Note verbale dated 19 June 1995 from the Embassy of Malaysia, together with Written Comments of the Government of Malaysia

Note Verbale dated19 June 1995 fromthe Embassyof Malaysia,
together with WrittenCommentsof the
Governmentof Malaysia BOE 31/95

The Embassy of Malaysia presents its compliments to the
Registry of the International Court of Justice and with

reference to Registry's letter ref. 91934 dated 5th
October, 1994, has the honour to submit the faxed
statement by the Government of Malaysia regarding the

repest by the World Health Organization for an advisory
opinion by the International Court of Justice on the

legality of the use of nuclear weapons in view of their
effects on human health and the environment.

The Embassy bas furtner the honour to inform that

it will be submitting the original copy to the Reqistry
in due course.

The Embassy of Malaysia avails itself of chis opportunity

to renew to the Reqistry of the International Court of
Justice the assurances of its highest consideration.

The Hague,

19th June, 1995

0,'
ce of t,?e Reqiscrar
International Cour: of Juscice
Peace Palace
2517 KJ THZ HAGUE. THE GOVERNMENT OF MALAYSIA

in support of the

REQUEST BY THE'WORLD HEALTH ORGANISATION

for an

AüVISORY OPINION BY THE INTERNATIONAL COURT OF JUSTICE

on

THE LEGALITY OF THE USE OF NUCLEAR WEAPONS SUMMARY

Thirty-five States made statements to the International Court
of Justice on the question asked by the World Health
Organisation (WHO) on whether the use of nuclear weapons by a
State in an armed conflict would be a breach of its
obligations under international law includingthe WHO
Constitution.

Of these, nine States argued that the Court should not
consider the case, stating that the WHO did not have the
mandate to request such an opinion or that the Court should
use its discretion not to respond. Five of these nine States
argued that should the Court decide to consider the merits of
the case, it should determine that the use of nuclear weapons
is not illegal per se. Five States argued that the case was
admissible and that the Court should give an opinion. Twenty-,
two States took the position that the use of nuclear weapons
is illegal. (See Appendix 1 for a list of States making
statements and a tabular analysis of their statements.)

Malaysia supports the argument that WHO is competent to
request the opinion from the Court on the grounds that the
use of nuclear weapons has direct and substantial
implications for health, which are a legitimate and
longstanding concern of the WHO.

Malaysia disagrees with the argument that the Court should
use its discretion to decline to give a reply to the WHO. It
are compelling reasons not to do so. Malaysia believes thatre
the support from the UnitedNations General Assembly forthis
request indicates that a response from the Court will aid
rather than hinder international efforts for disarmament.

Malaysia disagrees with the argument that the lack of a
specific convention prohibiting the use of nuclear weapons
means that such use is therefore legal. The use of nuclear
weapons is clearly prohibited by a vast body of humanitarian,
human rights and environmental law, without specific
reference to such weapons. In this connection, Malaysia
supports the arguments submitted to the Court by other States
that the use of nuclear weapons is illegal on the grounds
that any such use would violate the right to life and laws of
war, which prohibit weapons or tactics which cause
unnecessary or aggravated suffering, are indiscriminate, use
poisonous gases, liquids or analogous substances, violate the
neutral jurisdiction of non-participating States, cause
widespread, long-term and severe damage to the environment
and human genetic composition, and are disproportionate to
antecedent provocations. Malaysiasupports in particular the
detailed arguments submitted by Mexico, Nauru and Solomon
Islands.In addition, opinio juris and the dictates of public
conscience supportthe argument that any use of nuclear
weapons is illegal. Evidence of public conscience was
presented unofficially to the Court by representativesof
Non-GovernmentalOrganisations on 20 June 1994.

Both biological and chemical weapons have been banned.
Malaysia fails to comprehend how nuclearweapons, which are
weapons of mass destruction par excellence, with the capacity
to destroy civilisation itself, could be classified, for
legal purposes, as "just another weapon", to be judged like
any other bomb or artillery shell. Indeed, the awesome
destructive power of a nuclear weapon, claimed by the nuclear
weapon States to be an instrument of deterrence, is the
reverse side of the coin of illegality. 1. ADMISSIBILITY

Substantial portions of the statements submitted to the Court
by States, opposing the WHO request, address the question of
admissibility, i.e. WHO's competence in the matter. Malaysia
firmly believes that such competence exists in view of WHO's
past concerns with the health and environmental effects of
nuclear war and the fact that the potential health hazards
arising from a nuclear war dwarf any other health hazard
imaginable.

However, the question of WHO's competence to request such an
opinion is now moot in the light of the request by the UN
General Assembly for an advisory opinion on the question, "1s
the threat or use of nuclear weapons in any circumstance .
permitted under international law?" This question subsumes
the question requested by WHO. Article 96(1) of the UN
Charter provides that the General Assembly may request an
advisory opinion on "any legal question". Therefore, there is
now no reason for the Court to turn down the request on
grounds of admissibility.

Should the Court, however, wish to enter into the merits of
the argument, that WHO has the competence to requestrt fosuch an
opinion, is attached as Appendix II.

2. DISCRETION

A number of States, including the US, UK, Australia, Finland,
France, Germany and the Netherlands argued that, even if WHO
has the mandate to request this advisory opinion, the Court
should use its discretion not to give an opinion. Below are
some of their arguments and Malaysia's response to them.

2.1 This is a Political, not a Legal, Question

Some States argued that the question of the use of nuclear
weapons is primarily a political question, not suited to
legal inquiry.

Australia stated that "The subject matter of the question is
unsuitable for adjudication as it clearly goes beyond a
definable field of judicial enquiry and enters into the wider
realms of policy and security doctrines of States." (p. 3)

France stated that "Despite the legal guise in which it has
been decked out, the question thus put is of an exclusively
political nature." (p. 12) The United Kingdom argued that the WHO request is "a device
to tempt the Court into an involvement in an essentially
political debate." (p. 55)

Response :

The question asked of the Court is clearly a legal question.
The Court is being asked only to determine whether the use of
nuclear weapons by a State would be a breach of its
obligations under international law and the WHO Constitution.
The Court is not being asked to comment on the effect any use
of nuclear weapons would have on the political relationships
between States or on international peace and security, nor to
determine what political steps should or could be taken in
the area of nuclear disarmament.

Although the question undoubtedly has major political
significance, it is a legal question, that is, one which can
be answered on the basis of law. The Court is invited "to
undertake an essentially judicial task" (Expenses Case, 1962
principles andp.rules applicable to the question submitted to

it.
As this Court noted in the Interpretation of Peace Treaties
Case (1950 ICJ Reports, p.71), "The Court's opinion is not
given to the States but to the organ which is entitled to
request it ...The reply of the Court, itself an 'organ of the
UN', represents its participation in the activities of the
organisation, and, in principle, should not be refused."

It should be noted that the political question doctrine, on
the basis of which courts may refuse to entertain questions
capable of resolution by other branches of government, is a
doctrine peculiar to the juriprudence of the United States.
It is not present, or at least not firmly implanted, in the
jurisprudence of other countries, much less in international
law. It would seem therefore not to be a proper principle to
be applied by the International Court of Justice.

At the recent UN Congress on Public International Law, H.E.
Mohammed Bedjaoui (President of the ICJ) and Sir Ninian
. Stephen (Judge, International Tribunal for theFormer
Yugoslavia) urged greater use of the Court's advisory
jurisdiction as an integral part of the work of preventive
diplomacy.

Indeed, it is precisely for the sake of propriety that the
Court should not decline to answer WHO'S question. If "the
principal judicial organ of the United Nations" (Article 92.
UN Charter) will not answer this most fundamental question and safeguard the rule of law on behalf of "the peoples of
the United Nations" (preamble, UN Charter), then which court
can?

2.2 Nuclear Weapons are Political Weapons
This is a variant of the political question argument, but one
which needs to be considered separately.

Opponents of WHO'S request for an advisory opinion describe
nuclear weapons as "political weapons" essential for
deterrence and thus for security (France, pp. 1-2, Germany,
p.4, Russian Federation, p.2).

Response:

If it were true that nuclear weapons are essential for
security, every nation would require to be defended by them.
The fact, that the majority of countries have signed the
Nuclear Non-Proliferation Treaty as non-nuclear States
renouncing any intention of acquiring nuclear weapons,
indicates.that nuclear weapons are not required for security.

Nuclear weapons not only do not provide security, they
generate insecurity. This belief is reflected in the Final
Document of the First Special Session of the General Assembly
on Disarmament 1978, adopted by consensus, which noted in its
opening:

Alarmed by the threat to the very survival of mankind posed
by the existence of nuclear weapons ...Convincedthat
disarmament and arms limitation, particularly in the nuclear
field, are essential for the prevention of the danger of
nuclear war and the strengthening of international peace and
security ....

Enduring international peace and security cannot be built on
sustained by a precarious balance of deterrence or doctrines
of strategic superiority. (Resolution 13)

It is a truism that deterrence does not work unless it is
credible, i.e. unless the party to be deterredbelieves that
the deterring part is prepared to proceed from threat to use
as a last resort. THe narrowness of the gap between
'political' use and actual use is illustrated by the
following account by a former high official of the US
Department of Defense:

In the thirty-six years since Hiroshima, every President fromTruman to Reagan, with the possible exception of Ford, has
felt compelled to consider or direct serious preparations for
possible imminent US initiation of tactical or strategic
nuclear warfare, in the midst of an ongoing, intense, non-
nuclear conflict or crisis .... Here briefly listed are more
of the actual nuclear crises than can now be documented from
memoirs or other public sources (in most cases after long
periods of secrecy ...):

* Truman's deployment of B-29s, officially described as
outset of the Berlin Blockade, June 1948. Germany at the

* Truman's press conference warning that nuclear weapons
were under consideration, the day after marines were
surrounded by Chinese Communist troops at the Chosin
Reservoir, Korea, 30 November 1950.

* Eisenhower's secret nuclear threats against China, to
force and maintain a settlement in Korea, 1953.

Secretary of State Dulles' secret offer to Prime Minister
Bidault of three tactical nuclear weapons in 1954 to
relieve the French troops besieged by the Indochinese at
Dienbienphu.
* Eisenhower's secret directive to the Joint Chiefs of Staff
during the 'Lebanon Crisis' in 1958 to prepare to use
nuclear weapons. if necessary, to prevent an Iraqi move
into the oil fields of Kuwait.

* Eisenhower's secret directive to the Joint Chiefs in 1958
to plan to use nuclear weapons. imminently, against China
if the Chinese Communists should attempt to invade the
island of Quemoy, occupied by Chiang's troops, a few miles
offshore mainland China.

* The Berlin Crisis, 1961.
* The Cuban Missile Crisis, 1962

* Numerous 'shows of nuclear force' involving demonstrative
deployments or alerts - deliberately visible to
adversaries and intended as a 'nuclear signal' - of forces
with a designated role in US plans for strategic nuclear
war .

* Much public discussion, in newspapers and in the Senate,
of (true) reports that the White House had been advised of
marines surrounded at Khe San, Vietnam, 1968. defend * Nixon's secret threats of massive escalation, including
possible use of nuclear weapons, conveyed to the North
Vietnamese by Henry Kissinger, 1969-72.

