NICARAGUA VS THE UNITED STATES: USE OF FORCE AND SELF-DEFENSE (1 1 Did the United States violate its customary
ed States violate its customary international law obligation not to
OF 3)
International Court of Justice Contentious Case: Case Concerning the Military and
Paramilitary Activities In and Against Nicaragua (Nicaragua vs United States)
Year of Decision: 1986.
Overview:
The case involved military and paramilitary activities carried out by the United States
against Nicaragua from 1981 to 1984. Nicaragua asked the Court to find that these
activities violated international law.
Facts of the Case:
In July 1979, the Government of President Somoza was replaced by a government
installed by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former
Somoza Government and former members of the National Guard opposed the new
government. The US – initially supportive of the new government – changed its attitude
when, according to the United States, it found that Nicaragua was providing logistical
support and weapons to guerrillas in El Salvador. In April 1981 the United
States stopped its aid to Nicaragua and in September 1981, according to Nicaragua,
the United States “decided to plan and undertake activities directed against Nicaragua”.
The armed activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with
Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along
the border with Costa Rica. Initial US support to these groups fighting against the
Nicaraguan Government (called “contras”) was covert. Later, the United States officially
acknowledged its support (for example: In 1983 budgetary legislation enacted by the
United States Congress made specific provision for funds to be used by United States
intelligence agencies for supporting “directly or indirectly military or paramilitary
operations in Nicaragua”).
Nicaragua also alleged that the United States is effectively in control of the contras, the
United States devised their strategy and directed their tactics, and that the contras were
paid for and directly controlled by the United States. Nicaragua also alleged that some
attacks against Nicaragua were carried out, directly, by the United States military – with
the aim to overthrow the Government of Nicaragua. Attacks against Nicaragua included
the mining of Nicaraguan ports, and other attacks on ports, oil installations, and a naval
base. Nicaragua alleged that aircrafts belonging to the United States flew over
Nicaraguan territory to gather intelligence, supply to the contras in the field, and to
intimidate the population.
The United States did not appear before the ICJ at the merit stages, after refusing to
accept the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional
phase of the hearing, however, stated that it relied on an inherent right of collective self-
defence guaranteed in A. 51 of the UN Charter when it provided “upon request
proportionate and appropriate assistance…” to Costa Rica, Honduras, and El Salvador
in response to Nicaragua’s acts of aggression against those countries (paras 126, 128).
Questions before the Court:
intervene in the affairs of another State, when it trained, armed, equipped,
and financed the contra forces or when it encouraged, supported, and aided
the military and paramilitary activities against Nicaragua?
2 Did the United States violate its customary international law obligation not to use
force against another State, when it directly attacked Nicaragua in 1983 and
1984 and when its activities in point (1) above resulted in the use of force?
3 Can the military and paramilitary activities that the United States undertook in and
against Nicaragua be justified as collective self-defence?
4 Did the United States breach its customary international law obligation not to
violate the sovereignty of another State, when it directed or authorized its
aircrafts to fly over the territory of Nicaragua and because of acts referred to
in (2) above?
5 Did the United States breach its customary international law obligations not to
violate the sovereignty of another State, not to intervene in its affairs, not to
use force against another State and not to interrupt peaceful maritime
commerce, when it laid mines in the internal waters and in the territorial sea
of Nicaragua?
The Court’s Decision:
The United States violated customary international law in relation to (1), (2), (4) and (5)
above. On (3), the Court found that the United States could not rely on collective self-
defence to justify its use of force against Nicaragua.
Relevant Findings of the Court:
1. The Court held that the United States violated its customary international law
obligation not to use force against another State when its activities with the
contras resulted in the threat or use of force (see paras 191-201).
The Court held that:
▪ The prohibition on the use of force is found both in Article 2(4) of the Charter of the
United Nations (UN Charter) and in customary international law.
