NoteV&e dated20June1995fiom theEmbasy ofSweden ogether
withWrittenStatemenot theGovenunent ofSwedm EMBASSY OF SMIEDEN
5 THE HAGUE
The Embassy of Sweden presents its complimentsto
the InternationalCourt of Justice and has the
honour to submitthe followinginformation. .
The Governmentof Sweden has been invitedby the
International Courtof Justice to submit a written
statementto the Court on the question raised in a
request for an Advisory Opinion by the United
Nations GeneralAssembly (res 49/75 K) on the
legalityof the threat or use of nuclear weapons.
The Governmentof Sweden submittedon 10 June 1994
a written statement tothe InternationalCourt of
Justice as itsanswer to the Court to a similar
question raisedby the World Health Assembly.
The Governmentof Sweden wishes to refer to that
answer also in the present case.
For the sakeof conveniencethe above mentioned
statementof 10 June 1994 is annexed.
The Embassy of Sweden avails itself of this
opportunityto renew to the International Court of
Justice the assurancesof its highest
consideration.
The Hague, 20 June 1995
The InternationalCourt of Justice
THE HAGUE
Mailing iddresr:
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2504 LPKngue ZiYXLThe Harue
The Srt~rriands The SetherinndsThe Government ofSweden has been invitedby the
InternationalCourt of Justice to submita
statement on the question raised in a request for
an advisory opinion submitted by the World Health
Organizationand referred to in the International .
Court's letter dated 14 September 1993.
Also the Swedish Parliamenthas taken an interest
in the matter. On the initiative ofa number of
members, the StandingCommitteeon Foreign Affairs
of the Parliamenthas made an analysis on
InternationalLaw and Nuclear Arms. included in its
Annual Report onDisarmament.
In the Report,which was approvedby the Parliament
on 2 June 1994, the Standing Committeeconcludes.
that the Government,in its reply to the
InternationalCourt of Justice, should make it
clear that theuse of nuclear arms would not be in
accordancewith internationallaw.
The Governmentof Sweden has taken due note of the
decision of the Parliamentand hereby submitsto
the International Courtof Justice a translationof
the relevantparts of the Report asits answer to
the question put by the ICJ. UnofficialTranslation
Extracts £rom the Report of the Swedish Parliamentarv
Standina Committeeon Foreian Affairs (1993/94:W191
Nuclear Weaponsand InternationalLaw
As pointed out in several of the motions, attentionwas
drawn to the questionof the legality of the use of
nuclear weaponswhen, at its meeting inMay 1993, the
WHO decided by a substantialmajority, to request a
statementby the InternationalCourt of Justice in the
Hague as to whether theuse of nuclear weapons was in
compliancewith internationallaw. According to those
who have presented these motions, the Swedish Government
Court that the use of nuclear weapons does not complyal
with internationallaw.
The Committee has discussed the questionof nuclear
weapons and internationallaw before on several
occasions.This was the case, for example in the most
recent disarmamentreport (Report 1992/93:UU19)which
was occasi2ned by a Social Democratic motion(1992/
93:U404 (s ))which requestedi.a. that Sweden should
present a proposa1 in the United Nations under which the
use of nuclear weapons wouldbe declared illegal.
A prohibition of the use of nuclear weapons and the
closely linked question of non-first-usehave'been on
the agenda of international disarmament forums
(includingthe UN General Assembly) for a great many
years, but no progress has been possible in matters of
substance.Instead, in the nucleardisarmament process
which has finally commenced, the major nuclear weapon
powers have now decided on a method involving gradua1
reductions intheir arsenals.The Committee considersit
important that these efforts, which haveresulted in
tangible progress, receive support and encouragement. Thus, the Committee considers thft Motion U403 (S.),
Petition 18, and Motion U409 (fp ), Petition 3, have
been answered.
Inhis speech to the UnitedNations GeneralAssembly on
the occasion of the UN 40th Anniversary in 1985, the
Prime Minister, Mr Palme, raised the question of the use
of nuclear weapons. Amongst other things, he said that
"We should consider the possibility to prohibit in
international lawthe use of nuclear weapons, as part of
a process leadingto general and complete disarmament."
In an address to the Special Session of the United.
Nations General Assembly on Disarmamentheld in the
summer of 1988, the Prime Minister, Mr-Carlsson,
once again raised the idea of the prohibitionof the use
of nuclear weaponspreviouslyproposed by Sweden.
In this context, he recalledthe restrictionswhich
already apply under internationallaw as regards the use
of nuclear weapons. He also stated thatthe Swedish
Governmentconsideredthat the conclusion of an
agreementprohibitingthe use of nuclear weapons would.
Ingvar Carlssonbemphasizedthat an agreement of this
nature must be supportedby concrete disarmament
measures in every area, includingboth nuclear and
conventionalweapons.
The Committeewishes to express,once again, its support
for measures which may preventthe use of nuclear
weapons. The questionwhich the WHO posed to the
International Court of Justice inthe Hague concerns the
but it will obviously haveaalpolitical effect.w,
Like other mernberStates, Sweden has been given an
opportunityto present its views in this question of
law. The Committee presumes that the Governmentwill
take advantage of this opportunity.