* The Carter Doctrine on the Middle East (January 1980) as
explained by Defense Secretary Harold Brown, Assistant
Secretary of ~tate"wi1liam Dyess, and other spokesmen,
reaffirmed, in essence, by President Reagan in 1981.

(Daniel Elsberg, "How We Use Our Nuclear Arsenal". Protest
and Survive, E.P.Thompson and Dan Smith, eds., reprinted in
The Nuclear Predicament: A Sourcebook, edited by Donna Uthus
Gregory, A Bedford Book, St Martin's Press, NY (1982).
The risk of use of nuclear weapons is not confined to
intentional use. The UN Human Rights Committee has warned of.
"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 error or failure". It has also
noted that nuclear weapons "absorb resources that could
otherwise be used for vital economic and social purposes,
particularly for the benefit of developing countries".
(UN Doc A/39/644; CCPR/c/Zl/Add.4)

2.3 The Question is Too Abstract for Judicial Consideration

The United States and France argued that the question is an
abstract one to which it is not possible to give a specific
reply. "These matters cannot be usefully addressed in the
abstract without referenceto the specific circumstances
under which any use of nuclear weapons would be
contemplated.' (United States, p. 14. Cf. France, pp. 11-12.)

Response :

This Court has determined that a "legal question refers to
one which may be answered on the basis of law."(Western
Sahara Case, 1975 ICJ Reports, p. 18). It does not matter
that the question is specific to one set of circumstances, or
more general to cover a range of circumstances. The Court has
accepted that it is proper to consider legal questions which
do not refer to one specific circumstance, but may relate
more widely. (1975 ICJ Reports, p.20)
The arguments supporting the illegality of the use of nuclear
weapons are not based on the circumstances in which they are
used, but on the fact that the very nature of the weapons is
such that any use would violate principles of international
law. The Court is thereforwe not being asked to consider
different abstract scenarios, but rather to consider theconcrete scientific evidence concerning the health and
environmental effects of any use of nuclear weapons, and from
that determine whether any use would be illegal.

2.4 The Request is Devoid of Object or Purpose:
The Court's Opinion Will Have No Practical Effect

Some States, including Australia (p. 7) and the United
Kingdom (p. 58). argued that the request to the Court is
devoid of object or purpose as the Court's opinion would not
be enforceable, nor have any effect on the policies of the
nuclear weapon States.

Response :

It would be strange indeed if the international community
were to adopt the principle that only those international law
rulings likely to lead to immediate and full compliance are
worth rendering. There may be a certain time lag between
ruling and compliance, which may be greater or less in
proportion to the vital interests affected. But in a world
subject to the rule of law, to which al1 States profess to be
committed, the rulings of this Court, the highest tribunal on
questions of international law, must sooner or later become
the guiding norm for the behaviour of States.
Furthermore, this Court has determined that the question of
whether its opinions will be honoured or not is not a factor
in deciding whether to give an opinion. In the case of
Nicaragua v. United States, this Court observed that it
"neither can nor should contemplate the contingency of the
judgement not being complied with." (1984 ICJ Reports, p.437)
This Court, for example, delivered an advisory opinion on
Namibia (South West Africa) despite the very real uncertainty
as to whether South Africa would comply with any opinion
adverse to its practice. (LegalConsequences for States of
the Continued Presence of South Africa in Namibia (South West
Africa). 1971 ICJ Reports, p.16)

The ability to enforce an opinion from the Court is not the
only factor in determining the value and influence of an
opinion. States comply with international law to a large
degree without enforcement mechanisms. At the recent UN
Congress on Public International Law (United Nations, March
1995), Sir Ninian Stephen of the Tribunal for the Former
Yugoslavia, when asked how the nuclear weapon states would
likely respond to an opinion that the use of nuclear weapons
is illegal, said that "...the nuclear weapon states should
react to the Court's judgement in the same way any citizen
should react to the judgement of a domestic court: they should respect it."

The precedent of the Nuclear Tests Case is instructive in
this respect. In 1973, Australia and New Zealand sought this
Court's protection against France's atmospheric nuclear
testing in the South Pacific. France challenged the
legality of the case on grounds of standing and of its non-
adherence to the Test Ban Treaty of 1963, and declared that
it would not abide by the decision of the Court.
Nevertheless,.Franceabandoned its programme of atmospheric
testing during the pendency of the case, rendering it m00t.
(Nuclear Tests Case, 1973 ICJ Reports, p.99. 1974 ICJ
Reports, p. 253).

2.5 An Opinion Not Complied With Would Undermine the
Court's Authority

Some States, e.g. Australia (p. 6). have argued that if the
nuclear weapon States failed to respect the opinion of the
Court, this would undermine the Court's authority.

Response :

1) The opinion requested is an advisory one. Coming from
this tribunal, it would carry great weight but would
not be binding or self executing per se.

ii) So long as no State used nuclear weapons in armed
conflict, no State would be in violation of an opinion
that such use was in violation of international law.

iii) Since 73 member states of the World Health Assembly
have requested this opinion, it would, on the contrary,
undermine the authority of the Court if it refused the
request.

2.6 The Court's Opinion Would Damage Disarmament
Negotiations

Some States, including the United States, United Kingdom,
Australia and France, maintain that the nuclear states are
disarming and-that an opinion from the Court could undermine
current disarmament negotiations.

"An opinion on this complex and sensitive matter could serve
to complicate the work of States or other United Nations
bodies, perhaps undermining the progress already made in this
area." (United States, p.14, Cf. Australia, p.6, France,p.l3,
UK, p. 60)Response :

i) The claim that disarmament negotiations are in progress
is not borne out by the facts. The United States and the
Russian Federation have agreed to cut their nuclear
arsenals by the year 2003 to a total of 19,580 warheads,
the equivalent of approximately 200,000 Hiroshima-sized
bombs (Center for Defense Information. Nuclear Weapons
Facts, 1995). Despite the demands of most non-nuclear
States, the recent Nuclear Non-Proliferation Treaty
Review and Extension Conference concluded without any
firm commitment by the nuclear weapon States for further
cut-backs, much less the ultimate elimination of nuclear
weapons. There is no evidence that any negotiations to
increase cut-backs are currently under way or
contemplated.

In addition, at least four of the five declared nuclear
weapon States continue to invest in research,
development, testing and modernisation of their nuclear
arsenals (Defense Monitor, Vol XXII, Number 1, 1993).

ii) It is not the role of the Court to encourage or
discourage disarmament negotiations. Its role is to
provide an advisory opinion on the question referred to
it by the World Health Assembly.

iii) It is difficult to see how an opinion holding the use of
nuclear weapons to be in violation of international law
would impede disarmament negotiations. It is reasonable
to assume that, quite on the contrary, such an opinion
would provide an impetus to such negotiations.

iv) The question asked by WHO on the legality of the use of
nuclear weapons has now been supported by the United
Nations General Assembly. (UNGA Resolution A/49/699K,
1994 )

2.7 An Affirmative Opinion by the World Court
Would Undermine Deterrence

Some States, including France, the Russian Federation,
Germany, and the United States, have argued that an
opinion on the illegality of nuclear weapons could
undermine the deterrence policy which they consider to
be essential to their own security and the maintenance
of peace. "This policy of dissuasion has contributed
to the maintenance of world stability and peace."
(France, p.11, Cf. USA, p.21, Russian Federation, p.2,
Germany, p.4) Response:

i This argument is, in essence, another way of saying
that nuclear weapons are merely, or primarily,
"political" in character. (See in this comection
Section 2.2, supra).

ii) The argument that deterrence has worked is open to
debate. Nuclear deterrence has not prevented
conventional war or war with chemical weapons.
According to one account, there have been 149 wars
and 23 million deaths since 1945. (Ruth Sivard, World
Military and Social Expenditures, World Priorities,
Washington 1993, p.20). The five declared nuclear
weapon States have been directly involved in 48 of
these wars and indirectly in many others. (Sivard,
1993, p.21).

iii) Far from creating stability, continued reliance on
nuclear deterrence provides justification for non-
weapons in order to be able to respond to the threat or
use of nuclear weapons by the nuclear-armed States.

iv) If the use of nuclear weapons is illegal, the threat of
such use (which is another term for deterrence) cannot
remove the taint of illegality from use, any more than
the threat of torture in order to prevent crime can
"legalise" torture.

3. THE APPLICATION OF TREATY LAW TO NUCLEAR WEAPONS

3.1 Nuclear Weapons Are Legal Because They Are Not
Prohibited By Any Treaty

"It is completely clear that no conventional instrumentor
customary rule has as yet established any prohibition in
principle of the use of nuclear weapons.' (France, p.15)

Conventions prohibiting or restricting chemical, biological,
inhumane or environment-modifying weapons have been created
to deal with specific types of weaponry. "The exacting nature
of those specific conventions clearly confirms that one
cannot deduce a precise restriction on the use of specific
weaponry from general principles which, by their nature,
apply to al1 weapons without discrimination, and to any of
them in particular ...Conventions thus established are only
binding upon the parties to them ..." (France, p.22) "No treaty specifically prohibiting the use of nuclear
weapons has been adopted since 1945. Nor is the use of
nuclear weapons outlawed by any provision contained in a
treaty of more general application." (United Kingdom, p.62)

There is no general prohibition on the use of nuclear weapons
. in any international agreement. (USA, p.16-17)

After referring to the 1925 Geneva Protocol, EnMod
Convention, St Petersburg Declaration, and the Inhumane
Weapons Convention, the US notes that "this pattern implies
that there is no such general prohibition on the use of
nuclear weapons, which would otherwise have found expression
in a similar international agreement.''(USA, p.18)

"There are no treaties prohibiting nuclear weapons as such."'
(Germany. p.3)

Response :

As in the case of municipal law, treaties can be law-
creating, law-codifying or both. Thus, Akehurst notes that
the importance of the Vienna Convention on the Law of
Treaties "lies in the fact that most of its provisions
attempt to codify the customary law relating to treaties,
although there are other provisions which represent a
'progressive development' rather than a codification-of the
law." (M-Akehurst, A Modern Introduction to International
Law, Third Edition, 1977, p.121).

At any rate, where the specific prohibition is subsumed in
the general, there is no need for an explicit treaty
prohibition of the specific. The principle of freedom of
navigation on the high seas applies to al1 types of vessels,
including those not yet invented. Article 2(4) of the United
Nations Charter prohibits al1 forms of aggression, regardless
of the means employed by the aggressor.

As amply demonstrated in several submissions before the
Court, many treaties and principles of customary law already
prohibit the practices and consequences which any use of
nuclear weapons would inevitably entail. It is disingenuous,
therefore, to claim that the absence of a specific treaty
relating to nuclear weapons somehow "legalises" such weapons.
It is also noteworthy that none of the statements made by
countries defending the legalityof nuclear weapons recite,
hypothetically, any instances in which nuclear weapons could
be used without violating any of the general principles which
are the basis of their illegality.

The specificity of recent treaties prohibiting biological and chemical weapons cofirms the illegality of these weapons, but
does not speak for their legality prior to the enactment of
these treaties. Indeed, the use and proposed use of
biological and chemical weapons was widely condemned by the
international community on grounds of, inter alia,
international law before the enactment of the Biological and
Chemical Weapons Conventions.

