CR 95/34
Cour internationale International Court
de Justice of Justice
LA HAYE THE HAGUE
ANNEE 1995
Audience publique
tenue le mercredi 15 novembre 1995, à 10 heures, au Palais de la Paix,
sous la présidence de M. Bedjaoui, Président
sur la Licéité de l'utilisation des armes nucléaires
par un Etat dans un conflit armé
(Demande d'avis consultatif soumise par
l'Organisation mondiale de la Santé)
et
sur la Licéité de la menace ou de l'emploi d'armes nucléaires
(Demande d'avis consultatif soumise par
l'Assemblée générale des Nations Unies)
____________
COMPTE RENDU
____________
YEAR 1995
Public sitting
held on Wednesday 15 November 1995, at 10 a.m., at the Peace Palace,
President Bedjaoui presiding
in the case
in Legality of the Use by a State of Nuclear Weapons in Armed Conflict
(Request for Advisory Opinion Submitted by the World Health Organization)
and
in Legality of the Threat or Use of Nuclear Weapons
(Request for Advisory Opinion Submitted by
the General Assembly of the United Nations)
_______________
VERBATIM RECORD
_______________
- 2 -
Présents : M. Bedjaoui, Président
M. Schwebel, Vice-Président
MM. Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Ferrari Bravo
Mme Higgins, juges
M. Valencia-Ospina, Greffier
- 3 -
Present: President Bedjaoui
Vice-President Schwebel
Judges Oda
Guillaume
Shahabuddeen
Weeramantry
Ranjeva
Herczegh
Shi
Fleischhauer
Koroma
Vereshchetin
Ferrari Bravo
Higgins
Registrar Valencia-Ospina
- 4 -
Licéité de l'utilisation des armes nucléaires par un Etat dans un conflit armé (Demande d'avis
consultif soumise par l'Organisation mondiale
de la Santé)
L'Organisation mondiale de la Santé est représentée par :
M. Claude-Henri Vignes, conseiller juridique;
M. Thomas Topping, conseiller juridique adjoint.
Licéité de l'utilisation des armes nucléaires par un Etat dans un conflit armé (Demande d'avis
consultif soumise par l'Organisation mondiale
de la Santé)
et/ou
Licéité de la menace ou de l'emploi d'armes nucléaires (Demande d'avis
consultatif soumise par l'Assemblée générale des Nations Unies)
Le Gouvernement de l'Australie est représenté par :
M. Gavan Griffith, Q.C., Solicitor-General d'Australie, conseil;
L'Honorable Gareth Evans, Q.C., sénateur, ministre des affaires
étrangères, conseil;
S. Exc. M. Michael Tate, ambassadeur d'Australie aux Pays-Bas,
conseil;
M. Christopher Staker, conseiller auprès du Solicitor-General
d'Australie, conseil;
Mme Jan Linehan, conseiller juridique adjoint du département
des affaires étrangères et du commerce extérieur, conseil;
Mme Cathy Raper, troisième secrétaire à l'ambassade d'Australie,
La Haye, conseiller.
Le Gouvernement de la République fédérale d'Allemagne est représenté
par :
M. Hartmut Hillgenberg, directeur général des affaires juridiques
du ministère des affaires étrangères;
Mme Julia Monar, direction des affaires juridiques, ministère
des affaires étrangères.
Le Gouvernement du Costa Rica est représenté par :
S. Exc. M. J. Francisco Oreamuno, ambassadeur de la République
du Costa Rica aux Pays-Bas;
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M. Carlos Vargas-Pizarro, conseiller juridique et envoyé spécial
du Gouvernement du Costa Rica;
M. Rafael Carrillo-Zürcher, ministre-conseiller à ambassade
du Costa Rica, La Haye.
Le Gouvernement de la République arabe d'Egypte est représenté par :
S. Exc. M. Ibrahim Ali Badawi El-Sheikh, ambassadeur d'Egypte
aux Pays-Bas;
M. Georges Abi-Saab, professeur de droit international à l´Institut
universitaire de hautes études internationales de Genève, membre de
l´Institut de droit international;
M. Ezzat Saad El-Sayed, ministre-conseiller à l'ambassade d'Egypte,
La Haye.
Le Gouvernement des Etats-Unis d'Amérique est représenté par :
M. Conrad K. Harper, agent et conseiller juridique du département
d'Etat;
M. Michael J. Matheson, conseiller juridique adjoint principal du
département d'Etat;
M. John H. McNeill, conseil général adjoint principal au département
de la défense;
M. John R. Crook, assistant du conseiller juridique pour les
questions relatives à l'Organisation des Nations Unies, département
d'Etat;
M. D. Stephen Mathias, conseiller pour les affaires juridiques à
l'ambassade des Etats-Unis d'Amérique, La Haye;
M. Sean D. Murphy, attaché pour les questions juridiques à
l'ambassade des Etats-Unis d'Amérique, La Haye;
M. Jack Chorowsky, assistant spécial du conseiller juridique,
département d'Etat.
Le Gouvernement de la République française est représenté par :
M. Marc Perrin de Brichambaut, directeur des affaires juridiques
au ministère des affaires étrangères;
M. Alain Pellet, professeur de droit international à l'Université de
Paris X et à l'Institut d'études politiques de Paris;
Mme Marie-Reine d'Haussy, direction des affaires juridiques
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du ministère des affaires étrangères;
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M. Jean-Michel Favre, direction des affaires juridiques du ministère
des affaires étrangères.
Le Gouvernement de la Fédération de Russie est représenté par :
M. A. G. Khodakov, directeur du département juridique du ministère
des affaires étrangères;
M. S. M. Pounjine, premier secrétaire à l'ambassade de la Fédération
de Russie, La Haye;
M. S. V. Shatounovski, expert au département juridique du ministère
des affaires étrangères.
Le Gouvernement des Iles Marshall est représenté par :
L'Honorable Theordore G. Kronmiller, conseiller juridique, ambassade
des Iles Marshall aux Etats-Unis;
Mme. Lijon Eknilang, membre du conseil, gouvernement local de l'atoll
de Rongelap.
Le Gouvernement des Iles Salomon est représenté par :
L'Honorable Victor Ngele, ministre de la police et de la sécurité
nationale;
S. Exc. M. Rex Horoi, ambassadeur, représentant permanent des Iles
Salomon auprès de l'Organisation des Nations Unies, New York;
S. Exc. M. Levi Laka, ambassadeur, représentant permanent des Iles
Salomon auprès de l'Union européenne, Bruxelles;
M. Primo Afeau, Solicitor-General des Iles Salomon;
M. Edward Nielsen, consul honoraire des Iles Salomon à Londres;
M. Jean Salmon, professeur de droit à l'Université libre de
Bruxelles;
M. James Crawford, professeur de droit international, titulaire de
la chaire Whewell à l'Université de Cambridge;
M. Eric David, professeur de droit à l'Université libre de Bruxelles;
Mme Laurence Boisson de Chazournes, professeur adjoint à l'Institut
universitaire de hautes études internationales, Genève;
M. Philippe Sands, chargé de cours à la School of Oriental and
African Studies, Université de Londres, et directeur juridique de
la Foundation for International Environmental Law and Development;
- 8 -
M. Joseph Rotblat, professeur émérite de physique à l'Université de
Londres;
M. Roger Clark, professeur à la faculté de droit de l'Université
Rutgers, Camden, New Jersey;
M. Jacob Werksman, directeur de programme à la Foundation for
International Environmental Law and Development;
Mme Ruth Khalastchi, Solicitor de la Supreme Court of England
and Wales;
Mme Louise Rands, assistante administrative à la Foundation for
International Environmental Law and Development, Université de
Londres;
M. Edward Helgeson, chercheur associé à l'Université de Cambridge,
Research Center for International Law.
Le Gouvernement de l'Indonésie est représenté par :
S. Exc. M. Johannes Berchmans Soedarmanto Kadarisman, ambassadeur
d'Indonésie aux Pays-Bas;
M. Malikus Suamin, ministre et chef de mission adjoint à l'ambassade
d'Indonésie, La Haye;
M. Mangasi Sihombing, ministre-conseiller à l'ambassade d'Indonésie,
La Haye;
M. A. A. Gde Alit Santhika, premier secrétaire à l'ambassade
d'Indonésie, La Haye;
M. Imron Cotan, premier secrétaire de la mission permanente
d'Indonésie auprès de l'Organisation des Nations Unies, Genève;
M. Damos Dumoli Agusman, troisième secrétaire à l'ambassade
d'Indonésie, La Haye.
Le Gouvernement de la République Islamique d'Iran est représenté par :
S. Exc. M. Mohammad J. Zarif, ministre adjoint aux affaires
juridiques et internationales, ministère des affaires étrangères;
S. Exc. M. N. Kazemi Kamyab, ambassadeur de la République islamique
d'Iran aux Pays-Bas;
M. Saeid Mirzaee, directeur, division des traités et du droit
international public, ministère des affaires étrangères;
M. M. Jafar Ghaemieh, troisième secrétaire à l'ambassade de la
République islamique d'Iran, La Haye;
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M. Jamshid Momtaz, conseiller juridique, ministère des affaires
étrangères.
Le Gouvernement italien est représenté par :
M. Umberto Leanza, professeur de droit international à la faculté
de droit de l'Université de Rome «Tor Vergata», chef du service
du contentieux diplomatique du ministère des affaires étrangères et
agent du Gouvernement italien auprès des tribunaux internationaux,
chef de délégation;
M. Luigi Sico, professeur de droit international à faculté de droit
à l'Université de Naples «Frederico II»;
Mme Ida Caracciolo, chercheur auprès de l'Université de Rome
«Tor Vergata».
Le Gouvernement du Japon est représenté par :
S. Exc. M. Takekazu Kawamura, ambassadeur, directeur général au
contrôle des armements et aux affaires scientifiques, ministère
des affaires étrangères;
M. Koji Tsuruoka, directeur de la division des affaires juridiques,
bureau des traités, ministère des affaires étrangères;
M. Ken Fujishita, premier secrétaire à l'ambassade du Japon, La Haye;
M. Masaru Aniya, division du contrôle des armements et du
désarmement, ministère des affaires étrangères;
M. Takashi Hiraoka, maire d'Hiroshima;
M. Iccho Itoh, maire de Nagasaki.
Le Gouvernement de la Malaisie :
Dato' Mohtar Abdullah, Attorney-General, chef de délégation;
S. Exc. M. Tan Sri Razali Ismail, ambassadeur, représentant permanent
de la Malaisie auprès de l'Organisation des Nations Unies, chef de
délégation ajoint;
Dato' Heliliah Mohd. Yusof, Solicitor-General;
S. Exc. Dato' Sallehuddin Abdullah, ambassadeur de Malaisie aux
Pays-Bas;
Dato' Abdul Gani Patail, jurisconsulte et chef de la division
du droit international, cabinet de l'Attorney-General;
- 10 -
Dato' R. S. McCoy, Expert;
M. Peter Weiss, Expert.
Le Gouvernement du Mexique est représenté par :
S. Exc. M. Sergio González Gálvez, ambassadeur, ministre adjoint des
affaires étrangères;
S. Exc. M. José Carreño Carlón, ambassadeur du Mexique aux Pays-Bas;
M. Arturo Hernández Basave, ministre à l'ambassade du Mexique,
La Haye;
M. Javier Abud Osuna, premier secrétaire à l'ambassade du Mexique,
La Haye.
Le Gouvernement de la Nouvelle-Zélande est représenté par :
L'Honorable Paul East, Q.C., Attorney-General de Nouvelle-Zélande;
S. Exc. Madame Hilary A. Willberg, ambassadeur de Nouvelle-Zélande
aux Pays-Bas;
M. Allan Bracegirdle, directeur adjoint de la division juridique
du ministère des affaires étrangères et du commerce extérieur de
Nouvelle-Zélande;
M. Murray Denyer, deuxième secrétaire à l'ambassade de
Nouvelle-Zélande, La Haye.
Le Gouvernement des Philippines est représenté par :
M. Merlin M. Magallona, professeur, doyen de la faculté de droit de
l´Université des Philippines, agent;
S. Exc. M. Rodolfo S. Sanchez, ambassadeur des Philippines aux
Pays-Bas;
M. Raphael Perpetuo Lotilla, profsseur, directeur de l´Institute of
International Legal Studies, UP Law Centre;
M. Carlos Sorreta, mission permanente des Philippines auprès de
l´Organisation des Nations Unies;
M. Emmanuel C. Lallana, directeur adjoint, Foreign Service Institute.
- 11 -
Le Gouvernement de Qatar est représenté par :
S. Exc. M. Najeeb ibn Mohammed Al-Nauimi, ministre de la justice;
M. Sami Abushaikha, expert juridique du Diwan Amiri;
M. Richard Meese, cabinet Frere Cholmeley, Paris.
Le Gouvernement du Royaume-Uni de Grande-Bretagne et d'Irlande du Nord
est représenté par :
Le Très Honorable sir Nicholas Lyell, Q.C., M.P., Attorney-General;
Sir Franklin Berman, K.C.M.G., Q.C., conseiller juridique du
ministère des affaires étrangères et du Commonwealth;
M. Christopher Greenwood, conseil;
M. Daniel Bethlehem, conseil;
M. John Grainger, conseiller;
M. Christopher Whomersley, conseiller;
M. Andrew Barlow, conseiller.
Le Gouvernement de Saint-Marin est représenté par :
Mme Federica Bigi, conseiller d'ambassade, fonctionnaire en charge de
la direction politique au ministère des affaires étrangères.
Le Gouvernement de Samoa est représenté par:
S. Exc. M. Neroni Slade, ambassadeur et représentant permanent
du Samoa auprès de l'Organisation des Nations Unies, New York;
M. Jean Salmon, professeur de droit à l'Université libre de
Bruxelles;
M. James Crawford, professeur de droit international, titulaire de
la chaire Whewell à l'Université de Cambridge;
M. Roger Clark, professeur à la faculté de droit de l'Université
Rutgers, Camden, New Jersey;
M. Eric David, professeur de droit à l'Université libre de Bruxelles;
Mme Laurence Boisson de Chazournes, professeur adjoint à l'Institut
universitaire de hautes études internationales, Genève;
- 12 -
M. Philippe Sands, chargé de cours à la School of Oriental and
African Studies, Université de Londres, et directeur juridique de
la Foundation for International Environmental Law and Development;
M. Jacob Werksman, directeur de programme à la Foundation for
International Environmental Law and Development;
Mme Ruth Khalastchi, Solicitor de la Supreme Court of England
and Wales;
Mme Louise Rands, assistante administrative à la Foundation for
International Environmental Law and Development, Université de
Londres.
Le Gouvernement de la République du Zimbabwe est représenté par :
M. Jonathan Wutawunashe, chargé d'affaires a.i., ambassade de la
République du Zimbabwe, Bruxelles.
- 13 -
Legality of the Use by a State of Nuclear Weapons in Armed Conflict
(Request for Advisory Opinion Submitted by the World Health
Organization)
The World Health Organization is represented by:
Mr. Claude-Henri Vignes, Legal Counsel;
Mr. Thomas Topping, Deputy Legal Counsel.
Legality of the Use by a State of Nuclear Weapons in Armed Conflict
(Request for Advisory Opinion Submitted by the World Health
Organization)
and/or
Legality of the Threat or Use of Nuclear Weapons (Request for Advisory
Opinion Submitted by the General Assembly of the United Nations)
The Government of Australia is represented by:
Mr. Gavan Griffith, Q.C., Solicitor-General of Australia, Counsel;
The Honorable Gareth Evans, Q.C., Senator, Minister for Foreign
Affairs, Counsel;
H.E. Michael Tate, Ambassador of Australia to the Netherlands,
Counsel;
Mr. Christopher Staker, Counsel assisting the Solicitor-General of
Australia, Counsel;
Ms Jan Linehan, Deputy Legal Adviser, Department of Foreign Affairs
and Trade, Counsel;
Ms Cathy Raper, Third Secretary, Australian Embassy in the
Netherlands, The Hague, Adviser.
The Government of Costa Rica is represented by:
H.E. Mr. J. Francisco Oreamuno, Ambassador of the Republic of
Costa Rica to The Netherlands;
Mr. Carlos Vargas-Pizarro, Legal Counsel and Special Envoy of the
Government of Costa Rica;
Mr. Rafael Carrillo-Zürcher, Minister Counsellor, Embassy of
Costa Rica, The Hague.
- 14 -
The Government of the Arab Republic of Egypt is represented by:
H.E. Mr. Ibrahim Ali Badawi El-Sheikh, Ambassador of Egypt to
the Netherlands;
Mr. Georges Abi-Saab, Professor of International Law, Graduate
Institute of International Studies (Geneva), Member of
the Institute of International Law;
Mr. Ezzat Saad El-Sayed, Minister Counsellor, Embassy of Egypt,
The Hague.
The Government of the Republic of France is represented by:
Mr. Marc Perrin de Brichambaut, Director of Legal Affairs, Ministry
of Foreign Affairs;
Mr. Alain Pellet, Professor of International Law, University of
Paris X and Institute of Political Studies, Paris;
Mrs. Marie-Reine Haussy, Directorate of Legal Affairs, Ministry
of Foreign Affairs;
Mr. Jean-Michel Favre, Directorate of Legal Affairs, Ministry of
Foreign Affairs.