▪ In a controversial finding the Court sub-classified the use of force as:
(1) “most grave forms of the use of force” (i.e. those that constitute an armed attack);
and
(2) “other less grave forms” of the use of force (i.e. organizing, instigating, assisting, or
participating in acts of civil strife and terrorist acts in another State – when the acts
referred to involve a threat or use of force, but not amounting to an armed attack).
(Para 191),
▪ The United States violated the customary international law prohibition on the use of
force when it laid mines in Nicaraguan ports. It also violated this prohibition
when it attacked Nicaraguan ports, oil installations, and a naval base (see
below). The United States could only justify its action on the basis of collective
self-defence, if certain criteria were met (these criteria are discussed below).
▪ The United States violated the customary international law prohibition on the use of
force when it assisted the contras by “organizing or encouraging the
organization of irregular forces and armed bands… for incursion into the
territory of another state” and participated “in acts of civil strife…in another
State” and when these acts involved the threat or use of force.
▪ The supply of funds to the contras did not violate the prohibition on the use of force.
 On the contrary, Nicaragua had previously argued before the Court that the
United States determined the timing of offensives against Nicaragua when it
provided funds to the contras. The Court held that “…it does not follow that
each provision of funds by the United States was made to set in motion a
particular offensive, and that that offensive was planned by the United States.”
The Court held further that the arming and training of the contras and the
supply of funds, in itself, only amounted to acts of intervention in the internal
affairs of Nicaragua and did not violate the prohibition on the use of force (para
227) (again, this aspect will be discussed in detail below)
2. The Court held that the United States violated its customary international law
obligation not to use force against another State when it directly attacked
Nicaragua in 1983 and 1984 (see paras 187 – 201).
Note: A controversial but interesting aspect of the Court’s judgement was its definition
of an armed attack. The Court held that an armed attack included:
(1) action by regular armed forces across an international border; and
(2) “the sending by or on behalf of a State of armed bands, groups, irregulars or
mercenaries, which carry out acts of (sic) armed force against another State of such
gravity as to amount to (inter alia) an actual armed attack conducted by regular forces,
or its (the State’s) substantial involvement therein”.
Note also that that he second point somewhat resembles Article 3(g) of the UNGA
Resolution 3314 (XXIX) on the Definition of Aggression.
The Court further held that:
▪ Mere frontier incidents will not considered as armed attacks, unless, because of its
scale and effects, it would have been classified as an armed attack had it
been carried out by regular forces.
▪ Assistance to rebels by providing weapons or logistical support did not constitute an
armed attack. Instead, it can be regarded as a threat or use of force or an
intervention in the internal or external affairs of other States (see paras 195,
230).
▪ Under Article 51 of the UN Charter and under CIL – self-defence is only available
against a use of force that amounts to an armed attack (para 211).
Note: In in the ICJ’s Case Concerning Oil Platforms and the ICJ’s Advisory Opinion
on the Legal Consequences of of the Construction of a Wall in the Occupied
Palestinian Territory (hereinafter called the Palestine wall case) the ICJ confirmed the
definition of an “armed attack” as proposed in the Nicaragua case. Draft Articles on
State Responsibility, prepared by the International Law Commission, provides
significant guidance as to when acts of non-State actors may be attributed to States.
These articles, together with recent State practice relating attacks on terrorists
operating from other countries may have widened the scope of an armed attack, and
consequently, the right of self defence, envisaged by the ICJ. (for example,
see discussion surrounding the United States’ attacks in Afghanistan and Iraq) See
also a paper by Max Plank Institute on this topic (2017).
3. The Court held that the United States could not justify its military and paramilitary
activities on the basis of collective self-defence.
Note that Article 51 of the UN Charter sets out the treaty based requirements on the
exercise of the right of self-defense. It states:
“Nothing in the present Charter shall impair the inherent
right of individual or collective self-defence if an armed attack occurs against a
Member of the United Nations, until the Security Council has taken
measures necessary to maintain international peace and security. Measures taken by
Members in the exercise of this right of self-defence shall be immediately reported to
the Security Council.”
