Letter dated 16 June 1995 from the Legal Adviser to the Foreign and
Commonwealth Officeof the United Kingdom of
Great Britain and NorthernIreland, together with
Written Comments of the United Kingdom ForeignLe
Comrnonweal;h
Oific:
16 June 1995 LondonSLi'?.AH
The Registrar
~nternational Court of Justice
Peace Palace
The Hague
THE NETHERLANDS
Sir,
1 have the honour to refer to my separate letter of
/ today's date under cover of which was enclosed the written
statement of the United Kingdom in response to the Court's
Order of 1 February 1995 in connection with a request from
the General Assembly of the United Nations for an Advisory
Opinion on the Legality of the Throat or Use of Nuclear
Weapons.
1, have the honour to indicate that the said statement
should also be taken, so far as relevant, as the response
by the United Kinqdom to the written statements submitted
by cther States in the separate proceedings on a request
from the World Health Organisation for an Advisory Opinion
on the Legality of the Use by a Stace of Nuclear Weapons
in Armed Conflict. The United Kingdom is accordingly
willing that the text of that statement be made available
to al1 States which have submitted written statements in
those proceedinçs.
1 have the honour, however, to state that, having
,==zsïs2rsdt-+ wL~ ',Len statsïxsn~ssüSïiaittcb 2y okher
States in those proceedings, the tinitedKingdom wishes to
maintain in their enrirety the conclusions in its own
written statement, includinq (but not limited to) that the
Request is not within the competence of the World Health
Organisation.
Accept, Sir, the assurances of ny highest consideration
(Sir Franklin Berman)International Court of Justice
Legality of the Threat or Use of
NuclearWeapons
(Requestfor an Advisory Opinionby the
United Nations GeneralAssembly)
Statelîzerof tlzeGoije~-~zrne~zt
of rlzeUnitedKingdorn Page
1 Introduction 1
II The Background to the Request and the Propriety
of Response
1. The Background to United NationsGeneral
Assembly Resolution 49175K
. NuclearDisarmamentand Non-Proliferation
3. Whether theCoun should answerthe
Question posed
Ill The Principles ofLaw Raised by the Question
1. The rneaningof the Question
. Provisionsspecificallyrefemng to
NuclearWeapons
3. The UnitedNationsChaner and the
Righrof Self-Defence
4. The Lawsof ArmedConflict
5. internationalLawron HurnanRights
and the Environment
6. Threatsto use NuclearWeapons
N Conclusion 1.1 The rems of the request made by the General Assembly of the United
Nations in Resolution 49175K.adopted on15Decernber 1994.are as follonfs:
The GeneralAssernbiy ....
Decides, pursuant to Article 96, paragraph 1, of the Charter of the United
Nations, to requestthe International Coun of Justice urgently to render its
advisory opinion on the followingquestion:
"1sthe threat or use of nucle~weapons in any circumstance perrnitted under
international law?"'
12 This request, which overlaps to a large extent with one made in 1993 by
the World Health Organization and still before the Coun, is the result of a sustained
carnpaign by a group of non-govemrnental organizations ('NGO's')which have long
been active inpromoting what they havetemed The World Coun Project',namely an
atternpt to obtain from the Court an advisory opinion to the effect that the use of
nuclear weapons is unlawful in al1 circumstances.' To that end, these NGO's
campaigned to obtain both the WHO and General Assernbly requests and clairn to
have prepared the written statements submitted by a number of States in connection
withthe WHO request.
1.3 The United Kingdom submits rhat the present case is one in which the
Coun should exercise its discretion under Article 65. paragraph 1, of its Staiute to
decline to answer the question posed. Thar question is couched in vague. abstract
terrns and cannot be answered wirhout reference to the nurnerous different
combinations of circumstances in which the threator use of nuclear weapons rnight
be conternplated. TheCoun does not. and could not, have beforeit sufficient rnaterial
to enable it to consider al1the combinations of circurnstances which rnight arise.
Moreover.an answer to the question posed would not assist the General Assernblyin
the exerciseof its functionsunder the Charter and rnighthave aharmful effect on the
work of theUnited Nationsas a whole and on thedifferent sets of negotiations which
are taking place regarding disarmament and other aspects of the control of nuclear
weapons. These issues are addressed in Part II of this Staternent, which also
examines the background tothe presentrequest and the progress of the disarmament
negotiations.
'
Stc The World Coun Projecr on h'ucleorWeoponsand InrematLowa(2ndcdiiion.1993)1.4 If, however. the Coun should decide to answer the question which has
been put to it, the United Kingdom submits that that question does not admit of a
simple answerin terms as abstractasthose of the queslon itself. There is no neaty or
other binding instrument which specifically prohibits the use of nuclear weapons in
ail circumstances. ïhe legality of using nuclear weapons can therefore be derermined
only by reference to the circumstances in which thai use occurs. In panicular. it
would be necessary to examine whether the State resoning to nuclear weapons was
entitled toake action by wayof individual or collective self-defence and whether the
action thus takenmet al1the requirements of the rightof self-defence. It would also
be necessary to consider whether, in such circumstances, the use of a nuclear weapon
was lawful under the laws of med conflict. In Pan III of this Statement the United
Kingdom sets out the principles of law relevant to such an inquiry and again submits
that the applicationofthese principles is not an abstract matter but depends upon th:
factual circumstancesof each case.
1.5 In view of thecomplexity of rhesequestions.the United Kingdom resenCes
the right to make further submissions uith regard to the request. should the Coun
decide to respondto it. II THE BACKGROUh?) TO THE REQUEST AND THE PROPRIETY
OF RESPONSE
1 The Background to United Nations General Assembly
Resolution 49175K
2.1 The present section examines the background to the adoption by the General
Assembly of Resolution 49175Kwhich containsthe request for an advisory opinion '.
from theCourt.
22 In Aupust 1987 an international conferenceof NGO'son nuclear weaponsand
international law waseld in New York, sponsored by the Lawyers' Committee on
Nuclear Policy (USA) and the Association of Soviet Lawyers. This confeence
decided to found a world-wide organization of lawyers opposed to nuclear weapons.
This organization. the International Association of Lawyers against Nuclearms
('IALANA'), was founded in April 1988 at another meeting in Stockholm. In
Septenber 1989, at the Hague, the IALANA adopted its 'HagueDeclaration on the
Illegality of Nuclear Weapons'.It also appealed to al1member States of the United
Nations 'totake immediate steps towards obtaining aresolution by the United Nations
General Assembly under Article 96 of the United Nations Charter. requesting the
internationalCoun of Justice to render anadvison opinion on the illegality of the use
of nuclear weapons.'
23 Subsequently. in January 1992. 1.4L.Ah'A.with two other NGO's. the
InternationalPeace Bureau and Internationalhysicians for the Prevention of Nuclear
War. established the 'World Court Project'. InMay 1992 the International Peace
Bureau orpanizeda meeting in Geneva to promulgate the project'sideas. The NGO's
involved in the World Court Project lobbied States in order to persuade them to
submit a draft resolution to the World Health Organization and the UN General
Assembly requesting an adviso. opinion on the illegality of the threat or use of
nuclear weapons. On 14 May 1993,the World Health Assembly adopted resolution
46.40. which foms the subject of a separaterequest to the Court.
2.1 A meetingof the Non-Xligned hqovementCo-ordinating Bureau in New York
discussed in October 1993 tabling a draft resolution in the First Committee of the
TheWorldCounProjecronNltclearWeaponsandliirernarionalL'nd edition.1993).p.xiii
andAppcndix1.
3General Assembly. The item had not ben on the agendaof the Co-ordinating Bureau
but was raised under 'OtherManers'.
At the 48th sessionof the United Nations General Assembly the representative
25
of Indonesia introduced in the First Committee, atts 23rd meeting on 9 November. a
draft resolution entitled 'Request for an Advisory Opinion from the International
Court of Justice on the Legality of the Threat or Use of Nuclear Weapons.' 3 The
draft resolutionwas stated to be introduced on behalf of the States members of the
United Nations that are members of the movement of Non-Aligned Countries. The
single operative paragraph of the draft resolutionread:
'Decides. pursuant to Article 96(1) of the Charter, to requestthe International
Coun of Justice to urgently render its advisory opinion on the following,
question, "1s the threat or use of nuclear weapons in any circumstance' :
pennitted under international law?" '
2.6 However, at the 30th Meeting of the First Committee, on 19 Noïember 1993.
the sponsors announced that they had decided not to press for action on the draft
resolution. The representative of Indonesia,speaking on behalf of the Non-Aligned
Counmes, said that the fact that the legal implications of nuclear weapons had yet to
be addressed had prompted the Non-Alizned Countries to submit the draft resolution.
'However. they recognized that recenr developments in the sphere of
disarmament made the attainment of the completeelimination of nuclear
weapons a more likely prospect. The progress achievedunder the auspices of
the Amendment Conference and the Conference on Disarmament had,
moreover, facilitated the adoptionby the Committee of consensus resolutions
on a comprehensive test-ban and a ban on the production of fissionable
materials which might lead ro renunciation of the use of nuclear weapons. To
preserve the momentum of the progress being made. the Non-Aligned
Countries had therefore decided no1to press for final actionon draft resolution
A/C.1/48/L.25 but would continue instead to monitor developments in
different forums. with particular interesr in the early conclusion of a
comprehensive test ban treaty (CTBT).'
2.7 From 31 May to 3 June 1994the Eleventh MinisterialConference of the Non-
Aligned Countries was held in Cairo. at which the decision was taken to re-table the
draft resolution and to put irio the vote at the next session of the UN General
Assembly. On 9 November 1991ar the 15th Meeting of the First Comminee at the
49th Session of the UN General Assembly. ResolurionMC.1149L.36 was introduced
AIC.ll18R.25.
MC. 1/48/SR.p 3age2 by the delegation of Indonesia on behalf of the Non-Aligned Countries. The single
operative paragraph of that draft resolution contained the request set out in the
inuoduction to this Statement. No indication uas given as to why the situation was
thought tohave changed since the previous year.
2.8 At the 24th Meeting of the First Committee on 18 No\.ember 1994. the
delegation of Morocco proposed. in accordance with Rule 116 of the Rules of
'.
Procedure of the General Assembly, that noaction betaken on the request contained
inthe draft resolution. The delegations of Gennany andHungary spoke in suppon of
the Moroccan proposal. The delegations of Indonesia and Colombia opposed the
motion. In addition. the delegation of Senegal deplored the submission of the
resolution on behalf of the Movement of Non-Aligned Counuies and stated that they
couldnot in any way suppon the draft resolution.
2.9 The motion thar no action be taken on the draft resolution was rejected 67
votes to 45, with 15abstentions. The First Committee then took a decision on the
draft resolution, whichwas adoptedby 77 votesto 33, with 21abstentions.
2.10 The draft resolution wasthen submittedto the General Assemblyas resolution
K in paragraph 60 of the First Cornmittee's Repon.5 At the 90th meeting of the
General Assembly on 15 December 1991 the delegation of France moved that no
action be taken on the draft resolution. in accordance with Rule 71 of the General
Assembly's Rules of Procedure. The motion was supponed by the delegations of
Germany and Hungary and opposed by the delegations of Malaysia and Indonesia.
The motion \irasthen purto a vote and rejectedby 68 \.otesto 58. with 16abstentions.
2.11 The delegation of France then noted the profound division within the
Assemblyon the appropriatenessof the draft resolution andemphasised their concern
that theCoun should not be in the situation of being pressurisby a specific group.
The French delegation proposed an amendment to the draft resolution to delete the
word 'urgently' in the operative paragraph. in order to ensure the freedom of a
juridical body to make itsown assessrnent. The representativeof Indonesia moved,in
accordance with Rule 71 of the Rules of Procedure, that no action be taken on the
amendment. This motion was adopted by 61 votes to 56, with 30 abstentions. The
draft resolution \ras then adopted by 78 votes to 43, with 38 abstentions, as
Resolution 49/75K. 2 NuclearDisarmament and Non-Prolieration
2.12 This section will deal with recent effortsby the international cornmunit) in the
field of nuclear.disarmament and non-prolifemion, which constitute an irnponant pan
of the contextwithin which the present Requestrnustbeseen.
2.13 The Treaty on the Non-Proliferation of Nuclear Weapons ('the NF'T')was
opened for signature at London, Moscow and Washingtonon 1July 1968and entered
into force on5 March 1970. The NPT sers out in detail the obligations of nuclear-
weapon States (those which manufactured and exploded a nuclear weapon or other
nuclear explosive device before 1 January 1967) and those of non-nuclear-weapon
States. inpanicular in respect of: the transfer and manufacture of nuclear weapons:
the application of safeguards, adrninistered by the International Atornic Energy.' :
Agency, to nuclear matenals; the use of nuclear energy for peaceful purposes: and
generaldisannament, including nuclear disarmament.
2.14 Article VIII(3) of the NPT provides for a conference to be held, five years
after theenuy intoforce of the Treaty, to review the operation of the Treaty, and for
further such conferences to be held at five-yearly intervals thereafter. Such
conferences have been held even five years since the Treaty's entry into force in
1970. Article X(2) of the NPT provides that twenty-iive years after the entn into
force of the Treaty, a conference shall bevened to decide uvhetherthe Treaty shall
continue in force indefinitely, or shall be estended for an additional fixed period or
penods. and that thisecision shall be taken by a majorityof parties to the Treaty.
1 Frorn 17April to 12 May 1995the 1992Revien and Extension Conference of
the Panies to the Treaty on the Non-Proliferation of Nuclear Weapons was held at
United Nations Headquaners in New York. The Conference wasattended by 175of
the 178 StatesPanies. On II May the Conference decided without a vote that, as a
majonty existed arnong States Panies for the indefinite extension of the Treaty, in
accordance with ArticleX(7). the Treaty should continueinforce indefinitely.6
A draftcopyof thardecisionis anaalAnn:x A.
6 2.16 On 11 May the Conference also adopted without a vote a Decision on
This
Principles and Objectives for Xuclear Non-Roliferation and Disarmament. '
decisioncontained the following paragraphsrelating to nucleardisarmament:
'3. Nuclear disarmament is substantially facilitated by the easing of
international tensionand thestrengthening of trust between States which have
prevailed following the end of the cold war. The undertakings with re~ardto
nuclear disarmament as set out in the Treaty on the Fon-Proliferation of
Nuclear Weapons should thus be fulfilled with determination. In this regard.
the nuclear-weapon States reaffirm their commitment, as stated in Article VI.
to pursue in good faith negotiations on effective measures relating to nuclear
disarmament.
The achievement of the following measures is important in the full
4.
realization and effective implementation of Article VI. including the
programmeof actionas reflected below :
(a) The completion by the Conference on Disarmament of..the
negotiations on a universal and internationally and effectively verifiable
Comprehensive Nuclear-Test-Ban Treaty no later than 1996. Pending the
entry into force of a Comprehensive Test-Ban Treaty. the nuclear-weapon
States should exercise utmost restraint;
The immediatecommencement and early conclusion of negotiations
(b)
on a non-discriminatory and universally applicable convention banning the
production of fissile matenal for nuclear weapons or other nuclear explosive
devices, in accordance with the statement of the Special Coordinator of the
Conferenceon Disarmamentand the mandate contained therein:
and progressive effons to reduce nuclear weaponsglobally. with the ultimate
goal of eliminating those iveapons.and b!. al1States of general and complete
disarmament under strictandeffective internationalcontrol.'
2.17 Sub-paragraphs 1 (a) to (c) reflect disarmament negotiations currently under
way in other fomms. The United NationsConference on Disarmament in Geneva is
currentlyengaged in the negotiaiionof auniversaland internationally and effectively
verifiable comprehensive test-ban treaty. and is due to begin negotiations on a non-
discriminatory anduni\'ersallyapplicable convention banningthe production of fissile
material for nuclear weapons or other nuclear explosive devices. Funher effons
towards the reduction of nuclear u-eapons are also being made, particularly in the
context of the United States-Russia StrategicArms Reduction Treaty II ('STARTII'),
of which those two States are committed ro seek ratification in 1995. At their
September 1991 meeting in Washington. the Presidents of the United States and
Russia insvucted their experts to intensif! their dialogue oninreralia,the possibility
' Adraftcopy of thdecisionis arrachalXnnexB.afier ratification of START ilof funher reductions on. and limitations of. rernaining
nuclear forces.
2.18 Paragraph 8 of the Decision on Principles and Objectives for Nuclear Xon-
Proliferation and Disarmament contained the following provisions on security
'8. Noting United Kations Security Council resolution 984 (1995). which
was adopted unanimously on 11April 1995, as well asthe declarations by the
nuclear-weapon States concerning both negative and positive security
assurances. further steps should be considered to assure non-nuclear-weapon
States party to the Treaty against the use or threat of use of nuclear weapons.
These steps could take the form of an internationally legally binding
instrument.'
2.19 This paragraph reflected the facl that on 5-6 April 1995 the five nuclear-
weapon States had made statemenrs conraining both positive security assurances
(statements of the steps they would take in the event of aggression with nuclear
weapons, or the threat of such aggression) and negative security assurances
(statements of thecircumstances in which they undenook not to use nuclear weapons
against non-nuclear-weapon States).8 The negative security assurances given by the
United Kingdom, France, Russia and the United States are in similar terms. The
1995 security assurances replaced earlier positive assurances given by the United
Kingdom. the United States and the Soviet Union in 1968. and negative security
assurances given bythe nuclear-weapon States ai various tirnes since 1978.
2.20 On 11April 1995the ljnited Nations Security Council unanimously adopted
resolution981, in which itwelcomed the statements which had been rnade.9
2.21 The third decision adopted without a vote by the Conference of Parties to the
NPT was a Decision on Strengthenin? the Re\.iew Process for the Treaty.10
Paragraph 2 of that decision provides that Review Conferences of the NPT should
continue to be heldevery five years. andthat thenext such conference should beheld
in the year2000. Paragraph 3 provides for the holding of a Preparatory Comminee in
each of thethree years prior to theRevieu.Conference. Paragraph4 provides that:
Copiesof theseassurancesattached a,AnnexC.
Thetex1of rcsoiution984isanacha1Anne*D.
'O A copyof rhisdecisionisanachat AnnexE. '4. The purposes of the Preparato. Comminee meetings wouldbe to consider
pnnciples, objectives and ways in order to prornote thefull implernentation of
the Treaty, as well as its universaliry. 2nd to make recommendations thereon
to theReview Conference. These include those identified in the Decision on
Pnnciples and Objectives for Nuclear Non-Proliferation and Disarmament
adopted on 11 May 3995. These meetings should also make the procedural
preparations for the next Review Conference.'
222 None of the above decisions. statements and resolutions - which representthe .,
most recent combined efforts of the international community to address nuclear
disamament and non-proliferation issues - refer to, or address the need for. an
opinion on the legality or othenvise of the use or threat of use of nuclear weapons.
Intensive negotiations were requiredby the States concerned to conclude those texts.
In the course of those negotiations. and of the proceedings at the Conference. the
issue of whether or not the use or threat of use ofnuclear weapons wouldor wkuld
not be lawful was not a factor.
3 Whether theCourt should Answer the Question Posed
223 In the view of the United Kingdom. the Coun should decline to answer the
question posed by the General .L\ssembly.
2.24 It is ciear that theCourt has a discretion in drciding whether itshould respond
to a request for an advisory opinion. The language of Article 65 of the Statute is
permissive,not mandaton. As the Coun said. in theI~trerprerarioiofpeuce Trearies
case:
'Anicle 65 of the Statute is permissive. Ir gives the Court the power to
examine whether the circumstances of the case are of such a character as
should lead itto decline to answer the Request ....the Coun possesses a large
amount of discretionin the matter.' 1'
" Advisor).Opinionof 30 March 1950. ICJ Reports.1950. pp. 71-2. Sec also the advisory
opinions onRescrvarions ro lhe Genocide Coii~senrio.ICJRepons, 1951. atp. 19. andCertain
Erpensesof rheUrtireNorions.ICJRepons. 1962. atp. 155.Similarly,in the Wesrem Saharacase, theCoun said:
'In exercising this discretion, the International Coun of Justice, like the
Permanent Court of International Justice, has always been guided by the
principle that. as a judicial body, it is bound to remain faithful to the
requirements of itsjudicial character even in giving advisory opinions. If the
question isa legal one which theCoun is undoubtedly cornpetent to answer, it
may none the less decline to do so. As this Coun has said in previous
Opinions. the permissive character of Anicle 65, paragraph 1. gives itthe
power to examine whether the circumstances of the case are of such a
characteras should lead it to decline to answer the request.'
225 It is within that margin of discretion that the question of propnety falls to be
considered. The Coun has repeatedly emphasised that there are inherent limitations
on the judicial funcùon13 and these limitations applyparticularly ro issues raised with
the Coun which jeopardise its judicial propriety. Judpents which are 'devoid of ',
object or purpose',14or 'remotefrom reality' 15or incapable of effective application
have been found to fa11into this categoq-. As the Court held in the Nonheni
Cameroonscase:
'Ifthe Court were to proceed and wereto hold that theApplicant's contentions
were al1sound on the merits, it would still be impossible for the Coun to
render ajud,ment capable of effective application...l6
And in the same jud~rnent the Coun stressed that al1the considerarions of judicial
propnety apply equally to the errerciseof its ad\.ison jurisdict1'n.
2.26 The Court has nevertheless indicated that. as the principaljudicial organ of the
United Nations. it should norrnally _oi\.eits opinion on a legal question when
requested to do so by a cornpetent organ (or specialized agency) of the United
Nations. As the Coun said. inthe Peace Treariescase.
"
ICJRcpons.1973.a[p. 21
l3
See e.gFreeZones Caseof UpperSoio. ond Ge.PCU. Ser.AIB.No.46, 1932.p.161:Srararus
of EasrernCareliaPCU. Ser. B. No. 5. 1923.p. 19: Nuclear TestsICJRcpons1974. p. 271;
Nonhem CameroonsCase. lCJ Rcpons 1963.p. 30.
''
WesremSaharaCase. ICJRepons 1975arp. 37
l5 ICIRepons 1963.p.33.
l6 Ibidp .33.
l7 Ibid.pp. 30-31. Scc athepassase frothcIVesrcmSahara caseabovc 'thereply of the Coun. itself an "organ of the United Nations". represents its
participation in the activities of the Org,anization.and. in principle. shouldnot
berefused.' '8
It is, of course, highly desirable that the Coun should play a constructive role in
assisting the other organs of the United Nations. The emphasis should. however. be
on theconstructive role which anopinion from the Court can play ina panicular case.
If a response by the Coun to a request for an advisory opinion would. in fact. be
unlikely to provide any constmctive assistance to the other organs of the United
Nations but, on the contrary, would be likely to have a detrirnental effect on the
activities of the United Nationsfarnily,the position would be verydifferent. In such
a case. both the duty of the Coun to protect irsownjudicial function and the need for
it to play itsn as an organ of theUnited Nationscal1for it to exercise its discretion
to decline torespond to therequest.
227 It is the view of the United Kingdom that that is the case here and that the
Coun should accordingly decline to give an answer to the question posed by the
General Assembly. First, an examination of the categories of cases in which the
Coun has held that an opinion should,as a rnatterof propriety. be given demonstrates
that the present casefalls outside those categories. Secondly,the nature of thecase is
such that the Court would be unable to give an aduisory opinion which would be of
positive assistance to the other organs of the United Nations. Thirdly. the rendering
of an advison; opinion in this case could well have a harmful effect upon important
and cornplex negotiations in the field of disarmament. Each of these considerations
will be examined in tum.
(1) The Present request does not fa11nithin any of the Categories of
Cases in nhich. as a matter of propriety. an Opinionought to be given
228 All the categories examined below show a common characteristic. They are
al1cases in which theopinion of theCoun usaslikely to make a positive contribution
to the work of the requesting organ andto the well-being of the United Nations as a
whole. That is to say. whilst there were Croups of States who might have had
difficulties with theopinion (and the matter must be assumed to have generated sorne
disagreement to merit reference to the Court). the likelihood that these difficulties
would have had effecrsdetrimental tothe work of the UnitedNations was srnall:and.
converselp, the benefits of settling a disputed legal question were considerable. Inshon, the positive advanrages to the United Nations cleady outweighed the possible
negative consequences.
(a) Cases where the legal q~iestioninvolved the inrerprerarion of a
constirutionalprovision whichhad becomethesubject of disputeintheorgar~ moking
therequest
229 Many of the cases fall into this categor).. For example, in the Conditions of
Admission 19and Comperence cases the essentiai question raised was the proper
interpretation of Article4 of the Charter. specifically whether a member State in
voting on an application for admission could take into account conditions not
expressly provided for in Anicle4(1) and. in the second opinion,whether the general
Assembly might proceed to a vote on an application in the absence of a '. .
recommendation from the Security Council. The Court dealt with both questions in
absuact terms and, although it was well aware of the highly political and acutely
controversial nature of the disputes in the United Nations which had led to those
requests," its opinions proved most constructive. The impasse over the admission of
new members was broken and the Organization moved rapidly towards the goal of
universality. Sirnilarly,in the IMCO(Compositionof the MaritimeSafen Comminee)
case, " the Court's opinion on the proper interpretation of Article ?S of the
Constitution of IMCO made a highly positive contributionto the furure well-being of
IMCO.
