Written Statementof the Governmentof the
UnitedStatesof America BEFORETHE
INTERNATIONALCOURT OF JUSTICE
The Hague
The Netherlands
Requestby the
World HealthOrganizationforan Advisory Opinionon the
Questionof theLegalityUnderInternationaLaw
and theWorld HealthOrganizationConstitutionof the
Use ofNuclearWeaponsby a State in
War or Other Armed-Conflict
WRITTENSTATEMENT
OF THE
GOVERNMENTOF THE UNITED STATESOF AMWCA
.. Conrad K.Harper
LegalAdviser
MichaelJ. Matheson
DeputyLegalAdviser
BruceC. Rashkow
AssistantLegalAdviser
Officeof the LegalAdviser
Departmentof State
Washington,D.C.
June 10, 19941. Introductioand Summary 1
II. The WHOis Not Competentto Request an
Opinion onthe kgality of thUse of NucleaWeapons
A. The Authorityof the WHOto Request an Opinionis Limited 3
B. The WHOLacksCompetenceto Requestthe Opinion 5
1. The Mandateof the WHO is to AssistStatesin
Enhancingthe Provisionof HealthServices 5
2. The WHOResolutionDoes Not Identify aBasis for Sucha
Requestin the WHOConstitution 7
3. The WHORequestRunsCounterto the Practiceof the
WHO andthe lnteruatiouaiCommunity 10
III. In the Exerciseof Iü Discretion,the Court Should Declineto
Issue an Opinion
IV. The Substanceof the QuestionPosed 16
A. Introduction -
B. There is No GeneralProhibitionon the ljse of Nuclear Weapons 16
1. CustomaryLaw 17
2. InternationalAgreements 17
-- a. Use of OtherWeapons 18
b. AgreemenrsRegulatingUse of
NuciearWeapons
c. Agreements RegularingManufacture,
Testingor Possession
d. Agreements dealingwithAccidenral
or UnauthorizedUse 21
3. Conduf tof States 21
4. ExpressedViewsof Stares 22 C. The Law of ArmedConflictDws Not ProhibittheUse of
NuclearWeapons
1. Making CivilianstheObjectof Attack
3. Proportionality
4. PoisonWeapons
5. 1925GenevaProtocol
6. 1977Protocol1
7. Unnecessary Suffering
8. EnvironmentaE lffects
9. Reprisals
D. TheWHOConstiwtion Does NotProhibitthe
Use of NuclearWeapons
E. Conclusion
V. Conclusion 1. INTRODUCTION AND SUMMARY
By resolurion WHA 46.40 of May 14, 1993, the World Health Organization
("WHO") has requesred an advisory opinion fmm the InternationalCoun of Justice on the
following question:
In view of the health and environmental effets, would the use
of nuclear weapons by a Srate inwar or other amed conflict be
a breach of its obIigationsunder intemationai law including the
WHO Constitution?
Upon receiving the request, the Coun decided that the WHO and its Member States are
likely to be able to furnish information on the question and by order of September 13. 1993,
fixed June 10, 1994 as the the limit within which wrinen sratementsrelating to the question
may be submined by the WHO and Member Srates in accordance with Article 66, paragraph
2 of the Statute of the Coun. The United States hereby submitsits sutement of views on
this request.' This sratementexamines the jurisdiction and discretion of the Coun to provide
the requested opinion, and provides views of the Unired States regarding the legal quesrion
presented to the Court. The legal question addresses issues relatingto the use of nuclear
weapons by a Sute in war or other amed conflict.
In the view of the United States. the Coun lacksjurisdiction to provide the requested
opinion because the WHO has not been aurhorized to request anopinion on the legalquestion
presented by the request. Were the Coun to determine thar ithas jurisdiction ro provide the
requested opinion. the United Statesbelieves that the Coun. in the exercise of the discretion
provided by Article 65, paragraph 1.of its Stature. should declineto provide an opinion.
The legal question presentedby the requesr does not address the functions and
responsibilities of the WHO. Rather. the question presented is vague andabstract.
addressing complex issues which are the subject of consideration arnong jnrerested States and
within other bodiesof the United Nations which have an expressmandate to address these
'The United Stares is a Member of rhe WHO and. as an original Member of the
United Nations, is apany to the Stanite of the Coun by vime of Article 93 of the United
Nations Charter. maners. Under the cimmsmms, a decisionby the Court in regardto the questionmot
provide any practicalguidanceto theWHO in the performanceof iu functions. Such a
decision,however. has the potentiaof underminingprogress aiready madeor beingmade on
thissensitivesubjectasa result of effom in other foraand, therefore, is connary to the
- interestsof the UnitedNationsOrg&tion.
For thesereasons, the UnitedStates urges the Court todeclinethe request by the
WHOto provide an opinion. Ln viewof the-possibilitythat the Courtmay decideto provide
an opinion, thisstatementalso addressesthe legalquestion.presentedby the request.
There is no generalprohibitioninconventional ornistomaryinternational law on the
use ofnuclear weapons. On the-contrary, numerousagreementsregulatingthe possessionor -
use ofnuclearweaponsand other statepracticedemonstratethat their use is not deemedto
be generallyunlawful. Moreover, nothing inthe body of internationalhumanitarianlaw of
armedconfiictindicatesthatnuclearweaponsare prohibiteci S. Finally, there is no
basis for concludingthat theuse of nuclearweaponswould violatethe obligationsof Me.~er
Statesunder the WHO Constitution.
In view of theirnponanceof the legal questionpresented,the United Statesrequests
rheoppomniry to providefurther cornmenüor observationsrelatingto that questionshould
the Court determineto respondto the request. II. THE WHO IS NOT COMPETENT TO REOUEST AN OPINION ON THE
-. LEGALITY OFTHE USE OF NUCLEAR WEAP ONS.
-
Article 65, paragraph 1, of the Statute of the Coun authorizes the Court to give an
advisory opinion:
. .-.-on any legal question at therequest of wbatever body may
be authorized by or in accordanwirh the Charter of the United
Nations to make such a request.
Article 96, paragraph 1, of the United NationsCharter provi&s that the General
Assembly or the Security Council may request the InternationalCourt of Justice tangive
.-
advisory.opinion on any legalquestions. Article 96, paragraph 2, provides that other organs
of the United Nations and specializedagencies, which may at any time beso authorized by
the General Assembly, may also request advisory opinionsof.theCourt on legal questions
arising within the scopeofheir activities. As the Coun has reco-gized, it hasjurisdiction to
provide an advisory opinionto a special~ed agency only to the extent authorized by the
General Assembly.' ~.
In 1947, the WHO was authorized by the General Assernblyto request advisory
opinions ofrbe Courton legal questions arising withinthe scope of its activities. in
accordance withAnicle 96, paragraph 2. of the Chaner, Article 76 of the Constirution of the
WHO and Article X, paragraph 2. of the Agreement between the UnitedNations and the
WHO.3
2Intemretation of PeaceTreaties With Bulearia. Hunearv and Romania. Advison!
Ouinion, I.C.J. Re~orü 1950, p. 70; seealsS. Rosenne. The Law and Practice of the
International Coun,..(Zd ed. 1985). pp. 660-61, 714, 726.
'G.A. Res. 124(II). (15 November 1947). U.N. GAOR, 2nd Sess., at 28, U.N. Doc.
Al.519. Article76 of the Consnaitionof theWH0 providts: .
Uponauthoritationby the GeneralAssembly of the United
Nations or upon authorization in accordancewith any agreement
between the Organization and.thc UnitedNations.the
Organizationmay request theInternational Courtof Justice for
an advisory opinionon any legal question arising within the
competenceof the Organization.'
-
-.
ArticleX, paragraph2. of the Agreementbetweenthe WHO and the United Nations
provides:
The GeneralAssemblyauthorizesthe WorldHealth
Organizationto request advisory opinions of the International -
Court of Justiceon legalquestions arising within the scopeof its
competence otherthan questionsconcerningthe mutual
relationshipsof theOrganizationand theUnitedNationsor
other specializedagencie~.~
In accordance withthe Charter, the Statureof the Courtand the authorizationof the
GeneralAssembly,the WHOmay not request anopinionon any legal question it chooses.
The legalquestionmust arise withinthe scopeof its ~ompetence,~ and must notconcem the
-. .
