375

DISSENTING OPINION OF JUDGE SHAHABUDDEEN

The Charter was signed on 26 June 1945. A less troubled world was its
promise. But the clash of arms could still be heard. A new weapon was
yet to come. It must first be tested. The date was 12 July 1945; the place
Alamogordo. The countdown began. The moment came: “The radiance
of a thousand suns.” That was the line which came to the mind of the
leader of the scientific team. He remembered also the end of the ancient
verse: “I. am become death, The Shatterer of Worlds”.

By ‘later standards, it was a small explosion. Bigger bombs have since
been made. Five declared nuclear-weapon States possess them. The pros-
pect of mankind being destroyed through a nuclear war exists. The books
of some early peoples taught that the use of a super weapon which might
lead to excessively destructive results was not allowed. What does con-
temporary international law have to say on the point?

That, in substance, is the General Assembly’s question. The question
raises the difficult issue as to whether, in the special circumstances of the
use of nuclear weapons, it is possible to reconcile the imperative need of
a State to defend itself with the no less imperative need to ensure that, in
doing so, it does not imperil the survival of the human species. If a
reconciliation is not possible, which side should give way? Is the prob-
lem thus posed one of law? If so, what lines of legal enquiry suggest
themselves?

*

Overruling preliminary arguments, the Court, with near unanimity,
decided to comply with the General Assembly’s request for an advisory
opinion on the question whether “the threat or use of nuclear weapons
[is] in any circumstance permitted under international law”. By a bare
majority, it then proceeded to reply to the General Assembly’s question
by taking the position, on its own showing, that it cannot answer the sub-
stance of the question. I fear that the contradiction between promise and
performance cannot, really, be concealed. With respect, I am of the view

1 Peter Michelmore, The Swift Years, The Robert Oppenheimer Story, 1969, p. 110.
Oppenheimer could read the verse in the original Sanskrit of the Bhagavad-Gita.

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that the Court should and could have answered the General Assembly’s
question — one way or another.

*

From the point of view of the basic legal principles involved, the reply
of the Court, such as it is, is set out in the first part of subparagraph E of
paragraph 2 of the operative paragraph of its Advisory Opinion. Subject
to a reservation about the use of the word “generally”, I agree with the
Court

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

My difficulty is with the second part of subparagraph E of paragraph 2
of the operative paragraph of the Court’s Advisory Opinion. If the use of
nuclear weapons is lawful, the nature of the weapon, combined with
the requirements of necessity and proportionality which condition the
exercise of the inherent right of self-defence, would suggest that such
weapons could only be lawfully used “in an extreme circumstance of
self-defence, in which the very survival of a State would be at stake”;
and this, I think, notwithstanding variations in formulation and flexible
references to “vital security interests”, is the general theme underlying the
position taken by the nuclear-weapon States. That in turn must be the
main issue presented for consideration by the Court. But this is exactly
the issue that the Court says it cannot decide, with the result that the
General Assembly has not received an answer to the substance of its
question.

I have the misfortune to be unable to subscribe to the conclusion so
reached by the Court, and the more so for the reason that, when that
conclusion is assessed by reference to the received view of the “Lotus”
case, the inference could be that the Court is saying that there is a pos-
sibility that the use of nuclear weapons could be lawful in certain circum-
stances and that it is up to States to decide whether that possibility exists
in particular circumstances, a result which would give me difficulty. In
my respectful view, “the current state of international law, and . . . the
elements of fact at its disposal” permitted the Court to answer one way
or another.

As the two parts of subparagraph E cannot be separated for the pur-
pose of voting, I have been regretfully constrained to withhold support
from this subparagraph. Further, as the point of disagreement goes to the
heart of the case, I have elected to use the style “dissenting opinion’,
even though voting for most of the remaining items of the operative para-
graph.

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A second holding which I am unable to support is subparagraph B of
paragraph 2 of the operative paragraph. The specificity conveyed by the
words “as such” enables me to recognize that “[t]here is in neither cus-
tomary nor conventional international law any comprehensive and uni-
versal prohibition of the threat or use of nuclear weapons as such”. But
the words “as such” do not outweigh a general suggestion that there is no
prohibition at all of the use of nuclear weapons. The circumstance that
there is no “comprehensive and universal prohibition of the threat or use
of nuclear weapons as such” in customary or conventional international
law does not conclude the question whether the threat or use of such
weapons is lawful; more general principles have to be consulted. Further,
for reasons to be given later, the test of prohibition does not suffice to
determine whether there is a right to do an act with the magnitude of
global implications which would be involved in such use. Finally, the
holding in this subparagraph is a step in the reasoning; it does not prop-
erly form part of the Court’s reply to the General Assembly’s question.

*

As remarked above, I have voted for the remaining items of the opera-
tive paragraph of the Court’s Advisory Opinion. However, a word of
explanation is appropriate. The Court’s voting practice does not always
allow for a precise statement of a judge’s position on the elements of a
dispositif to be indicated through his vote; how he votes would depend
on his perception of the general direction taken by such an element and
of any risk of his basic position being misunderstood. A declaration,
separate opinion or dissenting opinion provides needed opportunity for
explanation of subsidiary difficulties. This I now give below in respect of
those parts of the operative paragraph for which I have voted.

As to subparagraph A of paragraph 2 of the operative paragraph,
I take the view, to some extent implicit in this subparagraph, that, at any
rate in a case of this kind, the action of a State is unlawful unless it is
authorized under international law; the mere absence of prohibition is
not enough. In the case of nuclear weapons, there is no authorization,
whether specific or otherwise. However, subparagraph A is also a step in
the reasoning; it is not properly part of the Court’s reply to the General
Assembly’s question.

As to subparagraph C of paragraph 2 of the operative paragraph,
there is an implication here that a “threat or use of force by means of
nuclear weapons that is contrary to Article 2, paragraph 4, of the United
Nations Charter” may nevertheless be capable of complying with some
or all of the requirements of Article 51 and would in that event be lawful.
Y should have thought that something which was “contrary” to the
former was ipso facto illegal and not capable of being redeemed by meet-

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ing any of the requirements of the latter. Thus, an act of aggression,
being contrary to Article 2, paragraph 4, is wholly outside of the frame-
work of Article 51, even if carried out with antiquated rifles and in strict
conformity with humanitarian law. Further, it is difficult to see how the
Court can allow itself to be suggesting here that there are circumstances
in which the threat or use of nuclear weapons is lawful in view of the fact
that in subparagraph E of paragraph 2 of the operative paragraph it has
not been able to come to a definitive conclusion on the main issue as to
whether the threat or use of such weapons is lawful or unlawful in the
circumstances stated there.

As to subparagraph D of paragraph 2 of the operative paragraph, the
statement that a “threat or use of nuclear weapons should also be com-
patible with the requirements of the international law applicable in
armed conflict . . .” suggests the possibility of cases of compatibility and
consequently of legality. As mentioned above, it is difficult to see how the
Court can take this position in view of its inability to decide the real issue
of legality. The word “should” is also out of place in a finding as to what
is the true position in law.

As to subparagraph F of paragraph 2 of the operative paragraph,
I have voted for this as a general proposition having regard to the char-
acter of nuclear weapons. The particular question as to the legal impli-
cations of Article VI of the Treaty on the Non-Proliferation of Nuclear
Weapons (“NPT”) is not before the Court; it does not form part of the
General Assembly’s question. It could well be the subject of a separate
question as to the effect of that Article of the NPT, were the General
Assembly minded to present one.

Going beyond the operative paragraph, I have hesitations on certain
aspects of the consideranda but do not regard it as convenient to list them
all. I should however mention paragraph 104 of the Advisory Opinion.
To the extent that this reproduces the standing jurisprudence of the
Court, I do not see the point of the paragraph. If it ventures beyond, I do
not agree. The operative paragraph of the Court’s Advisory Opinion has
to be left to be interpreted in accordance with the settled jurisprudence
on the point.

*

Returning to subparagraph E of paragraph 2 of the operative para-
graph of the Court’s Advisory Opinion, I propose to set out below my
reasons for agreeing with this holding in so far as I agree with it and for
disagreeing with it in so far as I disagree. The limited objective will be to
show that, contrary to the Court’s major conclusion, “the current state of
international law, and... the elements of fact at its disposal” were suf-
ficient to enable it to “conclude definitively whether the threat or use of
nuclear weapons would be lawful or unlawful in an extreme circumstance
of self-defence, in which the very survival of a State would be at stake”.

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With this end in view, I propose, after noticing some introductory and
miscellaneous matters in Part I, to deal, in Part I, with the question
whether States have a right to use nuclear weapons having regard to the
general principles which determine when States are to be considered as
having a power, and, in Part III, with the position under international
humanitarian law. In Part IV, I consider whether a prohibitory rule, if it
existed at the commencement of the nuclear age, was modified or
rescinded by the emergence of a subsequent rule of customary interna-
tional law. I pass on in Part V to consider denuclearization treaties and
the NPT. The conclusion is reached in Part VI.

PART I. INTRODUCTORY AND MISCELLANEOUS MATTERS

1. The Main Issue

The commencement of the nuclear age represents a legal benchmark for
the case in hand. One argument was that, at that point of time, the use of
nuclear weapons was not prohibited under international law, but that a
prohibitory rule later emerged, the necessary opinio juris developing under
the twin influences of the general prohibition of the use of force laid down
in Article 2, paragraph 4, of the Charter and of growing appreciation of
and sensitivity to the power of nuclear weapons. In view of the position
taken by the proponents of the legality of the use of nuclear weapons
(“proponents of legality”) over the past five decades, it will be difficult to
establish that the necessary opinio juris later crystallized, if none existed
earlier. That argument was not followed by most of the proponents of the
illegality of the use of nuclear weapons (“proponents of illegality’’).

The position generally taken by the proponents of illegality was that a
prohibitory rule existed at the commencement of the nuclear age, and
that subsequent developments merely evidenced the continuing existence
of that rule. For their part, the proponents of legality took the position
that such a prohibitory rule never existed, and that what subsequent
developments did was to evidence the continuing non-existence of any
such rule and a corresponding right to use nuclear weapons. There was
no issue as to whether, supposing that a prohibitory rule existed at the
commencement of the nuclear age, it might have been reversed or modi-
fied by the development of a later rule in the opposite direction’; sup-
posing that that had been argued, the position taken by the proponents

2 For the possibility of a rule of customary international law being modified by later
inconsistent State practice, see Military and Paramilitary Activities in and against Nica-
ragua, Merits, 1 C.J. Reports 1986, p. 109, para. 207.

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of illegality would bar the development of the opinio juris necessary for
the subsequent emergence of any such permissive rule, and more particu-
larly so if the earlier prohibitory rule had the quality of jus cogens. This
would have been the case if any humanitarian principles on which the
earlier prohibitory rule was based themselves had the quality of jus
cogens, a possibility left open by paragraph 83 of the Court’s Advisory
Opinion.

State practice is important. But it has to be considered within the
framework of the issues raised. Within the framework of the issues raised
in this case, State practice subsequent to the commencement of the
nuclear age does not have the decisive importance suggested by the focus
directed to it during the proceedings: it is not necessary to consider it in
any detail beyond and above what is reasonably clear, namely, that the
opposition shown by the proponents of legality would have prevented the
development of a prohibitory rule if none previously existed, and that the
opposition shown by the proponents of illegality would have prevented
the development of a rescinding rule if a prohibitory rule previously
existed. In either case, the legal situation as it existed at the commence-
ment of the nuclear age would continue in force. The question is, what
was that legal situation?

The real issue, then, is whether at the commencement of the nuclear
age there was in existence a rule of international law which prohibited a
State from creating effects of the kind which could later be produced by
the use of nuclear weapons. If no such rule then existed, none has since
come into being, and the case of the proponents of legality succeeds; if
such a rule then existed, it has not since been rescinded, and the case of
the proponents of illegality succeeds.

2. The Charter Assumes That Mankind and Its Civilization
Will Continue

International law includes the principles of the law of armed conflict.
These principles, with roots reaching into the past of different civiliza-
tions, were constructed on the unspoken premise that weapons, however
destructive, would be limited in impact, both in space and in time. That
assumption held good throughout the ages. New and deadlier weapons
continued to appear, but none had the power to wage war on future gen-
erations or to threaten the survival of the human species. Until now.

Is a legal problem presented? I think there is; and this for the reason
that, whatever may be the legal position of the individual in international
law, if mankind in the broad is annihilated, States disappear and, with
them, the basis on which rights and obligations exist within the interna-
tional community. How might the problem be approached?

Courts, whether international or national, have not had to deal with
the legal implications of actions which could annihilate mankind. Yet in

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neither system should there be difficulty in finding an answer; both sys-
tems must look to the juridical foundations on which they rest. What do
these suggest?

In his critical study of history, Ibn Khaldiin referred to “the explana-
tion that laws have their reason in the purposes they are to serve”. Con-
tinuing, he noted that “the jurists mention that . . . injustice invites the
destruction of civilization with the necessary consequence that the species
will be destroyed”, and that the laws “are based upon the effort to pre-
serve civilization”?. Thus, the preservation of the human species and of
civilization constitutes the ultimate purpose of a legal system. In my
opinion, that purpose also belongs to international law, as this is under-
stood today.

This conclusion is not at variance with the Charter of the United
Nations and the Statute of the Court, by which the Court is bound. The
first preambular paragraph of the Charter recorded that “the Peoples of
the United Nations” were “[djetermined to save succeeding generations
from the scourge of war, which twice in our lifetime has brought untold
sorrow to mankind . . .”. A world free of conflict was not guaranteed;
but, read in the light of that and other statements in the Charter,
Article 9 of the Statute shows that the Court was intended to serve a
civilized society. A civilized society is not one that knowingly destroys
itself, or knowingly allows itself to be destroyed. A world without people
is a world without States. The Charter did not stipulate that mankind
would continue, but it at least assumed that it would; and the assumption
was not the less fundamental for being implicit.

3. The Use of Nuclear Weapons Is Unacceptable
to the International Community

It is necessary to consider the character of nuclear weapons. It was said
on the part of the proponents of legality that there are “tactical”, “battle-
field”, “theatre” or “clean” nuclear weapons which are no more destruc-
tive than certain conventional weapons. Supposing that this is so, then ex
hypothesi the use of nuclear weapons of this kind would be as lawful as
the use of conventional weapons. It was in issue, however, whether the
material before the Court justified that hypothesis, the argument of the
proponents of illegality being that the use of any nuclear weapon, even if
directed against a lone nuclear submarine at sea or against an isolated
military target in the desert, results in the emission of radiation and
nuclear fall-out and carries the risk of triggering a chain of events which
could lead to the annihilation of the human species. The eleventh pre-
ambular paragraph of the 1968 NPT, which was extended “indefinitely” in
1995, records that the States parties desired “the liquidation of all their

3 Tbn Khaldûn, The Mugaddimah, An Introduction to History, trans. Franz Rosenthal,
edited and abridged by N. J. Dawood, 1981, p. 40.

