Opinion of the
International Court of Justice
On the Legality of Nuclear Weapons
85. Turning now to the applicability of the principles and rules of
humanitarian law to a possible threat or use of nuclear weapons, the Court
notes that doubts in this respect have sometimes been voiced on the ground that
these principles and rules had evolved prior to the invention of nuclear
weapons and that the Conferences of Geneva of 1949 and 1974-1977 which
respectively adopted the four Geneva Conventions of 1949 and the two Additional
Protocols thereto did not deal with nuclear weapons specifically. Such views,
however, are only held by a small minority. In the view of the vast majority
of States as well as writers there can be no doubt as to the applicability of
humanitarian law to nuclear weapons.
86. The Court shares that view. Indeed, nuclear weapons were invented
after most of the principles and rules of humanitarian law applicable in armed
conflict had already come into existence; the Conferences of 1949 and
1974-1977 left these weapons aside, and there is a qualitative as well as
quantitative difference between nuclear weapons and all conventional arms.
However, it cannot be concluded from this that the established principles and
rules of humanitarian law applicable in armed conflict did not apply to nuclear
weapons. Such a conclusion would be incompatible with the intrinsically
humanitarian character of the legal principles in question which permeates the
entire law of armed conflict and applies to all forms of warfare and to all
kinds of weapons, those of the past, those of the present and those of the
future. In this respect it seems significant that the thesis that the rules of
humanitarian law do not apply to the new weaponry, because of the newness of
the latter, has not been advocated in the present proceedings. On the
contrary, the newness of nuclear weapons has been expressly rejected as an
argument against the application to them of international humanitarian law:
"In general, international humanitarian law bears on the threat or use
of nuclear weapons as it does of other weapons.
International humanitarian law has evolved to meet contemporary
circumstances, and is not limited in its application to weaponry of an earlier
time. The fundamental principles of this law endure: to mitigate and
circumscribe the cruelty of war for humanitarian reasons." (New Zealand,
Written Statement, p. 15, paras. 63-64.)
None of the statements made before the Court in any way advocated a freedom to
use nuclear weapons without regard to humanitarian constraints. Quite the
reverse; it has been explicitly stated,
"Restrictions set by the rules applicable to armed conflicts in respect
of means and methods of warfare definitely also extend to nuclear weapons"
(Russian Federation, CR 95/29, p. 52);
"So far as the customary law of war is concerned, the United
Kingdom has always accepted that the use of nuclear weapons is subject to the
general principles of the jus in bello" (United Kingdom, CR 95/34, p. 45); and
"The United States has long shared the view that the law of armed
conflict governs the use of nuclear weapons just as it governs the use of
conventional weapons" (United States of America, CR 95/34, p. 85.)
87. Finally, the Court points to the Martens Clause, whose continuing
existence and applicability is not to be doubted, as an affirmation that the
principles and rules of humanitarian law apply to nuclear weapons.
88. The Court will now turn to the principle of neutrality which was
raised by several States. In the context of the advisory proceedings brought
before the Court by the WHO concerning the Legality of the Use by a State of
Nuclear Weapons in Armed Conflict, the position was put as follows by one
State:
"The principle of neutrality, in its classic sense, was aimed at
preventing the incursion of belligerent forces into neutral territory, or
attacks on the persons or ships of neutrals. Thus: 'the territory of neutral
powers is inviolable' (Article 1 of the Hague Convention (V) Respecting the
Rights and Duties of Neutral Powers and Persons in Case of War on Land,
concluded on 18 October 1907); 'belligerents are bound to respect the
sovereign rights of neutral powers . . .' (Article 1 to the Hague Convention
(XIII) Respecting the Rights and Duties of Neutral Powers in Naval War,
concluded on 18 October 1907), 'neutral states have equal interest in having
their rights respected by belligerents . . .' (Preamble to Convention on
Maritime Neutrality, concluded on 20 February 1928). It is clear, however,
that the principle of neutrality applies with equal force to transborder
incursions of armed forces and to the transborder damage caused to a neutral
State by the use of a weapon in a belligerent State." (Legality of the Use by
a State of Nuclear Weapons in Armed Conflict, Nauru, Written Statement (I), p.
35, IV E.)
The principle so circumscribed is presented as an established part of the
customary international law.
89. The Court finds that as in the case of the principles of humanitarian
law applicable in armed conflict, international law leaves no doubt that the
principle of neutrality, whatever its content, which is of a fundamental
character similar to that of the humanitarian principles and rules, is
applicable (subject to the relevant provisions of the United Nations Charter),
to all international armed conflict, whatever type of weapons might be used.
90. Although the applicability of the principles and rules of humanitarian
law and of the principle of neutrality to nuclear weapons is hardly disputed,
the conclusions to be drawn from this applicability are, on the other hand,
controversial.