'Constitutionof the World HealthOrganization. 22 July 1946, 14 U.N.T.S. 185.
5AgreementBeween the United Nationsandthe World Health Organization,12
November 1948. 19 U.N.T.S. 193. The Agreementwas adoptedby the First World Health
Assemblyon July 10, 1948.
6Becausethe Agreementbenveenthe WHO andthe UnitedNations authorizes requests
for advisoryopinionson legal questionsarising "withinthe scopeof its competence"while
Anicle 96 of the United NationsCharter authorizessuchrequestsin regard to questions
arising "withinthe scopeof the activities"of the specializedagency, the legal questionhat is
the subjectof a request mustarise both withinthe scopeof the legal activitiesof the WH0
--
and withinthe scopeof its competence. munialrelationshipsof the WHO with the Unite Ndationsor othespeciahd agencies:'
The WHO invokedthis authorityto request an advisoryopinion of the Courton one
earlier occasion.In1980,it requestedan advisory opinionconcemingthe interpretationof a
1951 agreementbetweenthe WHOand Egypt.' That requestdealtwith a legalquestion
withinthe competence ofthe WHO,sinceit involvedthe interpretationand application of an
agreement concluded by the WHO and a Member Staterela~g to theestablishmentof the
WHO RegionalOfficefor the EasternMediterranean..No.questionarose regardingthe
-competenceof the WHOto request an opinionon thatquestion.
B. The WHO LacksCom~etenceto Reauest theOuinion.
The question presentedby the WHOaddressesthe nght of States,under international
lawand the WHOConstitution, to use nuclearweaponsin war or otheranned conflict. The
WHOhas no authontyunder its Constitutionto addressthis question.
1. The Mandateof the WHOis to Assist Statesin Enhancinethe Provision ofHealth
Services. The WHOis oneof a numberof specializedagenciesbroughtwithinthe United
Kationssystemin accordancewiththe United NationsCha~er.~ As recognizedin the
Charter.theseagencies havewideinternational responsibiliries defid their basic
instrumentsin economic,social,cultural,educational, health.and relatedlds.1° In this
regard, theirechnicalfuncrionsandmandatesdiffer markedly fromthe politicalfuncrions
andmandatesof the GeneralAssemblyand Securiy Council.
The mandateof theWHO is set out in its Constitution.whichdescribesthe objective
7The legalquestion presentedby this requestdoes norconcernthe mutualrelationships
of theWHOwith theUnitedNationsor other specializedagencies.
'Intemretation-of.theAgreementof 75 March 1951Betweenthe WHOand Eevot,
AdvisorvOuinion.I.C.J. Reoons 1980. p. 73.
-- -
9U.N. CHARTER A.N. 57. 63.
"Id., An. 57.of the ûrganizationandthe functionsthrough whichit istoachieve that objective. The
objectiveof theWHO isthe "anainmentby ail peoplesof the highestpossible levelsof
health.11 Under the Constitution,thisobjectivisto be achievedthrough the promotionand
developmentof technicalprograms directedat enhancingthe provision ofhealth services to
the populationsofMemberStates. For example, the WHO is:"to assis in strengthening
healthservices" (2(c)); "toestabliihandmaintainsuch administrative andtechnicalservices.
as maybe required, includingepidemiologicaland sfatisticalservices" (2(f)); "to promote. in
CO-operationwithother specializedagencieswhere necessa jhe improvementof numtion,
housing. sanitation,recreation,economicor workingconditionsand other aspectsof
environmentalhygiene" (2(i)); "topromote improvedstandardsof teachingand trainingin
the health,edicaland relatedprofessions"(2(0)); and "to develop.establishand promote
internationalstandardswithrespectto food, biological,armaceuticaland similar products"
(2(u)).
Nathing inthe objectiveor descnbed functionsof theWHOsuggeststhat the
Organizationhas responsibilityor authonty in regard to the use of nuclear weapoAs.the
LegalCounselfor the WHOstaredin 1992in explainingwhy the General Cornmitteeof the
Forp-Fifth World HealthAssemblyrejecteda proposalfor an agendaitem that wouldseek
an advisoryopinion fromthe Court on thelegalityof the use of nuclear weapons:
Whetherthe useof nuclear weaponsis legalor illegalis a
questionwhichdws not so readily fitthe 22 constitutional
functionsof WHOunder Article 2 or the 13HealthAssembly
-- functionsunder Article 18."
Moreover, the WHO hasnot identifiedany other provisionin the WHO Constitutionthat
wouldprovide a basis for a requestto the Court for an opinionconcerningthe legalityof the
use ofsuch weapons.
IWHO Constitution, note4. An. 1.
"WHA. PlenaryVerbatimRecords. Doc. WHA4511992lREC12p ,. 223 (May 13.
1992). 2. The WHO ResolutionDoes Not Identifv a Basis for Such a Reauest in the WHO
Constitution. The resolutionby which theWHO determinedto request an opinion regarding
the legalityof theuse of nuclear weaponscontains nine preambularand two operative -
paragraphs. Nom of those provisions identifiesa responsibilityor authonty of the WHO
- whichwouldprovide a basisfor requestingan opinion on that question.
The second preambularparagraph notes the Report of the Director-General on health
and environrnentaleffecü of nuclear weapons,refemhg to document A46130." The
paragraph, however,fails to identifywhat aspects of that reportprovide a basis for the
requ't. The report, like earlier repom on-thi~~subjecitssued.bythe WHO," does not make
-
any reference to the questionof -he legaiityof theuse of nuclear weapons.
The third preambular paragraphrccails thrw previousWHO resolutions adhsing-
the "effecü of nuclear waron heaith and healthservices". None of these resolutions
addresses the legalityof the use ofnuclearweap~ns.'~The fiNi preambular paraagaph.
recalls other WHOresolutionsaddressingsustainabledevelopment16 and environmental -
degradation.'? Those resolutionsdo not purpon to address the subjectof nuclear weapons.
Nonetheless, they areincluded inthe WHO Resolution to introduce a statemen refemng to
"WHO Doc. A46130,Report by the Director-General. Health and Environmental
Effects of Nuclear Weavons,(April 26, 1993).
"Effects of Nuclear Waron Health and Health Services,(Geneva, World Health
Organization. 1984); WHO Doc. A38lINF. Doc.15, Effectsof Nuclear War on Health and
HealthServices, (April 10,1985); Effectsof Nuclear Waron Health and Health Services,
(Geneva. World Health Organization2 ,d ed. 1987);WHO Doc. A44lINF. Doc.15. Effects of
Nuclear War on Health and Health Senrices, (April 25, 1991).
"World Health Assembly("WHA")Res. 34.38 (1981);WHA Res. 36.28 (1993);
WHA Res. 40.24 (1987).
.-
'6W~~Res. 42.26 (1989) addresses the sustainable and equitableuse of global
resources in the contextof healthand socioeconomic development.
"WHA Res. 45.31 (1992)concernsan environmentalhealthstrategy which includes
disease preventionand risk assessmentprograms as well as the developmentof global data
bases on environmentd healthhazards.the shortand long term enviromnentalconsequencesof the use of nuclear weapons.
The preambular paragraphs refer specificallyto the WHOC~XEtituti~inn two
instances. The fus treambular paragraphmakesa passingreferenceto "principleslaid
down inthe WHO Constitution",withoutspecifyingwhichones may have a bearingon its
authorityto makethis request. The United Statesis unawareof any such principles.18The
eighth preambularparagraphrefers to specificprovisionsof the Constitutionsening out some
of the functionsof the Organizat-.n. Thepecificprovisionsidentifiedaddress the role of
the WHOto act as thedirectingand coordinatingauthorityon inurnational healthwork
(Article2(a)); to propose conventions.agreements andregulations.(Article2(k))I9;to report
on adminisuariveand social techniquesaffectingpublic healthfrom preventiveand curative
pointsof view (Art.2(p)); and to takeal1necessaryactionto auain the objectivesof the
Organization(Art. 2(v)). Thesefunctions.similarto the onesdiscussedabove, describe
activitiesthat serveto assist theWHO in the promotionand developmentgenerallyof
technicalprograms to enhancethe provisionof healthservices.
