556

DISSENTING OPINION OF JUDGE KOROMA

It is a matter of profound regret to me that 1 have been compelled to
append this dissenting opinion to the Advisory Opinion rendered by the
Court, as I fundamentally disagree with its finding — secured by the
President’s casting vote — that:

“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” (paragraph 2E, second sentence, of the
dispositif; emphasis added).

This finding, in my considered opinion, is not only unsustainable on
the basis of existing international law, but, as I shall demonstrate later, is
totally at variance with the weight and abundance of material presented
to the Court. The finding is all the more regrettable in view of the fact
that the Court had itself reached a conclusion 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” (ibid., first
sentence).

A finding with which I concur, save for the word “generally”. It is my
considered opinion based on the existing law and the available evidence
that the use of nuclear weapons in any circumstance would be unlawful
under international law. That use would at the very least result in the vio-
lation of the principles and rules of international humanitarian law, and
would therefore be contrary to that law.

T am also unable to agree with various aspects of the reasoning which
motivates the Advisory Opinion. Some of it, in my view, is not only un-
tenable in law, but may even have the effect of potentially destabilizing
the existing international legal order.

According to the material before the Court, it is estimated that more
than 40,000 nuclear warheads exist in the world today with a total
destructive capacity around a million times greater than that of the bomb
which devastated Hiroshima. A single nuclear bomb detonated over a
large city is said to be capable of killing more than 1 million people.
These weapons, if used massively, could result in the annihilation of the
human race and the extinction of human civilization. Nuclear weapons

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are thus not just another kind of weapon, they are considered the abso-
lute weapon and are far more pervasive in terms of their destructive
effects than any conventional weapon. A request for an advisory opinion
asking for a determination about the lawfulness or otherwise of the use of
such weapons is a matter which, in my considered opinion, this Court as
a court of law and the guardian of legality in the United Nations system
should be capable of making.

While it is admitted that the views of States are divided on the question
of nuclear weapons, as well as about their possible consequences, views
are also divided as to whether the Court should have been asked to
render an opinion on the matter at all. However, the Court, having found
that the General Assembly was competent to ask the question and in the
absence of any “compelling reason” relating to propriety or to any issue
that would compromise its judicial character, should have performed its
judicial function in accordance with Article 38 of its Statute and deter-
mined the question, “in accordance with international law”, by simul-
taneously applying international conventions, international custom as
established rules recognized by States or as evidence of general practice
accepted as law or the general principles of law recognized by all States,
the judicial decisions of the Court and resolutions of international organi-
zations, at a minimum as evidence of the law.

In my view, the prevention of war, by the use of nuclear weapons, is a
matter for international law and, if the Court is requested to determine
such an issue, it falls within its competence to do so. Its decision can con-
tribute to the prevention of war by ensuring respect for the law. The
Court in the Corfu Channel case described as its function the need to
“ensure respect for international law, of which it is the organ” (C.J.
Reports 1949, p. 35). The late Judge Nagendra Singh, a former Member
and President of this Court, commenting on that statement, observed
that it was made by the Court without reference to the United Nations
Charter or to its own Statute. He observed that “the Court has thus to be
conscious of this fact, as something inherent to its existence in relation to
the law which it administers” (The Role and Record of the International
Court of Justice, p. 173). Today a system of war prevention exists in
international law, and comprises the prohibition of the use of force, the
collective security provisions of the United Nations Charter for the main-
tenance of international peace, the obligation to resort to peaceful means
for the settlement of international disputes and the regulations on
weapons prohibition, arms limitation and disarmament. The Court’s
Advisory Opinion in this case could have strengthened this régime by
serving as a shield of humanity.

In my view, it is wholly incoherent in the light of the material before
the Court to say that it cannot rule definitively on the matter now before
it in view of the current state of the law and because of the elements of
facts at its disposal, for neither the law nor the facts are so imprecise or

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inadequate as to prevent the Court from reaching a definitive conclusion
on the matter. On the other hand, the Court’s findings could be con-
strued as suggesting either that there is a gap, a lacuna, in the existing law
or that the Court is unable to reach a definitive conclusion on the matter
because the law is imprecise or its content insufficient or that it simply
does not exist. It does not appear to me any new principles are needed for
a determination of the matter to be made. All that was requested of the
Court was to apply the existing law. A finding of non liquet is wholly
unfounded in the present case. The Court has always taken the view that
the burden of establishing the law is on the Court and not on the Parties.
The Court has stated that:

“there is no incompatibility with its judicial function in making a
pronouncement on the rights and duties of the Parties under existing
international law which would clearly be capable of having a for-
ward reach . .. The possibility of the law changing is ever present: but
that cannot relieve the Court from its obligation to render a judg-
ment on the basis of the law as it exists at the time of its decision . . .”
(Fisheries Jurisdiction, Merits, I. C.J. Reports 1974, p. 19, para. 40.)

The corpus juris on the matter is not only considerable, but is sufficiently
clear and precise for the Court to have been able to make a definitive
finding. If the Court had applied the whole spectrum of the law, includ-
ing international conventions, rules of customary international law, gen-
eral principles of international law, judicial decisions, as well as resolu-
tions of international organizations, there would have been no room for
a purported finding of non liquet.

Furthermore, all States — both the nuclear-weapon and non-nuclear-
weapon States — are agreed that the rules of international law applicable
in armed conflict, particularly international humanitarian law, apply to
the use of nuclear weapons. This law, which has been formulated and
codified to restrict the use of various weapons and methods of warfare, is
intended to limit the terrible effects of war. Central to it is the principle of
humanity which above all aims to mitigate the effects of war on civilians
and combatants alike. It is this law which also establishes a régime on the
basis of which the methods and means of warfare are to be judged.
Accordingly, it would seem apposite and justifiable for the effects of a
conflict involving nuclear weapons — regarded as the ultimate weapon of
mass destruction — to be judged against the standards of such a régime.

Despite its findings, the Court has itself recognized that the law of
armed conflict, and in particular the principles and rules of humanitarian
law — would apply to a conflict involving the use of nuclear weapons. It
follows that the Court’s finding that it cannot conclude definitively

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whether the threat or use of nuclear weapons would be lawful or unlaw-
ful in an extreme circumstance of self-defence, in which the very survival
of a State would be at stake, is a contradiction and can at best be
described as the identification of two principles, namely, the obligation to
comply with the principles and rules of international law applicable in
armed conflict and the right of a State to self-defence including when it
considers its very survival to be at ‘stake. These principles are not mutu-
ally exclusive and are recognized in international law. However, it has
been argued that when the Court is faced with two competing principles
or rights, it should jurisprudentially assign a priority to one of them and
cause it to prevail. In the opinion of Sir Hersch Lauterpacht, even though
the margin of preference for giving a priority to one principle over
another may be small, yet, however tenuous, that margin must be deci-
sive. He admits that judicial action along this line may in some respects
be indistinguishable from judicial legislation. However, he argues, the
Court “may have to effect a compromise — which is not a diplomatic but
a legitimate judicial compromise — between competing principles of
law”, and concludes that:

“there is no decisive reason why the Court should avoid at all cost
some such outcome. It is in accordance with the true function of the
Court that the dispute submitted to it should be determined by its
own decision and not by the contingent operation of an attitude of
accommodation on the part of the disputants. There is an embar-
rassing anticlimax, which is not legally irrelevant, in a situation in
which the Court, after prolonged written and oral pleadings, is
impelled to leave the settlement of the actual issue to . . . the
parties.” (The Development of International Law by the Interna-
tional Court, p. 146.)

