330

I.

IL.

IIL.

108

DISSENTING OPINION OF JUDGE ODA

TABLE OF CONTENTS

Paragraphs

INTRODUCTORY REMARKS — My OpposiITION TO THE Court’s Dzct-
SION TO RENDER AN OPINION IN RESPONSE TO THE REQUEST UNDER
GENERAL ASSEMBLY RESOLUTION 49/75 K In THIS CASE

(1) The inadequacy of the question put by the General Assembly
in the resolution as the request for advisory opinion

(2) The lack of a meaningful consensus of the Member States of
the United Nations on the request drafted without any
adequate statement of reasoning

Table I

ONE ASPECT OF NUCLEAR DISARMAMENT -—— THE UNSUCCESSFUL
EFFORTS OVER A LONG PERIOD TO BRING ABOUT A CONVENTION “PRO-
HIBITING THE USE OR THREAT OF Use of NUCLEAR WEAPONS UNDER
ANY CIRCUMSTANCES” AS AN IMMEDIATE BACKGROUND TO THE
REQUEST TO THE CouRT

(1) Declaration on the non-use or the prohibition of nuclear
weapons
Table II

(2) The 1982-1995 resolutions on the Convention on the Prohibi-
tion of the Use of Nuclear Weapons
Table Ill

ANOTHER ASPECT OF NUCLEAR DISARMAMENT — NUCLEAR DISARMA-

MENT IN THE PERIOD OF THE COLD WAR AND THE ROAD TO THE
CONCLUSION OF THE NON-PROLIFERATION TREATY

(1) The nuclear arms race and the control of nuclear weapons in
the period of the Cold War; the emergence of the Non-Prolif-
eration Treaty

(a) Development of nuclear disarmament
(b) Separation between nuclear-weapon States and non-
nuclear-weapon States

(2) Perpetuation of the NPT régirne

(a) Non-Proliferation Treaty
(b) Indefinite extension of the Non-Proliferation Treaty

Table IV

1-14

2-5

6-14

15-25

15-19

20-25

26-42

26-33
26-30

31-33
34-4]
34-36

37-41
331

IV.

V.

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THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

(3) Significance of the NPT régime in the period of the still valid
doctrine of nuclear deterrence

Table V
CONCLUDING REMARKS

(1) Re-examination of the General Assembly’s request for the
Court’s advisory opinion

(2) Role of the advisory function and the discretion of the Court
to decline to render an advisory opinion

(3) Conclusions

SUPPLEMENTARY OBSERVATIONS ON My POSITION AS REGARDS PARA-
GRAPH 2 OF THE OPERATIVE PART OF THE PRESENT ADVISORY OPINION

42

43-54

43-46

47-51
52-54

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332 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

1. INTRODUCTORY REMARKS — My OPPOSITION TO THE COURT'S
DECDISION TO RENDER AN OPINION IN RESPONSE TO THE REQUEST UNDER
GENERAL ASSEMBLY RESOLUTION 49/75 K IN THIS CASE

1. As the only Judge who voted against paragraph 1 of the operative
part of the Court’s Opinion, I would like to state my firm conviction that
the Court, for reasons of judicial propriety and economy, should have
exercised its discretionary power to refrain from rendering an opinion in
response to the request for advisory opinion submitted by the United
Nations General Assembly under its resolution 49/75 K of 15 December
1994. J am sorry to have to say that the conclusions the Court has now
reached do not appear to me to constitute substantive or substantial
answers to the questions that the General Assembly wanted to raise by
means of its resolution and occasion doubts about the credibility of the
Court.

(1) The Inadequacy of the Question Put by the General Assembly
in the Resolution as the Request for Advisory Opinion

2. (The request laid down in resolution 49/75 K.) The question put to
the Court by the General Assembly, under resolution 49/75 K within the
framework of the agenda item: “General and complete disarmament”,
reads strangely. It is worded as follows:

“Is the threat or use of nuclear weapons in any circumstance per-
mitted under international law?”

(The French text reads: “Est-il permis en droit international de
recourir à la menace ou à l’emploi d’armes nucléaires en toute cir-
constance ?”)

The Court’s Opinion points out the difference between the English and
the French texts of the request and states that “[t]he Court finds it un-
necessary to pronounce on the possible divergences” (Advisory Opinion,
para. 20). We should, however, note that the resolution which originated
in draft resolution A/C.1/49/L.36 (original: English), prepared and intro-
duced by Indonesia (on behalf of the States Members of the United
Nations that are members of the Movement of Non-Aligned Countries),
was originally drafted in English and that, in the First Committee at the
forty-ninth session (1994) which took up this draft resolution, the content
of this original English text was not questioned by any delegate. More-
over, it would seem that the francophone delegates raised no question
about the text of the French translation, as far as the verbatim records
indicate. I shall therefore proceed with my analysis based on the English
text.

3. (The request was presented to the Court, not so much in order to
ascertain its opinion as to seek the endorsement of an alleged legal
axiom.) When putting this question to the Court, the General Assembly
— or those States which took the initiative in drafting the request —

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333 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

clearly never expected that it would give an answer in the affirmative stat-
ing that: “Yes, the threat or use of nuclear weapons is permitted under
international law in any circumstance [or, in all circumstances].” If this is
true, it follows that, in fact, the General Assembly on/y expected the
Court to state that: “No, the threat or use of nuclear weapons is not per-
mitted under international law in any circumstance.” The General Assem-
bly, by asking the question that it did, wished to obtain nothing more
than the Court’s endorsement of the latter conclusion.

Since the Court was simply asked in this instance to give an opinion
endorsing what is, in the view of the General Assembly, a legal axiom to
the effect that “the threat or use of nuclear weapons is not permitted
under international law in any circumstance”, I wonder if the request
really does fall within the category of a request for advisory opinion
within the meaning of Article 96 (1) of the Charter of the United
Nations. In the history of the advisory function of the Court, a simple
endorsement or approval of what either the General Assembly or the
Security Council believed to be a correct legal axiom has never been
asked for in the form of a request for advisory opinion.

The drafting of the question put by the General Assembly seems to
have been extremely singular. The Court has, however, reformulated
the question to read, as indicated in paragraph 20 of the Advisory Opin-
ion: “[the] real objective [of the question] is clear: to determine the legal-
ity or illegality of the threat or use of nuclear weapons” (emphasis added)
and, furthermore, has implicitly reformulated the question to read: if
nuclear weapons are not totally prohibited, under what circumstances is
the threat or use of nuclear weapons considered to be lawful or permis-
sible?

4. (The lack of clarity as regards the concept of a “threat” in connec-
tion with nuclear weapons.) 1 would like further to point out that the
words “the threat of nuclear weapons” are not clearly defined in the
request and may not have been understood in an unequivocal manner by
the Member States which supported the resolution. An important point
seems to be overlooked in the request, namely a possibility that nuclear
weapons may well be considered to constitute a “threat” merely by being
in a State’s possession or being under production by a State, considering
that the phrase “threat or use of nuclear weapons” (emphasis added) was
first used in the request while the phrase “the use or threat of use of
nuclear weapons” (emphasis added) had long been employed in the
United Nations resolutions. In my view it was quite possible, at the time
of the request, for some Member States of the United Nations to con-
sider that the actual “possession” or “production” of nuclear weapons
constituted a “threat”. In other words, the request might have been pre-
pared by some States who strongly upheld the straightforward notion of
the illegality of nuclear weapons as whole.

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334 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

5. (Political history of the request.) What actually gave rise to this
inaptly phrased and inadequately understood request? I shall engage in a
detailed analysis of this question and would like to stress one point,
namely that, in spite of the Court’s view that “regard [should] not [be
had] to the origins or to the political history of the request, or to the dis-
tribution of votes in respect of the adopted resolution” (Advisory Opin-
ion, para. 16; emphasis added), it appears to me pertinent and essential
to examine why and under what circumstances the present request was
submitted to the Court under resolution 49/75 K in 1994 and by whom —
within the Organization of the United Nations or outside of it — this
request was initiated. It is for this reason that I will engage in an analysis
of the history of the request and the way in which some relevant decisions
were taken by the General Assembly.

(2) The Lack of a Meaningful Consensus of the Member States
of the United Nations on the Request Drafted without Any Adequate
Statement of Reasoning

6. (Preliminary attempt in 1993.) It was not until 1994 that the Gen-
eral Assembly raised the question of what was the existing international
law concerning nuclear weapons generally, despite the fact that the dis-
covery, development and possession of nuclear weapons, as well as the
threat of their use, had for the previous 50 years, since 1945, consistently
been a matter of profound political concern to the international commu-
nity.

However, prior to the adoption of resolution 49/75 K by the General
Assembly at its forty-ninth session (1994), the idea of requesting the
Court’s opinion on the existing international law concerning nuclear
weapons had been suggested at the forty-eighth session (1993) under the
agenda item: “General and complete disarmament” (an item dating back
to the twenty-sixth session (1971) of the General Assembly), when, in the
First Committee, Indonesia introduced on 9 November 1993 a draft reso-
lution on behalf of the Movement of Non-Aligned Countries: “Request
for an advisory opinion from the International Court of Justice on the
legality of the threat or use of nuclear weapons” (A/C.1/48/L.25).

In fact a request for an advisory opinion of the Court had already been
made by the World Health Organization (WHA46.60) just a few months
previously — a fact that was mentioned in the preambular paragraph of
that Indonesian draft resolution.

On 19 November 1993 the sponsors of that draft resolution decided
not to press for action on it, but without giving any explanation for that
decision. A draft resolution with a similar content was, however, once
again brought before the General Assembly in the following year at its
forty-ninth session (1994).

7. (The Movement of Non-Aligned Countries.) Relevant to this was
one of the decisions made at the Eleventh Ministerial Conference of the
Movement of Non-Aligned Countries which was convened in Cairo

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335 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

in May-June 1994. The Conference covered an extremely wide range of
subjects and its Final Document on “Disarmament and international
security” read:

“69. The Ministers decided to retable and put to the vote the reso-
lution seeking an advisory opinion from the International Court of
Justice on the legality of the use and threat of use of nuclear weapons
during the forty-ninth Session of the General Assembly.” (A/49/287;
S/1994/894; emphasis added.)

The circumstances under which the Conference reached this particular
decision were not clear from the documentation available.

The same decision of the non-aligned countries was repeated by the
meeting of the Ministers of Foreign Affairs and Heads of Delegation of
the Movement of Non-Aligned Countries to the forty-ninth session (1994)
of the General Assembly held at the United Nations Headquarters on
5 October 1994 (A/49/532; S/1994/1179: para. 34).

8. (Non-governmental organization.) I would also point to another
factor. The idea behind the resolution whereby the General Assembly
(and also the WHO) requested advisory opinions, had previously been
advanced by a handful of non-governmental organizations (NGOs) which
initiated a campaign for the total prohibition of nuclear weapons but
failed to persuade the States’ delegations in the forum of the General
Assembly, which has done no more during a period of more than ten
years than to pass repeated resolutions suggesting a convention on the
prohibition of the use or threat of use of nuclear weapons (cf. paras. 21-
24, below). Some NGOs seem to have tried to compensate for the vain-
ness of their efforts by attempting to get the principal judicial organ of
the United Nations to determine the absolute illegality of nuclear weap-
ons, in a bid to persuade the Member States of the United Nations to
press for their immediate and complete prohibition in the political forum.

A statement made by an observer from the International Physicians for
the Prevention of Nuclear War at the World Health Assembly in 1993
appears to shed light on what was behind the movement towards the
attempt to get the International Court of Justice to render an advisory
opinion on the matter in response to a request from the World Health
Organization if not from the United Nations General Assembly. The
observer stated that “WHO would be right to seek an opinion on the
matter from the International Court of Justice”.

An observer from the World Federation of Public Health Associations
informed the World Health Assembly that

“it [itself] had unanimously adopted a resolution on nuclear weap-
ons and public health which, inter alia, urged the World Health
Assembly to request an advisory opinion from the International

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336 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

Court of Justice on the legal status of the use of nuclear weapons,
so as to remove the cloud of legal doubt under which the nuclear
powers continued their involvement with such weapons, as well
as to provide the legal basis for the gradual creation of a nuclear-
free world”.

This matter is referred to in my separate opinion appended to the Court’s
Opinion in response to the request of the WHO (Legality of the Use by a
State of Nuclear Weapons in Armed Conflict, L.C.J. Reports 1996,
pp. 88-96).

Another document of interest is an essay in a newsletter of the World
Government of World Citizens, a part of which reads as follows:

“The threat to humanity’s existence posed by nuclear weapons has
encouraged humans the world over to consider new strategies for
influencing their governments. One of these initiatives — the move-
ment to ‘illegalize’ nuclear weapons — may increase participation in
new governing structures being created to address global problems.
The World Court Project is thus taking its place in the forefront of
the antinuclear movement.

