Summary of the Advisory Opinion of 8 July 1996

Summaries of Judgments, Advisory Opinions and Orders of the Internationa
l Court of Justice
Not an official document

LEGALITY OF THE THREAT OR IJSEOF NUCLEAR WEAPONS

Advisory Opinion of 8 July 1996

The Court handed down its advisory opinion on the erally be contrary to the rules of international law
requestmadebythe GeneralAssemblyoftheUnitedNations applicable in armed conflict, and in particular the
on the question concerning the Legality of the Threat or principles and rules of humanitarian law;
Use of Nuclear Weapons. However, in view of the current state of interna-
tional law, and of the elements of fact at its disposal,
The final paragraph of the opinion reads as follows: the Court cannot conclude definitively whether the
"For these reasons, threat or use of nuclear weapons would be lawful or
THECOURT, unlawful in an extreme circumstance of self-defence,
(1) By thirteen votes to one, in whichthe very survival ofa Statewould beat stake;

Decides to conlply with the request for an advisory IN FAVOUR: President Bedjaoui; Judges Ranjeva,
opinion; Herczegh,Shi,Fleischhauer,VereshchetinF,errariBravo;
IN FAVOUR:President Bedjaoui; Vice-President AGAINSTV : ice-President Schwebel; Judges Oda,
Schwebel; Judges Guillaume, Shahabuddeen, Ciuillaume, Shahabuddeen, Weeramantry, Koroma,
Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Higgins;
Kororna,Vereshchetin, Ferrari Bravo, Higgins; F. ZJnanimously,
AGAINSTJ:udge Oda; There exists an obligation to pursue in good faith
(2) Replies in the following manner to the question andbringtoaconclusionnegotiationsleadingtonuclear'
put by the General Assembly: disarmament in all its aspects under strict and effec-
A. Unanimously, tive international control".

There is in neither customary nor conventional
international law any specific authorization of the
threat or use of nuclear weapons;
B. By eleven votes to three,
There is in neither customary nor conventional The Court was composedas follows: PresidentBedjaoui,
international law any comprehensive and universal Vice-President Schwebel; Judges Oda, Guillaume,
prohibition of the threat or use of nuclear weapons as Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi,
such; Fleischhauer,Koroma,Vereshchetin,FerrariBravo, Higgins;
IN FAVOUR:President Bedjaoui; Vice-President Registrar Valencia-Ospina.
Schwebel;JudgesOda,Guillaume, Ranjeva,Iierczegh,
Shi,Fleischhauer,Vereshchetin,FerrariBravo,Higgins;

AGAINST:Judges Shahabuddeen, Weeramantry,
Koroma;
C. Unanimously, President Bedjaoui and Judges Herczegh, Shi,
Athreat or use of force by means of nuclear weap- Vereshchetinand Ferrari Bravoappended declarationsto the
ons that is contrary to Artic2, paragraph 4, of the advisory opinion of the Court; Judges Guillaume, Ranjeva
Charter ofthe United Nations andthat fails to meet all andFleischhauerappendedseparateopinions;Vice-President
the requirements of Article 51is unlawful; Schwebel and Judges Oda, Shahabuddeen, Weeramantry,
D. Unanimously, Koroma and Higgins appended dissenting opinions.

A threat or use of nuclear weapons should also be
compatible with the requirements of the international
law applicable in armed conflict, particularly those of
the principles and rules of international humanitarian
law, as well aswith specific obligations under treatiesSubmissionof the request and subsequentprocedure
and other undertakings which expressly deal with (paras. 1-9)
nuclear weapons;
E. By seven votes to seven, by the President's The:Court begins by recalling that by a letter dated
casting vote, 19December 1994,filed inthe Registry on 6January 1995,
It follows from the above-mentioned requirements the Secretary-Generalof theUnitedNations oficially com-
that the threat or use of nuclear weapons would gen- municated to the Registrar the decision taken by theen-

Continued on nepage era1Assembly to submita.question tothe Courtfor an ad- Court of a competence expressly conferred on it by its
visory opinion. The final]paragraphof resolution 49/75K, Statute". Nor arethe political nature of the motives which
adoiptedby the General Assemblyon 15 December 1994, may be said to have inspired the requestor the political
which sets forth the question, provides that the General implications thatthe opinion given might have ofrelevance
Assembly inthe establishmentofthe Court'sjurisdictionto give such
"Decides,pursuant to Article 96, paragraph 1, of the an opinion.
Charter of the United Nations,to request the Interna-
tional Court of Justice urgentlyto render its advisory Discretionof the Court to give an advisory opinion
opinion on the followirigquestion: 'Is thethreat or use (paras. 14-19)
ofnuclear weapons in any circumstance permitted under
ir~ternationallaw?'." Article 65, paragraph 1, of the Statute provides:"The
The Court then recapitulates the various stages of the Courtmaygiveanadvisory opinion ... ".(Emphasisadded.)
proceedings. This is more than an enabling provision.As the Courthas
repeatedly emphasized, the Statute leaves discretion as to
whether or not it will give an advisory opinion that has
Jurisdiction ofthe Court been requestedof it, onceit has establishedits competence
(paras. 10-18) to do so. In this context, the Court has previously noteas
The Court first c0nside.r~whether it has thejurisdiction f01lows:
to give a reply to the request of the General Assembly "The Court's Opinion isgiven not to the States,but to
for i3nadvisory opinionand whether, shouldt:heanswer be the organwhich is entitledto request it; the replyofthe
in the affirmative, thereis;any reason it should declineto Court,itselfan 'organofthe United Nations', represents
exercise any suchjurisdiction. itsparticipationintheactivitiesoftheOrganization, and,
in principle, should not be refused." (Interpretationof
The Court observes tha.tit draws its competence inre-
spec:tof advisory opinions from Article 65, paragraph 1,of Peace Treatieswith Bulgaria,Hungaryand Romania,
its !Statute,while Article 96, paragraph 1, of the Charter Firsf Phase, Advisory Opinion, I.C.J. ~e~orts 1950,
provides that: p. 71.)
-~h~~~~~~~l~ ~ ~ ~ ~ o brlhe security ,~~~~~m ilay In the history of the present Court there has been no
re:questthe International court of Justice to give an refusal, based on the discretionary power of the court,
advisoryopinion on any legal question." to act upon a request for an advisory opinion; in the case
Some States which oppose the givingof an opinion by concerningthe Legality of the Use by a State of Nuclear
the Court argued that the General Assembly and the Secu- WeaponsinArmed Conflictthe refusal to give the World
rity Councilmay askfor an advisory opinion on any legal Health Organization the advisory opinion requested .by
question only within the scopeof their activities. In the ' it was justified by the Court's lackof jurisdiction in that
view of the Court,it matters little whetherthis interpreta- case.
tion of Article 96, paragr~~ph1,is or is not correct; in the Several reasons were adducedin these proceedings in
present case, the General Assembly has competencien any order to persuade the Churt that in the exercise of its
event to seise the Court. Referringto Articles 10, 11 and discretionary power itshoulddeclineto render the opinion
13o,fthe Charter, theCouirtfinds that, indeed, the question requested by the General Assembly. Some States,in con-
put to the Court has relevance to many aspects of the tending that the question Put to the Court is vague and
activitiesandconcernsofthe General Assembly, including abstract,appearedto meanby this that there existsno SPe-
cificdispute onthe subject-matterof the question.In order
those relating to the threa:tor use of force in international to respond to this argument, it is necessaryto distinguish
relations,the disarmament process, andtheprogressive de- between requirements governing contentious procedure
velopmentof international law. and those applicable to advisory opinions. The purpose of
the advisory functionis not to settle-at least directly-
'legal question" disputes between States, but to offer legal advice to the
(para. 13) organsand institutions requesting the opinion.The factthat
The Court ~b~ervesthat it has already had occasionto the question put tothe Court doesnot relate to a specific
indicate that questions
dispute should consequentlynot lead the Courtto decline
"framed in termsof law and rais[ing] problems of inter- to give the opinion requested. Other arguments concerned
national law ...are bytheir very nature susceptibleofa the fear thatthe abstract natureof the question might lead
re:plybased on law ... [and]appear. ..to bequestions the Courtto makehypotheticalor speculative declarations
of a legalcharacter" (WesternSahara,AdvisoryOpinion, outside the scopeof itsjudicial function;the fact thatthe
I.8C.J. eports 1975,p. 18,para. 15). General Assemblyhas not explainedto the Court for what
It findsthat theuestionput to the Courtbythe General precise purposes itseeksthe advisory opinion; thata reply
Assembly is indeeda legailone, since theCouirtis askedto from the Court inthis casemight adversely affect disarma-
rule on the compatibilityof the threat or use of nuclear ment negotiations and would, therefore, be contrary to
wealponswith the relevantprinciples and rules of interna- the intcrest of the United Nations; and that in answering
tionid law. To do this, the Court must identify the existing the question posed, the Court would be going beyond its
principles and rules, interpret themand apply themto the judicial role and wouldbe takingupon itselfa law-making
threilt or use of nuclear weapons,thus offering a reply to capacity.
the question posed based on law. The Court does not accept those arguments andcon-
The fact thatthis questionalso has politicalaspects, as, cludes that it has the authority to deliver an opinion on
in the natureof things, is the case withso many questions the question posed by the General Assembly and that
whicharise in international life,doesnot sufficeto deprive there exist no "compellingreasons" which would leadthe
it of its characteras a "legal question" andto "deprivethe Court to exercise its discretion notto do so. It points out,

