Letter dated 19 June 1995 from the Ambassador of the Russian Federation, together with Written Comments of the Government of the Russian Federation

Letter dated 19 June 1995 from the Ambassador of the
Russian Federation, together with Written Comments of the
Government of the Russian FederationTo the Regisuar
of the InremationalCourtof Justice

Mr. E.Valencia-Ospina
Peace Palace

The Hasue

The Hague. 19June 1992

Dear blr.Valencia-Ospina'

Please find enclosed "WNTTEN ST.4TEMEXTAXDCOMMENTSOFTHE

RUSSIU FEDERATIONON THE ISSUEOF THELEGPlLITYOF THETHREAT
OR USE OF XUCLE.4RWE.QONSq.

Enclosure:as abovernentioned.70 pages

L.Skot~kov,
.4rnbassadorof the Russian Federatton

I 1
WRfïTEN STATEMENT AND COMMENTS !
OF THERUSSLAN FEDERATION ONTHE ISSUE !
OF THE LEGALITY OF THE THREAT OR USE
OF NUCLEAR WEAPONS
i

Moscow.16June '1995 1

1.The World Health Organization, by its resolurioWHA 46/40

dated14 May 1993,requestedthe International Court of Justice toanive

advisory opinion on the followingquestion: "vicw of (lihealth and
environmental effects,wouldthe use ofcleai-weaponRy riStatin waror i
i
other arrned conflibe a breach of iob1ig;iriounder iiiternational law,
includingthe WHOConstitution?" ,

2.The Russian Federation, beingUN member. isipsofuto a party
to the Statutof the International Court of Jiistice under the provision of

Article93, parasraph1 ofthe L'NCharter itticorrespondinglyis entitled
to appear beforethe Court.
!
3. Having received an appropriate notification about the WHO'S
request and alsoaboutrhe readinessofthc Coutoaccepr,within the time- l
;
limit fixebyit,writtenstatementsof the starrs whichare entitled tu appear
before the Court with respect the questiortl-iKussianFederation in

accordance withArticl66, paragraph2 ofthe Statiiof theInternational ' ' l
Court has presented an appropriatwrittenstritement to the Court on 7

June.1994.

1
.i 4.Taking into account the above.as wcllilsthe fact thatthc sirnilac
statements have beenprescnted to the Courr by oîher stares the Russian

Federation, in accordancewithArticle 66,paragrapli 4 of the Statute of the

International Court and following the dccision of the Prcsident ofthe
Court of 20 June, 1994,hereby presents comn-ientson the other relcvanr

written statements pertainingtothe issue.
5.The Gencral Assembly,by its rcsolution 49/75K dated December

15, 1994,decided to request the International Court to give an advisory

opinion on the followingquestion: "1sthe threat or useof nuclear weapons
in any circumstances perniittedunder international law?"

6. The Russian Federation, proceeding froin what was sct forth in

paragraph 2 aboveand havingreceivedan appropriate notification about the
UN General Asscmblyrequest, in accordance with Article 66,paragraph 2

of the Statutc ofthe International Court and in accordancewirhthe decision

of the Coui-tdated February 1,1995,hereby presents awrittensutenlent on
the question,formulated by the UN General ,4ssembly.

7. It is the opinion of the Russian Fcderation that questions
forinulated bythe WHO and the UN General Asseinblyare cssentiallyvcry

siinilar and in this connectiitthinks itpossiblcand expedient to dwellon

both of them in a single docurneiitwhichisbeingenclosed. 1

A studv of written staternents of olhcr stares even n1oG firmly

strengthened our opinion espressed in ths Slatement of lune 7, 1994:the i
Court should not givean advisoryopinion on thc WHO'S request.
I

1.In accordancewith Article 96, paragraph 1 of theUN Charter the

General Assembly orthe Security Councilrnay request the Interriational
Court of Justicetgive an advisoryopinion "onany legalquestion".

In accordance with paragraph 2 of the saine Article, specialized

agencieswhich rnayat any tirne be so authorizetlby the General Asseinhly
may also request advisov opinioiis of the Court "on legalquestionsarising

withinthe scopeoftheir activities".

As applied to WHO, this general rule relaiingto al1 specialized
agencies is specifiedinArticle X, paragraph 2 of the Agreement between

the UN and the WHO of1948 and in Article76 ofthe WHOConslitution.