To crystallize a united front against nuclear weaponry, several
nongovernmental organizations (NGOs) . . . have established a
World Court Project. These NGOs have successfully lobbied the
‘non-aligned’ members of the United Nations General Assembly and
the U.N.’s World Health Organization (WHO) to establish, accord-
ing to customary international law, the illegality of nuclear
weapons.” (World Citizen News, Vol. IX, No. 6, December-January
1996; emphasis added.)

This gives the impression that the request for an advisory opinion which
was made by the General Assembly in 1994 originated in ideas developed
by some NGOs.

9. (The Indonesian draft resolution in the forty-ninth session.) In the
First Committee at the forty-ninth session (1994), some States’ repre-
sentatives made various kinds of reference, in the general debate on all
disarmament and international security agenda items that was held in the
period 17-20 October 1994, to the earlier decisions of the Non-Aligned
Movement as referred to paragraph 7 above.

While Benin was opposed to

“any initiative which could be counter-productive and which might
necessitate a legal ruling from the International Court of Justice on
questions which are essentially political in nature, such as those of
the legality of the use or a threat of the use of nuclear weapons”
(A/C.1/49/PV.3, p. 22),

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337 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

the United Arab Emirates, Zimbabwe, Namibia, Tanzania and Malaysia
were in favour of such an initiative (A/C.1/49/PV.5-7).

In that situation, Indonesia, on behalf of the members of the Move-
ment of Non-Aligned Countries, introduced on 9 November 1994 a draft
resolution on “Request for an advisory opinion from the International
Court of Justice on the legality of the threat or use of nuclear weapons”
(A/C.1/49/L.36) to the First Committee (A/C.1/49/PV.15, p. 7). This draft
resolution, which proposed that the General Assembly should

“{d]ecide[s], pursuant to Article 96, paragraph 1, of the Charter, to
request the International Court of Justice urgently to render its advi-
sory opinion on the following question: ‘Is the threat or use of
nuclear weapons in any circumstance permitted under international
law?”

and which was practically identical to the 1993 text (A/C.1/48/L.25) pro-
posed by Indonesia (which however did not press for action at the forty-
eighth session (1993)) (see para. 6, above), became the subject of discus-
sion at the First Committee on 17 and 18 November 1994.

In fact, the text of this question put to the Court, which was originally
a part of the Indonesian draft, seems simply to have been copied, though
not in exactly the same terms, from the General Assembly resolutions on
a “Convention on the prohibition of nuclear weapons and prevention of
nuclear war” (which have been adopted as a matter of routine and with-
out being subjected to any substantive discussions in every session of the
General Assembly since 1982) with an accompanying draft convention
reading:

“The States Parties to this Convention solemnly undertake not to
use or threaten to use nuclear weapons under any circumstances.”

(Art. 1; emphasis added.)

(See, e.g., General Assembly resolution 48/76 B and Table III, Nos. 1-12,
below.)

10. (For and against the Indonesian draft.) While Malaysia gave its
support to this draft resolution by stating that:

“In the present post-cold-war climate, the legal opinion of the
International Court of Justice could make an important contribu-
tion to the realization of a nuclear-weapons-free world. It could not
replace nuclear disarmament initiatives, but it could provide the
legal and moral parameters within which such initiatives could suc-
ceed” (A/C.1/49/PV.22, p. 4; emphasis added),

Senegal, Chile and Benin asked for the postponement of the discussions
in order to have more time for consultations before voting (ibid. , pp. 4-6).

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338 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

The United States, asserting that

“it is even harder to fathom the purpose of a draft resolution
requesting such an opinion from the International Court of Justice
this year, when further steps to control and eliminate nuclear
weapons are being taken, negotiated or contemplated”,

urged its colleagues to abstain or to vote against this draft resolution
(A/C.1/49/PV.22, p. 6).

Morocco appealed that no action should be taken on the draft resolu-
tion since “the consensus on this subject among the Movement of Non-
Aligned Countries ha[d] been seriously eroded” (A/C.1/49/PV.24, p. 5).
Germany, representing the European Union, was opposed to the draft
resolution for the reason that

“[this] resolution would do nothing to help the ongoing considera-
tion of the questions by the International Court of Justice and might
adversely affect the standing of both the First Committee and the
Court itself. It could also have wider adverse implications on non-
proliferation goals which we all share”

and regretted having failed to convince its sponsors to withdraw it (ibid.,
p. 6). Hungary immediately echoed the same position.

After Indonesia and Colombia had expressed their opposition to the
motion submitted by Morocco for no action on the resolution, this
motion was put to the vote and rejected by a recorded vote of 45 in
favour, 67 against with 15 abstentions (ibid., p. 7).

Prior to the voting on the Indonesian draft resolution, Russia took the
view that

“the question of the advisability of the use of nuclear weapons is
above all a political, not a legal problem . . . Since the Charter of the
United Nations and the statutes of the International Court of Justice
came into force, nuclear weapons have been considered in States’
doctrines not so much as a means of warfare but as a deterrent to
war, especially global conflicts. They are therefore different from
other weapons, in that they have a political function in the world
today.” (Ibid. )

France stated that

“Trying to utilize for partisan purposes so respected an interna-
tional institution as the International Court of Justice entails a very
serious responsibility: that of putting at risk the credibility of the
Court by leading it away from its mission. Indeed, who can seriously
believe that the question posed is a legal one? It is, as we all know,
a purely political issue . . . Need I recall that, for the first time since

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339 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

the invention of nuclear weapons, the entire international commu-
nity is engaged in multilateral negotiations on a universal and veri-
fiable treaty on a comprehensive nuclear-test ban, and that impor-
tant progress on this issue has already been achieved at Geneva?”
(A/C.1/49/PV.24, p. 8.)

The United Kingdom stated that:

“the draft resolution . . . risks being seen as a deliberate attempt to
exert political pressure over the Court to prejudice its response. . .
Secondly, this draft resolution can do nothing to further the various
positive diplomatic efforts under way in the field of nuclear disarma-
ment, arms control and non-proliferation, notably on a comprehen-
sive test-ban treaty... Thirdly, this draft resolution can do nothing
to further global peace and security . . . Fourthly, this draft resolu-
tion risks serving the interests of those who wish to distract attention
from the destabilizing accumulation of conventional arms and from
clandestine programmes aimed at acquiring weapons of mass destruc-
tion and developing delivery systems.” (Zbid. )

Germany (on behalf of the European Union) again pointed out that the
European Union and its own country could not support the draft resolu-
tion (ibid.). Malta expressed its opposition and stated that

“[wlithin the Non-Aligned Movement, to which we belong, we raised
the question of withdrawal of the draft resolution. Unfortunately,
our request was not acted upon by the Movement.” (Ibid. )

The United Arab Emirates stated that it would not participate in the
voting (ibid., p. 9), and Benin once again expressed its support of the
motion presented by Morocco (ibid. ).

On the other hand, Iran and Mexico gave support to the draft resolu-
tion (ibid. ).

11. (Adoption of the Indonesian draft.) The draft resolution proposed
by Indonesia (on behalf of the Movement of Non-Aligned Countries)
was adopted by the First Committee on 7 December 1994, as a result of
a recorded vote of 77 votes in favour, 33 against with 21 abstentions
(ibid., p. 13).

After the voting, Canada, which had abstained from voting, stated that

“Canada is .. . concerned that the process of seeking an advisory
opinion of the International Court could have a negative impact on
certain of these ongoing negotiations by diverting attention from
them” (ibid. }.

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340 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA}

Australia, which also abstained from the voting, explained that

“we are concerned that seeking an advisory opinion from the Inter-
national Court of Justice on this issue could have an adverse rather
than a positive effect on efforts to advance the process of nuclear
disarmament. On the whole, we believe the question is unsuitable for
adjudication. It certainly goes beyond a definable field of judicial
inquiry and enters into the wider realms of policy and security doc-
trines of States.” (A/C.1/49/PV.24, p. 14.)

Sweden, which had also abstained from the voting, expressed the
opinion that “the use of nuclear weapons would not comply with inter-
national law” and desired that “the legal situation be clarified as soon as
possible by the Court” while stating, however, that that view was simply
based on a report of the Swedish Parliament (ibid. }.

To continue the explanation of votes, Chile stated that it had voted in
favour of the draft resolution, as it felt that it should be guided by the
majority orientation of the Movement of Non-Aligned Countries (A/C. 1/
49/PV.25, p. 1), and Japan gave an explanation of its abstention from the
voting, saying that

“in the present international situation, pursuing the question of the
legality of the use of nuclear weapons may simply result in confron-
tation between countries. Japan therefore believes that it is more
appropriate to steadily promote realistic and specific disarmament
measures.” (Ibid. )

China declared that it had not participated in the vote on the draft reso-
lution, hoping that

“in the further promotion of nuclear disarmament and the preven-
tion of nuclear war the General Assembly, the First Committee, the
Disarmament Commission and the Conference on Disarmament,
which have already played an important role, will continue to do so”
(ibid., p. 4).

12. (My general views on the discussions in the First Committee.)
I would like to point out that, in spite of the support for the draft resolu-
tion proposed by Indonesia, hardly any explanation was given by any
delegate backing the resolution as to why the /ex lata concerning the
“threat or use of nuclear weapons” should, as of 1994, require clarifica-
tion by the International Court of Justice. No positive argument in sup-
port of the request was heard from. any delegate who favoured the Indo-
nesian proposal. Rather, the statements made in the First Committee by
a number of those delegates appear for the most part to have been no
more than appeals for the elimination of nuclear weapons.

In addition, the substance of the question or the wording of that ques-

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341 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

tion to be asked of the Court, that is, “[i]s the threat or use of nuclear
weapons in any circumstance permitted under international law?” was
scarcely considered by any of the Member States in the General Assem-
bly. The questions of what would constitute the “threat” of nuclear
weapons, as opposed to the “threat of use” (a phrase employed in many
United Nations resolutions) and whether the “threat” would imply the
“possession” or “production” of nuclear weapons, together with the
question of what was meant by “any circumstance”, were not raised by
any delegate in the First Committee. However, it remains a fact that the
Indonesian draft resolution was adopted by a majority in the First Com-
mittee.

13. (Plenary meeting.) The draft resolution adopted by the First
Committee on 7 December 1994 by 77 votes in favour, 33 against with
21 abstentions (as stated in paragraph 11, above) was taken up at the
Plenary Meeting on 15 December 1994 and was adopted by a recorded
vote of 78 in favour, 43 against with 38 abstentions as resolution 49/75 K
(see below Table I). France, Russia, the United Kingdom and the United
States were among the opposing States, and China did not participate in
the voting. Except for New Zealand and San Marino, there were no other
countries in favour of the resolution in the category of West European
and Other Countries.

14. (Conclusion. ) I have thus demonstrated that the “question”, which
itself appears to me to be inadequate as a request for an advisory opinion
of the Court under Article 96 (1) of the Charter of the United Nations (as
explained in paragraph 3, above), was drafted without any adequate
statement of reasoning in support of any real need to ask the Court to
rule on the “legality or illegality” of the “threat or use” (if not the “use or
threat of use”) of nuclear weapons or, in more general terms, of nuclear
weapons themselves. It is certain that the request did not reflect a mean-
ingful consensus of the Member States of the United Nations or even of
its Non-Aligned Members.

TABLE I
[Note: The nuclear-weapon States under the NPT are italicized ;
“R” denotes recorded vote. ]

Voting on the 1994 Resolution Requesting
the Court’s Advisory Opinion

The forty-ninth session (1994)

A/C.1/49/L.36: sponsored by: Indonesia (on behalf of the States Members of
the United Nations that are members of the Movement of Non-Aligned
Countries).

A/RES/49/75 K: adopted on 15 December 1994 by R78-43-38.

For: (78) [names of States not reproduced].

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342 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

Against: (43) Albania, Andorra, Argentina, Belgium, Benin, Bulgaria,
Cambodia, Comoros, Côte d’Ivoire, Czech Republic, Denmark, Djibouti,
Estonia, Finland, France, Gabon, Georgia, Germany, Greece, Hungary,
Iceland, Israel, Italy, Latvia, Luxembourg, Malta, Mauritania, Monaco,
Netherlands, Poland, Portugal, Republic of Korea, Romania, Russian
Federation, Senegal, Slovakia, Slovenia, Spain, Tajikistan, The FYR of
Macedonia, Turkey, United Kingdom, United States.

