WrittenCommentsof the Governmentof SolomonIslandsRequest by the United Nations GerieralAssembly
for an Advisory Opinion on the-Legality
of the Threat or Use of Nuclear Weapons
Further Writteii Observations Submitted
by the Government of Solomon Islands
to the International Court of Justice
Governmenrof SolIslands
70 Septernher 199s' Ccnerni AssembiylSoiomon Isiands' FuWrniicn Observaiions
NTRODUCTION
1. On 20 June 1995SoiomonIslands submittedWnuen Observations to the International
Coun of Justice pursuant to the request by the UN Generai Assembly for an Advisory
Opinion on whether the threat or use of nuclear weapons was in any circumsrances
permitted under international law. These bnef Funher Wntten Observations are now
submitted by SolomonIslands in response to the Coun's Order of 1 Februaq 1995
fixing 20 September 1995 as the time-limit within which States and organisations
having presented writtenstatements may submit wrirten comments on the other
written statements.
2. Soiomon Islands welcomes thefact that 28 members of the United Nations have
submitted Wntten Observations,refiecting the importance of the question posed'by
the Generai Assembly. Since this number includes sevenStates which did not submit
observations in the WHO request. a total of fony-two States have now submitted
wntten observations in the two requests. Of these, an ovenvhelmin; majority have
made submissionsarguing against the legality of the useof nuclear weapons in any
circumsrances.
. .
3. Solomon Islands has carefully considered al1oi rhe Written Observations submitted
in relarioCO the General.Assemoly'srequesr. Tneydo not generally raise new issues
or arzuments beyond those adaressed by Stares in their W'rittenObservations in the
WHO request. Accordingly. Solomon Islands reiers the Courr to its Further Written
Observations of20 June 1995in rhe NHO Request, wnich apply niuiaris murandis to
the issuesand ar;uinenrs raised bu proponenrsoi rheiegaliryof the use or threatened
use of nuclear weaponsin iheir writren siareinents in ihe requesr. Soloinon Islands
also rekrs the Couri and otlier States suoinitting wrirten stateinents to the Annexes
to its Written Observations in the LVHOreciiest. rïled with the Court on 20
Seprember 1994, wnicn inciude ail relevant General .Asseinbly resolutions and
documents relatin; ro scienrifis aspects of irs nr;iiineiits.
4. Inthese Furrher Lvritren0Dsen.ations SolornonIslands wishesonly to respond briefly
to selected pointsmade by rhese Srates. and reserves its righr to respond in greater
detail to these and other pointsdurin; the oral phase envisajed by the Court.
. Solomon Islands re-eiiiphasisesthre: introductory points. m, nothing ithas read
in the writrensraternenrssuoinitredin the General Assembly'srequest alrers its views
on the procedural and suOs;antiireaspects of the question asked by the General
Assernbly. oron the need for [neCOLI;t:o address the s~ibstantiveissues raised by the
question. W. consernin: ihe scope or' the question posed by the General
.Assemblyrequest itis iinporran;O empnasize [ha[:-
(a) the Coun is not being ashed to act as a legislaroror to advise on the typeof
actions the nuclear weapon States shouldor should notadopt in international General ArseinblylSoloinoo Islands'Wrirxe~bscrvalions
disarmament negotiations, but only to record that theuse or threatened use of
nuclear weapons would bea breach of international law; and
@) that the Coun is not being asked to advise on the possession of nuclear
weapons, or on the policy of dissuasion or deterrence, neither of which
Solomon Islands considers amounts to a threatened use of niiclear weapons.
6. And m, Solomon Islands reaffirms its view that the Court has never before been
so acureiy ina position to makea major contriburion to the affirmation of the rule of
law in international relations, and to uphold the necessity of the principle of non-
contradiction in the globalsystem of international law.
7. The General Assembly is clearly competent to make the request. No State has
objecred to the competence of the General Asseinbly to make the request.