The Court held that:
▪ Customary international law allows for exceptions to the prohibition on the use of
force, which includes the right to individual or collective self-defence (see here
for a difference between individual and collective self defense). The United
States, at an earlier stage of the proceedings, had also agreed that the UN
Charter acknowledges the existence of this customary international law right
when it talks of the “inherent” right under Article 51 of the Charter (para.193).
▪ When a State claims that it used force in collective self-defence, the Court would
examine the following:
(1) Whether the circumstances required for the exercise of self-defence existed; and
(2) Whether the steps taken by the State, which was acting in self-defence,
corresponds to the requirements of international law.
▪ Under international law, several requirements must be met for a State to exercise
the right of individual or collective self-defence:
(1) A State must have been the victim of an armed attack;
(2) That State must declare itself as a victim of an armed attack. The assessment on
whether an armed attack had taken place or not, is done by the State who was
subjected to the attack. A third State cannot exercise a right of collective self-defence
based that third State’s own assessment;
(3) In the case of collective self-defence, the victim State must request for assistance.
The Court held that “there is no rule permitting the exercise of collective self-defence
in the absence of a request by the State which regards itself as the victim of an armed
attack”;
(4) A State that is attacked, does not, under customary international law, have the
same obligation as under Article 51 of the UN Charter to report to the Security Council
that an armed attack happened – but the Court held that “the absence of a report may
be one of the factors indicating whether the State in question was itself convinced that
it was acting in self-defence” (see paras 200, 232 -236).
“…Whatever influence the Charter may have had on customary international law in
these matters, it is clear that in customary international law it is not a condition of the
lawfulness of the use of force in self-defence that a procedure so closely dependent
on the content of a treaty commitment and of the institutions established by it, should
have been followed. On the other hand, if self-defence is advanced as a justification
for measures which would otherwise be in breach both of the principle of customary
international law and of that contained in the Charter, it is to be expected that the
conditions of the Charter should be respected. Thus for the purpose of enquiry into
the customary law position, the absence of a report may be one of the factors
indicating whether the State in question was itself convinced that it was acting in self-
defence (See paras 200, 232 -236)”.
▪ The Court, then, looked extensively into the conduct of Nicaragua, El Salvador,
Costa Rica, and Honduras to determine if (1) an armed attack
was undertaken by Nicaragua against the three countries, which in turn would
(2) necessitate those countries to act in self-defence against Nicaragua
(paras 230 – 236). The Court noted that (1) none of the countries who were
allegedly subject to an armed attack by Nicaragua declared themselves as
victims of an armed attack; (2) they did not request assistance from the United
States to exercise its right of self-defence; (3) the United States did not claim
that when it used force, it was acting under Article 51 of the UN Charter; and
 (4) the United States did not report that it was acting in self-defense to the
Security Council. The Court concluded that, based on the above, the United
States cannot justify its use of force as collective self-defence.
▪ In any event, the Court held that the criteria relating to necessity and proportionality,
that is required to be met when using force in self-defence – were also not
fulfilled (para 237).
4. The Court held that the United States breached its CIL obligation not to intervene in
the affairs of another State, when it trained, armed, equipped and financed the contra
forces or encouraged, supported and aided the military and paramilitary activities
against Nicaragua.
The Court held that:
▪ The principle of non-intervention requires that every State has a right to conduct its
affairs without outside interference. In other words, the principle “…forbids
States or groups of States to intervene directly or indirectly in internal or
external affairs of other States.” This is a corollary of the principle of sovereign
equality of States. The Court held that:
“A prohibited intervention must accordingly be one bearing on matters in which each
State is permitted, by the principle of State sovereignty to decide freely. One of these
is the choice of a political, economic, social and cultural system, and the formulation
of foreign policy. Intervention is wrongful when it uses methods of coercion in regard
to such choices, which must remain free ones. The element of coercion, which
defines, and indeed forms the very essence of, prohibited intervention, is particularly
obvious in the case of an intervention which uses force, either in the direct form of
military action, or in the indirect form of support for subversive or terrorist armed
activities within another State (para 205).”