Abstaining: (38) Antigua and Barbuda, Armenia, Australia, Austria,
Azerbaijan, Bahrain, Belarus, Belize, Cameroon, Canada, Central African
Republic, Chile, Croatia, Dominica, Eritrea, Ghana, Guinea, Ireland,
Jamaica, Japan, Kazakhstan, Kyrgyzstan, Liechtenstein, Lithuania,
Maldives, Micronesia (Federated States of), Niger, Norway, Republic of
Moldova, Swaziland, Sweden, Togo, Trinidad and Tobago, Tunisia,
Turkmenistan, Ukraine, Uzbekistan, Vanuatu.

Note: China was absent from the voting.

IJ. ONE ASPECT OF NUCLEAR DISARMAMENT — THE UNSUCCESSFUL

EFFORTS OVER A LONG PERIOD To BRING ABOUT A CONVENTION

“PROHIBITING THE USE OR THREAT OF USE OF NUCLEAR WEAPONS UNDER

ANY CIRCUMSTANCES” AS AN IMMEDIATE BACKGROUND TO THE REQUEST
TO THE COURT

(1) Declaration on the Non-use or the Prohibition of Nuclear Weapons

15. (Immediate background of the request.) While the General Assem-
bly resolution requesting an advisory opinion of the Court was prepared
by Indonesia on behalf of the Non-Aligned Movement in 1994, as men-
tioned in paragraph 9 above, the following circumstances are noted as its
immediate background.

The prohibition of the use of nuclear weapons had been an earnest
desire of a group of some Member States of the United Nations and had
been presented to the General Assembly throughout a long period extend-
ing over several decades. A review of the development of the idea of that
prohibition in the United Nations General Assembly may reveal the
background to resolution 49/75K and is extremely useful when one
evaluates that resolution, despite the Court’s opinion, to a part of which
I have already referred in paragraph 5 above, which states:

“once the Assembly has asked, by adopting a resolution, for an advi-
sory opinion on a legal question, the Court, in determining whether
there are any compelling reasons for it to refuse to give such an
opinion, will not have regard to the origins or to the political history
of the request, or to the distribution of votes in respect of the
adopted resolution” (Advisory Opinion, para. 16).

16. (The 1961 Declaration on the prohibition of the use of nuclear
weapons.) The General Assembly in its sixteenth session (1961), when

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passing resolution 1653 (XVT) entitled “Declaration on the prohibition of
the use of nuclear and thermo-nuclear weapons”, declared that

“the use of nuclear and thermo-nuclear weapons is . . . a direct viola-

tion of the Charter of the United Nations; .. . is contrary to the
rules of international law and to the laws of humanity; [and]... is a
war directed . . . against mankind in general”

and that

“[ahny State using nuclear and thermo-nuclear weapons is to be con-
sidered as violating the Charter of the United Nations, as acting
contrary to the laws of humanity and as committing a crime against
mankind and civilization”.

This resolution originated from the draft resolution (A/C.1/L.292),
sponsored by some 12 States, and introduced by Ethiopia. After it had
been subjected to extensive discussion, both for and against, in the First
Committee, the Plenary Meeting adopted the part comprising the above-
mentioned declaration by a recorded vote of 56 in favour, 19 against,
with 26 abstentions. The resolution as a whole, itself comprising the dec-
laration, was adopted by a recorded vote of 55 in favour, 20 against, with
26 abstentions on 24 November 1961 (see below Table II, No. 1).

The resolution, however, did nothing more than request the Secretary-
General of the United Nations to consult Member States in order to
ascertain the possibility of convening a special conference for signing a
convention on the prohibition of the use of nuclear weapons.

17. (The first special disarmament session.) Nearly two decades elapsed
in which no practical action was taken to implement the 1961 resolution.
Being “[aJlarmed by the threat to the very survival of mankind posed by
the existence of nuclear weapons and the continuing arms race”, the Gen-
eral Assembly held in May-June 1978 its first session devoted to dis-
armament, that is, the Tenth Special Session (Official Records of the Gen-
eral Assembly, Tenth Special Session, Supplement No. 4; A/S-10/2). The
General Assembly at this first special disarmament session adopted a
“Final Document” covering nearly 130 paragraphs including a pro-
gramme of action, in which it was stated that “[a] convention should be
concluded prohibiting the development, production, stockpiling and use
of radiological weapons” (ibid., para. 76). Among a number of proposals
put forth at this special session for consideration, there was a draft reso-
lution submitted by Ethiopia and India: “Non-use of nuclear weapons
and prevention of nuclear war”, the intention of which was to have the
General Assembly declare that:

“(a) The use of nuclear weapons will be a violation of the Charter
of the United Nations and a crime against humanity;

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(b) The use of nuclear weapons should therefore be prohibited,
pending nuclear disarmament” (Official Records of the Gen-
eral Assembly, Tenth Special Session, Supplement No. 4,
para. 125 (z); A/S-10/AC.1/L.11; emphasis added).

In that special session neither this nor any other particular resolution was
adopted.

18. (The 1978 resolution on “Non-use of nuclear weapons and preven-
tion of nuclear war”.) Ever since the thirty-third session (1978), that is, a
regular session which was held a few months later, the General Assembly
has included on its agenda an item entitled: “Review of the implementa-
tion of the recommendations and decisions adopted by the General
Assembly at its tenth special session” (the item which has appeared at
every session of the General Assembly down to the present day).

A draft resolution (A/C.1/33/L.2), submitted by some 34 States and
introduced by India, entitled “Non-use of nuclear weapons and preven-
tion of nuclear war” (which was practically identical to the one submitted
by Ethiopia and India at the first special disarmament session, as men-
tioned in paragraph 17 above) was adopted at the Plenary Meeting on
14 December 1978 by a recorded vote of 103 in favour, 18 against with
18 abstentions as resolution 33/71 B (see below Table II, No. 2).

Under this 1978 resolution, which followed the spirit of the 1961 Dec-
laration, the General Assembly declared that

“{t]he use of nuclear weapons will be a violation of the Charter of
the United Nations and a crime against humanity [and] should
therefore be prohibited, pending nuclear disarmament” (emphasis
added)

and requested all States to submit proposals concerning the non-use of
nuclear weapons and avoidance of nuclear war in order that the question
of an international convention on the subject might be discussed at a sub-
sequent session.

It may be noted that the idea of the prohibition of the use of nuclear
weapons was introduced here for the first time as a part of the declaration
in a General Assembly resolution.

19. (The 1980 and 1981 resolutions.) Thereafter, and at the thirty-fifth
(1980) and the thirty-sixth (1981) sessions, practically identical draft reso-
lutions, including declarations which were similar to the 1978 resolution,
prepared by almost the same States (between 20 and 30 in number) were
introduced by India and adopted with a similar vote, almost the same
countries being against each time and almost the same countries abstain-
ing each time (see below Table II, Nos. 3 and 4).

It should be pointed out, however, that the expression reading the
“threat of use” of nuclear weapons and the idea that not only the “use”

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but also, in parallel, the “threat of use” of nuclear weapons should be
prohibited was introduced only in 1980 for the first time. No explanation
was given by the sponsoring State nor did any discussion take place in
the General Assembly meetings on what would constitute the “threat of
use” of nuclear weapons or, more particularly, on whether the “posses-
sion” or the “production” of nuclear weapons would constitute a “threat
of use”.

TABLE II

[Note: The nuclear-weapon States under the NPT are italicized;
“R” denotes recorded vote. ]

Voting on the United Nations Declarations Relating to the
Use of Nuclear Weapons

1. The 1961 “Declaration on the Prohibition of the Use of Nuclear Weapons
and Thermo-Nuclear Weapons”

The sixteenth session (1961)

A/C.1/L.292 and Add.1-3: sponsored by: (12) Ceylon, Ethiopia, Ghana,

Guinea, Indonesia, Liberia, Libya, Nigeria, Somalia, Sudan, Togo, Tunisia.

A/RES/1653 (XVI): adopted on 24 November 1961 by R55-20-26.

For: (55) USSR [names of other States not reproduced].

Against: (20) Australia, Belgium, Canada, China, Costa Rica, France,
Greece, Guatemala, Ireland, Italy, Luxembourg, Netherlands, New Zea-
land, Nicaragua, Portugal, South Africa, Spain, Turkey, United Kingdom,
United States.

Abstaining: (26) Argentina, Austria, Bolivia, Brazil, Chile, Colombia,
Denmark, Ecuador, El Salvador, Federation of Malaya, Finland, Haiti,
‘Honduras, Iceland, Iran, Israel, Norway, Pakistan, Panama, Paraguay,
Peru, Philippines, Sweden, Thailand, Uruguay, Venezuela.

2. The 1978 resolution on “Non-Use of Nuclear Weapons and Prevention of
Nuclear War”

The thirty-third session (1978)

A/C.1/33/L.2: sponsored by: (34) Algeria, Argentina, Cyprus, Ethiopia, India,
Indonesia, Malaysia, Nigeria and Yugoslavia, with the later addition of
Angola, Barbados, Bhutan, Bolivia, Burundi, Colombia, Congo, Cuba, Ecua-
dor, Egypt, Guinea, Jordan, Liberia, Madagascar, Mali, Mauritius, Morocco,
Peru, Romania, Senegal, Sri Lanka, Syrian Arab Republic, United Republic
of Cameroon, Uruguay, Zaire.

A/RES/33/71 B: adopted on 14 December 1978 by R103-18-18.
For: (103) China [names of other States not reproduced].

Against: (18) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Greece, Iceland, Ireland, Italy, Luxembourg, Netherlands, New
Zealand, Norway, Portugal, Turkey, United Kingdom, United States.

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Abstaining: (18) Austria, Bulgaria, Byelorussian SSR, Czechoslovakia,
El Salvador, Finland, Gabon, German Democratic Republic, Hungary,
Israel, Japan, Mongolia, Nicaragua, Poland, Spain, Sweden, Ukrainian SSR,
USSR.

3. The 1980 resolution on “Non-Use of Nuclear Weapons and Prevention of
Nuclear War”

The thirty-fifth session (1980)

A/C.1/35/L.22: sponsored by: (24) Algeria, Angola, Argentina, Congo, Ethio-
pia, India, Indonesia, Jamaica, Madagascar, Nigeria, Peru, Romania, Sri
Lanka, Uruguay, Yugoslavia and Zaire with the later additions of Bhutan,
Costa Rica, Cyprus, Ecuador, Egypt, Malaysia, Qatar, Yemen.

A/RES/35/152 D: adopted on 12 December 1980 by R112-19-14.

For: (112) China [names of other States not reproduced].

Against: (19) Australia, Belgium, Denmark, France, Germany (Fed. Rep.
of), Greece, Iceland, Ireland, Israel, Italy, Japan, Luxembourg, Nether-
lands, New Zealand, Norway, Portugal, Turkey, United Kingdom, United
States.

Abstaining: (14) Austria, Bulgaria, Byelorussian SSR, Canada, Czecho-
slovakia, German Democratic Republic, Hungary, Malawi, Mongolia,
Poland, Spain, Sweden, Ukrainian SSR, USSR.

4. The 1981 resolution on “Non-Use of Nuclear Weapons and Prevention of
Nuclear War”

The thirty-sixth session (1981)

A/C.1/36/L.29: sponsored by: (30) Algeria, Argentina, Bahamas, Barbados,
Bhutan, Colombia, Cyprus, Ecuador, Egypt, Ethiopia, India, Indonesia,
Jamaica, Jordan, Madagascar, Malaysia, Nigeria, Peru, Romania, Yemen,
Yugoslavia with the later additions of Bangladesh, Congo, Ghana, Guinea,
Mali, Niger, Qatar, Rwanda, Sri Lanka.

A/RES/36/92 1: adopted on 9 December 1981 by R121-19-6.
For: (121) China, USSR [names of other States not reproduced].

Against: (19) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Ireland, Italy, Japan, Luxembourg, Netherlands, New
Zealand, Norway, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (6) Austria, Comoros, Finland, Greece, Israel, Sweden.

(2) The 1982-1995 Resolutions on the Convention on the Prohibition
of the Use of Nuclear Weapons

20. (The second special disarmament session.) The General Assembly,
which was not satisfied with the development of disarmament so far,

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held, in June-July 1982, its second session devoted to disarmament, that
is, the Twelfth Special Session, and approved the “Report of its Ad Hoc
Committee” (Official Records of the General Assembly, Twelfth Special
Session, Supplement No. 6; A/S-12/32) as the “Concluding Document”
of that session in which reference was made to a draft resolution pro-
posed by India (among various draft resolutions put forward in that ses-
sion). The Indian draft read:

“The General Assembly,

Decides to adopt an international convention . . ., prohibiting the
use or threat of use of nuclear weapons under any circumstances,
pending nuclear disarmament.” (A/S-12/32, para. 20; A/S-12/AC.1/
L.4; penultimate and final emphasis added.)