Ac.cording toArticlc X, paragraph 7 of'the Agreement of 1948 the
UN Generai Assembly entitles the WHO to inake request to the

International CourtofJustice togivean advison:opinion on legalquestioris

arising in the sphereof the cornpetenceof the Organizationand others thaii
those concernini relations between the WllO and the UN or others

specializedagencies.
Linder Article76 ofthe WHOConstitution.Organizationniay request

the Coui-tto give an advisoryopinion on an? lcgalqiiesrionarisirigwithitl

the scopeof the Organization's comperencc.

Consequently, as distinct froni the General Assembly and the
Security Council. tlieWFIO being a specialized ageficy,niay requestthe

Court to giveiinadvisoryopinion not on an? Icgalqiicstic~n,ut only on :i
legalquestion arisinwitliinthe scopeofthe Oipaiiization'scornpetence. The WHO'Scompetcnceis defined first of 311in ils ConstitutionItis
quite apparent rhat this document does no1 contain 3 provision. which

would confirrn expressisverbisthat thc WHO is cnnipetent to consider the
matter of legalityof usc by a State not only of riuclearweaporisbut oi'any

kind of weaponsat al1 inan armed conflict.

The atternpts to iefer to an "implicd" or "iiiherei.it" WHO's
competence haveno prospectseither.This is provedbythe 45-year practice

of thc WHO, whichuntil the WH. resoluti«n 46/40 of 14.05.93has never

appealed to the subjectof legalitofthe use of nuclear weapons.
Accordingly,there isalso no evidence that the WHO'spracticc or its:

resolutions have somehow-developed the W1-10'sConstitution, so 'asto

endow it with such a cornpetence. In this respect. an analysisof Wl.10'~
activities,contained in Chapter 1of the wrilten statement prescntcd to the

Coiirtbythe UKCovernment in connectionwiththe WI-IO'S rcquest, seerns

to be stronglyconvincing.
it is well-known that while interpreting a treaty any siibsequeiit

practice of its application which establishcs the agreement between tlie

parties regarding interprctation of the treatv (Airic31. paragraph 3.b of
Vienna Convention of the. Law of Internaiional Tieaties. 1969)shall be

taken into account.This rule is also applicable to the treaties setting up

international organizations.
For us it's clear thatI-1A resolution 46/40 of 14.05.93,which was

adopted with 73 votes "for",40 -"against" and 10 "abstaining",cloesno1

establislisuch an agreement.
Thus, so faras the question of legalityof thc usc of nuclcar weapons

does not fa11withinthe cornpetenceof WHOand ciinnotemerge within this
competence under Article 96,paragraph 2 ofthe UN Charter,Article 76 of

WHO'SConstitution and Article X, paragraph 2 ofthe Agreement between betweenthe UN and the WHO,the ~r~anization hridno righito request the
Court to give an advisory opinion on such a question. So, the WHO

Assenibly's resolution and the question contained in ir are the WHO's

actionsultruvires.
2. In accordancewith Article 65. pai'agraph1 of thc Statute of the

International Court. theCourtWmaygive an advisoryopinion on any legal

question iitthe request of whatever bodyniay be authorized by or in
accordancewiththe Charter ofthe United Nations to ninkesuch a requcst".

The verb "may", used in this wording. in our opinion. has two

meanings.
First, the Courtmay give opinions exclusivelyupon the request of the

body authorized lo make sucha request by the UN Charter or in accordance

with it.
Takinginto account whatwassaid abovr in paiagraph 1, il'sdifficult

to consider the WHOas the organizationaurhorizcd by the UN Charier or

in accordance with it to make such a request i~ithis particular case.
Correspondirigly. inour viewin this case the Court hardly nt al1rnay. i.e.

hardly has the right togivean advisoryopinion upon such WHO'srequest.
1-Iowever,naturally, the Court itseli' solves the question of its

cornpetence. And in thisconnection we would likc once agairi 10 draw

attention to the secondn~eaningof the word"ma)!".
Asit wasrnentioned in our statement daied Junc 7, 1994 and in the

statcments of sorne other States,the Court mciy,but isnot obliged togivc

advisoryopinions i.e.ithas adiscretecompetcnce inthis respect.
IIIthis contest wc would likc to note thosc conseqlictices for

international law iii general and for thc Iaw of international

organizatioris in particular, which will arisc asa result of the realization bythe Court of its right to giveadvisop opiiiion

upon WHO'Srequest.whateverthis opinion mightbe.

....ewouldli-e . .- .~.p.a.izethat weare putting asidc political aspects

and are talking about purely leial c'onsequenceswliichshall be of primary
importance for the International Court while solvingthe question whether

to giveor not to givean advisoryopinion.

