1. Question Asked By Judge Koroma on 1 November 1995.
Part 1 of Question: Was resolution WHA 46.40 validly adopted?
Response:
Yes. Under Article 96 (2) of the United Nations Charter, specialized agencies may
request advisory opinions if authorized to do so by the General Assembly. Such
authorization is contained inArticle X.2 of the Agreement between the United Nations and
WHO.
Resolution WHA 46.40 was adopted in accordance with Article 76 of the
Constitutionof WHO and Rules 50 to 70 ("Conduct of Business at Plenary Meetings") and
71 to 84 ("Voting in Plenary Meetings") of the Rules of Procedure of the World Health
Assembly (WHA). Rule 73 provides that "exceptas stipulated otherwise in these Rules"-
a condition not applicable to the Resolutionn question - "decisions ... shall be made by
a majority of the Members present and voting."
lt may be useful to review briefly the history of the adoption of WHA 46.40. lt was·
introduced in Committee B of the 46th World Health Assembly (May 1993) under Item 33,
"Health and Environmental Effects of Nuclear Weapons", and debated for three days. For
the summary record of the proceedings, see WHA46/1993/-Rec/3.
There then ensued a series of procedural votes:-
Motion by Zambia that voting be by secret ballot: carried by 43 in favor, 36
against, 5 abstentions.
Motion by the United States that the draft resolution be determined not to be within
the competence of WHO: defeated by 38 in favor, 62 against, 3 abstentions.
Motion by the United States to amend the draft resolution to thank the Secretary
General for his report and remove the reference to seeking an advisory opinion:
defeated by 33 in favor, 60 against and 5 abstentions.
Motion by the United States to cali for a two-thirds majority on the ground that the
resolution was an important question: defeated by 31 in favor, 61 against and 2
abstentions.
Motion on the draft resolution in Committee B: carried by 73 in favor, 31 against
and 6 abstentions.
Upon referral of the draft resolution to the plenary, Zambia's motion for a secret
ballot carried by 75 in favor, 33 against and 5 abstentions and the resolution itself was
adopted by a vote of 73 in favor, 40 against and 10 abstentions. 2
ln both the Committee and the plenary, Mr. Piel, WHO's legal counsel, advised the
delegates that" it is ultimately for the World Health Assembly to decide on the range of
its competence, including its competence to refer."
Part 2 of Question:
If so, is it now open to any state which was then a member of WH·o to challenge the
competence of WHO to request the Court to give an advisory opinion in terms of the
question set out in the Resolution?
Resoonse:
According to Article 75 of the WHO Constitution, Any question or dispute concerning
interpretation or applicationof this Constitution which is not settled by negotiation or by
the Health Assembly shall be referred to the International Court of Justice in conformity
with the Statute of the Court, unless the parties concerned agree on another mode of·
settlement.
Article 75 does not state how such a question "shall be referred". There is,
however, one precedent directly on point, i.e. Interpretation of Agreement of 25 March
1951 Between the WHO and Egypt, ICJ Reports 1980, p.67. ln that case, differing views
had been expressed as to the applicability .of the negotiation and notice provisions of
Section·37of the Agreement to the-removal of the WHO Regional Office from Alexandria.
To resolve these differences, the WHA Assembly adopted a resolution referring the
question to the International Court of Justice for an advisory opinion, which was rendered
in due course.
ln the instant case, it would have been open to the states opposed to WHA 46.40
to introduce a similar resolution, i.e. one requesting an advisory opinion as to whether
WHA 46.40 was within the competence of WHO, but they did not do so. Not having done
so, they should probably not be heard at this time to challenge either WHA 46.40 or the
previous vote declaring the draft resolution to be within the competence of WHO, any
more than they should be heard to challenge, or fail to comply with, any other Resolution
validly adopted by WHA.
