Legality of the Use by a State of Nuclear Weapons in Armed Conflict - (Request for Advisory Opinion by the World Health Organization) - Advisory Opinion

INTERNATIONALCOURTOF JUSTICE
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Communiqué
unofficial
for inmediate release

No. 96/22
8 July 1996

Le-lity of the Use by a State of Nuclear Wea~ons in Armed Conflict
meauest for Advisow O~inion bv the World Health Owanization)

The Hague, 8 July 1996. The InternationalCourt of Justice found today, by eleven votes
to three, that it was not able to give the advisory opinion requested by the World Health
Organizationon the question of the Lecality of theUse bv a State of Nuclear Wea~onsin Armed
Confiict.

TheCourtconsideredthat therearethree conditionswhichmust be satisfiedinorderto found
the jurisdiction of the Court when a request for an advisory opinion is submitted to it by a
specializedagency: the agency requestingthe opinion mustbe duly authorized,underthe Charter,
to request opinionsom the Court; the opinion requested must be on a legal question; and this
question mustbe one arising within the scope of the activities of the requesting agency.

Thefirst two conditions had been met. Withregard to the third, however, the Court found

that althoughaccordingto its Constitutionthe WorldHealthOrganization isauthorizedto dealwith
the effects onhealth of the use of nuclear weapons,or of any other hazardousactivity,and to take
preventive measures aimed at protecting the health of populations in the event of such weapons
being used or such activities engaged in, the question put to the Court in the present case relates
not to the effects of the use of nuclear weapons on health, but to the le~alityof the use of such
weapons inview oftheirhealth and environmentaleffects. Andthe Courtpointedoutthat whatever
those effectsmight be, the competence of the WHO to deal with them is not dependent on the
legality ofthe acts that caused them. TheCourt furtherpointedout that international organizations
do not, unlike States, possess a general competence, but are governed by the "principle of
speciality",that is to Say,they are investedby the Stateswhich create them with powers,the limits
of which are a function of the common interests whose promotion those States entrust to them.
Besides, the World Health Organization is an internationalorganization of a part-cuaar kind

"specializedagency" forming part of a system based in the Charter of the United Nations, which
is designed to organize international co-operation in a coherent fashion by bringing the
United Nations, investedwith powers of general scope, intorelationship with various autonomous
and complementaryorganizations, investedwith sectorialpowers. The Court therefore concluded
that the responsibilitiesof the WHO are necessarilyrestricted to the sphere of public "health" and
cannot encroachon the responsibilities of other partsof theUnited Nations system. And that there
isno doubtthat questionsconcemingtheuse of force,the regulationof armamentsanddisarmament
are within the competence of the United Nations and lie outside that of the specialized agencies.Therequest for an advisoryopinion submittedbythe WHO thusdoesnot relateto a questionwhich
arises "within the scope of [the] activities" of that Organization.

The Courtwas compod as follows: PresidentBedjaoui,Vice-PresidentSchwebel; Jvd~es

Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Ferrari Bravo, Higgins; Re~istrarValencia-Ospina.

Judges Ranjeva and Ferrari Bravo appended declarations to the Advisory Opinion of the
Court; Judge Oda appended a separate opinion; Judges Shahabuddeen,Weeramantxyand Koroma
appended dissenting opinions.

(A brief summary of the declarationsandof the opinionsmay be foundinthe Annexto this
Press Communiqué.)

The printed text of the Advisory Opinion and the declarationsand opinions appended to it
will become available in due course (orders and enquiries shouldbe addressedto the Distribution
and Sales Section, Office of the United Nations, 1211 Geneva 10; The Sales Section, United
Nations, New York, N.Y. 10017; or any appropriately specializedbookshop).

A surnmaryof the Advisos, Opinion is given below. It has been prepared by the Registry
for the use of thePress and in no way involvesthe responsibility ofthe Court. It cannot be quoted

against the text of the Advisory Opinion, of which it does not constitute an interpretation. Summaw of the Advisow O~inion

Submissionof the request and subsequent procedure (paras. 1-9)

TheCourt beginsby recallingthat by a letterdated 27 August 1993,filed in the Registryon
3 September 1993, the Director-General of the World Health Organization (hereinafter called
"the WHO") officially communicated to the Registrar a decision taken by the World Health
Assembly to submit a question to the Court for an advisoryopinion. The question set forth in
resolution WHA46.40adopted by the Assembly on 14May 1993, reads as follows:

"In view of the health and environmental effects, would the use of nuclear
weaponsby a State in war or other armed conflict be a breach of its obligations under
internationallaw including the WHO Constitution?"

