Transmittal Note Verbale (in Spanish) dated 4 July 1995 from the
Ministry of Foreign Affairs of Costa Rica, together with
Written Comments of the Governrnentof Costa Rica REPUBLICA DE COSTA RICA
MlNlST DEARlIOACI EOXNTEtRlYOCRUELTO
El Ministerio de Relaciones
xteriores y Culto de la Republica de Costa Rica saluda muy
ateiltamente a ia Honor-able Secretaria General de la. Corte
Iiicer.naciona1 de justicid, en ocasi6ii de presentar, adjunto a la
presente, de la decl.araci6r1 del Gobierno de la Republica de Costa
Rica en relacion a las mernorias brindadas ?or los diferentes
i;obiernos sobr-e la Opiniori Csnsulcivs requerida por la
Or,aanizaciin Nundia? cie Is Saiur:, resgecro .= la Legalidad del Uso
y Rmenaza de Armas Nusloar-2s .
-.
;L Piinisierio de Relaciones
Excirior~s y Culto de 13 Rzptjblicn de Cosia Rica aprovecha esta
opor'tunidad pa;a ter1 e la Honoraisie Secretaria de la Corte
ini;=rriacioi-isl de Zu4tiria Las segur iiides do su mas distinguida
12oti5 ?de;.a~;on.
13an JO:&, Od de julio de 1995
fi LA HONORABLE
SECRETARI4 GENERAI-
CORTE INTERNACIONAL DE JUSTICï2
LA HAYA, HOLANDA
ri BEFORE
THE INTERNATIONALCOURTOFJUSTICE
The Hague
The Netherlands
Request by the
WORLD HEALTHORGANIZATION
for an Advisory Opinion on the Legal Question
regardingMln view of the health and environmental effects would
the use of nuclear weapons by the state in war or other armed
conflicts be a breachitsobligations under international law
including the WHO Constitution".
WRITTENSTATEMENT
OF THE
GOVERNMENTOF COSTA RICA
TO THE MEMORIALS PRESENTED BEFORETHE
INTERNATIONALCOURT
OFJUSTICE
July,9951.-INTRODUCTION
a.-By itsResolution adopted on June 20,1994 , the INTERNATIONAL
COURT OF JUSTICE -( THE COURT)- ,punuant Article 66, paragraphs2
and 4 ,of the Statute of the COURT and to Article44 ,102and 105 of the
RULES,THECOURT has requested to THE STATESto give comments to
the Memorials presented before the Court in the advisory opinion
presented by the WHO to the question regarding if:"ln view of the health
and environmental effects, would the use of nuclear weapons by a State in
war or other armed conflict be a breach of its obligations under
international lawincluding the WHO Constitution..".
b.-Upon receiving the written statements THE COURT has fixed the
date of June20 1995 as thetime limit within which written statements to the
memorials presented may be submitted to THE COURTby the ~~0and by
those of its member States who are entitled to appear before THECOURT,in
accordance with Article6,paragraph 2,of the Statute of THE COURT.By its
Resolution adopted on June
22 1995 ,he COURT extends to July 4,1995
the time- limit within whichwritten statements may be sumitted by the
Government of Costa Rica to the COURT. The present memorial will
examine the written comments to the written pleadings already submitted
by the States who appear beforethe COURT.
The purpose of this mernoria, in keepingwith Articles44,102and 105.of
THE RULES OF THE COURT is to dernonstrate to ttie Honorable COURT
that:
1) THEWHO IS COMPETENT 10 REQUESTAN OPINIONON THE
LEGALITYOF THE USEOF NUCLEARWEAPONSand 2)THEREIS A
GENERAL INTERNATIONALLAW PROHIBITIONON THE USEOF
NUCLEARWEAPONS.
To this endevery effort has been made to focus only on the major issues
above mentioned .
Pag.22.-THE JURlSDlCTlON OF THE COURT AND THE ADMlSSlBlLlTY
OF THE APPLICATION.
TheGoverrnentof the Republicof CostaRica isoftheopinionthat the
use of nuclearweapons -(BECAUSEOF THE CATASTROPICHEALTH
DAMAGESPROVOKED IN THE VlCTlMS OF NUCLEARATTACKS) -
involves a health issue 1 arising within the cornpetence ofthe WHO 2
within the scopeof their activit3esand is alegal questionWe consider ;
that evenso in thiscase ,the Advisory Opinionwould involve rnatten of
political nature indespite of legal questions 4iiswell known that al1
1 Evenso in injourious consequences arising out of acts not
prohibited bythe international law,like the chemicalexplotion andfire
at CHERNOBYL nuclear power plant. Thedisasterevidencethat
dozendied inrnediatelyand as rnany as33.000 pleoplewho participated
in cleaning up the disaster are,are now reportedto be ilfrorn the
effects of radiation poisoning.
