Written Staternentofthe Government of Sweden .
The Government of Sweden has been invitedby the
InternationalCourt of Justice to submit a
statement on the question raised in a request for
an advisory opinion submitted by the World Health
Organization.andreferred to in the International
Court's letter dated 14 September 1993.
Also the Swedish Parliament has taken an interest
in the matter. On the initiative of a number of
members, the Standing Committee on Foreign Affairs
of the Parliament has made an analysis on
InternationalLaw and Nuclear Arms, included in i:s
Annual Report on Disarmament.
In the Report, which was approved by the Parliament
on 2 June 1994, the Standing Comltzee cozcludes
that the Government, in its reply to the
International Courc of Juscice, shoull xahe it
clear that the use of nuclear armswoull no: be :n
accordance with International law.
The Government of Sweden has kaken due note of the
decision of the Parliamenc and hereby submits to
the International Courtof Justice a translation of
the relevant partsof the Report as its answer to
the question put by the ICJ. Extracts from the Re~0rt of the Swedish
ParliamentarvStandina Committeeon Foreion Affairs
11993/94:W19)
Nuclear Weaponsand InternationalLaw
As pointed outin several of the motions, attention
was drawn to the question of the legalityof the
use of nuclear weaponswhen, at its meeting in May
1993, theWHO decided by a substantialmajority, to
request a statementby the InternationalCourt of
Justice in the Hagueas to whether the use of
nuclear weaponswas in compliancewith
internationallaw. According to those who have
presented these motions, the SwedishGovernment
should make it clear in a statement tothe
InternationalCourt that theuse of nuclear weapons
does not comply with internationallaw.
The Committee has discussedthe questionof nuclear
weapons and international law before on several
occasions.This was the case, for example in the
most recentdisarmament report (Report
1992/93:UU19)which was occasionedby a Social
Democratic motion (1992/93:U404(s*)) which
requested i.a. that Sweden should present a
proposa1 in the UnitedNations under which the use
of nuclear weapons would bedeclared illegal.
A prohibitionof the use of nuclear weapons and the
closely linked question of non-first-usehave been
on the agendaof internationaldisarmament forums
(including theUN General Assembly) for a great
many years, but no progress has beenpossible in
matters of substance. Instead,in the nuclear
the major nuclearsweapon powers have now decided on
a method involving gradua1 reductionsin their
arsenals.The Committee considers it important that
these efforts, whichhave resultedin tangible
progress, receive support and encouragement.Thus, the cornmittee considers thatMotion U403
(sa), Petition 18, and Motion U409 (fp*),
Petition 3, have been answered.
In his speech to the United Nations General
Assembly on the occasion of the UN 40th Anniversary
in 1985, the Prime Minister, Mr Palme, raised the
question of the use of nuclear weapons. Amongst
other things, he said that "We should consider the
possibility to prohibit in internationallaw the
use of nuclear weapons, as part of a process
leading to general and complete disarmament."
In an address to the Special Session of the United
Nations General Assemblyon Disarmament held in the
summer of 1988, the PrimeMinister, Mr Carlsson,
once again raised the idea of the prohibition of
the use of nuclear weapons previously proposedby
Sweden. In this context, he recalled the
restrictionswhich already apply under
internationallaw as regards the use of nuclear
weapons. He also stated that the Swedish Government
considered that the conclusionof an agreement
prohibiting the use of nuclear weapons would be of
considerableimportance. Atthe same time, Ingvar
Carlsson emphasized that an agreement of this
nature must be supported by concrete disarmament
conventionalweapons.ea, including both nuclear and
The Committee wishesto express, once again, its
support for measureswhich may prevent the use of
nuclear weapons. The question which theWHO posed
to the InternationalCourt of Justice in the Hague
concerns the content of current, applicable
international law, but it will obviously have a
political effect.Like other member States, Sweden
has been given an opportunity to present its views
in this question oflaw. The Committee presumes
that theGovernment will take advantage of this
opportunity.
The Committee notesthat, as mentioned earlier,
Sweden has unambiguously declared that restrictions
exist under international lawas regards the use of
nuclear weapons. A principle has existed in international lawever
since the turn of the century, under which
belligerentsdo not have an unrestricted right to
choose weaponsor methods of combat. In the
Cornmittee'sopinion, theuse of nuclear weapons
would be restricted by the principles of
distinctionand proportionality under customary
internationallaw.
