World Court Nuclear Judgement Day

International Court of Justice
Communique (unofficial) for immediate release
No. 96/23, 8 July, 1996

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (REQUEST FOR ADVISORY OPINION BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS) [underlined material is capitalised for e-mail clarity]

ADVISORY OPINION
The Hague, 8 July 1996. The International Court of Justice today handed down its Advisory Opinion on the request made by the General Assembly of the United Nations in the above case.
The final paragraph of the Opinion reads as follows:

For these reasons, THE COURT

(1) By thirteen votes to one,
DECIDES to comply with the request for an advisory opinion; IN FAVOUR: PRESIDENT Bedjaoui; VICE-PRESIDENT Schwebej, JUDGES Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: JUDGE Oda

(2) REPLIES in the following manner to question put by the General Assembly: A Unanimously,
There is in neither customary nor conventional international law any specific authorisation of the threat or use of nuclear weapons;
B. By eleven votes to three, There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such;
IN FAVOUR: PRESIDENT Bedjaoui; VICE-PRESIDENT Schwebel; JUDGES Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: JUDGES Shahabuddeen, Veeramantry, Koroma

C. Unanimously,
A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4 of the United Nations Charter and that fails to meet all the requirements of Article 51 is unlawful;

D. Unanimously,
A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;

E. By seven votes to seven,
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; However, in view of the current state of International Law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be a stake;
IN FAVOUR: PRESIDENT Bedjaoui, JUDGE Renjeva, Herczegh, Shi, Fleischhauer, Vereschetin, Ferrari Bravo;
AGAINST: VICE-PRESIDENT Schwebel; JUDGES: Oda. Guillaume, Shahabuddeen, Weeramantry, Koroma Higgins.

F. Unanimously,
There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international controls.

The Court was composed as follows: PRESIDENT Bedjaoui, VICE- PRESIDENT Schwebel; JUDGES Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins: REGISTRAR Valencia-Ospina.

PRESIDENT Bedjaoui, JUDGES Herczegh, Shi, Vereshchetin and Ferrari Bravo appended declarations to the Advisory Opinion of the Court; JUDGES Guillaume, Ranjeva and Fleischhauer, Koroma and Higgins appended dissenting opinions. A brief summary of the declarations and of the opinions may be found in the annex to this Press Communique.

The printed text of the Advisory Opinion and the declarations and opinions appended to it will become available in due course (orders and enquires should be addressed to the Distributor and Sales Section, Office of the United Nations, 1211 Geneva, 10. The Sales Section United Nations New York, NY 10017; or any appropriately specialised bookshop).

World Court Project-Canada, of which Science for Peace is a member, issued the following Press Release on July 8

World Court Declares Nuclear Weapons Threat or Use Illegal

In a landmark decision today, the International Court of Justice declared that the threat or use of nuclear weapons would be “contrary to the rules of international law applicable in armed conflict” in most circumstances.

The judges were divided on whether the threat or use of nuclear weapons would be “lawful only in an extreme circumstance of self defence in which the very survival of the state would be at stake”. Seven of the fourteen judges agreed with this statement. Three judges stated that the use of nuclear weapons are illegal under any circumstances, while four thought that the threat or use of nuclear weapons was legal.

The Court unanimously stressed that, in accordance with Article VI of the Nuclear Non-Proliferation Treaty, “there exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”

David Matas, of Lawyers for Social Responsibility, co-sponsor of the World Court Project in Canada stated “up to now, the nuclear powers have shown little concern about the solemn promises contained in that Treaty. Continuing the way they have would be a violation of international law according to this judgment.” Matas went on to say, in light of this judgment, “it is important that the nuclear powers re-evaluate their current nuclear strategy. It is my belief that their existing strategy is not in conformity with this judgment. NATO doctrine must therefore be changed.”

The Court was unanimous that nuclear weapons, like any weapons, are subject to the law of armed conflict which is intended to protect civilians, combatants, the environment, neutral nations, and succeeding generations from the effects of warfare. As well, the United Nations Charter prohibits threat or use of force except in self-defense.

The World Health Organization (WHO) also sought an advisory opinion from the Court concerning the legality of the use of nuclear weapons in view of their health and environmental consequences. The Court did not rule on this question, stating that it is “not within the scope of [WHO’s] activities.” However, Mary Wynne Ashford, MD of Physicians for Global Survival (Canada) concurred with Ann Marie Janson, WHO liaison for International Physicians for the Prevention of Nuclear War (IPPNW), clarified that WHO and IPPNW “understand that prevention is the only medical response to the threat of nuclear war.”

The Court’s opinion in the General Assembly comes as a blow to the United States, United Kingdom, France and Russia, all of which urged the Court not to consider the case.

The case was initiated by international peace and disarmament groups, International Association of Lawyers Against Nuclear Arms (IALANA), International Physicians for the Prevention of Nuclear War (IPPNW), International Peace Bureau (IPB), and others. Not having direct access to the World Court, they successfully petitioned the World Health Assembly and the United Nations General Assembly to make requests for advisory opinions. Frederik Heffermehl of IPB stated, “ This case is an encouraging example of the ability of people’s organizations to make use of international institutions like the World Court, which are meant to serve the world’s people and not only their governments.”