The suggestion that it should be left to individual States to determine
whether or not it may be lawful to have recourse to nuclear weapons is
not only an option fraught with serious danger, both for the States that
may be directly involved in conflict, and for those nations not involved,
but may also suggest that such an option is not legally reprehensible.
Accordingly, the Court, instead of leaving it to each State to decide
whether or not it would be lawful or unlawful to use nuclear weapons in
an extreme circumstance of “State survival”, should have determined
whether or not it is permissible to use nuclear weapons even in a case
involving the survival of the State. The question put to the Court is
whether it is lawful to use nuclear weapons and is not about the sur-
vival of the State, which is what the Court’s reply turned on. If the Court
had correctly interpreted the question this would not only have had the
effect of declaring the law regarding the use of nuclear weapons but could
well have deterred the use of such weapons. Regrettably, the Court
refrained not only from performing its judicial function, but, by its “non-
finding”, appears to have made serious inroads into the present legal

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restraints relating to the use of nuclear weapons, while throwing the
régime of self-defence into doubt by creating a new category called the
“survival of the State”, seen as constituting an exception to Articles 2,
paragraph 4, and 51 of the United Nations Charter and to the principles
and rules of humanitarian law. In effect, this kind of restraint would
seem to be tantamount to judicial legislation at a time when the Court
has itself — rightly in my view — recognized that it “cannot legislate”,
and, that

“in the circumstances of the present case, it is not called upon to do
so. Rather its task is to engage in its normal judicial function of
ascertaining the existence or otherwise of legal principles and rules
applicable to the threat or use of nuclear weapons.” (Advisory Opin-
ion, para. 18; emphasis added.)

However, just after reaffirming this self-denying ordinance, the Court
went on to do just that by proclaiming that it cannot conclude defini-
tively whether or not the threat or use of nuclear weapons would be “law-
ful or unlawful in an extreme circumstance of self-defence, in which the
very survival of a State would be at stake”, given the current state of
international law and the elements of fact at its disposal (paragraph 2E
of the dispositif; emphasis added). This finding, with respect, is not only
untenable in law but legally superfluous. The right of self-defence is
inherent and fundamental to all States. It exists within and not outside or
above the law. To suggest that it exists outside or above the law is to
render it probable that force may be used unilaterally by a State when it
by itself considers its survival to be at stake. The right of self-defence is
not a licence to use force; it is regulated by law and was never intended to
threaten the security of other States.

Thus the Court’s finding does not only appear tantamount to judicial
legislation which undermines the régime of the non-use of force as
enshrined in Article 2, paragraph 4, of the Charter, and that of self-
defence as embodied in Article 51, but the doctrine of the survival of the
State represents a throwback to the law before the adoption of the
United Nations Charter and is even redolent of a period long before that.
Grotius, writing in the seventeenth century, stated that: “[t]he right of
self-defence . . . has its origin directly, and chiefly, in the fact that nature
commits to each his own protection” (De Jure Belli Ac Pacis, Book II,
Chap. I, Part Ill, at p. 172 (Carnegie Endowment trans. 1925) (1646)).
Thus, the Court’s finding would appear to be tantamount to according to
each State the exclusive right to decide for itself to use nuclear weapons
when its survival is at stake as that State perceives it — a decision sub-
jected neither to the law nor to third party adjudication. When Lauter-
pacht had to consider a similar situation following the conclusion of the

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Briand-Kellogg Pact of 1928, according to which the participating States
declared that a State claiming the right of self-defence “alone is compe-
tent to decide whether circumstances require recourse to war in self-
defence”, he found such a claim to be “self-contradictory in as much as it
purports to be based on legal right and at the same time, it dissociates
itself from regulations and evaluation of the law”. While he acknow-
ledged the right of self-defence as “absolute” in the sense that no law
could disregard it, Lauterpacht however maintained that the right is
“relative” in as much as it is presumably regulated by law. “It is regulated
to the extent that it is the business of the Courts to determine whether,
how far, and for how long, there was a necessity to have recourse to it.”
(The Function of Law in the International Community, pp. 179-180.)

As already stated, the Court’s present finding represents a challenge to
some of the fundamental precepts of existing international law including
the proscription of the use of force in international relations and the exer-
cise of the right of self-defence. That the Court cannot decide definitively
whether the use of nuclear weapons would be lawful or unlawful when
the survival of the State is at stake is a confirmation of the assertion that
the survival of that State is not only not a matter for the law but that a
State, in order to ensure its survival, can wipe out the rest of humanity by
having recourse to nuclear weapons. In its historical garb “of the funda-
mental right of self-preservation”, such a right was used in the past as a
pretext for the violation of the sovereignty of other States. Such acts are
now considered unlawful under contemporary international law. The
International Military Tribunal at Nuremberg in 1946 rejected the argu-
ment that the State involved had acted in self-defence and that every
State must be the judge of whether, in a given case, it is entitled to decide
whether to exercise the right of self-defence. The Tribunal held that
“whether action taken under the claim of self-defence was in fact aggres-
sive or defensive must ultimately be subject to investigation or adjudica-
tion if international law is ever to be enforced” (Judgment of the Inter-
national Military Tribunal at Nuremberg, 1946, Trial of German Major
War Criminals before the International Military Tribunal, 1947, Vol. I,
p. 208).

Similarly, this Court, in the Nicaragua case, rejected the assertion that
the right of self-defence is not subject to international law. While noting
that Article 51 of the United Nations Charter recognizes a “natural” or
“inherent” right of self-defence, it stated that “it is hard to see how this
can be other than of a customary nature, even if its present content has
been confirmed by the Charter” (Military and Paramilitary Activities in
and against Nicaragua (Nicaragua v. United States of America), I CJ.
Reports 1986, p. 94). By its present findings, the Court would appear to
be departing from its own jurisprudence by saying that it cannot deter-
mine conclusively whether or not it would be lawful for a State to use
nuclear weapons.

Be that as it may, it is not as if the Court was compelled to reach such

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a conclusion, for the law is clear. The use of force is firmly and peremp-
torily prohibited by Article 2, paragraph 4, of the United Nations Char-
ter. The régime of self-defence or the doctrine of “self-survival”, as the
Court would prefer to have it, is likewise regulated and subjected to that
law. The right of self-defence by a State is clearly stipulated in Article 51
of the Charter, as follows:

“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 secu-
rity. 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 interna-
tional peace and security.”

Thus, the Article permits the exercise of that right subject to the condi-
tions stipulated therein. Firstly, in order to exercise the right, a State
must have been the victim of an armed attack and, while exercising such
a right, it must observe the principle of proportionality. Secondly, the
measure or measures taken in exercise of such a right must be reported to
the Security Council and are to be discontinued as soon as the Security
Council itself has taken measures necessary for the maintenance of inter-
national peace. Article 51 therefore envisages the ability of a State /aw-
fully to defend itself against armed attack. The Court emphasized this
when it stated that the right of self-defence under Article 51 is condi-
tioned by necessity and proportionality and that these conditions would
apply whatever the means of force employed. Moreover, self-defence
must also meet the requirements of the law applicable in armed conflict,
particularly the principles and rules of international humanitarian law.

The question therefore is not whether a State is entitled to exercise its
right of self-defence in an extreme circumstance in which the very sur-
vival of that State would be at stake, but rather whether the use of
nuclear weapons would be lawful or unlawful under any circumstance
including an extreme circumstance in which its very survival was at stake
— or, in other words, whether it is possible to conceive of consequences
of the use of such weapons which do not entail an infringement of inter-
national law applicable in armed conflict, particularly international
humanitarian law. As stated above, in terms of the law, the right of self-
defence is restricted to the repulse of an armed attack and does not per-
mit of retaliatory or punitive action. Nor is it an exception to the jus in
bello (conduct of hostilities). Since, in the light of the law and the facts, it
is inconceivable that the use of nuclear weapons would not entail an
infringement of, at the very least, the law applicable in armed conflict,

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particularly humanitarian law, it follows that the use of such weapons
would be unlawful. Nuclear weapons do not constitute an exception to
humanitarian law.