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existing stockpiles, and the elimination from national arsenals of nuclear
weapons . . .”. Presumably the elimination so foreshadowed compre-
hended all “nuclear weapons” and, therefore, “tactical”, “battlefield”,
“theatre” or “clean” nuclear weapons also. The parties to the NPT drew
no distinction. On the material before it, the Court could feel less than
satisfied that the suggested exceptions exist.

The basic facts underlying the resolutions of the General Assembly as
to the nature of a nuclear war, at least a full-scale one, are difficult to
controvert. Since 1983 the technology has advanced, but the position
even at that stage was put thus by the Secretary-General of the United
Nations, Mr. Javier Pérez de Cuéllar:

“The world’s stockpile of nuclear weapons today is equivalent to
16 billion tons of TNT. As against this, the entire devastation of the
Second World War was caused by the expenditure of no more than
3 million tons of munitions. In other words, we possess a destructive
capacity of more than 5,000 times what caused 40 to 50 million
deaths not too long ago. It should suffice to kill every man, woman
and child 10 times over.”

Thus, nuclear weapons are not just another type of explosive weapons,
only occupying a higher position on the same scale: their destructive
power is exponentially greater. Apart from blast and heat, the radiation
effects over time are devastating. To classify these effects as being merely
a by-product is not to the point; they can be just as extensive as, if not
more so than, those immediately produced by blast and heat. They cause
unspeakable sickness followed by painful death, affect the genetic code,
damage the unborn, and can render the earth uninhabitable. These
extended effects may not have military value for the user, but this does
not lessen their gravity or the fact that they result from the use of nuclear
weapons. This being the case, it is not relevant for present purposes to
consider whether the injury produced is a by-product or secondary effect
of such use.

Nor is it always a case of the effects being immediately inflicted but
manifesting their consequences in later ailments; nuclear fallout may
exert an impact on people long after the explosion, causing fresh injury to
them in the course of time, including injury to future generations. The

+ Javier Pérez de Cuéllar, Statement at the University of Pennsylvania, 24 March 1983.
in Disarmament, Vol. VE No. 1, p. 91.

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weapon continues to strike for years after the initial blow, thus presenting
the disturbing and unique portrait of war being waged by a present gen-
eration on future ones — on future ones with which its successors could
well be at peace.

The first and only military use of nuclear weapons which has so far
been made took place at Hiroshima on 6 August 1945 and at Nagasaki
on 9 August 1945. A month later, the International Committee of the
Red Cross (“ICRC”) considered the implications of the use of newly
developed weapons. In a circular letter to national Red Cross commit-
tees, dated 5 September 1945 and signed by Mr. Max Huber as acting
President, the ICRC wrote this:

“Totalitarian war has brought new technics into being. Does this
mean that we must accept that the individual will no longer be pro-
tected by the law and will henceforth only be seen as a mere element of
collectivities involved in a conflict? This would imply the collapse of
the principles underlying international law, which aims to promote
the physical and spiritual protection of the individual. Even in time
of war, a law of a strictly egotistical and utilitarian nature, only
inspired by fortuitous interests, could never offer lasting security. If
warfare fails to accept the value and dignity of the human being, it
will proceed irresistibly to destructions without limit, as the spirit of
mankind, which is taking possession of the forces of the universe,
seems by its creations to be accelerating that devastating impetus.”
[Translation by the Registry. ]

Do the rules stand set aside? Or do they still apply to protect the indi-
vidual? If they do not, the seizure by man of the forces of the universe
propels war irresistibly and progressively in the direction of destruction
without limit, including the extinction of the human species. In time, the
nuclear-weapon States (“NWS”) and most of the non-nuclear-weapon
States (“NNWS”) would subscribe to statements acknowledging the sub-
stance of this result.

The concerns raised by the ICRC did not go unechoed. As was pointed
out by several States, four months later the General Assembly unani-
mously adopted a resolution by which it established a commission charged
with the responsibility of making “specific proposals ... /c) for the elimi-
nation from national armaments of atomic weapons and of all other major
weapons adaptable to mass destruction” (General Assembly resolution 1 (I),
para. 5, of 24 January 1946). It is too limited a view to restrict the sig-
nificance of the resolution to the mere establishment of the commission;
the bases on which the commission was established are also important.

In line with this, on 20 September 1961 an agreement, known as “The
McCloy-Zorin Accords”, was signed by representatives of the United
States of America and the Soviet Union, the two leading NWS. The
Accords recommended eight principles as guidance for disarmament
negotiations. The fifth principle read: “Elimination of all stockpiles of

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nuclear, chemical, bacteriological, and other weapons of mass destruc-
tion, and cessation of the production of such weapons.” On 20 Decem-
ber 1961 that agreement was unanimously welcomed by the General
Assembly on the joint proposition of those two States (General Assembly
resolution 1722 (XVI) of 20 December 1961).

The first preamble to the 1968 NPT refers to “the devastation that
would be visited upon all mankind by a nuclear war .. .”. The preamble
to the NPT (inclusive of that statement) was reaffirmed in the first para-
graph of the preamble to Decision No. 2 adopted by the 1995 Review
and Extension Conference of the Parties to the Treaty on the Non-Pro-
liferation of Nuclear Weapons. The overwhelming majority of States are
parties to these instruments.

The Final Document adopted by consensus in 1978 by the Tenth Spe-
cial Session of the General Assembly (on the subject of disarmament)
opened with these words: “Alarmed by the threat to the very survival of
mankind posed by the existence of nuclear weapons and the continuing
arms race... .”. Paragraph 11 stated:

“Mankind today is confronted with an unprecedented threat of
self-extinction arising from the massive and competitive accumula-
tion of the most destructive weapons ever produced. Existing
arsenals of nuclear weapons alone are more than sufficient to destroy
all life on earth . . ”

Paragraph 47 of the Final Document noted that “[nJuclear weapons pose
the greatest danger to mankind and to the survival of civilization”. All of
these words, having been adopted by consensus, may be regarded as
having been uttered with the united voice of the international commu-
nity.

Important regional agreements also testify to the character of nuclear
weapons. See the Agreement of Paris of 23 October 1954 on the entry of
the Federal Republic of Germany into the North Atlantic Treaty Organi-
zation, Article 1 (a) of Annex II to Protocol No. III on the Control of
Armaments, indicating that nuclear weapons are weapons of mass
destruction. The preamble to the 1967 Treaty of Tlatelolco, Additional
Protocol IT of which was signed and ratified by the five NWS, declared
that the Parties were convinced

“That the incalculable destructive power of nuclear weapons has
made it imperative that the legal prohibition of war should be
strictly observed in practice if the survival of civilization and of man-
kind itself is to be assured.

That nuclear weapons, whose terrible effects are suffered, indis-
criminately and inexorably, by military forces and civilian popula-
tion alike, constitute, through the persistence of the radioactivity
they release, an attack on the integrity of the human species and ulti-
mately may even render the whole earth uninhabitable.”

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The first two preambular paragraphs of the 1985 South Pacific Nuclear
Free Zone Treaty (the Treaty of Rarotonga), Protocol 2 of which has
been signed and ratified by two of the five NWS and signed by the
remaining three, likewise recorded that the parties were

“Gravely concerned that the continuing nuclear arms race presents
the risk of nuclear war which would have devastating consequences
for all people;

Convinced that all countries have an obligation to make every
effort to achieve the goal of eliminating nuclear weapons, the terror
which they hold for humankind and the threat which they pose to
life on earth.”

The Court has also referred to the more recently signed treaties on
nuclear-free zones relating to South-East Asia and Africa.

A position similar in principle to those mentioned above was taken in
agreements between two of the NWS. In the preamble to a 1971 Agree-
ment on Measures to Reduce the Risk of Outbreak of Nuclear War, the
United States of America and the Soviet Union stated that they were
“Ttjaking into account the devastating consequences that nuclear war
would have for all mankind”. The substance of that statement was
repeated in later agreements between those States, namely, in the 1972
Anti-Ballistic Missile Treaty, in a 1973 Agreement on the Prevention of
Nuclear War, in a 1979 Treaty on the Limitation of Strategic Offensive
Arms, and in the 1987 Intermediate-Range and Shorter-Range Missiles
Treaty.

It was argued by some States that the purpose of possessing nuclear
weapons is, paradoxically, to ensure that they are never used, and that
this is shown by the circumstance that it has been possible to keep the
peace, as among the NWS, during the last 50 years through policies of
nuclear deterrence. Other States doubted the existence of the suggested
link of causation, attributing that result to luck or chance, pointing to
occasions when such weapons were nearly used, and adverting to a
number of wars and other situations of armed conflict which have in fact
occurred outside of the territories of the NWS. Assuming, however, that
such a link of causation can be shown, a question which remains is why
should policies of nuclear deterrence have kept the peace as among the
NWS. A reasonable answer is that each NWS itself recognized that it
faced the risk of national destruction. The record before the Court indi-
cates that that destruction will not stop at the frontiers of warring States,
but can extend to encompass the obliteration of the human species.

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Other weapons are also members of the category of weapons of mass
destruction to which nuclear weapons belong. However, nuclear weapons
are distinguishable in important ways from all other weapons, including
other members of that category. In the words of the Court:

“[Nluclear weapons are explosive devices whose energy results
from the fusion or fission of the atom. By its very nature, that pro-
cess, in nuclear weapons as they exist today, releases not only immense
quantities of heat and energy, but also powerful and prolonged
radiation. According to the material before the Court, the first two
causes of damage are vastly more powerful than the damage caused
by other weapons, while the phenomenon of radiation is said to be
peculiar to nuclear weapons. These characteristics render the nuclear
weapon potentiaily catastrophic. The destructive power of nuclear
weapons cannot be contained in either space or time. They have the
potential to destroy all civilization and the entire ecosystem of the
planet.” (Advisory Opinion, para. 35.)

And a little later:

“[I]t is imperative for the Court to take account of the unique
characteristics of nuclear weapons, and in particular their destruc-
tive capacity, their capacity to cause untold human suffering, and
their ability to cause damage to generations to come.” (Zbid.,
para. 36.)

Even if it is possible that, scientifically considered, other weapons of
mass destruction, such as biological and chemical weapons, can also
annihilate mankind, the question is not merely whether a weapon can do
so, but whether the evidence shows that the international community
considers that it can. The evidence was not specifically directed to this
purpose in the case of other weapons; in the case nuclear weapons, it
was, however, directed to that purpose and, the Court could find, suc-
cessfully so directed. Similar remarks would apply to other weapons,
such as flame-throwers and napalm, which, though not capable of anni-
hilating mankind, can undoubtedly cause shocking harm. Unlike the case
of nuclear weapons, there was no material before the Court to suggest
that, however appalling may be the effects produced by the use of such
other weapons, the international community was on record as consider-
ing their use to be repugnant to its conscience.

It may be added that, once it is shown that the use of a weapon could
annihilate mankind, its repugnance to the conscience of the international
community is not materially diminished by showing that it need not have
that result in every case; it is not reasonable to expect that the conscience
of the international community will, both strangely and impossibly, wait

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on the event to see if the result of any particular use is the destruction of
the human species. The operative consideration is the risk of annihila-
tion. That result may not ensue in all cases, but the risk that 1t can inheres
in every case. The risk may be greater in some cases, less in others; but
it is always present in sufficient measure to render the use of nuclear
weapons unacceptable to the international community in all cases. In my
view, the answer to the question of repugnance to the conscience of the
international community governs throughout.

In sum, the Court could conclude, in accordance with its findings in
paragraph 35 of its Advisory Opinion, that the international community
as a whole considers that nuclear weapons are not merely weapons of
mass destruction, but that there is a clear and palpable risk that their use
could accomplish the destruction of mankind, with the result that any
such use would be repugnant to the conscience of the community. What
legal consequences follow will be examined later.

4. Neutrality

A question was raised as to whether damage resulting to a neutral
State from use of nuclear weapons in the territory of a belligerent State
is a violation of the former’s neutrality. I accept the affirmative answer
suggested in Nauru’s statement in the parallel case brought by the
World Health Organization, as set out in paragraph 88 of the Court’s
Advisory Opinion. A number of incidents collected in the books does not
persuade me to take a different view.

The principle, as stated in Article 1 of Hague Convention No. 5 of
1907 Respecting the Rights and Duties of Neutral Powers and Persons
in Case of War on Land, is that “[t]he territory of neutral powers is
inviolable”. The principle has not been understood to guarantee neutral
States absolute immunity from the effects of armed conflict; the original
purpose, it is said, was to preclude military invasion or bombardment
of neutral territory, and otherwise to define complementary rights and
obligations of neutrals and belligerents.

It is difficult, however, to appreciate how these considerations can
operate to justify the use of nuclear weapons where the radiation effects
which they emit extend to the inhabitants of neutral States and cause
damage to them, their offspring, their natural resources, and possibly put
them under the necessity to leave their traditional homelands. The state-

5 See, for example, Roberto Ago, Addendum to the Eighth Report on State Responsi-
bility, Yearbook of the International Law Commission, 1980, Vol. II, Part I, pp. 35-36,
para. 50.

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ment of an inhabitant of the Marshall Islands left little to be imagined.
Considered in relation to the more dramatic catastrophe immediately
produced and the military value to the user State, these effects may be
spoken of as by-products of the main event; but, as argued above, that
classification is without legal pertinence. The “by-products” are not
remote economic or social consequences. Whether direct or indirect
effects, they result from the use of nuclear weapons, for it is a property of
such weapons that they emit radiation; their destructive effect on the
enemy is largely due to their radiation effects. Such radiation has a high
probability of transboundary penetration.

