NoteVerbal.daie20June1995hm theEmbassyofNew &alan4
togetherwithWritStaternotftheGovermeniofNewZealand The Embassy of New Zealand presents its compliments
to the International Court of Justice in The Hague
and, with reference to the decision of the United
Nations General Assembly, recorded in its resolution
49/75K, to seek an advisory opinion from the Court on
the question: "1s the threat of nuclear weapons in
any circumstance permitted under international law?",
has the honour to refer to the Order of the Court
dated 1 February 1995 inviting States entitled to
appear before the Court to furnish information on the
question in the fom of written statements by 30 June
1995 in accordance with P.rticle 66, paragraph 2 oz
ine Statute of the Court.
Pursuant to this Oraer, the Government of New Zealand
hereby su~mitç the attacned zritten s'Latementon the
quesiion.
The Zmbassy of New Zealend takes this opportunity to
renev to fhe Internztional Court of Justice the
essurances of its hignest consideration.
TEX EMaASSY OF NZbiZSÀLP.ND
The Hague
20 June 1995 STATEMENT BY THEGOVERNMENTOFNEWZEALAND
1. By resolution of 15 December 1994,' the United Nations General Assernblyhas
requested an advisoryopinion fromtheInternationalCourtof Justicepursuant Article
96 of the Charter of the UnitedNationson the question: Is the threat or use of nuclear
weapons in any circurnstancepenninedunderinternationallaw?
2. ïhis questionwas subrnined to the Coirrton 19 December 1994. States entitledto
appear before the Court and the UnitedNationshave beeninvitedbyrder of the Court
of 1Febniary 1993 to ''finish information"on the question in the form of ~rinen
statements by 20 June 1995inaccordancewith Article 66,paragraph2 of the Statuteof
the
3. The request by the United NationsGeneralAssembly follows anearlier requestof
the World Health Assembly, by resolutionof 14May 1993, for an advisory opinion
from the Coun on a similar but not identicalquestion. NewZealand submined a bnef
unnen statement inrespect ofthatquestion on8June 1994.
4. New Zealand now wishes to fumish information to the Coun with regard tothe
question presented in the request by the United Nations General Assembly. This
statement furnishes informationonNewZealand's positionregardingnuclear weapons,
and addresses the substantiveegalconsiderationsbeforethe Coun.
XEWZEALAI~'S POSITlOS REG.4RDLXG 3TCLEA.RWEAPONS
5. Although New Zealand is distant from major sources of international tension, its
security, like that of other Stacan be affected b>-events far beyond its immediate
neighbourhood. The possession and use of weapons of mass destruction, including
nuclear weapons, have implications for al1 states irrespective of their geographical
location. The testingof nuclearweaponsin the South Pacificregionhas alsobeen, and
remains, a special concem of NewZealand; it was in response to such testing that
New Zealand and Austraiia brou-hta casea-ainstFrance before theInternationalCourt
of Justice in 1973concerningcontinuednucleartesting inthe aunosphere in theregion?
Measures to prevent proliferationof such weapons and towards nucleardisarmament
havebeen national piorities forNewZealandformore thanthirty years.
6. Central to NewZealand's approach are the objectives, shared with other States
Parties,which are setout in ArticleVIofthe Treatyon theNon-ProliferationofNuclear
Weapons (NP- adopted on 1July 1968. narnely the pursuit of negotiationsin good
UNGA Resolution49i75K.
-New Zealandia paq tothe StamtetheCounbyvhe of Anicle 93ofrheUnitedNatioChmer.
'NuclearTerü(New ZeoIondvFmre). JudgmcnLI.C.Repons 1974p.457.faith on effectivemeasuresrelating to cessationofthenucleararms race at an evly date
and to nucleardisarmament.and on a ueary on generaland completedisarmament under
strict and effective international control. New Zealahas contributed towards these
objectivesat the national,regional and global levels,forexamplethrough the enactment
of national legislation,the emblishrnent of the SouthPacific Nuclear Freezone: and
involvement in multilateraldisamarnent negotiationsand regimes, in panicular efforts
to securea comprehensivenuclear test bantreary.
7. In New Zeafand'sview;.encouragingprogresshas beenmade towards the objectives
set out irAirticleVI of theNPT during the las five years, with good prospects for
further.Dr-mess. The INF ~reaty: the START treaties6and the soon to be concluded
comprehensive test ban treaty, together witb developments in other areas of
disarmament and arms control such as the 1993Conventionon the Prohibition of the
Developrneni, Production, Stockpiling and Use of Chernical Weapons and Their
Destruction, are examplesof the results whiccan be achievedthrough the negotiating.
process.
8. The NPT is a fundamentalunderpinning of funherprogress innuclear disarmament
and arms control. Thecontinued importance ofthe Treatyis emphasised by the recent
growth in States Partiesto 178. Notably, they now include al1five declared nuclear-
weapon States as well as sorne states which wre fonnerly in possession of nuclear
weapons. The decisionby the States Partiesat theirconferencein May 1995 to extend
the Treaty indefinitelfurtherconfis its pivotai role in controlling nuclear weapons
and in nucleardismament. The conference adoptedunanimously a set of pnnciples
and objectives for nuclear non-proiiferation and disarmamentincluding the goal that
negotiationson a univeml and intemationally andeffectivelyverifiableComprehensive
Nuclear-Test-Ban Treaty be completed no later than 1996and went on to state that.
pending the entry intoforceof such a treav. the nuclear-weaponStates should exercise
the uunost restraint.
9. Since 1972New Zealandhas taken a lead, with oiherStates, in tabling a resolution
each year at the UnitedNations General Assemblycsllingfor a comprehensive test ban
treaty to be negotiated. In 1993,for the first time.andagainin 1994, the resolurion was
adopted by consensus. Acomprehensive test ban treatyis now being negotiated in the
Conferenceon Disamament, with the activepanicipationof the nuclear-weapon States.
Such a treaty will makea significant contributionto haltingthe proliferation of nuclear
weapons in al1its forms,and hence have a majorimpacton the threat or use of nuclear
weapons.
10. New Zealand strongly supports other recent multilateral steps towards nuclear
disarmament that wouldfurther back up a comprehensive nucleartest ban. Such steps
include the recent agreementby the Conferenceon Disarmamenton a mandate for an
ad hoc cornmittee to begin negotiations on a treaty banning the production of fissile
JTheSouthPacificNuclearFreeZoneTreary1985.alsoknowastheTreatyofRarotonga.
6Treaty onthEliminariooflntermediate-RanendShon-RanzeMissiles.1987.
Treay ontheRcductionandLimitationofSuaregicAnns. 1991and1993. material for nuclear weaponspurposes. Ne\\.~ealand'has also called for a negotiated
and venfiable agreementto banthe futureproductionof nuclearweapons.
11. Nuclear testingwas a majorfactor in the establishmentin 1986 ofa South Pacific
Nuclear Free Zone upon the entryinto force of the Treary of ~arotonga.' The Treaty
reflectsthe collectivewillof SouthPacific nationsto renouncethepossessionof nuclear
weapons, to ensure that nuclear weapons aie neither tested nor stationed on national
temtory in the region, and togain assurancesof non-use of nuclear weaponsfrom the
nuclear-weapon States. Together with the areascovered by the.adjacent Antarctic
~reaty'and theTreatyof Tlate~olco,t ~he SouthPacificNuclear Free Zonecontributesto
an overall nuclear weapon fie ereawhich covers approximately 200 million square
kilometresof theearth'ssurface.
12. In order to befully effective,nuclearfree zonesrequire the suppon of ail nuclear-
weapon States. Nuclear-weapon States Parties to the Protocols to the Treaty of.
Rarotonga mdertake not to useor threatento usenuclear weaponsagainstSouth Pacific
states and not to test nuclear weaponsin the region. The securityof the states in the
region. which have ail renouncednuclear weapons,will be further enhancedwhen al1
nuclear-weaponStateshaveacceptedtheseobligations.
13. In 1987, soon after the entry into force of the Treaty of Rarotonga, the
NewZealand Nuclear Free Zone,Disarmamentand hs ControlAn was enacted by
the Parliament of NewZealand. The Act creates a nuclear free zone within
NewZealand and also gives effect at the nationallevel to NewZealand'sobligations
under international disarmament and arms control treaties including the Treaty of
Rarotonga the Partial TestBan ~reaty'' and the Biological Weapons onv vent ion."