8. The suggestion by certain States that General Assembly resoltition 49175Kwas
adopted by a smail number oi States' and in controversial circumstances which
reflecred itsolitical sensirivitiesis wholly irrelevant to the issue oi competence or
propriety (sec e.g. France. pp1-13; the United Kingdom, paras. 2.4-2. II). Equally
irrelevant is the implication in the view of rhe United Kingdom that the invoivement
of non-governrnental organisations in IobDyingeiiorts might in soine way taint the
~ona jides or lesitimacy of resolution 4917jK (the United Kingdom, Wntten
Observations, paras. 1.2 and 2.2-2.;). Tne resoiiition was adopted by a majonry of
the meiiibers of rhe L1nitedXations which voted on the inarter. 4s previously stated
by Solomon Islands(WHO. Fiirther Writtzn Observations. para. 2.5). its support for
the requesr. and its observationson these niarters. are driven by interest in clanfying
and confirming the rules oi inrernationallaw in relation to the useand threatened use
of nuclear weapons has ratnrr more to do with the pas[ (and current) activities of
certain nuclear weapons Statesin and around its rerrirory. The efforts of responsible
non-governmenrrilorjanisarions, includingassociations oiproiessional physicians. in
raisin; piibiic awareness and contributinj to theprocesses oi international law are to
be welcomed.
PROPRIETY
9. Only a small nl~iiibz:or'Srn;rsIiae.x\.prrssrlievieu-iliat [lieCourt shocild,for the
1
Fiance notes :ha[ on1 abou: 40% or'the United Nations' 185 inembers supported
resolution49175K; a similar statisticai analysis, which Solomon Islands does not
consider to be a particuiariy aurhoritative way of making arguments in international
law, would reveal thatonly about 3% of theUX members woiildconsider the use of
nuclear weapons to be lawiul in an- circiimstances: seinfra. para. 18. GciiernAscinbIy/SoiotnoiIslands' FurihWriiteOb&erv;<iia>ii*
hrst tirne in its history, exercise its discretion and refuse to give the Advisory
Opinion requested. An ovenvhelrning rnajonty of the 185 rnernbers of the United
Nations have either expressed a clear preference in favour of the court's giving the
Advisory Opinionor have notopposed it on groundsof proprietyor othenvise. These
include not only al1developing countries subrnitting WrittenObservations, but aiso
a significant nurnberof developedcountries (Ireland, Japan. New Zealand. Sweden).
AC least one nuclear-weapon Srate (China) has not objected to the propriety of the
Coun's givinj an opinion on the stibstance. Just seven States (Finland, France,
Gerrnany, the Netherlands,Riissia. the United Kingdorn,the United States) objected
on the grounds of propnety. Two States which objected in relation to the WHO
request (Australia and Italy)have not objected in relation to the General Assembly
request. In this context the burdenis again very rnuchon these States to satisfy the
Coun with cornpelling reasonswhy an Advisory Opinion should notbe given.
!O. SolornonIslands has aiready setout its reply to theviews of these States, indicating
why there are no such "compellin~ reasons", and itrefers to these here murais ,
murandi.r (WHO. Further Written Observations. paras. 3.3-3.27). The Court is
cornpetent to :ive and shoiild give an Opinion oii the legal qiiestion posed by the
Generai .Asseinbiy.The iollowinj paragraphs restate Solornon Islands' position.
II. The Opinion requestedis iindoubtedly a "Iegal question".' Ithas been made to the
Couri as the principaljiidicial organ of the United Xations, and itinvites theCourt
to contrioute to the eifective ii!nc;ioninj of the United Sarions systern. and in
particuiar thatoi the General.Asseinoly within that systein.The qiiescionposed by the
Genera! ,Assernblycierirly faliskvitnin rlieo~jective and iiinctioiisof the Charter of
the United Xations. whicn en~races ribroad r?.no_eoi ac~ivities relating to
international peac: aiid seci!rity.incliiair.: {lieiro_.oi'rlieiiseor threatened liseof
iorct.
