Written Statement of the Government of the Russian Federation

Written Statement of the Covernmentof the RussianFederation Considerations of the Russian Federation in conneetionwith the request of the World
Health Organization to the InternationCourt ofJustice concerning auclear weapons

The request of the World Heaith Organization to the International Coun of
Justice concerning an advisory opinion on the question whether the use of nuclear
weapons by a State in war or other armed conflict would be a breach of its obligation

under international lawincludingthe WHO Constitutioncreates a whole cornplexof legal
problems that in their totalitygristo doubtsas to whether the step takby the WHO

isweii founded.
Hereafter foiiow considerations of the Russian Federation grouped in

paragraphs.
1.Though asa UN specializedagencythe WHO bas a nght to request advisory
opinions of the International Court of Justthisrightisgranted to it onlinregard to

the legal questions,arisiwithinthe scopeof itscornpetence(Article96,paragraph 2 of
the UN Charter, Articl76of the Constitutionof the WHO and ArticlX. paragraph 2 of

the Agreement benveenthe UN and the WHO).
in the WHO Constitution, which incidentally was adopted after the

appearance of nuclear weapons, among the provisions dealing with the principles,
purposes and functions of the WHO and thus determining the framework of its
competence there is none that would give theWHO grounds to tackle the question of

legitimacy or non-legitimacyof the use of nuclear weaponsor to submit this question to
the LnternationalCourt of Justice.

Almost 50 years of international practice and relevant international
agreements showthat it ithe competenceof politicalinternational fora which is evolved-
in the givenaswell asin other questions concerning nuclear weapons,first of all that of

the UN and someregional aswellas bilateral mechanisms.
Hence the World Health Organisation having addressed the international

Court of Justice acteddtrn vires and the International Court of Justice would not be
empowered to consider bom j&e the request of the WHO on its ments sincethe actions

of the international organizarion undenaken in breach of iü powers cannot create legal
consequences for achievement of which such actions were directed(ex injuriajusnon
oritur).

2. At the same tirne, irrespective of what opinion the international Court of
Justice might come to with regard to the competence of the WHO to address the Court

with the above mentioned request, the Couisnot bound to give an answer of substance
in the form of an advisory opinion. Artic65 paragraph 1 of the Statute of the Court
reads that the Court "maygive"suchan opinionwhichmeans that it may alsonot do that.

One of the predetermining reasons for a Court's decision notodeliveran
advisory opinionon the question submittedbythe WHO isthe prevalence ithisquestion

of political component,whicinessencemakes the questionvoid ofa legal charaaer, andin accordance with Article 96 of the UN Charter and Article 65 of the Statute of the

Court onlylegalquestions can bethe subjectof an advisoryopinion.
Inherent political character of the problem is built in the very nature and

purposeof nuclear weapons,whichhavenever beenusedin the numerous armed conf.ics
of the post-war period, i.e. from the moment when the UN Charter and Statute of the
International Court of Justicecameinto force.

Itfollowsthat nuclear weapons are considered -and it isconfirmed by inter-
state acts and official doctrinesand statements of the sta-enot so much as a means of
armed stmggle in a war but as a factor of deterrence of war, particularly of a global

conflictand as suchunW<e otherweaponsfuifiiia politicalfunction in the modem world.
3. Putting aside the above consideratioru,whichfrom the legal pointof view
deligitimizethe questionsubmittedby the WHO as a subjea for an advisoryopinion of

the International Court of Justice, one cannot but see that in its essencethe question of
legitimacyof the useof nuclearweaponsdoesnot existin isolationbut in a wholecomplex
of other questionsconcerningtheseweapons.

Positive international law in force accepts the fact of existence of nuclear
weapons.There is a wide range of international noms aimed at non-proliferation, non-

deployment, limitation, reduction of nuclear weapons,prevention of their testing and
other forms of control of nuclear weapons. There is a large number of effectively
functioning international instmments both multiiateral and biiateral dealing with this

subject,includingwell-knok bilateral agreementson the prevention of nuclear war. The
question of legitimacyor non-legitimacyof the use of nuclear weaponsas a whole is not
regulated byinternational law.As shownbynumerousreservationsof statesparties to the

Additional Protoc011to the Geneva Conventionsfor the Protection of Victirnsof War of
1949the same should be said with regard tothe sphereof laws and customsof war and
international humanitanan law.

Moscow,

June 7,1994