▪ Nicaragua stated that the activities of the United States were aimed to overthrow
the government of Nicaragua, to substantially damage the economy and to
weaken the political system with the aim to coerce the Government of
Nicaragua to accept various political demands of the United States. The
Court concluded that:
“…first, that the United States intended, by its support of the contras, to coerce the
Government of Nicaragua in respect of matters in which each State is permitted, by
the principle of State sovereignty, to decide freely (see paragraph 205 above) ; and
secondly that the intention of the contras themselves was to overthrow the present
Government of Nicaragua… The Court considers that in international law, if one State,
with a view to the coercion of another State, supports and assists armed bands in that
State whose purpose is to overthrow the government of that State, that amounts to an
intervention by the one State in the internal affairs of the other, whether or not the
political objective of the State giving such support and assistance is equally far
reaching.”
▪ The financial support, training, supply of weapons, intelligence and logistic support
given by the United States to the contras violated the principle of non-
interference. “…(N)o such general right of intervention, in support of an
opposition within another State, exists in contemporary international law”,
even if such a request for assistance is made by an opposition group of that
State (see para 246 for more).
▪ However, in a controversial finding, the Court held that the United States did
not devise the strategy, direct the tactics of the contras or exercise control on
them in manner so as to make their acts committed in violation of international
law imputable to the United States (see in this respect “Determining US
responsibility for contra operations under international law” 81 AMJIL 86). The
Court concluded that “a number of military and paramilitary operations of the
contras were decided and planned, if not actually by United States advisers,
then at least in close collaboration with them, and on the basis of the
intelligence and logistic support which the United States was able to offer,
particularly the supply aircraft provided to the contras by the United States”
but not all contra operations reflected strategy and tactics wholly devised by
the United States.
“…the various forms of assistance provided to the contras by the United States have
been crucial to the pursuit of their activities, but is insufficient to demonstrate their
complete dependence on United States aid. On the other hand, it indicates that in the
initial years of United States assistance the contra force was so dependent. However,
whether the United States Government at any stage devised the strategy and directed
the tactics of the contras depends on the extent to which the United States made use
of the potential for control inherent in that dependence. The Court already indicated
that it has insufficient evidence to reach a finding on this point. It is a fortiori unable to
determine that the contra force may be equated for legal purposes with the forces of
the United States…The Court has taken the view (paragraph 110 above) that United
States participation, even if preponderant or decisive, in the financing, organizing,
training, supplying and equipping of the contras, the selection of its military or
paramilitary targets, and the planning of the whole of its operation, is still insufficient in
itself, on the basis of the evidence in the possession of the Court, for the purpose of
attributing to the United States the acts committed by the contras in the course of their
military or paramilitary operations in Nicaragua. All the forms of United States
participation mentioned above, and even the general control by the respondent State
over a force with a high degree of dependency on it, would not in themselves mean,
without further evidence, that the United States directed or enforced the perpetration
of the acts contrary to human rights and humanitarian law alleged by the applicant
State. Such acts could well be committed by members of the contras without the
control of the United States. For this conduct to give rise to legal responsibility of the
United States, it would in principle have to be proved that that State had effective
control of the military or paramilitary.”
▪ Interesting, however, the Court also held that providing “…humanitarian aid to
persons or forces in another country, whatever their political affiliations or
objectives, cannot be regarded as unlawful intervention, or as in any other
way contrary to international law” (para 242).
▪ In the event one State intervenes in the affairs of another State, the victim State has
a right to intervene in a manner that is short of an armed attack (210).