Addendum. lt is not entirely clearfrom Part 1of Judge Karoma's questionwhether
it refers only to the procedural validity of the adoption WHA 46.40, which is discussed
above, or also to its substantive validity,i.e. to the competence of WHO. Against the
possibility that the latter is the case, the attentionhe Court is respectfully called to the
Memorial of the Government of The Republic of Nauru Il (Written Statements, September
1994) in support of the Application by the World Health Organization and its addendum.2. Question Asked By Judge Shi On 1 November 1995
Question:
Resolution 49/75K adopted by the General Assembly on 15 December 1994, by
which the General Assembly requests an Advisory Opinion of the Court on the
Legality of the Threat or Use of Nuclear Weapons, states in its preambular
paragraph:
"Welcoming resolution 46/40 of 14 May 1993 of the Assembly of the World Health
Organization, in which the Organization requested the International Court of Justice
to givean advisory opinion on whether the use of nuclear weapons by a state in
war or other armed conflict would be a breach of its obligations under international
law, includingthe constitution of the World Health Organization,"
My question is this:
"What, if any, are the legal implications of said preambular paragraph in relation
to the competence of WHO to request an advisory opinion from the Court on the
question putto the Court?"
Response:
Under Article 96(2) of the UN Charter, the General Assembly is the source of
authority for advisory opinion requests put to the Court by specialized agencies.
ln the case of WHO, such blanket authority was conferred by Article X.2 of the
Agreement between the United Nations and WHO.
Each requesting organization is, in principle, competent to determine its
competence to request an advisory opinion and, in this case, the World Health
Assembly adopted a separate resolution confirming its competence before acting
on WHA 46.40. Nevertheless, by "welcoming" resolution WHA 46.40, the General
Assembly, as the source ofWHO's authority in advisory opinion matters, confirmed
and lent weight to WHA's own determination of its competence.3. Question Asked By Vice-President Scwebel on 2 November 1995
Question:
France maintains that it is "undeniable" that its policy of nuclear deterrence has
contributed, for almost half a century, to the maintenance of stability and of world peace.
If this be the fact, what establishes that fact?
Response:
lt is as difficult to "establish" that deterrence has kept the peace - or, for that matter, has
not kept the peace - as it is to prove that ghosts exist, do not exist. The only provable
fact is that, for almost half a century, the major nuclear powers have not been at war with
each other. They have, however, been at war with other countries and within themselves.
For instance The United Kingdom with Argentina; China with Vietnam; the United States
with North Korea, China, Vietnam, Grenada, Panama and Iraq; the Soviet Union with
Afghanistan; the Russian Federation in Chechnya and other parts of its territory; Israel.·
(a known but undeclared nuclear power) with severa! of its neighbors.
Attachment A lists 150 transborder and civil wars during the period 1945 to 1992,
resulting in over fourteen million civilian and nearly eight million military deaths1. This is
hardly a record of peace and stability. lndeed, it has been said that nuclear weapons
made the world safe for conventional wars.
ln addition to the conventional wars which were actually fought, many of which
involved surrogates of the nuclear super-powers and were accurately dubbed "proxy
wars", there were severa! instances in which the world teetered on the brink of nuclear
war. ln the Appendix to his by now famous book "ln Retrospect", Robert Mc Namara,
former Defence Secretary of the United States, makes an eloquent and weil documented
case for the proposition that
the experience of the Cuban Missile Crisis in 1962 - and, in particular, what has
been learned about it recently - makes clear that so long as we and other Great
Powers possess large inventories of nuclear weapons, we will face the risk of their
use.2
This leads Mc Namara to the conclusion that, "insofar as achievable ..., we should move
back to a non nuclear world."3
1 Ruth Sivard, World Military and Social Expenditures 1993, p.21
2 Robert Mc Namara, ln Retrospect. p.338
3 Id. - See Attachment B - 2 -
The argumentthat nuclear deterrence provides stability is based on the assumption
(1) that governments act rationally, (2) that no government would rationally make a
decision that could trigger nuclear retaliation and (3) that nuclear war is unlikely to occur
unless deliberately chosen. Ali three assumptions are erroneous:
(1) Governments, like individuals, can fall prey to psychological or ideological
imperatives which may override considerations of the long term interests of their
countries. The Japanese attack on Pearl Harbor, which was sure to bring the
United States into war with Japan, is frequently cited as an example of such
irrationality.