Given these considerations, it is not legally sustainable to find, as the
Court has done, that, in view of the present state of the law, it cannot
conclude definitively whether the threat or use of nuclear weapons would
be lawful or unlawful in an extreme circumstance of self-survival, for as it
stated in the Nicaragua case:

“the conduct of States should, in general, be consistent with . ..
rules, and that instances of State conduct inconsistent with a given
rule should generally have been treated as breaches of that rule, not
as indications of the recognition of a new rule” (Military and Para-
military Activities in and against Nicaragua (Nicaragua v. United
States of America), 1. C.J. Reports 1986, p. 98, para. 186).

Judge Mosler, a former member of this Court has in another context,
stated

“that law cannot recognise any act either of one member or of sev-
eral members in concert, as being legally valid if it is directed against
the very foundation of law” (H. Mosler, The International Society
as a Legal Community, 1980, p. 18).

The Court’s finding is also untenable, for, and as already mentioned, the
corpus juris on which it should have reached its conclusion does indeed
exist, and in an ample and substantial form. The Court had itself taken
cognizance of this when it noted that the “laws and customs of war”
applicable to the matter before it had been codified in the Hague
Conventions of 1899 and 1907, based upon the 1868 Declaration of
St. Petersburg as well as the results of the Brussels Conference of 1874.
The Court also recognized that the “Hague Law” and, more particularly,
the Regulations Respecting the Laws and Customs of War on Land, do
regulate the rights and duties of belligerent States in the conduct of their
hostilities and limit the choice of methods and means of injuring the
enemy in wartime. It found that the “Geneva Law” (the Conventions of
1864, 1906, 1929 and 1949), which protects the victims of war and aims
to provide safeguards for disabled armed forces personnel and persons
not taking part in the hostilities, is equally applicable to the issue before
it. It noted that these two branches of law today constitute mternational
humanitarian law which was codified in the 1977 Additional Protocols to
the Geneva Conventions of 1949.

It observed that, since the turn of the century, certain weapons, such as
explosive projectiles under 400 g, dum-dum bullets and asphyxiating
gases, have been specifically prohibited, and that chemical and bacterio-
logical weapons were also prohibited by the 1925 Geneva Gas Protocol.
More recently, the Court found, the use of weapons producing “non-

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detectable fragments”, of other types of mines, booby traps and other
devices, and of incendiary weapons, was either prohibited or limited
depending on the case by the Convention of 10 October 1980 on Prohi-
bitions or Restrictions on the Use of Certain Conventional Weapons
Which May Be Deemed to Be Excessively Injurious or to Have Indis-
criminate Effects. Such prohibition, it stated, was in line with the rule
that “the right of belligerents to adopt means of injuring the enemy is not
unlimited” as stated in Article 22 of the 1907 Hague Regulations Respect-
ing the Laws and Customs of War on Land. The Court further noted
that the St. Petersburg Declaration had already condemned the use of
weapons “which uselessly aggravate the suffering of disabled men or
make their death inevitable” and that the aforementioned Regulations
annexed to the Hague Convention IV of 1907 prohibit the use of “arms,
projectiles, or material calculated to cause unnecessary suffering”
(Art. 23).

The Court also identified the cardinal principles constituting the fabric
of international humanitarian law, the first of which is aimed at the pro-
tection of the civilian population and civilian objects and establishes the
distinction between combatants and non-combatants. According to those
principles, States are obliged not to make civilians the object of attack
and must consequently not use weapons that are incapable of distinguish-
ing between civilian and military targets. Secondly, it is prohibited to
cause unnecessary suffering to combatants and, accordingly, it is prohib-
ited to use weapons causing them needless harm or that uselessly aggra-
vate their suffering. In this regard, the Court noted that States do not
have unlimited freedom of choice in the weapons they can use.

The Court also considered applicable to the matter the Martens Clause,
first enunciated in the Hague Convention of 1899 with respect to the laws
and customs of war on land, a modern version of which has been codified
in Article 1, paragraph 2, of Additional Protocol I of 1977, and reads as
follows:

“In cases not covered by this Protocol or by other international
agreements, civilians and combatants remain under the protection
and authority of the principles of international law derived from
established custom, from the principles of humanity and from the
dictates of public conscience.”

The Court noted that the principles embodied in the Clause are principles
and rules of humanitarian law and, together with the principle of
neutrality, apply to nuclear weapons.

It was in the light of the foregoing that the Court recognized that
humanitarian law does prohibit the use of certain types of weapons either
because of their indiscriminate effect on combatants and civilians or
because of the unnecessary and superfluous harm caused to combatants.
The Court accordingly held that the principles and rules of international

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humanitarian law are obligatory and binding on all States as they also
constitute intransgressible principles of customary international law.

With regard to the applicability of Additional Protocol I of 1977 to
nuclear weapons, the Court recalled that even if not all States are parties
to the Protocol, they are nevertheless bound by those rules in the Proto-
col which, when adopted, constituted an expression of the pre-existing
customary law, such as, in particular, the Martens Clause, which is
enshrined in Article I of the Protocol.

The Court observed that the fact that certain types of weapons were
not specifically mentioned in the Convention does not permit the drawing
of any legal conclusions relating to the substantive issues raised by the
use of such weapons. It took the view that there can be no doubt that the
principles and rules of humanitarian law, which are enshrined in the
Geneva Conventions of 1949 and the Additional Protocols of 1977, are
applicable to nuclear weapons. Even when it observed that the Confer-
ences of 1949 and 1977 did not specifically address the question of
nuclear weapons, the Court stated that it cannot be concluded from this
that the established principles and rules of humanitarian law applicable
in armed conflict do not apply to nuclear weapons, as such a conclusion
would be incompatible with the intrinsically humanitarian character of
the legal principles in question which permeate the entire law of armed
conflict and apply to all forms of warfare and to all kinds of weapons.

The Court agreed with the submission that:

“63. In general, international humanitarian law bears on the threat
or use of nuclear weapons as it does of other weapons.

64. International humanitarian law has evolved to meet contem-
porary circumstances, and is not limited in its application to weap-
onry of an earlier time. The fundamental principles of this law
endure: to mitigate and circumscribe the cruelty of war for humani-
tarian reasons.” (New Zealand, Written Statement, p. 15.)

The Court also observed that none of the States advocating the legality
of the use of nuclear weapons under certain circumstances, including the
“clean” use of smaller, low-yield, tactical nuclear weapons, had indicated
that the principles of humanitarian law do not apply to nuclear weapons,
noting that, for instance, the Russian Federation had recognized that
“restrictions set by the rules applicable to armed conflicts in respect of
means and methods of warfare definitely also extend to nuclear weap-

s”; that for the United States, “the United States has long shared the
view that the law of armed conflict governs the use of nuclear weapons —
just as it governs the use of conventional weapons” ; while for the United
Kingdom, “so far as the customary law of war is concerned, the United
Kingdom has always accepted that the use of nuclear weapons is subject
to the general principles of the jus in bello” (Advisory Opinion, para. 86).

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With regard to the elements of fact advanced in its findings, the
Court noted the definitions of nuclear weapons contained in various
treaties and instruments, tncluding those according to which nuclear
explosions are “capable of causing massive destruction, generalized dam-
age or massive poisoning” (Paris Accords of 1954), or the preamble of
the Tlatelolco Treaty of 1967 which described nuclear weapons

“whose terrible effects are suffered, indiscriminately and inexorably,
by military forces and civilian population alike, [and which] consti-
tute through the persistence of the radioactivity they release, an
attack on the integrity of the human species and ultimately may even
render the whole earth uninhabitable”.

