Written Statement of the covernment of the Netherlands
~.. 1
Ml NISTERIE VAN BUITENL..A.NOSE ZAKEN
THE NETHERLANDSGOVERNMENT,
Having regard ta Resolution WHA 46.40 adopted on 14 May 1993 by the Forty
sixth World Health Assembly of the World Health Organization, whereby the
Assembly decided ta request the International Court of Justice to give an
advisory opinion on the following question:
"ln view of the health and environmental affects, would the use of
· nuclear weapons by a State in war or ether armed conflict be a breach of
its obligations under international law, including the WHO Constitution?";
Having regard ta the Order of the Court of 13 September 1993, by which the
Court fixed 10 June 1994 as the time-limit within which written statements
might be submitted to the Court by the World Health Organization and by those
of its member States which are entitled ta appear before the Court, in
accordance with Article 66{2) of the Statute of the Court;
Having regard ta the fact that the Netherlands is a member State of the World
Health Organization and a party to the Charter of the United Nations, and by
virtue of Article92 of the Charter alsoa party to the Statute of the Court;
Wishing ta avail itself of the opportunity given by the Courts Order of 13
September 1993 ta member States of the World Health Organization entitled ta
appear before the Court ta make a written statement on the above-mentioned
request by the World Heatth Organization for an advisory opinion from the
Court;
Has the honour ta present the following statement: 2
OBSERVATlONS ON THE COMPETENCE OF THE WORLD HEALTH
ORGANIZATION TO REQUEST, AND ON THE COMPETENCE AND
DISCRETION OF THE COURT TO GIVE, THE ADVJSORY OPINION
1. According to Article 96 of the Charter of the United Nations
"(1) The General Assembly or the Security Council may request the
International Court of Justice to give an advisory opinion on any
legal question.
(2) Other organs of the United Nations and specialized agencies,
-. which may at any time be so authorized by the General Assembly,
may also request advisory opinions of the Court on legal questions
arisingwithin the scope of their activities".
(Emphasis added)
2. According to Article 65 of the Statute of the International Court of
Justice which forms an integral part of the UN Charter:
"(1) The court may give an advisory opinion on any ~-question
at the request of whatever body may be authorized by or in
accordance with the Charter of the United Nations ta make such a
request.
(2) .•.•. " (emphasis added)
3. While Article 96 of the UN Charter determines who is competent to
reguest an advisory opinion from the Court, Article 65(1) of the Court's
Statute determines the competence of the Court to give an advisory
opinion. According to Article 96( 1) of the UN Charter only the UN General
Assembly or Security Council may request the Court tc give an advisory
opinion on .5!..!Ygal question. Other organs of the United Nations and
specialized agencies which have been so authorized by the UN General
Assembly may only request an advisory opinion on legal questions arising 3
within the scope of their activities.
:4. According ta Article X(2) of the 1947 Agreement concluded between the
United ~atio nnd the World Health Organization (19 UNTS p. 194) the
latter organization is entitledta request the Court tc give an advisory
opinion on "legal questions arising wrthin.the scope of its competence
ether than questions concerning the mutual relationships of the [World
Health] Organization and the United Nations or ether specialized
agencies".
ln respect of ether (legal) questions the WHO cannat be considered to be
a "body ... authorized by or in accordance with the Charter of the United
Nations to make ... a request Ifor an advisory opinion]" and it follows
from Article 65(1) of the Court's Statute that the Court will not be
competent to give an advisory opinion on ether such (legal) questions.
i
:5. The Netherlands Government is of the opinion that the WHO is not
l'
competent ta make the above-mentioned request for an advisory opinion
from the Court for the following ressons.
1
,6. The question submitted to the Court for an advisory opinion concerns
the legality or illegalitv of the use of nuclear weapons by a State in war or
ether armed conflict under eurrent international law, including the WHO
Constitution.
1
7. The use of nuclear weapons, to which the WHO request for an advisory
opinion relates, constitutes only one, albeit extremely harmful, form of
the use of force.
