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Written Statement of the Governmentof CostaRica
- REPUBLICADE COSTA RICA
MllllSDERflACILNDIERIOBIÀSLTO
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BEFORE
THE INTERNATIONAL COURTOF JUSTICE
The Hague
The Netherlands
Request by the
WORLD HEALTH ORGANIZATION
for an Advisory Opinion on the Legal Question
regardingRIn vlew of the health and environmental eifects .-
would the use of nuclear wapons bg the state in war or
other armed confllcts be a breach of its obligatlons under
internatio.~. law including the WHO Constitutionn.
WRITTEN STATEMENT
OF THE
GOVERNMENT OF COSTA RICA
JUNE, 1994 REPUBLICADE COSTP RICA
MlNiSTDERlU-LCUITNERIOYCELSTO
1.- 1NTRODUCT1ON
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a.-By its Resolution 46.40-adopted on May14 ,1993 , the
WORLD HEALTH ORGANIZATION (WHO) has requested, pursuant
paragraph 2, article 96 OS the Charter of the United
Nations,to the "International Court of Justice" -(THE COURT)-
to give an advisory opfnlon to the question regarding:*In view
of the health and environmental effects,would the use of
nuclear weapons by a State in war or other armed conflict be a
breach of its obligations under international law inclu6lng
the WHO Constitution..".
L,.-?;=: ?or-lving this request, the Court by Its Order of
13,September,1993 bas fixed 10 dune 1994 as ine iiuae 1:~::
wit-hinwhich witten statements may by submitted to TAE COURT
by the WHO and by those of ils member States who are entitled
to appear before THE COURT, in accordance with Article
66,paragraph 2,of the Statute of THE COURT.Tbe present
statement will examine t-Ke tacts and the legal issues to whlch
thls request for an advisory opinion gives rlse.
2.-THE COURT JURISDICTION.TüE DISCRETION FOR THE COURT TO GIVE
AN ADVISORY OPINION.
As the Court stated :
"Tm-JURISDICTION OF THE COURT UNDERARTICLE 96 OF THE CHARTER
AND ARTICLE 65 OF THE STATUTE, TO GIVE ADVISORY OPINIONS ON
LEGAL QUESTIONS, ENABLES UNITED NATIONS ENTITLES TO SEEK
GUIDANCE FROM THE COURT IN ORDER TO CONDUCT TAEIR ACTIVITIES
IN ACCORDANCE WITH LAW ..."(Applicabillty of article V1,Sectlon
22,of the Convention on the Prlvileges and Imaiunities of the
United nations".Advisory Oplnion.,I .C.J. Reports 1989,p.13 )
The present request for advisory ,opinion 1s made by the
WHO pursuant to paragraph 2 of article 96 of the Charter and
article 66, paragraph 1 of the Statute, that authorizes THE
COURT to give an advlsory opinion on "any legal question at
the request of whatever body may be authorized by or in
accordance witb the Charter of the United Nations to make such
requestW.There are no avallable reasons to refuse the request
from the WHO.THE COURT bas repeatedly stated:
OF ITS STATUTE POISRDISCRETIONARY,ONLY COMPELLING REASONSRTICWOULD
JUSTIFY REFUSAL OF SUCH REPUEST"=
Presence "Lofal SoutheqAtrica InorNamlbla"(SoutbtheWestCoAfrlca)
notwlthstanding Security CouncIl Resolntlon 276
- REPUBLICA DE COSTA RICA
MlNlSTD RllAClOC(TUII0RES110
7
Inour oplnlon also thls request for an advisory opliilon,
has no compelllng reasons to refuse the request.Indeed,the
humanitartan concerns.underly1ng the request provide the Court
with strong grounds to render the requested advisory oplnlon
on a prlorlty basls.
3.-THE THREAT OR USE OF NUCLEAR WEAPONS .
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a.- THE LAW:The Charter of the United NatIons,unlvËrsal and^
regional agreements.
al'.-It 1s evident that the" threat or use of nuclear
weapons" 1s equivalent to the "threat or use of force"
prohibited by the Internatlonal Law.s It 1s no longer open to
question that the "prlnclple of non - threat'or use of force"
is an element of general internationallaw.The Internatlonal
Court of Justice recognlzlng the obligations establlshedunder
the U.N.Charter, manifested that general norm of customary
law was affirmed by the Court in Its Judgement In the
Nicaragua vs. United States case as follows:
(1970),Advisory Oplnlon ,I.C.J. Reports 1971,p16, at
p.27;"Certaln Expenses of the Unlted Natlons"(Artlc1e 17,
paragraph 2,of the Charter ),Advisory Oplnlon ,1.C.J. Reports
1962,p.151 at p.155;"Judgement of the Admlnlstrative Trlbunal
of the IL0 upon Complaints Made Againts UNESCO", Advlsory
Oplnion ,I.C.J. Reports 1956,p.77,at pp.85-86.