To say that these and other transboundary effects of the use of nuclear
weapons do not violate the neutrality of third States in the absence of
belligerent incursion or transboundary bombardment is to cast too heavy
a burden on the proposition that neutrality is not an absolute guarantee
of immunity to third States against all possible effects of the conduct of
hostilities. The Fifth Hague Convention of 1907 does not define inviol-
ability; nor does it say that the territory of a neutral State is violated only
by belligerent incursion or bombardment. Accepting nevertheless that the
object of the architects of the provision was to preclude military incur-
sion or bombardment of neutral territory, it seems to me that that pur-
pose, which was related to the then state of warfare, does not conclude
the question whether, in terms of the principle, “the territory of neutral
powers” is violated where that territory and its inhabitants are physically
harmed by the effects of the use elsewhere of nuclear weapons in the ways
in which it is possible for such harm to occur. The causes of the conse-
quential suffering and the suffering itself are the same as those occurring
in the zone of battle.

It was said, no doubt correctly, that no case was known in which a bel-
ligerent State had been held responsible for collateral damage in neutral
territory for lawful acts of war committed outside of that territory. It
may be recalled, however, that the possibilities of damage by nuclear fall-
out did not previously exist; because of technological limitations, damage
on neutral territory, as a practical matter, could only be committed by
incursion or bombardment, in which cases there would be acts of war
committed on the neutral territory itself. To the extent that the Trail
Smelter type of situation was likely to be a significant consequence of
acts of war, the occurrence of concrete situations in the pre-nuclear
period has not been shown to the Court. Thus, while no case may have
occurred in which a belligerent State has been held responsible for col-
lateral damage in neutral territory for lawful acts of war committed out-
side of that territory, that is decisive of the present case only if it can be
shown that there is no responsibility even where substantial physical
effects of acts of war carried out elsewhere demonstrably extend to
neutral territory. That cannot be persuasively shown; principle is against

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it. The causative act of war would have had the consequence of physically
violating the territory of the neutral State. The 1907 Hague principle that
the territory of a neutral State is inviolable would lose much of its mean-
ing if in such a case it was not considered to be breached.

5. Belligerent Reprisal

The question was argued whether, assuming that the use of nuclear
weapons was otherwise unlawful, such use might nevertheless be lawful
for the exceptional purposes of belligerent reprisal (1.e., as distinguished
from reprisals in situations other than those of armed conflict). It seems
to me, however, that there is not any necessity to examine this aspect in
an opinion devoted to showing that “the current state of international
law, and . . . the elements of fact at its disposal” did not prevent the
Court from concluding

“definitively whether the threat or use of nuclear weapons would be
lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake” (Advisory
Opinion, para. 105 (2) E).

The use of nuclear weapons in belligerent reprisal, if lawful, would be
equally open to an aggressor State and to a State acting in self-defence.
This being so, an enquiry into the lawfulness of the use of such weapons
in belligerent reprisal would not materially promote analysis of the ques-
tion whether they may be lawfully used in self-defence, this being the
question presented by the Court’s holding.

6. There Is No Non Liquet

The commentators suggest that some decisions of the Court could be
understood as implying a non liquet. It is possible that the second part of
subparagraph E of paragraph 2 of the operative paragraph of the Court’s
Advisory Opinion will be similarly interpreted. If that is the correct inter-
pretation, I respectfully differ from the position taken by the Court.

To attract the idea of a non liquet in this case, it would have to be
shown that there is a gap in the applicability of whatever may be the cor-
rect principles regulating the question as to the circumstances in which a
State may be considered as having or as not having a right to act.

If, as it is said, international law has nothing to say on the subject of
the legality of the use of nuclear weapons, this necessarily means that

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international law does not include a rule prohibiting such use. On the
received view of the “Lotus” decision, absent such a prohibitory rule,
States have a right to use nuclear weapons.

On the other hand, if that view of “Lotus” is incorrect or inadequate in
the light of subsequent changes in the international legal structure, then
the position is that States have no right to use such weapons unless inter-
national law authorizes such use. If international law has nothing to say
on the subject of the use of nuclear weapons, this necessarily means that
international law does not include a rule authorizing such use. Absent
such authorization, States do not have a right to use nuclear weapons.

It follows that, so far as this case at any rate is concerned, the principle
on which the Court acts, be it one of prohibition or one of authorization,
leaves no room unoccupied by law and consequently no space available
to be filled by the non liquet doctrine or by arguments traceable to it. The
fact that these are advisory proceedings and not contentious ones makes
no difference; the law to be applied is the same in both cases.

7. The General Assembly’s Call for a Convention

Putting aside the question of the possible law-making effect or influ-
ence of General Assembly resolutions, did its resolutions on this matter
really take the position that the use of nuclear weapons was contrary to
existing law? Arguing that that was not the position taken, some States
point to the fact that the resolutions also called for the conclusion of a
convention on the subject.

However, as the case of the Genocide Convention shows, the General
Assembly could well consider that certain conduct would be a crime
under existing law and yet call for the conclusion of a convention on the
subject. Its resolution 96 (I) of 11 December 1946, which called for the
preparation of “a draft convention on the crime of genocide”, also
affirmed “that genocide is a crime under international law . . .” It was
likewise that, in its resolution of 14 December 1978, the General Assem-
bly declared

“that

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

(b) the use of nuclear weapons should therefore be prohibited,
pending nuclear disarmament”.

It was on this basis that the resolution then passed on to mention the
future discussion of an international convention on the subject.

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A convention may be useful in focusing the attention of national
bodies on the subject, particularly in respect of any action which may
have to be taken by them; it may also be helpful in clarifying and settling
details required to implement the main principle, or more generally for
the purpose of laying down a régime for dealing with the illegality in
question. A call for a convention to prohibit a particular kind of conduct
does not necessarily imply that the conduct was not already forbidden.

A further argument is that some of the later General Assembly reso-
lutions adopted a more qualified formulation than that of earlier ones
(see paragraph 71 of the Advisory Opinion). I do not assign much weight
to this as indicative of a resiling from the position taken in earlier Gen-
eral Assembly resolutions to the effect that such use was contrary to
existing international law. The later resolutions proceeded on the basis
that that position had already and sufficiently been taken; they therefore
contented themselves with simply recalling the primary resolution on the
subject, namely, resolution 1653 (XVI) of 1961. Thus, while the language
employed in the resolutions has varied from time to time, it is to be
observed that in resolution 47/53 of 9 December 1992 the General Assem-
bly reaffirmed “that the use of nuclear weapons would be a violation of
the Charter of the United Nations and a crime against humanity, as
declared in its resolutions 1653 (XVI) of 24 November 1961”, and other
cited resolutions.

The General Assembly’s resolutions may reasonably be interpreted as
taking the position that the threat or use of nuclear weapons was forbid-
den under pre-existing international law. The question is whether there is
a sufficiency of fact and law to enable the Court to decide whether the
position so taken by the General Assembly was correct. To the giving of
an answer I proceed below.

PART II. WHETHER THE CourT CouLD Hop THAT STATES HAVE A

RIGHT TO USE NUCLEAR WEAPONS HAVING REGARD TO THE GENERAL

PRINCIPLES WHICH DETERMINE WHEN A STATE Is TO BE CONSIDERED AS
HAVING A POWER

The General Assembly’s question presents the Court, as a World
Court, with a dilemma: to hold that States have a right to use nuclear
weapons is to affirm that they have a right to embark on a course of con-
duct which could result in the extinction of civilization, and indeed in the
dissolution of all forms of life on the planet, both flora and fauna. On the
other hand, to deny the existence of that right may seem to contradict the
“Lotus” principle, relied on by some States, to the effect that States have
a sovereign right to do whatever is not prohibited under international

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law, in this respect 1t being said that there is no principle of international
law which prohibits the use of such weapons. The dilemma® was the sub-
ject of close debate. In my view, it was open to the Court to consider four
possible solutions.

*

The first possible solution proceeds on the basis of the “Lotus” prin-
ciple that a State has a right to do whatever is not prohibited, but it
argues that an act which could lead to the extinction of mankind would
necessarily involve the destruction of neutral States. This being so, the act
cannot be justified under the rubric of self-defence. Therefore, even if,
quod non, it is otherwise admissible under the jus in bello, the Court could
hold that it is not covered by the jus ad bellum and is prohibited under
Article 2, paragraph 4, of the Charter. The question of neutrality is dealt
with in Part I, Section 4, above.

*

’

The second possible solution also proceeds on the basis of the “Lotus’
principle. However, it argues that, due effect being given to the Charter
and the Statute of the Court thereto annexed, by both of which the Court
is bound, these instruments are not consistent with a State having a right
to do an act which would defeat their fundamental assumption that civi-
lization and mankind would continue: the Court could hold that, by
operation of law, any such inconsistent act stands prohibited by the
Charter.

Éd
The third possible solution also proceeds on the basis of the “Lotus”
principle that a State has a right to do whatever is not prohibited under
international law, but (as anticipated in Part I, Section 2, above) it argues
that, even in the absence of a prohibition, that residual right does not
extend to the doing of things which, by reason of their essential nature,
cannot form the subject of a right, such as actions which could destroy
mankind and civilization and thus bring to an end the basis on which

6 The dilemma recalls that which confronted the learned judges of Persia when, asked
by King Cambyses whether he could marry his sister, they made prudent answer “that
though they could discover no law which allowed brother to marry sister, there was un-
doubtedly a law which permitted the king of Persia to do what he pleased”. See Herodo-
tus, The Histories, trans. Aubrey de Sélincourt, Penguin Books, 1959, p. 187. So here, an
affirmative answer to the General Assembly’s question would mean that, while the Court
could discover no law allowing a State to put the planet to death, there is undoubtedly
a law which permits the State to accomplish the same result through an exercise of its
sovereign powers.

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States exist and in turn the basis on which rights and obligations exist
within the international community.

There is not any convincing ground for the view that the “Lotus”
Court moved off on a supposition that States have an absolute sover-
eignty which would entitle them to do anything however horrid or repug-
nant to the sense of the international community, provided that the doing
of it could not be shown to be prohibited under international law. The
idea of internal supremacy associated with the concept of sovereignty in
municipal law is not neatly applicable when that concept is transposed to
the international plane. The existence of a number of sovereignties side
by side places limits on the freedom of each State to act as if the others
did not exist. These limits define an objective structural framework
within which sovereignty must necessarily exist’; the framework, and its
defining limits, are implicit in the reference in “Lotus” to “co-existing
independent communities” (P.C.I.J., Series A, No. 10, p. 18), an idea
subsequently improved on by the Charter, a noticeable emphasis on co-
operation having been added.

Thus, however far-reaching may be the rights conferred by sover-
eignty, those rights cannot extend beyond the framework within which
sovereignty itself exists; in particular, they cannot violate the framework.
The framework shuts out the right of a State to embark on a course of
action which would dismantle the basis of the framework by putting an
end to civilization and annihilating mankind. It is not that a State is pro-
hibited from exercising a right which, but for the prohibition, it would
have; a State can have no such right to begin with.

So a prior question in this case is this: even if there is no prohibition,
is there anything in the sovereignty of a State which would entitle it to
embark on a course of action which could effectively wipe out the exis-
tence of all States by ending civilization and annihilating mankind? An
affirmative answer is not reasonable; that sovereignty could not include
such a right is suggested by the fact that the acting State would be one of
what the Permanent Court of International Justice, in the language of the
times, referred to as “co-existing independent communities”, with a con-
sequential duty to respect the sovereignty of other States. It is difficult for
the Court to uphold a proposition that, absent a prohibition, a State has

7 The idea is evoked by the following remark of one writer:

“For some authors, the existence of a corpus juris governing a decentralized, ‘class-
less’ society partakes of a miracle. I would rather say that it partakes of necessity. It
is not in spite of, but on account of the heterogeneity of States in a society of juxta-
position that international law was brought into being and has developed. If inter-
national law did not exist, it would have to be invented.” {Translation by the
Registry.] Prosper. Weil, “Le droit international en quéte de son identité. Cours
général de droit international public”, Recueil des cours de l’Académie de droit inter-
national de La Haye, Vol. 237 (1992-VD, p. 36.

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a right in law to act in ways which could deprive the sovereignty of all
other States of meaning.

*

The fourth possible solution is this: if the “Lotus” principle leaves a
State free to embark on any action whatsoever provided it is not prohib-
ited — a proposition strongly supported by some States and as strenu-
ously opposed by others —— then, for the purposes of these proceedings at
any rate, that case may be distinguished. The case did not relate to any
act which could bring civilization to an end and annihilate mankind. It
does not preclude a holding that there is no right to do such an act unless
the act is one which is authorized under international law.

This fourth solution calls for fuller consideration than the others. It
will be necessary to take account of three developments which bear on
the extent to which modes of legal thought originating in an earlier age
are applicable in today’s world.

First, as set out in Article 2, paragraph 4, of the Charter, and following
on earlier developments, the right of recourse to force has come under a
major restriction. This is a significant movement away from the heavy
emphasis on individual sovereignty which marked international society
as it earlier existed. The point was stressed by the Philippines and Samoa.

Second, there have been important developments concerning the char-
acter of the international community and of inter-State relations. While
the number of States has increased, international relations have thickened;
the world has grown closer. In the process, there has been a discern-
ible movement from a select society of States to a universal] interna-
tional community. Thus it was that in 1984 a Chamber of the Court
could speak of “the co-existence and vital co-operation of the members
of the international community” (Delimitation of the Maritime Boundary
in the Gulf of Maine Area, LC.J. Reports 1984, p. 299, para. 111). The
earlier legal outlook has not lost all relevance. It is reasonably clear, how-
ever, that the previous stress on the individual sovereignty of each State
considered as hortus conclusus has been inclining before a new awareness
of the responsibility of each State as a member of a more cohesive and
comprehensive system based on co-operation and interdependence.

These new developments have in part been consecrated by the Charter,
in part set in motion by it. Their effect and direction were noticed by
Judge Alvarez (Conditions of Admission of a State to Membership in the
United Nations (Article 4 of Charter), 1948, I. C.J. Reports 1947-1948,
p. 68, separate opinion). Doubts about his plea for a new international
law did not obscure the fact that he was not alone in his central theme.
Other judges observed that it was

“an undeniable fact that the tendency of ail international activities in

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recent times has been towards the promotion of the common welfare
of the international community with a corresponding restriction of
the sovereign power of individual States” (Reservations to the Con-
vention on the Prevention and Punishment of the Crime of Genocide,
LC J. Reports 1951, p. 46, joint dissenting opinion of Judges Guer-
rero, Sir Arnold McNair, Read and Hsu Mo).

Though elsewhere critical of “the theory which reduces the rights of
States to competences assigned and portioned by international law’’$,
Judge De Visscher, for his part, observed that “[t]he Charter has created
an international system”, and added:

“[In the interpretation of a great international constitutional
instrument, like the United Nations Charter, the individualistic con-
cepts which are generally adequate in the interpretation of ordinary
treaties, do not suffice.” ({nternational Status of South West Africa,
LC J. Reports 1950, p. 189, dissenting opinion.)