;8. ln the opinion of the Netherlands Government, the only organs of the
United Nations or specialized agencies competent to request an advisory
opinion on the legality or otherwise of the use of force, including the use
of nuclear weapons are those which by virtue of their powers and 4
functions take a legitimate special interest in the advisory opinion of the
Court on the legal question submitted to the Court. These organs of the
United Nations or specialized organizations are, in the view of the
Netherlands Government, only those which are competent to
(i)decide to proceed themselves to resort to the use of force, or
(ii) authorize ether entities (States or international or regional
organizations or arrangements) to resort to the use of force.
9. According to the Netherlands Government, of the bodies entitled to
request an advisory opinion from the Court, only the Security Council
(primarily) and · possibly under certain conditions subsidiarily- the
General Assembly of the United Nations are competent in one or more of
the ways referred ta at section 8.
1O. The Netherlands Government believes th at a careful examination of the
Constitution of the WHO will reveal that in any event the WHO is not
competent in any of these ways. ln this connection it is also not without
importance that, among the many functions of the WHO listed in Article
2 of the WHO Constitution, subparagraph {h) of that article mentions.only
the function "to promote, in co-operation with ether specialized agencies
where necessary, the prevention of accidentai injuries" (emphasis added).
11. The Netherlands Government submits that it cannat be maintained that
the WHO has a legitimate spec.ial interest in requesting the Court to
pronounce on the question of the leqalitv or otherwise of the use of
nuclear weapons. The principal objective of the WHO is "the attainment
by ali peoples of the highest possible leve! of health" (Article 1 of the
WHO Constitution). Of course, to the extent that an advisory opinion of
the Court prohibiting the use of nuclear weapons would make the use of
nuclear weapons Jesslikely, the request for such an advisory opinion
would promote the protection of health and the environment. lt would,
however, in the view of the Netherlands Government, not be justifiable to 5
acknowledge on this basis the existence of a legitimate special interest on
the part of the WHO. Having regard ta the detriments! effects which the
use of nuclear weapons might have on afl aspects of life and human
society most ether specialized agencies could with equal right claim a
special interest in the questionof the legality or otherwise of the use of
nuclear weapons.
12. ln the view of the Netherlands Government, neither the WHO nor any
ether specialized agency has a legitimate special interest in the question.
lt can by no means be maintained that an advisory opinion on the
question of the legalîty or otherwise of the use of nuclear weapons can
reasonably be regarded as necessary, or at any rate as required, for the
fulfilment of the purposes of the WHO. The WHO has therefore no·
legitimate special interest in seeking an opinion on that matter from the
Court.
13. lt may be recalled that under to Article X{2)·of the 1947 Agreement
between the United Nations and the World Health Organization, the WHO
is entitled to request an advisory opinion on "legal questions arising .
within the scope of its competence ether than questions concerning the
mutual relationships of the [WH]Organization and the United Nations or
ath er specialized agencies." ln the opinion of the Netherfands
Government, it could be argued that the preliminary question of whether
only the Security Council or the General Assembly of the United Nations
is entitled ta request the advisory opinion concerned or whether the WHO
is also entitled ta do sa- which question must be solved before the Court
may deal with the merits of the request- constitutes a "question (..]
concerning the mutual relationships of the [WH]Organization and the
United Nations ... ". As the merits of the request cannat be dealt with
without a pronouncement of the Court on a question concerning the
mutual relationships of the WHO and the United Nations- a question on
which no advisory opinion may be sought by the WHO and with the 6
result that the Court is not competent to give an advisory opinion- the
Netherlands Government submits that the Court should abstain from
giving the advisory opinion requested by the WHO.
14. If, in spite of wh at has been submitted by the Netherlands Government,
the Court would nevertheless consider the WHO competent to request,
and itself competent to give, the advisory opinion concerned, the
Netherlands Government would draw attention to the tact that the
Court's power to give advisory opinions is a discretionary one. As stated
by the Court itself in the Peace Treaties case (ICJ Rep. 1950, p. 71 ):
"Article 65 of the Statute is permissive. lt gives the Court the
power to examine whether the circumstances of the case are of
such a character as should lead it to decline to answer the
Request".