3.2 The Existence of Treaties Recognising and Regulating
Nuclear Weapons Suggests That These Weapons are Legal

"Those treaties which may ...relate to the use of nuclear
weapons neither lay down nor imply any generalised prohibition
of their use. Most of the relevant instruments have to do .,
with the installation, emplacement, possession, transfer,
manufacture and testing, or even the destruction of such
weapons." (France, p.15)

"The very existence of those treaties (Treaty of Tlatelolco,
Antarctic Treaty, South Pacific Nuclear Free Zone Treaty, and
the Outer Space Treaty) and their limited scope, together
show that States are convinced that, in the absence of any
special and accepted prohibition, the use of nuclear weapons
is not prohibited by law." (France, p.16)

Stating that no treaty prohibits nuclear weapons as such:
"Neither is there an unwritten ban, otherwise al1 treaties
limiting the proliferation of nuclear weapons or nuclear
tests, or seeking to create nuclear weapon-free zones, or to
limit the number of nuclear weapons, would be meaningless." (
(Germany, p.3)

Positive international law in force accepts the fact of
existence of nuclear weapons. There is a wide range of
international norms aimed at non-proliferation, non-
deployment, limitation, reduction of nuclear weapons,
prevention of their testing and other forms of control of
nuclear weapons. There is a large number of effectively
functioning international instruments, both multilateral and
bilateral, dealing with this subject, including well-known
bilateral agreements on the prevention of nuclear war."
(Russian Federation, p.2)

Response :

These treaties presume the existence but not the legality of
nuclear weapons.

International law and custom include mechanisms for
addressing breaches of legal norms and dealing with theeffects of these breaches, without sanctioning them. This is
no more than a recognition of the gap between the real and
the ideal which exists in many areas of life, and which law
seeks to close.

For example, a State which initiates an illegal armed
conflict is not exempt from the standards of international
humanitarian law, even though it violated international law
in the first place. The Convention on Civil Liability for
nuclear damage without exempting those responsible for such for
damage from legal liability.

The Resolution Regarding Weapons of Mass Destruction in Outer
Space, UNGA Res. 1884 (XVIII), adopted by the UN General
Assembly by acclamation on 17 October 1963, "solemnly calls
upon al1 States to refrain from placing in orbit around the
earth any objects carrying nuclear weapons or any other
weapons of mass destruction ...' It could hardly be argued
that, by singling out outer space for a prohibition on the
siting of weapons of mass destruction, this resolution
"legalises" the siting or use of weapons of mass destruction
on earth.

An example drawn from municipal law is the practice of
establishing needle exchange programmes to minimise the
spread of disease among drug users. These programmes
recognise the fact of illegal drug abuse and seek to remedy
its effects, without accepting drug abuse as legal.

The following examination of the treaties invoked by France,
supra, reveals that they are consistent with, indeed
supportive,of, the goal of elimination of nuclear weapons,
and intended to reduce the effect of these weapons until the
generally accepted goal of complete nuclear disarament is
fully realised. (See Appendix III.) None of the treaties
regulating nuclear weapons sanctions the use of these
weapons .

3.2.1 Treaty for the Prohibition of Nuclear Weapons in
Latin America (Treaty of Tlatelolco)
The United Kingdom States, on page 72, that "the declarations
made by the nuclear weapon States at the time of signing or
ratifying the Protocol, which were not challenged by the
parties to the Treaty of Tlatelolco ( Done at Mexico, 14
February 1967, 634 U.N.T.S. 281). indicate that those States
consider that there are circumstances in which resort to
nuclear arms would be lawful." But, except for Argentina,
which abstained, and which did not ratify the Treaty until 18 January 1994, al1 the States Parties to the Treaty of
Tlatelolco have voted for UN resolutions declaring the use
of nuclear weapons to be a crime against humanity and a
violation of the UN Charter. (Examples include GA Res.
A/48/76B (1993) and A/49/700E (1994), both titled,
"Convention on the Prohibition of the Use of Nuclear
Weapons"). Some States Parties (Mexico, Costa Rica and
Colombia) havestated in these proceedings that they consider
the use of nuclear weapons to be illegal; none has stated the
contrary.

The declarations mentioned by the United Kingdom represented
assurances by the nuclear weapon States "not to use or
threaten to use nuclear weapons against Contracting Parties."
(Protocol II, Art. 3) Why should any of the Contracting
Parties have challenged these assurances? How, therefore, can
anything be inferred from their failure to do so?

Some indication of the Contracting Parties' view of the
status of nuclear weapons under international law may also be
gleaned from the Preamble to the Treaty, which states, in
part:

Nuclear weapons, whose terrible effects are suffered
indiscriminately and inexorably, by military forces and
persistence of the radioactivity they release, an attack on
the integrity of the human species and ultimately may even
render the whole earth inhabitable.

3.2.2 South Pacific Nuclear-Free Zone Treaty
(Treaty of Rarotonga)

Four of the Contracting Parties ( Nauru, Papua New Guinea,
Samoa and Solomon Islands) to the Treaty of Rarotonga (done
at Rarotonga, 6 August 1985, 24 I.L.M. 1442) have stated in
these proceedings that they consider the use of nuclear
weapons to be illegal. None of the Contracting Parties has
stated the contrary.

The Preamble states, in part:

Convinced that al1 countries have an obligation to make every
effort to achieve the goal of eliminating nuclear weapons,
the terror they hold for humankind, and the threat which they
pose to life on earth.

This does not sound like a recognition of the right of any
States indefinitely to own, much less use, nuclear weapons.3.2.3 Treaty on the Non-Proliferation of Nuclear Weapons(NPT)

The text, context, purpose and subsequent practice of the NPT
(done at London, Moscow and Washington, 1 July 1968, 729
U.N.T.S. 161) all, to varying degrees, refute the claim that
the NPT legitimises the possession and use of nuclear
weapons. The NPT acknowledges the existence of nuclear
weapons and of nuclear weapon states, but does not
acknowledge any right to possess or to use nuclear weapons.

A number of rights of Parties are clearly established in the
text, including the "inalienable right" to develop research,
production and use of nuclear energy for peaceful purposes
(Article IV (l)), the right to participate in the exchange of
equipment, materials and scientific and technological
information for the peacefuluses of nuclear energy (Article
IV (2)), the right to benefit from the peaceful applications
of nuclear explosions (Article V), and the right to conclude ,
regional treaties in order to ensure the total absence of
nuclear weapons in their respective territories (Article
VII). The text of the Treaty, however, includes no reference
to the right to either possession or use of nuclear weapons.
The definition of a nuclear weapon State, which would be
expected to establish rights of the nuclear weapon States,
says simply "...a nuclear weapon State is one which has
manufactured and exploded a nuclear weapon or other nuclear
explosive device prior to 1 January 1967."
In contrast to the claimed right to possess and use nuclear
weapons, the NPT requires nuclear weapon States to terminate
their possession of nuclear weapons through the negotiation
of nuclear disarmament (Article VI). The United States has
noted that:

"The NPT is the only global treaty that requires al1 its
parties to pursue measures related to cessation of the
nuclear arms race and to nuclear disarmament. For the nuclear
weapon states, this provision is clearly aimed at their
nuclear arsenals." (Ambassador Thomas Graham Jr.,US Arms
Control and Disarmament AgenCy, Speech to the Third
Preparatory Committee for the 1995 Conference of the Parties
to the Treaty on the Non-Proliferation of Nuclear Weapons,
Geneva, 13 September 1994, published by US Arms Control and
Disarmament Agency. Geneva Office, p. 2.)

The NPT was negotiated in connection with and was annexed to
United Nations General Assembly Resolution 2373 (XXII), which
concludes that ".;.an agreement to prevent the further
proliferation of nuclear weapons must be followed as soon as
possible by effective measures on the cessation of the
nuclear arms race and on nuclear disarmament." This explains
the context of the NPT which was not only to halt the
proliferation of nuclear weapons. but also to lead towards
their elimination. A Treaty which is part of a declared process for the elimination of nuclear weapons cannot be said
to legitimise a so-called right, that of possession of
nuclear weapons, which is in direct opposition to the
declared goal.

This interpretation of the context of the NPT is confirmed by
its purpose as stated in the Preamble, which includes the
goal of "the cessation of the manufacture of nuclear weapons,
the liquidation of al1 existing stockpiles, and the
elimination from national arsenals of nuclear weapons and the
means of their delivery ..." While the NPT does not expressly
prohibit the use of nuclear weapons, the reference in the
Preamble, that the use of nuclear weapons in war would be a
"devastation that would be visited upon al1 mankind", is
evidence that the NPT definitely does not sanction the use of
nuclear weapons prior to their elimination.

The subsequent practice of Parties to the NPT supports this
interpretation:

Despite their involvement in several wars and other military
actions, the nuclear weapon States have completely refrained
from using nuclear weapons since the enactment of the NPT.
And, despite their refusa1 to make a clear commitment to the
non-use of nuclear weapons. they have expressed their
nuclear war cannot be won and must never be fought." (As: "A
quoted in N.Y. Times, 6 November 1986, at A35, col. 1.)

With the possible exception of Iraq and the Democratic
People's Republic of Korea, al1 non-nuclear States Parties
have scrupulously adhered to their obligation not to acquire
nuclear weapons.

The great majority of States Parties, including the
Democratic People's Republic of Korea and Iraq, have
routinely voted in favour of UN General Assembly Resolutions
calling the use of nuclear weapons a violation of
international law and a crime against humanity. (See Appendix
IV.) The following States Parties are on record in these
proceedings as embracing the principle of the illegality of
use :

Azerbaijan
Colombia
Costa Rica
Democratic People's Republic of Korea
1ran
Kazakhstan
Lithuania
MalaysiaMexiCO
Nauru
Papua New Guinea
Philippines
Rwanda
Samoa
Saudi Arabia
Solomon Islands
Sri Lanka
Sweden
Uganda
Ukraine

India and Pakistan, which are not members of the NPT, have
taken the same position, thereby increasing the force of this
position as a rule of customary international law.

The United States has contradicted its own claim that the NPT
legitimises possession and use, with the statement that:

While the NPT reflects the reality that five nuclear weapon
states existed in 1968, it does not legitimise the permanent
possession of nuclear weapons. Far from it. Rather the NPT
regime creates a system of shared obligations among its
parties: while non-nuclear weapon states promise not to
acquire nuclear weapons, nuclear weapon states promise to
undertake measures to reduce and eliminate their nuclear
arsenals. (Anbassador Thomas Graham, supra, p.16).

4. PROTOCOL 1 OF 1977 ADDITIONAL TO THE 1949 GENEVA
CONVENTIONS AND THE "NUCLEAR UNDERSTANDINGS" ISSUE

The Protocol "contains a number of new rules on means and
methods of warfare, which of course apply only to States that
ratify the Protocol. It is, however, clear from the
negotiating and ratifying record of the Protocol that the new
rules contained in the Protocol were not intended to apply to
nuclear weapons." (USA, p.28).

Similar statements were made by France (p.19), the United
Kingdom (p.64), the Netherlands (p.10) and the Russian
Federation (p.2).