(2) ln the words of the United States Joint Chiefs of Staff, one "cannot rule out
the possibility that an opponent may be willing to risk destruction or
disproportionate Jossfollowing a course of action based on a perceived necessity,.·
whether rational or in a totally objective sense"4
(3) The possibility of an accidentai nuclear launch due, for instance, to
computer malfunction or misreading, or to confusion resulting from convoluted
command and control systems, is ali too real. A recent study of such systems in
the United States concludes: "Provocative and risky deterrent practices, ranging
from strategie targeting to launch-on-warning to pre-delegation were developed
with littleoversight."s An even more frightening analysis of the increasingly
unstable Russian "haïr trigger" system is contained in the testimony given last
August to a U.S. Senate Committee by Bruce Blair of the Brookings Institution, a
former air force officer and project directorf the Office of Technology Assessment
of the U.S. Congress (See Attachment C).
Forthese reasons, "nuclear deterrence contains no provision for its own resolution
short of continued escalation, a preemptive first strike, or accidentai war."s
4 Chairman of the Joint Chiefs of Staff, Doctrine for Joint Nuclear Operations. US
Department of the Army, 1993.
s The Bulletin of the Atomic Scientists, November/December 1995, p.41
s Kennedy, A Critique of United States Nuclear Deterrence Theory, 9 Brooklyn
Journal of International Law 66 (1983). - 3 -
Finally, it should be noted that the value of deterrence, whatever one's view of it,
is irrelevant to the questions before the Court. If the threat and use of nuclear weapons
are illegal per se, they cannet be legitimated by any theory of deterrence. Even were
such legitimation possible, it could only be based on a scenario that would totally and
unconditionally guarantee the non-use of nuclear weapons forever and a day. lt hardly
needs saying that such a scenario cannet seriously be advanced or defended in the world
in which we live.4. Questions Asked by Vice-President Schwebel
on 3 November 1995.
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Question:
"\1\/hen,in paragraph 23 of the Written Statement of Mexico on the General Assembly's
question, it is maintained, in interpretation of the Nuclear Non-Proliferation Treaty,-that
the Treaty treats the possession of nuclear weapons as "temporary", is that term to be
understood to mean that nuclear weapons may be retained in the arsenals of the five
nuclear Power until the achievement of general and complete disarmament under
effective international control?"
Response:
No, the term "temporary" is to be understood to mean that as a fact nuclear weapons will..
exist in the arsenals of the five declared nuclear weapon States until those weapons are
eliminated pursuant to the obligation to negotiate "nuclear disarmament" set forth in
Article VI of the NPT. This obligation applies whether or not a treaty on general and
complete disarmament has been achieved pursuant to the obligation to negotiate such
a treaty set forthin the second clause of Article VI. This is evident from the language of
Article VI, which provides:
Each of the Parties to the Treaty undertakes to pursue negotiations in good faith
on effective measures relating to cessation of the nuclear arms race at an early
date and to nuclear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control.
The first clause requires negotiations of effective measures to cease the arms race, that
is tohait nuclear weapons development, for example by a comprehensive test ban, and
also to achieve nuclear disarmament, that is the elimination of nuclear weapons. The
second clause, separated from the first by a comma, and prefaced in English with a
second "on", requires negotiation of treaty on general and complete disarmament. Thus
there is 1)an obligation to negotiate in good faith effective measures relating to cessation
of the nuclear arms race and nuclear disarmament, and 2) an obligation to negotiate in
good faith a treaty on general and complete disarmament. The obligation to negotiate
nuclear disarmament and the obligation to negotiate general disarmament are clearly
distinct. 2 -
This interpretation was stated by the United States upon its submission together
with the Soviet Unionof the draft of Article VI which eventually, with a minor amendment,
was adopted. On January 18, 1986, the U.S. representative, Adrian S. Fisher, explained
that ArticleVI constituted a "solemn affirmation of the responsibility of nuclear-weapon
states to strive for effective measures regarding cessation the nuclear arms race and
disarmament." Mr. Fisher then stated, and this is the criticallanguag"Moreover, the
article does not make the negotiationof these measures conditional upon their inclusion
within the framework of a treaty on general and complete disarmament." ENDC/PV.357,
reprinted in U.S. Arms Control and Disarmament Agency, Documents, 1968, at 14-15.