2 In relation the Article 76of the Constitution of the WHOestablish
that:
" UPON THE AUTHORIZATION BY THE GENERAL ASSEMBLY OF
THE UNITED NATIONS OR UPON AUTHORIZATION IN
ACCORDANCE WlTH ANY AGREEMENT BETWEEN THE
ORGANIZATION AND THE UNITED NATIONS, THE
ORGANIZATION MAY REQUEST THE INTERNATIONAL COURT
OF JUSTICE FOR AN ADVISORY OPINION ON ANY LEGAL
QUESTION ARlSlNG WlTHlN THE COMPETENCE OF THE
ORGANIZATION "
3 Seein relation that artic1of the Constitution of the WHOsaysthat :
" THE OBJETIVE OF THE WORLD HEALTH ORGANIZATION
SHALL BE THE ATTAINMENT BY ALL PEOPLES OF THE
HIGHEST POSSIBLE LEVEL OF HEALTH "
4 Thesecornrnitrnentswere expressed by the Governrnentof" THE
RUSSIANFEDERATION"
Pag.3conflicts in the sphere of international politics can be reduced to conflicts
of legal nature, and that THE COURT practice refuse to remove a case
from the COURT,when some of the parties claim that matters were
political and no leg5l
We are not able to join the point of view presented by some
govemments BEFORETHE COURT .^garding the idea,that the WHO is
not compefent to request an advisory opinion in concerns the legality or
illegality of the threat and use of nuclear weapons .In the opinion of the
Government of Costa Rica no compelling reason 7 exiting inorder to lock
the COURT jurisdiction ,and make it impossible to examine the advisory
opinion requested.
5 See in relation THE CERTAIN EXPENSES OF THE UNITED NATIONS
CASE -( 1962-I.C.J. REP.151 and THE MlLlTARY AND PARAMILITARY
ACTlVlTlES CASE -NICARAGUA VS. U.S.A.- ( 1984-I.C.J. 392 )
6 See on reference the arguments presented by :THE U.S.A.
GOVERNMENT, THE FRENCH REPUBLIC,THE FEDERAL REPUBLIC
OF GERMANY,THE GOVERNMENT OF THE UNITED KINGDOM ,THE
RUSSIAN FEDERATION AND THE NETHERLANDS GOVERNMENT.
7 The COURT has repeatedly stated that:" ALTHOUGH ITS POWER TO
GlVE ADVISORY OPINION UNDER ARTICLE 65 OF ITS STATUTE IS
DISCRETIONARY, ONLY COMPELLING REASONS WOULD JUSTIFY
REFUSAL OF SUCH REQUEST " -( NAMlBlA CASE:1971 ,I.C.J.,16.;
CERTAIN EXPENSES OF THE UNITEDNATIONS:1962,I.C.J.,151 )-
Pag.4 3.- THERE EXISTS A GENERAL PROHIBITION ON THE USE OF
NUCLEAR WEAPONS .
The Costa Rica Governrnent identified the issue of the relationship
between the Hurnan Rights to Life and Healthand the Hurnan Rights to
International Peace and Security. Furtherrnore,the international law has
recognized the fundarnental connection betweenose rights and that one
right cannot be pursued at the jeopardy of the other .ln this connection we
recognized that: 1) Hurnan rights violation lead to the international peace
and security degradation and vic-versa. 2) And reaffirrn the univers,lity
indivisibility and interdependence of al1those rights.
Consecuently we consider that there exists enough evidence of
international cornrnunity concern to the potentially and irreversible damage
to life and hurnan health of which nuclear weapons, affecting the
international peace and security are capable8, and consecuently of a
general violationof the international law, and a prohibition on the use of
nuclear weapons .In this order we would like to focuseveral important
points,that are necessarily to take into consideration COURTe in this
case.