“While an armed attack would give rise to an entitlement to collective self-defence, a
use of force of a lesser degree of gravity cannot as the Court has already observed
(paragraph 211 above) produce any entitlement to take collective countermeasures
involving the use of force. The acts of which Nicaragua is accused, even assuming
them to have been established and imputable to that State, could only have justified
proportionate counter-measures on the part of the State which had been the victim of
these acts, namely El Salvador, Honduras or Costa Rica. They could not
justify counter-measures taken by a third State, the United States, and particularly
could not justify intervention involving the use of force.”
5. The United States violated its customary international law obligation not to violate
the sovereignty of another State, when it directed or authorized its aircrafts to fly over
Nicaraguan territory and when it laid mines in the internal waters of Nicaragua and its
territorial sea.
▪ The Court examined evidence and found that in early 1984 mines were laid in or
close to ports of the territorial sea or internal waters of Nicaragua “by persons
in the pay or acting ion the instructions” of the United States and acting under
its supervision with its logistical support. The United States did not issue any
warning on the location or existence of mines and this resulted in injuries and
increases in maritime insurance rates.
The Court found that the United States also carried out high-altitude reconnaissance
flights over Nicaraguan territory and certain low-altitude flights, complained of as
causing sonic booms. It held that a State’s sovereignty extends to its internal waters,
its territorial sea, and the airspace above its territory. The United States violated
customary international law when it laid mines in the territorial sea and internal waters
of Nicaragua and when it carried out unauthorised overflights over Nicaraguan
airspace by aircrafts that belong to or was under the control of the United States..
THE NUCLEAR WEAPONS ADVISORY OPINION (GENERAL
ASSEMBLY REQUEST)
International Court of Justice Advisory Opinion: Legality of the Threat or Use
of Nuclear Weapons
Year of Decision: 1996. Court: International Court of Justice.
Background to the case
The General Assembly of the United Nations asked the Court to provide its legal opinion
on the following question “Is the threat or use of nuclear weapons in any circumstances
permitted under international law?” In 1993, two years previously, the World
Health Organization had asked the Court a similar question on the legality of the use
nuclear weapons under international law. The Court declined to answer because the
Court held that the World Health Organization did not have the competence to ask the
Court that particular question.
Questions before the Court:
The Court discussed two procedural questions:
(1) Did the Court have the competence to give an advisory opinion based on a request
of the General Assembly? In other words, did the General Assembly have the
competence to ask the Court for an advisory opinion on the above question?
(2) If yes, were there any reasons that would compel the Court to decline to exercise
it’s jurisdiction?
The Court also discussed five substantive questions:
(3) Did treaty or customary law authorize the use of nuclear weapons?
(4) Did treaty or customary law contain a “comprehensive and universal” prohibition on
the threat and use of nuclear weapons?
(5) Should the threat or use of nuclear weapons be compatible with international
humanitarian law and other undertakings of the law?
(6) Will the threat or use of nuclear weapons be lawful in self defense in situations where
the very survival of the State is at stake?
(7) Is there an obligation on States to work towards nuclear disarmament?
The Court’s Decision:
Relevant Findings of the Court:
(1) Did the Court have the jurisdiction to give a reply to the request of the General
Assembly?
The Court concludes that it had the jurisdiction to respond to the question for the
following reasons:
(1) Firstly, the Court says that it has the competence under Article 65 (1) of the Statute
of the ICJ to provide an advisory opinion, when it is requested by a “competent organ
of the United Nations”.
The Court may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the United
Nations to make such a request.
(2) Secondly, the General Assembly is a “competent organ” because it is authorized
by Article 96 (1) of the United Nations Charter to request an advisory opinion from the
Court. The Court says that:
The General Assembly or the Security Council may request the International Court of
Justice to give an advisory opinion on any legal question.
(3) Thirdly, together with Articles 10, 11, and 13, Article 96(1) of the UN Charter
gives the General Assembly the competence to request an advisory opinion on “any
legal question”.
(4) Some states said that this particular question is not a legal question but a political
question. The Court reiterates that it has consistently held that the mere fact
that a question before the Court may also have “political dimensions” or “political
consequences” will not deprive the question of its legal character, or affect the
competence of the Court to reply. The Court concludes that this question is a legal
question. In other words, it is “framed in terms of the law and rais(ing) problems of
international law…(which) are by their very nature susceptible of a reply based on law”.
