1. See Res.49/75K of 15 Dec. 1994. Thirty-five States filed written statements and 24 made oral submissions.Google Scholar

2. On the question: “In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?”

3. By 11 votes to 3 (Judges Shahabuddeen, Weeramantry and Koroma dissenting).

4. The WHO has been duly authorised to request advisory opinions of the Court. See para.11 of the opinion.

5. The Court acknowledged that the question put to it by the WHO was a legal one: “whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law” (opinion, para. 16). Of course, the requirement of a “legal question” also applies in respect of requests for advisory opinions by the UN General Assembly and Security Council under Art.96(1) of the Charter.

6. Idem, para.10.

7. Idem, para. 19.

8. Including the rule in Art.31(3)(b) requiring account to be taken of “any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”.

9. Opinion, paras.21–22.

10. Idem, para.25.

11. Art.57(1) provides, inter alia: “The various specialised agencies, established by inter governmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields,…”

12. Opinion, para.26.

13. This ignores the difference between the two paras, of Art.96.

14. Referring to Arts.10, 11 and 13 of the Charter, the Court found that the question related to many asepcts of the activities and concerns of the General Assembly.

15. Bee supra.

16. Some States argued that the question was vague and abstract, that an opinion would provide no practical assistance to the General Assembly and would undermine disarmament negotiations, that the General Assembly had not explained why it wanted the opinion, and that by responding the Court would be legislating.

17. In particular, the law concerning the use of force enshrined in the UN Charter and the law regulating the conduct of hostilities.

18. Especially Arts.2(4), 42 and 51.

19. Opinion, para.47. See also para.78 concerning international humanitarian law.

20. According to the Court, those instruments cover “weapons whose prime, or even exclusive, effect is to poison or asphyxiate”. Cf. the dissenting opinion of Judge Weeramantry, who considers that there is a conventional prohibition.

21. As there is for biological and chemical weapons.

22. See especially Res.1653(XVI) of 24 11 1961.Google Scholar

23. The Court explained that “unnecessary suffering” means harm greater than that which is unavoidable to achieve legitimate military objectives.

24. Opinion, para.87. For a modern version of the Martens Clause, see Art.1(2) of Additional Protocol 1, 1977: “In cases not covered by the Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience." One of the most remarkable aspects of the case was that, inspired by the Martens Clause, some 3,700,000 “Declarations of Conscience” were sent to the Registrar of the Court. Judge Weeramantry observed that “they evidence a groundswell of global public opinion which is not without legal relevance”.

25. Idem, para.79. The Court confirmed the relevance of the Nuremberg Principles in this regard.

26. Nor did it consider the applicability to nuclear weapons of Additional Protocol 1, 1977. However, it confirmed that all States are bound by those rules in the Additional Protocol which, when adopted, were merely the expression of the pre-existing customary law.

27. Opinion, para.95.

28. Cf. Judge Shi's statement that “appreciable” should not be viewed in terms of material power.

29. Art. VI provides: “Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control”. Significantly, the Court omitted any reference to “a treaty on general and complete disarmament” with which the nuclear weapon States have hitherto linked nuclear disarmament.

30. See further Falk, Richard A., “Nuclear Weapons, International Law and the World Court: A Historic Encounter” (1997) 91 A.J.I.L. 64.Google Scholar

31. The World Court Project was launched in Geneva in May 1992. Sponsored by the International Association of Lawyers Against Nuclear ARms (IALANA), the International Peace Bureau and International Physicians for the Prevention of Nuclear War, its aim was to secure an advisory opinion on the legal status of nuclear weapons.

32. Art.65(1) of the ICJ Statute provides that the Court “may” give an advisory opinion.

33. Para.2C of the dispositif.

34. Idem

31. The World Court Project was launched in Geneva in May 1992. Sponsored by the International Association of Lawyers Against Nuclear ARms (IALANA), the International Peace Bureau and International Physicians for the Prevention of Nuclear War, its aim was to secure an advisory opinion on the legal status of nuclear weapons.

