Written Statementof the Covernmentof FinlandMINISTRY FOR FOREIGN AFFAIRS
OF FINLAND
In response to the letter of 14 September 1993 from the Deputy
Registrar of the InternationalCourt of Justice to the Minister
of Foreign Affairsof Finland regarding the request for an
advisory opinion made by the World Health Assembly (WHA), the
Governmentof Finland has the honour to state the following:
1. The request made by the WHA seeks to attain an in abstracto
determinationof the legality,or otherwise,of the use.of
nuclear anus in war or other armed conflict.It ignores the
complexityof-the technical,strategicand moral aspects of the
problem posedby the existence ofnucle~ar weapons. It fails to
recognizethe fact that effective securityarrangements can only
be attained through agreementswhich take into account al1
relevant circumstancesincludingthe specificsecurity interests
of each State. During the years, Finland has actively promoted
the conclusion of such agreementsand will do so in the future.
2.;1t would thus be improper for the Court to give the opinion
requested by the World Health Assemblyin the precise sense that
the Court's long-standingpractice inthe matter of advisory
opinions indicates. Such improprietywould seemto be
constituted
of three differentbut related factors:
1. The request falls outside the competenceof the
requestingorgan (WorldHealth Assembly);
.. ..
2. Considering therequest the Court could not remain
faithful to the requirementsof its judicial character;
3. ~ore~l~ to the substanceof the request would
constitute auseful service to the United Nations of
which the Court is the principal judicialorgan.
As a preliminary point,it may be convenientto emphasize that
whether or not the Court shouldprovide an opinion requested
from it is a matter up to the Court's discretion under Article
65 of its statute. The provision,as the Court has observed:
" ...gives the Courtthe power toexaminewhether the
circumstancesof the case are of such a character as
should lead it to decline to answer the Request."
(I.C.J.Inter~retationof Peace ~reatieswith Buluaria,
Hunqarv and Romania, Reports 1950 p.72).provide opinions onisionthquestions (Article96 (1) of thetoUN
Charter),there seem to be no formal criteriaindicatinqwhen
circumstancesmightbe such that a request should beturned
down. In practice,the Court has, however,given general
indicationof when providinga responsewould be excluded.This
would, for example,be the case (1) if the requestrelated to a
subject-matterwhich wouldfa11 outsidethe competenceof the
requestingorgan; (2) ifthe Court, by replying, could not
remain faithful toits character as a judicialorgan; and (3) if .
the Court, by replying,rould not be able to "dischargeits
functionsas the 'principaljudicialorgan of the United
Nations"' (I.C.J.
NotwithstandinaSecuritvCouncil Resolution W276 (1970),Reports
1971 p. 27).
The criterionof "impropriety"has not been understoodas a --
strictlydefined set of legal requirements but as a label for a
general sense of the judicialappropriateness orusefulnessfor
the United Nations of providingthe requested opinion. In the-
followingit will be submittedthat providing areply in this
case would fail to meet those conditions.In a threefold sense,
providingthe response requestedwould be improper.
2.1. 1.
The questionposed to the Court is as follows:
"In,viewof the health and environmentaleffects,would
the use of nuclearweapons by a State in waror other
armed conflictbe a breachof its obligations under
internationallaw includingthe WHO Constit~tion?'~
As the Court has noted:
"[ilt is however a preconditionof the Court's
competence that...thequestionshould be one arising
within the scope of the activitiesof the requesting
organ." (A~~lication for Reviewof Judment NO. 273-of
This same principle is also expressedin Article 76 of the
Constitutionof the World Health Orqanization:
Court of Justice for an advisory opinionaon any legal
question ~
Oraanization(emphasisadded)." The functions of the World Health Assembly are listed in Article
18 of the WHO Constitution.In a general manner they refer to
the functions of the Organization itself. Moreover, in paragraph
(m) of Article 18 the Assembly is mandated "to take any other
appropriate actionto further the objective of the
Organization''. The competence of the Assembly cannot, therefore,
be detached from the competenceof the WHO.
The objective of the World Health ~r~anizationis "the
attainment by al1 peoples of the highest possible level of
health" (Article 1 of the WHO Constitution).The problem ofthe
competence of the requesting organmay in this case thus be
paraphrased as follows: "is the lawfulnessunder international
law of the use of nuclear weapons in war or other armed conflict -
a matter having to do with 'the attainment by al1 peoples of the
highest level of health?'"
It is submitted that this is not the case. Though war and armed -.
conflict, as well as the use of nuclear weapons in such
conflict, are obviously detrimental to human health, their legal
status cannot be determined sim~ly by reference to their health
effects. The permissibilityor illegalityof any resort to
force, including the use of nuclear weapons,is dependent on an
evaluation of a much wider set of circumstances.
