INTERNATIONAL COURT OF JUSTICE
YEAR 1996
1996
8 July
General List No. 95
8 July 1996
LEGALITY OF THE THREAT OR USE
OF NUCLEAR WEAPONS
Jurisdiction of the Court to give the advisory opinion requested - Article 65, paragraph 1, of the Statute - Body authorized to request an opinion - Article 96, paragraphs 1 and 2, of the Charter - Activities of the General Assembly - "Legal question" - Political aspects of the question posed - Motives said to have inspired the request and political implications that the opinion might have.
Discretion of the Court as to whether or not it will give an opinion - Article 65, paragraph 1, of the Statute - Compelling reasons - Vague and abstract question - Purposes for which the opinion is sought - Possible effects of the opinion on current negotiations - Duty of the Court not to legislate.
Formulation of the question posed - English and French texts - Clear objective - Burden of proof.
Applicable law - International Covenant on Civil and Political Rights - Arbitrary deprivation of life - Convention on the Prevention and Punishment of the Crime of Genocide - Intent against a group as such - Existing norms relating to the safeguarding and protection of the environment - Environmental considerations as an element to be taken into account in the implementation of the law applicable in armed conflict - Application of most directly relevant law: law of the Charter and law applicable in armed conflict.
Unique characteristics of nuclear weapons.
Provisions of the Charter relating to the threat or use of force - Article 2, paragraph 4 - The Charter neither expressly prohibits, nor permits, the use of any specific weapon - Article 51 - Conditions of necessity and proportionality - The notions of "threat" and "use" of force stand together - Possession of nuclear weapons, deterrence and threat.
Specific rules regulating the lawfulness or unlawfulness of the recourse to nuclear weapons as such - Absence of specific prescription authorizing the threat or use of nuclear weapons - Unlawfulness per se: treaty law - Instruments prohibiting the use of poisoned weapons - Instruments expressly prohibiting the use of certain weapons of mass destruction - Treaties concluded in order to limit the acquisition, manufacture and possession of nuclear weapons, the deployment and testing of nuclear weapons - Treaty of Tlatelolco - Treaty of Rarotonga - Declarations made by nuclear-weapon States on the occasion of the extension of the Non-Proliferation Treaty - Absence of comprehensive and universal conventional prohibition of the use or the threat of use of nuclear weapons as such - Unlawfulness per se: customary law - Consistent practice of non-utilization of nuclear weapons - Policy of deterrence - General Assembly resolutions affirming the illegality of nuclear weapons - Continuing tensions between the nascent opinio juris and the still strong adherence to the practice of deterrence.
Principles and rules of international humanitarian law - Prohibition of methods and means of warfare precluding any distinction between civilian and military targets or resulting in unnecessary suffering to combatants - Martens Clause - Principle of neutrality - Applicability of these principles and rules to nuclear weapons - Conclusions.
Right of a State to survival and right to resort to self-defence - Policy of deterrence ‹ Reservations to undertakings given by certain nuclear-weapon States not to resort to such weapons.
Current state of international law and elements of fact available to the Court - Use of nuclear weapons in an extreme circumstance of self-defence in which the very survival of a State is at stake.
Article VI of the Non-Proliferation Treaty - Obligation to negotiate in good faith and to achieve nuclear disarmament in all its aspects.


ADVISORY OPINION
Present: President BEDJAOUI; Vice-President SCHWEBEL; Judges ODA, GUILLAUME, SHAHABUDDEEN, WEERAMANTRY, RANJEVA, HERCZEGH, SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, FERRARI BRAVO, HIGGINS; Registrar VALENCIA-OSPINA.
On the legality of the threat or use of nuclear weapons,
THE COURT,
composed as above,
gives the following Advisory Opinion:
1. The question upon which the advisory opinion of the Court has been requested is set forth in resolution 49/75 K adopted by the General Assembly of the United Nations (hereinafter called the "General Assembly") on 15 December 1994. By a letter dated 19 December 1994, received in the Registry by facsimile on 20 December 1994 and filed in the original on 6 January 1995, the Secretary-General of the United Nations officially communicated to the Registrar the decision taken by the General Assembly to submit the question to the Court for an advisory opinion. Resolution 49/75 K, the English text of which was enclosed with the letter, reads as follows:
"The General Assembly,
Conscious that the continuing existence and development of nuclear weapons pose serious risks to humanity,
Mindful that States have an obligation under the Charter of the United Nations to refrain from the threat or use of force against the territorial integrity or political independence of any State.