95however, that it is an entirely different question whether,
characteristics of nuclear weapons, and in particular their
under the constraints placed upon itas a judicial organ, it destructive capacity,their capacity to cause untold human
will be able to give a complete answer to the question suffering, and their abilityto cause damageto generations
asked of it. But that is a different matter from a refusal to to Come.
answer at all.
Provisions of theCharter relating to the threat or use of
Fornzulation ofthequestionposed force
(paras. 20-22) (paras. 37-50)

The Court finds it unnecessary to pronounce on the The Court then addresses the questionof the legality or
possible divergences between the English and French illegality of recourse to nuclear weaponsin the light ofthe
texts of the question put. Its real objective is clear: to provisions of the Charter relating to the threat or use of
determine the legality or illegality of the threat or use of force.
nuclear weapons. And the argument concerning the legal In Alticle 2, paragraph 4, of the Charter, the use of force
conclusions to be drawn from the use of the word "per- against the territorial integrityor political independenceof
mitted", and the questions of burden of proof to which another State or in any other manner inconsistent withthe
itwas saidto give rise, are found bythe Courtto bewithout purpose:^ of the United Nations is prohibited.
particular significance for the disposition of the issues
before it. This prohibition of the use of force is to be considered
in the 1,ightof other relevant provisions of the Charter. In
Theapplicable law Article 51, the Charter recognizes the inherent right of
(paras. 23-34) individual or collective self-defence if an armed attack
occurs.A further lawfuluseof forceisenvisagedinArticle42,
In seekingto answerthe question putto it bythe General whereby the Security Council may take military enforce-
Assembly, the Courtmustdecide, after considerationofthe ment measures in conformity with Chapter VII of the
great corpus of international law norms availableto it, Charter.
what might be the relevant applicable law. These provisions do not refer to specific weapons. They
The Court considers that the question whether a par- apply to any use of force, regardless of the weapons em-
ticular loss of life, through the use of a certain weapon ployed. The Charter neither expressly prohibits, nor per-
in warfare, is to be considered an arbitrary deprivation mits, the use of any specific weapon, including nuclear
of life contrary to article6 of the International Covenant weapons.
on Civil and Political Rights, as argued by some of the
proponents of the illegality of the use of nuclear weap- The entitlementto resort to self-defenceunder Article51
is subject to the conditions of necessity and proportional-
ons, can only be decided by reference to the law appli- ity. As the Court stated in the case concerning Military
cable in armed conflict and not deduced from the terms and Paramilitary Activities in and against Nicaragua
of the Covenant itself. The Court also points out that the (Nicaragua v. United States of America) (I.C.J. Reports
prohibition of genocide would be pertinent in this case 1986, p. 94, para. 176): "there is a specific rule whereby
if the recourse to nuclear weapons did indeed entail the self-defence would warrant only measures which are pro-
element of intent, towards a group as such, required by portionill to the armed attack and necessaryto respond to
articleI1 of the Convention onthe Prevention and Punish- it, aule well established in customary internationallaw".
ment of the Crime of Genocide. In the view of the Court, The proportionality principle maythus not in itself ex-
it would only be possible to amve at such a conclusion
after having taken due account of the circumstances spe- clude the use of nuclear weapons in self-defence in all
cific to each case. And the Court further finds that while circumstances. But at the same time, a use of force that
the existing international law relating to the protection is proportionate under the law of self-defence must, in
and safeguarding of the environment does not specifi- order to be lawful, also meet the requirements of the law
cally prohibit the use of nuclear weapons, it indicates applicable in armed conflict, which comprise in particular
important environmental factors that are properly to be the principles and rules of humanitarian law.Andthe Court
taken into account in the context of the implementation notes that the very nature of all nuclear weapons and the
of the principles and rules ofthe law applicable in armed profound risks associated therewith are further considera-
conflict. tions to be borne in mindby States believing they can exer-
cise a nuclear response in self-defence in accordance with
In the light of the foregoing, the Court concludes that the requirements of proportionality.
the most directly relevant applicable law governing the In order to lessen or eliminate the risk of unlawful at-
question of which it was seised is that relating to the use tack, States sometimes signal that they possess certain
of force enshrined in the Charter of the United Nations
and the law applicable in armed conflict which regulates weapons to use in self-defence against any State violating
the conduct of hostilities,togetherwith any specifictreaties their territorial integrity or political independence.
on nuclear weapons that the Court might determineto be Whether a signalled intention to use force if certainevents
relevant. occur is or is not a "threat" within Article 2, paragraph 4,
of the Charter depends upon various factors. The notions
Uniquecharacteristicsof nuclearweapons of "threat" and "use" of force under Article 2, para-
(paras. 35-36) graph 4, of the Charter stand together in the sense that
if the use of force itself in a given case is illegal-for
The Court notes that in order correctly to apply to the whatever reason-the threat to use such force will like-
present case the Charter law on the use of force and the wise be illegal. In short, if it is to be lawful, the declared
law applicable in armed conflict, inparticular humanitarian readiness of a State to use force must be a use of force
law, it is imperative for it to take account of the unique that is in conformity with the Charter. For the rest, no Sta~te-whether or not iit defended the poilicyof deter- (b) nevertheless,evenwithin thisframework,thenuclear-
rence---suggestedto the Court thatit woulclbe lawfulto weapon Stateshave reservetdherighttouse nuclearweapons
threatento use forceif the useof forceconten~platedwould in certain circumstances; and
be illegal.
(c) these reservationsmet with no objection fromthe
partiesto the Tlatelolco or Rarotonga Treatiesor from the
Rujeson thelawfirlnessor unlav@ulneso sf nudear weapons Security Council.
czssuch The Court then turns to an examination of customary
(paras.49-73) international lawto determine whethera prohibitionof the
threat or use of nuclear weaponsas such flowsfrom that
Having dealt with the Charter provisionsrelatingto the sourceof law.
threat or use of force, the Courtturnsto the law applicable
in situationsof armed conflict. It first addresses theues- It notes that the members of the international commu-
tioinwhether there are specific rules ininternational law nity are profoundly divided on the matter of whether
regulating the legality01-illegality of recourse to nuclear non-recourse to nuclear weaponsover the past 50 years
weapons perse; it then examines the question putto it in constitutes the expressionof an opiniojuris. Under these
the light of the law app1:icablein armed conflict proper, circumstances the Court doesnot consider itself ableto
i.e.,the principles and rules of humanitarian law applicable find that there is such an opiniojuris. It points out that
in ;armedconflict, and the lawof neutrality. the adoption each year by the General Assembly, by a
'I'heCourt notes by way of introduction thatinterna- large majority, of resolutions recalling the content of
tioinalcustomaryand treaty lawdoes not col~tainany spe- resolution 1653 (XVI), and requesting the Member States
cifiicprescription authorizing the threator rue of nuclear to conclude a convention prohibiting the useof nuclear
weapons or any other weapon in general or in certain weapons in any circumstance, reveals the desire of a very
circ:umstances,in particular those of the exerciseof legiti- large section of the international community to take, by
a specific and express prohibitionof the use of nuclear
mate self-defence. Nor, however, is there .anyprinciple weapons, a significant step forward along the road to
or .ruleof international law which would make the legal- complete nuclear disarmament.The emergencea,s lexlata,
ity of the threat or usef'nuclear weaponsor of anyother of a customary rule specifically prohibiting the use of
weapons dependent on a specific authorization. State nuclear weaponsas such is hamperedby the continuing
practice shows that the illegality of the use of certain tensions between the nascent opinio juris, onthe onehand,
weapons as such does not result from an absence of and the still strong adherenceto the doctrineof deterrence
authorization but,on the contrary,is formulatedin terms (in which the rightto use those weaponsin the exerciseof
of ;prohibition. the rightto self-defence against an armed attack threaten-
It does not seem to the Court that the useof nuclear