91. According to one point of view, the fact that recourse to nuclear
weapons is subject to and regulated by the law of armed conflict does not
necessarily mean that such recourse is as such prohibited. As one State put it
to the Court:
"Assuming that a State's use of nuclear weapons meets the requirements
of self-defence, it must then be considered whether it conforms to the
fundamental principles of the law of armed conflict regulating the conduct of
hostilities" (United Kingdom, Written Statement, p. 40, para. 3.44);
"the legality of the use of nuclear weapons must therefore be assessed in
the light of the applicable principles of international law regarding the use
of force and the conduct of hostilities, as is the case with other methods and
means of warfare" (United Kingdom, Written Statement, p. 75, para. 4.2(3));
and
"The reality . . . is that nuclear weapons might be used in a wide
variety of circumstances with very different results in terms of likely
civilian casualties. In some cases, such as the use of a low yield nuclear
weapon against warships on the High Seas or troops in sparsely populated areas,
it is possible to envisage a nuclear attack which caused comparatively few
civilian casualties. It is by no means the case that every use of nuclear
weapons against a military objective would inevitably cause very great
collateral civilian casualties." (United Kingdom, Written Statement, p. 53,
para. 3.70; see also United States of America, Oral Statement, CR 95/34,
pp. 89-90.)
92. Another view holds that recourse to nuclear weapons could never be
compatible with the principles and rules of humanitarian law and is therefore
prohibited. In the event of their use, nuclear weapons would in all
circumstances be unable to draw any distinction between the civilian population
and combatants, or between civilian objects and military objectives, and their
effects, largely uncontrollable, could not be restricted, either in time or in
space, to lawful military targets. Such weapons would kill and destroy in a
necessarily indiscriminate manner, on account of the blast, heat and radiation
occasioned by the nuclear explosion and the effects induced; and the number of
casualties which would ensue would be enormous. The use of nuclear weapons
would therefore be prohibited in any circumstance, notwithstanding the absence
of any explicit conventional prohibition. That view lay at the basis of the
assertions by certain States before the Court that nuclear weapons are by
their nature illegal under customary international law, by virtue of the
fundamental principle of humanity.
93. A similar view has been expressed with respect to the effects of the
principle of neutrality. Like the principles and rules of humanitarian law,
that principle has therefore been considered by some to rule out the use of a
weapon the effects of which simply cannot be contained within the territories
of the contending States.
94. The Court would observe that none of the States advocating the legality
of the use of nuclear weapons under certain circumstances, including the
"clean" use of smaller, low yield, tactical nuclear weapons, has indicated
what, supposing such limited use were feasible, would be the precise
circumstances justifying such use; nor whether such limited use would not tend
to escalate into the all-out use of high yield nuclear weapons. This being so,
the Court does not consider that it has a sufficient basis for a determination
on the validity of this view.
95. Nor can the Court make a determination on the validity of the view that
the recourse to nuclear weapons would be illegal in any circumstance owing to
their inherent and total incompatibility with the law applicable in armed
conflict. Certainly, as the Court has already indicated, the principles and
rules of law applicable in armed conflict at the heart of which is the
overriding consideration of humanity make the conduct of armed hostilities
subject to a number of strict requirements. Thus, methods and means of
warfare, which would preclude any distinction between civilian and military
targets, or which would result in unnecessary suffering to combatants, are
prohibited. In view of the unique characteristics of nuclear weapons, to which
the Court has referred above, the use of such weapons in fact seems scarcely
reconcilable with respect for such requirements. Nevertheless, the Court
considers that it does not have sufficient elements to enable it to conclude
with certainty that the use of nuclear weapons would necessarily be at variance
with the principles and rules of law applicable in armed conflict in any
circumstance.
96. Furthermore, the Court cannot lose sight of the fundamental right of
every State to survival, and thus its right to resort to self-defence, in
accordance with Article 51 of the Charter, when its survival is at stake.
Nor can it ignore the practice referred to as "policy of deterrence", to
which an appreciable section of the international community adhered for many
years. The Court also notes the reservations which certain nuclear-weapon
States have appended to the undertakings they have given, notably under the
Protocols to the Treaties of Tlatelolco and Rarotonga, and also under the
declarations made by them in connection with the extension of the Treaty on the
Non-Proliferation of Nuclear Weapons, not to resort to such weapons.
97. Accordingly, in view of the present state of international law viewed
as a whole, as examined above by the Court, and of the elements of fact at its
disposal, the Court is led to observe that it cannot reach a definitive
conclusion as to the legality or illegality of the use of nuclear weapons by a
State in an extreme circumstance of self-defence, in which its very survival
would be at stake.
98. Given the eminently difficult issues that arise in applying the law on
the use of force and above all the law applicable in armed conflict to nuclear
weapons, the Court considers that it now needs to examine one further aspect of
the question before it, seen in a broader context.
In the long run, international law, and with it the stability of the
international order which it is intended to govern, are bound to suffer from
the continuing difference of views with regard to the legal status of weapons
as deadly as nuclear weapons. It is consequently important to put an end to
this state of affairs: the long-promised complete nuclear disarmament appears
to be the most appropriate means of achieving that result.
99. In these circumstances, the Court appreciates the full importance of
the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear
Weapons of an obligation to negotiate in good faith a nuclear disarmament.
This provision is worded as follows:
"Each of the Parties to the Treaty undertakes to pursue negotiations in
good faith on effective measures relating to cessation of the nuclear arms
race at an early date and to nuclear disarmament, and on a treaty on general
and complete disarmament under strict and effective international control."