The draft of the “Convention on the Prohibition of the Use of Nuclear
Weapons” was annexed to this draft resolution which read:

“The States Parties to this Convention,

Convinced that any use of nuclear weapons constitutes a violation
of the Charter of the United Nations and a crime against humanity,

Convinced that this Convention would be a step towards the com-

plete elimination of nuclear weapons leading to general and com-
plete disarmament under strict and effective international control,

Determined to continue negotiations for the achievement of this
goal,

Article 1. The States Parties to this Convention solemnly under-
take not to use or threaten to use nuclear weapons under any circum-
stances.” (Emphasis added.)

In fact this draft resolution with the annexed draft of the Convention
originally submitted by India at this special disarmament session was
subsequently put forward by India during each regular session of the
General Assembly from 1982 to 1995, inclusive, as explained below.

21. (The 1982 resolution on “Convention on the prohibition of the use
of nuclear weapons”.) The thirty-seventh session (1982) of the General
Assembly which met a few months after the second special disarmament
session, that is, in the fall of 1982, included on its agenda item: “Review
and implementation of the Concluding Document of the Twelfth Special

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Session of the General Assembly” !. Some twenty States presented a draft
resolution (A/C.1/37/L.4), which was introduced by India in the First
Committee. This draft resolution, after some minor revisions by the
sponsoring States, was adopted by the Plenary Meeting on 13 December
1982 as resolution 37/100 C: “Convention on the prohibition of the use
of nuclear weapons” as a result of a recorded vote of 117 in favour,
17 against with 8 abstentions (see below Table III, No. 1).

The resolution read:
“The General Assembly,

Reaffirming the declaration that the use of nuclear weapons would
be a violation of the Charter of the United Nations and a crime
against humanity...

1. Requests the Committee on Disarmament to undertake, on a
priority basis, negotiations with a view to achieving agreement on an
international convention prohibiting the use or threat of use of
nuclear weapons under any circumstances, taking as a basis the text
of the annexed draft Convention . . .” (Third and final emphasis
added.)

The draft Convention, which had been included in the Indian draft reso-
lution submitted to the second special disarmament session (as quoted in
paragraph 20 above) was annexed to this resolution.

The resolution certainly originated in the Indian draft proposal at the
second special disarmament session of that year but, unlike that original
Indian proposal, which would have led the General Assembly itself to
decide to adopt an international convention, it requested that negotiations
should be undertaken in the Committee on Disarmament (known pres-
ently as the Conference on Disarmament) in Geneva with a view to
achieving agreement on an international convention “prohibiting the use
or threat of use of nuclear weapons under any circumstances”.

22. (The phrase “the use or threat of use of nuclear weapons under any
circumstances”) The phrase “the use or threat of use of nuclear weapons
under any circumstances” (emphasis added) was first used in a General
Assembly resolution in 1982. However, there was no discussion of the

! This agenda item remains until the present day at every session of the General Assem-
bly but with the addition of sub-item “Convention on the prohibition of the use of nuclear
weapons: Report of the Committee on Disarmament” from the thirty-eighth session until
the forty-second session, inclusive. From the forty-third session the sub-item simply
referred to the Convention on the prohibition of the use of nuclear weapons without
making any mention of the Report of the Committee on Disarmament.

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phrase in the General Assembly. Furthermore, that phrase was initially
used in the context of a possible prohibition in a future international
convention.

It is important to note that the wording of the question in the request
presented to the Court that reads: “Is the threat or use of nuclear weap-
ons in any circumstance permitted under international law?” (emphasis
added), which seems to have originated in the phrase used in a 12-year-
old (1982) General Assembly resolution, is in fact different in that the
question in the 1994 request singles out the “threat” of nuclear weapons
and leaves open the possibility that this “threat” — not the “threat of
use” — might be interpreted as meaning the “possession” or the “produc-
tion” of those weapons. It is even more important to note that the phrase
“threat of use” in the 1982 resolution was used in a quite different con-
text, as I explained above, namely, with respect to a convention to be
agreed upon in future.

23. (From 1983 to 1995.) In the thirty-eighth session (1983), the Gen-
eral Assembly, “noting with regret that the Committee on Disarmament,
during its session in 1983, was not able to undertake [such] negotiations”,
reiterated its request to the Conference on Disarmament? in Geneva

“to commence negotiations, as a matter of priority, in order to
achieve agreement on an international convention prohibiting the
use or threat of use of nuclear weapons under any circumstances,
taking as a basis the text of [the annexed draft Convention which
was identical to that of 1982]? (emphasis added).

In every session of the General Assembly since 1982 until 1995 (thirty-
seventh to fiftieth sessions), under the same agenda item as referred to in
paragraph 21 above, practically the same States presented practically
identical draft resolutions with the attached draft convention which did
not change at all during a 14-year period (which draft resolutions were
invariably introduced by India) and these draft resolutions were adopted
as a result of practically the same voting (see below Table II, Nos. 1-14).
In fact, while the number of sponsoring States remained almost steady,
the number of States which took a negative position on the resolution
increased.

2 From 7 February 1984, the date of commencement of its annual session, the Com-
mittee on Disarmament was to be known as the Conference on Disarmament.

3 The wording “as a matter of policy” was dropped since the forty-ninth session (1994)
and the word “possible” was added so that it read “as a possible basis” since the forty-
eighth session (1993).

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24. (Repetition of resolutions with the same content.) The request of
the General Assembly in New York that the Conference on Disarma-
ment in Geneva should undertake negotiations and the General Assem-
bly’s regret that the Conference had failed to do so during the previous
year, were repeated at every subsequent session down to the fiftieth ses-
sion (1995) in practically the same wording*. The repetition of the same
resolutions during this period of over fourteen sessions appears to indi-
cate that the Conference on Disarmament (formerly the Committee on
Disarmament) was never able to or never attempted to negotiate to
achieve agreement on an international convention “prohibiting the use or
threat of use of nuclear weapons under any circumstances”. In other
words the cumulation of resolutions have not produced any noticeable
effect.

25. (Motive behind the request for advisory opinion.) It appears that
the 1994 request for advisory opinion, particularly in view of the drafting
of its text referring to “the threat or use of nuclear weapons in any cir-
cumstance” (emphasis added), was prompted by a group of practically
the same States which, since 1982, had been sponsoring the resolutions
calling for the conclusion of “an international convention prohibiting the
use or threat of use of nuclear weapons under any circumstances” (empha-
sis added) (resolutions referred to below in Table II, Nos. 1-14), without
any meaningful discussion on what was meant by the expressions “threat
or use of nuclear weapons” or “any circumstances”. I consider it likely
that the “threat” of nuclear weapons would, in the view of some of those
States which sponsored the resolution, comprehend the “production”
and the “possession” of nuclear weapons.

Now the request, by purporting to ask whether “the threat or use of
nuclear weapons [is] in any circumstance permitted under international
law” (emphasis added), was in fact attempting to secure the Court’s
endorsement of an alleged legal axiom — the threat (which may imply
the possession or the production) or use of nuclear weapons is not per-
mitted under international law in any circumstance — in order to pro-
duce a breakthrough, thus laterally achieving agreement on the Conven-
tion which would establish the illegality of nuclear weapons themselves.
It is to me quite clear that this request was prepared and adopted with
highly political motives which do not correspond to any genuine legal
mandate of a judicial institution. This certainly does not accord with the
role that the advisory function of the Court has, in essence, to play under
Article 96 (1) of the Charter of the United Nations.

4 In the resolutions of the forty-eighth and forty-ninth sessions, the preambular part, as
quoted in the text, was simplified to read “was not able to undertake negotiations on
this subject”.

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TABLE III

[ Note: The nuclear-weapon States under the NPT are italicized ;
“R” denotes recorded vote. ]

Voting on the 1982-1995 Resolutions on “Convention on the Prohibition of the
Use of Nuclear Weapons”

1. The thirty-seventh session (1982)

A/C.1/37/L.4 and Rev. 1: sponsored by: (20) Algeria, Argentina, Bahamas,
Bangladesh, Bhutan, Congo, Cyprus, Ecuador, Egypt, Ethiopia, Ghana,
Guyana, Indonesia, Jamaica, Madagascar, Mali, Nigeria, Romania, Yugo-
slavia, Zambia.

A/RES/37/100 C: adopted on 13 December 1982 by R117-17-8.

For: (117) China, USSR [names of other States not reproduced].

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Italy, Luxembourg, Netherlands, New Zealand, Nor-
way, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (8) Austria, Finland, Greece, Guatemala, Ireland, Israel, Japan,
Paraguay.

2. The thirty-eighth session (1983)

A/C.1/38/L.55: sponsored by: (16) Algeria, Argentina, Bahamas, Bangladesh,
Bhutan, Congo, Ecuador, Egypt, Ethiopia, India, Indonesia, Madagascar,
Nigeria, Romania, Yugoslavia, with the later addition of Viet Nam.

A/RES/38/73 G: adopted on 16 December 1983 by R126-17-6.
For: (126) China, USSR [names of other States not reproduced].

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Italy, Luxembourg, Netherlands, New Zealand, Nor-
way, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (6) Austria, Greece, Ireland, Israel, Japan, Philippines.

3. The thirty-ninth session (1984)

A/C.1/39/L.50: sponsored by: (14) Algeria, Argentina, Bahamas, Bangladesh,
Bhutan, Ecuador, Egypt, Ethiopia, India, Indonesia, Madagascar, Romania,
Viet Nam, Yugoslavia.

A/RES/39/63 H: adopted on 12 December 1984 by R128-17-5.

For: (128) China, USSR [names of other States not reproduced].

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Italy, Luxembourg, Netherlands, New Zealand, Nor-
way, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (5) Austria, Greece, Ireland, Israel, Japan.

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4. The fortieth session (1985 )

A/C.1/40/L.26: sponsored by: (15) Algeria, Argentina, Bahamas, Bangladesh,
Bhutan, Ecuador, Egypt, Ethiopia, India, Indonesia, Madagascar, Nigeria,
Romania, Viet Nam, Yugoslavia.

A/RES/40/151 F: adopted on 16 December 1985 by R126-17-6.
For: (126) China, USSR [names of other States not reproduced].

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Italy, Luxembourg, Netherlands, New Zealand, Nor-
way, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (6) Austria, Greece, Grenada, Ireland, Israel, Japan.

5. The forty-first session (1986)

A/C.1/41/L.49: sponsored by: (13) Algeria, Argentina, Bangladesh, Bhutan,
Ecuador, Egypt, Ethiopia, India, Indonesia, Madagascar, Romania, Viet
Nam, Yugoslavia.

A/RES/41/60 F: adopted on 3 December 1986 by R132-17-4.

For: (132) China, USSR [names of other States not reproduced].

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Italy, Luxembourg, Netherlands, New Zealand, Nor-
way, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (4) Greece, Ireland, Israel, Japan.

6. The forty-second session ( 1987)

A/C.1/42/L.28: sponsored by: (13) Algeria, Argentina, Bangladesh, Bhutan,
Ecuador, Egypt, Ethiopia, India, Indonesia, Romania, Yugoslavia, with the
later additions of Madagascar, Viet Nam.

A/RES/42/39 C: adopted on 30 November 1987 by R135-17-4.
For: (135) China, USSR [names of other States not reproduced].

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Italy, Luxembourg, Netherlands, New Zealand, Nor-
way, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (4) Greece, Ireland, Israel, Japan.

7. The forty-third session (1988)

A/C.1/43/L.55: sponsored by: (14) Algeria, Argentina, Bangladesh, Bhutan,
Ecuador, Egypt, Ethiopia, India, Indonesia, Madagascar, Romania, Viet
Nam, Yugoslavia, with the later addition of Malaysia.

A/RES/43/76 E: adopted on 7 December 1988 by R133-17-4.
For: (133) China, USSR [names of other States not reproduced].

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353 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Italy, Luxembourg, Netherlands, New Zealand, Nor-
way, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (4) Greece, Ireland, Israel, Japan.

8. The forty-fourth session (1989)

A/C.1/44/L.39: sponsored by: (12) Algeria, Bangladesh, Bhutan, Ecuador,
Egypt, India, Indonesia, Malaysia, Romania, Viet Nam, Yugoslavia, with
the later addition of Madagascar.

A/RES/44/117C: adopted on 15 December 1989 by R134-17-4.
For: (134) China, USSR [names of other States not reproduced].

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany (Fed.
Rep. of), Iceland, Italy, Luxembourg, Netherlands, New Zealand, Nor-
way, Portugal, Spain, Turkey, United Kingdom, United States.

Abstaining: (4) Greece, Ireland, Israel, Japan.

9. The forty-fifth session (1990)

A/C.1/45/L.25: sponsored by: (14) Afghanistan, Algeria, Argentina, Bangla-
desh, Bhutan, Ecuador, Egypt, Ethiopia, India, Indonesia, Madagascar,
Malaysia, Viet Nam, Yugoslavia.