15. Although the Netherlànds Government is in general very much in faveur
of the exercise by the Court of its competence to give advisory opinions,
it believes th at there are good policy reasons wh y, in this particular case, .
the Court should decide to abstain from giving the advisory opinion
requested.
16. One important reason, mentioned before in connection with the question
of the competence of the WHO to request the advisory opinion, is the
absence of a legitimate special interest on the part of the WHO in the
advisory opinion. If this fact does not in itself suffice to deny the WHO's
competence to request the advisory opinion, it should, according to the
Netherlands Government, in any event suffice to deny the advisory
opinion on the policy ground that no advisory opinion should be given to
bodies which cannet demonstrate a legitimate .special interest in the
advisory opinion requested. 7
17. ln the opinion of the Netherlands Government, there is also reason ta fear
that whatever reply the Court may give to the request submitted by the
WHO, it will create a real danger of undermining the operation of the
1968 Treaty on the Non-Proliferation of Nuc1ear Weapons (Treaty Series
of the Kingdom of the Netherlands 1968 No. 126), which forms the
cornerstone of international efforts to prevent proliferation of nuclear
weapons.
18. The Netherlands Government attaches great value tc the Non-Proliferation
Treaty and ta the unconditional extension of its operation for an indefinite
period of time in 1995. As is weil known, the Non-Proliferation Treaty
acknowledges the legality of the possession of nuclear weapons by
certainStates, i.e. the five recognized nuclear weapon States, while ether
States parties ta the treaty have undertaken not tc develop or otherwise
acquire nuclear weapons (Article Il of the NPT).
19. A judgment of the Court declaring the use of nuclear weapons illegal
might jeopardize the extension of the operation of the Non-Proliferation
Treaty in 1995. On the ether hand, a judgment of the Court declaring the
use of nuclear weapons legal might induce a number of States to
withdraw their support for the treaty or encourage ether States ta refrain
from acceding ta the treaty, thereby undermining its universel application.
20. The Netherlands Government believes that the risks involved in the
possession and use of nuclear weapons can be more effectively
countered through further efforts in the field of disarmament and non
proliferationof nuclear weapons. The problem of increased radioactivity in
the world can aise be better addressed by action ta improve the safety of
nuclear power stations and by promoting the conclusion of a
comprehensive nuclear test ban treaty. 8
Il OBSERVATIONS ON THE MERITS OF THE LEGAL QUESTION
SUBMITTED TO THE COURT FOR ADVISORY OPINION
21. Should the Court nevertheless decide that the WHO is competent to
request the advisory opinion and consider the request admissible, and
should the Court therefore be willing to examine the merits of the legal
question submitted by the WHO, the Netherlands Government would like
ta make the following observations.
22. The legal question submitted by the WHO ta the Court is couched in
extremely general terms. More particularly, the question concerns the
possible illegality under current international law, including the WHO
_Constitution, of the use as such, i.e. each use regardless of the manner
of use, of any nuclear weapon by a State in war or ether armed conflict
regardless of the effect of that use on health and the environment.
23. ln the opinion of the Netherlands Government the question of the illegality
of the use of nuclear weapons, if phrased in such general terms can only
be answered in the negative.