The remainderof thepreambular paragraphsreiteratethe longstandingconcernsof the
WHO in regard to the effects that theof nuclear weapons would have on healthand the
environment. The fourthpreambularparagraphStatesthatno healthservice in theworld can
alleviatein anysignificantwaya situationresulringfrom the use ofeven onesingle nuclear
weapon. The sixth and seventhpreambularparagraphs statetharprima- prevenrionis the
onlyappropnate rneansto deal with thehealthand environmentaleffectsof the useof such
18
The WHO Constitution sets outten pnnciples relaringgenerally tothe promotion
and protectionof health. Noneof thesementions nuclearor any orherweapons. The only
referencethat evenremotely bearson the subjectof war orarmedconflictis the declaration
that "The healthofal1peopleis fundamentalto the anainmentof peace andsecurityand is
dependentupon the fullestcooperarionof individualsand stares." WHO Constitution, third
principlea note 4.
1The mandatero propose conventions musb te read in conjunctionwith Article 19 of
the WHOConstitution.which expresslyconfinesthis authonryto maners within the
competenceof the Organization. See also Anicle 23. whichcontainssirnilar limitations
relatingto theauthonryof the Assemblyro makerecommendations. The mandateto adopt
regulationsmust be read inconjunctionwithArticle21. which confines thatauthorityto a
discrete listof technicalalt, marters. weapons and note theconcernsof the worldhealthcommunityabout thethnat to healthand
the environmentfrornsuchweapons. The ninthpreambularparagraphstatesthat primary
preventionof the hdth hazar dsnuclear weaponsrequiresclarityaboutthe statu in
international lawof their use.
Whiletheseprovisionsserveto ernphasizethe concem of the WHOfor the heaith
effectsof the useof nuclear weapons,theydo not idenufi any basisfor the WHO to address
the legalityofthe use of suchweap-~s. The emphasisthat the WHO placeson the health
andenvironmentaleffects in thequestionpr~ented to the Coun, whenread in the context of
the preambular paragraphs, however,suggesrsrhatthe effecrsof the use of nuclearweapons
arereIiedupon toprovidethe basisfor the request. The UnitedStatescannotagree that the -
WHOConstitutioncanbe consauedto providethe WHOwithcornpetence toaddressthe
legaliryof anyacrivitythatcould effectthehealthof Mernber States'populations.
Whilethe WHOhas authontyto seekopinionson legalquestionsthat anse withinthe
scopeof its cornpetence,it must baseits request uponsorneprovisionof its Constitution that
establishestsresponsibilityor authorityin regard to thernanerthat is the subjectof the
question. It is not sufficienttharsuchactivityproduceeffectsthatconcemthe Organization
or whichthe Organizationmaybe required toaddress. Thereare few activitiesin which
Sraresare engagedtodaythatcouldnotarguablycornewithintheauthonty of the WHO
undersucha constructionof its Constitution.
-. The LegaiCounselof the WHO rejectedthe argumentthat theConstitutionof the
WHOcan be consmed to providecomperenceto requesran opinionon thelegalityof the
use ofnuclear weaponsbasedon thehealthand environmental effects ofsuchactivities.
Duringthe discussionwithin theWorld HealthAssernblyin 1993of the proposa1 to makethe
present requestfor an advisory opinionand in responseto questionsput to hirn, the Legal
Counselfor the WHOadvisedMernberStateson twooccasionsthatthe present requestwas
norwithin the cornpetencoef the World Health Assembly:
It is not withinthe normalcornpetenceor mandateof the WHO
todealwiththe lawfulnessor illegalityof the useof nuclear
weapons. In consequence, itis also not widiuithe normal
cornpetenceor mandateof theWHOto refer the lawfulnessor
-- iiiegaiityquestionto the hanationalCourt of Justice.
-. The questionof nuclear weaponsfalls squarely within the
mandateof the United Nations andis being dealt with by it. and
inconsequenceit isclearly withinthe mandateof the United
Nations.GeneralAssembly; should it wish, to refer the question
of iiiegaiityto the InternationalCourt of Justiceanoadvisory
opinion."
3. The WHO Reauest Runs Counter to thehactice of the WHO and theIntemational
Communi~. The WHO has ,o our laiowledge,never attemptedto regulate the use of
nuclear weapons, for the obviousreason that has no c6inpetenceor capability to dosa.
While concern in the internationalcommunityabout thepossible useof nuclear weaponshas
been widespreadsince 1945,the WHO did not begin to address this subject until the 1960's.
At thattime, and until it detennined in 1993to seek the requestedopinion, it confined its
actions to the effects of such weaponson healthand heaith services.
Beginningin 1961and continuingoff and on through the followingyears, the WHO
focusedon the heaithrisksassociatedwith testing and useof nuclear weapons. adopting a
number of resolutionszland issuinga number of reports" on this subject. None of these
resolutionsor reports made any reference to the questionof the legality of the use ofnuclear
weaponsin war or other armed conflict. .. .
At the World HealthAssemblymeeting in 1992. a numberof States proposed adraft
resolutionunder an agenda itementitled "Healthand EnvironmentalEffects of Nuclear
-
Weapons"which wouldhave requestedthe Director-Generalto refer the matter to the
ExecutiveBoard to srudyand formulare a requestfor an advisory opinionfrom theCoun on
'%A VerbatimRecords A146/1993/REC12,p. 278 (May 14, 1993); see also similar
statementin Cornmittee B.WHA Summary-RecordsA/46/1993/REC/3, p.265 (May 12,
1993)and statementin 1992to the plenary of the 45th WHA. note 12, pp:223-224.
"WHA Res. 14.56 (1961); WHA Res. 19.39 (1966); WHA Res. 26.57 (1973); WHA
Res. 34.38 (1981); WHA Res. 36.28 (1983); WHA Res. 39.19 (1986);WHA Res. 40.24
(1987).
22 note 14.
10the statu of nuclearweaponsin viewof their effectson healthandthe avironment."The
Assembly took no actionon thedraftre~olution.~'However,the sameitemwas includedon
the provisionalagendafor the 1993meeting." Inpreparationfor thatmeeting,thWHO
Director-Generaiprepareda report on thesubjectreviewingthe previoWHO work on the
matterand summarizingthe conclusionsof that work.=That report, Iikeearlier reports. did
not makeany referenceto the legalilyof the use ofnuclearweapons.
Infact, questions relatingto the useof nuclearweaponsin tirneof war or other
armedconfiicu are reservedfor Statesor otherbodieswithh the United Nationssystem.
The UnitedStates hasbeen actively engagein bilateralandmultilateralconsultationswith
otherStaw to addressissuesrelatingto the possessionanduse of nuclear weapons. Within
the United Nationssystem,the subjectof nuclearweaponiswithinthe mandateof the
Conferenceon Disarmament,the SecurityCounciland the GeneraiAssembly. Thesebodies
not onlyhave the mandateto address thehighlycomplexand sensitive issuesrelarCOg
nuclear weaponsbut also thenecessarytechnicalandpoliticalexpertise. The Legal Counsel
of the WHO, in explaininewhythe GeneralCornmitteeat the Fony-Fifth World Health
Assemblyrejecteda proposalfor an agendaitemthat wouldseekan advison>opinionon the
legalityof the useof nuclear weapons,noted:
We musrrespectthe original mandatesof the other bodiesin the
United Nationssystem. Thisis a maner thathasbeenstressed
by boththe Director-Generalof WHOand the Secretary-General
of theUnitedNations. Consequently,itmightbe considered
bener if thematterof the legalstatusof the use of nuclear
"WHO Doc. A/45/A/Conf.PaperNo.? (May 9, 1992); see also, suma notes 12and
20, with accompanyingtext.
"WH~45/1992/RECl3. p.5. The General Cornmineevoted6 to 3, with 9
abstentions,not to includethis draft resolurionon the agenda.
25WH0DOC.A46i30. note13.
26-1d. weaponswere handled in such a way thatthe questionwas
raised throughforums of theUnited Nationsn
Progress has bem madeon bothbilateraiand multilaterailevelscuimimting in successful
--
conuibutions to.internationa1securityand stabiiity.
