Letter dated 15 June 1995 from counsel appointed by Nauru, together with Written Statement of the Government of Nauru

INTERNATIONALCOURTOF
JUSTICE

LEGALITY OF THE USE BY A STATE OF NUCLEAR

WEAPONS IN ARMEDCONFLICT

(REQUESTFORAN ADVISORYOPINION)

RESPONSE TO SUBMISSIONS OF
OTHERSTATES BYTHE REPUBLICOF NAURU RESPONSE TO SUBMISSIONS OF

OTHERSTATES BYTHE REPUBLICOF NAURU

Introduction

Thirty-five statements weto the International Court of Justice on the
question askby the World Health Organizon whether the use
nuclear weapoby a State in an armed conflict would be a breach of its
obligationsder internationallaw ithe WHO Constitution.Of these, nine States argued that the Court should not consider

the case stating that the WHO did not have the mandate to request
such an opinion or that the Court should use its disuetion not to
respond. Five of these nine States argued that should the Court
deude to consider the merits ofthe case, it should detennine
that the use ofnudear weapons is not illegal perse. FiveStates
argued that the casewas admissible and that the Court shouid give

an opinion. Twenty two States took the positionthat the use of
nuclear weapons isillegal.. .
~.-.+-,, - .- -- .

Wesupport the argument that WHO iscompetentto requestthe
opinion from the Court on the grounds that the use of nudear
weapons has implications for health which are a legitimate and

long standing concem of the WHO.

Wedisagreewith the argument that the Court should use its
discretion to decline to give a reply to the WHO. It is the
responsibility of the Court to sorespond unless there are
compeliing reasons not to do so. Webelieve that the support from

the United Nations General Assembly for this requestindicates
that a response from the Court wiil aid rather than hinder
international effortsfor disarmament.

We disagreewith the argument that the lack of a specific
convention prohibiting the use ofnudear weapons means that such

use is therefore legal. The use ofnuclear weaponsis dearly
prohibited by a vast body ofhumanitarian, human rights and
environmental law, without specificreference to such weapons. In
this comection, we support the arguments submitted to the Court
by other Statesthat the use ofnuclear weapons isillegal on the
grounds that any such use would violate the right to lifeand laws

of war which prohibit weapons or tacticswhich cause unnecessary
or aggravated suffering, are indiscriminate, use poisonous gases,
liquids or analogous substances, violate the neutral jurisdiction
of non-partiupating States,cause widespread, long term and
severe damage to the environment and are disproportionate to
antecedent provocations. Wesupport in particular the detailed
arguments submitted by . SolomonIslands, Mexicoand

Malaysia.

In addition opinio juris and the dictates ofpublic conscience
support the argument that any use ofnuclear weapons is illegal.
Evidence ofpublic consciencewas presented unofficiaiiyto the
Court by representatives of Non-Govemmental Organizations on 20

June 1994.

In sum, we fail to comprehend how a weapon oftotaily
unprecedented destructiveness, whch is the weapon ofmass destruction par excellenceand which has the capacity to destroy
lifeon entire sections ofthe globe,ifnot the globeitself,

couid be keated, for legalpurposes, as "justanother weapon", to
be judged like a bomb or an armes. shell according to the
specificcircurnstances ofits use. Indeed, the awesome power of
the nudear weapon, which accordmg to its adherents makes it a
tool of deterrence,s the reverse side ofthe coin ofiiiegality.

1. Admissibility

Substantiai portions ofthe statements submittedto the Court by
Statesopposing the WHOrequest deal with thequestion of
admissibility,i.e.WHO'S competence in the matter. Wefirmly
believe that such competence existsin view ofWHO'spast concerns
with the health and environmental effectsofnudear war and the
factthat the potential health hazardsesulting from such a war
dwarf any other healthhazard imaginable. However, the question

of WHO'scompetence to request such an opinion is now moot in
light of the request by theN General Assembly for an advisory
opinion on the question "1sthe heat or use ofnudear weapons
in any circumstance permitted under intemational law?"This
question subsumes the question requested by WHO.Article 96 (1)of
the UN Charter provides that the General Assembly may request an
advisory opinion on "any legal question".Therefore,there isnow
no reason for the Court to tum down the request on grounds of

admissibility.

Should the Court however wish to enter into the merits ofthe
admissibility ofWHO'Srequest, additional support for the
argument that WHO has the competence to request such an opinion is
iii~5 t 3 WC, ,IL,, F,^,l
Ni,.2 .
2.Discretion

Anumber of States,induding the US, UK, Auskalia, Finland,
France,Germany and the Netherlands argued that even if WHOhas
the mandate to request ths advisory opinion the Courtshouid use
its disaetion not to give an opinion.Beloware some oftheir
arguments and our response to them.

2.1 Thisis a Politicalnot a LegalQuestion

SomeStatesargued that the question ofthe use ofnudear weapons
isprimarily a political questionnot suited to legalnquiry.

Australia stated that "Thesubjectmatter of the question is
unsuitable for adjudication asitclearlygoesbeyond a definable
field ofjudicialenquiry and enters into the wider realms ofpolicy and sewity doctrines of states." (p.3)

France stated that "Despitethe legal guise in which ithas been
decked out, the question thus putisof an exdusively political
nature." (p.12)

The United Kingdom argued that the WHO request is"adevice to
tempt the Court into an involvement in anessentiauy political
debite." (p. 55) ~.

The questionasked of theCourt isdearly a legal question. The
Court isbeing asked only to determine whether the use ofnudear
weapons by a State would be a breach ofitsobligations under
international law and the WHO Constitution. The Court is not being
asked to comment on the effectany use ofnudear weapons would
have on the political relationshipsbetween States or on

international peace and security,nor todetermine what political
steps should or could betaken in the area ofnudear
disarmament.

Although the question undoubtedly has major political
signhcance, it isa legal question, that is, onewhich can be
ançwered on the bas; ofiaw. The Court is invited "toundertake
an essentially judicialask" (ExpenseçCase, 1962ICJReports,
p.155),i.e.,to pronounce on the legal principles and rules

applicable to the questionsubmitted to it.

As this Courtnoted in the Interpretation ofPeaceTreaties Case
(1950 ICJReports, p.71) "TheCourt's opinion is not given to
the States but to the organ whichiçentitled to requesti..
[Tlhereply ofthe Court, itself an 'organof the UN'represents
itsparticipation inthe activities of the organisation,and, in
p~ciple, shouldnot be refused."

It should be noted that the political question doctrine, on the
basis of which courts may refuse to entertain questions capable of
resolution by other branches of government, is a doctrine peculiar
to the jurisprudence of the United States. It isnot present or at
least not firmiy implanted in the jurispmdence ofother
counb-ies,much lessin international law. It would seem therefore
not to be aproper principle to be applied by the International
Court ofJustice.

At the recentUN Congresson Public International Law, H.E.
Mohammed Bedjaoui(President ofthe ICJ)and SirNinian Stephen
(Judge, International Tribunal for the Former Yugoslavia)urged
greateruse ofthe Court's advisoryjunsdiction as an integralpart of the work ofpreventive diplomacy.

Indeed it isprecisely for the sake ofpropnety that the Court
should not dedine to answer WHO'Squestion. If"theprinapal
judicial organ of the United Nations" (Article92,UN Charter)
wiii not answer this most fundamental question and safeguard the
de oflaw on behaif of"thepeoples ofthe United Nations"
(preamble, UN Charter), then which court can?

2.2Nuclear Weapons are PoliticalWeapons

This isa variant ofthe political question argument, but one

which needs to be considered separately.

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

Response:

If it were tme that nudear weapons are essentialfor security,
every nation would require to be defended by them. The fact that

the majority of countrieshave signed the Non-ProliferationTreaty
as non-nuclear States renouncing any intention ofacquiring
nuclear weapons, indicates that nudear weapons are not required
for security.

Nuclear weapons not only do not provide security, they generate
insecurity. Thisbeliefis reflected in the FinalDocument of the
First SpecialSessionof the General Assemblyon Disarmament 1976,
adopted by consensus,which noted in its opening:

Alarmed by the threat to the very survival ofmankind
posed by the existenceofnuclear weapons. .. Convinced
that disarmamentand arms limitation,particularly in the
nuclear field,are essential for the prevention of the
danger ofnudear war and the strengthening ofinternational peace
and security.. ..

Enduring international peace and security camot be built
on the accumulation ofweaponry by military alliancesnor
be sustained by a precarious balance ofdeterrence or
doctrines ofstrategicsuperiority. (Resolution.3)

It is a truism that deterrence does not work unless is
credible, i.e. unless the party to be deterred beiievesthat the
deterringparty isprepared to proceed from threat to use as a
last resort. Thenarrowness ofthe gap between "political'use andactual use is iliustrated by the followingaccountby a former
high officia1of theU.S . epartment of Defense:

[I]n the thirty-six years since Hiroshima, every president
from Truman to Reagan, with the possibleexception of
Ford, has felt compelled to consider or direct senous
preparations forpossibleimminent U.S. initiation of
tactical orskategic nudear warfare, in the midst of an ongoing,
intense, non-nudear contlict or aisis....[Hlere briefly
listed are more of the actual nudear crisesthan can now be
docurnentedfrom memoirs or other public sources (in most cases

after long penods of secrecy. ..):

Truman's deployment of B-29s,officially dexribed
as 'atomic-capable,'to bases in Britain and Germany at
the outset of the Berlin Blockade,June 1948.
Truman's press conference warning that nudear
weapons were under consideration, the day after marines
were surrounded by Chinese Communist troops at the Chosin
Resemoir, Korea, November 30,1950.
Eisenhower'ssecretnuclear threats against China,

to force and maintain a settlement in Korea, 1953.
Secretary ofState Dulles' secret offer to Prime
Minister Bidault of three tactical nudear weapons in 1941
to reiieve the French troops besieged by the indochinese
at Dienbienphu.
Eisenhower's secret directive to the Joint Chiefs
during the 'LebanonCrisis'in 1958to prepare to use
nuclear weapons, if necessary, to prevent an Iraqi move
into the oil fields ofKuwait.
Eisenhower'ssecretdirective to theJoint Chiefs
in 1958toplan to use nuclear weapons, imminently,

against China if the Chinese Communists should attempt to
invade the island ofQuemoy, occupied by Chiang's troops,
a few
miles offshore madand China.
* The Beriin crisis, 1961.
* The Cuban Missile Crisis, 1962.
Nurnerous 'shows of nuclear force'involving
demonstrative deployments or alerts - deliberately visible
to adversaries and intended asa 'nuclear signal' -of
forces with a designated role in U.S.plans for strategic

nudear war.
Much public discussion, in newspapers and in the
Senate, of (true) reports that the White House had been
advised of the possible necessity ofnudear weapons to
defend marines surrounded at Khe Sanh, Viehiam, 1968.
Nixon'ssecretthreats of massive escalation,
including possibleuse ofnuclear weapons, conveyed to the North Vietnamese by Henry Kissinger, 1969-72.
The Carter Doctrine on the Middle East oanuary
1980)as explained by Defense Secretary Harold Brown,
Assistant Secretary of State William Dyess, and other
spokesmen, reaffirmed, in essence,by President Reagan in
1981. (Daniel Elisberg, "How We Use OurNudear Arsenal"
Protest and Survive, E.P.Thompson and Dan Smith, eds.,

reprinted in The Nudear Predicament: A Sourcebook,
edited by Do~a Uthus Gregory, A Bedford Book,St. .
Martin's
Press,NY (1982).)

The risk of use ofnuclearweaponsis not confined to intentional
use. The UN Human Rights Committee has wamed of "the danger that
theactual use of such weapons may be brought about,not only in
the event ofwar, but even through human or mechanical error or

failure". It has also noted that nudear weapons "absorbresources
that couldotherwise be used for vital economic and social
purposes, particularly for the benefit of developing countries"
(UN Doc A/39/644; CCPR/c/21 /AddA)

2.3The Question isToo Abstract for Judiual Consideration

The United States and France argued that the questionis an
abstract one to which it is not possible to give a specific reply.

"These matters cannot be usefuiiy addressed in the abstract
without reference to the specihc circumstances under which any
use of nuclear weapons would be contemplated." (United States, p.
14. Cf. France, pp. 11-12.)

Response:

This Court has determinedthat a "legal question refers to one
which rnay 6e answered on the basis of law." (WesternSahara Case,
1975ICJReports, p. 18)It does not matter that the questionis

specific to one set of circumstances, or more general to cover a
range of circumstances. The Courthas accepted that it isproper
to consider legal questions which do not refer to one specific
circumstance, but may relate more widely. (1975ICJReports, p.
20)

The arguments supporting the illegality of the use of nudear
weapons are not based on the circumstances in which they are used,
but on the fact that the very nature of the weapons issuch that
any use would violate principles of international law. The Court

is therefore not being asked toconsider different abskact
scenarios, but rather to consider the concrete xientific evidence
concerning thehealth and environmental effects of any use of
nuclear weapons, and from that determine whether any use wouldbeiüegal.

2.4The Request is Devoid ofObjector Purpose: The Court's
Opinion WiiiHave No Practical Effect

SomeStates, induding Australia (p. 7) and the UK (p.58),argued
that therequest to the Court is devoid of objector purpose as
the Court's opinionwouid not be enforceable,nor have any effect
on the policies ofthe nudear-weapon States.

Response:

It would be strange indeed if the international community were to
adopt the principle that only those internationallaw &gs
likely to lead to immediate and fullcomplianceare worth
rendering. There may be acertain time lagbetween &g and
compliance, which may be greater or less in proportion to the
vital interests affected.Butin aworld subject to the rule of
law, to which allStates profess to be committed, the ruhgs of
thisCourt, the highest tribunal on questions ofinternational

law, must sooner or later become the guiding nom forbehavior of
States.

Furthermore this Courthas determined that the question ofwhether
itsopinions willbe honored or not isnot a factor in deciding
whether to givean opinion. In the case of Nicaragua v.United
States,this Court observed that it "neither cannor should
contemplate the conhgency ofthejudgement not being complied
with." (1984 ICJReports 19&1p ,. 437.)ThisCourt, for example,

delivered an advisoryopinion on Namibia (South West Africa)
despite the very real uncertainty as to whether South Africa would
comply with any opinionadverseto its practice. (Legal
Consequences for States ofthe Continued Presence ofSouth Africa
in Namibia (SouthWest Africa),1971 ICJReports, p.16)

The ability to enforce an opinion from the Court isnot the only
factor indetermining the value and influence of an opinion.
Statescomply with internationallaw to a large degree without

enforcement mechanisms. At the recent UN Congress on Public
international Law (United Nations, March 1995)Sir Ninian Stephen
of the Tribunalfor the Former Yugoslavia,when asked how the
nuclear-weapon Stateswould likely respond to an opinion that the
use ofnudear weapons is illegal,said that "...the
nuclear-weaponStatesshouid react to the Court's judgment in the
same way as any citizen should react to the judgement of a
domestic court: they should respect it."

Theprecedent of the Nudear Tests Case isinstructive in thiç

respect. In 1973,Australia and New Zealand sought îhisCourt's protection against France'satmosphenc nudear testing in the

South Pacific.France challenged the justiaability ofthe case on
grounds ofstanding and ofits non-adherence to the Test Ban
Treaty of 1963,and declared that it wouid notabide by the
deusion of the Court. Nevertheless, France abandoned its program
of atmosphenc testing during the pendency of the case,rendering
it moot. (Nudear Tests Case,1973 ICJReports,p. 99.1974 ICJ
Reports,p. 253)

2:sAn Opinion Not Complied With Wouid Undermine the Court's

Authonty

SomeStates, e.g. Ausixalia(p.6),have argued that ifthe nudear
weapon States failed to respect the opinion ofthe Court, this
would undermine the Coh's authority.

Response:

i)The opinion requested is an aâvisory one.Coming from

this tribunal it wouid carry great weight but wouid not be
binding or selfexecutingper se.

ü) Solong as no Stateusednuclear weapons inarmed
confiict,no Statewould be in violation ofan opinion
thatsuch use was inviolation ofinternational law.

üi) Sinceseventy three member Statesof the World Health
Assembly, a vast majority ofthose voting, have requested

this opinion, it would, on the contrary, undermine the
authority ofthe Court if it refused the request.

2.6The Court'sOpinion Would Damage DisarmamentNegotiations

SomeStates, including United States,United Kingdom, Australia
and France, maintain that the nudear Statesare disarming and
that an opinion from the Court couid undermine curent disarmament

negotiations.

"An opinion on this complex and sensitive matter could serve to
complicatethe work ofStates or other United Nations bodies,
perhaps undermining the progress already made in this area." (USA
p. 14.Cf. Australia p.6,Francep. 13,U.K.p. 60)

Response:

i)Theclaim that disarmament negotiations are in progress
is notborne out by the facts.TheUnited Statesand the
Russian Federationhave agreed to cut their nudear arsenal5by the year 2003 toa total of 19,580warheads,

the equivalent of approximately 200,000Hiroshima sized bombs
(Centerfor Defense Information, Nudear Weapons Facts, 1995).
Despite the demands of most non-nudear States,the recent Non
Proliferation Treaty Review and Extension Conferenceconcluded
without any firm cornmitment by thenuclearweapon States for
further cutbacks, much lessthe ultimate elimination ofnudear
weapons. There isno evidence that anynegotiations with a view to
wther cutbacksare currently under way or contemplated.