2.30 The present case is entirely different. .4lthough the question posed by the
General Assembly would require the interpretation and application of certain
provisions of the Chaner, especially Articles 2iJ) and 51. the case is not a
constitutional one (in theense in which thecases surveyed in the previous paragraph
were constitutional), because the Charter pro\.isions concerned deal not with the
powers of the Organization or its intemal workings but establish or codify rules of
internationallaw of general application. Moreover. to answer the question posed by
l9
AdvisoryOpinionof28 May1918:ICJRepons.1948.p. 57
20
AdvisoryOpinionof 3 March1950:ICIRepons.1950.p.51
21 SeeHiegins'PolicyConsideratisndtheInternarionJludicialRocess'ICLQ (1968)58.at
p.78.whosupponstheCoun (conrrGreig.The AdvisoryJurisdictiof theICIandtheSertlement
of DisputesbetweenStates'1ICLQ (1966,325)inthevieu.thatmostissuesraisedin nquests for
opinionswillhavegivenrisIOdisputesu,iihintheUN butthalrhisshoulperse preventthCoun
from responding.
77
-- AdvisoryOpinionof 8lune 1960:ICIRepons.1960.p. 150. the Assembly would involve more than an examination of those pro\'isions of the
Charter, for the Court would be obliged also to consider the whole body of
internationallaw applicable to theuse of weapons inarmed conflicts.
(b) Cases where rhe legal quesrion involves marrers on ,chich rhe
requesring organ or agency seeks guidance in the exercise of irs consrirurional
funcrions
231 There is a broad range of cases in which the question posed related not
directly tothe interpretation of a constitutional provision butather to the manner in
which an organ should cq out its functions,or to a question of law which needed to
be clarified in order that an organ should be able tocary out its functions. Thus, in
the Repararionscase '3the United Nations sought to know whether it might bring a
claim against a State in respect of injuries suffered by an agent of the Organization.
In the Peace Treariescase z4the General Assembly askedwhether disputes under the
Peace Trearies existed and. if so, whether under the provisions of those treaties the
Secretary-General was empowered to nominate the third member of the Treaty
Commissions, notwithstandingchatthe govemment concerned had failedto appoint a
representative. In effect, it was the Secretary-General who required legal guidance
about the extent of his poarers. The Reseri~arionscase '5 was similar. in that the
Secretary-General needed to hou. hou. to deal with reser\.ations to the Genocide
Convention in order to c- out his duties as depositary under that Convention. In
cases such as the EffecrofAii.ardsotriie L;!,-idi~liriisrrar,eribirria'0or the series
of cases dealing with South-West Africa 2' it was the Assembly which sought
ouidanceregardin: the exerciseof its funciions.
-
25
Repararionsforliijuriess~fierediii ilic SemiceUn:Advisory Opinioo nf II April1949.
ICJ Rcpons.1949.p. 174.
21
Inrerprerorionof PeaceTrearieswirhBlrlgaria.HirrzganandRomanAdvisoryOpinionof 18
July1950.ICJRcpons.1950.p. 121.
' Resenvrionsro rheGenocideConreririoriAdvison.Opinionof 28 May 1951.ICJRcpons.
1951.p. 15.
26 Advisory Opinioonf 13July1954.ICJRepons.1954,p.47.
27 InrernnrionalSrorusoj Soirrh-WestAjricAdvisoryOpinion of 11July 1950,ICJRcpons.
1950,p. 128: VoringProcedureon Qiresrionsrelaringro theReponsand feririons concerningrhr
TerriroryafSW Africa.Advis- Opinionof 7 June1955. IU Rcpons.1955.p. 67: Adrnissibilinof
Hearinps of Peririonerb!the Commirreeon SW Africa. Advisory Opinionof 1 June 1956, ICI
Rcpons,1956,p.23.232 It is cenainly uue that inthe South-West Africa cases, or the WesrernSahara
case '8 the opinion sought by the Assembly also had a bearing on the legal obligations
of Member States. Nevertheless. as the Coun emphasised in U'esrernSahara, the
primary motivationfor the opinion was to give guidance to the Assembly.
'...Theopinion is sought for a practical and contemporary purpose. namely. in
order that the General Assembly should be in a bener position to decide at its
thinieth session on the policy to be followed for the decolonisation of Western
Sahara.
...
'theobject of the request i...to obtain from the Court an opinion which the
General Assembly deems of assistance to it for the proper exercise of its
functions concerning the decolonisation of thetemtory.' '9
233 In the present case. however. the General Assembly is not seeking guidance
on the performance of its functions. As Part 11.3of this Wntten Statement has
dernonstrated, itis not in theAssembly but inother fora, notably the Secunty Council
and the Conference on Disarmament, that the issue of nuclear disaniiament is being
addressed and action taken. The question on which the Coun's opinion has been
sought concems not the powenof the Assembly but rather the nghts and obligations
of States and, in panicular, the extent of their inherent right of self-defence.
Moreover, there is nothing to suggest that some new problem hasarisen in the recent
penod so that the General Assernbly is nou. hampered in caryin: out its funciions by
the lack of an answer to the question posed to theCoun. Indeed. taking inro account
the progress made in the nuclear non-proliferation and disarmament fields (referred to
in Pan 11.2.above). the remarks of the delegate of Indonesia at the United Nations
First Cornmittee(when announcin: that no action would be taken on a pre\.ious draft
request) arenoureuen more pertinentthan the' were then.30
fc) Cases u,here rhe legal qlresriorz iizi.01i.e~the i~zrerprerarionof
agreemenrsbenveeiithe0rgani:ation anda MeInberS -rare
2.34 Cases of this kind have long been regarded as appropriate for the use of the
Coun's advisoryjurisdiction. As early as 1916,Section 30of the UN Convention on
Privileges and Irnmunitiesprovided for reference of disputes tothe Coun by way of a
Advisory Opinionf 16October1975.ICJRepons.1975,p. 12
29 Ibid..alpp.20and27. Sotw in CenainExpenseosftheUA' (Anicl17(2)ofthe Chaner),1U
Reports.1962.p. 151. althoughgiving guidanceto the Assemblyon its budpetav funcrions.the
Opinioncamednecessary implicatiofsrthelegalobligationsof MemberStates. request for an advisory opinion. The WHO Regional Ofice case 31 and the
Applicabiliryof rhe ObligarionroArbirrarearising underSection 21 of rhe Unired
NarionsHeadquanersAgreemerirof 26June1917case 32both fell into thiscategon.
The present case, however, does not concern any agreement between the United
Nations and a Member State. No such a,-ement concerning the use of nuclear
weapons hasever been concluded.
(d) Cases where the legal quesrionconcernsrheobligations of Member
Sraresconsequenrialupon decisions or resolurionsof the comperenrorgans of the
organizarion
235 In the Namibia case 3j the question put to the Coun did involve the legal
obligationsof Member States but, of course,in the specific context of action bj.,both
the General Assemblyand the Security Council with regard to the temtory. in respect
of which both organs had special responsibiliiies as a result of its mandated status.
The Assembly, by Resolution 2145 (XXI), had terminated the Mandate under which
South Afnca held the temtory, and the Secunty Council, by Resolution 276 (1970),
had endorsed that decision, confimed the illegality of further acts by South Afnca in
the temtory and called upon Member Statesto refrain fromdealing with SouthAfnca
contrary to paragraph 7 of the resolution. It was these decisions which created the
legal obligationson which the Court was askedto advise.
236 In the present case the matter is entirel!. different. Although the General
Assembly has adopted numerous resolutions regarding nuclear weapons since 1961.
the Assembly hasno power to create legalobligationsfor Member States withrespect
to the possession or use of nuclear weapons- or. indeed. with regard toany aspect of
Member States' exerciseof the right of self-defence-in the circumstances in which
Resolution 49n5 K was adopted.
31 Advisor) Opinion of 20 Decernber 1980.ICJ Rcpons. 1980.p. 73.
32 Advisor) Opinion of 26 April 1988.ICJ Repons. 1988.p. 12.
33 Legal Consequencesfor Sraresof rhe ConrinuedPresence of SourhAfrica in Nam(SWa
Africa) noni,irhsranSecuri? Coirncilresolurion276 (1970).Advisory Opinion of 21 lune1971.
ICJRcpons. 1971.p. 16. (2) An opinion from the Court in the present case would have no
positive effect for theUnited Nations as a whole
The case law of the Court regarding the advisoryjurisdiction emphasises the
237
importanceof thisjurisdiction as a means by which the Court, as the principal judicial
organ of the United Nations, can 'participate in the activities of the Organization'."
As the survey of the case law in the preceding parapphs demonsuates. however,the
Court has naturally been concemed that its participation should take the form of
makins apositive contribution to the activities of the United Nations. Moreover, the
very fact that the Court is a principal organ of the United Nations means, it is
submitted, that itmust be concemed with the effect of an advisory opinion on the
activities of the Organization as a whole and not just on the requesting organ. The
United Kingdom considers that if the Coun were to give an opinion in the present:
case, that opinion could not have a positive effect, either on the work of the General
Assembly or in the context of the activities of the United Nations as a whole in the
field of disannament and security issues. First. the question posed by the General
Assembly is a hypothetical one to which a proper judicial answer cannot be given.
since the legality of the use. or threat of use, of nuclear weapons depends upon an
analysis of the circumstances of the panicular use or threat. Secondly. althoughit is
the General Assembly which has sought the Court'sopinion regarding the le~alityof
the use of nuclear weapons. the dangers posed b!. such weapons are currently being
addressed elsewhere in the United Nations in a manner which would not be helped
(and. as will be demonstrated. ma!. indeed br harrned) by a pronouncement on the
legality of the use of suchweapons.
(a) Thequesri017 posed is h~porlterical
2.38 As the precedin: section has shown. the question put to the Coun in the
present case does not relate to the extent of the powers of the General Assembly or
the exercise by the Assembly of its functions. Nor has it arisen in the context of a
concrete factual situationn~ol\~inga specific use or threat to use nuclear weapons. It
is a purely hypothetical question which is removed from anyfactual or legal context
which alone could provide the Coun with a manageable framework within whichit
could set aboutansweringthe question. Although the Coun has said, on a number of
occasions. that the advisor).jurisdictimay be used to answer an abstract question?5
EI PenceTreotiecase.ICJRepons.1950.aip.71
35 Sce.e.g..thAdmissionscase.ICJRcpons.1918.atp. 61 andthediscussiobyFinmaurice in
The Lob<andProcedureof rheInrernorionolCourrofJits(19861.vol.1atp. 117. it must nevenheless be possible to analyse the question in some panicular factual
matrix andnot merely inthe conrextof purely speculativeor hypothericalfacts.
239 The essence of the judicial function is the application of pnnciples of law to
specific factual situations. As Judge Hudson said of the Permanent Coun of
InternationalJustice,
'The Coun has not been made the school-master of the Council [of the
League]. It has not been-askedto propound the law, but to apply it. Irhas not
been confronted with legal problems of the future, but of the present. Ir is not
asked to work in vacuo, but as pan of a live, active and functioning
internationalsystem.' 36
In the present case, however.the Coun is being asked to work'invacuo'. It is asked
to pronounce on whether the threat or use of nuclear weapons is permitted 'inzany
circumstance'. As the United Kingdom will demonstrate in Part III of this Written
Statement. there is no lepally binding instrument which directly and specificaily
prohibits the threator use of nuclear weapons. In the absence of such an insirument,
the question posed by the General Assembly can be answered only by reference to
rules and principles of international law of more general application. Yet the
application ofsuch rules and pnnciples to a specific weapon willnecessarily depend
upon theprecise circumstancesin ~vhichthat ureaponis used. or its use is threatened.
No indication of what those circumstances miphr beis given in the question and it is
difficult to see hou the Coun could have before itsufficient material to enableit to
consider al1 of the combinations of circumstances which might arise. The
combinations of circumstances are \,irtually unlimited. The Court would be
constrained to consider such variable factorsas: the location. scale and nature of the
attack. whetheractual or imminent: the means of defence available to the State under
attack or threat of attack:the presumed objectivesof the attacker; thepanicular type
of nuclear weapon used in response to the attack, and its effects in the panicular
locality in which it is ernployed. including its likely effects on non-military targets
and long-term environmental effects. The factors. andtheir permutations, are endless.
36 Hudson.The Advison. Opinions of the PermanentCoun of InternationalJustice'.Inremorional
Conciliarion(No\.embe1925).No.211.p. 374. (b) Nuclear weapons are being addressed in other conrexrsin the Unired
Narions
2.40 Although the General Assembly has discussed nuclear weapons for over thim
years, it has not had sole, or even primary, responsibility for this matter within the
United Nations. The possibility of a use of nuclear weapons is pre-eminently a
question of international peace and security, primary responsibility for which is
vested in the Security Council by vinue of Article 24(1) of the Charter. In addition.
the Conference on Disarmament has long been the focus of efforts to achieve
measures of nuclear disannament. The Conference on Disarmament has consistently
approached the question of reducing and eliminating the threat posed by nuclear
weapons by means of negotiating specific measures, such as limitations on their
proliferation and the achievement of limitations on nuclear testing, rather than by .':
debating whether theuse ofa particular nuclear weapon wouldor would not belawful
in general or in some hypothetical combination of circumstances. This approach has
recently been endorsed by the Secunty Council in resolution 984 (1995) 3' which
expressly welcomes the assurances given by nuclear-weapon States to the non-
nuclear-weapon States which are parties to the Non-Proliferation Treaty. 3s There is
no indication that an opinion on the legality of the use of nuclear weapons would
make any positive contribution tothis process.
2.41 In Judge Hudson'swords. the Coun has to operate as pan of a 'live.active and
functioning international system'. In the present case.that international system must
be seen as extending beyond the General Assembly to include the United Nationsas a
whole. It must also entai1recognition of the fact that. so far as nuclear weapons are
concerned. the most important pans of that system are to be found in the Conference
on Disarmament and the Security Council. as well as in the recent Review and
Extension Conference of the Non-Proliferation Treaty. If the Coun's answer to the
question posed by the General Assembly will make no positive contribution to the
work of those pans of theinternational systemthen that is a good reason for the Coun
to decline to answer that question.
37 Set AnncxD
3E Seeparagraphs2.19to2.12,above. (3) An advisory opinion on this question could have a hamful effect
on important disarmament negotiations
2.42 It has already been shown, in Pan II.2of this Statement. that the present case
cornes before the Coun at a time when the parties havejustdecided, without theneed
for a vote, toxtend indefinitelythe Non-ProliferationTrear).,when new negative and
positive security assurances have been unanimously welcomed by the Security
Council, and when a number of other measures to reduce the threat posed by nuclear
weapons are under the most active consideration. These negotiations form pan of a
dismament process which it has taken many years to construct and which now
offers the prospect of additional very considerable achievements. However. as
paragraph 4(c) of the Decision on the Principles and Objectives for Nuclear Non-
Proliferation and Disarmament makes clear, effons to reduce nuclear weapons
globally, with theultimate goalof eliminatingthose weapons.are linked to thepunuit
by al1 States of general and complete disarmament under strict and effective
international control. That necessarily involves the consideration notonly of nuclear
weapons but also of conventional arms. Moreover, it would be umealistic to imagine
that that ultimate objective could be achieved within a shon time-frame. In the
meantime, therefore, the disarmament process has sought to achieve interim
protection of international peace andsecurity through a stable system of deterrence
which includes both positive and negative security assurances from the nuclear-
aeapon States to the non-nuclear-weaponStates.
2.13 The existing treatiesand other texts \\.hichrefer to nuclear weapons havebeen
concluded after lengthy and complicated negotiations among States with widely
differin~ views about the utility and even morality of possessing such weapons. The
success achieved so far in these negotiations has been based on striking a balance
berween those views; and because States have. in fact. concentrated not upon the
differences between them but on points where their interests coincide, with the result
that specific steps towards goals of nuclear non-proliferation and disarmament have
been achieved. These achievements have been welcomed within the United Nations.
If, however, the Coun were ta give an opinion on the principles of law raised by this
request (and in parricular if in doing itwere to cast doubt on the basis for existing
agreements) the continued participationof States concerned in these activities might
be called into question. Forexample. an opinion of the Coun that the possession of
nuclear weapons.and their use in self-defence, couldnever be lawful mighi lead some
States to conclude that they should no longer panicipate in existing regimes
concerning nuclear weapons which did not amount to measures of complete
disarmament. Altematively, an opinion of the Coun recognising that the use ofnuclear weapons could be lawful in appropnate circumstances might diminish the
incentive for those States not parties to applicable-treaty regimes to renounce the
possession of nuclear weapons. In these circumstances, the viability of existing
achievements in the field of nuclear disarmament and non-proliferation would be
undermined.
2.44 Similar considerations apply as regards current disarmament negotiations. An
advisory opinion by the Coun on the principles of law raised by this request is not a
necessary pre-condition for the successful conclusion of the disarmament negotiations
refemedto in paragraphs 2.16 to 2.21 above. Moreover, there is again a nsk that such
an opinion would actually play a divisive role. It might lead the States participating in
those negotiations to become side-tracked into a debate on the implications of the
Court's opinions, rather than concentrating on the complex and detailed matters'.
before them. There would also be the nsk, in the case of an opinion casting doubt on
the legality of the use or threat of use of nuclear weapons in any circumstances. that
some States might feel unable to continue their participation in nuclear disarmament
and non-proliferation negotiations which build upon theexisting position and which
seek to bring about further reductions and controls. rather than total disarmament.
Whatever the view the Court were to corne to on the merits. ir is in any case unlikely
to have any significant effect in assisting progress in these negotiations.
2.45 The United Kingdom therefore submits that. in \.ie\vof the considerations set
out in this Part of the Statement. there are cornpeliing reasons \\th!.the Coun should
exercise itsdiscretion todecline to anstver the question put to it. 1 TheMeaningofthe Question
3.1 The question posed by the General Assembly iswider than that posed by the
World Health Assembly in that it refers to 'the threator use of nuclear weapons'as
compared with 'the use of such weapons. This broader phase in the General
Assembly's question is closer to the wording of Anicle 7. paragraph 4 of the U.N.
Charter. which refers to 'the threat or use of force'. Neither question touches
possession ofnuclear weaponsas such.
3.2 In so far as the General Assembly's questionrefiects the wording of Anicle 3.
para,mph 4 of the U.N. Chaner, this represents. in the view of the UnitedKingdom.
the correct approach. For it essentially equates nuclear weapons with 'force'. They
are one form, anextreme fom, of 'force'and as such their use is subject to the same
prohibitions - and the same exceptions -as the use of 'force'is in general under the
U.N.Chaner.
33 The question addressed to the Court is whether the threat or use of nuclear
weapons is in any circurnstance penlrirredunder international law. II is. however.
axiomatic that. inthe absence of a prohibitive rule opposable to aparticular State. the
conduct of the State in question rnust be perrnissible.39 Properly. therefore, the
question should be whether the threat or use of nuclear weapons isprohibired by ans
nile of international law. In contrast. the question as formulated is implicitly cast in
39
This principle was recentl! given specific application and endorsed by the Coun in the
Nicaragua case in the follouing rems:
'..in international law thcre arc no rules. othcr than such rules as may beaccepted by the
Sute conccrned. by treaty or otherwise. whcreby thelevel of armaments of a sovereign State
can belimited. and ibis principisvalid for al1States without exception.' (Militon and
Paromiliron Acriiiries in and Agoinsr h'icoragua (Merits). ICI Repons. 19p..14. at
paragraph169.)
The principle statedinthe texi flows in some measure from the often quoted statement of the
PermanentCourt in the brus case that internationallaw leIOStaus 'awide measure of discretion
which is oniy limited in cenain cases by prohibitive niles'(PCU Repom. SA,No..10,at p. 19).
The principleoes not. houever. rely thereonbut draus its suppon fmm the more general proposition
that the basis ofnternational lau is 'the express or tacit consent of SIOthe body of mies
comprising international lau as a wholc at any panicular time'(Jennings and Wam. Oppcnhcim's
Inrcn~orionaiuw (9th cd.. 1993).vol. 1.parapraph5).terms of a presumptionof illegality,rebuttable on proof that the conduct in question is
permitted.
3.4 nowing from this presumptionof illegality is an aimost imperceptible shifting
in the burden of proof from those seeking to show that the conduct in qustion is
prohibited to those seeking to show that it is permined. In other words. contra9 to
accepted principles of international law, the formulation of the question places the
burden on those seeking to show that the threat or use of nuclear weapons may in
some circumstances be permissible to prove this to be the case. In the United
Kingdom's view,it is for those contending for a prohibitive de to prove that it exists
and that itis opposable to other States. In the event that theCoun decides to respond
to the request for an advisory opinion, the correct interpretationof the question would
therefore be whether the threat or use of nuclear weapons is in any circumstance:
prohibiredby any mle of international law. In the absence of proof that this is so. it
would follow that the conducrinquestion islau~ful.
35 Whichever way the question is framed, it does not admit of a simple answer.
There is no foundation for the view that the use of nuclear weapons would
automaticaily coneavene international law. The international community has never
adopted in binding fom any general prohibition on the use ofnuclear ueapons. On
the contrary, those treaties which have been adopted regarding nuclear ureapons
presuppose that there are circumstances in which such weapons might lawfully be
used. Moreover. an examination of the principlesof international lau regarding the
threat and use of force and the conduct of hostiliries reveals that. while nuclear
weapons (like al1methods and means of uarfare) are subjecrto limitations on their
use, those limitations are not such as to render the use of nuclear weapons unlawful
perse.
3.6 This pan of the United Kingdom's siaiement addresses these issues in the
following way. Section 2 examines those treaties and other instruments which
specifically refer to nuclear weapons. Section3 considers the legality of the use of
force in self-defence under the rems of the United KationsCharter. Section 4 looks
at the applicationof the lawsof arrnedconfiict to the useof nuclear weapons. Section
5 considers the possible effecron the use of nuclear weapons of hurnan nghü waties
and treaties andcustomw law relating to the protection of the environment. Finally.
Section 6 examines the legal issues raisedby a threat to usenuclear weapons. 2 Provisionsspecifieally referring to nuclearweapons
3.7 Since the rniddle of the nineteenth century. the international cornmunir!.has
adopted a long list of treaties banning- or severely resuicting -the use of specifrc
weapons. Prorninenron this list are:
(1) the St Petersburg Declaration, 1868, which prohibits the use of
projectiles under 400 grammes in weight which are explosive or charged with
fulminating or inflammablesubstances;*
(2) Hague Declaration No. 2, 1899,banning the useof projectiles the sole
object of which is the diffusionof asphyxiatingor deleteriousga~es:~'
(3) Hague Declaration No. 3. 1899, prohibiting the useof bullets which
expand or flatten easily in thebody:'?
(4) the Hague Regulations on Land Warfare annexed to Hague
Convention No. N. 1907, Article 23 (a) of which prohibits the use of poison and
poisoned weapon~;~3
Hague Convention No. VIII. 1907. restriciin_othe use of automatic
(5)
subrnarine contactmines;*
(6 the Geneva Protocol. 1925. prohibiring the use of asphyxiating,
poisonous or other gases. al1 analogous liquids. materials or devices. and
bacteriologicalmethodsof warfare:45
(7) the Convention on the Prohibition of Developrnent, Production and
Stockpiling of Bacteriological and Toxin Weapons, 1972, which prohibits the
40 138CTS (1868-69)297: LXlV UKPP (1869) 639.
" 167CTS (1898-99)433: UKTS 52 11907).Cd. 3731.
187CTS (1898-99)139: UKTS32 (1907j. Cd.3751.
'3 205 CTS (1907) 127: UKTS i1910).Cd.5030.
205CTS(l907)331:UKTS 12(1910).Cd.5116.
'5 XClV LhTS (1929)65; UKTS21 (1930). Cmd. 3601possession of bacteriological and toxin ureapons and reinforces the prohibition on
theiruse?
