttext andtheconjunctiveuseof "ainsi

que" in the secondconfirmsthe autonomous characterof the generic prohibitionof
the use of explosive and incendiary bullets. As for the reference to the word
"notamment",the Belgiandelegate(BaronLambermont)explainedthat "onpourrait

croire, sanscela, que tout ce qui n'estpas comprisdans I'énuméra$oe nst

4.34 At the 1899 Hague Conference, Articles 12-13 of the project on the Brussels

DeclarationbecameArticles 22-23of the 2nd Conventionon the Lawsand Customs
of Land War. Only the styleof Article 12 (new Article 22) was amendedwhereas
Article 13(new Article23) was modifiedto makeits applicationmoregeneral. The

report by Rolin States:

"L'art. 23 coinmence par ces inou:'Outre les prohibitions établiespar des conventions spéciales.

il est notaminent interdit:..Ces conventions spdcialrs sont d'abord la Eclaratiode SI.
Pdtersbourg de 1868, qui est toujours en vigueur. el puis toutes celles de mime naNre qui
pourraient étreconcluesotaininent h la suitelaConvention de La Haye. II a parà la Sous-
Commission qu'une formulation gGnérilleétait préféraàll'ancienne rddaction qui mentionnait
seulement laDdclarationde St.Pdtersbourg."

Articles 22-23state:

Art. 22. "Les hellig(.rants n'opas un droit illiinitd quant au choix des moyens de nuire à
l'enneini.'
Art.23. 'Ourrr les prohibitions éwbliespar des conventions ;péciales. il est notamment interdit

I...I
e. d'employer des armes. des projectiles ou des inatiSres pràcauser des maux superilus;
[...(einphasis sdded)

These clauses were to remain unchangedin the Regulationsannexed to the 1907
HagueConventionIV.

Ibid.. p. 246.

Ibid.,p.249.

Ibid., p. 249. WHO/Solomon Islands' FurtherWritten Observations: II(Substantive Legal Issus)

4.35 Twoconclusionsmaybe drawnfrom this review.First, as drafted thesetextsdo not
providefor an exhaustiveprohibition;the useof theword "notamment"suggests that
the weaponsidentifiedare only examplesand are not intended tobe exhaustive. It

would be quite wrong todeduce from the lack of an express prohibition of a
particular method or mean of war the conclusion thatwhich is not prohibited is
permitted. This is surely not the place toinvoke thejudgment in the Loru case
adopted by the tiniest of simple majonties (6 votes for, 6 votes against, the :
President'svote makingthe difference)?'Second,by refemng to theseconventions

which prohibit the use of specific weapons and by generally stating the generic
prohibitionon the use ofweaponswhich cause superfluousinjury, the autonomous
natureof the generic prohibitionis emphasised. A forfion this rule isalso stated in
Geneva Protocol 1(Art. 35 (2)), togetherwithanotherrule requiringStatesto verify

the compatibilityof al1new weaponswith their obligationsarising under applicable
international humanitarian laws (Art. 36). These rules would have little significaice
andbe of limiteduseif theyappliedonlyto the use ofweapons forming the basis of
a nominalprohibition.

4.36 Accordingly, it is wrong to claim that the use of a particular weapon is only
prohibited where there exists a specific prohibition on such use. Practice and
precedentprovideothenvise.

(c) The claim rharan))ncgoriorionson o rr<:arp yrol~ibitingrhe use of nuclear
weaponrhaveneverbeensucccs,~fil

4.37 According toFrance:

'Les propositionsfaites au cours des dernigresaniiéesen vue de laconclusion d'un traité sur
l'interdiction des armes nucldaires n'ont pas abou-i conduisent égalementà la
consü<tationqu'unetelle interdictionne sauraititre considdr6ecoinine juridiquementétablie.'
(France, p.. para. 27: sec also United Kingdoin.pp. 62,74,76. paras3.15.18).

There can be no doubt that disagreementsexist betweenStates on the issue of the
legalityof the use ofnuclearweapons.The present requestfor an Advisory Opinion
acknowledges this, asdoes the absence of a treaty expresslyprohibitingsuch use.

Suchdisagreementdoes not however suggestthat there is no prohibitionon the use
of nuclear weapons. A vast majoriryof States (suprapara. 4.1) take the view that
positive internationallaw prohibits any use of nuclear weaponsindependentlyof a
specifictreaty. A very small minonty of Statestake an oppositeview. The absence
of a specific treaty, does not, however, mean that there is no prohibition under

general international law.It is precisely forthe Court todecidethis issue.

" P.C.I.J.7 Septçmtier 192ScriuA rio.JO.pp. 18-19. 32.

4 6 WHOlSolomon Islands' Further Writtui Observations: PIII(Subsfantive Lrgal Issues)

Certain Stateshave commented thatif the Court affirms the illegalityof the use of
4.38
nuclear weaponsit would be acting as legislator (France, p. 38, para. 29), which
would be incompatiblewith its judiciai functions(Ausualia, para. 7). This is a
particular and peculiar understandingof the advisory function of the Court. The

Court, being the "principaljudicial organof the UnitedNations, an organ which, in
that capacity,acts onlyon the basisof the la^";'^by statingthe lawthe Courtis not
creating new law. The Court's functionhere is declaratory, not constitutive.The
Courtwouldnot be assuming theroleof legislatorby confirmingtheapplicabilityof

internationalhumanitarianlaws to the useof nuclear weapons.

(d) The claim chat U.N. GeneralAssemblyresolutions prohibitingthe useof
nuclear weaponsdo no1 represenrthe opinio juris of the inremional
communiy

4.39 Proponents ofthe legalityof the useof nuclearweaponsconsiderthat UN General
Assemblyresolutions condemning the use of nuclear weaponsare withoutauthonty
in the absenceof opiniojuris. It is clairnedthat theseresolutions werevotedin by a

smailmajontyand subjectto manyabstentions. Moreover, itis saidthat theminority
wasmadeupof nuclear powerStates. However,manyof theseresolutiondemandthe
conclusionof a treatyprohibitingthe useof nuclear weaponsor prohibitingthe first
use of such weapons.Accordingto the UnitedKingdom,

'17.These resolutions are not. of course. legallybinding instrcinenu. Moreover, there arc several
reasons for rejecting any suggestions that theyare declxratory of a nile of custoinary intemational
law forbidding ail use of nuclear weaponsananalysis of the voting figures reveals that the
resolutions werentroversid. Resolution 1@VI) was adopted by 55 votes to 20. 26th
abstentions. Of the nuclear powers. France. the United Kingdoin and the United States voled
against the resolution while the Soviet Union voted in favour. [..IThe later resolutions also failcd
to command the general support which characterised those resolutions which hbeenoften
trdted as declaratory of custoinary international Inw.

18.Secondly. it is evident that inany of those States which voted for the resolutions concemed did
no<regard them as stating such a customary Iiw principlr. In the case of Resolution 1653, tbc link
between the assertion of the illegality of nuclear weapons in paragraph 1and the request that the
Secrewy-General consultSutes about the conclusion ofa convention Ioprohibit the use of nuclcar
weapons raises the question whether those States which voted for the resolution regarded Ibe use

of nuclear weapons as lawful in the ab.senceof such a convention. Statements by a number of
States.ncluding some of the sponsors of the resolution. suggesi Ihat they suchaot take
position. The later resolutions alIO the adoption of a convention prohibiting ofe use
nuclear weapons'. (United Kingdom. pp. 75-76. paras. 17-18. see also pp. 719-20;paras.
Netherlands, p. II. para. 32; France. p. 32, para. 27 and the United States. pp 25-26.)

4.40 To suggestthat UN General Assemblyresolutions condemning the use of nuclear

weaponsare notdeclaratoryof the law becausetheywere notsupportedby al1States
limitsthe qualityof internationallaw only to those instrumentssupportedby States

"
Namibiacure. judgme~rr,ICI Rep.,1971, p.23.para. 29. WHOlSolornonIslands'FunherWrittenObservations:PartII1(SubstantiveLegd Issues)

unanimously.This isquitewrong: internationallawis relativeanditsrulesbindthose

Stateswhichadhere to them. Considering the normativenatureof theseresolutions,
they would still, even if they were to createnew l-w quod non - be declaratory
of the law for thoseStateswhich votedin their favour.