32. Art.65(1) of the ICJ Statute provides that the Court “may” give an advisory opinion.

33. Para.2C of the dispositif.

34. Idem, para.2D.

35. Thus, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives, and when implementing the principles and rules of the law applicable in armed conflict.

36. Para.2F of the dispositif. “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control”.

37. On 10 Dec. 1996 the UN General Assembly called upon all States to commence “multilateral negotiations in 1997 leading to an early conclusion of a nuclear weapons convention prohibiting the development, production, testing, deployment, stockpiling, transfer, threat or use of nuclear weapons and providing for their elimination”. See Res.51/45M, adopted by 115 votes to 22 with 32 abstentions.

38. This appears to cover collective self-defence. Cf. para.97 of the opinion: “the Court… cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake” (emph. added).

39. In favour: President Bedjaoui (Algeria); Judges Ranjeva (Madagascar), Herczegh (Hungary), Shi (China), Fleischhauer (Germany), Vereschetin (Russia), Ferrari Bravo (Italy). Against: Vice-President Schwebel (United States); Judges Oda (Japan), Guillaume (France), Shahabuddeen (Guyana), Weeramantry (Sri Lanka), Koroma (Sierra Leone), Higgins (United Kingdom). Normally there are 15 judges but Judge Aguilar (Venezuela) died before the start of the hearing.

40. Beside the President himself. Judges Herczegh, Shi, Vereschetin and Ferrari Bravo appended declarations to the advisory opinion of the Court. Judges Guillaume, Ranjeva and Fleischhauer filed separate opinions. Dissenting opinions were appended by Vice-President Schwebel and Judges Oda, Shahabuddeen, Weeramantry, Koroma and Higgins.

41. Judges Koroma, Shahabuddeen and Weeramantry.

42. President Bedjaoui stated: “I cannot insist too strongly on the fact that the Court's inability to go beyond the conclusion it reached cannot in any manner be interpreted as having opened the door to the recognition of the legality of the threat and use of nuclear weapons”.

43. As it must be—see para.104 of the opinion.

44. See Judge Ranjeva's individual opinion. In Nov. 1996 the Canadian government announced a review of its nuclear weapons policy in the light of the opinion.

45. Peter Weiss, Co-President of IALANA.

46. Judge Higgins considers that para.2E of the dispositif “leaves open the possibility that a use of nuclear weapons contrary to humanitarian law might nonetheless be lawful”, and adds: “It is also, I think, an important and well-established principle thta the concept of non-liquet—for that is what we have here—is no part of the Court's jurisprudence”.

47. However, the Court did consider other issues not specifically raised, such as the obligation to negotiate nuclear disarmament.

48. He observes that “through the medium of its Advisory Opinions, the Court has … either contributed to the crystallisation and development of the law or, with its imprimatur, affirmed the emergence of the law”.

49. President Bedjaoui, too, had no doubt that most of the principles and rules of humanitarian law are part of jus cogens.

50. Opinion, para.95.

51. The priority of humanitarian considerations is recognised in human rights treaties. Thus, in Chahal v. United Kingdom (15 11 1996) the European Court of Human Rights declared that Art.3 of the European Convention “prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim's conduct” and that “no derogation from it is permissible… even in the event of a public emergency threat ening the life of the nation”.Google Scholar

52. The Court observed that treaty reservations made by nuclear weapon States, pur porting to allow them to use nuclear weapons in certain circumstances, had “met with no objection from… the Security Council” (opinion, para.62). Since the permanent members of the Security Council are nuclear weapon States, that is hardly surprising.

53. Para.33 of Hudge Higgins's dissenting opinion. See also the dissent of Judge Schwebel who, with reference to Operation “Desert Storm”, concludes that “far from justifying the Court's inconclusiveness, contemporary events rather demonstrate the legality of the threat or use of nuclear weapons in extraordinary circumstances”.

54. For his part, Judge Vereschetin considered it “plausible” that the Court could have deduced “a general rule comprehensively proscribing the threat or use of nulear weapons, without leaving any room for any ‘grey area’, even an exceptional one”.