As George Bunn, one of the principal U.S. negotiators of the NPT, has explained,
the practiceof the parties subsequent to conclusion of the NPT confirms the foregoing
interpretation. See George Bunn, Extending the Non-Proliferation Treaty: Legal
Questions Faced by the Parties in 1995, American Society of International Law, Issue
Papers on World Conferences No.2, 1994, pp.19-26 (see Attachment 1 for pertinent
pages). The NPT was signed on July 1, 1968. Later that summer, the Soviet Union,
United States and other countries present at the Geneva Conference gave meaning to
ArticleVI by agreeing to a list of measures that could be discussed there under a heading
taken directly from Article: "effective measures relating to the cessation of the nuclear
arms race at an early date and to nuclear disarmament". The measures listed under that
heading included "the cessation of testing, the non-use of nuclear weapons, the cessation
of production of fissionable materials for weaponlJse~, cesstaien of manufacturEn:>f
weapons, and reduction and subsequent elimination of nuclear stockpiles, nuclear free
zones, etc." This setof measures was the first item on the agenda, and did not include
general and complete disarmament. The latter topic rather was the fourth item on the
agenda. See Report of ENDC to the United Nations and the UN Disarmament
Commission of August 28, 1968, ENDC/236, reprinted in ACDA, Documents, 1968, at
591, 593. Thus under the agreed interpretation of the program implicit in Article VI made
soon after the treaty was signed, negotiation of elimination of nuclear arsenals could take
place under the "nuclear disarmament" heading without reference to achievement of
general disarmament.
The separation of the obligation to negotiate nuclear disarmament and the
obligation to negotiate general disarmament has been maintained during the 25 year
historyof the NPT since it entered into force in 1970, as shown by the attitude of the NPT
parties towards the U.N. Special Session on Disarmament in 1978. That the nuclear
disarmament agenda is distinct from other disarmament agendas was recognized by the
Special Session. lts final document, at paragraph 45, laid down the world's disarmament
prioritiesn this order - nuclear weapons, then other weapons of mass destruction, then
conventional weapons. Further, the programme of action set out at paragraphs 43 to 112
discussed separately the steps to be taken with respect to those priorities. This
distinction between nuclear disarmament and general disarmament was reaffirmed by the 3
1985 NPT Review Conference. As George Bunn records, supra at 23, the final
declaration of the 1985 Conference, in referring to the results of the 1978 Special
Session, "reflects agreement by the NPT's parties that zero nuclear weapons need not
be pursued solely in the context of general and complete disarmament. ln their Article
VI recommandation, the 1985 NPT parties summarized with approval, the conclusions of
a 1978 special General Assembly session on disarmament - thereby agreeing that
"phased programme" leadingto zero nuclear weapons was within the Article VI obligation
relating to 'nuclear disarmament,' not just that relating to general and complete
disarmament."
This year, on 6 April 1995, shortly before the NPT Review and Extension ·
Conference, a "Declaration by France, Russia, the United Kingdom and the United States
in Connection with the NPT" was made in the Conference on Disarmament on 6 April
1995. lt contained the following paragraph: "We solemnly reaffirm our commitment, as
stated in Article VI, to pursue negotiations in good faith on effective measures relating to,
nuclear disarmament, which remains our ultimate goal". Neither in that paragraph nor in
any part of the declaration is there any linkage between the achievement of nuclear
disarmament and the achievement of general disarmament. CD/1308, 7 April1995 (see
Attachment 2).