(8) the United Nations Convention on the Prohibition of Milita- or an'
other Hostile Use of Environmental ModificationTechniques, 1977. prohibiting the
use of weapons intended to change the environment through the deliberaie
manipulationof natural pro cesse^:^'
the United Nations Conventionon Rohibitions or Restrictions on the
(9)
Use of Cenain Conventional Weapons, 1981,the Protocols to which prohibir the use
of weapons theprimary effect of which is to injure by non-detectable fragments. and
impose certain restrictions on the use of mines, booby-traps and incendiary
weapons:48
(10) the Chemical Weapons Convention, 1993,which-prohibits al1use of
chemical weapons andrequires thedestructionof exisringstocks.49
3.8 In marked conuast. no treaty has been adoptedspecificallyprohibiting the use
of nuclear weapons. Nor isthe use of nuclear weapons outlawed by a provisionin a
treaty of more general application. The Charter of the United Nations maltes no
reference to nuclear weapons. Nor do the Principlesof the Charter elaborated in the
Declaration of Friendly Relations and Co-operarionarnongStates in accordance with
the Charter of the United Nations (L'NGAResolution 2625 (XXV)). the Resolution
on theDefinition of Aggression (UNGAResolution3311 (XXIX))or the Declaration
on the Enhancement of the Effecti\.eness of the Principle of refrainin? from the
Threat or Useof Force in International Relations(UNGAResolution41/22) expressly
prohibit orregulate the useof nuclear weapons.jO
3.9 On the contrary. the international community has consistently declined to
address the question of the lawfulness or unlawfulness of nuclear weapons perse.
48 19ILM(1980) 1523:1312UKTS7
49 32ILM(1993)800.
50 Resolution42\22 refers to nuclearu,eaponsonl!. in thecontcxt of statcmentsabout the
imponanceof avoidingarmedconflict andcontainsno siaternentaboutwheihcrthe use of such
wtaponswouldbt lawful. Although in 1961 and in subsequent years the United Nations General Assembly
proposed the conclusion of a treaty prohibiting the use of nuclear weapons,s] that
proposal has not been followed up and no conference to consider such a treaty has
been convened. In another context, the Diplomatic Conference which adopted the
four Geneva Conventions of 1949rejecreda proposai thatit adopt a resolution on the
illegality of using nuclear weapons as being outside the tems of reference of the
Conference.52
3.10 The Diplomatic Conference on the Development of Humanitarian Law. 1971
to 1977,which adopted the two Additional Protocols to the Geneva Conventions of
1949 and which had broader tems of reference than the 1949 Conference. also did
not discuss the legality of nuclear weapons. In submitting draft protocols to the
Diplomatic Conference,the Intemational Comrninee of the Red Cross stated: '..
'Problemsrelating to atomic. bactenologicaland chemical warfare are subjects
of international agreementsor negotiations by governments. and in submitting
these draft Additional Rotocols the ICRC does not intend to broach those
problems. It should be bornein mindthat the RedCross asa whole, at several
International Red Cross Conferences, has clearly made known its
condemnation of weapons of mass desmiction and has urged govemments to
reach agreementsfor the banningof their use.'s3
During the four sessions of the Conference. the United Kingdom and a number of
other States made statements to the effect thatthe subject of nuclear weapons should
not be discussed by the Conference.ja A number of other States. whilenot expressly
referring to nuclear weapons. made clear that the). shared the view of the lCRC that
this question was betterdealtwith in the context of disamament negotiations andthat
the Conference should do nothin? to prejudice such talks. For example, the
Representative of Brazil said that:
Rcsolution 165(XVIi. Thisresolutionandsubsequentresolutionson the same rubjectarc
discussedbelou.paragraphs.25to3-22,
'' Fiml Recordof rheDip10,tiaricConjerenceof Geneva.vol.II8023.
'j ICRC,Drap AddirionalProrocolsrorheGenevaConirenrionofAirgus112.1949 (GenevaJune
1973).p.2.
41 Ojïcial Records. \.opp. 134(UKI.121(USSR].145-6(Sweden),179(Argentha).vol VII.
pp.192(France).295 (USA). '...otherinternational bodieswhich weretrying to bring about the reductionof
armamenü and to achievepeneraland cornp!etedisarmamentwere in abetter
position thantheConferenceto deal withcenain weapons.'55
3.11 Althoughsome States maintained that the Conferenceshould consider a ban
on some or. al1 uses of nuclear weap0ns.5~ it is clear from the records of the
Conferencethat this was notdone. No formai proposalto deal with nuclearweapons
was put beforethe Conference and discussion of specific weapons was confined to
cenain conventionalweapons consideredby theConference's AdHoc Comminee,the
ierms of referenceof whichwere expressiy confined toconventionalweapons.57 In
its Reportto theConference,the Ad Hoc Comrnineestatedthat:
'There was general agreement that a consideration of cenain modern,
convenrional weapons in the light of such factors as the degree of suffenng ' .
caused or their indiscriminateness had by now becorne an urgent necessity.
Tremendous technologicaldevelopments had led to ever more sophisticated
weapons, in many cases with increasingly destructive power. Nuclear
weapons and other weapons of mass destruction were, of course. the most
destructive. In that connexion, some delegations rejected the view thatthe
debate on those weapons and their possible prohibitionshould be left to the
disannamentdiscussions, andthey urgedthat the Conference includethemin
its programme of work. Another delegation expressed its regret at the
decision not to consider these weapons. Many other delegations. however.
accepted the limitation of the work of this Conference to conventional
weapons. Asit was pointed outby some. nuclearweapons inpanicular had a
special function in that the? act as deterrents preventing the outbreak of a
majoranned conflict betweencenain nuclearpowers.'5"
The Conferencefomally recorded the Reportwithouta \,ote.j9 The Conference also
adopteda resolutionrecommendingrhat a Conferenceof Governmentsbe convened
with a view t'oreaching 'agreementson prohibitions or restrictions on the use of
specific conr~enrioiialweapons including those which mas be deemed to be
55 Oficial Records, voV.p. 98. See also,the slaiemenisby Ukraine(113).Byelorussia(p.
150)andMonpolia(p. 192).
Oficiol Records. vol. V. 97.(Ghana).103 (Rornania),lO(Yugmlavia).120 (China).123
(Iraq)and195(Zaire):vol.XiVp.70 (Albaniaiandp.241(NorthKorca).
j7 Pilloudctai. Comrnenron.on rheAddirionel Prororols of 8 June 1977 (I1987) .. 591
(the1CRCCommcntary') A. proposaIOremoverheword'conventionalf'romthetitleof theAdHoc
Cornminec was rcjccted.Forthcdebareontheesiablishmcni ndrems ofrcfcrenccof thiscommince,
set OficialRecords, vol.V.p82-90.
58 ~ciol Records. volXVI,p.451 icmphasisadded).
59 Oficial Records. vol.V. pp.219-221 excessively injurious or have indiscriminate effects'60 Subsequently. a number of
States made declarations, on si-matureor ratification, to the effect that the newles
contained in Protocol Idid not applyto nuclear weapons. 61
3.12 Ir is not surpnsing. therefore, that theCommentary on the Protocols published
under the auspices of the ICRC (the 'ICRCCommentary') concludesthat 'there isno
doubt thatduring the four sessions of the Conference agreement was reached not to
'.
discuss nuclear weapons,' " or that the Protocols contain no references to nuclear
3.13 Those treaties which havedeait expressly with the subject of nuclear weapons
have not addressed the question whethersuch weapons are unlawful perse but have
concentrated, for the most pan, upon issues regarding possession. deployrnenf and
testing.The effect ofthese ueaties rnaybe summarisedas fo1lows:-
Possession
3.14 By becoming parties to the Non-ProliferationTreaty, 1968,& or to a regional
ueaty, such as the Treaty of Tlatelolco.65most non-nuclear-weapon States have now
undenaken not to manufacture or acquire nuclear sreapons. The Peace Treaiies
concluded at the end of the Second \Vorld \Var also bind a nurnber of States not to
possess nuclear weapons.6"n the case of Germany. this obligation was reaffinned in
the Treaty on the Final Setrlemenr uith Respect to Germany. 1990.6' The
disarmament treaties concluded betueen sorne of the nuclear powers lirnit by
60 Resoluiion22:Ofi7cR ~cordsvol.1p.215(emphasisadded).
61 Seebelow.paras3.45103.52.
6? lCRC Commenron. p.593.
63
Thepossiblecffectontheuseof nuclcîrweaponsof themoregcncralprovisionsof Additional
Protocolisconsideredbelou. par~sraps.45to3.52.
729UhTS161.
65 631 IJh7'S281.
66 Trcatiesof PcacewithBulgaria.Finland.Hungan..IralyandRomania.
67
29 ILM (199011186.Aniclc5.agreement the number and types of nuclear weapons delivery-systems which those
States rnaypossess.68
3.15 The deployment of nuclear weapons is prohibited in Antar~tica.~~in outer
space or on celestial bodies 70 and on the deep ~eabed.~]For those States uhich have
become parties to the Treaty of Tlatelolco or its 1st Protocol, the deployment of
nuclear weapons is prohibited within the areas covered by that agreernent.72
Similarly, those States which are parties to the Treaty of Rarotonga or its 1stProtocol
have undenaken not to deploy nuclear weapons within the areas covered by that
ag~eement.73
3.16 Those Statesparties to the Partial Test Ban Treary,1963. 74 have agreed not to
cany out amosphenc nuclear tests. Bilateral agreements also restrict underground
nuclear testingby sorneof the nuclear powers. In addition, testinp in cenain pans of
the world is restricted by ageements such as the Antarctic Treaty. Negotiations
currently taking place with a view to the adoption of a comprehensive test ban treaty
are describedin Pan 11.2,above.
66 See. e.g.. the Anti-Ballistic hlissiles Systems Treat!. 1971 i944 LTKT131. and the
Intermediate-Range Nuclear Forces Treat?. 1987 (27 lLhl 119881841.berween the Soviet Union and
the UnitedStates.
69 AntarcticTreary. 1959.Anicl1(401 CNTS 71 1
'0 Ouier SpaceTrcaty. 1967.Artic1\'(610 UKTS20ji
71
Sea-Bed Treaty. 1971.Anicle1955 CNTS 115)
72 The arcas covered by the Treaty of Tlarelolco comprise mosr of Latin Amcrica and cenain
adjacent watersand islands. The United Kingdomis a pany to Rotocand II to the Treaty.
--
'-> The Treaty of Rarotonga applieIOpans of the South Pacific. The United Kingdom has not
become a pany to the protocols to that treaty but the United Kingdom Govcrnmcnt havc statcd that
they arc ready. as a maner of policy. to respect the intentions of the regional States and that they havc
no intention of testing nuclcar weapons in the South Pacific or of basing nuclcar weapons on British
tcmtones in the South Pacific istatement by the Ministcr of Statc. Foreign and Commonwealth Office
in the House of Cornrnons. 20 March 1987: HC Debs. vol. 112.Wrincn Answcrs. col. 639BYIL
(1987)63% 3.17 The ueaties, however, say little about the possible use of nuclear weapons by
those States which have no obligation not to possess them. The Partial Test Ban
Treaty, for example, while prohibiting the parties from conducting atrnospheric
nuclear tests,does not purpon to restrict their useof nuclear weapons in the course of
h~stilities.~' Similarly, the Sea Bed Treaty prohibits the emplacement of nuclear
weapons on the sea bed but does not restrict the use of nuclear weapons fired frorn
other locations.
3.18 The Treaty of Tlatelolco is an exception. Anicle 3 of Rotocol II to theTreaty
contains an undenaking by those nuclcar States which are parties to the Protocol not
to use or threaten to use nuclear weapons against the States party to the Treaty of
Tlatelolco. Al1five permanent rnembers of the Security Council are nousparties to
this Protocol and have thusaccepted this obligation, althougheach made adeclaiation
on becorning party in which itindicated the circumstances in which it would regard
itself as free to take military action invol\,ing the useof nuclear weapons. Thus. the
United Kingdomdeclared that:
'the Govemrnent of the United Kingdom would, in the event of any act of
aggression by a Contracting Pany to the Treaty in which that Pany was
supponed by a nuclear-weapon State.be free to reconsider the extent to which
they could be regarded as comrnittedby the provisionsof Additional Protocol
II.'76
'j That the Panial Test Ban Treaty was no! intended to îppl! to th: use of nuclex u,eapons in an
armed conflictwas madeclear by the UnitedStates Secretaryoi State in his repSnAuyusi 1963to
the Resident. in u,hichhe said:
'Theanicle [Anicle Il does not prohibit the use of nuclear weapons in the event of war nor
restricr the exercisc of the right ofself-defense recosnizcd in Anicle 51 of the Chaner of the
UnitedNations.'1Documerirson Disarmamenr. 1963.p. 297.)
Seealso the advice of the State Depanmeni Lesal Advisop.cil.pp. 3434. The Govemment of the
Soviet Union tooka similar approachina starernenion 21 August 1963.inwhich it said:
'the trcat?. also does not prohibit the Soviet Union. if nced be. from holding underground
nuclear tests. frorncreasing the stockpiles of nuclear arms, and cven from using thev
wcapons against the imperialistaggressorsif thcy unleasha war in a fit of i(Op. cir..
p.456.)
76 28 ILM (198% p. 1400at 1422. The tinited States madea similar statcment on ratification(lm.
ci!p. 14231.On signature of the Protocol.China repeated its genenl undenaking that it would not be
the fint SutIO rcsonIO the useof nuclearweapons (p. 1414): Francestatedthat:
The French Govemrnent interprets the undcnakings set fonh in Anic3eof the Protocol as
not presenting an obstacle tothe fullcxerciseof the right ofselfdcfence confimicd by Anicle
51 of the United NationsCharter.' (p.1415)
The Soviet Unionstated that: Although the Non-ProliferationTreaty contains no comparable provision."
3.19
China, France. Russia,the United Kingdom and the United States have each given
security assurances to non-nuclear-weapon States in connection urith the Treaty.
These assurancesare descnbed in Pan II. abo~e.~~In resolution984 79 the Secunty
Councilhas welcomed thefactthattheseassurances hadbeengiven.
320 In addition,some of the treaties discussedin Part II prohibit any use of force
(whetherwithnuclear orconventionalweapons)withina defined~ea.~O
321 The treaties reviewed here, together with the absence of a general treaty
prohibitionon the useof nuclearweapons. show thatthe intemational community has
addressedthe questionof nuclear weapons through the medium ofpracticalmeasures
of disarmamentand non-proliferationby agreement nther than through ananemptto" :
outlaw nuclear weapons or their use. The preambles, substantive provisions and
draftinghistoriesof the variousueaties whichhave deait with the questionof nuclear
weapons clearly place those treaties in the context of disarmament. as steps on the
road to the goal of a more general disarmament by agreement berween theStates
speciallyconcemed, or betweenal1States. Neitherexpressly nor impliedlydo they
attemptto outlawailusesof nuclearweaponsin anycircumstances.
3.22 Nor do these treaties suppon the inferencethat theuse of nuclear weaponsis
regarded as unlawful under existing international la^.^' On the contrary. man! of
'Anyaction carried oby a Sute or Statespan!10the Tlatelolco Treaty that are incompatible
with itstatute of denuclearizaiionas well as the perpeiration b! one or several States pany to
the Treaty of an act of apgrcssion uith th: suppon of a State possessing nuclear weaponsor
rogether withuch State. shall be considercd by the Soviet Linionto beincompatible with the
obligations of those counrries under the Treaty. In such cases the Soviet Union reserves the
right to review ils obligationsunder AddirionalProrocolII.'(p. 1418)
"
The Preamble to the Treaty makes clear that the Treaty was designed Io contribute to the
prevention of nuclearwar by prc\,entinpthe disseminarionof nuclear wcapons. that in doing so it was a
response to the calls from the United Kations General Assembly for the adoption of an agreement on
the sprcad of nuclear wcaponsand thitwas a critical step in the process of concluding dismament
agrccmcnts.
78 Seeparagraph 2.19 and AnnesC.
79 AnnexD.
Egthe AntarcticTreat).. 1959.andthe Moon Treaty i 1363UNTS 3).
Attcmpts to draw such an inference are madr by. for example, Sn Lanka in its s~atemcntto the
Coun reparding the request b?- the WHO for an advisory opinion (Written Staternent of the
Govemment of Sn Lanka p.. 2). the provisions of those treaties aronly explicable on the assumption that the use of
nuclear weapons was not regarded by the negotiating States as unlawful perse. The
commitment made by the nuclear-weapon States in Protocol II to the Treaty of
Tlatelolco would be entirely unnecessaq if the use of nuclear weapons was in al1
circumstances prohibited by general international law. Moreover, 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, indicate that
those States consider that therare circumstances in which reson to nuclear weapons
would belawful.
3.23 The Non-Proliferation Treaty and the security assurances offered by the
nuclear-weapon States rest on the sarne assumption. Although the Non-Proliferation
Treaty is concemed with possession, rather than use, of nuclear weapons, itis.based
upon a balance of responsibilities between nuclear-weaponand non-nuclear-weapon
States, which the agreement treatsas rwo distinct categories. Thus, nuclear-weapon
States parties are subjecf to clearly differentiated obligations under the Treaty from
those parties whichdo not possess such weapons and undertake not to acquire them.
To treat the nuclear-weapon States in this way is incompatible with any assumption
that the possible use of nuclear weapons is totally prohibited. Theentire structure of
the Non-Proliferation Treaty (which on 11 hlay 1995was extended indefinitely by
the Conference of States Parties without the need for a vote) presupposes that the
parties did not regard the use of nuclear weapons as being proscribed in al1
circumstances. Moreover.the security assurancesgivenby the nuclear-weapon States
can only be regarded as possessing any significance on the assumption that there are
conditions in which nuclear weapons could andmight lawfully be used. Similarly,
Security Council resolution 981 (which was unanimously adoptedon II April 1995)
is based upon the assumption that there are circumstancesin which the use ofnuclear
weapons in response to aggression might be a lawful measure of individual or
collective self-defence.
3.24 The absence of anychallenge to the declarations made in connection with the
Treaty of Tlatelolco, together with the response to the security assurances made in
connection with the Non-Proliferation Treaty. is highly pertinent to the matter under
consideration. Since iris clear that there is no treaty provision which imposes a
general prohibitionon the threat or use ofnuclear weapons, anysuch prohibition must
be derived from customary law. For the Court to find, however, that a rule of
customary internationallaw embodying such a prohibition exists, it would need to be
provided with clear evidence that that nile enjoys the support of the generality of
States. The existence of the nuclear-weapon States already weakens the argumentthat there is a sufficient 'generality'in suppon of a prohibitive rule. To this number
rnustbeadded the nurnber of States failing to make.any challenge to the declarations
and assurances considered in the preceding paragraphs. The anitude of those States
can only be consistent with the viea that no prohibitive rule exists. 1t is clear,
therefore, that the 'generality'of States needed to suppon a prohibitive mle can be
shown categorically not to exist. That this is the position becomes even clearer when
one considers other evidence of State anitudes towards thequestion.
325 The only documents which claim to treat nuclear weapons as uniauful perse
are certain resolutions of the United Nations General Assembly. starting with
Resolution 1653(XVI)in 1961,paragraph 1of which declared that:
'(a) The use of nuclear and thermonuclear weapons is contrary to the spiriti.
letter and aims of the United Nations and, as such, a direct violation of the
Chaner of the United Nations;
(b) The use of nuclear and thermonuclear weapons would exceed even the
scope of war and cause indiscriminate suffering and desuuction to mankind
and civilization and. assuch, is contrary to the rules of international lau and
to the laws of humanity;
(c) The use of nuclear and thermonuclear weapons is a war directed not
against an enerny or enemies alone but also against mankind in general, since
the peoples of the world not involved in such a war wilbe subjected to al1the
evils generated by the use ofuch weapons:
(d) Any State using nuclear and thermonuclear weapons is to be consideredas
violating the Chaner of the United Nations.as acting contra? to the laws of
humanity and as commining a crime against mankind andcivilization.'
However. the resolution went on to request the Secretary-General to consult States
about the possibility of convening a conference to discuss the adoptior~ of a
convention in order to prohibit the use of nuclear weapons.
3.26 This resolution wasfollouredin 1971by Resolution 1936 (XXVII),paragraph
1of which solernnlydeclared
'on behalfof the States members of the Organization. their renunciation of the
use or threat of force in al1 its forms and manifestations in international
relations in accordance with the Charter of the United Nations, and the
permanent prohibitionof the useof nuclear weapons.'
A series of subsequent resolutions
declared that the use of nuclear weapons would
be unlawful andcalled upon States roadopra convention prohibiting theiruse and the
threatof their use.
g2 Resolution33/71B.35/35?D. 36/921.45159B. 46/37D. 47/Cand 48/76B 327 ïhese resolutions are noLof course. legallybinding insmrnents.s3 Moreover.
there areseveralreasons for rejecting the suggestion thatthey are declaratory of a mle
of custornary international lavi forbidding ail use of nuclear weapons. First. an
analysis of the voting figures reveals that the resolutions were controversial.
Resolution 1653 (XVI)was adopted by 55 votes to 20,with 26 abstentions. Of the
nuclear powers, France, the UnitedKingdom and the United States voted against the
resolution, while the Soviet Union votedin favour. It is evident, therefore, that. as an
authoritative United Nations Repon stated, this resolution dernonstrated not a
consensus but rather the sharp conflict of views on this issue.& Resolution 7936
(XXVII)was adopted by 73 votes to 4, with 46 abstentions. The Soviet Union was
one of the sponsors of the resolution and voted in its favour; France, the United
Kingdom and the United States absrained. The later resolutions 85 also failed to
cornmand the general support which has charactensed those resolutions which have
been widely regardedas declaratoryof customary internationallaw. 86
328 Secondly, it is evident that many of those States which voted for the
resolutions concemed did not regard thern as stating such a custornary law principle.
In the case of Resolution 1653,the link between the assertion of the illegality of
83
The General Assernbl? has no power under the ChînerIOimpose binding obligations upon
Member States except in respect ofnain intemal rnatters. This is incontIOthe position of the
Security Council.the resolutions of whichare. in cenain circumstances. bindingb!. vinue of Anicle 25
of the Chaner. The critena identifiedb!.the Coun in the ~Vopinion(ICJ Repons, 1971.p. 15ai
p. 53)for determining whetheror no1such a resolution is a binding one concemed only resolutions of
the Security Council and did not. contrar) to what is suggested by the Solomon Islands in its
submissions regarding the WHO rcquest for an Ad\.isory Opinion (Written Statement of the
Govemment of the Solomon Islands. p. 38. paragraph 3.26~.suggest that resolutions of the General
Assembly possessa bindingcharacter rnerel? because the!.are couched in language similar to that of a
Securiiy Council resolution. The Coun in the Namibio Opinion considercd General Assembly
resolutionsIOhave a determinative effeci only in cenain exceptional matters. none of which are
relevantin theprescntcase.
84 UN Secretary-General's Repon on Exisring Rules of Inrernarional Lnw concerning rhe
Prohibirion or Resrricrion-Use ojSpeciTicUenpons (UN Doc. A19215).vol. 1,p. 147.
85
Adopted by votes of 103-18-18: 112-19-14: 121-19-6; 125-17-10: 122-16-22 126-21-21 and
120-23-24respectively.
86 For example Resolution 2623 (XXVi (Declaration on Principles of International Law) and
Resolution 3314 (XXIX) (Definition of Aggression). which were treated by the Coun in Cpre
Concerning Miliron and Paramiliron Acriviriesin ond againsr Nicaragua. ICI Repons. 1986.p. 3 at
para,oraphs188 and 195. as reflecting the content of customary international law, were both adopted
without a vote. asas Resolution 3452 (XXX) (Declaration on Torture), which was regardcd as
declaratoryof customary internationalbywa UnitedStates coun in Filoniga v.PCM-lmh 630 F 2d
876 (1980); 77UR 169. The requiremenr that a General Assembly resolution mustcommand wide
suppon. including suppon from al1ihe various groups of States most closely affected. if it is to be
treated asdeciarato~ of customav inlemational lawwas also emphasised by Professor Dupuy as Sole
Arbitratorin Texaco/Calosior\Libxa 53 ILR 389.nuclear weapons in paragraph 1 and the request that the Secetary-General consult
States about the conclusion of a convention to prohibit the use of nuclear weapons
raises the question whether those States which voted for the resolution regarded the
use of nuclear weapons as unlawful in the absence of such a con~ention.~~
Statements by a number of Stares, including some of the sponsors of the resolution.
suggest that they did not take such a position. SB The later resolutions also refer to
the adoption of a convention prohibiting the use of nuclear weapons, again casting
doubt on the extent to which those States which voted for them saw the resolutions as
containing statementsde Iegelaraabout thelegality of the useof nuclear weapons.
329 Thirdly, in Resolution 2936the prohibition of nuclear weapons was expressly
linked to the renunciation of the use of force 'inaccordance with the Charter of the
United Nations'. The resolution thus leaves open the possibility of the lawful use of '.:
nuclear weapons,since the renunciation of the use of forcewas evidently not intended
to preclude the exercise of that righ~.~That was made clearby the Soviet Union. one
of the sponsors of the resolution,0 whose subsequentsecunty assurances given to the
Conference on Disarmament also showed that it regarded the useof nuclear weapons
as lawful where that wasa necessary measure of self-defence.
