Legality of Threat or Use of Nuclear Weapons

[Main Point: There is no customary nor conventional international law authorizing the threat or
use of nuclear weapons. There is also no customary nor conventional international law any
comprehensive/universal prohibition of the threat or use of nuclear weapons as such.]
[BACKGROUND:]
The World Health Organization (WHO), through its Director-General initially requested the
International Court of Justice (ICJ) for its advisory opinion on the question of the Legality of the
Use by a State of Nuclear Weapons in Armed Conflict by letter. The question set forth in
resolution reads as follows:
“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?”
ICJ refused to give its advisory opinion because there are three conditions which must be
satisfied in order to found the jurisdiction of the Court when a request for an advisory opinion is
submitted to it by a specialized agency: a.) the agency requesting the opinion must be duly
authorized, under the Charter, to request opinions from the Court; b.) the opinion requested must
be on a legal question; c.) and this question must be one arising within the scope of the activities
of the requesting agency.
The first two conditions have been met, however with regard to the third condition, the Court
found that although according to its Constitution the WHO is authorized to deal with the effects
on health of the use of nuclear weapons, or of any other hazardous activity, and to take
preventive measures aimed at protecting the health of populations in the event of such weapons
being used or such activities engaged in, the question put to the Court in the present case
relates not to the effects of the use of nuclear weapons on health, but to the legality of the
use of such weapons in view of their health and environmental effects. And the Court pointed
out that whatever those effects might be, the competence of the WHO to deal with them is not
dependent on the legality of the acts that caused them.
Th responsibilities of the WHO are necessarily restricted to the sphere of public "health" and
cannot encroach on the responsibilities of other parts of the UN system. And that there is no
doubt that questions concerning the use of force, the regulation of armaments and disarmament
are within the competence of the United Nations and lie outside that of the specialized agencies.
Thus, the third condition has not been met—the question from which the request for advisory
opinion not being within the scope of the activities of WHO.
[MAIN]
After the initial request of WHO was refused for acting outside its legal capacity, the UN Gen.
Assembly(UNGA) requested another advisory opinion on Dec. 1994. The UNGA asked the ICJ
urgently to render its opinion on the ff. question:
“Is the threat or use of nuclear weapons in any circumstances permitted under international law?”
The resolution, submitted to the Court on Dec. 19, 1994, was adopted by 78 states voting in
favor, 43 against, 38 abstaining and 26 not voting.
The Court decided, with some judges dissenting, that, if a threatened retaliatory strike was
consistent with military necessity and proportionality, it would not necessarily be illegal. The
Court looked at various treaties, including the UN Charter and found no treaty language that
specifically forbade the possession of nuclear weapons.
The UN Charter neither expressly prohibits, nor permits, the use of any specific weapon,
including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or
custom, does not become lawful by reason of its being used for a legitimate purpose under the
Charter.
“The Court does not find any specific prohibition of recourse to nuclear weapons in treaties
expressly prohibiting the use of certain weapons of mass destruction.” However, in practice,
nuclear weapons have not been used in war since 1945 and there have been numerous UN
resolutions condemning their use.
The ICJ did not find that these facts demonstrated a new and clear customary law
absolutely forbidding nuclear weapons.
The court laid particular emphasis on two elements of what is commonly referred to as
international humanitarian law: the prohibition of causing unnecessary suffering to
combatants and the principle of distinction between combatants and noncombatants. Under
the principle of distinction, the court stated categorically, “States must never make civilians the
object of attack and must consequently never use weapons that are incapable of distinguishing
between civilian and military targets.”
[CONCLUSION]
The Court indicated that, although the applicability to nuclear weapons of the principles and
rules of humanitarian law and of the principle of neutrality was not disputed, the conclusions to
be drawn from it were, on the other hand, controversial.
It 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-
defense, 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.

Notes:
Advisory opinion – it is a non-binding interpretation of law. It states the opinion of a court upon
a legal question submitted by a legislature, government official, or another court.
Lotus Approach – it is a principle stating that “sovereign states may act in any way they wish so
long as they do not contravene an explicit prohibition.”
Non-liquet – A situation where there is no applicable law.
Policy of deterrence - Deterrence theory holds that nuclear weapons are intended to deter other
states from attacking with their nuclear weapons, through the promise of retaliation and possibly
mutually assured destruction (MAD).
Non-Proliferation of Nuclear Weapons Treaty (NPT) – Art. VI (disarmament obligation) –all
Parties undertake to pursue good-faith negotiations on effective measures relating to cessation of
the nuclear arms race, to nuclear disarmament, and to general and complete disarmament. It does
not strictly require all signatories to actually conclude a disarmament treaty. Rather, it only
requires them "to negotiate in good faith."
The ICJ is composed of 15 judges. However, one judge died shortly before the hearings.
Therefore, there were only 14 judges. And the judges’ votes on the conclusion were evenly split
7-7; it was considered adopted due to the vote of Mohammed Bedjaoui (President of the ICJ.
He came from Algeria.)
Yet, the tie vote is misleading. In powerful dissents, three of the seven judges who voted against
the conclusion maintained that the threat or use of nuclear weapons is unlawful in all
circumstances. Thus, 10 of the 14 judges took the position that such threat or use is at least
generally unlawful.