Finally, the Principles and Objectives of Nuclear Non-Proliferation and
Disarmament adopted by the 1995 Review and Extension Conference maintain the
distinction between nuclear disarmament and general disarmament. NPT/CONF.1995/32
(Part 1),pp.9-12 (see Attachment 3). For example, paragraph 3 includes the statement
that "the nuclear-weapon States reaffirm their commitment, as stated in Article VI, to
pursue in good faith negotiations on effective measures relating to nuclear disarmament".
No reference is made in that paragraph to general disarmament. Paragraph 4 identifies
the following as part of a "programme of action" "important in the full realization and
effective implementation of Article VI": "The determined pursuit by the nuclear-weapon
States of systematic and progressive efforts to reduce nuclear weapons globally, with the
ultimate goal of eliminating those weapons, and by ali States of general and complete
disarmament under strict and effective international control". This formulation reflects the
separation between nuclear disarmament and general disarmament found in the original
language of Article VI and confirmed by the negotiating history and subsequent practice
and statements of states parties.
Any suggestion that nuclear disarmament is dependent upon conventional
disarmament erodes the line which the conscience of humanity has drawn between
conventional weapons and weapons of mass destruction. lt treats in derisory fashion the
obligation to achieve eliminationof nuclear weapons - the worst of the weapons of mass
destruction - because it makes fulfillment of that obligation contingent upon a process
for which the world is not yet ready, namely comprehensive conventional disarmament. - 4 -
ln contrast to conventional weapons, serious proposais, negotiations, and conventions
relating to elimination of weapons of mass destruction including nuclear weapons have
been on the international agenda for decades, including the Geneva Gas Protocol of
1925, the Acheson-Lilienthal proposai for an international agency that would control ali
weapons usable nuclear materials in the late 1940s, and the biological and èhemical
weapons conventions concluded in recent years. As appealing as it may sound to sorne
peace advocates, or as convenient an excuse for avoiding reduction and elimination of
nuclear arms as it may be for others,·there exists no necessary link between nuclear
disarmament and general and complete disarmament, nor must any be established, for
that would totally negate prospects for eliminationof nuclear weapons within a reasonable
timeframe.
Question:
"V\Ihen,in paragraph 26 of the Written Statement of Mexico, it is noted that the nuclear
disarmament obligations contained in the Treaty have 'taken on indefinite force until they
are fully complied with', does that imply that, until the abolition of nuclear weapons, their
possession, and threat and use in certain circumstances may not be prohibited?"
-----Response-;.-----------------
The requests for advisory opinions before the Court do not expressly concern possession.
Concerning threat or use, there is nothing in the Nuclear Non-Proliferation Treaty (NPT)
that in any way exempts the nuclear-weapons States party to the treaty from the rules
and principles of the law of armed conflict, environmental law, human rights, the United
Nations Charter, and laws of humanity that make illegal the threat or use of nuclear
weapons in any circumstance. Further, the reference in the preamble to "the devastation
that would be visited upon ali mankind by a nuclear war'' and the Article VI requirement
that nuclear disarmament be negotiated in good faith are wholly consistent with, indeed
support, the illegality of the threat or use of nuclear weapons.
To the extent the Court wishes to address the legality of possession, the NPT does
recognize the existential fact that nuclear weapons will exist in the arsenals of the
nuclear-weapons States party to the Treaty until the weapons are eliminated pursuant to
the Article VI obligation and the other mandates of international law. Nowhere, however,
does the Treaty in any way clothe this fact with any entitlement or right. Rather, the
Treaty acknowledges the fact of possession of nuclear weapons pending their elimination
only indirectly, by identifying nuclear-weapon States as parties to the Treaty who have
manufactured and exploded a nuclear weapon prier to January 1, 1967 (Article IX(3)) and
placing certain obligations on those States, for example not to transfer nuclear weapons - 5
to "any recipient whatsoever'' (Article 1). ln contrast, the prohibition of possession of
nuclear weapons by State parties not meeting the definition of a nuclear-weapon State
set forth in Article Il directly and expressly establishes a rule of illegality of possession
applicable to the vast majority of States. Combined with the illegality of threat or use of
nuclear weapons and the nuclear disarmament obligation of Article VI applicable to the
nuclear-weapon States, it appears that a universal rule of illegality of possession has
crystallized, though states possessing nuclear weapons are still in the process of
complying with that rule. Question Asked By Judge Schwebel On 3 November 1995.
