The opinions of the international court of justice on the threat or use of nuclear weapons

American Journal of International Law

Volumn 91, Issue 3, 1997, Pages 417-434

  Matheson, Michael J ^a  

^a NONE

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EID: 0031525661     PISSN: 00029300     EISSN: None     Source Type: Journal    
DOI: 10.2307/2954181     Document Type: Article

References (107)

1. Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion of July 8, 1996), 35 ILM 809 & 1343 (1996) [hereinafter Opinion for UNGA]; and Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 ICJ REP. 66 (Advisory Opinion of July 8) [hereinafter Opinion for WHO].
2. E.g., Richard A. Falk, Nuclear Weapons, International Law and the World Court: A Historic Encounter, 91 AJIL 64 (1997); Peter H. F. Bekker, Legality of the Threat or Use of Nuclear Weapons, 91 AJIL 126 (1997); Roger S. Clark, The Laws of Armed Conflict and the Use or Threat of Use of Nuclear Weapons, 7 CRIM. L.F. 265 (1996).
3. E.g., Richard A. Falk, Nuclear Weapons, International Law and the World Court: A Historic Encounter, 91 AJIL 64 (1997); Peter H. F. Bekker, Legality of the Threat or Use of Nuclear Weapons, 91 AJIL 126 (1997); Roger S. Clark, The Laws of Armed Conflict and the Use or Threat of Use of Nuclear Weapons, 7 CRIM. L.F. 265 (1996).
4. E.g., Richard A. Falk, Nuclear Weapons, International Law and the World Court: A Historic Encounter, 91 AJIL 64 (1997); Peter H. F. Bekker, Legality of the Threat or Use of Nuclear Weapons, 91 AJIL 126 (1997); Roger S. Clark, The Laws of Armed Conflict and the Use or Threat of Use of Nuclear Weapons, 7 CRIM. L.F. 265 (1996).
5. See Dessenting Opinion of Judge Oda, Opinion for UNGA, para. 8; United Kingdom [UK], Written Statement 3-5 (June 1995).
6. This request was made by a resolution adopted by the World Health Assembly. Res. WHA 46.40, op. para. 1 (May 14, 1993). The resolution was adopted by a vote of 73-40 (U.S.) -10. An earlier U.S. motion determining that the resolution was not within the competence of the WHO was rejected by a vote of 62-38-3. See Separate Opinion of Judge Oda, Opinion for WHO, 1996 ICJ REP. at 88, 93-94, 95, paras. 10, 14.
7. GA Res. 49/75K, op. para. 1 (Dec. 15, 1994). The resolution was adopted by a vote of 78-43 (U.S.) -38. See Dissenting Opinion of Judge Oda, supra note 3, para. 13.
8. Opinion for UNGA, supra note 1, paras. 4-9.
9. Opinion for WHO, 1996 ICJ REP. at 79-84, paras. 26-32. This decision was adopted by a vote of 11-3 (Judges Shahabuddeen, Weeramantry and Koroma dissenting).
10. Opinion for UNGA, supra note 1, paras. 11-19, 105(1). This decision was adopted by a vote of 13-1 (Judge Oda dissenting).
11. Id., para. 105(2) (A). This finding was unanimous.
12. Id., para. 105(2) (B). This finding was adopted by a vote of 11-3 (Judges Shahabuddeen, Weeramantry and Koroma dissenting).
13. Id., para. 105(2) (C)-(D). These findings were unanimous.
14. Article 55 of the Statute of the Court provides that "[a]ll questions shall be decided by a majority of the judges present," but that "[i]n the event of an equality of votes, the President . . . shall have a casting vote."
15. Opinion for UNGA, para. 105(2) (E). Judges Bedjaoui, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin and Ferrari Bravo voted in favor; Judges Schwebel, Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma and Higgins voted against.
16. Id., paras. 67, 96.
17. Id., para. 46.
18. Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 UST 483, 729 UNTS 161.
19. Opinion for UNGA, para. 105(2) (F). This finding was unanimous.
20. Agreement between the United Nations and the World Health Organization, Nov. 12, 1948, Art. X(2), 19 UNTS 193, approved by GA Res. 124 (II) (Nov. 15, 1947).
21. E.g., Finland [Fin.], Written Statement 2-3 (Sept. 1994); France [Fr.], Written Statement 4-21 (Sept. 1994); Germany [FRG], Written Statement 1-3 (Sept. 1994); Italy, Written Statement 1-2 (Sept. 1994); Netherlands [Neth.], Written Statement 2-7 (Sept. 1994); Russian Federation [Russ.], Written Statement 1-3 (June 1995); UK Written Statement 30-40 (Sept. 1994); United States [U.S.], Written Statement 3-12 (Sept. 1994).