The Governement of the Federal Republic of Germany is represented by :
Mr. Hartmut Hillgenberg, Director-General of Legal Affairs, Ministry
of Foreign Affairs;
Ms Julia Monar, Directorate of Legal Affairs, Ministry of Foreign Affairs
The Government of Indonesia is represented by:
H.E. Mr. Johannes Berchmans Soedarmanto Kadarisman, Ambassador of
Indonesia to the Netherlands;
Mr. Malikus Suamin, Minister, Deputy Chief of Mission, Embassy of the
Republic of Indonesia, The Hague;
Mr. Mangasi Sihombing, Minister Counsellor, Embassy of the Republic
of Indonesia, The Hague;
Mr. A. A. Gde Alit Santhika, First Secretary, Embassy of the Republic
of Indonesia, The Hague;
Mr. Imron Cotan, First Secretary, Indonesian Permanent Mission of
Indonesia to the United Nations, Geneva;
- 15 -
Mr. Damos Dumoli Agusman, Third Secretary, Embassy of the Republic of
Indonesia, The Hague.
The Government of the Islamic Republic of Iran is represented by:
H.E. Mr. Mohammad J. Zarif, Deputy Minister, Legal and International
Affairs, Ministry of Foreign Affairs;
H.E. Mr. N. Kazemi Kamyab, Ambassador of the Islamic Republic of
Iran to the Netherlands;
Mr. Saeid Mirzaee, Director, Treaties and Public International Law
Division, Ministry of Foreign Affairs;
Mr. M. Jafar Ghaemieh, Third Secretary, Embassy of the Islamic
Republic of Iran, The Hague;
Mr. Jamshid Momtaz, Legal Advisor, Ministry of Foreign Affairs,
Tehran, Iran.
The Government of Italy is represented by:
Mr. Umberto Leanza, Professor of International Law at the Faculty of
Law of the University of Rome "Tor Vergata", Head of the Diplomatic
Legal Service at the Ministry of Foreign Affairs and Agent of the
Italian Government before the International Courts, Head of
delegation;
Mr. Luigi Sico, Professor of International Law at the Faculty of Law
of the University of Naples "Federico II";
Mrs. Ida Caracciolo, Researcher at the University of Rome
"Tor Vergata".
The Japanese Government is represented by:
Mr. Takekazu Kawamura, Ambassador, Director General for Arms Control
and Scientific Affairs, Ministry of Foreign Affairs;
Mr. Koji Tsuruoka, Director of Legal Affairs Division, Treaties
Bureau, Ministry of Foreign Affairs;
Mr. Ken Fujishita, First Secretary, Embassy of Japan in
the Netherlands
Mr. Masaru Aniya, Arms Control and Disarmament Division,
Ministry of Foreign Affairs;
Mr. Takashi Hiraoka, Mayor of Hiroshima;
Mr. Iccho Itoh, Mayor of Nagasaki.
- 16 -
The Governement of Malaysia is represented by:
Dato' Mohtar Abdullah, Attorney-General - Leader;
Ambassador Tan Sri Razali Ismail, Permanent Representative of
Malaysia to the United Nations in New York - Deputy Leader;
Dato' Heliliah Mohd. Yusof, Solicitor-General;
Dato' Sallehuddin Abdullah, Ambassador of Malaysia to the
Netherlands;
Dato' Abdul Gani Patail, Head of Advisory and International Law
Division, Attorney-General's Chambers;
Dato' Dr. R. S. McCoy, Expert;
Mr. Peter Weiss, Expert.
The Government of Marshall Islands is represented by:
The Honorable Theordore G. Kronmiller, Legal Counsel, Embassy of the
Marshall Islands to the United States;
Mrs Lijon Eknilang, Council Member, Rongelap Atoll, Local Government.
The Government of Mexico is represented by:
H.E. Ambassador Sergio González Gálvez, Undersecretary of Foreign
Relations;
H.E. Mr. José Carreño Carlón, Ambassador of Mexico to the
Netherlands;
Mr. Arturo Hernández Basave, Minister, Embassy of Mexico, The Hague;
Mr. Javier Abud Osuna, First Secretary, Embassy of Mexico, The Hague.
The Government of New Zealand is represented by:
The Honorable Paul East, Q.C., Attorney-General of New Zealand;
H.E. Ms. Hilary A. Willberg, Ambassador of New Zeland to the
Netherlands;
Mr. Allan Bracegirdle, Deputy Director of Legal Division of the
New Zealand Ministry of Foreign Affairs and Trade;
Mr. Murray Denyer, Second Secretary New Zealand Embassy, The Hague;
- 17 -
The Government of Philippines is represented by:
Professor Merlin M. Magallona, Dean, College of Law, University of
the Philippines, Agent;
H.E. Mr. Rodolfo S. Sanchez, Ambassador of the Philippines to
the Netherlands;
Professor Raphael Perpetuo Lotilla, Director, Institute of
International Legal Studies, UP Law Centre;
Mr. Carlos Sorreta, Philippine Mission to the United Nations,
New York;
Dr. Emmanuel C. Lallana, Deputy Director, Foreign Service Institute.
The Government of Qatar is represented by:
H.E. Mr. Najeeb ibn Mohammed Al-Nauimi, Minister of Justice;
Mr. Sami Abushaikha, Legal Expert of the Diwan Amiri;
Mr. Richard Meese, Frere Cholmeley, Paris.
The Government of the Russian Federation is represented by:
Mr. A. G. Khodakov, Director, Legal Department, Ministry of Foreign
Affairs;
Mr. S. M. Pounjine, First Secretary, Embassy of the Russian
Federation in the Netherlands;
Mr. S. V. Shatounovski, Expert, Legal Department, Ministry of
Foreign Affairs.
The Government of Samoa is represented by:
H.E. Mr. Neroni Slade, Ambassador and Permanent
Representative of Samoa to the United Nations, New York;
Mr. Jean Salmon, Professor of Law, Université libre de Bruxelles;
Mr. James Crawford, Whewell Professor of International Law,
University of Cambridge;
Mr. Roger Clark, Distinguished Professor of Law, Rutgers University
School of Law, Camden, New Jersey;
Mr. Eric David, Professor of Law, Université libre de Bruxelles;
Mrs. Laurence Boisson de Chazournes, Assistant Professor, Graduate
Institute of International Studies, Geneva;
- 18 -
Mr. Philippe Sands, Lecturer in Law, School of Oriental and African
Studies, London University, and Legal Director, Foundation for
International Environmental Law and Development;
Mr. Jacob Werksman, Programme Director, Foundation for International
Environmental Law and Development;
Ms Ruth Khalastchi, Solicitor of the Supreme Court of England and
Wales;
Ms Louise Rands, Administrative Assistant, Foundation for
International Environmental Law and Development, London University.
The Government of San Marino is represented by:
Mrs. Federica Bigi, Official in charge of Political Directorate,
Department of Foreign Affairs.
The Government of Solomon Islands is represented by:
The Honorable Victor Ngele, Minister for Police and National
Security;
H.E. Ambassador Rex Horoi, Permanent Representative of Solomon
Islands to the United Nations, New York;
H.E. Ambassador Levi Laka, Permanent Representative of Solomon
Islands to the European Union, Brussels;
Mr. Primo Afeau, Solicitor-General for Solomon Islands;
Mr. Edward Nielsen, Honorary Consul, Solomon Islands, London;
Mr. Jean Salmon, Professor of Law, Université libre de Bruxelles;
Mr. James Crawford, Whewell Professor of International Law,
University of Cambridge;
Mr. Eric David, Professor of Law, Université libre de Bruxelles;
Mrs. Laurence Boisson de Chazournes, Assistant Professor, Graduate
Institute of International Studies, Geneva;
Mr. Philippe Sands, Lecturer in Law, School of Oriental and African
Studies, London University, and Legal Director, Foundation for
International Environmental Law and Development;
Mr. Joseph Rotblat, Emeritus Professor of Physics, University of London;
Mr. Roger Clark, Distinguished Professor of Law, Rutgers University
School of Law, Camden, New Jersey;
- 19 -
Mr. Jacob Werksman, Programme Director, Foundation for International
Environmental Law and Development;
Ms Ruth Khalastchi, Solicitor of the Supreme Court of England and
Wales;
Ms Louise Rands, Administrative Assistant, Foundation for
International Environmental Law and Development, London University;
Mr. Edward Helgeson, Research Associate, University of Cambridge,
Research Center for International Law.
The Government of the United Kingdom of Great Britain and Northern
Ireland is represented by:
The Right Honorable Sir Nicholas Lyell, Q.C., M.P., Her Majesty's
Attorney-General;
Sir Franklin Berman, K.C.M.G., Q.C., Legal Adviser to the Foreign and
Commonwealth Office;
Mr. Christopher Greenwood, Counsel;
Mr. Daniel Bethlehem, Counsel;
Mr. John Grainger, Adviser;
Mr. Christopher Whomersley, Adviser;
Mr. Andrew Barlow, Adviser.
The Government of the United States of America is represented by:
Mr. Conrad K. Harper, Agent and Legal Adviser, US Department of
State;
Mr. Michael J. Matheson, Principal Deputy Legal Adviser,
U.S. Department of State;
Mr. John H. McNeill, Senior Deputy General Counsel, US Department
of Defense;
Mr. John R. Crook, Assistant Legal Adviser for United Nations
Affairs, US Department of State;
Mr. D. Stephen Mathias, Legal Counsellor, Embassy of the
United States, The Hague;
Mr. Sean D. Murphy, Legal Attaché, Embassy of the United States,
The Hague;
Mr. Jack Chorowsky, Special Assistant to the Legal Adviser,
US Department of State.
- 20 -
The Government of the Republic of Zimbabwe is represented by:
Mr. Jonathan Wutawunashe, Chargé d'Affaires a.i., Embassy of
the Republic of Zimbabwe, Brussels.
- 20 -
The PRESIDENT: Please be seated. This morning the Court will resume its public
hearings in the case of the two requests for advisory opinion submitted by the United Nations
General Assembly and the World Health Organization. I will now call upon the distinguished
representative of the delegation of the United Kingdom, the Right Honourable Sir Nicholas Lyell,
Her Majesty's Attorney-General, to make his oral statement.
Sir Nicholas LYELL: Mr. President, Members of the Court, it is a great honour, Mr.
President, to make this, my first appearance, before this Court on behalf of the United Kingdom.
Few subjects in this unstable world could be more fundamental. But before I begin the substance of
my speech, may I first, Mr. President, pay a sincere tribute to the late Judge Aguilar-Mawdsley. His
sad death last month has deprived the Court of a most valued Member and one whose contribution to
international law was of great significance.
Mr. President, the United Kingdom has a deep interest in this extremely important matter and
addresses the Court in three capacities:
(a) as a State which itself possesses nuclear weapons for its national defence and has done so for
over 40 years;
(b) as a permanent member of the Security Council which therefore has a special responsibility
for the maintenance of international peace and security; and
(c) as a staunch supporter of this Court. The United Kingdom has accepted the compulsory
jurisdiction of this Court since its foundation. I stress this, Mr. President, because the
United Kingdom believes profoundly in the rule of law; and therefore in the importance of
upholding the integrity of the Court's judicial process.
I shall concentrate in this address upon the three key issues raised by the two requests. For
further detail, I respectfully refer the Court to the United Kingdom's two written statements.
The first issue is whether the World Health Organization is competent to request an opinion
on the question it has put to the Court. Our submission is that it is not competent and the Court
- 21 -
should reject the WHO request on that ground.
The second issue concerns whether the Court should respond to the request from the General
Assembly. This request is one which the General Assembly is competent to make, but it is a matter
for the discretion of the Court whether or not to respond. And in our submission, Mr. President,
there are compelling reasons why the Court should decline to respond to the request made by the
General Assembly.
If accepted, our submissions on those two points would, of course, dispose of the matters
before the Court. Nevertheless, if the Court is persuaded that it is right to consider the substantive
law, a third issue then arises, namely what answers can properly be given to such over- simplified
questions. These questions touch on what the Court will certainly recognize are immense and
complex subjects and the nature of any answer could have most important ramifications.
However simple their terms, these questions do not admit of a simple answer. The United
Kingdom's clear submission on this third issue will be that there is no specific rule of international
law, express or implied, which outlaws the use of nuclear weapons per se. The legality of their use
depends, and can only depend, upon the application of the general rules of international law,
including those regulating the inherent right of self-defence and the conduct of hostilities. Those
rules cannot be applied in isolation from any factual context to produce a prohibition of a general
nature. Whether the use - or threatened use - of nuclear weapons in any particular case is lawful
must depend upon all the circumstances.
Before proceeding to those matters, however, I must briefly mention one deep underlying
aspect which these two requests ignore or certainly underplay. That is the sombre but vital role
played by nuclear weapons in the system of international security over the past 50 years. For a State
such as my own, the reason - the sole reason, Mr. President - for acquiring and possessing nuclear
weapons is as a means of deterrence. I emphasize deterrence as something signalling both the will
and the capacity to defend oneself, but there is a distinction between the concept of deterrence and
that of self-defence. Self-defence is the right to resist and fight off an attacker. Deterrence warns a
would-be aggressor not even to embark upon an attack.
- 22 -
Since the Second World War, the concept of deterrence has been fundamental to the
maintenance of the peace and security of a substantial number of States. Not only the nuclear
Powers themselves, but many non-nuclear States have sheltered under the umbrella of these
weapons. We might wish nuclear weapons away, as we might wish away all weapons and, indeed,
the whole concept of war and coercion. But nuclear weapons do exist and the Court - as a court of
law - must operate not in some idealized world but in the real world. It has been suggested that all
this is now in the past, but such a view, Mr. President, would be complacent. Some great changes
have taken place in Europe and the former Soviet Union, and in the relaxation of tensions between
East and West. Some start has been made in the reduction of those massive nuclear arsenals which
are rightly feared. But huge numbers of nuclear weapons still exist. Our real world remains a
fragmented and dangerous place and in this real world, to call in question now the legal basis of the
system of deterrence on which so many States have relied for so long for the protection of their
peoples could have a profoundly destabilizing effect.
The Competence of WHO
I turn now to the first of the three issues which I identified a few minutes ago, namely the
competence of WHO to request the Court's opinion. Although the Court has decided - for very
understandable reasons - that the present hearings should address both the WHO and General
Assembly requests, those two requests must still be answered separately, as different considerations
apply. In particular, the WHO request raises a prior and important question about the competence
of a specialized agency to request an advisory opinion from the Court.
The United Kingdom does not agree6
that the competence of WHO became moot once the
General Assembly made a request of its own under its own powers. For the sake of the future, the
Court is respectfully requested to rule on the point. In our submission, the Court should rule that the
question posed by WHO does not fall within the scope of WHO's activities as required by Article 96
6Nauru and Malaysia, written comments on the written statements on the WHO request, June 1995,
p. 3 in each statement.
- 23 -
of the United Nations Charter and that WHO has therefore acted outside its competence in making
the present request. Furthermore, this lack of competence precludes the Court from considering the
request. That is wholly unaffected by the separate request of the General Assembly. May I make
this good.
Under Article 96 of the Charter, specialized agencies are authorized to request advisory
opinions only on legal questions arising within the scope of their activities. This is the governing
rule. This rule is faithfully reflected in both Article 76 of the WHO Constitution and Article X of
the 1948 Relationship Agreement between the United Nations and WHO, each of which permits
WHO to request opinions only on matters within the scope of its competence. Nothing of substance
turns on the fact that one text refers to "competence", whereas the other refers to "activities".
Similar language is used in corresponding legal provisions for other specialized agencies. The
powers of each agency are limited and those limitations must be observed and enforced. Otherwise
the way will be open to any specialized agency to approach the Court for advisory opinions on all
manner of politically important general questions which lie not within their field of competence but
that of the United Nations itself.
The question is not whether WHO complied with its own rules of procedure in adopting
resolution 46/40 - that has not been challenged. It is whether that resolution falls within the
substantive competence of WHO. So far as the advisory jurisdiction is concerned, WHO's
competence is governed not only by its own Constitution but also by the United Nations Charter.
WHO's Constitution - its founding instrument - gives no hint that WHO might be competent to
deal with the legality of using nuclear weapons. Article 1 sets out the objectives of the Organization
and Article 2 its powers
7
. We do not agree8
that competence to address the legality of using nuclear
weapons can be inferred from the fact that one of the objectives of WHO is the attainment by all
people of the highest possible level of health, or from the general power of WHO to take all
7On this aspect, see the United Kingdom's written statement on the WHO request, September 1994,
pp. 30-40.
8Nauru, written statement on the WHO request, September 1994, Part II, pp. 3-6.
- 24 -
necessary action to achieve that objective. Nor can such a competence be derived from statements of
extreme generality in the Preamble to the WHO Constitution.
To hold now, Mr. President, that these provisions enable WHO to challenge the lawfulness of
the use of nuclear weapons, or any other weapon, would be at odds with any normal rules of treaty
interpretation. On that form of reasoning, almost every specialized agency - the International Atomic
Energy Agency (IAEA), International Labour Organisation (ILO), International Civil Aviation
Organisation (ICAO) and many others - would suddenly become competent to refer questions
regarding the use of nuclear or other weapons to the Court.