weapons can be regarded as specifically prohibited on ing the vital security interestsof the State is reserved), on
the basis of certain~rovjisionsof the Second HagueDec- the other.
lariltionof 1899, thk Regulations annexedto t& Hague
Convention IV of 1907 or the 1925 Geneva Protocol. International humanitarian law
The pattern until now has been for weapons of mass de- (paras. 74-87)
stnlction to be declared illegal by specific instruments.
Butthe Court does not find any specific prohibition of Not having founda conventional ruleof general scope,
nor a customary rule specifically proscribing the threaotr
recourse to nuclear weaponsin treaties expressly prohibit- use of nuclear weapons perse, the Court then deals with
ing the use of certain weaponsof mass destruction; and the question whether recourseto nuclear weapons must be
observes that, although, in the lasttwo dec.ades,a great consideredas illegal in the light of the principles and rules
many negotiations have been conducted regarding nuclear of international humanitarian law applicablein armed con-
weapons, they have not resulted in a treaty of general flict and of the law of neutrality.
prohibition of the same kind as for bacteriological and After sketchingthe historical developmentof the body
che:micalweapons. of rules which originally were called"laws and customs
The Court notes that the treaties dealing exclusively of war" and later cameto be termed "international hu-
with acquisition, manuhcture, possession, deployment manitarian law", the Court observes that the cardinal
ancltesting of nuclear weapons, without specifically ad- principles contained in the texts constituting the fabric
dressing their threat or use, certainly point to an increas- of humanitarianlaw are the following. The firstis aimed
ing concern in the international community with these at the protection of the civilian population and civilian
weapons. It concludes fromthis that these treaties could objects and establishes the distinction between combatants
therefore be seen as foreshadowing a future general pro- and non-combatants; States must never make civilians
hibition of the use of such weapons, but that theydo not
constitute such a prohibition by themse1ve:s.As to the the object of attack and must consequently never use
weapons that are incapable of distinguishing between
treaties of Tlatelolco anclRarotonga and their Protocols, civilian and military targets. According to the second
and also the dec1aration.smade in connection with the principle, it is prohibited to cause unnecessary suffering
indefinite extensionof the Treaty on theNon-Proliferation to combatants: itis accordingly prohibitedto use weapons
of Nuclear Weapons, it emerges fromthese:instruments causing them such harm or uselessly aggravating their
that: suffering. In application of that second principle, States
(a) anumberofStateshaveundertaken not to usenuclear do not have unlimited freedomof choice of means in the
weapons in specificzones(Latin Americat;he South Pacific) weapons theyuse.
or againstcertain other States(non-nuclear-weapon States The Court also refers to the Martens Clause, which
whiichare partiesto the Treatyon the Non-Proliferationof was first included in the Hague Convention I1with Re-
Nuclear Weapons); spect to the Laws and Customsof War on Land of 1899and which has proved to be an effective means of ad- According to one point of view, the fact that recourse
dressing the rapid evolution of military technology. A to nuclear weapons is subject to and regulated by the law
modem version of that clause is to be found in article 1, of armed conflict does not necessarily mean that such
paragraph 2, of Additional ProtocolI of 1977,which reads recourse is as such prohibited. Another view holds that
as follows: recourse to nuclear weapons, in view of the necessarily
"In cases not covered by this Protocol or by other indiscriminate consequences of their use, could never be
internationalagreements,civiliansandcombatantsremain compatible with the principles and rules of humanitarian
under the protection and authority of the principles of law and is therefore prohibited. A similar view has been
international law derived from establishedcustom, from expressedwith respecttothe effectsofthe principleofneu-
the principles of humanity and from the dictates of trality. Like the principles and rules of humanitarian law,
public conscience." that principle has therefore been considered by someto
rule cut the use of a weapon the effects of which simply
The extensive codification of humanitarian law and cannotbe containedwithin the territories of the contending
the extent of the accession to the resultant treaties, as States;.
well as the fact that the denunciation clauses that existed
in the codification instruments have never been used, The Court observes that, in view of the unique char-
have provided the international community witha corpus acteristics of nuclear weapons, to which the Court has
of treaty rules the great majority of which had already referred above, the use of such weapons in fact seems
become customary and which reflected the most univer- scarci:lyreconcilable with respect for the requirementsof
sally recognized humanitarian principles. These rules the 1a.wapplicable in armed conflict. It considers, never-
indicate the normal conduct and behaviour expected of theless, that it does not have sufficient elementsto enable
States. it toc:oncludewith certainty that the use of nuclear weap-
ons would necessarily be at variance with the principles
Turning to the applicability of the principles and rules and rules of law applicable in armed conflict in any cir-
of humanitarian law to a possible threat or use of nuclear cumstance. Furthermore, the Court cannot lose sightofthe
weapons, the Court notes that nuclear weapons were in- fundamental right of every State to survival, and thus its
vented after most of the principles and rules of humanita- right to resortto self-defence,in accordance withArticle51
rian law applicable in armed conflict had already comeinto of the Charter, when its survival is at stake. Nor can it
existence; the Conferences of 1949 and 1974-1977 left ignore the practice referred to as "policy of deterrence",
these weapons aside, and there is a qualitative as well as to which an appreciable section of the international com-
quantitative difference between nuclear weapons and all munity adhered for many years.
conventional arms. However,in the Court'sview, it cannot
be concluded from this that the established principles and Accordingly, in viewof the present stateof international
rules of humanitarian law applicable in armed conflictdid law viewed as a whole, as examined by the Court, and of
not applyto nuclear weapons. Sucha conclusion would be the elements of fact at its disposal, the Court isled to ob-
incompatible with the intrinsically humanitarian character serve that it cannot reacha definitive conclusion as to the
of the legal principles in question which permeates the legality or illegality of the use of nuclear weapons by a
entire law of armed conflict and appliesto all formsof war- State in an extreme circumstance of self-defence,in which
fare and to all kinds of weapons, those of the past, those its very survival would be at stake.
of the present and those of the future. In this respect it
seems significant that the thesis that the rules of humani- Obligationto negotiatenucleardisarmanzent
tarian law do not apply to the new weaponry, because of (para:;.98-103)
the newness of the latter, has not been advocated in the
present proceedings. Given the eminently difficult issues that arise in apply-
ing the law on the use of force and above all the law
applicable in armed conflictto nuclear weapons,the Court
Theprinciple of neutrality considers that it needsto examine one further aspectofthe
(paras. 88-89) question before it, seen ina broader context.
Inthe longrun, international law, and with itthe stability
The Court finds that, as.in the case of the principles of thc:international order which it is intended to govern,is
of humanitarian law applicable in armed conflict, inter-
national law leaves no doubt that the principle of neu- bound to suffer from the continuing difference of views
trality, whatever its content, which is of a fundamental with regard to the legal status of weapons as deadly as
character similar to that of the humanitarian principles nuclear weapons.It is consequently importantto put an end
and rules, is applicable (subject to the relevant provi- to this state of affairs: the long-promised complete nuclear
sions of the Charter of the United Nations) to all inter- disannament appears to be the most appropriate meansof
national armed conflict, whatevertype of weapons might achieving that result.
be used. In these circumstances, the Court appreciates the full
importance of the recognition by article VI of the Treaty
Conclusionsto be drawnfrom theapplicabilityof interna- on the Non-Proliferation of Nuclear Weapons of an obli-
tional humanitarianlaw and theprinciple of neutrality gation to negotiate in good faith a nuclear disarmament.
(paras. 90-97) The legal import of that obligation goes beyond that of a
mere obligation of conduct; the obligation involved hereis
The Court observes that, although the applicability of an obligationto achieve aprecise result-nuclear disarma-
the principles and rules of humanitarian law and of the ment inall its aspects-by adopting a particular course of