A/RES/45/59 B: adopted on 4 December 1990 by R125-17-10.
For: (125) China, USSR [names of other States not reproduced].

Against: (17) Australia, Belgium, Canada, Denmark, France, Germany, Ice-
land, Italy, Luxembourg, Netherlands, New Zealand, Norway, Portugal,
Spain, Turkey, United Kingdom, United States.

Abstaining: (10) Bulgaria, Czechoslovakia, Greece, Hungary, Ireland, Israel,

Japan, Liechtenstein, Poland, Romania.

10. The forty-sixth session (1991)

A/C.1/46/L.20: sponsored by: (15) Afghanistan, Algeria, Bangladesh, Bhutan,
Ecuador, Egypt, Ethiopia, India, Indonesia, Madagascar, Malaysia, Viet
Nam, Yugoslavia, with the later additions of Bolivia, Lao People’s Demo-

cratic Republic.
A/RES/46/37 D: adopted on 6 December 1991 by R122-16-22.
For: (122) China, USSR [names of other States not reproduced].

Against: (16) Australia, Belgium, Canada, Denmark, France, Germany,
Italy, Luxembourg, Netherlands, New Zealand, Norway, Portugal, Spain,

Turkey, United Kingdom, United States.
Abstaining: (22) Albania, Argentina, Austria, Bulgaria, Czechoslovakia,

Estonia, Finland, Greece, Hungary, Iceland, Ireland, Israel, Japan, Latvia,

Liechtenstein, Lithuania, Marshall Islands, Poland, Republic of Korea,

Romania, Samoa, Sweden.

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11. The forty-seventh session (1992)

A/C.1/47/L.33: sponsored by: (15) Algeria, Bangladesh, Bolivia, Costa Rica,
Ecuador, Egypt, Ethiopia, India, Indonesia, Lao People’s Democratic Repub-
lic, Madagascar, Malaysia, Viet Nam, with the later additions of Bhutan,
Democratic People’s Republic of Korea.

A/RES/47/53 C: adopted on 9 December 1992 by R126-21-21.
For: (126) China, USSR [names of other States not reproduced].

Against: (21) Australia, Belgium, Bulgaria, Canada, Czechoslovakia, Den-
mark, France, Germany, Hungary, Iceland, Italy, Luxembourg, Nether-
lands, New Zealand, Norway, Poland, Portugal, Spain, Turkey, United
Kingdom, United States.

Abstaining: (21) Armenia, Austria, Estonia, Finland, Greece, Ireland, Israel,
Japan, Latvia, Liechtenstein, Lithuania, Malta, Marshall Islands, Repub-
lic of Korea, Republic of Moldova, Romania, Samoa, San Marino, Slo-
venia, Solomon Islands, Sweden.

12. The forty-eighth session (1993)

A/C.1/48/L.13 and Rev. 1 and 2: sponsored by: (20) Algeria, Bangladesh, Bhu-
tan, Bolivia, Colombia, Costa Rica, Democratic People’s Republic of Korea,
Ecuador, Egypt, Ethiopia, India, Indonesia, Lao People’s Democratic Repub-
lic, Madagascar, Malaysia, Mexico, Viet Nam, with the later additions of
Haiti, Honduras, Sudan.

A/RES/48/76 B: adopted on 16 December 1993 by R120-23-24.

For: (120) China [names of other States not reproduced].

Against: (23) Andorra, Belgium, Bulgaria, Canada, Czech Republic, Den-
mark, Finland, France, Germany, Hungary, Iceland, Italy, Luxembourg,
Monaco, Netherlands, Norway, Poland, Portugal, Slovakia, Spain,
Turkey, United Kingdom, United States.

Abstaining: (24) Albania, Argentina, Armenia, Australia, Austria, Estonia,
Georgia, Greece, Ireland, Israel, Japan, Latvia, Liechtenstein, Lithuania,
Malta, Marshall Islands, New Zealand, Republic of Korea, Republic of
Moldova, Romania, Russian Federation, Slovenia, Sweden, The FYR of
Macedonia.

13. The forty-ninth session (1994)

A/C.1/49/L.31: sponsored by: (20) Bangladesh, Bhutan, Bolivia, Colombia,
Democratic People’s Republic of Korea, Ecuador, Egypt, Ethiopia, Hondu-
ras, India, Indonesia, Lao People’s Democratic Republic, Madagascar,
Malaysia, Mexico, Myanmar, Sudan, Viet Nam, with the later additions of
Costa Rica, Haiti.

A/RES/49/76 E: adopted on 15 December 1994 by R115-24-31.

For: (115) China [names of other States not reproduced].

Against: (24) Andorra, Belgium, Canada, Czech Republic, Denmark, Fin-
land, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg,
Monaco, Netherlands, Norway, Poland, Portugal, Romania, Slovakia,
Spain, Turkey, United Kingdom, United States.

Abstaining: (31) Albania, Argentina, Armenia, Australia, Austria, Belarus,

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355 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

Bulgaria, Croatia, Estonia, Fiji, Georgia, Ireland, Israel, Japan, Kazakh-
stan, Latvia, Liechtenstein, Lithuania, Malta, Marshall Islands, Micro-
nesia (Federated States of), New Zealand, Republic of Korea, Republic of
Moldova, Russian Federation, Samoa, Slovenia, Sweden, Tajikistan, The
FYR of Macedonia, Ukraine.

14. The fiftieth session (1995)

A/C.1/50/L.47 : sponsored by: (28) Bangladesh, Belize, Bhutan, Bolivia, Botswana,
Brunei Darussalam, Colombia, Democratic People’s Republic of Korea,
Ecuador, Egypt, Ethiopia, Haiti, India, Indonesia, Iran (Islamic Republic
of), Kenya, Lao People’s Democratic Republic, Madagascar, Malawi, Malay-
sia, Mexico, Micronesia (Federated States of), Myanmar, Nepal, Nigeria,
Philippines, Sudan, Viet Nam.

A/RES/50/71 E: adopted on 12 December 1995 by R108-27-28.

For: (108) China [names of other States not reproduced].

Against: (27) Andorra, Belgium, Bulgaria, Canada, Czech Republic, Den-
mark, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia,
Lithuania, Luxembourg, Monaco, Netherlands, Norway, Poland, Portu-
gal, Romania, Slovakia, Spain, Turkey, United Kingdom, United States.

Abstaining: (28) Afghanistan, Albania, Antigua and Barbuda, Argentina,
Armenia, Australia, Austria, Bahamas, Barbados, Belarus, Croatia, Equa-
torial Guinea, Estonia, Georgia, Ireland, Israel, Japan, Liechtenstein,
Malta, New Zealand, Republic of Korea, Republic of Moldova, Russian
Federation, Slovenia, Sweden, The FYR of Macedonia, Ukraine,
Uzbekistan.

Ti]. ANOTHER ASPECT OF NUCLEAR DISARMAMENT — NUCLEAR DISARM-
AMENT IN THE PERIOD OF THE COLD WAR AND THE ROAD TO THE
CONCLUSION OF THE NON-PROLIFERATION TREATY

(1) The Nuclear Arms Race and the Control of Nuclear Weapons in
the Period of the Cold War; the Emergence of the Non-Proliferation
Treaty

(a) Development of nuclear disarmament

26. (Arms race between the United States and the Soviet Union.)
After the success of the first nuclear weapons test by the Soviet Union in
1949 and the first test of hydrogen bombs by the United States in 1952,
and even with the participation of France, the United Kingdom and later
China in the group of States in possession of nuclear weapons, these
weapons remained a source of friction between the United States and the
Soviet Union in the post-war period known as the Cold War. However,
in parallel to the arms race between them, the United States and the
Soviet Union, which were themselves fully aware of the catastrophic
effects of nuclear weapons once actually used, recognized that some
restraints would be needed.

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356 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

In their search for the means of achieving restraints on the quantity of
strategic nuclear weapons or even the freezing of these weapons, the
United States and the Soviet Union made the Joint Statement of Agreed
Principles for Disarmament Negotiations (United Nations document
A/4879) in 1961. The plan included a gradual process of elimination and
suspension of the production of weapons of mass destruction — such as
nuclear weapons — and marked the beginning of the negotiation between
the two countries of the Strategic Arms Limitation Talks (SALT D in
1969, which was ended by the conclusion of the 1972 Anti-Ballistic Mis-
sile (ABM) Treaty, and was followed by SALT II in 1972. The Treaty on
the Limitation of Strategic Offensive Arms (SALT II Treaty) was con-
cluded in 1979 but has never been ratified. Negotiations within the frame-
work of the Strategic Arms Reduction Talks (START) commenced in
1982.

27. (Committee and later Conference on Disarmament (CD) in Geneva.)
With the agreement of the United States and the Soviet Union and with
the endorsement of the United Nations under resolution 1722 (XVI) on
“Question of disarmament”, the Eighteen-Nations Committee on Dis-
armament (ENDC) was set up in Geneva in 1961, composed of an equal
number of States in each “bloc” — that is, five on each side, together
with eight additional non-aligned countries — as a forum for global dis-
armament. The ENDC became the Conference of the Committee on Dis-
armament (CCD) with the membership of 26 States (which was increased
to 31 in 1975) in 1969, and, pursuant to the decision of the 1978 first
special disarmament session of the United Nations General Assembly (the
conference being then composed of 40 States, including all five nuclear-
weapon States), changed its name to the Committee on Disarmament.
This has, since 1984, been in existence as the Conference on Disarma-
ment (CD), an organ of disarmament negotiations.

28. (Partial Test-Ban Treaty.) In an international context that
included the Cuban missile crisis in October 1962 and with the agreement
of the United States and the Soviet Union, the Treaty Banning Nuclear
Weapon Tests in the Atmosphere, in Outer Space and Under Water (Par-
tial Test-Ban Treaty (PTBT)), with the United States, the Soviet Union
and the United Kingdom as the original parties, was signed in Moscow
on 5 August 1963. The signatories agreed:

“to prohibit, to prevent, and not to carry out any nuclear weapon
test explosion, or any other nuclear explosion . . . in the atmosphere;
beyond its limits, including outer space; or under water, including
territorial waters or high seas” (Art. 1) (United Nations, Treaty
Series (UNTS), Vol. 480, p. 43).

This treaty was to be of unlimited duration and was open for signature to
all States. Ninety-nine States have, as of 1 January 1995, ratified or

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357 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

acceded to it and five have only signed it. The complete banning of all
nuclear tests, including underground tests, has still not been finally
achieved at this writing, while negotiations on the Comprehensive
Nuclear-Test-Ban Treaty are at present in progress.

29. (The 1978 first special disarmament session of the United Nations.)
The United Nations General Assembly has from the outset, and with the
close collaboration of the ENDC in Geneva, adopted, in parallel with
bilateral negotiations between the United States and the Soviet Union
related to nuclear weapons, a number of resolutions concerning nuclear
weapons, one of which was the 1961 resolution 1653 (XVI) in 1961 con-
cerning the “Declaration on the prohibition of the use of nuclear weap-
ons”, to which I referred in paragraph 16 above (see Table J). This 1961
resolution, which met some strong opposition and reservations, has,
however, for long been regarded as one of the leading objectives to be
achieved for nuclear disarmament and has led to the regular succession of
resolutions aiming at the Convention on the prohibition of the use of
nuclear weapons which, however, has not yet borne any fruit (see
paras. 20-25 above).

Considering the issues of nuclear disarmament as a problem of global
peace and security, the first special session devoted to disarmament
(Tenth Special Session) of the General Assembly was held in May-
June 1978 to lay the foundation of an international disarmament strategy
which would aim at a general and complete disarmament under effective
international control (cf. para. 17 above).

The Final Document of this special session set out various principles,
including the primary responsibility of nuclear-weapon States for nuclear
disarmament, the observance of an acceptable balance of mutual respon-
sibilities and obligations for nuclear- and non-nuclear-weapon States, the
consideration of proposals designed to secure the avoidance of the use of
nuclear weapons and the prevention of nuclear wars, and the non-prolif-
eration of nuclear weapons.

A programme of action in that Final Document indicated that the ulti-
mate goal should be the complete elimination of nuclear weapons and for
this purpose it encouraged, among other things, the cessation of nuclear-
weapon testing by all States within the framework of an effective nuclear
disarmament process, the giving of assurances to non-nuclear-weapon
States of their intent to refrain from any use or threat of use of nuclear
weapons, and the encouragement of the establishment of nuclear-weapon-
free zones on the basis of arrangements freely arrived at among the States
of the regions concerned.