The Act makes itan offenceforNewZealand citizensor personsordinarilyresident in
NewZealand to manufacture, acquire or possess or have control over any nuclear
explosive device or aid, aber or procure any person to do so \vithinthe NewZealand
NuclearFree Zone or, if theyare senants or agentsof the Cro~n. to commitsuch acts
beyondthe Zone. Thereare furtherprohibitionsin the Act on the stationing or testing
of nuclear explosive devices in the NewZealand NuclearFree Zone, and on the entry
inroIiew Zealandintemalwaters ofnuclearpoweredshipsandnuclear weapons.
14. The Coun's jurisdiction to give advisory opinions arises from Article 65 of its
Starute. The sources of law to be applied by the Court in considering questions
submiaed to itareas set out inAnicle38(1)of theStatute,namely:
'supra,n.5.
aAntarcricTreary 1959.
9Trearyfor the Prohibitionof Nuclear Weaponsin Latin America(and AdditionalProtocols), 1967.
10TrearyBanning Nuclear WeaponTests inthe Armosphere,inOurer Spaceand Under Watcr, 1963.
1IConvention on the Prohibition of the Developrncnr. Production and Stockpiling of Bactcriological
(Biological) and Toxin Weapons andonTheir Desmiction, 1972. Internationalconventions.whethergeneralor panicular.establishing
a)
~Iesexpressly recognised bythe conrestingStates;
b) internationalcustom, as evidence of a genenl practice accepted as
law,
C) Thegeneralprinciplesof lawrecognisedbycivilisednations;
d) Subjecttothe provisionsof Article59 oftheStatute,judicialdecisions
andthe teachingsofthe mosthighlyqualifiedpublicistsofthe various
nations,assubsidiarymeansforthe determination ofrulesof law.
15. There is a considerablebody of international law which is relevant to the issue of
the threat or use of nuclear weapons. A number of treaties regulate nuclear weapons,
and in various instances possession, testing, deployment, threats or use of nuclear
weapons are expressly prohibited by them. Treaties to this end have been concluded in
rnultilate,raifora, and bilaterally between nuclear-weapon States. The nuclear-weapon
States have also given unilateral comrnitments to non-nuclear-weapon States tegarding
the use of nuclearweapons.
16. ïhere has, thus,been a progressivedevelopment of the internationallaw relating to
nuclear weapons since their inception. New Zealand regards this progressive
developrnent as reflecting an acknowledgment by al1States that nuclear weapons, like
other weapons of mass destructionopose a particular risk to hurnanity, and that a special
regime and specialnoms should apply to thern.
17. Othermore general international legal noms are also relevant to the threat or use of
nuclear weapons. even thoughthey rnap not espressly be stated to apply to them. Sorne
of these pre-date the inception of nuclear weapons. and others are subsequent to them.
This category includa international law regarding resortto force, the humanitarianlaws
of anned confiict. and environmental law. al1 of which, together with humanitarian
principles. rnap be consideredin relationto the question beforethe Court.
18. It is inevitable that requests for adviso- opinions may touch upon issues tharare at
the vanishing point of international law. Advisory opinions are, by their very nature,
seeking clarification. The formation of customary law niles ai international law has
been cornpared with the process by which paths are created over land: eventually the
weight of footsteps stamps out a senled track.
In the case of the legal regulation of
nuclear weapons. the direction of this path and the ultimate goalhave been set by a
nurnber of generally accepted rnultilateral treaties. includingthe cornerstone Treatyon
the Non-Proliferation of Nuclear U7eapons. ïhe Court has now been asked to consider
the extent of this development. In the words of Sir Garfield Barwick in his dissenting
opinion in the Nuclear TesrsCase (Ausrralia v.France):
"Itcannot be doubted that custornarylaw is subject10 growth and to accretionas
internationalopinionchangesand hardensinto law. lt shouldnot be doubted thatthe Couniscalledupontoplayitspariin thediscemrnentof whether thargro\\thhastaken
placetotherequisiteestentandthat the stretcohf custornarylawhasbeenobtained.-"
AGREEMENTSWHICHEXPRESSLYCONSTRAINNUCLEARWEAPONS
19. A large body of international law contained in arms control and disarmament
agreements expresslyconstmins nuclear weapons in various respects. This includes
prohibitionsagainstthe testing, de loyment oruse of nuclearweapons in ~ntarctica"
Larin,4menca,14the South Pacific, 75 eanh orbit,outer space, andon the moonand other
celenial bodies,I6anddeploymenton theseabed,ocean floorandsubsoilthereof beyond
the nvelve-mileiimitofnationalterritorialseas.''
20. Several of these 18strumentsexpressthe goal in their prearnblesof the elimination
of nuclear weapons. Ihe treaties establishingnuclear weapon freezones in Latin
henca and the South Pacific, together withthe NPT, expressin theirprearnblesthe
viewof the partiesastothe threatwhichnuclearweaponspresentto lifeonearth.
21. Accordingly,armsconuol and disarmarnentagreementsare importantnot only for
the specific prohibitions andlimitationstheycontain, but alsoas part of a notablebody
of developing intemational law that has as its objective comprehensivenuclear
disarmament asa steptowardsmore generalandcompletedisarmament.
3lultilateral Treaties
Treanon rhe'Von-Proliferarion ofNuciear~~ea~ons'~
22. As already noted, the Non-Proliferation Treary @'PT) is the most important
international instrumentregulating the possessionof nuclear weapons and,ipsofacro,
theirthreat or use. Supporrfor the NPT. togetherwith the regionaltreaties concluded
consistentwith ArticleVI1 (the Treaty of Rarotonga inrespectof the SouthPacificand
theTreaty of Tlatelolcoin respect of Latin Amenca). means that virtuallyal1excepta
1:h'uclearTerrs(Auzrraliv. France),Judgmeni I.C.JRepons 1974.p.253.atp.435. Sir Garfield
Bawick's dissenringpinionapplied equally rothe Judgmcnth'uclear TesNew Zealand vFrance),
Judgmen ~.CJ.Repom 1974,p.457,atp.525.
lj
1.AnrarcriTreaty ,959.
IJLatinArnericaNnuclea rreeZoneTreacy 1967.alsoknown as the TreatyTlatelolco.
16TheSouth PacifiNuclca r reeZoneTreary 1985.alsknown astheTrearyofRarotonga.
Treary on Principles overninghe ActivitieofSures inthe ExplorationandUse of OuterSpace,
lncludingtheMoon and OthfrCelestiaBodies (OutcrSpace Treary) .967;Agreement Governingthe
1:tivitiesfStateon theMoon and Other Celestialodies,979.
Treary on theRohibition ofthe Emplacement of NuclearWeapons and Other Weapons ofMass
Desmictioo nntheSeabcdand theOceanFloor and intheSubsoiTl hereof,971.
IITrearyofTlatelolco;PT;Treaty ofRarotonga.
19TreatyontheNon-Proliferati onNuclearWeapons. 1968.handful of states (otherthan the five declared nuclear-weaponStates) have underraken
not to manufactureor acquirenuclear weapons.
23. The specific obligations of the NPT are based around a number of objectives
directed overallat minimisingthedangerof nuclear war:
a) thepreventionof the spreadof nuclear ~eapons;~~
b) the assurance, throughinternational safeguards, that the peaceful nuclear
activities of states which have not developed nuclear weapons will not be
divened to makingnich~eapons;~'
c) the promotion,to the maximum exqentconsistentwith the other purposes of
the Treaty, of thepeaceful uses of nuclear energythrough cooperation and
technology~harin~;~
d) the undertakingby the panies to pursue further dismarnent negotiations in
good faith.l)
24. The NPT does not referto the threat or use of nuclear weapons. Nevertheleu, in
accordance with the United Nations General Assembly resolutions which led to the
Treaty being draw up,it embodiesa balance of mutual responsibilitiesand obligations
on the nuclearandnon-nuclear ~owen.~~
:\uclear U'eapon Free Zones
25. The development of regional nuclear weapon free zones. as confemplated by
.ArticleVI1of theNPT, conuibutesfunher to the processof globalnuclear disarmament
and the strengtheningoftheintemationalnon-proliferationregime.