principle of neutrality to nuclear weapons is hardly dis- conduct, namely, the pursuit of negotiations on the matter
puted, the conclusions to be drawn from this applicability in good faith. This twofold obligation to pursue and to
are, on the other hand, controversial. conclude negotiations formally concerns the 182 Statesparties to the Treaty on the Non-Proliferation of Nuclear co~icludesby stressing the importance of the obligation to
Weapons, or, in other words, the vast majority ofthe inter- negotiate in good faith for nuclear disarmament-which
national community. Indeed, any realistic search for general the Courthas,moreover,recognized.Heconsidersforhispart
and complete disarmamend, especially nuclei~rdisarma- that it ispossible to go beyond the conclusions of the Court
ment, necessitates the cooperation of all States.. in this regard and to assert "that there in fact exists a two-
fold generalobligation,opposableergaomnes,to negotiate
in good faith and to achieve a specified result"; in other

words, given theat least formally unanimous support forthat
object, that obligation has now-in his view-assumed
The Court finally empha.sizesthat its reply to the ques- customary force.
tion put to it by the General Assembly rests on the totality
of th,elegal grounds set forth by the Court a'bove(para- DeclarationofJudge Herczegh
graphs 20 to 103), each of which is to be read in the light
ofthe others. Someof these grounds arenot suchasto forni Judge Herczegh, in his declaration, takes the view that
the object of formal concli~sionsin the final paragraph of the advisory opinion could have included a more accurate
the opinion; they nevertheless retain, in the view of the summary of the present state of international law with
Court, all their importance. regard to the question of the threat and use of nuclear
weapons "in any circumstance". I-Ievoted in favour of the
advisory opinion and, more particularly, in favour of para-
Declarationof PresidentBedjaoui graph 105,subparagraph E, as he did not wishto dissociate
After having pointed out that paragraph E o:Fthe opera- himself from the large number of conclusions that were
tive part was adopted by 7 votes to 7, with his own casting expressed and integrated into the advisory opinion, and
vote, President Bedjaoui began by stressing that the Court which he fully endorses.
had been extremely meticulous and had shown an acute
sense of its responsibilities when proceeding to consider DeclarationofJudgeShi
all the aspects of the complex question put to it by tlie
General Assembly. He indicated that the Coun:had, how- Judge Shi has voted in favour of the operative para-
ever, had to find that in the current state of ir~ternational graphs of the advisory opinion of the Court. However, he
has reservations with regard to the role which the Court
law the question was one to which it was unfortunately assigns to the policy of deterrence in deterniining the ex-
not in a position to give a clear answer. In his view, the istence of a customary rule on the use of nuclear weapons.
advisloryopinion thus rendered does at least have the merit In his view, "nuclear deterrence" is an instrument of
of pointing to the imperfections of international law and policy to which certain nuclear-weapon States, supported
inviting the States to correct them. by those States acceptingnuclearumbrellaprotection,adhere
President Bedjaoui indicated that the factth2.tthe Court in their relations with other States. This practice is within
was unable to go any further should not "in any way be the realm of international politics and has no legal value
interpreted as leaving the way open to the recognition of
the lawfulness of the threat or use of nuclear weapons". from the standpoint of the formation of a customary rule
According to him, the Court does no more tha.nplace on prohibiting the use of the weapons as such.
record the existence of a legal uncertainty. After having It would be hardly compatible with the Court's judicial
observed that the voting of'the Members of the Court on function if the Court, in determining a rule of existing law
paragraph E of the operative part is not the re:flectionof governing the use of the weapons, were to have regard to
any geographical dividing line, he gives the reasons that the "policy of deterrence".
led him to approve the prorrouncementof the Court. Also, leaving aside the nature of the policy of deter-
rence, States adhering to the policy of deterrence, though
To that end, he began by emphasizing the particularly important and powerful members of the international com-
exacti.ngnature of international law and the way in which munity and playing an important role onthe stage of inter-
it is designed to be applied in all circumstances. More spe- national politics, by no means constitute a large proportion
cifically, he concluded that "the very nature o,fthis blind of the membership of the international community.
weapon thereforehas a destabilizing efect on humanita-
rian law which reglilates discernment in the type of Besides,the structure of the community of Statesis built
weapon used. Nuclear weqpons, the ultimateevil, desta- on the principle of sovereign equality. The Court cannot
bilize humanitarianlaw which is thelaw of thelesser evil. view these nuclear-weapon States and their allies in terms
Theexistence qfnuclear weaponsis therefore I;challenge of material power, but rather should have regard of them
totheveryexistenceofhumanitarialn aw,nottomentiontheir from the standpoint of international law. Any undue em-
long-term effects of damage:to the human environment, in phasis on the practice of these materially powerful States,
respect to which the right to life can be exercised". constituting a fraction of the membership of the commu-
nity of States, would not only be contrary to the principle
President Bedjaoui considered that "self-defence-if of sovereign equality of States, but also make it more dif-
exercised under extreme circumstances in whic.hthe very ficult to give an accurate and proper view of the existence
survival of a State is in question-cannot engender a situ- of a customary rule on tlie use of nuclear weapons.
ation :inwhich a State would exonerate itself from compli-
ance with the 'intran~gressi~bln e'rms of international hu- DeclarationofJudge Vereshchetin
manitarian law". According to him, it would be very rash
to accord, without any hesitation, a higher priclrityto the Inhis declaration,Judge Vereshchetinexplainsthe reasons
survival of a State than tothe survival of humanity itself. which have led him to vote in favour of paragraph 2 E of
As the ultimate objective:of any action in tile field of thedispositif;which carries the implication of the indeci-
nuclearweapons is nuclear disarmament,President Bedjaoui siveness of the Court. In his view, in advisory procedure,where the Court is requested not to resolve an actual dis- In an attempt to define those cases, Judge Guillaume
pute, but to state the law as it finds it, the Court may not stresses that neither the Charter of the United Nations nor
try to fill any lacuna or improve the law that is imperfect. any conventional or customary rule can detract from the