4.41 However, the significanceof these resolutionsdws go further. Their applicationis
not lirnitedonlytothoseStatessupportingthem. Statesadvocatingthe viewthat the :
use ofnuclear weaponsis legal but opposedto these remlutions neverthelessadmit

that humanitarianlaw is applicableto the use of nuclear weapons(Nlfra).There is
therefore agreementbetweenproponentsand opponentsof the legality of the use of
nuclear weaponson the applicabilityof internationalhumanitarianlaw to their use.
WhereGeneralAssemblyresolutionsaffirmthisapplicability,theyrepresent,at least
onthis point,theopiniojuris of the international communiandto thatendal1States
agree on this issue.

4.42 Thepoint ofdisagreement ison the legaiityof theuse ofnuclear weaponsunderthese
niles. SolomonIslands is one of the many States which considers that any use of
nuclear weaponsprimafacie violates internationalhumanitarianlaw. It is for the
Court to affirm or reject this view: if the Courtconfirms this view, the above
mentioned resolutions would indeedreflect the opinio juris of the international
community.If, on theotherhand, theCourt rejectsthisview, theirlegaleffectwould
be limitedto Stateswho voted in their favour.

(2) Certain international humanitarian law instmments do not apply to the
use of nuclear weapons

4.43 Stateswhichaffirm the legalityof nuclearweapons rejecttheideathatthe legalitycan
be challengedon the basis of

(a) 1977 GenevaProtocol 1;

(b) the 1948 Convention for the Preventionand Punishmentof the Crime
of Genocide;and

(c) the law of neutrality.

(a) The applicabiliryofthe 1977Grneva Protoc011to the use of nuclearweapons

4.44 Proponentsof the legalityof the use of nucl& weaponschallengethe applicability
of the 1977 GenevaProtocol 1 to the use of nuclear weapons(Netherlands,p. 10,
paras. 30-31;UnitedKingdom,pp. 64 and 82, paras 4 and 29; France pp. 26-27;
UnitedStates,pp. 24.28-29). SolomonIslandshasaireadyexplainedwhythe silence

on this issueof the 1977 Geneva Protocol 1 and the consensuson "settingasidethe WHOlSolomon Islands' Fuher Written Observations: Pari III (Substantive kIssues)

issueof nuclearweapons"doesnotimplythattheProtocoldoesnotapplyto theiruse
(SolomonIslands,pp. 29-36, 72 paras. 3.11-3.24, 3.90). There is no need to repeat
what has aireadybeen statedon this issue.

ne claimth the Convenriofn or thePrevenrion andPunishmcno rftheCrime
(b)
of Genocide appliesronuclearweaponr

4.45 Proponentsof the legalityof nuclearweaponschallengethe ideathat theuseof such

weaponscouldamountto genocidebecausethereis no elementof intent. According
to the Netherlands:

'[..the use of nuclear weapons need -o1asis minetiines alleg-d necewily amount to
genacide in lems of the 1948 Convention on the Prevention and Punishment of the Crime of
Genocide (4AJL 1951Suppl. p7).Indeed. as long asthe use of nuclear weapons. or for thaI
matter any weapons. reinains directed al the combatanls of the other belligerent and is notdirccted
at the population (which may be considered asa national grouwith the intctodestroy
that population in whole or in pan assuch, i.e. whether haviiig stnnis of coinbatant or not, tbere

can be no question of genocide within the meaning of the 1948 Genocide
Convention."(Nelher la1ndp.ara. 13;sealsoUnited Kingdom. p.89.para. 41).

4.46 If ail uses ofnuclearweapons necessarily violatethe international humanitarian laws

identified above @aras. 4.5 et seq.), such use does not necessarily amount to
genocide. This qualification will depend, on the particular circumstancesin which
nuclearweaponsare used. If theyare directed only atcombatants,and iftheyaffect
the civilianpopulation onlymarginally, it maybe that suchuse might notamountto

genocideeven if it amountsto theviolationof other international humanitarian laws
(supraparas. 4.5 erscq.).

4.47 If on the other handa large scale useof nuclear weaponslads to thedestructionof
a signifiant numberof civiliansforming pan of group havinga commonnational,

racial,ethnicor religious identity,could theabsenceof genocidebe impliedmerely
becausethoseresponsible forthe useof nuclearweaponshadnotspecificallyimended
there to be a genocide? ArticleII of the Conventionon the Prevention and

Punishmentof the Crimeof GenocideStates:

'Inthe present Convention. geiiocide ineans any of the following acts cominitted with inlent to
destroy. in whole or in p;drt.a national. ethnical, racial or religsuch:group. as

(a) Killing members of the group;
@) Causing seriouhodily ormental hurn to rnembers of the group;

I...1

The express referenceto "intent" makesit a fundamentalelement of the crime of
genocide.Thequestion is howto determine theintentionof thoseresponsiblefor the

destruction of a national, ethnical, racial or religious group as such. Do those
responsiblehave to publiclyexpress their "intent"to annihilatea specificgroup of WHO/Solornon Islands' Further Writtcn Observations: Part III (SubstantivIssues)

ability. It does not say that incursionsby belligerentsinto the temtory of neutrai
States or its bombardment violate the neutmiity of the State. It is, however,
indisputablethat such effects amountto the violationof the neutraiityof the victim

State. In otherwords, the Convention's silence doesnot imply thatthe effectsof the
use ofnuclearweaponswhichreach the temtory of a neutralStatedo not violateits
neutrality. Any useof a nuclear weapon which matenally affect the temtory of a
neutraiStateviolatesthe neutralityof that State.

4.51 In this regard, it matters littie whether the violationis intentionalor not. In the
extract cited above (para. 4.49), the United Kingdom, addressing "deliberate

bombardment",suggestedthat theviolationof the neutrality of a Stateis limited to
the intentionalviolationof its temtory and that any accidentaleffects of the use of
nuclearweaponswhich might reach the temtory of neutraiStateswould notamount
to a violationbecauseof the lackof intent. Thisconclusionis incorrect. Intentionis

not a constituentof internationallaw except whereexpressly stipulated (see supra
para. 4.47, also see Article85 (3) and (4) of GenevaProtocol 1).

4.52 In its draft articleson international responsibility, the InternationLlaw Commission
stated that only the existenceof an action or omissionattributableto the State is a
constitutiveelement of international responsibility (Art. 3 of the draft articles)".
Accordingto one commentator:

'L'exigence d'une condition suppliinentaire. la faute ou un de ses avatars l'intention, n'est plus
revendiquçeaujourd'huipar aucun courant significatif, étatiqueouAdpartir du moment
où le fait illicite est un manqueinentau droit. l'intention délictuellen'est pas requise en sus. Un
fait est illicite / bl~lignnorsr n6jrcnvrmrn1 ~io/ir. qlrrjlirnrpu érle* infrm'om
de l'aiueur de ln violnrC'rst en quelque sorte un point de vue behaviouriste."" (emphasis
added)

Bystatingthattheterritoryof neutralStatesare "inviolable",only the actualphysical
outcomeis of relevance. Accordingto the same commentator"lorsque l'obligation
[violée]s'analyseen uneobligation de résultat [..]peuimportentles intentions,c'est
le résultatqui compte."ss

On 6 June 1982,injustifyingits invasioninto Lebanon,lsrael declaredthat:

'qu'il n'avait aucune amhition territoriale au Liban et qu'il respecuit el honorait I'indépendaacc
et I'intigriti libanaise'*

" ïbk of1.L.C..1973, vol.1.p. 28.

Y
Salmon. J.J.A.,'L'intention en matiere de responsahilite international'. inMichenleiral&,
Paris, Pedone. p. 414.

" Ibid., p419.

m Security Council, off. doc. 2375th Sess6lune 1982. p. 5para.43 (French). WHOISolomon Islands' Funhrr Writicn Observations:PII(Substantive Lepal Issues)

The SecurityCouncil reaffirmed:

'la nécesside respecter strictement l'inérritoride. la souveraineté etl'indépendance
politiquedu Libanl'intéride ses frontitresinternationateconnues'

and

'1.Eage qu'Israël retire immédiatemenett inconditionnellementtoutes ses forces militaires
jusqu'auxfrontieresinternationaiteconnuesduLiban;
I...(SIRes.509of6 lune1982).

TheissueofintentwasclearlyirrelevantfortheSecuntyCouncil.Whatmattered was
the violationof Lebanon's sovereignty and temtorial integrity.

