The Legality of Nuclear Weapons: ICJ Advisory Opinion
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In 1996, the International Court of Justice (ICJ) undertook a historic case concerning the legality of the threat of or use of nuclear weapons. The World Health Organization (WHO) first approached this issue by adopting Resolution WHA46.40 on May 14, 1993, which requested the Court’s advisory opinion on the question: "In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?" On December 15, 1994, the United Nations General Assembly (UNGA) adopted a similar resolution—Resolution 49/75K—to request an advisory opinion from the Court on the question: "Is the threat or use of nuclear weapons in any circumstance permitted under international law?"
The Court began to hold public hearings on October 30, 1995, at which time states and Court-authorized organizations could deliver oral statements on the issue. The Court voted unanimously to render the threat or use of nuclear weapons as contrary to the rules of international law applicable in armed conflict as well as the principles and rules of humanitarian law. It upheld Article VI of the Nuclear Non-Proliferation Treaty (NPT), which compels states to “pursue in good faith and bring to a conclusion” nuclear disarmament agreements under international control. However, the ruling on the legality of the threat or use of nuclear weapons ultimately resulted in 7-7 split, with ICJ President Mohammed Bedjaoui casting the tie-breaking vote. The Court determined that the current state of international law prevented it from concluding definitively “whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”
The Court began to hold public hearings on October 30, 1995, at which time states and Court-authorized organizations could deliver oral statements on the issue. The Court voted unanimously to render the threat or use of nuclear weapons as contrary to the rules of international law applicable in armed conflict as well as the principles and rules of humanitarian law. It upheld Article VI of the Nuclear Non-Proliferation Treaty (NPT), which compels states to “pursue in good faith and bring to a conclusion” nuclear disarmament agreements under international control. However, the ruling on the legality of the threat or use of nuclear weapons ultimately resulted in 7-7 split, with ICJ President Mohammed Bedjaoui casting the tie-breaking vote. The Court determined that the current state of international law prevented it from concluding definitively “whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.”
Current Status
The ICJ’s 1996 advisory opinion has had little impact on international nuclear disarmament law. Without an enforcement mechanism, the ICJ remains powerless to obligate states to abide by its decision. The Security Council, whose permanent members include the five NPT-designated nuclear weapon states (NWS), has the capability to enforce international law. Since the ICJ’s decision on the legality of nuclear weapons, the Security Council has fought actively to curtail the nuclear proliferation of non-nuclear weapon states. However, the Security Council continues to overlook the failure of the NWS to conclude nuclear disarmament negotiations, and most of these states’ maintain their right to threaten the use of nuclear weapons in certain situation.
"International Court of Justice: The Use or Threat of Use of Nuclear Weapons Is Not Only Immoral, It's Illegal." Reaching Critical Will <http://www.reachingcriticalwill.org/legal/ICJ.html>.
"Legality of Nuclear Weapons." Nuclear Files. Nuclear Age Peace Foundation. Web. <http://www.nuclearfiles.org/menu/library/treaties/international-court-justice/trty_international-court-justice_nuclear-weapons_1997-10-30.htm>.
Ware, Alyn. "Bomb's Away? The World Court Decision on Nuclear Weapons." Lawyers' Committee on Nuclear Policy. Disarmament Diplomacy, Sept. 1996. Web. <http://www.lcnp.org/wcourt/Bombs%20away.htm>.
