Letter dated 20 June 1995 from the Acting Legal Adviser to the
Department of State, together with Written Comments of the
Government of the United States of America UnitedStatesI)ep~nment oSmte
warhugton,U.CPOU0
Juna 20. 1995
Sir:
In accordence with the Court's ordor of Junc 20, 1994, and
Article 66, paragraph 4, of the Statute of the Court, 1 have
the honor to transmit to you the cnclosed Written Commenta of
the Govarnrnentof the United States of America on the
Submissions of Other States concerning the Raqusst of the World
Health Organization for an Advisary Opinion on the Legality of
Lha Use by s StiaLs of Nuclear Weapons in Armd ConEllct.
Accrpt, sir, Lliaassurances of my highost cansideration.
Sincerely,
Michael J. Matheson
Acting Legal Adviser
Enclosure:
As stated.
Mr. Eduardo Valencia-Ospina,
RegistTntnrnatinnal Court nf Justice,
PeaceThe Hayiin, The Nntherlands BEFORE THE
INTERNATIONAL COURT OF JUSTICE
The Hague
The ~etherlands
.
Request by the WorldHealth Organization
for an Advisory Opinion onthe
Question of the LegalityUnder InternationalLaw
and the WorldHealth OrganizationConstitutionof the
Use of NuclearWeapons by a State in
War or OtherAned Conflict
WRITTEN COMMENTS
OOVERNMENTOP TEE UNITED STATESOF AMERICA
ON TEE SWMISSI(JNS OF OTEERSTATES
Conrad K. Harper
Legal Adviser
Michael J. Matheson
Deputy Legal Adviser
Bruce C. Rashkow
Assistant Legal Adviser
Office of the Legal Adviser
Departmentof State
Washington, D.C.
John H. McNeill
Senior Deputy General Counsel
Departmentof Defense
Washington,D.c.
June 20, 1995 TABLE OF CONTENTS
1. INTRODUCTION AND SUMMARY
A. Jurisdiction
B. Exerciseof jurisdiction
C. Substanceof the request
II. COMMENTSON THE QUESTIONOF'WHETHERTHE COURT SHOULD
EXERCISE ITSDISCRETIONTO ISSUE AN OPINION 5
III. COMMENTSON THE SUBSTANCEOF THE QUESTION POSED 7
A. Environmental Instruments , 10
1. InternationalEnvironmentalTreaties 10
a. 1985 Convention forthe Protectionof
the Ozone Layer 11
b. 1992 Convention onClimate Change 12
c. 1992 Biodiversity Convention 14
2. InternationalEnvironmentalDeclarations 14
a. 1972 Stockholm Declaration on the Human
Environment 15
b. 1992 Rio Declaration onEnvironment and
Development 16
B. Human Rights Instruments 19
C. The Law of Armed Conflict 23
1. 1977 Additional Protocol 1 23
2. The Law of Neutrality 31
3. RenderingDeath Inevitable 32
4. Genocide 33
5. Applicationof the Rules of Anned Conflict 34
IV. CONCLUSION 36 1. INTRODUCTIONAND SUMMARY
By resolution WHA 46.40 of May 14, 1993, the World Health
Organization ("WHO") has requestedan advisory opinion £rom the
InternationalCourt of Justice on the following question:
In view of the health and.environmenta1effects, would
the use of nuclear weapons by a State in war or other
armed conflict be a breach of its obligations under
internationallaw inclu.ingthe WHO Constitution?
Upon receivingthe request, the Court fixed June 10, 1994 as the
time limitwithin whichwritten staternents relating to the
question might be submittedby the WHO and Member States. The,
United tat andea number of other Member States submitted such
written statements. On June 20, 1994, the Presidentof the Court
extended the date for filing such staternentsuntil September 20,
1994 and fixed June 20, 1995 as the time limit within which
States and organizationshaving presented written statements
might submit written comments on-the other submissions. The
United States hereby submits its comrnentson those submissions.
A. Jurisdiction.
As indicated in its initial writtenstatement,the United
States believesthat the Courtlacks jurisdictionto provide the
requested opinion because the WHO has not been authorizedto
request an opinion on the legal question presented. In our view,
none of the other submissionsto the Court presents anycontrary
argument thatwas not fully dealt with in the initial written
statement of the United States. Accordingly,we have no further
comment on this issue at this time. B. Exercise of iurisdiction.
Were the Court nonethelessto determine that it has
jurisdictionto provide the requestedopinion, the United States
believes that the Court, in the exercise of the discretion
provided by Article 65, paragraph 1,.of its Statute, should
decline to provide an opinion. As stated in the initial written
statement of the United States, the legal question presented by
the request does not address the functions and responsibilities
of the WHO. It addresses complex issues which are the subject of
'
considerationin other fora which have an express mandate to
address these matters. A decision ofthe Court in regard to the
question cannot provide any practical guidance to the WHO.
Moreover, such a decision has the potential of undermining
progress alreadybeing made in other fora.
In our view, the initial writtenstatement of the United
States fully dealt with most of the issues relating to the WHO
request that have been raised inother submissions. A few
additional comments seemin order, however, in light of some of
these submissions.
In particular, a fewof the other submissions appear to take
the view that the useof nuclear weaponsis prohibited by an
extremely broadrange of internationalagreements and principles
having nothing to do with the rules of armed conflict, including
those dealing with the environmentand human rights. These
instrumentsdo not fa11 within the competence of the WHO under its Constitution. Rather, they address mattersfor which other
organizationsare responsible.
For these reasons and the others cited in Our initial
written statement,the United States continues to urge the Court
to decline the request by the WHO to provide an advisory opinion.
C. Substance of the reauese.
In view of the possibility thatthe Court maynonetheless
decide to provide an advisory opinion, the initial written
statement of the United States also addressed the legal question
presented by the request. In particular,the United States
argued that there is no general prohibitionin conventionalor
customary international lawon the use of nuclear weapons.
Numerous agreements regulating the possession or use of such
weapons and other state practice demonstratethat their use is
not deemed to be generally unlawful. Nothing in thelaw of armed
conflict indicatesthat the use of nuclear weaponsis prohibited
per se. Further, there is no basis for concluding that the use
of nuclear weapons wouldviolate the WHO Constitution.