Nor do any of the lengthy written submissions on the WHO request give any convincing
explanation as to why WHO should be thought competent to address the legality of nuclear
weapons. A supposed presumption that resolutions are validly adopted9
simply begs the question.
In this case, considerable doubts about the Organization's competence had been raised even before
the voting. The Organization's legal counsel himself advised that the Organization was not
competent. Lack of competence is an objective legal fact which can not be cured by a majority vote
in the World Health Assembly. In answer to the question put by Judge Koroma, the United
Kingdom's view is that resolution 46/40 was not validly adopted as WHO lacked the competence to
ask this question. Many States rejected the validity of the resolution at the time it was adopted and
thus have a right to continue to do so before this Court.
The undoubted competence of WHO to deal with health matters includes the effects on health
of warfare and, therefore, the effects of using weapons. But it is an unwarranted jump to say that
this brings the legality of war or the legality of using any particular weapon within the
Organization's competence. The effects on health of the use of a weapon are the same whether that
use is lawful or unlawful. In either case, WHO's concern is with the consequences, not with the
legality.
Moreover, the practice of WHO since its foundation shows that it has no established pattern
9Nauru, written statement on the WHO request, September 1994, Part II, pp. 17-18.
- 25 -
of interest in the legality of nuclear weapons. Resolution 46/40 is the first resolution of WHO which
claims any interest for the Organization in this matter. This was made perfectly clear in the oral
statement of its own legal counsel. The previous resolutions cited in resolution 46/40 deal with
various health aspects of the effects of nuclear weapons but none have any bearing on the issue of
legality. There is no foundation at all for the argument that resolution 46/40 is simply the
culmination of a long line of WHO activities10. On the contrary, that resolution was a radical new
departure.
Nor, Mr. President, can any competence be inferred by analogy from the practice of WHO
regarding biological and chemical weapons. It is true that on occasion WHO has called upon States
to become parties to agreements dealing with these weapons. But it is one thing to say that WHO is
entitled to exhort States to become parties to disarmament treaties which have already been
negotiated elsewhere and the implementation of which would eliminate the possession of such
weapons. It is an entirely different matter to claim for WHO an established interest in the legality of
using a weapon which has not been banned by treaty and on which negotiations are in progress in
another forum unconnected with WHO. For WHO, resolution 46/40 was wholly new territory.
Similarly, to maintain that the fact that the World Health Assembly decided to ask the
question now before the Court after long debate cannot mean that it was competent to do so. That
argument amounts to saying that an organisation creates competence for itself because it has asked a
question of the Court, rather than that it is able to ask the question because it is competent to do so.
In summary, Mr. President, WHO is simply not competent to put this question to the Court -
and this is why I have made these points to the court - and there are cogent reasons why the Court
should so rule in order to protect the integrity of its advisory jurisdiction.
Nor does the General Assembly request affect this conclusion. The idea that the issue of the
WHO's competence is now "moot" is unacceptable. A legal restriction on an organization's
competence cannot be "cured" by parallel action by the General Assembly. Otherwise, Mr.
10Nauru, written statement on the WHO request, September 1994, Part I, p. 13.
- 26 -
President, constitutional limitations on the specialized agencies would become meaningless. Only the
competence of the General Assembly would then matter.
The Court's discretion not to respond to the requests
Mr. President, in contrast to the case of WHO, the competence of the United Nations General
Assembly to pose its question is not, of course, in dispute. Whether or not the Court should answer
is, however, very much a matter within the Court's discretion. Contrary to what was suggested by
counsel for Egypt, the United Kingdom has never suggested that the Court had an "unfettered
discretion" in this respect. What it does have - as counsel for Egypt himself recognized - is a right
and a duty to safeguard the integrity of its judicial function. It is clear both from Article 65 of the
Statute of the Court and from the Court's jurisprudence that even where the competence to make a
request is not in dispute, the Court has an inherent discretion not to respond to that request11
.
The United Kingdom submits that the Court should exercise its discretion not to respond to
the request from the General Assembly. Similarly, if, contrary to my earlier submission, the Court
were to consider that WHO was competent to put its question to the Court, the United Kingdom
submits that the Court should none the less decline to answer that question also. The reason is that
both questions are too abstract and speculative for a meaningful response. A response would serve
no useful purpose and may, in fact, actually do harm.
The United Kingdom's first submission is that in each case the question is simply too abstract.
The circumstances in which it might arise are not merely unrelated to any particular set of facts.
They are wholly undefined. As a matter of principle, the answering of questions of such a
speculative nature has never been part of the judicial function. As Judge Hudson made clear, the
judicial function lies in the application of the law to specific factual situations and circumstances12
.
11Interpretation of Peace Treaties, I.C.J. Reports 1950, pp.71-72; Certain Expenses of the United
Nations, I.C.J. Reports 1962, p.155.
12Hudson, 'The Advisory Opinions of the Permanent Court of International Justice', International
Conciliation (November 1925), No. 214, p. 374; United Kingdom, written statement on the General
Assembly request, June 1995, p. 17.
- 27 -
When this is the case - as it normally is - the Court should naturally seek to respond if it can. When
this is not the case - as in the present instance - the Court should respectfully decline.
Here, as a number of the written statements recognize13, the question is abstract, hypothetical,
speculative. In the United Kingdom's submission, it is neither practicable nor consistent with the
integrity of the judicial function for the Court to be invited to answer so speculative a question.
Suppose, Mr. President, the Court were minded to answer the question posed, and you must
be agonizing over this. It is difficult to see what the Court could say, other than that the legality of
any particular use of nuclear weapons would depend upon the facts. But an answer to that effect
would clearly be of no practical benefit in clarifying the law, nor would it offer anything by way of
usable guidance to the requesting organization.
Of course, the Court has decided in the past that it is not debarred from answering an abstract
question. But it was using the term "abstract" in a quite different sense. In the Admissions case
14
the question was "abstract" simply in the sense that it did not mention particular States who were
applying for membership of the United Nations. But the factual situation was crystal clear and had
already been the subject of active discussion and dispute. So there is no comparison with this case.
The truth appears to be that those who drafted the questions posed by the General Assembly
and WHO have proceeded throughout on the assumption that they admit of only one answer,
regardless of the facts. The questions are not designed to allow the Court scope to weigh the several
13In addition to the States submitting that the Court should not respond to the questions posed as they
are too abstract or hypothetical - see, for example, United Kingdom, written statement on the
General Assembly request, June 1995, pp. 16-17; Finland, written statement on the WHO request,
September 1994, pp. 3-4, written statement on the General Assembly request, June 1995, p. 1;
Netherlands, written statement on the WHO request, September 1994, paras. 22-23; Germany,
written statement on the WHO request, September 1994, p. 5, written statement on the General
Assembly request, June 1995, pp. 4-5 - a number of other States have also implicitly recognized that
the questions posed are abstract, hypothetical, speculative - see, for example, Nauru, written
comments on the written statements on the WHO request, June 1995, Part I, pp. 7-8, Part II, p. 1;
Egypt, written comments on the written statements on the General Assembly request, September
1995, pp. 3-4; Malaysia, written comments on the written statements on the WHO request, June
1995, pp. 7-8. See also Australia, written statement on the WHO request, September 1994, para. 7.
14Conditions of Admission of a State to the Membership in the United Nations (Article 4 of the
Charter), Advisory Opinion, I.C.J. Reports 1948, p. 57.
- 28 -
factors that would come into play in a concrete case. Since, however, an answer devoid of a factual
context would either be legally unsound or of no practical use, the Court is put in a dilemma which
calls profoundly into question whether it is right to give an advisory opinion at all.
In summary, Mr. President, we agree with the Solicitor-General of Australia when he said that
to give an opinion on a question so broad and abstract would go beyond the judicial function. We
also agree with him - and this is our second submission - that to answer, or purport to answer, the
question posed serves no purpose. This submission turns on the one inescapable fact, which none of
the proponents of these requests has adequately addressed - namely that there is not one single
question pending in either WHO or the United Nations itself which might be resolved, not a single
purpose which might be advanced, by a response to these requests.
As our written statements have pointed out15, the rationale behind the advisory jurisdiction is
the contribution which the opinion makes to the current work of the Organization. Even though
previous requests might have been controversial or political, they were answered because it was clear
to the Court that the answer was needed. In several cases the legal question involved the
interpretation of a constitutional provision which had been the subject of dispute in the Organization.
In the Admissions case
16, for example, that contribution lay in breaking the impasse over the
admission of new members to the United Nations, and in the IMCO case
17 in resolving differences
regarding the composition of the maritime safety committee. In the Reparations for Injuries case
18
and the Reservations case
19 the Organization needed guidance about the exercise of its constitutional
functions. In the only case previously emanating from WHO itself, that is the WHO Regional Office
15United Kingdom, written statement on the WHO Request, September 1994, pp. 43-51; written
statement on the General Assembly request, June 1995, pp. 11-15.
16Op.cit., note 9.
17Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative
Organization, Advisory Opinion, I.C.J. Reports 1960, p. 150.
18Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J.
Reports 1949, p. 174.
19Reservations to the Convention on Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 15.
- 29 -
case
20, the Organization was concerned about its agreement with one of its Member States and in the
Namibia case
21 an issue had arisen as to Member States' obligations arising from decisions or
resolutions of the Organization.
But by contrast in the present case, none of these factors is present. For the Court to give an
opinion in such a case as this would be without precedent in the Court's jurisprudence.
Neither of the Resolutions which initiated these requests points to any specific purposes of
either Organization which would be advanced by the giving of the Court's opinion. None of the
written statements give any convincing explanation as to how an opinion would be of any practical
value in determining the future work of either the United Nations General Assembly or WHO.
Equally, there is no evidence that an opinion would give any impetus to current disarmament
negotiations, contrary to what is said by some States22. Both the United States and Russia, the two
States which between them possess the great majority of the World's nuclear weapons and which are
directly involved in the most important disarmament negotiations, have denied that an opinion in the
present cases would assist those negotiations.
Contrary to what has been suggested by some States23 the General Assembly request does not
show that the United Nations regards an opinion as valuable for multilateral negotiations. No
resolution requesting an opinion from the Court was even put forward in the Assembly until after
WHO had made its request in May 1993. Then, as our written statement shows24, the sponsors of
20Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory
Opinion, I.C.J. Reports 1980, p. 73.
21Legal Consequences for States of the Continued Presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J.
Reports 1971, p. 16.
22See, for example, Samoa, written statement on the General Assembly request, June 1995, p. 5;
Nauru, written statement on the General Assembly request, June 1995, Introduction, p. 4; Egypt,
written comments on the written statements on the General Assembly request, September 1995, p.
10.
23Nauru and Malaysia, written comments on the written statements on the WHO request, June 1995,
pp. 9-10 of each Statement; Samoa, written statement on the General Assembly request, June 1995,
pp. 5-6.
24United Kingdom, written statement on the General Assembly request, June 1995, p. 4.
- 30 -
that resolution withdrew it expressly because they wished to maintain the momentum of progress
being made in disarmament negotiations. But there is nothing in the debates of the 1994 General
Assembly, when the request was adopted a year later, to indicate that there had been any material
change in the meantime.
Nor is there any indication from the Conference on Disarmament, which is negotiating a
Comprehensive Test Ban Treaty and is expected to negotiate a Fissile Material Cut-Off Treaty, that
the progress of their work depends - or would benefit from - the giving of opinions in the present
cases. In fact, the Test Ban negotiations are making sound progress and the conclusion of a treaty
within a matter of months is highly probable. Many States involved are committed to this outcome.
And while the negotiations for a Cut-Off Treaty have failed to start, the reasons for this have nothing
to do with the absence of an advisory opinion or with the uncertainty over the question of legality.
Mr. President, it is for those who seek an opinion from the Court to show what positive
purposes it would serve. That they have failed to do. On the contrary, there are numerous pieces of
evidence which tend to show that nothing in the activities of the United Nations turns on receiving an
answer to the present requests to the Court.
The Review and Extension Conference of the Non-Proliferation Treaty took place in AprilMay
of this year, a few months after the adoption of General Assembly resolution 49/75 K. The
Conference adopted without a vote the crucial decision to extend indefinitely the duration of the
Non-Proliferation Treaty, as well as other important decisions on the non-proliferation of nuclear
weapons. The fact that this advisory opinion had been requested was not an issue at the Conference.
No one suggested that the Conference should put off its decisions until the Court's opinion had been
received. No one even suggested it.
In relation to the proclamation by the five nuclear-weapon States of the Security Assurances
on 6 April this year, no reference was made by any country to the requests for an advisory opinion.
Those Assurances25 are solemn and formal declarations on the part of the States concerned and
25The texts of which are set out in Annex C to the United Kingdom's written statement on the
General Assembly request, June 1995.
- 31 -
respond to the urgent wishes of the non-nuclear-weapon States, which regard them as important for
their own security.
The adoption of the Negative Security Assurances was followed by the passage of Security
Council resolution 98426. In resolution 984, the Security Council unanimously welcomed the
Assurances. The adoption of that resolution had been preceded by extensive discussion and debate.
One non-member of the Council did indeed draw attention to the General Assembly's request. Yet,
as the Court will find from the record, not one single member of the Security Council seems to have
found that it had any relevance to the Council's decision or mentioned the value supposedly attached
to "clarifying the legal issue" in this important context.
All the indications are, therefore, that a response to these two requests will serve no useful
purpose. But it is necessary, Mr. President, to go beyond that proposition and consider whether a
response would actually do harm to a disarmament process in which there is currently some
remarkable progress. The submissions made to the Court in the present proceedings have confirmed
what was already apparent - that the international community is divided over the issue of the legality
of nuclear weapons. That division could have been the subject of argument, as endless as it would
have been fruitless, in every disarmament forum. Instead, the international community has sensibly
elected to draw a veil of constructive silence over that sterile debate and to concentrate instead on
making progress in practical matters. The present requests ask the Court, in effect, to remove that
prudence and set aside that veil. To do so would obviously carry a risk of undermining the whole
basis on which disarmament negotiations have progressed and are progressing.
So, to recapitulate, Mr. President, the World Health Organization is manifestly without
competence under the terms of the United Nations Charter, under the terms of its own Constitution,
its Relationship Agreement with the United Nations and its own practice to put the question which
stands in its name. The General Assembly has the necessary competence but there is no positive
purpose, no activity of the United Nations - current or planned - which an opinion would serve, so as
26The text of which appears at Annex D of the United Kingdom's written statement on the General
Assembly request, June 1995.
- 32 -
to bring the case within the established jurisprudence of the Court under its Statute. For these
reasons, Mr. President, our primary submission is that the Court should not answer either of the
requests for an advisory opinion.
The Substantive Law
Mr. President, I now turn to the substantive law, should the Court be minded to go into it.
Our submission is that the substantive law does not prohibit the use, or threat of use, of nuclear
weapons per se.
For that is the fundamental question raised by both these requests. Does international law
prohibit the use, or threat of use, of nuclear weapons? We do not search for a permissive rule.
International law is premised on the freedom of action of sovereign States, above all in matters
affecting their security and their independence. The question is therefore whether there exists a
prohibitive rule of law, conventional or customary, regarding nuclear weapons. To be lawful, the
use of any weapon, nuclear or conventional, must comply with two requirements. The use of force
must be lawful under the rules on resort to force, the jus ad bellum, and the use of a particular
weapon must, in the circumstances, comply with the rules regulating the conduct of hostilities, the
jus in bello. With your leave, Mr. President, I shall therefore look first at the law on the use of force
and second at the law on the conduct of hostilities. Finally, because so much has been made of it in
the oral statements to the Court, I shall examine the effect of general international law, including
human rights and the law on the environment.
(1) The Law on the Use of Force
Is there, then, a clear rule regarding the use of force which prohibits the use of nuclear
weapons? There is, of course, a rule which is highly pertinent, Mr. President. It lies, of course, in
Article 2, paragraph 4, of the United Nations Charter, which encompasses both the use and the
threat of force. The United Kingdom fully accepts that the prohibition in Article 2, paragraph 4,
applies to the use of nuclear weapons: the rule is in no way weapon-specific.
But if the prohibition in Article 2, paragraph 4, extends to nuclear weapons, so too does the
- 33 -
right of self-defence enshrined in Article 51. That is the most fundamental right of all, Mr.
President, and it is preserved in terms which are general, not restrictive. It is impossible to argue
that this fundamental, inherent right has been limited or abandoned on the basis of mere inferences
drawn from other rules, whether conventional or customary. Moreover, the practice of those States
vitally affected by such a rule shows that they entirely reject any such inference.
How then can it be argued that there exists such a general prohibition, prohibiting even selfdefence.
If one carefully examines the submissions made to this Court, it appears that the arguments
put forward are threefold.
First, it is argued that any use of nuclear weapons would be by way of reprisals, not selfdefence27.
That is pure speculation. To assess whether a particular use of force is a case of selfdefence
or a reprisal requires a careful scrutiny of the facts of the particular case to reveal whether
the real purpose is protective or punitive. It cannot be right to assert or assume that, irrespective of
the facts, the use of a particular weapon must inevitably be qualified as a reprisal. A special form
of this argument is to say that a "second use" of nuclear weapons would necessarily be a reprisal, on
the assumption that the time for defence would have passed, the damage already having been
suffered28. But who is to say that an aggressor will launch only one attack? And to argue that selfdefence
disappears once damage has been suffered would be tantamount to saying that a victim of
aggression loses the right in self-defence to expel the invader once its territory is occupied.
