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.[1]
The initial request for an advisory opinion by the ICJ was presented by the World Health Organization (WHO) on 3 September 1993,[2] 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[3] and accepted by the Court in January 1995, 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:
Is the threat or use of nuclear weapons in any circumstances permitted under international law?
In a split decision the ICJ ruled that
... There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such ...
— ICJ[6]
but
... 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.
— ICJ[6]
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.
An advisory opinion on this issue was originally requested by the World Health Organization (WHO) on 3 September 1993:[7]
In view of the health and environmental effects, would the use of nuclear weapons by a state in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?[8]
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 UN Charter.[9]
On 15 December 1994 the UN General Assembly adopted resolution A/RES/49/75K.[10] This asked the ICJ urgently to render its advisory opinion on the following question:
Is the threat or use of nuclear weapons in any circumstances permitted under international law?
— United Nations General Assembly[5]
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.[11]
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. 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. 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.
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. 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.
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:
| President Mohammed Bedjaoui | Algeria |
| Vice-President Stephen M. Schwebel | United States |
| Judge Shigeru Oda | Japan |
| Judge Gilbert Guillaume | France |
| Judge Mohammed Shahabuddeen | Guyana |
| Judge Christopher Weeramantry | Sri Lanka |
| Judge Raymond Ranjeva | Madagascar |
| Judge Shi Jiuyong | China |
| Judge Carl-August Fleischhauer | Germany |
| Judge Abdul G. Koroma | Sierra Leone |
| Judge Géza Herczegh | Hungary |
| Judge Vladlen S. Vereshchetin | Russia |
| Judge Luigi Ferrari Bravo | Italy |
| Judge Rosalyn Higgins | United Kingdom |
| Judge Andrés Aguilar Mawdsley (died before the decision[12]) |
Venezuela |
| Registrar Eduardo Valencia-Ospina | Colombia |
The court considered the matter of deterrence, which involves a threat to use nuclear weapons under certain circumstances on a potential enemy or an enemy. Was such a threat illegal? The court decided, with some judges dissenting, that, if a threatened retaliatory strike was consistent with military necessity and proportionality, it would not necessarily be illegal. (Judgement paragraphs 37–50)
The court then considered the legality of the possession, as opposed to actual use, of nuclear weapons. 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.
The UN Charter was examined in paragraphs 37-50 (paragraph 37: "The Court will now address the question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of the Charter relating to the threat or use of force"). Paragraph 39 mentions: "These provisions [i.e. those of the Charter] do not refer to specific weapons. They apply to any use of force, regardless of the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or custom, does not become lawful by reason of its being used for a legitimate purpose under the Charter."
Treaties were examined in paragraphs 53-63 (paragraph 53: "The Court must therefore now examine whether there is any prohibition of recourse to nuclear weapons as such; it will first ascertain whether there is a conventional prescription to this effect"), as part of the law applicable in situations of armed conflict (paragraph 51, first sentence: "Having dealt with the Charter provisions relating to the threat or use of force, the Court will now turn to the law applicable in situations of armed conflict"). In particular, with respect to "the argument [that] has been advanced that nuclear weapons should be treated in the same way as poisoned weapons", the Court concluded that "it does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of the [...] provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol" (paragraphs 54 and 56)". It was also argued by some that the Hague Conventions concerning the use of bacteriological or chemical weapons would also apply to nuclear weapons, but the Court was unable to adopt this argument ("The Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction", paragraph 57 in fine).
With respect to treaties that "deal [...] exclusively with acquisition, manufacture, possession, deployment and testing of nuclear weapons, without specifically addressing their threat or use," the Court notes that those treaties "certainly point to an increasing concern in the international community with these weapons; the Court concludes from this that these treaties could therefore be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not constitute such a prohibition by themselves" (paragraph 62). Also, regarding regional treaties prohibiting resource, namely those of Tlatelolco (Latin America) and Rarotonga (South Pacific) the Court notes that while those "testify to a growing awareness of the need to liberate the community of States and the international public from the dangers resulting from the existence of nuclear weapons", "[i]t [i.e. the Court] does not, however, view these elements as amounting to a comprehensive and universal conventional prohibition on the use, or the threat of use, of those weapons as such." (paragraph 63).
Customary international law also provided insufficient evidence that the possession of nuclear weapons had come to be universally regarded as illegal.
Ultimately, the court was unable to find an opinio juris (that is, legal consensus) that nuclear weapons are illegal to possess. (paragraph 65) However, in practice, nuclear weapons have not been used in 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).(paragraph 68-73) The ICJ did not find that these facts demonstrated a new and clear customary law absolutely forbidding nuclear weapons.