In addition, at least four ofthe five dedarednudear weapon
States continue to invest in research, development,esting and
modemization oftheirnuclear arsenak (DefenseMonitor, Vol
XW, Number 1,1993).

iiIt is not the role ofthe Court to encourage or
discouragedisarmament negotiations. Its role isto
provide an advisoryopinion on the question referred to it
by the World Health Organization.

iiiIt)is difficult to seehow an opinionholding the use
of nuclearweapons to be in violation ofinternationallaw
would impede disarmament negotiations. It is reasonable to
assume that, quite on the contrary, such an opinion wodd
provide an impetus to such negotiations.

iv)The question asked by WHO on the legality of the use
ofnudear weaponshas now been supported by the United

Nations General Assembly.

Welcorningresolution 46\40 of 14 May 1993of the Assembly
of the World Health Organization, inwhich the
organization requested theinternational Court ofJustice
to give an advisory opinion on whether the use ofnudear
weapons
by a stateinarmed conflictwould be a breach ofits obligations
under international law, induding the Constitution ofthe World

Health Organization. (UNGAresolution A\49\699K, 1994)

ïhe General Assembly,the principalorgan ofthe United Nations
dealing with disarmament, in deciding to support the WHO request,
has determined that such a request would be an aid, not a
hindrance to its efforts in the field of disarmament.

2.7An Affirmative Opinion by the Court Would Undermine

Deterrence

SomeStates, induhg France, the Russian Federation,Germany,
and the United Stateshave argued that an opinion on the iliegality ofnudear weapons could undermine the deterrence
poiicy which they consider to be essential to theirown securiiy
and the maintenance ofpeace. "Thi policy of dissuasion has
contributed to the maintenance ofworld stability and peace."
(Francep.11, Cf.USAp. 21,Russian Federation p. 2,Germany

p.4)

Response:

i)Thisargument is n essence,another way ofsaying
that nudear weapons are merely, or prirnarily, "poiiticai"
in character. (Seeithi somection section 2.2,
supra).

ü) The argument that deterrence has workedisopen to
debate. Nudear deterrencehas not prevented conventional
war orwar with chemical weapons. According to one account
there have been 149wars since 1945resulting in 23

million deaths (RuthSivard, World Miiitary and Social
Expenditures, World Priorities, Washington 1993,p. 20).The five
dedarednudear weapon Stateshave been directly involved in 48
of these wars and indirectlyin many of the others (Sivard,1993,
p.21)

iü)Far hom creating stability,continued reliance on
nuclear deterrence provides justification fornon-nudear
States to seek to acquire their own nuclear weapons in
order to be able torespond to the use or threat ofuse of
nudear weapons by the nudear armed States.

iv)If the use ofnuclearweapons is illegal,the threat
ofsuch use -which isanother name for deterrence -
camot remove the taint ofillegalityfrom use, any more
than the threat of torture in order to prevent crime can
"legalize"torture.

3. The Application ofTreaty Law to Nudear Weapons

3.1Nuclear Weapons Are LegalBecauseThey AreNot Prohibited by
Any Treaty

"Itiscompletely clear that no conventional instrument or
customary de has as yet established anyprohibition in principle
of the use ofnudear weapons." (Francep. 15)

Conventionsprohibiting or reshicting chemical,biological,
inhumane or environment-modifvingweapons have been aeated to
deal with specifictypes of weapo&y. "Theexactingnature of
those speufic conventions clearlyconhrms that one cannot deducea precise restriction on the use ofspecificweaponry from general
principles which, by their nature, apply to ail weapons without
discrimination, and to any of them in particular....
[Clonventions thus established are oniybinding upon the parties
to them. .
.." (France,p. 22)

"No treaty specificaliyprohibiting the use ofnudear weapons has
bgen adopted since 1945. Nor is the use ofnudear weapons
outlawedby any provisioncontained in a treaty ofmore general
application." (UK, p. 62)

There isno generalprohibition on the use ofnudear weapons in
any internationalagreement. (USA,p. 16-17)

After referringto the 1925Geneva Protocol,EnMod Convention, St.
PetersburgDed'n. and the inhumane Weapons Convention, the US
notes that "thispattern implies that there is no such general
prohibition on the use ofnudear weapons, which would otherwise
have found expression in a similar international agreement."

(USA,p. 18)

"[Tlthereare no treaties prohibiting nuclear weapons as such."
(Germany, p.3)

Response:

As in the case ofmunicipal law, treaties can be law-creating,
law- cowing orboth. Thus, Akehurst notesthat the importance
of the Vienna Convention on the Law ofTreaties "liesin the fact

that most ofits provisions attempt to codify the customary law
relating to treaties,although there are other provisions which
represent a.'progressivedevelopment'rather than a codification
of the law."(M. Akehurst, A Modem introduction to International
Law, (Third ed., 1977'p. 121).

At any rate, where the specificprohibitionis subsurned in the
general,there isno need for an explicitbeaty prohibition of
the specific.The principle offreedom ofnavigation on the high
seas appiies to al1types ofvessels,including those not yet

invented. Artide 2(4)of the United Nations Charterprohibits ail
forms of aggression, regardless of themeans employedby the
aggressor.

As amply demonstrated in several submissions before the Court,
many treaties and principles ofcustomary law already prohibit the
practices and consequenceswhich any use ofnuclear weapons would
inevitably entail. It is disingenuous, therefore, to claim that
the absence ofa specifictreaty relating to nuclearweapons somehow "legalizes"such weapons. It isalsonoteworthy that none
of the statementsmade by couniries defending the legality of
nudear weapons recite,hypothetically, any instances in wluch

nuclearweapons could be used without violaîing any of the general
principles which are the basis of their illegality.

The specificityofrecent treaties prohibiting biological and
chernicalweapons confirms the illegalityof these weapons, but
does not speak for their legality pnor to the enactment of these
treaties. Indeed, the use and proposed use ofbiologicaland
chernicalweapons was widely condemned by the international
community on grounds of,inter alia,internationallaw before the

enactment of the Biologicaland ChernicalWeaponsConventions.

3.2 The existence oftreaties recognizing and regulating nudear
weapons suggeststhat these weapons are legal

"Thosetreaties which may. . .relate to the use ofnudear
weapons neither lay down or imply any generalized prohibition of
their use.Most of the relevantinstrumentshave to do with the
installation, emplacement,possession,transfer, manufacture and

testing, or even the destruction ofsuch weapons." (France,p.
15)

"Thevery existenceof those treaties [TreatyofTlatelolco,
AntarcticTreaty, South PacificNuclear Free Zone Treaty and the
Outer SpaceTreaty]and their limited scope, together show that
States are convinced that, in the absence of any special and
accepted prohibition, the use ofnuclear weapons isnot prohibited
by law." (France,p. 16)

Statingthat no treaty prohibits nudear weapons as su& "Neither
is there anunwritten ban, othenvise al1treaties limiting the
proliferation ofnudear weapons or nuclear tests, or seeking to
createnuclear-weapon-freezones or to limit the number ofnudear
weapons, would be meaningless." (Germany,p. 3)

"Positiveinternational law inforceaccepts the factofexistence
ofnuclearweapons. There isa wide range ofinternationalnorms
airned at non- proliferation,non-deployment, limitation, reduction

ofnuclear weapons,prevention of their testing and other forms of
controi ofnuclear weapons.
There isa largenumber ofeffectivelyfunctioning international
instrumentsboth multilateral and bilateral deaiing with this
subject, induding well-known bilateral agreements on the
prevention ofnuclear war." (RussianFederation, p. 2)

Response:These txeatiespresume the existence but not the legality of
nuclear weapons.

International law and custom indude mechanisrns for addressing
breaches of legaloms and dealing with the effects of these
breaches, without sanctioning them. This isno more than a
recognition of the gapetween the real and the ideal which exists
in many areas of life, and which law seeks to dose.

o rxample, a Statewhich initiates an illegal armed confisct
not exempt from the standards of international humanitarian law,
eventhough it violated international law in therst place. The
Convention on Civil Liabiiityfor Nudear Damage, 1963U.N. Jurid.
Y.B .48,limits liabiiityfor nudear damage without exempting
those responsible for such damage from legal liability.

TheResolution Regarding Weapons of Mass Destruction In Outer
Space, U.N.G.A. Res. 1884(XVDI),adopted by the UN General
Assembly by acclamation on October 17,1963, "solernnly cak upon
aliStates to refrain from placing in orbit around the earth any
objectçcarrying nudear weapons or any other kinds ofweapons of
mass destruction ...It could hardiy be argued that, by singling
out outer space for a prohibition on the siting ofweapons of mass
destruction, this resolution "legalizes"the siting or use of
weapons of mass destruction on earth.

An example drawn from municipal law is the practice of
establishing needie exchange programs to minimize the spread of
disease among dmg users. These programs recognize the fact of
illegal dmg abuse and seek to remedy its effects,without
accepting drug abuse as legal.

The foliowingexamination of the txeaties invokedby France,
supra, reveals that they are consistent with, indeed supportive
of, the goal of elimination of nuclear weapons, and intended to

reduce the effect ofhese weapons until the generaily accepted
goal of com lete nudear disarmament is fuliy realized. (See
Appendix & .)None of the treaties regulating nudear weapons
sanctionsthe use ofthese weapons.

3.2.1Treatyfor the Prohibition of Nuclear Weapons in-Latin
Amenca (Treaty of Tlatelolco)

TheUnited Kingdom States,at p. 72,that "the dedarations made
by the nudear-weapon States at the time of signing or ratiwig
the Protocol, which were not d-iallenged by the parties to the
Treaty of TlatelolcoDone at Mexico,February 14,1967,634
U.N.T.S.2811,indicate that those States consider there are
circumstances inwhich resort to nuclear weapons wouid be lawfui." But, except for Argenüna, which abstained, and which did not
raûfy the Treaty unfil 18January 1994,ail the States Parties to

the Treaty of Tlatelolco have voted forN resolutions dedaring
the use ofnudear weapons to be a crime against humanity and a
violation of theN Charter. (Examples include GA Res.A/48/76B
(1993)and A/49/700E (1994);both titled "Convention on the
Prohibition of the Use of Nudear Weapons"). SomeStates Parties
(Mexico,Costa Rica,Colombia), have stated in these proceedings
that they consider the use ofnudear weapons to be iilegal; none
bve statedthe contrary.

The dedarations mentioned by the United Kingdom represented
assurancesbv the nudear-wea~on States "not to useor threaten to
use nudear &eapons against &teContracüng Parties." (Protocol
II A,rt.3) Why should any of the Contracüng Parties have
chailenged these assurances? How, therefore, can anything be
inferred from their failure to do so?

Some indication of the Contracting Parties' view of the status of
nuclear weapons under international law may alsobe gleaned from

the Preamble to the Treaty, which states, in part:

[Nluclear weapons, whose terrible effectsare suffered
indisaiminately and inexorably, by military forces and
civilian populations alike, constitute, through the
persistence of the radioactivity they release, antack
on the integrity of the human species and ultimately may even
render the whole earth uninhabitable.

3.2.2 South PacificNuclear Free Zone Treaty (Treaty of
Rarotonga)

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

ThePreamble states, in part:

Convinced that al1countries have an obligation to make
every effort to achieve the goal ofeliminaüngnuclear
weapons, the terror they hold forhumankind and the threat
which they pose to life onearth.

This does not sound like a recognition of the right of any States

indefinitely to own, much less use, nuclear weapons.3.2.3 Treaty on the Non-Proiiferation of Nuclear Weapons (NPT)

The text,context, purpose and subsequent practice ofthe NPT
(Done at London, Moscow and Washùigton, July 1,1968,729 UN.T.S.
161)au, to varying degrees, refute the daim that the NPï
legitimizes the possession and use ofnudear weapons. The NPT
acknowledges the existence ofnudear weaponsand of
nuclear-weapon States,but does not acknowledge any right to

possess or to use nuclear weapons.

A number ofrights ofPartiesare dearly established in the text,
incluàing the "inalienable nght" to develop research, production
and use ofnudear energy for peaceful purposes (Artide TV (l)),
the nght to partiapate inthe exchange ofequipment,materials
and suentific and technologicalinformation for the peacefd uses
ofnudear energy (Artide N (Z)),the right to benefit from the
peacehd applications ofnudear explosions (Artide V)and the

right tocondude regional treaties in order to ensure the total
absence ofnuclearweapons in their respective temtories
(Artide Vil). The text of the Treaty,however, includes no
reference to the right to either possession or use ofnudear
weapons. The definition ofa nuclear-weapon State, which would be
expected to establish rights of the nudear-weapon States,says
simply "..anudear-weapon State is onewhich has manufactured
and exploded a nudear weapon or othernuclear explosive device
prior to 1January 1967."

In contrastto the clairned right to possess and usenudear
weapons, the NPT requiresnuclear-weapon states to terminate their
possession ofnudear weapons through the negotiation ofnuclear
disarmament (Artide VI).TheUnited States has noted that:

[TlheNPT is the only global treaty that requires al1its
parties toursue measures related to cessation ofthe
nuclear arms race and to nuclear disarmament. For the

nuclear-weaponstates, this provision is clearly aimed at
their nudear arsenals."(Ambassador Thomas Graham,Jr. USArms
Control and Disarmament Agency,Speech to the Third Preparatory
Cornmittee for the 1995Conférenceof the Parties to the Treaty on
the Non-Proiiferation ofNudear Weapons, Geneva,September 13,
1994,pubiished by U.S.Arms Control and Disarmament Agency,
Geneva Office, p.2.)

The NPT was negotiated in comection with and was amexed to
United Nations General Assembly Resolution 2373 (XXII)whch

condudes that "...a agreement to prevent the further
proliferation ofnudear weapons must be followed assoon as
possible by effectivemeasures on the cessation of the nudear
arms race and on nuclear disarmament." This explains the contextof the NPT which was not only tohalt the proliferation ofnudear
weapons, but aiso to lead towards their elimination. A Treaty
which ispart of a dedared process for the ehktion of nudear
weapons cannot be said to legitimize a so-cailed right, that of
possession of nudear weapons, which is in directopposition to
the dedared goal.

This interpreîation of the context of the isconfirmed by its

purpose as stated in the Preamble, which indudes the goal of "the
cessation of the manufacture ofnudear weapons, the liquidation
of ailexisting stockpiles, and the elimination from national
arsenals ofnudear weapons and the means of their deiive ry..."
While the NFT does not expressly prohibit the use ofnudear
weapons, the reference in the preamble that the useofnudear
weapons in war wouid be a "devastationthat wouid be visited upon
allmankind is evidence that the NPT definitely does not sanction
the use of nuclearweapons prior to their elimination.

The subsequent practice ofParties to the NPT supportsthis
interpretation:

Despite their involvement in several wars and other military
actions,the nuclear-weapon Stateshave completely refrained from
using nudear weapons since the enactment of the NPT. And, despite
their refisal to make a clear commitment to the non-use ofnudear
weapons, theyhave expressed their opposition to such use. In the
words of President Reagan: "A nuclear war cannot be won and must
never be fought."(As quoted in N.Y.Times, 6November 1986,at
A35, col. 1.)

With the possible exception of iraq and the Democratic People's
Repubiic of Korea, all non-nuclearStatesPartieshave
scrupuiously adhered to their obligationnot to acquire nuclear
weapons.

The great majority ofStates Parties, including the Democratic
People'sRepublic of Korea and Iraq, haveroutinelyvoted in favor
of UN General Assembly Resolutions calling the use of nudear
weapons a violation of inte ationallaw and a crime against
humanity. (SeeAppenk 2 )The followingStates Partiesare on
record in these proceedings as embracing the principle of the
iilegality of use:

Azerbaijan Colombia Costa RicaDemocratic People's
Republic ofKorea han KazakhstanLithuania
Malaysia MexicoNauru Papua New Guinea Philippines

Rwanda Samoa Saudi Arabia Solomon Islands Sri
Lanka Sweden Uganda UkraineIndia and Pakistan, which are not members of NPT, have taken the
same position, thereby inueasing the force ofthis position as a
ruie of customary international law.

The United States has contradicted its own daim that theNFT

legitimizes possession and use with the statementthat

While the NFT reflects the reality that five
nuclear-weaponstates existed in 1968,it does not
legitirnize the permanent possession ofnudear weapons.
Far from it. Rather thNPT regime creates a system of
shared obligationsamong its parties: while non-nudear-weapon
statespromise not to acquire nudear weapons, nudear-weapon
statespromise to undertake measures to reduce and elirninate their

nudear arsenal5 (Ambassador Thomas Graham, supra, p.14).