4.1 Response:

4.1.1 Protocol 1 is Largely Confirmatory of Preexisting
Humanitarian Law

It is not true, as claimed by France (p.19), that those
States upholding the thesis of illegality rely "particularly'' on Articles 35 and 51 of Protocol 1, which deal respectively
with the prohibition of weapons causing superfluous injury
and with the protection of the civilian population. The
illegality thesis is solidly anchored in the entire body of
humanitarian law, both pre- and post-Protocol 1, and would
therefore remain valid even if the "Nuclear'Understandings"
thesis were accepted.

Protocol 1 did not start with a clean slate. The Diplomatic
Conference which led to its adoption was called "The Diplo-
matic Conference on the Reaffirmation ond Development of
International Humanitarian Law Applicable in Armed
Conflicts". There is general agreement that, while there was
some "development", e.g. Art 55 relating to the protection of
the natural environment, by far the bulk of the Protocol,
including Articles 35(1) and (2) and (51), consisted in
"reaffirmation." To apply the "nuclear understandings" made
with respect to the Protocol to the body of preexisting
conventional and customary law would be a new departure
indeed in the theory and practice of international law.

4.1.2 The "Nuclear Understandings" Are of Questionable
Validity Even With Respect to the Protocol

Art. 19 of the Vienna Convention on the Law of Treaties
requires that, in order to be valid, a reservation and,
a fortiori, an understanding, which does not rise fully to
the level of a reservation, be compatible with "the object
and purpose of the treaty." That purpose was defined in the
Preamble of the Protocol as "to reaffirm and develop the
provisions protecting the victims of armed conflict. Hence,
the "nuclear understandings" may be viewed, realistically, as
the price extracted by the nuclear weapon States for their
participation in the 1977 Diplomatic Conference, but not
necessarily as a legally valid restriction on the document
produced by the Conference.

5. HUMANITARIAN LAW

5.1 Humanitarian Law Does Not Prohibit the Use of Nuclear
Weapons

States opposing the thesis of illegality admit, directly or
indirectly, that nuclear weapons are not exempt from the
reach of humanitarian law, but argue that, as in the case of
other weapons,the legality vel non of their use must be
judged in the light of the particular circumstances of each
case. (US p.26, UK p.77, Netherlands pp.14-15).Response:

This argument amounts to saying that a nuclear weapon is
"just another weapon." It ignores the fundamental
quantitative difference between nuclear weaponsand al1 other
existing weapons in terms of their unprecedented destructive-
ness and the fundamental qualitative difference between
nuclear weapons and al1 other existing weapons in terms of
legally significant differences have been amply substantiated
in several pro-illegality statements before the Court. They
have not been addressed in any significant way by any of the
anti-illegality statements.

The following comments will be addressed to issues raised :
with respect to certain specific principles of humanitarian
law.

5.2 The Principle of Discrimination

States admit that "attacks on civilian populations are always
forbidden regardless of the weapons used" (Germany, p.3,
Netherlands, p.14, USA, pp.26-27), but argue that "modern
nuclear weapons are capable of precise targeting ...against
military objectives of quite small size" (UK, pp.88,89), that
attacks on military targets are not prohibited because they
may cause "collateral civilian damage" (US, p.27) and that
the principle of discrimination is subject to the right of
reprisal (US, p.26).

Response :

In the absence of further particulars, it is difficult to
comment on the United Kingdom's hypothetical reference to the
precise targeting of nuclear weapons against "quite small"
military objectives. (On the impossibility of "precise
targeting" of nuclear weapons, see E.L. Meyrowitz, "Nuclear
Weapons Are Illegal Threats", Bulletin of the Atomic
Scientists, May 1985, 35 at 37). No one has ever seen such an
operation carried out. US law currently forbids "research and
development which could lead to the production ...of a low-
less than five kilotons. (National Defense Authorisation Act
for Fiscal Year (FY) 1944, Public Law 103-160, 30 November
1993). No information is available on the existence of
nuclear weapons with a yield of less than five kilotons in
the arsenals of any other state. This is only a little less
than half the size of the Hiroshima bomb (12.5 kilotons),
which caused the death of some 200,000 civilians. If a truly
small nuclear weapon - Say, the size of a large
conventional bomb or artillery shell - were ever developed, it would still have lasting, uncontrollable radioactive
effects, leading to the conclusion that the use of such a
weapon, instead of a conventional one of equal size and
impact, would be prohibited as one causing "superfluous
injury or unnecessary suffering." At any rate, speculation as
to "micro-nukes" or "mini-nukes" is of a'de minimis
character, as long as deterrence is the primary rationale
advanced by the nuclear weapon states for their continued
possession of nuclear weapons. It is clear that such "tiny
nukes" are useless as weapons of deterrence.

As for "collateral civilian damage", it may readily be
conceded that, under generally accepted principles of
humanitarian law, one cannot require a belligerent carrying
out an attack on a legitimate military target to ensure that,
civilians will not be hurt or killed in the attack. It should
be equally readily conceded by those on the other side of the
argument that applying the collateral damage principle to the
use of nuclear weapons results in an absurdity, which
necessarily wipes out the entire body of humanitarian law. As
stated above, the relatively small Hiroshima bomb produced
200,000 victims. Casualty projections relating to current-day
nuclear weapons are in the millions. Surely the principle of
permissible collateral damage cannot be stretched that far -
common sense forbids it.

Treprisa1 will be dealt with in the next section. right of

5.3 The Principle of Proportionality

Germany (p.3) and France (p.15) argue that, while the
principle of proportionality applies to nuclear weapons. each
use of such weapons must be judged according to its specific
circumstances (Germany) and "the criterion of proportionality
cannot in itself exclude in principle the use, whether as a
riposte or in an initial offensive, of any specific weapon
and, more particularly, of nuclear weapons. once that use is
aimed at countering an aggression, and it seems to be the
appropriate means to bring that aggression to an end."
(France) .

Response :

THe best answer to the absolutist position of France ("any
use of nuclear weapons is legitimate so long as it is an
appropriate means to bring ..aggression to an end") and the
relativist but indeterminate position of Germany (judge each
case according to its circumstances) is the position of the
U.nitedStates:It is unlawful to carry out any attack that may reasonably be
expected to cause collateral damage or injury to civilians or
civilian objects that would be excessive in relation to the
military advantage anticipated from the attack. (Protocol)
Whether an attack with nuclear weapons would be
disproportionate depends entirely on the circumstances,
including the importance of destroying the objective,
character; size and likely effects of the device, and the
magnitude of the risk to civilians. (USA, p.27).

In evaluating the "likely effects of the device, and the
magnitude of the effect on civilians", the scientific
evidence must be taken into account:

Nuclear weapons are not just another weapon. Their nature and
effect are such that they are inherently incapable of being
limited with any degree of certainty to a specific military
target. Given that the overwhelming majority of warheads in
the US nuclear arsenal, particularly the weapons designed for
use in limited-war scenarios, such as the cruise missile (200
kilotons) and the Pershing II missile (250 kilotons), exceed
many times over the destructive power of the weapons used at
Hiroshima and Nagasaki. And given that the targets, that US
plamers consider 'military objectives', are generally
quite difficult to conceive of a use of nuclear weapons thats
would not produce extensive destruction of areas populated by
civilians.. .

It is only logical to consider theillegality of nuclear
weapons in the light of the scientific evidence confirming
that massive civilian casualties are unavoidable in a nuclear
exchange directed only against military targets. One recent
private analysis of civilian deaths, that might be expected
to result from the use of small battlefield nuclear weapons.
estimated that, in a nuclear exchange between US and Soviet
forces in both Germanys, using approximately 90 200-kiloton
weapons. 10 to 20 million civilian casualties would result.
The same study, using a different scenario involving
approximately 90 two-kiloton weapons, estimated that one to
ten million civilian casualties would result. The conclusions
of numerous governmental and private studies on the
consequences of the use of nuclearweapons make it outrageous
to claim that minimum collateral damage to the civilian
populations will occur if nuclear weapons are restricted to
military targets. ("Nuclear Weapons Are Illegal Threats" by
Elliott L. Meyrowitz, Bulletin of the Atomic Scientists, May
1985, 35 at p.37.)

Therefore, a nuclear response to a conventional attack would
blatantly violate the principle of proportionality. The same is true for a nuclear response to a nuclear attack.
In the Naulilaa Incident Arbitration, (2 Reports of Int'l
Arb. Awards 1011, at 1026 and 1028 (1928) "generally
considered to be the most authoritative statement of the
customary law of reprisals," (J.Brierly, The Law of Nations
(6th ed. ,1963)p.401), the Arbitral Tribunal held, inter
alia, that reprisals are limited by considerations of
humanity and that the measures adopted must not be excessive,
in the sense of being out of al1 proportion to the
provocation received. Thus, as found in the RAND Corporation
study, "the concept of Assured Destruction, when deliberately
applied to policies for the acquisition and use of nuclear
weapons, appears to be directly opposed to the most
fundamental principles found in the international law of .,
armed conflict ...Even as reprisal, ...the concept of Assured
Destruction is prohibited if it includes deliberate attacks
on the civilian population." (C.Builder and M.GrauDard, The
International Law of Armed Conflict: Implications for the
Concept of Mutual Assured Destruction (1982).

5.4 The Principle of Non-Toxicity

According to the United States, the 1925 Geneva Protocol "was
intended to apply to weapons that are designed to kill or
injure by the inhalation or other absorption into the body of
poisonous gases or analogous substances. It was not intended
to apply, and has not been applied, to weapons that are
designed to kill or injure by other means, even though they
p.28).eate asphyxiating or poisonous byproducts." (USA,

Similar arguments were advanced by the Netherlands (p.9) and
the United Kingdom (pp.85-86).

Response :

According to Art. 31(1) of the Vienna Convention on the Law
of Treaties, "a treaty shall be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms
of the treaty in their context and in the light of its object
and purpose."The ordinary meaning of the term "analogous",
according to The Concise Oxford Dictionary of Current English
(5th Ed.) is "similar' or "parallel". The radioactivity
emitted by the explosion of nuclear weapons is absorbed into
the body by inhalation and otherwise and not "by other
means ".

A strong case can be made for the assimilation of radiation
and radioactive fallout to poison. If introduced into thebody in sufficiently large doses, they produce symptoms which
are indistinguishable from those of poisoning and inflict
death or serious damage to health in ...a manner more
befitting demons than civilised human beings." (Georg
Publishers, New York, 1971, p.199) and Order, Praeger

Similarly, Article 14 of the 1956 Draft Rules of the
International Committee of the Red Cross for the Limitation
of the Dangers Incurred by the Civilian Population in time of
War (reprinted in D. Schindler and J.Toman, eds., The Laws of
Armed Conflict: A Collection of Conventions, Resolutions and
Other Documents (1988) p.69 expanded on the Geneva Gas
Protocol in the following terms:

The use is prohibited of weapons whose harmful effects,
resulting in particular from the dissemination of incendiary,
chemical, bacteriological, radioactive or other agents, could
spread to an unforeseen degree or escape either in space or
time from the control of those who employ them.

