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Encyclopedia > International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons

The Legality of the Threat or Use of Nuclear Weapons[1] was an advisory opinion handed down by the International Court of Justice (ICJ) on 8 July 1996. The decision, given in response to requests from the United Nations General Assembly, provides one of the few authoritative judicial decisions concerning the legality under international law of the use or the threatened use of nuclear weapons. The ICJ ruled by the narrowest of majorities that the threat or use of nuclear weapons "would generally be contrary to the rules of international law applicable in armed conflict", subject to one apparent exception. An advisory opinion, in civil procedure, is an opinion issued by a court that does not have the effect of resolving a specific legal case, but merely advises on the constitutionality or interpretation of a law. ... The International Court of Justice (known colloquially as the World Court or ICJ; French: ) is the principal judicial organ of the United Nations. ... July 8 is the 189th day of the year (190th in leap years) in the Gregorian Calendar, with 176 days remaining. ... 1996 (MCMXCVI) was a leap year starting on Monday of the Gregorian calendar, and was designated the International Year for the Eradication of Poverty. ... The United Nations (UN) is an international organization whose stated aims are to facilitate co-operation in international law, international security, economic development, and social equity. ... The United Nations General Assembly (GA) is one of the five principal organs of the United Nations. ... International law (also called public international law to distinguish from private international law, i. ... The mushroom cloud of the atomic bombing of Nagasaki, Japan, 1945, rose some 18 km (11 mi) above the epicenter. ...


Beyond this central question, many more general issues were touched upon by the Court or raised in the pleadings. These included institutional issues such as the proper role of international judicial bodies, and the ICJ's advisory function. The main substantive issues regarded sources of international legal obligation; and the interaction of various branches of international law, particularly the norms of international humanitarian law (jus in bello) and the rules governing the use of force (jus ad bellum). In addition, the proceedings raised issues such as the possibility of non liquet and the status of "Lotus approach". There were also strategic questions such as the legality of the practice of nuclear deterrence or the meaning of Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. In the law, a pleading is one of the papers filed with a court in a civil action, such as a complaint, a demurrer, or an answer. ... International Humanitarian Law (IHL), also known as the law of war, the laws and customs of war or the law of armed conflict, is the legal corpus comprised of the Geneva Conventions and the Hague Regulations, as well as subsequent treaties, case law, and customary international law. ... The laws of war (Jus in bello) define the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians. ... Jus ad bellum (Latin for Justice of War; see also Just War Theory) are a set of criteria that are consulted before engaging in war, in order to determine whether entering into war is justifiable. ... To meet Wikipedias quality standards, this article or section may require cleanup. ... Mutual assured destruction (MAD) is the doctrine of military strategy in which a full scale use of nuclear weapons by one of two opposing sides would result in the destruction of both the attacker and the defender. ... The Nuclear Non-Proliferation Treaty (NPT) is a treaty, opened for signature on July 1, 1968, restricting the possession of nuclear weapons. ...

Contents

Proceedings

Initially, an advisory opinion was requested by the World Health Organization (WHO) on 3 September 1993 to the question: The World Health Organization (WHO) is a specialized agency of the United Nations, acting as a coordinating authority on international public health, headquartered in Geneva, Switzerland. ... September 3 is the 246th day of the year (247th in leap years) in the Gregorian calendar. ... 1993 (MCMXCIII) was a common year starting on Friday of the Gregorian calendar and marked the Beginning of the International Decade to Combat Racism and Racial Discrimination (1993-2003). ...

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?

Due to stiff opposition from many industrialised nations as well as the WHO Legal Adviser, the request was delayed. The ICJ fixed 10 June 1994 as the time limit for written submissions, but later extended this date to 20 September. The Court later refused to given an advisory opinion on the WHO question. It held in the Legality of the Use by a State of Nuclear Weapons in Armed Conflict case (commonly called the WHO Nuclear Weapons case), by 11 votes to three, that the question did not fall within the scope of WHO's activities, as is required by Article 96(2) of the ICJ Charter. Coloured world map indicating Human Development Index (as of 2003). ... June 10 is the 161st day of the year in the Gregorian calendar (162nd in leap years), with 204 days remaining. ... 1994 (MCMXCIV) was a common year starting on Saturday of the Gregorian calendar, and was designated as the International Year of the Family and the International Year of the Sport and the Olympic Ideal by United Nations. ... September 20 is the 263rd day of the year (264th in leap years). ...