The resultingconmbutionsincludea long listof historiarms conml agreements
which are describedin Chapter IV ofthis tat te ment .he recentlyconcludedSTART II
Treaty will reduce evenfurther the numberof nuclearweapons heldby the leadingnuclear-
weapon Statesand conmbutesignificantlyto increasedstabiiity. Negotiations-inthe Geneva
Conference onDisarmamenton a comprehensivetest ban ueaty are a priority task, and
efforts tochievethe indefiniteextensionof the Non-ProliferatioTreatyare well underway.
Finally, technical, legalandpolicyexpertsregularlymeetwithinthe numerouscompliance ~-
and implementation bodiesestablishedby various treatiesto work out detailed
irnplementation issues,conmbutingto the successfuloperationof establishedregimes: In
. .
sum, concernedStateshavefor decadessuccessfullymarshalledtheir resources - in terms of
technicalcapability,oliticalwill andnationalresolve--to addressthe problemsof
proliferationand contd of nuclear weapons,but theseefforts haveuniforrnlybeen
conductedin charnels possessingthe necessarytechnicalabilityand politicalauthority to
address such maners.
Whilethe WHO mightconcem iüelf with measuresto protect humanhealth fromthe
effectsof some hypotheticalfutureuse of nuclearweapons,this wouldnot tum in any way
on the Court's viewof the legalityof suchuse. Ratber, the requestfor an advisoryopinion
is an anempt topursue politicalobjectiveswith respectto nuclearweaponsthat connibutes -.
nothingto the fulfillmentby the WHO of its functionsunder its Constitution. Accordingly,
the questionpresentedby the requestfor an advisory opiniois not one within the
- competenceof the WHO.. -
- -
"45th MA Plenary, note II, p. 273.
2-nfra, pp. 16-31.
12 IIIJ .N THE EXERCISE OF ITS DISCRETION. THE COURT
SHOULD DECLINE TO ISSUE AN OPINION
It is weii established tharpumant to Article 65 of iü Statute. the Coun has discretion
whether to provide an advisory opinion where it othenvhasjurisdiction to entertain the
req~est.~~Where the proposed opinion would serve to assist another organ of the United
Nations inunderstanding and carrying out irs responsibilities, the Coun should be reluctant
to refuse such a request. Thusinihé cases whererhisquestion has ansen, the Coun has
often indicated that in principle it should not refuse toanropinion when requested by
anotherorgan of the United Nationsor a specialized agency."
291ntemretationof Peace Treaties With Bulearia. Hungarv and Romania. Advison!
Opinion. I.C.J. Reoom 1950,p. 65 at p. 72; Reservations to the Convention on the
Prevention and Punishment of the Crime of Genocide. Advisorv Ouinion. 1.C.J. R~DO~S
-951, p. 19; S. Rosenne, note 2, pp. 652, 658, 698.
'oJudgnents of the AdministrativeTribunal of the InternationalLabour Oroanization
Upon Com~laintsMade Againsrthe United Nations Educational Scientific and Cultural
Oroanization. AdvisorvOoinion. I.C.J. Reoons 1956, p. 86; Intemretation of Peace Treaties
Wirh Bukaria. Hunearv and Romania. I.C.J. Repons 1950.pp.71-72; Reservations to the
Convention on the Prevention andPunishment of the Crime of Genocide. I.C.J.pons
-951, p. 19; Roseme. suer naote 2, p. 709. In other instances. theCourt has indicated that
only for compelling reasons should theCourt decline to provide an opinion where it
othenvise has jurisdiction.dments of the Adminisrrative Tribunal of the I.L.0,
Advisonr Ovinion. I.C.J. Reoons 1956. p. 86. The Coun. afrer satisfying itself that the
procedures adoptedensure the application ofthe principle of equali'. of panies. concluded
that:
Notwirhsrandin: the permissive character of Anicle 63 of
theStatute in the maner of advisory opinions. only
compelling reasons could cause the Coun to adopt in this
maner a negative anitude which would imperil the
working of the regirneestablished by the Statute of the
Adminisuative Tribunal for the judicial protection of
officiais.
Subsequently, the Court has reirerated the view that an opinion should be provided unless
there are "compellingreasons to the conzrary" without specifying the harm that a refusal to
grant 'therequest for the opinionwould have to the UN sysrem. Aoolicabiliw of Anicle VI. However, inno case has the Courtbeen asked to provide an opinionon an absuact
question, theanswer to which couldnot reasonablybeexpectedto provide practicalguidance
to thefulfhent of thefunctionsof therequestingbody. Unlikeother requesu for advisory
opinions,the present requestdoes.not.presenta disputeor situation upon whichspecificlegal
- advice can usefullybe given. Rather, the requen prrsents a very general and vaguequestion
that wouldof necessiryinvolvecomplexlegal. technical,politicaland pracucal
considerations. These manen cannotusefuiiybe addressedin the absuact withoutreference
to the specificcircumstancesunder whichany useof nucleai weaponswould be- --
contemplated. The Coun shouldnot, on a maner of suchfundamentalimportance, engage in
speculation about unknownfutur -esituations.
Where the issuanceof an opinionwill not provideany practical guidance to the
requestingbody, ihere is littlereasonfor the Court.to grantthe request. Moreover, where
providing an opinionmightcreatedifficultiesfor anotherpan of the United.Nations
Organizationin carryingout iü responsibilities, theCoun may appropnately determine that
the Organizationis bener servedby the Coun's declininga request."
An opinionon this complexand sensitive manercouldserve tocomplicatethe work
of Statesor other UnitedNations bodies.perhaps underminingthe progress already made in
thisarea. As the WHOAssemblynoted in irs resolutionmakingthe request for this opinion,
"rnarkeddifferencesof opinionhavebeenexpressedby Member States aboutthe lawfulness
Section22, of the Conventionon the Privile~esand Immunitiesof the United Nations
.4dvisorvO~inion.I.C.J. Re~ons 1989,p. 191.
31
In exercisingiü discretionin this maner, the UnitedStates believes thatitis
appropnate for the Coun to take into account thesignificantnumberof Statesthat did not
express suppon for this request. At the 1993WHAmeeting, adraft resolution providingfor
this request tothe Coun was .tabled. It first was acted.uponin ComrnineeB. where, after
considerable debate,it wasapproved onMay 12by a voteof 73 of the 187 Membersof the
WHO. Thiny-oneMembers opposed(includingthe UnitedStates), 6 abstained,and 77
States didnot panicipate. The resolutionwas then introducedin plenary session, where.
after further debate, on May 14 itwas formallyadoptedby a vote of 73 of the 187
Members. On this occasion, however, 40 Members opposed(including the United States),
10abstained,and 64 Statesdid not panicipate.of the use of nuclearweapons."" The substantiapirogrcssmade ta datein comolling the
possessionand w of nuclear weapons has beenpossiblebecauseStateshaveset asidetheir
-.
differencesand concennatedon agreeinguponpracticalmeasuresto reduce the danger of
nuclear conflic_t.hnourifements by the Coun on the absrractquestionof the legalityof the
use of nuclearweapons couldwell underminethisprogres and compel Statesto nim to a
fruitlessdebate aboutthe legalimplicationsof the Court'spmnouncements.
For these reasons, the UnitedStatesbelievesthe Coun should, inthe exerciseof its
.. ..
discretionunder Article65 of its Statute,declineto providearesponse to thequest.
-- 3
"WHA Res. 46.40 (1993).ninthpreambular.
15 IV. THE SUBSTANCE OF THEOUESTION POSED
As describedbelow, someStates haveby agreementundataken not to possess or use
nuclear weaponsunder anycire- and othershaveundenaken not to use such
weaponsin certaindefmed areas. Apanfrom this.thereisno prohibition-inconventionalor
customaryinternationallawon the use of nuclear weapons. On the.conaary, international.
law isreplete with agreements thatregulatethe possessionuse of nuclear weapons,
providingmong evidencethat their use isnot deemedto be generallyunlawful. The
practiceof States, including thePermanent Membersof theSecurityCouncil. al1of whom
.-
maintainsignificantstocksof nuclearweapons.further provesthis point.
Funher, nothingin the bodyof theinternationalhumanitarialaw of armed conflict
indicates that nuclearweaponareprohibitedpg -. As in the case of other weapons, the
legaiityof use dependson theconfonnityof the particularuse with thedes applicable to
suchweapons. This would,in tum, dependon factorsthat can onlybe guessed at, including
the characteristicsof thenicular weaponused and its effects, the military requirementfor
thedestructionof thetarget in questionand the magnitudeof the risk to civilians. Judicial
speculationon a matter of suchfundamentalimportancewouldbe inappropriate.