26. The Treaty of ~latelolco,~~ concluded in 1967. prohibitsparties from the testing.
use. manufacture,production,acquisition,receipt, storage,installation,deploymentand
an- fom of possessionof nuclearweapons in a zone encornpassingthe Latin Arnencan
region. togetherwith certainassociatedacti~ities.'~
77. The Trearyof Rarotongaof 1985~'establishes the SouthPacificNuclearFreeZone
in which states parties to the ueav agree nor to manufactureor othenvise acquire,
possess, have control over,stationor test nuclear explosivedevices. The panies also
accept certainassociatedobligationsand agree not to durnpradioactivewastesandother
radioactive manerat seauithintheZone.
28. Both treaties are accompaniedby protocols to which the nuclear-weapon States
may become Party.Theprotocolscontain specific prohibitionsagainsf interdia, using
'"nicles 1andIl.
''Anicle 111.
--Anicles IVandV.
-'Anicle Vl.
II
UN GeneralAssernblR.esolution202(XX) of 23 Novernber1965.calledforthe conclusionof aNon-
Roiifcration Trearybasedon five principles.includingthe princi'Wetueary shouldernbodyan
25ceptablebalanceofmutualresponsibilisnd obligationsofthenuclcandnon-nuclearPowen".
16TreatyfortheProhibitioofNuclear WeaponinLatinArnerica(andAddiiionalRotocols). 1967.
27Anicle I(l)(a).
South PacificNuclearFreeZoneTreaty.1985. or threateningto use nuclear weaponsagainstpartiesto the treaties." Ail five nuclear-
weapon States have given such an undenakingin respect of parties to the Treaty of
Tlatelolco,albeit ~4th qualificationsin three cases in the event of an anack by a state
party to thetreat iy association with a nuclear-weapon tat te,^but only t\vo nuclear-
weaponStateshavethus far givensuchan undertakinginrespect of partiesto the Treaty
of Rarotonga.
Partial TresBron ~reo~y~'
29. The cornmunit). of nations has also agreed that the testing of nuclear weapons
should besubject to a panicular and muchmore restrictiveset of mles thanapplies to
conventionalweapons. Significantlegalregulationappliesinthis respect."
30. The principal aim of the Panial Test Ban Treat-.as p-oclaimed in its preamble.is
"the speedien possible achievement of an agreement on general and complete
disarmamentunder strictinternationalcontrol"so as to "put an end to the armaments
race and eliminate the incentiveto the productionand tes& of al1kinds of weapons,
includingnuclear weapons."ThePreambledeclaresthe funher aim of the threeOriginal
Parties tothe treay as "'thediscontinuanceof ail test explosionsof nuclear weapons for
al1time", and expresses their detemination to continuenegotiations to that end. The
current negotiations inthe Conferenceon Disarmamenttowards a comprehensivetest
ban are anearnest of the internationalcornmunity'sintentionsinthis respect.
51. The parties 10 the Treaty undenake not to c- out any nuclear weapon test
explosion.or any other nuclear explosion.in the atmosphere,under water, or in outer
space,j2orin any other environmentif the explosionwouldcause radioactivedebris to
be present outside the borders of the slate under \\hose jurisdiction or control the
explosioniscond~cted.~'
32. m'hilethe treaq does not specificaily prohibit underground testing of nuclear
weapons. suchtests would beunlauful ifthe explosionfrornan undergroundtest caused
radioactivedebris to spreadbeyondthe bordersof the stateconductingthetest.
28Anicle 3 of Additional Protocol II to the Latin Amencan rreaty: Anicle 1 ofIOrthe South
'9cific neaty.
Their ratifications were accompaniedby declarationsoutlining siniaiions in which they would consider
themselves no: tbe bound by the cornrnimenü of tueaty.Thus,the United Kingdom declared that
"the Govenunent of the United Kinjdom would. in the event of anyact of aggcssion by a Conmning
Partyto theTreary in which tpanywas supponed by a nuclear-weapon Stabefre tereconsider the
20tentIOwhichthey couid be regardascornmincdbythe provisionsof Additional Rotocol II."
31Treaty BanningNuclear Weapon Tesü in the Amiosphere,in OuterSpace and Under Water, 1963.
In additionto the Panial TBan Treary. bilateralageemenü resmct underground nuclearreninp by
sorne of thenuclear-weapon States (Mfa. paragraphs43 and 44). Testin: in cenain pans of the world is
also prohibited.
" AnicleI(l)(a).
" Article I(l)(b).3. The rnoraronaon nuclear testsobserved by four nuclear-xeapon States inrecent
Xears furthersupports the view that nuclear testing should no longer beregarded as an
option foranysrare."
3. Itcanbe argued that the Partiai TestBan Treaty foms thebasis of acustornq mle
of international law that would prohibit the testing of nuclear weapons in the areas
proscribed, and that such a nile would be biding on -011sures whether pq to the
treaty or not.in his dissentingopinion in the Nuclear TestsCase (Ausnalia v Fronce),
Judge Ad hocSir Garfield Barwick recognisedthis possibility:
"lt is said that there has been aprogression of general opinion arnongst the nations,
evidenced in treaty, resolution and expressiof international opinion, that the stage
has been reachedwhere the prohibitionofthe testing of nuclear weapons is nopan of
customary internationalaw...
Ithink it must be considered that islegally possible that ar sorne-stheetestingof
nuclear weapons could becorne, or could have become, prohibited . custornary
international law. Treaties, resolutionsexpressions of opinion and international
practice. mayal1 combine to produce the evidence of that customary law. The time
when such a law emerges will not necessarily be deferred untilal1nations have acceded
IOa test bantreaiyor until opinion of the natioisuniversally held in the same sense.
Customary law amongst the nations does not. in rny opinion, depend on universal
acceprance. Conventional law limited to the panies to the convention may become, in
appropriatecircumstances. customary law."'
The Aniarctic ~reary'~
5. The Antarctic Treaty provides. in Anicle 1. that Antarctica shall be used for
peaceful purposes only. An). rneasuresof a military nature. including the establishment
of milit- bases. the canying out of milit- manoeuvres. and the testingofany type of
IrOne of thesenuclear-wcaponStates.France.announcedolj June 1995thatirwouldresumea limited
prosramme of nuclear tesrinp bmeen Septenber 1995 and May 1996,prior IO the conclusion of a
comprehensivenuclear testbanoeap. TheNew Zealand Govemmenh tas condmned thisannouncement
of intention tobreak themoratoria.which nins countothe unan~mouslaqeed cal1on the nuclear-
ueapon Statesar the NPTReviewand Extension Conferencein May 1995for"utmosrresnaint" by the
nuclear-weapon Statepcndingtheentryintoforceof a ComprehensiveNuclear-Test-Trearyand cuts
across the on-goingnegotiationson that neary aswell as the wishesof counnies in the South Pacific
reoionexpressedmostcleariyinthe prohibinionsnucleartestinginthe SouthPacificNuclearFree Zone
Treary. 1985. New Zealandhas alsocondemned testingby the fifi nuclear-weaponState, China. which
hasstated. mostrecentlyat the plcnarymeetingof theConferenceon Disannammtin Genevao1 June
1995.chatiwouldabideby theComprehensiveTestBanTreatyfollowingirrenUyintoforce,and would
sloptesting. New Zealand wouregardactionsthat may undermine the negotiaton a Comprehensive
Nuclear-Test-BanTrcatyasconuaryto principlesofgood faithonwhichueay negotiationsare founded.
3 A'uclear Tests (AusirulvaFrance). Judgment, I.C.J. Reports 1974, p.252.al p.435. Sir Garfield
Banvick'sdissentingopinion appliedequallyto the Judgmentin tiuclear Ta~sMew&land v France).
Judgmen~I.C.J.Repons1974,p.457,atp.525.
M Adoptedat Washingtonin 1959. weapons. are p~hibited.~' The Treaty also prohibits an- nuclear explosions in
Antarcticaandthedisposalof radioactivewastethere.
OurerSpace 7reary3
36. The OuterSpaceTreaty is restrictiveof nuclearweaponsin twoimportantrespects.
It prohibits placingnuclear weaponsin orbit amund Earth .nsiallingthem on themoon
or any other celestialbody, or otherwise stationing nuclearweapons in outer space. It
also limits the use of the moon and other celestial bodies exclusively to peaceful
purposesand expresslyprohibits theiruse for,interdia, testingweaponsof an? kind?9
SeabedArmsConrrol~rea@'O
37. The Seabed Amis Control Treaty prohibits emplanting or emplacement on the
seabed and the ocean floor and in the subsoil thereof of any nuclear weapons, orother
weapons of rnassdestruction,as well as structures.launching installationsor any other
facilitiesspecificallydesigned for aonng, testingor using such weapons, beyondthe
outer limit of a twelvemile .'seabedzone".4' The sarne prohibitionapplies to the area
withina seabedzone,exceptin relationto the coastalStateconcemed.