The Court then recapitulates the various stages of the proceedings.

Jurisdiction of the Court (paras. 10-31)

The Court beginsby observing that, in view of Article 65,paragraph 1,of itsStatuteand of
Article 96, paragraph2, of the Charter, three conditions must be satisfied in order to found the
jurisdiction of the Courtwhen a request for an advisory opinionis submittedto it by a specialized
agency: the agencyrequesting the opinion must be duly authorized,underthe Charter, to request
opinions fiomthe Court; the opinionrequested mustbe ona legalquestion; andthis question must
be one arising within the scope of the activities of the requesting agency.

Authorizationof WHO to request advisory opinions (paras. 11 and 12)

Wherethe WHO is concerned, the above-mentionedtexts are reflected in Article 76 of that
Organization'sConstitution, and in paragraph 2 of Article X of the Agreement of 10July 1948
betweentheUnited Nations and the WHOwhichthe Courtfindsleave nodoubtthat the WHOhas
been dulyauthorized,inaccordancewithArticle 96,paragraph2,of theCharter,torequestadvisory

opinions of the Court.

"Legal question"(paras. 13-17)

The Court observesthat it has already had occasion to indicate that questions

"fiarnedin terms of law and raisring] problems of international law ... are by their
very nature susceptible of a reply based on law... [and]appear ... to be questions
of a legalcharacter"(Western Sahara. Advisory Opinion.I.C.J. Reports 1975,p. 18,
para. 15).

It finds that the question put to the Court by the World Health Assembly does in fact
constitute a legal question, as in order to rule on the question submitted to it, the Court must

identifi the obligationsof States underthe rules of law invoked,and assesswhether the behaviour
in question conformsto those obligations, thus giving an answer to the question posed based on
law. The fact that this question also has political aspectas, in the nature of things, is the case
with so many questions which arise in international Iife, does not suffice to deprive it of its
character as a "legal question" and to "deprivethe Court of a competenceexpresslyconferredon
it by its Statute". Nor are the political nature the motives whichmay be saidto have inspired
the request, or the political implications that the opinion given might have of relevance in the
establishment of the Court'sjurisdiction to give such an opinion.

Question arising "withinthe scope of the activities" of WHO(paras. 18-31)

The Court observesthat in order to delineatethe field of activityor the area of competence
of an international organization,one must refer to the relevantrules of the organizationand,in the
first place,to itsconstitution. From aforma1standpoint,theconstituentinstrumentsof international
organizations are multilateral treaties, to which the well-establishedrules of treaty interpretation

apply. But they are also treaties of a particulartype; theirobject is to createnew subjects of law
endowed with a certain autonomy,to whichthe parties entrustthe taskof realizing commongoals.
Such treaties canraise specificproblems of interpretationowing, interalia, totheircharacterwhich
is conventionaland at the same time institutional; the verynature of the organizationcreated,the
objectives which have been assigned to it by its founders, the imperatives associated with the
effective performance of its functions, as well asits own practice, are al1elements which may

deserve special attention when the time comes to interpret these constituenttreaties.

According to the customary rule of interpretation asexpressed in Article 31 of the 1969
Vienna Convention on the Law of Treaties, the terms of a treaty must be interpreted "in their
context and in the light of its object and purpose" and there shall be

"taken into account, together with the context:

(3) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation".

The Court has had occasionto apply this rule of interpretationseveraltimes andwill also apply it
in this case.

Interpretation of the WHO Constitution(paras. 20-26)

The Court points outthat the functionsattributed to the WHOare iistedin22 subparagraphs
(subparagraphs (.& to(v)) in Article 2 of its Constitution. None of these subparagraphsexpressly
refers to the legality of any activity hazardous to health; and none of the functions of the WHO
is dependent upon the legalityof the situations upon which it must act. Moreover,it is stated in
the introductory sentence of Article 2 that the Organization discharges its functions "in order to
achieve its objective". The objective of the Organization is defined in Article 1 as being "the

attainment by al1peoples of the highest possible level of health".

