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Advisory Opinion of the International Court of Justice of 8 July 1996

From Academic Kids

The Advisory Opinion of the International Court of Justice of 8 July 1996 provides one of the few authoritative judicial decisions concerning the legality under international law of the use (or the threatened use) of nuclear weapons. The International Court of Justice is also known as the "World Court" or the "ICJ."

Contents

Advisory opinions within ICJ jurisdiction

Some courts, including federal courts in the United States, are constitutionally forbidden from exercising jurisdiction to issue "advisory opinions," but Article 65, paragraph 1 of the Statute of the International Court of Justice expressly authorizes that Court to render advisory opinions. Advisory opinions of the ICJ are authoritative legal pronouncements, but normally do not bind particular states with regard to particular controversies.

The Advisory Opinion of the International Court of Justice of 8 July 1996 thus provides an authoritative judicial decision concerning the legality under international law of the use (or the threatened use) of nuclear weapons.

What the World Court decided about nuclear weapons

In its 8 July 1996 Advisory Opinion, the Court decided unanimously that any threat of the use of force, or the use of force, by means of nuclear weapons that is contrary to Article 2, paragraph 4 of the United Nations Charter or that fails to meet all the requirements of Article 51 would be unlawful.

The Court also decided (but by a divided vote) that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and would violate the principles and rules of humanitarian law. The panel's vote on this ruling was seven to seven, with the President of the Court, Judge Muhamad Bedjaoui of Algeria, casting the deciding vote under ICJ rules. However, three of the seven "dissenting" judges (namely, Judge Shahabuddeen of Guyana, Judge Weeramantry of Sri Lanka, and Judge Koroma of Sierra Leone) wrote separate opinions explaining that the reason they were dissenting was their view that there is no exception under any circumstances to the general principle that use of nuclear weapons is illegal. A fourth dissenter, Judge Oda of Japan, dissented largely on the ground that the Court simply should not have taken the case. Peter Weiss of the Lawyers' Committee on Nuclear Policy concludes, "Thus the position on general illegality was, in effect, ten to four and the only three judges dissenting from that principle were those elected to the Court from the three Western NWS [that is, Nuclear Weapons States], Schwebel (US), Guillaume (France) and Higgins (UK)." [1] (http://www.lcnp.org/wcourt/Notesonthedecision.htm)

Nevertheless, the Court's opinion did not conclude definitively and categorically, under the existing state of international law at the time, whether in an extreme circumstance of self-defence in which the very survival of a State would be a stake, the threat or use of nuclear weapons would necessarily be unlawful in all possible cases.

Unanimously, the Court further decided that any threat or use of nuclear weapons would need to comply with all requirements of international law applicable to armed conflict, particularly the principles and rules of international humanitarian law, and would also need to comply with specific obligations under treaties and other undertakings that expressly deal with nuclear weapons.

In its final declaration, the Court decided unanimously that there exists an obligation to pursue in good faith, and to bring to a conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

Composition of the Court

The Court at the time of this decision was composed as follows:

  • PRESIDENT Bedjaoui
  • VICE-PRESIDENT Schwebel
  • JUDGE Oda
  • JUDGE Guillaume
  • JUDGE Shahabuddeen
  • JUDGE Weeramantry
  • JUDGE Ranjeva
  • JUDGE Herczegh
  • JUDGE Shi
  • JUDGE Fleischauer
  • JUDGE Koroma
  • JUDGE Vereshchetin
  • JUDGE Ferrari Bravo
  • JUDGE Higgins; and
  • REGISTRAR Valencia-Ospina.

Threshold jurisdictional question

Initially, the advisory opinion was requested by the World Health Organization (WHO), which, as a health agency, was deemed by the Court not to have standing to request the opinion. The UN General Assembly subsequently requested an opinion and the Court, by a vote of thirteen to one, decided to hear the case.

Court's analysis of illegality of nuclear weapons

Deterrence and "threat"

The court first investigated the matter of deterrence, which involves a threat to use nuclear weapons under certain circumstances (i.e. a nuclear strike on the deterring country). Was such a threat illegal? It was widely agreed that if the use of force would be illegal, then the threat to use such force would also be illegal. The Court decided, with some judges dissenting, that, if a threatened retaliatory strike was consistent with necessity and proportionality, it would not necessarily be legal.

Mere possession of nuclear weapons as illegal

The Court then considered the very existence of nuclear weapons. Was just having them illegal?

Treaties

The Court looked at various treaties (including the UN Charter) and found no treaty language that specifically forbade the possession of nuclear weapons in a categorical way. It was argued by some that the Hague Conventions concerning the use of chemical weapons would also apply to nuclear weapons, but a majority of the Court was unable to adopt this argument.

Customary international law

Customary International Law also provided insufficient evidence that the possession of nuclear weapons had come to be universally regarded as illegal. Many nations have nuclear weapons or are trying to acquire them. The Court was unable to find an opinio juris (that is, legal consensus) that such weapons are illegal to possess. However, in practice, nuclear weapons have not been used at a large scale in a war since 1945 and there have been numerous UN resolutions condemning their use (however, such resolutions are not universally supported--most notably, the nuclear powers object to them). The ICJ did not find that these facts demonstrated a new and clear customary law absolutely forbidding nuclear weapons.

Humanitarian law

However, there are many universal humanitarian laws applying to war. For instance, it is illegal for a combatant specifically to target civilians and certain types of weapons that cause indiscriminate damage are categorically outlawed. All states seem to observe these rules. The Court ruled that these laws would also apply to the use of nuclear weapons. The Court ruling indicates that, even if nuclear weapons are not per se categorically unlawful, it is only if proportional, in accordance with humanitarian law, and the United Nations Charter, and only if exercised as a last resort in extreme circumstances (such as if the very existence of the state was in jeopardy) that the use of nuclear weapons might possibly be legal.

Duty to disarm

Finally, the Court's opinion unanimously clarified that the world's states (countries) have a binding duty to negotate in good faith, and to accomplish, nuclear disarmament.


References

  • Nuclear Weapons Opinion [1996] 1 I.C.J. Rep. 226.
  • Manfred Mohr, "Advisory Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons Under International Law--A Few Thoughts on its Strengths and Weaknesses" (1997) 316 International Review of the Red Cross 92, 94.
  • Eric David, "The Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons" (1997) 316 International Review of the Red Cross 21.
  • Luigi Condorelli, "Nuclear Weapons: A Weighty Matter for the International Court of Justice" (1997) 316 International Review of the Red Cross 9, 11.
  • Christopher Greenwood, "Jus ad Bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion" in Laurence Boisson de Chazournes and Phillipe Sands (eds), International Law, the International Court of Justice and Nuclear Weapons (1999) 247, 249.
  • Christopher Greenwood, "The Advisory Opinion on Nuclear Weapons and the Contribution of the International Court to International Humanitarian Law" (1997) 316 International Review of the Red Cross 65.
  • John McNeill, "The International Court of Justice Advisory Opinion in the Nuclear Weapons Cases--A First Appraisal" (1997) 316 International Review of the Red Cross 103, 117.
  • Ann Fagan Ginger, "Looking at the United Nations through The Prism of National Peace Law," 36(2) UN Chronicle62 (Summer 1999).
  • Mike Moore, "World Court says mostly no to nuclear weapons," 52(5) Bulletin of the Atomic Scientists, 39 (Sept-Oct 1996).
  • Douglas Holdstock and Lis Waterston, "Nuclear weapons, a continuing threat to health," 355(9214) The Lancet 1544 (April 29, 2000).


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