Second, it is argued that because the weapon is illegal it cannot be used in self-defence29
.
Well, Mr. President, the Court will instantly recognize such an argument is entirely circular: the use
of nuclear weapons cannot be lawful because it is unlawful. It assumes the very conclusion - the
27Nauru, written statement on the WHO request, September 1994, pp. 26-29; India, written
statement on the General Assembly request, June 1995, p. 2.
28See, for example, Nauru, written statement on the General Assembly request, June 1995, pp. 25-
26; Mexico, written statement on the General Assembly request, June 1995, p. 11; Malaysia,
written statement on the General Assembly request, June 1995, p. 18.
29See, for example, Malaysia, written comments on the written statements on the WHO request, June
1995, p. 34; Solomon Islands, written statement on the General Assembly request, June 1995, p. 65.
- 34 -
illegality of use - which has to be proved. It adds nothing to the legal analysis. As I shall show later,
when States have wanted to outlaw particular weapons, as they have, they have been careful to agree
precise, conventional rules - such as the Biological Weapons Convention or the Chemical Weapons
Convention.
Third, it is argued that to use nuclear weapons must fall outside the right of self-defence, since
it could never constitute a "proportionate" response30. Here again, this is assertion, not argument. If
one is to speak of "disproportionality", the question arises: disproportionate to what? The answer
must be "to the threat posed to the victim State". It is by reference to that threat that proportionality
must be measured. So one has to look at all the circumstances, in particular the scale, kind and
location of the threat. To assume that any defensive use of nuclear weapons must be
disproportionate, no matter how serious the threat to the safety and the very survival of the State
resorting to such use, is wholly unfounded. Moreover, it suggests an overbearing assumption by the
critics of nuclear weapons that they can determine in advance that no threat, including a nuclear,
chemical or biological threat, is ever worth the use of any nuclear weapon. It cannot be right to say
that if an aggressor hits hard enough, his victim loses the right to take the only measures by which he
can defend himself and reverse the aggression. That would not be the rule of law. It would be an
aggressors' charter.
In reality, Mr. President, any government faced with such a threat will have to decide, what
reliance on deterrence or degree of action is necessary for self-defence. A decision to use nuclear
weapons would only be taken in extreme cases and on the basis of the ultimate duty of a State to
defend its people and their homeland. That duty cannot be replaced by some supposed axiom that
the use of a nuclear weapon will always be "disproportionate".
Nor can it be argued that such an axiom is necessary because governments will always take
the wrong decision. For all the dangers, for all the hideous anxiety, we have behind us 50 years of
30See, for example, Malaysia, written statement on the General Assembly request, June 1995, p. 17;
Egypt, written statement on the General Assembly request, June 1995, p. 10; Mexico, written
statement on the General Assembly request, June 1995, p. 10.
- 35 -
non-use of nuclear weapons. Despite all the conflicts of the past 50 years, the holding of nuclear
weapons in exercise of the policy of deterrence has been responsible.
(2) The Law of War
It is next necessary to consider whether the use of nuclear weapons is unlawful per se under
the jus in bello, the law on the conduct of hostilities. Time and again in the submissions which have
been made to this Court, we find the assumption, the bare assertion, that the use of nuclear weapons
must be unlawful. But if that proposition is to be advanced before a court of law, Mr. President, it
must be tested by means of a careful examination of the law - both conventional and customary - to
determine whether it does contain a rule which clearly does prohibit the use of nuclear weapons.
Our submission is that the law of war contains no such rule. First, among all the numerous
treaties which deal with weaponry, there is not one which addresses the legality of using nuclear
weapons. Second, the more general treaties on the law of war, and, in particular, the First
Additional Protocol to the Geneva Conventions, cannot be read - as others have sought to read them
- as impliedly outlawing the use of nuclear weapons. Third, the customary law of war, while it
contains principles which are applicable to nuclear weapons does not preclude the use of such
weapons in appropriate circumstances.
Treaties on the Law of War
No rule outlawing nuclear weapons per se is to be found in any of the treaties on the law of
war. Although most of those treaties have been concluded since 1945, it is significant that no
reference to nuclear weapons is to be found in the 1949 Geneva Conventions, the 1977 Additional
Protocols or the various weaponry treaties adopted during this period. Indeed, the negotiating
history of those treaties reveals a deliberate decision on the part of the international community not
to discuss, let alone adopt, a prohibition on the use of nuclear weapons.
The point is worth stressing, because the international community has certainly not shied away
from adopting agreements on the use of specific weapons during this period, and indeed specific
weapons of mass destruction. The Biological and Toxin Weapons Convention (1972), the
- 36 -
Environmental Modification Treaty (1977), the United Nations Conventional Weapons Convention
and its Protocols (1980) and the Chemical Weapons Convention (1993) all bear witness to the fact
that the international community has been prepared to ban, or restrict, the use of specific weapons
and that it has chosen to do so directly and explicitly, by treaty. But it has done nothing of the kind
in the case of nuclear weapons, outside certain specified geographical areas. This is not an accident
but a matter of conscious choice. Nuclear weapons have consistently been treated as a subject for
disarmament negotiations, rather than prohibition.
Just such a choice was made, Mr. President, by the Diplomatic Conference which adopted the
two Additional Protocols to the Geneva Conventions. The Conference proceeded throughout on the
basis of an express understanding that it would not - that it would not - attempt to change the law
applicable to the use of nuclear weapons. The nature of that understanding and the conclusions
which the United Kingdom seeks to draw from it have been misrepresented in a number of the
statements made to this Court. We do not suggest, contrary to what was said by counsel yesterday,
that the Additional Protocols legitimized any use of nuclear weapons which was previously illegal.
The real nature and effects of the nuclear understanding on the basis of which the Additional
Protocols were adopted are set out in our Written Statement31. The understanding was that the
Diplomatic Conference would not attempt to deal with the question of nuclear weapons. That meant,
first, that there would be no attempt to make specific provisions for nuclear weapons in the text, and
no provisions were made. Secondly, it meant that any new provisions introduced into the law of
armed conflict by the Additional Protocols would apply only to conventional weapons.
We fully accept, however, that the use of nuclear weapons is subject to the principles of
customary international law, and it is plain that some of the provisions of Additional Protocol I did
no more than reaffirm and codify principles of the customary law of armed conflict which already
existed and which apply to the use of all weapons, including nuclear weapons. But it is equally plain
that other provisions of the Protocol, such as those on the environment and those on reprisals, were
31United Kingdom, written statement on the General Assembly request, June 1995, pp. 25-27 and 40-
46.
- 37 -
understood to be new rules.
All this is clearly reflected in formal statements made by several States, including my own, on
signature or, indeed, on ratification of Protocol I. None of those statements has been questioned or
objected to by any other party; no contrary declaration has been deposited with the Swiss
Government at any stage.
Speaking yesterday, counsel asked why the international community could not "innovate" in
the law in order to meet innovation in weaponry. The answer of course is that it could. But to say
that it could do so does not mean that is has done so. The most recent of the nuclear statements was
made when Canada ratified Protocol I in 1990. It too went, rightly, unchallenged.
It has also been suggested in these proceedings before this Court that the use of nuclear
weapons has indirectly been prohibited by treaty provisions which do not mention such weapons by
name. In particular, several of the written statements submitted to the Court maintain that the
prohibition on the use of chemical weapons - which is clearly established in the treaties - is broad
enough to extend to nuclear weapons also32
.
Mr. President, that argument is patently unsound. The ban on "asphyxiating, poisonous or
other gases and of all analogous liquids materials or devices", recognized in the 1925 Geneva
Protocol on Chemical and Bacteriological Weapons was, of course, adopted long before nuclear
weapons, or indeed, any nuclear technology, existed. It was intended to apply to weapons the
primary effects of which were poisonous - obviously, it had the gas used in the first world war very
much in mind - whereas the primary effects of nuclear weapons are devastating heat and blast.
Moreover, those who addressed the Court on this subject yesterday ignored the subsequent
practice of the parties to the 1925 Protocol. That practice shows that the provisions of the Protocol
have not been treated by the parties as applicable to nuclear weapons. Four of the five
32See, for example, India, written statement on the General Assembly request, June 1995, p. 5;
Mexico, written statement on the General Assembly request, June 1995, p. 13; Malaysia, written
statement on the WHO request, September 1994, pp. 11-12; Solomon Islands, written statement on
the WHO request, September 1994, p. 56; Nauru, written statement on the WHO request,
September 1994, Part I, p. 47.
- 38 -
nuclear-weapon States were already parties to the 1925 Protocol when they acquired nuclear
weapons. Many other parties relied upon the "nuclear umbrella" provided by one or more of the
nuclear-weapon States. None of them considered it necessary to denounce the Protocol or to make
any interpretative statement or declaration regarding nuclear weapons. Nor did the United States
make any such statement or reservation when it ratified the Protocol in 1975. It was treated as
axiomatic that the Protocol simply had nothing to do with nuclear weapons33. You cannot have a
contemporary interpretation of the Protocol wholly inconsistent with the practice of the parties.
Moreover, the 1925 Protocol does not stand alone. Since 1945, chemical and bacteriological
weapons - both weapons of mass destruction - have been the subject of very detailed and lengthy
negotiations. A painstaking process which has lasted more than 25 years produced, first, the 1972
Biological and Toxin Weapons Convention and, most recently, the 1993 Chemical Weapons
Convention. Neither treaty makes any reference whatever to nuclear weapons and such weapons
were scarcely mentioned in the 30 years of negotiations which led to those agreements. It is
nonsense, Mr. President, to suggest that States which have for 50 years based their strategy for
national self-defence on nuclear weapons - whether their own or those of others - have inadvertently
agreed to a complete ban on the use of those weapons.
The Customary Law of War
So far as the customary law of war is concerned, the United Kingdom has always accepted
that the use of nuclear weapons is subject to the general principles of the jus in bello. But to say
that a weapon is subject to the law does not mean that it must be prohibited by that law. There is no
doubt that the customary law of war does prohibit some uses of nuclear weapons, just as it prohibits
some uses of all types of weapon. But again, it is assumption, not argument, to say that it prohibits
all uses of nuclear weapons, without regard to the circumstances.
Detailed replies to many of these points are set out at length in our written statement on the
33United Kingdom, written statement on the General Assembly request, June 1995, pp. 48-49;
Netherlands, written statement on the WHO request, September 1994, para. 25; United States,
written statement on the General Assembly request, June 1995, pp. 23-25.
- 39 -
General Assembly request: so it is simply not accurate for counsel for Solomon Islands to claim that
their arguments have not been properly answered. I will not repeat all those points before the Court,
Mr. President, but I do wish to draw your attention to certain issues.
For example, the Court has been told that "it goes without saying" that nuclear weapons
violate a long-established customary law principle against causing unnecessary suffering34. But is
that really so? The principle that a belligerent must not use methods or means of warfare which
cause unnecessary suffering or superfluous injury35 does not prohibit the use of a weapon which
causes extensive suffering unless that suffering is truly unnecessary. What is required, therefore, is
a balancing of military necessity and humanity. Contrary to what is suggested in some of the
observations before the Court36, this is not to say that military necessity overrides the law of war. It
does not. Consideration of military necessity is an integral part of the unnecessary suffering
principle. It is not a case of necessity being invoked to justify the use of an unlawful weapon; the
use of that weapon is not unlawful if the injury it causes is necessary to the achievement of a
legitimate military goal.
It was also said that no balance is possible between the suffering which would be caused by a
use - any use - of a nuclear weapon and the military advantage which would be derived from that
use
37. But such an abstract statement does not stand up to analysis. Let me take an example. A
State or group of States is faced with invasion by overwhelming enemy forces. That State or that
group of States is certainly entitled to defend itself. If all the other means at their disposal are
insufficient, then how can it be said that the use of a nuclear weapon must be disproportionate?
Unless it is being suggested that there comes a point when the victim of aggression is no longer
34Egypt, written statement on the General Assembly request, June 1995, p. 13.
35Hague Regulations on Land Warfare, 1907, Article 23 (e); Additional Protocol I, 1977, Article 35
(2).
36See, for example, Malaysia, written comments on the written statements on the WHO request, June
1995, p. 25.
37Malaysia, written comments on the written statements on the WHO request, June 1995, p. 25.
- 40 -
permitted to defend itself because of the degree of suffering which defensive measures will inflict.
Such a suggestion is insupportable in logic and unsupported in practice.
Many of the submissions made to the Court have displayed a similar tendency to assume that,
as a matter of course, any use of a nuclear weapon will inevitably violate the principles of the law of
war designed to protect the civilian population. Let me itemize those principles which are well
known and then dissect the argument.
The principles can be summarized as follows:
(i) first, it is unlawful to direct an attack against the civilian population or civilian objects as
such; only military objectives are legitimate targets of attack; and
(ii)second, even a military target must not be attacked if to do so would cause collateral civilian
casualties or damage to civilian property which is excessive in relation to the concrete and
direct military advantage anticipated from the attack - an aspect of the wider principle of
proportionality to which I have already referred.
These principles were the heart of the resolution adopted by the Institut at its 1969 Edinburgh
session, of which so much was made yesterday. The distinguished roll-call of the members of the
Institut means that its resolutions, though not binding, are entitled to great respect. The 1969
resolution played an important part in the intergovernmental negotiations which led to Additional
Protocol I to the Geneva Conventions, in particular through its statement of the two principles which
I have just cited.
We fully accept that these principles operate as a constraint on the use of nuclear weapons -
and all other weapons. But it is a fallacy to argue that every use of a nuclear weapon must
contravene those principles. While the resolution sets out the criteria by which the use of nuclear
weapons must be assessed, it does not prejudge the results of that assessment. If the members of the
Institut had believed that those criteria prohibited all use of nuclear weapons, they could have said
so. They did not.
Furthermore, nuclear weapons are today capable of precise targeting. It is possible to direct
them quite precisely against military objectives and thus to comply with the first principle. Whether
- 41 -
that is done in a particular case is not simply a matter of the size of the weapon itself, contrary to
what is suggested by Malaysia38. It depends upon all the circumstances in which the use of the
weapon is rendered necessary and therefore takes place. Once again, broad abstract statements
about the use of nuclear weapons give the Court no help in answering the questions posed to it.
Nor is it to be assumed that the use of a nuclear weapon against a military objective will
inevitably cause disproportionate civilian casualties. Like the unnecessary suffering principle, this
rule requires a balance to be struck between the concrete and direct military advantage anticipated
and the level of collateral civilian casualties and damage foreseen. It is an inescapable feature of the
legal principle itself that the greater the military advantage which can reasonably be expected to
result from the use of a weapon in a particular case, the greater the risk of collateral civilian
casualties which may have to be regarded as within the law. Where what is at stake is the difference
between national survival and subjection to conquest which may be of the most brutal and enslaving
character, it is dangerously wrong to say that the use of a nuclear weapon could never meet the
criterion of proportionality.
The argument that the use of a nuclear weapon is per se unlawful because it would inevitably
violate the territory of neutral States is equally unsound, Mr. President. The principle that neutral
territory is inviolable means that a belligerent may not, save in rare and clearly defined
circumstances, actually conduct military operations on the territory of a neutral State. It has never
meant that neutral States can expect to be subject to none of the effects of war. The whole purpose
of the law of neutrality has always been to achieve a balance between the interests of the neutral
State and the needs of the belligerents. The needs of a State forced to fight for survival in the face of
massive aggression must weigh very heavily in that balance. Moreover, whether any use of a
nuclear weapon anywhere in the world would inevitably produce material effects on the territory of a
neutral State is not a matter which can be approached by way of generalizations. Each case, once
again, has to be judged in the light of all the relevant circumstances.
38Malaysia, written comments on the written statements on the WHO request, June 1995, pp. 20-21.
- 42 -
In spite of all the assertions and all the assumptions put before the Court, Mr. President, no
rule prohibiting nuclear weapons per se can be derived from any treaty or customary rule on the law
of war.
(3) General International Law
Treaties
The Court has also been told that, irrespective of the jus ad bellum and the jus in bello, every
use of nuclear weapons would be contrary to general principles of international law. Yesterday the
case was that the general provisions in environmental treaties have the effect of outlawing the use of
nuclear weapons39. This argument cannot, however, be sustained and must, in the United Kingdom's
view, be decisively rejected. These treaties - often prayed in aid collectively, rather than by reference
to any of their particular terms - make no mention of nuclear weapons. Their principal purpose is
the protection of the environment in times of peace. Warfare in general, and nuclear warfare in
particular, are not mentioned in their texts and were scarcely alluded to in the negotiations which led
to their adoption. It would be not merely startling but destabilizing to the rule of law to see these
treaties now interpreted in such a way as to prohibit the use of nuclear weapons.