Also referring to the Preamble to the Constitution, the Court concludes that, interpretedin
accordance with their ordinarymeaning, in their context and in the light of the object and purpose
of the WHO Constitution, as well as of the practice followed by the Organization,the provisions
of its Article 2 may be read as authorizing the Organizationto deal with the effects on healthof

the use of nuclear weapons,or of any other hazardous activity, and to take preventive measures
aimed at protecting the health of populations in the event of such weapons being used or such
activities engaged in. It goes on to observe that the questionput to the Court in the present case relates, however,
not to the effects of the use of nuclear weapons on health, but to the le~aliîyof the use of such
weapons inview of their health and environmentaleffects. And the Court pointsout that whatever
those effects might be, the competence of the WHO to deal with them is not dependent on the

legality ofthe actsthat caused them. Accordingly,itdoesnot seemto the Courtthat the provisions
of Article 2 of the WHO Constitution, interpretedinaccordancewiththe criteriareferredto above,
can be understoodas conferring upon the Organizationa competenceto addressthe legality ofthe
use of nuclear weapons, and thus in turn a competence to ask the Court about that.

In the view of the Court, none of the functions referred to in the resolution by which the
Court has been seised of this request for anopinion has a sufficient connectionwith the question

before it for that question to be capable of being considered as arising "withinthe scope of [the]
activities" of the WHO. The causes ofthe deteriorationof hurnanhealth are numerousandvaried;
and the legal or illegal character of these causes is essentially immaterial to the measures which
the WHO must in any case take in an attemptto remedytheir effects. In particular,the legalityor
illegality of the use of nuclear weapons in no way determines the specific measures, regarding
health or otherwise(sîudies, plans, procedures,etc.), which could be necessary in order to seek to
prevent or cure some of their effects. The reference in the question put to the Court to the health

and environmentaleffects, which accordingto the WHOthe use of a nuclear weapon willalways
occasion, does not make the question one that falls within the WHO'Sfunctions.

The Court goes on to point out that internationalorganizations are subjects of international
law which do not, unlike States, possess a general competence. International organizations are
govemed bythe "principle of speciality",that isto Say,they are investedbythe Stateswhichcreate
them with powers, the limits of which are a function of the common interests whose promotion

those Statesentnist to them.

The powers conferred on internationalorganizations are normally the subject of an express
statement in their constituent instruments. Nevertheless, the necessities of international life may
point totheneedfororganizations, inorderto achievetheirobjectives,to possesssubsidiarypowers
which are not expressly provided for in the basic instrumentswhich govern their activities. It is
generally acceptedthat international organizations can exercise such powers, known as "implied"

powers.

The Courtis of the opinion, however,that to ascribeto the WHOthe competenceto address
the legalityofthe useof nuclear weapons - even inviewof their health andenvironmentaleffects
- would betantamount to disregardingthe principle of speciality; for such competencecouldnot
be deemed a necessary implication of the Constitution of the Organization in the light of the

purposes assignedto it by its member States.

The WHO is, moreover, an internationalorganization of a particular kind. As indicated in
the Preamble and confirmed by Article 69 of its Constitution, "the Organization shall be brought
into relationwith the United Nations as one ofthe specializedagenciesreferredto in Article 57 of
the Charter of the United Nations." As itsArticles 57, 58 and 63 demonstrate,the Charter laidthe
basis of a "system"designed to organizeinternationalCO-operation inacoherentfashionbybringing

the United Nations, invested with powers of general scope, into relationship with various
autonomous and complementary organizations, investedwith sectorial powers.

If, accordingtothe ruleson which that systemisbased,the WHOhas, byvirtue of Article 57
ofthe Charter, "wideinternational responsibilities",those responsibilitiesarenecessarilyrestricted
to the sphere of public "health" and canot encroach on the responsibilities of other parts of the
United Nations system. And there is no doubt that questions concerning the use of force, the

regulation ofarmaments and disarmamentarewithin the competenceofthe United Nations and lie
outside that of the specialized agencies. For al1 these reasons, the Court considers that the question raised in the request for an
advisory opinionsubmittedto it by theWHO does not arise "withinthe scope of [the] activities"
of that Organizationas defined byits Constitution.

WHO'Spractice (para. 27)

Aconsiderationofthe practiceof the WHObearsouttheseconclusions.None of the reports
and resolutionsreferredto in the PrearnbIeto World HealthAssembly resolutionWHA46.40,nor
resolution WHA46.40 itself, could be taken to express, or to arnount on its own to a practice
establishingan agreementbetweenthe membersof the Organizationto interpret its Constitutionas
empoweringit to addressthe questionof the legalityoftheuse of nuclearweapons,nor can, inthe

view of the Court, such a practicebe inferredfrom isolated passagesof certainresolutions ofthe
World Health Assemblycited duringthe presentproceedings.

