LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS ICJ, Advisory Opinion,

WHERE IN THE WORLD? 2

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“Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v. United Kingdom, Pakistan, India)” 4

WHAT A WONDERFUL WORLD "Now I am become Death, the destroyer of worlds.“ – J. Robert Oppenheimer, quoting the Bhagavad Gita 5

DESTROYERS OF WORLDS? 6

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TIMELINE Nuclear Tests Cases (1970) Applicants: Australia and New Zealand Defendant: France Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1993) Applicant: WHOAdvisory Opinion Legality of the Threat or Use of Nuclear Weapons (1995) Applicant: UNGAAdvisory Opinion 10

NUCLEAR TESTS CASES In the two judgments of 20 December 1974 the Court didn’t state the essence of the problem nor examine the consistency of the French nuclear tests with international law, although the applications’ aim was not only to achieve a termination of nuclear tests in the region, but also have the Court declare that the nuclear tests were contrary to international law. “63. Once the Court has found that a State has entered into a commitment concerning its future conduct it is not the Court's function to contemplate that it will not comply with it. However, the Court observes that if the basis of this Judgment were to be affected, the Applicant could request an examination of the situation in accordance with the provisions of the Statute; the denunciation by France, by letter dated 2 January 1974, of the General Act for the Pacific Settlement of International Disputes, which is relied on as a basis of jurisdiction in the present case, cannot constitute by itself an obstacle to the presentation of such a request. “ 11

ADVISORY OPINION UN Charter CHAPTER XIV: THE INTERNATIONAL COURT OF JUSTICE Article 96 a. The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question. b. Other organs of the United Nations and specialized agencies, which may at any time be so authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities. ICJ Statute CHAPTER IV - ADVISORY OPINIONS Article The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. 2. Questions upon which the advisory opinion of the Court is asked shall be laid before the Court by means of a written request containing an exact statement of the question upon which an opinion is required, and accompanied by all documents likely to throw light upon the question. 12

LEGALITY OF THE USE BY A STATE OF NUCLEAR WEAPONS IN ARMED CONFLICT "ln 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 obligations under international law including the WHO Constitution?" “3 1. Having arrived at the view that the request for an advisory opinion submitted by the WHO does not relate to a question which arises "within the scope of [the] activities" of that Organization in accordance with Article 96, paragraph 2, of the Charter, the Court finds that an essential condition of founding its jurisdiction in the present case is absent and that it cannot, accordingly, give the opinion requested. Consequently, the Court is not called upon to examine the arguments which were laid before it with regard to the exercise of its discretionary power to give an opinion.” 13

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS UNGA Res. 49/75 K (1994) "to request the lnternational Court of Justice urgently to render its advisory opinion on the following question: ‘Is the threat or use of nuclear weapons in any circumstance permitted under international law?"' Two steps:  Admissibility  Advisory Opinion  “In view of what is stated above, the Court concludes that it has the authority to deliver an opinion on the question posed by the General Assembly, and that there exist no "compelling reasons" which would lead the Court to exercise its discretion not to do so.” 14

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS A. Unanimously,  There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons; B. By eleven votes to three,  There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such; C. Unanimously,  A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the Charter of the United Nations and that fails to meet all the requirements of Article 51is unlawful; D. Unanimously,  A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons; 15

CHARTER OF THE UNITED NATIONS Article 2 The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles. 4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations. Article 51 Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self- defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security. 16

LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS E. By seven votes to seven, by the President's casting vote,  It follows from the above-mentioned requirements that 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; F. Unanimously,  There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear‘ disarmament in all its aspects under strict and effective international control" 17