(30) [T]he issue is not whether the treaties relating to the protection of the environment are or are not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict. The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives.
(41) …a use of force that is proportionate under the law of self-defence, must, in order to be lawful, also meet the requirements of the law applicable in armed conflict which comprise in particular the principles and rules of humanitarian law
(83) It has been maintained in these proceedings that these principles and rules of humanitarian law are part of jus cogens as defined in art 53 VCLT 1969. The question whether a norm is part of the jus cogens relates to the legal character of the norm. The request addressed to the court by the GA raises the question of the applicability of the principles and rules of humanitarian law in cases of recourse to nuclear weapons and the consequences of that applicability for the legality of recourse to these weapons. But it does not raise the question of the character of the humanitarian law which would apply to the use of nuclear weapons. There is therefore, no need for the court to pronounce on this matter.
Unanimous: there is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons
11/3: there is in neither customary nor conventional international law any comprehensive and universal prohibition
Unanimous: threat or use of force by means of NW that is contrary to 2(4) and that fails to meet all the requirements of 51, is unlawful
E, casting vote: N.W. would generally be contrary to IL in armed conflict, in particular to the principles and rules of humanitarian law, however, in view of the current state of IL court cannot conclude definitely whether N.W would be lawful or not in extreme circumstances of self-defence.
Higgins: this formulation of non liquet, ignores sixty five years of proud judicial history
Bedjaqui: Lotus expressed ‘the spirit of the times’, resolute positivist, voluntarist approach of IL, now society is markedly altered, integration and globalisation of I society is undeniable, emergence of the concept of ‘international community’, a token of this is erga omnes, ius cogens and common heritage of mankind.
The ICJ is more circumspect than the PCIJ in asserting today that what is not prohibited by Il is not therefore authorised
Schwebel: This case present the tension state practice/ legal principle. 50 years of state practice does not debar the legality of nuclear weapons in certain circumstances
Guillaume: the IL is founded in the principle of sovereignty of states and thus originates from their consent. Lotus ‘IL governs relations between independent states. The rules of law binding upon States therefore emanate from their own will). A weapon is not illegal save the IL prohibits, illegality of weapons does not result from absent of authorisation, but is formulated in terms of prohibition. States can resort to NW in extreme circumstances or self-defence.
Shahabuddeen: absent of such authorisation, states do not have a right to use nuclear weapons, there is no non-liquet