22. Opinion for WHO, 1996 ICJ REP. at 74-78, 79-81, paras. 18-24, 26.
23. Id. at 78-79, para. 25.
24. Id. at 79-81, para. 26.
25. E.g., Fr. Written Statement 3-11 (June 1995); Fin. Written Statement 1-2 (June 1995); FRG Written Statement 3-6 (June 1995); Neth. Written Statement 3-4 (June 1995); UK Written Statement 9-20 (June 1995); U.S. Written Statement 1-7 (June 1995).
26. A detailed survey of previous requests for advisory opinions, highlighting the differences between those requests and the requests in the Nuclear cases, is contained in UK Written Statement 11-15 (June 1995).
27. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council resolution 276 (1970), 1971 ICJ REP. 16 (Advisory Opinion of June 21).
28. Certain expenses of the United Nations (Article 17, paragraph 2, of the Charter), 1962 ICJ REP. 151 (Advisory Opinion of July 20).
29. Admission of a State to the United Nations (Charter, Art. 4), 1948 ICJ REP. 57 (Advisory Opinion of May 28).
30. Competence of the General Assembly regarding Admission to the United Nations, 1950 ICJ REP. 4 (Advisory Opinion of Mar. 4).
31. Opinion for UNGA, supra note 1, para. 14.
32. Judge Oda dissented on the grounds that the Court should have exercised its discretion to decline the UNGA request for an advisory opinion, for reasons of "judicial propriety" and "judicial economy." Dissenting Opinion of Judge Oda, supra note 3, paras. 52-53. He argued that the UNGA request was not a genuine request for an advisory opinion but merely a request for endorsement of a preconceived "legal axiom"; that the request was unclear; that it was "far from representing a consensus of the General Assembly"; and that the question posed was "unrelated either to a concrete dispute or to a concrete problem awaiting a practical solution." Id., paras. 43, 51.
33. Opinion for UNGA, supra note 1, para. 13.
34. Id., para. 15.
35. Id., para. 16.
36. Id., para. 17.
37. Id., para. 15.
38. See, e.g., Egypt, Written Statement 15-16 (June 1995); Malaysia [Malay.], Written Statement 13-14 (June 1995); Samoa, Written Statement 20-22 (June 1995); Solomon Islands [Solom. Is.], Written Statement 91-92 (June 1995).
39. E.g., Fr. Written Statement 20 (June 1995); Neth. Written Statement 10-11 (June 1995); Russ. Written Statement 9-10 (June 1995); UK Written Statement 64-68 (June 1995); U.S. Written Statement 43-46 (June 1995).
40. Opinion for UNGA, supra note 1, para. 25. The Court also noted that the Genocide Convention would prohibit only a use of nuclear weapons that met the element of intent specified in the Convention - that is, "intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such." Id., para. 26.
41. E.g., Egypt, Written Statement 17-18 (June 1995); Iran, Written Statement 4-5 (June 1995); Solom. Is. Written Statement 81-91 (June 1995). Among the principles cited was the statement in Principle 21 of the Stockholm Declaration of the United Nations Conference on the Human Environment, June 16, 1972, 11 ILM 1416, 1420 (1972), and in Principle 2 of the Rio Declaration on Environment and Development, June 14, 1992, 31 ILM 874, 876 (1992), that states have a "responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.";
42. E.g., Fr. Written Statement 20 (June 1995); UK Written Statement 68-71 (June 1995); U.S. Written Statement 34-42 (June 1995).
43. Id., paras. 30, 33. The Court noted that Articles 35(2) and 55 of Additional Protocol I to the 1949 Geneva Conventions impose "powerful constraints" concerning means and methods of warfare affecting the environment, but only "for all the States having subscribed to these provisions." Id., para. 31. (The United States is not a party to the Protocol.) Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 UNTS 3, 16 ILM 1391 (1977). In any event, new obligations imposed by the Protocol do not apply to the use of nuclear weapons. See the statements of France, the United Kingdom, and the United States at the diplomatic conference that adopted the Protocol, as contained in UK Written Statement 41 (June 1995). The Russian Federation concurred in this view. Russ. Written Statement 10-11 (June 1995).
44. Opinion for UNGA, supra note 1, para 34.
45. Id., para. 105.
46. E.g., Egypt, Written Statement 10 (June 1995); Mexico [Mex.], Written Statement 10-11 (June 1995); Sweden, Written Statement 3 (June 1995).