Under the principle of distinction,an attack on a
civilian populationor civilian propertyis
prohibited.In the case of an attack on a military
target, disproportionately substantial damage may
not be inflicted on the civilian population or on
civilian property.
The Cornmitteenotes that a principleof
proportionality is embodied in the law of the UN
Charter. Reprisais which are disproportionatein
comparisonwith the provocation whichpreceded them
are prohibited. It.would bedifficult to regard
this principle as consistent witt hhe use of
nuclear weapons in retaliation againstan attack
using conventional weapons.
In the Cornmittee'sopinion, theGovernment should
therefore make it clear in its reply to the
International Courtof Justice that the use of
nuclear weapons does not complywith international
law. This should Be conveyeà to the Government.
Hence, the Cornmitteeprop:ses that the Parliament,
in view of Motion U403 (s ), Petition 17, and
Motion U415 (5, fp, c, kds, v'), should inform
the Government that it confirms the Cornmittee's
view.
The Cornmittee notes that, in exercisingits
advisory functions,the International Courtof
Justice shall be guided by the provisionsof its
Statute in disputes in so far as it recognizesthem
to be applicable (Statuteof the International
Court of Justice, Chapter IV, Article 68). The
provisions referred to appear inChapter II,
Article 38, Sub-section 1of the Statute which
reads as follows:"The court',whose function is to decide in
accordancewith internationallaw such disputes as
are submittedto it shall apply:
a. international conventions, whether general
or particular, establishing rules expressly
recognized by the contesting states;
b. internationalcustom, as-evidence of a
general practice accepted as law;
c. the general principles of law recognized by
civilized nations;
d. subjectto the provisions of Article 59,
judicial decisions and the teachings of the
most highly qualified publicistsof the
various nations, as subsidiary rneansfor the
determinationof rules of law."
(Article 59 states that the Court's decisions are
only bindingon the parties in dispute and as
regards the case which has been adjudged.)
The Committee presumes that, in preparing its
response to the InternationalCourt, the Government
will scrupulously observewhat can be adduced £rom
the above guidelines presented in Article 38 of the
Statute as regards why, in view of the medical and
nuclear weapons in warfarethor in other forms of of
armed conflict shouldconstitute a breach of the
obligations,underinternationallaw, including the
WHO Charter, of a state employingsuch weapons.
The Committee is aware that there are different
opinions about what may constitute a basis under
international law fora decision concerning the use
of nuclear weapons. In this context,the Committee
would liketo draw the Government's attention to
certain arguments - in addition to those already
presented - which have been raised in the
internationaldebate by specialists in
international lawand which draw the conclusion
that the use of nuclear weapons wouldbe a breach
of internationallaw. These arguments primarily
involve what may be characterized as general,
fundamental legal principles, recognized by
civilized nations. ~he'Hague Conventionsstipulate that the
territoriesof neutral states are
inviolable.Radioactive fallout, and other
effects of the use of nuclear weapons in
armed conflicts,do not stop at the
frontiersof neutral states, however. As a
result, in most cases the use of nuclear
weapons would mean a breach of these
conventions.
The use of weapons which cause unnecessary
sufferingmust be considered tobe
prohibited.The codificationof the
prohibitionof dum-dum bullets was
undertaken in accordancewith this view, for
example. The effects of radioactive
radiation as a result of the use of nuclear
weapons cause unnecessary suffering, not
merely for third partieswho are directly
affected,but also future generations,for
example as a result ofgenetic damage.
In accordancewith an established basic
principle, expressed,for example. in the
Declaration madeby the 1972 UN Conference
on the Human Environment, there are
irnpediments ttohe use of weapons which
cause extensive,long-term and serious
damage to the environment.This is expressed
in the Declarationas follows: "Man and his
environment mus: be spared theeffects of
nuclear weapons."
t As :ar back as the 17th century, Hugo
Grotius stressedthat poisoning was not
allowed under international law.In certain
respects,the principleof the prohibition
of toxic weapons has also been codified
(chieflyas a result of the1925 Geneva
Convention).Certain residual products
resulting £rom the use of nuclear weapons
must undoubtedly be regardea ds toxic.
The Cornmitteeassumes that these and other
considerationswhich have been raised in the
international legal debate, and also the content of
existing comprehensiveinternationalagreements
will be taken into account.
Letters in brackets referto political
parties: (c) Centre Party, (fp) Liberal Party,
(kds) Christian DemocraticParty, (s) Social
DemocraticParty and (v) Left Party.
Written Statement of the Government of Sweden