It also took note of the fact that nuclear weapons release not only
immense quantities of heat and energy, but also powerful and prolonged
radiation; that the first two causes of damage are vastly more powerful
than such causes of damage in other weapons of mass destruction, and
that the phenomenon of radiation is said to be peculiar to nuclear weap-
ons. These characteristics, the Court concluded, render nuclear weapons
potentially catastrophic; their destructive power cannot be contained in
either space or time, and they have the potential to destroy all civilization
and the entire ecosystem of the planet.

With regard to the elements of fact, the Court noted that the radiation
released by a nuclear explosion would affect health, agriculture, natural
resources and demography over a wide area and that such weapons
would be a serious danger to future generations. It further noted that
ionizing radiation has the potential to damage the future environment,
food and marine ecosystems, and to cause genetic defects and illness in
future generations.

Also in this regard, the Government of Japan told the Court that the
yields of the atomic bombs detonated in Hiroshima on 6 August 1945
and in Nagasaki on 9 August 1945 were the equivalent of 15 kilotons and
22 kilotons of TNT respectively. The bomb blast produced a big fireball,
followed by extremely high temperatures of some several million degrees
centigrade, and extremely high pressures of several hundred thousand
atmospheres. It also emitted a great deal of radiation. According to the
delegation, the fireball, which lasted for about 10 seconds, raised the
ground temperature at the hypocentre to somewhere between 3,000° C
and 4,000° C, and the heat caused the scorching of wood buildings over a
radius of approximately 3 kilometres from the hypocentre. The number
of houses damaged by the atomic bombs was 70,147 in Hiroshima and
18,409 in Nagasaki. People who were within 1,000 metres of the hypo-
centre were exposed to the initial radiation of more than 3.93 Grays. It is
estimated that 50 per cent of people who were exposed to more than
3 Grays die of marrow disorder within two months. Induced radiation

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was emitted from the ground and buildings charged with radioactivity. In
addition, soot and dust contaminated by induced radiation was dispersed
into the air and whirled up into the stratosphere by the force of the explo-
sion, and this caused radioactive fallout back to the ground over several
months.

According to the delegation, the exact number of fatalities was not
known, since documents were scarce. It was estimated, however, that the
number of people who had died by the end of 1945 amounted to approxi-
mately 140,000 in Hiroshima and 74,000 in Nagasaki. The population of
the cities at that time was estimated at 350,000 in Hiroshima and 240,000
in Nagasaki. The number of people who died of thermal radiation imme-
diately after the bomb blast, on the same day or within a few days, was
not clear. However, 90 to 100 per cent of the people who were exposed to
thermal radiation without any shield within 1 kilometre of the hypo-
centre, died within a week. The early mortality rates for the people who
were within 1.5 kilometre to 2 kilometres of the hypocentre were 14 per cent
for people with a shield and 83 per cent for the people without a shield.
In addition to direct injury from the bomb blast, death was caused by
* several interrelated factors such as being crushed or buried under build-
ings, injuries caused by splinters of glass, radiation damage, food short-
ages or a shortage of doctors and medicines.

Over 320,000 people who survived but were affected by radiation still
suffer from various malignant tumours caused by radiation, including
leukaemia, thyroid cancer, breast cancer, lung cancer, gastric cancer,
cataracts and a variety of other after-effects. More than half a century
after the disaster, they are still said to be undergoing medical examina-
tions and treatment.

According to the Mayor of Hiroshima who made a statement before
the Court, the atomic bomb which was detonated in Hiroshima produced
an enormous destructive power and reduced innocent civilian popula-
tions to ashes. Women, the elderly and the newborn were said to have
been bathed in deadly radiation. The Court was told that the dropping of
the bomb unleashed a mushroom cloud and human skin was burned raw
while other victims died in desperate agony. The Mayor further told the
Court that when the bomb exploded, enormous pillars of flame leaped up
towards the sky and a majority of the buildings crumbled, causing a large
number of casualties, many of them fatal.

Later in his statement he described the unique characteristic of the
atomic bombing as one whose enormous destruction was instantaneous
and universal. Old, young, male, female, soldiers, civilians were all killed
indiscriminately. The entire city of Hiroshima, he said, had been exposed
to thermal rays, shock-wave blast and radiation. The bomb purportedly
generated heat that reached several million degrees centigrade. The fire-

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ball was about 280 metres in diameter, the thermal rays emanating from
it were thought to have instantly charred any human being who was out-
doors near the hypocentre. The witness further disclosed that according
to documented cases, clothing had burst into flames at a distance of
2 kilometres from the hypocentre of the bomb; many fires were ignited
simultaneously throughout the city; the entire city was carbonized and
reduced to ashes. Yet another phenomenon was a shock-wave which
inflicted even greater damage when it ricocheted off the ground and
buildings. The blast wind which resulted had, he said, lifted and carried
people through the air. All wooden buildings within a radius of 2 kilo-
metres collapsed, while many well beyond that distance were damaged.

The blast and thermal rays combined to burn to ashes or cause the col-
lapse of approximately 70 per cent of the 76,327 dwellings in Hiroshima
at the time. The rest were partially destroyed, half-bombed or damaged.
The entire city was said to have been instantly devastated by the drop-
ping of the bomb.

On the day the bomb was dropped, the witness further disclosed that
there were approximately 350,000 people in Hiroshima, but it was later
estimated that some 140,000 had died by the end of December 1945. Hos-
pitals were said to be in ruins with medical staff dead or injured and with
no medicines or equipment, and an incredible number of victims died,
unable to receive sufficient treatment. Survivors developed fever, diar-
rhoea, haemorrhaging, and extreme fatigue, many died abruptly. Such
was said to be the pattern of the acute symptoms of the atomic bomb
disease. Other consequences were a widespread destruction of ceils, loss
of blood-producing tissue, and organ damage. The immune systems of
survivors were weakened and such symptoms as hair loss were conspic-
uous. Other experiences recorded were an increase in leukaemia, cataracts,
thyroid cancer, breast cancer, lung cancer and other cancers. As a result
of the bombing, children exposed to radiation suffered mental and physi-
cal retardation. Nothing could be done for these children medically and
even unborn babies, the Mayor stated, had been affected. He concluded
by saying that exposure to high levels of radiation continues in Hiro-
shima to this day.

The Mayor of Nagasaki, in his testimony, described effects on his city
that were similar to those experienced by Hiroshima as a result of the
atomic bombing which had taken place during the war. According to the
witness,

“The explosion of the atomic bomb generated an enormous fire-
ball, 200 metres in radius, almost as though a small sun had appeared
in the sky. The next instant, a ferocious blast and wave of heat

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assailed the ground with a thunderous roar. The surface temperature
of the fireball was about 7,000° C, and the heat rays that reached the
ground were over 3,000° C. The explosion instantly killed or injured
people within a two-kilometre radius of the hypocentre, leaving
innumerable corpses charred like clumps of charcoal and scattered
in the ruins near the hypocentre. In some cases not even a trace of
the person’s remains could be found. The blast wind of over
300 metres per second slapped down trees and demolished most
buildings. Even iron reinforced concrete structures were so badly
damaged that they seemed to have been smashed by a giant hammer.
The fierce flash of heat meanwhile melted glass and left metal objects
contorted like strands of taffy, and the subsequent fires burned the
ruins of the city to ashes. Nagasaki became a city of death where not
even the sounds of insects could be heard. After a while, countless
men, women and children began to gather for a drink of water at the
banks of nearby Urakami River, their hair and clothing scorched
and their burnt skin hanging off in sheets like rags. Begging for help,
they died one after another in the water or in heaps on the banks.
Then radiation began to take its toll, killing people like a scourge of
death expanding in concentric circles from the hypocentre. Four
months after the atomic bombing, 74,000 people were dead and
75,000 had suffered injuries, that is, two-thirds of the city population
had fallen victim to this calamity that came upon Nagasaki like a
preview of the Apocalypse.” (CR 95/27, p. 38.)