The legal import of that obligation goes beyond that of a mere obligation of
conduct; the obligation involved here is an obligation to achieve a precise
result nuclear disarmament in all its aspects by adopting a particular course
of conduct, namely, the pursuit of negotiations on the matter in good faith.
100. This twofold obligation to pursue and to conclude negotiations
formally concerns the 182 States parties to the Treaty on the Non-Proliferation
of Nuclear Weapons, or, in other words, the vast majority of the international
community.
Virtually the whole of this community appears moreover to have been
involved when resolutions of the United Nations General Assembly concerning
nuclear disarmament have repeatedly been unanimously adopted. Indeed, any
realistic search for general and complete disarmament, especially nuclear
disarmament, necessitates the co-operation of all States.
101. Even the very first General Assembly resolution, unanimously adopted
on 24 January 1946 at the London session, set up a commission whose terms of
reference included making specific proposals for, among other things, "the
elimination from national armaments of atomic weapons and of all other major
weapons adaptable to mass destruction". In a large number of subsequent
resolutions, the General Assembly has reaffirmed the need for nuclear
disarmament. Thus, in resolution 808 A (IX) of 4 November 1954, which was
likewise unanimously adopted, it concluded
"that a further effort should be made to reach agreement on comprehensive
and co-ordinated proposals to be embodied in a draft international disarmament
convention providing for: . . . (b) The total prohibition of the use and
manufacture of nuclear weapons and weapons of mass destruction of every type,
together with the conversion of existing stocks of nuclear weapons for peaceful
purposes."
The same conviction has been expressed outside the United Nations context
in various instruments.
102. The obligation expressed in Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons includes its fulfilment in accordance with
the basic principle of good faith. This basic principle is set forth in
Article 2, paragraph 2, of the Charter. It was reflected in the Declaration on
Friendly Relations between States (resolution 2625 (XXV) of 24 October 1970)
and in the Final Act of the Helsinki Conference of 1 August 1975. It is also
embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23
May 1969, according to which "[e]very treaty in force is binding upon the
parties to it and must be performed by them in good faith".
Nor has the Court omitted to draw attention to it, as follows:
"One of the basic principles governing the creation and performance of
legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international co-operation, in particular
in an age when this co-operation in many fields is becoming increasingly
essential." (Nuclear Tests (Australia v. France), Judgment of 20 December
1974, I.C.J. Reports 1974, p. 268, para. 46.)
103. In its resolution 984 (1995) dated 11 April 1995, the Security Council
took care to reaffirm "the need for all States Parties to the Treaty on the
Non-Proliferation of Nuclear Weapons to comply fully with all their
obligations" and urged
"all States, as provided for in Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons, to pursue negotiations in good faith on
effective measures relating to nuclear disarmament and on a treaty on general
and complete disarmament under strict and effective international control which
remains a universal goal".
The importance of fulfilling the obligation expressed in Article VI of the
Treaty on the Non-Proliferation of Nuclear Weapons was also reaffirmed in the
final document of the Review and Extension Conference of the parties to the
Treaty on the Non-Proliferation of Nuclear Weapons, held from 17 April to 12
May 1995.
In the view of the Court, it remains without any doubt an objective of
vital importance to the whole of the international community today.
104. At the end of the present Opinion, the Court emphasizes that its reply
to the question put to it by the General Assembly rests on the totality of the
legal grounds set forth by the Court above (paragraphs 20 to 103), each of
which is to be read in the light of the others. Some of these grounds are not
such as to form the object of formal conclusions in the final paragraph of the
Opinion; they nevertheless retain, in the view of the Court, all their
importance.
105. For these reasons,
THE COURT,
(1) By thirteen votes to one, Decides to comply with the request for an advisory opinion;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Guillaume,
Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma,
Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judge Oda.
(2) Replies in the following manner to the question put by the General
Assembly:
A. Unanimously, There is in neither customary nor conventional international 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 FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo,
Higgins;
AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.
C. Unanimously, 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;
D. Unanimously, 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 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 follows from the above-mentioned requirements 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;
IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh,
Shi, Fleischhauer, Vereschetin, 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 its
aspects under strict and effective international control.
Done in English and in French, the English text being
authoritative, at the Peace Palace, The Hague, this eighth day of
July, one thousand nine hundred and ninety-six, in two copies, one
of which will be placed in the archives of the Court and the other
transmitted to the Secretary-General of the United Nations.
(Signed) Mohammed BEDJAOUI, President.
(Signed) Eduardo VALENCIA-OSPINA, Registrar.
President BEDJAOUI, Judges HERCZEGH, SHI,
VERESHCHETIN and FERRARI BRAVO append declarations to
the Advisory Opinion of the Court.
Judges GUILLAUME, RANJEVA and FLEISCHHAUER
append separate opinions to the Advisory Opinion of the Court.
Vice-President SCHWEBEL, Judges ODA,
SHAHABUDDEEN, WEERAMANTRY, KOROMA and
HIGGINS append dissenting opinions to the Advisory Opinion of
the Court.
(Initialled) M. B.
(Initialled) E. V. O.
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