Once again, in Our view, the initial written statementof
the United States fully dealt with most of the issues relating to
the use of nuclear weaponsthat have been raised in other
submissions. A few additionalcomments, however, seem necessary
to deal with certainof the arguments made in some of these other
submissions. In particular, asnoted above, a few of these
submissions appearto take the view that the use of nuclearweapons isprohibitedby an extremelybroad range of
international agreements and principles,includingthose dealing
with the environmentand human rights,which have nothingto do
with the rules of armed conflict.
The United States believes that these instrumentsdo not
apply to the use of nuclearweapons. None of them expressly
prohibits orregulatesthe use of nuclearweapons, andnone was
negotiated withthe intentionthat it would be applicablein
armed conflict.
It is, in Our view, clear that a very substantialnumber of
the Statesthat negotiatedthese instrumentswould never have
agreed to them if it had been understoodthat they would be
regarded as prohibiting or restrictingthe use of nuclear
weapons. Accordingly,the most immediateand far-reachingeffect
of any advisory opinion by the Court concluding that the use of
nuclear weapons is restricted or prohibited by these instruments
could be drasticallyto undercut the viability and acceptability
of these essential instruments among importantsectors of the
international community.
Further, the UnitedStates believes that various principles
of the law of armed conflict have bee misstatedor misapplied in
several of the other submissions to the Court. Accordingly,we
shall offer commentson these matters, including thequestion of
the applicabilityto nuclear weaponsof 1977 AdditionalProtocol
1, the rules of neutralityand theconcept ofgenocide. In view of the importanceof the legal question presentedby
the WHO request, the United States reiterates its requestfor an
opportunity to provide further commentsor observations relating
to that question should the Court determine to respond to the
request.
II. COMMENTS ON THE OUESTION OF WHETHER THE COURT
SHOULD EXERCISE ITS DISCRETION TO ISSUE AN OPINION
As indicated in the initial written statement ofthe United
States, and as is generally acceptedin the other written
statements submitted to the Court, it is well established that
the Court has discretionwhether or not to provide an advisory
opinion where it otherwise has jurisdictionto entertain the
request.' Where the issuanceof an opinion would not provide
any practical guidanceto the requesting bodyin the performance
of its functions,or where providingan opinion couldcreate
difficultiesfor another part of the United Nations Organization
in carrying out its responsibilities,the Court may and should
decline the request.
The initial written statement of the United States set forth
reasons why the requested opinionwould provide no practical
guidance to the WHO in the performanceof its functions. The
l Intemretation of Peace Treaties WithBulqaria, Hunqarv
and Romania. Advisorv Ouinion. I.C.J. ReDOrts 1950, p. 65 at p.
72; Reservationsto the Conventionon the Preventionand
Punishmentof the Crime of Genocide.Advisorv O~inion, I.C.J.
Reu01-t~1951, p. 15 at p. 19; S. Rosenne, The Law and Practice of
the InternationalCourt (2d ed. 19851, pp. 652, 658, 698.statementalso describedthe serious risks that such an opinion
by the Court wouldpresent to the substantialprogress already
made by States and international organizations in the field of
arms controland the law of armed conflictconcerningthe
possible useof nuclear weapons.
Several of the submissions byother States appearto assert
that the use of nuclear weapons 1s prohibited by avery wide
range of international agreements and principles having nothing
to do with arms control or the rules of armed conflict. The list
of instrumentsthat purportedly havethe effect of prohibiting'
the use of nuclear weapons includes virtuallyal1 of the
environmental agreements and principles adopted during the past
25 years, a number of instruments concerning the protectionof
human health, many important instruments in the field of human
rights,and a variety of other agreementsand principles in other
areas.
It is difficultto see how an opinionof the Courton the
effect of environrnental,human rights and other instrumentson
the use of nuclear weaponscould assistthe WHO in the
performanceof its functions. For example,environrnental and
human rights questionsare within the competence ofthe United
Nations Environment Programme (UNEPI, the International Maritime
Organization (IMO), the United NationsHuman Rights Commission,
and other internationalbodies. These matters are not within the
competenceof WHO, and WHO would in no way benefit£rom such an
opinion in the exercise ofits responsibilities. For these reasons and the others cited in theinitial
statement of the United States, we believe the Courtshould, in
the exercise of its discretion under Article 65 of its Statute,
decline to provide a response to the WHO request.
III.
The initial statementof th6 United States dealt with most
of the issues raisedin other submissions concerning the
substance of the question posed by the WHO request. We shall not
attempt to reproduce that material here, but refer the Court to
Our initial statement,which the UnitedStates continues to
believe is an accurate analysis of the current state of
international law concerning the use of nuclear weapons.
There are, however, a few areas in which some further
comment is needed with respect tq assertions made ina few of the
statements submittedby other Menber States. Several of these
submissionsappear to assert that the use of nuclear weapons is
prohibited by an astonishing arrayof internationalagreements
and principles having nothing to do with anns controlor the
rules of armed conflict,but dealing insteadwith such diverse
subjects as theprotection of the environment,human health and
human rights.
In Our view, it is clear that these instrumentsdo not
affect the use of nuclear weapons and were never intended to do
so. Rather, Statesnegotiatingthese instruments understoodthatthe use of nuclear weapons was a matter dealt with separatelyby
international instruments concerning the law of armed conflict
Very serious damage could be caused to international
cooperation and the developmentof legal noms in these other
substantiveareas if the Court were to advise that these
instruments somehow prohibitedor restricted the use of nuclear
weapons. In Our view, it would Be difficult to imagine that
those who negotiatedthese instruments, including the
nuclear-weaponStates and those States that rely for their
security on the nuclear deterrentcapabilitiesof others,
intended to prohibit nuclear weapons throughthe adoption of
these various instruments.
For example, the United States has been an important leader
in the development of international agreementsand principles for
the protection of the environment. But the United States would
never have proposedor accepted an instrumentthat had the effect
or intent of prohibiting or restricting the use of nuclear
weapons, which have throughoutthe past several decades been an
essential part of its nationaldefense posture. It is safe to
Say that the same is true for the other nuclear-weapon States and
those States which rely for their security on the nuclear
deterrent capabilitiesof others.
Consequently,any advisory opinion by the Court concluding
that these instrumentsprohibit or regulate the use of nuclear
weapons would introduce a new and highly divisive element into
international effortsto elaborate and enforce these instruments, which could in manyrespects seriously obstruct international
environmental cooperation. It could severelyundermine and
complicate the negotiationof new environmentalinstruments. In
short, it could easily have a disastrouseffect on international
environmentallaw and cooperation.