Question:
ln paragraph 45 of its Written Statement, Mexico maintains tbat Security Council
Resolution 984 (1995) and the intent of States party to the Non-Proliferation Treaty
"implicitly recognize the illegality of the threat or use of nuclear weapons" against a non
nuclear weapons State and the Mexican statement goes on to say: "Obviously, were the
threat or the use of nuclear weapons a legal act, negative security assurances to protect
NNWSs would have been unnecessary." Why does this follow? Do States only restrict
possible course of action because such courses of action are illegal?
Response:
No, as a general matter, states do not only restrict possible courses of action because
such courses of action are illegal. However, many - perhaps most - treaties by which
states impose restrictions on themselves an_deach other are based on and confirm or..
codify general principles of law. Non-aggression pacts, for instance, were the common
currency of intèrnational relations weil after the illegality of aggression had entered the
body of customary law.
lt isin this sense that Mexico's proposition should be understood, i.e. "There is a
customary norm illegalizing the use and threat of use of nuclear weapons; the negative
security assurances implement this norm.''1,Question asked by Vice-President Schwebel
on 6 November 1995
Question:
The distinguished representative of the Islamic Republic of
Iran advanced the argument that the General Assembly's
resolutions that declare the use of nuclear weapons a
violation of the United Nations Charter and a crime against
humanity are an authoritative interpretation of the United
Nations Charter.
Had the General Assembly's Declaration on Principles
of International Law concerning Friendly Relations and Co
operation among States also invoked by Iran been adopted, not
as it was by consensus and without the opposition of a single
Member, but rather by a vote in which sorne 20 States,
including Permanent Members of the Security Council, had
voted against or abstained while denying that the Friendly
Relations Declaration constituted an authoritative
interpretation of the Charter, could the Declaration be
regarded as an authoritative interpretation of the Charter?
If not, how can the cited resolutions on nuclear weapons be
so regarded?
Response:
Iran's position in its oral statement to the court was:
Although resolutions of the General Assembly are
commonly perceived to be of a recommendatory nature,
declarations interpreting the provisions of the
Charter, along with those declaring the principles of
international law, certainly do not constitute mere
recommendations.
The General Assembly resolution 1653 adopted in 1961
particularly should be mentioned here. Paragraph 1 (A)
of this resolution declared that the use of nuclear
and thermonuclear weapons is contrary to the spirit
letter, and aims of the United Nations, and, as such,
is a direct violation of the Charter of the United
Nations. Clearly, this assertion is also not a mere
recommendation because it is based on the provisions
of the Charter. (Uncorrected Verbatim Record, 6
November 1995, pp. 26-27) ,,
;,
2
Iran further stated concerning the existence of op1.n1.on juris
that General Assembly resolutions "certainly reflect the
views of the governments concerning the abhorrence of the
use of nuclear weapons". Id., p. 45.
Iran's position thus appears to be that the General
Assembly resolutions are more than mere recommendations, and
should be accorded great weight in interpreting the Charter
and determining customary law. This position is
unassailable. The fact that nuclear-weapon states and their
close allies have voted against or abstained as to the
General Assembly resolutions, and have continued to maintain
nuclear weapons and declare their weapons may be used, is not
dispositive.
It should be noted, in this connection, that, while
20 may seem a large number of negative votes, many UNGA
resolutions calling the use of nuclear weapons a crime
against humanity, a violation of the UN Charter and/or a
violation of international law were adopted by what may be
fairly described as overwhelming margins, e.g. 72 to 4 (Res.