8 See in relation RESOLUTIONONTHENON -USEOFFORCEIN
INTERNATIONAL RELATIONS AND PERMANENT PROHIBITION OF
THE USEOF NUCLEARWEAPONS ,G.A. RES.2936,U.N..GAOR,20th
Sess., Supp .N.31,AT 5,U.N.DOC.A187301972.;RESOLUTION ON
NON-USE OFNUCLEARWEAPONS ,AND PREVENTION OF
NUCLEARWEAPONS,G.A. RES.33171 B, 33 U.N.GAOR;
RESOLUTIONON NON-USEOF NUCLEAR WEAPONSAND
PREVENTIONOF NUCLEARWAR.G.A. RES.34183G, 34 U.N.GAOR;
RESOLUTION ON THECONVENTIONON THEPROHIBITIONOF THE
USEOF NUCLEARWEAPONS .G.A. RES.45159B,45 U.N.GAOR a.-THE USE OF NUCLEAR WEAPONS VIOLATES THE
HUMAN RIGHTSTO LlFE AND HEALTH.
The Human Rights to Life 9and Health 10 has found support both
within the UnitedNationsTreaties,Declarations and Resolutions as well
as inRegionalandInternationalAgreements.
The use of nuclear weapons would produce a terrible impact with
manyhumanvictims 11andthe violations of those humanright;evenso
9 In the light of the foregoing ,Ar3iof the 1948UNIVERSAL
DECLARATION OFHUMANRIGHTS providedthat :" EVERYONE HAS
THE RlGHTTO LlFE ,LIBERTY AND SECURITYOFPERSON ..".
Regarding this matter other internationallaw instrumentestablished
similar regulations as follows:
1)Article 2 (1) of the 1950 of "THE EUROPEANCONVENTIONFORTHE
PROTECTIONOF HUMANRIGHTSAND FUNDAMENTALFREEDOMS ".
2) Article 6(1)of the 1966 "INTERNATIONALCOVENANTON CIVIL
AND POLITICAL RIGHTS".Article 4(1) of the 1969"AMERICAN
CONVENTION ON HUMANRIGHTS".Articule 4 of the 1981" AFRICAN
CHARTER ON HUMANAND PEOPLE'S RIGHTS ".Article l(a) of the
1981 "UNIVERSAL ISLAMIC DECLARATION OFHUMANRIGHTS ".
Article 6(1)of the 1989"CONVENTION ON THERIGHTSOFTHE
CHlLD "
10 See ,in particular : Preamble to the 1946"CONSTITUTIONOFTHE
WHO ".Article 25 of the 1948 "UNIVERSAL DECLARATION OF
HUMANRIGHTS".Article 12(l) of the 1966 "INTERNATIONAL
COVENANTON ECONOMIC ,SOCIALAND CULTURAL RIGHTS ".
Article 16 of the 1981 "AFRICAN CHARTER ONHUMANAND
PEOPLE3 RIGHTSand Article 24(1)of the 1989"CONVENTIONON
THE RIGHTSOF THECHlLD ".
11See in reference that the United Nations GeneralAssembly, in
1958 , adopted the Report of the United Nations Scientific
Committee on the Effects of the Atomic Radiation whic observes that:
" RADIOACTIVE CONTAMINATION OF THE ENVIRONMENT
RESULTING FROM EXPLOSIONS OF NUCLEAR WEAPONS
Pag.6the injurious consequences of their use arising out of acts not prohibited
bythe international law.
As it can be seen , through the evolution from the Universal
Declaration of Human Rights to the present time, the principles and articles
of the legal precedents mentioned , build upon each other to construct a
strong structure where itis conclusive that the use of nuclear weapons
violates the international law governing the Human Rights to Life and
Health.
b.-THE USE OF NUCLEARWEAPONSVIOLATES THE
HUMAN RIGHTTO ENVIRONMENT.
The Human Right to Environment is more recent in origin than other
human rights.However itis similary based upon United Nations precedents
and regional practice.
The Universal Declaration of Human Rights has the main objetive of
acknowledging and assuring the Right to Life ,the fint condition of ail other
human rights within this declaration.Consequently if environmental
degradation by the use of nuclear weapons threatens present and future
life, the Right to Life manifested in article the Declaration is violated.
The United Nations Conference on the Human Environment held in
Stockholm in June on 1972 reinforces the above mentioned idea stating
that:
- - --
CONTITUTESA GROWINGINCREMENT TOWORLDWIDE
RADIATION EXPOSURE .THISINVOLVESNEWAND LARGELY
UNKNOWN HAZARDS FOR CURRENTAND FUTURE
POPULATIONS;THESEHAZARDS BY THEIRVERY NATURE
ARE BEYONDTHE CONTROL OFTHE EXPOSEDPERSONS .