The same is true.for.theother types of instruments cited
above. It would seriously complfcate negotiationo sn human
rights, health and other important issuesif it should become
necessary, as a result of an advisory opinion of the Court, to
decide as a matter of priority how the instrumentsin question
should affectthe use of nuclear weapons. The ratification of
human rights and other treaties couldbe greatly complicated if
it were to be assumed that these instruments affectedthe highly
important andpoliticallyvolatile questionof the use of nuclear
weapons .
It is essential forthe success of international cooperation
in these fields that the issue of the .useof nuclear weapons --
however important -- be kept separate. This would, however, be
difficult or'impossibleif the Court were to decide that these
various instrumentsdo in fact regulate or prohibit nuclear
weapons, even thoughthis was manifestlynot the intent of States
which negotiated them.
In addition, the UnitedStates believes that various
principlesof the law of armed conflicthave been misstatedor
misapplied inseveral of the other submissionsto the Court.
Accordingly, this section comments on these matters, includingthe question of the applicabilityto nuclear weapons of 1977
Additional Protocol1, the rules of neutrality and the concept of
genocide .
A. Environmental Instruments.
A few of the submissionsof other States to the Court assert
that internationalenvironmental'lawprohibits the use of nuclear
weapons in armed conflict. For the reasons set forth below,
those assertions are incorrect.
Certainly no international environmental instrument
expressly prohibitsor regulates the use of nuclear weapons.
Consequently,such an instrumentcould be applicable only by
inference. Such an inference is not warranted, because none of
these instruments was negotiated with the intention that it would
be applicable in armed conflictor to any use of nuclear weapons.
Further, such an implicationis not warranted by the textual
interpretationof these instruments.
1. InternationalEnvironmentalTreaties. It has been
suggested in the submissionsof some States that international
environmental treatiesare applicable intimes of armed conflict
and that these treaties collectivelyembody a "Principle of
EnvironmentalSecurity",which supposedlyforms part of the law
of war and prohibits the use of nuclear weapons.2 In support of
2 m, u, Written Statementof the Government of the
Solomon Islands, 10 JUne 1994, pp. 76-9.5;Written Statement of
the Government of the Republic of Nauru, September 1994, pp.
36-47; Written Statementof the Governmentof Mexico, 9 June
(continued...) these assertions,one of the submissionsto the Court States that
#*thesilence of the greatmajority of treaties intendedto
protect human health and the environmentallows the conclusion
that they are designedto ensure environmentalprotectionat al1
times, in peace andin war, unless expresslyexcluded."'
The international environmental treatie to which reference
has been made include the 1985 Vl'ennaConventionfor the
Protectionof the Ozone Layer, the 1992 FrameworkConventionon
Climate Change, and the 1992 Conventionon BiologicalDiversity.
AS discussedbelow, none of these treaties was negotiated with
any ideathat it was to be applicablein annedconflict, much
less to prohibitthe use of nuclear weapons. None of them makes
specificor veiled referenceto amed conflict, andnone of them
reflectsany "environmental securityelprincipleor contains any
other provisionsthat wouldsuggest a restriction on the use of
nuclear weapons. The applicationof these treatiesto nuclear
weapons would be for a purpose wholly different£rom that which
was contemplatedby the negotia~ingStates.
a. 1985 Conventionfor the Protectionof the Ozone
u. A review of the text of the Vienna Convention for the
' Written Statement of tne Governmentof the Solomon
Islands, 10 June 1994, p. 93.Protection of the Ozone Layer4reveals no intent, whether express
or implied, to address the legality of the use of nuclear weapons
or any other form of armed conflict. The only provision of the
Convention that even purports to regulate the conduct of the
Parties is a general statementat Article 2(1):
The Parties shall take appropriate measuresin accordance
with the provisions of this Convention . . . to protect
human health and the enviroliment against adverseeffects
resulting or likely to result from human activities which
modify or are likely to modify the ozone layer.
Article 2(1) does not contain any language which suggeststhat
the Parties intended to prohibit any specific activities, and '
certainly none which suggests an intent to prohibit the use of
any category of weapons.
Further, Annex 1 to the Convention sets forth an agenda for
future research concerning substancesand processes that may
adversely affectthe ozone layer. No reference is made, however,
to research regardingthe effectsof the use of nuclear weapons,
or to the effects of the use of any other weapons ormeans of
warfare. The absence of any such reference further indicates
that the Parties did not contemplatethat the Convention would
apply to such matters.
b. 1992 Convention on ClimateChanae. Nothing in
the United Nations Framework Conventionon Climate Changes
Convention for the Protectionof the Ozone Layer, 22
March 1985, 26 InternationalLegal Materials ("ILMU) (1987), p.
1529.
United Nations Framework Conventionon Climate Change, 9
May 1992, 31 ILM (1992), p. 849. addresses,expresslyor by implication,the use of nuclear
weapons orany other aspect of armed conflict. The objectiveof
the Convention,as stated in Article2, is to achieve
"stabilizationof greenhousegas concentrationsin the atmosphere
. . . ." Similarly,the operative provisions of the Convention
cal1 on Parties to take variousmeasuresrelated to emissionsof
greenhouse gases. The Conventiori does not identifythe use of
nuclear weapons as a source of greenhousegases (althoughit
identifiesother sources).
The record of the preparatorywork for the Convention
furtherestablishesthat the negotiatingStates did not intend to
address the use of nuclear weapons. During preparatory work
conducted bythe UNEP/WHO Intergovernmental Panel on Climate
Change that was tasked to develop possibleelements of a
convention,three proposalsrelatingto armed conflictwere
suggested:one to refer to the 1977 Environmental Modification
C~nvention,~ a second suggestinga requirementthat the climate
be used onlyfor "peacefulpurposes",and a third suggestingthat
a linkagebe establishedbetween nuclearstockpilesand climate
change.
It appears, however,that none of these proposals (or
anythingsimilar)was put forwardor discussedduring the
Conventionon the Prohibitionof Military or any other
Hostile Use of EnvironmentalModificiationTechniques, 18 May
1977, 1125 U.N.T.S. 3.
nRep~rton Legal Measuresby the Topic Coordinators",
Response Strategies Working Group, Intergovernmental Panel on
Climate Change (1990).