2936 of 1972), 103 to 18 (Res. 33/71B of 1978), 112 to 16
(Res. 34/83C of 1979) 11:3 t9 1~ (Res. ~!5/152JL Q.8 Q), 121
t6 J.g (Res. j6/921 of 1981), 117 to 17 (Res, 37/100C of
1982), 95 to 19 (Res. 38/75 of 1983), 128 to 17 (Res. 39/63H
of 1984), 126 to 17 (Res. 40/151F of 1985), 132 to 17 (Res.
41/60F of 1986), 135 to 17 (Res. 42/39C of 1987), 133 to 17
(Res. 43/76E of 1988), 134 to 17 (Res. 44/117C of 1989), 125
to 17 (Res. 45/59B of 1990), 122 to 16 (Res. 46/37B of 1991),
126 to 21 (Res. 47/53C of 1993), and 120 to 23 (Res. 48/76B
of 1993).
Also, while repetition by itself may not create a
binding norm, as France observed in its oral statement,
constant repetition over an extended period of time certainly
helps. "Repetition answers the objection that resolution
represents only a temporary majority which may quickly
change." (Sloan, United Nations General Assembly Resolutions
in Our Changing World (1991) p. 112).
Adherence to an illegal course of conduct by a few
states cannat negate the law. As the Court stated in the
Nicaragua case, "The court does not consider that, for a rule
to be established as customary the corresponding practice
must be in absolutely rigorous conformity with the rule."
Nicaragua v. USA (I.C.J. Reports 1986, para. 186). "[A]
customary rule may arise notwithstanding the opposition of
one State, or even perhaps a few States, provided that 3
otherwise the necessary degree of generality is reached."
Waldock, General Course on Public International Law, p. 87.
The necessary degree of generality in the case of nuclear
weapons is reflected in the non-use of such weapons since
1945, the commitments to non-use made in negative security
assurances and in connection with nuclear free zones, the
prohibition of possession by the vast majority of .states set
forth in the Non-Proliferation Treaty, and the repeated
declarations of a large majority of States over more than
three decades that their use is illegal. Moreover, where
matters fundamental to humanity are concerned, dissent from
norm articulation and deviation in practice cannot be
permitted to prevent the emergence of a customary rule or an
accepted interpretation of the Charter.
As Professor Schachter has remarked: "In many cases,
it would be pertinent to determine whether State practice
both before and after the adoption of the resolution varies
so significantly from the norm asserted as to deprive it of
validity as custom or agreed interpretation. This
determination -- namely, whether inconsistent practice should
vitiate an asserted principle may involve drawing
distinctions among norms based on value judgments of their
significance. For example, a norm considered essential to
expresses(such a basice universally of nheldntemoralionprinciple or o(suchat as
that against torture) would retain its validity despite
tocondemarcation pracofcejurisdictionhe orherStates'd, rightsm relininareas
beyond national territory (for example, the declarations on
sea-bed mining or outer space) should probably not be
Stateaineconduct." valid (Internationalface Law in Theoryal and Practice,
178 Recueil des Cours 121 (1982-V).) Few will disagree that
the norm here at issue fall into the first of Professor
Schachter's categories.
An example of a non-consenting state not being
exempted from a customary rule is South Africa, which
persistently dissented from the rule prohibiting racial
discrimination while that rule was developing and after it
had been universally accepted.
When a particular norm embodies in a series of
resolutions acquires a binding force is a question incapable
of being answered precisely. In this case, it is submitted,
the normative threshold was crossed long ago. The court is
also referred to the oral statement made on behalf of Samoa
by Professor Clark on 13 November 1995. 4
Finally, aside from the issue of the existence of a
customary rule specifically applying to nuclear weapons, the
policies of certain nuclear-weapon States in no way affect
the validity of general rules and principles of humanitarian
law, human rights law, and environmental law which,· as it has
been demonstrated, operate to prohibit the threat or use of
nuclear weapons.
Joint answers of Malaysia and the Republic of Zimbabwe to questions by Members of the Court