The Court cannot be blamed for indecisiveness or evasive- natural right of self-defence recognized by Article 51 of

ness where the law, upon which it is called to pronounce, the Cbarter. He deduces from this that international law
is itself inconclusive. cannot deprive a State of the right to resort to nuclear
Judge Vereshchetin is of the view that the opinion ade- weapo:nryif that resort constitutes the ultimate means by
quately reflects the current legal situation and shows the which it can ensure its survival.

Declaration of Judge Ferrari Bravo tainly ~:oncludedthat it could not, in those extreme circum-
stances, make a definitive finding of either legality or
Judge Ferrari Bravo regrets that the Court should have illegality in relation to nuclear weapons. In other words, it
arbitrarily divided intotwo categories the long line of Gen- has taken the viewthat, in such circumstances, the lawpro-
eral Assembly resolutions that deal with nuclear weapons. vides no guidance to States. However, if the law is silent
Those resolutions are fundamental. This is the case of reso- on that matter, the States, in the exercise of their sover-
lution 1(I) of 24 January 1946,which clearly points to the eignty,,remain free to act as they think fit.
existence of a truly solemn undertaking to eliminate all
forms of nuclear weapons, whose presence in military Consequently, it follows implicitly but necessarily from
arsenals was declared unlawful. The cold war, which inter- paragraph 2 E of the Court's advisory opinion that the
vened shortly afterwards, prevented thedevelopmentof this States may resort to "the threat or use of nuclear weapons
concept of illegality, while giving rise to the concept of in an extreme circumstance of self-defence, in which the
very survival of a State would be at stake". When recog-
nuclear deterrence which has no legal value. The theory nizing such a right the Court, by so doing, has recognized
of deterrence, while it has occasioned a practice of the the legality of policies of deterrence.
nuclear-weapon States and their allies, has not been able
to create a legal practice serving as a basis for the incipient Separate opinion ofJudge Ranjeva
creation of an international custom. It has, moreover,
helped to widen the gap between Article 2, paragraph 4, of In his separate opinion, Judge Ranjeva has made a point
the Charter and Article 51. of emphasizingthat, for the first time, the Court has unam-
The Court should have proceeded to a constructive biguously stated that the use or threat of use of nuclear
analysis of the role of the General Assembly resolutions. weapons is contrary to the rules of international law appli-
These have, from the outset, contributed to the formation cable, interalia, to armed conflictand, more particularly,to
of a rule prohibiting nuclear weapons. The theory of deter-
rence has arrested the development of that rule and, while the principles and rules ofhumanitarian law. That indirect
it has prevented the implementation of the prohibition of response to the question ofthe General Assembly is, in his
nuclear weapons, it is none the less still the case that that view,justified by the very nature of the law of armed con-
"bare" prohibition has remained unchanged and continues flict, applicable without regard to the status of victim or of
to produce its effects, at least with regard to the burden of aggressor, and that explains why the Court has not gone so
proof, by making it more difficult for the nuclear Powers far as to uphold the exception of extreme self-defence
when the very survival of the State is at stake, as a condi-
to vindicate their policies within the framework of the tion forthe suspension of illegality. In his view, Stateprac-
theory of deterrence. tice shows that a point of no return has been reached: the
principle of the legality of the use or threat of use of
Separate opinion of Judge Guillaume nuclear weapons has not been asserted; it is on the basis of
After having pondered upon the admissibility of the ajustification of an exception to that principle, accepted as
being legal, that the nuclear-weapon States attempt to give
request for an advisory opinion, Judge Guillaume begins the reasons for their policies, and the increasingly closer-
by expressing his agreement with the Court with regard to knit legal regimes of nuclear weapons have come about in
the fact that nuclear weapons, like all weapons, can only the context of the consolidation and implementation of the
be used in the exercise of the right of self-defence recog- final obligationto produce a specific result,.e., generalized
nized by Article 51 of the Charter. On the other hand, he nuclear disarmament. These "givens" thus represent the
says he has had doubts aboutthe applicability of traditional advent of a consistent and uniform practice: an emergent
humanitarian law to the use-and above all the threat of opiniojttris.
use-of nuclear weapons. He goes on to say, however,that
he has no choice in the matter but to deferto the consensus Judge Ranjeva considers, however, that the equal treat-
that has emerged before the Court between the States. ment that the advisory opinion has given to the principles
Moving on to an analysis of the law applicable to armed of legality and illegality cannot be justified. The General
conflict, he notes that that law essentially implies compari- Assenibly gave a very clear definition of the object of its
sons in which humanitarian considerations have to be question: Does international law authorize the use or threat
weighed against military requirements. Thus, the collateral
of use of nuclearweapons in any circumstance? By dealing
damage caused to the civilian population must not be atthe sametime and, aboveall, on the same levelwith both
'Lexcessive" as compared to the "military advantage" legality and illegality, the Court has been led to adopt a
offered. The harm caused to combatants must not be liberal acceptationof the conceptof a "legal question" inan
"greater than that unavoidable to achieve legitimate mili- advisoryproceeding,ashenceforthanyquestionwhoseobject
tary objectives". Onthat account, nuclearweapons of mass is to ask the Court to look into matters that some people
destruction can only be used lawfully in extreme cases. do not seek to understand will be seen as admissible. In conclusion, Judge Ranjeva, while beingawareof the "profound" disagreement withits principal operative con-
criticisms that specialistsin law and judicial matters will clusion: "The Court cannot conclude definitively whether
be bound to level at the advisory opinion, ultimatelycon- the threat or use of nuclear weapons wouldbe lawful or
siders that it does declare the lawas it is, while laying unlawful in an extreme circumstanceof self-defence, in
down boundaries theexceedingof whichis a miitterfor the which thevery survivalof a State would be at stake." The
competenceof States.Henone the less hopes thatnoCourt Court thereby concluded"on the supreme issue of the
will ewerhave to reach a decision along the lines of the threat or use of force of our age that it has no opinion...
second subparagraphof paragraphE. that international law and hence the Court have nothintgo
say. After many months of agonizing appraisao lf the law,