Major Bilateral Treaties Behveen the United States and the former Soviet
UnionfRussia
38. The two major nuclear weapon States. the United States and Russia. have also
acknowledgedthe desirability of limiting nucleararsenals and seaponn.. b!. meansof
importantbilateralagreementswhichhave beendevelopedinthis respect.
SrraregicArmsLimirarionTalks
39. The Strategic Arms Limitation Talks (SALT) held beween 1969 and 1972
produced a series of agreements concluded in Moscow in May 1972. The rnost
important agreementin respect of lirniting the size of the nuclear arsenalsof the two
countries was the lnterim Agreement on Offensive Strategic ~issiles? which was
~ ~-
"Article I(1).
31Treary on R'ciples Coverning the Activities of Statesin the Exploration and Use of Outer Space,
lncluding the Moonand other Celestial Bodies. 1967.
19The same prohibitions appear in the Agreement Goveming the Activities of States on the Moon and
Other Celestial Bodies, 1979.
40Treaty on the Rohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass
41smiction on the Seabedand the Ocean Floor and in theSubsoil Thereof, 1971.
In accordance wirhArticle II of the treary, the zone ismeasured inaccordance withthe provisionsof the
4258Convention onthe Territorial Sea andContiguous Zone.
lnterim Agreement on Cenain Measures with Respectto the Limitation of Strategic OffeAms,e
1972.subsequently extended beyond ifs initial five-year penod and provided for furiher
negotiations toward a morecomprehensiveinstxument.
IntermediateNuclearForces~rea~"
40. The IntermediateNuclearForcesTreaty W), HZ concludedbythe United States
and the Soviet Union in December 1987, and entered into force in June 1988. It
provided forthe elimination, forthe fm time;of a wholeclass of nuclear weapons, that
is, al1 United States and Soviet land-based missiles with ranges from 500 to 5500
ki~ometres.~ The leaders of both countries publicly recognised the historical
importance ofthis treaty in the disarmamentprocess.
SfrategicArmsReductionTreaties
41. The two major nuclear powers have also taken seps to reduce their strategic
nuclear arsenals though the StrategicAnns Reduction-Treaties, START and START
11.~' STUT, signed by the UnitedStatesand the SovietUnion inJuly 1991,aimed to
reduce strategicarsenals byapproximatelyone third. Belanis, Kazakhstan U,kraine,and
the Russian Federation assumedthe obligations of the former Soviet Union under the
treaty by meansof a Protocolwhichwas signed in May 1992in Lisbon, and the Treaty
entered into forceon 5 December1994.
42. START II was concludedbenveenthe United Statesand the RussianFederation in
January 1993,to reduce the numberof Russianand UnitedStatesstrategicweaponsstill
funher. and the conditionprecedenthas now been met whichwould allowits entr):into
force.s6
43. The ThresholdTest BanTrea~ was concludedand signedby the UnitedStatesand
the Soviet Union in 197447and rarifiedwith a new verificationprotocol in 1990.The
treaty establishes a nuclear weapons testing threshold, as between the parties, by
prohibiting undergroundnuclearweapons tesrs having ayield exceeding150 kilo ton^.^^
The treaty also enjoins the partiesto minimisetheir undergroundnuclear weapons tests
and to continue negotiationstowarda cessationof ail suchtests.49
dlTreaty on the Eliminationof Intemiediate-Rangeand Simon-RangeMissiles,1987.
.4Bythe definitions containedinAnicle IIofthe MF Treaty. an "intemediate-range missile" isa ground-
launched ballistic missile (GLBMagound-launched cmise missile(GLCM)havinga rangcapability
berween 1000 and 5500km. A "shoner-ranpe missile" is a GLBM or GLCM with range capability
betwern 500 and 1000km.
15Treaty on the Reductionand Limitationofslrategic Amis, 1991and 1993.
46The enrry into forceof STARTwas conditionalon the prior mtryintoforce of START1.
41
Treary between the United States of America and the Union of SovietSocialist Republics on the
tbmitation of Undergound NuclearWeaponTests, 1974(and Protocoltherero).
49Anicle l(1).
Anicle l(2) and I(3). ThePeaceful.Vuclear fiplosions Treory
44. ThePeacefulEjuclearExplosionsTreaty,concludedand siped in 1976.'~wasalso
ratified uith a new venfication protocol in 1990. The treaty governs al1 nuclear
explosions carriedout by the partiesat locationsoutsidethe weapons testsites specified
under the ThresholdTest Ban Treary.The agreed statement accompanyingthe treaty
specifies that a *peacefulapplication" of an underground.nuclear explosion does not
includethedevelopmentaltestingof nuclear explosives.
COMMITMEN BTYSTHE h'UCLEAR-WEâPONSTATESNOT TO USE NUCLEAR
WEAPONS
45. Thefive declarednuclear-weaponStates havethemselvesplacedrestrictionson the
possiblehat or use of nuclear weaponsthrougb unilaterai commitmentsthey have
given.
46. Al1five nuclear-weapon Stateshave givenunilaterai assurances (referred to as
"negative securiv assurances") about the circumstances in which they would no!use
nuclear weapons.Reliance onnegative securityassurancesis the logicalcorollaryto the
obligationsaccepted bynon-nuclear-weaponStatesintheNPT.
47. In 1995, the United States, the United Kingdom, France and Russia have
harmonisedtheirunilateralassurancesto alargeextent." They havereafimed that they
will not use nuclearweapons against non-nuclear-weaponStates Parties to the NPT,
escept inthe caseof an invasionor an' otheranackontheir temtories, armedforcesor
other troops, theirallies, or a state to whichthey havegiven a securitycornmitment,
canied outby sucha non-nuclear-weaponStatein associationor alliancewitha nuclear-
weapon tat te."
48. China's assurance is unconditionalin thatitis notlimitedto partiesto the NPTbut
extends to al1non-nuclear-weapon States. Itsguaranteeto non-nuclear-weapon States
also applies"in al1circumstances",and ithas reaffinnedits undenaking not tobe the
first to usenuclearweaponsat an' time andunderanycircumstances.
49. Theinternationalcornrnunityhas beendiscussingformany yearsthe possibilityof
incorporaring negative security assurances inro an international instrument. Most
recently. the NPT Review and Extension Conferencein May 1995stated in the
50
Treary beween the United States of America and the Union of Soviet Socialist Reonblics
5Iderground NuclearExplosions for Peaceful Purposes, 1976(andRotocol thereto).
The five Nuclear Weapons States announced to the Conferenceon Disannament Plenary of 6 April
JI95, updatedunilatml negative securiryassurances.
In addition, in Resolution984 (1995). adopted on 11April 1995,the United Nations SccurityCouncil
recognised "the legitimate interest of non-nuclear-weapon States Parties to the Treaty on the Non-
Roliferation of Nuclear Weapons to receive assurances that the Security Council, and above al1 its
nuclear-weapon Statc permanent members. will act immediately in accordance with the relevant
provisions ofthe Charterof the United Nations, inthe eventthat suchStates are the vinim of an act of, or
object oathreat of, aggression in which nuclear weaponsare used".Declmtion of Pnnciples it adopted without a vote that further steps. which could take
the fom of an intemationally legally binding instrumenr should be considered to assure
non-nuclear-weapon States Parties to the Trac againsi the use or threat of use of
nuclear weapons. In New Zealand's view, this effon should not demct from the legal
satus that may te accorded to the present assurances given uniiaterally. Such
assurances, made in good faith,give riseto a legitimate espectation on thepart of non-
nuclear-weapon States that they willte complied \sith.