4.53 The same applies to radioactiveand electro-magneticeffects caused by the use"of
nuclearweapons.Where theseconsequencesaffectthe tenitory of a neutralState its
neutraiityhasbeen violatedand its territorial integnty infringed.Such violationor

infnngementmayalso amountto an aggression asdefinedin Art. 2 and 3(b), of the
definitionof aggression - which unless it were to be altered by a decisionof the
Security Council - presumes the existence of an aggression irrespective of the
intentionof the Statewhichis the first to use force againstanother State.

4.54 By way of summary, in response to the proponentsof the legality of the use of
nuclear weapons, the lack of a treaty specificallyprohibiting theuse of nuclear
weapons does not implythe absenceof rules prohibitingsuch use:

-
there exist genenc prohibitionswhich apply to any use ofnuclear weapons
@aras.4.32-4.35);

- the suggestionthat the prohibition on the use of a weapon requires the
adoption of specific treaties cannot be reconciled with the fact that States
continue to affirm general prohibitions applicable tovarious categones of

weaponswhich are not othenvise designated(para. 4.32);

- the lack of a consensuson the illegaiityof the use ofnuclear weaponsdoes
not imply their legality, rather it implies the existence of a disagreement
betweenStateson the applicationto nuclearweaponsof the genenc rules of
internationalhumanitarianlaw (para. 4.37);

- there is no decisive argument which restricts the application to the use of
nuclear weapons of the 1977 Geneva Protocol 1, the 1948 Genocide
Conventionand the rules on neutraiityand the temtorial integrityof States
(paras. 4.43-4.53). WHOlSolornon Islands' Further Wntten Observations: Pari III (SubstantivIssues)

The claim that various international instruments imply the exûtence of a
(C)
rule'authorising the use of nuclear weapons

4.55 Proponentsof the legaiityof the useof nuclear weaponswnsider that treatieswhich
limit the possessionand testing of nuclear weapons (1) or which "denuclearise"
certain partsof the world (2) imply ips oacro thenght to usenuclearweaponsin an
armedconflict;the sameappliesto theresewationsanddeclarationsmadeby certain

States in relation to treaties which limit the possessionor deploymentof nuclear
weapons (3).

(1) The claim that treaties which bit the possession of nuclear weapons
imply the right to use nuclear weapons during an armed conflict ',

4.56 Açcordingto the UnitedStates,

'A number of internationalarms control agreemenu prohibit or regulate theMingufacmre,
or possession of nuclear weaponsor systems for their delivery. Thew includc the 1963 Limiied
Ten Ban Treaty. the 1967 Outer Space Treaty. the 1968 Non-Proliferation Trenty. the 1971
Seabed ArmsControl Treaty. the 1972Anti-BallisticMissile (ABM)Treaty. the 1974Thrsshold
Test Ban Treaty, the 1987 Interrnediate-Range~ucle$ Force.:(INF) Treaty and the 1991Treaty
on the Reduction and Limitationof Strategic Offensive Arms (START).These treabees would
unnecessaryif there were alreadya generally-acceptedprohibitionon the useof nuclear weapons.

Funher. the terms of these treaties implicitly acknowledge in inany ways Ihat the continucd
possession anduse of such weapons (withinthe confines of treatyliinitations)are not prohibited.
For example, the Liinited Test Ban Treaty (Io which there are well over one hundred parties)
permiu underground nuclear weaponsresting.while prohibiting testing elsewhere.This is a clear

acknowledgementthat the possessionof such weapons by the nuclear-weaponStates is lawhil and
implies thatuse in at leml soine circuinstanceswould nlsobe lawful. since possession and testing
of such weaponswould othenvise bc purposeless. Likewisr. the Non-ProliferationTreaty accepo
the lnwfulness of the developinent and possessionof nuclear weapons by the nuclear-weapons
States designated in the Treaty. which would make nosense if al1uses of sucmreeapons
unlawful. (United States, pp. 19-20: see also Netherlands p. 13. para. 35; United Kingdom, pp.
62 and 73, paras.and 14; France. p26and 36. par%$.23 and 28).

SolomonIslandshas consideredthese argumentsin its wntten observations(p. 70,
para. 3.84). This issue has been considered again by Solomon Islands in its
introductionof theseobservations(supra). They are furtherdevelopedbelow.

4.57 For proponents of the legality of nuclear weapons, regulating the possession,
deployment or testing of nuclear weaponsmakes no sense if their use were
prohibited. It would, for example, not make sense to ailow undergroundnuclear

weapons testingunless the purpose of such testing was the possible use of the
weaponsin an armedconflict. This argument is inaccuratefor at leastthreereasons: WHOlSolomonIslands'FurtherWrittenObservations:artIII(SubstantiveLegal Issues)

(a) at its simplest the arguments reflects what might be called pseudo-
' logic;

(b) any logicwhichit might haveis based ona one-dimensionalperception
and inaccurate interpretation of the applicable law;

(c) the argument reflects ablurred sense of reality.

(a) A pseudo-logicalargwneru

4.58 Proponents of the legality of nuclear weapons claim that, the regulation of the
possession, deploymentor testing of nuclear weaponsnecessarily that their
use is permissible in an anned conflict. In simple terms, this argument suggeststhat
the legaiity of X behaviour implies the legality of Y behaviour, despite the very
different nature of the latter behaviour, and that it takes place after X. In such
circumstancesthe inference that "X implies Y" has no basis as the transitionai link

necessary tojustify Y by X is absent. In deontic logic?' it woulseem that Y is the
conclusionof a syllogismfor which nomajor premise can be found. The illogidity
of this argument is aiso reflectedin the developmentof mles concerning manufacture
and useof chemid and biologicalweaponsin whichWHO played an importantpart.
Whilst since 1899the use ofsuch weaponswas prohibited, it is only recentiyin 1993

that their manufactureand their possession have been prohibited(supra para. 3.14).
Accordingly, the international communityhas a long experience of living with one
mle for production and another for use.

(b) A unilarcraland inaccurarein~erprcrarionof tlieapplicablelaw

4.59 The reasoningof proponentsof the legalityof the use of nuclear weaponsis based on
a unilateraland inaccurate perceptionof the applicablelaw. It presupposes thattheir
interpretation is the only correct one: a half dozen Statesmanufacture, possess and
test nuclearweaponsand merelybecausethe international communityis powerless to
change this fact, it is presumed to be accepting the legality of the use of nuclear
weapons. This reasoning is incompatible with the fact that even if States have

admitted or tolerated the manufacture, possession and under certain conditions the
testing of nuclear weapons, they have also challenged the legalityof their usin an
armed conflict, as is reflected by resolutions of the UN General Assembly (supra
para. 4.39-4.41, and SoiomonIslands, pp. 36-39, para. 3.25-3.26).

4.60 That these resolutionshad beenvoted in by a simplemajority is of little importance.

They show that it is not possible to affirm, 'as certain States have done, that the
manufacture,possessionand testingof nuclearweaponsimplies the recognitionby the
international communityof the legality of the use of nuclear weaponsin an armed

" Cf KalinowskiG. Etdes delogiquedéo~lriqur(1952 1969). PaLGDJ, 1972, 267p. WHOISolomonIslands'FunhrrWnttenObsewations:Pan II1 (SubstantiLegalIssues)

wnflict. It is a unilateral and mistaken presumption because it disregards these

resolutionsandpretendsto fonn an opiniojuris whichthese resolutions refute.

(c) A blurredvisionofrealify

To claim that it does not make sense to tolerate the manufacture,possession and ..
4.61
testingof nuclear weaponsif they cannotbe usedin an armed conflictis based on a
misconceivedsenseof reality.Historicaily,nuclearweaponshavebeendeveloped and
manufacturedwithoutany questioningon the matterof the legalityof their use. This
is particularlyso for the early years of their development.This questionwas posed
by the international communityfor the first tirne at the 16th Session of the UN
General Assembly(in 1961), where the vast majorityof States concludedin Res.

1653(XVI)that the use ofnuclearweaponswas illegal under existinginternational
law. In fact, the UN hasabstainedfromdeclaringan analogous condemnation on the
manufacture,possessionand testingof nuclearweapons. These differentaspectsof
nuclearweaponry haveonly led toconventional lawmaking.