In response to this final document of the first special disarmament ses-
sion, the General Assembly has, since its thirty-third session in 1978,
placed the “Review of the implementation of the recommendations and

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358 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

decisions of the tenth special session” on its agenda at every session down
to the present day.

30. (The 1982 second special disarmament session of the General
Assembly.) Although the General Assembly had noted that develop-
ments since 1978 had not lived up to the hopes engendered by that special
disarmament session, it held the second special disarmament session (the
Twelfth Special Session) in 1982 to review the implementation of the
recommendations and decisions adopted by the General Assembly at its
previous disarmament session in 1978 (cf. para. 20 above). The Con-
cluding Document, that is, the Report of the Ad hoc Committee, was
adopted at this special disarmament session (A/S-12/32).

Ever since the thirty-seventh session (1982) held late in the same year,
the General Assembly has had on its agenda at every session down to the
present day an item entitled “Review and implementation of the Con-
cluding Document of the Twelfth Special Session of the General Assem-
bly”. Under this agenda item, the General Assembly adopted at its thirty-
seventh session (1982) various resolutions concerning nuclear disarma-
ment among which a resolution entitled “Convention on the prohibition
of the use of nuclear weapons” was to be noted (as stated in para-
graphs 21-22 above). The General Assembly repeated an almost identical
resolution from 1982, over a period of fourteen sessions, until 1995 (see
para. 23 above). The number of sponsoring States did not increase, but
opposition to the resolution grew and abstentions from the voting became
more numerous. In fact this resolution had no impact on any occasion
when it was passed, so that the General Assembly had to repeat at every
session its regret that no result had been achieved in the previous year.
There has never been any discussion of substance, either at the United
Nations in New York or at the Conference on Disarmament in Geneva,
in relation to the Convention prohibiting the use or threat of use of
nuclear weapons under any circumstances.

(b) Separation between nuclear-weapon States and non-nuclear-weapon
States

31. (The Non-Proliferation Treaty.) In the atmosphere of détente
which was brought about by the conclusion in 1963 of the Partial Test-
Ban Treaty (PTBT), the United States and the Soviet Union became con-
cerned with the prevention of the proliferation of nuclear weapons beyond
those States which already possessed them. The United States and the
Soviet Union jointly submitted the draft of the Treaty on the Non-Pro-
liferation of Nuclear Weapons (Non-Proliferation Treaty (NPT)) in July
1968 in Geneva where, with the participation of the non-nuclear-weapon
States, the multilateral negotiations had been conducted. The Non-Pro-

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liferation Treaty, with the agreement of the United States, the Soviet
Union and the United Kingdom, was opened to all States for signature in
three cities: London, Moscow and Washington (UNTS, Vol. 729, p. 161).
It became effective on 5 March 1970 after its ratification by all three origi-
nal member States and the deposit of the instruments of ratification of
40 other signatory States (China and France ratified the Treaty only in
1992).

This Treaty clearly distinguished between, on the one hand, the nuclear-
weapon States, defined as those which prior to 1 January 1967 had manu-
factured and exploded a nuclear weapon or other nuclear device, and
which would undertake not to transfer nuclear weapons to non-nuclear-
weapon States or to assist, encourage or induce any of them to manufac-
ture or acquire nuclear weapons (Art. J), and, on the other hand, the non-
nuclear-weapon States which would not receive the transfer of nuclear
weapons or other nuclear explosive devices and would not manufacture
them or otherwise acquire them (Art. IT). The Treaty imposed, however,
on all the States parties, whether nuclear-weapon States or non-nuclear-
weapon States, the obligation to pursue negotiations in good faith with a
view to the taking of effective measures relating to the cessation of the
nuclear arms race and to nuclear disarmament (Art. VI). It is also to be
noted that, at the First Special Disarmament Session of the General
Assembly in 1978, the five nuclear-weapon States gave assurances to the
non-nuclear-weapon States which were parties to the Treaty, undertaking
not to use nuclear weapons against them.

The balance of power, as far as nuclear weapons are concerned, would
be maintained between the nuclear-weapon and the non-nuclear-weapon
States by this seemingly unequal treaty, which in fact reflected the reality
of the international relations in the 1970s and 1980s. Up to the end of
1979, 111 States had become parties to the Treaty and at the end of 1989,
138 States were parties. To date, the Treaty has received 182 ratifications.

Twenty-five years after the entry into force of that Treaty, in 1995, a
Conference was to be convened to decide, by a majority of the parties to
it, whether the Treaty should continue in force indefinitely or should be
extended for an additional fixed period or periods (Art. X (2)).

32. (Nuclear free zone — Treaty of Tlatelolco.) The Non-Prolifera-
tion Treaty recognized the right to any group of States to conclude
regional treaties in order to assure the total absence of nuclear weapons
in their respective territories (Art. VI).

The Treaty for the Prohibition of Nuclear Weapons in Latin America
(later the words “and the Caribbean” were added) (the Treaty of Tlate-
lolco) was signed on 14 February 1967 by 14 Latin American States (with
7 additional States signing subsequently) and became effective on
22 April 1968 (UNTS, Vol. 634, p. 281). This Treaty is drawn up to be of

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a permanent nature and to remain in force indefinitely (Art. 30), and is
currently valid among 30 States in the region.

The five nuclear-weapon States would be bound to compliance with
this Treaty by their acceptance of Additional Protocol II by which the
nuclear-weapon States would “undertake not to use or threaten to use
nuclear weapons against the Contracting Parties of the Treaty” (Art. 3).
The United Nations General Assembly in its resolutions adopted in suc-
cessive sessions (resolutions 2286 (XXII), 2456 (XXIII, etc.) welcomed
this Treaty with special satisfaction and invited the five nuclear-weapon
States to sign and ratify this Additional Protocol, by which they would
become bound by the Treaty. In fact, the five nuclear-weapon States had
successively signed and ratified Additional Protocol II by the end of the
1970s but accompanied their actions by declarations whereby some
attached reservations.

33. (Treaty of Rarotonga.) Following the Treaty of Tlatelolco cover-
ing the Latin American region, the South Pacific Nuclear Free Zone
Treaty (Treaty of Rarotonga) was signed by eight States at the South
Pacific forum on 6 August 1985 (with the later addition of one signature),
to provide for the abandonment of instruments of nuclear explosion, the
prevention of their placement by nuclear-weapon States and the preven-
tion of testing (UNTS, Registration No. 24592 of 2 January 1987). This
Treaty became effective on 11 December 1986 and is of a permanent
nature, remaining in force indefinitely (Art. 13) and currently valid
among 12 States in the region.

Protocol 2, which was aimed at securing the agreement of the five
nuclear-weapon States “not to use or threaten to use” any nuclear explo-
sive device against the parties to the Treaty (Art. 1), had by 1988 been
signed and ratified by China and the Soviet Union, to which instrument
they appended respectively some reservations. Signature by France, the
United Kingdom and the United States had to wait until March 1996.

(2) Perpetuation of the NPT Régime

(a) Non-Proliferation Treaty

34. (End of the Cold War.) The collapse of régimes in eastern Europe,
which commenced with the destruction of the Berlin Wall in November
1989 and the dissolution of the Soviet Union and which led to the end
of the Cold War, had a very strong impact on the question of nuclear
weapons at the end of the 1980s and beginning of the 1990s.

35. (Expectation of the comprehensive test-ban treaty.) Since the con-
clusion of the Partial Test-Ban Treaty in 1963, the complete banning of

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all nuclear explosion tests has been the most important political task —
in Geneva in particular — and it became, with the approach of 1995, a
most essential matter for the nuclear-weapon States to achieve the indefi-
nite extension of the Non-Proliferation Treaty, thus perpetuating that
Treaty’s régime. When the Conference on the Review of the Non-Prolif-
eration Treaty broke down in 1990 due to the conflict concerning the
Comprehensive Nuclear-Test-Ban Treaty (CTBT), the spotlight fell upon
that latter Treaty. The nuclear-weapon States had become aware that, if
they were to succeed in bringing about the indefinite extension of the
Non-Proliferation Treaty, they would have to give up any planned tests
of nuclear weapons.

In 1991 the “Comprehensive Nuclear-Test-Ban Treaty” was included
for the first time as a consolidated and independent agenda item of the
General Assembly and a proposal sponsored by 45 States was adopted
on 6 December 1991 by 147 States in favour, 2 against and 4 abstentions,
and became the resolution 46/29 entitled “Comprehensive Nuclear-Test-
Ban Treaty” (see below Table IV, No. 1). The United States and France
were against, and China and the United Kingdom abstained. This resolu-
tion required ali States to do their utmost to achieve the total prohibition
of nuclear weapon tests and asked the Conference on Disarmament to
proceed with negotiations.

36. (Negotiations in Geneva.) The real negotiations in Geneva started
in 1992 and late in that year the United Nations General Assembly
adopted resolution 47/47 — which was pratically identical to the previous
resolution — on 9 December 1992 by 159 votes in favour, 1 against and
4 abstentions (see below Table IV, No. 2). It was noted that, although the
United States voted against, France, because of the modification to its
national policy, no longer voted against it but abstained. The United
States had likewise changed its policy with the start of President Clinton’s
term of office in January 1993 as well as in consideration of the fact that
it would soon be time for the extension of the Non-Proliferation Treaty.
Thus, the draft resolution on “Comprehensive Nuclear-Test-Ban Treaty”
in 1993 was sponsored by 157 States, including the United States, and
adopted without being put to the vote as resolution 48/70 (see below
Table IV, No. 3).

In fact, through the CTBT negotiations at the Conference on Disarm-
ament in Geneva in 1994 there began to be a real hope that the Treaty
could be drafted. At the forty-ninth. session of the General Assembly in
1994, the resolution on the same subject, which was sponsored for the
first time by all five nuclear-weapon States, was adopted on 15 December
1994, again without being put to the vote, as resolution 49/70. That reso-
lution called upon the participants in the Conference on Disarmament to
negotiate intensively as a high priority and to conclude a universal treaty

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for a comprehensive ban of nuclear tests, which would contribute to
nuclear disarmament and the prevention of the proliferation of nuclear
weapons in all their aspects (see below Table IV, No. 4).

It was stated that, in order to have an effective implementation of Ar-
ticle VI of the Non-Proliferation Treaty, as referred to in paragraph 31
above, the completion by the Conference on Disarmament of the nego-
tiation on the CTBT was expected by no later than 1996. In 1995 the
General Assembly at its fiftieth session again adopted resolution 50/65 on
“Comprehensive Nuclear-Test-Ban Treaty” without its being put to the
vote (see below Table IV, No. 5) and the CTBT will, it is hoped, be con-
cluded in 1996.

(b) Indefinite extension of the Non-Proliferation Treaty

37. (Convocation of the conference.) In spite of the fact that the 1968
Non-Proliferation Treaty has certainly been seen as unequal, the
monopoly of nuclear weapons by a limited number of States and the pre-
vention of the proliferation of nuclear weapons beyond those States has
for some time been the linchpin of the doctrine of nuclear deterrence.
Under this Treaty, a conference would be convened in 1995 to decide
whether the treaty should continue in force indefinitely or should be
extended for an additional fixed period or periods (Art. X (2)). The General
Assembly at its forty-seventh session (1992) adopted by a recorded vote
of 168 votes in favour to none against with no abstentions (India later
advised the Assembly that it had intended to abstain) resolution 47/52 A
by which it took note of the decision of the parties to the Treaty to form
the preparatory committee for this 1995 Review and Extension Confe-
rence, which would meet in May 1993, and requested the possible assis-
tance of the Secretary-General. Pursuant to the decision of the prepara-
tory committee the Review and Extension Conference was held in April-
May 1995 in New York.

38. (Security assurances given by the nuclear States.) In order to per-
petuate the NPT régime, it was necessary for the nuclear-weapon States
to give some assurances to the non-nuclear-weapon States concerning the
use of these weapons. Prior to the Conference in April-May 1995, the five
nuclear-weapon States proceeded early in April 1995 to make their res-
pective statements, in which they gave security assurances of their intent
to refrain from any use of nuclear weapons against the non-nuclear-
weapon States that are parties to the Non-Proliferation Treaty. The
Security Council in its resolution 984 (1995) on 11 April 1995, which it
adopted unanimously, “[took] note with appreciation of the statements”
made by the five nuclear-weapon States. The assurances given by the
nuclear-weapon States were more or less identical, stating that “[each

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363 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

State] will not use nuclear weapons against non-nuclear-weapon States
Parties to the NPT” (S/1995/261, the Russian Federation; 262, the United
Kingdom; 263, the United States; 264, France) except that China gave
the assurance that it would “not. . . be the first to use nuclear weapons at
any time or under any circumstances” and that “[it] undertakes not to use
or threaten to use nuclear weapons against non-nuclear weapon States or
nuclear-weapon free zones at any time or under any circumstances”
(S/1995/265). In fact, a similar security assurance had also been given five
years previously, in 1990.