Counsel for Solomon Islands asked why the United Kingdom and other nuclear-weapon States
have not sought - as he put it - to protect their position in connection with these treaties by insisting
on express understandings similar to that concluded with regard to Additional Protocol I. But, the
answer is obvious, Mr. President. Additional Protocol I is all about war. The environmental treaties
are not. They are directed at the conduct of States in normal peacetime conditions, and it needs to be
established that they apply to the conduct of armed hostilities. It is nonsense to suggest that the
insistence on an express understanding about nuclear weapons in a treaty on war means that the
absence of such an understanding in treaties which are not about war means that those treaties
outlaw the use of nuclear weapons. And it is dangerous nonsense to suggest that States which have
39See also Mexico, written statement on the WHO request, September 1994, pp. 9-11; Malaysia,
written statement on the WHO request, September 1994, p. 11; Solomon Islands, written statement
on the WHO request, September 1994, p. 78.
- 43 -
dealt so carefully with nuclear weapons in the context of the laws of war and disarmament would,
almost casually, have accepted that such weapons be prohibited by recourse to general conventions
on the environment - dangerous nonsense.
Mr. President, the contrary argument, with respect to those who have advanced it, does pose
real dangers. If treaties, such as those on the environment, are to be construed in a manner which is
quite outside all normal expectation, States are bound to think twice before subscribing to them, and
that is in nobody's interest. As I noted at the outset, the United Kingdom believes profoundly in the
rule of law. It would be a source of the greatest concern were we to be informed that obligations to
which we have put our name now mean something entirely different from that which they were
understood to mean when negotiated.
Counsel for Solomon Islands also referred to the 1991 hostilities in the Gulf. As one who was
in government at the time, I can assure him that the legality of acts of warfare in that conflict were
assessed by reference to the laws of armed conflict, not by reference to environmental treaties
applicable in times of peace. Since Iraq's invasion and occupation of Kuwait was fundamentally
illegal, Iraq was internationally responsible for all the damage, including environmental damage that
resulted. This is what the Security Council decided in resolution 687 of 1991 as the wording itself
shows.
The similar argument, Mr. President, that any use of nuclear weapons would violate the right
to life provisions in human rights treaties must also be rejected40. These treaties were never intended
to regulate the conduct of hostilities in wartime. The practice of States who are parties to human
rights conventions is, unambiguously, to test the legality of acts of warfare by reference to the laws
of war, not by reference to treaties safeguarding human rights in time of peace.
Moreover, the right to life is not absolute. The prohibition - to draw on the International
40See, for example, Malaysia, written statement on the WHO request, September 1994, p. 12;
Nauru, written statement on the WHO request, September 1994, Part I, pp. 48-51; Solomon
Islands, written statement on the WHO request, September 1994, pp. 76-91; Egypt, written
statement on the General Assembly request, June 1995, pp. 15-16.
- 44 -
Covenant on Civil and Political Rights41 - is in respect of the arbitrary deprivation of life. In so far
as this applies in armed conflict at all, it can only mean deprivation of life which is contrary to the
laws of war. The reference to human rights treaties thus adds nothing, for the legality of a use of
nuclear weapons continues to turn on the laws of war.
Mr. President, it is entirely contrary to the law of treaties to interpret an instrument, whether
on the environment, human rights, or any other subject, in a way which was never intended or even
contemplated by the parties and which has never been endorsed in their practice. To venture down
that road would gravely endanger the certainty and stability of treaty relations.
Custom
Mr. President, for the United Kingdom that is the end of the matter. I would in normal
circumstances have wished to bring my remarks to a close there, having dealt - I hope sufficiently -
with questions of jurisdiction, admissibility and propriety, and, on the substantive law, and with both
the relevant treaty and customary law. I must however detain the Court a little longer, if I may, to
deal with some very far-reaching, not to say novel, arguments advanced before the Court at the
opening of these oral hearings by the distinguished Foreign Minister of Australia.
The entire argument put to the Court turns upon an axiom of "inherent illegality". It is said
that not only all use or threat of use of nuclear weapons is unlawful, but a whole series of other
activities - testing, possession, improvement of existing weapons, and so on, not covered in either of
the questions submitted to the Court, must be considered unlawful because of some inherent quality
of nuclear weapons.
Apart from the fact that this argument simply fails to grapple at all with the realities of
nuclear deterrence (which I discussed earlier), the argument also contradicts itself by admitting that
the legal position has not always been as it is now argued inherently to be. It admits that nuclear
weapons were not illegal at the time they were first developed, manufactured and deployed, and,
apparently, for most of the period since then. We were told that it would be fruitless to speculate as
41Art. 6.
- 45 -
to when precisely the crucial change occurred. But, Mr. President, the question cannot simply be
brushed aside. If for a long period of time the weapon was recognized to be lawful but is now said
to be completely unlawful, the change does have to be identified and demonstrated by reference to
some evidence. Yet in this particular case the argument sought to be made is that the weapon is
inherently illegal, in other words that there is some quality of the weapon itself which prevents it
from being lawful. But the essential nature of nuclear weapons has not changed, and it certainly has
not changed since the 1980s. So it cannot be anything in the weapon itself which has produced the
supposed illegality but some change in the surrounding circumstances. Hence it is simply not
sustainable to brush aside the need to show the Court what this change was and why it had the
effects alleged.
That leads me, Mr. President, to reflect a little on whether that elusive ingredient of customary
law, the opinio juris, is reliably to be gathered from the speeches in the United Nations General
Assembly or even from speeches before this Court. Sometimes there may be better evidence of what
States actually believe the law to be. One valuable source, I do not know whether it is inherently
valuable, is their military manuals, the instructions they actually issue to their armed forces for time
of war. May I quote briefly from one such manual which we referred to in our written submissions.
It is very short. Under the heading "nuclear weapons", it says:
"Although the United Nations General Assembly has purported to condemn all
nuclear weapons as illegal, the consensus of the international community is that such
weapons are not prohibited per se."
That extract, Mr. President, is from the "Commanders' Guide" issued to its Defence Forces by the
Government of Australia. And the date is March 1994.
Mr. President, moving on from this point, I feel obliged to make some comment on the other
wholly imprecise suggestions which have been made to the Court to the effect that there is a rule of
customary international law, which is somehow emerging from some other source, that outlaws the
use of nuclear weapons. I must emphasize that there is no State practice, there is no opinio juris,
which could begin to support such an assertion.
A new rule of customary law cannot, contrary to what has been claimed, be derived simply
- 46 -
from general humanitarian principles. Nor can "general principles of humanity" be turned into rules
of law by saying that they have been recognized by this Court in its previous decisions. General
principles of humanity have indeed been referred to in two decisions by this Court, in the Corfu
Channel case
42 and in the Military and Paramilitary Activities case
43. But one cannot stop there, at
the threshold, and refrain from looking at what the Court actually decided, and what it said. In both
cases what the Court decided was that there was a legal obligation to notify, for the benefit of
shipping, the existence of known minefields. In each case, an obligation to warn of a known danger.
This is a far cry indeed from the proposed outlawing per se of a lawful weapon, still less a weapon
of such importance in the strategic balance. In the Corfu Channel case the Court did not conjure up
this obligation solely out of humanitarian considerations; it said explicitly that it was basing itself on
several general and well- recognized principles, which included considerations of humanity, but also
such principles of law as the freedom of maritime communication and the obligation of every State
not knowingly to allow its territory to be used for acts contrary to the rights of other States.
Similarly, in the Military and Paramilitary Activities case, the Court did not derive its conclusion
solely from free-standing "principles of humanity", but analyzed them against the background of
specific treaty provisions. Moreover, when the Court went on to consider broader obligations under
international humanitarian law, it did so clearly and specifically in the context of treaties in force.
Therefore, while the approach now suggested seeks to borrow a handful of words and phrases
previously employed by the Court, it uses them in a way which bears not the slightest relationship to
how the Court has previously handled humanitarian considerations.
This Court has on many occasions set out the real requirements of custom. There must be a
coherent body of State practice. That practice must be of sufficient generality to show widespread
support among States. The practice must embody a positive belief that it is required by law.
Support for the existence of the rule must be evident, in particular, from States whose interests are
42Corfu Channel, I.C.J. Reports 1949, p. 22.
43Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 14.
- 47 -
specially affected.
In the present case none - none - of those criteria are satisfied. Although some States contend
for the existence of a prohibitive rule44, there is no widespread and uniform body of practice in
support of such a contention. Moreover, whatever practice there may be does not include the
practice of States whose interests are specially affected. Specifically, nuclear-weapon States and
those States on whose territory such weapons are situated have, by word and deed, disavowed the
existence of such a rule. The evident disagreement on this matter before the Court is itself adequate
testimony to the absence of a sufficient consistency of practice on this point.
Equally, Mr. President, there is no evidence of any belief on the part of States that any such
practice is required by customary international law. Although some have argued that the non-use of
nuclear weapons since 1945 implies a belief that such use would be illegal45 this contention has no
merit. I have already explained that the purpose of nuclear weapons is to deter by their very
existence. The fact that a weapon has not been used is not evidence of a prohibition unless the States
which refrain from such use do so because they consider themselves under an obligation not to use
that weapon. That is not the case here. That States with nuclear weapons have not used them and
that some other States consider their use would be unlawful cannot be said to create a prohibitive
rule.
Mr. President, much of the oral argument before the Court has revolved around the NonProliferation
Treaty. It was the basis on which the Attorney-General of New Zealand asked the
Court to give its impetus to an emerging rule of customary law. The Non-Proliferation Treaty is
certainly extremely important in itself and in the present context. But it is essential to avoid
generalized propositions about the NPT and its effects which do not take into account what the
Treaty actually says and what the parties undertook in subscribing to it.
44See, for example, Samoa, written statement on the General Assembly request, June 1995, p. 3;
Mexico, written statement on the General Assembly request, June 1995, para. 4; Solomon Islands,
written statement on the General Assembly request, June 1995, paras. 4.3 et seq.
45See, for example, Nauru, written comments on the written statements on the WHO request, June
1995, Part I, p. 32.
- 48 -
First, there can be no doubt that the Treaty recognizes the possession of nuclear weapons by
the nuclear-weapon States defined in its Article IX, paragraph 3. I say "recognizes" advisedly
because there is not the slightest hint in the Treaty of an intention to stigmatize their holding of
nuclear weapons as unlawful. What the Treaty does is something quite different. In the Preamble
and in Article VI the parties pledge themselves to pursue effective measures "relating to nuclear
disarmament and" (I stress this because the Court has been treated to selective quotation) "and on a
Treaty on general and complete disarmament under strict and effective international control". This is
to be done by negotiation "in good faith". And there is no time limit. Article VI says that the
nuclear arms race should be ended by negotiation, "at an early date" but there is no time-clause
attached to nuclear disarmament any more than to "general and complete disarmament". Mr.
President, it is extremely hard to read into the actual terms of the Treaty any intention to legitimize
nuclear weapons only for a temporary period, as the Australian Foreign Minister suggested. No
doubt there were different views about nuclear disarmament among the negotiators. But the text
suggests strongly the conviction that it might not be possible to achieve nuclear disarmament without
general and complete disarmament, and then only if it was bolstered by strict and effective
international control. And that will come as no surprise to anyone who has studied this subject over
many years.
Second, there is not a shred of evidence in the Treaty for the proposition advanced yesterday
on behalf of Solomon Islands, that those who deny the universal binding force of the NPT are
encouraging non-parties to acquire nuclear weapons. That cannot stand in the face of repeated calls
for universal adherence to the Treaty by the United Nations General Assembly and by the parties
themselves in the Principles they adopted at the Review and Extension Conference. The only
nuclear-weapon States recognized by the Treaty are those which, under Article IX, had nuclear
weapons before 1 January 1967. How can this be said to legitimize proliferation by others?
Finally, Mr. President, a word about the use of nuclear weapons. We heard it eloquently
advanced that the NPT only recognizes possession of nuclear weapons but not their possible use.
There is an air of unreality about that proposition. Of course the Treaty says nothing about use; it
- 49 -
was not a laws of war agreement. But why were the negotiators so concerned about the threat of
proliferation? Because, as the Preamble says, they believe that proliferation would seriously enhance
the danger of nuclear war. It is not credible to assume that the negotiating States recognized lawful
possession of nuclear weapons by a limited class of States but denied any possibility of lawful use,
and thus any purpose for their possession.
This question is directly linked to the question of the Security Assurances which I mentioned
earlier. Security Council resolution 984 which welcomed those assurances does not, as claimed by
the representative of Iran, recognize that the use of nuclear weapons is unlawful. Rather, the
Council faced up to the possibility that there could be unlawful aggression with nuclear weapons,
which would require a collective response. The Council also welcomed the assurances given by the
nuclear-weapon States as to the circumstances in which their weapons would not be used. Its
welcoming of the specific terms of those assurances is simply not compatible with the view that use
of nuclear weapons in general is unlawful in any circumstances, is unlawful per se.
None of these items of international practice - resolution 984 of the Security Council, the
Negative Security Assurances and the Decision of the Non-Proliferation Treaty Conference - is
remotely reconcilable with a customary rule prohibiting the use of nuclear weapons. On the
contrary, they demonstrate a widespread acceptance by a considerable number of States that the use
of such weapons is not at present prohibited per se. There can be no other explanation for the
repeated emphasis on the importance of pursuing nuclear disarmament by negotiation.
That conclusion is reinforced by State practice in the conclusion of treaties establishing
nuclear-weapon-free zones, which is specifically foreseen by Article VII of the NPT. These now
include the Treaty of Tlatelolco in respect of South America, the Treaty of Rarotonga in respect of
the South Pacific, and the recently concluded treaty on the African Nuclear-Weapon Free Zone. The
United Kingdom is a party to the Protocols to the Treaty of Tlatelolco and has recently announced,
along with the United States and France, its intention to sign the Protocols to the Treaty of
Rarotonga in the first half of 1996. These Treaties and their Protocols, the declarations made by the
nuclear-weapon States in respect of the Treaty of Tlatelolco, and the appeals by the parties to these
- 50 -
agreements that the nuclear-weapon States participate in these régimes, imply, quite clearly, an
acceptance that there is no over-arching rule prohibiting such weapons per se. They also indicate a
general acceptance that the way in which to proceed on these matters is, as I have said several times,
by negotiation.
In the absence of State practice and opinio juris sufficient for the formation of a rule of
custom, there can be no rule prohibiting the use of nuclear weapons. Custom is not something which
can be conjured from the air or even in the tempest from the vasty deep. It requires evidence,
particularly if it is to be relied upon to overturn a body of practice that has gone to the very heart of
the defence of many States over the past 50 years. It is not something which can be assumed, or
deduced from appeals to general principles of humanity.
Nor can a customary prohibition on nuclear weapons be derived from the resolutions of the
General Assembly of which so much has again been made in these proceedings46. In some cases, it
has not been a specific instrument that has been prayed in aid but the allegedly "cumulative effect" or
"combined weight" of a number of instruments47
.
Mr. President, such an approach lacks any solid foundation in international law. Resolutions
of the General Assembly on matters such as these do not create binding obligations for
United Nations Members. While they may, in certain circumstances, be evidence of custom, a rule
of custom cannot lightly be presumed. As the Court itself said48, resolutions of the General
Assembly may only be relied upon as evidence of custom (i) if they command widespread and
representative support, (ii) if they are regarded by States voting for them as articulating a principle
of customary law, and (iii) if they are capable of normative application. Provisions which are merely
46See, for example, Samoa, written statement on the WHO request, September 1994, p. 3, written
statement on the General Assembly request, June 1995, pp. 3-6; Egypt, written statement on the
General Assembly request, June 1995, pp. 7-8; Mexico, written statement on the WHO request,
September 1994, pp. 4-5; Solomon Islands, written statement on the WHO request,
September 1994, pp. 36-41.
47See, for example, Samoa, written statement on the General Assembly request, June 1995, pp. 3-5.
48Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment, I.C.J. Reports 1986, p. 14.
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hortatory and which received only partial support among States cannot be relied upon to generate a
new rule or to change an existing rule of custom49
.
Mr. President, without exception the General Assembly resolutions cited in support of the
existence of a prohibitive rule of custom do not meet the standards required by this Court. The
voting figures in each case indicate controversy among States on the matters in issue (the figures are
given in our written submissions50). In each case, nuclear-weapon States and other States whose
interests were specially affected either voted against or abstained from voting for the resolution.
This fact fatally undermines any notion that the resolutions express an opinio juris in favour of a
prohibitive rule. Moreover, the very language of the resolutions in most cases demonstrates their
hortatory nature and indicates that they are unsuitable for normative application. The resolutions
cannot, therefore, be evidence of a prohibitive rule of customary law.
The approach of deducing a rule of custom from various multilateral treaties is equally
flawed. The treaties relied upon for this purpose are invariably treaties for the protection of the
environment. As I noted a moment ago, these treaties make no mention of nuclear weapons, let alone
contain a prohibition on their use. Just as these treaties cannot be read as prohibiting the use of
nuclear weapons as a matter of treaty law, so we cannot extract from them a rule of customary law
to that effect. If a rule of custom is to be deduced from a treaty, it is surely a prerequisite that the
rule in question is identifiable, first, — and this was not done — in the treaty itself.
So, Mr. President, there remains only the "cumulative effect" argument. With due respect to
its authors, this is an argument for the Court to make law, not to state the law as it finds it. If ever
there was a case in which it would be inappropriate for the Court to make the law, this is it. There is
no evidence to sustain a rule of custom. There is a consensus that nuclear disarmament must
proceed by negotiation. As the differing views expressed in these very proceedings attest, there is no
49See further on this point the United Kingdom's written statement on the WHO request,
September 1994, pp. 73-77 and its written statement on the General Assembly request, June 1995,
pp. 32-35.