Recalling its resolutions 1653 (XVI) of 24 November 1961, 33/71 B of 14 December 1978, 34/83 G of 11 December 1979, 35/152 D of 12 December 1980, 36/92 1 of 9 December 1981, 45/59 B of 4 December 1990 and 46/37 D of 6 December 1991, in which it declared that the use of nuclear weapons would be a violation of the Charter and a crime against humanity,
Welcoming the progress made on the prohibition and elimination of weapons of mass destruction, including the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction [Resolution 2826 (XXVI), Annex.] and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction [See Official Records of the 47th Session of the General Assembly, Supplement No. 27 (A/47/27), Appendix I.],
Convinced that the complete elimination of nuclear weapons is the only guarantee against the threat of nuclear war,
Noting the concerns expressed in the Fourth Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons that insufficient progress had been made towards the complete elimination of nuclear weapons at the earliest possible time,
Recalling that, convinced of the need to strengthen the rule of law in international relations, it has declared the period 1990-1999 the United Nations Decade of International Law [Resolution 44/23.],
Noting that Article 96, paragraph 1, of the Charter empowers the General Assembly to request the International Court of Justice to give an advisory opinion on any legal question,
Recalling the recommendation of the Secretary-General, made in his report entitled ’An Agenda for Peace’ [4A/47/277-S/24111.], that United Nations organs that are authorized to take advantage of the advisory competence of the International Court of Justice turn to the Court more frequently for such opinions,
Welcoming resolution 46/40 of 14 May 1993 of the Assembly of the World Health Organization, in which the organization requested the International Court of Justice to give an advisory opinion on whether the use of nuclear weapons by a State in war or other armed conflict would be a breach of its obligations under international law, including the Constitution of the World Health Organization,
Decides, pursuant to Article 96, paragraph 1, of the Charter of the United Nations, to request the International Court of Justice urgently to render its advisory opinion on the following question: ’Is the threat or use of nuclear weapons in any circumstance permitted under international law?’"

2. Pursuant to Article 65, paragraph 2, of the Statute, the Secretary-General of the United Nations communicated to the Court a dossier of documents likely to throw light upon the question.
3. By letters dated 21 December 1994, the Registrar, pursuant to Article 66, paragraph 1, of the Statute, gave notice of the request for an advisory opinion to all States entitled to appear before the Court.
4. By an Order dated 1 February 1995 the Court decided that the States entitled to appear before it and the United Nations were likely to be able to furnish information on the question, in accordance with Article 66, paragraph 2, of the Statute. By the same Order, the Court fixed, respectively, 20 June 1995 as the time-limit within which written statements might be submitted to it on the question, and 20 September 1995 as the time-limit within which States and organizations having presented written statements might submit written comments on the other written statements in accordance with Article 66, paragraph 4, of the Statute. In the aforesaid Order, it was stated in particular that the General Assembly had requested that the advisory opinion of the Court be rendered "urgently"; reference was also made to the procedural time-limits already fixed for the request for an advisory opinion previously submitted to the Court by the World Health Organization on the question of the Legality of the use by a State of nuclear weapons in armed conflict.
On 8 February 1995, the Registrar addressed to the States entitled to appear before the Court and to the United Nations the special and direct communication provided for in Article 66, paragraph 2, of the Statute.
5. Written statements were filed by the following States: Bosnia and Herzegovina, Burundi, Democratic People’s Republic of Korea, Ecuador, Egypt, Finland, France, Germany, India, Ireland, Islamic Republic of Iran, Italy, Japan, Lesotho, Malaysia, Marshall Islands, Mexico, Nauru, Netherlands, New Zealand, Qatar, Russian Federation, Samoa, San Marino, Solomon Islands, Sweden, United Kingdom of Great Britain and Northern Ireland, and United States of America. In addition, written comments on those written statements were submitted by the following States: Egypt, Nauru and Solomon Islands. Upon receipt of those statements and comments, the Registrar communicated the text to all States having taken part in the written proceedings.