47. Opinion for UNGA, supra note 1, para. 43.
48. E.g., Fr. Written Statement 14-15 (June 1995); UK Written Statement 37-38, 53-54 (June 1995); U.S. Written Statement 23 (June 1995).
49. E.g., Solom. Is Written Statement 60-62 (June 1995); Sweden [Swed.], Written Statement 5 (June 1995).
50. Convention [IV] Respecting the Laws and Customs of War on Land, Oct. 18, 1907, annex, Art. 23(a), 36 Stat. 2277, 1 Bevans 631.
51. Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, June 17, 1925, 26 UST 571, 94 LNTS 65 [hereinafter Geneva Protocol].
52. E.g., India, Written Statement 3 (June 1995); Solom. Is. Written Statement 60-61 (June 1995).
53. E.g., Neth. Written Statement 7 (June 1995); UK Written Statement 48-49 (June 1995); U.S. Written Statement 24-25 (June 1995).
54. Opinion for UNGA, supra note 1, para. 55.
55. For example, the use of biological and chemical weapons is expressly prohibited by the 1925 Geneva Protocol, supra note 50; environmental modification weapons by the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, May 18, 1977, 31 UST 333, 1108 UNTS 151; and certain types of conventional weapons by the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, opened for signature Apr. 10, 1981, 19 ILM 1523 (1980), 1342 UNTS 7.
56. E.g., Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Aug. 5, 1963, 14 UST 1313, 480 UNTS 43; Treaty on the Limitation of Underground Nuclear Weapon Tests, July 3, 1974, 13 ILM 906 (1974); Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 21 UST 483, 729 UNTS 161.
57. Treaty on the Non-Proliferation of Nuclear Weapons, supra note 55.
58. E.g., Antarctic Treaty, Dec. 1, 1959, 12 UNTS 71; Treaty for the Prohibition of Nuclear Weapons in Latin America, Feb. 14, 1967, 634 UNTS 281; South Pacific Nuclear Free Zone Treaty, Aug. 6, 1985, 24 ILM 1440 (1985).
59. E.g., Treaty on Elimination of Intermediate-range and Shorter-range Missiles, Dec. 8, 1987, U.S.-USSR, 27 ILM 84 (1988); Treaty on the Reduction and Limitation of Strategic Offensive Arms, July 31, 1991, U.S.-USSR, 16 UN DISARMAMENT Y.B., App. II, at 450 (1991).
60. E.g., Agreement on Measures to Reduce the Risk of Outbreak of Nuclear War, Sept. 30, 1971, U.S.-USSR, 22 UST 1590, 807 UNTS 57; Agreement on the Prevention of Nuclear War, June 22, 1973, U.S.-USSR, 24 UST 1478.
61. E.g., Samoa, Written Statement 17-18 (June 1995).
62. Opinion for UNGA, supra note 1, para. 62.
63. E.g., Fr. Written Statement 16 (June 1995); Neth. Written Statement 11-12 (June 1995); Russ. Written Statement 7-8 (June 1995); UK Written Statement 27-32 (June 1995); U.S. Written Statement 9-14 (June 1995).
64. E.g., Fr. Written Statement 18-19 (June 1995); Russ. Written Statement 14-17 (June 1995); U.S. Written Statement 14-15 (June 1995).
65. Opinion for UNGA, supra note 1, para. 67.
66. Id., para. 62.
67. E.g., Solom. Is. Written Statement 40-43 (June 1995).
68. E.g., Fr. Written Statement 18 (June 1995); Italy, Written Statement 1-2 (June 1995); Neth. Written Statement 9-10 (June 1995); Russ. Written Statement 16-17 (June 1995); UK Written Statement 32-35 (June 1995); U.S. Written Statement 18-20 (June 1995).
69. Opinion fo UNGA, supra note 1, paras. 70-71.
70. Russ. Written Statement 10 (June 1995); UK Written Statement 45 (June 1995); U.S. Written Statement 85 (June 1995). The United States had publicly taken this view since at least 1965. See The Laws of War, [1981-88] 3 CUMULATIVE DIGEST §2, at 3421-23.
71. Opinion fo UNGA, supra note 1, paras. 78, 88.
72. Id., para. 94.
73. E.g., Iran, Written Statement 5 (June 1995); Swed. Written Statement 5 (June 1995).
74. E.g., UK Written Statement 58 (June 1995); U.S. Written Statement 31-32 (June 1995).
75. Opinion for UNGA, supra note 1, para. 89. The court quoted an explanation of the principle given by Nauru, which states 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." Id., para. 88. However, the Court did not say whether it agreed with this analysis.
76. The question of compensation for such damage - whether given ex gratia or on the basis of legal obligation - was not addressed by the Court.