The witness went on to state that even people who were lucky enough
to survive continued to this day to suffer from the late effects unique to
nuclear weapons. Nuclear weapons, he concluded, bring in their wake the
indiscriminate devastation of civilian populations.

Testimony was also given by the delegation of the Marshall Islands
which was the site of 67 nuclear weapons tests from 30 June to 18 August
1958, during the period of the United Nations Pacific Islands territories
trusteeship. The total yield of those weapons was said to be equivalent to
more than 7,000 bombs of the size of that which destroyed Hiroshima.
Those nuclear weapon tests were said to have caused extensive radiation,
induced illnesses, deaths and birth defects. Further on in the testimony, it
was disclosed that human suffering and damage to the environment
occurred at great distances, both in time and in geography, from the sites
of detonations even when an effort was made to avoid or mitigate harm.
The delegation went on to inform the Court that the unique characteris-
tics of nuclear weapons are that they cause unnecessary suffering and
include not only widespread, extensive, radioactive contamination with
cumulative adverse effects, but also locally intense radiation with severe,

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immediate and long-term adverse effects, far-reaching blasts, heat, and
light resulting in acute injuries and chronic ailments. Permanent, as well
as temporary, blindness from intense light and reduced immunity from
radiation exposures were said to be common and unavoidable conse-
quences of the use of nuclear weapons, but which were uncommon or
absent from the use of other destructive devices.

The delegation further disclosed that birth defects and extraordinarily
prolonged and painful illnesses caused by the radioactive fallout inevi-
tably and profoundly affected the civilian population long after the
nuclear weapons tests had been carried out. Such suffering had affected
generations born long after the testing of such weapons. It went on to say
that, apart from the immediate damage at and near ground zero (where
the detonation took place), the area experienced contamination of ani-
mals and plants and the poisoning of soil and water. As a consequence,
some of the islands were still abandoned and in those that had recently
been resettled, the presence of caesium in plants from the radioactive fall-
out rendered them inedible. Women on some of the other atolls in the
islands who had been assured that their atolls were not affected by radia-
tion were said to have given birth to “monster babies”. A young girl on
one of these atolls was said to have no knees, three toes on each foot and
a missing arm; her mother had not been born by 1954 when the tests
started but had been raised on a contaminated atoll.

In the light of the foregoing the Court, as well as taking cognizance of
the unique characteristics of nuclear weapons when used, reached the fol-
lowing conclusions; that nuclear weapons have a destructive capacity un-
matched by any conventional weapon; that a single nuclear weapon has
the capacity to kill thousands if not millions of human beings; that such
weapons cause unnecessary suffering and superfluous injury to comba-
tants and non-combatants alike; and that they are unable to distinguish
between civilians and combatants. When recourse is had to such weap-
ons, it can cause damage to generations unborn and produce widespread
and long-term effects on the environment, particularly in respect of
resources necessary for human survival. In this connection, it should be
noted that the radioactive effects of such weapons are not only similar to
the effects produced by the use of poison gas which would be in violation
of the 1925 Geneva Gas Protocol, but are considered even more harmful.

The above findings by the Court should have led it inexorably to con-
clude that any use of nuclear weapons is unlawful under international
law, in particular the law applicable in armed conflict including humani-
tarian law. However, instead of this, the Court found that:

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“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” (paragraph 2E of the dispositif).

This finding that would appear to suggest that nuclear weapons when
used in circumstances of a threat to “State survival” — a concept invented
by the Court — would constitute an exception to the corpus of humani-
tarian law which applies in all armed conflicts and makes no exception
for nuclear weapons. In my considered opinion, the unlawfulness of the
use of nuclear weapons is not predicated on the circumstances in which
the use takes place, but rather on the unique and established character-
istics of those weapons which under any circumstance would violate
international law by their use. It is therefore most inappropriate for the
Court’s finding to have turned on the question of State survival when
what is in issue is the lawfulness of nuclear weapons. Such a misconcep-
tion of the question deprives the Court’s finding of any legal basis.

On the other hand, if the Court had properly perceived the question
and intended to give an appropriate reply, it would have found that an
overwhelming justification exists on the basis of the law and the facts,
which would have enabled it to reach a finding that the use of nuclear
weapons in any circumstance would be unlawful. The Court’s failure to
reach this inevitable conclusion has compelled me to enter a vigorous dis-
sent to its main finding.

I am likewise constrained to mention various other, more general, mis-
givings with regard to the Advisory Opinion on the whole. While the pur-
pose of the Court’s advisory jurisdiction is to provide an authoritative
legal opinion and to enlighten the requesting body on certain legal
aspects of an issue with which it has to deal when discharging its func-
tions, the device has also been used to secure authoritative interpretations
of the provisions of the Charter or the constitutive instruments of spe-
cialized agencies, or to provide guidance to various organs of the United
Nations in relation to their functions. Furthermore, although the advi-
sory opinions of the Court are not legally binding and impose no legal
obligations either upon the requesting body or upon States, such opin-
ions are nonetheless not devoid of effect as they remain the law “recog-
nized by the United Nations” (Admissibility of Hearings of Petitioners
by the Committee on South West Africa, I C.J. Reports 1956, separate
opinion of Judge Lauterpacht, p. 46). Accordingly, this Court has, on
various occasions, used its advisory jurisdiction as a medium of partici-
pation in the work of the United Nations, helping the Organization to
achieve its objectives. Advisory opinions have enabled the Court to con-
tribute meaningfully to the development and crystallization of the law.
For example, in the Namibia Advisory Opinion, the Court referred to the

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development “of international law in regard to non-self-governing terri-
tories, as enshrined in the Charter of the United Nations” (Legal Conse-
quences for States of the Continued Presence of South Africa in Namibia
(South West Africa) notwithstanding Security Council Resolution 276
(1970), I C.J. Reports 1971, p. 31), which made the principle of self-
determination applicable to such territories.

In its Advisory Opinion on the Western Sahara, the Court, citing the
Namibia Opinion in relation to the principle of self-determination, stated
that when questions are asked with reference to that principle, the Court

666

must take into consideration the changes which have occurred in
the supervening half-century, and its interpretation cannot remain
unaffected by the subsequent development of law, through the Char-
ter of the United Nations and by way of customary law’.

‘In this domain, as elsewhere, the corpus iuris gentium has been
considerably enriched, and this the Court, if it is faithfully to dis-

charge its functions, may not ignore.’” (C.J. Reports 1975, p. 32,
para. 56.)

The Court’s Opinion in the case accordingly referred to Article 1 of the
United Nations Charter and to the Declaration on the Granting of Inde-
pendence to Colonial Countries and Peoples which, it said, “confirm and
emphasize that the application of the right of self-determination requires
a free and genuine expression of the will of the peoples concerned”
(C.J. Reports 1975, p. 32, para. 55). Moreover, the Court insisted that

“The validity of the principle of self-determination, defined as the
need to pay regard to the freely expressed will of peoples is not
affected by the fact that in certain cases the General Assembly has
dispensed with the requirement of consulting the inhabitants of a
given territory.” ({bid., p. 33, para. 59.)