6. The Court decided to hold public sittings, opening on 30 October 1995, at which oral statements might be submitted to the Court by any State or organization which had been considered likely to be able to furnish information on the question before the Court. By letters dated 23 June 1995, the Registrar requested the States entitled to appear before the Court and the United Nations to inform him whether they intended to take part in the oral proceedings; it was indicated, in those letters, that the Court had decided to hear, during the same public sittings, oral statements relating to the request for an advisory opinion from the General Assembly as well as oral statements concerning the above-mentioned request for an advisory opinion laid before the Court by the World Health Organization, on the understanding that the United Nations would be entitled to speak only in regard to the request submitted by the General Assembly, and it was further specified therein that the participants in the oral proceedings which had not taken part in the written proceedings would receive the text of the statements and comments produced in the course of the latter.
7. By a letter dated 20 October 1995, the Republic of Nauru requested the Court’s permission to withdraw the written comments submitted on its behalf in a document entitled "Response to submissions of other States". The Court granted the request and, by letters dated 30 October 1995, the Deputy-Registrar notified the States to which the document had been communicated, specifying that the document consequently did not form part of the record before the Court.
8. Pursuant to Article 106 of the Rules of Court, the Court decided to make the written statements and comments submitted to the Court accessible to the public, with effect from the opening of the oral proceedings.
9. In the course of public sittings held from 30 October 1995 to 15 November 1995, the Court heard oral statements in the following order by:

For the Commonwealth of Australia:
Mr. Gavan Griffith, Q.C., Solicitor-General of Australia, Counsel;
The Honourable Gareth Evans, Q.C., Senator, Minister for Foreign Affairs, Counsel;
For the Arab Republic of Egypt:  
Mr. George Abi-Saab, Professor of International Law, Graduate Institute of International Studies, Geneva, Member of the Institute of International Law;
For the French Republic:
Mr. Marc Perrin de Brichambaut, Director of Legal Affairs, Ministry of Foreign Affairs;
Mr. Alain Pellet, Professor of International Law, University of Paris X and Institute of Political Studies, Paris;
For the Federal Republic of Germany:
Mr. Hartmut Hillgenberg, Director-General of Legal Affairs, Ministry of Foreign Affairs;
For Indonesia:
H.E. Mr. Johannes Berchmans Soedarmanto Kardarisman, Ambassador of Indonesia to the Netherlands;
For Mexico:
H.E. Mr. Sergio Gonzᬥz Gᬶez, Ambassador, Under-Secretary of Foreign Relations;
For the Islamic Republic of Iran:  
H.E. Mr. Mohammad J. Zarif, Deputy Minister, Legal and International Affairs, Ministry of Foreign Affairs;
For Italy:
Mr. Umberto Leanza, Professor of International Law at the Faculty of Law at the University of Rome "Tor Vergata", Head of the Diplomatic Legal Service at the Ministry of Foreign Affairs;
For Japan:
H.E. Mr. Takekazu Kawamura, Ambassador, Director General for Arms Control and Scientific Affairs, Ministry of Foreign Affairs;
Mr. Takashi Hiraoka, Mayor of Hiroshima;
Mr. Iccho Itoh, Mayor of Nagasaki;
For Malaysia:
H.E. Mr. Tan Sri Razali Ismail, Ambassador, Permanent Representative of Malaysia to the United Nations;
Dato’ Mohtar Abdullah, Attorney-General;
For New Zealand:
The Honourable Paul East, Q.C., Attorney-General of New Zealand;
Mr. Allan Bracegirdle, Deputy Director of Legal Division of the New Zealand Ministry for Foreign Affairs and Trade;
For the Philippines:
H.E. Mr. Rodolfo S. Sanchez, Ambassador of the Philippines to the Netherlands;
Professor Merlin N. Magallona, Dean, College of Law, University of the Philippines;
For Qatar:
H.E. Mr. Najeeb ibn Mohammed Al-Nauimi, Minister of Justice;
For the Russian Federation:  
Mr. A. G. Khodakov, Director, Legal Department, Ministry of Foreign Affairs;
For San Marino:
Mrs. Federica Bigi, Embassy Counsellor, Official in Charge of Political Directorate, Department of Foreign Affairs;