In this sense itis important that in this case taking a decision to

exercise its righi and to givean advisoryopinion, the Court, in a waywould
establish a precedent of encouraging international organization activities

ultra vires,would lendto such illegai acts legal consequences which they

were called upon to achieve-(westressonce again: irrcspectiveof whatthis

advisoryopinion mightbe). -.
In ouiv .iew,such an action by the Court would be harmful for the

development of international law in geiieral and the law of international

organizations in particular.

II

Drspite the differencesin the wording,questions put beforelhc Court

by the WHO and UN General Assembly are vcry similar. In Ouropinion,
the question, contained in General Assemblyresolution 49/75K dated 15

December 1994 is formulated in a more gencrai manner and somehow

covrrs the question put beforethe Court by tlieWHO. That'swby,and also

withdue regardto considerations setforth in Section 1ahovc, in this Section
we intend to concentrate mainly on the UN Gcricral Assembly questiori:

"Arethe threat or use of niiclear weapons in any circuinstance permitted

under iiltemational law?"

1.The vcry wordingof the GN Cei~eralAsscnlhlyquestion çivesrise

to questions. First of all, in virtue of the principle of sovereigntp,we treat as

generallyadniitted the presumption thatthe statc niay accomplishaiiyacts,

which are not prohibited under international law. Basicaily.international
law is a system of limitations,rather than permissions. In this connection,

the question,whether international lawpermits the use of i-iuclearweapons
or not isnot.likely to be correct.Ifwe ask the question of this kind, we

should ask whether international lawprohibits the use of nuclear weapons.

Anyway, the essence of the question is in the question whethcr
internationallawcontainsthe ban of the useof nuclearweaponsor not.

At the same time, -an extrernely broad wording of the question

formulatedbythe General Assembly,aswellasbyWIIO,strikcsone'seye.
It seems that thc initiators of both rcquests didn't want to draw a

distinction benveenthe useof nuclear weapons by the aggressorand the use
ofsuch weaponsin self-defence,for instance in illeretaliatioiifor the .useof

nuclear or some other massdestruction weapons, as wellas a distinction in

connectionwith the consequencesofthe use of nuclearweapons.
hleanwhile,in Ouropinion,these disrinetionsarc veiysigriificant.

2. In our view,international lawcontains no generalprohibition of use
of nuclear weaponsperse.

A study of main sourcesof international law - intesnational treaties
and intel.nationa1customs - proves our opiiiion. WCclon'iconsider here

gerieral ~~rinciplesof Iaw, becausc we be1iei.ethat they are ieflected in

.internationaltreaties or customs.
1) International trcaties-general, as well as spccial -don't contain

rules stipulatinf a completebanon nuclear weaponsperse.
A study of international treaties, espccially those cledicateto the

problemsof nuclearweaponsleadsusto the followirigconclusions. - 6

First of all, those treaties admit the cxiste~iceof nuclear weaponsand
the possession ofnuclear weaponsby some s13tcs.At the samr time these

treaties envisage different limitations with respect to nuclear weapons. iii

particular:
- their proliferation (Treaty on the Non-Proliferation of Nuclear

Weapons, 196811/;

-their testing (Treaty on Banning Nuclear Weapon Tests in the
Atmosphere, in Outer Space and Under Water, '1963;Treaty between the

USSR and the USAon the Limitation of UridcrgroundNuclear Weapoiis
Tests'1974);

-their deployment in certain territories (Treatyon the Prohibi1ioi.of

the Eniplacement of Nuclear Weapons and Other Weapons of hlvlass
Destruction on the Sea-Bedand the Ocean Flooi and thc SubsoilThereof,

1971; Treaty on the Prohibition of Nuclear Wcapons in 1-atin Arnerica

(TreatyofTlatelolco),1967;SouthPacificNuclear Free Zone Trcaty (Treaty
of Raratonga), 1985);

-certain types of'nuclear arms. down to the eliinination of certain
types thereof, even if thc-word "nucle3r" is not rnentionrd i1.ithe text.