4.ProtocolI of 19ï7 Additionalto the 1949Geneva Conventions
and the "Nudear Understandings" Issue

The Protocol "contains anumber ofnew des on means and methods
of warfare,which ofcourseapply only to States that ra* the
Protocol. It is,however, dear from the negotiating and
ratification record of the Protocol that the newles contained
in the Protocol were not intended to apply tonuclearweapons. "

(USA,p. 28)

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

4.1Response:

4.1.1ProtocolI is Largely Conhrmatory ofPreexisting

Humanitarian Law

It is not true, as clairnedby France (p.19),that those States
upholding the thesis ofillegality rely "particularly" on Arts. 35
and 51of Protocol 1,which deal, respectively, with the
prohibition of weapons causing superfluous injq and with the
protection of thecivilianpopulation. Theillegality thesis is
solidiy anchored in the entire body ofhumanitarian law, both pre-
and post-Protocol 1,and wouid therefore remain valid even if the

"Nuclear Understandings" thesis were accepted.

ProtocolI did not start with a cleanslate. The Diplomatic
Conference which led to its adoption was caiied "TheDiplomatic
Conference on the Reaffirmation and Development ofIntemational
Humanitanan Law Applicable in Armed Conflicts."ïhere is general
agreementthat, while there was some "development", e.g. Art. 55
relating to the protection of the natural environment, by far the buik of the Protocol, including Arts. 35(1)and (2)and 51,
consisted in "reaffirmation."Toapply the "nudear
understandings"made with respect to the roto co tlthe body of
preexisting conventional and customary law would be a new
departure indeed in the theory and practice ofinternational law.

4.1.2The "Nudear Understandings" Are ofQuestionable Validity
Even With Respectto the Protocol

A'rt.19of the Vienna Convention on the Law OfTreaties requires
that, in order to be valid, a reservat-and, a fortiori, an
understanding, which does not nse fdy to the level of a
reservation- be compatible with "the objecîand purpose of the
treaty."That purpose was defined inthe Preamble ofthe Protocol
as "toreaffirm and develop the provisions protecting the victims
ofarmed conflict ...It would be difficult to reconcilethis
purpose with the non-applicability ofthe Protocol to the one
weapon most apt to inflict devastating damage upon the vicüms of
armed conflict.Hence the "nudear understandings"may be viewed,
realisticaiiy,as the pnceexeacted by the nudear weapon States

for their participation in the977Diplomatic Conference,but not
necessarily as a legaiiy valid restrictionon the document
produced by the Conference.

5. Humanitanan Law

5.1 Humanitarian Law Does Not Prohibit the Use ofNuclear Weapons
perse

States opposing the thesis ofillegality admit, directiy or
indirectiy, that nudear weapons are not exempt from the reach of
huma~tanan iaw, but argue that, as in the case ofother weapons,

the legality vel non of their use must bejudged in light of the
particular circumstances of each case. (USp. 26,UK p. 77,
Netherlands; pp. 14-15).

Response:

This argument amounts to saying that a nudear weapon is"just
another weapon." It ignores the fundamentalquantitative
differencebetween nudear weapons and al1other existing weapons
in terms oftheir unprecedented destructiveness and the
fundamental qualitative difference between nuclear weapons and aii
other existing weapons in terms of their unconkollable
radioactive effects.hese legally signihcant differenceshave

been amply substantiated in several pro-diegality statements
before the Court. They have not been addressed in any significant
way by any of the anti-illegalitystatements.The following comments will be addressed to issues raised with
respect to certainspecificprinciples of humanitarian law.

5.2 The Principle ofDiscrimination

States admit that "attacks on avilian populationsare always
forbidden regardless of the weapons used (Germany, p. 3,

Netherlands, p.14, US pp. 26-27),but argue that "modem nudear
weapons are capable of precise targeting. ..againstmilitary
objectives of quite small size" (UK, pp. 88,89), that attadcs on
military targets are not prohibited becaw they may cause
"collateral uvilian damage" (US,p.27) and that the prinaple of
disaimination is subject to the right of reprisal (USp.26).

Response:

In the absence of Mer particulars, iisdifficult to comment
on the United Kingdom'shypothetical reference to the precise

targeting ofnudear weapons against "quite small" military
objectives.(On the impossibility of "precise targeting" of
nuclear weapons, see E.L.Meyrowitz, "NuclearWeapons Are lllegal
Threats", Bulletin of the AtomicScientists, May 1985,35 at 37.)
No one has ever seen such an operation carried out. U.S.law
currently forbids "research and development which couid lead to
the production. ..of a low-yield nuclear weapon", which is
defined as having a yield of less than five kilotons. (National
Defençe Authorization Act for FiscalYear (FY) 1944,Public Law
103-160,November 30,1993.) No information is avaiiable on the

existence of nudear weapons with a yield of less than five
kilotons in the arsenals of any other state. This is only a little
less than half the size of the Hiroshima weapon (12.5kilotons),
whch caused the death of some 200,000uviiians. Ifa tdy small
nuclear weapon -ofthe size, Say,of a large conventionalbomb or
artiüery shell- were ever developed, itwould stiü have
unconkollable radioactive effects, leading to the condusion that
the use of such a weapon. instead of a conventionalone of equal
size and impact, would be prohibited as onecausing"superfluous
injury or unnecessary suffering." At any rate, speculation asto
"micro-nukes" or "mini-nukes" is of a de minimis character, as

long as deterrence is the primary rationaleadvanced by the
nuclear weapon Statesfor their continued possession ofnudear
weapons. It is dear that such "tiny nukes"are useless asweapons
of deterrence.

As for "collateralciviiian damage", it may readily be conceded
that, under generally accepted principles of humanitarian iaw, one
cannot require a beiligerentcarrying out an attack on a
legitimatemilitary objective to insure that not a single uvilian
-or,in some cases, even dozens or hundreds -will be hurt or killed asa resuit of the attack. It shouid be equally readily
conceded by those on the other side of the argument that applying
the coilateral damage prinaple to the use of nudear weapons
results in an absurdity which necessarilywipes out the entire
body of humanitarian law. As stated above, the relatively small
Hiroshima bomb produced 200,000victims. Casualty projections
relating to current-day nudear weapons are in the millions.
Surelytheprinciple of permissible coiiateral damage cannot be
stretched that far; cornmon sense forbids it.

The daim that nudear weapons are subject to the right of
reprisal wiil be dealtwith in the next section.

5.3 The Principle of Proportionality

Germany, at p.3, and France, at p.15, argue that, while the
prinùple of proportionality applies to nudear weapons, each use
of such weapons must be judged according to its specific
circumstances(Germany) and "[the] aiterion of proportionality
cannot in itseif exdude inprinciple the use, whether asa

riposte or in an initial offensive, of any specific weapon and,
more particularly, of nuclearweapons, once that use is aimed at
countering an aggression, and it seems to be the appropriate means
to bring that aggression to an end" (France).

Response:

The best answer to the absolutist position of France -any use of
nuclear weapons is legitirnate so long as it is"an appropriate
means to bring ..aggression to an end" -and the relativist but
indeterminate position of Germany -judge each case according to

its circumstances - is the position of the United States:

It isnlawfd to cany out any attack that may reasonably
be expected to cause coiiateral damage or injury to
civilians or civilian objects that wouid be excessive in
relation to the military advantage anticipated from the
attack. (Protocol) Whether an attack with nudear weapons would
be disproportionate
depends entirely on the circumstances, including the importance of
destroying the objective, the character, size and likely effects

of the device, and the magnitude of the risk to civiiians. (USA,
p. 27)

In evaluating the "likelyeffects of the device, and the magnitude
of the effect on civilians," the scientific evidencemust be taken
into account:

Nuclear weapons are not just another weapon. Their nature and effectare such that they are inherently incapable of
being limited with any degree ofcertainty to a specific
miiitary target. Given that the ovenvhelming majority ofwarheads
in the U.S.nudear arsenal, particularly the weapons designed for
use in limited-war scenarios such as thecruise missile (200
kilotons) and the Pershing IImissile (250kilotons),exceed many
times over the destructive power ofthe weapons used at Hiroshima
and Nagasaki, and given that the targets that U.S. planners
consider 'Militaryobjectives'are generaiiylocated in or near
urban areas in industrial societies,itisquite difficuit to

conceiveof a use ofnudear weapons thatwouid not produce
extensive destruction of areas popuiated by civilians. ...

Itis only logical to consider the iliegality ofnudear
weapons in light of the scientificevidence confirrning
that massive civiliancasualtiesare unavoidable in a
nuclear exchange directed only against military targets.
One recent private analysis ofcivilian deaths that might be
expected to result from the use ofsmaiibattlefield nudear
weapons estimated that, in a nudear exchange between U.S.and

Sovietforces inboth Germanys using approximately 90,200-kiioton
weapons, 10to 20millionciviliancasualties wouid result. The
same study, using a different scenarioinvolving approximately 90
one-to two-kiloton weapons, estimated that one to 10million
civiiiancasualties wouid be produced. The condusions of
numerous govemmental and private studies on the consequences of
the use ofnudear weapons make it outrageous toclaim that
minimum coilateral damage to the civilianpopulations will occur
ifnuclear weapons are restricted to military targets.
("Nuclear Weapons Are illegal Threats"by ElliottL.Meyrowitz,
Bulletinof the Atomic Scientists,May 1985,35at p. 37.)

Therefore,a nudear response to a conventional attack wouid
blatantly violate the principle ofproportionality.

The same is bue for a nudear response to a nuclear attack.

in the Naulilaa Incident Arbitration, (2Reports ofint'lArb.
Awards 1011,at 1026and 1028(1928))"generallyconsidered to be
the most authoritative statement of the customary law of
reprisals,"0. Brierly,The Law of Nations (6th ed. 1963)p. 401)

the Arbikal Tribunal held, inter alia,that reprisals are limited
by considerations ofhumanity and that the measures adoptedmust
not be excessive,in the sense ofbeing out of aiiproportion to
the provocation received. Thus, as found in a RAND Corporation
study, "[tlheconcept of Assured Destruction,when deliberately
applied to policies for the acquisition and use ofnudear
weapons, appears tobe directly opposed to the most fundamental
principles found in the international law of armed confiict.... Even as reprisal,... the concept ofAssured Destruction is
prohibited ifit indudes deliberate attacks on the civilian
population." (C.Builder and M. Graubard, TheInternational Law
ofArmed Conflict: hpiications for the concept ofMutual Assured
Destruction (1982).)

5.4 The Principle ofNon-Toxicity

According to the United States,the 1925Geneva Protocol "was
iritended to apply to weapons that are designedto kili or injure
by the inhalation or other absorption into the body of poisonous
gases or analogous substances.
It wasnot intended to apply, and has notbeen applied, to
weaDonsthat are desiened to !dl or iniure bv other means, even
though they may create asphyxiating or poisonous byproducts."
(USA,p. 28)

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

Response:

According to Art.31(1)ofthe Vierna Conventionon the Law of
Treaties, "akeaty shallbe interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of
the heaty in their context and in the light ofits objectand
purpose."The ordinary meaning of the term "analogous",according

to The Concise Oxford Dictionary ofCurrent Engiish (5thEd.) is
"simiiar"or "parallel."The radioactivity ernitted by the
explosion of nudear weapons is absorbed into the body by
inhalation and othenvise and not "by other means".

[A]strong casecanbe made for the assimilation of
radiation and radioactive fall-out to poison. If
introduced into the body in sufficiently large doses, they
produce syrnptoms which are indistinguishable from those of
poisoning and inflict death or serious damage tohealth in. ..a
marner more befitting demons than civilizedhuman beings." (Georg

Schwarzenberger, international Law and Order, Praeger Pubiishers,
New York,1971,p. 199)

Simiiarly,Article 14of the 1956 Draft Rules [ofthe
International Cornmitteeof the Red Cross]for the Limitation of
the Dangers Incurred by the Civilian Population in time ofWar
(reprinted in D. Sdundler and J. Toman, eds., The LawsofArmed
Conflicts: A Collectionof Conventions, Resolutionsand Other
Documents (1988)p.69)expanded on the Geneva Gas Protocolin the
following terms: [Tlheuse is prohibited ofweapons whose harmhil
effects-resulting inparticular from the dissemination of
incendiary, chemical,bacteriological,radioactiveor
other agents-couid spread to an unforeseen degree or
escape, either in space ortirne,from the control of those who
employ them. (Emphasis added.)

5.5 The Principles ofHumanity and Necessity:The Prohibition on
Causing Unnecessary Suffering, or SufferingBeyond That Required
to Achieve a Legihate Military Objective

"[Tlheuse ofnuclearweapons cannot in abstracto be deemed
uniawful. The question of whether a spellfic use isin
contravention of the said obligationcannot therefore be weighed

until the exactimplications both at the level ofmilitary
advantage gained and with regard to the injury caused, are known."
(Netherlands, p. 10)

"Theprinuple [prohibiting unnecessary suffering]. ..requires
that a balance be struck between the military advantage which may
be derived from the use of a particular weapon and the degree of
sufferingwhich the use of that weapon may cause. In particular,
it has to be askedwhether the same military advantage can be

gained by using alternative means ofwarfare which wiii cause a
lesser degree ofsuffering. The use of a nuclear weapon may be the
only way in whch a Statecan concentrate sufficientmilitary
force toachieve a particuiar military objective. in those
circumstances, it cannot be said that the use ofsuch a weapon
causes unnecessary suffering,however great the casualties whch
it produces amongenemy combatants." (UK, p. 67)

"Itis unlawful to use weapons that are ofsuch anature as to

cause superfluous injury or unnecessary suffering. This
prohibition was intended to preclude weapons desimed to increase
ihe injury or suffering of thebersons attacicedbeyoid that
necessarv,to accomolish the rnilitar, ob,ective. It does not
prohibit weapons that may cause great injury or suffering if the
use of the weapon is necessary to accomplish the military mission.
For example, it does not prohibit the use ofanti-tank munitions
whichmust penetrate armor by kinetic-energy or incendiary

effects,even though thismay weli cause severe and painfui burn
injuries to the tank aew. Bythe same token, it does not
prohibit the use ofnudear weapons, even though such weapons can
produce severe and painful injuries, if those weapons are required
to accomplish a legitimate military mission."(USA,p. 30)

Response:

The argument of the Netherlands comes down to this:Let us determine the "exactimplications" of the use ofone or more
nuclear weapons; then we can decide whether such use has violated
internationallaw (presumablythe prinuples ofhumanity and/or
necessity).But the exactimplicationswiil not be apparent until
afier the use has occurred and, as demonstrated by the experience
ofHiroshima and Nagasaki, not for decades after the event.
Humanitanan law,however, is intended to actas apreventive
restraint, not an expost factoritenon. On the other hand,
thereis avast scientificliterature enabling military decision

iakes to forecast theprobable implications ofthe use ofnudear
weapons, ail ofitpointing toward injury on a scaleso vast asto
forecloseany possibility ofsaiking a balance with the
requirements ofhumanity and necessiîy.

As for the "striking a balance"arguments advanced by the United
Kingdom and the United States,they ignore the factthat
necessity, like repnsal, is not an absolute. If necessitycould
be used to jus* otherwise prohibited weapons or tactics,it
would make a mockery of such prohibitions; military commandea

would always invoke necessity to jus* whatever weapons or
tactics they chose to employ, no matter how bmtal or inhumane.

The laws ofwar distinguish between noms that may be overridden
by military necessity and those which may not. ïhe prinuples
applicable to the use ofnuclearweapons as weapons ofmass
destruction contain no exceptionsfor the sake ofmilitary
necessity.

Moreover,self-defense, a particular case of military necessity,
is nota justification for useofprohibited weapons. No
"balance" ispossible between the "militaryadvantage" whch may
be derived and the suffering which would be caused by the use of
nuclearweapons. A military objectivethat can onlybe achieved
by the use ofnudear weapons is beyond justifiableself-defense.
To suggest that a situation might anse where nudear weapons
would be essentialfor self-defenseis to imply that, under the
current NPT-regime, the majority ofStates are de~ed potentiaily

necessary means of self-defense. Sincemost Stateshave chosen
not to acquirenuclear weapons, nor'have aligned themselves with
nudear weapon States forpurposes ofself-defense,it appears
that most Stateshave implicitly rejectedthe notion that nudear
weapons might become militarily necessary for self-defense. Thus,
to claim a nght to use nuclear weapons to "concentratesufficient
military force toachieve a particular objective"is to place
one'sown military objectivesand perceived security needs above
those of other, especiailynon-nuclearweapon, States,and thus to

claim a nght not available to others. One wonders what
legitimate military objectivecould only be adueved by weapons of
mass destruction of the type found intoday'sarsenals.in an action against the Japanese govemment by yictims of the

bombs dropped on Hiroshima and Nagasaki,the court, relying on the
St. PetersburgDedaration and the Hague Regulations prohibifing
unnecessary suffering,stated:

[W]ecm safely seethat besidespoison, poison-gas and
bacteriurn the use of the means of injuring the enemywhich
causes at least the same ormore injury isprohibited by
international law... .[I]tis not too much to Saythat
the pain brought by the atomicbombs is severer thanthat from
poison and poison- gas, and we can Saythat the act of dropping
such a cruel bomb iscontraryto the fundamental principle of the

laws of war that unnecessary pain mustnot be given. (TheShimoda
Case, Judgment of the Tokyo Distnct Court, 7 Dec. 1963,reprinted
in 8 Japanese Ann.Int'1L.212,24142 (1964).)