For Samoa:
H.E. Mr. Neroni Slade, Ambassador and Permanent Representative of Samoa to the United Nations;
Mrs. Laurence Boisson de Chazournes, Assistant Professor, Graduate Institute of International Studies, Geneva;
Mr. Roger S. Clark, Distinguished Professor of Law, Rutgers University School of Law, Camden, New Jersey;
For the Marshall Islands:
The Honourable Theodore G. Kronmiller, Legal Counsel, Embassy of the Marshall Islands to the United States of America;
Mrs. Lijon Eknilang, Council Member, Rongelap Atoll Local Government;
For the Solomon Islands:
The Honourable Victor Ngele, Minister of Police and National Security;
Mr. Jean Salmon, Professor of Law, Universit頬ibre de Bruxelles;
Mr. Eric David, Professor of Law, Universit頬ibre de Bruxelles;
Mr. Philippe Sands, Lecturer in Law, School of Oriental and African Studies, London University, and Legal Director, Foundation for International Environmental Law and Development;
Mr. James Crawford, Whewell Professor International Law, University of Cambridge;
For Costa Rica:
Mr. Carlos Vargas-Pizarro, Legal Counsel and Special Envoy of the Government of Costa Rica;
For the United Kingdom of Great Britain and Northern Ireland:
The Rt. Honourable Sir Nicholas Lyell, Q.C., M.P., Her Majesty’s Attorney-General;
For the United States of America:
Mr. Conrad K. Harper, Legal Adviser, US Department of State;
Mr. Michael J. Matheson, Principal Deputy Legal Adviser, US Department of State;
Mr. John H. McNeill, Senior Deputy General Counsel, US Department of Defense;
For Zimbabwe:
Mr. Jonathan Wutawunashe, Charg頤’affaires a.i., Embassy of the Republic of Zimbabwe in the Netherlands;
Questions were put by Members of the Court to particular participants in the oral proceedings, who replied in writing, as requested, within the prescribed time-limits; the Court having decided that the other participants could also reply to those questions on the same terms, several of them did so. Other questions put by Members of the Court were addressed, more generally, to any participant in the oral proceedings; several of them replied in writing, as requested, within the prescribed time-limits.
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10. The Court must first consider whether it has the jurisdiction to give a reply to the request of the General Assembly for an Advisory Opinion and whether, should the answer be in the affirmative, there is any reason it should decline to exercise any such jurisdiction.
The Court draws its competence in respect of advisory opinions from Article 65, paragraph 1, of its Statute. Under this Article, 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".
11. For the Court to be competent to give an advisory opinion, it is thus necessary at the outset for the body requesting the opinion to be "authorized by or in accordance with the Charter of the United Nations to make such a request". The Charter provides in Article 96, paragraph 1, that:
"The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question."
Some States which oppose the giving of an opinion by the Court argued that the General Assembly and Security Council are not entitled to ask for opinions on matters totally unrelated to their work. They suggested that, as in the case of organs and agencies acting under Article 96, paragraph 2, of the Charter, and notwithstanding the difference in wording between that provision and paragraph 1 of the same Article, the General Assembly and Security Council may ask for an advisory opinion on a legal question only within the scope of their activities.
In the view of the Court, it matters little whether this interpretation of Article 96, paragraph 1, is or is not correct; in the present case, the General Assembly has competence in any event to seise the Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to "any questions or any matters" within the scope of the Charter. Article 11 has specifically provided it with a competence to "consider the general principles . . . in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments". Lastly, according to Article 13, the General Assembly "shall initiate studies and make recommendations for the purpose of . . . encouraging the progressive development of international law and its codification".
