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LEGALITY OF THREAT OF USE OF NUCLEAR WEAPONS - ADVISORY OPINION

LEGALITY OF THREAT OF USE OF NUCLEAR WEAPONS - ADVISORY OPINION

 

APPLICABLE LAW

  • The Court considers that the question whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the International Covenant on Civil and Political Rights.
  • The unique characteristics of nuclear weapons, their destructive capacity to cause untold human suffering, and their ability to cause damage to generations to come.
  • Use of force enshrined in the United Nations Charter and the law applicable in armed conflict which regulates the conduct of hostilities, together with any specific treaties on nuclear weapons that the Court might determine to be relevant.

 

PROVISIONS OF THE CHARTER RELATING TO THREAT/USE OF FORCE/NUCLEAR WEAPONS

  • The use of nuclear weapons can be regarded as specifically prohibited on the basis of certain provisions of the Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention IV of 1907 or the 1925 Geneva Protocol.
  • As to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the declarations made in connection with the indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons, it emerges from these instruments that:
    • a number of States have undertaken not to use nuclear weapons in specific zones (Latin America; the South Pacific) or against certain other States (non-nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of Nuclear Weapons);
    • The nuclear-weapon States have reserved the right to use nuclear weapons in certain circumstances; and
    • these reservations met with no objection from the parties to the Tlatelolco or Rarotonga Treaties or from the Security Council.
  • Not having found a conventional rule of general scope, nor a customary rule specifically proscribing the threat or use of nuclear weapons per se - whether illegal in the light of the principles and rules of international humanitarian law applicable in armed conflict and of the law of neutrality.
  • Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defence, in which its very survival would be at stake.
  • This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community. Indeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all States.
  • UNGA resolutions may not be binding but have normative value - it provides evidence for establishing rule + opinion juris but no consistent state practise.