4.62 1s there an inherent logic to proclaiming the prohibition on the use of nuclear

weaponsin an armed conflict, whilst regulating theirmanufacture,possession and
testing?The last 35years have showna posteriorithat the politicalbeliefs of the
internationalcommunitywith regard to nuclearweapons - acceptingtheir limited
possessionbut refusing to validate their use- is not illogical. The international
community has,in fact, proven itsabilityto makepossible the coexistence of a law
on nucleardissuasionwitha lawon the legalityof the useof nuclearweapons.This

legalcontradiction reflectsapoliticalrealitywhichis more complexthan mightfirst
appear.

4.63 To a certain extent, States have, in effect, accepted thedissuasionargument, even
thoughmanyrightly deplorethehugeinvestmentswhichhavebeen made withrespect
to the nucleararms race and whichcould have beenput to better use elsewhere. In

anyevent, supportersof thenucleararms race havereasonto believethatdissuasion
has permitted the preservation of peace betweenthe niiclear Powers and that this
alonejustifies the legalityof dissuasion.Onthe otherhand, a vast majontyof States
consider that, if the maintenanceof the peace justifies dissuasion,nothing in
internationallawcanjustify the use ofnuclearweapons, thatis to say theapplicable
international humanitarianlaw. In otherwords, the international communitmy ightbe

readytopaya pnce for onebut nottheother.Theseare twodifferentpoliticai values
which internationallaw has integrated, and history shows their coexistence is not
inherently illogical.

4.64 In fact,dissuasionmakessenseonly whereits failurewoulddefinitelyleadto theuse
of nuclearweapons.ltwouldbe incomprehensibleto imagine that Stateshad wanted
to create a systernof rulesbased on "dissuasionor use" whichin some cases would

definitelylead to the violationof the niles prohibitinguse. Therefore the onlyway WHOlSolomon Islands' Further Written Ohservations: Part III (Substantive Legal Issues)

to avoidthislegalincompatibilitywouldbe to saythat dissuasionimpliesthelegality
of use. This objection is not conclusive:in reality, the useof nuclear weaponsis not

as absolute as one might betempted to believe. Itwill depend on the failure of
dissuasionand the outbreakof an armed conflictwhich would undoubtedlyhave to
be on a largescale involvinga nuclearpowerStateagainstoneor more othernuclear
or non-nuclearpower States.Even in this hypotheticalsituation, recourseto nuclear

weaponsis far from certainandwoulddependon variousfactors. In otherwords, the
failureof dissuasionis a nsk, and the outcomeof this risk leads merely to another
risk. There is no guarantee of one or the other. Consequently, there is nothing
illogicalin elabonting a lawbasedon certain eventualities.There is nothingillogical

in notingthat the international community is ready toassume the risk of a violation
of law - the failure of dissuasionand the recourse to nuclear weapons - without
accepting tolegalisethe occurrenceof the finalnsk. This sortof hiatusbetweenthe
permitted mle - the nght of dissuasion - andthe prohibitivenile - theprohibition

on the use of nuclear weapons - is not exceptional in State pnctice. As one
wmmentator has stated:

"Ladoctrinejuridique a tendance Baccepter la fiction que las normes d'un systemejuridique sont
établiespiaun 'Idgislateur rationnel' et que 'selon la volontédu législateur'il faut éliminerla
possibilité d'une contradiction quelentre lesorines du systèine.On acceptedonc les règles
d'interprdtation des dispositions ligales qui obligent ii refuser toute interprétationqui admenrait
des normes contradictoires dans le système. Maismalgri cela, il est paàffait clair que
les Iigislaleurs réels 6wblissent des dispositions qui contiennent des nonnes évidemment
contradictoires ou deses dont les cons2quences. conforiniàndes théorèmesindubitables
de la logique des normes ou de la logique diontique, sont contradictoires.'"

For nuclear weaponsthe internationalcommunitythusprefers to toleraterather than
prohibitthe manufactureof weaponswhichare not in actual fact legally permitted to

be used.

(2) The claim that treaties nhich cal1for "denuclearised zones" in some parts

of the world imply the right to use nuclear weapons in an armed conflict

4.65 Accordingto France:

"..] le traitésusviséde 1967sur l'espace extra-atinospI...de mêineque le traitésur la
ddnucléarisationdu fond des iners et des ocGans,qui interdisent le placement d'armes nucl6aires
dans cenainsespaces dGterininis. et ceci pour einpécherl'utilisation de ces armes dans les espaces
encause. établissen conrmno I'dventualiti de prdsence et d'cnyloi de ces armes en d'autres
lieux.' (France, p.para. 28) (emphasis added).

Y
Ziembiiski. Z., 'Conditions préliminaires de l'application de la logique déontique dans les
raisornements juridiques',Eiudes de logiquejuridiqucs,vol. IV. puhl. by Ch. Perelman. Bnisscls.
Bruylant.1970, p.120. WOISolomon Islands' FurthrrWrittenObservations:PaII(SubstantiveLrgal Issu-)

In other words,if the deploymentof nuclearweaponsis prohibited incertain areas,
theycantherefore bedeployedelsewhere,and where they can be deployedthey can
be used.

4.66 This reasoningis analogous tothat consideredabove (supra paras. 4.56-4.64): it is
limitedby

- the absence of logic: there is no link between the rule prohibiting the
deploymentof nuclear weaponsin certain zonesand the suggestion thatthere

is a rule permitting the use of these weapons in the locality where their
deploymentis authorised (supra para. 4.58);

- the unilateraiandmistakeninterpretationof theapplicablelaw:simplybecause
nuclear weapon States accept not to deploy them in certain areas, '.the
internationalcommunityisassumedto haveacceptedthattheseweaponscould
legally be used elsewhere althoughthere is a clear opposition to thisby a

majority of States as reflectedin UN General Assemblyresolutions (supra
paras. 4.59-4.60);

- a blurred and simplisticvision ofreality: the prohibitionon the deployment
of nuclear weaponsin certain areas does not imply that they can be used
elsewhere;the aim wasto limit the nsks of violating the prohibitionon their
use; where their deployment is not prohibited, the position is one of

coexistencebetweenthe right to possessand deploynuclear weaponswitha
lawon the prohibitionof their use,a.systemwhichreflectsthe complexityof
international relationsin this fi(supra para. 4.61-4.64).

4.67 In otherwords, as with the manufacture,possessionand testingof nuclearweapons,
theirdeployment doesnotimplya nght to usethemin areaswhere suchdeployment
is not prohibited.

(3) The claim that the unilateral declaration by States on treaties limitingthe
possessionor deployment of nuclear weapons by which they reserve the
right to use nuclear weapons in the event of an armed conflict implies
their right to be used

4.68 In theirwrittenobservations,theUnitedStatesrecallsthedeclarationsmadeby them
@p. 22-23), the United Kingdomand France in 1978, by China in 1982 and by
Russiain 1993,in which theseStatesaffirmthat theywouldnot usenuclearweapons
unless they or their allieswere attacked. The United States submission makes the
following conclusion:

'Althoughthesesiiiteineiitsdifferinsoine respects,lheyhavecertainimfeanires.mon
First,noneacknowledgesanygeneralprohibitionon lheuse r.fnuclearweapons;on thecontrary
eachclearly reservesthe 10use nuclearweaponsin some circumslances.Second. limils on WHOlSolomon Islands' Further Written Observations: Pan III (Substantive Lefal Issues)

.theuseof nuclear weapons are sbteasa matter of national policy. not legal obligation. Third.
Limiu are offered only with respect to States that have accepted the obligations of the Non-
Proliferation Treaty (or similar obligations). thus indicating that there are no comparable
constrainü on the use of nuclcar weapons against States generally.

Likewise, at the time iuratification of Additional Prot1candIl toTheTlatelolco Trtaty.
the United States made a formal statement of understandings and declarations. including a
statement that effectively reserved its ri& touse nuclear weapons against one of the Conuacting
Parties in the event of 'an armed attack by a Conuacting Party. in wwasb assisted by a
nuclear-wcapon Stat...'Similar statemcnu wcre made by the United Kingdom and the Soviet
Union. Francestated that nolbing in the Protocol could present an obstacle to 'the fullexcrcise
of the ri@ of selfdefense confirmed by M51 of thUN Charter'.'(UnitedStates. p23-24,
see also United Kingdom, pp68-72.paras 10-13).