12. A suostanriai niiinber oi' Uniied Xnrions nernoe: States Iiave voted in iavour oi
Rcsoiution 49/75 K requesringthe Court to sive an .Advisor! Opinion. No rnernber
oi the UN liasdenied charthe resolution was no[ validly adopted. bloreover, for the
reasons set out belou. conrrary to the assertions ~y the United States (Written
Staternent. p.6) and F:znce (LVritrenStatrrnent. pp.16-17).the request is appropnate
and will help rheCiencal Assernbiyin ils activities relatingto international peace and
securiry.
3 First. Soloinon Islands rcireratcs riie iinportancc for the United Nations General
.Assernblyto be aai,isrd O!. riiz Cotir: on [lie lesal statiis oi the Liseoi nuclear
weapons. Tiie Cotir;. ir. .c:ord?.nce wiriiits Ion: standin: and well-established
oracrics. slioiilC:ive nc Alsor Opinion on th? qiiestion posed. As Egypt has
Conditions oi .Adinission O:'a Stare (0 bleinbersnip in the United Nations. Adv.Op..
28 May 1548. LCJRtoorts 134;-1348. p. 61. I-
GeiicrnAsscinùly/Soloinon Islands' FuWriricn Obiervatir>iis
indicated, there are no compelling reasons which reqiiire the Coiirt no[ to give an
Advisory Opinion (WrittenStatement, p.5).
14. Second, the Opinion requested is of genuine imponance for the Grneral .Assemblyin
the conduct of its activities related to the use of nuclear weapons. In line with the
views expressed by Samoa (Written Statement, p.5) and Egypt (Written Statement,
p.6), Solomon Islands considers that the Coun's Opinion will, in concrete terrns,
enlijhten the General Assembly in the conduct of its activities in promoting funher
negotiationson nucleardisarmament.' Contrary to the assertion of Finland (Written
Statement, p.3, the Netherlands (Written Statement. p.?) and the United Kingdorn
(Wntten Statement, pp.19-20), the viability of existing achievements in the field of
nuclear disarmamentand non-proliferation would not be undermined by the Coun
giving an Opinion. In any event, the issiies of legaiity of threat and use and
disarmament are related but clearly distinguishable. The ascertainment of the legal
statusof theuseof nuclearweapons would ailowtheGeneral Assembly to ensure that
its activiries are carried out properly and in a rnannerwhich takesfiilly into account ..
the pnority needs of the international community.
5. Third. Solomon Islands recalls that the politicalcharacter which the qiiestion might
have does not prevenr theCourt irotii sivin: an Opinion. The qiiestion piit by the
Generai Asseinbly relates to the coiiipatibilitv oi the threat and theilse of nuclear
weapons with internationai ia~r.. The Gener~l .Ass<mbIyis rhe:eiorc inviting the
Cour; to address a legal quesrion and car;? otir a :ask clearlv within its judicial
funcrion. In this contexr. contrary to the asserrionsoi soine States (see France,
pp.19-30 and Germany, p.?). the iact thar the question has political implications is
not in itself an obs~cle to the coinpetence of the Cotir;.' lt shoiild nlso be added that
in givin; the OpinioritheCoiir; woiild no[o_oberond itsjiidicial iiinction and embark
iipon a legislariveor policy-makingcoiirse. as some Srareshave siiggested (France,
p. 19. Finiand. p. 1).
16. Fourrh. iris for the Cotir: ta aecideii a reqlies; Corail Opinion iiiltïls the conditions
oi Article96(3) oi the United KarionsCharter. Tiierz are iiocriteria other than those
set ïorrh in this provision whichshould prevenr rhe Courr iroin ;iving an Opinion.
In this respect, the United Kingdoin has misunderstoodor even misinterpreted the
practice of the Court (written Suteinent. pp.9-18). The Courr has obvious
cornpetence to give an Opinion.
17. Finally. Soloinonislaiiaspoints oiirthat illeansure:cannotbe detriiiiental to on-going
disarmainent ne:otiations (qi!ir? ri!,contrIryJ. Tiiissnoitldbe clear enoiigh from the
successiiil intlèriniteextension in a 1335 oi the 1963 NPT ar'terthe WHO and
j western Sahara. .Adv.Op.. 16 Ociobe: 1973, ICJ Reps. 1972. p.37.