Separate opinionofJudge Fleischhauer the Court discovers that thereis none. When it comes to
Juclge Fleischhauer's separate opinion highlights that the supreme interestsof State, the Court discards the legal
international law is still grappling with and hasnot yet progressofthe twentieth century, puts aside the provisions
overcome the dichotomy thatis created by the very exist- ofthe CharteroftheUnited Nationsofwhich it is 'the prin-
cipal judicial organ',and proclaims, in terms redolentof
ence of nuclear weapons between thelaw ap.plicabiein Realpolitik,its ambivalence about themostimportant pro-
armedconflict, and in particularthe rules and principles of visions of modem international law.If this was to be its
humanitarian law,on the one side, and the inherent right ultimate holding,the Court would have done better to have
of se1.f-defenco,n theother.Theknownqualitiesofnuclear drawn onits undoubted discretionnotto renderan opinion
weapons let their use appear scarcely reconcilable with at all."
humanitarian law, whilethe:rightto self-defenc:ewould be The Court's inconclusiveness was in accordance neither
severlelycurtailed if for a State, victim of an attack with with its Statute, nor with its precedent, nor with events
nuclear, chemicalor bacteriological weaponsor otherwise whichdemonstrate the legality ofthethreatoruseofnuclear
constitutinga deadly menace foritsveryexistence, nuclear weapons in extraordinary circumstances. E.g., the threat
weapons were totally ruled outas an ultimate la-alo-tion. which Iraq tookas a nuclear threat thatmay have deterred
Thleseparate opinion endorses theCourt's lindingthat it from using chemical and biological weapons against
international lawapplicable:inarmed conflict,:particularly
the rules and principles of'humanitarian law! applies to coalition forcesin the Gulf War was"not only eminently
nuclear weapons. Itgoeson to agree with the C:ourt'scon- lawful but intensely desirable".
clusion that the threat or use of nuclear weaponswould While the principles of international humanitarian law
generally be contrary to the rules applicable in armed con- govern the use of nuclear weapons, and while "it is
flict, and in particular the principles and rulesof humani- extraordinarily difficultto reconcile the use...of nuclear
tarian~law. The separate opinion thenwelcorr~esthat the weapons withthe applicationof those principles", it does
not follow that the useof nuclear weapons necessarily and
Court did not stop there, but that the Courtadmittedthat invariably will contravenethose principles. But it cannot
there can be qualificationsto that finding. Had the Court be accepted that the useof nuclear weapons ona scale
not done so, then it would have givenpreva1t:nceto one which would--or could-result in the deaths of "many
set of principles involved over the other. The:principles millionsin indiscriminate inferno andby far-reaching fall-
involved are, however,all liegalprinciples of equal rank. out ... and render uninhabitable muchor all of the earth,
Th'eseparate opinion continues thatthe Cou~tcould and could belawful". The Court's conclusion that the threao tr
should havegone further ar~dthat itcould and shouldhave use of nuclear weapons "generally" wouldbe contraryto
stateclthat in order to reco~icilethe conflicting principles, the rules of international law applicable in armed conflict
their smallest common denominator would apply. That '5s not unreasonable".
means that recourse to nulslearweapons could remain a
justified legal optionin an extreme caseof individual or The case as a whole presents an unparalleled tension
collec%ivseelf-defenceas the last resortof a Statevictimof between State practice and legal principle.State practice
an attack with nuclear, bacteriologicaolr chemical weapons demonstrates that nuclear weapons havebeen manufac-
or otherwise threatening its very existence. The separate tured and deployed for some50 years; thatin that deploy-
opinionseesa confirmation.ofthis viewinthe legally rele- ment inheres a threat of possible use("deterrence"); and
vant State practice relatingto matters of self-defence. that the international community,far from outlawing the
threat or use of nuclear weaponsin all circumstances, has
For a recourseto nuclear weaponsto be consideredjus- recognized in effect or in terms that in certain circum-
tified, however,not only would the situation have tobe stances nuclear weaponsmay be used or their use threat-
extreme,but all the conditions on whichthe lawfulnessof ened. This State practiceis notthatof alone and secondary
the ertercise'ofthe right ol'self-defence depends in inter- persistent objector,but a practice of the permanentmem-
national law, including the requiremeno t f proportionality, bers of the Security Council, supportedby a large and
would haveto be met. Therefore, the margin for consider- weighty numberof other States, which together represent
ing that a particular threatclruse of nuclearweitponscould the bulk of the world's power andmuchof its population.
be legal is extremely narrow.
Finally, the separate opinion endorses the existencoef a The Nuclear Non-Proliferation Treaty and the negative
general obligationof States to pursue in good faith, and and positive security assurances of the nuclear Powers
bring to a conclusion, negotiations leadingto nuclear dis- unanimously accepted by the Security Council indicate the
armamentin all its aspects under strictand effective inter- acceptance by the international community of the threator
national control. use of nuclear weapons in certain circumstances. Other
nuclear treaties equallyinfer that nuclear weaponsare not
comprehensively prohibited eitherby treaty or by custom-
