Letterdateci20June 1995fian theAmixsdor -ofbiciitogetherwith
WrittenStatemen otftheGovermneno tfIndia MOST URGENT
NO: HAG/POL/443/2/95 June 20, 1995
As you are aware, the UN General ASSembly Resolution
No...49./.75.requested the International Court of Justice for
an advisory opinion on the legality of the threat or use of
nuclear weapons .
2. 1 am enclosing with this letter a 7-pages submission
by India relating to this subject.
3 . Furthermore, 1 also enclose herewith a counter-
mernorialon the WHO resolution relating to the request for
an advisory opinion of the International Court of Justice on
the legality of nuclear weapons.
4. 1 understand that the last date for the subrnissionof
these documents is 20th June 1995 and accordingly these are
being sent to Your Excellency on a most urgent basis.
Please accept, Excellency, the assurances of my
highest consideration.
H.E. Mr. Eduardo Valencia-Ospina
Registrar
Peace Palacel Court of Justice
2517 KJ THE HAGUE T1.x question whether nuclear wraponz could be
Iaufully used in an armed oonfllct 1s reavlated .%y
international lau, and ln particular the lau of armed
conilicts and by principles of interuatlonal humanitarian &W.
Under international law. use of force is prohibited ln
international relations. The prohibition contained in Article
2(4) of the 3N Charter 1s so comprehensive and fundamental
as tc be regarded as a jus cogeos or an obligation of an
ao~olute character. On the basis of this princlple it
appears clear that any use of nuclear wespons as a measure of '
use cf force to promote national volicy objectives would be
unlawful .
Most ~rosoaent* of use af force. without denuina the
a2(4).te contcndaractthat use tof forceatioby wwcontof exercisrn Artoflan
inherent right of self-defence. uhich 1s ~reservsd and
protected under Arricle 51 of the ON Charter is
admissible. Huwever . *.e content and the circumstances
undar ahich tha right of srlf-defrnc'c enuld be rxercised is
speoifiad in the UN Charter itself and ia rrlsted s3ecifically
only to an "arrned attnok" in the first instance. The same
has to be reported soon thereafter to the Security Council
and 1s subjeot to fts right to taise appropriate stops under
Chopter VI2 upon a detcrmlnetion of the exirtenoe of a
Shraat tc peaca, brcach cf peace. or en eat cf assressiou.
It ia furthrr ssreed that eny uee of force in
involvedtnce or toan t.he, oeoriginaltionwrondfulto theusemeansof andforoa.
Y?rcover. the right ~f self-dcfence 13 t-O be rtaerdeù a3 e
Provisions: measure or a rernedy and htnce ar suon es other
means or mtazure~ became availablo, the re~ort to
sclf-dcfcnce tnrcugh use of force has to cease.
Bven though an opinion 1s expresscd that tbc roforsncs to
Inherenc rlght of self-defence ln Article 51 providcs the
basis for SGates to undertake a preventivc action in
self-derence in the iorm of self-proscrvation this. according
trr a more prcvalent view, 1s net supwrsable. According tu
the Prevaillng vlew that the qu~lificeitlon of the right of
self-defecce by the word -1nhcrent" in Article 5: serves only
to emphasise that the rlght 1s avallable to everr State
accordlng3 to ortaisthevlew, ittheis fundamentalber opurpose of theher,UN
Char-&r 1s to rescrlct tbe use of rcrcr by 3r.azes to the
UtmOSt extent necessary, keeplng in vleu Article 1i 1) and Para 7 of the Preamble of the UN Charter. ( Ste .ncPclopaadia of
PublicInterPationa Llam, Pla~ck InstitUte. 901.4CR-21,
#orth Bolland Pub. Co. , p. 272. ).
It 1s even suggested that where one State preannounces an
arned attack against anothsr State. a hardly conceivable
Practice, preventive self-defence would be lawful!
In viea of the above and given the strict limitations on
tbe non-use of force a?d the right of self -derence, it is
our viea that useof nucleer weapons in anv armed conflict as
a flrst attack would be unlawful under international law.
The question then for consideration is whether the use
of nucleer weapons would be lauful as a measure Of reprlsal
or retaliation if the same 1s used by an adversary in
. international inslauce.are alsorisaipovernedor bytalcertain s~ecificr
prircioles. First. reprisais to be valld and admissible could
onl~ be taken inaesponse fa a prior delict or wroniful sct
by a Stste. Secoad. such zeprisals must remain within
reasoneble bounds of proportionality to Zhe effect
created by the original wroabful act. However. re~risals
could not involve acts vhich are mlu~ in se such as certain
violations of human riahts, certaln breachea of the laos of
var and rules in the nature of jus CO-. that is to say
obliaatf ons of an absolute charactrr cosfliance vith
uhaoh is aot deeendent on corresponding cor~~liance by I
others but ls requiaite in al1 oircumstances unless under 1
Rinoiples of IlofraInternationaljor Las. Volume 82 Habueoe. RecueilnerDes
Cours (la67-II), Pagea 110-12B).