.- . Finally, there is no basis whatsoeverfor concludin~that the use ofnuclear weapons
wouldviolatethe WHO Constitution. Nothingin the Constitutioncan be construedas
establishingsucha prohibition. Indeed,as previouslyindicatedin~thissubmission. the
questionof thelegalityof theuse of nuclearweaponsis not withinthe cornpetenceof the
WHO.
B. There is No GeneralProhibitionon theUse of NuclearWea~ons
It is a fundamentalpnnciple of internationallawthat restrictionson Statescannotbe
prësumed but must be foundin conventionallaw specificallyacceptedby them or in
customarylaw generallyacceptedby the communityof nations. There is no genera-- prohibitionon theuse of nuclear weaponsin any internationalasment. There is likewise
no suchprohibition incustomary internationaLl aw. Sucha customaryprohibitioncouldonlv
resultfrom a generaland consistent practicof States followedby themfrom asenseof le eal
obligation. We submit,basedon thefollowinganalysisof the agreements, conduct and
expressed viewsof States, that thereis no suchpractice.
1. Customarv Law. Customary international law is createdby a general and
consistent practiceof States followedby themfrom a senseof legaiobligation." Evidenceof
a customary nom requiresindicationof "extensiveandvirtuallyuniform" State practice,
includingStates whose interestsare "speciallyaffec~d."~ Amongthe actions ofStatesthat
contributeto the developmeno t f customary internationallawareinternationalagreements
concludedby them. governmentalacts, and officialstatementsof whatthe law is considered
to be. (However,merellortatorydeclarationsor acts not basedon a perceptionof legal
obligation would not suffice.)"
With respectto-theuse ofnuclear weapons. customarly awcouldnot be createdover
the objectionof the nuclear-weapon States,whichare the States whose interestsare most
specially affected.Nor could customarylawbe createdby abstaining frornthe use of
nuclear weaponsfor humanitarian. politicaolr milita. reasons, ratherthan from a beliefrhat
suchabstentionis requiredby law. Amongthe more important indicatoro sf State practicein
this areaare the international agreementhat regulatebutdo notprohibitnuclear weapons.
the acquisition anddeploymentof nuclear weaponsby themajormilitan powers. and the
officialviews expressedby Stateson thisquestion.
2. International Aoreernents. We are awa ore nointernational agreemen t-and
certainlynoneto whichrheUnitedStatesis a Pany --thatcontainsa generalprohibition on
3See Restatementof the ForeionRelationsLawof the linited States. Vol 1. Section
102.CaseConcemne rheContinentalShelf(LibyanArabJamahiriya v.Malta) 1CJReoons
1985 pp. 29-30.
-- - "North ContinentalShelfCases(Federal Republic of ~ehan~ v. Denmark), 1969
I.C.J. Reoom p. 43. -
35
-ee7 Encvclo~ediaof Public International Law. pp .2-63 (1984).
17the use of mclear weapons. Onthe conuary, it is evidenttbat existingagreementsproceed
from the assumptionthat thereis nosuchgeneralprohibition.
a. Use of otherweaoow. There arca munberof prohibitionsin intemationai
agreementson the w.of other specificcategoriesof weapons. These include:biologicaland
chemicalweapons (the 1925GenevaProt~col);'~the use of environmentaimodification
techniquesas weapons (the1977EnvironmentaiModificationConvention);" exploding
bulles (the 1868Declarationof St. Petersburg);"-and weaponws ith-non-detectablefragments
(the 1981 Conventionon SpecificConventionai~eapons)." Thispattern irnpliesthat..there
is nosuch generalprohibitionon the use of nuclearweapons,which wouldotherwisehave
foundexpression ina sirnilarinternational agreement.
b. Amemenü Remlatine Use of NuclearWea~ons. A few internationai
agreementsregulatethe useof nuclear weapons, doingso in a way that indicates thereis no
general prohibitionon the use ofuchweapons. For example,there are.agrcements,tbat. .
prohibitthe use of nuclearweaponsin panicular regions: Antarctica(the AnrarctiTreaty);"
LatinAmenca (the 1967 Treatyof Tlatelolco);" and the South Pacific (the SouPacific
16
Protocol forthe Prohibitionof the Use in War of Asphyxiating.Poisonousor Other
Gases, and ofBacteriologicalMethodsof Warfare, 17 June 1925,94 U.N.T.S. 65.
"Convention on the Prohibitionof Military and anyother HostileUse of
EnvironmentalModificationTechniques.18May 1977, 1125U.N.T.S. 3.
1DeclarationRenouncingthe Use. in Time of War, of ExplosiveProjectilesunder
400 Grammes Weight.11December1868,in Roberts & Guelff. Documentson theLaws of
-ar (1989).
3Conventionon Prohibitionsor Restrictionson the Useof Certain Conventional
Weapons Which May be Deemed tobe ExcessivelyInjuriousor to Have indiscriminate
Effects, 10April 1981,in Robens & Guelff, Documenüon the Laws of War (1989).
'O~ntarcticTreaty, 1 December1959, 402U.N.T.S. 71.
41
Treaty for the Prohibitionof Nuclear Weaponsin LatinAmerica, 14February 1967,
634 U.N.T.S. 281.Nuclear Free Zone Treaty)."
The Antarctic Treaty prohibits ail nuclear explosioon the Antarctic continent. The
Treaty of Tlatelolco prohibitsthLatin Amencan PMes from using nuclear weapons under
any circumstances;at the same tirne, two separate AdditionalProtocols, to which
nuclear-weapon States are invitedto adhere. obligatethemto observethe same prohibition
withina definedarea in the WesternHemisphere. Simiiarly,Protocol 2 to the SouthPacific
Nuclear Free Zone Treaty (towhichnuclear-weaponStatesarc.mvited to adhere) prohibits
Protocol Partiesfrom using nuclear weaponsagainstany Treaty Party. These provisions
would make no sense if there were already.ageneral prohibitionon theuse of nuclear
weapons. ~.
-
c. Aereementsremlatine manufacture. testine or t os session . number of
internationalanns control agreementsprohibit or regulatethe manufacture, testing or
possession of nuclear weaponsor systernsfor their delivery. These include the 1963Lied.
Test BanTreaty," the 1967Outer SpaceT~aty,~ the 1968Non-Proliferation Treaty," the
1971SeabedArms Control Treaty,16the 1972Anti-BallisticMissile (ABM) Treat~,~'the
4South Pacific Nuclear Free Zone Treaty, 6 August 1985
4Treaty BanningNuclear WeaponTests in the .4nnosphere. in Outer Space and under
Water, 5 August 1963, 480 U.N.T.S. 43.
41
Treaty on Principles Govemingthe Activitiesof Statesin the Exploration and Use
of Outer Space, includingthe Moon and other CelesrialBodies, 27 January 1967. 610
U.N.T.S. 205.
"Treaty on the Non-proliferationof Nuclear Weapons, 1July 1968, 729 U.N.T.S
161.
"Treaty on the Prohibitionof the Emplacement of Nuclear Weapons and Other
Weaponsof Mass Destructionon the Seabedand the OceanFloor and in theSubsoilThereof,
11February 1971, 955 U.N.T.S. 115.
4Treaty on theLirnifationof Anti-BallisticMissile Syaems, 26 May 1972. 944
U.N.T.S.13. -- .
1974 Threshold Test Ban Treaty," the 1987 Intermediate-Range Nuclear Forces (INF)
Tr~aty'~and the 1991 Treaty on the Reduction andLimitation of Strategic Offensive Anns
(START).% These ueaties would be unnecessary ifthere were already a generally-accepted
prohibition on the use of nuclear weapons. . .
Funher, the tem of these ueaties implicitly adcnowledge in many ways that the
continued possession and use of such weapons (within the confines of treaty limitations) are
not prohibited. For example, the LimitedTest Ban Treaty (to-which there are well over one
~
hundred parties) permits underground nuclear weapons testifig, while prohibiting testing
elsewhere. This is a clear acknowledgementthat the possession of such weapons by the
nuclear-weapon Statesis lawful and implies that use in at least some circumstances would
also be lawful, since possession and tesring of such weapons wouldothenvise be purposeless.
