Legality of the threat or use of Nuclear Weapon Opinion

(Who Case, ICJ Rep. 1996 66)

Facts : By a letter dated 19 December 1994, filed in the Registry on 6 January 1995, the
Secretary-General of the United Nations officially communicated to the Registry a
decision taken by the General Assembly, by its resolution 49/75 K adopted on 15
December 1994, to submit to the Court, for advisory opinion, the following question : “Is
the threat or use of nuclear weapons in any circumstance permitted under international
law ?” The resolution asked the Court to render its advisory opinion “urgently”. Written
statements were filed by 28 States, and subsequently written observations on those
statements were presented by two States. In the course of the oral proceedings, which
took place in October and November 1995, 22 States presented oral statements. On 8
July 1996, the Court rendered its Advisory Opinion. Having concluded that it had
jurisdiction to render an opinion on the question put to it and that there was no
compelling reason to exercise its discretion not to render an opinion,
Issue: Whether or not it is legal to recourse to nuclear weapons in the light of the
provisions of the Charter relating to the threat or use of force.
Held: The use of force that was proportionate under the law of self-defence had, in
order to be lawful, to meet the requirements of the law applicable in armed conflict,
including, in particular, the principles and rules of humanitarian law. It pointed out that
the notions of a “threat” and “use” of force within the meaning of Article 2, paragraph 4,
of the Charter stood together in the sense that if the use of force itself in a given case
was illegal — for whatever reason — the threat to use such force would likewise be
illegal. The Court pointed out that, in view of the unique characteristics of nuclear
weapons, the use of such weapons seemed scarcely reconcilable with respect for the
requirements of the law applicable in armed conflict. The Court was led to observe that
“in view of the current state of international law and of the elements of fact at its
disposal, [it] 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”. The Court added, lastly, that there was an
obligation to pursue in good faith and to conclude negotiations leading to nuclear
disarmament in all its aspects under strict and effective international control.