See Ceriain Expensesof rhe UX. .Adv.Op.. 20 Juiy 1962, ICJ Rep. 1962. p.155.
1 , -
General Asscinbiy/Soloinon Islands' Furthcr Wrirten Oliservncions
-
General Assembly requests had been made. Rather. il is actions such as France's
decision of 13 lune 1995 IO resume nuclear testing in the Pacific region and its
explosion of a nuclear device on 5 September 1995which are far more likely to be
deuimenral to on-going disarmament negotiations chan an Advisory Opinion which
the Court might render. These actions are incompatible wich France's commitment
of May 1995to exercise "utmost restraint" on the conduct of nuclear tests following
the indefinite extension of the 1968 Treaty on the Non-Proliferation of Nuclear
Weapons and before the adoption ofa cornprehensive test-ban ueaty in 1996.' It is
actions such as this which "pourrait avoir qu'une incidence négativesur les
négotiationsen cour pour parvenir à un monde plus sur." (France, p. 16. para. 7).
If a State is able to act thus in time of peace, Solomon Islands feels al1 the more
concerned about what might happenin rime of war or arined conflict. Solomon
Islands maintains its hope that no furrher tests will cake place before or after the
Court gives this AdvisoryOpinion.
SUBSTANTIVE LEGAL ARGUMENTS
Whilst a smail number of States have been silent or ainbigiious on the subsrantive
18.
aspects of the question posed by the General Asseinbly. the overwhelining majonty
have expressed (ne view that 2ny ilse or threatened use woiild be contrary to
internationallaw. Of the twenty-eijht States S~billitti~;Written Obser\..ationsjust six
(France. Italy. the 'ietherlanis. Russia. the United Kingdoni. the UnitedStates) have
been preparea IO posiriveiy 2x3~:s~[ne vieil; (or sug_oest)that the use of nuclear
weapons could in.0n.ycircunir~ianc~rbe lawiui.
19. The arguments put forward in iavour of the legality of the ilse or threatened use of
nuclear weapons in relation to the reci:rs: for an Advisory Opinion by the General
.Assemblyare essentially the saine rs rnosr reiied upon in arguments made pursuant
to the WHO reqiiest. Solomon Islands ha8 alrendv responded IO these arguments in
some detail (sec WHO. Furrhz: \Vritren Obsexations to the WHO request, paras.
4.2-4.96). Since these FiirciierLVrittenObsenatioris address inosr oi the arguments
made in tavour of the legalityof tiieiiseoi nuclrxr weapons. these shoiildbe referred
to and trearedas applyinj mliforis rnrirondiro :he ar;uinents in iavoiir of legaliryput
iorward by soine Snres inrespondin; to iiieGznerai .Assrmbly'sreqiiest.
20. Not wishins to burden the Cou;: witn an unnecessary restatelnent of its earlier
W:itten Observations. Soiomon Isianas reczlls only its essentiai siibmissions:-
la) international n~iir,aniia;;nniair ?ronibits tlie iiseor niiclear weapons even it
dors no1ao so eu?r<ssiy: LX Cznzral .Asseiiibiyresoiiirionsprohibiting their
use providz-viaz::cz of rtiiz. and tiicopposiriuiioicertaiii StateIOthese
5 Principies and 0b.iertives for Disarmament for Niiclear Non-Proliferation and
Disarmament. para. 4(a). SPTICOiVF.199jlL.j.
3 ,.
GeneraiAsseinblylSolornIlnnds' FirnhcWrirre~l>s~rvalions
resolutions cannot limit a prohibition based upon custoinary obligations; with
regard to the numerous agreements which regiilate their possession. testing.