~ikëwise, the Non-Proliferation Treaty accepts the lawfulnessof the development and
possession of nuclear weapons by the nuclear-weapon States designated in-the Treaty, which
would makeno sense if al1uses of such weapons were uniawful.
The ABMand START Treaties go even further in that they sanction the need for
dererrenr nuclear-weapon forces, prohibit the crearion of destabilizing defenses against them.
and prohibit or resuicr offensive forces that could destroy them. Furthemore, the START
Treaty accepts the legaliryand proprie- of limited deploymentsof nuclear-weapon systems
that are deemed to conuibute to a stable nuclear deterrent posture. This entire structure of
obligations would makeno sense if the use of nuclear weapons was considered to be
unlawful under al1circumstances.
~ -
48
Treaty on the Limitation of Enderground Nuclear Weapon Tesrs, 3 July 1974, U.S.
Senate Executive N (94th Cong.. 2d Sess.). 13 ILM (1973) 906.
49
Treaty on the Eliminarionof Inrermediate-range and Shoner-range Missiles. 8
December 1987. U.S. Senare Treary Doc. 100-1 1 (100th Con:. , 2d Sess.), 27 ILM (1988)
84.
50
Treary on the Reducrionand Limitation of Strategic Arms, 3 January 1993. U.S.
Senate Treaty Doc. 103-1(103d Cong.. 1st Sess.). UN Disarmament Yearbook, Vol. 16
(1991). App. II,p. 450.
20 d. 1. Severai
internationalarms control agreementshave been concluded thatanempt in various ways to
minimize the chance of accidenralor unauthorizeduse of nuclear weapons. They include the
1963 "Hot Line" Agreement,? the 1971Accidents.Measures Agreement," the1973
Prevention of Nuclear WarAgr&menP and the 1987Nuclear RiskReductionAgreement.%
In addressingthe need for arrangementsto minimizc the risk of unintendeduse of nuclear
weapons, these agreementsare additionalevidence of the aaceptanceby States that the
possession and useof such weapons are not generaily prohibited.
3. Conductof States. Itiswell known that the PermanentMembers of the Security
Council (andperhaps other States)possess nuclear weaponsand have developedand deployed -
systemsfor their use inarmed conflict." These Stateswould nothave bome the expenseand
--
effon of acquiringand maintainingthese weapons anddeliverysysternsif they believed that
the use of nuclear weapons was generallyprohibited.-On the contrar, the possibleuse .of
these weapons is an important factorin the structure of their militaryestablishments, the
developmentof their militarydoctrines and suategy, and their efforts to prevent aggression
and provide an essential elementof the exercise of their right of self-defense. (These
deploymentsand doctrinesare describedin detail in the 1990Repon of the Secretary-General
5Memorandumof Understandingrezarding the Establishmentof a Direct
Communications("Hot-Line") Lmk. 20 June 1963,472 U.N.T.S: 163.
5Agreement on Measuresto Reduce theRisk of Outbreakof Nuclear War. 30
September 1971, 807 U.N.T.S. 57.
5Agreement onthe Preventionof Nuclear War,21 June 1973. 24 U.S.T. 1478.
Y
Agreementon the Establishmentof Nuclear Risk ReductionCenters. 15 September
1987.
5See Repon of theU.N. Secretary-Generalon NuclearWeapons, A/45/373. 18
~e~temberl990, pp. 19-24.
21on nuclearweapons.)% This pattern of conductis inconsistentwiththe existence of any
generallegaiprohibition on theuse of nuclearweapons.
The fact thatsuchweaponshave acWy beenused in onlyone anned conflict does
not suggestthe-contrary. Ceriainly.nuclear-wcaponStateshaveprrserved the optionto use
nuclear weaponsif necessary.and (as is explainedbelow) havenot refrainedfrom funher use
of theseweaponsbecausethey believedsuchuse to be unlawfd - which is an essential
elementin the developme ..tof customaryinternationallaw.
4. ExuressedViews ofStates. VariousStateshavetakendiffering views on the
legalityof the use-of nuclearweapons. As the United NationsSecretary-Generai has recently
concluded,"nouniformviewhas emergedas yet on thelegai aspectsof the possession of
nuclear weaponsand theû use as a means of ~arfare."~ This is confumed by the WHO
resolution thatrequestedan advisory opinion.whichrefers to the fact that "marked
dif-erencesof opinionhavebeenexpressedby Member Statesaboutthe lawfulnessof the use
of nuclear weapons. "" The variety and disparityof viewsexpressedby Statesdemousnates
thatthere is no generaily-acceptedprohibition onthe useof nuclear weapons. Under these
circumstances. customary internationa llwdoes not includesucha general prohibition.
The positionof the nuclear-weapon States is bestillustratedby their official
statementson nuclear-weaponsuse incomection with theNon-ProliferationTreary and the
Treaty of Tlatelolco. In 1978, U.S. PresidentCaner declaredthat:
-
The UnitedStateswill not use nuclearweaponsagainstany
non-nuclear-weapon Stateparty to the NPTor any comparable
internationallybindingcornmiunentnot toacquire nuclear
explosive devices. exceptin the case of an anack on the United
States, its temtones or armed forces, or its allies,by such a
State ailiedto a nuclear-weapon Stateor associatedwitha
56
-d., pp. 61-71.
57Id., p. 130.
-
'%HA 46.40 (1993) preambularpara. 9.
.. 22 nuclear-weaponStatein carryingout or sustainhg the atta~k.'~
Similar statementsweremadeby the UnitedKingdomand France.@Chinastaredthat:
As is knownto all. the Chinese~~"ernrnent has longdeclared
on in own initiative andunilaterallythat at no timeandunder
no cirnimstanceswillChina be the fmt touse nuclearweapons,
and tharitundertakesunconditionally.notto use.or threatento
use nuclear weapons agains nton-nÜclearcountriesand nuclear-
free one es.^'
ïhe RussianFederationsratedin 1993 that:
The RussianFederation will not employ its nuclear weapons
againstanySute Pany to theTreay on the Non-Proliferationof
Nuclear Weapons. dated 1st Jul1 y968,whichdoesnot possess
nucl'earweaponsexcept in the casesof: (a) an arrnedattack
againstthe RussianFederation,its temtory, armedforces, other
troopsor in alliesby any State whichis connectedby an alliance
agreementwitha Sratethatdoespossess nuclear weapons(;b)
joint actionsby sucha St%ëwitha Statepossessin; nuclear
weaponsin thecarryingout or in suppon of anyinvasionor
armed anackuponthe RussianFederation,irsterrito., armed
forces, other troopsor itsallie^.^'
Althouehrhesesratemenn differin some respects,the).havecertain important
cornmonfeamres. First. noneacknowledeesan? general prohibitionon the use of nuclear
--
weapons;on thecontrary,eachcle3rlyreservesthe right to use nuclear weaponsin some
circumstances. Second.limitson the useof nuclear weapons are statedas amaner of
5UN DisannamentYearbook.Vol. 14(1989).p. 180.
"-d., p. 179. .
62
Presidential Decree No .833 (2 November1993). nationalpolicy, not legalobligatiTM, limitarc offend only wiih rrspect to Statesthat
haveacceptecithe obligationsof theNon-ProliferatTreary (or sirnilarobligationthus
indicatingthat theareno comparableconstraintson the use ofmclear weaponsagainn
Statesgenerall.
Likewise. at ihe tirneof its ratificationof AdditionalPr1tandlIIto the
TlatelolcoTreaty, theUnited States madeformal statementof understandingsand
declarations,includinga statement thateffectivelyreserved its nght to use nuclearweapons
againstone of the Conmcting Parties in the eventof anned anack by a Conmcting
Party,in which it was assistedby a nuclear-weaponSt..e. ."f~Similar statementswere
made by the UnitedKingdomand the SovietUnion." France stated thatnothingin the
Protocolcouldpresentan obstacle to "thefull exerciseof the nght of selfdefense confumed
by Anicle 51 of the United Nations Charter.""