5.6 The Principle of Neutrality

Art. 1of the Hague Convention V,Respecfing the Rights and Duties
of Neutra1Powers and Persons in case of War on Land, 1907,
provides that 'the temtory of neutral powers is inviolable.'

"Whether the use of nuclear weaponswould deposit radioactive

failout on the temtory ofStates not party to the conflict
would. ..depend upon the type of weapon used and the location at
which it was used. The asstgnption that any use ofnuclearweapons
would inevitably have such an effect is unfounded. Moreover,
Hague Convention No. V was designed to protect the terntory of
neutraI states againstincursions by beiligerent forcesor the
deliberatebombardment of targets located in that territory,not
to guarantee such states against the incidental effects of
hostilities"..(UK, p. 92)

Response:

As demonsfxated by the expenence of Chemobyl,where the
radiation released contaminated at least twenty countries (D.
Maples, "Chemobyl's Lengthening Shadow", Bulletin of Atomic
Suentists,Sept. 1993),radioactivefallout from a nudear
explosionwould spread farbeyond the target. Nudear falloutis
no respecter ofborders.

Radiation in quantities sufficient to cause extensive sickness
would spread from a 1-megatonexplosion,which is relatively

small, taa distance of 300km in less than 12hours. Even
greaterdoses of radiation from a 10-megaton bomb would reach a
distance of 100km in less than three hours and 800 km in less
than 32hours. (Lindop and Rotbiat, Consequences ofRadioactive Fallout, in The Final Epidemic: Physicians and Scientists on
Nudear War (R. Adams & S.Cden eds., 1981)at 131,125.)

There isno basis for the United Kingdom's claim that Hague
Convention V,which provides that "the temtory ofneukai powers
is inviolable", was designednly to guaranteethe temtory of
neukai powers against incurçions orbombardments. Oniy the most

tortured interpretation can lead to the conclusion that
radioactive failout causing devastation of humans, flora and fauna
does not constitute a violation ofneukal temtory.

5.7 The Principle of Environmental Çecurity

"Article 1[ofthe EnMod Convention] prohibits 'military or other
hostile use of environmental modification techniqueshaving
widespread, long- lasting or severe effects, as the means of
destruction, damage or injury'to another State....ArticleII
of the Convention defines the term 'environmental modification

technique' as 'any technique for changing- through the deliberate
manipulation of natural processes-the dynamics, composition or
skucture of the Earth... .'The effects on the environment of
the use of nudear weapons, however, would normaiiy be a
side-effect of these weapons." (UK, pp. 90-91;cf .SA,p. 30)

"Article 35(3)of AdditionalProtocolI is broader in scope, in
that it is applicable to the incidental effects on the environment
of the use ofweapons. It was, however, an innovativeprovision.
It is therefore subject to the understanding, which was discussed

above, that the new provisions createdby ProtocolI wouldnot be
applicable to the use of nuclear weapons." (UK,at p. 91-92;cf.
USA,p. 30)

Response:

The above statements refer to the EnMod Convention and ProtocolI
of the 1977Geneva Convention regarding destruction of the
environment but overlook the nurnerous other international legal
instruments relating to destruction of the en~ironment. These

indude, among others:

-1972StockholmDeclaration of the United Nations
Conference on the Human Environment (Adopted by the U.N.
conference on the Human Environment at Stockholm, 16June
1972,U.N. Doc. A/CONF.46/14/Rev.l at 3 (1973),11
I.L.M.1416(1972));

-1980United Nations General Assembly Resolution on
Historical Responsibility ofStatesfor the Preservation
of Nature for Present and Future Generations (Adopted 30 October 1980,G.A. Res.35/48 (1981));

-1982World Charter for Nature (G.A.~es.37/7 (Annex)
(1982));

-Draft Code of Crimes Againçt the Peace and Security of
Mankind (U.N. Doc. A/46/405 (1991),30I.L.M.1554 (1991)
Articles 19(3),22(2),26);

-1982United NationsConvention on the Law of the Sea
(U.N. Doc. A/CONF.62/122,21 I.L.M.1261,(1982)Artide

192)

-1985Vienna Convention for the Protection of the Ozone
Layer (26I.L.M. 1516(1987)Artide 2(1));

-1992Framework Convention on Climate Change (31I.L.M.
849(1992)Article 3);

-1992Convention on BiologicalDiversity (31I.L.M. 818

(1992)Article 3, Principles 7,25).

It is a general principle of law that the foreseeable consequences
of an act are interpreted as an intentionto bring them about. It
is disingenuous, therefore, in view ofwhat scientists have
described asthe enormously damaging environmental and dimatic
consequences of a nudear exchange, to assert that these would be
rnere "unintended side effects":

[S]urprisingly hash and lasting effects could be
generated even by relatively modest exchanges. ïhe
baseline scenario (5,000megatons)could drop average
continentaltemperatures in the Northern Hemisphere to
about minus 23degrees centigrade. Shockingly, even 100megatons
detonated on citiesalone could produce sufficient smoketo
blacken skies and chiiicontinental areas to below minus 20
degreescentigrade,with recovery taking over three months.(Anne
Ehrlic "N uclear Winter", The Bulletin of the Atomic Scientists,

April1984, p. 3S,at p. 5s.)

Concerning the relevance of Arts. 35(3)and 55of Additional
ProtocolI of 1977,see Section 4.1.1,supra.

6. The iùght to Lifeand Health

Apparently no statement subrnitted to the Courthas chalienged the
relevance to the question before the Court of the right tofe

and health, as embodied in the International Covenant on Civil and
Political iùghts and otherinternational law instruments. 7. Customary Law and Opinio Juris

7.1 General Comments on Custom

Custom isto be looked for primariiy in the actualpractice and
opinio juris ofStates. Although nudear weapons have not been
used sinceWWII, "[olnecannot.. .condude from that fact that
there has come into being any practice of 'non-use'basedupon a
prohibition of use 'acceptedas having the forceoflaw'and see
this as constituting an established or inapient custom."(France,

p. 18)

"[Flora custom to have been established,there wouid have to have
been situations inwhich the Statesconcemed couid envisagethe
use ofthose weapons. Thishas not been the case. ..."
(France,p. 18)

Response:

Actual practice and opinio juris ofStatesconfirm the prohibition

on the use of nudear weapons.

i)For a custom to be established, there need not be
absolute conformity with the rule. TheInternational
Court ofJusticehas stated:

"Itis not to be expected that in the practice ofStates
the application of the rulesin question should have been
perfect,in the sense that Statesshould have refrained,
with complete consistency,from the use offorceor from
intervention

in each other'sintemal affairs. Thecourt does not consider
that, for a de to be established as customary, the corresponding
practice must be in absolutelyrigorous conformitywith the ruie.
In order to deduce the existenceofcustomary niles, the court
deems it sufficient that the conduct ofStatesshould, in general,
be consistent with such des, and that instances ofStateconduct
inconsistent with a given mle should generallyhave been treated
as breaches of that de, not as indications of the recognition of
a new de. Ifa Stateacts in a way prima facieincompatible
with a recognized de, but defends itsconductby appealing to

exceptions or justificationscontained within the de itself,
then whether ornot the State'sconductisin factjustifiableon
that basis, thesignhcance of that attitude is toconfirm rather
than to weaken the de." (Militaryand Paramilitary Activitiesin
and against Nicaragua (Nicaragua v.United StatesofAmerica)
Merits,Judgment, I.C.J.Reports 1986,p. 135at paragraph 186.)Thus the dedarations ofa smailminority ofStates that use of
nuclear weapons would not necessarily be unlawful have not
prevented the development of a customary de of international law
prohibiting such use.

indeed, "amstomary de may arisenotwithstanding the
opposition of one State,or even perhaps a few States,provided
that otherwise the necessary degree ofgenerality isreached."
(Henkin, Pugh, et al.,International Law: Casesand Materials
(3rd ed., 1993)(citingWaldock,GeneralCourse on Public
intemational Law)p. 87.) Thenecessary degree of generality in
the case ofnudear weapons is reflectedinthenon- use since
1945and the repeated declarations of a majority ofStatesthat
their useisiilegal. (SeeÇection 7.2,infra.)

Adrnittedly, a newly emergent customary rule does not generaily
bind a Statewhich has consistentiy objected to thatrule.
However, it has been noted that "[nlocaseis cited in which the
objectoreffectivelymaintained its status after the rule became
well accepted in international law." (Henkin,Pugh, et al.,op.
cit. (citingChamey) p. 89) Moreover, the United Kingdom has, on
at least one occasion,questioned the right of aonsistently
objectingState to an exemption from a de oflaw offundamental

importance. (See1951I.C.J.FisheriesCase, II Pleadings,Oral
Arguments 428-430.)An example ofa non-consenting Statenot
being exempted from a cutomary rule is South Africa,which
persistently dissented from therule prohibiting racial
discrimination while that rule was developing. (SeeHenkm, Pugh,
et al.,op. cit.,p..)

ii)Despite the daim to the contray, therehave been
numerous situations in which the "Statesconcemed could

envisage the use of [nuclear]weapons" (France,p. 18).
(SeeSection.2.2,supra.)

7.2 Evidence ofOpinio Juris in U.N. Voting Records

Various UN Resolutions deciarin~ the use ofnuclear weapons tobe
illegal are not legaily bindingstkments. (UK pp. 73-75,USA
pp. 24-25)

Bycailing for a conventionprohibiting such weapons, States
implicitly recognize their present legitimacy. (UKpp. 75-76,
France p. 21)

Declarations of illegalityin the preambles ofthe UN Resolutions
are mere "politicalstances"devoid oflegal import. (Francep.
21)

The negative votes ofthe nuclear weapon Statesdeprive the UN Resolutionsof their status as sources of opinio juris (Francep.
21) or customary law (USApp. 24-25).

Response:

The General Assembly resolutions dedaring the use ofnudear
weapons unlawful represent Statepractice in the interpretation of
the laws of war. Although they are not binding in the sense that
atreaty is, they provide proof ofinternationalcommunity
sbndards, and the frequent reaffirmation of these standards

underscores their importance.

As to the argument that a califor a convention banning a weapon
"legitimizes"the weapon tobe banned, see Section3.2, supra,
with respect to the distinctionbetween confirmatory and
constitutive, orlaw- aeating, conventions. In any case,a
series ofresolutionsboth caliing the use of nudear weapons
iilegal and/or a aime against humanity, while at the same time
urging the enactment ofa convention banning their use, can hardly

be interpreted as an expression ofconfidence in the present
legality ofsuch use.

France'ssomewhat cynical"politicalstance" argumentis difficult
to foliow. A declaration is adeldaration is a dedaration.
Will futurededarations be accompanied by liedetector tests to
establish whether the dedarants mean what they say?

7.3 Evidence ofOpinioJuris in Public Comments ofStatesmen

No uniform view has emerged as yet on the legal aspects of the
possession ofnudear weapons and their use as a means ofwarfare
(France,pp. 18-19,USApp. 22-24).

Response:

Tme; but, as already pointed out, the great majonty ofStates
are unanimous in their condemnation ofresort to nudear weapons
and their view that such resort is illegal. The lack of total

unanimity is theprincipal reason for requesting the Court's
opinion, an opinion tobe based not merely on customary law and
opinio juris,such as they are,but on the solid foundations of
humanitarian law and other applicable rules ofinternational law.

7.4 Evidence of Opinio Juris Through State Practice

"Evidenceof a customary nom requires indication of 'extensive

and virtualiy uniform'Statepractice, induding Stateswhose
interestsare 'specially affected."'SA,p. 17,citingNorthContinental ShelfCases, 1969ICJReports, p. 43).

"Withrespectto the use ofnudear weapons, customary law could

not be created over the objectionofhe nudear-weapon States,
which are the States whose interests are most speaally affected.
Nor codd customary law be created by abstaining from the useof
nuclear weapons for humanitanan, political or miiitary reasons,
rather than from a belief that such abstention required by
law." (USA,p. 17)

Response:

With respect to Statepractice,uniformity iscomplete inthe
sense that no state has used nudear weapons since 1945. The

United States wodd have the Court believe that thi has mereiy
been a general practice based on humanitarian,political and
miiitary reasons, ratherthan a "generalpractice accepted as
law", within the meaning ofArt. 38(l)(b)of the ICJStatute. But
the suggestionthat "humanitarian, political or military reasons"
for abstaining from the use ofnuclearweapons are distinctfrom
"abelief thatsuch abstention isrequired by law"overlooksthe
essence and origins ofhumanitarian law. A recognition that use
of nuclear weapons wouid violate humanitanan standards is
essentiaily an acknowledgement of the applicability of

humanitarian law.

Furthermore, ail thenuclearweapon Stateswhich have made
submissions to the Court so far have admitted that the laws ofwar
apply, "inprinciple", to nudear weapons, while failing to
produce any convincing examples ofsituations in whichnuclear
weapons couid be used without violating the laws ofwar. This is
another reason for holding that the non- use ofnuclearweapons
for the pasthalf cenhiry satisfiesthe dassic definition of
opinio jurissive necessitatis.

It should alsobe noted that the non-nuclear weapon States,which
must surely be counted as "Statesaffected"in their capacity as
potentialvictirns ofnuclear attack, have not consented to the
nuclearweapon States' policy of deterrence. They have repeatedly
affirmed their positions in numerous resolutions, discussed above,
statingthat the use ofnuclear weaponswouid constitute a
violation ofthe U.N. Charter and a crime against humanity. These
unequivocal statementsindicated that the "Statesconcemed ...
feelthat they are conforming to what amountsto a legal

obligation", as requiredunder international law. (North Sea
Continental ShelfCases, 1969ICJReports,p. 44)

7.5 Opinio Juris in the Dictates ofPublic Conscience: The
Martens Clause The famous Martens Clause, a comerstone of humanitarian law,
recites as fouows:

In cases not covered by this Protocol or by other
international agreements, civilians and combatantsremain
under the protection and authority of the principles of
international law derived from established custom, from
the prinaples of humanity and from the dictates of public
conscience. (Preamble to the Hague Convention TV and restated in
Art.l(2) Protocol 1,1977)

The United Kingdom arguesthat "[wlhile the MartensClausemakes

clear that the absence of a specific treaty provision on the use
of nudear weapons is not, in itself, sufficient to establish that
such weapons are capable of lawful use, the Clause does not, on
its own, estabiish their iilegality. The terms of the Martens
Clausethemselves make itnecessary to point to a rule of
customary international law which might outlaw the use of nudear
weapons." (p. 84)

Response:

The Martens Clausemakes it indisputably dear that the customary
rules of armed confiict as well as the dictates of pubiic
conscience are relevant to the questionbefore the Court.

Elliot MeyrowitL has commented:

[Rleskaints on the conduct of war have historicaily never
been limited to keaty law alone. The Martens Clause of
the 1907Hague Conventions offers a legal yardstick

intended specifically for those situations inwhich no
international convention exists to prohibit a particular weapons
or tactic. When the Nuremberg tribunal was confronted with the
lack of aprior treaty defining crimes against humanity and crimes
againstpeace,it concluded:

The law of war is to be found not only in keaties
but in the customs and practices of States which
graduaily obtained universal recognition, and from

the generalprinciples of justice appiied by
jurists and practised by militarycourts.
This law is not static, but by continua1 adaptation follows the
needs of a changing world ...

(Ellion L.Meyrowitz, "Nuclear Weapons Are iilegal
Threat", The Bulletin of the Atomic Scientists,May 1985,
p. 35at 37.)The United Kingdom'sinterpretation of the Martens Clause reduces
it to aon-entity by requiring "ade of customary international
law" for its application. What if some homble new weapon were
invented,eagerlyadopted by most of the world's generals and

roundly condemned as inhumane by most of the world's people? The
United Kingdom'spositionwould, in effect,makethe legal
advisors to the world's Ministries of Defense and ForeignAffairs
tle guardians of the public conscience. Thaisnot what Frederic
de Marten hsad in mind.

8. Issues ofSelf-Defenseand Reprisais

8.1 Nuclear weapons can be used in self-defense and for
reprisais

SeveralStates have argued that the right ofself-defenseand
reprisa1affectsthe legalposition ofnudear weapons under
international law. (Francep.14UK pp.81,93).

Response:

It is not subject to dispute that the right ofself-defense does
not indude the right to use prohibited weapons or tactics. Hence
the right of self-defenseoes not affectthe legal regime of
nuclear weapons positively or negatively. Cf.Section5.5,

supra.

As for the right ofreprisal, see Section5.3,supra.

Conclusion

Byfar the most serious weakness of the submissions ofStates
which argue that the use ofnuclear weapons isnot necessarily
unlawful is their failure to acknowledge the uniquely terrifymg

nature and effectsofnuclear weapons. Toargue that the legality
of the use ofnudear weapons depends entirely upon the parlicuiar
circumstances of use is to pretend that nuclear weapons are no
different from and no more dangerous than conventional weapons,
when in fact their capaùty for health and environmental damageis
of a totaiiy different order ofmagnitude and quality, and their
nature issuch that, unlike conventional weapons, no use of
nuclearweapons canbe irnagined that would not violate one or more
dictates of international law.