It can therefore be observed that through the medium of its advisory
opinions, the Court has rendered normative decisions which have enabled
the United Nations to achieve its objectives, in some cases even leading
to the peaceful settlement of disputes, and has either contributed to
the crystallization and development of the law or, with its imprimatur,
affirmed the emergence of the law.

It is therefore to be regretted that, on this occasion, the Court would
seem not only to have retreated from this practice of making its contribu-
tion to the development of the law on a matter of such vital importance
to the General Assembly and to the international community as a whole
but may, albeit unintentionally, have cast doubt on established or emer-
ging rules of international law. Indeed, much of the approach of the Court
in this Opinion is indicative of this attitude. When not looking for spe-
cific treaties or customary law rules supposed to regulate or prohibit the
use of nuclear weapons, the Court has tended to declare either that it is

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not called upon to make a finding on the matter or that it is not necessary
for it to take a position. For instance, regarding the matter of whether
the principles and rules of humanitarian law are part of jus cogens as
defined in Article 53 of the Vienna Convention on the Law of Treaties of
1969, the Court stated that there is no need for it to pronounce on the
matter even though there is almost universal adherence to the fact that
the Geneva Conventions of 1949 are declaratory of customary interna-
tional law, and there is community interest and consensus in the obser-
vance of and respect for their provisions. A pronouncement of the Court
emphasizing their humanitarian underpinnings and the fact that they are
deeply rooted in the traditions and values of member States of the inter-
national community and deserve universal respect and protection, and
not to be derogated from by States would assist in strengthening their
legal observance especially in an era which has so often witnessed the
most serious and egregious violation of humanitarian principles and rules
and whose very raison d’étre is irreconcilable with the use of nuclear
weapons. This has been part of the judicial function of the Court — the
establishment of international legal standards for the community of
States and, in particular, for those that appear before it or are parties to
its Statute. In the establishment of such legal standards, the Court, in the
Reservations case, referred to the principles underlying the Convention
on the Prohibition of Genocide as principles which are recognized by
civilized nations “as binding on States, even without any conventional
obligation” (Reservations to the Convention on the Prevention and Pun-
ishment of the Crime of Genocide, I.C.J. Reports 1951, p. 23). It also rec-
ognized the co-operation required by the Convention “in order to liber-
ate mankind from such an odious scourge... .” (ibid. ). The Court noted
that the Convention was adopted for a purely humanitarian and civiliz-
ing purpose, “to safeguard the very existence of certain human groups
and ...to confirm and endorse the most elementary principles of moral-
ity” (ibid.). In the Corfu Channel case, the Court referred to “certain
general and well-recognized principles, namely: elementary considera-
tions of humanity, even more exacting in peace than in war” (CJ.
Reports 1949, p. 22). Such pronouncements would undoubtediy have
helped to foster a proper sense of restraint within the international com-
munity. In the Barcelona Traction case, the Court in discussing the obli-
gations of States towards the international community stated that such
obligations are ergo omnes and

“derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the
principles and rules concerning the basic rights of the human person,
including protection from slavery and racial discrimination. Some of
the corresponding rights of protection have entered into the body of
general international law . . .” (Barcelona Traction, Light and Power
Company, Limited, I.C.J. Reports 1970, p. 32, para. 34).

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In the case under consideration, the Court would appear to have been
all too reluctant to take a position of principle on a question involving
what the late Judge Nagendra Singh has described as the most important
aspect of international law facing humanity today (Nuclear Weapons and
International Law, p. 17). Instead, the Court would seem to have
attempted to overcome this fundamental issue about the jus cogens char-
acter of some of the principles and rules of humanitarian law by saying
that the request transmitted to it “does not raise the question of the char-
acter of the humanitarian law which would apply to the use of nuclear
weapons”. With respect they do. A pronouncement by the Court regard-
ing the character and application of such rules, while not a guarantee of
their observance at all times, would nevertheless be considered as a re-
affirmation of those rules as they relate to human values which are already
protected by positive legal principles and, when taken together, reveal
certain criteria of public policy. (See J. Brownlie, Principles of Public
International Law, 1990, p. 28.) H. Lauterpacht has also stated that,
among other reasons, many of the provisions of the Geneva Conventions
following as they do from “compelling considerations of humanity, are
declaratory of universally binding international custom” (E. Lauterpacht
(ed.), International Law, Being the Collected Papers of Hersch Lauter-
pacht, 1970, p. 115). The International Law Commission pointed out in
its commentary on Article 50 (now 53) of the Vienna Convention on the
Law of Treaties, that “it is not the form of a general rule of international
law, but the particular nature of the subject-matter with which it deals
that may ... give it a character of jus cogens”. Already in 1980, the Com-
mission observed that “some of the rules of humanitarian law are, in the
opinion of the Commission, rules which impose obligations of jus cogens”.

The Court also adopted the judicial policy of “non-pronouncement”
on the question of belligerent reprisals — an issue most pertinent to the
question before it — “save to observe that in any case any right of
recourse to such reprisals would, like self-defence, be governed inter alia
by the principle of proportionality” (para. 46). It is to say the least
strange that the Court should refrain from pronouncing on the lawful-
ness or otherwise of belligerent reprisals, particularly if it would involve
the use of nuclear weapons. Under contemporary international law, bel-
ligerent reprisals, if carried out with nuclear weapons, would grossly vio-
late humanitarian law in any circumstance and international law in gen-
eral. More specifically the Geneva Conventions prohibit such reprisals
against a range of protected persons and objects as reaffirmed in Addi-
tional Protocol I of 1977. According to the Protocol, all belligerent
parties are prohibited from carrying out belligerent reprisals. If nuclear
weapons were used and given the characteristics of those weapons, their
inability to discriminate between civilians and combatants and between
civilian and military objectives, together with the likelihood of violations
of the prohibition of unnecessary suffering and superfluous injuries to

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belligerents, such reprisals would at a minimum be contrary to estab-
lished humanitarian law and would therefore be unlawful. The Court’s
“judicial restraint” on an issue of such crucial importance to the question
before it contributes neither to the clarification of the law, let alone to its
observance.

The Court’s reluctance to take a legal position on some of the impor-
tant issues which pertain to the question before it could also be discerned
from what may be described as a “judicial odyssey” in search of a specific
conventional or customary rule specifically authorizing or prohibiting the
use of nuclear weapons, which only led to the discovery that no such spe-
cific rule exists. Indeed, if such a specific rule did exist, it is more than
unlikely that the question would have been brought before the Court in
its present form, if at all. On the other hand, the absence of a specific
convention prohibiting the use of nuclear weapons should not have sug-
gested to the Court that the use of such weapons might be lawful, as it is
generally recognized by States that customary international law embodies
principles which are applicable to the use of such weapons. Hence the
futile quest for specific legal prohibition can only be attributable to an
extreme form of positivism, which is out of keeping with the international
jurisprudence — including that of this Court. The futility of such an
enterprise was recognized by the British-American Claims Arbitral Tri-
bunal in the Eastern Extension, Australia and China Telegraph Company
case, where it was held that even if there were no specific rule of interna-
tional law applicable to a case, it could not be said that there was no rule
of international law to which resort might be had:

“International law, as well as domestic law, may not contain, and
generally does not contain, express rules decisive of particular cases;
but the function of jurisprudence is to resolve the conflict of oppos-
ing rights and interests by applying, in default of any specific provi-
sion of law, the corollaries of general principles, and so to find —
exactly as in the mathematical sciences — the solution of the prob-
lem. This is the method of jurisprudence; it is the method by which
the law has been gradually evolved in every country, resulting in the
definition and settlement of legal relations as well between States as
between private individuals.” (United Nations, Reports of Interna-
tional Arbitral Awards, Vol. VI, pp. 114-115.)