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, making them a part of customary international law, so the court ruled that these laws would also apply to the use of nuclear weapons.(paragraph 86) The Court decided not to pronounce on the matter of whether the use of nuclear weapons might possibly be legal, if exercised as a last resort in extreme circumstances (such as if the very existence of the state was in jeopardy).(paragraph 97)
The court undertook seven separate votes, all of which were passed:[13]
The court voted as follows:[20]
| Judge | UN State | Vote 1 | Vote 2 | Vote 3 | Vote 4 | Vote 5 | Vote 6 | Vote 7 |
|---|---|---|---|---|---|---|---|---|
| President Mohammed Bedjaoui | Algeria | For | For | For | For | For | For | For |
| Vice-President Stephen M. Schwebel | United States | For | For | For | For | For | Against | For |
| Judge Shigeru Oda | Japan | Against | For | For | For | For | Against | For |
| Judge Gilbert Guillaume | France | For | For | For | For | For | Against | For |
| Judge Mohammed Shahabuddeen | Guyana | For | For | Against | For | For | Against | For |
| Judge Christopher Weeramantry | Sri Lanka | For | For | Against | For | For | Against | For |
| Judge Raymond Ranjeva | Madagascar | For | For | For | For | For | For | For |
| Judge Shi Jiuyong | China | For | For | For | For | For | For | For |
| Judge Carl-August Fleischhauer | Germany | For | For | For | For | For | For | For |
| Judge Abdul G. Koroma | Sierra Leone | For | For | Against | For | For | Against | For |
| Judge Géza Herczegh | Hungary | For | For | For | For | For | For | For |
| Judge Vladlen S. Vereschetin | Russia | For | For | For | For | For | For | For |
| Judge Luigi Ferrari Bravo | Italy | For | For | For | For | For | For | For |
| Judge Rosalyn Higgins | United Kingdom | For | For | For | For | For | Against | For |
| Result (For-Against): | 13-1 | 14-0 | 11-3 | 14-0 | 14-0 | 7-7[21] | 14-0 |
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.
Vice President Schwebel remarked in his dissenting opinion that
It cannot be accepted that the use of nuclear weapons on a scale which would - or could - result in the deaths of many millions in indiscriminate inferno and by far-reaching fallout, have pernicious effects in space and time, and render uninhabitable much or all of the earth, could be lawful.
And Higgins noted that she did not
exclude the possibility that such a weapon could be unlawful by reference to the humanitarian law, if its use could never comply with its requirements.[22]
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.
The ICJ ruling has not dissuaded the nuclear-armed nations from further development of nuclear weapons.
In 2006 China introduced its new DF-31 ICBM missiles[23] to supplement its older DF-4s and DF-5s. It is also in the process of replacing older DF-3A IRBM missiles with newer models of the DF-21 missile.[24]
China is also building five Type 094 submarines[25] to carry its JL-2 SLBM missiles.[26]
France is currently replacing its ageing M45 SLBM missiles with the M51. Its first flight test was on 9 November 2006[27] and it entered service in January 2010, although the older missiles will not be fully replaced until 2018.[28]
India has developed and introduced several ICBM missiles in the Agni series since 1983.[29] Most recently the Agni-III entered service in 2011,[30] while the newer Agni-IV is being tested[31] and the Agni-V is due to begin testing in 2012.[32]
In addition to its land-nased nuclear missiles, India is also building five Arihant Class submarines[33][34] to initially carry K-15 Sagarika SLBM missiles.[35] A replacement for the K-15, the K-4, is being developed from the Agni-III.[36]
Israel developed the latest version of its Jericho ballistic missile, the Jericho III, through the 2000s[37] and it is believed to have entered service in 2008.
North Korea detonated its first nuclear weapon in 2006.[38] This was followed by a second in 2009.[39]
There is no direct evidence of North Korea possessing an operational delivery system for nuclear weapons at present, but a number of possible candidates for development exist.[40] One example is the BM25 Musudan IRBM missile, which is based on the nuclear-capable Russian R-27 Zyb.
In 2005 Pakistan introduced the Babur nuclear-capable cruise missile into service.[41] It is also believed to be trying to develop a submarine launched variant.[42]
Russia introduced a new ICBM missile, the RT-2UTTKh Topol-M in the late 1990s. Moile versions were introduced in December 2006[43] at the same time it was announced that its single warhead system would be replaced by multiple warheads.[44]
More recently, Russia began testing its new RS-24 ICBM missile in May 2007, and deployed its first units in July 2010.[45]It is intended to replace its elderly R-36 and UR-100N missiles.[46]
Russia is also developing a new SLBM missile, the RSM-56 Bulava[47] and is building a class of eight Borei Class submarines to carry them. The missiles will replace the current R-39 Rif missiles and 150-170 are expected to be built.[48]
The British government has announced plans to refurbish its Trident SLBM missiles and build a new class of three or four submarines on which to base them, replacing the four existing Vanguard Class boats.[49] This has caused some debate of the legality of the proposal within the UK.
In 1999 a legal case was put forward to attempt to use the ICJ's Opinion in establishling the illegality of nuclear weapons.
On 27 September 1999, political activists Ulla Roder, Angie Zelter, and Ellen Moxley were acquitted of charges of malicious damage to Greenock Sheriff Court. The three women had boarded the Maytime a barge moored in Loch Goil and involved in scientific work connected with of the Vanguard Class 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".[50]
The acquittal of "The Trident Three" resulted in the High Court of Justiciary, the supreme criminal 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:[50]
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.
The Northrop Grumman B-2 Spirit nuclear-armed stealth bomber was introduced in 1997.[51] Twenty were built to supplement the elderly Boeing B-52 Stratofortress.
The United States anticipates a continued need for a submarine-based nuclear missile delivery system as part of a nuclear triad.[52] To that end it is planning a new class of missile carrying submarines to replace the current Ohio Class.