12. The question put to the Court has a relevance to many aspects of the activities and concerns of the General Assembly including those relating to the threat or use of force in international relations, the disarmament process, and the progressive development of international law. The General Assembly has a long-standing interest in these matters and in their relation to nuclear weapons. This interest has been manifested in the annual First Committee debates, and the Assembly resolutions on nuclear weapons; in the holding of three special sessions on disarmament (1978, 1982 and 1988) by the General Assembly, and the annual meetings of the Disarmament Commission since 1978; and also in the commissioning of studies on the effects of the use of nuclear weapons. In this context, it does not matter that important recent and current activities relating to nuclear disarmament are being pursued in other fora.
Finally, Article 96, paragraph 1, of the Charter cannot be read as limiting the ability of the Assembly to request an opinion only in those circumstances in which it can take binding decisions. The fact that the Assembly’s activities in the above-mentioned field have led it only to the making of recommendations thus has no bearing on the issue of whether it had the competence to put to the Court the question of which it is seised.
13. The Court must furthermore satisfy itself that the advisory opinion requested does indeed relate to a "legal question" within the meaning of its Statute and the United Nations Charter.
The Court has already had occasion to indicate that questions
"framed in terms of law and rais[ing] problems of international law . . . are by their very nature susceptible of a reply based on law . . . [and] appear . . . to be questions of a legal character" (Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15).
The question put to the Court by the General Assembly is indeed a legal one, since the Court is asked to rule on the compatibility of the threat or use of nuclear weapons with the relevant principles and rules of international law. To do this, the Court must identify the existing principles and rules, interpret them and apply them to the threat or use of nuclear weapons, thus offering a reply to the question posed based on law.
The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a "legal question" and to "deprive the Court of a competence expressly conferred on it by its Statute" (Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 172, para. 14). 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 (cf. Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, I.C.J. Reports 1947-1948, pp. 61-62; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, pp. 6-7; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155).
Furthermore, as the Court said in the Opinion it gave in 1980 concerning the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt:
"Indeed, in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate . . ." (Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, p. 87, para. 33.)
The Court moreover considers that the political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion.
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14. Article 65, paragraph 1, of the Statute provides: "The Court may give an advisory opinion . . ." (Emphasis added.) This is more than an enabling provision. As the Court has repeatedly emphasized, the Statute leaves a discretion as to whether or not it will give an advisory opinion that has been requested of it, once it has established its competence to do so. In this context, the Court has previously noted as follows:
"The Court’s Opinion is given not to the 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." (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 71; see also Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, I.C.J. Reports 1951, p. 19; Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 86; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155; and Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, p. 189.)
The Court has constantly been mindful of its responsibilities as "the principal judicial organ of the United Nations" (Charter, Art. 92). When considering each request, it is mindful that it should not, in principle, refuse to give an advisory opinion. In accordance with the consistent jurisprudence of the Court, only "compelling reasons" could lead it to such a refusal (Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 86; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27; Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 183; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 21; and Applicability of Article VI, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, p. 191). There has been no refusal, based on the discretionary power of the Court, to act upon a request for advisory opinion in the history of the present Court; in the case concerning the Legality of the Use by a State of Nuclear Weapons in Armed Conflict, the refusal to give the World Health Organization the advisory opinion requested by it was justified by the Court’s lack of jurisdiction in that case. The Permanent Court of International Justice took the view on only one occasion that it could not reply to a question put to it, having regard to the very particular circumstances of the case, among which were that the question directly concerned an already existing dispute, one of the States parties to which was neither a party to the Statute of the Permanent Court nor a Member of the League of Nations, objected to the proceedings, and refused to take part in any way (Status of Eastern Carelia, P.C.I.J., Series B, No. 5).
15. Most of the reasons adduced in these proceedings in order to persuade the Court that in the exercise of its discretionary power it should decline to render the opinion requested by General Assembly resolution 49/75K were summarized in the following statement made by one State in the written proceedings:
"The question presented is vague and abstract, addressing complex issues which are the subject of consideration among interested States and within other bodies of the United Nations which have an express mandate to address these matters. An opinion by the Court in regard to the question presented would provide no practical assistance to the General Assembly in carrying out its functions under the Charter. Such an opinion has the potential of undermining progress already made or being made on this sensitive subject and, therefore,&