International Court of Justice Advisory
Opinion: Legality of the Threat or Use
of Nuclear Weapons
Year of Decision: 1996. Court:
International Court of Justice.
DOCTRINE: The Martens Clause: “Until a
more complete code of laws of war has been
issued, the High contracting parties deem it
expedient to declare that, in cases not included
in the regulations adopted by them, the
inhabitants and belligerents remain under the
protection and the rules of the principles of the
law of nations as they result from the usages
established among civilized peoples, from
the laws of humanity, and the dictates of
the public conscience.
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
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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.
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(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
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proportionate in certain circumstances (the
Court does not specify the circumstances).
(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.
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?
The Court finds that there is an obligation “to
pursue in good faith and bring to a conclusion
negotiations leading to disarmament…” (paras
98 – 103),
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.
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Overview of the case
By a letter dated 27 August 1993, filed in the
Registry on 3 September 1993, the Director-
General of the World Health Organization
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officially communicated to the Registrar a
decision taken by the World Health Assembly
to submit to the Court the following question,
set forth in resolution WHA46.40 adopted on
14 May 1993
“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 ?”
The Court decided that the WHO and the
member States of that organization entitled to
appear before the Court were likely to be able
to furnish information on the question, in
accordance with Article 66, paragraph 2, of the
Statute. Written statements were filed by 35
States, and subsequently written observations
on those written statements were presented by
nine States. In the course of the oral
proceedings, which took place in October and
November 1995, the WHO and 20 States
presented oral statements. On 8 July 1996, the
Court found that it was not able to give the
advisory opinion requested by the World
Health Assembly.
It considered that three conditions had to be
satisfied in order to found the jurisdiction of the
Court when a request for advisory opinion was
submitted to it by a specialized agency : the
agency requesting the opinion had to be duly
authorized, under the Charter, to request
opinions of the Court ; the opinion requested
had to be on a legal question ; and that
question had to be one arising within the scope
of the activities of the requesting agency. The
first two conditions had been met. With regard
to the third, however, the Court found that
although according to its Constitution the WHO
is authorized to deal with the health effects of
the use of nuclear weapons, or of any other
hazardous activity, and to take preventive
measures aimed at protecting the health of
populations in the event of such weapons
being used or such activities engaged in, the
question put to the Court in the present case
related not to the effects of the use of nuclear
weapons on health, but to the legality of the
use of such weapons in view of their health
and environmental effects.
The Court further pointed out that international
organizations did not, like States, possess a
general competence, but were governed by the
“principle of speciality”, that is to say, they were
invested by the States which created them with
powers, the limits of which were a function of
the common interests whose promotion those
States entrusted to them. Besides, the WHO
was an international organization of a particular
kind — a “specialized agency” forming part of a
system based on the Charter of the United
Nations, which was designed to organize
international co-operation in a coherent fashion
by bringing the United Nations, invested with
powers of general scope, into relationship with
various autonomous and complementary
organizations, invested with sectorial powers.
The Court therefore concluded that the
responsibilities of the WHO were necessarily
restricted to the sphere of “public health” and
could not encroach on the responsibilities of
other parts of the United Nations system.
There was no doubt that questions concerning
the use of force, the regulation of armaments
and disarmament were within the competence
of the United Nations and lay outside that of
the specialized agencies. The Court
accordingly found that the request for an
advisory opinion submitted by the WHO did not
relate to a question arising “within the scope of
[the] activities” of that organization.
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