13negotiationson the Convention that followed,nor were any such
proposalç included in the Convention text. The inescapable
conclusion is that the States that negotiated the Convention did
not intend to deal with such matters in that instrument.
c. 1992 Biodiversitv Convention.Nothing in the text of
the Convention on Biological Diversity8States or implies that it
applies to the use of nuclear weàpons or any other aspect of
armed conflict. The only provision of even arguable relevance is
Article 14, which requires that, in cases where an activity
within a Partyls jurisdictionposes an "imminentor grave danger"
to biological diversityoutside its jurisdiction,that Party
çhall "as far as possible and as appropriate" notify theStates
potentially affectedand initiate action to "prevent or minimize"
the danger. This provision is not designed to deal with armed
conflict and in any event recognizes that there may be
circumstancesin which it is not possible or appropriate to
prevent or minimize dangerto biological diversity. Nothing in
the negotiating recordof which we are aware suggests that this
general admonition was intended to regulate armedconflict, much
less to prohibit nuclear weapons.
2. InternationalEnvironmentalDeclarations. Several
of the submissionsof other States also argue that the use of
nuclear weaponswould be contrary to a series of non-legally
Convention on BiologicalDiversity, 5 June 1992, 31 ILM
(1992),p. 882.binding environmental instrument^. A^ will be seen from an
examinationof those instruments, this conclusion is wholly
unwarranted.
a. 1972 StockholmDeclarationon the Human
Environment. The 1972StockholmDeclarationof the United
Nations Conferenceon the Human Environment'' is not a legally
binding instrument,but rather a political statementof
aspirations. Nothingin the Declaration purports to ban the use
of nuclearweapons in armed conflict. Indeed,the one principle
(Principle26) expresslyaddressingnuclear weapons merely states
that :
Man and his environmentmust be spared the effects of
nuclear weapons and al1 other means of mass destruction.
States must strive to reachprompt agreement,in the
relevant international organs, on the elimination and
complete destruction of such weapons.
At most, thisis only a statementof a policy objectiveand is
certainlynot a statement of alegal prohibition onthe use of
nuclear weapons. Al1 efforts atthe Conferenceto prohibit the
use of such weapons in armedconflict wererejected."
Çee, e.cr,,Written Statement of the Governmentof the
Solomon Islands, 10 June 1994,pp. 76-95;Written Statementof
the Governmentof the Republic of Nauru, September1994, pp.
36-47; Written Statementof the Govern?.ont of Mexico, 9 June
1994, pp. 9-11.
1972),Osectionho1mof the Report of the United Nations Conference
on the Human Environment, UN Doc. A/CONF.48/14 & Corr.1 (1972).
" -See L. Sohn, "The StockholmDeclarationon the Human
Environment,"14 Harvard Int'l L.J. (1973),p. 423 at pp. 508-11. Principle 21 of the Declarationprovides:
States have, in accordancewith the Charter of the United
Nations and the principles of internationallaw, the
sovereign right to exploit their own resources pursuant to
their own environmentalpolicies, and the responsibility to
ensure that activities within theirjurisdictionor control
do not cause damage to the environment of other States or of
areas beyond the limits of nationaljurisdiction.
It is clear, £rom a reading of the whole text of Principle 21,
that it was designed to balance à statement of sovereign rights
to exploit a State's own natural resources with a statement of
the responsibility toensure that the exercise of those rights
does not result in damage to others. It was obviously not
drafted to apply to the conductof armed conflict, much less to
the use of nuclear weapons in foreign territory.
b. 5
Develo~ment. The Rio Declarationon Environment and
Development," likethe Stockholm Declaration, is a non-legally
binding politicalstatementof principles and goals, adopted by
consensus at the 1992 United NationsConference on Environment
and Development (UNCED). It does not address, even by inference,
the legality of the use of nuclear weapons in armed conflict.
Only one of the principlesof the Rio Declaration addresses
armed conflict. Principle24 provides:
Warfare is inherently destructiveof sustainable
development. Statesshall therefore respect international
law providing protection for the environment in times of
armed conflict and cooperate in its further development, as
necessary.
l2 Rio Declaration onEnvironment andDevelopment (14 June
1992), United Nations Conference on Environment and Development,
UN Doc. A/CONF.l51/5/Rev.1 (1992).
16 Thus, Principle 24 calls on States to respect theexisting
international law providing protection fot rhe environment in
times of arrnedconflict, but does not in any way identify the
content of that law, or express an opinion on the adequacy of its
content. Althoughsome States at the Rio Conference soughta
general principle condemning weaponsof mass destruction, they
.
failed in this effort."
Principles 1, 2 and 25 of the Rio Declaration have been
cited for the proposition that the threator use of nuclear
weapons in an arrnedconflict would constitutea breach of
generally accepted principles of internat'ionae lnvironmental law.
However, none of these principles addressesarmed confict or the
use of nuclear weapons.
Principle 1 provides:
Human beings are at the centre of concerns forsustainable
development. They are entitledto a healthy and productive
life in harmony with nature.
Principle 2 is a restatementof Principle 21 of the Stockholm
Declaration. Principle2 provides:
States have, in accordancewith the Charter of the United
Nations and the principles of internationallaw, the
sovereign rightto exploit their own resources pursuant to
their own environmentaland developmentalpolicies, and the
responsibilityto ensure that activitieswithin their
jurisdictionor control do not cause damage to the
environmentof other States or of areas beyond the limits of
national jurisdiction.
l3 Çee J. Kovar, "A Short Guideto the Rio Declaration," 4
Colorado J. of Int'l EnvironmentalLaw & Policy (1993), p. 119 at
p. 138. This text simply adds to Stockholm Princip21 the words
"and developmental" afterthe word "environmental"in the phrase
"pursuant to theirown environmentaland developmentalpolicies."
It thus no more today supports the position that international
law prohibits the use in armed conflict of nuclear weapons than
it did twentyyears ago.
Principle 25 provides that:'
peace, development and environmentalprotection are
interdependentand indivisible.
While this principle identifies peacas an essential
prerequisite to sustainabledevelopment,it does not purport to
outlaw war, or to make theuse of nuclear weaponsn armed
conflict unlawful
Neither the nuclear-weapon Statesnor those States that rely
for their security on the nuclear-weapon capabilitiesof others
would ever have accepteda prohibition onthe use of nuclear
weapons in the context of such an instrument. The attemp-
~oçt facto to interpret these instrumentsas if suca
prohibition had been accepted would be to stand these instruments
on their collectivehead and reverse the clear intent of the
States that negotiated them.