On 15 December 1994 the UN General Assembly adopted resolution 49/75K. This asked the ICJ urgently to render its advisory opinion on the following question: "Is the threat or use of nuclear weapons in any circumstances permitted under international law?" The resolution, submitted to the Court on 19 December 1994, was adopted by 78 states voting in favour, 43 against, 38 abstaining and 25 not voting. The General Assembly had considered asking a similar question in the autumn of 1993, at the instigation of the Non-Aligned Movement (NAM), which ultimately did not that year push its request. NAM was more willing the following year, in the face of written statements submitted in the WHO proceedings from a number of nuclear-weapon states indicating strong views to the effect that the WHO lacked competence in the matter. The Court subsequently fixed 20 June 1995 as the filing date for written statements. December 15 is the 349th day of the year (350th in leap years) in the Gregorian calendar. ... United Nations General Assembly The United Nations General Assembly is one of the six principal organs of the United Nations. ... December 19 is the 353rd day of the year (354th in leap years) in the Gregorian calendar. ... 1994 (MCMXCIV) was a common year starting on Saturday of the Gregorian calendar, and was designated as the International Year of the Family and the International Year of the Sport and the Olympic Ideal by United Nations. ... Member states of the Non-Aligned Movement (2005). ... June 20 is the 171st day of the year (172nd in leap years) in the Gregorian Calendar, with 194 days remaining. ... 1995 (MCMXCV) was a common year starting on Sunday of the Gregorian calendar. ...


Altogether forty-two states participated in the written phase of the pleadings, the largest number ever to join in proceedings before the Court. Of the five declared nuclear weapon states only the People's Republic of China did not participate. Of the three "threshold" nuclear-weapon states only India participated. Many of the participants were developing states which had not previously contributed to proceedings before the ICJ, a reflection perhaps of the unparalleled interest in this matter and the growing willingness of developing states to engage in international judicial proceedings in the "post-colonial" period.  High human development Medium human development Low human development Unavailable A developing country is a country with a relatively low standard of living, undeveloped industrial base, and moderate to low Human Development Index (HDI). ... This article is in need of attention from an expert on the subject. ...


Oral hearings were held from 30 October to 15 November 1995. Twenty-two states participated,[2] as did the WHO. The secretariat of the UN did not appear, but filed with the Court a dossier explaining the history of resolution 49/75K. Each state was allocated 90 minutes to make its statement. On 8 July 1996, nearly eight months after the close of the oral phase, the ICJ rendered its Opinion. October 30 is the 303rd day of the year (304th in leap years) in the Gregorian Calendar, with 62 days remaining. ... November 15 is the 319th day of the year (320th in leap years) in the Gregorian Calendar, with 46 days remaining. ... A dossier is a legal paper or a collection of documents on a specific person/concept or the like. ...


Decision

In its 8 July 1996 Advisory Opinion, the Court decided unanimously that any threat of the use of force, or the use of force, by means of nuclear weapons that is contrary to Article 2, paragraph 4 of the United Nations Charter or that fails to meet all the requirements of Article 51 would be unlawful. July 8 is the 189th day of the year (190th in leap years) in the Gregorian Calendar, with 176 days remaining. ... 1996 (MCMXCVI) was a leap year starting on Monday of the Gregorian calendar, and was designated the International Year for the Eradication of Poverty. ...


The Court also decided (but by a divided vote) that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and would violate the principles and rules of humanitarian law. The panel's vote on this ruling was seven to seven, with the President of the Court, Judge Muhamad Bedjaoui of Algeria, casting the deciding vote under ICJ rules. However, three of the seven "dissenting" judges (namely, Judge Shahabuddeen of Guyana, Judge Weeramantry of Sri Lanka, and Judge Koroma of Sierra Leone) wrote separate opinions explaining that the reason they were dissenting was their view that there is no exception under any circumstances to the general principle that use of nuclear weapons is illegal. A fourth dissenter, Judge Oda of Japan, dissented largely on the ground that the Court simply should not have taken the case. Peter Weiss of the Lawyers' Committee on Nuclear Policy concludes, "Thus the position on general illegality was, in effect, ten to four and the only three judges dissenting from that principle were those elected to the Court from the three Western NWS [that is, Nuclear Weapons States], Schwebel (US), Guillaume (France) and Higgins (UK)." [1]


Nevertheless, the Court's opinion did not conclude definitively and categorically, under the existing state of international law at the time, whether in an extreme circumstance of self-defence in which the very survival of a State would be a stake, the threat or use of nuclear weapons would necessarily be unlawful in all possible cases.


Unanimously, the Court further decided that any threat or use of nuclear weapons would need to comply with all requirements of international law applicable to armed conflict, particularly the principles and rules of international humanitarian law, and would also need to comply with specific obligations under treaties and other undertakings that expressly deal with nuclear weapons.


In its final declaration, the Court decided unanimously that there exists an obligation to pursue in good faith, and to bring to a conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.


Composition of the Court

The Court at the time of this decision was composed as follows:

  • PRESIDENT Bedjaoui
  • VICE-PRESIDENT Schwebel
  • JUDGE Oda
  • JUDGE Guillaume
  • JUDGE Shahabuddeen
  • JUDGE Weeramantry
  • JUDGE Ranjeva
  • JUDGE Herczegh
  • JUDGE Shi
  • JUDGE Fleischauer
  • JUDGE Koroma
  • JUDGE Vereshchetin
  • JUDGE Ferrari Bravo
  • JUDGE Higgins; and
  • REGISTRAR Valencia-Ospina.