The Charter did not, of course, establish anything like world govern-
ment; but it did organize international relations on the basis of an “inter-
national system”; and fundamental to that system was an assumption
that the human species and its civilization would continue.

But, third, there have been developments working in the opposite
direction, in the sense that it now, and for the first time, lies within
the power of some States to destroy the entire system, and all mankind
with it.

What lesson is to be drawn from these developments, the third being
opposed to the first and the second?

The notions of sovereignty and independence which the “Lotus” Court
had in mind did not evolve in a context which visualized the possibility
that a single State could possess the capability of wiping out the practical
existence both of itself and of all other States. The Court was dealing
with a case of collision at sea and the criminal jurisdiction of States in
relation thereto —- scarcely an earth-shaking issue. Had its mind been
directed to the possibility of the planet being destroyed by a minority of
warring States, it is not likely that it would have left the position which it
took without qualification. No more than this Court would have done
when in 1986 it said that

“in international law there are no rules, other than such rules as may
be accepted by the State concerned, by treaty or otherwise, whereby
the level of armaments of a sovereign State can be limited, and this
principle is valid for all States without exception” (Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v.
United States of America), I.C.J. Reports 1986, p. 135, para. 269).

8 Charles De Visscher, Theory and Reality in Public International Law, revised edition,
trans. P. E. Corbett, 1968, p. 104.

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The situation did not relate to the use of nuclear weapons; the Court’s
statement was directed to the right of a State to possess a level of arma-
ments about the use of which no issue of legality had been raised.
Caution needs to be exercised in extending the meaning of a judicial
dictum to a field which was not in contemplation. The fact that he was
dissenting does not diminish the value of Judge Badawi Pasha’s reminder
of problems which could arise

“when a rule is removed from the framework in which it was formed,
to another of different dimensions, to which it cannot adapt itself as
easily as it did to its proper setting” (Reparation for Injuries Suffered
in the Service of the United Nations I.C.J. Reports 1949, p. 215).

It is worth remembering, too, that, in his dissenting opinion in “Lotus”,
Judge Finlay understood the compromis to present an issue not as to
whether there was “a rule forbidding” the prosecution, but as to “whether
the principles of international law authorize” it (P.CIJ., Series A,
No. 10, p. 52). In the early post-Charter period, Judge Alvarez specifi-
cally challenged the principle that States have “the right . . . to do
everything which is not expressly forbidden by international law”. In his
view, “This principle, formerly correct, in the days of absolute sover-
eignty, is no longer so at the present day.” (Fisheries, I. C.J. Reports
1951, p. 152, separate opinion.)

I do not consider now whether so general a challenge is maintainable.
This is because it appears to me that there is a particular area in which
“Lotus” is distinguishable. On what point does this limited distinction
turn? It is this. Whichever way the issue in “Lotus” was determined, the
Court’s determination could be accommodated within the framework of
an international society consisting of “co-existing independent communi-
ties”. Not so as regards the issue whether there is a right to use nuclear
weapons. Were the Court to uphold such a right, it would be upholding
a tight which could be used to destroy that framework and which could
not therefore be accommodated within it. However extensive might be
the powers available to a State, there is not any basis for supposing that
the Permanent Court of International Justice considered that, in the
absence of a prohibition, they included powers the exercise of which
could extinguish civilization and annihilate mankind and thus destroy the
framework of the international community; powers of this kind were not
in issue. To the extent that a course of action could be followed by so
apocalyptic a consequence, the case is distinguishable; it does not stand
in the way of this Court holding that States do not have a right to
embark on such a course of action unless, which is improbable, it can be
shown that the action is authorized under international law.

It is the case that the formulations (and in particular the title) employed
in various draft conventions appended to a number of General Assembly
resolutions on the subject of nuclear weapons were cast in the termino-
logy of prohibition. However, assuming that the correct theory is that

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authorization under international law has to be shown for the use of
nuclear weapons, this would not prevent States from concluding a formal
prohibitory treaty; the fact that the draft conventions were directed to
achieving a prohibition does not invalidate the view that authorization
has to be shown.

The terminology of prohibition is also to be found in the reasoning of
the Tokyo District Court in Shimoda v. The State?. I do not consider
that much can be made of this. The Tokyo District Court, being satisfied
that the dropping of the bombs was prohibited under international law,
was not called upon to consider whether, if there was no prohibition, it
was necessary for an authorization to be shown; the received statement
of the law being, in its view, sufficient for a holding of unlawfulness, a
sense of judicial economy could make it unnecessary for the Court to
enquire whether the same holding could be sustained on another basis.

Can the required authorization be shown in this case? It seems not.
The Court is a creature of the Charter and the Statute. If it finds, as it
should, that both the Charter and the Statute posit the continued exis-
tence of civilization and of mankind, it is difficult to see how it can avoid
a holding that international law does not authorize a State to embark on
a course of action which could ensue in the destruction of civilization and
the annihilation of mankind.

PART III. WHETHER THE COURT COULD HOLD THAT THE USE OF
NUCLEAR WEAPONS Is PROHIBITED BY HUMANITARIAN LAW

I propose now to consider the question of the legality of the use of
nuclear weapons from the standpoint of some of the leading principles of
humanitarian law (a term now generally used) which were in force at the
commencement of the nuclear age. These principles relate to the right to
choose, means of warfare, the unnecessary suffering principle, and the
Martens Clause.

1. The Methods or Means of Warfare

This customary international law principle is restated in Article 35, para-
graph 1, of Additional Protocol I of 1977 to the Geneva Conventions of
1949 as follows: “In any armed conflict, the right of the Parties to the
conflict to choose methods or means of warfare is not unlimited.” The
principle has come under pressure from the continuing emergence of
weapons with increasing destructive power, the tendency being to accept
higher levels of destructiveness with growing powers of destruction. Its
value would be further eroded if, as it is sometimes argued, ail it does is
to leave open the possibility that a weapon may be banned under some

9 The Japanese Annual of International Law, No. 8, 1964, p. 235.

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law other than that setting out the principle itself; but that argument can-
not be right since, if it is, the principle would not be laying down a norm
of State conduct and could not therefore be called a principle of interna-
tional law. Paragraph 77 of the Court’s Advisory Opinion recognizes that
the principle is one of international law; it is not meaningless. Nor is it
spent; its continuing existence was attested to by General Assembly reso-
lution 2444 (XXIII), adopted unanimously on 19 December 1968. By
that resolution the General Assembly affirmed

“resolution XXVIII of the XXth International Conference of the
Red Cross held at Vienna in 1965, which laid down, inter alia, the
following principles for observance by all governmental and other
authorities responsible for action in armed conflicts:

(a) that the right of the parties to a conflict to adopt means of
injuring the enemy is not unlimited;

(6) that it is prohibited to launch attacks against the civilian popu-
lations as such;

(c) that distinction must be made at all times between persons
taking part in the hostilities and members of the civilian
population to the effect that the latter be spared as much as
possible.”

As is suggested by subparagraph (a), the principle limiting the right to
choose means of warfare subsists. Notwithstanding an impression of
non-use, it is capable of operation. In what way? The principle may be
interpreted as intended to exclude the right to choose some weapons.
What these might be was not specified, and understandably so. Yet, if, as
it seems, the principle can apply to bar the use of some weapons, it is
difficult to imagine how it could fail to bar the use of nuclear weapons;
difficulties which may exist in applying the rule in less obvious cases dis-
appear as more manifest ones appear. But, of course, imagination is not
enough; a juridical course of reasoning has to be shown. How?

A useful beginning is to note that what is in issue is not the existence of
the principle, but its application in a particular case. Its application does
not require proof of the coming into being of an opinio juris prohibiting
the use of the particular weapon; if that were so, one would be in the
strange presence of a principle which could not be applied without proof
of an opinio juris to support each application.

But how can the principle apply in the absence of a stated criterion? If
the principle can operate to prohibit the use of some means of warfare, it
necessarily implies that there is a criterion on the basis of which it can be
determined whether a particular means is prohibited. What can that
implied criterion be? As seems to be recognized by the Court, humani-

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tarian considerations are admissible in the interpretation of the law of
armed conflict (see paragraphs 86 and 92 of the Court’s Advisory Opin-
ion). Drawing on those considerations, and taking an approach based
on the principle of effectiveness, it is reasonable to conclude that the cri-
terion implied by the principle in question is set by considering whether
the use of the particular weapon is acceptable to the sense of the inter-
national community; it is difficult to see how there could be a right to
choose a means of warfare the use of which is repugnant to the sense of
the international community.

In relation to some weapons, it may be difficult to establish, with evi-
dential completeness, what is the sense of the international community.
But the use of nuclear weapons falls, as it were, at the broad end of a
range of possibilities, where difficulties of that kind evaporate. Unlike the
case of conventional weapons, the use of nuclear weapons can result in
the annihilation of mankind and of civilization. As it has been remarked,
if all the explosive devices used throughout the world since the invention
of gunpowder were to detonate at the same time, they could not result in
the destruction of civilization; this could happen if recourse were made to
the use of nuclear weapons, and with many to spare. The principle limit-
ing the right to choose means of warfare assumed that, whatever might
be the means of warfare lawfully used, it would continue to be possible
for war to be waged on a civilized basis in future. Thus, however free a
State may be in its choice of means, that freedom encounters a limiting
factor when the use of a particular type of weapon could ensue in the
destruction of civilization.

It may be added that, in judging of the admissibility of a particular
means of warfare, it is necessary, in my opinion, to consider what the
means can do in the ordinary course of warfare, even if it may not do it
in all circumstances. A conclusion as to what nuclear weapons can do in
the ordinary course of warfare is not speculative; it is a finding of fact. In
advisory proceedings, the Court can make necessary determinations of
fact (Legal Consequences for States of the Continued Presence of South
Africa in Namibia (South West Africa) notwithstanding Security Council
Resolution 276 (1970), I.C.J. Reports 1971, p. 27). For the reasons
given, there is no difficulty in making one in this case.

In making a finding as to what is the sense of the international com-
munity, it is of course essential for the Court to consider the views held
by States, provided that, for the reasons given above, there is no slippage
into an assumption that, so far as concerns the particular principle in
question, it is necessary to establish an opinio juris supportive of the
existence of a specific rule prohibiting the use of nuclear weapons.

The views of States are available. The first General Assembly resolu-
tion, which was unanimously adopted on 24 January 1946, bears the
interpretation that the General Assembly considered that the use of

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nuclear weapons is unacceptable to the international community; it is
referred to above. Also there are the 1968 NPT and associated arrange-
ments, dealt with more fully below. The Court may interpret these as
amounting to a statement made both by the NWS and the NNWS to the
effect that the actual use of nuclear weapons would be unacceptable to
the international community, and that it is for this reason that efforts
should be made to contain their spread under arrangements which com-
mitted all parties to work, in good faith, towards their final elimination.
If the actual use of nuclear weapons is acceptable to the international
community, it is difficult to perceive any credible basis for an arrange-
ment which would limit the right to use them to some States, and more
particularly if the latter could in some circumstances exercise that right
against States not enjoying that exclusive right.

In the year following the conclusion of the NPT, the Institute of Inter-
national Law, at its 1969 session in Edinburgh, had occasion to note that
“existing international law prohibits the use of all weapons” (nuclear
weapons being understood to be included) “which, by their nature, affect
indiscriminately both military objectives and non-military objects, or
both armed forces and civilian population”. Whatever may be said of
other such weapons, that view, expressed with near unanimity, is helpful
not only for its high professional value, but also for its independent
assessment of the unacceptability to the international community of the
use of nuclear weapons. That assessment accurately reflected the basis on
which the NPT arrangements had been concluded in the preceding year.

Other weapons share with nuclear weapons membership of the cat-
egory of weapons of mass destruction. As mentioned above, however, it
is open to the Court to take the view that the juridical criterion is not
simply how destructive a weapon is, but whether its destructiveness is
such as to cause the weapon to be considered by the international com-
munity to be unacceptable to it. The material before the Court (some.of
which was examined in Part I, Section 3, above) is sufficient to enable the
Court to conclude that, in the case of nuclear weapons, the revulsion of
the international community is an established fact. Thus, the legal con-
sequences in the specific case of nuclear weapons need not be the same
for other weapons of mass destruction not already banned by treaty.

In Shimoda v. The State the plaintiffs’ claims were dismissed on
grounds not now material; the case remains the only judicial decision,
national or international, in the field. It was decided by the Tokyo Dis-
trict Court on 7 December 1963. Though not of course binding, it ranks
as a judicial decision under Article 38, paragraph 1 (d), of the Statute of
the Court; it qualifies for consideration. A judicial conclusion different

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from that reached by the Tokyo District Court would need to explain
why the reasoning of that Court was not acceptable.

The Tokyo District Court was deliberating over the proposition (based
on expert legal opinion) “that the means which give unnecessary pain in
war and inhumane means are prohibited as means of injuring the
enemy” !°, The proposition reflected two grounds invoked by Japan in its
Note of protest of 10 August 1945, in which it said:

“It is a fundamental principle of international law in time of war
that a belligerent has not an unlimited right in choosing the means of
injuring the enemy, and should not use such weapons, projectiles,
and other material as cause unnecessary pain; and these are each
expressly stipulated in the annex of the Convention respecting the
Laws and Customs of War on Land and articles 22 and 23 (e) of the
Regulations respecting the Laws and Customs of War on Land.” !!

Article 22 of those Regulations concerned the right to adopt means of
injuring the enemy, while Article 23 (e) concerned the unnecessary suf-
fering principle.

The Tokyo District Court’s reasoning dealt with both branches of the
proposition before it, on an interrelated basis. It accepted that

“mternational law respecting war is not formed only by humane feel-
ings, but it has as its basis both military necessity and efficiency and
humane feelings, and is formed by weighing these two factors” !2.

Consequently,

“however great the inhumane result of a weapon may be, the use of
the weapon is not prohibited by international law, if it has a great
military efficiency” }°.

Nevertheless, the Tokyo District Court thought that it could

“safely see that besides poison, poison gas and bacterium the use of
the means of injuring the enemy which causes at least the same or
more injury is prohibited by international law” '*.