The way to avoid the incomparable devastationthat any use of

nuclear weapons would cause is to affirm the ruie oflaw. As
Albert Einstein noted,in1946,"Henceforth,every nation's
foreign policy must be judged at everypointby oneconsideration:Does it lead us to a world of law and order or does it lead us
back toward anarchy and death?" (Excerptfrom interview of Albert
Einstein with Michael Arnrine. published in The New York Times, 23
June, 1946,reprinted in Nathan & Nordem, eds., Einstein on
Peace, 1955)

More recently, Hans Corell, Legal Counsel of the United Nations,

dedared: "Armç must cede to the law and, ultimately, to the
judge's robe." (Opening Statement, U.N. Congress on Public
International Law, New York, 13-17Mardi, 1995) in response to
the World Health Organization's request for an advisory opinion,
the InternationalCourt ofJustice is respecWy urged to
endorse Mr. Corell'swords and to affirin the illegality of the use
ofnudear weapons in arrned conflict. UniicdNations GcncralAsscrnblyRcsoluiioiiswliiclicoiicluclcthathc iiscof nuclcnr
wopns is n crimc againsiIiurnnnityoindviolaliorofiiie1J.NCharter.

~csolition 1653 (XVI). ~cc1;ualionoit ilic l'rnhil~iiionof'ihc Use of Nttclear and
ThennonuclearWcapoiis, U.N.GAOK 161hSesr,Siipp.No. 17,nt4 U.N.Doc.A/5100
(lsall.

Rcsoluiion on the Non-use of For<*.in Iritcniaiion.ilRclntioiis and Pcrmancnl
Prohibitionof theUse of NuclcnrWeapons. (;.A.Res 2936. 1J.N G.AOR. 20th Sess..
Supp.No. 31, nt 5,U.N.Dnc. hm730 (1972)(72 inJivor. 4 opposcd,41 abstentions):

Rcsoluiionon Non-uscofNuclcorWeaporisiiiidI1rcvciiIii?oiif Nuclcnr Weapons.G.A. :
Res. 331710,33 U.N. GAOR,Supp.No. 15, ;i48. I1.N.Doç. Al33145(1978) (103 in

favor,18opposed, 18alistcntions);

ResoluiionoiiNon-uscof NucfcarWc;ilionsaiidPrcvciitioiiof NitclenWnr. G.A. Res.
34/83G,34 U.N. GAOR,Supp.No.46,nt 56, U.N. nec. Al34/46(1979)(112in fnvor.
16opposcd, 14 nbsicntions):

ResoliitioironNon-uscof Nuclex Wc;il~oii iiirI'rtrvoitiifNucle;ir Wnr.G.A. Res.
35/152D,35U.N. GAOR, Supp.No. 48.al69, 1i.N.[>ocA/!5/4R(1980)(113in favor.
19opposcd. 14nbstcniio~is);

Resolutionon Non-usc of NiiclcnriVc~pon!ai~cJ'rçvcriiioifh'itclcnrWor.C.A. Rcs.
36/921.36 U.N. GAOR. Siipp.No. 51.ni64, U.X. Iloc. A/16/51(19x1) (121 in fnvor.
19opposcd.6 nbslcniions);

Rcsolution.371100CConvciriioiion tlic I'roliiliiiiftlillsc of NiiclcnrWcnpons,
U.N.GAOR Supp.No 51 ni X3,(1982)

Resolution 38/75. CoiidcmriniionorNiiclc:irWnr. ll.N.GAOR, Supli.No. 47 al69
(1983).

Resolution39163H.Convcniioiloiiflicprohibitioiiufthe ~issof nticl~?rwcnpoirsU.N.
GAOR, Supp57 nl 70,(1984).

Resolution40/151F.Convcnlionon U,cproliil>iiiriflicuscofniiclcw wcapons.U.N.
GAOR,40th Sess.,Supp. 53ai 90 (19RS).

Ruolulion 411601;.Conventionon ih~.prohikitionor tlir!ifseor r,iiclcarwcapons,U.N.
GAOR.41si Sess. Siipp.53 at 85.(19RG)

Resolution42/39C,Convcntionon the pr~liibitioiiorilic liseof i~uclearwcnponU.N,
OAOR, 42nd Sess.,Supp.no. 49 :itRI.(1987). Appcndix A
Pngc2

Rcsolulio43nGE, ConvcniiononIlieProliibiiionofUieUseofNuclcar Wcapons,U.N.
GAOR, 43rdScss.,Supp:NO. 49ai 90, (1388).

Resoluiion441117C, Convciiiioiiilil'rnliibiiioriliUsc of Nitclcar Wwpons,
U.N . AOR44Tll Scss., SuppNo. 4Y üt80,(1989).

Rcsolulion45/59D,Convcniioini1t11proIlibitionof LIicusc of nticlcz wcUIN.s.
GAOR 45thScss. Supp.No. 49ai71(1990);

Rcsoluiion46/37L),Cocivcntinnonflic~ii'nlinillic uscofnuclcer w+pons (1991).
U.N. Doc. GN8307 al 127,

Rcsoluiioii47/53C,Çonvcntioii onilicpruliioil'ilicuscof nuclcnrwcopons(1992),
U.N. Doc. GAIS470nt 112(1993):

Resolulion48/76D,Conventionor:iticproliihofiiliuseof nuclur wcapons(1993),
U.N. Doc.CiN8637 ai 124(1991): RESOLUTIONS STATING NUCLEAR DISARMUiENT OR
THE ELIWINATION OF NUCLEAR WEnPONS
ns n GOAL
(Lintcd in r:iironolo~ical order)

vent of a commissiori to ,~~.w~iththe rirohlems ra ised by
fhe discoverv of atomic enerav, C.A. Hcs. 1, l(1) U.N. GAOR at 9,
U.N. Doc. A/64 (1946) lunanimousi..

~~DLEB aovernina the qcnernl r.i:c~ul+tion and reduction O
Armamentml GA. Rer. 4 1(2)ll.~. GAOR at. 5 IJ.N. DOC A/64/~dd.f
(1946) luannimousl.

Re~ortS of the Atomic Enerav c!o~iim-i.,ss-, G.A. I<cs. 191, 3 (1) U.N.
GAOR at 16, U.N. Dot:. A/810 (1948) .,un. favnr = 6 ouuosed - 4

prohibition of the atomic wearqn i*iicLr5!rluc.t&r.by one-third of the
armaments and anne? forces .off-ti~.perm;iiicnt_m~~c.fs-of the Security
m, G.A. Res. 192, 3(ï) U.N. GAOR at 17, U.N. Doc. A/B10

(1948) j43 in favor - 6 opp,os_rrf:..1 ?mention).

&sentiaïs of Peace, C.A. Re%. 290, 4 U.N. GAOH at 13, U.N. Doc.
A/1251 (1949) 153 i' favoi - 5 01'1pusedd 1-abstentio.)

Peace fhrouqh deecis, G.A. Re:;. 380, 5 1J.N. GAOR at 12, U.N. Doc.
A/1775 (1950) 150 in favor., - 5 opposr.<'..-l&s.t.entionl.

International control of atomic r!nc?rcjy,C.A. RCS. 436, 5 U.N. GAOR
Supp. (No. 20) at 80, U.N. Uoc. A/I'I'I5 (1!150) (47 in fayor - 5
npp 1. .

Requlation. 1imitation .a~J>l;tn_c~~!-.rccl~~v nrl-..srmed forces
and al1 armaments; internation;*].-m.t.rol of atomic eneyqy, C.A.
Res. 502, 6 U.N. GAOR Supp. (Nci. 20) at 1, U.N. Doc. A/211.9 (1952)
142 in favor - 5 0~~09ed - 7 irbl;t.@iitiori:;).

Reauletion. limitatio-~. ancl bal;~.nS.qciredxL.l:on- of al?, arn~ed forces
and al1 armaments: report 0.f t~~_~i::arm~m~nt Commii;siqn, G.A. Res.
704, 7 U.N. GAOR Supp. (No. 20A) al. 3, U.N. Doc. A/2361./Add. 1
. (1953) (52 in favor -.-5 opi~osccl ,--~,-~~~hstentioris) .

Requlation. 1imitati.oii -~i1dmi~~r.d~r.diict iopa. al2 armed forces
and ail armaments : rePorC,,pf the-Uisanannt Commission, G.A. Res.
715, 8 U.N. GAOR Supp. (No. 17) at 3, U.N. Doc. A/2630 (1953)
in favor - none op~osed - 5 abstentionsl.

Reaulation. limitatig~ ancl bal~ii~~?~~~~:r!rl~~c.t~~..o ar.eallforces
and al1 armaments: report-of thc ui::;:~i~iiii~i!!~~t.Com!nbio~i;Conclusion
of an iwnational co~ivcngio.n-_l+.i.:caty.) t--on,
armements and the prohibition uS~gom.ig.,)lydr.og-~!~. ~t-nd weapons

of mass destruction, C.A. Hes. 808, 3 u.N. GAOR supp. (NO. 21) at
119, U.N. Doc. A/2890 (1954) Iynanjinoul;). Declaration on the ~rohj&i.t3oii c!l-th_e use of nwar and thermo-
weauons, C.A. Hes. 1653, J fiU.N. GAOR Supp. (No. 17) at 4,
U.N. Doc. A/510D (1961.) .L>-s in t-var - -2-- opposed - 26
abstentim.

feration of nuclear wcanons, G.A. ~cs. 2028, 20 U.N. GAOR
Supp. (No. 14) at 7, U.N. Doç. A/GOl4 (1965) 193 in favor - none
- 5 abstentions),
wooB'=d

Question of convenhg ..a c...erer1r:c for .the purnose of siqninq a
Ion on the p-ro.h&_i.on~..oP--m.. use -of nuclear and
-1ear weapons, C.A. Hes. 21 64, 21. U.N. CAOR Supp. (No. 16)
at 12, U.N. Doc A/631G (1966) LOO in favor- none ou~osed - 3
pbetsntions)..

Conclusion of a convent-ion ,on the .pro!!iki-t..ion of the,.usc of nuclear
-, C.A. Res. 2289, 22(1) I1.N. GAOR .Supp. (No. 16) at 14, U.N.
Doc. A/6716 (1967) .[77 jji._Bafi- - nonc oppoc&-- 29 absLentionsL.

guestion of qeneqal and c-om~1p.t.r~di s~~rnwit., C.A. Rés. 2342, 22'(1)
U.N. GAOR Supp. (No. 16) at 15, 11.N. Duc. A/b716 (1967) (113 in
favor - mone 0pDO~ed - 1 pbsteiitioii).

Treatv on the Non-Proliferg<iuri of 1 1 r pi, G.A. Res. 2373,
22(2) U.N. GAOR Supp. (NO. 1bA) itt 5, U.N. Duc. A/G716/Add. 1
(1968) (94 in favor - 4 ii~)uur;.c~i- :!l-&.~t.t?~~t.ion:il.

Question of aeneral and comp1.ete di::iiL.iriamr!riG.A. Res. 2454 (B) , 23
U.N. GAOR Supp. (No. 18) at: 12, U.N. nec. A/7218 (1968) (109 in
favor - me ODPOsed - 4 abstcriripns).

merence of Non-Nuclear-Weapoy-.qtaT.~?::, L:.A. Res. 2456 (A) , 23 U.N.
GAOR Supp. (No. 18) at 13, U.N. Uri<:. A/721H (1968)
-.

Confarence of Non-Nu-c,l_ear-Weapoii :;-.av2es,G.A. Res. 2456 (R) , 23 U.N.
GAOR Supp. (No. 18) a 13, UN. Uor. A/lzlki (1968) j98 in favor -

oaoaspd - 16 abstentions),

Question of aeneral and co-mAet= disarmanic!r?t, G.A. Res. 2602 (E) , 24
U.N. GAOR Supp. (Na. 30) at 14, 1i.N. noc. A/'1630 (1969) Il04 in

Declaration on the Strenothe~iiriq of 1.nt.ernationa€ Security, C.A.
Res. 2734, 25 U.N. GAOR Supp. (NU. 28) ùt 22, U.N. DOC. A/8028
(1970) 1120 in-favor - 1 opg~çerl - l..~;~ti:;l:r:nt.ion).

Econornic and social conseq&gn.ce^: J ? armaments race and its
extremelv harmfuJ-.e.£fects on w-rld .r-.$r;çand .~;cicuritv, G.A. Res. 1
2831, 26 U.N. GAOR supp. (NO. 29) at. 35, U.N. [>OC. ~/8429 (1971)
LI11 in favor - 1 ouuosed - 3sbctentions].

W~rld Disarmament Conference, G.A. CS. 2833, 26 U.N. GAOR Supp.
(No. 29) at 4, U.N. DOC. A/8421, (19'71) lado~ted by acclama+ion\. m-conferencle, C.A. i<i?::2YïC1, 27 U.N. GAOR Supp.
[No. 30) at 15, U.N. Doc. A/873O (1972) 1105 in favor - nQne

pon-use of force in j-ati~~l, ..rclatiunsand permanent
gpm, G.A. Res. 2936, 27 U.N.
GAOR Supp. (No. 30) at 5, U.N. Doc. A/R730 (1372) (73 in favor - 4
- 6 abstentions)..

Qeclarationand estamnt ni a nuv.lc?;lr:frwne in South Asie,

G.A. Ree. 3265(A), 29 U.N. GAOR Supp. (Nu. 31) at 29, U.N. Doc.
A/9631 (1974) 1104 in fgv~, 1 ..u~l@ed. - 27 abstentions\.

geclaration and establi.shgeatof. a n&.'!.ior-tee Zone in South Asie,
G.A. Res. 3265(B), 28 U.N. GAOR Çupp. (No. 31) at 30, U.N. Doc.
A/9631 (1974) 196 in favor - -_-L?LJ~OS.~-~:~Gabstenfj&.

Economic and social consenuence- ..GE th, armqments race and its
extremelv harmful effects on wc>.r-1-ddpe ai.iccecurity., C.A. Res.
3462, 30 U.N. GAOR Supp. (No. 31) at.17, U.N. Doc. A/10034 (1975)
ted whout a vote) .

General and comolete disarmamen-t, C.A. Rer. 31/18Y C, 31 U.N. GAOR
supp. (NO. 39), Vol. 1, at 15, ll.N. Dot. A/31/39 (1976) L95 in
f avor - ne o~uoseci - 33 abstentiod.

Eeview of the implemantat-Lq'&-tl-ie çqr.~~me'dat.ioi ansd decisions
adoated bv the Generùl-hssenbl y,ai...i&:tentlisriecial session, G.A.
Res. 33/71 B, 33 U.N. GAOR Supp. [No. 45) at 48, U.N. Doe. A/33/45
(1978) 1103 in favor -.18 ODDOS~C~ -,..1abstentions).

Çeneral and con~lete disamam&, G.A. HcE;. 32/87 G, 32 U.N. GAOR
Supp. (No. 45) at 55, U.N. Uoc. A/32/45 (10'17) 1134 in favor - 2

comulete disarmament, G.A. Res. 33/91 C, 33 U.N. GAOR

Supp. (No. 45) at 60, U.N. rmc. A : (1978) 11_27 in favor - 1
- 10 abstentionsl.

al and com~lete disarmamg-, G.A. Kr.$: .3/91.If, 33 U.N. GAOR
Supp. (No. 45) at 62, U.N. Doc:. A/33/4!, (1978) 1108 in favor - LQ
egDO='d - abstentions) .

Review of the implementatioyof th?-~ommenrlations and decisions
adoDted bv the Gene-rmbly aJ-J&-.,tnetli sp-, G.A.
Res. 34/83 J, 34 U.N. GAOR Supp. (No. 46) at 57, U.N. Doc. A/34/46
(1979) j120 in favor : 2 .o.pp-cJ - ~ubst&onA.

Conclusion of an inte~.1~c~ic7n~~c,onv.~~o~n tu assure the non-
buclear-weauonStates aq$Ln;j;.Aig ur;,c~~~threat of use of nuclear
weaoon8, C.A. Res. 34/85, 34 u.N. GAUH Supp. (No. 46) at 59, U.N.
Doc. A/34/46 (1979) -CL2&in i'avo~~~~e~sed - 22 abstentionsl.
G.A. Res. 35/152(D), 35 U.N. GAOR Supp. (No. 40) at 69, U.N. Doe.
A/35/48 (1980) (132 in..favo~ .-13 .opposcd - .Artabstentionsl. conclusLon of an jntonat-. ii.>rl-convent io'&.,.?sSure non-nucleac
weaoon States aqaLnst. the ysq..&c-.tf~re&-c~y~e of nuclear weauong,
G.A. Res. 35/155, 35 U.N. GAOR Silpp. (NO. 48) at 74, U.N. Doc.
A/35/48 (1980) (17.1 i,~, fayg- - rio?)~-oppost:.~ - 24 abstentionsl .

peview of the im~lcmcntat iq!jol'. thc: r~comm-endations and decisions
gdoated bv the General -&s.~.emhly at its- tenth soecial session
(NUQEAR WERR3Nç IN WA ASm), G.A. Res. 36/92 E, 36 U.N. GAOR SUpp..
(No. 51) at 62, U.N. Doc. A/:i6/51 (1YU1) cl-
- abstentions]-.