39. (The indefinite extension of the NPT.) One hundred and seventy-
five member States participated and ten non-member States sent obser-
vers. The Conference decided that, “the Treaty [should] continue in force
indefinitely” (Decision 3) as a majority existed among States parties to
the Treaty for its indefinite extension, in accordance with Article X, para-
graph 2. The nuclear-weapon States, while looking forward as far as pos-
sible to nuclear disarmament and the non-use of nuclear weapons, did
not alter their positions. On the other hand the non-nuclear-weapon
States, while expressing their appreciation of the efforts made by the
nuclear-weapon States to promote nuclear disarmament, were agreed that
the nuclear-weapon States, given their privileged status, would continue
to remain the only States to hold nuclear weapons. That decision of the
Conference was noted by the General Assembly in its resolution 50/70 Q
on “1995 Review and extension conference of the parties to the treaty
on the non-proliferation of nuclear weapons” on 12 December 1995
by a recorded vote of 161 in favour, none against with the abstension
of only India and Israel.

It can, then, be said that the NPT régime has thus been firmly estab-
lished in the international community.

40. (Nuclear free zone treaties.) Following the Treaties of Tlatelolco
and Rarotonga, some further treaties have been concluded to expand the
non-nuclear weapon zones pursuant to Article VII of the Non-Prolifera-
tion Treaty.

In South-East Asia in December 1995 a Treaty of the Non-Nuclear
Regions was signed in Bangkok on the occasion of the Conference of the
Heads of State of the Association of South-East Asian Nations (ASEAN)
by ten States in that area and this Treaty should remain in force indefi-
nitely. The Protocol was opened for signature to the five nuclear-weapon
States. It is reported that China and the United States declined to sign
the Protocol for the reason that the Treaty covered the exclusive eco-
nomic zone and the continental shelf in the region.

In Africa, where South Africa gave up its nuclear weapons, the estab-
lishment of a nuclear free zone became a reality and the United Nations Gen-

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364 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

eral Assembly at its forty-ninth session (1994) adopted resolution 49/138
on “Establishment of an African nuclear-weapon-free zone” requesting
the Secretary-General to work in consultation with the Organization of
African Unity (OAU) on the text of a treaty on an African Nuclear-
Weapon-Free Zone. In June 1995, after the extension of the Non-Prolif-
eration Treaty was decided, the Conference of Heads of States of the
OAU adopted the African Nuclear-Weapon-Free Zone Treaty (the Treaty
of Pelindaba) which was signed by 42 African States on 11 April 1996 in
Cairo. China, France, the United Kingdom and the United States signed
Protocol I at the same time by which they undertook not to use or
threaten to use nuclear weapons against the parties to the Treaty. The
Treaty is of unlimited duration and should remain in force indefinitely.

Al. (Conclusion.) One can conclude from the above that, on the one
hand, the NPT régime which presupposes the possession of nuclear
weapons by the five nuclear-weapon States has been firmly established
and that, on the other, they have themselves given security assurances to
the non-nuclear weapon States by certain statements they have made in
the Security Council. In addition, those nuclear-weapon States, in so far
as they adhere to the Protocols appended to the respective nuclear-free
zone treaties, are bound not to use or threaten to use nuclear weapons
against States parties to those respective treaties.

This reality should not be overlooked. It is most unlikely that those
nuclear-weapon States will use those weapons, even among themselves,
but the possibility of the use of those weapons cannot be totally excluded
in certain special circumstances. That is the meaning of the Non-Prolif-
eration Treaty. It is generally accepted that this NPT régime is a neces-
sary evil in the context of international security, where the doctrine of
nuclear deterrence continues to be meaningful and valid.

TABLE IV

[Note: The nuclear-weapon States under the NPT are italicized;
“R” denotes recorded vote. }

General Assembly Resolutions on “Comprehensive Nuclear-Test-Ban Treaty”

1. The forty-sixth session (1991) |

A/C.1/46/L.4: sponsored by: (45) USSR [names of other States not repro-
duced].

A/RES/46/29 : adopted on 6 December 1991 by R147-2-4.
For: (147) USSR [names of other States not reproduced].
Against: (2) France, United States.

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365 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. ODA)

Abstaining: (4) China, Micronesia (Federated States of), Israel, United King-
dom.

2. The forty-seventh session (1992)

A/C.1/47/L.37: sponsored by: (99) Russian Federation [names of other States
not reproduced].

A/RES/47/47: adopted on 9 December 1992 by R159-1-4.
For: (159) Russian Federation [names of other States not reproduced].

Against: (1) United States.
Abstaining: (4) China, France, Israel, United Kingdom.

3. The forty-eighth session (1993)

A/C.1/48/L.40: sponsored by: (159) Russian Federation, United States [names
of other States not reproduced].

A/RES/48/70: adopted without a vote on 16 December 1993.

4. The forty-ninth session (1994)

A/C.1/49/L.22/Rev.l: sponsored by: (87) China, France, Russian Federation,
United Kingdom, United States [names of other States not reproduced].

A/RES/49/70: adopted without a vote on 15 December 1994.

5. The fiftieth session (1995)

A/C.1/50/L.8/Rev.1: sponsored by: (91) France, Russian Federation, United
Kingdom, United States [names of other States not reproduced].

A/RES/50/65: adopted without a vote on 12 December 1995.

(3) Significance of the NPT Régime in the Period of the
Still Valid Doctrine of Nuclear Deterrence

42. (Ultimate goal of elimination of nuclear weapons.) The resolution
sponsored and introduced by Japan and entitled “Nuclear disarmament
with a view to the ultimate elimination of nuclear weapons” was adopted
on 15 December 1994 as resolution 49/75H at the forty-ninth session
(1994) by a recorded vote of 163 in favour, none against and 8 absten-
tions (see below Table V, No. 1). In that resolution, the General Assem-
bly “urge[d] States not parties to the Treaty on the Non-Proliferation of
Nuclear Weapons to accede to it at the earliest possible date” and
“callled] upon the nuclear-weapon States to pursue their efforts for
nuclear disarmament with the ultimate objective of the elimination of
nuclear weapons in the framework of general and complete disarmament”
(emphasis added).

After it was determined in May 1995 that the NPT was to be indefi-
nitely extended, the General Assembly at its fiftieth session (1995) adopted
on 12 December 1995, by 154 votes in favour, none against and 10 absten-
tions, resolution 50/70 C (see below Table V, No. 2) by which the General

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Assembly “[c]all[ed] for the determined pursuit by the nuclear-weapon
States of systematic and progressive efforts to reduce nuclear weapons
globally, with the ultimate goal of eliminating those weapons, and by all
States of general and complete disarmament under strict and effective
international control” (emphasis added).

It is to be noted that another resolution similarly entitled “Nuclear dis-
armament” which proposed “effective nuclear disarmament measures
with a view to the total elimination of [nuclear] weapons within a time-
bound framework” (emphasis added) was adopted on the same day as
resolution 50/70P but met strong opposition as reflected in a recorded
vote of 103 in favour, 39 against and 17 absentions (see below Table V,
No. 3).

TABLE V

[Note: The nuclear-weapon States under the NPT are italicized ;
“R” denotes recorded vote. ]

General Assembly Resolutions on “Nuclear Disarmament with a View to the
Ultimate Elimination of Nuclear Weapons”

I. The forty-ninth session (1994)

A/C.1/49/L.33/Rev.1: Sponsored by: Japan.
A/RES/49/75 H: adopted on 15 December 1994 by R163-0-8.

For: (163) China, Russian Federation [names of other States not repro-
duced].

Against: (0).
Abstaining: (8) Brazil, Cuba, Democratic People’s Republic of Korea,
France, India, Israel, United Kingdom, United States.

2. The fiftieth session (1995)

A/C.1/50/L.17/Rev.2: sponsored by: Japan, with the later additions of
Australia, Austria, Belgium, Canada, Denmark, Finland, Germany, Iceland,
Ireland, Italy, Malta, Netherlands, New Zealand, Norway, Poland, Spain,
Sweden, Venezuela.

A/RES/50/70 C: adopted on 12 December 1995 by R154-0-10.

For: (154) France, Russian Federation, United Kingdom, United States
[names of other States not reproduced].

Against: (0).

Abstaining: (10) Algeria, Brazil, China, Cuba, Democratic People’s Republic
of Korea, India, Iran (Islamic Republic of), Israel, Myanmar, Pakistan.

General Assembly Resolution on “Nuclear Disarmament”

3. The fiftieth session (1995)

A/C.1/50/L.46/Rev.1: sponsored by: (33) Algeria, Angola, Bangladesh, Cambodia,
Colombia, Cuba, Democratic People’s Republic of Korea, Ecuador, Egypt,

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Fiji, Ghana, India, Indonesia, Iran (Islamic Republic of), Iraq, Kenya,
Malaysia, Marshall Islands, Mauritius, Mexico, Mongolia, Myanmar, Nigeria,
Pakistan, Papua New Guinea, Philippines, Samoa, Sri Lanka, Sudan, Thai-
land, United Republic of Tanzania, Viet Nam, Zimbabwe.

A/RES/50/70 P: adopted on 12 December 1995 by R106-39-17.

For: (106) China [names of other States not reproduced].

Against: (39) Albania, Andorra, Argentina, Austria, Belgium, Bulgaria,
Canada, Czech Republic, Denmark, Estonia, Finland, France, Germany,
Greece, Hungary, Iceland, Ireland, Israel, Italy, Latvia, Liechtenstein,
Lithuania, Luxembourg, Malta, Monaco, Netherlands, Norway, Poland,
Portugal, Republic of Moldova, Romania, Slovakia, Slovenia, Spain,
Sweden, The Former Yugoslav Republic of Macedonia, Turkey, United
Kingdom, United States.

Abstaining: (17) Antigua and Barbuda, Armenia, Australia, Azerbaijan,
Bahamas, Belarus, Benin, Croatia, Cyprus, Equatorial Guinea, Georgia,
Japan, Kazakhstan, New Zealand, Republic of Korea, Russian Federa-
tion, Ukraine.

TV. CoNcLUDING REMARKS

(1) Re-examination of the General Assembly’s Request for the Court’s
Advisory Opinion

43, (Re-examination of the request.) I have shown, firstly, that the
request contained in General Assembly resolution 49/75 K and that reads:
“Is the threat or use of nuclear weapons permitted in any circumstance
under international law?” was, in fact, nothing more than a request to
the Court to endorse what, in the view of those that framed it, is a legal
axiom that the threat or use of nuclear weapons is not permitted under
international law in any circumstance, and so cannot be considered as a
request for advisory opinion in the real sense as laid down by Article 96 (1)
of the Charter of the United Nations.

In the second place, | maintain that the request contains an element of
uncertainty as regards the meaning of the phrase “threat or use of nuclear
weapons”, as opposed to “the use or threat of use of nuclear weapons”,
and provides no clarification of the concept of “threat”, leading one to
raise the question of whether or not the possession or the production of
nuclear weapons should be included as an object of the request. In my
view there was sufficient reason to believe that, in view of the background
to the drafting, the absolute illegality of nuclear weapons themselves was
in the mind of some States.

Thirdly, as can be seen from the travaux préparatoires of the request,
‘the adoption of that resolution was far from representing a consensus of
the General Assembly (cf. paras. 6-14 above).

44, (Standstill of the movement towards an agreement on the conven-
tion prohibiting the use of nuclear weapons.) In the development of

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nuclear disarmament in the forum of the United Nations, the movement
aiming at the conclusion of a treaty to totally prohibit the “use or threat
of use of nuclear weapons” was at a standstill for more than ten years,
that is, from 1982 to 1994. Support for such repeated resolutions on dis-
armament within the United Nations General Assembly in New York did
not increase but rather decreased (see above Table JIT}, and the Confer-
ence on Disarmament in Geneva made no attempt to respond favourably
to those resolutions nor did it commence negotiations in order to achieve
agreement on such a convention.

Against the background of that situation, a group of States stimulated
by a few NGOs attempted to achieve a breakthrough by obtaining the
Court’s endorsement of an alleged legal axiom in order to move towards
a worldwide anti-nuclear weapons convention. I have no doubt that the
request was prepared and drafted — not in order to ascertain the status
of existing international law on the subject but to try to promote the total
elimination of nuclear weapons — that is to say, with highly political
motives. This reason, among others, explains why, in 1994, resolution
49/75 K, although passed at the General Assembly with the support of
78 States, did meet with 43 objections while 38 States abstained from the
voting.