TheCourtfürtherconsidersthatthe insertionofthewords "includingthe WHOConstitution"
in the questionputto the Court does not changethe fact that the WHOis notempowered to seek
an opinionon the interpretationof its Constitution in relationto mattersoutsidethe scope of its
functions.

Other arguments (paras. 29 and 30)

The Court finallyconsideredthat other argumentsput forwardin the proceedingsto found
the jurisdiction of the Court - conceming the way in which World Health Assembly
resolution WHA46.40 had been adopted and conceming the reference to that resolution in
General Assembly resolution 4917% - did not affect the conclusions reached by the Court
conceming the competence ofthe WHO to request anopinion on thequestionraised.

Having arrivedat the view that the requestfor an advisoryopinionsubmittedby the WHO
does notrelate to a questionwhicharises "withinthe scopeof [the]activities"ofthat Organization
in accordance with Article 96,paragraph 2, of the Charter, the Court finds that anessential
condition of foundingitsjurisdiction in the presentcase is absent andthat itt, accordingly,
give the opinion requested.

Thefinal paragraphreads as follows:

"32. For these reasons,

THE COURT,

By elevenvotes to three,

Finds that it is not able to give the advisoy opinionwhichwas requestedof it
under World Health Assemblyresolution WHA46.40dated 14May 1993.

IN FAVOUR: President Bedjaoui; Vice-President Schwebel;Judges Oda,
Guillaume,Ranjeva,Herczegh, Shi,Fleischhauer, Vereshchetin, FerrarBravo,
Higgins.

AGAïNST: Judges Shahabuddeen,Weerarnantry, Koroma." Annex to Press CommuniauéNo. 96/22

Declaration of Jud~eRanjeva

Judge Ranjeva voted in favour of the decision of the Court as he considers that it accords
with the relevant law. He would nonetheless have prefened the Court to be more explicit with
respect to the problem of its advisoryjurisdiction, by stressingthat the fact that the structure of the
question put by the World Health Assembly had not been such as to enable it to exercise the
jurisdiction that it did, in any case, possess.

Declarationof Jud~e Ferrari Bravo

Judge Ferrari Bravo regrets that the Court should have arbitrarily divided intotwo categories
the long line of General Assembly resolutions that deal with nuclear weapons. Those resolutions
are fundamental. This is the case of resolution 1 (1) of 24 January 1946, which clearly points to

the existence of a truly solemn undertaking to eliminate al1 forms of nuclear weapons, whose
presence in military arsenals was declared unlawful. The Cold War, which intervened shortly
afterwards, prevented the development of this concept of illegality,while giving rise to the concept
of nuclear deterrence which has no leval value. The theory of deterrence, while it has occasioned
a practice of the nuclear-weapon States and their allies, has not been able to create a legal practice
serving as a basis for the incipient creation of an international custom. It has, moreover, helped to

widen the gap between Article 2, paragraph 4 of the Charter and Article 51.

The Court should have proceeded to a constructive analysis of the role of the
General Assembly resolutions. These have, from the outset, contributed to the formation of a rule
prohibiting nuclear weapons. The theory of deterrence has arrested the development of that rule
and, while it has prevented the irn~lementation of the prohibition of nuclear weapons, it is
nonetheless still the case that that "bare" prohibition has remained unchanged and continues to

produce its effects, at least with regard to the burden of proof, by making it more difficult for the
nuclear powersto vindicate their policies within the framework of the theory of deterrence.

Se~arate o~inionof Judge Oda

Judge Oda, while being in agreement with the Court'sdecision that the Request should be
dismissed as well as with the reasoning leadingto that decision, neverthelesswishes to make clear
his view that the Court should have taken more note of the fact that it was asked not only whether
the use of nuclear weapons would be a breach of the obligations of States under international law
but whether it would also be a breach of the obligations of States under the WHO Constitution.

Judge Oda is very concerned that the Court may be seised of more requests for advisory
opinion which may in essence be unnecessary and over-simplistic. He stressed that the advisory
function should only be used in cases of conflict or dispute and not merely to discuss general
matters of internationallaw.