77. E.g., Egypt, Written Statement 12 (June 1995); India, Written Statement 3-4 (June 1995); Mex. Written Statement 13-14 (June 1995); Solom. Is. Written Statement 46-48 (June 1995). 77 E.g., UK Written Statement 52-53 (June 1995); U.S. Written Statement 22-23 (June 1995).
78. See, e.g., U.S. DEP'T OF THE ARMY, THE LAW OF LAND WARFARE 19-20 (Field Manual 27-10, 1956).
79. Opinion for UNGA, supra note 1, Dissenting Opinion of Vice-President Schwebel at 7.
80. E.g., Egypt, Written Statement 12-13 (June 1995); India, Written Statement 3 (June 1995); Mex. Written Statement 13 (June 1995); Swed. Written Statement 5 (June 1995).
81. E.g., Neth. Written Statement 7-8 (June 1995); Russ. Written Statement 12-14 (June 1995); UK Written Statement 50-52 (June 1995); U.S. Written Statement 28-29 (June 1995). These same issues have arisen in the context of negotiations about the use of land mines and blinding lasers. See generally Burrus M. Carnahan & Marjorie Robertsons, The Protocol on "Blinding Laser Weapons": A New Direction for International Humanitarian Law, 90 AJIL 484 (1996); Michael J. Matheson, The Revision of the Mines Protocol, 91 AJIL 158 (1997).
82. E.g., Neth. Written Statement 7-8 (June 1995); Russ. Written Statement 12-14 (June 1995); UK Written Statement 50-52 (June 1995); U.S. Written Statement 28-29 (June 1995). These same issues have arisen in the context of negotiations about the use of land mines and blinding lasers. See generally Burrus M. Carnahan & Marjorie Robertsons, The Protocol on "Blinding Laser Weapons": A New Direction for International Humanitarian Law, 90 AJIL 484 (1996); Michael J. Matheson, The Revision of the Mines Protocol, 91 AJIL 158 (1997).
83. Opinion for UNGA, supra note 1, Dissenting Opinion of Judge Higgins, paras. 14, 16.
84. Opinion for UNGA, supra note 1, para. 95.
85. Id., para. 105(2) (E) (emphasis added).
86. Id.
87. Id., para. 67.
88. Id., para. 46.
89. Id., para. 105(2) (E).
90. In particular, Judge Higgins stated: Through this formula of non-pronouncement the Court necessarily leaves open the possibility that a use of nuclear weapons contrary to humanitarian law might nonetheless be lawful. This goes beyond anything that was claimed by the nuclear weapons States appearing before the Court, who fully accepted that any lawful threat or use of nuclear weapons would have to comply with both the jus ad bellum and the jus in bello . . . . Dissenting Opinion of Judge Higgins, supra note 82, para. 29.
91. Opinion for UNGA, supra note 1, para. 94.
92. Id., para. 67.
93. Id., para. 96.
94. Id., para. 47.
95. Id., para. 48.
96. Judge Schwebel discussed at length the conversation between U.S. Secretary of State James A. Baker III and Iraqi Foreign Minister Tariq Aziz on the eve of Operation Desert Storm, in which Baker reportedly told Aziz that in the event of Iraqi use of chemical or biological weapons, "the American people will demand vengeance" and "[w]e have the means to exact it." (Baker later wrote that he "purposely left the impression that the use of chemical or biological agents by Iraq could invite tactical nuclear retaliation.") Judge Schwebel considered this "an effective threat of the use of nuclear weapons" that was not unlawful. Dissenting Opinion of Vice-President Schwebel, supra note 79, at 9-12.
97. See, e.g., U.S. DEP'T OF THE ARMY, supra note 78, at 177-78; FRITS F. KALSHOVEN, BELLIGERENT REPRISALS (1971). The 1949 Geneva Conventions prohibit reprisals against prisoners of war and certain other categories of persons, e.g., Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, Art. 46, 6 UST 3114, 75 UNTS 31; Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, Art. 47, 6 UST 3217, 75 UNTS 85; Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, Art. 13, 6 UST 3316, 75 UNTS 135; Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Art. 33, 6 UST 3515, 75 UNTS 287. Additional Protocol I to the 1949 Geneva Conventions, supra note 42, Arts. 51 (6), 52(1), contains a series of other prohibitions on reprisals, including reprisals against the civilian population and civilian objects. However, these provisions are new prohibitions that apply only to parties to Additional Protocol I. (None of the Western nuclear weapon states are currently parties.) These new rules do not in any event apply to nuclear weapons. See Neth. Written Statement 9 (June 1995); UK Written Statement 40-46 (June 1995); U.S. Written Statement 25-28 (June 1995). The adoption of these various partial prohibitions, of course, tends to confirm that the right of belligerent reprisal was otherwise accepted.