4.69 As before (supra paras. 4.61-4.64), such reasoning is based on a rnisconceived
perception of the applicable law. These States are concluding from their own
declarations or reservations the existenceof a law which binds the entire international

community. They are suggesting that the international community would have
remained silent, would not have protested and would have confirmed the nght of
these States to use nuclear weapons in self-defence. This sort of reasoning is

unilateral and mistaken as it disregards the position of the majonty of States which
have condemned theuse of nuclear weapons.

4.70 The United States also stated that:

"I..the Permanent Meinbers of the Security Counçil I...] would no1have borne the expense and
effort of acquiringese [nuclrxrl weapons if they believed that the use of nuclear weapons was
generally prohibited.

[...] The variety and disparity of views expressed by Swtes demonstrates that there is no generally-
accepted prohibition on the use of nuclear we."o(United States. p21-22).

These forms of reasoning prove nothing as they are easily reversible; contrary
theories could apply with the same apparent logic. On the one hand, if the majonty
of States do not possess nuclear weapons itis because thiy consider their use illegal;

on the other hand the variety and diversity of opinions expressed by States suggests
that there is no agreed general authorization on the use of nuclear weapons.

4.71 Just as a reminder, the fact that certain States recognise the nght to use nuclear
weapons in self-defence does not mean that theyare able to rnodifythe law of armed
conflicts in their mutual relations alone giving themselves the nght to annihilate each
other or third States. Solomon Islands refers to its earlier observations @p 71-74,

paras 3.85-3.91) with respect to what has been saidon the right of two or more States
to modify inrerse the niles applicable to the entire international community.

(4) The claim that the use of nuclear weapons iscompatible with international
humanitarian lan WHOISolomon Islands' Further Written Observations: Part III (Substantive Legal Issues)

4.72 Stateswhichsupport thelegalityof nuclearweaponsrecognisethat the international

humanitarian lawof armed conflicts applies to the use ofnuclear weapons. The
UnitedStatessubmissionStates:

'The United States has long taken the position that fundamentnl principles of the internalional

humanitarian law of armed conflict would apply tothe use of nuclear weapoos aasother
means and methods of warfare.'-(sealm-Netherlands, pp. 13-14. para. 39. Germany, p. 3:
United Kingdom, p. 81 para. 38).

It has been shownthat the purposeof the lawof armedconflictswas toprohibitany

useof nuclear weapons .whichaffectshumanbeings.Stateswhichsupport thelegality
of the use of nuclear weapons seekto justify their position by, on the one hand,
invokingthe issueof self-defence(a), and on the other hand,by attemptingtolimit

in variouswaystheapplicationof ihelaw of armedconflicts to nuclearweapons 0).

me claim tharself-defenccjustifies the use of nuclcar weaponsduring an
(a)
armcd conzict

4.73 Accordingto the UnitedKingdom,

'The use of nuclear weapons by one Sfate against another would amount to a violation of tbe
prohibition on the use of force in Art. 2(4U.N. Charter unless that State couldjustiiy ils
reaction by reference Io the right of selfdI...It has, however. been argued that the use
of nuclear weapons could notinply with the requireinent that ineasures taken in wlfdcfence
must be necessary and proportionaie Io the danger they are designed to ineet. This view is baud
upon the thesis that the effecu of any use of nuclrar weapons would he so serious that it could
no1constinite a necessary and proportionate mei...].
It has never beeo denied that recourse to nuclear weapons would be a step of the ulmost gravity
and only one to be taken in a case of the greatest l...]Yet it is not difficult to envisage
circumsiances in which a Smte which is the victiin of agresscan protect itsclf only by

resoning to the use. or threatened use. of nuclear weapons. That would panbethe cau
where the aggressor iwlf einployed nuclear weapons Io further ils attack. since even a State wiih
a considerable superiority in conventional forces would be IObe overwhelmed in nich
circutnsiances. It could aiso be the case. however. where a State sustains a massive conventional
atmck which il has no prospect of successfully resisting unless it resons Io nucToar weapons.
deny the victim of aggression the right Io use the only weapons which inight Sabeto would
make a mockery of the inherent right of selfdefence.' (United Kingdom, pp. n-22-24;ras
seealso Nethcrlands, p. 13. para. 38; Germnny. p.4; France. pp. î3-24. para. 21 and United
States, p. 25).

This typeof argumentattemptstouseself-defenceas ajustificationfor theuse ofany

sort of weaponor methodof war; the terms "nuclearweapons"couldjust as easily
bereplacedby "chemical"or "biological"weaponswithoutprejudicingthis reasoning.
Ithas never been suggestedthat chemical weapons could be used in seifdefence.

Why different reasoning should be applied to nuclear weaponsis not explained.
SolomonIslandswill notexpanathisargumentwhichhasalreadybeenreferredto in WHOlSolomonIslands'FurtherWritten Observations:partIII(SubslaniiveLegal Issues)

its WrittenObservations(p. 64, para. 3.73) and whichconfusesthe jus ad or conrra

bellm withjus in bcllo (see Nauru, p. 29).

4.74 This legalityof the use of nuclear weaponsis examinedby the UnitedKingdomand

othersin termsof the UN Charter. SolomonIslandswolild ask: what use is there in
justifyingbehaviourbyreferenceto onecategoryof ruleswherethatbehaviourwould
violateanother categoryof rules? Sucha distinctionhas no purpose as, whether in :
thecase of aggressionor self-defence, thelawof anned conflictswillapply.The law

of armed conflicts does not differentiatebetween the legitimacyof the objectives
pursued: what is at issue is the principle of the equalityof belligerentsduring war
which is unanimously recognised in doctrine,s9explicitiy reaffirmed in Geneva

Protocol 1 (5th preambular paragraphand Art. 96 para. 3,(c)) and implicitly
supportedby the 1949GenevaConventions(commonAn. 1)andAdditionalProtocol
1(Art. 1(1))wheretheseinstrumentsenvisagetherespectof their obligations"inali
circum~tances".~S ~elf-defenceauthonses a State 10 use force against an aggressor

State, but there are limitsas to how this rightcanbe exercised: such use offorce is
subject toand must remain withinthe relevant laws.Where that recourseto the use
of nuclearweapons violateslawsapplicable to armed conflicts,theuse offorcewould

be illegal, evenin the caseof self-defence,and evenagainsta Statewhichhas itself
used nuclear weapons.Two illegalitiesdo not makea right.

4.75 One variant on the argumentbased on self-defence putsfonvard the view thatthe

WHOConstitutiondoesnotseekto lirniself-defence. According to the Netherlands:

"[..]theimpliedgrneralobligationoWHO MeinberSuies to contribuleto theachievemeotof
theprincipalobjectiveofeWHO andtoCO-operatieo thateffectciiniiotencroachupontheright
of theindividualorcollectiveself-deknceIowhichSwiesareentitledArt.SI ofthe Charter
of theU.N.' (Netherlands.p15.para. 43see also, UnitedKingdoip. 39.Para.16;United
States, p.32).

4.76 Whilst it is clear that the WHO Constitutionis not incompatiblewith the inherent
right of self-defence,it is also clear that the useof nuclear weaponsis incompatible
with the WHO Constitutionas has alreadybeen shownby the SolomonIslands@p.

41-43, paras. 3.32-3.33).

) Theclaim[hotcerroinrules of rhelow of armedconflicrswouldnorprohibir
rhcuseof nuclearweopons

'D
On this pnnciplSIX Meyrowitz. H.. Le pritrcipede l'égades belligérantsdevamiedroit& h
guerre. Paris. PUlone. 1970. p. 418; lnstilui de Droit International,Brusels sessioAnn.963,
I.D.I.1963. vol. 50,TII.p.368; Gasser.H,-P.."Lz droitinternationalhumanitaire'.in HaH.,
Humaniripour tous, Berne, Haupt-lnst:H. Dunant. 1993, p. 512; for an examplcriselaw, sŒ
Nur.. U.S MilitaryTrihunal, 19Fehmary 1948. List,et al {HnsrngrsTrA.D.. 1948. 637.

