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The Advisory Opinion on nuclear weapons and the contribution of the International Court to international humanitarian law

Published online by Cambridge University Press:  13 January 2010

Christopher Greenwood
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Extract

The request by the United Nations General Assembly, in resolution 49/75 K (1994), that the International Court give an advisory opinion on the question “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” gave the Court an unusual opportunity to consider the principles of international humanitarian law. It is an opportunity which the Court might well have preferred to do without. The question was not well framed and the reasons for asking it were wholly unsatisfactory. In particular, the necessarily abstract nature of the question placed the Court in an exceptionally difficult position, because it could not possibly consider all the combinations of circumstances in which nuclear weapons might be used or their use threatened. Yet unless one takes the position that the use of nuclear weapons is always lawful (which is obvious nonsense), falls wholly outside the law (which no State suggested) or is always unlawful (a view which has had some supporters but which the majority of the Court quite rightly rejected), then the answer to the General Assembly's question would have to depend upon a careful examination of those circumstances.

Type
Research Article
Information
International Review of the Red Cross (1961 - 1997) , Volume 37 , Special Issue 316: The Advisory Opinion of the International Court of Justice on the legality of nuclear weapons and international humanitarian law , February 1997 , pp. 65 - 75
Copyright
Copyright © International Committee of the Red Cross 1997

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References

1 International Court of Justice, Legality of the threat or use of nuclear weapons, Advisory Opinion of 8 07 1996 Google Scholar (hereinafter referred to as “Opinion”). The Court rejected, by 13 votes to one, submissions that it should not comply with the request. However, it held by 11 votes to three that it could not answer a similar question posed by the World Health Organization: Advisory Opinion on the legality of the use by a State of nuclear weapons in armed conflict, 8 July 1996.

2 The present article will be confined to the issues of substantive law considered in the Opinion handed down to the General Assembly and will not discuss the arguments as to whether the Court should have given a response to the question posed by the Assembly or the issues raised by the WHO request. Those issues are briefly considered in Lowe, A.V., “Shock verdict: Nuclear war may or may not be unlawful”, Cambridge Law Journal, 1996, p. 415.Google Scholar

3 Opinion, para. 104.

4 PCU Reports, Series A, No. 10, p. 18 (1927).Google Scholar

5 Opinion, para. 22.

6 See, e.g., the Declarations of President Bedjaoui and Judge Ferrari Bravo and the Separate Opinions of Judges Ranjeva and Guillaume.

7 Dispositif, para. 2A.

8 Ibid., para. 2B.

9 The Court's decision that there was no comprehensive prohibition is considered further below.

10 Opinion, paras. 52–53.

11 Opinion, paras. 37–50 and dispositif, para. 2C.

12 See also the European Convention on Human Rights, Article 2, the American Convention on Human Rights, Article 4, and the African Charter on Human and Peoples' Rights, Article 4.

13 Opinion, para. 25.

14 Ibid.

15 Ibid., para. 30.

16 This part of the Opinion is, in fact, quite close to the view expressed in the 1995 edition of the United States Naval Commander's Handbook, para. 8.1.3.

17 Opinion, paras. 30 and 33.

18 Ibid., para. 22. See also the discussion in the Separate Opinion of Judge Guillaume, para. 5

19 Dispositif, para. 2C.

20 Opinion, paras. 42–43.

21 Dispositif, para. 2D.

22 Dispositif, para. 2E.

23 Opinion, paras. 58–63.

24 Ibid., para. 64.

25 Ibid., para. 55.

26 Ibid., para. 95.

27 See the criticism of this approach in the Dissenting Opinion of Judge Higgins, paras. 9–10.

28 See Opinion, paras. 94 and 95.

29 See ibid., paras. 39, 51 and 91.

30 For a discussion of this theory, see the Separate Opinion of Judge Fleischhauer.