Legality of the Threat or Use of Nuclear Weapons, ICJ REPORTS 1996

OVERVIEW OF THE CASE:

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, the Court found that the most directly relevant
applicable law was that relating to the use of force, as enshrined in the United Nations Charter, and
the law applicable in armed conflict, together with any specific treaties on nuclear weapons that the
Court might find relevant.

The Court then considered the question of the legality or illegality of the use of nuclear
weapons in the light of the provisions of the Charter relating to the threat or use of force. It
observed, inter alia, that those provisions applied to any use of force, regardless of the weapons
employed. In addition it stated that the principle of proportionality might not in itself exclude the use
of nuclear weapons in self-defence in all circumstances. However at the same time, a 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 then turned to the law applicable in situations of armed conflict. From a
consideration of customary and conventional law, it concluded that the use of nuclear weapons
could not be seen as specifically prohibited on the basis of that law, nor did it find any specific
prohibition of the use of nuclear weapons in the treaties that expressly prohibited the use of certain
weapons of mass destruction. The Court then turned to an examination of customary international
law to determine whether a prohibition of the threat or use of nuclear weapons as such flowed from
that source of law. Noting that the members of the international community were profoundly divided
on the matter of whether non-recourse to nuclear weapons over the past 50 years constituted the
expression of an opinio juris, it did not consider itself able to find that there was such an opinio juris.
The emergence, as lex lata, of a customary rule specifically prohibiting the use of nuclear weapons
as such was hampered by the continuing tensions between the nascent opinio juris on the one hand,
and the still strong adherence to the doctrine of deterrence on the other. The Court then dealt with
the question whether recourse to nuclear weapons ought to be considered as illegal in the light of
the principles and rules of international humanitarian law applicable in armed conflict and of the law
of neutrality. It laid emphasis on two cardinal principles : (a) the first being aimed at the distinction
between combatants and non-combatants ; 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 while (b) according to the second of those principles, unnecessary suffering should
not be caused to combatants. It follows that States do not have unlimited freedom of choice in the
weapons they use. The Court also referred to the Martens Clause, according to which civilians and
combatants remained under the protection and authority of the principles of international law derived
from established custom, the principles of humanity and the dictates of public conscience.
 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-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.

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