disseinination or elimination, as well as the hitherto unsiiccessful efforts to
concliide an agreement prohibiting their use. they show that possession or
elimination of nuclear weaponsis beginningto be regulated but do not indicate
that their use would belawful (on these points see Solomon Islands' WHO
Further Wntten Observations, paras. 4.25-4.42, 4.35-4.71);
@) risks of general nuclear ~ar,~effects on civilians. violations of the neutrality
of third States, and ofgenocide similarly indicatea general prohibition on the
use of nuclear weapons(on these points seeibid .aras. 4.8-4.9, 4.1 1,4.45-
4.53, 4.71):
(c) international law prohibits the use of nuclear weapons by reason of their
effects (as weapons causing inevitable death and unnecessary suffering,
poisoning or asphyxiation) (seeibid. pa,ras. 1.5-4.7, 4.4.13-4.23); and
(d) the rulesof the 1977First Additional Protocol, as well as those relating to the
protection of the environinent and hurnan nghts. are applicable to any use of
nuclear weapons; the rules on self-defence. reprisals or the protection of the
environment do not jiistify their Lise(seihid..paras. 1.14. 4.73- 4.71. 4.81.
4.83-d.93).
20. Since one Stare - [lie tinitcd Kin~doin - has reierred extensivelv in its Written
Observations [Osoiiieoi :nearq!iiiientsinaaeby Soloinon Islands in its WHO Written
Observations. it is appropriate for Soloinon Islands to rcspond brietly to sorne of
those British arzurnents. Soine ot these are ais0 iaken iiin the Written Observations
of other Statesarzuing in favoiirof the Iegaiitvoirhe useor tlireateriedilseof niiclear
weapons.
21. According to [lieUnited Kincdom. rile Amcrican. Britishand French declarations on
the inapplicability to niiciear weapons of the 1977 First .AdditionalProtocol reflect
a general azreeinent or'ail States participatingin the Geneva DiplornaticConference
on rhenegoriarionof the Protocol. Tiic United Kinzdoiiisiibinitsthat Soloinon Islands
is wrong to aifirm ihat theïe \vas no consenscisin favoiir of the views expressed in
the declarations of these three S~?tes.
6
Solornon Islands' vizw iiiat the 118sof tacrical niiclear weapons would lead to
wholesalc niicisar war appenrs io be shared by Presidenr Francois Mitterrand of
France: "011 ne peiit passe servi; des arines tactiqiies. S'en servir. c'est déclencher
la zuerre ntictéaire . . (Lèsarinès iactiques] ne peuvent pas Ètre ['appendice d'un
armement conventionnei. 21donc d'iine ziierre classique" (16 October 1986, cited in
J. Attaii, Verbatim 11(1986-19881.Fsyard. 1995, at pp. 180and 197). Gcncral ArscmùlylSoioinon Isi~iids' Furiher Wrirreti Obiervaiiutis
22. Solomon Islands considers thatthe United Kingdom's interpretationis qiiite wrong
and should not be reliedupon or endorsed by the Coun. No support has been put
fonvard to challenge the fact that:
- at the urne of the first session of the Conference, several States wanted the
Conference to address nuclear weapons (ibid., pan. 3.18); and
at the close of the Conference, India and Rumania stated their view that
various provisions of the First Additional Protocol did apply to nuclear
weapons (ibid., para. 3.50).
13. The United Kingdomapparentlyconsiders that the declarationsof these two countries
were ambiguous. It is difficult to see why. Withoutentering into the precise details
of the language used, Solomon Islands believes that these two declarations were
enunciated in a clear rnanner and were not the subject of any greater or lesser
discussion than thedeclarationsof the UnitedStates. the UnitedKingdomand France. ,.
The Conference was equallysilent about both setsoideclarations. No greater weight
or authority attaches to either set, each of which. in effect, neutralises theother; i.e.
there was no consensiis. If, as is clairned. a çeniiine consensiishad existed as to the
inapplicability of the First Additional Protocoi to the iiseof niiclear weapons, the
Coun may well ask why France felt iinpelled to state and restare in its Written
Observations to this rcauest for an .AdvisoryOpinion chat
-clleii':iv;!padiscer:id!orsd< I:~oii;Cr~tic 2,.coiiseiisus rukisnli:1.~porr&caacrc des
obli:niioiir qii'assiiin:coi:natiire <;iisriixsiIt.Ei:rrs qiii :iccaplcraiciil d'iinSeiics
insrriitncii(France . rirteiObscrvarioiisii35)
14. Declararions on the inapplicabiiity of the First Addirioiial Protocol were made
subseqiiently by cerrain iiiriiibers oi 3.4TO. ai chs riinr of tlirir rarirication of the
Protocol. and these were not siikect to objecrions by orlier parties to the Protocol.