Beview of the implcmentati~!-si the? i:g,-omm-
adouted bv the (;enera-l-Aegkly q,\,j.tstcnt-h suecial session (NON-
UÇE OF NUCLEA REAKlNS AND PnFNI~NS'lOONF NUCLEAR WWWS ) , G .A. Res . 36/9 2

1, 36 U.N. GAOX Supp. (No. 51) at 64, lJ.N.Lloc. A/3G/51 (1981)
in favor - 19 ot>po$;ed -.6 ,ibstcntiq~A.

Conclusion of effective! jiit.-i:ne~ir>n.-l arranqe~ents to assure noO-
nuclear-vea~on S-tatcr aqains1 Jpe ~is.c_---thr-
weauons, G.A. Kes. 36/95, 36 t1.N. GAO[< Supl]. O 51) at 68, U.N.
Doe. A/36/51 (1381) 11411 iri-ll;~vur - norie.,oppo5ed m l - .

peview of the imnlcrniintati~~~. 01 :.lie~:(1c~oinmendatioi1~
ado~ted bv thri>ene~-.Asr;-~~~ly-.t t.: te!-ith r,aecial session
(HUCCEAR mNS IN ALLASFECiI), G.A. Itc.;. .37//U C:, 37 U.N. GAOR Supp.
(NO. 51) at 60, U.N. Uoc. A/1-1/5:! (l!JG2) .(.:].ôin favor - 19 oouosed
- 9 abstentionsl.

Review of the imp.1-cmeiitatio!~ -(:ilthc y?cg~mcndations and decisions

ado~ted bv the G-enerai. As-e~ibly d!.--itts. tenth s~ecial session
(-BITION OF T1iENUCIFN? NIr'Jl'I-WI.AiUN), G.A. Res. 37/78 E, 37 U.N.
GAOR SUpp. -(No. 51) at 61, U.N. iloc:.A/37/51 (1982) Je1 in favor-
14 apoosed - 52 abstentions-1.

Review of the impl em~ntat i0.n of. -Qc,.recomme,n-dations and decisions
adouted bv the Gener~~-fisr;en~Q~y- at . its tenth saeclal session
(-ATION OF '11E RECClFfi'LViTJO h'S IIEClSIONS OF ?HE TEWEi SPECIAL
SEçsIari), G.A. XeS. 37/70 F', 37 U.N. c.;AOHSiipp. (No. 51) at 61, U.N.
Doc. A/37/51 (1982) lm. iri.ravor.,.- nme-oppused - 12 abstentionsl.

Review of the implementati:~,,.of t.lir.~.,'.ecommcnda atdio nscisi~ns
adooted bv the .~eiiera~Ar:,s,c?~bl)~ at. j,kg.<eiith special session (Na-
USE OF NUCLEAHWE4WNS AND mtFSEWi'l(JN OI.NUC'LEARWAK) , G .A. Ros . 37/ 78 J ,
37 U.N. GAOR Supp. (No. :I) ùt. 64, U.N. Doc. A/37/51 (1982) 1-
favor - 19 opposed - 15 ab:;tcntiqnr;l_.

-onclusion of cffec~i~q,.-~~ter.iiq~'n;il armpernents ~- assure non-
nucl-ar-weapon St.a(:i:::aqain~t tncl u>xAjr ,t-hl-catof use of nucledc
weaDons, G.A. Rcs. 3ï/81, 3.1 11.N. GAOH Supp. (No. 51) at 66, U.V.
Doc. A/37/51 (I.l~ti%).( 144 Savorr-: ,riuiie ..om~cd 7 3 abstentionsl.

General and complete .d_is-r-=efi& (PROKLBïTION OF ?HE DEVEL6-,
-- ...., ,. pRDXClTCN, SIDCKPIïJNG Ah?) USE OPRNYlOLCCjICAT ,'EWWS), G.A. RES. 37/99
C, 37 U.N. GAOR Supp. (No. 51) at 77, 1l.N. Doc. A/37/51 (1982)
oted without a vote)..

General and comalete disarmamcnt (RnJIm OF' AND SUPPïBîDii''ID 'IFIE
-TVE SNDY OF 'IHE ~fSl'l(1Ol? NIICIi3Vi-Wm-FREE IN AIL ITS
AS-), G.A. Res. 37/99 F, 37 U.N. GAUH Supp. (NO. 51) at 79, U.N.

Doc. A/37/51 (1382) (141 in faxor -y -1.oppozd - 7 abstentionsl.

Review and imuleme~ta.~~on of ~e..Conclu.clb!D iqc2menm
al Session of the General.Asr;r.?mbl (yREEZE ON hm WEAFONS ,)
G.A. Res. 37/100 A, 37 Il.N. GAOR Silpp. (No. 51) at 82, U. N. Dac.
A/37/51 (1982) f122 in favpr..:~r;.~?ppose d 6-abstentionsl.

Review and imulementation-of ttie.Cori~lu(JiiiDournent of the Tvelfth
Suecial Session of the Genaral Assembly. (NUCLPAR-ARiLS mE), G.A.
Res. 37/100 BI 37 U.N. CAOR Supp. (No. 51) at:63, U.N. Doc. A/37/51
(1982) 1119 in favor 1 17 ODDOF.~~,~..5~ ab-tontlonsJ-.

Review and inulemcntatj one zhe Con~liidinq .Doct!meii of the Twelfth
1 Session of the General Ar.~..ernhly(CONVENi'IOON THEFRûHIBlTION

OF ?He iJSE OF NU= WEAFONS), G.A. Xc!;. 37/100 C, 3.1U.N. GAOR Supp.
(No. 51) at 83, U.N. Doc. A/17/51 (ï9UZ) 1317 in. favor - 17 oa~osed
abstentions \.

ConClusion of effective jjtgrnatiu!?al-.$j:~geme~t~ to assure non-
nucleat-wea~on States aga izst tl!.y-c.-r~~-.-thr eatfuse of nuclear
ml G.A. RCS. 38/GR, 38 U.N. CAOR 5i1pp. (No. 17) at 53, U.N.
DoC. A/38/47 (1983 ) Lo_l,i.'..fav&t-=,...12oioppqscxf - 6 abstentionsl.

Review and Imu~e-ng.~tic)n oI;Jhe Conr:lijd.i:ig.-pqcum aentthe Twelfth
S~ecia~ Session of the General Asr,eiii vb(I<EELZ ON NUCIEAR WEAFONS )
C.A. Res. 38/73 B, 38 U.N. GAOR Supp. (Nu. 47) ùt 64, U.N. Doc.
A/38/47 (1983) (.~.2-1,.~~,.f..-or15 vppn:;i.iù.-.7 abste,ntions) .

Review and imp1ement~~'on of t.he Conc'luclinU q.uc~imeiaitt the Twelfth
Suecial Session of the Gcneral Ascembly (CONVI~I'IONON TTG FTG-UBITION

OF !ME USE OF NUCLFAR mNS) , G .A. Rer,. 3R/73 G , 30 U.N. GAOR Supp.
(No. 47) at 67, U.N. Doc. A/38/47 (1983) ,/126 in favor - 17 ou~osed

CwOmdnçionr, C.A. Izes. 38/75, 38 U.N. GAOR Supp.
(No. 47) at69, U.N. DOc. A/38/47 (1983) 1-d
34.

peview of the irnulementa~i..o gn the r~!~.:!~fiij~inr!a,and decisions
adouted bv the Gener~J..Asso?b~y at. its tenth s~&~lsessi~n (NON-
USE OF - WEARlNS AND ION 01'NLICW WAR), G.A. Res. 38/183 B,
38 U.N. GAOR Supp. (No. 47) at '13, U.N. Doc. A/38/47 (1983)
bn favar - o~~osed - 15 abstentions_). mview of the fgp_leegtaÇj 121.rrc.t;lii.-rc!.:.omnq@tions and decis-a
adopted bv the Gencral Assgmk.1.y. at ït.s .t+h ~PeCiai s2ss.h
(NUCLEAR W!3X% Di W iGPEC'IS), G.A. Re::. 38/18) D, 38 U;N. GAOR
supp. (No. 47) at: 73, u.N. ~uc. A/38/4;1 (1383) 1108 in favor - 19
oo~osed - 6 abstentions) .

Revi~w of the -lmpl gmefiGt jo_n-0.t tl!~. -~:~rio_mmy?_n~ati~ns..~~d~d~e~~~s~~
adopted bv the General Assembly at i.t.5.onth spe~ial session

(1-ON OF ?HE KE.müAï'lON:; ANL,UK1510NS OF ?HE TWl% SPECIAL
SEEÇICN), G.A. Res. 38/183 M, 38 1J.N. GAOR Supp. (No. 47) at 79,
U.N. Doc. A/38/47 (1983) 2.. . . fav,o ..=..-.2- oppoeed - 14
abstentionsl.

Review and im~le,,m~nt~tjo.n-gf: jJic: Cl.>nqliidin~.~..Qu~:umentOof-t.e Tvel f th
Speciai Session of the Generai Ac'.s(tl~ik~(FREF;Z EN ---ilFAFC%),
-
G.A. Res. 39/63 G, 39 U.N. GAOIl :;iipp. (No. 51) ot 70, U.N. DOC.
A/39/51 (1984) .[12'/ in f avor - 11 oppp-e-c! .y -1L-~bstentionsL. "

Review and i_mplementati~n_.uf t.tic.. C;r.>ncludinD.g.~urnent of the Twelfth
Special Session of the C;ericiralA:;:;<!iiit?l(CoNVJ~NI?ON ON PROHIBïTïN
OF ?HE USE OF NUCLEAR WDJQNS), G.A. 1 . :ic)/f;RH, 39 U.N. GAOR Supp.

-No. 51) at 70, U.N. Duc. A/:il)/!sl.(.i.!lu4)llz&iri favor - 17 oooosed
5.

Review of tl~e-&!. cmcntation of. .1:1,'r!cominendationr.._a.nd. decisione
adooted bv tuenerùl Ac.~gni;~Ly. .3> -_itr;-&nth suecial session
(NU- Wï%FCiiS IN W ASPECiS) , G .A. ]<es. 33/148 C, 39 U.N. GAOR
supp. (No. 51) at 77, U.N. »oc. 1 1 (1984) (10). in favor - 19
-ad - 13 abstentionsl.

Review of the implcmcnt~~~.u.n.~f..~l:i :crnnienc!atlonr;-agd decisions
adopted bv th-@. General Az,seni~~ly at i t!; t~~h..sp.e~jal sessioj (Na-

USE OF NU(IIEAR IVïS ANI) IIaVI~NI'Ia401.'i4l:C'llWN() , t. A. Res. 39/148 D,
39 U.N. GAOR supp. (NO. 51) at. '18, 11.14.noc. A/39/51 (1984) 1101 in
f avor - l9 opposed - 17 absLcn~iviir;).

Review of the--i-m~~e~n$<...~io~.. 9.1t.i!ci,rcconinien('.lt~ons and decj2-Lot-
ado~ted bv the Genera.1.-Assemh1.y a its .t-n_th s~ecial session

(CBSATICN OF THE MICIEN<-ARM1IVILX AiW NUCW DISARMAMEN, T) G. A. Res.
39/148 K, 39 t1.N. GAOR Siipp. (firi.!:)J) at 83, U.N. Doc. A/39/51
(1984) 1124 jn Pavor..:..J.~.~gp~~efl. .~j~ztentjons) .

~enera1 and cornnl~&ed_i~,~-~mmgfi (NUCU:Ai?-WUdQ4 FRIXZE) , G.A. Re6 .
39/151 D, 39 U.N. GAOR Supp. (No. !,1) at 91, U.N. Doc. A/39/51
(1984) 1104 in favor - 18 opposeci - R ahstentionçl.

Conclusion of effrrc:t.iv~? int.c:rnat.jc?n;il.n~--rg~qements to assure non-
nucleac-vcapon stat-es. qrjaiiist. the usa or threat, of gss-of nucles

weaoong, G.A. Res. 40/06, 40 U.N. C;A01< :;u)J~. (Nu. 53) at 71, U.N.
Doc. A/40/53 (1985) .(142 111 l';%vol-- r!nii~opp-ed - 6 abstentio-.

Bilat~ral nuclear-arm~..g.eqr1f ~~~i:<1t .A. Res. 40/18, 40 U.N. GAOR Supp. (No- 53)abstentionsk. Uoc. A/40/53 (1985) (76 in faVOr - none
~~IJosed

Review of the imolement,atLon c~the recomrnend~tionra .nd decisions
gèouted bv the Genezl Assembly at i.t&&enth s~ccinl session (NON-
USEOF NUQEAR WE4ïWNSANü ~1'1ON OFNUCLUUt WAR), G.A. Res. 40/152 A,
40 U.N. GAOR Supp. (NO. 53) at 92, U.N. DOC. A/40/53 (1985) (123 h
f-entions1 .

peview of the im~leme'>at.j.oo nf th? r~~smmenùationsand decisions
gdobted bv the Ge~,eralAc:sembly at its- ce-
(BI- tiiJUEAR-AiüAND SPACX-MC; WXTP1ATlONL; ) [;A. Res. 40/152 -B,
40 U.N. GAOR Supp. (No. 53) at 93, U.N. Doc. A/40/53 (1985) (107
favor - none opposed - 40 abs~entioii~;~.

Review of the j.m~l.ernentat~_4~~-~~,tl~e r;c~n!~cl'tions and declcions
gd0Dted bv the General Assembly ...&t.-.As,tantils~ecial session
(NUCLPAR WERPONÇ PI ALC A5PECIS), A IZes.40/152 C, 40 U.N. GAOR
Supp. (No. 53) at 43, U.N. Doc. A/10/53 (1305) 1117 in favor - 19
OBBoaed - 11 abstentions)-.

Review of the impl~mcnLat..ioii. -Oi,c.~emme~datio aiisdecisions
adouted bv the General-.-Ass-mblva$,-it.- tenth s~ecial session
(-'ITON OF THE NUCEAI7 Ai+" IinC.:i?II) PPJCWDISARFMENT ) G.A. Res .
40/152 P, 40 U.N. GAOR Silpp. (NO. !>:j)a 102, UN. Doc. A/40/53
(3985) JI31 in favor - iG.,qppg3-r.-ii2abstentions.).

Conclusion of effective ir!t!;r!??-t.ia .ona-arisemgn-tsm
nuclear-weapon stato aqirjnr, ?he ~i~.q.-~r-.&lio reautse of nuclear
-, G.A. Res. 41/52, <l U.N. GAOR supp. (No. 53) at 67, U.N.
Doc. A/41/53 (1986) (149 f$y~----..!:onoppu::c?c- 4 abstentions).

/ Çeneral comvlete disarmame-- (NUCLLNIDISARMAMENT), G.A. Res.

.' (1986) Wted1 U.N.without a vote)..No. 53) at -- , U.N. Doc. A/41/53

G.A. Ree. 41/86 F, 41 U.N. GA017Siipp. (NO. 53) a -- U.N. DOC.
A/41/53 (1986) 1130 in favor - 1.5.opIIc?c,-e.lahst_entionsL.

pucleat-wea~on States ùsaijst:ri~Et!.c.xor-thrcat ofne useaof nuclear-
yeapona, G.A. Res. 42/32, 42 U.N. GAOR Supp. (No. 49) at 66, U.N.
Doc. A/42/49 (1987) .(lf;lin favor - nuri(;.-nppow ù 3 abstentionsl.

Eeneral and complete disarmament (NJCTFAR DISA-) , G.A. Res.

42/38 H, 42 U.N. GAOR Supp. (No. 419)a't 7.7,U.N. Doc. A/42/49
(1987)1Ado~ted without avotel.

Conclusion of effective j-n-cernan Lii;ilar.t;anoements on the
strenqthenina of the ~.ecurity..of-no!?-nuc1ear:wca~o States asainst
the use .or threat ~f~y.~e.~-~,iicl~~weapo~~, G.A. Res. 43/68, 43
U.N. GAOR Supp. (No. 49) nt 69, U.N. Doc. A/43/49 (1988) 1117 in Régistrar
Lnrernaiional Court oi Justice

Peace Palace
2517 KJ Tne Hague
The Xetherlands

Dear Registrar,

Enciosed please iind two Responses to Submissions of Other States by
Lie ReFublic of Xaurii Li the case conceming TheLegai;in/of the UseofNuclear
Weaponsiry Statesin P.moli Conqict and one Mernorial inthe case conceming
Lie Lega!ityojthe UstandThreatof UseofNuc!carWeapons.