50. The Court, in its judpent in the Nuclear Tests Case (j?éwZealanà v France).
stated thatunilateral declarationby Statesmay be binding at international law:
"lt is well recognizedthatdeclarationsmade by \vayof unilateral acts.concerning legal
orfacnral situations, may have the effect of creating le-1 obligations.Declarations of
this kind may be,and ofren are, very specific. U'hen it is the intentionof the State:
making the declarationthat it should become bound by iu terms, that intention confers
on the declaration the character of a legal undenaking, the Sure king thencefonh
legally required to follow a course of conduct consistent with the declaration. An
undenaking of thiskind. ifgivenpublicly. and \cith an intenbetbound.even though
no1 made within the context of international negotiations. is binding. In these
circumscances,nothing in the nature of a quidpro q~ro.nor an? subsequentacceptance
of the declaration,nor evenany reply or reaction from other Sures, is requforthe
declaration to takeffect, since such a requirement \vould be inconsistent with the
strictly unilateral nature of the juridical act by \\.hich the pronouncementby the State
was made.
Of course, not al1unilateralacts imply obligation: but a ma)-echooseto take up a
cenain position inrelationto a panicular man\viththe intention of beingbound-the
intention is to becenained by interpretation of the act. K'hen Statesmake statements
by which their freedomof action is to be limitea.restrictive interpretatiscalled
for.....
One of the basicprinciplesgoverningthe creation and performance of legalobligations,
~~hatevertheir source. is theprinciple of good faith. Trust and confidenceare inherent
in international co-operation, in panicular in an aee when this co-operationin many
fields is becomingincreasinglyessential.Just as the ver?.ofpocrasunr seruanda in
the law of neaties is based on good faith. so also is the binding character of an
international obligationsumed by unilateral declaration. Thus interestedStates may
take cognizanceof unilateraldeclarations and place confidence inthern,and are entitied
10requirethattheobligationcreatedbe respected.""
INTEFU~ATIONAL LAW REG.4RDBGRESORT TO FORCE
51. The threat or use of nuclear weaponshas also to be considered with reference to the
general rule in Article 2(4) of the United Nations Chaner proscribing the threat use of
" Xucle~r Tau (New ZealandvFrance).Judgnent,I.C.J.Repons1974,p.457,atpp.472-473. forceagainst the temtorial integrity or political independenceofan! state. or in an!
othermanner inconsistentuith the purposesof theUnitedNations.
52. The Charter recognises only tightly prescribed exceptions to the general rule
againstthe threator use of force. ïhus,the threator use of force is la\iful if madas
pan of Security Council enforcement action under ChapterVI1of the Charter in the
eventof any threattopeace, breachof the peace or actof ag,wssion. or if force is used
inselfdefence as providedin Article5 1of the Charter.
53. Decisions by the SecurityCouncilunder ChapterVI1to take enforcement actionin
ans particular case requirethe support of nine of the fifteen Cowicil members, anare
subjectto vetoby anyofthepermanent membersof the Council. As the prirnaryorgan
of the internationalcornmunityin respectof the maintenanceof international peace and
security,it can be expected that the Secucity Councii wili alaays be concemed to
discharge its high responsibilities in full accordancewith al1applicable principles of,
internationallaw.
54. The right of self defenceis not open-ended. Under Article 51 of the Chaner. the
inherent nght of individualor collective self defence in thevent of an atmed anack
against a member of the United Nations is not impaired by the Charter "until the
Security Council has taken measures necessary to maintain international peace and
security". Memben exercising this right are required to report immediately ro the
SecurityCouncil, and the measures that they have taken do notin an) . ay affect the
authorityand responsibilityof the Security Councilunderthe Charterto take at anytime
suchaction as itdeernsnecessaryin orderto rnaintainor restoreinternationalpeace and
secun..
5. Moreover, the right of self defence cannot be esercised in isolation from other
applicablerulesandprinciplesof internationalla\\,. In particular.measures taken inself
defenceare subject.whererelevant. to the laivsofamed confiictgenerally. Theymust
for instance. be necessa? and proponionate to thedanger which they are designedto
meet:54
56. Under customaryinternationallaw,therightofself defencehas includedpre\,enti\re
rneasurestaken in anticipationof an imminent threat.and notonly upon theoccurrence
of anarmed anack. Whilethe relationshipbenveenthis cusromaryright of anticipatory
self defence and Article51 of the Chaner has not been authoriiatively established.at
customary law the right appears to have beenavailableonly in cases of imminent and
overwhelrning danger.s5 It would also be subject to the same constraints of
proponionalirj andotherapplicablenilesofthe la\vof armedconflict.
."
TheCoun has heldthattherelianceon therightof (collective)self defenceto supponrecoursetothe
threatoruseofforcein onecasewasnot laufulbecausethecanonsof necessiiyandproponionwcrey
not cornpliedwith: Miliios. and Poromilitory Acriviriesin ond ogoimr Nicorag~ov L'nireda
Storesof.4merica). Merits.ludgment.1.C.J.Repons1986.p.14.atpp.122-123.
55Thecustomary ri& of anticipatoself defenceis generallyacknowledgedas haviig been irnplicitly
recognisedin theexchangeof notesberweentheUnitedSiaiesand GBritainfollowingthe Cnroline
incidentin 1837. ThethenUnitedStatesSecretatyof State.Webster,declaredthata Stateis enritiedto
takeforciblemeasuresinselfdefence whicandemonsmtea:57. The threat or use of nuclear weaponsis also tbe considered with referenceto the
doctrine of belligerent reprisals, by which an act that cvould normally be illegal is
rendered lawful bya prior illegalactcomminedbythe stateagaim which thereprisa1is
directed where the objective of the state caqing out the reprisal is to compel a
belligerent to abandon illegitimateam of warfare." Nomithstanding the referenceto
reprisals in the GenevaConventionsof 1949;' thecontinuedapplication of this doctrine
in view of the provisions of the United Nations Charter has, again, not been
authoritatively established.
58. An internationalarbitrai award in 1928attachedthreeconditionsto the use of force
in reprisal:
a) apreviousact in violationofiniernationdlawmust have occurred;
b) an unsatisfied demand to ceasethe actionsinquestion mm have been made.
since theuse of forceis onlyjustified if absolutelynecessary;and
c) the degree of force used in reprismus not be disproportionate to the prior
illegal act?'
59. Even in the case of belligerentrepnsals, therefore, someconstraints on the useof
force would still beapplicable.
LYTERNATIOH NUA~LMANITAR LAMW~'
60. The concept that the conduct of anned hosrilities is governed by niles is weIl
recognised in internationallaw. Regardlessof whetherarmedconflict is justified under
the law conceming the reson to force?international humanitarian law applies to set
limits on howany armed conflictma- becarried out. The humanitarian laws of armed
conflict set standards for the conduct of armed hostilities with the purpose of
circumscribing the areas within which the savagery ofwar is permissible and limiting
and reducing the suffering ofindividuals. Inthe wordsof the St PetersburgDeclaration
of 186KS9 one of the earliest anemptstocodifi thisarea of custornarylaw, intemational
~ -
"necessity...instant. overu.helrning. leaving no choice of means and no moment for
deliberati...he act justified b?.the nccessity of self defence must be limited by that nccessity
and kept clcarly within it."
The Kuremburs Tribunal implicitly recognisedrhecaroline formula. and thereby the conrinued existence
of the right to anticipatory self defcncc, in observingthar:
"...prevcntivc action in foreign territov isjustified onty in case of an instant and ovenvhelming
necessity for self defence, Ieavin: nochoiceof means.and no moment for deliberation."
Quoted in Hearn, WilliamFiThe Inrernotionol Legal Regime Regularing Nuclear Deterrence and
36orfore. LX1British Yearbook of InternationalLaw 1990. 199at pp.211-213.
Oppenheimi International Lm. Vo1.l (Peace), 9thSirRoben Jennings anSir ArthurWam
J7ds). 1992,p.419 (n.12. and the works cited therein).
rnfia. paragnph 70.
JIfiaulilaa Incident Arbitrarion. PvGerrnany (1928) Repons of International Awards,l
vol. 2, p.10lZ.
JPtnr n.74. hurnanitarian law is designed to '.conciliate the necessities of \var uith the laws of
hurnanity".
61. One of the fundamental principles underlying this area of international law is the
principle of humanity. In accordance uith this principle, theuse of force that causes
suffenng not necessaryto obtain legitirnate military objectivesis barred.
62. klile many niles of internationai humanitarian law are set out in international
conventions, customan, law. remains very significant in this area international
conventions, inthis areaas others, are, however, contributingto the funher developrnent
ofcustornary law.
Application ofinternational hurnanitarian law to nuclear weapons
63. In generai. international hurnanitarian law bean on the threat or use of nuclear
weapons as it doesofother ureapons.