However, each oi thes? were in riie natiirr or' "declararions": they were not
"reservations". Sinceonly reservations can inodiiy the lesal eïfec: of a treaty (1969
Vienna Convention on the Law of Trearies. .Arts. ?(d) and 21(1)), and only
reservarions have legaleiiects vis-a-vis States that do not objecr to [hem (ibid.. Art.
21(3)). these "declarations" cannotbe considered as rnodiiyingin any way the nature
or scope oi the leçal obligarionsset forth in the Protocol (on this point seeSolomon
Islands, Written Observations. para.3.99).
25. ?vloreover.the UnitedKingdoin(written Observations. para. 3.55) and other nuclear
weapon States accept that {hosr provisions or'tiie First Additional Protocol which
refiect custoinary internarionai Iaw are appiicabie to the iise oi nuclear weapons.
LVithoiitprejudice to Soloinon Islands' othe: arguments. this iinportiint poinr should
be reaffirined by the Cotir;. The Coiirt should alsocakethe opportiinity to restate the
reievance of the blarrens Claiiseand its appiicability to the use of nuclear weapons.
Contrary to the viewsoi a[ ieast one nuclear weapon State("As to nuclear weapons Cenerai Asseini>lylSoloinonIslands' Funher Wrirtcn ~b&rvations
the 'Martens Clause' is not workinp at al1 ... today the 'Martens Clause' rnay
formally be consideredinapplicable", Russia. p. 13).SolomonIslands shares the views
of the International Law Commission that the Manens Claiise
'iiow Iiio: iSLÎLUor gelleriil inlcrnalioiin11csseiicc.ii provides har eveli in casesnot
coveredby sl>ecincinternationalagrecinénu.civiliiiiisandcoinleinxiii iiii<lcrthe~>roiection
and auihority oi ihe priirciplcsoi iiirernarional iaw dcrived iroin esü<blisiicdcustoin. iroin the
princilllesoi nuininity aiid ihedicures of Iii~bliccr>n.xictice."
26. The Court rnightalso wish to consider the scope and effect of the rule set forth in the
1868Declaration. The United Kingdom pritten Observations. para. 3.65) considers
that it is wrong to argue for the illegality of the use of nuclearweapons on the basis
of the prohibition on weaponry which renders death inevitable (as envisaged by the
1868St Petersburg Declaration). The United Kingdom'sview isthat the Declaratian
was only intended to prohibit the useof explosive biilletsdirected apainst individu&.
It was not, it is claimed, intended to protect persons who find themselves close to the
explosion from incidentai injury or fatality, and it is not applicable to explosive
arrillery shells.
27. Solornon Islandsdoes no[share this narrow interpretationof the Declaration. and has
already explained why the principies underlyina itare applicable to niiclear weapons
(Wrirtcn Observations. para. d.5). The riile in the St Petersbiirg Declaration.
enunciated in an abst:act and non-specific inanner. is robe inrerpreted niore broadly.
The hiiinanitarian basis or ihè Dèclrirztion oi Si Petersburg reqiiires that the
prohibition on the use or'weapons n:nich rznder derithinevitabie is entirelu separate
- and indepenaent r'roiiirheparriciila; riile eniinciared in cono.i:ro on the proiiibirionof
the use or'expiosive biil!ers. Tnt principlzs of rhe Declrirarion. asse: forth in its
preamblr, apply to al1rypesof wcapons. incliiding nuclear weapons.
The Si Pe:ersburg Declaration rrco_nnises the necessitirs of warfare whilst
saieguardinx certain tundainental principlès or' humanity. In this perspective. an
cxplosive biillet prohioitèd the Declararion is ro a non-explosive bullet what a
niiclear weaponis to a conventionalweapon. .Abiillet is aiined at a single coinbatant.
