International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons


International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons

"Legality of the Threat or Use of Nuclear Weapons" was an advisory opinion delivered by the International Court of Justice (ICJ) on 8 July 1996. [" [http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=4 Legality of the Threat or Use of Nuclear Weapons] " - Advisory Opinion of 8 July 1996 - General List No. 95 (1995-1998)]

The initial request for an advisory opinion by the ICJ was presented by the World Health Organization (WHO) on 3 September 1993, [" [http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=93&code=anw&p3=6 ICJ Press releases on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict] " - General List No. 93 (1993-1996)] but the ICJ did not render an opinion on this request because the WHO was Ultra Vires, or acting outside its legal capacity. Another request was presented by the United Nations General Assembly in December 1994 and accepted by the Court in January 1995, [ [http://www.icj-cij.org/docket/files/95/7646.pdf Request for an advisory opinion (on the) Legality of the Threat or Use of Nuclear Weapons] transmitted to the Court under the United Nations General Assembly resolution 49/75 K of 15 December 1994] [ [http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=95&code=unan&p3=6 ICJ Press releases on Legality of the Threat or Use of Nuclear Weapons] ] the ICJ handed down an advisory opinion on 8 July 1996 the "Legality of the Threat or Use of Nuclear Weapons" case. The decision 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 court was asked:

In a split decision the ICJ ruled thatbut

Beyond this central question, many more general issues were touched upon by the Court or raised in the pleadings. These included institutional issues such as the proper role of international judicial bodies, and the ICJ's advisory function. The main substantive issues regarded sources of international legal obligation and the interaction of various branches of international law, particularly the norms of international humanitarian law ("jus in bello") and the rules governing the use of force ("jus ad bellum"). In addition, the proceedings explored the status of ""Lotus" approach", and employed the concept of "non liquet". There were also strategic questions such as the legality of the practice of nuclear deterrence or the meaning of Article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons.

Legality of the Use by a State of Nuclear Weapons in Armed Conflict - General List No. 93

Request of the World Health Organization

An advisory opinion on this issue was originally requested by the World Health Organization (WHO) on 3 September 1993: [" [http://www.icj-cij.org/docket/index.php?p1=3&p2=4&k=e1&case=93&code=anw&p3=6 ICJ Press releases on the Legality of the Use by a State of Nuclear Weapons in Armed Conflict] " - General List No. 93 (1993-1996)]

The ICJ considered the WHO's request, in a case known as the "Legality of the Use by a State of Nuclear Weapons in Armed Conflict" (General List No. 93), and also known as the "WHO Nuclear Weapons case", between 1993 and 1996. The ICJ fixed 10 June 1994 as the time limit for written submissions, but after receiving many written and oral submissions, later extended this date to 20 September 1994. After considering the case the Court refused to give an advisory opinion on the WHO question. On 8 July 1996 it held, by 11 votes to three, that the question did not fall within the scope of WHO's activities, as is required by Article 96(2) of the ICJ Charter. [ICJ Press release on the [http://www.icj-cij.org/docket/files/93/10405.pdf Legality of the threat or use of nuclear weapons - ICJ Advisory Opinion] 8 July 1996, ICJ General List No. 93]

Legality of the Threat or Use of Nuclear Weapons - General List No. 95

Request of the United Nations

On 15 December 1994 the UN General Assembly adopted resolution A/RES/49/75K. [ [http://www.un.org/Depts/dhl/res/resa49.htm Resolutions adopted by the General Assembly at its 49th session] A service provided by the United Nations, Dag Hammarskjöld Library] This asked the ICJ urgently to render its advisory opinion on the following question:

The resolution, submitted to the Court on 19 December 1994, was adopted by 78 states voting in favour, 43 against, 38 abstaining and 26 not voting. [United Nations Bibliographic Information System Dag Hammarskjold Library [http://unbisnet.un.org:8080/ipac20/ipac.jsp?session=11677LX057E94.7&profile=voting&uri=link=3100027~!5785~!3100028~!3100069&aspect=alpha&menu=search&ri=10&source=~!horizon&term=A%2FRES%2F49%2F75K&index=Z791AZ Voting record search: UN Symbol: A/RES/49/75K] ]

The General Assembly had considered asking a similar question in the autumn of 1993, at the instigation of the Non-Aligned Movement (NAM), which ultimately did not that year push its request.Fact|date=February 2007 NAM was more willing the following year, in the face of written statements submitted in the WHO proceedings from a number of nuclear-weapon states indicating strong views to the effect that the WHO lacked competence in the matter. The Court subsequently fixed 20 June 1995 as the filing date for written statements.