64. International humanitarian law has evolved to meet contemporary circumstances,
and is not limited in its application to weaponry of an earlier time. nie fundamenml
principles of this law endure: to rnitigate and circumscribe the cmelly of war for
hurnanitarian reasons. The Nuremburg Tribunal put themanerinthe following terms:
The lawof waristo be foundnot only in treaties,butinthecustomsandpraciicesof
States,which graduallyobtaineduniversalrecognition.andfromthe general principles
ofjusticeappliedby jurisu andpractisedby milita? courts. The lawisnotstatic.but
bycontinuai adaptationfollowstheneedsofa changingwor~d.'~
65. The "Martens Clause"included in the preamble of HagueConvention IV of 1907~'
pointed to the generalapplicability of international humanitarianlaw:
"Unfil a more complete code of the laws of u.ar has been issued. the High
ContractingPartiesdeem itespedientto declarethat incases not included in the
Regulationsadopted by thern.rhe inhabitantsand belligerentsrernainunderthe
protectionand the mle of principles ofthe lau.of nations, as they result from
usagesestablishedarnongstcivilised peoplesf .romthelawsof humanity,andfrom
thedictatesofpublicconscience".
66. The generai application of international humanitaran law to the use of nuclear
weapons hasalsobeenspecifically achowledged by nuclear-weapon tat tes.'^
M 22 Trial of German Major War Criminuls445 (1950).
In thecase of Military and Paramilitary
.-lctkiries in and ogairrciNicaragua IXicaravuUnited States of.4mericaMerits.Judgment 1.C.J.
Repons1986. p.14,aip.114.theCounsaidthai theobligationtorespecthe Geneva Conventio ns49
"does not deriveonly fiomtheConventionts hemselves ,ut fromtheseneralprincipleof international
61.anitarian lawtowhichthe Conveniion mserely givspecifiexpression".
rnz. n.75.
62Writerj on thesubjecihave pointedto rniliÿ-manuals on thispoint. Foexample. Hem quotes a
United Kingdom ManualofMilitary Law, asfollows: Customan Law Rules
67. The customary rules of international humanitarian law can be considered uith
referenceto a number of interrelatedpropositions.
(1)ïhe righrroadoprmeansofhjuring theenemyisnorunlimired.
68. This general principle, fmt set out in the St Petersburg ~eclaratioi of 1868,has
been reiterated in many international conventionssince. 'Thesignificance of this
principle lies in the fact that combatans are not necessarily unrestrictedin their use of
weapons even in the absenceof a specificprohibitionrelating to those weapons. This is
in contrast to the generalpresumptionof internationallaw that actionsby a state on the
internationalplane arepermined unlessthereis a ruleoflaw prohibithg tl~em.~'
12)Ir is prohibired ro use weapons or racficsthaf cause unnecessaryor aggravared
devasrarionand suffering.
69. While any armed conflict hi11inevitably cause suffenng, this suffenng must be
limited to what is necessary to achieve the legitimateaims of the resort to force in
accordancewith the Chaner of the UnitedNations. Thatis to Say, any actions in amed
conflict must be proponionate to the legitimate aims ofthe conflict. It isunlawful to
cause suffering and devastation which is in excess of that required to achieve these
legitimate aims. Application of this proposition requiresa balancingof necessis. and
humaniry.
(31 Ir is prohibired ro efecr reprisais !ha/are disproporrionarero rheir anrecedenr
provocarionor ro legirimaremilira?:objecrives.or disrespecrfiilofpersons. insriiurions
andresourcesprorecred b- rhelaas ofarmedconficl.
"There is no rule of international law dealingspecificallyH-iththe use of nuclearu,eapons. Their
use. therefore. is governed by the eenenl principles laiddoun in t...In the absence
of any rule of international law dcaling cxpressly with il. the use wbccmade of a
panicular weapon will be govemedythe ordinary rules and the question of the legalify of its
use in any panicularczsewill. therefore, involve merely the application of the recogniscd
principles of intemational lax-." Quoted in Hem. WiRliThe Inrermriom/LpgnlRegime
RegulatingNuclenrDererrenceand War/nre.LX1British Yearbookof Intemational Law 1990,
199.al p.223.
Likeu'ise. Me~owirz quotcs United Statesmilitay manuats, asfollows:
"ln addition to analogy. the legaliry of new weapons or rnethods of warfare is dncrmuied by
whcther rhe weapon's effects violate the rule against unnecessary suffering or ifs effects arc
indiscriminate IOcause disproponionate civilianinjuryor darnage to civilian abjects." Quoted
in Meyrowiu. Elliot"Prohibitionof NucleorWenpom:The Relewnce ojlnternarioml Law':
1990,at p.31.
63This general presurnption of law is derived from the"Lotus': JudgmenrNo.9,1927. P.C.I.J.
SeriesA No. 10. 70. Reprisals which are excessivein relation to provocationor whichlack a resonable
connection to legitimateobjectives areinconsistentuith internationai 131~.In addition.
reprisais must not beused against persons. institutions and resources protected bv
international humanitarian law: these include civilians and civilian populations.'
civilian objects'67the natural en~ironpent,~~the wounded. sick. shipu~ecked. and
prisonersof war, andrnedicalestablishments andpersonnel.68At lest some of these
specificprohibitionsmay be regarded as formingpan ofcustomarylaw.
(4)II is prohibiredIO useindiscriminatemethodî and meansof warfareuhich do nor
distinguishberweencombarantsandciviliam andorhernon-combaranrs.
71. Discrimination beiween combatants and those who are not directly involved in
armedconflict is a fundamentalprincipleof internationalhumanitarianlaw. Mile it is
prohibitedto actuallytargetciviliansand civilianobjects,thereis no absoluteprotection'
from collateral damage. The application ofthe pnnciple requiresan assessrnent of
xvhetherthe civiliancasualtiesare out of proponion to the legitimatemilitary advanrage
achieved and whether collaterai damage is so widespread as to amount to an
indiscriminateattack.
0) II is prohibired to use asphyxiaring.poisonous or orhergases and al1analogous
marerials
72. Theuse of poisonandpoisonedweaponshaslongbeenprohibited. The prohibition
is setout inthe 1975Geneva rotoc co bl^alsoformspan ofcustomarylaw.
(6) Merhodsand meansof war should nor cause i<,idcspreadl.ong-rermand severe
damagerothe environmenr
73. Long-standing internationalhumanitarian la\v is relevantto this proposition.70 A
specific treaty prohibition is nowconrained in Protocol 1 of 1977." Protection of the
global environment is now a major concern of the internationalcornmunity. wirh
\videsPread supporr for progressive developmentof internationaltreaty law in this
ares.'- The condemnationof the large-scale environmentaldamage w~eakedupon
b.
65Anicle 5l(6) of 1977Rotocol 1(infa. 11.87).
64Anicle 52(l) of 1977Rotocol 1.
61Anicle 55(2) of 1977Rotocol 1.
Geneva Conventions 1949(infia. n.82): Anicle 46 of the First Convention. Anicle 47 of the Second
tanvention and Anicle 13ofheThird Convention.
69For example, Anicles 19and14 of the First Ceneva Convention 1949.
70rnfia, 11.80.
Damase to the environment in panicular cases ma)., for example.not bcjustified by milirary necessiry
and be con- tothelawsofanned conflict accordingly.
71Anicles 35(3) and 55(1)of the Rotocolinfispargraphs 94 and97.
??In the1stten yean,anumber of major ueaties for the protectionof the globalenvironment have been
adopted: Vienna Convention forhe Protection of the Ozone Layer, 1985; Monucal hotocolon
Substancesthar Deplme the Ozone Layer, 1987; Basel Convention on the Conuol of TransboundaqKuwait by Iraqi forces during the "Gulf War" in 1941 \vas inpan a reflectionof this
concem. It nould be a maner for considerationby the Coun u.hetherthe avoidanceof
widespread, long-tem and severe damagero the environmeni during war could yet be
regardedas itselfa rule of customarylaw.''
(7) MerhodrandmeansofwaTfare should notviolatetheneutralip of non-parricipa~ing
States
74. There are two key aspects to thisde. Fiat, belligerents have no nght to cq on
hostilities in the temtory of a non-involvedstate. Secondly, non-panicipating states
have the nght to exclude entryof belligerentforces. Consequently neutral states have
the right to fieedomfrom harmand injuryarising from armed conflict uith whichthey
arenot involved.