3.30 Finally. the significance of theGeneral Assemblyresolutions has to be seen in
the iight of Stare practice as a whole. including the conclusion of the agreemenrs
discussed above. the failure to adopt a convention of the kind called for in the
resolutions themselves.the decision not to discuss nuclear weaponsat the Diplomaric
Conference on the Development of Humanirarian Law and the statements and
security assurances made by the nuclear powers in the context of the Non-
Proliferation Treaty and the Treaty of Tlatelolco. al1of which indicate that there is no
consistent State practice from whicha custornary lau prohibition of nuclear weapons
might have developed. Thus. there is no real evidence of an opinio juris shared by
the generalityof States.
87 See Kalshoven,'Arms,ArmamenlsandInternationaLlau'191Recueildes cours(1985.11)183
atpp.276-7.
See. e.p..thestatementby CeyloGAOR. 17thSesr..1stCtee.,1288thMtg.para.8. Secalso
thediscussioninUN DocA19215.vol.1.pp. 1-17-54.
89 SecPan 1ïi.3.be~ow.
90 Seethestatcmcntby theSovietUnionalAPV. fMO.pp.26-33. 331 Indeed, the practice of the General Assernblyitself reinforces this conclusion.
The resolutions on the use of nuclear weaponsare by no means the only resolutions
adopted by the General Assembly aith regard IO the question of nuclear arms. The
Assernbly has supponed (or in sornecases launched)the various initiatives which led
to the adoption of the treaties considered above. In particular, ithas expressed its
suppon for the principie of 'anacceptable balance of mutual responsibilities and
obligations between nuclear-weapon States and those which do not possess nuclear
weapons', 9' and for the notion of ernbodying the security assurances given by the
nuclear-weapon States in conneciion with the Non-Proliferation Treaty 9? in an
internationalagreement.93 For the reasons already given,such an approach cannot be
reconciled with the view that international law already prohibits al1use of nuclear
weapons.
332 The position is. therefore. as recently summarized by the Federal Republicof
Germany. that:
'...internationallaw in force ..does not contain any explicit provisions
definitely prohibiting the use of nuclear weapons, nor can any such
prohibition be derived fromcurrentcontractualand customary law.'g4
In the absence of a nile of international la~vspecificallyprohibiting the use of nuclear
weapons. the legalityof their use has to be assessed by reference to the principles of
law which are applicable to an!. use of armed force. According tothese pnnciples,
the use of force is lawful only if ir is in circumstances in which reson to force is
permissible under the principles enshrined in the United Nations Charter and if it
meets the requirements of the la\v of armed conflict regarding the conduct of
hostilities.
91
Resolutio2028(XX) .eealsoResolution49/83
9?
SeePan 11.2.bove.andAnnexC.
93 Resolution49/73
94 FederalMinisw of Defence.HunianirarioLotiinArmed ConflicrsManuol(1992). paragraph
428. Othermiiitaryand navalmanualshavetakenthesameposition. See Switzerland,Geserzr und
Gebraiiche des Kriege(1987).Section3. An.24;United States, aval Commnndcr'sHandbook.
NWP-9(1989), paragraph10.2.1:Canada.Dra3 Manualof rhe Luw of Armed Conflicr,para. 511;
UnitedKingdom.MonuolofMiliran Lon:Pan III(1958).paramph 113:AustralianDefenceForce.
Lem.of Anned Conflicr: Commander'sGuide (1994) paragmph313. Althoughthe New Zcaland
DefenceForcemanualcontainsno expresssraternentboutthelegalitof nuclcarweapons,theyarc
notincludedinthelisofprohibiteweaponsatparagraph511. 3 The United Nations Charterand the Right of Self-Defence
333 The use of force is not prohibited by Anicle 2(4) of the United Nations
Charter if it is duly authonzed by the competent organ of the United Nations.or if it
is in the exercise of the nght of self-defence. Although for Member States of the
United Nations Article 51 of the Chaner recognizes their nght to self-defence. Anicle
51 is not the source of that right. Indeed, the use of the word 'inherent'inicle 51
wasintended to mark thepre-existence of this rightbased on customary international
law.95 There had been no reference to self-defence in the Dumbarton Oaks Proposals
and the viewof Committee 1 at the San Francisco Conference was that the prohibition
of the use of force, contemplated as a core provision of the new UN Chaner. would
leave the use of arms in self-defence unimpaired. % The same view had been taken
earlier in relation to the Covenant of the League and the 1928 Pact of Pans. The; .
decision to make express reference to the nght of individual or collective self-defence
came largely as a response to the demand of regional organizations. such as the
Organization of Amencan States and the Arab League, that the legitimacy of their
arrangementsfor collective self-defence should be expressly recognized.
(1) TheTerms and Effects of Article 51
33.2 The terms of Article 51 are well knou'n:
'Nothingin the present Chaner shall impair the inherent right of individual or
collective self-defence if an armed attack occu...'
On its face. therefore. the effectof this provision is to safeguard the right of Member
States to take such action as would be permissible in self-defence independently of
the United Nations Charter. In other u'ords. if action by a State meets al1 the
requirements of legitimate self-defenceunder traditional.customav international law,
such action isnot impaired or prohibited by anythins contained in the Chaner. Such
measures must. however, be reponed to the Security Council.
335 The elaboration of this provision at San Francisco in 1945did not in fact
turn on a discussion of different types of weapons. and cenainly there is nothing in
the rravauxpréparatoires to suggest thar an! panicular type of weapon was, perse,
95
Sce Case ConccrningMilira? and Paramilira? Acrisliriesin andAgainst Nicaragua.ludgrncni
of 27June1986.ICJRcpons1986.paraaraph 176.
96
SeeBowcn.Self-defenceinInremarioibit. (1958).pp.182-184. incapable of use in self-defence. Ir follows. therefore, thatdiscussion of the legality
of the use or threat of use of nuclear weapons in the exercise of the right of self-
defence must centre on whether such use of nuclear weapons would rneet the
traditionalcntena for lawful self-defence.
(2) The Conditions of Law7fuS l elf-defence
336 Asan inherent, customary law nghtof States, recopized by Article 51 of the
Charter, self-defence ispermined under certain conditions. These conditions are. in
particular, that it is necessary to act in self-defence andthat thesteps taken by way of
self-defence are proportionate. These principles are equally applicable to the use of
nuclear weapons in self-defence as to the use of any other type of weapon in self-
defence. Moreover,it would be entirely arbiuary to excludeexhypothesi the righ of
a State to rely on nuclear weapons as a rneans of defence against a conventional
auack.
(a) Thenecessity IO react in self-defence
337 The notion has long been accepted that States should only use force in self-
defence as a rnatter ofast reson. This is inherent in the concept of self-defence. The
burden of showing necessity ~vouldexist whether the weapons usedare nuclear or
conventional.
338 In this context the theon of nuclear 'deterrence'falls to be considered. For the
past fony or so years States have relied upon their possessionof nuclear weapons. or
on alliance with nuclear-weapon States. and even their targetingof another nuclear-
weaponState. as a necessan means of deterring an attack by the latter. Whatever the
theoretical criticisms voiced of the idea of deterrence, the fact is, first. thathas
worked and, second. that for man! years a nurnber of States have based their self-
defence upon that idea. in the belief that thepossession of nuclear weapons, andthe
threat to use them in self-defence.is legitirnate.
(b) TheProporrioizalin ofrhe Reacrion
3.39 It has always been accepted that self-defence mus be proponionate. The
controversy has been over the question of uthat the measures of seif-defence have to
be proportionate to: to the scaleof thenack or to the extent to which the target State
isjeopardised ?3.40 The former view has its adherent~.~~ but. as Ago wrote as Rapporteur of
the I.L. Cn.State responsibility:
'It wouldbe mistaken ...to think that there must be proponionality betreen
the conduct constituting the armed attack and the opposing conducr. The
action needed to halt and repulse the attack may well have to assume
dimensions disproportionare to those of the attack suffered. What rnaners in
this respect is the result to be achieved by the "defensive" action. and not the
forms. substance and strength of the action itse98.'
Thus, on this argument. there can be no easy assumption that the use of nuclear
weapons can never bejustified in response toa conventional attack, because there is
'disproportion'between the two. The question to be posed is whether, in the actual
circumstances of the attack,the use of the panicular nuclear weapon wasnecessary in
order to defend the victimState.*
3.41 The answer to that question may depend upon a host of factors: the nature.
scale and locationof the anack, the rneansof defence availableto the victim State: the
extent to which the defensive means chosen (nuclear or non-nuclear) will minimise
the danger to non-military targets; whether the damage is caused on the territory of
the aggressor or the victim State.and so on.
(3) Conclusion
3.42 The notion that the use of nuclear weapons in response to an armed attack
should not be regarded as necessarily unlawful but is capable of falling within the
scope of the right of self-defence finds confirmation in Security Council resolution
981(1993). '00 The preamble of that resolution contains the following statement:
'TheSecuriryCouncil.
Consideringfurrher that. in accordance with the relevant provisions of the
Charter of the United Nations. anyaggression withthe use of nuclear weapons
would endanger international peace andsecurit...'
97 See. forexarnple.Sin~h.The nghi of self-defenceinrelation tef nuclear weapon'5
lndian i'earbookofliirernarionalA(1936)bol.à.pp.32-34.
98 Ago.'AddendurrnoEighthRepon onSmteResponsibilir'98011(iI.L.C.Y. 1B.tp.69.
99 For adiscussionof thisquestion.see Dinsiein. War.Aggression and Self-Defcnce(2ndcd..
1994)pp.230-236.
SeeAnnexD.The Council did not. therefore. characterise every use of nuclear weapons as
incompatible with the Chaner but only acts of aggression with the use of such
weapons. Indeed. the resolution clearly envisages that such ag-ession might give
riseto a lawfuluse of nuclearweaponsagainstthe aggressor.
3.43 It follows, therefore. that not only have States not accepied the vieu; that
nuclear weapons are per se incompatible with self-defence but. equally, that no
absolute, all-embracingpostulate, either directedto their legality or illegality, can be
made. In short, the question posed to the Coun by the General Assembly is
impossibleto answerproperlyin the abstract. Any court,facing that same questionin
a concrete case, would be bound to take account of al1the factors of place. type of
threat, type of nuclear weapon used,immediacyof the threat and so on. It would be
incompatible with thejudicial function to apply broad sweeping generalisatioiis. as
opposed toclose andcarefulscmtiny of al1the relevant facts. 4 The Lans ofArmedConfüct
3.44 Assuming that a State's use of nuclear weapons meets the requirements of
self-defence, it must then be considered whether it conforms to the fundamental
p~ciples of the law of armed conflict regulaung the conduct of hostilities.
(1) The AdditionalProtocols to the GenevaConventions
3.45 It has already been shown that the Diplomatic Conference on the
Development of Humanitarian Law which adopted Protocol 1proceeded from the
outset on thebasis that it would not discuss the use of nuclear weapons as such.'or It
was on that basis that the ICRC submitted the draftprotocols to the Conference. 10'
The implications of this decision not to broach the subject of nuclear weapons weré :
made clear by the Representative of the United Kingdom spealiing in the plenq
session shonly after the opening of the Conference, whenhe stated that:
'Hisdelegation also endorsed the ICRC'sview, expressed in the Introduction
to the draft Protocols, that they were not intended to broach problems
concerned with atomic, bacteriological or chemical warfare, which were the
subject of existing international agreements and current delicate negotiations
by Governments elsewhere. It was on the assumption that the draft Protocols
would not affect those problems that the United Kingdom Government had
worked and would continue to \vork touards final agreement on the
Protocols.'1°3
The result of this understanding about the \rork of the Conference \vas that an! new
rules introduced by Protocol 1 were applicable onl! to the use of conventional
ureapons.without prejudice to those rules of customary international lau which were
codified in the Protocol and uhich were already applicable to the use of nuclear
weapons.
'Or Seeabove. paraeraphs 3.9to j.11
Io? Professor Kalshoven. who artended the Conference as a rnernberof the Nctherlands delegation.
has describcd the ICRC'sposition in rhese terms: '...theICRChad consciously discarded not only the
question of aategoncal prohibition on use of nuclear weapons but al1questions specifically relating
to possible restrictionson such ('ArmsAmarnents and InternationaLaw' 191Recuei des cours
(1985-n) 183al pp. 281-2.)
'O3 Oficial Recordsvol.\:p.131 3.46 The United Kingdom. United States and France again put on record this
understanding about the scope of the Protocol at the final session of the Conference.
On that occasion, the United Kingdom Representative stated that:
'At the first session of the Diplomatic Conference, his delegation had
expressed in plenary its concurrence in the view that the draft Protocols were
not intended to broach problems concemed with atomic, bacteriological or
chernical warfare. Nothingin the four years'work of the Conference or in the
texts themselves had caused it to depan from thatviea. It therefore continued
to be his govemment's understanding that the new rules were not intended to
have any effect on and did not regulate or prohibit the use of nuclear or other
non-conventional weapons. Such questions were nghtly the subject of
agreements and negotiations elsewhere.'lm
Similarly,the United States Representative statedthat:
'Fromthe outset of the Conference it had beenhis understanding that theiules
to be developed had been designed with a view to conventional weapons.
Dunng the course of the Conference, there had been no discussion of the use
of nuclear weapons in warfare. He recognized that nuclear weapons were the
subject of separate negouations and a,yements and. further, that their use in
warfare wasgovemed by the present pnnciples of intemational law. It was his
government's understandingthat the niles establishedby the Protocol were not
intended to have any effect on, and did not regulate or prohibit the use of,
nuclear weapons. It further believed that the problem of the replation of
nuclear weapons remained an urgent challenge to al1nations which would
have to be dealt with in other forums and byother agreernents."o"
The Representativeof France commenredthar:
'Alreadyin 1973.the French Go\.emment no~edthat the ICRC did not include
any regulations on nuclear weapons in its drafts. In panicipating in the
preparation of the Additional Protocols. therefore.the French Govemment has
taken into consideration onl'; conflicts using conventional weapons. It
accordingly wishes to stress that in its view the niles of the Protocols do not
apply to the use of nuclear weapons. On numerous occasions the French
Government has indicated its willingness to study the problems of nuclear
weapons withthe Powers directly concerned,in an attempt to achieve general
disarrnamentwith suitable conrrols."06
3.47 It has occasionall'; been sujgested that these statements do not reflect a
common understanding about thescope of the Protocol, on the grounds that they are
not consistent with one another and that contrary statements were made by other
' Oficial Records. vol. V1jOj.
'O5 OdicialRecordsvol.VII. p. 195.
IC6 Oficial Records. vol. p. 193.States.107 mis suggestion is without foundation. The statements by the United
Kingdorn and the United States. thoughcouched in different ternis. were identical in
substance. Both States rnaintained that the new mles laid down in the Protocol were
not applicable to nuclear weapons, while recognizing that the use of such upeapons
was subjectto the rules of customary international law, including those codified in the
Protocol. That the term 'mlesestablished by the Rotocol' was intended to refer onlx
to new mles is shown by the report of the United States Delegation to the Secretary of
State, which stated that:
'..A was the understanding of the United States Delegation throughout the
Conference that the niles to be developed were designed with a view to
conventional weapons and their effects and that the new mles established by
the Protocol were not intended to have any effects on, and do not regulate or
prohibit the use ofnuclear weapons.'lOs
The French statement is also clear in rejecting the application to nuclear weapons of
the new niles contained in the Protocol. although its language is broad enough to
suggest thatit rnight go funher than the statements by the United Kingdom and the
United States. The three States were therefore in complete agreement about the
inapplicabilityto nuclear weapons of the new mles conrainedin the Protocol.
3.48 It is muethat. as explained above.'" a number of States made statements at
the first session of the Conference urging that the Conference discuss the question of
nuclear weapons. Closer examination of those statements. however. shows that the
States concemed sought the adoption of a specific prohibition on the use of nuclear
weapons and. in some cases. their goals could have been met only by the conclusion
of a fulldismarnent treat). Thus. the representative of Romania stated that:
'Nuclear. chernical and biological weapons as well as al1 weapons of mass
destruction shouldbe banned. A universal agreement on general disarmament
and. in panicular. nuclear disarmament. was an urgent necessity.'l10
Similarly.the Represenrativeof the People's Republic ofChina said that:
'O7 Sec paras.3.1 to 3.2-1of the \h.nttenSiaremeniof theGovcrnmcntof the SolomonIslands
subminedinconnecrion u,iththeWHO'SrequesrforanAdvisoryOpinion.
Io8 DigesrofUnitedSraresPrncricein InrernnrionalLai.. 19p. 91at 919.
Secpara,gaphs3.9IO3.11.
'O
Oficial Recordsvol.\>p. 103. The new Protocols should unequivocally provide for the prohibition and
destruction of nuclearweapons ...'Il1
and the Representativeof theDemocratic People's Republicof Korea maintained that:
'...theproduction,testing and use of such weapons should be prohibited and
existing stocks shouldbe desuoyed.' Il2
3.49 These statemenü urged (though without any formal proposal to that effect)
that the Conference should expressly proscribethe use of nuclear weapons. whichthe
Conference not only did notdo but didnot even discuss doing. They have no bearing
on the entirely different questionof whethergeneral rules inûoduced by the Rotocol
areapplicableto nuclear weapons.
350 Of the States which had initially wanted to discuss nuclear weapons. only
Romania repeated its viewsat the final sessionof the Conference and its statement is
seen, on closer examination, tobe arnbiguous:
'The delegation of Romania was convinced that humanitarian law must
develop within the framework of modem intemational law, which prohibited
aggression and interference in theintemal affairs of States and supponed the
right of peoples to self-determination and to self-defence by even possible
means againstaggression.
'In present conditions. humanitarian law must make a clear distinction
between the victim of aspression and the aggressor, unreservedly protecting
the former. Humanitanan law must also prohibit the use of weapons of
massive destruction andmethods of warfare which struck indiscriminately at
combatants and civilians alike. The latter must be protected against the
dangers of military operations. Many of those aims were covered by the
provisions of Protocol 1.including the case of peoples struggling for their
independence, the status of prisonersofwar. and the prohibition or restriction
of the use of certain conventional weapons and weapons of massive
destruction. '^
It is unclear to which pro\,isions of the Protocol the delegate of Romania was
refemng or in what respect he considered that nuclear weapons were regulated de
lege lara.as opposed to expressing a \lieu that they should be prohibited. The only
other statement which appears to contradict those of the nuclear powers is one made
@%cialRecords. vol\'p. 120
OficialRecords. vol.);I,p241-2.
Wcial Records. vol.VIIpp.289-90 3.52 This history has led IWO commentaton, who were memben of the delegarions
of neutralStates at the Conference, toconclude that:
'Astudy of the context of the Additional Rotocol accordingly shows that the
intentions of the parties were. dunng the negotiations and at the time of
signature, that theniles inthe Protocol shouldnot specifically appenain to the
question of weapons of mass desuuction.'118
Similarly, Professor Kalshoven. who was also present at the Conference. has
commented that:
'Additional Protocol1does not purpon to prohibit the use of nuclear weapons,
and neither does itlay down any further restrictions on such use than already
result from pre-existent mles and principles of the law of med conflict (and
which were reaffirmed in the Protocol). Withoutanyanempt at completeness,
the following items may be listed among the "new law" which on account of
itsnovelty remains inapplicable to the use of nuclear weapons: the"ecological
principle" ...which protects the natural environment from "widespread, long-
term and severe damage"; the sophisticated mles in Article 57 of theRotocol,
elaborating the customary principle of proportionality in the protection of the
civilian population; and last but not least, the prohibition of repnsals against
the civilian population and civilian objects, as now laid down in vanous
para,graphsof Articles 51 to 56 of theProtocol.
To those who, like the Romanian delegate, would have wished to see the
question of use of nuclear weapons dealt with in Additional Protocol 1. it
should be pointed out that the choice has been clear throughout the
proceedings of theDiplomatic Conference: itwas either a Protocol not bearing
on the use of nuclear weapons.or no Protocolat all.'"9
3.53 The treatment of this question in the military manuals of a number of States
confirmsthat the new mles in Additional Protocol 1do not apply to the use of nuclear
weapons. Thus. the Manual published b!. the Federal Republic of Germany states
that:
'Thenew mles introduced by Additional Protocol 1 have been establishedwith
the intention of being applied to conventional weapons irrespective of other
mles of international law applicable to other types of weapons. They do not
influence,regulate or prohibit the use of nuclear weapons.' 120
Similarly,a manual published by the SwedishMinistryof Defence statesthat:
Brin@andReimann. ior cii..
Loccii.p.283.
I2O FederalMinisq of Defence.Humanirarian ha rnArmed Conflicrs Manual(1992).paragraph
430. '...it was assumed that the niles of Additional Protocol 1 conceming the
protection of civil populations and property during military operations had
been negotiated with the tacit reservationthat they should only apply during
conventional warfare.' 12'
The Swiss Manual also refers to the nuclear understanding and concludes that the use
of nuclear weapons is not prohibited by. for example, the prohibition on the use of
indiscriminate weapons in Protocol 1.l2 Manuals published by the United States and
Canada contain similar statements.1"
354 The ICRC Commentary comes to the sime conclusion:
'Clearlythe hypothesis that States acceding to the Protocol bind themselves
without wishing to - or even without knowing - with regard to such an
important question as the use of nuclear weapons is not acceptable. The: :
desire not to broach it during the [Diplornatic Conference] is a determinine
factor in this respect124
Other authoritative commentariestake the same view.13
355 It follows that the law of armed conflictby which the legality of any given use
of nuclear weapons falls to be judged includes al1 the provisions of customary
international law (including those which have been codified in Additional Protocol 1)
and, where appropriate. of conventional law but excludes those provisions of Protocol
1 which introduced new mles into the Iau. It has sometimes beenargued that the use
(or, at least, some uses) of nuclear weapons uould violate various pnnciples of the
lawof armed conflict. These arguments will nou. be considered inturn.
12' InremorionalHfrmonirarhnLa> *iAnned Co~~flic,ri..itltreferenceIorheSivedishTotalDefence
Sysrern(1991)pp.25-6.
I2 Gesece undGebrauche der Krieges i19SÏ)Secnon3.An. 24
123 Sce fwtnotc 94,abo\,e.
124
Pilloud.etal. Comrnenro. n rheAddirionalProrocolsof 1977 (1987).paragr1858
125 Bothe.ParuchandSolf.New Rulesfor VicrirnsoArmed Conflicrs (1982).p. 191,Rauschning.
'NuclearWarfareandWeapons.inBernhardtled).Encyclopoedioof Public Inremtio~l Lnw .vol.
IV.(1982).p.49. (2) The Principle that the parties to a conflict do not have an
unlimited choice of the methods and means of narfare
356 It has been suggested that the use of nuclear weapons would violate the
principle that the parties to anmed conflict do not have an unlimited choice of the
methods and means of warfare, a pnnciple stated in Anicle 27 of the Hague
Regulations. 1907,127 and reaffirmed in Article 35(1) of Additional Protocol 1.
While thatpnnciple is undoubtedlywell establishedaspart of customary international
law, however, it cannot stand alone as a prohibition of a particular category of
weapons. In any event, there is no incompatibility between the two propositions
(i) that States doof have an unlimited choice of the methods and means of warfare
and (ii) that States may use nuclear weapons where this is consistent with their right
of self-defence. There is no suggestion that self-defence is "unlimited". Oh the
contrary.self-defence isalways limited tothe necessitiesof the case.128
3.57 It is necessary, therefore, to look outside the principle in Anicle 22 of the
Hague Regulations in order to determine what limitationsare imposed by customary
or conventional law upon the choice of methods andmeans of warfare. The argument
thus begs the question whether there exists some other principle of international law
which limitsthe right to choose nuclearweaponsas a means of warfare.
3.58 The same is true of the argumsnt based upon the 'Martens Clause' which
appeared in the preamble to Hague Convention No. IV respecting the Laws and
Customs of War on Land. 1907. The mosr recenr version of this clause appears in
Anicle 1C) of Additional Protocol1.1977. which provides that:
'Incases not covered by this Protocol or by other international agreements.
civilians and combatants remain under the protection and authority of the
principles of international law derived from established custom, from the
pnnciples of humaniryand from the dictatesof public conscience.'
Iz6 SinghandMcWXinne? .~rclearI(eaponsand~'ontemporonl.nrernnrionnl(1989)p..115.
127 Regularionsannexedto HagueConveniionNo. IV.RespeciingtheLawsandCustoms ofWar
onLand. 1907U.KTS9 0910~.Cd.5030.