Altogether forty-two states participated in the written phase of the pleadings, the largest number ever to join in proceedings before the Court.Fact|date=February 2007 Of the five declared nuclear weapon states only the People's Republic of China did not participate. Of the three "threshold" nuclear-weapon states only India participated. Many of the participants were developing states which had not previously contributed to proceedings before the ICJ, a reflection perhaps of the unparalleled interest in this matter and the growing willingness of developing states to engage in international judicial proceedings in the "post-colonial" period.Fact|date=February 2007

Oral hearings were held from 30 October to 15 November 1995. Twenty-two states participated:Australia, Egypt, France, Germany, Indonesia, Mexico, Iran, Italy, Japan, Malaysia, New Zealand, Philippines, Qatar, Russian Federation, San Marino, Samoa, Marshall Islands, Solomon Islands, Costa Rica, United Kingdom, United States, Zimbabwe; as did the WHO.Fact|date=February 2007 The secretariat of the UN did not appear, but filed with the Court a dossier explaining the history of resolution 49/75K. Each state was allocated 90 minutes to make its statement. On 8 July 1996, nearly eight months after the close of the oral phase, the ICJ rendered its Opinion.

Composition of the Court

The ICJ is composed of 15 judges elected to nine year terms by the UN General Assembly and the UN Security Council. The court's "advisory opinion" can be requested only by specific United Nations organisations, and is inherently non-binding under the Statute of the court.

The fifteen judges asked to give their advisory opinion regarding the legality of the threat or use of nuclear weapons were:

plit decision

The only significantly split decision was on the matter of whether "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict", not including "in an extreme circumstance of self-defence, in which the very survival of a State would be at stake". 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 ("including" that of ensuring the survival of a State) 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.

As Peter Weiss of the Lawyers' Committee on Nuclear Policy concludes,

Morever, in his "dissenting opinion" Schwebel remarked that

Whereas Higgins noted that she did not

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. However, the court's opinion unanimously clarified that the world's states have a binding duty to negotiate in good faith, and to accomplish, nuclear disarmament.

International Reaction

United Kingdom

The Government of the United Kingdom has announced plans to renew Britain's only nuclear weapon, the Trident missile system. [ [http://www.publications.parliament.uk/pa/cm200607/cmselect/cmdfence/ucwhite/ucmemo.htm Memoranda on the Future of the UK's Strategic Nuclear Deterrent: the White Paper] to the House of Commons Defence Committee] They have published a white paper "The Future of the United Kingdom’s Nuclear Deterrent" in which they state that the renewal is fully compatible with the United Kingdom's treaty commitments and international law. [ [http://www.fco.gov.uk/Files/kfile/White%20Paper%20Nuclear%20Deterrent.pdf The Future of the United Kingdom’s Nuclear Deterrent] (pdf) December 2006:] These arguments are summarised in a question and answer briefing published by UK Permanent Representative to the Conference on Disarmament [ [http://www.britishembassy.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1163677931589 Britain's Nuclear Deterrent] by UK Permanent Representative to the Conference on Disarmament] quotation
*Is Trident replacement legal under the Non Proliferation Treaty (NPT)? Renewal of the Trident system is fully consistent with our international obligations, including those on disarmament. ...
* Is retaining the deterrent incompatible with NPT Article VI? The NPT does not establish any timetable for nuclear disarmament. Nor does it prohibit maintenance or renewal of existing capabilities. Renewing the current Trident system is fully consistent with the NPT and with all our international legal obligations. ...
The white paper "The Future of the United Kingdom’s Nuclear Deterrent" stands in contrast to two legal opinions. The first, commissioned by Peacerights, [ [http://www.peacerights.org/aboutus.php Peacerights] [http://www.publications.parliament.uk/pa/cm200607/cmselect/cmdfence/ucwhite/ucm1002.htm Memorandum from Peacerights] ] was given on 19 December 2005 by Rabinder Singh QC and Professor Christine Chinkin of Matrix Chambers. It addressed