Additionalstatementsofnuclear-weaponStateson the use of nuclear weaponsare
containedin Appendix-Ïto the Secretary-General's1990Report.& In each case, the
govemmentin questionstatedits resolve to actin sucha manneras to avoid thenecessityfor
the use of nuclear weapons.but in no casethere arecognitionof any general prohibition
on the useof nuclearweapons.
Beginningwith Resolution1611653 in1961,the U.N. General Assembly has adopted
aseries of resolutionsdeclaringthat the useof nuclearweaponsis contra. to the U.N.
Charter and internationallawnerall~.~'These GeneralAssemblyresolutions, however,do
66
Repon of the U.N. Secretaxy-Generalon Nuclear Weapons,Al451373,18
September1990, pp. 61-75. See also thestatementof U.S.efepe SecretarySchlesingerin
-1975 1, pp. 800-01. -
"a, UNGA Res.33/71B (1978), 351152D (1980). 36/92I(1981). 46/37 D
(1991).47/53C (1992).
24 not create legal obligations and could onlbe declarative of the existence of principles of
customary international law to the extent that suchprinciples had been reco-enizedby the
international communiry, including the States mon directly affected.In fact, there were a
significant number of U.N. Member States thatdid not accept these resolutions;in panicular
these resolutions were not accepted by the majoriry of the nuclear-weapon States.
For example, Resolution 1653was adopted by a vote of 55 to 20, with 26
abstentions, and each of the othersaracted at least16 negative votesand a number of
absentions. In each case. the~nited States, the United Kingdom and France voted against
the resolution. The representative of the United Kingdom, ipexplaining his Govenunent's
vote on Resolution 1653, stated that "so long as States possess nuclearweapons, they will
use them inself-defense."" The representative of the UnitedStates stated that:
..
. ..itis simply unrnie to Saythat theuse of nuclear weapons 1s
contrary to the Charter and to internationallaw. . . .Indeed.
the very provisions of the Charter approve. and dernand. the
exercise of self-defense againstrmed anack. Ir is very clear
that the Chaner says nothing whatever aboutan)'panicular
weapon or method which ma? be used for self-defe~e.~~
During the 1980's. the General .4ssernbly adopted a scries of resolutions urging the
nuclear-weapon States to adopta policy of refraining from the fust use of nuclear weapons
and to begin negoriaxionson a legally binding rcgime including the obligation not to be the
first to use nuclear weapon~.'~Like the resolutions cited above. these resolutions on first use
were not accepted by a significant nurnber ofU.N. Member States and in panicular were not
"16 U.N. GAOR (1063rd rntg.) ai 803, U.N. Doc. .4/PV ,1063 (1961).
"UNGA Res. 361100(1981). 37i78J (1982). 381183B (1983), 39/148 D (1984),
401152 A (1985), 41/86 B (1986). 32/17 A (1987). 43/78 B (1988), 441119 B (1989).acceptedby most nuclear-weaponStates.'' Further, the adoptionof these resolutions
implicitlyindicatesa generalunderstandihgthat thereis no existingprohibitionon al1uses of
nuclear weapons, sincethere wouldbe no needfor fint-use resolutions andagreementsif al1
uses were alreadyprohibited.
Takentogether, thesevariousexpressionsof the viewsof States demonstrate that
there is no consensuson the questionof the legalityof the use ofnucleareapons. In
particular, there is nothingapproachingthe degree of acceptanceby States, andof acceptance
by the Statesmost specificallyaffected. thatwouldbe requiied to create obligationsunder
customaryinternationallaw.
The UnitedStateshas longtakenthe position thatvariousprinciples of the
internationallaw ofarmedconfiictwouldapplyto the use of nuclear weaponsas well as to
othermeansand methodsof ~arfare.~ However, this in no waymeans that the use of
nuclear weapons is precludedby the law of war. As the followingwill demonstrate, the
legalityof their use dependson the precisecucurnstancesinvolvedin any particular useof
sucha weapon. Those circumstancescannotbe known inadvanceand it wouldbe
inappropnatefor the Courtto speculate aboutwhatthosecircumstances mightbe.
1. Makine Civiliansthe Obiectof Attack. Subjectto the right of reprisal (see
below), itis unlawfulto makeciviliansor civilianobjectsthe objectof attack as~uch.~ This
mle wouldnot be violatedby the useof nuclearweapons toattacktargets that constirute
legitimatemilitary objectives.
7In each case,the UnitedStates. the UnitedKingdomand France votedagainstand
eachresolution attractedat least 17 negative votesand a numberof abstentions.
72
5kg ResolutionNo. XXVIIIof the XXthInternationalRed Cross Conference(1965).
73
& Article51(2)of Protocol1Additionalto the GenevaConventionsof 12 August
1949,and Relatingto the Protectionof Victimsof InternationalArmed Confiicts, 12
December 1977, 1125 U.N.T.S. 3. asphyxiating,poisonous or other gasesand analogousliquids. materialsand devices." This
prohibitionwas intended toapplyto weaponsthat are designedto kill or injureby the
inhalationor othcr absorptionim thebody ofpoisonousgases or analogous substances. It
was not intendecito apply, andhas not been applied, to weaponsthat are designedto kill or
injureby other means, eventhoughtheymay create asphyxiatingor poisonousbyproducts.
Once again, the Protocoldoesnot prohibitconventionalexplosivesor incendiaryweapons,
even thoughthey may produceasph -yxiatingor poisonousbyproducts,and it likewisedoes
not prohibitnuclearweap~ns.'~
6. 1977 Protocol1. AddirionalProtocol1to the 1949 GenevaConventionscontainsa
numberof new rules on meansand methodsof warfare, which ofcourse apply only to States
thatrai@ the Protocol. It is, however,clear from the negotiatingand ratificationrecord of
.-
the Protocol thatthe newrules containeciin the Protocolwere not intended to apply to
nuclearweapons. -
At the outsetof the negotiationsthat led to the Protocol, the InternationalCornmittee
of the Red Cross (ICRC)stated that:
Problemsrelatingto atomic, bactenolojical andchemical
warfare are subjectsof internationalagreements ornegotiations
by govemments,and in submininj these draft Additional
Protocolsthe ICRC does not intendto broachthesepr~blems.'~
..
Explicitstatements tothe sameeffectwere made during the negotiationsby the UnitedStates
77
Protocol forthe Prohibitionof the Use in War of Asphyxiating, Poisonousor other
Gases, and of BactenologicalMethodsof Warfare, 17 June 1925, U.N.T.S. 65.
'
70&g Kalshoven, "Arms. Annarnentsand International Law", 191 Rec. deCours
(1985 - II),pp. 283-84.
7~ntemationalComrnineeof the Red Cross. Commentan on the AdditionalProtocols
of 8 June 1977 to the GenevaConventionsof 12 Aumist 1949, p. xxxii (1987). -- . and others." The ICRC Commentary on the Protocois stated thatthere was "no doubt that
during the four sessions of the Conference agreement was reached not to discuss nuclear
weapons. "''
At the the of its signature of the Protocol. the UniteStates formally stated that:
It isthe understanding of theUnited States of America that the
rules establishedby this protocol were not intended tohave any
effect on and do not regulate or prohibit the use of nuclear
weapons."
The United Kingdom made a simiiar statementg and these statemenu were not conmdicted
by other signatories. Formal statements to the same effect have beenmade by a number of
States in ratifying the Protocol and these statements have not been objected to or contradicted
by other Parties." It is apparent that none of these prohibitions was negotiated withnuclear
weapons in mind and w ould not have been adopted had they beenthought to be applicable to
nuclear weapons.
7. Unnecessarv Sufferino,. It is uniawful to use weaponsthat are of such a nature as
to cause superfluous injury or unnecessary sufferin~.~ This prohibition wasintended to
preclude weapons designedto increase the injury or suffering of the persons attacked beyond
8See, e.:., Official Records of the Diplornatic Conferenceof Geneva. Vol. V, p.
134; Vol. VII, pp. 193, 295.
81 note 79. p. 593; see also Kalshoven. su~ra note 78. pp. 281-83
82
Robens & Guelff, Documents on the Laws of War (1989). p. 468
"Id.. p. 467-68.
"I-., p. 462-68.