See Pan111.3aboveWhile the Mans 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 Clause themselves makeit necessary to point to a
rule of customary international law which might outlaw the use of nuclear weapons.
Since it is the existence of such a rule which is in question. reference to the Martens
Clause adds linle.
The Prohibition of Poison, Chemieal Weapons and Analogous
(3)
Liquids and Materials
3.59 The use of nuclear weapons has been said to violate the long established
prohibition on the use of poison and poisoned weapons, II9 because the effects of : :
radiation are descnbed as a form of poisoning. I3O In addition, some commentators
have invoked the provisions of the Geneva Protocol for the Prohibition of the Use in
War of Asphyxiating. Poisonous or Other Gases and of Bacteriological Methods of
Warfare, 1925, which applies to 'theuse in war of asphyxiating, poisonous or other
gases, and of al1 analogous iiquids, materials or devices,' on the ground that the
effects of radiation are said to make nuclear weapons analogous to asphyxiating or
poisonous gases.
3.60 The prohibitions in both Article 23ia) of the HagueRe~ulations and the 1925
Protocol were. however, intended to appl!. to weapons whose prima- effect was
poisonous andnot to those where poison\vasa seconda? or incidental effect. As one
leading commentator says of the 1925 Prorocol. its drafting hisron. makes clear that
'the scope rarionenureriae of the Protocol is resuicted to weapons the primary effect
of which is to asphyxiate or poison the adversaq.' i31 In the case of almost al1
nuclear weapons, theprime effects are blast and heat and it is these which give the
weapon its main military advantages.
3.61 In addition. State practice does not suppon the argument that nuclear weapons
fall within the prohibition in the 1925 Prorocol. That argument has never been
senously advanced by any of theStates pan' to the 1925Protocol. Moreover, when
Iz9 A~licle23(a) Hague Regulation1907.
(1958).ingh and McWhinney. op. cir.p. 127. Schwarzenberger. The Legaliryof Nuclear Wcapons
13'
Kalshoven.loc.cil.p. 284. the United States became pany to the 1925Rotocol in 1975,thiny years after
becomingthe world'sleadinpnuclear power.it madeno resewation of its npht to use
nuclear weapons. It is inconceivablethat a major nuclearpower would inadvertently
assume a treaty obligation which prohibited it from usingone of the most important
weaponsin its annoury. None of the otherparties to the 1925 Protocol suggesred,at
the time of United States ratification, that the United States had assumed new
obligations regarding the use ofits nuclear weapons. It would appear. therefore. that
the subsequent practice of the parties to the 1925 Protocol does not sustain the .'
interpretation placed upon its terms by those who argue that it applies to the use of
nuclear weapons.
3.62 Although a number of commentators have argued that nuclear weapons fall
within the scope of the 1925 Protocol, there is a considerable division of opinion on
this point.mus, Bailey maintains that,
'...it might be thought by the non-expert that nuclear weapons were
encompassed by the Geneva Protocol'sban on using liquids. matenals and
devices analogous to chemical weapons but this has never been seriously
advanced.'l32
Kal~hoven.'~~ Hem. 1% McDou,oaland Feliciano. 135and Rauschninp '36also reject
the argument that theuse of nuclear weaponsu.ould necessarilx \,iolate the ban on
poisoned weaponsor the provisionsof the 1975 Protocol.
13,
lVarand CoitsciencNirli~Vtrclearge 1988 jp. 117,
133 Lor.cil.
'NuclcarDcterrenceandWarfare6 '1 BritishYcaBook of Internationl aw(1990).p. 199at
pp230-2.
'35 TheInremarioml Lon .f War (19941.pp664-5.
136
'NuclearWariareandWcapons'i.n Bernhard(tcd)Encyclopacdiaof PublicInternorionaLaw.
vol.N. p.44 atp.47. (4) The unnecessarysufferingprinciple
3.63 It has also been argued that the use of nuclear weapons would violate the
prohibition on weapons which cause unnecessary suffering. u7 The rnost recent
statement of this pnnciple is contained in Anicle 35(2)of Additional Protocol 1,1977.
which provides:
'Itis prohibited to ernploy weapons. projectiles and matenal and rnethods of
warfareof a name to cause superfluous injury or unnecessary suffenng.'
The pnnciple is, however, a long establishedone. 138
3.64 The pnnciple prohibits only the use of weapons which cause unnecesson
'
suffenng or superfluous injury. It thus requires that a balance be struck between the
rnilitary advanmgewhich rnaybe denved frorn the useof a particular weapon andthe
degree of suffenng which the use of thatweapon rnay cau~e.13~The more effective
the weapon is frorn the military pointof view, the less likely that the suffenng which
itsuse causes will becharacterized as unnecessary. In particular, it has to be asked
whether the same military advantage can be gained by using alternative rneans of
warfarewhich will cause a lesser degree of suffenng. The use of a nuclear weapon
rnay be the only way in which a State can concentrate sufficient militan force to
achieve a legitirnate rnilitaq objective. such as the defeat of an invader. In those
circurnstances, it cannot be said that the use of such a ~veaponcauses ritlnecessorx
suffering. however great the casualtics which it produces arnong enerny
cornbatants.
lj7
See. e.0.. Brownlie. 'SomeLegal Aspects of the Use of Nuclear Weapon11lCLQ (1965) p.
137at 150and paras. 3.12 to TU of the WritrenSiarementof the Government of the Solomon Islands
in theWHO case.
138
Sec.tg.. Article 23(c) HagueReplations. 1907
139 ICRC. Weaponsrharma?CauseL'nriecessarS yifiering or haveIndiscriminareEffecr(1973):
Repon of a Conferenceof Expens.p.13.
lu) This point is conceded even ithedecision of the Tokyo District Court which hcld ththe
bombinss of Hiroshima and Nagasai were unlawful. Shimodn v.The Srare 32 ILR 626 (1963). ai
p.634: 'the use of cenain weapon. grear as ils inhuman result mas be. need bctprohibitcd by
internationaaw if it has a grcat military effecr.'
l4] Kalshoven./oc.cir.p. 281: Hearn/oc.cir.p. 235. EvcnSingh and McWhinncy, who maintain
thar the use of nuclear weapons would violate this principle. concede that State pracricc suggests
othenvisc.op.ci!.p. 117. 3.65 A variation on the unnecessary suffering argument is the contention that the
use of nuclear weapons would be unlawful because any use of such a weapon would
render death inevitable forthose in the immediate areaof theexplosion. 14' The basis
for this argument is the preamble to the St Petersburg Declaration. 1868, arhich
stated:
'That the onlylegitimate object which States should endeavour to accomplish
during war is to weaken themilitary forces of the enemy;
'Thatfor this purpose it is sufficient to disable the greatest possible number of
men;
'That this object would be exceeded by the employment of arms which
uselessly aggravate the sufferings of disabled men, or render their death
inevitable.
'Thatthe employment of such arms would, therefore, be contrary to theiaws
of humanity.'
The reference to weapons which render death inevitable musr!however. be seen in
context. The declaration prohibited onlythe use ofprojectiles of a weight below400
grammes which were explosive or were charged with fulminating or inflammable
substances. The use of such a weapon against personnel was considered to be
graruitously cruel. because it caused horrific and almost invariably fatal injuries.
while offenng little or no military ad\.anta,oeover the use of ordinary ammunition.
since a soldier hit by either txpr of buller would normally be disabled and rendered
incapable of funher participation in the battle. The Declaration did not prohibit the
use of explosive anillery shells. even though the. can cause homfic injuries and are
usually fatal to those in the irnrnediate area of the explosion, because the military
utility of explosive anillery shells was so Zrearthat it was considered to justify the
hurnancosts.
3.66 The Declaration *as. therefore. no more than a specific application of the
unnecessary suffering principle. the suffering caused by the exploding bullet being
seen as unnecessary. while that caused by the exploding shell was not so
characterized, because of theeffectiveness of that weapon. Althoughthe preamble to
the Declaration is widely regarded as having played an influential role in the
development of custornan international las. subsequent statements of the customary
principle havereferred only to weapons causing unnecessarysuffering or superfiuous
IJ2
3.41. WrirtenStaremenrof theGovernmcnt of theSolomonIslandsintheWHOcase.paras3.42 roinjury and have omitted references to rendering death inevitable.143 Since al1
weapons arecapable of being used in a way whichrenders death inevitable. this is not
surprising.'4 The use of a nuclear weapon must. therefore, bejudged by reference to
whether the suffenng which it causes should be regarded as unnecessary when
balanced against the military effectiveness of the weapon in the circumstances in
which it is used, rather than by concentrating on whether it will inevitably cause
death. This is not a judgement which can be made in the abstract. It can be made
only on the basis of a carefulappraisal of the circumstances of a panicular case.
(5) The principle that the civilian population as such mud not be
made the object of attack
3.67 A funher argument which has been raised is that the use of any nuclear ' :
weapon would necessarily have such terrible effects upon civilians that it would
viofatethose rules of the law of armed conflict whichexist for their protection. There
are two principles of panicular relevance in this respect. First. it is a well established
principle of customary international law that the civilian population and individual
civilians are not a legitimate target in their own right. The parties to an armed
conflict arerequired to discriminate between civilians and civilian objects on the one
hand and combatants and military objectives on the other and to direct their attacks
only against the laner. Secondly. the principle of proponionality requires that even a
military objective should not be attacked if to do so would cause collateral civilian
casualties or damage to civilian objects which srould be excessive in relation to the
concrete and direct military advantage anticipated fromthe artack.
3.68 Those who argue that nuclear weapons are inherently indiscriminate and
cannot be used withouc causing excessi\.e civilian casualties frequently fail to
differentiate between these tivo rules.14' That reflects the fact that much of the
writing on nuclear weapons on which these arguments rely dates from the 1950'sand
early 1960s. Modem nuclear weapons are capableof far more precise targeting and
can therefore be directed against specific military objectives without the
indiscriminate effect on the civilian population ushichthe older literature assumed to
be inevitable. Moreover, the United Kingdom's and NATO's current doctrine
Id3
Sec.cg.. Anicle23(c)HagueRepuiarions .907.andAnicle35(2) of Additional otmol 1.
McDougalandFeliciano,op. cil.p.661.
'45
See.cg.. theargumentarparagraph 3.48eiseq.of theWrittenStatcmcntof theGoverninentof
theSolomonIslandsin theWHOcase. emphasizesthat nuclear weapons would onlyever be used in a defensiverole and that
the threat posed by an aggressorwhich would invitea nuclear responsewould be of a
scale which wouldmakethat nuclear responseproponionate.
3.69 All weapons, nuclear weapons included, are capable of being used against
centres of civilian population or in an indiscriminate way. Subject to what is said
belou about reprisals, such use would be illegal. What is not me is that nuclear
..
weapons cannot be used in any other way. The use of nuclear weapons against
specific military objectives would undoubtedly not be conuary to the first of the two
principlesset out inparagaph 3.67.above.
3.70 Sofar as the pnnciple of proponionality is concemed, it is often assurnedboth
that any use of nuclear weapons would cause extensivecivilian losses and that'such
losses would necessarily be excessive in relation to any military advantage which
rnightresult.146 These assumptions tend to be based on assessments of the likely
effects of a nuclear attack on or near a city. The reality, however, is that nuclear
weapons rnight be used in a wide variety of circumstanceswith ven, different results
in terms of likely civilian casualties. In some cases, such as the use of a low yield
nuclear weapon against wanhips on the High Seas or troops in sparsely populated
areas. it is possible to envisage a nuclear arrack which caused cornparati\,ely feu,
civilian casualties. It is by no means the case that every use of nuclear ureapons
against a rnilitary objective would ine\.irably cause ver! great collateral civilian
casualties.
3.71 Moreover. the principle of proponionalit!. prohibits an attack upon a rnilitary
objective onlyif the likelycivilian casualriesand drirnageto civilianobjects would be
excessive in relation to the expected militar! ad\.antage. Like the unnecessary
suffering principle. this principlerequires a balance tobe stmck between the military
advantage resulting from an attack and the effect on the civilian population. OnIy if
the latter is whollydisproponionate to the formerwill the attack violatethe principle.
Since no nuclear-weapon State is likely lightly to resort to the use of nuclear
weapons, lJ7 it is unlikely that a nuclear weapon wouldbe used unless its use was
expected to produce a ven substanrial rnilitary advantage. Thatexpected advantage
See.e.:.. paragra3.50of theWrincnStatementof theGovemmentof theSolomonIslandsin
theWHO case. Proponionalibasa requircmcntf thelawof self-defcnceis considerePan Iii.3.
above.
IIi Sec.e p.thesecurii!assurancesriten in conneciionwih theNon-ProliferaTrearyand the
rraiemenümadeinconnectionuiththeTrc~i\of Tlaielolco.paragraphs.19and3.18to3.19.abovewould have to be weighed against the likely civilianlosses to detemine whether the
use of the weapon wouldviolate the principle of proponionality. It cannot. however.
be right to assume, as an abstract proposition, that those losses would always
outweigh that advantage especially uPherethe destruction of a particular military
objective was essential to the survival of a State which was under attack (and,
perhaps, to the lives of millions of members of that State'scivilian population) and the
use of a nuclear weapon offered the only means of destroying that objective.]* As
with the unnecessary suffering principle, the question whether the use of a nuclear
weapon would be conrrary to the principle of proponionality is not one which can be
answered in the abstract but only by reference to the circumstances of each individual
case.149
3.72 A similar answer has to be made to two related arguments. First. it has: :
sometimes been said that the use of nuclear weapons would be unlawful because it
would make it impossible for a State to discharge its obligations towards persons and
objects protected under the Geneva Conventions, 1949,such as the sick, wounded and
prisoners of war or hospitals, as such persons and objects would inevitably be
amongst the casualties of any nuclear exchange. The deiiberate targeting of protected
persons and objects would be unlawful, irrespective of the weapons used. but the
Geneva Conventions do not require the suspension of large scale hostilities merely
because of the proxirnity of protected persons or objects. Moreover. the argument
overlooks the drafting histon. of the Conventions and. in panicular. the rejection of
proposals to discuss the legalit);of nuclear weapons at the 1919Conference. As one
commentator has put it. 'to arsue like this is to lay a heavier burden on the Geneva
Conventions than they were e\.er rneantto sustain.'150
3.73 Secondly. it has been argued that theuse of nuclear weapons would inevitably
cause so many civilian casualties that ir would amount to the commission of
148 Kalshoven. /oc. cir.. pp. 286-7:Heam736:McDougal and Feliciano. op. cir..p. 666;Green,
inCohcn and Gouin (cds) iniqers andrheNitclearDebare(1988).p. 102;Dinstcin, ibid., p. 61.
149
The same approach has to be taken with regard to the argumcnt that the usc of nuclear weapons
would cause wanton or unncccssanestniction of propeny. Whilc the wanton desuuction of pmperty
has long been rccognized as conuto the lawsof armed conflict. destruction of proper1rnatee,-'1t
whcre it is rcquired by militan nccessity. The question would thcreforc be wherhcr the dcstruction
causcd by a particular instance of the use of a nuclear weapon could bercgarded as neccssary. Thar
designcd to achicve and theefficacy of other methods which mighthavc achievcd that goal at a lowcr
COSL
Kalshoven. /oc.ci!..p. 285. genocide.151 The Court has stressed that penocide is a crime nhich 'shocks the
conscience of mankind, results in losses to hurnanity ..and is conuary to moral law
and to thespirit and aims of the United Nations.' 152 It has been dernonstratedabove.
however, that it is by no rneans the case that the use of a nuclear weapon. targeted
upon a military objective, would necessarily entail massive civilian casualties.
Moreover, genocide is a crime of intent. Article II of the Genocide Convention,
1948, requires 'intent to destroy, in whole or in part, a national, ethnical, racial or
religious group, as such.' The prohibition of genocide is clearly not directed at
collateral casualties resultingfrom an anack upona military objective. 153
(6) The Laws of Armed Conflict and the Protection of the
Environment1%
3.74 A more recent argument is that the use of nuclear weapons is prohibited
because of the effect that it would have upon the natural environment. 155 This
argument rests on two sets of treaty provisions. Article 1of the United Nations
Convention on the Prohibition of Military or any other Hostile Environmental
Modificarion Techniques, 1977, prohibits 'military or other hostile use of
environmental modification techniques having widespread, long-lasting or severe
effects as the means of destruction . damage or injun' to another State. Anicle 333)
of Additional Protocol 1prohibits the employment of 'rnethodsor means of warfare
which are intended. or ma!. be expected. to cause widespread. long-term and severe
darnage to the naturalenvironment.' 'j6
151
Paragraph3.50 of the H'rittenStatemenrof the Go\,ernmentof the Solomon Islands in the WHO
case.
lj2 Case roncerning rheAppiicarionofrhe Coni.eiitiorton rhePrevenrionand Punishntenrof the
Crimeof Genocide. Order of 13September 1993. paragraph51: ICJ Reports. 1993,p. 348.
I5j Kalshoven. lor. cil. p. 285. comments as follou,s on the argument that the use of nuclcar
weaponswouldnecessarilycontravenethe GenocideConvention:
'Itfollows, moreover. from the trai8au.rprépararoiresof the Convention that the notion of genocide
was expressly defined in such a manner as to prevenl a rnixing up withofhwar....the argument
basedon the Genocide Conventionmusi be rejectedas disingenuousand manifestly ill-founded.'
This section deals only wirh those pans of the law of armed conflict which concem the
protection of then\ironment. The general environmental agreements are considered in Pan 111.5.
bclow.
'j5 See.cg.. Wnnen Staternenrof the Governmentof theSolomonIslands. SectioIIBand Wrinen
Statementof the Governmentof Nauru.pp. 3647. inthe WHO case.
156 Seealso Articl553.75 The Environmental Modification Convention, however, is not really
applicable to most cases in which nuclear weapons might be used. That Convention
was designed to deal with the deliberate manipulationof the environment as a method
of war. Thus, Article II of the Convention defines the term 'environmental
modification technique' as
'anytechnique for changing - through the deliberate manipulation of natural
processes -the dynamics. composition, or structure of the Earth, including its
biota, lithosphere, hydrosphere and atmosphere, or of outer space' (emphasis
added).
While the use of a nuclear weapon may have considerable effects on the
environment. 'j7 ifis unlikely thatit would be used for the deliberate manipulation of
natural processes. The effect on the environment would normally be a side-effect of,
the use of a nuclear weapon.just asit would in the case of use of other weapons.
3.76 Moreover, the travaux préparatoires of the Environmental Modification
Convention indicate that the intention of the panies was to 'limit the potentialdanger
to mankind from possible newmeans of warfare'. 1% The environmental modification
techniques in contemplation were techniques which had not yet been developed. As
the United States Secretary of State said at the ceremony to mark the signature of the
Convention:
'Whilethe intentional modificationof the environment at present can be done
only on a local and small scale at best.ire scarcely need remind oursel\,es that
in Our era technology can advance to make possible actions which would
cause hitheno inconceivable environmental consequences. So we belie\re it
would be wise to outlaw what is commonl'. called "environmental warfare"
before it has a real chance to develop significantly for militar).purposes, with
potentially disastrous consequences.' lj9
This emphasis on new methods of warfare and the anticipatory nature of the
Convention are further evidence that theparties did not intend that it should apply to
the collateral environmentaleffects of nuclear (or. indeed, other battlefield) weapons,
which were far from new in 1977.
lj7
Though.onceagain.hou.subsrantiatlhoseeffectswould beis likelytovq dependingonthe
typeof weaponandthecircumstanceisnu.hich itisused.
Is8 Jointstarementby theUnited StateandtheSo\.ietCnion.3 July 1974:1971Digestof United
SiniesPracriceinInremaiiona H. 71-1.
lj9 1977Digestof UnitedSraresPracriceinlnren~arionahii.966-7 3.77 Articles 35(3) and 55 of Additional Rotocol 1are broader in scope than the
Environmental ModificationConvention, in that they are applicable to the incidental
effects on the environment of the use of weapons. They were. however. innovative
provisions whenincluded in Additional Protocol 1.as was made clear in a statement
by theFederai Republic of Germany on the adoption of whatbecarne Anicle 35 of the
Protocol:
'Thedelegation of the Federal Republic of Germany joined in the consensus
on Article 33 [subsequently renumbered Article 351 with the understanding
that paragraphs 1 and 2 reafiïnn customary international law. while para,pph
3 of this article is an important new contribution to the protection of the
naturalenvironment in times of internationalmed conflict.'Ia
As nearniles. the provisions of Articles35(3) and 55 are subject to the understanding,
which was discussed above, that the nea provisions created by Additional ~otkol 1
do not apply to the use of nuclear weapons. la1 The view that the environmental
provisions of Protocol 1are new mles and thus inapplicable to the use of nuclear
weapons isconfirmed by a numberof commentators.
la Oficial Recordsvol.VI. p. I15.
la' Secabove. para-aphs 3.9 to 3.11and 3.45to 3.55
Kalshoven.loc. cirp. 283. quotcd in paragraph 3.52. abovc; loc.cil.pp.244-6. The
ICRC Commentarydoes no1include Articles 35(3) and 55 in the lis1of provisions which ii regardsas
declaratoryof customand hence asapplicableto nuclcarweapons:ICRCComrnentary,paras. 1857-59.
It is interesting to note that the Government of Nauni. in ils written submissions in the WHO case.
notupilhstandingits strongly cxpressed view that the use of nuclear weapons would beunlawful.
concedcs that Anicle 35(3j lays down new mies (Wrinen Slatemcnt of cheGovernment of Nauni. p.
22.1 O The effect on neutral States
3.78 It has been suggested I6j that the use of nuclear weapons would inevitably
have such catastrophic effecrson the temtory of neuval States and States not pan? to
a conflict that it would violate the principle laid down in Article 1 of Hague
Convention No V, Respecting the Rights and Duries of Neutra1Powers and Persons
in case ofWaron Land, 1907, which provides that 'thetemtory of neutral Pousersis
inviolable.' Whether the use of nuclear weapons woulddeposit radioactive fall-outon
the temtory of neutral States would, however, 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 temtory of neutral States against
incursions by belligerent forces or the deliberate bombardrnent of targets located in' :
that territory, not to guarantee neutral States against the incidental effecrs of
hostilities.
3.79 Even if a particular use of nuclear weapons might be contrary to the laws of
armed conflict, it remains necessary to consider whether that use might ne\renheless
be justified as a belligerent reprisalA belligerenr reprisal is an action. taken by a
pany to anarmed conflict. which wouldnormally constitute a violation of the launsof
armed conflict but which is lawful because itis taken in response to a prior violation
of that law by an adversary. Since such a reprisal takes place in the context of a
continuing armed conflict. it raises lepal questions entirely distinct frorn those
concerningthe taking of armed repnsals in a normalpeacetime environment (a rnatter
which is not considered in these submissions). To be lawful. a belligerent reprisal
rnust meet two conditions. First. itmust not be directed against persons or objects
against which the taking of reprisals is specifically prohibited. Secondly. it must
meet the cnteria for the regulation of reprisals. namely that itis taken in response toa
prior wrong, is proportionate. is undenaken for the purpose of putting an end to the
enemy'sunlawful conduct and for preventing future illegalities.and is a means of last
resort.
163 Wrinen Statement of the GovernmofNauru,p. 35.
58 380 The Geneva Conventions of 1949 prohibit the taking of reprisals against
persons or objectsprotected by the Conventions. la That.however, urouldhave Iittle
relevance here, since it is difficult toconceive of the use of nuclear weapons against
suchpersons or objects. 165 The Conventionsdo not precludethe taking of reprisals
againstthe enemy's civilian populationor civilianobjecü inenemy teniton.,
3.81 Additional Protocol 1prohibits the taking of reprisals against the civilian
population (Article 51(6)), civilian objects (Article 52(1)), historic monuments
(Article 53(c)), objectsindispensableto thesurvivalof the civilian population(Article
54(4)), the natural environment (Article55(2))andworks and installations containing
natural forces (Article 56(4)). The application of these provisions would have a
greater effect on the retaliarory use of nuclear weapons. Again. however. these
provisions are correctly repardedas innovative and thus as inapplicable to the use of
nuclear weapons. 166
3.82 So far as the second conditionfor theconductof lawfulrepnsals is concemed,
it has been arpued that the use of nuclear weapons could never satisfy the
requirements of proportionality and preventiveness. 1.5'This argument, however,
suffers from the same flaws as the argument that the use of nuclear weapons could
never satisfy the requirements of self-defence. Whether theuse of nuclear weapons
would meet the requirernentsof proponionality cannot be answered in the abstract: it
would depend upon the nature and circurnstancesof the arong which prornpted the
16, Convention No. 1.Anicle 46. prohibits reprisals against the wounded. sick and those rnedical
personnel. buildingsand equipmentovered bythe Convenrion.
