July 8, 1996

World Court Rules on Threat or Use of Nuclear Weapons

The International Court of Justice, which is the legal arm of the United Nations, delivered an advisory opinion on the legality of the use or threat of use of nuclear weapons on July 8, 1996 in response to a request from the United Nations General Assembly.

In brief, the court ruled unanimously that the use or threat of use of nuclear weapons would be illegal under international humanitarian law in all circumstances with the possible exception of a state whose very survival was imperiled, and even then it was not certain to be legal.

 

John Burroughs JD, writing The (Il)legality of Threat or AUse of Nuclear Weapons: A Guide to the Hisotoric Opinion of the International Court of Justice, summarizes the Court's formal legal conclusions as follows:

A. Unanimously,

There is in neither customary nor conventional ihnternational law any specific authorization 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 Farour: President Bedjaoui; Vice-President Schwebel; Judges Oda, Cuillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;

Againstg: Judges Shahabuddeen, Weeramantry, Koroma.

C. Unanimously,

A threat of 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 e compatioble with the requirements of the international law applicable in armed conflict, particuloarly 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, by the President's casting vote,

It follow from the above-mentioned requirements that the threat or use of nuyclear 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 inbternational law, and of the elements of fact at its disposal, the Court cannot conclude definhitively whether the trheat of use of nuclear weapons would be lawful or unlawful in an extgreme circumstance of self-defence, in which tghe very survival of a State would be at stake;

In favour: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, 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 itsw aspects under strict and effective international control.

John Burroughs goes on to comment:  "The two central results of the case are the general illegality of threat or use of nuclear weapons, especially in view of humanitarian law protecting civilians and combatants from indiscriminate and unnecessary effects of warfare, and the obligation to eliminate nuclear weapons through good faith negotiation. But there is much else of significance, including the Court's holdings regarding the environment, necessity and proportionality, and threat, as well as its failure to reach a definitive conclusion as to an extreme circumstance of self-defence involving the very survival of a state."

John Burroughs is the Executive Director of the Lawyers Committee for Nuclear Policy in New York City. Further information on the ICJ opinion is available on their web site:  http://www.lcnp.org/wcourt/index.htm