Commentairedes ProtocolesaddiriotrtreLdru8ju1977au Cotivenriotude Getrèwdu 12 mPI 1949,
ed.by Y. Sandoz, Chr. Swinarskand B. Zimmennan,Geneva, 1.C.R.C -Nijhoff. 1986. p. 37. WHOiSolomon Islands' Further Written ObservationsPar( III (Substantive Lrgal Issues)

4.77 Ithas been argued that neither the limitationson the methodsand meansof warfare
nor the Martens Clauseare obstacles to theuse ofnuclear weaponsbecause they are

not autonomous and they do not relate to a specific prohibition. According to the
UnitedKingdom, the pnnciple of the limitationon the methodsand meansof warfare

'cannot stand alone as a prohibition of a particular category of weapons. Il is necessary to look
oufside the principle in ordIo determine what limitations are imposed by customary or
conventionai law upon theice of methods and means of warfa..l1
The terms of the Martens Clause themselves make il necessary to point Io a mlc of customary
international law wbich might outlawthe use of nuclear weapons.' (United Kingdom. pp. 83-84,
paras 31-32)

4.78 Even ifthe limitson the methodsand meansof warfare makesense only by reference
to specific rules or limitations, it is not correct to state that no such rules or
limitationsdo exist. In particular theyarise from the prohibitionon the use of certain
weaponswhichapply by reason oftheir effects(supra paras. 4.8-4.10). The Martens
Clause does not refer to a specific rule of international law because its purpose is

precisely to fiIl gaps in the law of armed conflicts. Consequently, to determine
whether there is no rule prohibiting the use of nuclear weapons (quod non), the
question which needs to be asked is whether in any particular case their use is or is
not compatible with "humanitarianlaws and thedictates of the public conscience".

In cnsu, the question hasalreadybeen answered, sincethere are rules prohibiting the
use ofnuclearweaponsand the Martens Clause actsas a standardfor interpretingand
applyingthese rules (cfr. SoolomnIslands, p. 60, para. 3.64).

4.79 It has also been suggestedthat the prohibitionon reprisals does not apply in respect
of nuclear weapons. The United Kingdomnotes thatif the 1977Geneva Protocol 1
prohibits repnsals against thecivilianpopulation,civilianproperty, cultural hentage,
etc. then

'these provisions are widely regarde* asinnovative and thus asinapplicable to the use of nuclear
wwpons (KALSHOVEN. 'Arins. Arinainents and International Law', 191 Rrc. des Cours (1985-
li) ,. 283). (United Kingdom, p. 94. para. 47; see also United States. p. 31).

In other words, it is being suggested that in relation to nuclear weapons repnsals
whichare directed againstciviliansand theirpropeny are legaldespitethe prohibition
in the Geneva Protocol 1 on al1forms of repnsals.

4.80 SolomonIslands has previously addressed thisargument (p. 65, para. 3.75; see also
Sweden, p. 3; Malaysia,p. 8). Itsees no need to further elaborate on the illegality
of reprisals directedat thecivilianpopulation andother targets in anv circumstances:
the essence of humanitarianlaw condemnssuch actions. As the Commcnraryto the

Addirional Prorocols makes clear with regards to Art. 1 (1) of the 1977 Geneva
Protocol 1,

'The prohibition against invokinf reciprocity in order Io shirk the obligations of humanitmian law
is absolute. This applirs irrespeciive of the violation allegedly committed by the adversary. Itdas WHOlSolomon Islands' Further Written Observations: Part III (Substantive Legal Issues)

not allow the suspension of the application of the law either in part or ara whole, even if this is
aimed at obtajning reparations from the adversary or a reNm to a respect forhim."law from

Even ifthe prohibitionon repnsals against the civilian populationis a new rule of
internationallaw - quod non, as is statedin theabovementioned Commcmary hen

'theMarten slause prevents the assumption that anything which is no1explicitly prohibited by
the relevantreaties is therefore permi~ed.~

4.81 Finally, if hard evidenceis needed in supportof the view that repnsals against the
civilian populationor their property are prohibited,referenceshouldbe made to the

SecurityCouncilresolutionscondemning Iraq and Iran dunng their conflict,where
each belligerentbombarded the enemy'scities in a chain of reprisai and counter-
reprisal. Accordingto Secunty Council resolution 540 of 31 October 1983, .

'Cîndcnins al1 violations of international humanitarian law. in particular, the provisions of the
Geneva Conventions of 1949 inl1 their aspects. and calls for the iininediate cessation of al1
military operations againsr civilian rargers. including city and resident(emphasis*
added).

Thisexampleis evenmoresignificantif accountis takenof the factthatIraqandIran

both invokedthe doctrine of repnsals to justify their actions, and thatneither is a
partyto GenevaProtocol 1. They wereboth neverthelessroundlycondemnedby the
Secunty Council.If the repnsals directed against thecivilians had been legal, the
Secunty Council could not have adopted the position it did. In any event, the

I.C.R.C. was of the opinionthat these actions, even under guise of repnsals, were
without a doubt illegal. In their statementto the two belligerentStates on 7 May
1983,the 1.C.R.C stated:

'Les forces armées irakiennes ont boinbardd de facon indiscriininée el systématique des
agglomérations- villes et vill-geentrainant par là des pertes au srin de la population civile
et des destructionssidirables de biens civils. Ces actes sont d'autant plus inadmissibles, qu'ils
furent parfois annoncéscoinine rrprJsnilles avant d'dtre perpdtrés.
Des villes irakiennes ont dgalidnla cible de tirs indiscriininis des forces armdes iraniennes.
De tels actesnt conrrairflI'rssrnce nu'nirdu droir inrernarional tiunmniraire applicable dans
les conflits armés.qui rrliose sur la distaction entre civils et inilitaires.'" (einphasis added)

" Ibid ..,39.

See also. SIRes. 582 of 24 Fehmary 1986. para. 2; SIRes. 598 of 20 july 1987. 4th preambular
~aragnph.

"
Citedby Sandoz. Y., "Appel du C.I.C.R. dans le cadre du conflit entre l'Irak et A.F.D.I.,
1983, p.173. WHOlSolornonIslandF surtherWrittenObservations:PariIII(SubstantiveLIssus)

It is therefore difficult to reconcilethe above exampleswith the idea that nuclear
weaponsare legalwhenusedin the contextof reprisaisagainsta civilianpopulation.

4.82 In summary, none of the argumentsinvoked by the proponentsof the legality of
nuclear weaponsjustifies their positionF.urther to SolomonIslandsoriginalWritten

Observations:

- the use ofnuclearweaponswould primafacie be illegalby reason of:

- their inevitablelethaleffects @ara.4.5);

- the unnecessarysufferingtheycause @aras. 4.6-4.7);

- their indiscriminateeffects (paras4.8-4.10);

- their resernblanceto chemicaland poisonweapons @aras. 4.13-4.23);

-
their abilityto provoke theoutbreakof a general nuclearwar @ara. 4.11);

- the absenceof a conventionalrule specificallyprohibitingthe use of nuclear
weaponsdoes not imply the absenceof a génericprohibition (paras. 4.25-
4.53);

- internationallaw does not require the prohibitionon the use of a particular
weaponto be thesubjectof a specificrule (paras. 4.27-4.36);

-
the lackof agreementbetweenStateson the issueof whetherthe conventional
lawof armedconflicts prohibitstheuseof nuclearweapons doesnotimplythe
absenceof sucha prohibition(para. 4.37);

- it has notbeen shownthat the1977GenevaProtocol 1doesnot coverthe use
of nuclearweapons(para. 4.44);

- the use ofnuclear weaponsamountsto genocide where theresult of their use
is the destructionof a populationcharacterisedby a national,racial, ethnicor
religious identity(paras..45-4.48);

-
the use of nuclearweaponscan violatethe neutralityand temtorial integrity
of neutral Stateswhere any of the effectsof the weapons reachthe temtory
of the neutralState (paras4.49-4.53); WHOlSalomonIslands'FurtherWnttm Ohsewations:PaII1(SubstantiveLegalIssucs)

- the right topossess, deploy and test nuclear weaponsby certain Statesdws

not imply a nght to use them in an armed conflict beaing in mind the
prohibitionswhichexist (paras.4.56-4.64)

- the fact that certainareas of the world have been "denuclearised"dws not
imply that nuclearweapons can be used in other areas (paras. 4.65-4.67);

- the factthat certain Stateshave madestatementsreserving their right to use
nuclearweaponsin some situationsdoesnot imply thatthey havesucha nght

bearing in mind the opposite opinion expresd by the majonty of the
international community(paras. 4.68-4.71);and

- self-defenceand the doctrineof repnsals do notjustify violationsof tlaw
of armed conflictsand therefore do notjustify the use of nuclear weqns
(paras. 4.72-4.81).