A sheil is aiined a; a Sroiip of coinbarants. That which is prohibited for an
"individual" projectile ([lieexplosive biiller) need notnecessarily be prohibited for a
"collec:ive" projectile (boinbsor sliells). ir'the latter does not have the saine effects
as the explosive bullet. If. however. a niiclear weapon(or an explosive shell) has on
a group of cornbatanrsthe same eirect as rhar produccd by an explosive bullet on a
single cornbatant, itwill. i; is siiblnitted. be prohibited ascontrary to the principle
and rule se: iorth in the Si Perersbiirg Declararion.
29. Tine United Kingdoin (Wrirrz7 Obsemations paras. 3.68. 3.70 and 3.73) further
' United Nations. Reporioi rhelnternatioiial Law Colninissionon the work of its forty-
sixth session. 2 May - 22 July 1994. G.AOR.Al49/lO.p. 317.l CcncraiAsseinblylSoloinoIslands' FurthWritien Ob=rv:<tions
challenges Solomon Islands' view that the use of nuclear weapons will necessarily
entail indiscriminate effects and heavy losses in the civilian popiilation. leading to a
possible genocide.SolomonIslands has sufficientlyresponded to this argument in its
Written Observations (Paras. 4.8-4.1 1, 4.45-4.48) and does not feel the need to
develop its arguments funher.
30. With regard to the applicability and effect of human rights and environmental
instruments to the use of nuclear weapons, Solomon Islands is pleased to note that
most of the niiclear weapons States havenow seen fit to address the relevance or'
these rules which impose fundamental normsof international law. The fact that the
viewsof Statesdo differ widelydoes present the Court withan opportiinity to address
an issue of fundamentaliinporrance.
31. As to the effect of international human rights instruments, a number of States hàve
sought to challenge the arguments of Solomon Islands and others as to the
applicability or'such instruments to the use of nuclear weapons. Discussion has in
particular iocused on the right to liie (see the United Kingdom, paras. 3.99-3.108;
the Netherlands. para. 17: the UnitedStates, pp. 12-46). Solomon Islandsagrees that
the right to life is not to be construedin these instriiinentsas absolute. and hasnever
suggested othenvise. Two points need io be made. First. the Netherlands. the United
Kingdom etc now appear to acccpt the relevance and applicability oi huinan rights
instruments to the use of niic!ear weapons. They do not deny that these instruments
apply in times oi war as in times of peace. a! kast insoiar as the right to life is
concerned. Second. theyappear to agree that death ironi an ~rnlurv/iiuse oi a nuclear
weapon would also violat? .Aïricle6 of !ne !46o ICCPR (and similar provisions in
rezional instruinents).
J-. Sinie. in Soloinon Islands'view. iiis Oii;iciiltto conceive oiany situation in which
riie iise oi niiclear weaponscoiild be lawfiii linder international law (i.e. bccause it
had no radioactiveeifect likeiy to endalise: sivilian licaltlior tliird Stares. would no1
be detrimental to the erivironiiieiit. an^ woiild coniorin to all.riiles oi international
humanicarian law) itiollows[!la[ihe ciseof niiciearweapons will also violate the right
ro liie. The inevitabilityand exrenrof. and risks relating [o. such a violationjustifies
the view that an? use oi a nucizxr weapons would constitiire "a crime againsr
humanity" (on this poinr see Lt'riitenObsen;arioiis, paras. 3.36 and 3.42).
3. .Asro the eifect of inte:nationalen~~ironinentaa lgreements. itisclear that inost States
share SoloinonIslands'viewson the interprerationand applicabilityof the jlu.in bcilo
ruies concerning the protcc:ion of the env:roiitiient. as well as the applicability of
general inrernarionalen\,irorii:ienrriia\c io rnc use of niiciear weapons.