Such then has been the jurisprudential approach to issues before the
Court. The Court has applied legal principles and rules to resolve the
conflict of opposing rights and interests where no specific provision of the
law exists, and has relied on the corollaries of general principles in order
to find a solution to the problem. The Court’s approach has not been
restricted to a search for a specific treaty or rule of customary law spe-
cifically regulating or applying to a matter before it and, in the absence of

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such a specific rule or treaty, it has not declared that it cannot definitively
conclude or that it is unable to reach a decision or make a determination
on that matter. The Court has in the past — rightly in my view — not
imposed such restrictions upon itself when discharging its judicial func-
tion to decide disputes in accordance with international law, but has
referred to the principles of international law, to equity and to its own
jurisprudence in order to define and settle the legal issues referred to it.

On the other hand, the search for specific rules led the Court to over-
look or not fully to apply the principles of the United Nations Charter
when considering the question before it. One such principle that does not
appear to have been given its due weight in the Judgment of the Court is
Article 2, paragraph 1, of the Charter of the United Nations, which pro-
vides that “The Organization is based on the principle of sovereign equal-
ity of all its Members.” The principle of sovereign equality of States is of
general application. It presupposes respect for the sovereignty and terri-
torial integrity of all States. International law recognizes the sovereignty
of each State over its territory as well as the physical integrity of the civil-
ian population. By virtue of this principle, a State is prohibited from
inflicting injury or harm on another State. The principle is bound to be
violated if nuclear weapons are used in a given conflict, because of their
established and well-known characteristics. The use of such weapons
would not only result in the violation of the territorial integrity of non-
belligerent States by radioactive contamination, but would involve the
death of thousands, if not millions, of the inhabitants of territories not
parties to the conflict. This would be in violation of the principle as
enshrined in the Charter, an aspect of the matter that would appear not
to have been taken fully into consideration by the Court when making its
findings.

I am likewise constrained to express my apprehension over some of the
other findings in the Advisory Opinion with regard to respect for human
rights and genocide, the protection of the natural environment and the
policy of deterrence. With regard to genocide, it is stated that genocide
would be considered to have been committed if a recourse to nuclear
weapons resulted from an intent to destroy, in whole or in part, a
national, ethnical, racial or religious group, as such. This reflects the text
of the Genocide Convention. However, one must be mindful of the spe-
cial characteristics of the Convention, its object and purpose, to which
the Court itself referred in the Reservations case as being to condemn and
punish

“‘a crime under international law’ involving a denial of the right of
existence of entire human groups, a denial which shocks the con-
science of mankind and results in great losses to humanity, and which
is contrary to moral law and to the spirit and aims of the United
Nations” (Reservations to the Convention on the Prevention and Pun-
ishment of the Crime of Genocide, I.C.J. Reports 1951, p. 23);

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while further pointing out

“that the principles underlying the Convention are principles which
are recognized by civilized nations as binding on States, even with-
out any conventional obligation” (Z C.J. Reports 1951, p. 23).

It further emphasized the co-operation required in order “to liberate
mankind from such an odious scourge” and, given the humanitarian and
civilizing purpose of the Convention, it referred to it as intended “to safe-
guard the very existence of certain human groups”, and “to confirm and
endorse the most elementary principles of morality”. The Court cannot
therefore view with equanimity the killing of thousands, if not millions,
of innocent civilians which the use of nuclear weapons would make inevi-
table, and conclude that genocide has not been committed because the
State using such weapons has not manifested any intent to kill so many
thousands or millions of people. Indeed, under the Convention, the
quantum of the people killed is comprehended as well. It does not appear
to me that judicial detachment requires the Court from expressing itself
on the abhorrent shocking consequences that a whole population could
be wiped out by the use of nuclear weapons during an armed conflict,
and the fact that this could tantamount to genocide, if the consequences
of the act could have been foreseen. Such expression of concern may even
have a preventive effect on the weapons being used at all.

As to whether recourse to nuclear weapons would violate human
rights, in particular the right to human life, the Court found that it was
never envisaged that the lawfulness or otherwise of such weapons would
be regulated by the International Covenant on Civil and Political Rights.
While this is accepted as a legal position, it does seem to me that too
natrow a view has been taken of the matter. It should be recalled that
both human rights law and international humanitarian law have as their
raison d’étre the protection of the individual as well as the worth and dig-
nity of the human person, both during peacetime or in an armed conflict.
It is for this reason, to my mind, that the United Nations Charter, which
was adopted immediately after the end of the Second World War in the
course of which serious and grave violations of human rights had
occurred, undertook to protect the rights of individual human beings
whatever their race, colour or creed, emphasizing that such rights were to
be protected and respected even during an armed conflict. It should not
be forgotten that the Second World War had witnessed the use of the
atomic weapon in Hiroshima and Nagasaki, resulting in the deaths of
thousands of human beings. The Second World War therefore came to
be regarded as the period epitomizing gross violations of human rights.
The possibility that the human rights of citizens, in particular their right
to life, would be violated during a nuclear conflagration, is a matter
which falls within the purview of the Charter and other relevant interna-
tional legal instruments. Any activity which involves a terrible violation

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of the principles of the Charter deserves to be considered in the context of
both the Charter and the other applicable rules. It is evidently in this con-
text that the Human Rights Committee under the International Cov-
enant on Civil and Political Rights adopted, in November 1984, a “gen-
eral comment” on Article 6 of the Covenant (Right to Life), according to
which the production, testing, possession, deployment and use of nuclear
weapons ought to be prohibited and recognized as crimes against human-
ity. It is to be recalled that Article 6 of the Charter of the Nuremberg
Tribunal defined crimes against humanity as “murder, extermination . . .,
and other inhumane acts committed against any civilian population,
before or during war . . .”. It follows that the Nuremberg principles are
likewise pertinent to the matter just considered by the Court.

With regard to the protection and safeguarding of the natural environ-
ment, the Court reached the conclusion that existing international law
does not prohibit the use of nuclear weapons, but that important envi-
ronmental factors are to be taken into account in the context of the
implementation of the principles and rules of law applicable in armed
conflict. The Court also found that relevant treaties in relation to the pro-
tection of the natural environment could not have intended to deprive
a State of the exercise of its right to self-defence under international law.

In my view, what is at issue is not whether a State might be denied its
right to self-defence under the relevant treaties intended for the protection
of the natural environment, but rather that, given the known qualities of
nuclear weapons when exploded as well as their radioactive effects which
not only contaminate human beings but the natural environment as well
including agriculture, food, drinking water and the marine ecosystem
over a wide area, it follows that the use of such weapons would not only
cause severe and widespread damage to the natural environment, but
would deprive human beings of drinking water and other resources
needed for survival. In recognition of this, the First Additional Protocol
of 1977 makes provision for the preservation of objects indispensable to
the survival of the civilian population, such as foodstuffs, agricultural
produce, drinking water installations, etc. The Advisory Opinion should
have considered the question posed in relation to the protection of the
natural environment from this perspective, rather than giving the impres-
sion that the argument advanced was about denying a State its legitimate
right of self-defence.

The Advisory Opinion considered that the fact of nuclear weapons not
having been used for 50 years cannot be regarded as an expression of an
opinio juris. The legal basis for such a recognition was not elaborated; it
was more in the nature of an assertion. However, the Court was unable
to find that the conviction of the overwhelming majority of States that
the fact that nuclear weapons have not been used for the last 50 years has
established an opinio juris in favour of the prohibition of such use, was
such as to have a bearing on its Opinion. In this connection, the Court

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should have given due consideration and weight to the statements of the
overwhelming majority of States together with the resolutions adopted
by various international organizations on the use of nuclear weapons, as
evidence of the emergence of an opinio juris.