Court's analysis of illegality of nuclear weapons

Deterrence and "threat"

The court first investigated the matter of deterrence, which involves a threat to use nuclear weapons under certain circumstances (i.e. a nuclear strike on the deterring country). Was such a threat illegal? It was widely agreed that if the use of force would be illegal, then the threat to use such force would also be illegal. The Court decided, with some judges dissenting, that, if a threatened retaliatory strike was consistent with necessity and proportionality, it would not necessarily be illegal. Deterrence ALOHA!! is a means of controlling a persons behavior through negative motivational influences, namely fear of punishment. ...


Mere possession of nuclear weapons as illegal

The Court then considered the very existence of nuclear weapons. Was just having them illegal?


Treaties

The Court looked at various treaties (including the UN Charter) and found no treaty language that specifically forbade the possession of nuclear weapons in a categorical way. It was argued by some that the Hague Conventions concerning the use of chemical weapons would also apply to nuclear weapons, but a majority of the Court was unable to adopt this argument. A treaty is a binding agreement under international law concluded by subjects of international law, namely states and international organizations. ... The United Nations Charter is the constitution of the United Nations. ... The Hague Conventions were international treaties negotiated at the First and Second Peace Conferences at The Hague, Netherlands in 1899 and 1907, respectively, and were, along with the Geneva Conventions, among the first formal statements of the laws of war and war crimes in the nascent body of international law. ... Early detection of chemical agents Sociopolitical climate of chemical warfare While the study of chemicals and their military uses was widespread in China, the use of toxic materials has historically been viewed with mixed emotions and some disdain in the West (especially when the enemy were doing it). ...


Customary international law

Customary international law also provided insufficient evidence that the possession of nuclear weapons had come to be universally regarded as illegal. Many nations have nuclear weapons or are trying to acquire them. The Court was unable to find an opinio juris (that is, legal consensus) that such weapons are illegal to possess. However, in practice, nuclear weapons have not been used in war since 1945 and there have been numerous UN resolutions condemning their use (however, such resolutions are not universally supported--most notably, the nuclear powers object to them). The ICJ did not find that these facts demonstrated a new and clear customary law absolutely forbidding nuclear weapons. Customary international law Unwritten law applied to the behaviour of nations. ... Year 1945 (MCMXLV) was a common year starting on Monday (the link is to a full 1945 calendar). ...


Humanitarian law

However, there are many universal humanitarian laws applying to war. For instance, it is illegal for a combatant specifically to target civilians and certain types of weapons that cause indiscriminate damage are categorically outlawed. All states seem to observe these rules. The Court ruled that these laws would also apply to the use of nuclear weapons. The Court ruling indicates that, even if nuclear weapons are not per se categorically unlawful, it is only if proportional, in accordance with humanitarian law, and the United Nations Charter, and only if exercised as a last resort in extreme circumstances (such as if the very existence of the state was in jeopardy) that the use of nuclear weapons might possibly be legal. A civilian is a person who is not a member of a military. ...


Duty to disarm

Finally, the Court's opinion unanimously clarified that the world's states (countries) have a binding duty to negotiate in good faith, and to accomplish, nuclear disarmament.


Notes

References

  • Manfred Mohr, "Advisory Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons Under International Law--A Few Thoughts on its Strengths and Weaknesses" (1997) 316 International Review of the Red Cross 92, 94.
  • Eric David, "The Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons" (1997) 316 International Review of the Red Cross 21.
  • Luigi Condorelli, "Nuclear Weapons: A Weighty Matter for the International Court of Justice" (1997) 316 International Review of the Red Cross 9, 11.
  • Christopher Greenwood, "Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion" in Laurence Boisson de Chazournes and Phillipe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (1999) 247, 249.
  • Christopher Greenwood, "The Advisory Opinion on Nuclear Weapons and the Contribution of the International Court to International Humanitarian Law" (1997) 316 International Review of the Red Cross 65.
  • John McNeill, "The International Court of Justice Advisory Opinion in the Nuclear Weapons Cases--A First Appraisal" (1997) 316 International Review of the Red Cross 103, 117.
  • Ann Fagan Ginger, "Looking at the United Nations through The Prism of National Peace Law," 36(2) UN Chronicle62 (Summer 1999).
  • Mike Moore, "World Court says mostly no to nuclear weapons," 52(5) Bulletin of the Atomic Scientists, 39 (Sept-Oct 1996).
  • Douglas Holdstock and Lis Waterston, "Nuclear weapons, a continuing threat to health," 355(9214) The Lancet 1544 (29 April 2000).

April 29 is the 119th day of the year in the Gregorian calendar (120th in leap years). ... This article is about the year 2000. ...

See also

The laws of war (Jus in bello) define the conduct and responsibilities of belligerent nations, neutral nations and individuals engaged in warfare, in relation to each other and to protected persons, usually meaning civilians. ... Mutual assured destruction (MAD) is a doctrine of military strategy in which a full-scale use of nuclear weapons by one of two opposing sides would effectively result in the destruction of both the attacker and the defender. ... The Titan II ICBM carried a 9 Mt W53 warhead, making it one of the most powerful nuclear weapons fielded by the United States during the Cold War. ...

External links

  • Advisory Opinion of 8 July 1996 (from the ICJ website)
  • Summary of the Opinion
  • Lawyers Committee on Nuclear Policy website

 
 

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