Thus, the Court concludes it had the relevant jurisdiction to respond to this question.
(2) Even if the Court had the relevant competence, should it use its discretion
and refuse to respond to the question?
The Court concludes that there are no “compelling reasons” to refuse to provide a
response to the advisory opinion.
(1) The Court agrees that even if it has the competence to give an opinion, it can still
refuse to respond to an advisory opinion based on the discretion it has under Article 65
(1) of the Statute. If you recall, Article 65 (1) says that “the Court may give an advisory
opinion…”.
(2) Some States argued that Court should use its discretion to refuse to give an opinion.
This is because, they argued, for example, that the question posed by the General
Assembly was abstract, any response would undermine progress already made in
disarmament, and that in answering the question posed the Court would be taking upon
itself a law-making capacity.The Court rejects all of these arguments in detail. (see
paras 10 – 19). It says that:
The Court’s opinion is given not to States, but to the organ which is entitled to request
it; the reply of the Court, itself an ‘organ of the United Nations’, represents its
participation in the activities of the Organization, and in principle, should not be refused.
(3) The Court confirms that it had previously never exercised its discretion under Article
65 (1) to refuse to answer a question. The Court says that only “compelling reasons”
could lead to such a refusal and that, in this situation, there are no “compelling reasons”
which would lead the Court to refuse.
(3) Did customary or treaty law authorize the use of nuclear weapons?
The Court concludes that neither customary law, nor treaty law, explicitly authorizes the
use of nuclear weapons (para 52).
Yet, it highlights that explicit authorization is not required because the illegality on the
threat or use of nuclear weapons does not stem from the lack of specific authorization,
but on a specifically formulated prohibition (the general principle is found in more detail
in the Lotus case).
Next, it went on to examine if customary or treaty law prohibits the threat or use of
nuclear weapons.
(4) Did treaty or customary law prohibit the threat and use of nuclear weapons?
The Court concludes that there is no comprehensive and universal prohibition on the
threat or use of nuclear weapons either in treat or customary law.
(1) In terms of treaty law, some States argued that the use of nuclear weapons would
violate the right to life and other treaty-based human rights, prohibition on genocide,
and rules relating to the protection of the environment. The Court says that none of
these treaties provide a “universal and comprehensive” prohibition on the use of nuclear
weapons (see paras 24-34).
(2) Then, the Court says that the “most directly relevant applicable law” is the UN
Charter provisions relating to the use of force and those laws that govern armed conflict.
However, it finds that both of these legal regimes also do not expressly prohibit, nor
permit, the use of nuclear weapons. The Court finds that:
(a) Articles 2(4), 42, and 51 of the UN Charter that relates to the legality on the use of
force, is silent on the specific weapons that can be used when using force (for more,
see prohibitions on the use of force).
(b) International humanitarian law treaties (part of those laws governing armed conflict),
including the Hague Convention IV of 1907 and the Geneva Protocol of 1925 have been
understood in State practice, as not covering nuclear weapons. Similarly, other
humanitarian law treaties governing weapons of mass destruction, like the Biological
and Chemical Weapons Conventions, also do not contain prohibitions on the use of
nuclear weapons.
(c) The Court also points out that those treaties that specifically relate to nuclear
weapons (para 58) only limit its use, but does not support a general prohibition.
(3) In terms of customary law, the Court finds that the opinio juris on the prohibition of
the use of nuclear weapons differs amongst States, as reflected in the content and
voting patterns of General Assembly resolutions, their views on deterrence and the non
use of nuclear weapons in the recent past (para 64 -72 and see post on opinio juris).