Dissentingopinion of Vice-PresidentSchwebel ary international law.
Vice-President Schwebel, while agreeingwith much of General Assembly resolutionsto the contrary are not
the body of the Court's opinion, dissented because of his law-making or declaratory of existing internationallaw.When faced with continuing and significant opposition, the the facts which prevented the Court from returning a de-
repetition of General Assembly resolutions is a mark of finitive answer to the real point of the General Assembly's
ineffectuality in law formation as it is in practical effect. question. Inhis respectful view,the Court shouldandcould
have given a definitive answer--one way or another.
Dissenting opinionofJudge Oda
Dissenting opinion of JudgeWeerantantyi
Judge Oda voted againstpart one of the Court's advisory
opinion because of his view that, forthe reasons ofjudicial Judge Weeramantry's opinion is based on the proposi-
propriety and judicial economy, the Court should have tion that the use or threat of use of nuclear weapons is
exercised its discretionary power to refrain from rendering illegal in any circumstances whatsoever.It violates the
an opinion in response to the request. fundamental principles of international law, and represents
In the view of Judge Oda, the question in the request the very negation of the humanitarian concerns which
is not adequately drafted and there was a lack of a mean- underlie the structure of humanitarian law. It offends con-
ingful consensus of the General Assembly with regard to ventional law and, in particular, the Geneva Gas Protocol
the 1994request. After examining the developments ofthe of 1925 and article 23 (a) of the Hague Regulations of
relevant General Assembly resolutions on a convention on 1907. It contradicts the fundamental principle of the dig-
the prohibition of the use of nuclear weapons up to 1994, nity a.nd worth of the human person on which all law
he notes that the General Assembly is far from having depends. It endangers the human environment in a manner
reached an agreement on the preparation of a Convention which threatens the entirety of life on the planet.
rendering the use of nuclear weapons illegal. In the light He regretted that the Court had not so held, directly and
of that history, the request was prepared and drafted-not categorically.
in order to ascertain the status of existing international law
However, there were some portions of the Court's
on the subject but to try to promote the total elimination of opinion which were of value, in that it expressly held that
nuclear weapons-that is to say, with highly political nuclear weapons were subject to limitations flowing from
motives. the Charter of the United Nations, the general principles of
He notes that the perpetuation of the NPT regime recog- international law, the principles of international humanita-
nizestwo groupsof States-the five nuclear-weapon States rian law, and a variety of treaty obligations. It was the first
and the non-nuclear-weapon States. As the five nuclear- international judicial determination to this effect and fur-
weapon States have repeatedly given assurances to the ther clarifications were possible in the future.
non-nuclear-weapon States of their intention not to use Judge Weeramantry's opinion explained that from the
nuclear weapons against them, there is almost no prob- time of Henri Dunant, humanitarian law took its origin
ability of any use of nuclear weapons given the current and inspiration from,a realistic perception of the brutalities
doctrine of nuclear deterrence. of war, and the need to restrain them in accordance with
the dictates of the conscience of humanity. The brutalities
Judge Oda maintains that an advisory opinion should of the nuclear weapon multiplied a thousandfold all the
only be given in the event of a real need. In the present brutalities of war as known in the pre-nuclear era. It was
instance there is no need and no rational justification for doubly clear therefore that the principles of humanitarian
the General Assembly's request that the Court give an law governed this situation.
advisory opinion on the existing international law relating
to the use of nuclear weapons. He also emphasizes that His opinion examined in some detail the brutalities of
fromthe standpoint ofjudicial economythe rightto request nuclear war, showing numerous ways in which the nuclear
an advisory opinion should not be abused. weapon was unique, even among weapons of mass destruc-
In concluding his opinion, Judge Oda stresses his earnest tion, in injuring human health, damaging the environment
hope that nuclear weapons will be eliminated from the and destroying all the values of civilization.
world but states that the decision on this matter is a func- Thenuclear weapon causeddeathanddestruction;induced
tion of political negotiations among States in Geneva (the cancers, leukaemia, keloids and related afflictions; caused
Conference on Disarmament) or New York (the United gastrointestinal, cardiovascular and related afflictions;
Nations) but not one which concerns this judicial institu- contiiiued, for decades after its use, to induce the health-
tion in The Hague. related problems mentioned above; damaged the environ-
mental rights of future generations; caused congenital
Hevoted against subparagraphE asthe equivocationscon- defonnities, mental retardationand genetic damage;camed
tained therein serve, in his view, to confirm his point that the potential to cause a nuclear winter; contaminated and
it would have been prudent for the Court to decline from destroyedthe foodchain;imperilledthe ecosystem;produced
the outset to give any opinion at all in the present case. lethal levelsof heat and blast; produced radiation and radio-