Further, to the extent that the Courtwere to decide that
the use of nuclear weapons is prohibited or restricted by
international environmental agreementsr principles, very
serious damage could be caused to internationalcooperation and
the development of legal norms in this area. Any determination
by the Court that these instrumentsprohibit or restrict the use
18of nuclear.weaponswould introducea new and highly divisive
element into international cooperation in this field.
B. Human Rishts Instruments.
The argumenthas beenmade that theuse of nuclearweapons
violates the international1y.guaranteed right to life,based on
such international instrumenta sh the UniversalDeclarationof
Human Rights, the International Covenant of Civil and Political
Rights, the American Conventionon Human Rights and the European
Conventionon Human Rights. However, in the view of the ~nited
States, the use of nuclearweapons in the exerciseof legitimate
self-defensewould not be in any way inconsistent with such a
right to life.
The human rights instruments which recogniz ae right to life
do not by theirterms prohibitthe use of nuclear orany other
weapons. For example,the UniversalDeclarationprovides in
Article 3 that " [elveryonehas the right to life, liberty and
securityof person."" Nowhere in theUniversal Declaration is
there any mentionof a limitationor prohibitionon the use of
any form of weaponry. The formulation contained in the
InternationalCovenanton Civil and PoliticalRights differsonly
l4 Universal Declaration of Human Rights, UNGA Res. 217A
(III),UN Doc. A/811, adoptedDec. 10, 1948.slightly,primarily by adding to this basic assertion that no one
shall be "arbitrarilydeprivedu of life.15
None of these instrumentsprohibits, directly or indirectly,
the taking of life for legitimatepurposes, includingin the
exercise of the right to self-defense. That inherent righthas
long been understoodand intended to comprehend the right to use
lethal force, and it is inconceiv'able that the various human
rights instruments cited could have been intende to abridge that
right so long as the rules of armed conflict and the limitations
of the U.N. Charter are observed.
Thus, the prohibition in the International Covenanton Civil
and Political Rights against arbitrarilydepriving someone of his
or her lifewas clearly understoodby its drafters to exclude the
lawful taking of human life. During the negotiation of the text
which becameArticle 6, various delegations indicated a
preference for includingan explicit statement of the
circumstancesunder which the taking of life would not be deemed
a violation of the general obligationto protect life, including
ktci killings resulting £rom the use of force whichis no
l5 Art. 6(1) of the 1966 International Covenanton Civil
and Political Rights provides: "Every human being has the
inherent rightto life. This right shall be protected by law.
No one shall be arbitrarilydeprived of his life." aIsn the
1969 American Convention on Human Rights, Art. 4i1): "Every
person has the right to have his life respected. This right
shall be protected by law, and, in general, £rom the moment of
conception. No one shall be arbitrarilydeprived of his life."
Article 4 of the 1981 African Charteron Human and Peoples'
Rights States: "Human beings are inviolable. Everyhuman being
shall be entitled to respect for his life and the integrity of
his person. No one may be arbitrarily deprived of this right." more than absolutelynecessary,or whichoccur in case of self-
defense,or which are lawfullycommittedby the military in time
of war.16 Rather than attempt to identifyal1 the possible
circumstancesunder which the taking of life might be justified,
the draftersagreed to a simple prohibition on the "arbitraryu
deprivationof life. In any event,we know of no significant
.oppositionto the propositionthat the deprivationof life as a
"lawfulact of war" would not be violativeof the protected right
to life. The European Convention, which also guaranteesthe
right to life, specifically recognizes the right of States to '
deprivepersons of theirlives through lawfulacts of war."
It has been suggestedthat the Human Rights Committee,in
General Commentsissued in 1982 and 1984, has construed the
Covenanton Civil and Political Rights as prohibitingthe
possessionand use of nuclear weapons. That is not, however,
what theCommittee actuallysaid, and those Comments are net in
fact inconsistent with the view that theCovenantdoes not
prohibit the taking of life for legitimate purposes, including
the proper exerciseof the right of self -defense.
l6 See, e'cr.,Bossuyt and Humphrey,Guide to the "Travaux
Politiçal (1987),pp. 115-125.
l7 Article 2 of the European Convention on Human Rights
prohibitsthe intentionaltaking of life, Save in the case of
more than absolutely necessarythein quellingriots orisno
insurrections,preventingthe escape of a lawfully-heldprisoner,
effecting a lawful arrest or in self-defense. Article 15
prohibits derogations from Article 2 "exceptin respect of deaths
resultingfrom lawfulacts of war." The 1982 Comment, for example, notes that the U.N. Charter
prohibits the threator use of force by one State against
another, but e'xpressly recognizes the inherent rightof self-
defense.18 The 1984 Comment, while recognizing that nuclear
weapons are among the greatest threats to the right to life, does
not purport to declare that possession or use of such weapons is ..
prohibited per se by internationallaw. Rather, it simply
proclaims that the production, testing, possession, deployment
and use of such weapons "should"be prohibited, thereby
expressing an aspirational goalto be achieved and not a binding
rule of internationallaw.19
Accordingly, the citation of human rights instruments adds ,
nothing to the analysis of the question whetherthe use of
nuclear weaponsis consistentwith existing internationallaw.
The answer to that question is determined, as it must be, not by
l8 Çee General Comment 6/16, July 27, 1982, at paragraph 2:
"The Committee observesthat war and other acts of mass violence
continue to be a scourge of humanity and take the lives of
thousands of innocent human beings every year. Under the Charter
of the United Nationsthe threator use of force by any State
against another State, except inexercise of the inherent right
of self-defence, is already prohibited. The Committee considers
that States have the supreme duty to prevent wars, acts of
genocide and other acts of mass violence causing arbitraryloss
of life." HRI/GEN/l/Rev. 1 at p. 6 (1994).
l9 See General Comment 14/23, Nov. 2, 1984, paras. 4 and 6:
" [Tlhedesigning, testing, manufacture,possession and deployment
of nuclear weapons are among the greatest threatsto the right to
life which confront mankind today. This threat is compounded by
the danger that the actual use of such weapons may be brought
about, not only in the event of war, but even through human or
mechanical erroror failure ....The production, testing,
possession, deployment and use of nuclear weaponsshould be
prohibited and recognizedas crimes against humanity."
HRI/GEN/l/Rev.1 at p. 6 (1994).reference to human rights instrumentsbut by applicationof the
principles of international law governing the uso ef force and
the conduct of armed conflict.