Convention No. Il. Anicle47. prohibits reprisals against the wounded. sick. shipwrecked and
those rnedical personnel. vessels and equiprnentprotectedbythe Convention.
Convention No. III.Anicle 13.prohibits reprisals against prisonersof war.
Convention No. IV. Anicle 33. prohibirs reprisals againsthose civilians protected by the
Convention (principally civilians detained in the territory of an adverse pany and the civilian
population of occupied temtory) and their propen?..
165 Secparagaph 3.72.above
Sir Hench Lautcrpacht. OppenheimkInrernarional Luw. (7th ed 1952). vol. II. p. 351;
Kalshovcn. /oc. cir.p. 283: Heam. loc. cirp. 217. The ICRC Cornrnentary, does not include the
reprisals provisions in theis1 of provisions which it cxpressly regards as applica10enuclear
weapons. paragraphs 1857-9.
16' Brownlie. /occil.p.4-45goes funher and contendsthat:
'ilis hardly legitirIOtextend a doctrine relatedto the rninutiacof the conventional theatrc
of war to an exchange of power which. in the case of the suategic and deunent uses of
nuclear weapons.is equivalentto the total wareffort and is the essence of the warairns.'
But the same rcasoning would lead to the conclusion that il is hardly legitirnateto extcnd any of the
doctrines of the lawsof war designcdfor the non-nuclear agcIothe use of nuclear weapons.taking of reprisal acuon. Nor can it be niled out that the retaiiatory use of a nuclear
weapons might have the effect of putting a stop to a series of violations of the law by
an adversary. Indeed, military doctrine for fifty yean has been based on the belief
that it is the threat of retaliaiion in kind which is the principalfactor detemng the use
of nuclear weapons.
(9) Conclusion
3.83 It follows that, whilesome uses of nuclear weapons would violate the laws of
armed conflict, the argumentthat their use wouldinvariably be contrary to this pan of
international law is unfounded. Whether the use of a nuclear weapon in a panicular
case is lawful will depend upon the circumstancesof that case. Moreover. the scope
for variation in those circumstances is so great and the effect of those variations so ..
important that any abstract statement about the legality ofusin: nuclear weapons
would beeiiher unhelpfulin its generalityor misleading. 5 International Law on Human Rightsand the Environment
3.84 This section will address the question of whether the use. or threat of use. of
nuclear weapons is prohibited per se by the law of human rights or any mle of
internationalaw requiringthe protection of the environment.
3.85 Although the scopeof the enquiry is broad. the conclusion which results from
a review of these issues is essentially cleaAs the law stands, the threat or use of
nuclear weapons is not prohibiteder se by provisions of international law on human
rights or the protection of the environment. De lege lofa,the threator use ofnuclear
weapons is lawful, subjectto such mles of thejus ad bellumorjus inbel10as may be
applicable. Those mles have been considered in the preceding sections of this
Written Statement. Given that States actively disa,gee on the development of a.p~le
of law regulating the threator use ofnuclear weaponsas such. and in view aisoof the
sensitivity of theisarmament process. thismatter is one in which. in the view ofthe
United Kingdom,an opinion de legeferenda wouldbe fundarnentaliyinappropriate.
3.86 There are aiso cogent reasons, relative to a consideration of the matter from
the perspective ofhuman righü and environmental protection why theCoun should,
on grounds of propriety, exercise its discretion anddecline to respond tothe request
for an advisor).opinion.
3.87 International law on human rightj and the protection of the environment is
lqely treaty-based. It istherefore importantthatthe interpretation and applicationof
such agreements is properly located uithin the lau of treaties. Some preliminary
observations arethus warrantsd.
(1) General Considerations
3.88 First, it is a fundamental principleof the law of treaties that a prohibitive rule,
purponing to exclude a panicular activity from the scope of permissible State
practice, must be clearly stated. Refemng to 'theneed of express tenns to alter an
existing rule of law',Lord McNairquotes. 'inspiteof its antiquity'the pnnciple stated
by SirLeolineJenkins thal '...Treatie...are not to be undentood as altering or restraining the Practice
generally received, unless the Words do fully and necessarily infer an
Alterationor Resmction.' 16s
3.89 As a basic proposition, one cannot. therefore, infer from general words, or a
treaty of general application, a prohibitivemle of specific contentthat would have the
effect of limiting the scope of otherwise permissible State conduct. Ir would be
neither sound practice nor sufficientto rely upon general provisions of international
law on human rights or the environment for the purpose of conjuring up a rule
prohibiting the threat or use of nuclear weapons by way of legitimate self-defence.
Indeed. such an approach wouldpose considerabledangersfor the wider integrin and
effectivenessof theprovisionsof law in question.
Secondly. boththeperformance andinterpretationof ueaties are subjectto the
3.90
oveniding obligationof good faith. One aspectof this is that:
'..it would be a breach of this obligation for a party to make use of an
ambiguiryin order to put fonvard an interpretation whichit was known to the
negotiatorsof the treaty nottobe the intentionof the parties.'b9
3.91 In the words of the Permanent Court of International Jusrice. the rext of a
rreatc.cannot
'..be enl~ed by reading inro itstipulations \\.hichare said to result fromthe
proclaimed intentions of the authors of the Treaty. but for which no provision
is made in the tex1itself''0
3.91
Considering this obligation in the light of the principle of effectiveness, Sir
HerschLauterpachtnoted that:
'... good faith requires no more than that effect be given, in a fair and
reasonable manner. to the intention of the parties. This means that on
occasions. if such was the intentionof the parties. good faith may require that
the effectiveness of the instrument should fall short of its apparent and
desirable scope. The principle of effectiveness cannot transform a mere
declaration of lofty purpose -such as the Universal Declaration of Human
Rights - into a source of legal rights and obligations....Equally, although a
recommendation. which is not binding. by anorgan of the League of Nations
or the United Nations isof less potency than a binding decision, this does not
'68
McNair.The &H. of Trenrie~(191.p.463.
Ib9 Ibid.p.465.
"O
PolishWar VesrelsinDanzig.PCIJRepons. ScncsAB.No. 43,p. 142. mean that it is open toajudicial tribunal to endow with binding character an
expression, however politically or moqily weighty, of collective opinion.171
3.93 Thus, the fact that a treaty couldbe conshued to achieve a particular result
does not mean that it should be so constmed. Particularly in the context of a case
such as that presently in issue. the consuuction of a treaty to achieve a purpose no1
within the contemplation of its authors would be inappropriate. In the context of
treaties having as their expressobject the protection of specific aspects of the eco-
system, there is also a danger that such an approach couldundermine the integnty of
these conventions and impugn their normative quality more generally. It would also
do great dissenrice to the cause of environmental protectionif the prospect ofjudicial
creativity in the interpretation and application ofch treaties translated into caution
on the pan of States when itcame to participatinginsuch agreements in the future.
3.94 Thirdly, 'treatiesmust be applied and interpreted against the background of
general principles of international law.1'' This rule now finds partial expression in
Article 31(3)(c) of the Vienna Convention on the Law of Treaties. 1969, which
pemiits'anyrelevant niles of international lawapplicablein the relations between the
parties'to be takeninto account for the purposes of the interpretation of treaties. On
this pnnciple. one comrnentator has noted that 'everytreaty provision must be read
not only in its own context. but also in the uider context of general international law,
whether conventionalor customary'. 17' A treatycannot. therefore. be constmed in a
vacuum. or in the abstract. urithoutreference ro other rules of international law with
whichit mayinteract.
3.93 One aspect of thisnile which is of panicular importance in the present context
is that, save to the extent express11provided. a treaty must be construed against the
background of the inherent right of self-defence. In other words, save to the extent
expressly provided. a treaty cannot be constmed so as to restrict the inherent right of
Statesto act by way of legitimateself-defence.
17'
TheDevelopmenroflnremarionalLn, b,.rhelnrernarionalCounofJusricc(1958pp.292-3.
172 McNair. op.cilp.166.
173 SinclairTheViennaConvrnriononrhehii. of Treari(2ndcd..1984).p.139.3.96 As stated, this proposition merely reflects the fundamental and ovemding
In the words of Judges
character of self-defence in general international law.
Anziloni and Huber inthe U'imbledon case:
The right of a State to adopt the course which it considers best suited to the
exigencies of iü security and to the maintenance of its integrity, is so essential
a right that, in case of doubt. treaty aipulations cannor be interpreted as
limiting it, even though those stipulations do not conflict with such an
interpretation.174
3.97 Although these comments were made in the context of a joint dissenting
opinion, the text of Article380 of theTreaty of Versailles in issue in the proceedings.
and the jud,ment of the Court. impliedthat Germany would have been entiiled. in the
event of a war in which it was involved. to restrict access to the Kiel Canal. '
notwithsranding the rems of the Treaty. The dissent was therefore on the issue of
Germany'srights in the case of a war in which it was not involved. ln so far as is
material to the present case, therefore, the proposition stated by Judges Anzilotti and
Huber is not at variance with the judgment of the Coun and may be regarded as of
general application.
3.98 In the light of these obsewations. the issue before theCourt in respect of the
law of human rights and the law onprotection of the environment is not whether the
useor threat of use of nuclear weapons is.in th? abstract. compatible with those laws.
Rather. itis whether any of the rules of the lai\. of human rights or the law on
environmental protection can be construed. inaccordance with the general pnnciples
stated above, as prohibiting the use orthreat of use of nuclear weapons tc,he~iarried
out b? woy oflegiriri~ateself-defence.
(2) TheLawof Human Rights
3.99 In the written statements submitted to the Court in the WHO case, it was
argued by two States that the use of nuclear weapons would becontrary to the law of
human rights and, in particular. to the right to life175 This right is protected by al1
17'
Caseofrhe55 Wimbledon. PCU ReponsS . erieA.No. 1. p37
175
Wnncn Statemcntofthe GovernrnenoftheSolornonIsland<PanID: WrincnStatcmen tfthe
Go\wnmen tfEauru. vol.1.pp.48-51. the internationalagreements for the protection of hurnanrights. Thus. Anicle 6(1) of
the international Covenant on Civil and Political Righu, 1966,provides that:
'Everyhuman being has theinherent right to life. This right shallbe protected
by law. No one shall be arbitrarily deprivedof his life.'
The right to life is also expressly guaranteed by Anicle 2 of the European Convention
for the Protection of Human Rights and Fundamental Freedoms. Anicle 1 of the
Amencan Convention on Hurnan Rights and Anicle 4 of the African Chaner on
Humanand People'sRighu.
3.100 Although thenght to life is the most fundamentalof al1human rights. it is not
unqualified. othenvise its application in time of armed conflict would invariably
render the use of any weapon unlawful. This issue is expressly addressed in the
European Convention on Human Rights, Article 15of which provides for parties to
derogate from their obligations under the Convention in times of 'waror other public
ernergency threatening the life of the nation'. Anicle 15(2) stipulates that no
derogation is permitted from Article 2. which guarantees the right to life. 'exceptin
respect of deaths resulung frorn lawful acts of war.' The European Convention thus
expressly refers to the law of armed conflict todetermine whether deaths resulting
from the conduct of hostilities in\rol\.ea violation of the right to life. Deaths caused
by the use of nuclear (orconventional) u8eaponswould violate the ripht to life onlyif
the particular use of the weapons was contra? to the laws of armed conflict. Asthe
United Kingdom has soupht to dernonstrate (in Part III.?, above). there are
circumstances in which the use of nuclear ueapons is not prohibited per se by the
laupsof armed conflict.
3.101 Although the International Covenant on Civil and PoliticalRights contains no
provision equivalent to Anicle 132) of the European Convention. Anicle 6(1)
prohibits onlythe 'arbitrary' deprivationof life1'6If the Covenant is applicableai al1
to the taking of life in the context of an armed conflict, it is necessary to determine
what the term 'arbitrary' means in that context. Since the taking of life is an
inescapable feature of the conduct of armed confiict and since it has never seriously
been suggested that the Covenant outlaws the use of force by way of national self-
defence. the reference to 'arbitrary' deprivationof life must contain the means for
distinguishing berween those acts of taking life in med conflict which are
compatiblewith Anicle 6 of the Covenant and those which are not. The only sensible
176 Thesameis me of Anjcle 4 of theAmencanConvention onHumanRightsandAniclc 4 ofthe
AfricanChmeronHumanandPeople'sRights.construction which can be placed on the term 'arbitrary'in this context is titrefers
to whether or not the deliberate taking of life is unlawful under that pan of
international law which was specifically designed to regulate the conduct of
hostilities, thats the laws of med conflict. On that basis, the use of a ueapon to
take life in armed conflict could only amount to an arbitrary deprivation of life, for
the purposes of Article 6 of the Covenant, if it was contrary to the laws of armed
conflict but nototherwise.
3.102 This interpretation is confirmed by the fra~~auxpréparafoir ofsthe Covenant.
In drafting Article 6. it was decided not to anempt to list those circumstances in
which the deprivation of life might be lawfulbut. instead, to rely upon the conceptof
arbitrariness to exclude such cases from the scope of the prohibition. One of the
exarnplesgiven of a takinp of life that would not bearbitrary waskilling in thecourse
of a 'lawful actof war'.
3.103 Whether the use ofnuclear weaponsin an armed conflict entails a violation of
the right to life under Anicle 6 of the Covenant would thus depend on whether that
use was contrary to the laws of armed conflict discussed in Part 111.4of this
Statement.
3.104 It is in this context that the reierencrs IO nuclear weapons by the United
Xations Human Rights Commitree.in their tuo GeneralCommenfs on Article 6. must
be seen. The Committee is empowered. under .Article10(1) of the Covenant. as pan
of the procedure for considenng the reports submitted by the States parties. IO
transmit to them such general cornrnents asit ma! consider appropriate.'7
3.105 The first such Comment. adoptedin 1982.contains the following passage:
'TheComminee observes thar war and other acts of mass violence continue to
be a scourge of humanit? and to take the lives of thousands of human beings
every year. Under the Chaner of the United Nations thethreat or use offorce
by any State against another State. except in the case of the inherent nght of
self-defence. is already prohibited. The Cornmitteeconsiders that Stateshave
the supreme duty to prevent wars, acts of genocide and other acts of mass
violence causing arbitrary loss of life. Every effort they make to aven the
danger of war, especially thenno-nuclear war, and to strengthen international
peace and security would consritute the most important condition and
guaranteefor the safeguardingof the rightto life.178
Thcsepcneralcornmcntarc.b! definition.norbinding.
GcneralComment6(16): UN Doc.h/37/10,p.95.para~aph2. Thiscomment does not suggest that dl acts of war or al1 uses of nuclear weapons are
a violation-ofthe nght to life. On thecontrary;it expressly recognizes that the use of
force inself-defenceis lawful under internationallaw.
3.106 The General Comment adopted by the Committee in 1984goes further. After
recalling the 1982 General Comment. the Committee noted the expressions of
concern in the General Assembly at the proliferation of weapons of mass destruction
and continued:
'4. ..It is evident that the designing. testing, manufacture, possessionand
deployment of nuclear weapons arearnongstthe greatest threats to the right to
life which confront mankind today. This thmat is compounded by the danger
that the actual use of such weapons may be brought about. not only in the
event of war, but even through human or mechanicalerror or failure.
'6. The production, testing, possession. deployment and use of nuclear
weaponsshould be prohibited and recognizedas crimes against humanity.' 179
3.107 This General Comment was highly controversial, not least because the
Committee had made very little of the threat to the right to life created by nuclear
weapons in the questions which ithad posedto Statesin connection with their reports
to the Committee. Moreover. the Committeedid not consider wherherany panicular
use of a nuclear weapon wouldor would not violate the laws of armed conflict. The
General Comment does not. however. assert that the use (let alone the testing.
possession or deployment) of nuclear weaponswould inevitably contravene Article 6
of the Covenant. The statement in paragraph 6 of the Comment isclearly framedas a
proposal for the adoption of a new prohibition and not as a statemenr de lege loto. In
the words of one leading commentary:
'Iris difficult to accept that the term "should" suggests anything other than a
desirable goal to be achieved rather than a statement of immediate legal
obligationdenved from Article6 of the [Covenant].' '80
3.108 The protection given by the law of human nghts does nor, therefore, lead to a
different conclusion regarding the legality of the use of nuclear weapons from that
179 GeneralComment1.1123). US Doc. A/-10/40p.162.paragraphs4and6.
IBO McGoldrick.TheHumonRighrsComrnirree (1994).p. 336.provided by the law of arnied conflict. Since the law of human rights is concemed
primarily with the protection of human rights in peacetime, wherras the law of armed
conflict is a lexspecialis designed to regulate the conduct of hostilities. it is entirely
appropriate that the human rights agreements should. in effect, refer to the law of
arrned conflict in order to detennine whether or not any particular instance of the
deprivafion of ljfe in wanime is arbiuary. The same principle applies. a foniori. in
respect of the protectionof other humanrights.
International Law requiring the Protection of the Environment
(3)
3.109 The very considerable number of treaties concluded over the past centun
providing for the protection of sorneor other aspect of the eco-system - by one count : :
over 300 multilateral ueaties, 900 bilateral treaties and 200 other instruments '81-
have addressed matters ranging from pollutionof one sort or another to the protection
of the cultural and national heritage, wetlands. tropical forests and endangered and
migratory species. Amongst these agreements are a number which, it has sometimes
been argued, should be constmed as prohibiting the threator use of nuclear weapons.
There are also various resolutions, declarations andstarements. which are not legally
binding. but which have sometimes been relied upon as evidence of a general rule of
international lawprohibiting the threator use of nuclear weapons perse.
3.110 Scarcely anyof these texts. however. make any reference to the use ofnuclear
weapons. There was. for example. virtually no discussion of the environmental
consequences of nuclear weapons during the Stockholm Conference on the Human
Environment in 1972 or the Rio Conference on Environment and Development in
1997. Nor do the resolutions of the United Nations General Assembly dealing with
the environment refer ro nuclear weapons. Is2 Conversely, the General Assembly
resolutions on the use ofnuclear weaponsdo not refer to the environment.
18'
Sn Prieur.'Protectiof theEnvironmenti'nBcdjaouiied.i. IntemarionLw.: Achievemenrs
andProspecrs (1991).p. 1017.aip. 1018.
Sn. e.g..rcsolutio47B7. which addressetsheprolecriof the environmenitnurnesof amed
conflictbutmakesnomentionof nuclcarweapons. (a) EnvironmentalAgreemenrsand thenreat or UseofNuclear Weapotls
3.111 With the exception of certain treaties, discussed in Part III.? of this
Statemeng183which prohibit any use of force within a defined area. international
treaties having as their object the protection of the environment have not in rems
addressed the use or threat of use of nuclear weapons. The question is. therefore.
whethera,qements of a general naturelB.'are to beconsuued as prohibiting the threat
or use of nuclear weapons as a maner of necessary implication. Examples of such
treaties might be said to include the Convention for the Protection of the World
Cultural and Natural Heritage, 1972, 185and the ViennaConventionfor the Protection
of the Ozone Layer, 1985.
3.112 However. the natureand scope of these agreements is such that they cannotbe
constmed as containing an implied prohibition on the threat or us: of nuclear
weapons. Such an approach would run contrary to the principies discussed in
paragraphs 3.88 to 3.98. above, that a prohibitive mle must be clearly stated. that the
interpretation and performance of treaties are subject to the obligation of pood faith
and that treaties must be consuued against the background of the inherent right of
individual and collective self-defence. To read into environmental agreements of a
general nature a prohibition on the use or threatof use of nuclear weapons could have
absurd effects. If the Con\.entionfor the Protectionof the WorldCultural and Natural
Heritage may be construed. in the absence of an express clause to this effect. as
prohibiting the threat or use of nuclerir\vsapons. so could the European Convention
for the Protection of Pet Animals. 19SÏ.'s7 Article 3(1) of which provides that
183 See. e.g.. the Antarctic Treary. 1959. and the other rrearies considered in 3.13IOphs
23. above.
Treatiesdealing specificallywith the protection of the environment inlime of armed connict arc
discussed inparagraphs3.74ro 3.77.above.
Ig5
IlILM (1972) 1358: UKTS2 (1985). Anicle 6(31of this Conventionprovides thai:
'EachSraie PanyIO rhis Convention undenakes no1to take any deliberate rneasures which
rniphrdarnapedircctl? or indirectlythe culturalor naturalhcriragercferred to inArticles 1and
2 situated ontherriton. of other States Panies to this Convention.'
IB6
26 ILM11987)1529:UKTS 1(1990). Anicle 31) of this Conventionprovides that:
The Panies shall take appropriare measures in accordance with the provisions of the
Convention and of those prorocols in foIOwhich they are pany to prouct human health
and the environment apainst adverse effects resulting from or likely to result from human
activiticswhich rnodif?or are likely to rnodifythe ozone laycr.''nobody shail cause a pet animai unnecessary suffering or distress.' In the United
Kingdom's view,the relevant pnnciple of lawis that stated bythe Permanent Court of
International Justice in thePolish War Vesselsin Danzig case - the text of a treaty
cannot be enlarged by reading into it stipulations for which no provision is made in
the text iüelf.88
(b) CusromaryInrernarional Law on the Environmenrand rheThrearor
Useof NuclearWeapons
3.113 It has also been suggested that customary international law on the
environment has developed a prohibition on the use of nuclear weapons. This
prohibition is said to be derived from international agreements and other texts. such
as resolutions of the General Assembly and other bodies. The Court has. however;. ..
made it clear that the existence of a mle of customary law will not lightly be
presumed:
'Its, of couse, axiomatic that thematerialof customary international lauris to
be looked for pnmarily in the actual practice and opiniojuris of States. even
though multilateral conventions may have an important role to play in
recording and defining mles deriving from custom, or indeed in developing
them. 189
3.114 In the present case. the practice of States in environmental matters gires no
hint of a rule regarding the use.or threai of use. of nuclear weapons. Treaties on the
environmentwhich contain no referenceto such weapons and in uhich no prohibition
on their usecan reasonably be implied clearl!.cannot be relied upon asevidence of a
customary rule prohibiting the threat or use of nuclear weapons. Resolutions of the
General Assembly and oiher bodies may be relied upon as evidence of custornary
internationallaw only if they cornmand widespread and representative support, are
regarded by the States voting for them as articulating a principle of customary law
and are capable of nonnative application. Honatory provisions with only partial
support among States cannot give rise to, or change the content of, a rule of
customary law.
Seeparagraph3.91.above.
lS9 ConrinenrolShclf(Libyon Arab JomrrhiriydAlICIRepons. 1985.p. 13atparagrsph27. 3.115 Two instruments are sometimes said tobe particularly relevant to the use or
threat of use of nuclear weapons. Principle 26 of the Stockholm Declaration on the
HumanEnvironment, 1971,provides that:
'Manand his environment must be spared the effects of nuclear weapons and
al1other means of mass destruction. States must strive to reach prompt
agreement, in the relevant international organs. on the elimination and
complete destructionof such weapons.'
Principle 24 of the Rio Declarationon Environmentand Development, 1992,provides
that:
'Warfareis inherently destructive of sustainable development. States shall
therefore respectinternationallaw providing protectionfor the environment in
times of armed conflict and cooperate in its further development, as
necessary.'
Quite apart from the non-binding character of these declarations as a matter of form,
an examinationof the detail leaves no room for doubt that they cannot be considered
a basis for a rule of customary international law prohibiting the threat or use of
nuclear weapons. For example, the language of Principle 26 of the Stockholm
Declaration is clearly hortatory in nature. Equally, while Principle 24 of the Rio
Declaration provides that States shall respect international lau providing protection
for the environment in times of armed conflict. it:ives no indication of what that law
entails. An authorirative proscriptionof the threat or use of nuclear weapons cannot
be inferredfrom such a statement.
3.116 The fact that there is no evidence of 'widespread andrepresentative' support
for the existence of a rule of custom prohibitin: per se the threat or use of nuclear
weapons. as well as the absence of opi~iiojirris on thepan of States concerning the
existence of such a rule. has effectively precluded the emergence of a rule of
customary international lau-to this effect'w
Ig0
See. in thisregard.thecommentby BirnieandBoylethatthemle of customary international
lawthathasnowdcvclopedprohibitin:atmosphencnucleartcsting
'doesno1cxtendbeyonddeliberatenuclear testsorpeacefulexplosio...nordoes it imply
thattheactual useof nuclearweaponsis forbiddcnbyinternationallaw..Explicitveaty
warfarewhichcausewidespreadl.ong-lastingandseveredamagetothesnaturalenvimnment.
buttheuseof nuclear wcaponsis prohibitedcntirelyonlyin LatinAmcricaandthePacifie.'
