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 USE BY A.STATE OF NUCLEAR WEAPONS
IN ARMEDCONFLICT

Advisory Opinion of 8 July 1996

The:Court found, by 11 votes to 3, that it was not able United Nations, invested with powers of general scope,
to givethe advisory opinion requested by the World Health into relationship with various autonomous and comple-
Organization on the question of the Legality of the Use by mentary organizations, investedwith sectorial powers. The
a State of Nuclear Weapons.in ArmedConflict. Court therefore concludedthat the responsibilities of WHO
The: Court considered that there are three conditions are necessarily restricted to the sphere of public "health"
which must be satisfied in order to found the jurisdiction and cannot encroach on the responsibilities of other parts
of the Court when a request for an advisory opinion is sub- of the United Nations system, and that there is no doubt
mittedito it by a specialized agency: the agency requesting that questions concerning the use of force, the regulation
the opinion must be duly authorized, under the Charter of of armaments and disarmament are within the competence
the United Nations, to request opinions from the Court; the of the United Nations and lie outside that of the specialized
opinion requested must be on a legal question; and this agencies. The request for an advisory opinion submittedby
WHO thus does not relate to a question which arises
question must be one arising;within the scope of'theactivi- "within the scope of [the] activities" of that Organization.
ties of'the requesting agency.
The first two conditions had been met. With regard to The Court was composedas follows: President Bedjaoui,
the third, however, the Court found that although accord- Vice-President Schwebel; Judges Oda, Guillaume,
ing to its Constitution the: World Health Organization Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi,
(WHO) is authorized to deal with the effects 01.health of Fleischhauer, Koroma,Vereshchetin,FerrariBravo,Higgins;
the use of nuclear weapons, or of any other hazardous Registrar Valencia-Ospina.
activity, andto take preventive measuresaimed al:protecting
the healthof populations inthe event of such weapons being
used or such activities engaged in, the question put to
the Court in the present case relates notto theedbctsofthe
use of'nuclear weaponson health, but to the legality of the Judges Ranjeva andFerrari Bravo appended declarations
use of'such weaponsin view of their health andenviron- to the advisory opinion of the Court; Judge Oda appended
mental effects. And the Court pointed out tha~:whatever a separate opinion; Judges Shahabuddeen, Weeramantry
and Koroma appended dissenting opinions.
those cffectsmight be,the competenceofWHOto deal with
them is not dependent on the legality of the actsthat caused
them.TheCourt furtherpointedoutthat internationalorgani-
zations do not, unlike States, possess a general compe-
tence, but are governed by the "principle of speciality",
that is to say, they are invested by the States which create Submissionof the requestandsubsequentprocedure
them with powers, the limits of which are a fundon of the (paras. 1-9)
common interests whose promotion those States entrust to
them. Besides, the World Health Organization is an inter- The Court begins by recalling that by a letter dated
national organization of a particular kind-+ "specialized 27August 1993,filed inthe Registry on 3September 1993,
agency" forming part of a system based in the Charter of the Director-General of the World Health Organization of-
the United Nations, which is designed to organize interna- ficially communicated to the Registrar a decision taken by
tional cooperation in a coherent fashion by bringing the the World Health Assembly to submit a question to the

Continued on nexpageCourt foranadvisory opinion. The questionsetforthin reso- Question arising "within the scope of the activities " of
lution WHA46.40, adopted by the Assembly on 14 May WhTO
1993, reads as follows: (paras. 18-31)

"In viewofthe health and environmental effects, would The Court observes that in order to delineate the field
the use of nuclear weapons by a State in war or other of activity or the area of competence of an international
armed conflict be abreach of itsobligations under inter- organization, one must refer to the relevant rules of the
national law includingthe WHO Constitution?" organizationand, inthe firstplace,to its constitution. From
The Court then recapitulates the various stagesof the a formal standpoint,the constituent instrumentsof interna-
proceedings. tional organizations are multilateral treaties,to which the
well-established rules of treaty interpretation apply. But
they are also treaties of a particular type; their object isto
Jurisdiction of the Court createnewsubjectsoflawendowedwitha certain autonomy,
(paras. 10-31) to which the parties entrust the task of realizing common
goals. Suchtreaties can raise specific problemsof interpre-
The Court beginsby observingthat, in viewof Article65,
paragraph 1,of its Statute and of Article 96, paragraph 2, tation owing, interalia, to their character whichis conven-
of the Charter, three conditions mustbe satisfied in order tional and at the same time institutional; thevery nature of
to found the jurisdiction of the Court when a request for the organization created, the objectives which have been
an advisory opinion is submitted to it by a specialized assigned to it by its founders and the imperatives asso-
agency: the agency requesting the opinion must be duly ciated with the effective performance of its functions, as
authorized, under the Charter, to request opinions fromthe well as its own practice, are all elements which may de-
Court; the opinion requested must be on a legal question; serve special attention when the time comes to interpret
and this question must be one arising within the scopeof these constituent treaties.
