Advisory opinion on the Legality

of the Threat or Use of Nuclear

Weapons (1996)
Group 2:
Vũ Hoàng
Phạm Thị Thu Hà
Lưu Yế n Linh
Nguyễ n Lưu Quỳnh Nga
Lê Thị Hoài Phương
 I. Background

II. Case analysis

III. Court decision, international

reaction

I. Background
The International Court of Justice (ICJ) sometimes known as the World Court
is one of the 6 principal organs of the UN.
 Legality of the Threat or Use of Nuclear
Weapons (1993), ICJ 3 is a landmark
On July 8, 1996, the ICJ international law case, where the ICJ
gave a advisory opinion stating that
issued an advisory opinion
while the threat or use of nuclear
on the above question
weapons

What is the
What is the
advisory advisory
opinion?
opinion?
An advisory opinion is an opinion issued
election commission
by a commission like an
that does not have the
effect of adjudicating a specific legal case but
merely advises on the constitutionality or
interpretation of a law
II. Case analysis
1. The provisions of the UN Charter
relating to the threat or use of force
Article 2(4)
generally prohibiting the threat or use of force

Article 51
recognizing every state's inherent right of
individual or collective self-defense if an armed
attack occurs

Article 42
authorizing the Security Council to take military
enforcement measures
 The UN Charter neither expressly prohibits, nor permits, the use of
any specific weapon (including nuclear weapons) and that a weapon
that is already unlawful per se by treaty or custom does not become
lawful by reason of its being used for a legitimate purpose under the
Charter.
 Article 2(4) "The notions of "threat" or "use" of
force under Article 2(4) work in
All Members shall refrain in their
tandem in that the illegal use of force
international relations from the
in a given case will likewise make the
threat or use of force against the
threat to use such force unlawful"
territorial integrity or political

independence of any State, or in any

other manner inconsistent with the

Purposes of the United Nations.

2. Customary international law
it determined that the non-use of nuclear
weapons does not amount to a customary
prohibition, because the world community
is profoundly divided on the issue.

the Court examined whether certain General

Assembly resolutions that deal with nuclear
weapons signify the existence of a rule of
customary international law prohibiting
recourse to nuclear weapons
 ...although these resolutions are "a clear sign of deep concern regarding the problem of nuclear
weapons" and "reveal the desire of a very large section of the international community to take, by a
specific and express prohibition of the use of nuclear weapons, a significant step forward along the
road to complete nuclear disarmament," they fall short of a customary rule specifically prohibiting the
use of nuclear weapons as such.

3. Principles and rules of international humanitarian law applicable in

armed conflict
The Court deals with the question of the illegality of the recourse to nuclear weapons
IHL is also known as " The law of war" or " The law of armed conflict"
IHL is based mainly on the Geneva convention of 1949, the Hauge Convention and other
agreements
 "Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and
Geneva Convention
those placed hors de combat by sickness, wounds,
of 1949 detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded
on race, colour, religion or faith, sex, birth or wealth, or any
other similar criteria" (Article 3)

*Aim to
Protect the victim of

war
Provide safeguard for

disabled armed force

Persons not taking part

in hostilities
Hauge Convention
According to Article 23 in the regulation relating to
laws and customs of war on land, the use of arms,

IV of 1907
projectiles, or material causing unnecessary
suffering is prohibited
The Court stated two cardinal principles

constituting the fabric of humanitarian law

Protection of the civilian population &

prohibition of weapons incapable of

distinguishing between combatants

and non-combatants

--> States must never make civilians an

object of attack

Prohibition on causing unnecessary

suffering to combatants
 If the use of the weapon would not meet these requirements
--> Illegal
The use of nuclear weapons does not meet strict requirements of international
humanitarian law
There is no doubt about the applicability of humanitarian law to the use of the nuclear
weapon
However, the conclusion was controversial
The use of nuclear weapons is not reconcilable with humanitarian law
The Court could not conclude the legality of the threat and use of nuclear weapons in
extreme circumstances of self-defense, in which the State's survival is at stake
(Article 51, UN Charter)
4. The Treaty on the non-proliferation of Nuclear Weapons
Article VI states that Parties to the Treaty must involve an obligation to achieve a
precise result-nuclear disarmament in all aspects
"Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any
recipient whatsoever nuclear weapons or other nuclear explosive devices or control
over such weapons or explosive devices directly, or indirectly; and not in any way to
assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise
acquire nuclear weapons" (Article I)
However, there hasn't had any specific prohibition on the threat or use of nuclear
weapons
 III. Court decision &
International reactions
1. Court decision The Court's obligations: adjudge
the compatibility of UNW with
"Legal basis of the court's the relevant principles and rules
decision?" of international law

