Legality of the Threat or use of Nuclear Weapons UN General Assembly Resolution 49/75K Advisory opinion

G.A. Res 49/75K Is the threat or use of nuclear weapons, NW, in any circumstances permitted under international law? The court first had to consider jurisdiction, art 65 Statute gives discretion “court may give an advisory opinion” Resolution Is the a.o. related to a legal question? Yes, the court has to see the compatibility of threat or use of nuclear weapons with IL If the question has political aspects it does not deprive it of its legal character, furthermore, in such cases it may be particularly necessary for an international organization to obtain an a.o. In Eastern Carelia, the court, by discretion, did not give an opinion, (In this case some states said that the question was abstract, GA did not explain the purpose) court: there is no compelling reasons not to render an advisory opinion CIL must be looked in the actual practice and opinio iuris of states. Members of international community are divided on the matter whether non-recourse to n.w. over the past 50 years constitutes the expression of opinio iuris. GA Res, even if they are not binding, sometimes have normative value and provide evidence of existence of a rule. Resolutions are a clear sign of concern nw, but still fall short of establishing the existence of opinio iuris on the illegality of the use of nuclear weapons The emergence, as lex lata, of a CIL rule prohibiting the use of n w is hampered by the tensions between nascent o.i. & adherence to practice of deterrence (21) the use of the word ‘permitted’ in the question was criticised by several states, since they say it implied the use of NW would only be permissible if authorised in treaties of CIL. That starting point, those states claimed was incompatible with Lotus ‘restrictions upon the independence of states cannot be presumed’ and Nicaragua 1986 (269). For other states Lotus was inapposite since their status in IL has very different circumstances, Nicaragua referred to possession and not use. To answer this question the ICJ must consider the relevant applicable law (27) some states cited principle 21 of the Stockholm declaration of 1972 and principle 2 of the Rio declaration of 1992 which express the common conviction of the states concerned that they have a duty ‘to ensure that activities within their territory or control do not cause damage to the environment of other states or of areas beyond the limits of national jurisdiction (29) The court recognises that the environment is under daily threat and that the use of nw could constitute a catastrophe for the environment. The court also recognises that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other states or of areas beyond national control is now part of the corpus of international law relating the environment

(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. Resolution 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