the activities of the requesting agency. According to the customary rule of interpretation as
expressed in article 31 of the 1969 Vienna Convention on
the Law of Treaties, the terms of a treaty must be inter-
Authorization of WHOto request advisory opinions preted "in their context and in the light of its object and
(paras. 11-12) purpose" and there shall be

Where WHO is concerned, the above-mentioned texts "taken into account, together withthe context:
are reflected in article 76 of that Organization's Constitu-
tion, and in paragraph 2 of-article X of the agreement of (b) any subsequentpractice in the application ofthe
10July 1948betweenthe UnitedNations and WHO, which treaty which establishes the agreement.of the parties
the Court finds leave no doubt that WHO has been duly regarding its interpretation".
authorized, in accordance with Article 96, paragraph2, of The Court has had occasion to apply this rule of interpre-
the Charter, to request advisory opinions of the Court. tation several times and will also apply it in this case.

Interpretation of the WHOConstitution
'Zegal question "
(paras. 13-17) (paras. 20-26)
The:Courtpointsoutthatthe functions attributedto WHO
The Court observes that ithas already had occasion to are listed in 22 subparagraphs (subparagraphs (a) to (v)) in
indicate that questions article 2 of its Constitution. None of these subparagraphs
expressly refersto the legality of any activity hazardousto
"framed in terms of law and rais[ing] problems of inter- health; and none of the functions of WHO is dependent
national law ... areby their very nature susceptibleof a upon the legality of the situations upon which it must act.
reply based on law ... [and] appear. ..to be questions Moreover,it is stated inthe introductory sentenceof article2
of a legalcharacter" (WesternSahara,Advisory Opinion, that the Organization dischargesits functions "in order to
I.C.J. Reports 1975,p. 18,para. 15).
It finds that the question put to the Court by the World achieve its objective". The objective of the Organization
is dei'lned in article 1 as being "the attainment by all
Health Assembly does in fact constitute a legal question, peoples of the highest possible level of health".
as in orderto rule on the question submittedto it the Court Also referring to the preamble to the Constitution, the
must identify the obligations of States under the rules of Court concludes that, interpreted in accordance with their
law invoked, and assess whetherthe behaviour in question ordinary meaning, in their context and in the light of the
conformsto those obligations,thus giving an answerto the object and purpose of the WHO Constitution, as well as of
question posed based on law. the practice followed by the Organization, the provisions
of its article 2 may be read as authorizingthe Organization
The fact that this question also has political aspects,as, to deal with the effects on health of the use of nuclear
in the nature of things, is the case with so many questions weapons, or of any other hazardous activity, and to take
which arisein international life,does not sufficeto deprive preventive measures aimed at protecting the health of
it of its character as a "legal question" and to "deprive the populations in the event of such weapons being used or
Court of a competence expressly conferred on it byits Stat- such activities engaged in.