50United Kingdom, written statement on the General Assembly request, June 1995, pp. 32-35.
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uniformity of view to which the Court can simply add its voice. Nuclear weapons - and the concept
of deterrence based upon them - go, as I have said before, to the very heart of the defence of many
States and thus to the maintenance of international peace and security and have done so for some 50
years. In the United Kingdom's submission, it is wholly improper in this case, of all cases, to
suggest that the Court should take on a legislative function.
Conclusion
Mr. President, I must now conclude. These are not contentious proceedings and there is no
call for formal closing submissions, but it may be of assistance if I briefly summarize what we
believe to be the main issues and state the conclusions which we reach on each of them.
First, there is an issue of jurisdiction. In our submission, the World Health Organization is
manifestly not competent, under its Constitution or by reference to any established pattern of activity
pursuant to its Constitution, to raise the present subject with the Court. We believe that the Court
should give a clear ruling to that effect in its reply to WHO. This is necessary for the protection of
the system laid down in the United Nations Charter and in the Statute and for the benefit of WHO
itself and for the benefit of the other specialized agencies.
Second, there is an issue about the discretion of the Court and the integrity of the judicial
function - an important issue. While there is no doubting the Court's competence to entertain the
question from the General Assembly, there remains an important question whether the Court should
exercise its discretion to refuse an answer to that question. There are three strands to this issue:
(a) the abstract and speculative nature of the question, which raises serious doubts about whether
it is indeed a legal question amenable to objective judicial determination by a court of law in
isolation from any factual situation;
(b) the fact that there is no current activity or purpose of the United Nations which is waiting on
the giving of an opinion on this question or which needs guidance of this kind, so that it is only
in the most fictitious sense that an opinion could be argued to be a contribution to the work of
the Organization;
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(c) the fact that the community of States in their diplomatic activities in the nuclear field and by
their eloquent silences have shown that an opinion would fulfil no positive need but might,
indeed, have negative consequences for continued progress towards negotiated agreements.
Taken together, these considerations point to the conclusion that, in order to protect the
integrity of its judicial function, the Court should decline to answer the question put by the General
Assembly.
Third, there is an issue - or issues - regarding the substantive law. This is a vast subject but I
shall seek to sum up the position in six propositions:
1. There is no legal basis for rewriting the inherent right of self-defence, recognized in Article
51 of the Charter, so as not to apply to nuclear weapons. Whether a particular use of nuclear
weapons would be a lawful exercise of the right of self-defence can be determined only by reference
to the actual circumstances of that case.
2. It is a consistent and uniform contemporary practice that the prohibition of the use of
specific weapons is accomplished by express agreement amongst States; there is no treaty of that
kind relating to nuclear weapons other than those establishing particular nuclear-weapon-free zones.
3. The Non-Proliferation Treaty, the decisions and recommendations adopted at its Review
and Extension Conference earlier this year, the Positive and Negative Security Assurances and the
practice of the Security Council, all provide cogent evidence that the possession and - in appropriate
circumstances - the use of nuclear weapons is not regarded as in principle unlawful.
4. Those principles and rules of the laws of war which apply to the use of nuclear weapons do
not preclude the possibility that such weapons may lawfully be used.
5. It is against both the tenets of treaty interpretation and the underlying principle of good
faith to read an indirect prohibition of nuclear weapons into general treaties which deal neither with
weapons nor with warfare.
6. Against this background, it is impossible to construct any customary law prohibition on the
use of nuclear weapons and it is not for the Court to speculate on how customary law might develop
in the future.
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Mr. President, the United Kingdom is in no doubt as to the difficulties in which the present
requests have placed the Court. Recognition of those difficulties is widespread. It is apparent in
many of the written and oral submissions made to the Court and helps to explain the unprecedented
controversy surrounding the resolutions of the World Health Assembly and the General Assembly.
The present requests ask the Court to answer questions which are over-simplified and divorced from
any factual setting. They deal with a subject of the most fundamental importance, but it is one in
which the line between lawful and unlawful conduct cannot be separated from the facts of each
particular case.
In effect, the requests ask the Court to do something which is contrary to its judicial calling.
Despite what was suggested yesterday, it is not States but the Court itself which has always been
concerned to protect the integrity of its judicial function and which has expressed that concern on
many occasions. The Court should not feel - because I recognize, Mr. President, the pressures you
must be under - that if it declines that invitation, as we believe that it should do, it would be failing in
its duty, that to decline would be a ground for legitimate criticism. On the contrary, that decision
would be understood and on reflection respected by all supporters of the Court and of its important
work. It would not be in any way detrimental to the Court's ability to exercise its judicial function in
proper cases where, even though there are high political interests involved, there is nevertheless a
genuine legal dispute or legal question. That is the proper function of the Court. But this is not such
a case.
Mr. President, Members of the Court, you have been very patient and I am very grateful.
That concludes the oral submissions by the United Kingdom. Thank you.
The PRESIDENT: I thank very much Sir Nicholas Lyell, the Right Honourable AttorneyGeneral
of the United Kingdom, for his statement. That concludes, as you say, the oral arguments of
the United Kingdom. The hearings are suspended for a break of 15 minutes.
The Court adjourned from 11.45 a.m. to 12 noon.
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The PRESIDENT: The Court resumes its hearings and I give the floor to His Excellency,
Mr. Conrad Harper, the Legal Adviser of the United States Department of State.
Mr. HARPER: Mr. President, distinguished Members of the Court, may it please the Court:
it is a great honour and a rare privilege to appear before you today to present the views of the United
States of America regarding the requests for advisory opinions which have been submitted to the
Court by the World Health Organization and the United Nations General Assembly.
Before I begin, allow me to express my condolences to the family of Judge Aguilar and to the
Court. The United States mourns Judge Aguilar's untimely death and remembers with admiration his
contribution to this Court, to the law, and to the international community.
Underlying the requests for advisory opinions before the Court are understandable concerns
regarding the proliferation and potential use of nuclear weapons. Certainly the United States shares
these concerns. For many years my country has devoted close attention and considerable resources
to arms control and disarmament efforts, and we have taken the lead in many of the most successful
efforts of the last half-century. The commitment of the United States and the international
community as a whole to address these issues has been advanced recently in the very important
consensus decision to extend unconditionally the Treaty on the Non-Proliferation of Nuclear
Weapons.
At the same time, I note that many States rely for their security in large part on the nuclear
capabilities of nuclear-weapon States, which have entered into mutual defence arrangements
consistent with the collective self-defence principle recognized in Article 51 of the United Nations
Charter. In the view of the United States, nuclear deterrence has contributed substantially during the
past 50 years to the enhancement of strategic stability, the avoidance of global conflict and the
maintenance of international peace and security.
That said, the United States strongly believes that there is more work to be done both in
bilateral settings, and in multilateral settings such as the United Nations Conference on
Disarmament, further to reduce the risk of the outbreak of nuclear war. But such work is
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fundamentally the burden, and within the political discretion, of States and the political organs of the
international community. The requests before the Court are not an appropriate vehicle for
accomplishing such ends. No amount of impassioned argument by lawyers and no predictions of the
tragic human costs of possible conflicts can obscure the fact that international law simply does not
prohibit per se the use of nuclear weapons.
Let me go further: yesterday, counsel for Samoa, the Marshall Islands, and Solomon Islands
told the Court that these requests for advisory opinions do not implicate the possession of nuclear
weapons by the nuclear-weapon States. He went on to argue that the use or threat of use of such
weapons was prohibited by international law. We take the common-sense view, however, that the
legal possession of weapons means they can, under certain circumstances, be legally employed.
This case involves vital measures and vital matters affecting global security and strategic
stability. It is therefore crucial that the Court discharge its duty prudently and in a manner
compatible with its judicial functions and responsibilities. The Court should not attempt to
determine in advance whether hypothetical uses of nuclear weapons would violate international law.
In our view, any attempt to do so would be inconsistent with this Court's responsibilities, for it
would require the Court to engage in unrestrained speculation - to make assumptions of a distinctly
non-judicial character regarding the facts and circumstances of possible future events.
With the Court's permission, I shall now provide a summary of the views the United States
will present orally in these proceedings.
In our view, the Court lacks jurisdiction to grant the WHO request for an advisory opinion
because WHO is not empowered to request an opinion on the legal question presented. With respect
to the General Assembly's request, the United States is strongly of the belief that, while the Court
possesses authority to issue an advisory opinion, it would be inappropriate and unwise for the Court
to exercise that authority. The nature of the question presented by the General Assembly is so
hypothetical - so dependent upon facts not now ascertainable - that the Court could not, consistent
with its judicial function, reasonably provide an answer that would afford guidance to the General
Assembly.
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On the supposition that the Court might none the less elect to address the substance of the
question posed by the two requests, my colleagues, Michael Matheson and John McNeill, will detail
the views of the United States.
Mr. Matheson will begin by establishing what the United States believes should be the Court's
starting point in examining the merits: the fundamental principle of international law that
restrictions on States cannot be presumed, but must be established by conventional law specifically
accepted by them, or in customary law established by the conduct of the community of nations. He
will argue that there is no general prohibition on the use of nuclear weapons in either conventional or
customary law.
Mr. Matheson will also address the claims made by some States that human rights law and
certain international environmental instruments can be construed as prohibiting categorically the use
of nuclear weapons. Such claims try to enlist these important bodies of law to serve ends they
should not and cannot be asked to serve. None of the referenced human rights or environmental
instruments prohibits, either expressly or by implication, the use of nuclear weapons.
Thereafter, Mr. McNeill will consider the law of armed conflict and its application to the
question presented. While not embodying a general prohibition on the use of nuclear weapons, the
law of armed conflict regulates the use of such weapons in the same manner that it regulates the use
of conventional weapons in armed conflict. As Mr. McNeill will discuss, the legality of the use of
any weapon under the law of armed conflict depends upon the precise circumstances involved in
such use, except when an express prohibition bans such use altogether. Therefore, this Court should
not attempt to determine in advance whether hypothetical uses of nuclear weapons might violate the
law of armed conflict.
Finally, in my concluding remarks I shall argue that the absence of a general prohibition on
the use of nuclear weapons means it cannot be maintained that a threat to use such weapons is
prohibited per se.
With the Court's permission, let me now address why the Court should not exercise its
discretion to issue the opinion requested by the General Assembly. I should note at the outset that
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the United States concurs fully in the comprehensive presentation of the United Kingdom on this
point.
This case does not present the ordinary request for an advisory opinion. It involves a
fundamental question of international peace and security. It presents circumstances which the Court
previously has identified as inappropriate for treatment in an advisory opinion.
This Court has recognized time and again - particularly in the ILO Administrative Tribunal
case - that in the exercise of its advisory function, "it is bound to remain faithful to the requirements
of its judicial character" (I.C.J Reports 1956, p. 77 at p. 84). In the South West Africa case, the
Court touched on one such requirement vital to its judicial role. It said:
"[T]o enable a court to pronounce on legal questions, it must also be acquainted
with, take into account and, if necessary, make findings as to the relevant factual
issues." (I.C.J. Reports 1971, p. 16, at p. 27.)
Where the Court cannot establish the necessary facts to support a judicial conclusion, it has rightly
declined to issue an advisory opinion. Thus, the justifiable prudence of the Permanent Court of
International Justice in the Eastern Carelia case, where that Court concluded,
"It appears now to be very doubtful whether there would be available to the
Court materials sufficient to enable it to arrive at any judicial conclusion upon the
question of fact [presented]." (P.C.I.J., Series B, No. 5, p. 28.)
Other States have correctly noted the Court's expressed willingness on occasion to address
abstract legal questions in advisory proceedings. What most characterizes - and distinguishes - the
requests for advisory opinions now before the Court is not that they are divorced from any particular
set of circumstances in dispute and hence are abstract and general, but rather that they require the
Court to go so far as to make a series of hypothetical, speculative factual assumptions in order to
reach a purportedly legal conclusion. Thus, the Court is prevented from responding to the requests
in a manner consistent with its judicial character.
The Court recognized a score of years ago in the Western Sahara case
that its role in advisory cases is
"to give an opinion based on law, once it has come to the conclusion that the questions
put to it are relevant and have a practical and contemporary effect and, consequently,
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are not devoid of object or purpose" (Western Sahara, I.C.J. Reports 1975, p. 37).
An opinion rendered by the Court, which is based on, and qualified by a series of essentially random
factual assumptions about a particular episode of armed conflict - picked as it were out of the air -
would not have such practical effect. To render an advisory opinion under such circumstances
threatens the authority and effectiveness of the Court.
Moreover, the consequences of the Court's electing to issue an opinion on the merits in this
case are likely to be quite unfortunate. The issuance of such an opinion risks undermining the
concrete efforts of States and United Nations political bodies to address the concern reflected in the
General Assembly's request to the Court. To date, member States have set aside their differences
regarding the lawfulness of the use of nuclear weapons in favour of concentrating on more
constructive measures to regulate the possession and use of nuclear weapons such as the
Non-Proliferation Treaty and the bilateral Treaties on the Reduction and Limitation of Strategic
Offensive Arms.
An hypothetical pronouncement by the Court regarding the legality of the use of nuclear
weapons could very well obstruct and sidetrack such efforts by turning the debate away from
practical accommodation and the search for strategic consensus, and into the domain of arid legal
debate. Moreover, depending on its reasoning, if the Court reached such a decision it might well
adversely affect the development of legal norms in other areas.
For instance, if the Court were to rely on norms developed in the fields of human rights and
environmental law - which, as my colleagues will demonstrate, were never intended to address the
legality of the use of nuclear weapons or any other aspect of armed conflict - the way in which States
view these fields and contribute to their future development will be forever altered. States would be
forced to devote considerable effort to define the precise application to military activities of legal
norms that were not intended to regulate armed conflict. This would burden, complicate, and
obstruct negotiations aimed at improving the protection of human rights and the environment.
To summarize, and to return more directly to the question of the Court's discretion to consider
the requests before the Court: There are, as the Court in the Northern Cameroons case noted,
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"inherent limitations on the exercise of the judicial function which the Court, as a court of justice,
can never ignore" (I.C.J. Reports 1963, p. 29). The United States believes that in light of the
entirely hypothetical nature of the question posed and the factual vacuum in which the Court is
operating, these limitations should lead the Court to protect and preserve its judicial character by
declining the exercise of its discretion to render an advisory opinion in this case.
Thank you, Mr. President and Members of the Court. With your permission, my colleague,
Mr. Matheson, will now address the Court.
The PRESIDENT: I thank you very much Your Excellency for your statement and I give the
floor to His Excellency Mr. Michael Matheson, Principal Deputy Legal Adviser of the United States
Department of State.
Mr. MATHESON: Mr. President, distinguished Members of the Court. It is an honour to
appear before you today on behalf of the United States. Mr. Harper has explained our position that
this Court lacks jurisdiction to respond to the request of WHO for an advisory opinion, and should
not exercise its discretion to issue the opinion requested by the General Assembly. If, however, the
Court chooses to address the substance of the question posed, it should, in our view, confirm that
neither conventional nor customary international law contains a general prohibition on the use of
nuclear weapons.
It is a fundamental principle of international law that restrictions on States - particularly those
affecting the conduct of armed conflict - cannot be presumed; they must, rather, be found in
conventional law specifically accepted by States, or in customary law generally accepted as such by
the community of nations. The Court made this vital point in the case of Nicaragua v. United States
(I.C.J. Reports 1986, p. 135), recalling that
"in international law there are no rules, other than such rules as may be accepted by the
State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign
State can be limited".
An even higher standard applies in establishing the existence of peremptory norms of international
law, which must be accepted and recognized by the international community as norms from which no
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derogation is permitted.
In 1990, the Secretary-General of the United Nations issued a report concerning nuclear
weapons in which he concluded - correctly, in our judgment - that "no uniform view has emerged as
yet on the legal aspects of the possession of nuclear weapons and their use as a means of warfare"
(Report of the United Nations Secretary-General on Nuclear Weapons, UN doc. A/45/373 (1990)).
This is still the case today. WHO itself, in its request for an advisory opinion, conceded that
"marked differences of opinion have been expressed by Member States about the lawfulness of the
use of nuclear weapons".
It is clear that no general prohibition on the use of nuclear weapons can be found in current
conventional law. On the contrary, as we have shown in our submissions, international agreements
governing the possession, testing and use of nuclear weapons seem clearly to proceed on the
assumption that there is no such general prohibition. When the international community has decided
to accept a prohibition on the use of a specific category of weapons, it has done so directly and
expressly in the form of an international agreement. For example, international agreements
expressly prohibit the use of chemical and biological weapons, as well as weapons with nondetectable
fragments. Given the overriding significance of nuclear weapons, any general prohibition
on their use would surely have found expression in such an international agreement, which would
undoubtedly have included provisions for verification and other essential elements. The fact that
such a prohibition has not been so expressed indicates that, in fact, it does not exist.
Those agreements which do restrict the use of nuclear weapons only do so in specific
geographical areas, which would make no sense if the use of such weapons were already prohibited
everywhere. Those agreements which restrict the deployment or limit the number of nuclear delivery
vehicles clearly proceed on the assumption that nuclear weapons are not generally prohibited.