In other uorde, a nuelaar ueapon cosld not be
used by vay of reprisel against anotlier State If that
Stete did not commit any wrongiul eot or delict lnvolvlnp usa
of force. Second, when e Ê:ate cornits euch a wron~ful
act or dtlict, the use of force by way of reprisal
would have tc be proportionate and as such if the wrongful
act dld net involve the use of a nuclear reapon, the
reprisal could also not involve the use of a nuclsar weapon.
aThnuclear evveaponre the reprlaalongaction cannotnvoinvolve thuse of a
nuclesr weapon without violatine certain funaarwntal
~:incipler of humanitarian Iaw. In this sense, prohibition of
the use of a nuclear wcapon in an ar~ed û-~nflict is an
absolute one, cornpliance vith whicli is net dcpendtnt vil
correspondlng cornpliance by others but is a requlsite in al1
circum$tances. In any case, 1i the wroncful une of force in tbe first
instance did not lnvolve the use of nuclear weapons,
it is beyond doubt that even in rasponse by way of rttaliation
S:ates do not have tbe risht to use nuclear ueapons
because of their speclal quality as weapona of mass
destruction. It is also clear further tbat any vrongful act
not involrlng use cf force at al1 undcr international law
force with or uithoilted involvin&ptednucleur k wcapona.itla eny use of
This brlngs us to the question as t.o the lesalits' of
the use of nuclear weapons in an arme.0 conflict on the eround
that 1t 1s open as a measure O: last resort under limited
coiiditions as a satter of mllitary neces~ity. A àaslc
princi~lc of the law or armsd conQlct and
particularly the international bumanltarlan law, whioh is
contained in Article 22 of the Hague Convention 1V(1@07)
statas that "the ruht of belligerent5 to adopt rocans of
inj.-rrLng the enems is not unlimited'. Thelr right in
particular 1s conditioned bg Article 23 of the Hnaie
wenpo3s;ons the 1923ibG~neVa Protocol use ~rohibltln~ pro:ectilea,d
a~phyxiating, DO~SO~OUS and otlaer gases which
iacidzntall~ prohibits also the use or wrapons which
could cause genetic disorders and illncss uhlch 1s likcly to
prolong for a considerable amount of tirne; and by the basic
printiple enshrinel in the Declaration of 5t. Petersburg
of 1868 prohibiting aiiy veapon "vhich USÇ~~SS~Y
aggravataa the aufferings of disabled men or render tlieir
death inevitable" .
Horeover. the very ~urgose of international
Cemandcariaprotection lofto fcivilisns.indisc'Indiscrialnateattacattacks'nd
are'generally definad as thcse that are not directed at anY
zinglr mîlitary objective, those uhich esploy aethoàs or means
of combat uhich cannot bs directed at 8 specific milltary
objective and those with effeots vhich cannot be limited. ID
other uords, indiscriminate attacks are those of a nature
to etrike a mllitary object and clvilians and civilian
otjeets vlthout distinction.
In addlzlon ta the abova. the relationshio betueen
mllitary advantasc and the collateral damsae involved
ofso warfarelnes ernployadte.lity If of thee ofcollateraln odamage 1sod
excessive ln relation to the military advantase, the
attack la forblddan. Keeping the abcve conslderatlons in view, it is easv
ir.jcain arme lconfilctus1sn unlak-fil1 belcg~f conzrery wctoonthe
cc:nrenticc!ai as uell as custonu~ Internazlsnal Isu becausa
such 3 use annot distinguish betwee:; the ccrJba:anr: and
ccn-rcmiatsz s O:! cfie one hsnd alid cotid cause ex=tssire
ir.:uriei to ti e con bat an:^rnakir.~ their dsati; lue%-1t.sblc an3
=:.u?d even ausc ïidespread md long-terr. daaaec wliich in
some cases c rild ever. kesclt in ahat is called as a "aucleùr
winter ".
Howévar ail opposit- vie% uas expresse5 b~ sr>mc thar.
th* law of r or the humsnizsrfan Lawcoxld not be drese3 to
prohibit. t:he usa of nooiaar oeapons as that lau bre: up rnostlv
o~ly touI#g *h 01. and more mrginai -5W5. -MY
.cla2mctS.hat nucltxr w-apons baing LIeSD3nS 3: mOàern werfarY
aze out=idc he scope of such 6 lav. It 1s also their vit%
3yhlmpllcati. nsedid~noto ooïtlew sthe use ofae?iuclear oueûpons in
an ermeC con lict. Citing that. alaoet al1 Scsrts sre urginq
the conclusi n of a conventio!i to outlaw the use of nuclear
aespocz Ic riarmea coaflict, it is alss argiied rhst in the
absence 3: 8 y silck c03ve1ltlon tfieir US$ i~ cot. ?rohibited.