24. As stated by the Netherlands Government on ether occasions- e.g.
during the debate in the Netherlands Parliament on the approva/ of the
1985 Agreement between the Netherlands and the United States on the
Stationing of Ground-launched Cruise Missiles in the Netherlands (Treaty
Series of the Kingdom of the Netherlands 1985 No. 145) - with regard to
the question of the legality or otherwise _underinternational law of the
possession or even use of cruise missiles, such possession or even use
does not inevitably constitute a violation of the rules or principles of
international humanitarian law in armed conflict or of ether rules or
principles of the jus in bello which more particularly concern the
permissibilityof certain types of weapons in war or ether armed conflict. 9
25. Thus, according ta the Netherlands Government, Article 23{a) of the
Hague Regulations respecting the Laws and Customs of War on Land
annexed tc Convention IV concluded at the 1907 Hague Peace
Confer~n (ceAJIL 1908 Suppt. p. 90), which prohibits the employment
of "poison" or "poisoned weapons" and/or the 1925 Geneva Protocol for
the Prohibition of the Use in War of Asphyxiating,Poisonous and ether
Gases, and of Bacteriological Methods of Warfare (94 LNTS p. 65), which
condemns the (first) use of "asphyxiating,poisonous or ether gases, and
of ali analogous liquids, materiels or deviees" do not entai! a prohibition
perse of the use of nuclear weapons. lndeed, the ·use of poison and
poisonous gas is generally categorized under chemical warfare and
nuclear weapons are usually distinguished from chemical or biological
-·weapons which are the concern of the provisions referred ta here.
Other primary effects of the use of nuclear weapons are the enormous
blast wave and thermal radiation they produce, effects which are not
covered by the said provisions.
26. The Netherlands Government rejects the view that the use of nuclear
weapons would be unlawful per se, on the grounds that such use would
necessarily lead ta a violation of the rule laid dawn in Article 23(e) of the
1907 Hague Regulations which forbids belligerants "ta employ arms,
projectiles,or material calculated ta cause unnecessary suffering "
(emphasis added). The question tc be raised here is when suffering
caused by a certain weapon can reasonably be called "unnecessary".
27. lt seems th at suffering may be calied "unnecessary" when its infliction
was not necessary ta attain a lawful military advantage or greatly
exceeds what could reasonably have been considered necessary ta attain
that military advantage.
28. The availabilityof considerably Jessharmful means ta attain the military
advantage or the causing of suffering out of proportion ta the military 10
advantage ta be gained therefore appear ta be the essentiel yardstick for
determining whether the use of certain weapons must be deemed to
cause "unnecessary" suffering.
29. Hence, in the view of the Netherlands, the use of nuclear weapons
cannat in abstracto be deemed unlawful. The question of whether a
specifie use is in contravention of the said obligation cannat therefore be
weighed until the exact implications, bath at the leve! of -mUitary
advantage gained and with regard to the injury caused, are known.
30. The Netherlands Government further wishes to emphasize that the
negotiating history of the 1977 Additional Protocol 1(lnt. Corn. Red
Cross, Protocols Additional to the Geneva Conventions of 12 August-
1949, Geneva 1977, p. 3)ta the 1949 Geneva Conventions (75 UNTS
pp. 33, 85, 135 and 287) makes clear the intention of the negotiating
States that the rules contained in that protocol, in sa far as they relate ta
the use of weapons, should not caver warfare with weapons of mass
destruction such as nuclear weapons. As the restriction ta conventional
weapons was not explicitly laid dawn in that protocol, the Netherlands -
Jike severa! ether parties ta the protocol - made a declaration on the
occasion of its ratification that it was the understanding of the
Netherlands Government that the rules of Protocol 1relating ta the use of
weapons were intended ta apply and consequently would apply solely to
conventional weapons without any prejudice ta any ether rules of
internationallaw applicable ta ether types of weapon.
31. The history of Additional Protocoll ta the 1949 Geneva Conventions,
moreover, indicates th at in any event the majority of States
acknowledged, explicitly or tacitly, that the use of nuclear weapons is not
already unlawfu/ per se under international humanitarian law. 11
:32. ln this connection the Netherlands Government aise wishes to note that a
general prohibitionof the use of nuclear weapons de lege lata cannat be
deduced from UNGA Resolution no. 1653 (XVI) entitled "Declaration on
the Pro~ibi titon Use of Nuclear and Thermo-nuclear Weapons"
which was adopted by the General Assembly of the United Nations on 24
November 1961. This resolution which, it is true, declared the use of
nuclear weapons illegal, as it would be contrary to the Charter of the
United Nations, the rules of international law and the laws of humanity,
cannat in the view of the Netherlands Government be considered as
embodying an already existing rule or principle of general international
law. The very tact that the resolution was adopted with 55 votes for, 20
against (includîng the nuclear weapon States the United States, Great
Britain and France) and 26 abstentions proved the absence of a general
opinio iuris on thepart of States that the use of nuclear weapons is
unlawful perse.