Certain of these agreements recognize the need for deterrent nuclear forces, and even prohibit or
restrict the creation of defences against them or offensive nuclear forces that could destroy them.
One important treaty that clearly proceeds on this assumption is the Nuclear Non-Proliferation
Treaty, which was recently affirmed by the parties without change. During the first day of these
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proceedings, the distinguished representative of Australia argued that the Treaty is evidence of a
general prohibition on the acquisition, testing, possession and use of nuclear weapons by all States.
With respect, this turns the Treaty squarely on its head. An international agreement can hardly be
the basis for a prohibition that goes well beyond its terms and is, in fact, inconsistent with them.
Far from prohibiting the possession and use of nuclear weapons by all States, the NonProliferation
Treaty effectively confirms that the five acknowledged nuclear-weapon States are in
lawful possession of such weapons, and calls for negotiations on effective measures to end the
nuclear arms race and bring about nuclear disarmament at a future date. This, it seems to us, is
clear acknowledgment by the international community that nuclear weapons are not currently
prohibited by law, but rather are to be dealt with in future political negotiations among the States
parties. This conclusion is further confirmed by Security Council resolution 984, which expressed
approval for security assurances given in the context of the Non-Proliferation Treaty that expressly
preserve the right to use nuclear weapons in the exercise of self-defence in specified circumstances.
It is also our view that there is no general prohibition in customary international law on the
use of nuclear weapons. As the Court has clearly established, customary international law is created
by a general and consistent practice of States, followed out of a sense of legal obligation. The Court
has noted in the North Sea Continental Shelf case that the incorporation of a norm into customary
international law requires "extensive and virtually uniform" State practice. No evidence of such
practice exists with respect to nuclear weapons, and it cannot be implied from the decision of States
possessing such weapons to abstain from using them for humanitarian, political, or military reasons,
rather than from a belief, that such abstention was required by law.
In fact, the conduct and publicly-stated views of many States reflect that they do not recognize
a general legal obligation to refrain from using nuclear weapons. For example, each of the
Permanent Members of the Security Council has made an immense commitment of human and
material resources to acquire and maintain stocks of nuclear weapons and their delivery systems, and
many other States have decided to rely for their security on these nuclear capabilities. If these
weapons could not lawfully be used in individual or collective self-defence under any circumstances,
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there would be no credible threat of such use in response to aggression and deterrent policies would
be futile and meaningless. In this sense, it is impossible to separate the policy of deterrence from the
legality of the use of the means of deterrence. Accordingly, any affirmation of a general prohibition
on the use of nuclear weapons would be directly contrary to one of the fundamental premises of the
national security policy of each of these many States.
The North Sea Continental Shelf case further affirms that States whose interests are
"specially affected" by application of a putative norm must also subscribe to its legitimacy for it to
attain customary status (I.C.J. Reports 1969, p. 3 at p. 43). Consequently, customary law
prohibiting the use of nuclear weapons could not be created over the objection of States possessing
such weapons or those relying upon them for their security, since these States would clearly be
"specially affected" by such a prohibition. In our submissions to the Court, we have documented the
oft-expressed views of these States that no such prohibition exists.
Neither, in our view, should the Court give undue weight to the United Nations General
Assembly resolutions that have declared the use of nuclear weapons to be contrary to the United
Nations Charter and international law generally. These resolutions, which attracted a significant
number of negative votes and abstentions in the General Assembly, do not and cannot of their own
force create legal obligations.
As a matter of law, the General Assembly's resolutions could only be declarative of principles
of customary international law to the extent that such principles have, in fact, been recognized
already by the international community. The United States and many other States have
demonstrated in their submissions to this Court that a prohibition on the use of nuclear weapons has
not been embraced as consistent, widely accepted State practice; to the contrary, numerous States
have rejected such a proposition, reserving in particular the right to use nuclear weapons consistent
with the right of self-defence.
During his oral presentation, the distinguished representative of Australia acknowledged that:
"the practice of nuclear-weapon States during the decades following the end of the
Second World War, in acquiring, testing and deploying large numbers of nuclear
weapons, and the acquiescence in this by their allies and other nuclear-weapon States,
makes it difficult to argue that there was any rule of per se illegality ..."
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He went on the argue, however, that:
"the question of whether the use or threat of nuclear weapons was illegal in the 1940s,
or even in the 1980s, is not of particular significance for present purposes".
Rather, he maintained, more recent developments, particularly growth in the number and
sophistication of nuclear weapons, the development of such weapons by other States, and the
increasing sensitivity of the international community to the danger of nuclear war, have created such
a prohibition.
With respect, we do not understand how this could be so. The build-up of nuclear arsenals or
the acquisition of nuclear weapons by additional States could hardly be evidence of the general
acceptance of a customary norm prohibiting such weapons. In fact, there has in recent years been a
very great reduction in the size of nuclear arsenals as a result of agreements among the nuclear
powers. In our view, this too does not constitute evidence of the creation of a customary law norm,
but rather illustrates clearly that this serious problem can only be solved by negotiations among
States, rather than by the pronouncement of new customary law.
In support of their arguments for the existence of a general prohibition on the use of nuclear
weapons, some States have also attempted to invoke a number of international instruments which do
not address arms control and disarmament issues and do not form part of the law of war. These
agreements were not intended to deal with the matters of global peace and security that are before the
Court. Rather, they address such diverse subjects as the protection of the environment and human
rights. In our view, it is both implausible and illogical to conclude that in becoming party to these
agreements, States adopted by implication or inadvertence, a prohibition on the use of nuclear
weapons that these same States have pointedly declined to establish in agreements dealing directly
with arms control and armed conflict.
In the field of environmental protection, it is important to distinguish between those provisions
that were negotiated in the context of the regulation of the use of weapons in armed conflict and
those which were not. In the first category are the Environmental Modification Convention and
certain provisions of Additional Protocol I to the 1949 Geneva Conventions. My colleague, Mr.
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McNeill, will address the relevance of these provisions to the use of nuclear weapons.
In the second category - environmental provisions that were not negotiated in the context of
the use of weapons in armed conflict - are such agreements as the Vienna Convention for the
Protection of the Ozone Layer, the Framework Convention on Climate Change, and the Convention
on Biological Diversity. It has been argued that these agreements collectively embody a "principle of
environmental security" which supposedly forms part of the law of war and prohibits the use of
nuclear weapons.
The United States has played a major role in helping to establish and promote recognition of
international environmental norms, and was intimately involved in the negotiation of these same
treaties. But the fact is that none of these treaties limits the use of nuclear weapons or any other
means of armed conflict, either expressly or by implication. Nor, as we have shown in our
submissions, is there any textual basis for reading these treaties as reflecting a broader principle of
environmental security in wartime. Indeed, none of these treaties was negotiated with the intention
that it would limit the use of nuclear weapons. No State has presented credible evidence from the
relevant negotiating records to suggest otherwise. In the absence of such support in the text or
negotiating record of these treaties, it would be inappropriate and contrary to normal treaty
principles for the Court to interpret these instruments in a manner contrary to the good-faith
intentions of the parties.
In fact, even if these treaties were meant to apply in armed conflict, we have shown in our
submissions that the language of none of them prohibits or limits the actions of States in any manner
that would reasonably apply to the use of weapons. For example, the Convention for the Protection
of the Ozone Layer simply directs parties to take "appropriate measures" to protect the ozone layer.
The Convention on Climate Change simply calls on parties to "minimize" the causes of adverse
climate change. The Biodiversity Convention contains similar general admonitions. In short, there is
nothing in these treaties that can fairly be seen as prohibiting the use of nuclear weapons, even if
they were applicable.
Some States have also contended that a number of international environmental declarations
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provide a basis for a nuclear weapons prohibition. These declarations, for example the 1972
Stockholm Declaration on the Human Environment, are not legally binding. Even if they were, a
prohibition on the use of a category of weapons could not legitimately be inferred from general
statements in such declarations that do not articulate prohibitions of any sort on armed conflict or on
the use of such weapons. Nor, as we have shown in our submissions, was there any intent to do so.
Similarly, it is important in the field of humanitarian protection to distinguish between treaties
which were negotiated in the context of the regulation of the use of weapons in armed conflict and
those which were not. In the first category are the 1949 Geneva Conventions and the 1977
Additional Protocols. Again Mr. McNeill will address the relevance of these provisions to the use of
nuclear weapons.
In the second category are human rights instruments that were not negotiated in the context of
the regulation of the use of weapons in armed conflict. It has been suggested that the use of nuclear
weapons would violate the right to life that is recognized in international instruments such as the
Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights,
and the European Convention on Human Rights. These instruments do not, by their terms, prohibit
the use of nuclear weapons, or any other weapons for that matter. Nor, more broadly, do they
prohibit the taking of life for otherwise lawful purposes, either directly or by implication. One such
lawful purpose is, of course, the right of self-defence, which has long been understood to encompass
the right to use lethal force.
These human rights instruments cannot and should not be construed as undermining
fundamental provisions of the law of war. In fact, the European Convention on Human Rights
specifically recognizes that persons may lose their lives through lawful acts of war. As discussed in
our submission, a similar understanding guided the negotiation of the International Covenant on Civil
and Political Rights. Were this not the case - were the Court to give the right to life unwarrantedly
broad effect - international humanitarian law would, as a consequence, be rendered meaningless and
irrelevant, as the right to life would then be construed to prohibit the loss of life in all forms of armed
conflict, without reference to self-defence, necessity, proportionality, or any of the other relevant
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legal standards.
In addition, an opinion by the Court that the environmental and human rights instruments in
question somehow prohibit or restrict the use of nuclear weapons could seriously impair international
co-operation and the development of legal norms in these fields in the future. Efforts to negotiate
new instruments would be complicated and potentially paralysed as States would focus not on the
substance of the real environmental and human rights issues under negotiation, but rather on the
possible implications for nuclear weapons or other forms of armed conflict, whether intended or not.
Yesterday, for example, it was suggested that only language expressly excluding nuclear weapons
could prevent the application of such treaties to these weapons; but in fact it is probable that none of
these treaties could have been adopted if there were such a requirement to deal expressly in their
texts with the volatile question of nuclear weapons.
In summary, those States which argue that international law already embodies a prohibition on
the use of nuclear weapons do so in the face of the clear reliance on such weapons as an essential
element of national defence by many States, including but not at all limited to the five Permanent
Members of the Security Council. It is inconceivable, under these circumstances, that a prohibition
could have emerged in customary or conventional law on such weapons. In fact, as we have argued,
this has not happened. If this Court were to hold otherwise, it would, in our view, amount to the
imposition of a new and fundamental restriction in the area of national defence on the many States
that have not accepted such a restriction. This, we suggest, is a step the Court should not take.
Mr. President, this concludes my presentation. With the permission of the Court, my
colleague, Mr. McNeill, will now address the Court concerning the rules of international
humanitarian law of armed conflict. Thank you, Sir.
The PRESIDENT: I thank you very much, Your Excellency, for your statement, and I give
the floor to Mr. John McNeill, Senior Deputy General Counsel of the United States Department of
Defence.
Mr. McNEILL: Mr. President, distinguished Members of the Court. It is indeed an honour to
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appear before you today.
In their submissions to the Court a number of States have suggested that the law of armed
conflict (sometimes referred to as the law of war or international humanitarian law) precludes the use
of nuclear weapons. The United States has long shared the view that the law of armed conflict
governs the use of nuclear weapons - just as it governs the use of conventional weapons. But it is
contrary to the very nature and structure of the law of armed conflict to claim that it prohibits per se
the use of nuclear weapons. Under the law of armed conflict, in the absence of an express
prohibition, the legality of the use of any weapon, including nuclear weapons, is fundamentally
dependent on the facts and circumstances of the use in question.
DETERRENCE/STRATEGIC DOCTRINE The argument that international law prohibits, in
all cases, the use of nuclear weapons appears to be premised on the incorrect assumption that every
use of every type of nuclear weapon will necessarily share certain characteristics which contravene
the law of armed conflict. Specifically, it appears to be assumed that any use of nuclear weapons
would inevitably escalate into a massive strategic nuclear exchange, resulting automatically in the
deliberate destruction of the population centres of opposing sides.
This assumption is entirely unwarranted; it is based on myth, not fact. As explained in many
of my country's statements on the subject over the past three decades, US deterrence strategy is
designed to provide a range of options in response to armed aggression that will control escalation
and terminate armed conflict as soon as possible.
Before proceeding further with our discussion of the law of armed conflict, I would like to
address briefly the argument made to the Court during these proceedings that certain passages in a
US document, the US Doctrine for Joint Nuclear Operations (Chairman of the Joint Chiefs of Staff,
Joint Publication 3-12, 1993), suggest that deterrence is not a purely defensive doctrine. It is
unfortunate that these important passages have been misconstrued and mischaracterized. The fact is
that the document in question unambiguously characterizes deterrence as a "defence posture," and
identifies the fundamental purpose of US nuclear forces as that of deterring the use of weapons of
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mass destruction, particularly nuclear weapons (para. 1.a). The doctrine for Joint Nuclear
Operations is by no means the only statement of US policy on nuclear weapons. Indeed, there are
many presidential and cabinet level documents that speak even more authoritatively, given our
tradition of civilian control of the military. A perusal of these presidential and cabinet level
documents makes clear that US policy reflects a willingness to use nuclear weapons only in selfdefence:
the US stands ready to impose a sufficiently high price on States engaging in acts of
aggression so as to deter such acts from occurring in the first instance. Mr. President, Members of
the Court: we too have lived with the spectre of nuclear war for generations. Ours is in every sense
a defensive strategy; and very frankly we believe the policy of nuclear deterrence has saved many
millions of lives from the scourge of war during the past 50 years. In this special sense, nuclear
weapons have been "used", defensively, every day for over half a century - to preserve the peace.
With the Court's indulgence, I will now return to the law of armed conflict. It is the view of
the United States that it is not possible in the abstract, without knowledge of the precise
circumstances of particular uses of nuclear weapons, to determine that such uses would be violative
of that body of law. Nuclear weapons, as is true of conventional weapons, can be used in a variety
of ways: they can be deployed to achieve a wide range of military objectives of varying degrees of
significance; they can be targeted in ways that either increase or decrease resulting incidental
civilian injury or collateral damage; and their use may be lawful or not depending upon whether and
to what extent such use was prompted by another belligerent's conduct and the nature of such
conduct. The Secretary-General's 1990 Report on nuclear weapons, referred to previously by my
colleague, Mr. Matheson, likewise noted that the effects of nuclear weapons depend, inter alia, on
the explosive yield and height of the burst of individual weapons, on the character of their targets, as
well as on climatic and weather conditions (Report of the United Nations Secretary-General on
Nuclear Weapons, p. 75, para. 290.) These differences, distinctions and variables cannot be
ignored; they are critical to the appropriate legal analysis.
A number of different principles of the law of armed conflict have been invoked more
specifically and particularly in support of the erroneous argument that the use of nuclear weapons is
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categorically prohibited. With the Court's permission, I would like to review briefly these principles
and demonstrate that they cannot be construed to prohibit generally the use of nuclear weapons.
INDISCRIMINATE EFFECTS/COLLATERAL DAMAGE
It has been said, for example, that the use of nuclear weapons would violate the law of armed
conflict because it would amount to an impermissible attack on civilian populations. While it is of
course true that civilians, as such, may not be made the object of attack under the law of armed
conflict, an attack upon a legitimate military objective - irrespective of the type of weapon used - that
occasions incidental civilian casualties or collateral damage, is clearly not prohibited by the
proscription against the deliberate targeting of civilian populations.
It has also been doubted that nuclear weapons can, in any circumstance, be targeted at specific
military objectives. As a consequence, it has been argued that nuclear weapons are inherently
indiscriminate in their effect, and that their use must therefore be prohibited by the law of armed
conflict. This argument is simply contrary to fact. Modern nuclear weapon delivery systems are,
indeed, capable of precisely engaging discrete military objectives.
It has also been argued that the use of nuclear weapons is unlawful because in all cases it
would result in incidental injury to civilians or collateral destruction that is excessive in relation to
the military advantage to be gained from such use. This assertion, too, is entirely speculative, and
unwarrantedly so. Whether the use of nuclear weapons in any given instance would result in the
infliction of disproportionate collateral destruction or incidental injury to civilians cannot be judged
in the abstract. Such a judgment depends entirely on the circumstances of the contemplated use,
including the military necessity of destroying a particular objective.
The World Health Organization and some States have submitted to the Court materials
discussing the destructive effects of nuclear weapons, including the effect of their use on human
health and the environment. It is true that the use of nuclear weapons would have an adverse
collateral effect on human health and both the natural and physical environment. But so too can the
use of conventional weapons. Obviously, World Wars I and II, as well as the 1990-1991 conflict
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resulting from Iraq's invasion of Kuwait, dramatically demonstrated that conventional war can inflict
terrible collateral damage to the environment. The fact is that armed conflict of any kind can cause
widespread, sustained destruction; the Court need not examine scientific evidence to take judicial
notice of this evident truth.
Some States have adverted to studies of the effects of nuclear weapons in an attempt to
demonstrate that every use of every type of nuclear weapon would necessarily violate principles of
proportionality and discriminate use. But the material that has been presented for the Court's
consideration cannot support such a sweeping proposition. Any given study rests on static
assumptions: assumptions regarding the yield of a weapon, the technology that occasions how much
radiation the weapon may release, where, in relation to the earth's surface it will be detonated, and
the military objective at which it would be targeted.