@) Human Rights and the Environment

4.83 In its Written ObservationsSolomonIslands considered the legalityof the use of
nuclear weaponsby referenceto thoserulesof internationallawwhichprotecthuman
health @p. 85-6, para. 4.23), fundamentalhuman nghts @p. 86-7, para. 4.24) and

the environment (pp.87-91, paras. 4.25-4.31). This was felt to be particularly
appropnate because of the questionposed by the WHO, which refers expressly to
humanhealthandtheenvironment,andbecauseSolomonIslandsconsiderstheseniles
to be relevantto the questionposed by the WHO.

4.84 It is noteworthy that vefew of the proponentsof the legalityof the use ofnuclear
weaponshave bothered to address the broader internationallaw of human health,
human nghts and environmental protection.Those that do so apparentlyconsider

them to be irrelevant for one reason or another in respect of the use of nuclear
weapons, which is perhaps surprisinggiven their cornmitmentto these subjectin
other fora. Germany, France and Russia are silent about both human nghts and
environmentalrules. The United Kingdomand the United States are silent about
humannghts instruments,dismissiveof theapplicabilityof environmentalobligations
forming part ofjus in bcllo, and silent about al1environmentalobligationsarising
undergeneralinternationallawi Only theNetherlands amongstproponentsof legality

wnsider the humanrights instruments,and then only to dismiss their applicability.
By contrast, manyof the proponentsof the illegalityof the use of nuclear weapons
devoteattention tothese rules.

(a) Human righrsandhuman hcalth

4.85 SolomonIslandsviewson therelevanceandapplicabilityof humanrightsinsrruments

are sharedby manyother States.In particular, supportis foundfor the applicability WHOlSolomonIslands'FuriherWrittenOhszrvations:Pan(SubstantiLrgal Issues)

of the right tolifasreflectedin Article 6of theInternational Covenaon Civiland
Political Rightsand other instruments(see Costa Rica, para.5; Mexico, pp. 8-9,
paras 30-1; Malaysia,pp. 12-13; andNauru, pp. 48-51).

4.86 The United Kingdom is silent about human rights, and considers that "the only

documentswhich do treat nuclear weapons as if they were unlawfulper se are a
numberof resolutionsof theUnitedNations GeneralAssembly" @. 73, para. 15).In
fact,as other Stateshaveindicated, andasimplicitlyrecognisedby the Netherlands
(see inifa) this is not the case: in 1984 the Human Rights Committeeadopted a
consensus text on the applicabilityof Article 6 of the ICCPR (Right toLife) to

nuclear weapons,statinginferalia that the

'useof nuclearweapons shouldbe prohibitedandrasagcrimeagainsth~manity'.~

SolomonIslands fully endorses this view, which is directly relevant to tWHO
request (on issues of competence, proprietyand substance). It is particularly

noteworthythat the General Comment was adopted witho ditsent,and that eminent
jurists who were membersof the Committeein 1984 and supported the adoption
includedRoger Errera (France), SirVincentEvans (United Kingdom)and Anatoly
Movchan(USSR).

4.87 Withoutdirectlymentioningthe General Comment the Netherlandsdisagreeswithits

conclusions. It arguesthatthe useof nuclearweaponscannotbe consideredin itself
to be a violationof the right to life, as enshrinedin inrcralia Article 6 of the 1966
ICCPR,becauseArticle6 doesnotcreate "anabsolutenght to life". Refemng to the
ICCPR travauxprépararoires,Netherlands considersthat deathresulting from "the
performanceof lawfulactsof war" wouldnotbearbitraryandhencenotunlawful (p.

12,para. 34).Twopointsneedto be made. First, Netherlands implicitlyacceptsthe
relevanceandapplicabilityof humanrightsinstrumentstotheuse ofnuclearweapons.
Second, Netherlands appearsto accept that death from anunlawJUIuse of nuclear
weaponswouldviolateArticle6. SolomonIslandsagreeswithboththeseconclusions,
and considersfurther that sinceit is inconceivablethat anyuse ofnuclear weapons
wouldbe lawfulit followsthatany useof nuclear weapons wouldalsoviolateArticle

6 and, in the words of theHuman Rights Committee, constitutea "crime against
humanity".

4.88 ManyStatesalsoshare SolomonIslandsviewson the interpretationandapplicability

of thejusin bcllo rules conceming the environment, awell as the applicabilityof
general international environmentlaw to the useof nuclearweapons.

" GeneralComment14/23 of 2 Novemher 1984[RiphtIo LifcandNuclearWeapns], reproinced
M. Nowak, UN Covenanton Civil andPoliticalRirhtc:CCPRCommentary.1993. p. 861.

65 WHOISolomonIslands'FurthrrWrittrnObservations:PartIII(Substantivekgai Issuzs)

4.89 Ontheapplicabilityofgeneral internationalenvironmentlaw, Sweden,forexample,

considersthat "there are impedimentsto theuse ofweaponswhich cause extensive,
longtermand serious damage to the environment",and cites the 1972Stockholm
Declaration@. 5; seealso Democratic People's Republiocf Korea, p. 1; Nauru, p.
39; Mexico pp. 10-11). Other States cite to the 1992 Conventionon Biological
Diversiîy(Sn Lanka ,. 3; Democratic People's Republicf Korea, p. 1; Nauru, p.
44),the 1992UN FrameworkConventionon Climate Change (Mexico,p.10, para.
38; SriLanka p,.3;Nauru, p. 43)andthe 1992Rio Declaration on Environmentand

Development(Sri Lanka p,. 3; Nauru, p. 45). Samoainvokesthe general obligation
to prevent widespread,long term andseveredamageto the environment (p.3).

4.90 In sharp contrast proponents of the legality of the use of nuclear weaponsare
conspicuouslysilent on these and other internationalinstruments. This silenceis
particularlysurprisinggiventhatthesesamecountrieshaverecognisedin thereceritly
adopted Conventionon Nuclear Safetythevery realnsks of damagewhichradiation

poses for then~ironment.~~

4.91 There is alsoapparentlya sharpdifferenceof view on the applicabilityof thejin
bel10 rules relating to environmental protection.Various countnes join Solomon
Islands in expressing the view that the use of nuclear weaponswould violate the
ENMOD Conventionand the relevantprovisions of the 1977 Additional Geneva
Protocol (Mexico, pp. 9-1,paras. 35-40;Malaysia,p. 10;Iran, p. 1;Nauru, p. 36).

4.92 On the other hand the United Kingdom(p. 91, para. 43) and the UnitedStates@p.
30-1)wnsider thatthe ENMOD Convention is unlikelyto beapplicableto mostcases
in which nuclear weaponsmightbe used, sincethe intentof the users will not be to
achieve "deliberatemanipulation"ofnaturalprocesses withinthe meaningof Article
IIof thatConvention.Infact, the ENMOD Convention approachhasbeensupersedeci

by general internationallaw, whichisreflectedin recentstatepracticeandcustomary
law, and which establishesa stricter obligationnot to cause environmentaldamage
duringwarfare. Thisis confirmedby the recentdisputebetweenIraqand Kuwait and
thepractice of the Secunty Council in relation thereto. Thus, whilst there was no
evidencethatIraqintendedto carryout "deliberatemanipulation"withinthe meaning
of the ENMOD Convention in its interferencewith Kuwaitioilfields, the Security
Council was neverthelessquick to findIraq "liable under internationallaw f...

environmentaldamage"as a result of its unlawfulinvasionof Kuwak6' SinceIraq
was not a party to the ENMOD Convention or the 1977Geneva Additional Protocol
1, the SecurityCouncil'sfindingcan only have been based on general international
law, as it has evolvedfollowingthe adoptionof the two 1977conventions.And, as
Solomon Islands indicated in its Written Observations, these rules of general

1994Convrntionon NuclearSafrty.przamble.

" UN Security CouncilResolution687I1991. UN Doc. SIRES1687(1991). WHO/Solomon Islands' FurtherWritten ObservationPartIII(SubstantivLegal Issuzs)

internationallaw apply in timesof war as in times of peace (Written Observations,

paras. 4.34-4.45).