C. The Law of Armed Conflict.
The initial written statementof the United States addressed
in some detail the applicability'tonuclear weapons of the
international lawof armed conflict. For the most part, that
statement dealt sufficientlywith the arguments raisedin
submissions ofother Member States in this area. A few ~oints,
however, require some elaboration. In particular,various
principles of the law of armed conflict havebeen misstatedor
misapplied in several of the other submissionsto the Court.
Accordingly, the followingcontains comments on these matters,
including the applicabilityto nuclear weapons of 1977 Additional
Protocol 1, the rules of neutralityand the concept of genocide
1. 1977 Additional Protocol 1. As indicated in the
initial statement of the United States, Additional Protocol1 to
the 1949 Geneva ~onventions'~ contains a number of new rules on
means and methods of warfare, which of course apply onlyto
States that ratify the Protocol. (Forexample, the provisions on
reprisals and the protection of the environment arenew rules
20 Protoc01 ~dditional to the Geneva Conventionsof 12
August 1949, and Relatingto the Protectionof Victims of
International Armed Conflicts ("Protocol 1"), 12 December 1977,
1125 U.N.T.S. 3.that have not been incorporated intocustomary law.I2' It is,
however, clear from the negotiating andratification record of
Protocol 1 that the new rules contained inProtocol 1 were not
intended to apply to nuclear weapons.
At the outset of the negotiationsthat led to Protocol 1,
the International Committeeof the Red Cross (ICRC) stated that:
Prohibitionsrelating to atohic, bacteriological and
chemical warfare are subjects of international agreementsor
negotiationsby governments,and in submitting these draft
Additional Protocols the ICRC does not intend to broach
these problems .22
Explicit statements to the same effect were made during the
negotiations bythe United Statesand others. For example, the
representative of France stated that:
The French delegation therefore wishes to make it quite
clear that its Government could not under any circumstances
permit the provisions of Protocol 1 to jeopardize the
"inherent rightof . . . self-defence",which France intends
to exercise fully in accordancewith Article 51 of the
United Nations Charter,or to prohibit the use of any
specific weapon which it considersnecessary for its
defence. Already in 1973, the French Government noted that
the ICRC did not include any regulations on nuclear weapons
in its drafts. In participatingin the preparation of the
additional Protocols, therefore,the French Government has
taken into consideration only conflicts using conventional
weapons. It accordinglywishes to stress that in its view
the rules of the Protocols donot apply to the use of
nuclear weapons. On numerous occasions the French
Government has indicated its willingness to study the
problems of nuclear weaponswith the Powers directly
21 ,ÇeeM. Bothe, K. Partsch & W. Solf,
ed Conflictç (1982).pp. 312, 317; International
Committee of the Red Cross,
1977 (19871,p. 662.
22 InternationalCommittee of the Red Cross,
1972 (19871,p. xxxii. concerned,in an attempt to achievegeneral disarmamentwith
suitablecontrols. 23
The representativeof the United Kingdom is reportedas stating
that :
His delegation also endorsed the ICRC's view, expressed
in the Introductionto the draftProtocols,that they were
not intendedto broach prob1ems:concerned with atomic,
bacteriologicalor chemicalwarfare,which werethe subject
of existing international agreement snd current delicate
negotiations by Governrnents elsewhere. It was on the
assumptionthat the draft Pfotocolswould not affectthose
problems that the United KingdomGovernmenthad worked and
would continue'towork towards final agreementon the
protocols.2'
The representativeof the UnitedStates is reportedas stating
that :
. . . From the outset of the Conferenceit had been his
understandingthat the rules to be developedhad been
designedwith a view to conventionalweapons. During the
the use of nuclear weaponsin warfare. He recognizedthatf
nuclear weaponswere thesubjectof separatenegotiations
and agreementsand, further,that their use in warfare was
governedby the present principles of internationallaw. It
was his Governrnentis understandingthat the rules
establishedby the Protocolwere not intendedto have any
effect on, and didnot regulateor prohibit the use of,
nuclear weapons. It furtherbelieved that the problem of
the regulationof nuclear weapons remainedan urgent
challengeto al1 nations which would have to be dealt with
in other forums and by other agreement^.^'
The representativeof the soviet Union is reportedas stating
that :
" OfficialRecords of the Diplomatic Conference of Geneva,
Vol. VII, p. 193.
24 OfficialRecords of the DiplomaticConference ofGeneva,
Vol. V, p. 134.
25 Officia1Records of the DiplomaticConferenceof Geneva,
Vol. VII, p. 295. His delegation agreed with the point of view of the
ICRC as to the tasks of the Conference with regardto the
prohibition of weapons. As was pointed out by the ICRC in
the introductionto the draft AdditionalProtocols:
"Prohibitionsrelating to atomic, bacteriologicaland
chemical warfare are subjects of internationalagreements or
negotiationsby Governments,and in submitting these draft
~dditional Protocols the ICRC does not intend to broach
those problems. "16
we are aware of no convincing evidenceto the contrary in
the negotiating record. The subriissionof one Menber State to
the Court in the presentcase cited statements by several
delegations that nuclear weapons should be prohibited by the
Protocol, but these statementsof negotiatingobjectives were
made at the very beginningof the four-session Conferenceand
were not reiteratedin the later stages of the Conference when it
had become clear that no such prohibition had been accepted.
We are aware of only one specific assertionin the
Conference recordthat any part of the Protocol applies to
nuclear weapons -- namely, a brief assertion by the Indian
delegation that the "basic rules" contained in oneparticular
article of the Protocol applied to nuclear as well as other types
of weapons." This statement, however,in addition to being
qualified and limited inscope, appears not to have actually been
made in debate but simply to have been insertedfor the record
among many other pro forma explanationsof vote. It is, in other
words, an unpersuasive basison which to assert that there was a
26 Official Records of the Diplomatic Conference ofGeneva,
Vol XVI, p. 188.
*' Official Records of the Diplomatic Conference ofGeneva,
Vol. VI, p. 115. significant challengeto the clear and repeated assertions of the
other delegationsmentioned above.
Furthemore, in creating an ad hoc committee to consider
specific restrictionson the use of conventionalweapons thought
to present special dangers to the civilian population,the
Conference rejected a proposa1 to expand the scope of thisstudy
to nuclear weapons. The Committèe concluded that many
delegations accepted"the limitationof the work of this
Conference to conventionalweapons," noting in particular the
important function ofnuclear weapons in deterring the outbreak
of amed conflict .28
Nevertheless,in light of the importanceof this point, a
number of States made clear formal statementsupon signature or
ratification emphasizingthat the new rules adopted in the
Protocol wouldnot apply to nuclear weapons. For example, the
signature of the UnitedKingdom was based on the forma1
understandingthat "the new rules introducedby the Protocol are
not intended to have any effect on and do not regulate or
prohibit the use of nuclear weapons."29 The signature of the
United States was based on the forma1 understandingthat "the
28 Official Records of the Diplomatic Conference ofGeneva,
Vol. XVI, p. 454.