Drawing on the International Court of Justice (ICJ) opinion, Singh and Chinkin argued that:

The second legal opinion was commissioned by Greenpeace [Greenpeace [http://www.greenpeace.org.uk/contentlookup.cfm?&ucidparam=20061123104513 Trident replacement may be illegal under international law] ] and given by Philippe Sands QC and Helen Law, also of Matrix Chambers, on 13 November 2006. [Sands, Philippe; and Law, Helen; [http://www.greenpeace.org.uk/MultimediaFiles/Live/FullReport/8072.pdf The United Kingdom's nuclear deterrent:Current and future issies of legality] (see References)] The opinion addressed

With regards to the "jus ad bellum", Sands and Law found that

The phrase "very survival of the state" is a direct quote from paragraph 97 of the ICJ ruling. With regards to international humanitarian law, they found that

Finally, with reference to the NPT, Sands and Law found that

cots law

On 27 September, 1999, peace activists Ulla Roder, Angie Zelter, and Ellen Moxley had been acquitted of charges of malicious damage to Her Majesty's property at Greenock Sheriff Court. The three women had boarded the "Maytime" a barge moored in Loch Goil and involved in scientific work which ensured the radar invisibility of the four Vanguard-class (i.e., capable of carrying the Trident nuclear missile system) submarines berthed in the nearby Gareloch, and caused £80,000 worth of damage. As is often the case in trials relating to such actions, the defendants attempted to establish that their actions were necessary, in that they had prevented what they saw as "nuclear crime".Peter Weiss, [http://www.lcnp.org/wcourt/wasedalecture.htm The International Court of Justice and the Scottish High Court: Two Views of the Illegality of Nuclear Weapons] , Web article states that it was first published in: Waseda Proceedings of Comparative Law, Vol.4 (2001), p. 149, Institute of Comparative Law, Waseda University, Tokyo.] However, this was the first case in which the ICJ's Opinion was used in establishing the illegality of the relevant nuclear weapons.

The acquittal of "The Trident Three" resulted in the High Court of Justiciary, the supreme civil court in Scots Law, presenting a Lord Advocate's Reference, the first detailed analysis of the ICJ Opinion by another judicial body. The High Court was asked to answer four questions:

#In a trial under Scottish criminal procedure, is it competent to lead evidence as to the content of customary international law as it applies in the United Kingdom?
#Does any rule of customary international law justify a private individual in Scotland in damaging or destroying property in pursuit of his or her objection to the United Kingdom's possession of nuclear weapons, its action in placing such weapons at locations within Scotland or its policies in relation to such weapons?
#Does the belief of an accused person that his or her actions are justified in law constitute a defence to a charge of malicious mischief or theft?
#Is it a general defence to a criminal charge that the offence was committed in order to prevent or bring to an end the commission of an offence by another person?

The four collective answers given by Lord Prosser, Lord Kirkwood and Lord Penrose were all negative. This did not have the effect of overturning the acquittals of Roder, Zelter and Moxley (Scots Law, like many other jurisdictions, does not allow for an acquittal to be appealed); however, it does have the effect of invalidating the ratio decidendi under which the three women were able to argue for their acquittal, and ensures that similar defences cannot be present in Scots Law.

ee also

*"Jus in bello"
*The Martens Clause
*Mutual assured destruction
*Nuclear warfare
*Global Security Institute