(BirnieandBoyle. InremarionalLH. and the Environment(1992).pp.360-61;foomotes
omincdl. 6 Threats to Use NuclearWeapons
3.117 Unlike the earlier request from the World Health Organization. the question
submined to the Court by the United Nations General ~ssembly asks the Court
whether the threat to use nuclear weapons is in any circumstances permitted by
international law. Whereas the use of force is regulated by a large body of detailed
mles under both the jus ad bellumand the jus in bello, the only express regulation of
the threat of forceis contained in Article 2(4) of the United Nations Charter, which
providesthat:
'AllMembers shall refrain in their international relationsfrom the threator use
of force against the temtonal integrity or political independence of any State.
or in any other manner inconsistent withthe Purposes of the United Nations.'
3.118 The question what constitutes a threat of force within the meaning of Anicle
2(4) has received very little attention. A widely accepted definition, however.
appears to be that of Professor Brownlie, who Statesthat:
'Athreat of force consists in an express or implied promise by a government
of areson to force conditional on non-acceptance of cenain demands of that
government. If the promise is to reson to force in conditions in urhich no
justification for the use offorce exists. the threat itself is:al.19'
A threat to usenuclear weapons thus in\.olves rnuch more than merely the possession
of such weapons. In the absence of a specific cornmirmeni by a State not to possess
such weapons, 19' their possession cannoi. in itself. be contrary to international law.
As the Coun held in the Case Corrceniiilp Aiiliran atldPararnilirac Acri\iries11and
Againsr Nicaragua,
'in international law there are no rules. other than such rules as may be
accepted by the State concerned. bytreaty or otherwise. whereby the level of
armaments of a sovereign State can be lirnited. and this principle is valid for
ail State withoutexception.''93
Ig1 Brownlie.Internarionaliui~~arheL.seof Forceby Srares(1963p.364. Scealsothesirnilar
approach adopredby Sadurska'Threatof Force'. SZ AJIL (1988) 239 at p. 242, Schachtcr.
fnrernarionaLaw in Theon and Pracrice (1991) at p. 111 andRandelzhofcrin Sirnrna(cnie
Chanerof rheUnitedNarions -A Commenran(1994)atp. 118.
192
SuchcornmitmensareconsidcredinPari111.2
lg3
ICJRcpons.1986.p.3 atp. 135, Nor does the deployment of nuclear weapons amount to a threat of their use unless
the sunounding circumstances make clear that such a threat is implicit in the fact of
their deployment. sornething which is not lightly to be presumed. since al1Stateshave
a right to possess and deploy weapons for their own self-defence unless the) have
agreed to forego or curtail this right.
3.119 In circumstances where the actual use offorce would belawful. itfollowsthat
..
the threat to use force wouldalso be lawful. Thus, for one State to make clear
(whether by words or deeds) to another State that, if attacked, it will use force to
defend itself is not an unlawful threat of force, if, indeed, it can be described as a
threat atall. In the Corjti Channel case. the Coun held that the actionof the United
Kingdom in sendins four warships through the Corfu Channel with their crews at
action stations after a previous occasion on which coastal artillery had fired on British
warshipswas not an unlawful action. Having heldthat United Kingdom warshipshad
a right of passage through the Corfu Channel. theCoun accepted that even though
'the intention must have been, not only to test Albania's attitude, but at the
same rime to demonstrate such force that she would abstain from firing on
passing ships' 1%
there was no violation of Albania'ssoCereignt). Similarly. for a State to make clear
that. if attacked.it will reson to nuclear ureaponsuould involve no threat of force in
violationof Anicle 2(4) of the Charter or of an! other rule of international law. since
the first State is not attempting to coerce the secondinto complying with a demand
which it has no right to make and there is no danger chat itwill usenuclear weapons
unless if is itself the victimof an unlawfularmed attack.
3.120 Moreover. in assessing this aspect of the question posed by the General
Assembly, it is important to bear in rnind that the deterrent effectof nuclear weapons
has played an essential part in maintaining the self-defence of a number of States
without recourseto force proving necessa~y.'~~In that respect, it cannot be regarded
as contrary IO the policy underlyingAnicle 2(1)and Article 51of the Charter.
ICI Repons. 1949.p.3 arp. 1.
I9j
Seeparagraph2 s.18to2.21 and3.11.above IV CONCLUSION
4.1 On the basis of the arguments set out above. the United Kingdom submits that
theCOG should, in the exercise of its discretion, decline to give an ansurer to the
question posedby the GeneralAssernblybecause:-
(1) the case is not one in which the opinionof the Coun would be capable
of providing any constructive assistance to the General Assembly in the
exerciseof itsunctionsunder the United NationsCharter;
(2) the request for an opinion should beconsidered in the context of the
effects which such an opinion might haveupon the United Nationsas a whole
and, in panicular, upon the disarmament process where an opinion on the
legality of nuclear weapons would be unlikely to have any beneficial effects
and would be likely to be detrimental to funher progress at a time when the
prospects forsuch progress are othenvise promising;
the question putto the Coun is in vagueand abstract terms, whereasan
(3)
answer would require detailed examination of the circumstances of any
possible use of nuclear weapons. or the threat thereof. and the necessary
materialregarding such circumstances could not be brought beforethe Coun.
4.2 As regards the prjnciples of lau. raised by the question. the United Kngdom
submitsthat:
(1) there is no rule contained ineither treaty or customary international
lau, which expressly prohibits the use of nuclear weaponsper se, nor can such
a rule be inferred from more general treaty provisions:
(2) State practiceregarding the possession of nuclear weapons necessarily
implies that the use of nuclear weapons would be lawful in proper
circumstances. This practice has received recent confirmation in the
unanimous adoptionof Security Council resolution984 and thedecision of the
Conference on the renewal of the Non-Proliferation Treaty to extend the
Treaty indefinitely: the legality of the use of nuclear weapons must therefore be assessed
(3)
in the light of the applicable principles of international law regarding the use
of force and the conduct of hostilities. as is the case with other rnethods and
means of warfare;
(4) the ihreat or use of nuclear weapons willnot be contrary to the Charter
of the United Nations if it meets the criteria for the exercise of the right of
self-defence. Whether the use of nuclear weapons meets those criteria will
depend upon thecircumstances of each individual case;
(5) nuclear weaponsare not prohibitedperse by the law of armed conflict.
Their use will be lawful provided that itcomplies with the applicable rules of
that law. Their use in circumstances which would othenvise be illegal may.' :
moreover. be lawfulif itconstitutes a legitirnatebelligerent reprisal:
(6) the threat or use of nuclear weapons is not prohibited per se by any
nile of international law for the protectionof human rights or the environment. 1995 Review and Extension Conference
9 May 1995
of the Parties to the Treaty on the
ORIGINAL: mGLISE
Non-Proliferation of Nuclear Weapons
New York. 17 April-12 May 1995
EXTENSION OF THETREATi'ON THE NON-PROLIFERATIONOF
NUCLERR WONS
Draft decision DroDosedbv the President
The Conferenceof the States Partvto the Treatv on the Non-Proliferation
of Nuclear Wea~ons (hereinafterreferred to as "theTreaty") convened in New
York from 17 April to 12 May 1995, in accordancewith articles VIII.3 and X.2 of
the Treaty,
Havina reviewed the operationof the Treaty and affirming that there is a
need for full compliance with the Treaty, its extensionand its universal
adherence, which are essential to internationalpeace and security and the
attainment of the ultimate goalsof the completeelimination of nuclear weapons
and a treaty on general and complefe disannamentunder strict and effective
internationalcontrol,
Havi3a reaffimed article VI::,?.of fhe Treaty and the need fcr its
continued implementation in a stren5:henedmar?.erand, to this end, emphasizing
the Decision on Strengthenin?:ne ReY:iewProcess for the Treaty and the Tlecision
on Principlesand Objectives fcr x-zlear rion-prslifer~tioannd disannament also
adopted by the Conference,
Havina established that the Cî~ference is Farate in accordance with
article X.2 of the Treaty,
Decides that, as a mjorlty exiszs among Statesparty to the Treaty for its
indefiniceextension. in accordanctwith its article X.2, the Treaty shall
concinue in force indefizizely.
95-139845 (El 100555 lCi'3~P:
IIlllllllllill1111111111111111111 NP?!C2.XF.1995/L.C
En,lish
lage t
raie =O play in preventing the proliferation of nuclear weapons. Every effort
snccld be !nadeto rmplementthe Treaty in al1 its aspectsto prevent the
~r=lzfera:xr.ai zuclsar weapons anl other nuclear explosive devices.wlthout
ha~erri.:the aeaceful uses of nuclearenergy by Statesparties to the Treary.
. Ncclear disamament is substantiallyfacilitated by the easingof
:r.:cri.zsior. taenszon and the strengtheningof trus: berween States which have
-p..--1-2- foilowi~g:ne end of the cold war. The undertakings withregard =O
nii-lrxr 2issmames: as se: out in the Treatyon the Non-Froliferationof Nuclear
..:--.-- shculd Ckus be fulfilledwith determination. In this regard,the
?.-JC-ex-weapoS ntEces reaffi-rm their conunitment, as stated in articleVZ..,ta
. .S-E Ln gcod fairh ne~otiaticnscn effective measuresrelating :O nuclear
=iaar~z-ezc.
..,, nchie-remer. o:f the followingmeasures is importantin the full
- . ..
rea-::r:icn and eff=c=iveimplementationof arzicloVI, includixgtne proarame
cf zc=:+r zs reflecreabelow:
ri. The coqlerion by the Cocferenceon Disarmarnent of the neootiationson
3 u~iv~rraland ir?=ernationalla ynd effectively verifiable Comprehensive
Nricler~-Test-3aT nreaty no lacer than 1996. PenSin: the er.zryintc force of a
cm,pre.'.en-c: Tees:-San Treacy, the r~ci'ear-wecpnStates should exerziseutmos:
rescr:.._n:.
:ti The imeSiate cîm~ericenent anc early ionclcsicz sf negotiationson a
ncri-c:s.=zi;r.inax =or;mriversally applicabiecznvertionbanning the proacction
of Eisziiomarerial fcr nuclear weapocs or otner nuclear explosivedevices,in
actzria:.co with the ütatementof the Special Coor5i=~corof the Conferencoon
5lsar?arnez= ar.ithe anda ar ccntzinectherei-.;
..c!The aeterniined pursxi: by tne nuciezr-weapcrS .tates of systenaticand
~r~~ressiveeffor-s -3 reduce ncclear ireapcns glo~ally,with the u1:irnate goal
ri< ellnrna:;ngtkose weapons. ar.Z by all Stztes cf general and complere
?isanarr.e.? ruiderszrict and erfectiveinternationalconrrol.
-. L.e conviction-thettke es:a3lishmentof inzernazionallyrecognized
..-,-eer-weacon-fre eones. on the iasis of arrangementsfreely arr;ved at amc;ng
=ne Scates of the regzon conzerEt5,enhaces glcnnl and regionalpeace and
=ec-rz=yis reaffimed.
5. The deveiopmenrof niiclo~r-veascr.-frz eeres, esyeciallyin reoicnsof
cension.such as in rne Mldàle Cssr, as weli as the establishmentof zones free
~f il: weapons ofnass destric=ix siioulC be er.co;l=aged!a asnatter of priority.
tahing intc accountthe specific =haracteristicsof eeck region. The
ostahlishnentof additionalmclear-weap-n-free zcnes bj*the cime of the Review
Ccnferencein the year 2030 wculi ie welccma.1995 Review and ExtensionConference NPT/CONF.1995/L.5
9 May 1995
of the Parties to the Treaty on the
ORIGIW: ENGLISA
Non-Proliferation of Nuclear Weapons
New York, 17 Aprii-12 May 1995
PRINCIPLES AND OBJECTIVES FOR NUCLEAR NON-PROLIFERATION
AND DISARMAMENT
Draft decision ~ro~o'sed bv the President
Reaffirnini the preamble and articles of the Treary on the
Nor.-Proiiferation of Nuclear Weapons,
welcominu the end of the cold war, the ensuing easing of international
tension and :he strengthening of trustbetween States,
Desirinq a set of principles and objectivesin accordance with wnich
nuclear non-proliferation,nuclear disannament and international cooperationin
the peaceful uses of nuclear energy should be vigorously pursued and progress,
achievemencs and shortcomingsevaluated periodica:ly within the reviewprocess
provided for in article VI11 (3)of the Treaty, the enhancement and
strengthening of which is welcome6.
Reiteratinq the ultimategoals of zhe complete elimination of nuclear
weapons and a treaty on general anf cî~lete tisarmamei.:,x~cies rcric: and
effective international co~zrcl.
The Conferenco affins che neec tc zîztir~e rc mîve *.=thdecemination
rowards rhe full realizatio?. an2 effeîrive irr.3lemenratio of tne provisions of
the Treaty, and accorciingly adopts the fcllzdincprinci2les and objectives:
1. Universal adberence Zo zhe Trea:, 32 the Non-Proliferation ofNuclear
Weapons is an urgent prisrity. Al: Scazes no: yet party to the Treaty are
called upon to accede tc the Treaty a: rhe earliest date, particularly those
States thar operate unsafeq~arzlec nuclear faciLiries. Every effort shouldbe
made by ail States parties to achieve :bis okjective.
2. The proliferation of laclear weapcns would seriously increase the danger of
nuclear war. The Treit:ior.:ho Ncn-lrcliferazionof Nuclear Weapons has a vital HPT/CONF.l99S;L.5
English
Page 3
7. The cooperation of al1 the nuclear-wezpon States and their respect and
support for the relevant protocols is necessary for the maximum effectiveness =f
such nuclear-weapon-freezones and the relevant protocols.
Securitv assurances
8. Noting ünited Nations SecurityCouncil resolution 964 (1995).which was
adopted unanimously on 11 April 1995, as well as the declarationsby the
nuclear-weapon States concerning both negative and positive sewity assurar.ces.
further steps should be considered to assurenon-nuclear-weaponStates party tî
the Treaty against the use or threat of use of nuclear weapons. These steps
could cake the form of an internationally legallybinding instrument.
Safesuards
9. The InternationalAtomic Energy Agency LIAEA) is the competentauthority
responsible to verify and assure, in accordance with the statute of the- ar.=
the Agency's safeguards system, compliance with its safeguards agreements with
States parties undertaken in fulfilment of their obligations under
article III il) of the Treaty, with a view to preventing diversion of nuclear
energy from peaceiul uses to nuclear weapons or other nuclear explosive devices.
Nothing should be done to undenine the authority of the IAEA in this regard.
States parties that have concerns regarding non-compliance with the safeguards
agreements of the Treaty by the Stazes parties should direct such concerns,
along with supporting evlde-ce an- information, to the IAëA to consider,
investigate. drawconclisicns and aecise or.necessary actions in accordance riz5
its mandate.
10. Al1 States parties repirea 'î-aaricle :II of the Treaty to sign and bring
into force comprehens:.resafeguarss aoreernentsana which have not yet done so
shcula do so without delay.
il. IAEA safeguards shocla be re-iarly assessed and evaluated. Decisions
adopted iy!its Board of Governors aimed at further strengthening the
effectivezess of IAëA safeguards shcdd be supported and implemented and the
IAEA's capability to detect undeclared nuclear activities should be increased.
hlso States not party ts t!ieTreaty on the Non-Proliferationof Nuclear Weapons
shcüld be urgea to enter into comprehensive safeguards agreements with theIAEA.
12. Nsw supply arrangements for the transfer of source or special fissionabie
material or aquipment or material especially designedor prepared for the
processlns, use or productior.of special fissionable material to
non-nuclear-weaponStates should repire, as a necessary precondition,
acceptance of IAEA f-11-sc-pe safoguards and internationallylegally binding
comitnexts nor to ac~dire rcclear weap0r.sor other nuclear explosive devices.
-3. Kuclear fissile material Crar.sfrrre3from rnilitaryuse to peaceful nuclear
activities shcÿla, as soon as pracz;c&le. be placed under IAEA safeguards in
the framewcrk af the volunfarf safe-aras agreements in place with the
nuclear-weapon Srztes. Safe-sras should Se üniversally applied once the
complece elimina=lor. cf n~ciear weapons bas boer.achieved.NPT/CONF.1995/L.S
English
Page 4
Peaceful uses of nuclear enerzv
14. Parricuiar importance shouldbe attached to ensuring the exerclse of the
inaiienanierigh: of ail the parties tc the Treaty to develop research.
proàuct~aaand use of'nuclear energy forpeaceful purposes withour
discrimination andin ccnfon.itywith articles 1, II as well as III of the
Treaty.
15. Underfakings to facilitate participation in the fullest possible exchange
cf epiprnent, materials and scientifiz and tec~~ologicalinformation for rke
peacefxl Eses of nuclear energy shouldbe fully implemented.
;o. Ir.ail activities designea tc pramote the peacefuluses of nuclear energ).
3roferer.rfai treatment should be given to the non-nuciear-weaponStates par=- :=
:ne Treary, taking the needs of aeveloping counzriesparticciariy in-3 aczaun-.
17. Transparency in nuclear-relate3exporr controls shsuld je promorea w::ki?
the framework of dialogue and cooperarior. among ail interested States ?arry :O
tne Treaty.
18. Ali States shouid, through rigorous national measures and internatioaai
cooperation,maintain the highest practicable levels of nuciea: safety.
including in waste management.anc observe scandaris ana guideiines in nuclear
aarerials accounting,pkysicai 3rzrezrici. aci rransport of cuclenr materiais.
.- . .
-2. Evey effort shoulE bo maàe rc ezs-re :ha: :he :AL> :?as :h2 f:nzr.zla-a*
kmac rosrarces necessary in craor :s ~eer elfecri-ely irs resp=r.sibi:icies ir.
the areas of techicai coa3eraricr.. safe:uaràs ar.5zcciear safer?. The :-
shouil also be encouraged cc ircezslry 1:s eff-rcs simad at fiïàino ways an2
means for funding techical assistarze c5rxz:: ;z"eictablt?anc assurei
rescurces.
Iû. Accacks or threats of atrack.c:.zccleir facllicies àevoted ra pea=ef.xi
p.xTosec jeopardize nuclear safezy acà raise serious zoncerns regarcin? the
a-.rll=a:ian of internations1la- 3; the se cf force in SUC.*cases, which couid
-.rrzr a3propriate acrion in a==-ria-cewirh the provisions of the Zharter of
-ne 3zitei Nations.
The Conference reauests ::-,ar :io ?reciiect zf :ho Conf+rance bring tnis
jecision,the Decislon on Strezgrheciec:he Eeview 2roceas of :he Treaty. the
Decisicc or.the Extension of the Treazy ana :ne Fixi Declaraticn of the
cîzferer.ce ro the attention cf ::lehoah cf Sraie or Yovenimeni cf al1 States
anciseek their full cooperatirn sr.rhose cocumencs acd in the fsrrherance of the
zoais cf rhe Treaty. A/50/151
S/1995/261
English
Page 2
statement dated 5 Auril 1995 bv the rewresentativeof the
Ministrv of Foreirm Affairs of the Russian Pederation
Recognizing the fundamental importance of the Treaty on the
Non-Proliferationof Nuclear Weapons, respecting the legitimate desire of
non-nuclear-weapon States parties to that Treaty to receive assurances tbat
nuclear weapons will not be used against aem, based on theprovisions of the
military doctrineof the Russian Federation. the Ministry of Foreign Affairs of
the Russian Federation is authorized to make the following statement isee
annex).
1t should be pointed out, furthemore, that as the President of the Russian
Federation proposedat the forty-ninth session of the General Assembly. work on
a further United Nations Security Council resolution on security assurances for
non-nuclear-weapon States has been hamnized. The draft resolution, prepared
with the participation of Russian representatives,is being submitted to the
Security Council forits consideration. The main provisions of the draft
resolution areas follows:
In the event of aggression involving the use of nuclear weapons or the
threat of such aggression against a non-nuclear-weaponState party to the Treaty
on the Non-Proliferationof Nuclear Weapons, the nuclear Powers which are
permanent members of the Security Council will immediately bring the natter to
the attention of the Council and will seek to ensure that they provide, in
accordance with the Charter, necessary assistance to the State that isa vicrim
of such an act of aggression or that is threatened by such aggression.
The draft resolution provides, further on. for the possibility of taking
appropriate measures in response to a request from the victim of such an act of
aggression for technical, medical, scientific or humanitarian assistanceand for
payment of compensation by the aggressor for loss, damage or injury sustained as
a result of the aggression.
We believe that the adoption by the Security Council of this draft
resolution would be welcomed by the non-nuclear-weaponStates parties to the
Treaty on theNon-Proliferation of Nuclear Weapons and would help strengthen the
non-proliferation regime,inte-national solidariry and world stability. A/50/151
S/1?95,'2€1
Englisi
Page 3
Statement of the Ministrv of Foreisn AffairS
of the Russian Federation
5 April 1995
Russian Federation will not use nuclear weapons against non-nuclear-weapon
States parties to the Treaty on the Non-Proliferationof Nuclex Weapons, except
in the case of an invasion or any other attackon the Russian Federacion, its
cerritory, its anned forces or other troops,its allies or on a State towards
which it has a security commitment, carried out or sustained by such a.,
non-nuclear-weaponState in association or alliance with a nuclear-weapon State.A/50/152
S/1995/262
English
Page 2
1 should be grateful if you would have the text of the preeent letter and
its annex circulated as a document of the General Assembly, under item 68 of the
preliminary list, and of the Seeurity Council.
(Sianed) David H. A. üANNAY GeneralAssembly Distr.
GENERAt
Security Council
A/50/152
S/1995/262
6 April 1995
ORIGINAL: ENGLISH
GENERRC AsSEnBLY SECURITï WUNCIL
Fiftieth seneion Fiftieth year
Item 68 of the preliminary liste
CONCLUSION OF EFFECTIVE INTERNATIONAL
ARRANGEHENTS TO ASSURE NON-NUCLWLR-
WEAPON STATES AGAINST TIiEUSE OR
TaRERT OF USE OF NUCLEAR WEAK)NS
Letter dated 6 Avril 1995 from the Permanent Revresentative
gd the United Kinodom of Great Britain and Northern Ireland
to the United Nations addressed to the Secretarv-General
1 have the honour to transmit herewith the text of a declaration by the
United Kingdom of Great Britain and Northern Ireland on security assurances,
issued by my Government on 6 April 1995 at the Conference on Oisarmament in
Geneva (see annex).
In issuing this declaration,my Government recognises that those States
which have renounced nuclear weapons are entitledto look for assurances that
such weapons will not be used againstthem. The revised negative security
assurance now given in the Conference on Disarmament by the United Kingdom is a
solemn and formal undertaking by my Government which meets these concerns. The
positive security assurancealso contained in the declaration reiteritesand
expands on the assurance which my Government gave in 1968 by recognising the
desire of non-nuclear-weapon States to be reassured that the nuclear-weapon
States wuld take appropriate measures in the event of the former being attacked
or threatened with nuclearweapons.
These assurances have been given by my Government after consultation with
the other nuclear-weapon States. They are extended to non-nuclear-weapon States
Parties to the Treaty on the Non-Proliferationof Nuclear Weapons and
demonstrate the continuing determinationof the nuclear-weapon States to
etrengthen and make permanentthat Treaty. A/S0/15i
S/1995/262
English
Page 3
ANNEX
United inc c of Gromt Britainand iîorthernIreland declaration
Conference on Disannament on 6 Avril 1995 bv Sir Xichael Weston,
.UnitedKinadom Permanent Re~resentativeto the Conference on
pisannament in Geneva
The Government of the United Kingdom believes that universal adherenceto
and compliance with international agreementsseeking to prevent the
proliferation of weapons of mass destructionare vital to the maintenance of
world security. We note with appreciationthat 175 States have becme parties
to the Treaty on the Non-Proliferationof Nuclear Weapons.
We believe that the Treaty on the Non-Proliferationof Nuclear Weap0nS iS
the cornerstone of the international non-proliferationregime which has made an
invaluable contribution to internationalpeace and security. We are convinced
that the Treaty should be extended indefinitely and without conditions.
We will continue to urge al1 States that have not done so to become parties
to the Treaty.
The Goverment of the United Kingdom recognises that States which have
renounced nuclearweapons are entitledto look for assurances that nuclear
weapons will notbe used againstthem. In 1978 we gave such an assurance.
Assurances have also been given by the other nuclear-weapon States Parties to
the Treaty on the Non-Proliferationof Nuclear Weapons.
Recognising the continued concern of non-nuclear-weapoS ntates Parties to
the Treaty on the Non-Proliferationof Nuclear Weapons that the assurances given
by nuclear-weapon States should be in similar terms, and following consultation
with the other nuclear-weapon States, 1 accordinglygive the following
undertaking on behalf of my Government:
The United Kingdom will not use nuclearweapons against non-nuclear-weapon
States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons eXCept
in the case of an invasion or any other attack onthe United Kingdom, its
dependent territories, its armed forces or other troops,its allies or on a
State towards which it has a security connnitment,carried out or sustained by
such a non-nuclear-weapon Statin association oralliance with a nuclear-weapon
state.