1understand that the Court has set the date of 30 October as the date

for khebeginnig of oral hearigs in the two cases.1would like permission to
use a number of witnesses. in the case concemg Tho Lega1;ityof the Useof
'iuc!egrWeapons by a StateinAmed Conjic: iivouid Lketo put on the stznd a
Dr. Frank Banaby who is a nuclear physicis: oi re?u:e. 1would aiso like to
Dut on the stand Lhe Mayors of Hiroshima and Xagasaki. in the case
concering the iegniiiy ofiiie Esouni ThreOJL'senjXilciezr Weapons 1wouid
lihe to p!ace on the stand ~Is. Hiida Lin:, iorrner blinster of Health of

Varsuatu, Ms. Ligon Ehiiang who h2s experiencei Lieefiects of U.S. nuclear
::sis during Oueraiion Bravo or some other wornan kon chePacific who nas
exaerienced those effects and Ms. Claudia Peterson who has expenenced the
èffectsoi nuclea; tsetinthe Unireastates.REPUBLICOF NAURU

RESPONSE TO SUBMISSIONS OF

OTHER STATES

Very few of the submissions presented by Statesin the case conceming

the Useof NirclearWeapons bya State in Anned Confliaddress the legal

arguments that we have offered to show that the use of nuclear weapons is

unlawful but the submissions make other points. One point made about the
legality of the use of nuclear weapons is that the issue is abstract and

theoretical.isdifficultto seehow the question can be considered abstract. It

is reaiiyuite simple. The General Assembly has asked the question "is the

use or threat of use ofnudear weapons in any circumstances unlawful"? The
World Health Assemblyhas asked "isthe use ofnudear weapons by a Statein

armed confiictnlawful"? Even assuming that the question is abstract, in the

Reply of the Court to the Request for an Advisory Opinion inStatilsof

EasteniCareliCase,l the Permanent Court ofInternationalJustice said:

The question put to the Court is not one of abstractlaw,
but concems directiy the main point ofthe controversy
between Fiand and Russia....

As a result the Court refused to give an advisory opinion in that case.

Clearly if the Court refused to give an advisory opinion because the question

was notsufficiently abstract, then it is appropriate to give advisory opinions
when an abstract question oflaw is asked. Perhaps one reason for feelingthat

the question is abstract is the difficulty of determining who has standing to

request the opinion. But this is a request for an advisory opinion and

questions of standing are irrelevant. Perhaps the argument can best be

[[192 3C.I.J.Rep.Ser8,No.5,p.7 atpp. 28-29.understood by looking at the written statement of the Government of

Fdand:

.the legality ofthe use ofnudear weapons can only
be determined in respect ofthe circumstances of the
case,.it foliows that in the absence of a concrete
factualsituation,the courtwould itselfbe required to
entertainvarious hypotheses about situations inwhich
nudear arms might conceivablybe used. That isto Say,
the Courtwould be required to speculate with a very
largenumber ofpotential situations, induding,

for example, situations of first useand counter-use,
various types ofiimited useand practices oftargeting, the
Court would be required to analyze different types of :
nudear weapons and entertainhypotheses about
the factual consequences of their use. AU thiswould
require analyzing extremelycomplex and controversial
pieces oftechnical,strategic and scientificinformation.

It should be pointed out that the difficulty foreseen by the Goverment

of Finland can arise only if the Court decideç that not al1uses of nuclear

weapons are unlawful. We submit that al1 uses and threatç of use are

unlawful and that the Court isnot required to distinguish among them

Secondly, the nudear weapons owning Statesimagine that the majority
of Stateshave consented to the legality of the use ofnudear weapons because

of their participation in such treaties as the Non-Proliferation Treaty3. It

should be pointed out that the Non-Proliferation Treaty is not reaily relevant

to this case. The Non-Proliferation Treaty appears to validate the possession

of nuclear weapons. Even thugh we believe that the possession of nuclear

weapons is a relevant issue, it is not a relevant issue in this case. This case is

about the legality oftheIlse of such weapons. Secondlyit is wrong to imagine

that the majority of Statessupport the legality of the use and threat of use of

2Page4.
729U.N.T.S.161(1968).nudear weapons. States are aware that the existence of nuclear weapons is a

fact of life.Given that they are a fact of Me,whether they are lawfd or not, it

is essential that their use, manufacture, possession and testing be regulated

and controlled. Therefore States have participated in negotiations and

agreements to regulate and control their use, manufacture, possession and

testing. But the position of most States can be gleaned by the fact that a
majority of Stateshave voted in the United Nations General Assembly and the

World Health Assembly to request these advisory opinions and a review of

the submissions made to this Court in thi sase wili show that the majority of

States oppose the legaiity ofthe use ofnudear weapons.

A number of States have expressed a fear that a decision in this case

wiii somehow hinder negotiations on the extension of the Non-Proliferation

Treaty, on disarmament and on a test ban treaty. It is difficulty to see how

negotiations wiii be hindered if this Court decides that the use and threat of

use of nuclear weapons is uniawful. Negotiations can only be enhanced if

they are carried out in the knowledge that the use and threat of use of these

weapons is uniawful. It is a short logical step from a finding that the use and

threat of use of these weapons is unlawful to a belief that possession,

manufacture and testing ofthese weapons is thereforepointless.

The only argument that we made that has been addressed is the

argument that the use of nuclear weapons contravenescustomary and treaty

prohibitions against the use ofpoisonous weapons. The argument seem to be

that nudear weapons are not specifically poisonous weapons. They kill by

other means as well. In the view ofthe United States:4

Thisprohibition was estabiished with specificreference to
projectilesthat carry poison into thebody of the victim. It was

4 Written Statement ofthe Govemment of the United States ofAmenca, p. 27. not intended to apply, and has not been appiied, to weapons
that are designed to injure orause'desmction by other means,
eventhough they may also aeate toxicbyproducts. For
example, the prohibition on poisonweapons does not prohibit
conventional explosives or incendiaries, eventhough they may
produce dangerous fumes. By thesame token, it does not

prohibit nudear weapons,which are designedto injure or
causedestructionby means other thanpoisoning of the victim,
eventhough nudear explosionsmay also aeate toxic
radioactive byproducts.

The fundamental flaw in this reasoningisthat it equatesradiation with

the pureiy incidental toxic fumes of incendiaries and explosives. Nuclear
weapons killin three ways, blast, heat and radiation5 .Of these three ways,

radiation is the most persistent killer. Victims of blast and heat are usualiy

killed in the first seconds of the explosion Victimsofradiationmay take days,

months, years, even decades to die. The radiation effects of nuclear weapons

which consist of the transmission of gamma rays, neutrons, beta partides and

some alpha partides, are very similar to the effects produced by chemical

weapons as opposed to conventional high explosive weapons. In 1979-80,
thirty-five years after the bombing, 2,279 names were added to the list of

deaths ofic~lly attributed to the delayed radiation effects on victims of the

"little boy" bomb that was dropped on Hiroshima. In 1983the Est of deaths

from radiation in Hiroshima totalied 97,964.

A study prepared by the United States Department of Defense and the

United States Department of Energy had this to Sayabout nudear weapons:

..there are several basic differencesbetween nudear
and high explosive weapons. ..Fourth, the nudear

explosion is accompanied by highly penetraüng and

Rumble, ThePoliticsofNuclear Defolce (1985)pp. 130-7;EffectsofNuclear
Weaponson Healthand Health Semices (World Health Organisation 2d ed.
1987) pp 9,15: Tone (ed.) ,TheEffects ofNuuclearWeapons ( 3d ed. Prepared
and published by the United States Defence Department 1977). harmful invisible rayscaiied the "initial nudear
radiation."Finaiiy, the substances remaining after
a nudear explosion are radioactive, emitting
similar radiationover an extended penod of tirne.
This is known as the "residual nudear radiation"
or "residuairadioactivity".

Figure 1.02is labelled "Effectsof a nudear explosion". The effects listed

are "blast and shock, "thermal radiation", "initial nuclear radiation" and

"residual nudear radiation". 6

Concerning the harmfui effects ofradiation,the book says :7

The had effects ofnudear radiation appear

to be caused by the ionization(and excitation) produced
in the cellscomposing livingtissue. Asa result of
ionization, some of the constituents, which areessential
to the normal functioning of the ceiis, are altered or
destroyed. In addition, the products formed mayactas
poisons.. mong the observed consequences ofthe action
ofionizing radiations on cells are breaking of the
ciuomosomes, swelling of the nudeus and of the
entire cell,increase in viscosity of the ceii fluid, increased
permeability of the ceii membrane, and destruction
of cells. (Emphasis added)

In total the book devotes 136pages to "initialnuclear radiation" and

"residualradiation and fallout", evidence that at least two Departments of the

United States Government consider the radiation effects ofnuclear explosions

to be more than incidental effects.

Glasstone and Dolan (eds.), TheEffects of NuclearWeapons (3d ed. United
States Dapartment of Defense and the United States Department of Energy
isn) pp.1-3.
Ibid. atp.575. The fact is that most nuclear weapons are deployed in part to utilise

the destructive effects of radiation andfaliout. The neubon bomb is a

weapon specifically designed to kill by radiation so that human beings are

kilied whiiebuildings and otherstructuresare left standing.

There are five main arguments supporting the legality of the use of

nudear weapons. The submissions do not make al1those arguments. But they

may be made subsequently. The arguments are:

(a) There isno specific treaty making the use of nudear weapons

unlawfui.

(b)Nuclear weapons are justified by military necessity.

(c)Nuclear weapons may lawfully be used in retaliation.

(d)Nuclear weapons may lawfully be used in self-defence.

(e)It is possible to invent a scenario where the use of nudear weapons
would be lawful.

We wiil consider these arguments one at a the.

(a)There is no treaty specifically banning the use of nuclearweapons

The answer to the argument that there is no specifictreaty banning the

use of nuclear weapons and that therefore they must be legal isfound inthe

Brownlie, "Some Legal Aspects of the Use of Nuclear Weapons" (1965)14
ICLQ 437,445.Martens clause of the Preamble to the Nth Hague Convention of 1907

Conceming the Laws and Customs of War on Land. Martens was a leading

member of the Russian delegation to the Hague Peace conference. The clause

says:

Until a more suitable code ofthe laws ofwar
can be drawn up, the high coniracting parties deem
itexpedient to deciare kt,in casesnot covered by the
rdes adopted by them, the inhabitants and
thebeiligerents remain under the protection and
governance ofthe general prinaples of the law ofnations,
denved from the usages established among avilised
peoples, from the laws ofhumanity, and fromthe

dictates ofthe public conscience.

This telis us that a complete answer to the legaiity of nuclear weapons
cannot be had by a study of treaty law alone. A specific treaty rde is not

required. If a weapon or its use violates the dictates of the public conscience

and the laws of humanity, then it is certainly a violation of the Hague

Convention.

We might Say that the United Nations General Assembly

Resolution is redundant when it asks the Court to consider whether the use

and threat to use nuclear weapons is unlawful. Threatening is an active and

destructive use ofnudear weapons. If 1hold agun to someone'shead and Say
"if you don't giveme aliyour money 1 will blow your braim out",isthere any

doubt that 1am using that guneven if 1do not actualiy pull the trigger?

There is a more sophisticated version of the argument that thereisno

specific treaty banning nuclear weapons and that version is that there is

neither a specific treaty nor a specific rde of customary international law.

International law recog~ses that legal effect stems from more than treaties.

Article 38 (1) of the Statute of the international Court ofJustice is frequentlyrecognised as an authoritative statement of the sources of international law. It
says:

TheCourt, whose function isto deùde in accordance with
internationallaw such disputes as are submitted to it shali

~PP~Y:

a. international conventions, whether general or particular,
establishg rules expressly recognised by the contesting
States;

b. international wtom, as evidence of a general practice
accepted as law;

c. the general principles oflaw recognised bycivilised nations;

d. subject to the provisions ofArticle 59,judicial decisions and
theteachings of the most highly qualified publickts of the
various nations, as subsidiary means for the determination
ofdes oflaw.

The Article contains three specificsources of law as outlined in (a)-(c).

It also mentions in (d) two "subsidiary"law determining agencies. The three

prime sources of law are treaty, custom and general principles of law.

Therefore ifwe can Say that there are rules emanating from any of those

sources which outlaw nuclear weapons, then we can Say that the use of

nuclearweapons is unlawful.

Let us look at the first source, keaties. In the firstplacewe do not need

a spellhc treaty outlawing nuclear weapons to make these weapons unlawfui.

If we find that they violate the terms of any existing treaty, then we may Say

that they are unlawful under that treaty. At the outse1thinkit isnecessary to

reject the notion that nuclear weapons are bamed by implication. If these

weapons are the type of weapons that do what the treaties do not aiiow

weapons to do, then we must Say that the weapons are outlawed by the

treaty.If the use of such weapons amounts to conduct that isprohibited by abeaty then we mut Say that the use of those weapons directiy contravenes

the treaty. in the course of our argument we have cited many existing

international treaties that outlaw the use of certain weapons in warfare. If

nuclear weapons are the sort of weapon that offends the terms of the aeaty

then we may Saythat nuclear weapons areoutiawed by that treaty. In the hst

place the use of nuclear weapons violates the United Nations Charter. It

violates the International Covenant on Civil and Political Rights and it

violates the international Covenant on Economic, Social and Cultural Rights.

Nuclear weapons are also offensive to the Dedaration of St. Petersburg of

1868, ïhe Hague Declaration on Asphyxiating Gases of July 29, 1899, the "

Geneva Gas Protocol of 1925, the Hague Regulations on Land Warfare of

1907,10 the Geneva Convention for the Ameiioration of the Condition of the

Wounded and Sickin Armed Forces in the Field of August 12,1949(the First
Geneva convention), the Geneva Convention for the Ameiioration of the

Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea of

August 12,1940 (the second Geneva Convention), the Geneva Convention

Relative to the Treatment of Prisoners of M'arof August 12, 1949(the third

Geneva Convention), the Geneva Convention Relative to the Protection of

Civilian Persons inTimes of War of August 12, 1949 (the fourth Geneva

Convention) and Geneva ProtocolI (1977).11 Arguably the use of nuclear

weapons is criminal. Article 6 of the Agreement for the Prosecution and

Cmnd. 3604(1930);94LNTS65(1927),
IoSupranote 11.

Protocol Additional to the Geneva Conventions of 12 August 1949, and

Relating to the protection ofVictimsof International Armed Confiicts adopted

at Geneva, June 8,1977, U.N. Doc. A/32/144 August 12,1977; 16 ILM 1391

(1977);Misc,No. 19;(Cmnd.6927)p.23.Punishment of the Major War Criminals of ,the European Axis 12 (The

NurembergCharter)provides:

...he following acts,or any of them, are crimes coming
within the jurisdiction of the [Nuremberg]Tribunal for
whichthere shallbe individual responsibility:

@) War crimes. Namely, violation of the laws and
customs ofwar. Suchviolations shaii indude, but not be
iimited to,murder, iii beatment .w.anton destruction of
cities,owns or viiiages, or devastation not justified by
military necessity.

(c)Crimesagainst humanity. Namely murder,
extermination ..and other inhumane acts committed
against any civilianpopulation .w.hether or not in
violation ofthe domestic law of the country where
perpekated.

On May 25, 1993,the United Nations Security Council established an

international tribunal to punish persons reçponsible for violation of
international law in the former Yugoslavia. Article 3 establishesjurisdiction

over the violation of the "laws and customs ofwar" which the artide describes

as including "but not lirnited ton:

(a)employment ofpoisonousweapons or otherweapons
calculated to cause unnecessary suffering;

@) wanton destruction of cities,towns or viiiages or
devastation not justified by military necessity;

(c)attack, or bombardment, by whatever means, of
undefended towns, viiiages, dwellings or buildings;

Nuclear weapons are poisonous and they are capable of causing

unnecessary suffering.They are capable of destroying cities, towns and

l2 Signed August 8,1945.39 A.J.I.L.Supp. 259(1945).viilages induding undefended towns, viilages, dwellings or buildings. Sowe

can see that the use ofnuclear weapons violates many prinaples of treaty law

and may is not oniy a war aime but ais0a crime against humanity.

As to customary international law, again we may Saythat there is no

specificrule ofcustomary law banning nudear weapons as such. But thi soes
not mean that nuclear weapons do not offend principles of customary

international law. Wehave already demonstrated the inconsistency ofthe use

of nuclear weapons with the Universal Dedaration of Human Rights. Ifwe

accept the idea that the Universal Dedaration has found its way into the '.

corpus of customary international law then here is one important set of

customs that the use of nudear weapons violates. But we have shown that

there are other mles of customary law which the use of nuclear weapons

offends. Clearly itsa violation of customary international law to use poisons

or other analogous substances. Thus even where a State is not a party to the
Geneva Gas Protocol it is nonetheless bound under customary international

law to refrain from using poisonous weapons and this would seem to include

weapons that emit radiation. It is also a violation of customary international

law to use weapons that cause unnecessary suffering and to use weapons that

cause severe damage to the environment. Furthermore it is probably a

violation of customary international law to use weapons that cause injury to

neutrai terntory.

Secondly, although Resolutions of the United Nations General
Assembly are not binding, as such, upon the Members of the United Nations,

some Resolutions, if they are passed with substantial majonties may be taken

to reflect the views ofStates as to what the law is;in other words they may be

taken as reflections of thopiniojuris of States. Hence they can assist us in

ascertaining the nature of customary international law. There are quite a fewResolutions of the General Assembly which hold that the use of nuclear

weapons isuniawful. One example isG.A. Res. 2936XXVIII,Nov. 29, 1970;

G.A.Res.1653(XVI),16 GAOR Supp. (No. 17)(1961)which isalso calied the

Declaration on the Prohibition of the Use of Nuclear and Thermonuclear

Weapons of November 24,1961. SeealsoResolution on the Non-use of Force

in International Relations and Permanent Prohibition of the Use of Nuclear
Weapons, G.A.Res.2936,U.N. GAOR20thSess.,Supp. No. 31, at 5,U.N. Doc.