(Interim Agreement betweenthe USSR and the USA on Certain Measiires

with respect to the Liiriitation of Strategic Offensive Arrns, 1972;Treaty
between the USSR and the USA on the Limitation of Strategic Offensive

Arms, 1979,which tllough it has not enterecl into forceso far. has been

observed for severalyeais; Treaty between the LISSKand tlieUSA on the
Reduction and Limitation of Strategic offensive Arms, 1991, to which,

Russia, Belorussia,Kazakhstan,Ukraine and the USA have becoine parties
after thcy have signed the 1992 Protocol 1.0the Treaty: Treaty betweeii

1/ The Russian Federation is coiitinuing to rxercise the rights aiid
responsibilitiesofthe former USSRunder the interniitionaitreaties.Russia and the USA on Further Reduction and Limitation of Strategic -
OffensiveArms, 199& whichhas no1yet entered inioi'orce;Treaty between

the USSR and the USA on the Elimination of Tlieir Interinediate-range

and Shorter-rangeMissiles,1987).
Thus, treaties, devoted exclusively to ii~~cleaweapons provide for

sknificant number ofrestrictionsin this regard,butthere isno specialtrcaty

which wouldput a generalban on the useof nuclcarweaponsassuch.
We think that there are no real prerequisites forconcluding such a

treaty at prcscnt asyet.No necessaryand sufficicntconditions exist.Thnt is
'.
why the appeals of the General Assernbly(General Assembly resolutions
45/59 A of 1990and 461370 of 1991)to the Coriferenceon Disarmament

proposing to hegin on a prinrity basis talks aimcd at the conclusion of a

convention prohibiting the employment of nuclear weapoiis in any
circumstances, have not been implemented. The ver' Sad that thcrc arc

projects of such a convention in General Assrii~hlyreso1utioi.iproves thal

presentlyno treaty provisioninthis regardesists.
Furthermore, itis apparent thrit while coiicludingnumerous spccial

treaties in this sphere,states have bnsed their positions on the assumption

that international lawdoesno1prohibit the employmcnr of nuclear weapons
as such. That is whytreaties wcre signed with ari aiiii eitheto lessen thc

possibility of its employment (for example, USSR-USA Trcaty on the

Prevention of Nuclear Warof 1973:analogoiistreaties between the USSR
and the UK (1978), the USSR and France (1976); the LJSSK-USA

Agreeinent forthe Creation ofSuclerir RisliRcductioriCènters (1987) or to

pledge the non-einployment of such weaponsagainst specificcountries, in
specificrcgionsor specificcircumstances(the CSSR. thc USA, the UK and

Frnnce have al1signed Addilional Protocol II of the Tlatelolko Trcaty, iti
accordancewitharticle 3 whereofrhey pledgc riotto useand not IO thrcateiito use niiclearweapons againstthe State-particsto tlieTlatelolkoTreaty;the

USSR and China have also signeda similas Prolocol to the Karatonga
Treaty).

There does not exista provision containing a general prohibi~ionof

the employment of nuclear weaponsas sucli also in international treatics,
which are not speciallydevoted tothe suhjectof nuclearweapons.

It iswell kiiownthat the UN Charter (Article2,yarrigrapii4)obliges

the Organization members to refrain intheir internaiional relations from
the threat or use of force against the territorial integrity or political

independence of any state. or in any other manner inconsistent with the

purposes of the United Nations.
In this sense,asthe threat or use of force in general.the threat or usc

of nuclear weaponsby a state is prohibited, aare the threat or useofaiiy
other kind ofweapons.

At the same time the Charter does noi impair in any sense thc

inherent right of individual or collective self-clefeifeari arn~ed attack
occursagainst a Mernber oftlie United Nations (Article51).Accordi~iglyin

this sense the Charter admits the use of nuclear or othei weaponspeseby

a state.
We do not consider the provisions of a riurnbeofthe UN General

Assembly resolutions. which stipulate that theLiseof nuclear weapons as
such is a violation of thUh Charter (UN G,4 Res.165.3 (XVI), IJN GA

Rcs.33/71/R, UN GA Res.35/15-D, UN GA Rcs.36/923aiid somc others),

as an authentic and bindingintcrpretatian ofthc UNCharter. Such Gcneril
Assembly resolutionsand declarations,regardlcssof howilieywere adoptcd,

arc not biiiding and do not crcate by tlieinselves obligationsfor UN
members. Any other, opposite viewof the rolc of such General Assembly

resolutions hasno basisin theUN Charter. A number of intcrnational treaties. not spccificallydevoted ro tlie

problem of nuclearweapons,contain certain restrictionsin this rcgard (the
Trealy on Principles Governing the Activitics of States in the Exploration

and Use of Outer Space,Includingthe bloon ancfothcr Celestial Bodiesof
1967;the AntarcticTreaty of 1959).Nevertheless,therc does not exist any

general prohibition on the useofnuclear weapons inanysuch treaty.