4.93 For these reasons SolomonIslands alsodisagreeswith the United States' view that
the rule in 1977 Additional Protocol 1 (which is broader than the ENMOD

Convention) doesnotapplyto [email protected]).Asreflectedin customary
law thatrule is applicable to nuclearweapons, as it is by operationof treaty law for
parties to the Protocol(on the applicabilityof the 1977AdditionalProtocol 1, see
SolomonIslandsWrittenObservations,paras. 3.11 - 3.24).

(El Jus cogens

4.94 "If thereis a place wheredoctrinerecognisesthatthere are rulesof jus cogenswhich
are not controversial,it is in respectof the prohibitionof the threator use of force
and in the prohibition againstviolationof the basic pnnciples of humanitarianlaw,
and against thecommissionof a crimeagainst humanity."The normativeand legal

force of these prohibitionshas been recognisedin the conceptof jus cogenr. The
apocalypticimpactof nuclearweaponsonhumanlife, theenvironment,andthepublic
orderjustifies the conclusion thattheir use would prima facic violatejus cogens.

4.95 This Court has referred on a number of occasions to theexistence of peremptory
normsof internationallaw thatare of a highernormative value,and thatas such are
applicableto al1States, and allow no der~gation.~' Althoughthe Court has not yet

had occasionto directly apply such a norm. or to provideprecise guidanceon the
scopeof jus cogenr norms. ithas acknowledgedand relied upon their existence to
reach its decisions.The Court has,in this context, referred to specific norms that
have also been recognisedas peremptoryby treaty law in the practice of States,69

resolutionsof the UnitedNations General Assemblyi,n thework ofthe International
Law Commi~sion,'~ and in the writingsof highlyqualifiedpublicist~.'~

Milirary andParaniilitaryAniiiries irint&againsrNicaragua(Nica1,UniredSraresofAmcrim),
Merirs.1986ICI 14; Advisoy Ol~itiinthe Gptiociderare (Reservariotriro rheConventionon the
Prnrnrion atid Punishmentof rhc Crirtir of Cenoc1951, IU 15;BarcelotioTractionandLight
(secondphase),ICI Reports 1970.

IW See e.g.,Restatementof ForeignRelations Lawofthe United States (ReviseTent.Draft No.6.
vo1.2 1985.paragraph702 comment 1.

a See e.g.2 Yearbookof rheIt~~crtt~iriiiliwsConimissi1966. pp.24748; ILC Report 1976on the
28th Sessionp.85.

71 See.e.g..Verdross,Forbid(1rtiTrenrir.~in IrirertLnw. 1937;Jimenezde Arachaga, 159 Rec.

des Cours 9, 978-1): BrownliePririri/)lrs of PublicI~i~~rnLalw. 512-515(4thcd.1990). WHOlSolomon Islands' Further Wntten Observations: Pan Il1(Substantive Legal Issues)

.96 The 1969 Vienna Conventiondefinesjus cogcnr as a perernptorynom of inter-
national law . .. acceptedand recognisedby the international cornmunity of States
as a wholeas a nom frorn which noderogationis perrnitted .. ."n. In the wntext
of theissuenowbeforetheCourt, itis essentialto clarifythat this provisionhasbeen

interpretedauthoritativelyto ailow"noquestionof requinng a nile to beacceptedand
recognised as perernptoryby ail States.

It wouldbe enough if a lar~ernaioriu did so; thatwould rneanthat if

one Statein isolationrefused to acceptthe perernptorycharacterof a
nile, or if that Statewas supportedby a very srnallnurnberof States,
the acceptanceand recognitionof theperernptorycharacterof the nile

by the internationalcornrnunity as a wholewould notbe affe~ted."~'

Whilethe draftersof the 1969 Vienna Convention chosenot to list specificexarnples
of jus cogens prohibitions, the decisions of the C~urt'~,State practice, and the

wriungs of highly qualifiedpublicists have identifieda number of noms that faii
uncontroversiallywithin the category of jus cogcnr. These norrns, each of which
would be violated by the use of nuc'iearweapons, include prohibitionsagainst

genocide7'and violationof basic hurnannghts.16

"
1969 Vienna Convention. Article 53.

Siatement of the Chairman of the Drafting Cornmittee of the in Vienna Conference on the Law of
Treaties. UriiredNariotuCorfi,r~~ionrheLn* ,f Trenries.196p.472 (emphasisaddul). In 1976.
the International Law Commission in ils repon reflectul on this tem 'as a whole' and said the
following: 'it certainly does not mw the requirement of the unanimous rcognition by al1members'.
ILC Report 1976.UN Doc. A131110.p.287.

7.
For example. the Court, in thBnrcelonnTrnrrion Caw. in the course of developing the doctrine
concerning obligatioergn ornric~recognisul that siates owe ceriain ohligations to the international
community as a whole. ohligations which al1 Siates can he held Io have a legal interest in their
protection. Toillustrate the types of ohligithad inmind. the Court set apari certain nom of
a higher normative character:

Such obligations denve. for example, in contemporary international law,
from the outlawing of acts of aggression. and of geascalso from the
pnnciples and niles concerning the basic nghts of the human person,
including protection from slavery and racialdiscrimination.

Barcelo~mTracriorioridLigh(second phase). 1U Reports 1970. ai 32.
"
ïhe Advisory Opinion in tGeaoci<l<C,ave.the Court affirmul that genocide was 'contrary to moral
law and to the spirit and aims of the Unitul Nations' and that the 'principles underlyirig the
Convention are provisions that are recognisul by civilisui nations as binding on Suites even without
aay conventional obligation.11U5 15. 28 May SiMlarly. in tProvisiottalMemuresCase. ludge
Lauterpacht said in his separate opinion'...the prohibition of genoc...has generallyka
mpted as having the status notanfordinary mle of international law. bjus cogenc.' Orcc
concerningApplicarionof theCoiiveiriortonrhePrcvetirt~idPunishmenrof rheCrimeof Grnocide WHOlSolomonIslands'FurtherWntten Ohsewations:PartII1(SubstantiveLegai Issues)

As has ben dernonstrated elsewhere in these observations,the use of nuclear
weaponsviolatesthese noms. It would, furtherrnoreb ,e appropriate, andentirely
justifiedfortheCourt,incontextof thisrequestforanAdvisoryOpinion, toconclude

thatprimafacie theuseof nuclearweapons would be violativo efjus cogens.

(üosninnt& Herzegovitiai,.Yug<~sl<ivaitaul Serbin atui Motrtctiegro),13 September1993, Furtber
Requests for the Indicationof ProvisionalMasures. parayraph100. SeparateJudgmentby Judge
Lauterpacht.

' See BarcelonaTraction,note45. WHO/Solomon Islands'FurthrWrittrnObservations:PartIV: (Suhmissions)

PART IV

SUBMISSIONS

In this context Solomon Islands submits again that the Court should anvAdvisory
5.1
Opinion which States:

(A) that the World Health Organization is competent to request an Advisory
Opinion fromthe International Court ofJustice on this question, and that
the Court is competent to and should give an ~dvisory Opinion on the
question submitted;

(B) that any use of a nuclear weapon by a State would violate its obligations
under international law as reflected in the rules of international law
concerning methods and means of warfare (jusin bello) and neutrality,
ALTERNATIVELY that the use of nuclear weapons must not violate
applicable rules of international law concerning methods and means of

warfare (jusinbello) and neutrality;

(C) that any use of a nuclear weapon by a State would violate its obligations
under international law as reflected in the rules of international law for
the protection of human health and the environment and fundamental
human rights, ALTERNATIVELY that the use of nuclear weapons mus1
not violate applicable rules of international law for the protection of

human health and the environment and fundamental human rights;

@) that any use of a nuclear weapon by a State would constitute a crime
against humanity, ALTERNATIVELY that the use of nuclear weapons in
violation of international law constitutes a crime against humanity;and

(E) that any use by a State of a nuclear weapon gives rise to its international
responsibility, ALTERNATIVELY that the violation by a State of its
obligations under international law relating to the use of nuclear weapons
gives rise to its international responsibility.

5.2 Solomon Islands wishes to take this opportunity to thank the Court for consideration

of its views, and to indicate its willingness to continue to assist the Court in
addressing the challenging task posed by the WHO'S request for this Advisory
Opinion. In this regard, Solomon Islands considers that it would be usefuanforal
hearing to be convened, during which tirnefurther viewsand clarifications of position
might usefully be made available to the Court.