29 InternationalCommitteeof the Red Cross, Public
InformationDivision, a-ROM on International Humanitarian Law
(September1993) (containingan up-to-date list of signatures,
ratifications,accessionsand successions relatingto
international humanitarian law treaties, as well as the full text
of reservations,declarationsand objections thereto)(United
Kingdom) .rules established by thisprotocol werenot intended to have any
effect on and do not regulate orprohibit the use of nuclear
weapons."" Theratificationof Belgium was subject to the
forma1 declaration that:
The Belgian Government, in view of the travaux preparatoires
for the internationalinstrumentherewith ratified, wishes
to emphasize that the Protocol was established to broaden
the protection conferred by humanitarianlaw solely when
conventionalweapons are usèd in armed conflicts, without
prejudice to the provisions of international law relating to
the use of other types of weapons."
The ratification of Canada was subject to the following forma1
understanding:
It is the understandingof the Government of Canadathat the
rules introduced by Protocol1 were intended to apply
exclusively to conventional weapons. In particular, the
rules so introduced donot have any effect on and do not
regulate or prohibit the use of nuclear weapons.32
The ratification ofGermany was subject to the forma1 declaration
that :
that theherules relating to the use of weapons introduced by
Additional Protocol 1 were intendedto apply exclusively to
conventional weaponswithout prejudiceto any other rules of
internationallaw applicable to other types of
weapons ."
The signature of Italy was subject to the following forma1
understanding:
It is the understandingof the Government of Italy that the
rules relating to the use of weapons introducedby
'O Id. (UnitedStates).
-d. (Belgiumi
32 Id. (Canada) .
33 Id. (Germanyi Additional Protocol 1 were intendedto apply exclusively to
conventional weapons. They do not-prejudiceany other rule
of international lawapplicableto other types of
weapons .34
The ratification ofthe Netherlandswas subject to the forma1
declaration that:
It is the understanding ofthe ~overnment of the Kingdom of .,
the Netherlands that the rules introducedby Protocol 1
relating to the use of weaponswere intended to apply and
consequentlydo apply sole13 to conventionalweapons,
without prejudiceto any other rules of internationallaw
applicable to other types of weapons."
The signature of Spain was subjectto the formal declaration
that :
It is the understandingthat this Protocol, within its
specific scope applies exclusivelyto conventionalweapons,
and without prejudice to the rules of InternationalLaw
governing other types of weapons."
None of these statementsand declarations wascast in the
form of a reservationbecause,'ofcourse, none of the States
making them had any reason to beIieve that their substance was in
any way inconsistent withthe provisionsof Protocol 1. To Our
knowledge, no State made any comment or objectionto any of these
forma1 and clear statementsand declarations, nor didany State
express a contrary view in connectionwith itsown signature or
ratification ofProtocol 1. In short, the record of signature
and ratificationof Prorocol 1 reflect a manifest understanding
-d. (Italy) .
3s Id. (Netherlands) .
36 Id. (Spain) .that nuclear weapons werenot prohibited or restricted by the new
rules established by Protocol 1.
Under the rules of treaty interpretation codifiedin the
Vienna Conventionon the Law of Treaties," this recordis
dispositive as tothe interpretationof the Protocol on this
point. The preparatorywork of Protocol 1 and the instruments
filed by States signing or ratifring the Protocol show that
nuclear weapons were not prohibited or restrictedby the new
rules established by the Protocol.
This conclusionis consistent with theanalysis of those
experts on international humanitarianlaw who are best informed
on the Conference's work. For example, the officia1 Commentary
of the ICRC concluded: that "there is no doubt that during the
four sessions of the Conference agreement was reached not to
discuss nuclear weaponsu; that the principles reaffirmed in the
Protocol "do not allow the conclusion that nuclear weapons are.
prohibited as such by internationalhumanitarian law"; and that
"the hypothesis that States acceding tothe Protocol bind
themselves withoutwishing to -- or even without knowing -- with
regard to such an importantquestion as the use of nuclear
weapons, is not a~ceptable."~'Likewise, the extensive
commentary of Bothe, Partsch and Solf on the Protocols concludes
that the negotiatingrecord "shows a realizationby the
" Convention on the Law of Treaties, 22 May 1969, 1155
UNTS 331.
" InternationalCommittee of the Red Cross, Commentarv on
the Additional Protocolsof 8 June 1977 (19871, pp. 593-94.
3O Conference that the scope of its work excluded the special
problems of the use of nuclear weapons."39
2. The Law of Neutralitv. It was asserted in a few of
the submissions to the Court that therules of neutrality in the
law of armed conflict apply to and prohibit the use of nuclear
weapons.40 However, the principleof neutrality4'is not a broad
guarantee to neutral States of inimunity £rom the effects of war,
whether economicor environmental. It was intendedto preclude
military invasion or bombardmentof neutral territory, and
otherwise to define complementary rightsand obligations of
neutrals and belligerent~.~~ We are aware of no case in which a
belligerenthas been held responsiblefor collateraldamage in
neutral territory forlawful actsof war committedoutside that
Further, the argument that the principle of neutrality
prohibits the use of nuclear weapons is evidently based on the
39 Bothe, Partsch & Solf, supra, p. 191.
E.q., Written Statementof the Government ofMalaysia,
pp. 9-10; Written Statement of the Governmentof Nauru (September
1994). pp. 35-36.
41 See Convention (V) Respectingthe Rights and Duties of
Neutra1 Powers and Persons in Case of War on Land, 18 October
1907, A. Roberts & R. Guelff, eds., Documentson the
Laws of War (2d ed. 19891, p. 63.
42 m, m, Greenspan, s,
p. 356 (1959); W. Bishop, Jr., International Law: Cases and
Materials,pp. 1019-20 (1971).
43 Çee G. Schwarzenberger,InternationalLaw as A~ulied by
InternationalCourts and Tribunals,Vol. II, pp. 582-591 (1968).assertion that the use of such weapons would inevitably cause
severe damage in the territory of neutral States. This
assumption is incorrect and in any event highly speculative. The
Court could not find that such damage would occur without knowing
the precise circumstancesof a particularuse. Like any other
weapon, nuclear weapons couldbe used to violate neutrality, but
this in no way means that nuclea? weapons are prohibited per se
by neutrality principles.