Sornetirnes, to substantiate the point of view according lo which
international law prohibits the use of nuclear wcapons, the reierencc is

rnade to international hunian rights treaties and, in particular, to the

Conventionon the Preventionand Punishrnent oftlie Crimc of Genocide of
1948.

Wepresume,howcver,that it clearlyfollowsfronithe Conventionthal
it is not the mere usc of nuclear or iiny other type of weapons that

constitutes geiiocide but respective actcon~mittcd with intent tu dcstroy,in

whole or in part, a national ethnical, racial or religioiis group, as such"
(Article II of the Convention). Therefore, 11)qualify certain actions as

gcnocide and as a violation of international law, one should take inro
account tlieir aimand intent but notthe weapons,iiieansusedto irnplement

thosc actions.

Neither do we find correct the arguments ihat thc use of nuclenr
weapons is not admissibleunder international law,because itviolates the

human right to iifelaid down, inparticular,in the UniversalDeclaration of

Hun~anRights of 1938 (Article3) and the InternationalCovenariton Civil
and Political Rightsof 1966 (Article6).

The existenceof the riglito life does not mran that itis no1possible
to deprive a person of his life through Icgitiniate use of force. This is

confirmeci, for instance, in Article 2, paragraph 7 of thc European

Converition on the Protection of Human Riglits and FundanlentalFreedoms, which reads: "Deprivation of lire shall not bc regarded as
inflictedin contraventionofthis articlc when iresultsfiorrithe lisof force

which ...is absolutely necessry..i. defencc of any persoii froni unlawful

violence...".in thissense the useof n~iclearweaponsin self-defencedoes not
constitutea violationofthe rightto life.

Besides, those putting fonvard argumcnts that the use of nuclear

weapons is no1 admissible under international law, also appeal to
international treatiescodifyingrules applicableto arrncdconflicts.

Restrictionsset bythe iules applicableto armed conflictsinrespectof

means and methodsofwarfarealsoextend tonuclearweapons.However,we
are convinced that there is no general prohibition on the use of nuclear

weaponsas suchin treatiescodifyingthose rules.

The mostrccentrules applicableto an arnicd conflicrare contained in
Addirional Protocols of 1977 to the Genrva Conventions of '1949.
. .
Restrictions on the methods and rneans of warfare are contained, in

particular, in parts III and IVof the Additional Protoc1.However.asFrits
Kalshoven reasonablyobscrves,"the Diplornatic:Conference"which adopted ..

the Protocols, "wasvirtually iinanimous in itsview that it had not been
convoked to briilgthe piohlems connected with thc csistcnce and possible

use of nuclear weaponsto a solution"'/. The draftirighistory of Protoco1

shows that "any new rulcs and principles, embodied in the Protocol, were
not written with a view to the potential use of iiliclearweripons"3/.This is

.l/Frits Kalshoven.Constraintson tlieWaging of War,ICRC.Geneve,
1987, p.87,

t/ Ibid., p.104.In the introduction to the draft Protocols the 1.C
had stated that: "Problemsrelating to atomic. bacteriologicaland cheinical
novernmsnts.suandcin of international draft AdditiorielProrocols theICR?
aoes not intend to See: Comrnentary on the
Additional Protocols to the Geneva Conventions of 17
Au ust '1949.Ed. by Y.Sandoz Chr.Swinarski,Rr.Zimmcrmann, Martinis
~ija~f~~ubi..Geneva,,1987 , .jb~. refiected inthe Protocols thernselvesin whidi ihcrc is neither reference to

nuclear weapons normentioning of any otlicr specifictype of weapons,as

well as in the declarations made by a number of coui-itiies(the USSK,
France, the USA, Spain,the United Kingdoin,the Nctherlands. Belgium,

the FRC; and Italy) during the Conference, sigiiiiig or ratification of the

Protocol.
!
As is known, the 1949 Geneva Converitionscontain no regulations
concerningnuclearweapons.

Thus, the principal humanitarian law instruments adopted in the
nuclear agedo not prescribeanygeneralban on the usc of niiclcnrwcapons.