- -
"-ec Article 23(e) of the 1907Hage Re_oulations on the ~aw; and Customs of War
on Land, note 76; Article 35(2) of 1977Additional Protocol1to the 1949 Geneva
Conventions, a note 73.that necessaryto accomplishthe militaryobjecti~e.~ Itdws not prohibit weaponsthat rnay
causegreat injury or sufferingif the use of the weaponis necessaryto accomplishthe
milirarymission. For example,it dws not prohibit the use ofanti-tank munitions which
mus penetrate=or. by kineticznergy or incendiaryeffects, even thoughthismay well
causesevereand painfulbum injuriesto the tank crew. By the same token. it does not
prohibitthe use of nuclearweapons.even thoughsuchweaponscan produce severe and
painfulinjuries, if thoseweapons are required to accomplisha legitimatemiiitary mission.
8. Environmental Effects.Article 1of the 1977 ~nhronmental Modification
Convention"prohibits "milimy or any other hostile useof envuorahenta1modification
techniques havingwidespread,long-lastingor severe effects as themeans of destruction.
damageor injury to anyotherStateParty." Anicle IIdefinesthe tenn "environmental
modificationtechniques" as"anytechniquesfor changing -- throughthe deliberate
manipulationof naturalprocesses --the dynarnics,compositionor structure of theEarth -
including-itsbiota, lithosphere,hydrosphereand aunosphere,or of outer space." ~lthou~h
one might imaginea hypotheticaluse of nuclear weaponsto createan environmental
modificationtechnique(for example,to-causean eanhquakeor tidal wave),the Convention
doesnot prohibitother uses of nuclear weapons(or any other weapon), evenif they cause
seriousdamageto the environment. Only the "deliberate manipulation"of environmental
forcesto cause destructionis covered.
Articles35(3)and55 of AdditionalProtocol 1to the 1949 GenevaConventionsss
prohibitthe use of "methods ormeansof warfare whichare intended.or may be expected,to
--
cause widespread,long-tennand severedamageto the naturalenvironment." This is one of
the new rules establishedby the Protocolthat, as explainedabove,do not applyto nuclear
86The prohibitionhas beenapplied, forexample,to lanceswith barbed tips andbullets
that areirregularly-shaped.scored, or coated witha substancethat wouldunnecessarily
inflarnea wound. U.S. Amy Field Manual27-10, The Law of Land Warfare (1956)p. 18.
para. 34.
87
a note 37. :
88 note73. weapons.
9. Re~risals. For thepurpose of the law of med conflict, reprisaisarelawfulacts
of retaliatiointhe formof conductthat wouldotheryise be unlawful,resoned to by one
beliigerenin responseto violations of thelaw of war by anotherbelligere~~t.~Various.
provisionsof AdditionalProtocol1containprohibitionson reprisalsagainstspecifictypes of
personsor objecu, includingthe civilianpopulationor individualcivilians(Article51(6)),
civilian objects (Article52(1)),culturalobjecu and placesof worship(Article 53(c)), objects
indispensableto the survivalof the civilian population(Arti54(4)), the natural-
environment (Article55(2)), andworksand installationscontainingdangerousforces (Article
-~
56(4)). Theseare amongthe newrules establishedby the Protocolthat, as explainedabove,
do not applyto nuclear weapons.
D. The WH0 ConstimtionDoesNot Prohibitthe Use of NuclearWea~ons.
As previouslydemonstrated,there is no provisionin the WHOConstitutionthat
providesa basis for arequestto the Coun for an opinionconcerningthe legalityof the use
of nuclear weapons. Neitherthe objectiveof the Organizationnor iü describedfunctions,as
set outin the Constitution,suggestthatthe Organizationhas responsibilityor authoriryin
regard to the useof suchweap~ns.~ Xor do other provisionsof the Constitution. Underthe
circumstances,therecan be no basis for concludingthatthe use of nuclear weaponswould
violateanyobligationof Membersof the Organizationunder the WHOConstitution.
This conclusionis confumed by a reviewof the provisionsof the Constitutionthat
establish obligationon theMembers. Ko provisionof the Constitutionaddressesthe
obligationsof MemberStatesregardingthe use of nuclearweapons,nor does anyrhingin the
8Underthe customarylaw of amed conflict,reprisalsmay onlybe takenfor the
purposeof enforcingfunirecornpliancewith thatlaw. andmustcomplywith certainrules
limitingtheir scopeandeffect. U.S. Army Field Manual27-10,The Law of Land Warfare
(1956)p. 177, para. 497.
90
pp. 5-10.
31 -.
Constitution obligeMemberStatesto refrainfrom the useof any weaponseven whenthey
maycause damage tohumanhealthor the natura invironment. Someof rheseprovisions
referto mam relatingto the establishment andoperationof the Organization,such as the
obligationof Memben to confer the appropriatelegal starus,privilegesand immunitieson
the Organization andits peno~el.~~ Othersrefer to administrativematters, such asthe
obligationson Members inrespectto the qualifications ofdelegatesEor submissionof reports
or other informationto the'6rganization:" Yetothen refer to the obligations ofMembers in
--
respectof conventions,agreementsor regulationsadopted by the Organizati~n.~ No
conventions, agreements or regulationsadopted.by the Organizationdeal with-thelegalityof
the useof nuclearweapons.or indeedany other type of weapons.
In addition,the United Statess unawareof anythg in the history of the Convention
orke practice of the Organizationsince itsinception thatsuggeststhat the useof nuclear
weapons is within the cornpetencef the Organization,muchless that the Constitution
createsany obligationin regardto suchmaners. As previouslynoted, the Organizationonly
beganto addressthe health effectsof the testing anduse ofnuclear weaponsin the 1960's
and had lirnitediu actionsto thoseeffects untilits conuoversialdecisionin 1993to make
this requestfor anopinion.95
E. Conclusion
General InternarionalLaw. There is no generalprohibitionin internationallaw on the
Useof nuciearweapons. On the contrary, man! internationalagreementsreglate the
9WHOConstinition. note 4. Arts.37. 66. 67.
92
AN. 11.24.
"-d. Arts. 61-65.
94
-.. Arts. 20, 11.
9Sg suvra note31. possessionor use of nuclear weapons, therebproviding sûung cvidencethat theirusewas
not deemedto be unlawful x. The practiceof States, includingthPermanent Members
of the SecurityCouncil.furtherprovesthispoint. There is alsoconsiderablevarietyand
disparityinthe expresseciviewsof States.onthisissue.Consequently,it cannotbe the case
that the useof such weaponsisaireadyprohibitedby customaryinternationallaw.
The United States has lontakenthe positionthatfundamentalprinciples of the
internationalhumanitarianlawof anned coniiictwouldapplyto the useof nuclear wcapons .
as well asothermeansandmethodsof warfare. Whethera pmticularuse of nuclear
weapons wouldviolatetheseprinciples would depend in each instanceon the specific
circurnstancesof the situation.
The Couricannot anticipate thmannerin whichtheseprinciples wouldaffectvarious
.-
uses ofnuclear weapons,whichwould,in m. dependon a numberof factorsabout which
one could onlyguess. The Coun need notand shouldnotengagein speculationon a matter.
of suchfundamentalimportance.
The United Stateshasbeena strongsupporterof internationalnegotiationsaimedat
controlling the development, possession, acquisition, ttinguse ofnuclearweapons.
However,this does not alter the factthatcurrenrinternational does not impose&y
generalprohibitionon theuse of nuclear weapons.
The WHO Consrirution. Thereis no basisfor concludingthatthe useof nuclear
- weaponsviolatesthe WHOConstirution. An? suchconclusion would fly inthe face notonly
of the tems of the Constitution.but also its histon and thepracticeof the Organization. In
becoming aPany to the WHO Constirution,the UniredStaïeSdid notunderstand, andno
Starehadany reasonto believe.that it was therebyabandoningits right to have recourse to
theuse ofany weaponneededfor its defense. The WHOhas ben authorizd torequest opinionsonlyin regard to questionarising
withinthe scopeof.iu competence. The questionof thelegalityof theuseof nuclear
weapons isnot withinthe cornpetenceof thWHO, and therefore, the Court lacks
junsdiction to provide the requestedopinion. If the Courtnonethelessdetennines thahas
jurisdictioto providethe requestedopinion,the Court should,in theexercise of the
discretion providedy Article65, paragraph 1, of ifStaaite.dedine to providan opinion.. .
Written Statement of the Government of the United States of America