Dissenting opinionof Judge Shahabuddeen active:fallout;produced a disruptive electromagneticpulse;
produced social disintegration; imperilled all civilization;
In Judge Shahabuddeen'sdissentingopinion,the essence threatened human survival; wreaked cultural devastation;
of the General Assembly's question was whether, in the spanned a time range of thousands of years; threatened all
special case of nuclear weapons, it was possible to recon- life on the planet; irreversibly damaged the rights of future
cile the imperative need of a Stateto defend itself with the generations; exterminated civilian populations; damaged
no less imperative need to ensure that, in doing so, it did neighbouring States; and produced psychological stress
not imperil the survival of the human species. If a recon- and fear syndromes--as no other weaponsdo.
ciliation was not possible, which side should give way? While it was true that there was no treaty or rule of law
The question was, admittedly, a difficult one; but the re- which expressly outlawed nuclear weapons by name, there
sponsibility of the Court to answer it was clear. He was was an abundance of principles of international law, and
not persuaded that there was any deficiency in the law or partic:ularlyinternational humanitarian law, which left no doubt regarding the illegality of nuclear weapons, when would at the very least result in the violationof the prin-
one had regard to their known effects. ciples and rules of that law and is therefore unlawful.

Arnong these principles were the prohibition against Judge Koroma also pointed out that although the views
causing unnecessary suffering,the principle of proportion- of States are divided on the question of the effects of the
ality, the principle of discrimination between combatants use of nuclear weapons,or asto whether the matter should
and civilians,the principleagainst causingamai~eto neutral have been brought beforethe Court, he took the view that
States, the prohibition against causing serious and lasting once the Court had found that the General Assembly was
damage to the environment, the prohibition against geno- competent to pose the question, and that no compelling
cide, and the basic principles of human rights law. reason existed against rendering an opinion, the Court
In addition, there were specific treaty provisions con- shouldhaveperformeditsjudicial functionanddecidedthe
tained in the Geneva Gas Protocol (1925) anclthe Hague case on the basis of existing international law. He ex-
Regulations(1907) whichwere clearlyapplicableto nuclear pressed his regret that the Court, even after holding that:
weapons, as they prohibited the use of poison:;.Radiation "the threat or use of nuclear weapons would generally be
felldirectly within this description, and the prohibition contrary to the rules of international law applicable in
against the use of poisons was indeed one of the oldest armed conflict, and inparticular the principles and rules
rules of the laws of war. of humanitarian law"

Judge Weeramantry's opinion also drawsattention to the -a finding with which he concurred, savefor the word
multicultural and ancientorigins of the laws o:fwar, refer- "generallyw-the Court had flinched from answeringthe
ringto the recognition ofit!;basic rulesin Hindu, Buddhist, actual question put to it that the threat or use of nuclear
Chinese, Judaic, Islamic, African and modern European weapons in any circumstance would be unlawful under
cultural traditions. As such, the humanitarian rules of war- international law.
farewere not to be regarded as a new sentiment, invented He maintained that the Court's answer tothe question
in th,enineteenth century, and so slenderly rooted in uni- had turned on the "survival of the State", whereas the
versa.1tradition that they may be lightly overridden. question posed to the Court was about the lawfulnessof
Th.eopinion also points out that there cannotbe two sets the useof nuclear weapons.Hetherefore found the Court's
of the laws of war applicable simultaneouslyto the same Judgment not only untenable in law, but even potentially
conflict--one to conventional weapons, and 1:heother to destabilizing of the existing international legal order,as it
nuclear weapons. not only made States that might be disposed to use such
weapons judges about the lawfulness of the use of such
Judge Weeramantry's analysis includes pl~ilosophical weapons, but also threw the regime regarding the prohibi-
perspectives showing that no credible legalsystem could tion of the useof force and self-defenceasregulatedbythe
contain a rule within itse1.fwhich rendered 1e:gitimatean Charter of the United Nationsinto doubt, whileat the same
act which could destroy the entire civilizationof whichthat time, albeit unintentionally, it made inroads into the legal
legal system formed a part. Modem juristic discussions restraints imposed on nuclear-weapon States regarding
showed that a rule of this nature, which may find a place such weapons.
in the rules of a suicide club, could not be part of any
reasonable legal system-and international law was pre- Judge Koroma, in his dissenting opinion, undertook a
eminently such a system. survey of what, in his view, is the law applicableto the
The opinion concludes witha reference to the appeal in question, analysedthe material before the Courtand came
the Russell-Einstein Manifestoto "remember your human- to the conclusion that it is wholly unconvincing for the
ity and forget the rest", without which the risk arises of Court to have ruled that, in view of the "current state of
universal death. Inthis context, the opinion points out that the law", it couldnot conclude definitively whetherthe use
intennationallaw is equipped with the necessary array of of nuclear weapons would be illegal. In his opinion,not
principles with whichto respond,andthat intenlationallaw only does the law exist in substantial and ample form, but
could contribute significantly towards rolling back the it is also precise and the purported lacuna is entirely un-
shadow ofthe mushroom clloud,andheralding the sunshine persuasive. In his opinion, there wasno room for a finding
of the nuclear-free age. ofnonliquetin the matter before the Court.
The question should therefore have been answered by On the other hand, after analysing the evidence, Judge
Koroma came to the same conclusion as the Court that
the Court--convincingly, clearly and categorically. nuclear weapons, when used, are incapable of distinguishing
between civiliansand military personnel, and would result
Dissenting opinionofJudge Koroma in the death of thousands if not millions of civilians, cause
In his dissenting opinion, Judge Koroma stated that he superfluous injury and unnecessary sufferingto sukivors,
fundamentally disagreed with the Court's finding that: affect future generations, damage hospitalsand contami-
nate the natural environment,food and drinking waterwith
... in view of the currerltstate ofintematiollal law, and radioactivity, thereby depriving survivors of the n~eansof
of the elements of fact altits disposal, the Court cannot
conclude definitivelywh.etherthethreatoruseofnuclear survival, contraryto the Geneva Conventions of 1949and
weapons would be lawful or unlawful in an extreme the 1977Additional ProtocolI thereto. It followed, there-
circumstance of self-defence, in whichthe very survival fore, that the use of such weapons would be unlawful.
of a State would be at stake". His dissent fromthe Court's main finding notwithstand-
Su.cha finding,he maintained, couldnot be sustainedon ing, Judge Koroma stated that the opinion should not be
the basis of existinginternitional law, or in the face of the viewed as entirely without legal significance or merit. The
weight and abundance of evidence and material presented normative findings contained in it should be regarded as
to the Court. In his view, on the basis of the existing law, a step forward in the historic process of imposing legal
particularly humanitarian lawand the material availableto restraints in armed conflicts andin reaffirming that nuclear
the C:ourt,the use of nuclear weapons in anyc:ircumstance weapons are subjectto international law andto the rule of

103law. The Court's advisory opinion, in his view, constitutes able contribution by the Court, as the guardian of legality
the first time in history that a tribunal of this standing has of the United Nations system, to whathas been described
declared and reaffirmed that the threat or use of nuclear as the most important aspect of international law facing
weapons that is contrary to Article 2, paragraph 4, of the humanity today.
Charter prohibiting the useof force is unlawful and would
be incompatible with the requirementsof international law Dissenting opinionofJudge Higgins
applicablein armed conflict.The finding, though qualified,
is tantamount to a rejection of the argument that because Judge Higgins appended a dissenting opinion in which
nuclear weapons were invented after the adventof humani- she explained that she was not able to support that key
tarian law, they are therefore not subject to that law. finding of the Court in paragraph 2 E. In her view, the
Inconclusion,Judge Koromaregretted that the Courtdid Cou~rthad not applied the rules of humanitarian law in a
not follow through with those normative conclusionsand syst:ematicand transparent way to show how it reached
make the only possible and inescapable finding thatbe- the conclusion in the first part of paragraph 2 E of the
cause of their established characteristics, itis impossible dispositif:Nor was the meaning of the first part of para-
to conceive of any circumstance when the use of nuclear graph 2 E clear. Judge Higginsalso opposed the nonliquet

weapons in an armed conflict would not be unlawful. Such in the second part of paragraph 2 E, believing it to be
a conclusion by the Court would have beena most invalu- unnecessary and wrong in law.