ute". Nor arethe political natureof the motives which may
be said to have inspired the request or the political impli- It goes on to observe that the question put to the Court
cations that the opinion given might haveof relevance in in the present case relates, however, not to the effects of
the establishment of the Court's jurisdiction to give such the use of nuclear weapons on health,but to the legality of
an opinion. the use of such weapons in view of their health and envi-ronrrtentuleffects. And the Court points out t!?at,whatever If, according to the rules on which that system is based,
those effects might be, the competence of WHO to deal WHO has, by virtue of Article 57 of the Charter, "wide
with them is not dependent on the legality of the acts that international responsibilities", those responsibilities are
caused them. Accordingly, it does not seem to the Court necessarily restricted to the sphere of public "health" and
that the provisions of article 2 of the WHO Constitution, cannot encroach on the responsibilities ofother parts of the
interpreted in accordance with the criteria referred to United Nations system. And there is no doubt that ques-
above, can be understooclas conferring upon the Organi- tions concerning the use of force, the regulation of arma-
zation a competence to address the legality of the use of ments and disarmament are within the competence of the
nuclear weapons, and thus in turn a competerlceto ask the United Nations and lie outside that of the specialized
Court about that. agencies.

I11the view of the Court, none of the func1:ionsreferred For all these reasons, the Court considers that the ques-
to in the resolution by which the Court has been seised of tion raised in the request for an advisory opinion submitted
this request for an opiniorlhas a sufficient corinectionwith to it by WHO does not arise "within the scope of [the]
the question before it for that question to be capable of activities" of that Organization as defined by its Consti-
being consideredas arising "within thescopeof [the]activi- tution.
ties" of WHO. The causes of the deterioration of human
health are numerous and varied; and the legal or illegal
character of thcse causes is essentially immaterial to the WHO'Spractice
measures which WHO must in any case take in an attempt (para. 27)
to remedytheir effects.In particular,the legalityor illegality
of the use of nuclear weilpons in no way determines the A consideration of the practice of WHO bears out
specific measures, regarding health or otherwise (studies, these conclusions. None of the reports and resolutions
plans, procedures, etc.), which could be necesary in order referredto inthe preambleto World HealthAssemblyreso-
to scekto prcventor cure someof their effects.'Thereference lution WHA46.40, nor resolution WHA46.40 itself, could
in the question put to the Court to the health andenviron- be taken to express, or to amount on its own to, a practice
mer~taleffects, which according to WHO the use of a establishing an agreement between the members of the
Organization to interpret its Constitution as empowering it
nuc'learweapon will always occasion, does not make the to address the question of the legality of the use of nuclear
question one that falls within WHO'Sfunctions. weapons, nor can, in the view of the Court, such a practice
The Court goes on to point out that international organi- be inferred from isolated passages of certain resolutions
zations are subjects of international law which do not, of the World Health Assembly cited during the present
unlike States, possess a general competence. International proceedings.
organizations are governed by the "principle of special-
ity", that is to say, they are invested by the States which The Court further considers that the insertion.of the
create them with powers, t.helimits of which are a function words "including the WHO Constitution" in the question
of the common interests whose promotion those States put to the Court does not change the fact that WHO is not
entrust to them. empowered to seek an opinion on the interpretation of its
Constitution in relation to matters outside the scope of its
The powers conferred on international organizations are functions.
nonnally the subject of an express statement in their con-
stitu.entinstruments. Nevertheless, the necessi.tiesof inter- Other argunrents
national life may point to the need for organizations, in (paras. 29-30)
order to achieve their objectives, to possess subsidiary
powers which are not expressly provided for in the basic The Court finally considered that other arguments put
instruments that govern their activities.Itis generally ac- forward in the proceedings to found the jurisdiction of the
cepted that international organizations can exercise such Court--concerning the way in which World HealthAssem-
powers, known as "implied" powers. bly resolution WHA46.40 had been adopted and concern-
The Court is of the opinion, however, that to ascribe to ing the reference to that resolution in General Assembly
WHO the competence to address the legality of the use of resolution 49/75 K-did not affect the conclusions reached
nuclear weapons-even in view of their health and envi-
ronmental effects-would betantamount to disregarding by the Court concerning the competence of WHO to re-
the principle of speciality;,for such competence could not quest an opinion on the question raised.
be deemed a necessary in~plicationof the Constitution of Having arrived at the view that the request for an advi-
the Organization in the light of the purposes assigned to it sory opinion submitted by WHO does not relate to a ques-
tion which arises "within the scope of [the] activities" of
by i-tsmember States. that Organizationin accordancewithArticle 96, paragraph2,
WHO is, moreover, an international orgar~izationof a of the Charter, the Court finds that an essential condition
particular kind. As indicated in the preamble and con- of founding itsjurisdiction in the present case is absent and
firmed by article 69 of its Constitution, "the Organization that it cannot, accordingly, give the opinion requested.