UNGA Resolution 2936 (XXVII) on the Non-Use of Force in International
Relations and Permanent Prohibition of the Use of Nuclear Weapons,
which was adopted by the General Assembly on 29 November 1972 -
this time with 74 votes for, 4 against (including China) and 46
abstentions (including France, the United Kingdom and the United States)
- inter alia again solemnly declared hthe permanent prohibition of the use
of nuclear weapons".
Considering the special weight to be attached to the position of the
nuclear weapon States among the States voting against or abstaining and
the very high number of States which abstained, it would, the
Netherlands Government believes, stiJl be very difficult to conclude that
the resolution codified or gave rise ta a generally recognized rule or
principleof international law.
lt is also relevant in this connection that the UNGA Resolution 1653 (XVI)
of 1961 referred ta above invited the Secretary-General of the United
Nations ta examine the possibility of a conference being convened where
participating Stateswould sign a convention on the prohibition of nuclear 12
weapons, but that this attempt, as weil as many later attempts to
promote the conclusion of such a convention, remained without success
due to disagreement on the matter among States.
33. According to the Netherlands Government the use of nuclear weapons
need not- as is sometimes alleged- necessarily amount to genocide in
terms of the 1948 Convention on the Prevention and Punishment of the
Crime of Genocide (45 AJIL 1951 Suppl. p. 7). lndeed, as long as the use
of nuclear weapons, or for that matter of any weapons, remains directed
at the combatants of the ether belligerant and is not directed at the
population (which may be considered as a national group) as such with
the intent to destroy that population in whole or in part as such, i.e.
whether having the status of combatant or not, there can be no question
of genocide within the meaning of the 1948 Genocide Convention.
34. The Netherlands Government is, moreover, of the opinion th at the use of
nuclear weapons cannet be considered in itself to be in violation of the
right tc life, as enshrined inter alia in Article 6 of the 1966 International
Covenant on Civil and Political Rights (Annex ta UNGA Res. 2200 .(XXI)
of 16 Deeember 1966) or in Article 2 of the 1950 European Convention
for the Protection of Human Rights and Fundamental Freedoms (Eur.
Treaty Series. No. 5). According ta the Netherlands Government, these
articlesdo not creste an absolute right to fife. Thus, the travaux
préparatoires of Article 6 of the International Covenant make clear that,
instead of listing the circumstances in which the depriva_tion of life would
not be considered contrary to the right to lite, the drafters decided ta
agree on the formulation th at "No one shall be arbitrarily deprived of his
lite" (emphasîs added). One of the instances mentioned in this connection
by the drafters as an example of a deprivation of life which is not
arbitrary was ..the performance of lawful acts of war". Explicit support
for such an exception, as far as Article 2 of the European Convention is
concerned, can also be found in Article 15(2) of the European 13
Convention, which provides that "No derogation from Article 2, except in
respect of deaths resulting from lawful acts of war .•. shall be made
under this provision." (emphasis added).
35. The unlikelihood of a general prohibition of the use of nuclear weapons
under existing international taw would, the Netherlands Government
believes, also follow from the tact that there are certain treaties which
regulate the possession of nuclear weapons, such as the 1968 Non
Proliferation Treaty referred ta above. lndeed, the tact that certain States
are permitted, subject to certain conditions at Jeast, ta possess nuclear
weapons would seem to be difficult to reconcile with the idea that the
use of those weapons is unlawful in itself.