Court must identify the existing principles

and rules, interpret them and apply them to
the threat or use of nuclear weapons, thus
offering a reply to the question posed based
on law with implemented within the scope of
practice
 Legal Basis
"considerations based on global scale"

Article 6 of the Additional Protocol I of Articles 35: pa3 and 55 of

International 1977 to the Geneva Additional Protocol I
Covenant on Civil and Conventions of 1949; provide additional
Political Rights Convention of May 18, protection for the

1977 environment
"prohibit the use of war “environment destruction
"about the right to life
techniques and methods not justified by military
of all people in all
for hostile military necessity and carried out
countries and
purposes or environmental wantonly is contrary to
territories"
destruction existing international law”
Synthesis of legislation documents, The Court finds...
Current international law abt "protection of the environment" does not
specifically prohibit the use of nuclear weapons but indicates important
environmental factors in the real context
Note the definitions of nuclear weapons
Explosive devices which release immense quantities of heat and
energy, powerful and prolonged radiation
=> Damage is vastly more powerful than others, potentially catastrophic
=> Destroy all civilization and the entire ecosystem
(Violate the specified humanitarians and environmental protection laws)
 States must never make
civilians the object of attack
and must consequently never
use weapons that are incapable The entitlement to resort
of distinguishing between to self-defence under
civilian and military targets. . Article 51 is subject to
certain constraints

Use of force that is legal under the

law of self-defense meets the
requirements of the law
applicable and comprises in
particular the principles and rules
of humanitarian law.
 States and regions are
Treaties could free to form
The Court does not find
therefore be seen as commitments,
any specific prohibition
foreshadowing a future agreements not to use
of recourse to nuclear
general prohibition of nuclear weapons (not
weapons in treaties
the use of such fully committed)
expressly prohibiting
weapons, but they do The court did not
the use of certain
not constitute such a recognize this as a law
weapons of mass
prohibition by outright prohibiting the
destruction.
themselves use or threat of use of
such weapons
There is in neither customary nor conventional
international law any specific authorization of the
threat or use of nuclear weapons
A threat or use of force by means of nuclear
weapons that is contrary to Article 2, pa4, of the UN
Charter and that fails to meet all the requirements
of Article 51, is unlawful
 2. International reaction
The implications that could be derived
from it -> were contentious.

→ the humanitarian side of the matter: in

general, the destructive power of nuclear
weapons is so great that it will obviously
threaten human life.
→ Is the use of nuclear weapons necessary for
the defense of national interests or conflicts?
2. International reaction
The Court admitted that, in view of the unique characteristics of
nuclear weapons, the use of such armaments seemed scarcely
reconcilable with respect to the requirements of the law applicable in
armed conflict.

→ So this situation concerns and uncertainties based on the international

court's neutral position. (In reality, it’s quite difficult to understand or
research)
-> Complex structures and many characteristics of each type.
 About the problem and confusion of
WHO: "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?”

The ICJ is based on rigid rules of regulation, conventions and the

process of filing and problem-solving on the regulatory front.
no opinions have been given, there are still concerns in terms of
health and human rights.


Conclusion

opinion and views of the International
The problem with this situation is the
Court on the question of whether to
legalize nuclear weapons in the war
The Court made an opinion based on the laws and regulations regarding
weapons of war that

Being aimed at the distinction between combatants and non-combatants;

States must never make civilians the object of attack and must
consequently never use weapons that are incapable of distinguishing
between civilian and military targets
Unnecessary suffering should not be caused to combatants. It follows that
states do not have unlimited freedom of choice in the weapon they use.
 REFERENCES:

https://casebook.icrc.org/case-study/icj-nuclear-weapons-advisory-
opinion
https://www.asil.org/insights/volume/1/issue/5/advisory-opinions-
world-court-legality-nuclear-weapons
https://www.icj-cij.org/en/case/95
https://www.icj-cij.org/public/files/case-related/95/10407.pdf
https://www.icj-cij.org/public/files/case-related/95/7497.pdf
Thank
you!