The Tokyo District Court confined itself to the issue whether the par-
ticular use of atomic weapons at Hiroshima and Nagasaki was lawful,

10 The Japanese Annual of International Law, No. 8, 1964, p. 240.
11 Jhid., p. 252.

2 Thid., p. 240.

15 Ibid., p. 241.

4 Ibid.

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noticing but not deciding “an important and very difficult question”,
namely, “whether or not an atomic bomb having such a character and
effect is a weapon which is permitted in international law as a so-called
nuclear weapon...” >, Nevertheless, it is clear that in deciding the former
issue, relating to the particular use, the Court’s reasoning flowed from
its consideration of the latter issue, relating to the legal status of such
weapons. Thus, although the Tokyo District Court did not so decide,
it followed from its reasoning that nuclear weapons would not be an
admissible means of warfare. It is the reasoning of the Tokyo District
Court that this Court is concerned with.

The material before this Court is sufficient to enable it to make a find-
ing of fact that the actual use of nuclear weapons is not acceptable to the
sense of the international community; on the basis of such a finding of
fact, it would lie within its judicial mission to hold that such weapons are
not admissible “means of warfare” within the meaning of the law.

2. Unnecessary Suffering

Then as to the customary international law prohibition of superfluous
and unnecessary suffering. As restated in Article 35, paragraph 2, of the
1977 Additional Protocol I to the 1949 Geneva Conventions, the prin-
ciple reads:

“It is prohibited to employ weapons, projectiles and material and
methods of warfare of a nature to cause superfluous injury or un-
necessary suffering.”

The case of a weapon, such as the “dum-dum” bullet !$, which is deliber-
ately crafted so as to cause unnecessary suffering, does not exhaust the
interpretation and application of the prohibition. That may be regarded
as a particular instance of the working of a broader underlying idea that
suffering is superfluous or unnecessary if it is materially in excess of the
degree of suffering which is justified by the military advantage sought to
be achieved. A mechanical or absolute test is excluded: a balance has to
be struck between the degree of suffering inflicted and the military advan-
tage in view. The greater the military advantage, the greater will be the
willingness to tolerate higher levels of suffering. And, of course, the bal-
ance has to be struck by States. The Court cannot usurp their judgment;
but, in this case, it has a duty to find what that judgment is. In appreci-
ating what is the judgment of States as to where the balance is to be

15 The Japanese Annual of International Law, No. 8, 1964, p. 234.

16 “(The projectile known under the name of ‘dum-dum’ was made in the arsenal of
that name near Calcutta.” See The Proceedings of the Hague Peace Conferences, The
Conference of 1899, 1920, p. 277, per General Sir John Ardagh.

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struck, the Court may properly consider that, in striking the balance,
States themselves are guided by the public conscience. The Court has cor-
rectly held that “the intrinsically humanitarian character of the legal
principles in question . . . permeates the entire law of armed conflict and
applies to all forms of warfare and to all kinds of weapons . . .” (Advi-
sory Opinion, para. 86). It is not possible to ascertain the humanitarian
character of those principles without taking account of the public con-
science.

It was thus open to the Court to take the view that the public con-
science could consider that no conceivable military advantage could jus-
tify the degree of suffering caused by a particular type of weapon. Poison
gas was, arguably, a more efficient way of deactivating the enemy in cer-
tain circumstances than other means in use during the First World War.
That did not suffice to legitimize its use; the prohibition rested on an
appreciation, as set out in the first preamble to the 1925 Geneva Gas Pro-
tocol, that “the use in war of asphyxiating, poisonous or other gases has
been justly condemned by the general opinion of the civilized world”. In
effect, the use of a weapon which caused the kind of suffering that poison
gas caused was simply repugnant to the public conscience, and so un-
acceptable to States whatever might be the military advantage sought to
be achieved. That reasoning has not given birth to a comprehensive and
universal prohibitory treaty provision in this case; it is nonetheless helpful
in estimating the acceptability to the public conscience of the suffering
that could be inflicted by the use of nuclear weapons on both combatants
and civilians, on distant peoples, and on generations yet unborn.

On the material before it, the Court could reasonably find that the
public conscience considers that the use of nuclear weapons causes suf-
fering which is unacceptable whatever might be the military advantage
derivable from such use. On the basis of such a finding, the Court would
be entitled, in determining what in turn is the judgment of States on the
point, to proceed on the basis of a presumption that the judgment of
States would not differ from that made by the public conscience.

The “unnecessary suffering” principle falls within the framework of
principles designed for the protection of combatants. If the use of nuclear
weapons would violate the principle in relation to them, that is sufficient
to establish the illegality of such use. However, is it possible that the prin-
ciple, when construed in the light of developing military technology and
newer methods of waging war, has now come to be regarded as capable
of providing protection for civilians also? |

In the “expanding” bullet phase in which the principle made its appear-
ance in the second half of the nineteenth century, it was no doubt visu-
alized that “unnecessary suffering” would only be inflicted on soldiers in
the battlefield; the effects of the use of weapons which could then cause
such suffering would not extend to civilians. But the framework of mili-

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tary operations is now different: if nuclear weapons can cause unneces-
sary suffering to soldiers, they can obviously have the same effect on
civilians within their reach. The preamble to the Treaty of Tlatelolco cor-
rectly declared that the “terrible effects [of nuclear weapons] are suffered,
tndisctiminately and inexorably, by military forces and civilian popula-
tion alike . :

It may be said that the substance of the principle of unnecessary suf-
fering operates for the benefit of civilians through the medium of other
principles, such as that which prohibits indiscriminate attacks, but that
the principle itself does not operate in relation to them. What, however,
is the position where it is contended that an apparently indiscriminate
attack on civilians is validated by recourse to the collateral damage argu-
ment? In a case in which the collateral damage principle (whatever its
true scope) would justify injury to civilians, the contradictory result of
confining the unnecessary suffering principle to combatants would be
that such injury may be prohibited by that principle in respect of com-
batants but not in respect of civilians who are equally affected; thus, an
act which causes injury to combatants and non-combatants equally may
be unlawful in relation to the former but lawful in relation to the latter.
If combatants and non-combatants are both victims of the same act, it is
difficult to see why the act should be unlawful in the former case but law-
ful in the latter.

In Shimoda, the Tokyo District Court said,

“{I}t is not too much to say that the pain brought by the atomic
bombs is severer than that from poison and poison-gas, and . . . that
the act of dropping such a cruel bomb is contrary to the fundamen-
tal principle of the laws of war that unnecessary pain must not be
given.” !7

So, in this part of its reasoning, the Tokyo District Court relied on the
“fundamental principle” of “unnecessary pain”; it did so in relation to
injuries caused to civilians. Assisted by three experts who were professors
of international law, as well as by a full team of advocates for the parties
in a closely contested case, the Court did not seem to be aware of a view
that the principle of unnecessary suffering was restricted to injuries
caused to combatants. And yet that view, if correct, should have been
central to a case which concerned injury to civilians.

However, even if the unnecessary suffering principle is restricted to
combatants, the question remains whether the principle is breached in so

'7 The Japanese Annual of International Law, No. 8, 1964, pp. 241-242.

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far as combatants are affected by the use of nuclear weapons. For the
reasons given above, the Court could hold that it is.

3. The Martens Clause

Some States argued that the Martens Clause depends on proof of the
separate existence of a rule of customary international law prohibiting
the use of a particular weapon, and that there is no such prohibitory rule
in the case of nuclear weapons. The proposition is attractive.

However, an initial difficulty is this. As is recognized in paragraphs 78
and 84 of the Court’s Advisory Opinion, it is accepted that the Martens
Clause is a rule of customary international law. That means that it has a
normative character — that it lays down some norm of State conduct. It
is difficult to see what norm of State conduct it lays down if all it does is
to remind States of norms of conduct which exist wholly dehors the
Clause. The argument in question would be directed not to ascertaining
the field of application of an acknowledged rule, but to denying the exis-
tence of any rule. Would an argument which produces this infirmity be
right?

As set out in the 1899 Hague Convention Respecting the Laws and
Customs of War on Land, the Martens Clause came at the end of a pre-
ambular passage reading as follows:

“According to the view of the High Contracting Parties, these
provisions, the wording of which has been inspired by the desire to
diminish the evils of war, so far as military requirements permit, are
intended to serve as a general rule of conduct for the belligerents in
their mutual relations and in their relations with the inhabitants.

It has not, however, been found possible at present to concert
regulations covering all the circumstances which arise in practice.

On the other hand, the High Contracting Parties clearly do not
intend that unforeseen cases should, in the absence of a written
undertaking, be left to the arbitrary judgment of military com-
manders.

Until a more complete code of the laws of war has been issued, the
High Contracting Parties deem it expedient to declare that, in cases
not included in the Regulations adopted by them, the inhabitants
and the belligerents remain under the protection and the rule of the
principles of the law of nations, as they result from the usages estab-
lished among civilized peoples, from the laws of humanity, and the
dictates of the public conscience.”

These statements support an impression that the Martens Clause was
intended to fill gaps left by conventional international law and to do so in
a practical way. How?

The Martens Clause bears the marks of its period; it is not easy of

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interpretation. One acknowledges the distinction between usages and
law 18. However, as the word “remain” shows, the provision implied that
there were already in existence certain principles of the law of nations
which operated to provide practical protection to “the inhabitants and
the belligerents” in the event of protection not being available under con-
ventional texts. In view of the implications of that word, the Clause could
not be confined to principles of the law of nations waiting, uncertainly, to
be born in future. The reference to the principles of the law of nations
derived from the mentioned sources was descriptive of the character of
existing principles of the law of nations and not merely a condition of the
future emergence of such principles. It may be added that, in its 1977 for-
mulation, the relevant phrase now reads, “derived from established cus-
tom, from the principles of humanity and from the dictates of public
conscience”. Since “established custom” alone would suffice to identify a
rule of customary international law, a cumulative reading is not prob-
able. It should follow that “the principles of international law” (the new
wording) could also be sufficiently derived “from the principles of human-
ity and from the dictates of public conscience”; as mentioned above,
those “principles of international law” could be regarded as including
principles of international law already derived “from the principles of
humanity and from the dictates of public conscience”.

In effect, the Martens Clause provided authority for treating the prin-
ciples of humanity and the dictates of public conscience as principles of
international law, leaving the precise content of the standard implied by
these principles of international law to be ascertained in the light of
changing conditions, inclusive of changes in the means and methods of
warfare and the outlook and tolerance levels of the international com-
munity. The principles would remain constant, but their practical effect
would vary from time to time: they could justify a method of warfare in
one age and prohibit it in another. In this respect, M. Jean Pictet was
right in emphasizing, according to Mr. Sean McBride,

“that the Declarations in the Hague Conventions . . . by virtue of the
de Martens Clause, imported into humanitarian law principles that
went much further than the written convention; it thus gave them a
dynamic dimension that was not limited by time” !?.

Nor should this be strange. Dealing with the subject of “Considera-
tions of Humanity” as a source of law, Sir Gerald Fitzmaurice remarked
that

18 For “usages of war” maturing into rules of customary international law, see L.
Oppenheim, International Law, A Treatise, Vol. I, 7th ed. by H. Lauterpacht, 1952,
p. 226, para. 67, and p. 231, para. 69.

19 Sean McBride, “The Legality of Weapons for Societal Destruction”, in Christophe
Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross
Principles in Honour of Jean Pictet, 1984, p. 402.

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“all the implications of this view — Le., in exactly what circum-
stances and to what extent considerations of humanity give rise in
themselves to obligations of a legal character — remain to be worked
out” ?°,

The reservation does not neutralize the main proposition that “consid-
erations of humanity give rise in themselves to obligations of a legal char-
acter”. The substance of the proposition seems present in the judgment
given in 1948 in Krupp’s case, in which the United States Military Tribu-
nal sitting at Nuremberg said:

“The Preamble [of Hague Convention No. IV of 1907] is much
more than a pious declaration. It is a general clause, making the
usages established among civilized nations, the laws of humanity
and the dictates of public conscience into the legal yardstick to be
applied if and when the specific provisions of the Convention and
the Regulations annexed to it do not cover specific cases occurring in
warfare, or concomitant to warfare.” *!

A similar view of the role of considerations of humanity appears in the
Corfu Channel case. There Judge Alvarez stated that the “characteristics
of an international delinquency are that it is an act contrary to the senti-
ments of humanity” (Z C.J. Reports 1949, p. 45, separate opinion); and
the Court itself said that Albania’s

“obligations are based, not on the Hague Convention of 1907,
No. VIII, which is applicable in time of war, but on certain general
and well-recognized principles, namely: elementary considerations
of humanity, even more exacting in peace than in war; .. .” U.CJ.
Reports 1949, p. 22).

Thus, Albania’s obligations were “based... on . . . elementary consid-
erations of humanity... .”, with the necessary implication that those con-
siderations can themselves exert legal force. In 1986 the Court considered
that “the conduct of the United States may be judged according to the
fundamental general principles of humanitarian law”; and it expressed
the view that certain rules stated in common Article 3 of the 1949 Geneva
Conventions were “rules which, in the Court’s opinion, reflect what the
Court in 1949 called ‘elementary considerations of humanity’ (Corfu
Channel, Merits, I C.J. Reports 1949, p. 22)” (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, 1 C.J. Reports 1986, pp. 113-114, para. 218). Consis-
tent with the foregoing is the earlier observation by the Naulilaa Tribunal

29 Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Jus-
tice, Vol. 1, 1986, p. 17, note 4, emphasis as in the original; and see ibid., p. 4.

21 Annual Digest and Reports of Public International Law Cases, 1948, p. 622.

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that the right of reprisals “is limited by the experiences of mankind . . .”
[translation by the Registry ]??.

I am not persuaded that the purpose of the Martens Clause was con-
fined to supplying a humanitarian standard by which to interpret sepa-
rately existing rules of conventional or customary international law on
the subject of the conduct of hostilities; the Clause was not needed for
that purpose, for considerations of humanity, which underlie humanitar-
ian law, would in any event have supplied that service (see paragraph 86
of the Court’s Advisory Opinion). It is also difficult to accept that all that
the Martens Clause did was to remind States of their obligations under
separately existing rules of customary international law. No doubt, the
focus of the Clause in the particular form in which it was reproduced in
the 1949 Geneva Conventions was on reminding States parties that
denunciation of these humanitarian treaties would not relieve them of the
obligations visualized by the Clause; but the Clause in its more usual
form was not intended to be a mere reminder*. The basic function of the
Clause was to put beyond challenge the existence of principles of inter-
national law which residually served, with current effect, to govern mili-
tary conduct by reference to “the principles of humanity and . . . the
dictates of public conscience”. It was in this sense that

“civilians and combatants (would) remain under the protection and
authority of the principles of international law derived . . . from the
principles of humanity and from the dictates of public conscience”.