The assumptions made by the World Health Organization in the materials submitted to the
Court are in fact highly selective (Effects of Nuclear War on Health and Health Service, 2nd ed.,
1987). The four scenarios on which the World Health Organization Report focuses address civilian
casualties expected to result from nuclear attacks involving significant numbers of large urban area
targets or a substantial number of military targets. But no reference is made in the report to the
effects to be expected from other plausible scenarios, such as a small number of accurate attacks by
low-yield weapons against an equally small number of military targets in non-urban areas. The
plausibility of such scenarios follows from a fact noted in the WHO Report by Professor Rotblat:
namely, that "remarkable improvements" in the performance of nuclear weapons in recent years have
resulted in their "much greater accuracy" (J. Rotblat, p. 95). Clearly, such possible scenarios would
not necessarily raise issues of proportionality or discrimination.
To summarize, scientific evidence could only justify a total prohibition on the use of nuclear
weapons if such evidence covers the full range of variables and circumstances that might be involved
in such uses. The material presented does not even approach such a level of completeness, and is
overly selective in its assumptions. Thus, it does not support the conclusion that the use of every
type of nuclear weapon would violate the principles of proportionality and discriminate use in all
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cases.
UNNECESSARY SUFFERING/SUPERFLUOUS INJURY
Returning to the claims that have been made regarding specific principles of the law of armed
conflict, it has also been argued that nuclear weapons categorically cause unnecessary suffering or
superfluous injury and therefore violate the law of armed conflict. This line of argument cannot be
sustained. The unnecessary suffering principle prohibits the use of weapons designed specifically to
increase the suffering of persons attacked beyond that necessary to accomplish a particular military
objective. As a general matter, however, it does not prohibit the use of weapons that cause great
injury and pain, as such. Under this principle, whether use of a particular weapon causes
unnecessary suffering depends, therefore, on whether its use and resultant effects are required to
accomplish a legitimate military objective, a question which again cannot be answered in the
abstract.
ENVIRONMENTAL CONCERNS
Neither can it be said that the use of nuclear weapons categorically runs afoul of arms control
and law of armed conflict principles that are designed to protect the environment. Article I of the
1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques (the EnMod Convention) prohibits the military use of "environmental
modification techniques" that have the effect of causing widespread, long-lasting or severe damage to
a State party. More particularly, the Convention prohibits the deliberate manipulation of the
environment - for example, causing an earthquake or a tidal wave - as a means of inflicting damage.
Means of warfare - whether nuclear or conventional - that damage the environment are not
prohibited by the EnMod Convention unless they involve the deliberate manipulation of
environmental forces. Conceivably, nuclear weapons could be deliberately utilized to manipulate the
environment, as could conventional weapons; but it certainly cannot be maintained that every use of
nuclear weapons would be so designed and as a result prohibited by the Environmental Modification
Convention.
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There is an additional point to be made with respect to the environment. Reference was made
yesterday by counsel for Solomon Islands to United Nations Security Council resolution 687 (1991),
as an example of a customary rule of international law assigning liability for damage to the
environment during armed conflict. This is incorrect. Resolution 687 recognized environmental and
other forms of injury caused by Iraq to be compensable simply because Iraq was an aggressor. In
this regard, resolution 687 only stands for the proposition that an aggressor is liable, and does not
confirm or indicate the existence of any generic rule relating to environmental damage during armed
conflict. In this area, as in others, however, the requirements of military necessity and
proportionality always apply.
ADDITIONAL PROTOCOL I - APPLICABILITY
Submissions to the Court have also made copious reference to standards concerning wartime
damage to the environment which are set forth in another 1977 agreement, the Protocol Additional to
the 1949 Geneva Conventions, and relating to the Protection of Victims of International Armed
Conflicts, known as Additional Protocol I. Articles 35 and 55 of this Protocol prohibit methods and
means of warfare that are intended, or may be expected to cause, widespread, long-term and severe
damage to the natural environment. As a threshold matter, it is important to note that the new rules
contained in Additional Protocol I only apply to those States that ratify it; the United States is not a
party. Moreover, the provisions of this Protocol, relating to the protection of the environment and
reprisals, which I shall discuss next, have not been incorporated into customary law.
In any event, and most importantly, it is clear from the negotiating record that the new rules of
Additional Protocol I were not intended to apply to nuclear weapons. This point was made evident
at the very start of the negotiations in a statement submitted by the International Committee of the
Red Cross accompanying the text of the draft Additional Protocol. In this statement, quoted in the
Memorial of the United States, the ICRC asserted forthrightly and without qualification that the
draft Additional Protocol was not intended to address "problems relating to atomic, bacteriological
and chemical warfare" which are the subjects of international agreements or negotiations by
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governments.
Explicit statements to the very same effect, affirming the ICRC's view, were made during the
negotiation of Additional Protocol I by representatives of the United States, France, the United
Kingdom, and the former Soviet Union. This view was also reflected in a decision of the Conference
to reject a proposal that an ad hoc committee, asked to study the effects of conventional weapons,
also consider the effects of nuclear weapons. Commenting on the proposal, the committee noted "the
limitation of the work of this Conference to conventional weapons", noting in particular the
important function of nuclear weapons in deterring the outbreak of armed conflict.
The United States is not aware of any convincing evidence to the contrary in the negotiation
record. A few statements of negotiating objectives by several delegations to the effect that nuclear
weapons should be prohibited by the Protocol are not of probative value. These statements were
made at the outset of what was an extended conference, and were not repeated after it had become
clear that no such prohibition had, in fact, been accepted as an objective. As a result, these few,
isolated, introductory statements prove nothing.
By contrast, the conduct of States in signing and ratifying the Protocol provides further
evidence of its non-applicability to nuclear weapons. Formal statements articulating understandings
that the rules adopted in the Protocol would not apply to nuclear weapons were made by a number of
States upon signature or ratification. These include Belgium, Canada, Germany, Italy, the
Netherlands, and Spain. To our knowledge, no State objected to, or otherwise commented upon
these statements.
In sum, both the negotiating record, and the record of signature and ratification of Additional
Protocol I, reflect a manifest understanding that the agreement's new rules do not apply to the use of
nuclear weapons. Under the Vienna Convention on the Law of Treaties it is our view that this record
should be taken as reflecting the correct interpretation of the Protocol on this point. And as we have
indicated in our submission to the Court, this view is shared by highly qualified publicists such as
Bothe, Partsch and Solf (New Rules for Victims of Armed Conflict, 1982). Consequently, the new
rules governing protection of the environment during wartime that were provided for in Additional
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Protocol I are not applicable to nuclear weapons.
REPRISAL
For the same reason, the new rules on reprisals embodied in Additional Protocol I are not
relevant to the question before the Court. Some Member States have argued that the use of nuclear
weapons would be inconsistent with these rules, but as just noted, the new rules added by Additional
Protocol I - including those on reprisal - cannot be construed as applying to nuclear weapons. It has
been alternatively suggested that the principles of the law of reprisal found in the law of armed
conflict similarly prohibit the use of nuclear weapons. Even if it were to be concluded - as we
clearly have not - that the use of nuclear weapons would necessarily be unlawful, the customary law
of reprisal permits a belligerent to respond to another party's violation of the law of armed conflict
by itself resorting to what otherwise would be unlawful conduct. Whether a use of force would or
would not be lawful, and whether or not it would be justified as a reprisal, depends, obviously and
necessarily, upon the circumstances surrounding the act in question. The law of reprisal does not
and cannot, therefore, be construed as prohibiting categorically the use of nuclear weapons; indeed,
if it were to be so construed, the negative implications for strategic deterrence would be obvious and
dire.
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NEUTRALITY
Along rather different lines, it has been suggested that rules of neutrality which form part of
the law of armed conflict also prohibit the use of nuclear weapons. This argument is based on the
faulty assumption that the use of nuclear weapons would necessarily and unlawfully damage the
territory of a neutral State. As an initial matter, we note that the principle of neutrality has never
been understood to guarantee neutral States absolute immunity from the effects of armed conflict.
The purpose of this principle was to preclude military invasion or bombardment of neutral territory,
and otherwise to define complementary rights and obligations of neutrals and belligerents. However,
even assuming arguendo that a belligerent's liability to a neutral could somehow be established in a
particular case, the argument that unlawful damage would necessarily occur to neutral States
whenever nuclear weapons are used cannot be maintained. Whether or not the principles of
neutrality might be violated once again clearly depends on the precise circumstances of a particular
use of nuclear weapons.
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GENOCIDE
Some States in their submissions to the Court have gone so far as to suggest that any use of
nuclear weapons which results in the death of a large number of civilians would constitute genocide.
It has been claimed that the intent to engage in genocidal acts could be inferred from the failure of
the party using nuclear weapons to appreciate fully the destructive consequences of such use. In
light of the atrocities and malevolence that the history of this century associates with genocide, the
United States regrets that assertions of genocidal conduct have been so imprecisely made in this
context. In any event, the claim here is evidently based on a misunderstanding of the concept of
genocidal intent. Under international law, the crime of genocide is characterized by an intent to
"destroy, in whole or in part, a national, ethnical, racial, or religious group, as such" (Convention on
the Prevention and Punishment of the Crime of Genocide, 1948 , Article 2). Thus, even a deliberate
and illegal killing of civilians - deplorable as that would be - would not necessarily constitute
genocide. It is, of course, the case that nuclear weapons could be an instrument of genocide in the
hands of a party harbouring the requisite animus, just as other weapons could be put to such
unconscionable uses; but the fact of this potential would not, without more, render the use of
nuclear weapons violative of the law against genocide.
Finally, the United States notes that its written statements to the Court address a number of
other law of armed conflict claims regarding the use of nuclear weapons - for example, incorrect
claims that the use of nuclear weapons would violate international conventions prohibiting the use of
poison gases and poison weapons. As we have explained in some detail in our submissions, nuclear
weapons are not, and have never been treated as, poison weapons for purposes of the 1907 fourth
Hague Convention or gas weapons for purposes of the 1925 Geneva Protocol. The 1954 definition
of "atomic weapons" that was referred to yesterday by counsel for Solomon Islands does not imply
anything to the contrary. That definition includes both nuclear weapons and the separate category of
what are known today as radiological weapons, which are designed to cause poisoning, for example,
through the deliberate spreading of radiological substances over an area. These and other claims
addressed in our submissions are no more persuasive than those I have discussed here and are
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addressed in detail in our Memorial to the Court.
THE MARTENS CLAUSE
In view of the evidence that conventional law does not express, or even imply, a general
prohibition on the use of nuclear weapons, some States have suggested, apparently alternatively, that
the Martens Clause embodies such a prohibition. The Martens Clause, which has found expression
in the 1907 fourth Hague Convention and the 1949 Geneva Conventions, among other instruments,
cannot be so construed. The clause states that in cases not covered by the express terms of the cited
conventions and regulations,
"the inhabitants and the belligerents remain under the protection and the rule of the
principles of the law of nations, as they result from the usages established among
civilized peoples, from the laws of humanity, and the dictates of the public conscience"
(Preamble, 1907 Hague IV).
The Martens Clause clarifies that the absence of a specific treaty provision prohibiting the use
of nuclear weapons does not, standing alone, compel the conclusion that such use is or is not lawful.
At the same time, however, the clause does not independently establish the illegality of nuclear
weapons, nor does it transform public opinion into rules of customary international law. Rather, it
simply makes clear the important protective role of the law of nations and clarifies that customary
international law may independently govern cases not explicitly addressed by the Conventions. This
is what gives content and meaning to the Martens Clause. Therefore, when as here, customary
international law does not categorically prohibit the use of nuclear weapons, the Martens Clause
does not independently give rise to such a prohibition.
Thank you, Mr. President. With your permission, Mr. Harper will now conclude the
presentation of the United States. It has been a privilege for me to address you and I am grateful for
your generous attention to my remarks.
The PRESIDENT: Thank you very much, Mr. McNeill, for your statement. I now give the
floor to His Excellency Mr. Harper, for his final statement.
Mr. HARPER: Mr. President, Members of the Court. The presentation of the United States
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regarding the merits of the questions presented has, to this point, been limited to the legality of the
use of nuclear weapons and has not addressed the legality of threats to use such weapons. The most
important explicit textual reference to the threat of force in an international instrument can be found
in the famous fourth paragraph of Article 2 of the United Nations Charter, which directs Members to
refrain from the threat of force "against the territorial integrity or political independence of any State,
or in any other manner inconsistent with the purposes of the United Nations".
It is unlawful for a State to threaten resort to force where no justification for the actual use of
force exists. However, where the use of force would be lawful - where it would be consistent, for
example, with the right of self-defence - it follows that a threat to use force under the same
circumstances would also be lawful. Thus, as a matter of both logic and law, if there is no general
prohibition on the use of nuclear weapons, as my colleagues and I have argued, then neither can the
threat of using such weapons be prohibited per se. With respect to a threat to use nuclear weapons
in a particular case, such a threat may or may not be lawful - just as a threat to use conventional
weapons may or may not be lawful - depending on the circumstances in question. As we have
emphasized throughout our presentation, the Court could not hypothetically conceive of such
circumstances ex ante, without engaging in unfounded and inappropriate speculation.
Allow me to conclude the presentation of the United States with a few brief points. To be
sure, principles of humanity circumscribe the conduct of armed conflict. But those principles only
assume the force of customary international law when they satisfy criteria this Court has recognized
as governing the establishment of legal norms. In this case, customary international law does not
prohibit categorically the use of nuclear weapons. The record before the Court does not reflect
"extensive and virtually uniform" State recognition of a general legal prohibition against the use of
nuclear weapons. General Assembly resolutions proclaiming illegality are no substitute for
ascertaining custom.
Conventional law, as we have demonstrated, is no more probative of a per se prohibition. It is
true that the Non-Proliferation Treaty affirms the commitment of nuclear-weapon States toward
reducing the number of nuclear weapons and toward achieving the goal of disarmament.
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The United States is committed to this process. We and the Russian Federation are pursuing a
dynamic programme of substantial and wholly unprecedented reductions in numbers and types of
nuclear weapons. In just the last few years, the United States and Russia have entered into a dozen
new agreements that reflect our record of mutual and responsible stewardship of nuclear weapons.
Further, all nuclear-weapon States are pledged to conclude a comprehensive test ban treaty in the
near future.
From these general political commitments to engage in future negotiations, however, cannot
reasonably be implied a rule of law prohibiting the use of nuclear weapons. The text of the NPT,
which explicitly recognizes the status and responsibilities of certain States in possession of nuclear
weapons, certainly belies such an interpretation. Nothing in the text or negotiating record of the
NPT indicates that the parties to this treaty intended to prohibit nuclear-weapon States from using
nuclear weapons. No State has brought to the Court's attention persuasive evidence to the contrary.
Nor has any State managed to argue persuasively for such a prohibition from the text or
negotiating record of any other international instruments. Loosely to impute to the parties of such
instruments an intent to prohibit the use of nuclear weapons would undermine the corpus of
conventional law and future international negotiations. States must be able to rely on the fact that
treaties mean what they say and what the parties thereto intend, and nothing more.
As my colleagues have noted, the Secretary-General, in a 1990 report, concluded that no
uniform view has emerged regarding the legality of the use of nuclear weapons. Nothing has
changed in the last five years to warrant the conclusion that such use is now prohibited.
The Court plays a role in promoting peace and security only when it decides issues that are
appropriate for, and amenable to, judicial decision-making. It would be of no benefit to the peace
and security we all wish to achieve, to the Court's credibility, or to the development of the
international legal order, for the Court to accept the invitation presented by advocates of a legal
prohibition to recognize phantom legal norms.
Accordingly, we respectfully urge this honourable Court to decline the requests before it to
issue an advisory opinion.
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Thank you, Mr. President, thank you, Members of the Court.
The PRESIDENT: Thank you very much, Mr. Harper, for your last statement that concludes
the oral arguments by the United States of America. I now give the floor to Judge Ranjeva who
would like to ask a question.
M. RANJEVA : Je vous remercie, Monsieur le Président. Ma question s'adresse à toutes les
délégations intéressées et plus particulièrement à la délégation du Royaume-Uni et des Etats-Unis
d'Amérique. Ce matin le Royaume-Uni et les Etats-Unis d'Amérique ont dit qu'un avis de la Cour
sur le fond des questions posées aurait des effets négatifs qui affecteraient l'évolution des
négociations sur le désarmement nucléaire. Ma question est : «Sur quels faits concrets ces
délégations se fondent-elles pour justifier cette affirmation ?» Je vous remercie, Monsieur le
Président.
Le PRESIDENT : Merci. Il est à noter que le texte de cette question posée par M. Ranjeva
sera immédiatement distribué, et qu'il est loisible à la délégation du Royaume-Uni et à celle des
Etats-Unis d'Amérique, comme du reste à toute autre délégation concernée, de donner une réponse
écrite dans un délai de quinze jours. Je n'ai plus d'orateur dans ma liste. Je déclare donc levée cette
séance jusqu'à 15 heures cet après-midi.
L'audience est levée à 13 h 13.
Public sitting held on Wednesday 15 November 1995, at 10 a.m., at the Peace Palace, President Bedjaoui presiding