A/8730 (1972); Resolution on the Non-use of Nudear Weapons and the

Prevention of Nudear Weapons, G.A.Res. 33/71B, 33U.N. GAOR,Supp. No.

45, at 48, U.N. Doc. A/33/45 (1978);Resolution on the Non-use of Nuclear

Weapons and Prevention of Nudear War, G.A.Res.34/83G, 34 U.N. GAOR,

Supp. No. 46, at 56,U.N. Doc.A/34/46 (1979);Resolution on the Non-use of

Nuclear Weapons and Prevention ofNudear War, G.A. Res.35/152D,35U.N.

GAOR,Supp. No. 48,at 69,U.N. Doc.A/35/48 (1980);Resolution on the Non-

use ofNudear Weapons and Prevention ofNudear War, G.A.Res.36/921,36
U.N. GAOR, Supp. No. 51, at 64, U.N. Doc. A/36/51 (1981); Resolution

37/100C Convention on the Prohibition of the Use of Nudear Weapons, U.N.

GAORSupp. No. 51at 83(1982);Resolution 38/75, Condemnation ofNuclear

War, U.N. GAOR,Supp. No. 47 at 69 (1963);Resolution 39/63H, Convention

on the Prohibition ofthe Use ofNuclear Weapons,U.N. GAOR,Supp. 57at 70

(1984); Resolution 40/51F, Convention on the Prohibition of the Use of

Nuclear Weapons, U.N. GAOR,40th Sess.,Supp. 53 at 90 (1985);Resolution

41/60F, Convention on the Prohibition of the Use of Nudear Weapons, U.N.

GAOR,41st Sess.;Supp. 53 at 85 (1986);Resolution 42/39C, Convention on

the Prohibition of the Use ofNuclear Weapons, U.N.AOR,42nd Sess.,Supp.
No. 49 at 81(1967);Resolution 43/76E, Convention on the Prohibition of the

Use of Nuclear Weapons, U.N. GAOR,43rd Sess.,Supp. No.49 at 90 (1988);

Resolution 44/117C, Convention of the Prohibition of the Use of Nudear

Weapons, U.N. GAOR 44th Sess., Supp. No. 49 at 80 (1989);Resolution45/59B, Convention on the Prohibition of the Use of Nuclear Weapons, U.N.

GAOR 45th Sess., Supp. No. 49 at 71 (1990);Resolution 46/37D, Convention

on the Prohibition of the Use of Nudear Weapons (1991),U.N. Doc. GA/S307

at 217;Resolution 47/53C, Convention on the Prohibition of the Use of

Nudear Weapons (1992)U.N. Doc. GA/8470 at 112(1993);Resolution 48/76B,
Convention on the prohibition of the Use of Nudear Weapons (1993),U.N.

Doc. GA/8637 at 124(1994).SeeAppendix Bof Memorial 1.

The Martens clause seems to require the application of general

principles of law. It speaks of the laws of hurnanityand the dictates ofpublic

conscience. General principles of law recognised by civilised nations would

therefore seem to embody the principles of humanity and the public

conscience. Inhumane weapons and weapons which offend the public

conscience are therefore prohibited.

Now we come to the two law-determining agencies. As for judicial

decisions, there areertainly no international decisionsyet that are relevant to

Our discussion. There is one important municipal case that requires

discussion. That case is the Shimodacase. The case was begun in May of 1955

when five individuals instituted legal action against the Japanese Government

to recover damages for injuries aliegedly sustained as a consequence of the

atomic bombings of Hiroshima and Nagasaki. On December 7, 1963 the

District Court ofTokyo delivered a lengthy decision.l3 The case is important

both for its third party decision-making genre, and for the fact that it appears

to be the oniy attempt by any court of law anywhere to wrestle with the legal

implications of nuclear warfare. The Court accepted the plaintiffs' argument
that the dropping of atomic bombs on Hiroshima and Nagasaki constituted a

13The decision has been translated into English and printed in the Japanese
annual; of International Law for 1964.It is digested in 58A.J.I.L.1016(1964).violation of internationallaw on the ground that the dropping of said bombs

not oniy constituted an indiscriminate bombardment of undefended aties far

beyond the requirements of destroying military objectiveswithin those cities,

but also violated the generalprinciple of international law (which it derived

from the specifictreaty limitations on the use ofpoisonous gas) that weapons

which give rise to "unnecessary ailmenu" to enemy personnel must not be

used. However the Court recognised that individuals have no standing under

international law. Consequently,there was no liability to the plahtiffs on the

part ofthe Govemment ofJapan.

With regard to publicists-There are many publicists who would argue
that theuseofnuclearweapons is unlawful for the reasons ated above and in

Nauru's Memorials nos. 1and 3. The attitude of publicists is summarised by

Meyrowiîz in his article "The Opinions of Legal Scholars on the Legal Status

of Nudear Weapons" l4Many legal scholars take the view that the use of

nuclear weapons is unlawful. A fairly complete list of them appears in

Memorial 1 at p. 66. Others are seduced by the argument that nuclear

weapons must be lawful in the absence of any treaty banning them

specifically.We have already demonstrated why we believe this argument to

be faliauous.

(b)Nuclear weapons are justified by military necessity

When we speak of miiitary necessity we must ask two questions. The

fust question is what is miiitary necessity? The second question is, what is

justified by it? Theobject of war is to hurt the enemy, to kill as many enemy

soldiers as possible and to convince the enemy that itisnot worthwhile to

continue their campaign. But international humanitarian law tells us thatthe

l424Stanford J.I.L.111 (1987-88).means of hurting the enemy are not unrestricted. Artide 22 of the Hague

Ruiessays:

The right ofbeiiigerents to adopt means ofinjuring
the enemy isnot unlimited.

ina tnal before a United States Military Tribunal called thHostages

Thl, the Tribunal said:

Miiitary necessity orexpediency do not justify

a violation ofpositivees. International Law is
prohibitive law.15

The right to adopt measures to injure the enemy is subject to

very dehite limitations and these limitations are speiied out by the principles

ofinternationalhumanitarian law. Saida former President of the international

Court ofJustice:

..it is submitied thifthe mere fact of defeat
were accepted as a legaljustificationfor ignoring
the des ofwarfare, the entireraisond'et~eofthe
laws ofwar wouid disappear, sincethe objectof every
war is the achievement ofvictory or success.Thus.
if, for the attainment of that objective,no des
whether customary or conventional canbe accepted,

ailwars wouid degenerate into wild savagery and
cruelty and the societyofnationswould revert to
the law ofthe jungle.ucha concept ofthe doctrine of
successwould wipe out the achievements ofhumanity
as enshrined in the Hague and Geneva Conventions
and usher in the worst experiencesof the Middle Ages.l6

One thing which the military is not permitted to do is to attempt to

convincethe enemy to surrender by terrorising the uvilian population. Article
22 ofthe Hague mles provides that:

l5Law Reportsof Truilsof WarCriminals ,ol.8,p.34at p. 66.
l6Singh, N.,NuclearWenpotla sndlntemationaL lnw (1959) p. 82. Aerial bombardment for the purpose of terrorising
the civiiianpopulation, ofdestroying or damaging
private property not ofa military character, or of
injuring non-combatants isprohibited.

Strategicnuclearweapons are instrumentsof terror against the civilian

population. Sowe can Saythat military necessity does not permit this use of

nuclearweapons.

The 1863 Lieber Code l7 spelis out the restrictions on the principle of
miiitary necessity:

Artide 14.Military necessity,as understoodby modem
civilizednations, consists ofthe necessity ofthose measures

which are indispensable for securing the ends ofwar,and
which are lawful according to the modem law and usages
ofwar.

Artide 15.Military necessity admits of ail directdestruction
oflifeorlimb of armed enemies, and otherpersons whose
destructionis incidentaily unavoidable.

Article 16.Military necessity does not admit of cruelty-
that is, theinfliction ofsuffering for the sake ofsuffering or
for revenge, nor ofmaiming or wounding except in fight, nor

of torture to exact confessions. Itdoes not admit ofthe use
ofpoison in any way, 18nor of the wanton devastation of
adistric...nd, in general miiitarynecessity does not indude
any actofhostility which makes the retum to peace
unnecessarily difficult.

17 For the text see Friedman, L., THE LAW OF WAR: A DOCUMENTARY
HISTORY(1971) p.158.
Note that this prohibition predates the 1925Geneva Gas Protocol. Military necessity consists in ali measures immediately indispensable

and proportionate to military objectives when taken on the decision of a

responsiblecommander.

A weapon, any weapon must be justified according to four basic

limitations regarding the purpose, nature and scope of permissible violence.

The first limitation concems the purpose of permissible violence. uiflicting
injury on the enemy as an end initself is not permitted. Violencemust have a

legitimate purpose if it is to be described as violence having "military

necessity". The second limitationis concemedwith the nature of permissible '

violence, and isparticularlythough not exdusively addressed to the weapons

ofwarfare. Use ofweapons which cause uuel sufferingor unavoidable death

may or may not be helpful to the party who would use them for the

achievement of an othenvise legitimate military end. Their use is, however,

forbidden under any urcumstances. The third limitation relates to the scope

of permissible violence. The rule here is that of proportionality. Only such

amount of violence is permissible as is reasonably proportionate to the
legitimate military objective sought to be achieved in the given military

operation. The fourth limitation concerns the objectives of permissible

violence.Thislimitation is particularly though not exdusively concemedwith

the protection ofcivilianlives and property.

The measures taken must not be contrary to the laws ofwar. There are

certain weapons and conduct which are prohibited even though they may

lead to military advantage. Among the weapons which are prohibited are

those which cause unnecessary or aggravated suffering, those which are
poisonous and those which are harmful to the environment. Resort to such

weapons is not permitted by military necessity. Prohibited conduct indudes

the use of such weapons.It has been the thrust of our argument that nuclearweapons cause unnecessary and aggravated suffering, create radiation w~hich

can be seen to havepoisonous effectsand are devastating to the environment.

Therefore the use ofsuch weapons cannot be justified by military necessiîy.

(c)Nuclearweapons may lawfully be used in retaliation

There isa heavy emotionalcontent to thisargument. It isthe argument

that was most strongly used to justify the use of atomic weapons against
Japan. Because the Japanese military was contemptuous of the laws of war,

the argument goes, the use of the atomic bomb was a justified punishment. A :

string ofJapanese atrocities, induding the rape of Nanking, the treatment of

aiiied pnsoners of war and even the treachery of the attack on Pearl Harbour

are cited as justification for the use of the atomic bomb. But the facts that

hundreds of thousands of people; men, women and children were kiiied by

the atomic bomb and most of the victims had nothing to do with the

treacherous and brutal actions of their government. Why did they deserve to

die because of the actions of someone else? The fact is that the Emperor

Hirohito and the Prime Minister Tojo were not even in Hiroshima and

Nagasaki when the Atomic bomb was dropped. They survived. Perhaps their
punishment was the defeat of Japan. But they did not suffer the grusome

injuries and deaths that thousands of ordinary, innocent people suffered.

Secondly, itis a fundamental principle of international humanitarian

law that a violation does not juste a counte~iolation. Article 46 of the

Geneva Convention for the Amelioration of the Condition of the Wounded

and Sick in Armed Forces in the Field of August 12,1949 ( the FirstGeneva

convention) says:

Reprisais against the wounded, sick,personnel,buildings or equipment protected by the Convention are prohibited.

The same prohibition of reprisals appears in Atticle 47 of the Geneva

Convention for the Amelioration of the Wounded, Sick and Shipwrecked

Members of the Armed Forces at Sea of August 12,1940 (the second Geneva

Convention), Article13 and Article 33 of the Geneva Convention Relative to

the Protection of Civilian Persons inTimes of War of August 12, 1949(the
fourth Geneva Convention). The prohibition againstreprisais also appears in

Article 20 of Protocol 1to the Geneva Conventions. Articles 51-56 of that

Protocol also have provisions prohibiting reprisals. So it is clear that

retaliation or reprisa1with nuclearweaponsisprohibited by the laws ofwar.

(d) Nuclearweapons may lawfully be used in self-defence

Article51of theUnited Nations Charters says:

Nothing in the present Charter shallimpair the inherent
right ofindividual or collectiveself-defenceif an armed
attack occurs against a Member ofthe United Natiom... .

Given this approval of self-defence expressid in the Charter many

States wiil attempt to daim that the use of nuclear weaponç is lawful if they

are used in self-defence.Buta slightly more carefulreading isrequired. It says
"nothing in the present Charter". This means that the Charter prohibitions

against the use offorcedo not apply where the Member is exercising the right

of self-defence.It does not and cannot mean that no des ofinternational law

shall apply. Defensivemilitary action is subject to the laws of war to thesame

extent as offensive military action. None of the des which we have ated in

our submission make any exceptionfor a 'defensive'use ofnuclear weapons.

Thereforewhere we have rules of international law that prohibit (a)the use of

poisonous weapons or (b) weapons that cause unnecessary or aggravatedsuffering or (c)harm the environment or (d) destroy medical faùlities or (e)

damage or poliute neutral terntory or (f)cannot distinguish between civilian

objectsand military objectives,then their useisunlawfui.

In fact it is hard to see how one might use nuclear weapons in self-.
defence. If one has been attacked with nudear weapons, then the use of

nudear weapons against the attacker will do nothing to defend the attacked

State.It has aireadybeen hitIts citieshave been devastated. There isno way

for it to defend itseif against a result which has already occurred. Soits use of

nuclear weapons in that situation WU, of necessity, be retaiiation and we

have aiready shown why it isnot lawful to usenuclear weapons in retaliation.

One might argue that a State may threaten to use nuclear weapons in self-

defence. Butthis is acceptableonly if one accepts the validity of the deterrence

theory ofinternational affairs.Thereare senous flaws in deterrence theory.

(e) It is possible to inventa scenario where the use of Nuclear Weapons

would be Lawfui

Some state representatives wdl attempt to argue that nudear weapons

are lawful in certain circumstances. In attempting to so argue they will
present scenarios in which the use of nuclear weapons are free of the legal

defects which the use ofnudear weapons possess. On the general question of

scenarios Ian Brownliehas commented 19:

It israther ridiculous to aliow refined examples
ofputatively lawhd use to dominate the legalregime
[thus ignoring] the generalcontext of conflict and
the nsk ofescalation.

l9 Brownlie,supranote 2 at 450. Certady, the risk of escalation must not be ignored, but as we wiii

show, it is doubtful that any scenarios invented can meet the test of

lawfuiness.

It is submitted that, in any scenario designed to meet the cnterion of
lawfuiness, six conditions wouldhave to be met:

1. The nudear weapons would have to be radiation free. We submit
that there is no such thing as a nudear weapon whichis entirely radiation

free. We venture to predict that al1scenarioswili talk about "substantially"

radiation free nuclear weapons. But just a little probing wili reveal that none

of the so-calied "clean"weapons are entirely free of radiation.

2. The nuclear weapons for which the status of legality is claimed

shouid not cause unnecessary or aggravated suffering.

3. The nuclear weapons for which the status of legality is claimed

shouid not be harmfd to the environment.

4 The nuclear weapons for which the status of legality is claimed

should not be likely to destroy medical fadities.

5 Nuclear weapons for which the status of legality is claimed should

not damage or pollute neutral territory.(Thi wsas not dealt with in Nauru's
submissions. But the point was made quite effectivelin other submissions.)

5. The nuclear weapons for which the status of legality is claimed

should be capable of distinguishg between miliary objectives and civilian

objectç.

6. At any rate it must be unlikely that conventional weapons could

accompiish the desired military resuit. The scenario most commonly invented isthe use of low yield tactical

nuclear weapons on a military base isolated in the dessert. The scenario

attempts to eliminate some of the illegal consequences of the use of nuclear

weapons. By calling the weapons low-yield the argument theoreticaily

eliminates the poison argument because the weapons would not contain as
much radiation. Itismy intention to cailto the stand a nudear saentist who

wiil tesûfy that there is no such thing as a completely dean nudear weapon.

Sowe can see that it isnot possible to completely do away with radiation and

the ha& effectsofradiation.

Another matter which tius scenario is intended to deal with is the

desirability of eliminating the failure to distinguish between civilian and

military targets. Thismay be kue. Buteven in this case.

1.A nudear weapon would stillcause unnecessary and aggravated suffering.

2.As 1 have shown it would stiilbe poisonous.

3.It would stiiidamage the environment, and

4. It would stiil destroy any medical facilitythat might exist on the base. Soit

would stilibe uniawful.

Conclusion

We have shown that the use of nuclear weapons violates a number of

important des of international law. There may be no speafic treaty ban-ing

the use ofnudear weapons but we have shoum that these are weapons whichdo things which many nile3 of treaty and customary law prohibit weapons

from doing. We have also shown that international humanitarian law does

not cease to have effectjust to satisfy daimsmiliary necessity.Furthemore

the rules of international humanitanan law apply whatever the nature of the

conflict.They apply when a State isacting in self-defenceand when a State is
acting in retaliation.