shall be brought into relation with the Uniteti Nations as
one of the specialized agencies referred to in Article 57 of The final paragraph reads as follows:
the Charter of the United Nations". Asits Articles 57, 58
and 63 demonstrate, the Charter laid the basis of a "sys- "32. For these reasons,
tem" designed to organize international cooperation in a THE COURT,
coherent fashion by bringing the United Nations, invested i3yeleven votes to three,
with powers of general scope, into relationship with vari- Finds that it is not able to give the advisory opinion
ous autonomous and complementary organ:izations, in- which was requested of itunder World Health Assembly
vested with sectorial powers. resolution WHA46.40 dated 14May 1993. IN FAVOUR: President Bedjaoui; Vice-President He also pointed out that advisory opinions had been
Schwebel; Judges Oda,Guillaume, Ranjeva,Herczegh, requested by specialized agencies in three previous cases
Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins; in the historyofthe Court, but strictly in orderto solve one
AGAINST:Judges Shahabuddeen, Weeramantry, or more legal questions arising within the scope of their
Koroma. " activities. This precedenthasnot been followed inthepres-
ent case.
DeclarationofJudge Ranjeva Judge Oda points out that the requestof WHO was
drafted without there being any real agreement amontghe
Judge Ranjeva voted in favourof the decision of the delegatesin the World Health Assembly and,inparticular,
Courtas he considers thatit accords with the relevant law. that it was brought to the Court contraryto the repeated
Hewould none thelesshave preferred the Courttobemore admonitions ofthe Legal Counselof WHO,who contended
explicit with respectto the problem ofits advisory juris- that the Organization was not competent to bring this
diction,by stressing the factthat the structureof the ques- matter to the Court under Article96 (2)of the Charterof
tion put bythe World Health Assembly hadnot been such
as to enable itto exercisethejurisdiction thatit did,in any the United Nations.
case, possess.
Dissenting opinionofJudge Shahabuddeen
Thc:main reason for Judge Shahabuddeen's dissenits
Declaration of Judge Ferrari Bravo
Judge Ferrari Bravo regrets that the Court should have that, in his respectful view, the Court has mistakenthe
arbitrarily dividedintotwo categoriesthe long line of Gen- meaning of WHO'Squestion. Contraryto the Court's im-
eral Assembly resolutions that deal with nuclear weapons. pression, WHOis not asking whether the useof nuclear
Those resolutions are fundamental. Thisisthe caseofreso- weapons by oneof its members is lawful under interna-
lution 1(I) of 24 January 1946,which clearly pointsto the tional lawas a general matter;a more reasonable interpre-
tation of the question is that WHOis asking whether such
existence of a truly solemn undertakingto eliminate all use would be a breach of a member's obligations under
forms of nuclear weapons, whose presence in military international law but only inso far as it would also be a
arsenals was declared unlawful. The coldwar,which inter- breach of its obligations underthe Constitutionof WHO.
vened shortly afterwards, prevented the development of WHO would haveto deal with the health and environ-
this concept of illegality, whilegivingrise to the concept mental effectsproducedby the actionof a member evenif
of nuclear deterrence whichhasno legal value.The theory that actionis in breachof the member's obligations under
of deterrence, while it has occasioned a practice of the that Constitution; butit nevertheless remains competentfor
nuclear-weapon States and their allies, hasnot beenable WHOto concern itself withthe question whether, in pro-
to createa legalpractice servingas a basis for the incipient ducing a situation demanding action byWHO, a member
creation of an international custom. It has, moreover, may have breachedits obligations under that Constitution.
helpedto widen thegapbetween Article 2, paragraph4, of
the Charter and Article51.