The word “remain” would be inappropriate in relation to “the principles
of humanity and . . . the dictates of public conscience” unless these were
conceived of as presently capable of exerting normative force to control
military conduct.

Thus, the Martens Clause provided its own self-sufficient and conclu-
sive authority for the proposition that there were already in existence
principles of international law under which considerations of humanity
could themselves exert legal force to govern military conduct in cases in
which no relevant rule was provided by conventional law. Accordingly, it
was not necessary to locate elsewhere the independent existence of such
principles of international law; the source of the principles lay in the
Clause itself.

This was probably how the matter was understood at the Hague Peace
Conference of 1899. After Mr. Martens’s famous declaration was
adopted, the “senior delegate from Belgium, Mr. Beernaert, who had pre-
viously objected to the adoption of Articles 9 and 10 (1 and 2 of the new

22 Reports of International Arbitral Awards, Vol. 2, p. 1026.

23 For differences between the 1949 Martens Clause and its classical formulation, see
Georges Abi-Saab, “The Specificities of Humanitarian Law”, in Christophe Swinarski
(ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in
Honour of Jean Pictet, 1984, p. 275.

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draft), immediately announced that he could because of this declaration
vote for them’”**. The senior Belgian delegate, as were other delegates,
was not satisfied with the protection guaranteed by the particular provi-
sions of the draft. Eventually, he found himself able to vote for the pro-
visions. Why? Not because the required additional protection was avail-
able under independently existing customary international law; such
protection would be available in any case. The reason he was able to vote
for the provisions was because he took the view, not dissented from by
other delegates, that the Martens Clause would itself be capable of exert-
ing normative force to provide the required additional protection by
appropriately controlling military behaviour.

“One is entitled to test the soundness of a principle by the conse-
quences which would flow from its application.” (Barcelona Traction,
Light and Power Company, Limited, Second Phase, .C.J. Reports 1970,
p. 220, para. 106, Judge Jessup, separate opinion.) Hence, it is useful to
consider the implications of the view that the Martens Clause is not by
itself relevant to the issue of legality of the use of nuclear weapons. It is
clear that the use of nuclear weapons could result, even in the case of
neutral countries, in destruction of the living, in sickness and forced
migration of survivors, and in injury to future generations to the point of
causing serious illness, deformities and death, with the possible extinction
of all life. If nothing in conventional or customary international law for-
bids that, on the view taken by the proponents of legality of the meaning
of the “Lotus” case, States would be legally entitled to bring about such
cataclysmic consequences. It is at least conceivable that the public con-
science may think otherwise. But the “dictates of public conscience”
could not translate themselves into a normative prohibition unless this
was possible through the Martens Clause.

It is not, I think, a question of the Court essaying to transform public
opinion into law: that would lead to “government by judges”, which, as
Judge Gros rightly observed, “no State would easily accept” (Delimita-
tion of the Maritime Boundary in the Gulf of Maine Area, I.C.J. Reports
1984, p. 385, para. 41, dissenting opinion)*°. Existing international law,
in the form of the Martens Clause, has already established the necessary
legal norm. The Court does not have to find whether there is an opinio
juris. Its task is that of evaluating a standard embodied in an existing
principle by way of making a finding as to what it is that the “principles
of humanity and . . . the dictates of public conscience” require of military
conduct in a given situation. In the last analysis, the answer will depend

24 The Proceedings of the Hague Peace Conferences, The Conference of 1899, 1920,
pp. 54 and 419.

25 See the Krupp case, supra, p. 622.

26 But see . C.J. Pleadings, Northern Cameroons, p. 352, M. Weil, “to exorcise demons,
it is sometimes a good idea to call them by name”, i.e. “the spectre of government by
judges”. / Translation by the Registry. ]

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on what are the views of States themselves; but, so far as the Martens
Clause is concerned, the views of States are relevant only for their value
in indicating the state of the public conscience, not for the purpose of
determining whether an opinio juris exists as to the legality of the use of
a particular weapon. .

The task of determining the effect of a standard may be difficult, but it
is not impossible of performance; nor is it one which a court of justice
may flinch from undertaking where necessary. The law is familiar with
instances in which a court has to do exactly that, namely, to apply a rule
of law which embodies a standard through which the rule exerts its force
in particular circumstances?’.

Some appreciation of a factual nature may be required. The standard
being one which is set by the public conscience, a number of pertinent
matters in the public domain may be judicially noticed. This is apart
from the fact that the Court is not bound by the technical rules of evi-
dence found in municipal systems; it employs a flexible procedure. That,
of course, does not mean that it may go on a roving expedition; it must
confine its attention to sources which speak with authority. Among these
there is the General Assembly. Reference has already been made to its
very first resolution of 24 January 1946. That resolution, unanimously
adopted, may fairly be construed by the Court as expressive of the con-
science of the international community as to the unacceptability of the
use of nuclear weapons. So too with the Final Document adopted by
consensus in 1978 by the Tenth Special Session of the General Assembly
on the subject of disarmament. A number of related General Assembly
resolutions preceded and followed that Final Document. In one, adopted
in 1983, the General Assembly stated that it “[rjesolutely, unconditionally
and for all time condemns nuclear war as being contrary to human con-
science and reason. . .” (General Assembly resolution 38/75 of 15 Decem-
ber 1983). Though not unanimously adopted, the resolution was validly
passed by the General Assembly, acting within its proper province in the
field of disarmament. Whatever may be the position as regards the pos-
sible law-making effects or influence of General Assembly resolutions,
the Court would be correct in giving weight to the Assembly’s finding on
the point of fact as to the state of “human conscience and reason” on the
subject of the acceptability of the use of nuclear weapons, and more par-
ticularly in view of the fact that that finding accords with the general ten-
dency of other material before the Court.

27 See C.J. Pleadings, South West Africa, Vol. VII, p. 258, argument of Mr. Gross;
Fisheries Jurisdiction, I.C.J. Reports 1974, pp. 56-57, footnote 1, separate opinion of
Judge Dillard ; and Julius Stone, Legal System and Lawyers’ Reasonings, 1964, pp. 59, 68,
263-264, 299, 305-306, 320 and 346.

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The Court may look to another source of evidence of the state of the
public conscience on the question of the acceptability of the use of
nuclear weapons. It may interpret the NPT to mean that the public con-
science, as demonstrated in the positions taken by all parties to that
treaty, considers that the use of nuclear weapons would involve grave
risks, and that these risks would make such use unacceptable in all cir-
cumstances. The better view, I think, is that the Court cannot correctly
interpret the treaty to mean that it was agreed by all parties that those
risks may be both effectively and responsibly managed by five States but
not by others. Nor could it be the case that the public conscience, as
manifested in the positions taken by the parties to that treaty, now says
that, after final elimination has been achieved, nuclear weapons could not
be used, while now also saying that they could be acceptably used until
final elimination has been achieved. On a matter touching the survival of
mankind, the public conscience could not at one and the same time be
content to apply one standard of acceptability as of now and another as
of a later time. That would involve a contradiction in its views as to the
fundamental unacceptability of the weapon as a means of warfare which
could destroy civilization. No basis appears for ascribing such a contra-
diction to the public conscience; there is not much merit in prohibiting
civilization from being destroyed in the future, while at the same time
accepting that it may, with impeccable legality, be destroyed now.

If the above is correct, the Martens Clause helps to meet the objection,
raised by the proponents of legality, that the General Assembly’s ques-
tion would require the Court to speculate on a number of matters. The
Court could not say in advance what would be the exact effect of any
particular use of nuclear weapons. Examples of possible situations relate
to proportionality, the duty to discriminate between combatants and
civilians, escalation of conflict, neutrality, genocide and the environment.
The Court could however find, and find as a fact, that the use of nuclear
weapons involves real risks in each of these areas. It could then look to
the public conscience for its view as to whether, in the light of those risks,
the use of such weapons is acceptable in any circumstances; the view of
the public conscience could in turn be found to be that, in the light of
those risks, such use is unacceptable in all circumstances. The public con-
science thus has a mediating role through which it enjoys a latitude of
evaluation not available to the Court.

In the result, on the basis of what the Court finds to be the state of the
public conscience, it will be able to say whether the Martens Clause oper-
ates to prohibit the use of nuclear weapons in all circumstances. On the
available material, it would be open to the Court to hold that the Clause
operates to impose such a prohibition.

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PART IV. WHETHER A PRIOR PROHIBITORY RULE, IF Ir EXISTED, Was
MODIFIED OR RESCINDED BY THE EMERGENCE OF A SUBSEQUENT RULE

I. The Position as at the Commencement of the Nuclear Age

Underlying the Court’s holding in the second part of subparagraph E
of paragraph 2 of the operative paragraph of its Advisory Opinion that it
“cannot conclude definitively” on the issue there referred to, is a conten-
tion by some States that the Court was being invited by the General
Assembly’s question to speculate on possible “scenarios”. If that means
that the Court could not decide on the basis of conjectures, I would
uphold the contention. But I would not feel able to go the further step of
accepting (if this other proposition was also intended) that there are no
circumstances in which the Court may properly have recourse to the use
of hypotheses. It would not, I think, be correct to say, as it is sometimes
said, that the interpretation and application of the law always abjures
hypotheses. Within reasonable limits, a hypothesis, as in other fields of
intellectual endeavour, may be essential to test the limits of a theory or to
bring out the true meaning of a rule. When, in a famous statement, it was
said “hypotheses non fingo”, that only excluded propositions going beyond
actual data #, The actual data may themselves suggest possibilities which
need to be explored if the correct inference is to be drawn from the data.

The position as it stood immediately before the commencement of the
nuclear age was that, since nuclear weapons did not exist, ex hypothesi
there was, and could have been, no rule in conventional or customary
international law which prohibited the use of nuclear weapons “as such”.
But it cannot be a serious contention that the effects produced by the use
of nuclear weapons, when they were later invented, were beyond the
reach of the pre-existing law of armed conflict (see paragraphs 85-86 of
the Advisory Opinion and Shimoda, supra, pp. 235-236); the “novelty of
a weapon does not by itself convey with it a legitimate claim to a change
in the existing rules of war’’??.

Thus, if, immediately before the commencement of the nuclear age, the
question was asked whether effects of the kind that would be later pro-
duced by the use of nuclear weapons would constitute a breach of the law
of armed conflict, the Court could well hold that the answer would inevi-

28 “For whatever is not deduc’d from the phaenomena, is to be called an hypothesis.”
See Sir Isaac Newton, The Mathematical Principles of Natural Philosophy, Book II,
Vol. IL, trans. Andrew Motte, 1968, p. 392; and Derek Gjertsen, The Newton Handbook,
1986, p. 266.

2 L. Oppenheim, International Law, A Treatise, Vol. Il, 7th ed. by H. Lauterpacht,
p. 469, para. 181a.

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tably have been in the affirmative. If the effects so produced would have
been forbidden by that law, it follows that nuclear weapons, when they
later materialized, could not be used without violating that law — not,
that is to say, unless that law was modified by the subsequent evolution
of a law operating in the opposite direction, a point considered below.

2. The Position Subsequent to the Commencement of the Nuclear Age

A “froward retention of custom is as turbulent a thing as an innova-
tion”, says Bacon Ÿ. So, on the assumption that a prohibitory rule existed
at the commencement of the nuclear age, it would remain to consider
whether that rule was later modified or reversed by the emergence of a
new rule operating in the opposite direction: would the “froward reten-
tion” of the previous prohibition of the use of nuclear weapons have been
judged a “turbulent” thing?

It is necessary to have regard to the structure of the debate. The argu-
ment of some States is that there is not and never was a rule prohibitory
of the use of nuclear weapons. In determining the issue so raised, a useful
benchmark is the commencement of the nuclear age. The position as at
that time has to be determined by reference to the law as it then stood.
Subsequent developments do not form part of any process creative of any
rule on the subject as at that time. If a correct finding is that, on the law
as it existed at the commencement of the nuclear age, a prohibitory rule
then existed, evidence of subsequent State practice cannot serve to con-
tradict that finding by showing that, contrary to that finding, no prohibi-
tory rule then existed. What subsequent State practice can do is to create
an opinio juris supportive of the emergence of a new rule modifying or
reversing the old rule. But it has not been suggested that, if a prohibitory
rule existed at the commencement of the nuclear age, it was modified or
reversed by the emergence of a later rule operating in the opposite direc-
tion. This being the case, it follows that if a prohibitory rule existed at the
commencement of the nuclear age, that rule continues in force.

The same conclusion is reached even if it were in fact argued that any
prior prohibitory rule was reversed by the emergence of a later rule oper-
ating in the opposite direction. The substantial and long-standing opposi-
tion within the ranks of the NNWS to the proposition that there is a right
in law to use nuclear weapons would have sufficed to prevent the evolu-
tion of the opinio juris required to support the birth of any such new rule,
and more particularly so if the earlier rule had the status of jus cogens.
This would have been the case if the humanitarian principles on which
the earlier rule was based had that status, a possibility left open by para-
graph 83 of the Advisory Opinion.

30 “Of Innovations”, in J. Spedding, R. L. Ellis and D. D. Heath (eds.), The Works of
Francis Bacon, 1890, Vol. VI, p. 433.

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One last point. Argument was made that the NWS were “States whose
interests are specially affected” within the meaning of the principle relat-
ing to the creation of customary international law, as enunciated by the
Court in 1969 (North Sea Continental Shelf, I C.J. Reports 1969, p. 43,
para. 74), and that, indeed, “in the present case, a practice involving the
threat or use of nuclear weapons could proceed only from States recog-
nized as possessing the status of nuclear-weapon States” (CR 95/24, p. 3).
The argument is interesting, but not persuasive. Where what is in issue is
the lawfulness of the use of a weapon which could annihilate mankind
and so destroy all States, the test of which States are specially affected
turns not on the ownership of the weapon, but on the consequences of its
use. From this point of view, all States are equally affected, for, like the
people who inhabit them, they all have an equal right to exist.

For these reasons, granted the prior existence of a prohibitory rule, it
was open to the Court to hold that the position taken by a considerable
number of the NNWS, if not the majority, would have operated to bar
the development of the opinio juris necessary to support the creation of a
new rule rescinding the old. The old prohibitory rule would therefore
have continued up to the present time.