In relatlon the Charter of the United Nations
establlsh In Its artlcle 1 paragraph 1) that one of its
fundamental principles 1s:
"TO MAINTAIN 1NTERNAT 1ONAL PEACE AND SECURITY,AND TO THAT
END: TO TAKE EEEECTIVE COLLECTIVE MEASURESFOR THE PREVENTION
AND REMOVAL OF THREATS TO THE PEACE, AND FOR. THE SUPRESSION OF
ACTS OF AGGRESSION OR OTHER BREACHES OF THE PEACE. .."
In the light of the foregolng,the paragraf 4) of the artlcle
2) of the U.N. Charter provldedthat:
"ALL MEMBERS SHALL REFRAIN IN THEIR INTERNATIONAL RELATIONS
FROM THE THREAT OR USE OF FORCE AGAINTS THE TERRITORIAL.
INTEGRITY OR POLITICAL INDEPENDENCE OF ANY STATE OR IN ANY
OTHER MANNER INCONSISTENT WITH THE PURPOSES OF THE UNITED
NATIONS". ..
Regarding thls matter the Court establlshed that:
"THE PRINCIPLE OF NOE! USE FORCE FOR EXAMPLE,MAY THUS BE
REGARDED AS A PRINCIPLE OF INTENATIONAL LAW".iI.C.J.Reports
1986,pp.99-101)" A FURTHER CONFIRMATION OF THE VALIDITY AS CUSTOMARY
INTERNATIONAL LAW OF THE PRINCIPLE OF THE PROHIBITION OF THE
USE OF FORCE EXPRESSED IN ARTICLE 2, PARAGRAPH 4, OF THE
CHARTER OF THE UNITED NATIONS MAY BE FOUND IN THE FACT THAT IT
IS FRECUENTLY REFERRED TO IN STATEMENTS BY STATE
REPRESENTATIVES AS BEING NOT ONLY A PRINCIPLE OF CUSTOMARY
INTERNATIONAL LAW, BUT ALSO A FUNDAMENTAL OR CARDINAL
PRINCIPLE OF SUCH LAW.THE INTERNATIONAL LAW COMMISSION,IN THE
COURSE OF ITS WORK ON THE CODIFICATION OF THE LAW OF TREATIES
,EXPRESSED THE VIEW -,--THATTHE LAW OF THE CHARTER CONCERNING
THE PROHIBITION OF THE USE OF FORCE IN ITSELF CONSTITUTESA
CONSPICUOUS EXAMPLE OF A RULE IN INTERNATIONAL LAW HAVING THE
CHARACTER OF IUS COGENS..."4
aZ.- Under the auspIcious of the U.N., general agreements
covering humanity against the threat of use of force were
establlshed. This was the maln concern establlshed In the
"Convention of Genocldlo"of 1948,the" Geneva Conventions of
1949",the "Internatlonal Agreement of Clvll and Polltlcal
Rights" of 1966, and "Flrst Protocol to the Geneva Conventlons
of 1949". In thls context and In regards to the Crlme of
Genocldlo THE COURT noted that:
"THE CRIME OF GENOCIDIO CHOPS THE CONSCIOUS OF MANKIND,
RESULTS IN GREAT LOSSES TO HUMANITY AND IS CONTRARY.TO MORAL
LAW AND TO THE SPIRIT AND AIMS OF THE UNITED NATIONS."'
a3.- In the same stream of consciousness THE COURT
consldered that the obl lgatIons contalned in the Geneva
Conventlons : "DOES NOT DERIVE ONLY FROM THE CONVENTIONS
THEMSELVES, BUT FROM THE GENERAL PRINCIPLES OF HUMANITARIAN
LAW TO WHICH THE CONVENTIONS MERELY GIVE SPECIFIC
EXPRESS1ONS ."O
a4.- Basis In the fundamental rules of humanitarlan law,
establlshed in the above mentloned treat-lesand recognlzed by
THE COURT, the U.N. General Assembly has condemned the use of
nuclear weapons as an lnternatlonal crlme.1n thls context In
1961, the U.N. General Assembly adopted a "Resolutlon on
Prohlbltlon of the Use of Nuclear Weapons for war purposes".
The resolutlon declared that the use of nuclear and thermo-
nuclear weapons to be a vtolation of the U.N. Charter and
contrary to the rules of internatlonal law and the laws of
humanity.The "Declaratlon of the Afrlcan Desnuclearlzatlon"
adopted on December 3,1965 by Resolution 2033 (XX) of the U.N.
Id.