5.5 The Principles of Humanity and Necessity:
The Prohibition on Causing Unnecessary Suffering or
Suffering Beyond That Required to Achieve a Legitimate
Military Objective

"The use of nuclear weapons cannot in abstracto be deemed
unlawful. The question of whether a specific use is in
contravention of the said obligation cannot therefore be
weighed until the exact implications, both at the level of
military advantage gained and with regard to the injury
caused, are known." (Netherlands, p.10).
"The principle prohibiting unnecessary suffering ...requires
that a balance be struck between the military advantage,
which may be derived from the use of a particular weapon, and
the degree of suffering which the use of that weapon may
cause. In particular, it has to be asked whether the same
military advantage can be gained by using alternate means of
warfare which will cause a lesser degree of suffering. The
use of a nuclear weapon may be the only way in which a State
can concentrate sufficient military force to achieve a
particular military objective.In those circumstances, it
cannot be said that the use of such a weapon causes
unnecessary suffering. however greatthe casualties which it
produces among enemy combatants." (UK, p.87).

"It is unlawful to use weapons that are of such a nature as
to cause superfluous injury or unnecessary suffering. This
prohibition was intended to preclude weapons designed to increase the injury or suffering of the perçons attacked
beyond that necessary to accomplish the military objective.
It does not prohibit weapons that may cause great injury or
suffering if the use of the weaponis necessary to accomplish
the military mission. For example, it does not prohibit the
use of anti-tank munitions which must penetrate armour by
kinetic energy or incendiary effects, even though this may
well cause severe and painful burn injuries to the tank crew.
By the same token, it does not prohibit the use of nuclear
weapons, even though such weapons can produce severe and
painful injuries, if those weapons are required to accomplish
a legitimate military mission." (USA, p.30).

Response :

THe argument of the Netherlands comes down to this: Let us
determine the "exact implications" of the use of one or more
nuclear weapons. Then we can decide whether such use has
violated international law or the principles of humanity. But
the exact implications will not be apparent until after the
use has occurred and not for decades after the event, as
demonstrated by the experience of Hiroshima and Nagasaki.
Humanitarian law, however, is intended to act as a preventive
restraint, not an ex post facto criterion. On the other hand,
there is a vast scientific literature enabling military
decision makers to forecast the probable implications of the
use of nuclear weapons. al1 of it pointing toward injury on a
scale so vast as to foreclose any possibility of striking a
balance with the requirements of humanity and necessity.

As for the "striking a balance" arguments advanced by the
United Kingdom and the United States, they ignore the fact
that necessity, like reprisal, is not an absolute. If
necessity could be used to justlfy otherwise prohibited
weapons or tactics, it would make a mockery of such
prohibitions, because military commanders would always invoke
necessity to justify their choice of weapons or tactics, no
matter how brutal or inhumane.

The laws of war distinguish between norms that may be
overridden by military necessity and those which may not. The
principles applicable to the use of nuclear weapons as
weapons of mass destruction contain no exceptions for the
sake of military necessity.

Moreover, self-defence, a particular case of military
necessity, is not a justification for use of prohibited
weapons. No "balance" is possible between the "military
advantage", which may be derived, and the suffering which
would be caused by the use of nuclear weapons. A militaryobjective that can only be achieved by the use of nuclear
weapons is beyond justifiable self-defence. To suggest that a
situation might arise where nuclear weapons would be
essential for self-defence is to imply that, under the
current NPT regime, the majority of States are denied
potentially necessary means of self-defence. Since most
States have chosen not to acquire nuclear weapons. nor have
aligned themselves with nuclear weapon states for purposes of
self-defence, it would appear that most States have
implicitly rejected the notion that nuclear weapons might
become militarily necessary for self-defence. Thus, to claim
a right to use nuclear weapons to "concentrate sufficient
military force to achieve a particular objective" is to'place
one's own military objectives and perceived security need5
above those of others, especially the non-nuclear weapon :
states, and thus to claim a right not available to others.
One wonders what legitirnatemilitary objectives could only be
achieved by weapons of mass destruction of the type found in
today's arsenals.

In an action against the Japanese government by victims of
the bombs dropped on Hiroshima and Nagasaski, the court,
relying on the St Petersburg Declaration and the Haque
Regulations prohibiting unnecessary suffering, stated:

We can safely see that, besides poison, poison-gas and
bacterium, the use of the means of injuring the enemy, which
causes at least the same or more injury, is prohibited by
international law ...It is not too much to Say that the pain
brought by the atomic bombs is severer than that from poison
and poison-gas, and we can Say that the act of dropping such
a cruel bomb is contrary to the fundamental principle of,the
laws of war that unnecessary pain must not be given. (The
Shimoda Case, Judgement of the Tokyo District Court, 7 Dec.
1963, reprinted in 8 Japanese Ann. Int'l L. 212,241-42(1964)

5.6 The Principle of Neutrality

Article 1 of the Hague Convention V, Respecting the Rights
and Duties of Neutra1 Powers and Persons in case of War on
Land, 1907, provides that "the territory of neutral powers is
inviolable".

"Whether the use of nuclear weapons would deposit radioactive
fallout on the territory of States not party to the conflict
would ...depend upon the type of weapon used and the location
at which it was used. The assumption that any use of nuclear
weapons would inevitably have such an effect is unfounded.
Moreover, Hague Convention No. V was designed to protect the
territory of neutral states against incursions by belligerent forces or the deliberate bombardment of targets located in
that territory, not to guarantee such states against the
incidental effects of hostilities". (UK, p.92)

Response:

As demonstrated by the experience of Chernobyl, where the
radiation released contaminated at least twenty countries,
(D.Maples, "Chernobyl's Lengthening Shadown, Bulletin of
Atomic Scientists, Sept. 1993), radioactive fallout from a
nuclear explosion would spread far beyond the target. Nuclear
fallout is no respecter of borders.

Radiation in quantities sufficient to cause extensive
sickness would spread from a relatively small one-megaton
explosion to a distance of 300 km in less than 12 hours. Even
greater doses of radiation from a ten-megaton bomb would
reach a distance of 100 km in less than 3 hours and 800 km in
less than 32 hours. (Lindop and Rotblat, Consequences of
Radioactive Fallout, in The Final Epidemic: Physicians and
Scientists on Nuclear War (R.Adams and S.Cullen, Eds., 1981)
at 131,125.

There is no basis for the United Kingdom's claim that Hague
Convention V, which provides that "the territory of neutral
powers is inviolable", was designed only to guarantee the
territory of neutral powers against incursions or
bombardments. Only the most tortured interpretation can lead
devastation of humans, flora and fauna, does not constitute a

violation of neutral territory.

5.7 The Principle of Environmental Security

"Article 1 of the EnMod Convention prohibits 'military or
other hostile use of environmental modification techniques,
having widespread, long-lasting or severe effects, as the
means of destruction, damage or injury' to another State ...
Article II of the Convention defines the term 'environmental
modification technique' as 'any technique for changing
(through the deliberate manipulation of natural processes)
the dynamics, composition or structure of the Earth ...' The
effects on the environment of the use of nuclear weapons,
however, would normally be a side effect of these weapons."
(UK, pp.90-91: cf. USA, p.30).

"Article 35(3) of Additional Protoc01 1 is broader in scope,
in that it is applicable to the incidental effects on the
environment of the use of weapons. It was, however, aninnovativeprovision. It is therefore subject tothe
provisions createdby Protocolssed1 would not be applicable to
the use of nuclear weapons.' (UK, p.91-92; cf. USA, p.30).

Response :

The above statements refer to the EnMod Convention and
Protocol 1 of the 1977 Geneva Convention regarding
destruction of the environmentbut overlook the numerous
other internationallegal instruments relatingto destruction
of the environment. These include, among others:

1972 Stockholm Declaration of the United Nations
Conference on the Human Environment, 16 June 1972, UN Doc.
A/CONF.48/14/Rev.lat 3 (1973). 11 I.L.M. 1416 (1972)

* 1980 United Nations GeneralAssembly Resolution on
Historical Responsibilityof States for the Preservation
of Nature for Present and Future Generations(Adopted 30
October 1980, G.A. Res. 35/48 (1981)

* 1982 World Charter for Nature (G.A. Res.37/7 (Annex)
(1982)
* Draft Code of Crimes Against the Peace and Security of
Mankind (UN Doc. A/46/405 (1991), 30 I.LIM. 1554(1991)
Articles 19(3), 22(2), 26)

* 1982 United Nations Conventionon Law of the Sea (UN Doc.
A/CONF.62/122,21I.L.M. 1261, (1982)Article 192)

* 1985 Vienna Convention forthe Protection of the Ozone
Layer (26 I.L.M. 1516 (1987) Article 2(1)

* 1992 FrameworkConvention on Climate Change (31 I.L.M.
849 (1992)Article 3)

* 1992 Convention on Biological Diversity (31 I.L.M. 818
(1992) Article 3, Principles 7, 25)

It is a general principleof law that the forseeable
consequencesof an act are interpretedas an intention to
bring them about. It is disingenuous, therefore,in view of
what scientists have described as the enormously damaging
to assert that these would be mere 'unintendedside-effects":nge

Surprisinglyharsh and lasting effects could be generated
even by relatively modestexchanges. The baseline scenario (5,000 megatons) could drop average continental temperatures
in the Northern Hemisphere to about minus 23 degrees
centigrade. Shockingly, even 100 megatons detonated on cities
alone could produce sufficient smoke to blacken skies and
chi11 continental areas to below minus 20 degrees centigrade,
with recovery taking over three months. (Anne Ehrlich,
"Nuclear Winter", The Bulletin of the Atomic Scientist, April
1984, p. 3s. at 5s).

6. THE RIGHT TO LIFE AND HEALTH

Apparently no statement submitted to the Court has challenged
the relevance to the question before the Court of the right
to life and health, as embodied in the International Covenant..
on Civil and Political Rights and other international law
instruments.

7. CUSTOMARY LAW AND OPINIO JURIS

7.1 General Comments on Custom

Custom is to be looked for primarily in the actual practice
and opinio juris of States. Although nuclear weapons have not
been seen since World War II, "one cannot...conclude from
that fact that there has come into being any practice of
'non-use' based upon a prohibition of use 'accepted as having
the force of law' and see this as constituting an established
or incipient custom." (France, p.18).

"For a custom to have been established, there would have to
have been situations in which the States concerned could
envisage the use of those weapons. This has not been the
case ..." (France, p.18).

Response :

Actual practice and opinio juris of States confirm the
prohibition on the use of nuclear weapons.
i) For a custom to be established, there need not be
absolute conformity with the rule. The International
Court of Justice has stated:

"It is not to be expected that in the practice of States
the application of the rules in question should have been
perfect, in the sense that States should have refrained,
with complete consistency, from the use of force or from
intervention in each other's interna1 affairs. The Courtdoes not consider that, for a rule to be established as
customary, the corresponding practicemust be in absolutely
rigorous conformitywith the rule. In order to deduce the
existence of customary rules, the Court deems it sufficient
that the conduct of States should, in general, be consistent
with such rules, and that instances of State conduct
inconsistentwith a given rule should generally have been
treated as breaches of that rule, not as indications of the
recognition of a new rule. If a State acts in a way prima
facie incompatible witha recognised rule, but defends its
conduct by appealing to exceptions or justifications
contained within the rule itself, then whether or not the
State's conduct is in fact justifiable on that basis, the
significance of that attitude is to confirm rather than
weaken the rule." (Militaryand Paramikitary Activitiesin
and against Nicaragua (Nicaraguav-United States of America)'
Merits, Judgement, ICJ Reports 1986, p.135 atpara 186.