Part V. THE DENUCLEARIZATION TREATIES AND THE NPT

Some States rely on regional denuclearization treaties and on the NPT
and associated arrangements as State practice evidencing the non-exis-
tence of a prohibitory rule. Those arrangements, they argue, are only
explicable on the assumption that the use of nuclear weapons was
regarded by the negotiating States as lawful. They emphasize that for
50 years the NWS have been openly possessing and deploying nuclear
weapons under one form or another of a policy of nuclear deterrence;
that it is well known that several NNWS have been sheltering under the
nuclear umbrella of a NWS; that the NWS and other States sheltering
under a nuclear umbrella constitute a substantial and important part of
the international community; that elements of the negative and positive
security assurances given by the NWS necessarily imply recognition by
the NNWS that nuclear weapons may be lawfully used; that Security
Council resolution 984 (1995) expressed the Council’s appreciation of the
statements through which the NWS gave those assurances; and that no
NNWS protested against those assurances or with the appreciation thus
expressed. How should these matters be evaluated?

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The position as at the beginning of the nuclear age was either that
there was no rule prohibiting States from producing effects of the kind
which could later be produced by nuclear weapons, or that there was
such a prohibitory rule. If there was no such prohibitory rule, it is not
necessary to consider in detail whether subsequent State practice intro-
duced one, for the known position of the NWS and those of the NNWS
sheltering under a nuclear umbrella, representing a substantial and impor-
tant part of the international community, would have prevented the crys-
tallization of the opinio juris required to create such a rule: the non-
existence of a prohibitory rule would continue to this day, and the case of
the proponents of legality succeeds.

On the opposite view that there was a prior prohibitory rule, there is
equally no need to consider subsequent State practice in any detail. As
has been argued, if, on the basis of the law as it stood at the commence-
ment of the nuclear age, it is found that there then existed a prohibitory
rule, that finding as to what was the then state of the law cannot be con-
tradicted by later developments. Later developments may only be consid-
ered for the purpose of determining whether they represented a State
practice which brought into being a new rule modifying or rescinding the
prior prohibitory rule. But then the known position of the majority of the
NNWS, also representing a substantial and important part of the inter-
national community, would have barred the development of the opinio
juris required for the creation of a modifying or rescinding rule: the prior
prohibitory rule would thus continue to this day, and the case of the pro-
ponents of illegality succeeds.

On either view, it is accordingly not necessary to consider later devel-
opments in any detail. As there has been much debate over regional
denuclearization treaties and the NPT, I shall nevertheless say something
about these. In my opinion, the Court could hold that they do not show
that the proponents of illegality accepted the legality of the use of nuclear
weapons.

* OK

First, as to the regional denuclearization treaties. It will be convenient
to deal with one only, namely, the Treaty of Tlatelolco of 1967. The pre-
amble to this treaty stated that “the proliferation of nuclear weapons”
seemed “inevitable unless States, in the exercise of their sovereign rights,
impose restrictions on themselves in order to prevent it”. The treaty being
concerned with both possession and use, there is force in the argument
that that statement recognized that there was a sovereign right in law to
use such weapons. That inference does not however necessarily follow
when regard is had to the fact that the preamble also said that the use of
such a weapon could result in “an attack on the integrity of the human
species and ultimately may even render the whole earth uninhabitable”.

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The better interpretation of the treaty is that it was, objectively, directed
to the establishment of a régime to ensure that Latin America would be
nuclear-free, given that nuclear weapons in fact existed and might in fact
be used; the treaty did not rest on an assumption that there existed a
right in law to use weapons which could “render the whole earth unin-
habitable”. Reservations or declarations made by the NWS on signing or
ratifying Protocol IT to the treaty did rest on an assumption that there
was a right of use; but it is risky to infer that, by remaining silent, States
parties to the treaty acquiesced in that assumption in the light of the fact
that, both before and after the conclusion of the treaty, many of them
were on record as affirming through the General Assembly and otherwise
that the use of such weapons would be a crime.

* *

Next as to the NPT. This calls for fuller discussion; the arguments
were more intense. Some States, or one or another of them, argued that
a right to use nuclear weapons formed part of the inherent right of self-
defence; that the inherent right of self-defence was inalienable; that it
had a fundamental and overriding character; that it was the most funda-
mental right of all; but that it could be restricted by express treaty pro-
visions. It followed that some States could retain their right to use
nuclear weapons, while others could competently agree to forego it. The
argument adds that acceptance of a right to possess such weapons under
the NPT implies acknowledgment of a right of use.

*

These arguments are weighty; they demand careful consideration. A
difficulty lies, however, in the characterization of a right to use nuclear
weapons as being a part of the right of self-defence. If the characteriza-
tion is correct, it is not easy to appreciate how the proponents of illegal-
ity, which were parties to the NPT, would have intended voluntarily to
forego an important part of their inherent right of self-defence whilst
agreeing that the right would be retained in full by the NWS. The
third preambular paragraph of the NPT showed that the treaty was con-
cluded in

“conformity with resolutions of the United Nations General Assem-
bly calling for the conclusion of an agreement on the prevention of
wider dissemination of nuclear weapons”.

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Those resolutions would include General Assembly resolution 2028 (XX)
of 19 November 1965, paragraph 2 (6) of which laid it down that a non-
proliferation treaty “should embody an acceptable balance of mutual
responsibilities and obligations of the nuclear and non-nuclear Powers”.
It is hard to see how that prescription could find an acceptable reflection
in an asymmetrical enjoyment of so fundamental a right as the inherent
right of self-defence.

There would be difficulty also in following how it is that what is inal-
ienable for some States is alienable for others. It is an attribute of sov-
ereignty that a State may by agreement restrain the exercise of its com-
petence; yet how far it may do so without losing its status as a State is
another question*!. Since the right of self-defence is “inherent” in a State,
it is not possible to conceive of statehood which lacks that characteristic.
See the illustration in General Assembly resolution 49/10 of 3 November
1994,

“(rjeaffirming . . . that as the Republic of Bosnia and Herzegovina is.
a sovereign, independent State and a Member of the United Nations,
it is entitled to all rights provided for in the Charter of the United
Nations, including the right to self-defence under Article 51 thereof”.

Arrangements for the exercise of the right of self-defence are a different
matter. But, so far as the right itself is concerned, if the right includes a
right to use nuclear weapons, the latter is not a small part of the former.
It was no doubt for this reason that, in the parallel case brought by the
World Health Organization, it was argued that to “deny the victim of
aggression the right to use the only weapons which might save it would
be to make a mockery of the inherent right of self-defence” *?. The argu-
ment is understandable, granted the premise that the right to use nuclear
weapons is part of the inherent right of self-defence. The question is
whether the premise is correct. For, if it is correct, then, by the same
token, there is difficulty in seeing how the NNWS which were parties to
the NPT could have wished to part with so crucially important a part of
their inherent right of self-defence.

It is possible to see the NNWS agreeing that, because of the dangers
represented by nuclear weapons, they would not acquire such weapons,
on the basis that the NWS, which already had such weapons, would take
steps to eliminate them. It is less easy to see how the NNWS would, on
the ground of such dangers, agree to deprive themselves of the opportu-

3! See argument of M. Yasseen in L C.J. Pleadings, Interpretation of the Agreement of
25 March 1951 between the WHO and Egypt, pp. 298-299.

#2 Statement of the Government of the United Kingdom (para. 24), in the case con-
cerning Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request
for Advisory Opinion).

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418 THREAT OR USE OF NUCLEAR WEAPONS (DISS. OP. SHAHABUDDEEN)

nity of using such weapons in exercise of their inherent right of self-
defence whilst nevertheless agreeing that such weapons, notwithstanding
the same dangers, could be legally used by the NWS in exercise of their
own inherent right of self-defence and used in some circumstances against
the NNWS. The Court could not uphold so unbalanced a view of the
scheme of the NPT without endorsing the controversial thesis that its real
thrust was not so much to prevent the spread of a dangerous weapon, as
to ensure that enjoyment of its use was limited to a minority of States.
The difference in perceived objectives is material to the correctness of the
interpretation to be placed on the treaty.

A further area of nuclear weapon discrepancy could arise as between
non-NPT States and the NNWS which are parties to the NPT. On the
argument for legality, the former would have a right in law to use nuclear
weapons in self-defence, whereas the latter would have foregone the exer-
cise of that right even in relation to the former. For, since a NNWS,
which is a party to the NPT, cannot possess nuclear weapons without
breaching the treaty, it follows that it cannot threaten or use nuclear
weapons even in relation to non-parties to the treaty, although the latter,
not being bound by the treaty, may have gone on to develop, acquire and
possess such weapons. In the result, a NNWS which is a party to the
NPT would be prevented by the treaty from exercising the full measure of
its inherent right of self-defence under Article 51 of the Charter, notwith-
standing that the non-party to the treaty would be entitled to use such
weapons in exercise of its own inherent right of self-defence under that
Article.

*

These difficulties suggest that it is necessary to distinguish between the
inherent right of self-defence and the means by which the right is exer-
cisable. A State using force in self-defence is acting legally under the jus
ad bellum. But, whether a State is acting legally or illegally under the jus
ad bellum, if it is in fact using force it must always do so in the manner
prescribed by the jus in bello. It is the jus in bello which lays down
whether or not a particular means of warfare is permissible. Thus, where
the use of a particular weapon is proscribed by the jus in bello, the denial
of the use of that weapon is not a denial of the right of self-defence of the
attacked State: the inherent right of self-defence spoken of in Article 51
of the Charter simply does not comprehend the use of the weapon in

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question. The legal answer to the possible plight of the victim State is
given by the principle, as enunciated by the United States Military Tri-
bunal at Nuremberg on 19 February 1948, that “the rules of international
law must be followed even if it results in the loss of a battle or even a war.
Expediency or necessity cannot warrant their violation . . .”73,

A reasonable view is that the proponents of illegality which were
parties to the NPT did not consider that they were contracting away an
important part of their inherent right of self-defence, but that they acted
on the view that a State’s inherent right of self-defence did not include a
right to use nuclear weapons. If they considered that a right to use
nuclear weapons was an integral part of so fundamental a right as the
inherent right of self-defence, it is difficult to see why they should have
intended to agree that such weapons could be used only by some, and not
by all. On the other hand, if they acted on the basis that a right to use
such weapons was not part of the inherent right of self-defence, this gov-
erns, or at any rate qualifies and explains, the NPT arrangements, inclu-
sive of the 1995 extension, the positive and negative assurances, and the
Security Council statements set out in its resolution 984 (1995). As was
pointed out by Solomon Islands, all of these arrangements formed part
of a declared process for eliminating nuclear weapons; it is not persuasive
to interpret them as implying acceptance by the NNWS of the legality of
the use of such weapons. Answering an argument that, through the NPT,
the “nuclear-weapon States were being given a legal basis for the main-
tenance of their nuclear arsenals”, New Zealand submitted, correctly in
my view, that

“the very raison d’être of the Treaty . . . is based on a recognition
that nuclear weapons are different. The judgment made was that, in
view of the uniquely destructive potential of such weapons, and
human nature being what it is, the only option for humanity was to
rid itself of these weapons entirely. The threat that the weapons rep-
resent hangs over the security of the whole international community.
They also constitute a threat, and a challenge, to the international
legal order.” (CR 95/28, p. 36.)

In the light of the foregoing, the Court could read the NPT this way.
As stated in the preamble, all parties, both the NWS and the NNWS,

33 The List case, Trials of War Criminals before the Nuernberg Military Tribunals
under Control Council Law No. 10, Vol. XI, 1950, p. 1272; and see, ibid., pp. 1236 and
1254. See also the remarks of the United States Military Tribunal at Nuremberg in
Krupp’s case, Annual Digest and Reports of Public International Law Cases, 1948, p. 628.

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recognized “the devastation that would be visited upon all mankind by a
nuclear war .. .”. The spread of nuclear weapons should therefore be
halted, and States which, by their own declarations, already possessed
them should eliminate them. As this would take time, the NWS would of
necessity continue in possession until final elimination. This was recogni-
tion of a fact which could not suddenly be wished away, and tolerance of
that fact transitionally; it was not acquiescence in a right of use. Such an
acknowledgment would have been at variance with the repeated affirma-
tion by many NNWS, through General Assembly resolutions and other-
wise, and made both before and after the conclusion of the NPT, that the
use of such weapons would be contrary to the Charter, to the rules of
international law and the laws of humanity, and a crime against mankind
and civilization.

*

It remains to consider whether this conclusion is impaired by the secu-
rity assurances given by the NWS to the NNWS. In contrast with the
reservations made by four of the five NWS in their negative assurances of
a right to use nuclear weapons against the NNWS in certain circum-
stances, the positive assurances did not include a commitment to use
nuclear weapons in defence of a NNWS attacked with nuclear weapons
and therefore did not imply a claim to a right to use nuclear weapons. A
claim to a right to use nuclear weapons is however clearly implied in the
negative assurances; that need not be discussed. The question 1s whether
the claim to such a right has been accepted by the international
community.

It will be convenient to take, first, the reaction of the Security Council.
Paragraph 1 of its resolution 984 (1995), adopted unanimously, recorded
that the Council

“takes note with appreciation of the statements made by each
of the nuclear-weapon States (S/1995/261, S/1995/262, S/1995/263,
S/1995/264, S/1995/265), in which they give security assurances
against the use of nuclear weapons to non-nuclear-weapon States
that are Parties to the Treaty on the Non-Proliferation of Nuclear
Weapons”.

It is argued that the “appreciation” with which the Security Council
noted the statements made by each of the NWS implied an acknowledg-
ment by it of a right in law to use nuclear weapons, and more particularly
in the light of a reaffirmation in paragraph 9 of the resolution of the
inherent right of self-defence under Article 51 of the Charter. The argu-

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ment, which is a forceful one, makes it necessary to consider what it was
that the Council’s “appreciation” referred to.

Viewed in context and in particular in the light of the preamble to the
resolution, the focus of paragraph 1 of the resolution was directed to the
objective fact that negative security assurances had been given in the
cited statements; the paragraph referred to the statements of the NWS as
statements “in which they give security assurances against the use of
nuclear weapons to non-nuclear-weapon States . . .”. The resolution did
not refer to the statements as statements in which the NWS “reserved a
right to use nuclear weapons against the NNWS in certain circum-
stances”, as it could have done had the Council intended to indicate that
its expression of appreciation extended thus far. The Council could not
say so in respect of all five of the NWS because one of them, namely,
China, did not reserve such a right (see paragraph 59 (c) of the Court’s
Advisory Opinion). On the contrary, in paragraph 2 of its statement,
China said, “China 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”; this was the opposite of the
reservation of such a right. It may be argued that the statement nonethe-
less implied the existence of a right to use nuclear weapons. The question,
however, is how was the Security Council’s expression of “appreciation”
to be understood. The Court could not reasonably say that the Council’s
“appreciation” was to be understood as extending to the reservations
made by four of the five NWS of a right to use nuclear weapons against
the NNWS without also saying that it extended to China’s undertaking,
to the opposite effect, not to use nuclear weapons against the NNWS “at
any time or under any circumstances”.