He alsopointed out that advisory opinionshad been requestedby specializedagencies in three

previous casesin the history of the Court, but strictly in order to solve one or more legal questions
arising within the scope of their activities. This precedent has not been followed in the present
case. Judge Oda pointsout that theRequest of the WHO was drafted withoutthere being any real
agreementarnongthe delegatesin the WorldHealth Assemblyand, in particular,that it was brought
to the Court contraryto the repeatedadmonitionsof the LegaICounsel of theWHO, whocontended
that the Organizationwas not competentto bring this matter to the Court underArticle 96(2) of the
UnitedNations Charter.

The main reason for Judge Shahabuddeen's dissentis that, in his respectfulview, the Court
has mistaken the meaning of the WHO's question. Contraryto the Court's impression, the WHO
is not asking whether the use of nuclear weapons by one of its members is lawful under
internationallaw asa general matter; a more reasonable interpretationof the question is that the
WHO isasking whether suchuse would be a breach of a member'sobligationsunder international
law but only in so far as it wouldalso be a breach of its obligationsunder the Constitutionof the

WHO. The WHO would have to deal with the health and environmentaleffects producedby the
action of a member even if that action is in breach of the member's obligations under that
Constitution; but it nevertheless remains competent for the WHO to concem itself with the
question whether, in producinga situation demanding action by the WHO, a member may have
breached its obligationsunderthatConstitution.

Judge Weerarnantry,in his DissentingOpinion, statedthat the question askedby the World
HealthOrganizationrelated to obligations inthree particular areas:

Stateobligationsin regardto health;
&) Stateobligationin regardto the environment; and
State obligationsunderthe WHO Constitution.

The questionasked by WHOwas substantiallydifferent fromthe general questionof legality
of use or threat of use of nuclearweapons, asked by the General Assembly. However, the Court
had treatedit as a questionof generalillegality,and had not examinedstate obligationsin the three
areasmentioned.

Had the Court inquiredinto these three areas, it would have found that each of them was
intûnately IuScedwith the legitimateconcerns of WHO and that, in each of these areas, state
obligationswere violated by nuclearweapons. Judge Weeramantry, in his Opinion, examines the
health-related andenvironrnentally-relateeffects of nuclear weapons to show the diametrical
contrast between those effects and the obligations of States, both as members of the international
comrnunity,in general, and as subscribingparties to the WHO Constitution.

Judge Weeramantry strongly disagreed with the majority of ùie Court, who had held that
WHO'squestion was outsidethe scope of its legitimatesphere of interest. His view, on the other

hand, was that the question asked by WHO was entirely within its legitimateand constitutional
sphere of interest.HO was in factto be cornrnendedfor havinggiven its attentionto the question
of the legality of the nuclear weapon,which was the greatestman-made threatto hurnanhealththus
far devised.

WHO was the only healthauthorityto whom the worldwould have to tum for international
assistanceif a country werestrickenwith a nuclear attack, for its own health services would have
collapsed. Moreover, even neutral countries not involvedinthe dispute, who would beaffected
by the radiation and other effectsof nuclear weapons, would needto tum to WHO for assistance
in such an eventuality. Global healthwas centralto the question,just as global healthwas central
to theconcems of WHO. Planningandpreventionwere essential parts of the activitiesof al1healthauthorities, andthis
general principle unquestionably appliedto WHO, who need the legal informationrequested, for
precisely thispurpose.

The Court'sdecision was based on restricted principlesof treaty interpretationand should
rather have interpretedHO'sConstitutionin the light of its objectand purpose - "to promoteand
protect the healthof al1peoples". JudgeWeerarnantry disagreedwith the view thatUnited Nations
agenciesconductedtheir affairswithina strictly compartmentalizedschemeof division of functions.

He disagreed withthe Court's rigid application of the "principleof speciality"to WHO, so as to
take the question of legality out of its area of concern, merely because peace and security fell
within the concem of the SecurityCouncil.

The effectsof nuclear weaponson health showedthe futilityof awaitinga nuclear catastrophe
for WHO to moveinto action in providingmedical services. The nuclearweaponwas, inter alh,
the greatest cancer-inducinginstrumentalityyet devised. WHO wasjust as muchentitled toconcern
itself withthe legaiityof this agency of il1health as it was to inquire into the legality ofa cancer-
inducingphannaceuticalproduct. Dependingon the answerto that question, it wouldhave to adopt
differentstrategiesto deal withthe problem.