It is probablyin this context that the atlvocateof illegaiitof the use

of nuclear weapons substantiate their position by referring to earlier
instruments - the Haguc Conventions of 1899-1907 and even the

Declaration to the Effect of Prohibiting the Lise of Czrtaiii Projectilesiii

Wartime(St.PetersburgDeclaration)of 1868.
In particular, they statethat under the Dcclarationthc only Icgitimatc

object which sratesshould endeavor to accomplishdurinç war is to weaken

the n~ilitaryforcesof the..enemy;for this puipose it issufficientto disable
the greatest possiblenumber of men. this objcctwouldbc cxcccdcd by the

ernployrnent of armswhichuseiesslyby aggrn\,iitethe siifleringof disablcd
mcn, or rendei their death iiievitable;the crnploynient of such arnls would

therefore be contrarytothe laws of humanity. i

Along with that. a riference is made'io the "hlartens clause" - a
blanket formula contajnea ir,the Prenmbles to the ConveritioriKespecting

the Laws and Customsof W3r on Land of 1899 and to the Convention

concerning the Inwsand Customsof War on 1.nndoi' 1907 ("Until imore
coniplete codc of the lawsof war has been issued, the ..Parties deem it

expedicnt to declare Ihat, incasesnot iiicludedin the RrgulatioiisadoptedJun.20 '05 1515 PiFRF Fi70F095- 231 116;

-
by thern, the inhabitants and the belligereiits reinain undcr the protection
and the rule of the principleof the law of iiations,as they rcsult from the

usagesestablished among civilizedpeoples, from the laws of humanity and

the dictates ofthe publicconscience"),as wellas to Article27 ("tlicright of
belligerentsto adopt means of injuringthe eneniy is notunlirnited"), Articic

23b) ("it is forbidd..to employ arms, projectiles,or rnaterial calculatedto

cause unnecessarysuffering"),Article 25 ("ilis forbidderito attack or bornh
in anyway whatsoeverunprotected cities,towns,houses or premiscs") of the

Regulations annexedto the Conventionof 1907.

As far asthe regulationsare concerned,rhc rules laid dowriin Articles
23 and 25 contain restrictions which refer 10 the use of any types of

weapons,includingnuclearones.However,these articlesdo not prohibit the

useof anyparticular typeofweapons.
As to the attempts to justify the iiiigimacy of the use of nuclenr

weapons by references rhat they muse "uiiiiecessary sufferings while
injuring. uselesslyaggravatethe sufferingsof disablcd inen, or rcrider their

death inevitable",they are also hardly reasonable. The rcportof the ICKC

experts entitled "Weaponsthat MayCause Unnecessa- Sufferingor Have

Indiscriminate Effects" stated: "What suffering miist bc deerned
"unnecessary"is not easyto define. Clearly the authorsof the ban on dum-

dum bulletsl/ felt that thc hit of a ordinary riflebiillctwasenough to pat
man out cifaction and that inflictionof a more severe wound by a bullet

which flattened would be tu cause m un nec es suf^ering... The

circurnstance that a mort! severe woundis likely tu put a soldier out 01'
action for a longer perind was rvidently no[ considered a justification for

perrnitting the use of bullets achievingsuch results.Thc conceptsdiscussed

ï/ll-ie authors of the Ha ue Declaration Coiicernin the Prohibilion
of Using BuUetswhich Erpan t or Flarten Eîsily in the human Body of
'899.must be taken to cover al1 weapons that do no{ offer greater military
advantagesthan orher available weaponswhjle causinggrentersuffering ..In

addition the concept of "unnecessary suffering"would seem to cal1 for

weighingthe militaryadvantagesof any givcriweapclnagainsthuinanitarian
cons ide ration^"^/.

These reasonable cornrnents of thc ICRC. expcns cvnfirrn two
consideratjons. First,the principof no1causing "unnecessarysuffering"is

not in itseiiageneral ban on the use of nuclear weaponsas such. Second,

attempts to applyblanket norms formulated in the second half of the
19th century -beginningof the 20thcentury tonewtypesofweaponsd&not

seem to be convincing.
As to nuclear weaponsthe "Martens clause"is iioworkingat all. A

"more complete code of the lawsof war" mentioncd there as a temporary

limit was "issued"in 1949-1977in the form of Gcrieva Conventions and
Protocols thereto, and today the "Martens clause" mny formally be

considered inapplicable.
But it is not all. Protoco1of 1977 reproduces.with slisht changes

(Art3j), the above-mentioned provisions of the Articles of the 1907
Convention, but they. being treaty norms. are not applied to nuclear

weapons(seepp.lO,ll above).