References

*Sands, Philippe; and Law, Helen; " [http://www.greenpeace.org.uk/MultimediaFiles/Live/FullReport/8072.pdf The United Kingdom's nuclear deterrent:Current and future issies of legality] " (PDF) for Greenpeace.
*Singh, Rabinder; and Chinkin, Christine; " [http://www.peacerights.org/reports/195 The Maintenance and Possible Replacement of the Trident Nuclear Missile System Introduction and Summary of Advice] " for [http://www.peacerights.org/aboutus.php Peacerights]
*United Kingdom Permanent Representative to the Conference on Disarmament " [http://www.britishembassy.gov.uk/servlet/Front?pagename=OpenMarket/Xcelerate/ShowPage&c=Page&cid=1163677931589 Britain's Nuclear Deterrent] "
*United Nations General Assembly [http://daccessdds.un.org/doc/UNDOC/GEN/N95/760/03/PDF/N9576003.pdf?OpenElement A/RES/49/75/K: Request for an advisory opinion from the International Court of Justice on the legality of the threat or use of nuclear weapons] 90th plenary meeting 15 December 1994.
*Weiss, Peter; " [http://www.lcnp.org/wcourt/Notesonthedecision.htm Notes on a Misunderstood Decision: The World Court's Near Perfect Advisory Opinion in the Nuclear Weapons Case] ", website of the [http://www.lcnp.org/aboutlcnp/index.htm Lawyers' Committee on Nuclear Policy (LCNP)] July 22, 1996

ICJ Documents

* [http://www.icj-cij.org/icjwww/icases/ianw/ianwframe.htm ICJ documents relating to the case]
*" [http://www.icj-cij.org/docket/files/95/7495.pdf Legality of the threat or use of nuclear weapons (General List No. 95)] " 8 July 1996
* [http://www.icj-cij.org/icjwww/idecisions/isummaries/iunanaummary960708.htm Summary of the Advisory Opinion]
*Declarations of individual judges:
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Declaration_Bedjaoui.htm Declaration of President Bedjaoui (in French)]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Declaration_Herczegh.htm Declaration of Judge Herczegh (in French]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Declaration_Shi.htm Declaration of Judge Shi]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Declaration_Vereshchetin.htm Declaration of Judge Vereshchetin]
** [http://www.icj-cij.org/cijwww/cdocket/cunan/cunanjudgment_advisory%20opinion_19960708/cunan_cjudgment_advisory%20opinion_19960708_Opinions/cunan_cjudgment_19960708_Declaration_Ferrari%20Bravo.htm Declaration of Judge Ferrari Bravo (in French)]
*Separate Opinions of individual judges:
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Separate_Guillaume.htm Separate Opinion of Judge Guillaume (in French)]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Separate_Ranjeva.htm Separate Opinion of Judge Ranjeva (in French)]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Separate_Fleischhauer.htm Separate Opinion of Judge Fleischhauer]
*Dissenting Opinions of individual judges:
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Dissenting_Schwebel.htm Dissenting Opinion of Vice-President Schwebel]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Dissenting_Oda.htm Dissenting Opinion of Judge Oda]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Dissenting_Shahabuddeen.htm Dissenting Opinion of Judge Shahabuddeen]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Dissenting_Weeramantry.htm Dissenting Opinion of Judge Weeramantry]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Dissenting_Koroma.htm Dissenting Opinion of Judge Koroma]
** [http://www.icj-cij.org/icjwww/icases/iunan/iunan_judgment_advisory%20opinion_19960708/iunan_ijudgment_advisory%20opinion_19960708_Opinions/iunan_ijudgment_19960708_Dissenting_Higgins.htm Dissenting Opinion of Judge Higgins]

Further reading

*David, Eric; "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.
*Condorelli,Luigi; "Nuclear Weapons: A Weighty Matter for the International Court of Justice" (1997) 316 "International Review of the Red Cross" 9, 11.
* Ginger,Ann Fagan; "Looking at the United Nations through The Prism of National Peace Law," 36(2) "UN Chronicle"62 (Summer 1999).
*Greenwood, Christopher; "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.
*Greenwood, Christopher; "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.
*Holdstock, Douglas; and Waterston, Lis; "Nuclear weapons, a continuing threat to health," 355(9214) The Lancet 1544 (29 April 2000).
*McNeill, John; "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.
*Mohr, Manfred; "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.
*Moore, Mike; "World Court says mostly no to nuclear weapons," 52(5) "Bulletin of the Atomic Scientists," 39 (Sept-October 1996).
*Moxley, Charles J.; "Nuclear Weapons and International Law in the Post Cold War World" (Austin & Winfield 2000), ISBN 1572921528.

Footnotes


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