Thus the declarationsof a small minority of States that use
of nuclear weaponswould not necessarily be unlawful have not
prevented the development of a customary rule of
international lawprohibiting such use. Indeed,"a customary
rule may arise notwithstanding the opposition of one State
or even perhaps a few States, provided thatotherwise the
necessary degreeof generality is reached." (Henkin, Pugh, et
al, InternationalLaw: Cases and Materials (3rd ed.1993)
(citing Waldock, General Course on Public International Law)
p.87. THe necessary degree of generality in the case of
the repeated declarationsof a majority of States that their
use is illegal. (SeeSection 7.2, infra.)

Admittedly, a newly emergent customary rule does not
generally bind a State which has consistently objected to
that rule. However, it has been noted that "no case is cited
in which the objector effectively maintained its status after
the rule became well accepted in internationallaw." (Henkin,
Pugh et al, op. cit. (citing Charney) p.89). Moreover,the
United Kingdom has, on at least one occasion, questioned the
right of a consistently objectingState to an exemption from
a rule of law of fundamental importance. (See1951 1,C.J.
Fisheries Case, II Pleadings, Oral Arguments 428-430). An
example of a non-consentingState not being exempted froma
customary rule is South Africa, which persistently dissented
from the rule prohibiting racialdiscrimination while that
rule was developing. (See Henkin, Pugh et al., op. cit. p.89)

ii) Despite the claim'to the contrary, there have been
numerous situations in which the "States concerned could
envisage the use of nuclear weapons" (France,p.l8).(see
Section 2.2, supra). 7.2 Evidence of Opinio Juris in U.N. Voting Records

Various UN Resolutionsdeclaring the use of nuclear weapons
to be illegal are not legally binding instruments.
(UK, pp.73-75, USA, pp.24-25).

By calling for a convention prohibitingsuch weapons, States
implicitly recognise their present legitimacy. (UK, pp.75-76,
France p.21).

Declarationsof illegality in the preambles of the UN
Resolutions are mere "politicalstances", devoid of legal
import. (France, p.21).

The negative votes ofthe nuclear weapon Statesdeprive the .,
UN Resolutionsof their status as sources of opinio juris
(France, p.21) or customary law (USA, pp.24-25).

Response :

The General Assembly resolutions declaringthe use of nuclear
weapons unlawful representState practice in the
interpretationof the laws of war. Althoughthey are not
binding in the sense that a treaty is, they provide proof of
international community standards and cornmitment, and the
frequent reaffirmationof these standards underscores their
importance.

As to the argumentthat a cal1 for a conventionbanning a
weapon "legitimises"the weapon to be banned, see Section 3.2
supra, with regard to the distinction between confirmatory
conventions,andconstitutiveor law-creating conventions.In
any case, a series of resolutionsboth callingthe use of
nuclear weapons illegal and/or a crime against humanity,
while at the same time urging the enactment of a convention
banning their use, can hardly be interpretedas an
expression of confidencein the legality of such use.

France's somewhat cynical "politicalstance" argument is
difficult to follow.A declaration is a declaration is a
declaration. Does it mean that future declarationswill have
to be strengthenedby lie detector teststo establish the
honesty and sincerityof the declarants?

7.3 Evidence of Opinio Juris in Public ~oiunents of Statesmen

No uniform view has emergedas yet on the legal aspects of
the possession of nuclear weapons and their use as a means Of
warfare. (France,pp.18-19, USA, pp.22-24.)Response :

That may be true, but as already pointed out, the great
majority of States are unanimous in their condemnationof
resort to nuclear weapons and in their view that such resort
is illegal. The lack of total unanimity is the principal
reason for requestingthe Court's opinion - an opinion to be
based not merely on customary law and opinio juris, such as
they are, but on the solid foundations of humanitarian law
and other applicable rules of internationallaw.

7.4 Evidence of OpinioJuris Through State Practice

"Evidenceof a customary norm requires indication of
'extensiveand virtually uniform' State practice, including
States whose interests are 'speciallyaffected.'"
(USA, p.17, citing North Continental ShelfCases, 1969 ICJ
Reports, p.43).

"With respect to the use of nuclear weapons, customary law
could not be created over the objection of the nuclear
weapon States, which are the States whose interestsare most
specially affected. Norcould customary law be created by
political or military reasons,ratheraponthan from a belief that
such abstention is required by law." (USA, p.17).

Response :

With respect to State practice, uniformityis complete in the
sense that no state has used nuclear weapons since 1945. The
United States would have the Court believe that this has
merely been a generalpractice based on humanitarian,
political and militaryreasons, rather than a "general
practice acceptedby law", within the meaning of Art.
38(l)(b) of the ICJ Statute. But the suggestion, that
"humanitarian,political or military reasons" for abstaining
from the use of nuclear weapons are distinct from "a belief
that such abstention is required by law", overlooks the
essence and origins of humanitarian law. A recognition that
the use of nuclear weaponswould violate humanitarian
standards is essentially an acknowledgement ofthe
applicabilityof humanitarian law.

Furthermore, al1 the nuclearweapon States, which have made
submissions to the Court so far, have admitted thatthe laws
of war apply, "in principle", to nuclear weapons,while
failing to produce any convincing examples of situations in
which nuclear weapons could beused withoutviolating the laws of war. This is another reason for holding thatthe non-
use of nuclear weapons forthe past half centurysatisfies
the classic definition of opinio juris sive necessitatis.

It should also be noted that the non-nuclear weaponStates,
the unprotected,potential victims of nuclearattack fromthe
nuclear weapon States,have not consented to the policy of
deterrence.They have repeatedly affirmedtheir positions in
numerous resolutions, indicatingtheir firm belief thatthe
use of nuclear weapons would constitute a violation of the UN
Charter and a crime against humanity. These unequivocal
resolutions haveindicated that the "States concerned ...feel
that they are conforming to what amounts to a legal
obligation", as required under internationallaw. (North Sea
Continental ShelfCases, 1969 ICJ Reports, p.44.)

7.5 Opinio Juris in the Dictates of Public Conscience:
The Martens Clause

The famous Martens Clause, a cornerstoneof humanitarian law,
recites as follows:

In cases not covered by this Protocol or by other
internationalagreements, civiliansand combatants remain
under the protection and authority of the principlesof
international lawderived from established custom, from the
principles of humanity and from the dictates of public
in Art.ncl(2) Pro.toco11, 1977).e Convention IV and restated

THe United Kingdom argues that "while the Martens Clause
makes clear that the absence of a specific treaty provision
on the use of nuclear weapons is not, in itself, sufficient
to establish that such weapons are capable of lawful use, the
Clause does not, on its own, establish their illegality.The
terms of the Martens Clausethemselvesmake it necessary to
point to a rule of customary internationallaw which might
outlaw the use of nuclear weapons.' (p.84).

Response :

The Martens Clause makes it indisputablyclear that the
customary rules of armed conflict as well as the dictates of
public conscience are relevantto the question beforethe
Court.

Elliot Meyrowitz has commented:

Restraints on the conduct of war have historically never beenlimited to treaty law alone. The Martens Clause of the 1907
Hague Conventions offer a legal yardstick intended
specifically for those situations in which no international
convention exists to prohibit particular weaponsor tactic.
When the Nuremberg tribunal was confronted with thelack of a
prior treaty definingcrimes against humanity and crimes
against peace, it concluded:

The law of war is to be found not only in treaties but in the
customs and practices of States which gradually obtained
universal recognition,and from the general principles of
justice applied by jurists and practised by military courts.
This law is not static, but by continua1 adaptation follows
the needs of the changing world.. . (ElliotMeyrowitz,
"Nuclear Weapons are IllegalThreatn, The Bulletin of the .,
Atomic Scientists,May1985, p.35 at 37.)

The United Kingdom's interpretationof the Martens Clause
reduces it to a non-entity by requiring "a rule of customary
internationallaw" for its application. What if some horrible
new weapon were invented,eagerly adopted by most of the
world's generalsand roundly condemnedas inhumane by most of
the world's peoples? The United Kingdom's positionwould, in
effect, make the legal advisors to the world's Ministries of
Defence and Foreign Affairs the guardians of the public
conscience. That is not what Frederic de Martens had in mind.

8 ISSUES OF SELF-DEFENCE AND REPRISALS
8.1 Nuclear Weapons can be Used in self-defence and for
Reprisals

Several States have argued that the right of self-defence and
reprisa1 affects the legal position of nuclear weapons under
international law.(France, p.14, UK, pp.8i,93).

Response :

It is not subject to dispute that the right of self-defence
does not include theright to use prohibited weapons or
tactics. Hence,the right of self-defence does not affect the
legal regime of nuclear weapons positively or negatively.
(Cf. Section 5.5, supra.)

As for the right of reprisal, see Section 5.3, supra. CONCLUSION

The submissions of States which argue that theuse of nuclear
weapons is not necessarily unlawful suffer from several
weaknesses and flaws.

In the first place, theuse of nuclear weaponsviolates the
established and universally recognisedprinciples enshrined
in the laws of war. These principles of moderation,
discrimination, proportionality, necessity, humanity,
neutrality, environmentalsafety and non-toxicity clearly
prohibit the use of nuclear weapons in warfare.

The use of nuclear weapons violates the right to life which :
is enshrined in the Universal Declaration of Human Rights,
which states in Article 3 that "every one has the right to
life, liberty and securityof person".

The use of nuclear weapons isa direct violation of the
Charter of the UnitedNations and is contrary to the rules of
internationallaw and the laws of humanity and morality.

The governmentsof those States, which argue that the
legality of the use of nuclear weaponsdepends entirely upon
the particularcircumstancesof use, refuse to recognise that
nuclear weapons are totallydifferent from conventional
weapons in their awesomepower and capacity to inflict death
and destruction of a totally different order of magnitude and
gravity that threatens human survival.

When human survival is threatened by the use of nuclear
weapons, it becomes vital that mankind has an authoritative
legal opinion by the highest international authority on the
legality of nuclear weapons under internationallaw.

As Albert Einstein noted in 1946: "Henceforth. everynation's
foreign policymust be judged at every point by one
consideration. Does it lead us to a world of law and order or
does it lead us back toward anarchyand death?"

More recently, Hans Corell, Legal Counsel of the United
Nations, declared: "Arms must cede to the law and,
ultimately, to the judge's robe."