THECOMMITEECONCLUDESTHATALL STEPSDESIGNEDTO
PREVENTIRRADIATION OF HUMANPOPULATIONSWlLL ACT
TO THE BENEFITOF HUMANHEALTH" Resolution on the Effects
of Atomic Radiation .G.S. Res. 114 ( XII).U.N. GAOR, 12 th Sess.
Supp.No. 18, at 3 (1958).
Pag. 7"MAN HAS THE FUNDAMENTAL RlGHT TO FREEDOM ,
EQUALITY , AND ADEQUATE CONDITIONS OF LIFE, IN AN
ENVIRONMENT OF A QUALITY THAT PERMITES A LIFE OF
DlGNlTY AND WELL BEING,AND HE BEARS A SOLEMN
RESPONSABILITY TO PROTECT AND IMPROVE THE
ENVIRONMENTFOR PRESENTAND FUTUREGENERATIONS ".
The Human Right to Environment ,can be viewed as a means of
safeguarding human inherent value and dignity, which al1 humans must
acknowledge or deny their existenc.The Right to Environment is, for this
reason,justifiedmaterialy through its basis in human value and
dignity.Because protection of the environment is so dependent upon the
international peace and security, al1 of these human rights must be
considered sacrosanct and protected together.
The rights setforth in the Stockholm Declaration were supported by
subsequent United Nations Treaties,Declarations and Resolutions,which
addressed the issue of human responsability for the preservation of the
nature 12~hese legal precedents demostrate an international consensus,
that the continued enjoyment of the environment is a basic right of al1
humanity and the States have the obligation to protect these rights for
present and future generations.Due to the length of the State practice and
continued State expression of maintenance and protection of the
environment, theHumanRight to Environment may be considered a part of
12 See inrelation that in 1974the United Nations General Assernbly
adopted the "CHARTER ON ECONOMIC RIGHTS AND DUTIES OF
STATES ".This Charter declared that economic,politicaland other
relations are defined bythe principle of respect for human rights.
according to the Charter, the international cornmunity faces a common
responsability of protecting the environment for present andfuture
generations.In the same relation see: the 198"DECLARATION OF
NAIROBI" -( concerningthe protection of the environment over the last
ten years since the Stockholm declaration )- Article 24 of the
AFRICAN CHARTER ON HUMAN AND PEOPLE'S RIGHTS ". Article 11
of the PROTOCOL TO THE AMERICAN CONVENTION ON HUMAN
RIGHTS ". The 1985 " VIENNE CONVENTION FORTHE PROTECTION
OF THE OZONE LAYER "and the 1989 "HAGUE DECLARATION OF
THE ENVIRONMENT ".
Pag8customary international law .Whether itis recognized as a full legal right,
its is clear that the Human Right to the Evironment would be violate by the
threat or use of nuclear weapons
The Costa Rican Government StrOnglybelieve that we are in a decade
that potentially could face a breakthrough in the attitude of the Sates
towards peace,security and human rights protection by the achievement of
the international law regulations.We are in the situation that calls not only
for implementation of existing principles , but also for a new approach
through the development of new principles of international law including
new and moreeffective decision -making and enforcement mechanisms. .,
This is the reason why ,we appear before the COURT in order to
stimulate the acceptance that the Human Rights to Life, Health, Pace
Security and Environment are threatened by the use of nuclear weapons.
We refuses to believe that on the international level , there are not
current ways of implementing such measures , as the development of
binding rules and efficient enforcement procedures to protect those rights
threat.We also believe that the COURT is indeed a
against the nuclear
source of authoritative criteria that not only help decision makers cope
with uncertainty, but also constrains them to frame policies within the
confines of such knowledge.This is the reasonwhy we understand that the
COURT through the present advisory opinion would indisputably
contribute to the clarification and development of the international law
governing the useof nuclear weapons.
Finally ,the Government of the Republic of Costa Rica, believes that
much evidence has been presented by the States -(that appears before the
COURTin this Consultative Opinion )-in order to prove that 1) The WHO
is Competent to request an Opinion on the Legality of the Use of Nuclear
Weapons 2). There exists a General International Law Prohibition on the
Use of Nuclear Weapons .
San Jose, Costa Rica, July 1994
Pag.9
Transmittal Note verbale (in Spanish) dated 4 July 1995 from the Ministry of Foreign Affairs of Costa Rica, together with Written Comments of the Government of Costa Rica