InternationaI Conventions
75. ïhe main conventionsin the area ofinternationalhumanitarianlauswhichremainin
force and ought to be considered in the contex7of the threat oruse of nuclearweapons
areasfollows:
St PeiersburgDeclaration 1868"
76. The Declaration sets forth two generalprinciples which have remained thebasic
tenets of subsequent efforts in this area: that the right to injure the enemy is not
unlimited and thatmeans of warfare whichcause unnecessq sufferingare prohibited.
The preambleto theDeclarationsets outthefollo\vin~proposiiions:
"Considering that the progress of civilisation should ha~e the effecr of alleviaring as
much as possible thecalamities of war:
Tharthe only legitimate object which states should endeûvour to accomplish durine u,ar
isto weaken the milirary forces of the enemy:
That for this purpose it is sufficient to disable the greatesr possible number of men:
That the object uzouid be exceeded by the employment of arms which uselessly
aggravate thesuffering of disabled men or render their death inevitable;
~ ~ ~ ~ ~ ----- - - ~-
Movementsof HazardousWmes and their Disposal.1989; Convention on BiologicalDiversiry.1992;
UnitedNationsFrameworkConventionon ClimateChanse. 1992. AI1of theseueaties enteredinto force
-uicklyandhavewide internationalsuppon.
" The relationshipbetwem customaryinternationallaw and rrearieswas considcredby the Coun in the
casesof fiorth SeoConrinenraSl helJudgmenr.I.C.J.Repons 1969,p.: and ,\lilirory undPurumilirury
Acriviriesin und uguinsrNicuruguu(Nicaraguav Unired9ares of Arnericu). Meriu. Judgent. I.C.J.
Repons 1986, p. 14:ln the formercase, theCoun notedthat niles of cusromq internationallaw maybe
crystallised or gencratedby rreatiesand bind nates fhat never become parryto thern. achatsuch a
processcould in cenaincircumsmces rakeplaceoveronly a shon period ofrime. In the laner case,the
Coun reitemted fhat mles of CUROm~ internationallaw embodied in maries have an independmi
existence. andnoted bat instancesof inconsistentnate conduct do not affectIhe existenceof a mle of
customaryinternationallawwhercstatepmctice haï.inpenenl. been consinentwith it.
74 1868St PetersburgDeclarationRenouncingthe Use,in Tie of War.of Explosive ProjectilesUndcr
400 grammesWeight That the emplo>mentof such arms would. therefore. be contra? to the Iaws of
humani- ..."
77. The Declaration specifically prohibited the use of exploding bullets or bullets
charged with fulminaring or inflammable substances which weighed less than 400
gras.
Thevariousconvenriomadopredatthe.SecondHaguePeaceConjerenceof1907
78. ïhe First Hague PeaceConferenceheld in 1899 had adopted two conventions and
two declarations relating to the laws of armed conilict. These embodied principles
contained in the St Petersburg Declaration.
79. The Final Act of the Fim Conference proposed that a subsequent conference be
held to consider maners on which no agreement was reached. Among the 13.
conventions relating to amed conflict adopted at the Second Hague Peace Conference
held accordingly in 1907: MO may be qued to be of relevance to the question before
the Court.
80. First, Convention IV (Convention respecting the laws and customs of ur on
land)75included the follomingprovisions:
"Anicle 22 The rightof belligerentsto adopt meansof injurinzthe enemyis not
unlimited.
Anicle25. In additionto the prohibitionprovidedby special Conventionsit is
especially forbidden:
a) To employpoisonorpoisonedu-eapons ...
To kill or woundtreacherouslyindividualsbelonringto the hostilenationor
b)
army ...
e) To employ arms.projectiles.or material calculatedto 'causeunnecessary
sufferin...
Articl25 The anack or bombardment b>- \\-hatevermeans.of towns.villages,
dwellingsor building~rhichareundefendedisprohibited".
As already noted ab~ve.'~the prearnbleof Convention IV of the 1907Conference also
included (as had the equivalentconventionof 1899) the "Martens Clause". This clause
was included because thedrafterswanted to make it quite clearthat "in the absence of a
written undemking, unforeseen casesshould not be lefi to the arbitrary judgment of
rnilitarycorn mander^ 78 T"hi^^clause. or somerhing similar. has been reiterated in
subsequent conventions.
751907 Hague Conventio (V)Respecrintge Lawsand Customsof Waron Land.
76supra.paragrap65.
TIPreambleto 1907Hague ConventionV.
78Forexample,Anicles 45and63 oftheFirsGeneva Convention1949,Anicle46 and62 oftheSecond
ConventionA, nicl142 ofthenird Convention,andAnicle158 oftheFounhConvention (infron.82);
Anicle I(2)of.and thePreamblreo.respectiveh,otoco1 andRotocol II to the GeneConventions81. Secondly. Convention V: the Hague convention on Neutrality in Land ~-ar'~
declaredthatthe temton of neutralpowerswasinviolable.
GenevoProrocol on rhe L'se inR'arof CasesundBacreriologicalkVeaponsso
82. This protocol embodied pre-esisting cusfomary law on the use in war of
asphyxiaung, poisonous or other gases and of al1 analogous liquids, materials or
devices,declaring in specific ternisthat theprohibitionshallbe unive~lly acceptedas
pan of internationallaw,and extendedcoverageto theuse of bacteriologicalmethods of
warfare.
8;. Whileiihas beea argued thatthis prohibitionextendsody to weaponswhoseprime
effect is to injure'by use of gas, analogousmaterialsor bacteriologicalmethods.it has
also been argued thatthere is no basis for a distinctionbetween the physical properties.
of poison gas and radiation, miththe radiation-enhancedneutron bomb as an evident
example.
TheGenocide~onvenrion"
84. This Convention, which applies.in times of war or peace, restates exining
customarylaw relating to acts of genocide. It prohibitsa wide variety of actsbut only
where the- are commined mithintentto destroynational,ethnic, or religiousgroups.
85. Nevertheless,it has been arguedthat owingto theiruniquely devastatingeffectthe
threator useof nuclear weaponsis likely IObreachthisconvention,especiallygiventhe
likelihoodof escalation. Adherents of this view tend to claim that once the nuclear
threshold is crossed escalation is exrremely likely if not unavoidable. and that such
escalationniIl lead to the inevirableannihilationofpopulations.
The 1949GenevaConvenrions
86. The four Conventions adopted by the 1949 Geneva conference" are of broad
applicationin cases of armed conflict. TheGenevaConventions are a comprehensive
statementof international humanirarianlaw. The' havevery broad acceptanceandmay
beconsidereddeclaratoryof customaryimemationallaw.
(Mfm. n.87); Rearnble to me Convention on Prohibitionsor Restrictions on the Use of Cenain
ConventionalWeapons Which May be Deemed toBe Escessivelylnjurious or Io Have Indiscriminate
Effecu. 1981.
791907HazueConvention (V) Respectin: the RightsandDutiesofNeuval Powen and Penons inCaseof
IOron Land.
1925GenevaProtocol forthe ProhibitiontheUseinWarofAsphyxiating.PoisonousorOtherGares,
IIdof BacteriologicalMethodsof Warfare.
iinited NationsConventionon the Preventionand Punishmtfthe Crimeof Genocide, 1948.
Geneva Conventionfor theAmeliorationof the ConditionoftheWoundedand Siin ArmcdForcesin
the Field; GenevaConvention for the Ameliorationof theConditionof Wounded,Sick, and Shipmcked
Meinbersof Armed Forces at Sea; Geneva Conventionrelativeto the Treament of Risoners of War,
Geneva Conventionrelative to the Protectionof CivilianPenonsinTic of War. 87. U?iile the first threeconventionsreplacedearlier conventionson the same subject.
the founh. reiating to the protectionof civilians. dealt hith manersnot previously the
subject of a specific convention. Together the four Geneva Conventionsconfirm the
fundamental distinction betweencombatants and non-combatanü and the prohibition
against unnecessary and açgravated suffenng. Each of the conventions contains a
restaternent ofthe"Martens r lause".^^
HagueCulturnlProperry onv vent ion"
88. International humanitarianlaw has long made someprovisionfor theprotection of
cultural propertyduring arrnedconflict. 'XorldWarII demonstratedthat the existing
pro\,isions wereinadequate.Thisrealisationledto the conclusionoftheconvention.