In response to the World Health Assembly's request for an
advisory opinion, the International Courtof Justice is
respectfullyurged to affirm the illegalityof the use of
nuclear weapons in armed conflict. Appendix 1

ANALYSIS OF STATEMENTS SUBMimED TO ICIIN WHO CASE

* \'hile Japan did noi say that use of nuclear weapns is illegal perse. they did subrnit that
"the use of nuclear weapns is clearly contrary to the spirit of hurnanity that gives
inlemaiional law its philosophical foundation." Appendix II: Admissibility

The WHOhas the mandateto requestan opinionfrom the LCJ. on this topic giventhe facts
that:

1.WHO isgrantedpermissionto request advisoryopinionsaccording to Artic96
paragraph2 of theUN Charter.Artic76 of the WHO Constimtionand Anicle X of
the Agreement betweenthe United Nationsand theWHO.

2. The requestconcemsa question which reiatto the powers and functionsof the
WHO in the advancement and promotionof health,as defmed by the WHO
Constitution.

3. The requestconcernan area of health whichhasbeen of longstandingconcemthe
WHO.

Therefollow spccificrespnses to argumentsthat the WHOdoes not have the mandateto
request an opinion onthis topic fromICI.:

1. Leealitv ofuse of nuclearweawns is not a eenuineconcemWHO

1.1WHOhas not been ~reviouslvconcemed aboutthe leeality of nuclear weauons.

The U.K. subrnissionstatedthat none of WHA resolutionsprior to WHA46.40"expresses
concernsover the legalityof the legaiityof their (p18)and that 'WHA 46.40 is the
fust instanicnewhichthe legalityof the use of nuclear weahasbeen the subjectof
WHA action,andis thus an entirelynew development.(p19)

Res~onse:The fact that WHOhas not previouslyconsideredthe legality of nuclearweapons

is no rcasonnot to considerit now. Considerakiannad progressionfrom carlier
considerationby WHOof the health and environmentaleffectsof nuclear weapons.(Effects
of NuclearWar on Healthand HealthServices,Geneva.WorldHealth Organization.1984.
Secondedition 1987.)It is appropriateto consider fust the nature andextent of the health risk
and then to considermeasuresfor minimizingthe risk, includinglegai meanues. Itmight
have ken presurnptuousfor WHOto considerthe legaiityof the use of nuclear weapons
beforeithad completedstudieson the nature andextentof the risk,but wasnot thecase.

1.2 Leealitvof NuclearWeamns is not Relevantto WHO

The U.K. submissionasks "...whythe lawfulness,orothenviseof the useof nuclearweapons
has anyrelevanceto their effectson health if thused;and WHA offen no such 1.3The Reauest is a Non Governmental Initiative %ch Does not Concem WH0

The U.K.noted that the non-govemrnental organizatio&, under the banner of the World Court
Project, had Pied to pumie the option of pmiading Ausuaiiaand New Zraland to initiate an
advisory opinion in the mid 198Uswithout succeq and then turned to the WHOsubsequently
@p. 10-11). The implication is thathi s thenfore not an initiative arising frurn within WHO
but is rather an initiaiive from the outside whishirrelevant to WH% &n-. île U.K.

noted that "...the gene-sisthi sequest lies in the so-cailed World Court Roject', a projein
which the international Physicians for the Revention of Nuclear War have joined." @.56)

Remnse: WHO, iike the United Nations itself and its specialitedagencies. exists to serve the
people of the world andbe rcsponsive to their concems Manyinitiatives pumied by these

bodies originate with non-governmental organizations, and quite properlyso. One may be
permined to doubt that, with its unfortunate referentothe International Physicians for the
F'reventionof Nuclear War,which, incidentaIly, received the Nobel PeaccRiz for its work
on the rnedical effects of nuclear war, the United Kingdom intended to suggest to the Court
that the wncem expressed by a non-govemmental organization for the subject rnaner of an
advisory opinion request disqualifies such a request from consideration by the Court.

2. The Reauest is Bevond the Scorx of the WHO Constitution

The United States submined that "Nothing in the objective or described functions of the
WHO suggests that the Organization has responsibility or authority in regard to the use of
nuclear weapons." @6).

The United States aiso noted that the Legai Counsel of the WHO stated in 1992that
"Whether the usc.of nuclcar wcapons islegai or illegai is a queion which does notso
readilyfitthe 22 constitutionai functions of WHO..."@6).

Remnse: The Court is respectfully referred to the mernorial submined by Nauni on the
admissibility of the request of WHO, which identifies powers and functions of the WHO
which relate to the question of the use of nuclcar wcapons. Panicular note should be made of
Article1 of the WHO Constitution whichdescribes the objective of WHO as '..the
attainrnent by ail peoples of the highest possible level of health", and Article 2 of the

Constitution whichdefines the functions of WHOas including "...ail necessary action to
obtain the objective of the organization."

in addition, the question of the relationship between legaiity of nuclcar weapons and their
health risk is a proper wncem of WHO in that WHO as a specialized agency of the UN.has
dong with other UN organs and speciaiized agencies. a legitirnate concem for and interest in

ensuring respect for thlaw. This is reflcctein the preamble of the UN mer which notes
the determination of the peoples of the UN"..to eslablish conditions under whichjunice and
respect for the obligations arisinç from maries and other sources of international can by
rnaintained." APPENDIX III

RESOLUTIONS STATING NUCLEAR DISARHAHENT OR
THE ELIMINATION OF NUCLEAR WEAPONS
AS A GOAL
(Listed inchronological order)

Establishment of a commission to deal with the ~r0biemS raised bv
the discoverv of atomic enersy, G.A. Res. 1, l(1) U.N. GAOR at 9,
L7.N.Doc. A/64 (1946) JunanimousL.

principles aovernins the qeneral reaulation and reductionof
Armaments, G.A. Res. 41, l(2) U.N. GAOR at 65, U.N. Doc A/64/Add.l
(1946) funanimous).

Reports of the Atomic Enersv Commission, G.A. Res. 191, 3(1) U.N.
GAOR at 16, U.N. Doc. A/810 (1948) 140 in favor - 6 opposed - 4
abstentionl.

Prohibition of the atomic weapon and reduction bv one-thirdof the
armaments and armed forces of the Dermanentmembers of the Securitv
(1948) (43 in favor19-, 6(opposed -AO1 abstentionl.DOC. A/810

Essentials of Peace, G.A. Res. 290, 4 U.N. GAOR at 13, U.N. Doc.
A/1251 (1949) (53 in favor - 5 o~posed - 1 abstentionl.

Peace throush deeds, G.A. Res. 380, 5 U.N. GAOR at 13, U.N. Doc.
A/1775 (1950) (50 in favor - 5 o~posed - 1 abstentionl.

International controlof atomic enerqy, G.A. Res. 496, 5 U.N. GAOR
Supp. (No. 20) at 80, U.N. DOC. A/1775 (1950) (47 in favor - 5
0~~0Sed - 3 abstentions).

Reoulation. limitationand balanced reductionof al1 armed forces
and al1 armaments; international control of atomic enersv, G.A.
Res. 502, 6 U.N. GAOR SUPPA-(No. 20) at 1, U.N. Doc. A/2119 (1952)
142 in fivor - 5 o~posed - 7'abstentions;.

Reoulation, limitation and balanced reductionof allarmed forces
and al1 armaments: reDort of the Disarmament Commission, G.A. Res.
704, 7 U.N. GAOR Supp. (No. 20A) at 3, U.N. Doc. A/2361/Add. .1
(1953) (52 in favor - 5 Opp0Sed - 3 abstentions).

Resulation. limitation and balanced reductionof al1 armed forces
715, 8 U.N. GAOR Supp. (No. the17)sat 3, U.N. Doc. A/2630 (1953). (54
in favor - none ooposed - 5 abstentions).

Reoulation. limitationand balanced reductionof al1 armed forces
and ail armaments: reportof the DisarmamentCommission: C~n~l~sion
of an international convention (treaty) on the reduction of
armements and the prohibition of atomic, hvdroqen and other WeaDonS.
of mass destruction, G.A. Res. 808, 9 U.N. GAOR Supp. (No. 21) at
119, U.tJ. Doc. A/2890 (1954) lunanimousl. -e, G;A. Res. 2930, 27 U.N. GAOR Supp.
(No. 30) at 15, U.N. Doc. A/8730 (1972) (105 in favor - none
oouosed - 1 abstention2.
Non-use of force in international relations and Permanent
prohibition of the use of nuclear weapons, G.A. Res. 2936, 27 U.N.
GAOR Supp. (No. 30) at 5, U.N. Doc. A/8730 (1972) /73 in favor - 4
OP DOS^^- 46 abstentions).

Declarationand establishmentof a nuclear-freezone in South Asia,
G.A. Res. 3265(. ..29 U.N. GAOR SUDD. (No. 31) at 29. U.N. Doc.
A/9631 (1974) 1104 in favor - 1 0UU&ed '-27 aistentioAs1.

G.A. Res. 326518). 29 U.N. GAOR SUDD. (NO. 31) at 30. U.N. Doc.,
A/9631 (1974) J96 in favor - 2 o~pokéd - 36 abitention;).

*
extremelv harmful effectçon world oeace and securitv, G.A. Res.
3462, 30 U.N. GAOR Supp. (No. 34) at 17, U.N. Doc. A/10034 (1975)

Supp.al(No. 39), Vol.di1,rat 45, U.N. Doc. A/31/39 (1976) X95 inR
favor - none opoosed - 33 abstentions).

Review of the imulementationof the recornmendations and decisions
adooted bv the General Assemblvat its tenth suecial session, G.A.
Res. 33/71 B, 33 U.N. GAOR Supp. (NO. 45) at 48, U.N. DOC. A/33/45
(1978) 1103 in favor - 18 o~posed - 18 abstentions).

Supp. (No. 45)at 55, U.N. DOC. A/32/45 (1977) 1134 in favor. GAO- 2
ODDosed - no abstentions):

General and comulete disarmament, G.A. Res. 33/91 C, 33 U.N. GAOR
Supp. (No. 45) at 60, U.N. DOC. A/33/45 (1978) 1127 in favor - 1
oouosed - 10 abstentionsl.

General and com~lete disarmament, C.A. Res. 33/91 H, 33 U.N. GAOR
Supp. (NO. 45) at 62, U.N. DOC. A/33/45 (1978)1108 in favor - 10
opoosed - 16 abstentionsr.
Review of the im~lementationof the recommendationsand decisions
adouted bv the General Assenblv at its tneth s~ecial session, G.A.
Res. 34/83 J, 34 U.N. GAOR Supp. (NO. 46)at 57, U.N. DOC. A/34/46
(1979)j120 in favor - 2 ODDOS~~ - 19 abstentionsl.

Conclusion of an international conventionto assure the non-
nuclear-wea~onStates aqainst the use or threat of use of nuclear
Doc. A/34/46. (1979)1120 in favor. -none op~osedNO- 22 abstentions).
G.A. Res. 35/152(D), 35 U.N. GAOR Supp. (No. 48) at 69, U.N. Dot.
A/35/48 (1980) 1112 in favor - 19 oouosed - 14 abstentions).

3 mUJCl'IQN, ~~ AND USE OF RRDIOLaICALWEAFCNS), C.A. Res. 37/99
C, 37 U.N. GAOR Supp. (No. 51) at 77, U.N. Doc. A/37/51 (1962)
1adooted without a votel.