2. Some sures nave soiignrto show rhat environinenta1agreements are no[ relevant to
this issue Decausethey have nor 'in terins" addressed the use or threat of use of
nuclear weapons (the United Kingdom, para. 3.11 1). or because an implicit
conclusion ro that eiiect would Iead to absiird resiilts (the United Kingdom. para. Gei~crnl AsscinblylSoio,Islaods' Forthar Written oh.'.tlll>llc
3.112 ailowing, for example. the 1987European Convention forthe Protection of Pet
Animals to be construed as prohibiting the use of niiclear weapons) or because they
are not expressly or impliedlyapplicable in armed contlict or to nuclear weapons per
se (the United States, p.34). These arguments miss the point. As with human nghts,
the unlawful use ofnuclear weapons whichcauses environmental damage beyond that
which is permittedby internationalenvironmental agreementsor customary law would
also violate those instruments or rules (in particular those relating to the protection
of resources whose use would besignificantly impaired as a result of contamination
by radioactive materiai. i.e. biodiversity, watercourses. the inarine environment).
~Moreoverno response hasbeen given by these States to the view of Solomon Islands
and others that internationalenvironmental agreeiiientsand ciistomary law in the field
apply in tirnes of war as in tiines of peace, unless their provisions direct otherwise
(Wntten Observations, paras. 4.37-4.41) and thataccordingly contamination ansin:
out of any iiseof a nuclear weaponwoiild violate theprovisions of applicable treaties.
This view has been applied in express terins by the International Law Commission
in respect of its own 1994Drat'tArticles on the Law of Non-Navigationai Uses of :.
international Watercourses: in the Coininentary. but not in the Articles theinselves,
itis stated that"the present articles themselves reinainin et'fecteven in time of armed
contlict" (ihid.. p. 316. para. 3). (Report of the ILC on the work of its forty-sixth
session, 3 Evlay -22 Jiilv !994, GAOR. 29th session. Suppleii-ientNo. IO).The Court
should. inrespectoienviroiiiiiental agreeinznts. applythe saiiiepresiiinption in favour
or'applicabilitv wnere an ins~r?imentis sileni.
2.- .Accordingly.and for the rcasons set ou; :n irstxiier Written Obsesarions and in
[nese Furrher Writtzn Obse~arions it is su~ini:rcd :ha[ [ne International Court of
Justice should :ive an Advisor? Opinion ~vnichsixes:
(A tlinttlie Ceiieinl .Asseiiil>lyis coiiipetent to reqiiest ;IIIdvisory
Opinioii fi-oiiitlie Iritei~ii:ition:ilCoi117of Jiistice on tliis qiiestion,
;ind tlint tlie Coiirt is coiiipeteiit to ;iiid sliorild give an ,Advisory
Opinioii oii tlie qiiesrioii siil?iiiitred:
(B) tlintaiiy use ol' a iiiicle;ir wenpon by ;iStnte woiild violate its
obligations uiider intern;itional Inw as reflected in tlie rules of
international Inwconcerning rnethods and nieiins of warfare vus in
bello) and neiitr;ility. ALTERXATIVELYthat niiy use of nuclear
we;ipons niiist not violnte applicable riiles of internntional law
coiiceriiiii; nietliods aiid nieniis of wnrfare (j~~s in beflo) and
neiit~ility:
(C) thnt nny ilse of n iiiic1e;ii-wenpon by n Stnte woiild violate its
obligations iiiider interrintional Inw as reflected in the rules of
international Inw for tlie protectioii of hiininn henlth and the environmeiit and ftindamental hiinian riglits. ALTERSATIVELY
that the iise of niiclear wenpons niiisr iior violate applicniles
of international law for the protection of 1iiini;iiihealth and the
environment and fundamental htinian rights;
0) that any use of a nuclear weapon by a State woiild constitute a
crime against humanity, ALTERNATIVELY thnt the use of
iiuclear weapons in violation of international Iaw constitutes a
crime against hiimanity; and
(E) that any iise by a State of a iiiicleai weapon gives rise to its
iiiternational respoiisibility, ALTERNATlVELYtliat tlie violation
by a State of its obligations iiiiderrnatioiinl law relatinp to the
use of niiclear weapons gives rise to its internatioiial responsibility;
and
(FI that any threat of use by a State of a niiclear weapon would, by
conseqiience of the illegality of actiial use, be prohibited iinder
interriatioiial Iaw.
Written Comments of the Government of the Solomon Islands