Moreover,this was the first case ever in whichthe Court had refused to consider the request
of a specializedagency ofthe UnitedNations for anAdvisory Opinion. Sucha refusal should only
be for compellingreasons. No such reason has been shown to exist in the present case. Judge

Weerarnantry'sview was that international law joined with the imperatives of global health in
requiringthe Courtto answer WHO'sRequest.

In his Dissenting Opinion Judge Koroma stated that the Court's fiding that "it lacked
jurisdiction torespondto the requestby the WHO was not oniy unprecedentedbut also inconsistent
with its ownjurisprudence.

He also disputedthe Court's fmdingthat the questionposed bythe Organization wasoutside
its competenceand scope of activities. To reach that conclusion, Judge Koromarnaintainedthat
the Court had misconstruedthe questionput by the WHO as relating to the legalityof the use by

a state of nuclearweapons in armed confiict. In his view, that questionrelated tothe health and
environrnentaleffectsof nuclear weaponsand to the problemof whether those effects would be in
breach of the obligationsof States, a matter which falls eminentlywithinthe competenceand scope
of the agency'sactivities.

He recalled thatthe WHO is the specialized agency responsiblefor the protection and the
safeguarding of the health of al1peoples at international leveland its responsibilitiesinclude the
taking of measuresto prevent healthproblems likethose which are bound to arisefollowingthe use
of nuclear weapons. In this connectionhe pointed outthat the Organization dealt primarily with
preventivemedicine.

Accordingly,in his view, a request to the Court seekig legal clarificationabout the health
and environmentaleffects of the use of nuclear weapons is a matter which is not only within the

competenceof the Organizationbut is one which should haveled the Court to render an Advisory
Opinion.

JudgeKoromarecalled that the Court had previouslystatedthat it would:

"givean opinion based onlaw, once it has come to the conclusionthat the questions
put to it are relevant and have a practical and contemporaryeffect, and consequently ...not devoid of objectand purpose".

He maintainedthat the Request for advisoryopinion by the WHO related to an issue whichwas not
only of direct relevance to theOrganization,but had practicaland contemporaryeffectas well, and
is not devoid of object andpurpose.

Having analyzed the evidence presentedby delegations includingthose of Japan and the
Marshall Islands, and the study carried out under the auspices of the WHO on the Effects of
Services, he came to the conclusion that should a nuclear
weapon be used in an anned conflict the number of dead would Vary from one million to one
thousand million, to whichthe samenumberof people injuredwas to be added. If a larger number

of such weapons were to be used, they would have catastrophiceffects, includingthe destruction
of transport, food delivery, fuel and basic medical supplies, resulting in possible famineand mass
starvation on a global scale. He concluded that nuclear weapons when used are incapable of
discriminating between civiliansand non-civilians, nor would such weaponsspare the hospitals or
reservoirs of drinking water that are indispensablefor survival after a nuclear attack. He was
therefore convinced that nuclear weaponscaused superfluousinjury and unnecessary suffering to
their victims, going so faas to preventthe treatrnentby those wounded.

Such effects, he maintained, wouldbe patently contrary to international law applicable in
armed conflict, and in particular internationalhumanitarianlaw as well as constitutinga breach of
the health and environmental obligations of States under international law,includingthe WHO
Constitution. The Court's findingsthat such matters were not within the competence orscope of
activities of the Organization were thereforeincoherent and incomprehensible.

Judge Koroma regretted that, in order to reach those findings, the Court had not only
rnisinterpretedthe question- a rnisinterpretationwhich both distorted the intention of the question
and proved fatal for the request - but had also had to depart from its jurisprudence according to
which it wouldonly declineto render an advisory opinion for "compellingreasons". In his view,
no such compelling reasons existedor had been established in this case. He was therefore left
wondering whether the finding of the Court that it lackedjurisdiction was not the kindof solution

resorted to in cases wherethe needto give a decision onthe merits wouldinvolveunusualdiffxculty
or embarrassmentfor the Court. On the other hand, the Court had always responded positivelyto
requests for advisory opinions and regarded itsrole as a form of participationin the activities of
the Organization, while at the sarne tirne protecting its judicial character. By decliningto render
an opinion in this case the Court had, in his view, chosen to vacate its positive record in this
sphere, particularly on an issue of such vital importancethat embracednot only a legal,but a moral
and humanitariandimensionas well. He concluded by recallingthat "medicineis one of the pillars
of peace"; but that it can equally be said that health is a pillar of peac-or as is stated in the
WHO Constitution - "the health of al1 peoples is fundamentalto the attainment of peace and
security".