The viewthat the said blanket formulas are not considercd by rhe
internationalcontrnunityas a whole as a general ban on the use of specific

types of weapons,including nuclear weapons as such, issuppoited by the
fact that internation13w did choose the option ofspecialban t>fpanicular

types of weapons and their use.That ishow thc 1925 Protocol on the'
Prohibition of the Use inWar of Suffocating,Poisoiiousiind other Siniilar

2/ ICRC: Weapons that may Cause UnnecessarySufferin or have
IndiscriminaieEffects.Report on the workol experts.Grneva, 194, p.13 -------------...___.-~-.~-~-.--..-------
un.a '95 1..-7 PIF3 ?F ROM 005- 241 lis, -.LC

- 14

Gases and BacrcriologicalMeans; the 1980 Convention on Prohibitions or

Restrictions on the Use of Certain ConvcritioiialWeapons.which May Be
Deemed to Be ExcessiveiyInjurious or to Have Indiscriminate Effrcts,

together with Protocolsthereto; the 1972Conventionon the Prohibition of

the Developrnenl,Production and Stockpilingof Bacteriological(Biological)
and Toxic Weapons and on their Destruction; 1993 Convention on tiie

Prohibition of Developinent,Production, Stockpilingand Use of Chernical

Weapons and on their Destructionappeared.

It is probablethat insorne time a treaty willappear on the ban'of the
use of nucleür weapons andof nuclear weaponsthernselves. Ruttoday such

a treaty does not exist.

2) Constrajnts on the use of nuclear weaponsarc provided no1 by a

treaty law, but by custornary general international law. However, we are
quite sure that there is iio customary rule of international law,prcihihiting

the useof nuclearweapons ingeneral.

To respond in substanceto the request ofthe Grnerai Assenibly the
Court in accordance with Article 38, paragraph I(b) of its Statute, shall

apply "international custom.as evidcnce of a general practiceaccepied as

law". As it was stated above, it is not a peimissivc iule, but the rule

prohibiting thc useof nuclearweaponsper sc.
Our studyshowsthal there is no general practiceacçcpted as law,that

providesfor sucha prohibition.

For the purpose of this statement we do not ii~tend tu distinguish
between the evidencesofexistenceor, which ismore acciirate,of'ribsenceof

relevant practiceand opini joris.

As it is shown above, the treaty practice, the treaty form of
coordination the wills of States demonstrates not only the absence of a

general prohibition of the use of nuclear weapons per se, but also the presence of presurnption thatin prindple the use of nuclear weapons is
admissible. Thisistcstified by the treaiy actby which Statesvoluntarily

refuse to use nuclear weapons incertain circurnstancesor agree tu adopt
miasures to reduce the risk of a nuclear war (I'rotocoIO the Treaties of

Tlatelolko and Raratonga,agreements betwcciinuclcar Powers,scr above,

pp.7,8).
There are also other international agreements of non-treaty nature

which contain similar provisions about the voluntary refusal of nuclear
states to use nuclear weapons (Mernoranda on the security guarantcesi.in

connection with ~elorussia', Republic of Kazakhstan' and Ukraine's

adhesion tothe NPT, signedbythosc states rcspectivelyand RussiaUK and
USA in December1994).

The unilateral willof states, their unilateral acts do not support the

general practice and/or opinio jztrison the rnatier under consideration
either,quiteon the contrary, whatthey do prov.c,isthe Iackof such practicx

and oyinj iz~riandthe presenceof major contradictionsinviews.
While sorne states clairn thal any use of nuclear wcaponswouldlbe

contrary to ii~ternational.law, others officially proclaim the doctrine of

nuclear containment and stick to it in practicc. tliusexpresslyemphasiwng
the admissibility of tlic use of nuclear weapons.ALthe siime time the

nuclear statesmadcunilateral statements(sec:UNDocumentsS/1995/261.
S/l995/262, S/1995/263,S/1995/264, S/1995/265) in which,while granting

to non-nuclear state-partiesto thNPT the securityguaraiitees against an
aggressionwiththe useof nuclear weapons,voluntarilygaveup theii.rightto

use nuclear weaponsin certain circurnstances.

The reports thrmselves, submittedIO the Court and thus containing
the officia1point of view,testify that no uniform opinionexists among the

stateson this question. It is notewonhy that the lack'of a geiieral prohi"ition of thc use of

nuclear weapons as such in international law is not signalled by nuclear

statesalone (see,for instance,the reports submitted by ihc governments of
Gerinany and the Netherlands).