'" Case Concernlng Application of the Convention on the
Preventlon and Punishment of the Crlme of Genoclde.
Provlslonal MeasuresW.I.C.J. Reports 1993.p.348
a "Case Concerning Mllitary and Paramllltar~ Actlvlties
In and Against ~icaragua, ~udgement" . 1.C.3. keports 1986
,p.114. REPUBLICA DE COSTA RICA
MINIS~01R~OcIun~IRIUR Eculru
General Assembly requested to al1 the countries to restraln
the threat or use nuclear weapons In the Afrlcan continent.
Furthermore, in 1992 by the Resolutlon 47/53 C the U.N.
General Assembly reafflrmed the idea of the necessity to put
in force an lnternatlonal conventlon to prohlblt the threat or
use of nuclear weapons In any circumstances. Even so those
resolutlons are not positive law (hard law) they prevall as
evldence that a consensus exlsts In the International
communlty. Also, that the threat or use of nuclear weapons-
constltutes a violatl~ of internatlonal law.
a5.-At the internatlonal level there also exlsts varlous
treatles In regards to the threat or use of nuclear
weapons,that indicate the growth of internatlonal consensus of
thls matter. For Instance: " The Nuclear Test Ban Treaty",
"Treaty on the Non-Prollferation of Nuclear Weapons", "Treaty
on the Prohlhition of the Emplacement of Nuclear Weapons --and
Other Weapons of Mass Destruction on the Seabed and the Ocean
Floor and in the Suhsoll Thereof", and the" Treaty of
Prohlbltlon of Nuclear Weapons - In Latin AmerIca". The
obligatlons establlshed In these treaties articulate the
Importance to prohlblt, prevent, and not carry out any nuclear
test exploslons. The regulatlons of these treatles restraln
each country of any threat or use of nuclear weapons and
promote the recognlzatlon that the deslgn, test, fabrication,
-posseslon, and display of nuclear weapons constltute one of
the maJor threats of the rlght to llve that humanlty has
learned to cope with.
a6.) Thls nuclear threat lntensliles manklnd's danger oi
llfe because many countrles elther have or are In the process
of developlng nuclear power facllitles. In many of them small
scale accldents have ocurred, sometlmes more than once.The
chemlcal explosion and flre at the Chernobyl Nuclear Power
Plant In the former Sovlet Unlon which started In Aprll
26,1986, was the first truly catastrophlc event of this type.
The dlsaster caused the release lnto the atmosphere of far
more radioactive elements than had ever been emitted in any
prevlous nuclear accldent. Dozens died lnmediately, 135,000
people, some llvlng as far as 100 miles from the plant, had to
be evacuated fromthe area. ' As many as 33,000 people who
partlclpated In cleanlng up the disaster are now reported to
be 111 from the effects of radlatlon poisonlng. The full
health and environmental consequences of the Chernobyl
dlsaster haveyet to be ascertalned. Mortallty and sickness
rates are stlll climblng, especlaIly among chlldren. The
reports lndicate that about 1.5 mlllion people remain under
' "After Chernoby1:Llabllity for Nuclear Accldents Under
International LawW,25 Columbia Journal of Transnational Law
647 (1986)
' Id.
LD1012230190 Moscow Television Service -( translated
from Russlan )-la00 GMT, 10 December 1990 REPUBLICA DE COSTA RICA
MIN~ODE RELR~I OIOBRB YCULTO
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the direct influence of radiation, 460,000 of whom are
ch1ldren. Thus, the Chernobyl dlsaster raises the
question of how it wlll he posslble by the International law
regulations to--support the preventlon of those disasters and
to promote effective sanctions at international level.
This statement has in the first instance endeavor
established that exists various international regulations
(beginning with Article 2 of the U.N. Charter), at the level
-of conventlonal or customary lnternational law, that condemn
the threat or use of force and of nuclear weapons.
Furthermore, there exists a series of U.N. General Assembly
declarations and resolut ions that confirm the existence of
lnternatlonal consensus regardlng the idea that the threat or
use of nuclear weapons is contrary to internattonal law.
The government of the Republic of Costa Rica belleves
that the atomlc energy shall contribute to the peace, health
and prosperity of the whole worid, and not to use thls atomlc
energy in order to support military activities, as it was
established In Artlcle 2,of the Statute of the International
Atomic Enerm Agency. In Our opinion the threat or use of
nuclear weapons constitutes a violation of the U.N. Charter
and the international law regulations, inclulding the WHO
Constitution.
MINISTER FOR FOREIGN
AFFAIRES
REPUBLIC OF COSTA RICA
June 9,1994
'O LDl112142790 Moscow Tass International Service -(
-translated trom Russlan 1-0636 GMT, 11 December 1990.
Written Statement of the Government of Costa Rica