98. E.g., India, Written Statement 2-3 (June 1995); Malay. Written Statement 18 (June 1995); Mex. Written Statement 11 (June 1995); Samoa, Written Statement 25-26 (June 1995); Solom. Is. Written Statement 60-68 (June 1995).
99. E.g., Neth. Written Statement 12 (June 1995); UK Written Statement 58-60 (June 1995); U.S. Written Statement 30-31 (June 1995).
100. Opinion for UNGA, supra note 1, para. 46.
101. The U.S. Army field manual, THE LAW OF LAND WARFARE, supra note 78, at 177, states that "the acts resorted to by way of reprisal need not conform to those complained of by the injured party, but should not be excessive or exceed the degree of violence committed by the enemy." KALSHOVEN, supra note 96, at 341, states that "the proportionality envisaged here is proportionality to the preceding illegality" and that "proportionality in this context means the absence of obvious disproportionality, as opposed to strict proportionality."
102. The U.S. Army field manual, THE LAW OF LAND WARFARE, supra note 78, at 177, states that "the acts resorted to by way of reprisal need not conform to those complained of by the injured party, but should not be excessive or exceed the degree of violence committed by the enemy." KALSHOVEN, supra note 96, at 341, states that "the proportionality envisaged here is proportionality to the preceding illegality" and that "proportionality in this context means the absence of obvious disproportionality, as opposed to strict proportionality."
103. For example, of the judges concurring in the Court's opinion, Judge Vereshchetin took the view that the Court was "debarred" from finding that there is "a general rule comprehensively proscribing the threat or use of nuclear weapons." Opinion for UNGA, supra note 1, Declaration of Judge Vereshchetin, at 2. Judge Fleischhauer stated that "[t]he nuclear weapon is, in many ways, the negation of the humanitarian considerations underlying the law applicable in armed conflict and of the principle of neutrality." But he also concluded that the policy of deterrence "must be regarded as State practice in the legal sense," and that it would be incorrect to find that the threat or use of nuclear weapons was prohibited in all circumstances because this "could amount to a denial of self-defence itself" in a circumstance where this was "the last available means by way of which the victimized State could exercise its right under Article 51 of the Charter." In particular, he stated that recourse to nuclear weapons "could remain a justified legal option in an extreme situation of individual or collective self-defence in which the threat or use of nuclear weapons is the last resort against an attack with nuclear, chemical or bacteriological weapons or otherwise threatening the very existence of the victimized State." Opinion for UNGA, supra, Separate Opinion of Judge Fleischhauer, paras. 2, 5, 3 & 5, respectively. Of those judges who voted against the Court's finding on this point, Judge Guillaume concluded that it follows implicitly but necessarily from paragraph 2 E of the Court's opinion that States can resort to "the threat or use of nuclear weapons . . . in an extreme circumstance of self-defence, in which the very survival of a State would be at stake." This has always been the foundation of the policies of deterrence whose legality is thus recognized. Opinion for UNGA, supra, Separate Opinion of Judge Guillaume, para. 12. Judge Schwebel stated that the use of nuclear weapons is "exceptionally difficult to reconcile with the rules of international law applicable in armed conflict," but that "that is by no means to say that the use of nuclear weapons, in any and all circumstances, would necessarily and invariably conflict with those rules." Dissenting Opinion of Vice-President Schwebel, supra note 79, at 8. He cited several examples of situations in which the threat or use of such weapons would likely be lawful, and others in which it might or might not be, depending on the circumstances. Judge Oda concluded that the possibility of using nuclear weapons "cannot be totally excluded in certain special circumstances" and that "the doctrine of nuclear deterrence continues to be meaningful and valid." Dissenting Opinion of Judge Oda, supra note 3, para. 41. Judge Higgins concluded that in order to meet the legal requirement that a military target may not be attacked if collateral civilian casualties would be excessive in relation to the military advantage, the "military advantage" must indeed be one related to the very survival of a State or the avoidance of infliction (whether by nuclear weapons or other weapons of mass destruction) of vast and severe suffering on its own population; and that no other method of eliminating this military target be available. Dissenting Opinion of Judge Higgins, supra note 82, para. 21.
104. Opinion for UNGA, supra note 1, Dissenting Opinions of Judges Shahabuddeen, Weeramantry and Koroma.
105. Treaty on the Non-Proliferation of Nuclear Weapons, supra note 55.
106. Opinion for UNGA, supra note 1, para. 105(2) (F).
107. Id., para. 99.