The Court should have proceededto a constructive Dissenting opinionofJudge Weeramantry
analysis of the role of the General Assembly resolutions. Judge Weeramantry,in his dissenting opinion, stated
that the question asked by the World Health Organization
These have,from the outset, contributedto the formation relatedto obligations in three particular areas:
of a rule prohibiting nuclear weapons.Thetheoryof deter-
rence has arrestedthe developmentof that rule and, while (a) State obligationsin regardto health;
it has prevented theimplementationof the prohibitionof (b) Stateobligations in regardto the environment;and
nuclear weapons,it is none the less still the case that that (c) State obligations under the WHO Constitution.
"bare" prohibitionhas remained unchanged and continues
to produceits effects, at least with regardto the burdenof The question askedby WHOwas substantially different
proof, by making it more difficult for the nuclear Powers fromthe general questionof legalityof useor threatof use
to vindicate their policies within the framework of the of nuclear weapons, asked by the General Assembly.
theory of deterrence. However,the Court had treated it as a questionof general
illegality, andhad not examined State obligations in the
Separate opinionofJudge Oda three areas mentioned.
Had the Court inquiredinto these three areas,it would
Judge Oda, while being in agreement with the Court's have foundthat each of themwas intimately linked with
decision that the request should be dismissedas well as the legitimate concernsof WHOand that, in eachof these
with the reasoning leadingto that decision, nevertheless areas, Stateobligations were violatedby nuclear weapons.
wishes to make clear his viewthat the Court should have Judge Weeramantry,in his opinion, examinesthe health-
taken more note of the fact that it was asked not only related and environmentally relatedeffects of nuclear
whetherthe use of nuclearweapons would bea breach of weapons to show the diametrical contrast betweenthose
the obligations of States under international law but
whether it wouldalso be a breach of the obligations of effects and the obligations of States, both as membersof
the international community,in general,andas subscribing
Statesunder the WHO Constitution. parties to the WHO Constitution.
Judge Oda is very concerned that the Court may be JudgeWeeramantry strongly disagreed with themajority
seisedof more requestsfor advisory opinion which mayin of the Court, whohad held that WHO3 questionwas out-
essencebe unnecessary and oversimplistic.Hestressedthat sidethe scopeof its legitimate sphereof interest.Hisview,
the advisory function should only be used in caseosf con- on the other hand, was that the question askedby WHO
flict or dispute and not merelyto discuss general matters was entirelywithinits legitimateand constitutionalsphere
of international law. of interest.HOwas in fact to be commendedfor having given its attention to the question of the legality of the He recalled that WHO is the specialized agency respon-
nuclear weapon, which was the greatest man-made threat sible for the protection and the safeguarding of the health
to human health thus far devised. of all peoples at the international level and its responsibili-
WHOwas the only health authority to which the world ties include the taking of measures to prevent health prob-
would have to turn for international assistance if a country lems like those which are bound to arise following the use
werestrickenwithanuclearattack,foritsownhealthservices of nuclear weapons. In this connection, he pointed out that
would have collapsed. !vloreover, even neutral countries the Organization dealt primarily with preventive medicine.
nor involved in the dispute, which would be affectedby the Accordingly, in his view, a request to the Court seeking
radiation and other effect.sof nuclear weapons, would need legal clarification about the health and environmental ef-
to turn to WHO for assistance in such a:n eventuality. fects of the use of nuclear weapons not only is a matter
Global health was central to the question, just as global which is within the competence of the Organization but is
health was central to the concerns of WHO. one which should have led the Court to render an advisory
opinion.
:planningand prevention were essential ports of the ac-
tivities of all health authorities, and this general principle Judge Koroma recalled that the Court had previously
unquestionably applied to WHO, which needs the legal stated that it would:
information requested, for precisely this purpose. "give an opinion based on law, once it has come to the
conclusion that the questions put to it are relevant and
'TheCourt's decision was based on restricted principles have a practical and contemporary effect, and conse-
of treaty interpretation and should rather have interpreted quently ... not devoid of object and purpose".