Sorne nuciear states have, at different timcs, inadestatements of thc
non-use of nuclear weapons first (the fornier USSK, China) which also

signifies that, in their opinion, the use of nuclear weapons has not been

banned inprinciple.
The advocatesofthe existenceof such a ban in international lawrefer

to a number of General Assembly resolutions(I653(XVI), 196'1;33/71B,
1978;34/83B, 1979;3j/l?jD, 1980; 6/21, 1981 ;45/59B. 1990;46/37D,

1991),where it is stated that the use of nuclerirweapons would be a

violation of theUN Charter and a crime againsthurnanity.
As ithas been already mentioned above isce page 8), such General

Asseinbly resolutions donot create by themselvesany obligations forstaies
which are UN Members.They are not, in our opinion, an expression of

opinio jurisof theworld conlmunity either. Itisnot evena questioii of the

voting results oii those resolutions (not one of them wasadopred either by
consensus,or byacclaination,or by a vast mrijorityofUN Mernbers). Many

states vote for these resolutions,or abstain from votiiiy,not voting against,
having in inind that, accordingto the Chartcr, they do noi create new law

and do not signify the recognition of any ruies as such, but are only of

recommendatorynature.
This does not inean that these resolutions do not reflect theopinio

juris of some stateswitha different point of view.Nevertheless, theyrlo not
represent a form of coordination of willsof ail UN Membersin relation to

acçeptanceoftheseprovisionsasinternational law. 17

The same thing can be said about the question of in what capacity
these GA resoludons foi-mthe cjther elenienl ofa cusromary provision -

universal practice.

Furthermore. it is worth noting that the acts of intcrnational
organizations even in their contents give proof to the fact that different

opinions exist on the question at hand. Thus, in the resolution ofthe WHA

46/40 itis noted that "over the last48 years marked diiferencesof opinion
have been expressed by Meinber States about the lawfulnessof the use of

nuclear weapons".The UN Security Councilresolurion984of ..lApril 1995

(S/Res./984(1995) is also exemplary in this seiise,because. accordingto it.
the body charged with the main responsibility forthe maintenance of

international peaceand security"takes notewith appreciation"of the above-

mentioned statements of nuclear states on the assurances to the non-
nuclear Parties to the Nuclear Non-Prolifeiation Treaty (while rhesc

statements teslify to a definitc approach of thrir authors to the legalityof

nuclear weapons use). Furrhermore. itis statcd in this Security Council
Resolution that, accordingto the relevant provisions of the UN Charter,

"any nggrcssion with th; use of nucleai weapons would cndanger

international peacc and sccurity". Thus, itisclrai froin what isstatcd iithe
Security Council Resolution that notjust any iiscof nuclenr weaponsper se

would constitute a violation of the UN Charter but.an aggressioriwith the

useofnuclear weapons.
In our opinion, thc factsstated here prove coiiclusivelythat presently

there isno universal practicenor a universal opit~iojuris on the unlawfulness.

of nuclearweapons'use. Aiid ifso no custoinaryinternational lnwprovision
exists which wouldenvisagea general ban on the use of nuciear weapons

perse. 3. Naturally, a11that has been sajabow docs not mean thnt theuse

of nuclear weaponsis not limired at all. Eveifthe use of iiuclear weapons
isin principlejustifiabl-in individual or collcctiveself-defence-that use

shall be made within the framework ol' limitations imposed by

humanitarian lawwithrespectto means and methods ofconductingmilitary
activities.lt is important to note that with respect to nuclear weapons thosc

limitations are limitationsnder customaryrather than treary Iaw.

The issue oflegalityof the useof nuclear weaponsshall be dealt with
on a case-by-casebasisfiom a viewpointof thecorrespondcncc of such use

to criteria ofself-defenceand the abovelimitatioris:
As Hans Blixsaid.'it iscertainlycorrecto saythat.the legalityofthe

use of mostweaponsdependsupon the manner in whichihey are employed.

A rifle may be lawfully aimed at the enemy or it may be employed
indiscriminatelyagainstciviliansand soldiersalikc. Boinbsrnaybe aimed at

specificmilitary targetsor tlirownat random. The indiscriininaieuse ofthe

weapon willbe prohibited,not the weaponassuch""/. WC should add Ihat it
is a duly qiialifieduse rathrr than the use of wenpoiisas such at largethat

willbe regardedasillegal.

1/ Hans Blh. Meaiis and hfethods of Combrit. In: Internotiorial
Publ., 1988, p.144-145.ian Law. Publ. by LiNESCO. Mariinis Nijhoff