·36. The Netherlands Government further believes that even if it were ta be
assumed that the (first) use of nuclear weapons by a State were unlawful
per se under present international law - quod non -, this would not
necessarily exclude the permissibility of the use of nuclear weapons by
way of belligerant reprisai against an unlawful use of (nuclear) weapons,
provided of course the retaliating State observed the conditions - such as
the requirement of proportionality - set by international law for the taking
of lawful reprisais .
.37. The view held by the Netherlands Government that existing international
law does not in itself prohibit the use of nuclear weapons does not, of
course, mean that in the opinion of the Netherlands Government avery
use of nuclear weapons would necessarily always be lawful.
38. Thus the use of weapons, and hence of nuclear weapons, is permissible
only in self-defence.
39. Moreover, according ta the Netherlands Government, the general
principlesof international humanitarian law in armed conflict also apply ta 14
the use of nuclear weapons. Two principles, in particular, which form part
of that law are the prohibition on making the civilian population as such
the target of an attack and the prohibition on attacking military targets if
this would cause disproportionate harm to the civilian population. The
applicability of general principles of international humanitarian law in
armed conflict- among which must also be counted the principle laid
dawn in Article 22 of the 1907 Hague Regulations th at the right of a
belligerantto adopt means of injuring the enemy is not unlimited - to the
use of nuclear weapons was also confirmed as long age as 1965 in
Resolution XXVIII of the 20th International Conference of the Red Cross
(Vienna) which was passed unanimously. Consensus on this point was
also reached at the diplomatie conference on Additions! Protocoll to the
1949 Geneva Conventions.
40. The WHO has also asked the court ta examine the legality of the use of
nuclear weapons by a State in war or ether armed conflict in the light of
the obligations of that State deriving from the WHO Constitution.
41. As previously noted, the Netherlands Government fully ·realizes that the.
use of nuclear weapons may- depending on the manner and the
circumstances in which they are used and the nature of the targets of
such use - have serious consequences for health and the environment.
Accordingly, the use of such weapons - though this applies in fact to the
use of aff weapons - cannat be reconciled with the principal objective of
the WHO, i.e. "the attainment by ali peoples of. the highest possible levet
of health" (Article 1 of the WHO Constitution).
42. Apart from a general implied obligation of member States of the WHO to
contribute to the achievement of this objective of the WHO and to co
operate with one another tc that effect, explicit normative standards for
WHO member States in respect of the protection of health are to be.
found in the Preamble of the WHO Constitution which- in addition to a 15
number of principles which seem ta express desired goals or factual
statements rather than rights or obligations ~inter alia provides that
"Governments have a responsibility for the health of their peoples which
can be fulfilled only by the provision of adequate health and social
matters" or that "The enjoyment of the highest attainabJe standard of
health is one of the fundamental rights of avery human being without
distinction of race, religion, political belief, economie or social condition".
Explicit obligations for WHO member States inrespect of the protection
of health may further only follow from their explicit acceptance of
conventions or agreements which have been adopted by the World Health
Assembly (Article 20 of the WHO Constitution) or from Regulations
adopted by the Health Assembly, which Regulations, however, cannat by
virtue of their subject matters (Article 21 of the WHO Constitution) affect
the legaHty of the use of nuclear or ether weapons.
43. lt is the opinion of the Netherlands Government that the implied general
obligationof WHO Member States ta contribute to the achievement of
the principal objective of the WHO and ta co~opera ttehat affect
cannat encroach upon the right of individuel or collective self-defence ta _
which States are entitled under Article 51 of the Charter of the United
Nations.
44. According ta the Netherlands Government, the exercise of this right by
States is exclusively governed by the UN Charter and the rules and
principles of the jus in bello discussed above and any ether rule or
principle of international law specifically concerning the use of force in
armed conflict which States may have agreed ta. lt is clear that the
impliedgeneral obligation of member States of the WHO to contribute ta
the achievement of the principal objective of the WHO and to co·operate
with one another tc that effect does not fall into that category.
The Hague, 6 June 1994
Written Statement of the Government of Netherlands