89. Cultural property to which theConvention applies is defuied as movable ot,
immovableproperty ofgreatimportanceto the culturaiheritageofeverypeople,such as
monuments of architecture.archaeologicalsites and works of an. Buildings, such as
museums and large libraiieswhich are designed to house movableproperty, are also
covered by the definition. The Convention obligesparties to avoid actionlikely to
exposesuch property todamageastheresultof amed conflict.
90. The protections. however,are not absolute. They do not apply where cultural
prope- is given amiliw purpose. In addirion. theirnmuniryof the propertycan be
withdrawn in "exceptionalcases of unavoidablernilitarynecessi~y".~~ Thiswithdraual
of imrnunity endures only for so long as the unavoidablenecessity continues and,
whenevercircumstancespermit.advancenotice mustbegiven to the opposing party.
L'niredhorions Convention on ihe Proiiibirio~lof :\filiran. Lj.e of Envirottmenral
ilfodificarion~echnj~ues~~
91. This conventionprohibits thehostile use of environmentalmodificationtechniques
having widespread. long-lasting or severe effecis. "Environmental modification
techniques" refersto an? techniqueforchanging.throughthedeliberatemanipulationof
natural processes. the dynarnics.composition or structure of the eanh. including its
biota.lithosphere.hydrosphere.and atmosphere, orof outerspace.
t5supra,n.78.
U HazueConvention for the Roteciion of Cultural Propem inthe Eventof Amed Conflict. 1954.
83~brdAniclt 11.
16
UnitedNations Conventionon the Prohibirion of Militap or An! Other HostileUseof Environmental
Modification Technique1977.91. nie two Protocols to the Geneva Conventions are, in pan. declaratop of pre-
existing cunomary internationallawand, inpa a furtherdevelopment ofthe law.
93. The Protocolsagain restate the basic principlesthat the right to choosemethods of
warfare is not unlimited and that weapons and methods of warfare *ch cause
unnecessary sufferingor superfluousinjury areprohibited.
94. Protocol Ialsoprovides for the protectionof the environment. Jt prohibitsmethods
or means of warfarewhich are intendedor may be expected to cause widespread.long-
term and severedamageto the environment?'
95. The Protocols also contain important elaboration of the niles regarding the
protection ofcivilians. The basic ruleset out is inArticle48 of Protocol 1:
"In order to ensure respect for and protection of the civilian population and.
civilian objects,the Panies to the confiictshailat ail times distinguish between
the civilianpopulationand combatantsand betweencivilian objectsand military
objectives and accordingly shall direct their operations only against military
objectives."
96. The Protocolsset out a seriesof specificprohibitionsforthe protectionof civilians.
Acts or threatsof violence,the primary urposeof which is to spread temr amongstthe
sr
civilian po2ulation, are prohibited. Indiscriminate anacks are defined and
prohibited, and precautionary rneasures are to be taken to spare the civiljan
p~puiation.9' Attacks against civilian populations orobjects by way of reprisal are
prohibited.92 Destruction of food sources required by civilian populations is
pr~hibited,~'as is the destruction of worksor installationscontaining destkctive forces
such as dams.qkultural objectsandplaces of\vorshipare protected fromana~lr.~'
97. In consideringtheapplicationof the Protocolstothe use of nuclear weapons.itis to
be noted that two of the nuclear weapon States panicipated in the negotiations on the
basis that new rules established by the Protocols would not be applicable to nuclear
Lveapons. Thesereservationswere repeatedupon signatureof the ~~otocolsby the rwo
states concernedand by a nurnberof other states. TheProtocols therefore clearlyapply
to the use of nuclearweapons onlyinso far as they setout general principlesor nilesof
iniernationalhumanitarianiawthat codifyor representcustomaryinternationallaw.
a-
1977 ProtocolAdditionalto the GenevaConventionsof l? August1949,andrelatinptothe Protection
of Victims of internationalAnned Conflicts (Protocol 1); 1977 Protocol Additionalto the Geneva
Conventionsof 17August 1949,andrclatin?to die Rotecrionof Victims of Non-IntemationalAnned
Conflicts(ProtocolII).
n supra. n.71.
89Article51(2)ofRorocolI: Anicle Ij(7) of ProtocolII.
90Anicle 5l(4) and(5)of Rotocoi 1.
91Articles57 and58of Rorocol1.
" Anicles 51(6)and52(1)of Rotocol 1.
VIAnicle 54of Rotocol1;Anicle 14of ProtocolII.
01Anicle 56of Rotocol1;Anicle15of holocol II.
PIAnicle 52ofRotocol 1;Article16of ProtocolIl. Recent Developments
98. That international humanitarian law is continuing to develop. and retains its
potency, is demonstrated by the statutes adopted in 1993 and 1994 by the United
Xations Security Council to establish international mbunals in respect of serious
violationsof internationalhumanitarianlaw in,respectively,the or mer-~u ~nd slavia
Rwandaandneighbouringcountries.%..Thehction of thetribunalsis to cal1to account
indiiiduals responsible for such violations, which includein the case of the Former
Yugoslavia,violationsof thelawsor customsof war, specificallyincludingemployment
of poisonous weapons or other weapons calculated to cause unnecessary suffering,
wanton destruction of cities, towns or villages or devastation not justified by military
necessity, and destruction done to i97titutionsdedicated to religion, education,the arts
andsciences, andhistoricmonuments.
99. New Zealand's position on nuclear weapons is clear. NewZealand strongly
opposes the proliferation of nuclear weapons and supports measures for nuclear
disannament. It is also opposed to the testing of nuclear weapons. and is a strong
supporter of a comprehensive nuclear tea ban. which it has been calling for in the
United Nations General Assembly since 1972. These have been prionties for
NewZealandformany years.
100. As regardsthe legal quesrion. itis the casethat onlyina limited(but nevenheless
significant) number of cases do treaties prohibit in specific terms the use of whole
classes of weapons: forexample,biologicalweapons,98chernical~ea~ons,~~ expioding
bu~lets.'~a~ndcenain boobytrapsandweaponsbasedon non-detectable It
is also the case, however' that while nuclear weapons are the only "weapon of mass
destniction" not expressiy subjectto generalprohibitionbytreaty. thereis a large body
of international law, both treaty lau-and mies of custornaryinremational law, which
circurnscribesthe threat or use of nuclear weapons. Treatiesin the arms control and
disarmamentfield circurnscribethe threator use in variousrespects?and other areas of
90
*-UNSC Resolutions 827(1993) and955 (1994).
Anicle 3 of the Starute of the InternationalTribunal for the Prosecution of Penons Responsible for
Serious Violations of International Humanitarian Law Commined in the Tenitory of the Former
98gosiavia since 1991.
Convention on the Prohibition of the Development. Production and Stockpiling of Bacteriological
WBiological) and Toxin Weaponsandon 'IheirDesmiction. 1972.
Convention on the Prohibition of the Development. Production, Stockpiling and Use of Chemical
imeaponsand Their Destruction. 1993.
1868 St Petersburg Declmation Renouncingthe Use. in Tirne of War,of Explosive Projectiles Under
101grammes Weight.
Protocols I and II to the 1981 Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Mich May Be Deemedto Be Excessively lnjurious or to Have indiscriminate
Effects(also known asthe lnhumane WeaponsConvention).internationallaw,panicularly internationalhumanitari&law.circumscribeotherthreais
or uses ofnuclearweapons.andbearon thequestionbefore theCourt.
101. Moreover, international law and relevant srate practice in this area has been
steadily inneasing and developingover the years .here have been dwelopmenrsat
boththe regionalandthe globallevelsand, inNewZealand'scase,at the nationallevel
through the enacunentof legislation. Emergingprinciplesand developmentsin related
areas ofinternationallaw,suchas protectionof the environment O2 can dso bepoinred
ro. AI of thisprovidesreinforcementfor the viewthat variousnoms of international
law have ernergedin thisarea. Evenif it maynot yet bepossibleto saythat,in every
circumstance,internationalIaw proscribesthe threator use of nuclear weapons,ùiere
can belittle doubt thatthe law has been movingin that direction. In NewZealand's
viea, the sooner that point is reached, through the progressive development of
internationallaw, includingthe negotiatingprocess,the moresecure the international
cornmunitywillbe.
102
supra.para,gap73.
Note Verbale dated 20 June 1995 from the Embassy of New Zealand, together with Written Statement of the Government of New Zealand