45. (The reality of the NPT régime.) The reality of international
society is far removed from the desires expressed by that group of States
which supported resolution 49/75 K. In the period of the Cold War, the
monopoly of nuclear weapons by five States and the prevention of pro-
liferation beyond that restricted circle, were regarded as essential and
indispensable conditions for the maintenance of international peace and
security, as proved by the conclusion of the Non-Proliferation Treaty in
1968 which clearly distinguished between the five nuclear-weapon States
and the non-nuclear-weapon States. The doctrine, or strategy, of nuclear
deterrence, however it may be judged and criticized from different angles
and in different ways, was made a basis for the NPT régime which has
been legitimized by international law, both conventional and customary,
during the past few decades.

The situation has remained unchanged down to the present day, even
in the post-Cold War period. The term of the 1968 Non-Proliferation
Treaty was extended indefinitely in 1995. In such an international climate
in which nuclear disarmament is incomplete and general and complete
disarmament chimerical, a total prohibition of these weapons would have
been seen as a rejection of the legal basis on which that Treaty was
founded. If the total prohibition of nuclear weapons was the driving
force behind the request, then the question put under resolution 49/75 K
could only have been raised in defiance of the then legitimately existing
NPT régime.

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There is another point which should not be overlooked. As a matter of
fact the nuclear-weapon States have tended to undertake not to use or
threaten to use nuclear weapons against the States in some specific
regions covered by the nuclear-free-zone treaties and these five nuclear-
weapon States, early in 1995, gave security assurances through state-
ments made in the Security Council in which they undertook not to use
or threaten to use these weapons against the non-nuclear-weapon States.
In other words, if legal undertakings are respected, there is little risk of
the use of nuclear weapons at present by the five declared nuclear-
weapon States. Under such circumstances there was, in 1994, no immi-
nent need to raise the question of the legality or illegality of nuclear
weapons.

46. (Caricature of the advisory procedure.) In the climate in which the
NPT régime was about to be legitimized for an indefinite term, and at a
time when there was no probability of the use of nuclear weapons by the
five nuclear-weapon States, the General Assembly on the same day,
15 December 1994, was asked, under resolution 49/76E on a “Conven-
tion on the prohibition of the use of nuclear weapons”, to request the
Conference on Disarmament in Geneva to prepare such a convention
(without much expectation of success), and was also asked to adopt two
other resolutions under the same agenda item “General and complete dis-
armament” — one, resolution 49/75 H, aimed at the ultimate elimination
of nuclear weapons and the other, resolution 49/75 K, requesting from
the Court the endorsement of the illegality of nuclear weapons under
contemporary international law. This is highly contradictory. There was
no need and no rational justification, under the circumstances prevailing
in 1994, for the request for advisory opinion by the General Assembly to
the Court concerning the legality or illegality of the threat or use of
nuclear weapons. This was simply, in my view, a caricature of the advi-
sory procedure.

(2) Role of the Advisory Function and the Discretion of the Court
to Decline to Render an Advisory Opinion

47. (Function of the advisory opinion.) The International Court of
Justice is competent not only to function as a judicial organ but also to
give advisory opinions. However, the advisory function is a questionable
function of any judicial tribunal and was not exercised by any interna-
tional tribunal prior to the Permanent Court of International Justice,
which first introduced it amidst uncertainty and controversy. The advi-
sory function has now been incorporated into the role of the Interna-
tional Court of Justice in parallel with its contentious function, but con-
tinues to be regarded as an exception and to be seen as an incidental
function of the Court. This is the reason why, as distinct from the exer-

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cise of its contentious jurisdiction, the Court has discretion in exercising
its advisory function, as stated in Article 65 of the Statute, which pro-
vides that “the Court may give an advisory opinion . . .” (emphasis
added).

48. (One refusal to render an advisory opinion in the period of the Per-
manent Court.) The Permanent Court once declined to give an opinion
but not because it exercised its discretionary power in so doing. In the
period of the Permanent Court, the advisory function played a relatively
important role in settling inter-State disputes (as in contentious cases),
and in cases involving an inter-State dispute, the consent of the States in
dispute was required for an advisory opinion to be rendered. The Eastern
Carelia case in 1923 was very important in this respect and was the only
case in which the Permanent Court declined to render an advisory
opinion. In that case, which was related to the interpretation of a declara-
tion concerning the autonomous status of Eastern Carelia in the 1920
Dorpat Peace Treaty between Finland and Russia, Finland first appealed
to the Council of the League of Nations to ask the Court for an advisory
opinion. Russia, which was not a member of the League of Nations,
opposed that move. Further to proceedings before the Court in which
Russia was not represented, the Court, when declining to deliver an advi-
sory opinion, indicated its unwillingness to take the matter any further
under the circumstances and invoked a well-established principle of
international law to the effect that

“no State can, without its consent, be compelled to submit its dis-
putes with other States either to mediation or to arbitration, or to
any other kind of pacific settlement” (P.C.1./., Series B, No. 5,
p. 27).

In all the advisory cases in the period of the Permanent Court which
volved inter-State disputes and which followed the Eastern Carelia
case, the consent of the State concerned was secured in advance or there
was at least a guarantee that neither party to the dispute would object
to the proceedings. In the circumstances, the precedent of the Eastern
Carelia case as dealt with by the previous Court is of no relevance
to the present case.

49. (Advisory function in the International Court of Justice.) Of the
20 advisory opinions that the International Court of Justice has rendered
to date, 12 were given in response to requests made pursuant to General
Assembly resolutions. .

There have been seven cases, all in the early period of the Court, in
which it dealt simply with the interpretation of the United Nations Char-
ter itself or with matters concerning the functions of the United Nations,
that is, Conditions of Admission of a State to Membership in the United
Nations ( Article 4 of Charter) (1948); Reparation for Injuries Suffered in

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the Service of the United Nations (1949); Competence of the General
Assembly for the Admission of a State to the United Nations (1950);
Effects of Awards of Compensation Made by the United Nations Admin-
istrative Tribunal (1954); Voting Procedure on Questions relating to
Reports and Petitions concerning the Territory of South West Africa
(1955); Admissibility of Hearings of Petitioners by the Committee on
South West Africa (1956); and the case concerning Certain Expenses of
the United Nations (Article 17, paragraph 2, of the Charter) (1962).

Unlike the previous Court, which dealt mostly with inter-State disputes
even in the context of advisory cases, the present Court has on only a few
occasions been asked to give an advisory opinion on a matter related to
an inter-State dispute, that is, in the cases concerning the /nterpretation
of Peace Treaties with Bulgaria, Hungary and Romania (1950) and the
Western Sahara (1975). On some occasions the Court has dealt with dis-
putes between international organizations and States, such as the /nter-
national Status of South West Africa case (1950) and the Applicability of
the Obligation to Arbitrate under Section 21 of the United Nations Head-
quarters Agreement of 26 June 1947 case (1988).

50. (Legal questions of a general nature.) In fact, during the life of the
present Court, there has only been one case in which a legal question of
a general nature was dealt with and that was the one concerning Reser-
vations to the Convention on the Prevention and Punishment of the Crime
of Genocide (1951) in which the meaning of reservations attached to a
multilateral convention was questioned. In that case, however, the request
to the Court arose from circumstances of practical necessity, and it was
asked to focus upon the question of whether

“the reserving State [can] be regarded as being a party to the [Geno-
cide] Convention while still maintaining its reservation if the reserva-
tion is objected to by one or more of the parties to the Convention
but not by others” (Z C.J. Reports 1951, p. 16)

and to render an opinion on the meaning of the reservation attached to a
multilateral convention and, more particularly, on the concrete question
of the interpretation and application of the Genocide Convention. This
fact makes that case quite different from the present case in which no
issues of a practical nature are in dispute and there is no need to specify
the legality or illegality of the threat or use of nuclear weapons, as
I explained in paragraph 45 above.

51. (Declining to render an advisory opinion.) If one looks at this
practice, it can be seen that no request for an advisory opinion concern-
ing a legal question of a general nature, where that question is unrelated
either to a concrete dispute or to a concrete problem awaiting a practical
solution, has ever been submitted to the Court. It is true that the present

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Court, even though given a discretionary power to render or to decline to

render an advisory opinion, has in the past had no occasion to decline to
render an opinion in response to a request from the General Assembly.
The fact is however that, in the past, the Court has never received any
requests which could reasonably have been refused in the given circum-
stances. In this connection it is irrelevant to argue, in the present context,
that “[t]he Court .. . is mindful that it should not, in principle, refuse to
give an advisory opinion” and that “[t]here has been no refusal, based on
the discretionary power of the Court, to act upon a request for advisory
opinion in the history of the present Court” (Court’s Opinion, para. 14).

(3) Conclusions

52. (Judicial propriety.) Under the circumstances and considering the
discretionary competence of the Court in declining to render an advisory
opinion, the Court should, in my view, for the reason of judicial propri-
ety, have dismissed the request raised under resolution 49/75 K. More-
over, in the event, it seems to me that the elementary or equivocal con-
clusions reached by the Court in the present Opinion do not constitute a
real response to the request, and I am afraid that this unimpressive result
may cause some damage to the Court’s credibility.

53. (Judicial economy.) In addition, I would like to explain why I con-
sider that the request should have been dismissed in the present case, on
account of considerations of judicial economy. There are any number of
questions which could be brought to the Court as requiring legal inter-
pretation or the application of international law in general terms in fields
such as the law of the sea, law of humanitarian and human rights, envi-
ronmental law, etc. If the Court were to decide to render an opinion — as
in the present case — by giving a response to a legal question of a general
nature as to whether a specific action would or would not be in confor-
mity with the application of treaty law or of customary law — a question
raised in the absence of any practical need — this could in the long run
mean that the Court could be seised of a number of hypothetical cases of
a general nature and would eventually risk its main function — to settle
international disputes on the basis of law — to become a consultative or
even a legislative organ.

If the flood-gates were thus opened for any legal question of a general
nature which would not require immediate solution, in circumstances
where there was no practical dispute or need, then the Court could
recelve many cases of an academic or intellectual nature with the conse-
quence that it would be the less able to exercise its real function as a judi-
cial institution. I have expressed my concern at an abuse of the right to
request an advisory opinion in my separate opinion appended to the
Court’s Opinion rendered today in response to the request from the
World Heaith Assembly, in terms which I would like to repeat:

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“I am personally very much afraid that if encouragement is given or
invitations are extended for a greater use of the advisory function of
the Court — as has recently been advocated on more than one occa-
sion by some authorities — it may well be seised of more requests
for advisory opinions which may in essence be unnecessary and
over-simplistic. I firmly believe that the International Court of Jus-
tice should primarily function as a judicial institution to provide
solutions to inter-State disputes of a contentious nature and should
neither be expected to act as a legislature (although new develop-
ments in international law may well be achieved through the juris-
prudence of the Court) or to function as an organ giving legal advice
(except that the Court may give opinions on legal questions which
arise within the scope of activities of the authorized international
organizations) in circumstances in which there is no conflict or dis-
pute concerning legal questions between States or between States
and international organizations.” (Legality of the Use by a State of
Nuclear Weapons in Armed Conflict, Advisory Opinion, LC.
Reports 1996, p. 89, para. 3.)

54. (My personal appeal.) In concluding this exposition of my posi-
tion against the Court’s rendering an opinion in the present case, I would
emphasize that Iam among the first to hope that nuclear weapons can be
totally eliminated from the world as proposed in General Assembly reso-
lutions 49/75 H and 50/70C, which were adopted at the General Assem-
bly without there being one single objection. However, a decision on this
matter is a function of political negotiations among States in Geneva or
New York and is not one which concerns our judicial institution here at
The Hague, where an interpretation of existing international law can only
be given in response to a genuine need.

V. SUPPLEMENTARY OBSERVATIONS ON My PosiTION
AS REGARDS PARAGRAPH 2 OF THE OPERATIVE PART OF THE PRESENT
ADVISORY OPINION

55. While I take the position that the Court should have declined to
render an advisory opinion, I proceeded nonetheless to cast my vote on
all of the subparagraphs in its operative part in view of the rule that no
Judge may abstain from the voting on the operative part of any decision
of the Court. I have done so although, in my view, the statements listed
in paragraph 2 may not be interpreted as constituting replies to the ques-
tion posed by resolution 49/75 K while subparagraph F, in particular,
concerns a matter which, in my view, should not be advanced in the
operative part of the Advisory Opinion as it simply reproduces Article VI
of the Non-Proliferation Treaty. However, I did vote in favour of all the
subparagraphs A to F — apart from the subparagraph E — as I can

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accept the statements made in each one of them. The equivocations of
subparagraph E prove my point that it would have been prudent for the
Court to decline from the outset to give any opinion at all in the present
case. The fact that the Court could only come to such an equivocal con-
clusion hardly serves to enhance its credibility.

(Signed) Shigeru ODA.

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