To answer the relevant questionwould require an examination of
such circumstances,including (but not limited to) the purpose
of such use, the various kinds of (real or imagined) threats to
national securityinvolved or invoked, the types of nuclear
weapon being employed, the manner and consequencesof their
employment and those of any alternative courseof action. These
aspects are not of marginal importancein the assessment of the
legal issue but centralto it. But, of course, the relevant
political, security-related, strategicand technical questions
are beyond the competence of the World HealthOrganization.
To allow the requesting organ to receive a legal determination
regarding a form of action of which its competence covers only a
limited aspect would be to enlarge the organ's authority well
beyond its constituting instrument.Whether one sees this as a
matter of the forma1 competence of the Court or of the propriety
.- inadmissible.an opinion, the consequencewould be judicially
2.2. The court could notremain faithful toits character as a
- J- - .
Another, related reason for the improprietyof providing the
requested opinion has to do with the hypothetical,
future-oriented character of the request itself. As the Court
has pointed out: "...the Court has alwaysbeen guided by the principle
faithfulto the requirementsof itsund judicial character
even in giving advisory opinionstt (I.C.J.Application
for Review of Judament No. 158 of the United Nations
AdministrativeTribunal,Reports 1973 p. 175 (para
24.) .
However, if it is the case that the legalityof the use of
nuclearweapons can only be determinedin respect of the
circumstancesof the case, then it followsthat in the absence
ofa concrete factual situation, the Court would itself be
requiredto entertain various hypotheses aboutsituations in
the Court wouldbe requiredto speculate witha very large Say,
number of potential situations, including, for example,
situationsof firstuse and counter-use,various types of
limiteduse and practicesof targeting.The Court would be i
requiredto analyzedifferenttypes of nuclearweapon and
entertainhypotheses aboutthe factual consequencesof their
use. Al1 this would require analyzingextremelycomplex and
controversial pieces of technical,strategicand scientific
information.The counter-factualcharacterof such speculation
would make any hypothesisuncertain.In short, entering such
speculationthe Courtwould'notbe able to "remain faithful to
the requirementsof its judicialcharacter".
2.3. No replv to the substance ofthe reauestwould constitutea
useful service to the United Nations of which the Court isthe
principal iudicialoraan.
The Court has viewed its advisorycapacity ina functional
liyht: the provisionof opinionsby the Court "representsits
participationin the activitiesof the Orqanization"(I.C.J.
Ïnter~rètationof Peace Treaties with ~ulqaria.~unaary and
Romania~First Phase,Reports 1950 p. 71). The object of
of itsiown actionw (I.C.J.oReservationsto the Convention onthet
Preventionand Punishmentof the Crime of Genocide, Reports 1951
p. 19). The assumptionseems to have been that opinions should
play a constructiverole in the activitiesof UN organs.
As pointed out above, the requestby the World Health Assembly
relates to a problem-whichinvolves,in additionto an
undeniablelegal component, also political, moraa lnd technical
issueswhich cannotbe usefullydealt with in abstraction from
nuclearweapons and there clearlyseis no internationalagreement
on the legal status of such weapons.This is why diplomatic
neyotiations havebeen andare being conductedon various
bilateral and multilateral for to limit and reduce the threat
posed by nuclearweapons.The matter is on the agenda of the UN
GeneralAssembly and of the Conferenceon Disamament (CD),
reportingalso annuallyto the UN GeneralAssembly. A statement in abstracto on the legal status of the use of
nuclear weapons would intervene in those negotiations,in the
United Nations and elsewhere,in an unforeseen fashion.It would
create blanketsupport for one or another disputed position and
fail to respect the comprehensivegive-and-takecharacter of any
negotiationon nuclear disarmamentwith a potential for success.
- An ex cathedra statementconfirmingthe complete legality or
illegalityof the use of such weapons might evenseem to make
such negotiations altogether superfluous During recent years, a
number of important agreementson the limitationand control of
specifictypes of armaments havebeen attained,among them the
1993 Conventionon Chemical Weapons. To undermine such --
negotiationsby a judicial fiat would not constitutea useful
service by the Court to the efforts of the United Nations in
this field.
3. The Court has suminarizedits practicein the granting of
advisory opinionsas follows:
"The Court has repeatedlystated that a reply to a
request for an advisory opinion should not, in
principle,be refuised and thatonly compelling reasons
would justify such a refusal" (I.C.J.A~~licationfoq
Review of JudsementNo. 158 of the United Nations
AdministrativeTribunal,Reports 1973 p.183 (para 40).
In the view of the-Governmentof Finland,such "compelling
reasons" do exist in this case. These reasons haveto do with
the fact (1) that the World Health Assembly does not have the
competence toobtain a determinationon a substantive problem
essentially belonging to the field of disarmamant; (2) that -
speculating about the circumstances relevan for the
determinationof the lawfulnessof the use of nuclear weapons
the Court couldnot remain faithfulto its judicial character;
and (3) that no substantivereply would constitutea useful
service for the efforts by the United Nationsor the
international communityat largeto limit and reduce the threat
posed by nuclear weapons.
Written Statement of the Government of Finland