The Court finds that:
…the members of the international community are profoundly divided on the matter of
whether non-recourse to nuclear weapons over the past 50 years constitutes the
expression of opinio juris. Under these circumstances the Court does not consider itself
able to find that there is such an opinio juris… The emergence, as lex lata, of a
customary rule specifically prohibiting the use of nuclear weapons as such is hampered
by the continuing tensions between the nascent opinio juris on the one hand, and the
still strong adherence to the practice of deterrence on the other.
(4) The Court concludes that there is no comprehensive and universal prohibitions on
the threat or use of nuclear weapons under treaty law or customary law.
(5) Even if international law does not explicitly prohibit the threat or use of
nuclear weapons, is their use regulated under international law?
Thus far, the Court has concluded that there are no provisions in international law that
authorizes or prohibits the threat or use of nuclear weapons by States. The Court
now goes a step further to examine if the threat or use of these weapons is regulated
under international law. In other words, should its use be compatible with the
requirements of international law applicable in armed conflict (which
includes international humanitarian law) and the UN charter?
The Court finds as follows:
(1) UN Charter: Court had established that the UN Charter did not permit or prohibit
the use any type of weapons. However, it finds that for the a threat or use of force in
self defense to be lawful under Article 51 of the UN Charter, the use of nuclear
weapons must be necessary and proportionate to the armed attack against which self-
defense is exercised. The Court says that the use of nuclear weapons may be The Court finds that there is an obligation “to pursue in good faith and bring to a
proportionate in certain circumstances (the Court does not specify the circumstances). conclusion negotiations leading to disarmament…” (paras 98 – 103),

(2) International humanitarian law: The Court goes on to hold that even if the threat or
use of nuclear weapons is lawful under the UN Charter (in other words, when it is
necessary and proportionate), it must still meet the requirements of laws regulating
armed conflicts, including international humanitarian law and principles relating to
neutrality.
Note: Other interesting aspects of the judgement that haven’t been dealt with in this
post, in detail, includes paragraphs relating to the applicability of human rights and
environmental law in times of armed conflict (paras 24 – 34), policy of deterrence (para
48, 66 – 67, 73), and General Assembly’s contribution to the progressive development
of customary law.

NB: Points 1 and 2 above were uncontroversial, but the individual judges were divided
amongst themselves on points 3 and 4 below.

(3) The Court finds that it cannot conclude that the recourse of nuclear weapons
“would be illegal in any circumstances”or if the use of nuclear weapons was inherently
and totally incompatible with international humanitarian law.

…In view of the unique characteristics of nuclear weapons… the use of such weapons
in fact seems scarcely reconcilable with respect for such requirements (relating
to distinction and suffering). Nevertheless, the Court considers that it does not have
sufficient elements to enable it to conclude with certainty that the use of nuclear
weapons would necessarily be at variance with the principles and rules of law applicable
in armed conflict in any circumstance… (emphasis added).

This was reaffirmed in the Court’s conclusion when it held that nuclear weapons were
generally, and not absolutely, contrary to international law applicable in armed conflicts:

It follows from the above-mentioned requirements that the threat or use of nuclear
weapons would generally be contrary to the rules of international law applicable in
armed conflict, and in particular the principles and rules of humanitarian law (emphasis
added).

(4) The Court also finds that it could not reach a conclusion on the legality or illegality of
the use of nuclear weapons in “an extreme case of self defense”. The Court highlights
the “fundamental right of every State to survival” and holds that,

…in view of the present state of international law viewed as a whole… (and base on)
the elements of fact at its disposal, the Court is led to observe that it cannot reach a
definitive conclusion as to the legality (i.e. whether the threat or use of nuclear weapons
would be lawful or unlawful) of the use of nuclear weapons by a State in an extreme
circumstance of self-defense, in which, its very survival would be at stake.

(5) The Court didn’t elaborate on what would constitute an extreme case of self-defense
nor address whether a State having nuclear weapons (a nuclear State) can use it in the
defense of another non-nuclear State when that second State’s very existence is
threatened. See further here.

(7) Is there an obligation on States for nuclear disarmament?