The Committeenotes that, asmentioned earlier, Sweden
has unambiguouslydeclared that restrictions exist under
international lawas regardsthe use of nuclear weapons. A principlehas existed in internationallaw ever since
the turn of the century,under which belligerentsdo not
have an unrestrictedright to choose weapons or methods
of combat. In the Committee'sopinion, the use of
nuclearweapons would be restrictedby the principlesof
distinctionand proportionalityunder customary
internationallaw.
Under the principleof distinction,an attack on a
civilianpopulationor civilianproperty is prohibited.
disproportionatelyasubstantialdamage may not be
inflictedon the civilian populationor on civilian
property.
The Committeenotes thata principleof proportionality
is embodied inthe law of the UN Charter.Reprisals
which are disproportionatein comparisonwith the
provocationwhich preceded them are prohibited. It would
be difficultto regard this principleas consistentwith
the use of nuclearweapons in retaliation againstan
attack using conventional weapons.
In the Committee'sopinion,the Governmentshould
thereforemake it clear in its reply to the
InternationalCourt of Justice that the use of nuclear
weapons does not comply with internationallaw.
This should be conveyedto theGovernment.
Hence, the Committee proposes that the Parliament,in
view of Motion U423 (S.), Petition 17, and Motion U415
(s, fp, c, kds,v 1, should inform the Governmentthat
it confirmsthe Committee'sview.
The Committeenotes that, in exercising itsadvisory
functions,the International Court of Justice shall be
guided by the provisionsof its Statute in disputes in
so far as it recognizesthem to be applicable(Statute
of the International Court of Justice, Chapter IV,
Article 68). The provisions referred to appear in
Chapter II, Article 38, Sub-section1 of the Statute
which readsas follows:with internationallaw such disputes as are submittedto
it shall apply:
a. international conventions. whether general
or particular, establishingrules expressly
recognized bythe contestingstates;
b. international custom, as evidence of a
general practice accepted as law;
c. the generalprinciplesof law recognizedby
d. subject to the provisions ofArticle 59,
judicial decisionsand the teachingsof the
most highly qualifiedpublicistsof the
various nations, as subsidiarymeans for the
determinationof rules of law."
(Article 59 states that the Court's decisions are
only binding on the parties in dispute and as
regards the case which has been adjudged.)
The Committeepresumes that,in preparing its
response to the InternationalCourt, the Government
will scrupulouslyobservewhat can be adduced £rom
the above guidelinespresented inArticle 38 of the
Statute as regardswhy, in view of the medical and
environmentaleffects of these weapons, the use of
nuclear weaponsin warfare or in other forms of
armed conflict should constitutea breach of the
WHOiCharter, of a state employingsuch weapons.he
The Committee is aware that'thereare different
opinions about what may constitute a basis under
internationallaw for a decision concerningthe use
of nuclear weapons.In this context, the Committee
would like to draw the Government's attention to
certain arguments - in addition to those already
presented - which have been raised in the
internationallaw and which draw the conclusion
that the use of nuclearweapons would be a breach
of international law. These argumentsprimarily
involve what may be characterizedas general,
fundamental legal principles, recognizeb dy
civilized nations. The Hague Conventionsstipulate that the
territoriesof neutral states are
inviolable.Radioactive fallout,and other
effects of the use of nuclear weapons in
armed conflicts, do not stop at the
frontiersof neutral states, however.As a
result, in most cases the use of nuclear
weapons would mean a breach of these
conventions.
The use of weapons which cause unnecessary
sufferingmust be considered to be
prohibited.The codificationof the
prohibitionof dum-dum bulletswas
undertaken inaccordancewith this view, .for
example. The effects of radioactive
radiation asa result of the use of nuclear
weapons cause unnecessary suffering, not
merely for third parties who are directly
affected,but also future generations,for
example as a result of genetic damage.
In accordancewith an established basic
principle, expressed, for example, in the
on theaHuman Environment, there areference
impedimentsto the use of weapons which
cause extensive, long-term and serious
damage to the environment.This is expressed
in the Declaration as follows: "Man and his
environmentmust be spared the effects of
nuclear weapons."
As far back as the 17th century, Hugo
Grotius stressed that poisoning wasnot
allowed under international law. In certain
respects,the principle of the prohibition
of toxic weaponshas also been codified
(chieflyas a result of the 1925 Geneva
Convention).Certain residual products
resulting £rom the use of nuclear weapons
must undoubtedlybe regarded as toxic.
The Cornmittee assumes that these and other
considerations whichhave been raised in the
international legal debate, and also the contentof
existing comprehensiveinternationalagreements
will be taken into account.
*) Letters in brackets referto political
parties: (c) Centre Party, (fp) Liberal Party,
(kds) Christian Democratic Party, (s) Social
Democratic Partyand (v) Left Party.
Note Verbale dated 20 June 1995 from the Embassy of Sweden, together with Written Statement of the Government of Sweden