General and comolete disannament (REVIEWOF AND SJPPïBID?ï Tü l?E
(33MPREHENSIvSIVDY OF 'IHEçuE5TIONOF NUCLEAR-WEAR3N-FFE EONES PiW rrs
ASPECTS), G.A. Res. 37/99 F, 37 U.N. GAOR Supp. (No. 51) at 79, U.N.

Doc. A/37/51 (1982) f14i'in favor - 1 o~posed - 2 abstentions).

Review and im~lementationof the ~oncludinaDocument of the Twelfth
Soecial Session of the General Assemblv (FREEZE ON NUCW hWGONS),
G.A. Res. 37/100 A, 37 U.N. GAOR Supp. (No. 51) at 82, U.N. Doc.
A/37/51 (1982) (122 in favor - 16 ODDOS~~ - 6 abstentions).

Review and imolementationof the ConcludinaDocument of the Twelfth
Special Session of the General Assembly (NUCLEAR-ARMF SREEZE),G.A.
Res. 37/100 B, 37 U.N. GAOR Supp. (NO. 51) at 83, U.N. DOC. A/37/51
(1982) 1119 in favor - 17 opposed - 5 abstentionsl.

Review and imolementationof the ConcludinaDocument of the Twelfth
Snecial Session of the General Assemblv (-ON ON 'IHE~Bï!ï'ïON
OF THE USE OFNUCLEARWE9R3NS), G.A. Res. 37/100 C, 37 U.N. GAOR Supp.
(No. 51) at 83, U.N. Doc. A/37/51 (1982)1117 in favor - 17 oo~osed
- 8 abstentions).

Conclusion of effective international arranuements to assure non-
nuclear-weapon States aaainst the use or threat of use of nuclear
weaoons, G.A. Res. 36/68, 38 U.N. GAOR Supp. (No. 47) at 59, U.N.
Doc. A/38/47 (1983)1141 in favor - none ooposed - 6 abstentions).

Review and implementationof the Concludina Document at the Twelfth
Special Session of the General Assembly (mE ON NUCLEAR WGZRXI'S),
G.A. Res. 38/73 B, 38 U.N. GAOR Supp. (No. 47) at.64, U.N. Doc.
A/38/47 (1983) JI24 in favor - 15 o~posed - 7 abstentionsl.

Review and imolementationof the ~oncludinsDocument at the Twelfth
S~ecial Session of the General Assemblv (CONVENI?ONON?HE PROHIBITiON
OF THE USE OF NUCLEARWEAFONS),G.A. Res. 38/73 G, 38 U.N. GAOR Supp.
(No. 47) at 67, U.N. Doc. A/38/47 (1983),:126in favor - 17 ooposed
- 6 abstentions).

Condennation of nuclear war, G.A. Res. 38/75, 38 U.N. GAOR Supp.
(NO. 47) at 69, U.N. Doc. A/38/47 (1983) (95 in favor - 19 oooosed
- 30 abstentionsL.

Review of the imolementationof the recommendations and decisions
adouted by the General Assemblv at its tenth s~ecial session (NON-
USEOF NUCLEAR mNS AND FPEM3ïïONOF NUCLEAR WAR), C.A. Res. 38/163 B.

in favorGA-R19 opoosed. -715atabstentions)..OC. ~138147 (1983) (110 Supp. (No. 53)at 65, U.N. Doc. A/40/53 (1985)176 in favor - none
ouposed - 12 abstentions).

peview of the im~lementationof the recommendationsand decisions
ado~ted by the General Assemblv at its tenth s~ecial session (NON-
USEOF NUCIU\R WEAR3NANllFREiENXONOF - KM?), G.A. Res. 40/152 A,
40 U.N. GAOR Supp. (No. 53) at 92, U.N. Doc. A/40/53 (1985) 1123 in
favor - 19 opposed - 7 abstentionsl.

Review of the im~lementationof the recommendationsand decisions
a(BILATERANLUCLD.R-ARMANDsSPACE-AF?lSs tenth s~,cG.A.sReSi.n40/152 8,..

favorN.-Gnone o~posedo.-540 abstentions).Doc. A/40/53 (1985)1107 in

Review of the implementationof the recommendationsand decisions
' adouted bv the General Assemblv at its tenth suecial session
(NUCLEARWEAXNS Di W ASPECTS),G.A. Res. 40/152 C, 40 U.N. GAOR
Supp. (No.53) at 93, U.N. Doc. A/40/53 (1985) (117 in favor - 19
o~uosed - 11 abstentionsl.

Review of the im~lementationof the recommendationsand decisions
adopted bv the General Assemblv at its tenth suecial session
(CESSATIONOF ?HE NUCLFARARMS RACEAND NLJCLEARD-) , G.A. ReS .
40/152 P, 40 U.N. GAOR Supp. (No. 53) at 102, U.N. Doc. A/40/53
(1985) (131 in favor - 16 ODDOS~~ - 6 abstentions).

Conclusion of effective internationalarranaements to assure non-
nuclear-wea~onStates aaainst the use or threat of use of nuclear
weauons, G.A. Res. 41/52, 41 U.N. GAOR supp. (No. 53) at 67, U.N.
Doc. A/41/53 (1986) (149 infavor - none ouoosed - 4 abstentions).

General and compIete disarmament (NUCLEARDI-), G.A. Res.
41/59 F, 41 U.N. GAOR Supp. (No. 53) at -- U.N. Doc. A/41/53
(1986) JAdouted without a voteL.

A/41/53 (1986)1130 in favorGAOR-S15 opoosed53- 5tabstentions).N. Doc.

Conclusion of effective internationalarranaements to assure non-
n q r
weauons, G.A. Res. 42/32, 42 U.N. GAOR Supp. (No.49) at 66, U.N.
Doc. A/42/49 (1987)(151 infavor - none ouuosed - 3 abstentions).

General and com~lete disarmament (NUCLEARDIS-), G.A. Res.
42/38 H, 42 U.N. GAOR Supp. (No. 49) at 77, U.N. Doc. A/42/49
(1987)JAdooted without a votel.

Conclusion of effective international arranaements on the
strenqtneninqof the securitv of non-nuclear-wea~onStates aaains.t
the use or threat of use of nuclear weauons, G.A. Res. 43/68, 4J
U.N. GAOR supp. (NO. 49) at 69, U.N. DOC. ~143149 (1988) 1117 in Conclusion of effective internationalarranoements to assure non-
nuclear-wea~on States aaainst the use or threat of use of nuclear
weauons, G.A. Res. 47/50, 47 U.N. GAOR supp. (No. 49, Vol. 1) at
abstentions).. A/47/49 (1992) (162 in favor - none ODDOS~?~ - 2

Review and im~lementationof the ConcludinaDocument of the Twelfth
S~ecial Session of the General Assemblv (-ON ON 'LXEPRXIBITIOh'

OF 'ilUSE OF NUCLEAR I.IEAPONSG),A. Res. 47/53 C, 47 U.N. GAOR Supp.
(No. 49, Vol. 1) at 70, U.N. DOC. A/47/49 (1992) (Adootedwithout
a votel.

peview and im~lementation of the Concludino Documentof the Tvelfth
S~ecial Session of the General Assembly (NUCLEAR AFW EREEZE) G.A.
Res. 47/53 E, 47 U.N. GAOR Supp. (No. 49, Vol. 1) at 70, U.N. Doc.
A/47/49 (1992)JAdo~ted without a vote).

Conclusion of effective internationalarranaements to assure non-
nuclear-wea~on States aoainst the use or threat of use of nuclear
WeaDons, G.A. Res. 48/73, 48 U.N. GAOR Supp. (No. --) at --, U.N.
Doc. A/48/-- (1993) 1166 in favor - none ODDOS~~ - 4 abstentions).

(BIIATERX LUCLERR-AFl?SNECOTIATIONASND NUCLEAR DI-) , G.A. R~s .
48/75 B, 48 U.N. GAOR Supp. (No. -- at -- U.N. Doc. A/48/--
(1993) fAdopted without a votel.

Review of the im~lementationof the recommendationsand decisions
adouted bv the General Assemblv atits tenth s~ecial session (RER3FZT
OF THE DIS- COMMISSION), G.A. Res. 48/77 A, 48 U.N. GAOR Supp.
(NO. --) at --, U.N. DO^.A/48/-- (1993)IAdo~ted without a v0tel. Uniicd Nations Gcncnl Asscrnbly Rcsolutions which wncludc lhat ihc usc of nuc1c.u
wcapons is a crime against hurnaniryand a violation of IhcU.N Charter.

Rcsoluiion 1653 (XVI) D,&laratian on thc Prohibition of ihc Usc of Nuclcv md
Thcn~~onuclcaWcapons,U.N. GAOR 16ihScss, Supp.No. 17.at 4 U.N. Doc. N5100

(1961).

Rcsolulion on Lhc Non-usc of Forcc in International Relations and Pcrmancnt
Prohibition of ihc Usc of Nuclcar Weapons.GA. Rcs 2936. U.N. GAOR 20th Scss.,
Supp. No. 31,at 5, U.N. Doc. A18730(1972) (72 in favor.4 opposcd, 41 abstentions);

Rcsolution on Non-usc ofNuclcar Wcapons and Prcvcniionof nu cl^ Weapons. G.A.
Rcs.33iilB. 33 U.N. GAOR,Supp. No. 45, ai 48. U.N. Doc. AB3145 (1978) (103 in
favor,18 opposed, 18 abstcniions);

Resolution on Non-use ofNuclur Wcapons and PrcventionofNuclcar Ww, C.A. Rcs.
341836, 34 U.N. GAOR, Supp. No. 46, at 56, U.N. Doc. AB4146(1979) (112 infavor,
1Gopposed. 14 abstcniions);

~csolution on Non-use ofNuclear Wupons and prcvcniion of Nuciwr Wu, C.A. RCS.
35/152D. 35 U.N. GAOR, Supp.No. 48, at 69,U.N. Doc. AB5148(1980) (113in favor,
19opposcd. 14 abstcntions);

Rcsoluiion on Non-use of Nuclcar Wcapons and Prcvcntion O~NUC~CW Vu, G.A. RCS.

36/92], 36 U.N. GAOR, Supp.No. 51, ai 64, U.N. Doc. A/36/51 (1981) (121 in favor.
19 opposcd, 6 abstcniions);

Rcsoluiion 37/100C Convcniion on the Proliibiiion of the Usc of Nuclcar Wcapons,
U.N. GAOR Supp. No 51 ai 83, (1982)

Rcsolution 38/75,Condcrnnalion of Nuclcx War, U.N. GAOR. Supp. NO. 47 ai 69
(1983).

Rcsolution 39163H.Convcntion onthc prohibitisn of thc use ofnuclcrir weapons U.N.
GAOR, Supp 57 ai 70. (1984).

Rcsoluiion 40/151F, Convcntion on thc of thc use ofnuc!car wwpons, U.N.
GAOR, 40th Scss., Supp.53 al 90 (1985).

Rcsoluiion 41160F.Convcniion on the ~rohibiiionofIhc usc of nuclur wwpons. U.N.
GAOR. 41si Scss. Supp. 53nt85,(1986)

Rcsolution 4U39C, Convcniion on thc of the usc of nuclwr wwpons. U.N.
CAOR, 42nd Scss.. Supp. no. 49 ai 81, (1987).