3. Renderina Death Inevitable.At least one of the
submissions to the Court asserts that the use of nuclear weapons
would violate the principle expressed in the 1868 St. Petersburg
Declaration concerning weaponsthat "renderdeath ine~itable."~~
This assertion isevidently based on the argument that any
nuclear weapon "would not leave those within the immediate
vicinity of the explosion with any reasonable chance of
survival .""
This argument is based on a misconceptionof the St.
Petersburgprinciple, which was directed at weapons (such as
poisoned projectiles)that were deliberatelydesigned to kill
when that design feature was not needed to disable enemy
combatants or to destroy a lawful militaryobjective. This does
not mean that it is unlawful to use a weapon that has a high
44 Declaration Renouncing the Use, in Time of War, of
Explosive ProjectilesUnder 400 Grammes Weight, 11 Decernber 1868,
reprinted in Roberts & Guelff, note 41, p. 29.
45 Written Statement of the Governmentof the Solomon
Islands (June 10, 1994). pp. 47-48.probabilityof killing perçonsin its immediatevicinity if that
design feature is requiredto fulfilla legitimatemilitary
mission.
For example,any large high-explosiveor fragmentation
weapon has a high probability of killing exposedpersons within a
certain distanceof the detonation. An effectiveanti-submarine,
anti-aircraftor anti-tank weapon has ahigh probability of
killing the crewsof these vehicles..This factdoes not make
these weapons unlawful,since these lethal effects are necessary
for the effectiveaccomplishmentof their legitimate mission.
By the same token, a nuclear weaponis not prohibitedper se
by the St. Petersburg principle if its effectsare requiredfor a
legitimate militarymission. For example,the use of a nuclear
weapon to destroy a naval vesse1 or an armored formation does not
violate this principle,even thoughthere would likely be a very
high casualty rate among targetedcombatants..
4. Genocide.At least one of the submissionsto the
Court asserts that any use of nuclear weaponswhich affects a
large number of non-combatantscould constitute genocide,and
that "the element of intent for genocidecould be inferredfrom
the mere failureof the person using the nuclearweapons to take
account of itsfull effects . . . ."46 This is a serious
misstatementof the elementsof the offenseof genocide, whichis
only committedif violent actsare done "withintent to destroy,
in wholeor in part, a national, ethnical, racial or religious
46 -Id., p. 52.
3 3group . . . .n47 The deliberate killingof large numbers of
people is not sufficientto establish this offense unlessthis
genocidal intent is demonstrated. Like any other weapon £rom
firearms to poison gas, nuclear weapons couldbe used to commit
genocide, but this fact in no way renders their use illegal
-e.
5. A-. The United
States has long taken the position that various principles of the
internationallaw of armed conflict wouldapply to the use of
nuclear weapons aswell as to other means and methods of
~arfare.~' However, this in no way means that the use of nuclear
weapons in precluded by the law ofwar. Rather, as is explained
in some detail in the initial statement of the United States in
this case, the legalityof the use of such weapons depends on the
precise circumstancesof their use.
A few of the submissions tothe Court argue that the use of
nuclear weapons isinherently precluded bythese principles of
international humanitarianlaw, regardless of the circumstances
of their use.'= It seems to be assumed that any useof nuclear
weapons wouldescalate into a massive strategic nuclearexchange,
47 Convention on the Preventionand Punishment of the Crime
of Genocide, 9 December 1948, UN General Assembly Resolution 260
A(III), 78 UNTS 277, Art. II.
" See InternationalRed Cross Conference Resolution
XXVIII, 20th InternationalRed Cross Conference (1965).
49 u, Written Statement of the Government of the Solomon
Islands (June10, 19941, p. 43, 27; Written Statementof the
Government of Nauru (Septernber 1994). pp. 53-54. with the deliberatedestructionof the populationcenters of the
opposing sides.50
Such assumptionsare speculative in the extreme, and cannot
be the basis for conclusions by the Courton the legalityof
hypothetical uses of nucleaw reapons that otherwisecomply with
the principles ofinternationalhumanitarianlaw. In fact, any
serious analysisof the legality'ofa hypothetical use of nuclear
weapons would of necessity have to considerthe precise
circumstancesof that use, including thenature ofthe enemy
threat, the importanceof destroying theobjective,the
character, size and likely effectsof the device, and the
magnitude ofthe risk to civilians.
Such factors cannot be adequatelydefined, let alone
evaluated,in the abstract,and any attemptby the Courtto do so
would, in Our view, be speculativeand inappropriate. As the
ICRC has stated in its officialCommentaryon the 1977 Additional
Protocolsto the 1949 Geneva Conventions, "it is difficultto
accuratelydefine the borderline between a use of nuclear weapons
which may be lawful and a use which is unlawful: this could only
be establishedby means of negotiationsbetween States aimed at
determiningthe scope and consequences,as regards nuclear
weapons,of the principlesand rules restated in the
Proto~ols."~'.Inlight of the fundamentalimportance of this
50 Written Statementof the Government ofthe Solomon
Islands (June 10, 1994), p. 50-51.
'' InternationalCommitteeof the Red Cross, Commentan on
the (1987197,. 595.subject, the Court should not lightly embark on any hypothetical
examinationof circumstancesthat could only bedimly understood
in advance of an actual situation.
IV. CONCLUSION
The United States remains of the view that the WHO has been
authorized torequest opinions ohly in regard to questions
arising withinthe scope of its competence. Thequestion of the
legality of the use of nuclearweapons is not within the
competenceof the WHO, and therefore, the Court lacks
jurisdiction toprovide the requested opinion. If the Court
nonetheless determines thatit has jurisdictionto provïde the
requested opinion,the Court should, in the exerciseof the
discretion provided by Article 65,paragraph 1, of its Statute,
decline to provide an opinion. In any event, there is no general
prohibition in conventionalor customary internationallaw on the
use of nuclear weapons; there is no basis for speculationby the
Court as to the manner in which the law of armed conflict might
apply to the use of nuclear weapons in hypothetical future
situations;and there is no basis for concluding that the useof
nuclear weapons wouldviolate the WHO Constitution.
Letter dated 20 June 1995 from the Acting Legal Adviser to the Department of State, together with Written Comments of the Government of the United States of America