In my view, it was injudicious for the Court to have appeared to give
legal recognition to the doctrine of deterrence as a principle of inter-
national law. While it is legitimate that judicial notice should be taken of
that policy, the Court should have realized that it has the potential of
being declared illegal if implemented, as it would involve a nuclear con-
flict between belligerents with catastrophic consequences for the civilian
population not only of the belligerent parties but those of States not
involved in such a conflict, and could result in the violation of interna-
tional law in general and humanitarian law in particular. It would there-
fore have been prudent for the Court to have refrained from taking a
position on this matter, which is essentially non-legal.

Be that as it may, the Advisory Opinion cannot be considered as
entirely without legal merit or significance. The positive findings it con-
tains should be regarded as a step forward in the historic process of
imposing legal restraints in armed conflicts. Some of those restraints as
they relate to nuclear weapons have now found expression in the opinion
of the Court. For the first time in its history, indeed in the history of any
tribunal of similar standing, the Court has declared and confirmed that
nuclear weapons are subject to international law; that a threat or use of
force by means of nuclear weapons that is contrary to Article 2, para-
graph 4, of the United Nations Charter, and that fails to meet the
requirements of Article 51 is unlawful. The Court has also held that any
threat or use of nuclear weapons that is incompatible with the require-
ments of international law applicable in armed conflict, particularly those
of the principles of humanitarian law as well as specific obligations under
the treaties or other undertakings, dealing expressly with nuclear weap-
ons, would be unlawful. Inferentially, it is because recourse to nuclear
weapons could not meet the aforementioned requirements that the Court
has found

“that the threat or use of nuclear weapons would generally be con-
trary to the rules of international law applicable in armed conflict,
and in particular the principles and rules of humanitarian law”
(paragraph 2E of the dispositif).

This finding, though qualified, should be regarded as of normative impor-
tance, when taken together with the other conclusions reached by the
Court. Among other things, it is a rejection of the argument that since
humanitarian law pre-dated the invention of nuclear weapons, it could
not therefore be applicable to those weapons. On the contrary, the Court
has found that given the intrinsic character of the established principles
and rules of humanitarian law, it does apply to them.

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It is in the response to these juridical findings of both historic and nor-
mative importance that I have voted in favour of paragraphs 2A, 2C,
2D and 2F of the dispositif, but not without reservations with respect to
paragraph 2C.

However, I have voted against paragraph 2 B according to which the
Court finds that there is in neither customary nor conventional interna-
tional law any comprehensive and universal prohibition of the threat of
nuclear weapons as such. Such a finding, in my view, is not in accordance
with the law. At the very least, the use of nuclear weapons would
violate the prohibition of the use of poison weapons as embodied in
Article 23 (a) of the Hague Convention of 1899 and 1907 as well as
the Geneva Gas Protocol of 1925 which prohibits the use of poison gas
and/or bacteriological weapons. Because of its universal adherence, the
Protocol is considered binding on the international community as a
whole. Furthermore, the prohibition of the use of poison gas is now
regarded as a part of customary international law binding on all States,
and, the finding by the Court in paragraph 2 B cannot be sustained in the
face of the Geneva Conventions of 1949 and the 1977 Additional Proto-
cols thereto either. With regard to the Conventions, they are as of today
binding on at least 186 States and their universal acceptance is said to be
even greater than that of the United Nations Charter. Accordingly, those
treaties are now recognized as a part of customary international law
binding on all States. The Court in its Judgment in the Nicaragua case
confirmed that the Conventions are a part of customary international
law, when it stated that:

“there is an obligation . . . in the terms of Article 1 of the Geneva
Conventions, to ‘respect’ the Conventions and even ‘to ensure
respect’ for them ‘in all circumstances’, since such an obligation does
not derive only from the Conventions themselves, but from the gen-
eral principles of humanitarian law to which the Conventions merely
give specific expression” (Military and Paramilitary Activities in and
against Nicaragua (Nicaragua v. United States of America), I.C_J.
Reports 1986, p. 114, para. 220).

By reference to the humanitarian principles of international law, the
Court recognized that the Conventions themselves are reflective of cus-
tomary law and as such universally binding. The same reasoning applies
to Additional Protocol E in particular, which constitutes a restatement
and a reaffirmation of customary law rules based on the earlier Geneva
and Hague Conventions. To date, 143 States have become parties to the
Protocol, and the customary force of the provisions of the Protocol are
not based on the formal status of the Protocol itself.

In the light of the foregoing conclusion, it cannot be maintained, as the
Court has done, that there is in neither customary nor conventional inter-
national law any comprehensive and universal prohibition of the threat

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or use of nuclear weapons as such. Such a finding is not consistent with
its jurisprudence either as alluded to above.

I have however voted in favour of paragraph 2 F of the dispositif which
stresses the 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. I am of the view that the parties to the
1968 Treaty on the Non-Proliferation of Nuclear Weapons, realizing the
danger posed to all States by the proliferation of nuclear weapons,
entered into a binding commitment to end the nuclear arms race at an
early date and to embark on nuclear disarmament. The dangers that
those weapons posed for humanity in 1968 are still current today, as is
evident from the decision taken in 1995 by the States parties to the
Treaty, to make it permanent. The obligation to eliminate those weapons
remains binding on those States so as to remove the threat such weapons
pose to violate the Charter or the principles and rules of humanitarian
law. There is accordingly a correlation between the obligation of nuclear
disarmament assumed by those States parties to the Non-Proliferation
Treaty and the obligations assumed by States under the United Nations
Charter and under the law applicable in armed conflict, in particular
international humanitarian law.

Despite this and some of the other normative conclusions reached by
the Court in its Advisory Opinion, it is a matter of profound regret that
on the actual question put to it, that is, whether it is permitted under
international law to use nuclear weapons in any circumstances, the Court
flinched and failed to reach the only and inescapable finding, namely,
that in view of the established facts of the use of such weapons, it is
inconceivable that there is any circumstance in which their use would not
violate the principles and rules of international law applicable in armed
conflict and, in particular, the principles and rules of humanitarian law.
By not answering the question and leaving it to States to decide the mat-
ter, the Court declined the challenge to reaffirm the applicability of the
rules of law and of humanitarian law in particular to nuclear weapons
and to ensure the protection of human beings, of generations unborn and
of the natural environment against the use of such weapons whose
destructive power, we have seen, is unable to discriminate between com-
batants and non-combatants, cannot spare hospitals or prisoner-of-war
camps and can cause suffering out of all proportion to military necessity
leaving their victims to die as a result of burns after weeks of agony, or to
be afflicted for life with painful infirmities. The request by the General
Assembly was for the Court, as the guarantor of legality, to affirm that
because of these consequences, the use of nuclear weapons is unlawful
under international law. A determination that this Court as a court of
law should have been able to make.

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In the absence of such a categoric and inescapable finding, I am left
with no alternative but with deep regret to dissent from the Advisory
Opinion.

(Signed) Abdul G. Koroma.

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86

DÉCLARATION DE M. RANJEVA

J'ai voté en faveur de la décision de la Cour car j'estime qu’elle est
conforme au droit pertinent. J'aurais néanmoins souhaité que la Cour fat
plus explicite en ce qui concerne le problème de sa compétence judiciaire
consultative en insistant sur le fait que la structure de la question de
l’Assemblée mondiale de la Santé ne lui avait pas permis d’exercer la
compétence qu’elle avait de toutes les façons.

{Signé) Raymond RANJEVA.

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