International Court of Justice advisory opinion

on the Legality of the Threat or Use of Nuclear

Weapons
Legality of the Threat or Use of Nuclear Weapons [1996] ICJ 2 is a landmark international
law case, where the International Court of Justice gave an advisory opinion stating that there is no
source of law, customary or treaty, that explicitly prohibits the possession or even use of nuclear
weapons. The only requirement being that their use must be in conformity with the law on self-
defence.[1]
The World Health Organization requested the opinion on 3 September 1993,[2] but it was initially
refused because the WHO was acting outside its legal capacity (ultra vires). So the United Nations
General Assembly requested another opinion in December 1994,[3] accepted by the Court in January
1995. As well as determining the illegality of nuclear weapon use, the court discussed the proper
role of international judicial bodies, the ICJ's advisory function, international humanitarian law (jus in
bello), and rules governing the use of force (jus ad bellum). It explored the status of
"Lotus approach", and employed the concept of non liquet. 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.
The possibility of outlawing use of nuclear weapons in an armed conflict was raised on 30 June
1950, by the Dutch representative to the International Law Commission (ILC) J.P.A. François, who
suggested this "would in itself be an advance".[4] In addition, the Polish government requested this
issue to be examined by the ILC as a crime against the peace of mankind.[5] However, the issue was
delayed during the Cold War.

Decision
The court undertook seven separate votes, all of which were passed:[14]

1. The court decided to comply with the request for an advisory opinion;[15]
2. The court replied that "There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons";[16]
3. The court replied that "There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons as such";[17]
4. The court replied that "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";[18]
5. The court replied that "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 humanitarian law, as well as with specific obligations under
treaties and other undertakings which expressly deal with nuclear weapons"[19]
6. The court replied 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 at stake"[20]
7. The court replied that "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".[21]
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