In the result, the proponents of illegality, reading the text of the resolu-
tion, would not have thought that the “appreciation” expressed by the
Security Council extended to those aspects of the statements in which
four of the five NWS reserved a right to use nuclear weapons against the
NNWS in certain circumstances, which included a situation in which
there was no prior use of nuclear weapons against the NWS reserving
and exercising such a right. On its part, the Court could not understand
the “appreciation” expressed by the Security Council as intended to
affirm the existence of such a right without also understanding it to be
affirming that, in the view of the Security Council, there were two groups
of States legally differentiated in the important sense that one group was
entitled in law to use nuclear weapons against the other in certain cir-
cumstances, without the latter being correspondingly entitled in law to
use such weapons against the former in any circumstances. The Court

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would need to pause before imputing such a view to the Security Council.
In circumstances in which it was known that the existence of a right to
use nuclear weapons was in contest, the “appreciation” expressed by the
Security Council in its resolution can reasonably be understood as directed
to the fact that the NWS had given “security assurances against the use
of nuclear weapons to non-nuclear-weapon States . . .”, as stated in the
resolution itself, without being intended to give recognition to the exis-
tence of a legal right of use by indirectly passing on the debated issue as
to whether there was such a right.

An argument of some strength is based on the fact that, in paragraph 9
of its resolution, the Security Council reaffirmed

“the inherent right, recognized under Article 51 of the Charter, of
individual and collective self-defence if an armed attack occurs
against a member of the United Nations, until the Security Council
has taken measures necessary to maintain international peace and
security”.

Although this statement did not refer to a right to use nuclear weapons,
the argument is that, in the context in which it was made, it implied that,
in the view of the Security Council, the inherent right of self-defence
included a right to use nuclear weapons. It would not appear, however,
that the correctness of any such implication of paragraph 9 of the resolu-
tion was accepted by those of the NNWS who spoke before the Security
Council. What Malaysia said was that that “paragraph sidesteps the
question of the legality of the use of nuclear weapons because it justifies
the use or threat of nuclear weapons in cases of ‘self-defence’” (S/PV.3514,
11 April 1995, p. 15). Thus, however much paragraph 9 may be under-
stood as seeking to justify the threat or use of nuclear weapons in cases of
self-defence, in the view of Malaysia the paragraph did not succeed in
doing so but only side-stepped the question. Egypt associated itself with
Indonesia as “speaking . . . on behalf of the non-aligned States”; the
statement made by Indonesia does not suggest an intention to abandon
the known position of that group of States on the subject of legality.
India specifically recalled that at

“the forty-ninth session of the General Assembly, the international
community decided to seek an advisory opinion from the Inter-
national Court of Justice on whether the threat or use of nuclear
weapons is permissible under international law in any circum-
stances” (ibid., p. 6).

India added:

“One would hope that by offering a draft resolution of this kind,
the nuclear-weapon States are not telling the non-members of the
NPT that they, the nuclear-weapon States, are free to use nuclear

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weapons against them, because this would have implications which
are too frightening to contemplate.” (S/PV.3514, p. 6.)

Hence, even if the resolution of the Security Council contained any impli-
cation that the Council considered the use of nuclear weapons to be law-
ful, the argument that the proponents of illegality accepted the correct-
ness of that implication is not well founded.

Next, the matter may be looked at from the more general standpoint of
the conduct of the proponents of illegality in relation to the security
assurances. Did that conduct manifest acquiescence in the claim by the
NWS to the existence of a right in law to use of nuclear weapons? In
particular, was such an acquiescence demonstrated by the fact that the
NNWS thought it necessary to obtain such assurances?

A reasonable appreciation of the position seems to be the following.
The continuing, if temporary, possession of nuclear weapons by the
NWS obviously presented risks to the NNWS. The sensible thing would be
to obtain assurances against any threat or use. Malaysia and Zimbabwe
submitted that, in like manner, non-aggression pacts “were the com-
mon currency of international relations well after the illegality of aggres-
sion had entered the body of customary law” (joint answers by Malaysia
and Zimbabwe to questions asked by Vice-President Schwebel on
3 November 1995, response to the second question). Realities may need
to be dealt with in a practical way; but not every arrangement designed
to deal with them accepts their legality. Especially is this so in interna-
tional relations. When regard is also had to the power of the weapons
concerned, the Court could find that there is not any contradiction
between the position taken by the NNWS in the General Assembly that
the use of nuclear weapons is a crime, and the assurances which they
accepted from States which nevertheless possessed such weapons that
these would not be used against them. It is useful to remember Judge
Alvarez’s observation that “[rleason, pushed to extremes, may easily
result in absurdity” (Anglo-Iranian Oil Co., Preliminary Objection, I. CJ.
Reports 1952, p. 126, dissenting opinion). The practice of putting aside a
legal problem in order to make progress towards a desirable goal is a
familiar one in international relations. My understanding of the position
taken by some of the NWS is that it was on this basis that they partici-
pated in certain negotiations in the field of humanitarian law.

*

It is also important to have in mind that bare proof of acts or omis-
sions allegedly constituting State practice does not remove the need to
interpret such acts or omissions. The fact that States may feel that reali-
ties leave them no choice but to do what they do does not suffice to

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exclude what they do from being classified as part of State practice, pro-
vided, however, that what they do is done in the belief that they were
acting out of a sense of legal obligation. “The need for such a belief, i.e.,
the existence of a subjective element, is implicit in the very notion of the
opinio juris sive necessitatis.” (North Sea Continental Shelf, I.C.J. Reports
1969, p. 44.) Speaking of actions which could evidence an opinio neces-
sitatis juris, Lauterpacht excepts conduct which “was not accompanied
by any such intention” %# So intention is material. Whether it exists is to
be determined not on a microscopic inspection of disjointed features of a
large and shifting picture, but by looking at the picture as a whole. When
the whole of the picture is regarded in the circumstances of this case, the
Court could find that the matters relied on to evidence an acknowledg-
ment by the proponents of illegality that there is a right in law to use
nuclear weapons fall short of demonstrating an intention to make that
acknowledgment.

*

I should add that I am not persuaded that Security Council resolution
255 (1968) of 19 June 1968, to which reference is made in paragraphs 59
and 61 of the Court’s Advisory Opinion, takes the matter any further.
The question remains whether the resolution was dealing with the objec-
tive fact that nuclear weapons existed and could in fact be used, or
whether it was affirming, directly or indirectly, the existence of a legal
right of use.

x Ox

To sum up, putting at the highest all of the matters relied on by the
proponents of legality, the Court could find that those matters do not
suffice to cancel out the continuing assertion of the proponents of illegal-
ity that the threat or use of nuclear weapons is illegal. It would follow
that the basic difficulties noticed above would remain. If, as I consider, a
correct finding is that, on the law as it stood at the commencement of the
nuclear age, a prohibitory rule then existed, that finding, as to what was
the then law, cannot be contradicted by subsequent inconsistent State
practice; the most that subsequent inconsistent State practice could do
would be to generate a new rule rescinding or modifying the old rule. But
the position taken by most of the NNWS would make it impossible to
establish that the necessary opinio juris emerged to support the creation
of a new rule having the effect of reversing the old, and more particularly
if the latter had the status of jus cogens. The prior prohibitory rule would
thus continue to the present time.

34 Sir Hersch Lauterpacht, The Development of International Law by the International
Court, 1958, p. 380.

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PART VI. CONCLUSION

A holding that there is a right in law to use nuclear weapons would
bear a difficult relationship to the Court’s finding that the

“destructive power of nuclear weapons cannot be contained in either
space or time. They have the potential to destroy ali civilization and
the entire ecosystem of the planet.” (Advisory Opinion, para. 35.)

The affirmation of the existence of a right the exercise of which could
yield such grim results would come as near as might be to a literal appli-
cation of the maxim fiat justitia ruat coelum. Judge Carneiro’s view was
“that no judge nowadays can blindly follow the obsolete rule fiat justitia,
pereat mundus” (Minquiers and Ecrehos, .C.J. Reports 1953, p. 109,
separate opinion). It would, at any rate, seem curious that a World Court
should consider itself compelled by the law to reach the conclusion that a
State has the legal right, even in limited circumstances, to put the planet
to death. May it be that the maxim more properly attracted by its high
mission is flat justitia ne pereat mundus?

The danger of the maxim last referred to is that it could seduce the
Court into acting as a legislator. In the course of the proceedings, the
Court was rightly reminded that it cannot do that. To use the words of
the United States Military Tribunal in the List case, “it is not our prov-
ince to write international law as we would have it; we must apply it as
we find it”#. And thus, as Judge Lauterpacht remarked, “Reluctance to
encroach upon the province of the legislature is a proper manifestation of
judicial caution.” However, as he added,

“If exaggerated, it may amount to unwillingness to fulfil a task
which is within the orbit of the functions of the Court as defined by
its Statute.” (Admissibility of Hearings of Petitioners by the Com-
mittee on South West Africa, I C.J. Reports 1956, p. 57, separate
opinion.)

The danger of legislating arises not only where a court essays to make
law where there is none, but also where it fails to apply such law as exists;
the failure may well be regarded as amounting to judicial legislation
directed to repealing the existing law.

International law does indeed concern relations between sovereign
States. However, as it has been remarked, sovereignty does not mean that
those relations are between billiard balls which collide but do not co-
operate. There is at work a process of cohesion-building. It is not, and
possibly never will be, sufficiently advanced to attract the full force of
Cicero’s observation that “the solidity of a State is very largely bound up

35 List case, supra, footnote 33, p. 1249.

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with its judicial decisions” **. Nevertheless, the broad import of the state-
ment is not altogether amiss: the role of the Court need not be over-
estimated; neither should its responsibility be misunderstood. There is
disciplined room for recalling the obligations of international lawyers.
As it was put by Jenks, “We are not dealing with the routine of the estab-
lished certainties of life but must frequently come to grips with the great
unsettled issues on which the future of the world depends.” * The case at
bar is the supreme illustration of this truth.

*

To recall what was said at the beginning of this opinion, the great un-
settled issue on which the future of the world depends is how to reconcile
the imperative need of a State to defend itself with the no less imperative
need to ensure that, in doing so, it does not imperil the survival of the
human species. Humanitarian law, it is said, must be read as being sub-
ject to an exception which allows a State to use nuclear weapons in self-
defence when its survival is at stake, that is to say, even if such use would
otherwise breach that law, and this for the reason that no system of law
obliges those subject to it to commit suicide. That is the argument which
underlies the second part of subparagraph E of paragraph 2 of the opera-
tive paragraph of the Court’s Advisory Opinion.

The implication of that part of the Court’s holding is that, in the view
of the Court, it is possible that the use of nuclear weapons could be law-
ful “in an extreme circumstance of self-defence, in which the very survival
of a State would be at stake”, and hence even if humanitarian law would
otherwise be violated. What the Court so sought to leave on the basis of
a possibility takes on a firmer aspect in the light of the “Lotus” case, as
generally understood. In saying that it cannot definitively decide, the
Court is saying that it cannot definitively say whether or not a prohibi-
tory rule exists. If the Court is in a position in which it cannot definitively
say whether or not a prohibitory rule exists, the argument can be made
that, on the basis of that case, the presumption is in favour of the right of
States to act unrestrained by any such rule. Accordingly, the meaning of
the Court’s position would be that States have a right in law to use
nuclear weapons. If this was not the intended result, the Court’s holding
was not well conceived.

Thus, however gross or excessive the suffering, the presence of the
stated circumstances could create an exception to the application of

36 Cicero, Selected Works, trans. Michael Grant, 1960, p. 36.
37 C. W. Jenks, The Common Law of Mankind, 1958, p. 416.

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humanitarian law, as indeed is visualized by the word “generally” in the
first part of that subparagraph of the Court’s holding. A law may, of
course, provide for exceptions to its application. At the moment, how-
ever, there is nothing to suggest that humanitarian law provides for an
exception to accommodate the circumstances visualized by the Court. It
seems to me that to take the position that humanitarian law can be set
aside in the stated circumstances would sit oddly with the repeated and
correct submissions on the part of both sides to the argument that the
Court should apply the law and not make new law.

One further point. Despite variations in formulation and references to
the concept of “vital security interests”, an “extreme circumstance of self-
defence, in which the very survival of a State would be at stake”, as
defined by the Court, is the main circumstance in which the proponents
of legality advance a claim to a right to use nuclear weapons. This is so
for the reason that, assuming that the use of nuclear weapons is lawful,
the nature of the weapons, combined with the limitations imposed by the
requirements of necessity and proportionality which condition the exer-
cise of the right of self-defence, will serve to confine their lawful use to
that “extreme circumstance”. It follows that to hold that humanitarian
law does not apply to the use of nuclear weapons in the main circum-
stance in which a claim to a right of use is advanced is to uphold the
substance of the thesis that humanitarian law does not apply at all to the
use of nuclear weapons. That view has long been discarded; as the Court
itself recalls, the NWS themselves do not advocate it. Iam not persuaded
that that disfavoured thesis can be brought back through an exception
based on self-defence.

x * x

And thus I return to the real meaning of the General Assembly’s ques-
tion. The essence of the question is whether the exercise of the right of
self-defence can be taken to the point of endangering the survival of man-
kind. To this the Court responds that

“in view of the current state of international law, and of the elements
of fact at its disposal, the Court cannot conclude definitively whether
the threat or use of nuclear weapons would be lawful or unlawful in
an extreme circumstance of self-defence, in which the very survival
of a State would be at stake” (Advisory Opinion, para. 105 (2) E).

That is the material holding on which this opinion hinges. In so far as
that holding suggests that there is a deficiency in the law, I do not think
there is; in so far as it suggests that the facts are not sufficient to attract

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an application of the law, I am not able to agree. In my opinion, there
was a sufficient legal and factual basis on which the Court could have
proceeded to answer the General Assembly’s question — one way or
another. And hence my respectful dissent from its conclusion that it can-
not.

(Signed) Mohamed SHAHABUDDEEN.

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