In giving this assurance the United Kingdom emphasises the need not only
for universal adherence to, but also for compliancewith, the Treaty on the
Non-Proliferationof Nuclear Weapons. In this context 1 wish to make clear that
Her Xajesty's Government does not regard itsassurance as applicable if any
beneficiary is in material breach of itsown non-proliferatibnobligations under
the Treaty on the Non-Proliferationof Nuclear Weapons.
In 1968 the United Kingdom declared thataggression with nuclearweapons,
or the threat of such aggression, against a non-nuclear-weaponStaze would
/... A/50/152
S/1995/262
English
Page 4
create a qualitatively new situationin which the nuclear-weapon States which
are Permanent Wembers of the United Nations Security Councilwuld have to act
immediately through the Security Council to take the measures necessaryto
counter such aggression or to remove the threat of aggression in accordance with
the United Nations Charter, which calla for taking "effective collective
measures for the prevention and removal of threata to the peace, and for the
suppression of acts of aggression or other breachesof the peace". Therefore,
any State which commits aggression accompaniedby the une of nuclear veapons or
which threatens such aggression must be avare that ito actions are to be
countered effectively by measures to be taken in accordance with the United
Nations Charter to suppress the aggression or remove the threat of aggreeeion.
1, therefore, recall and reaffirm the intention of the United ~ingdoin, :as a
Permanent Hember of the United Nations SecurityCouncil, to seek kanediate
Security Council action to provide assistance, in accordance withthe Charter,
to any non-nuclear-weaponState, party to the Treaty on the Non-Proliferation of
Nuclear Weapons,that is a victim of an act of aggression or an object of a
threat of aggression in which nuclear veaponsare used.
This Security Council assistancecould include measuresto settle the
dispute and restore international peaceand security,and appropriate
procedures. in response to any request from the victim of such an act of
aggression, regarding compensation under internationallaw from the aggressor
for loss, damage or injury sustained as a'result of the aggression.
If a non-nuclear-weaponState Party to the Treaty on the Non-Proliferation
of Nuclear Weapons is a victim of an act of aggression with nuclear weapons, the
United Kingdom would also be prepared totake appropriate meaaures in response
to a request fromthe victim for technical, medical, scientific or humanitarian
assistance.
The United Kingdom reaffirms in particular theinherent right, recognised
under Article 51 of the Charter, of individual and collective self-defenceif an
armed attack, including a nuclear attack. occurs against a Wember of the United
Nations, until the Security Council ha6 taken measures necessary to maintain
international Pace and security. A/50/152
S/1995/263
mglish
Page 2
-tatement issued on -5 A-ril -995 bv the H-nourable
Warren Ctulstopher. Secretan of State. reaard~ns a
declaratlon bv the Presldent on securltv assurances
for non-nuclear-wea~onStates Parties to the heaty
on the Non-Proliferationof Nuclear Weauons
The United States of America believes that universal adherence to and
compliance withinternational conventionsand treaties seeking to prevent the
proliferation of weapons of mass destmction is a cornerstone of global ..
security. The Treaty on the Non-Proliferation of Nuclear Weapon. is a centrai
element of this regime. 5 March 1995 was the twenty-fifth anniversary of its
entry into force. an event connnemorated by President Clinton in a speech in
Washington, D.C., on 1 March 1995. A conference to decide on the extension of'
the Treaty will begin in New York on 17 April 1995. The United States considers
the indefinite extension of the Treaty on the Non-Proliferatioa of Nuclear
Weapons without conditions as a matter of the highest national priority and will
continue to pursue al1 appropriate efforts to achieve that outcome.
It is important that al1 parties to the Treaty on the Non-Proliferationof
Nuclear Weapons fulfil their obligationsunder the Treaty. In that regard,
consistent withgenerally recognized principles of international law, parties to
the Treaty on the Non-Proliferation of Nuclear Weaponsmust be in compliance
with these undertakings in order to be eligible for any benefits of adherence te
the Treaty.
The United States reaffirms that it will not use nuclear weapons against
non-nuclear-weaponStates Parties to the Treaty on the Non-Proliferationof
Nuclear Weapons except in the case of an invasion or anyother attack on the
United States, its territories, its armed forces or other troops, its allies, or
on a State towards which it has a security cornmitment,carried out or sustained
by such a non-nuclear-weaponState in association or alliance with a nuclear-
weapon State.
Aggression with nuclear weapons, or the threat of such aggression, against
a.non-nuclear-weaponState Party to the Treaty on the Non-Proliferation of
Nuclear Weapons wouldcreate a qualitatively new situation in which thenuclear-
weapon-State permanent members of the United Nations Security Council would have
to act immediately through the Security Council, in accordance with the Charter
of the United Nations. to take the measures necessary to counter such aggression
or to remove the threat of aggression. Any State which commits aggressjon
accompanied by the use of nuclear weapons or which threatens such aggression
mus: be aware that its actions are to be countered effectively by masures to be
taken in accordance with the Charter to suppress the aggressionor remove the
threat of aggression. .,
Non-nuclear-weapon States Parties to the Treaty on the Non-Proliferationof
Nuclear Weapons havea legitimate desire for assurances that the United Nations
Security Council, and above al1 its nuclear-weapon-Statepermanent members,
would act immediately in accordance with the Charter, in the event suchUNED
NAnoNs AS
GeneralAssembly Distr.
SecurityCouncil GENERAL
A/50/153
S/1995/263
6 April 1995
ORIGINAL: ENGLISH
GENERAt ASSEMBLY ÇECLTRITICOUNCIL
Fiftieth session Fiftieth year
Item 68 of the preliminary list*
CONCLUSION OF EFFECTIVE
INTERNATIONAL ARRANGEMENTS
TO ASSURE NON-NUCLEAR-WEAPON
STATES AGAINST THE USE OR
THREATOF USE OFMCLEAR
WEAPONS
Letter dated 6 Aoril 1995 from the Chad'affaires a.i.
of the Permanent Mission of the United States of America
to the United Nations adcressedto the Secretarv-General
1 have the honour to fowarà herewith a statement by the Secretary of State
of the United States of America, issued yesterday, announadeclararion by
President Clinton on security assurances for non-nuclear-weapon States parties
to the Treaty on the Non-Proliferation of Nuclear Weapons annex).
1 would be graceful if you would arrange to have the present letter and its
annex circulated as a document of the General Assembly, under item 68 of the
preliminary lisc, and of the Security Council.
(Sisnedl Edward W.QuEHM A/50/153
S/1995/263
English
Page 3
non-nuclear-weaponStates are the victim of an act of, or object of a threat of,
aggression in which nuclear weapons are used.
The United Statesaffinw its intention to provide or support innnediate
assistance, in accordance with the Charter, to any non-nuclear-weaponState
Party to the Treaty on the Non-Proliferationof Nuclear Weapons that is a victim
of an act of, or an object of a threat of, aggression in which nuclear weapons
are used.
Among the means available to the Senirity Council for assisting such a
non-nuclear-weaponState Party to the Treaty on theNon-Proliferation of Nuclear
weapons would be an investigation into the situation and appropriate measures to
settle the dispute and to restore internationalpeace and security.
United Nations Member States should take appropriate measures in response
to a request for technical, medical, scientific orhumanitarian assistancefrom
a non-nuclear-weaponState Party to the Treaty on the Non-Proliferation of
Nuclear Weapons that is a victim of an act of aggression with nuclear weapons,
and the Security Council should consider what measures are neededin this regard
in the event of such an act of aggression.
The Security Council should recommendappropriate procedures. in response
to any request from a non-nuclear-weaponState Party to the Treaty on the
Non-Prolifesation of Nuclear Weapons that is the victim of such an act of
aggression, regarding compensation under international law from the aggressor
for loss, damage or injury sustained as a result of the aggression.
The United Statesreaffinns the inherent right, recognized under Article 51
of the Charter, of individual and collective self-defence if an armed attack,
including a nuclear attack, occursaoainst a Menber of the United Nations, until
the Security Council has taken measures necessaryto maintain international
peace and security. A/50/154
S/1995/264
English
Page 2
Statement concernins securitv assurances to non-nuclear-weavon
States made bv the Permanent Reuresentative of France to the
Çonference on Disannament on 6 Auril 1995
The issue of security assurances givenby the nuclear Powers to the
non-nuclear-weaponStates is, -for my delegation, an important one: .
Firstly, because it corresponds to a real expectation on the part of the
non-nuclear-weapon States, particularly those which, have renounced atomic : .
weapons by signing the Treatyon the Non-Proliferationof Nuclear Weapons;
Secondly, because it involves our particular responsibilities as a nuclear
Power ;
Finally, because it has acquired new meaning since the end of thecold war.
with the growing awareness of the threat which the proliferation of nuclear
weapons represents for everyone.
It is in order to meet that expectation, to assume its responsibilities and
to make its contribution to efforts to combat the proliferation of nuclear
weapons that France has decided to take the followingsteps:
Firstly, it reaffinns, and clarifies, the negafive security assurances
which it gave in 1982, specifically:
France reaffirms that it will not use nuclear weapons against
non-nuclear-weaponStates Parties to the Treaty on the Non-Proliferation of
Nuclear Weapons, except in the case of an invasion or any other attack on
France, its territory, its anned forces or other troops, or against its allies
or a State towards which it has a security commitment, carried out or sustained
by such a State in alliance or association with a nuclear-weapon State.
1t seems to us natural that it is the signatory countries to the Treatyon
the d on-Proliferati ofnNuclear Weapons - that is to say, the ovewhelming
majority of corntries in the world - who should benefit from these assurances,
sincethey have made a fonnal non-proliferationcodtment. Purthennore, in
order to respond to the request of a great many countries, France has sought as
much as possible to harmonize the content of its negative assurances with those
of the other nuclear Powers. We are pleased that this effort bas been
successful. The content of the declarations concerning the negative security
assurances of France, the United States of America, the Russian Federation and
the United ICingdomof Great Britain and Northern Ireland are henceforth
practically identical. 't
Secondly, and for the first time. France has decidedto give positive
security assurances to al1 non-nuclear-weaponStates Parties to the Treaty on
the Non-Proliferationof Nuclear Weapons.
Its accession to the heaty made this
decision both possible and desirable. Accordingly: UNED
NATIONS
GeneraiAssembly Distr.
GENERAL
Security Councii
A/50/154
S/1995/264
6 April 1995
ENGLISH
ORIGINAL: FRENCH
GENERAL AÇS-LY SECURITY COUNCIL
Fiftieth session Fiftieth year
Item 68 of the preliminaq list*
CONCLUSION OF EFFECTIVE INTERNATIONAL
ASTATES AGAINST THEUSE OR TMWTLEAROF USE OF
NUCLEAR WONS
Letter dated 6 Aaril 1995 from the Permanent Re~resentative of
France to the united Nations addressed to the Secretarv-General
Acting upon instnctions from my Government, 1 have the honour to draw your
attention to the contents of the declaration on security assurances made on
behalf of France by the Permanent Representative of France to the Conference on
Disarmament on 6 April 1995 isee annex) .
1 should be grateful if you would have this document and its annex
circulated as a document of the General Assembly, under item 68 of the
preliminary list, and of the Security Council.
(Sisned) Jean-Bernard MERIMEE
95-10060 (E) 060495 060495 070495
IIIIIIinIiiiiiil1i1iii111A/50/154
S/1995/264
English
Page 4
The decisions which 1 have just announced correspond to our intention Co
consolidate the non-proliferationregime and particularly the Treaty on the
Non-Proliferation of Nuclear Weapons. which is the cornerstone of that regime.
It is our hope and finn conviczion chat the initiativeswe have jus: taken vil1
contribute thereto. A/50/154
S/1995/264
English
Page 3
'France considers that any aggression which is accompaniedby the use
France
of nuclear weapons would tbreaten iaternationalFace and security.
recognizes that the non-nuclear-weapon States Parties to the Treaty on the
Non-Proliferationof Nuclear Weapons are entitled to an assurance that,
should they be attacked with nuclear weapons or threatened with such an
attack. the international comunity and, first and foremost, the United
Nations Security Council, vould react imediately in accordance with the
obligations set forth in the Charter.
"Having regard to these considerations, Francemakes the following
declaration:
"France, as a Pe-ent Member of the Security Council, pledges that.
in the event of attack with nuclear weapons or the tbreat ofsuch attack
against a non-nuclear-weapon State party to the Treaty on the
Non-Proliferationof Nuclear Weapons, France will imediately inform the
Security Council and act within the Council to ensure that the latter takes
inmiediatesteps to provide, in accordance with the Chartes, necessary
assistance to any State which is the victim of such an act or threat of
aggression.
"France reaffim in particular the inherent right, recognized in
&ticle 51 of the Charter, of individual or collective self-defence if an
armed attack. including an attack with use of nuclear weapons, occurs
against a Member of the United Nations until theSecurity Council has taken
measures necessary to maintain international peaceand security."
In this area also, we are pleased that the content of these positive
assurances has been the subject of close consultationswith the other nuclear
Powers .
Thirdly, France, with the four other nuclear Powers, has decided to submit
to the United NationsSecurity Council a draft resolution which constitutes a
first in many respects, and which reflectsour intention to meet the
expectations of the internationalcomunity globally, collectively and
specifically;
Globally: for thefirst time. a draft resolution deals with both negative
and positive assurances;
Collectively: for the first time, a resolution of the Security Council
specifies the measures which the Security Council could take in the event of
aggression. in the areas of the settlementof disputes, humanitarian assistance
and compensationto the victims.
The draft resolution solemnly reaffirms the need for al1 States parties to
the Treaty on theNon-Proliferationof Nuclear Weapons to fully respect their
obligations.
That is not a petizio urinciuii, but a reminder of a fundamental
rule. The draft resolution also emphasizes the desirable nature of universal
accession to the Treaty. A/SO/155
S/1995/265
English
Page 2
St m
bv the Peoule's Re~ublic of China
For the purpose of enhancing international peace, senirity and stability
and facilitatingthe realization of the goal of complete prohibitionand
thorough destructionof nuclear weapons. China hereby declares its position on
security assurances as follows:
1. china undertakes not to be the first to use nuclear weapons at any
time or under any circumstances.
2. China undertakes not to use or threatui to use nuclear weapons against
non-nuclear-weapon States or nuclear-weapon-free zones at any time or under .ny
circumstances. This coimitment naturally applies to non-nuclear-weaponStates
parties to the Treaty on the Non-Proliferationof Nuclear weapons or
non-nuclear-weaponStates that have entered into any comparable internationally-
binding codtwnt not to manufacture or acpuire nuclear explosivedevices.
3. China bas always held tbat, pending the complete prohibition and
thorough destruction of nuclear wcapons, al1 nuclear-wesponStates should
undertake not to be the first to use nuclear weapons and not to use or threaten
to use such weapons against non-nuclear-weaponStates and nuclear-weapon-free
zones at any tirneor under any circumstances. China strongly calls for the
early conclusionof an international conventionon no-first-use of nuclear
weapons as well as an international legal instrument assuring the non-nuclear-
weapon States and nuclear-weapon-freezones against the use or threatof use of
nuclear weapons.
4. China, as a permanent member of the Security Council of the United
Nations, undertakes to take action within the Councilto ensure that the Council
takes appropriatemeasures to provide, in accordance with the Charter of the
United Nations,necessary assistance to any non-nuclear-weaponState that cornes
under attack with nuclear weapons, and imposes strict and effective sanctionson
the attackingState. This cornitment naturally applies toany non-nuclear-
weapon State party to the Treaty on the Non-Proliferationof Nuclear Weapons or
any non-nuclearweapon State that has entered into any comparable
internationally-bindingcoimitment: not to manufacture or acquire nuclear
. . explosive devices, in the event of an aggression with nuclear weapons or the
tweat of such aggression against such State.
5. The positive security assurance provided by China, as contained in
paragraph 4, does not in any way compromise China's position as contained in
paragraph 3 and shall not in any vay be constxued as endorsing theuse of
nuclear weapons . GeneralAssernbly
SecurityCouncil
A/50/155
S/1995/265
6 April 1995
ENCLISH
ORIGINAL:CüïNESE
Fiftieth session Piftieth yearIL
Item68 of the preliminary list*
CONCLUSION OF EFFECïrVE RiTERNATIONAL
ARRANGEMENTS TO ASSURE NON-NDCLEAR-
WEAPON STATES AGAINSTHEUSE OR
TSREAT OF USE OF NUCLEAR mNS
B9 s
addressed to the Secretarv-General
1 have the honour to transmit to you herewith China's national statement on
security assurances (see annex).
1 would be grateful if you could make arrangements to have the present
letter and its annex circulated as a document of the General underbly,
item 68 of the preliminary list, and of the Security Council.
lsimed) LI Zhaoxing
Ambassador Extraordinand Plenipotentiary
Permanent Representative of
the People's RepublofChina .
to the United Nations
95-10066(El 060495 060495 070495
1UlUl1Ul111111ll1lU111111111 S/RES/984 (1995)
Page 2
1. aakee with appreciationof the statements made by each of the
nuclear-weapon States (S/1995/261,S/1995/262, S/1995/263, S/1995/264,
S/1995/265), in which they give security assurancesagainst the use of nuclear
weapons to non-nuclear-weapon States that are Parties to the Treaty on the
Non-Proliferation of Nuclear Weapons;
2. Racosnirae the legitimate interest of non-nuclear-wnapon States
Parties to the Treaty on the Non-Proliferitionof Nuclesr Weapons to receive
assurances that the Security Council, and above al1 its nuclear-weapon State
permanent members, will act immediately in accordance with the relevant
provisions of the Charter of the United Nations, in the event that such States
-.
are the victim of an act of, or object of a threat of, aggreesroÏ7rn which
nuclear weapona are used;
3. pecoanizes further that, in case of aggression with nuclearweapons or
the threat of such aggression against a non-nuclear-weaponState Party to the
Treaty on the Non-Proliferation of Nuclear Weapons, any State may bring the
rnatterimmediately to the attention of the Security Council to enable the
Council to take urgent action to provide assistance, in accordance with the
Charter, to the State victim of an act of, or object of a threat of, such
aggreesion; ad smzes also that the nuclesr-weaponState pa-ent menbers
of the Secvrity council will bring the matter immediately to the attention of
the Council and seek Council action to provide, in accordance with the Charter,
the necessary assistance to the State victim;'
4. Notes the means available to it for assisting such a non-nuclear-
weapon State Party to the Treaty on the Non-Proliferation ofNuclear Weapons,
including an investigation into the situation and appropriate measures to settle
the dispute and restore international peace and security;
5. Invites JiemberStates, individually orcollectively, if any
non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear
Weapons is a victim of an act of aggression with nuclear weapons, to take
appropriate measures in response to a request from the victim for technical,
medical, scientific or humanitarian assistance,and affirme its readiness to
consider what measures are needed in this regard in the event of such an act of
aggression;
6. pxuresses its intention to reconnuendappropriate procedures, in
response to any request from a non-nuclear-weaponState Party to the Treaty on
the Non-Proliferation of Nuclear Weapons that is the victim of such an act of
aggression, regarding compensation under international law from the aoqressor
for loss, damage or injury sustained as a result of the aggression;
7. Welcomes the intention expressedby certain States that they will
provide or support hediate assistance, in accordance with the Charter, to any
non-nuclear-weapon State Party to the Treaty on the Non-Proliferation of Nuclear
Weapons that is a victim of an act of, or an object of a threat of, aggression
in which nuclear weapons are used;
8. Drsea al1 States. as provided for in Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons, to pursue negotiations in good faith on.-
UNmD
NATIONS
Security Council Distr.
rn CENERAL
S/RES/984 (1995)
11 April 1995 -.
BdoPted bv the Securitv Councilat its 3514th meetinq,
on11 Aoril 1991
Convinc6lhat every effort mvst be made to avoid and avertthe danger of
nuclear war, to prevent the spread of nuclear weapons, to facilitate
international cooperationin theful uses of nucanergywith partioilar
importance of the Treaty on the Non-Proliferationof Nuclear Weapons tocial
efforts,
Recoanizinq the legitimate interest of non-nuclear-weaponStates Parties to
the Treaty on the Non-Proliferationof Nuclear Weaponsto receive security
assurances,
Welcoming the fact that more than 170 States Parties to the
Treaty on the Non-Proliferationof Nuclearand stressing the
desirability of universal adherence to it,
Reaffiminq the need for al1 States Parties to the Treaty on the
Non-Proliferation of Nuclear Weaponsto fully with al1 their obligations,
into consideration the legitimate concernof non-nuclear-weapon
States that, in conjunction with their adherenceto the Treaty on the
to eafeguardtheir security,r Weapons, further appropriate measures be undertaken
Considerinq that the present resolution canstep in this
direction,
Considerina further tin accordance with the relevantionm of the
Charter of the United Nations, any aggression withthe use of nucleu weapons
would endanger internationalpeace and security.,
95-10606E
un nui m iuiinimi lill S/RES/984 (1995)
Page 3
effective measures relating to nuclear disarmamentand on a treaty on general
... and complete diearmament under strict and effective internationalcontrol which
remains a universal goal;
--
9. peaffinne the inherentright, recognizedunder Article 51 of the
.... Charter, of individual and collectiveself-defenceif an armad attack occurs
against a member of the United Nations, until the Security Council hae tahn
--. rneasuresneceseary to maintain internationalpeace and iecurity;
10. Underlinee that the iseuee raised inthis resolutionremain of
continuing concern to .~heCouncil.NPT/CONP.1995/L.4
Englieh
Page 2
7. The Conference agreed further thatReview Conferences should look foward
as well as back. They should evaluate the results of the period they are
reviewing, including the implementationof undertakings of the States parties
under the Treaty, and identify the areas in which, and the means through which,
further progress should be sought in the future. Review Conferences should also
addrees specifically what might bedone to strenqthen the implementation of the
Treaty and to achieve its universality. 1995 Review and Extension Conference
10 May 1995
of the Parties to the Treaty on the
ORIGINAL: ENGiISI:
Non-Proliferation of Nuclear Weapons
New York, 17 April-12 Hay 1995
STRENGTHENING THE REVIEW PROCESS FOR THE TREATY
Draft decision ~ro~osed bv the President
1. The Conference exarninedthe implementation of article VIfI, 3, of tne
Treaty and agreed to strenqthen the review process for the operation of the
Treaty with a view to assuring tha: the purposes of the Preamble and the
provisions of the Treaty are being realized.
2. The States party to the Treaty participatins in the Csnference decided, in
accordance with article VIII, 3, of the Treaty, that Review Conferences shoiild
continue to be held every five years and thar, accorcin~ly, the next Review
Conference should be held in the year 2000.
3. The Conference decided that, beginning in 19j7, xhe Preperetory Comitzee
should h~ld, normally for a duration of 10 workinq days, a meeting in each of
the three years prior to tne Review Conference. If neceo.sar:l, a fcurth
preparatcry meeting may be held in tne yrçr cf :ne Ccnference.
4. The purpose of the Proparatcry Cîrrni:=eei?eering~?~uuldPe tc cansice=
prinziples, objectives anc ways i: craer tc prîoîte tbs fall implemenration sf
the Ireary, as well as its universalit:;.anc to ::aire re:cn~.er.dstiontshe~ecritc
the Review Conference. These inclune rlose ide:~rifi.= d.?=Be Decision 32
Principles and Objectives for Nïclear ::cc-?r c:-:*e---'r!çr.2 Disa-mamer.=adapte3
on - May 1995. These mee-inqs slczld ils3 makc ;Le przzelural pre;aratioiisfor
the next Review Conference.
5. The Conference also conciuaed that thepreeon: strÿ;=ars of tnree Main
Commi:tees should continue and r-heq~esticr.cf nn verl l oacicsïes beinj'
discussed in more than one Ccmittee eno~id Se rescive? in the General
Commirtee, which would coordinç=e tke wcrk of the Cornitrees so chat the
sïbst~ntive responsiiility for Che preparation cf the ee?crc with respecz ro
each specific issue is uniertaker.in cnly an€ Con-7.izrea.
5. It was aiso agreed 'Lat scbsidiary bodies cxld be ectablishzd withiz the
respeztive Main Com.irteeâ fcr speclfic ~ESC~S rel3va~t rP the Treaty, so as :O
provide for a focused cs~sideratior.of sach rssïrs. Tke cs=ablis.hnentof such
sïbsiiiirj'bodies would 5e reccmendrd by :?.?Tro?a=a-.osyCairnitteefor easn
aeview Conference in reiazic? %c th2 S~ecifiz îc:e==--?es 3f the Review
Conference.
Letter dated 16 June 1995 from the Legal Adviser to the Foreign and Commonwealth Office of the United Kingdom of Great Britain and Northern Ireland, together with Written Comments of the United Kingdom