W1-10'sConstitution in the light of its object and pur- He maintained that the request for an advisory opinion
pose-"to promote and protect the health 01'all peoples". by WHO related to an issue which not only was of direct
Judge Weeramantry disagreed with the view that United relevance to the Organization, but had practical and con-
Nations agencies conducted their affairs within a strictly temporary effect as well, and is not devoid of object and
coinpartmentalized sche~meof division of functions. He purpose.
disagreed with the Cou~t'srigid application of the "prin-
ciple of speciality" to \YHO, so as to take the question Having analysed the evidence presented by delegations
of legalityout of its area of concern, merely becausepeace including those of Japan and the Marshall Islands, and the
ant1 security fell withiin the concerns of the Security study carried out under the auspices of WHO onthe Effects
Council. of Nuclear Waron Health and HealthServices, he came
'Theeffects of nuclea~rweapons on health showed the to the conclusion that should a nuclear weapon be used
in an armed conflict the number of dead would vary from
futility of awaiting a nuclear catastrophe for INHOto move one million to one thousand million, to which the same
into action in providing medical services. The nuclear number of people injured was to be added. If a larger
weapon was, interalia, the greatest cancer-inducing instru- number of such weapons were to be used, they would have
mentality yet devised. WHO wasjust as mu.chentitled to catastrophic effects, including the destruction of transport,
corlcern itself with the legality of this agency of ill health food delivery, fuel and basic medical supplies, resulting in
as it was to inquire into the legality of a cancer-inducing possible famine and mass starvation on a global scale. He
pharmaceutical product. Depending on the answer to that concluded that nuclear weapons when used are incapable
question, it would have to adopt different strategies to deal of discriminating between civilians and non-civilians, nor
with the problem. would such weapons spare the hospitals or reservoirs of
lvloreover, this was the first case ever in which the drinking water that are indispensable for survival after a
Co.urthad refused to consider the request of'a specialized nuclear attack. He was therefore convinced that nuclear
agency of the United Nations for an advi:;ory opinion. weapons caused superfluous injury andunnecessarysuffer-
Such a refusal should only be for compelling reasons. No ing to their victims, going so faras to prevent the treatment
such reason has been shown to exist in the present case. of those wounded.

Juclge Weeramantry's view was that international law Such effects, he maintained, would be patently contrary
joined with the imperatives of global health in requiring to international law applicable in armed conflict, and in
the Court to answer WHO'Srequest. particular international humanitarian law, as well as con-
stituting a breach of the health and environmental obliga-
Dissenting opinion of Judge Koroma tions of States under international law, including the WHO
Constitution. The Court's findings that such matters were
In his dissenting opinion, Judge Koroma stated that not within the competence or scope of activities of the
the Court's finding that it lackedjurisdiction to respond to Organization were therefore incoherent and incomprehen-
the request by WHO was not only unprecedented but also sible.
inconsistent with its own jurisprudence. Judge Koroma regretted that, in order to reach those
He also disputed the Court's finding that the question findings, the Court not only had misinterpreted the ques-
posed by the Organization was outside its competence and tion-a misinterpretation which both distorted the inten-

scope of activities. To reachthat conclusion, JudgeKoroma tion of thequestioa and proved fatal for the request-but
maintained that the Court had misconstrued the question had also had to depart from itsjurisprudence according to
put by WHO as relating to the legality of the -useby a State which it would only decline to render an advisory opinion
of nuclear weapons in a.rmedconflict. In his view, that for "compelling reasons". In his view, no suchcompelling
question related to the health and environmental effects of reasons existed or had been established in this case. Hewas
nuclear weapons andto the problemof whether thoseeffects therefore left wondering whether the finding of the Court
wollld be in breach of the obligations of Stiites, a matter that it lacked jurisdiction was not the kind of solution
whiichfalls eminently within the competence and scope of resorted to in cases where the need to give a decision on
the agency's activities. the merits would involve unusual difficulty or embarrass-ment for the Court.On the other hand,the Court had always vital importancethat embraced not only a legal but a moral
responded positively to requests for advisory opinions and and humanitarian dimension as well. He concluded by
regarded its role as a form of participation in the activities recall.ingthat "medicine isone of the pillars of peace", but
of the Organization, while at the same time protecting its that it can equallybe said that health is a pillar ofeace-
judicial character. By declining to renderan opinion inthis or, as is stated in the WHO Constitution, "the health of all
case the Court had, in his view, chosen to vacate its posi- peoples is fundamental to the attainment of peace and
tive record in this sphere, particularly on an issue of such security".