12 ?he samr ~nnection tl;z i?se c? zück x:sicitlrr aeap?cs
r2 Sirüshir and Kacas&: is a?zo ci:-,',-.-51, ccamplr of
sach legiti te use.
1; thi basis of akov~ ar&nents, It iz =c~ite:ldtd .that
l::trrnat:oce lsa dces no: pisvide f snr Ilapkzt
~rohibitj.on îgainst the use sf ni;clraz Ïz=?3na and ihe
iogalitj of sny s=ecific ilsec3tilB horevzx ne sipriaed ci.iy
in the t3t9; context of such speciflc use.
i
las do nct distinauish betw.ecn
wofare or betweon major or
soaè O? the e~riier 3pinio~s
their
sis0 did not mahe I
lnvclved in suoh a: exerciae are airrad- reaarded as
ïell-estab:: zhed in inzernatlonsl lsu. Era~pies 3: ~his kind
of elrrrcisa are m.3r.y and by sw of illur~r~ric.fi the 1282 Dr
the Lev sf the Sea. va:inuz. beclaretio:ls and
ns ln Wsrld War 1 le3 to Che aegufia5lon 9," the
orilp hig!llight the iffi?urtsn:r Of i'omplying
a!d do not mske 1eg;nl vhac is ctheruisc?
t~ cuild t.iern and those who
continue tu de'felo? eveii
supericrit?
hunacity in the
and saner u3Y 7.0
ooly are sucn
i
Uisarns;pcli mtrst br glve~; prinrit~ and har tc
tske >re=ed nce over deterrec-e.
The csb-sideration cf sürstiar. of legsiits :f use ~>fnualear weapcnl is incomplete vithout conslderatlon of the
manufaatura, production Md atoclrpilina of nuclear veapons.
Sinoa the production and manufacture of nuclear weawns
can only ba uith the objective of their use, it must follov
that if the usa of such ueavous itself is illegal unCer
1nt.c-nation21 leu, then thelr ~roductioa anc msnufacture
cannot under any circumstances be considered as
uesponsed. would constftutee manuasca zhreat andof theirlingeventuslnucluse.
In this comection. referuice may be made to the
Convçntlons on Biolosical Weapons and on Chernical Weapons
uhlch re~ognlsing the ~eed to axclude cornplrtely the
posslbllty of the use of suob ueapons. prohibit States
m-r+(re te deve103. produce, stockpile of otheruise
acquire or retain the ~ronloitea WCUWUJ. TL-;+
Conventiolis clearly recomise and provide .t.>iat.the vnly
effective war to prevsnt ünder any circumstances the use of
a prohiblted weapon is tn ensure that. no Stcite
uesponske~. Accordingly.tion vherer Statesactuare inor posseaslon sucoi 1
chenlcal or bioloaical ueapons the^ azrr reqcired to
dlsrnantie or dts5roy =hem under an elaborata procedure
speclfied cherein ui%h buil t-in saf rguards of
laterna',i,?nal inspection. The need far these Conventions vas
felt because a number of States hed made
declaratlons/reservition: to the 1925 Cenrva Protocsl co the
effçct tkaf chey coüld use, the prohibitrd gasts. poisos3
etc ln case they W C sirbjeotad to ar. stzsck by such
veapons .
The Cliernical Wcapo~~s Convention and the
Eiological Ueapons Ccnve~tion hv prohlblt.in& the
cirçumstances manupreclude ethe:r, of usa avenporiY undvay an~f
retaliation in cases whefc they have been ustd by one j
2arty to 3 conZlict. I
4
Thus the ure of nuclear weapcns vhich 1% i
atherwise ccntrary to Inf,ernat.ional law coula only be
ef'fectively prevented by eilminating completely their I
pradu?ticn, rnanufac$ure and by ensuring the bismsntling of !
existfng nuclear weapens. i
The production of wea~ons whlch have the anpacitr, to
destroy al1 mankind can:iot ln any manne: be cocsidered tc be
Justified or perrnit%ed under lntercational law.nuclear wespons a3 illeasl or unlauful would be a greater
deterrent agalnat anr irrasponeible use than treating such
a use as legal; and further where such illtgal use is still
resorted te, the international oommunitv uould et least have
et its disposal the righ: to aondemn the user and demand
cessation of the wrongful act and attach sucli othcr lcgbl
responsibility. as are prescribed in the lav of state
111 view of the sbove, it is subrnitted that tne threat
or use 3f nuîlear wespons In any ~Lrcuisstanae, whethèr 83
a meers or method of usrfare or otherwise, is illegai or
unlawZul ünder lnternationsl law.
Letter dated 20 June 1995 from the Ambassador of India, together with Written Statement of the Government of India