World Court Delivers Opinion on Legality of Nuclear Weapons Use
Carnahan, Burrus M., Arms Control Today
IN A LANDMARK case addressing the legality of nuclear weapons, the International Court of Justice (ICJ) on July 8 unanimously agreed that any use or threat to use nuclear weapons would have to comply with those provisions of the UN Charter which prohibit the use of force except in cases of self-defense, and with the rules of international law applicable to armed conflict. However, a majority of the 14 participating judges (11-3) agreed that in current international law there is no "comprehensive and universal prohibition of the threat or use of nuclear weapons."
The ICJ, known also as the World Court, was responding to a request from the UN General Assembly for a non-binding advisory opinion on whether the threat or use of nuclear weapons was "consistent with international law." In October and November 1995, the court heard arguments from 22 UN member-states (See ACT, February 1996). The United States, Russia, France and the United Kingdom unsuccessfully urged the court not to answer the General Assembly's question at all.
The ICJ did, however, refuse to answer a similar question from the World Health Organization, on the grounds that the issue of the legality of nuclear weapons was outside the scope of that body's legitimate activities.
The court split evenly (7-7) on one part of its opinion that combined two questions. When such a split occurs, the president of the court is allowed to cast a second vote to break the tie. The current president, Mohammed Bedjaoui of Algeria, voted to make the decision part of the court's opinion. One part of the decision found that the threat or use of nuclear weapons would "generally be contrary" to the rules of international law, while the second part found that, "in view of the current state of international law," the court could not conclude "definitively" that the threat or use of nuclear weapons would be "lawful or unlawful in an extreme circumstance of selfdefense, in which the very survival of a State would be at stake."
As a result of the two questions being combined into one decision, an unusual alliance of judges voted against the measure: three judges from Guyana, Sri Lanka and Sierra Leone, who believed any use of nuclear weapons to be illegal, were joined by judges from the United States, the United Kingdom, France and Japan, who believed the court had gone too far by saying that use of nuclear weapons would "generally" violate international law. …