Legality of the Threat or Use of Nuclear
Weapon (Advisory Opinion)
Brief Fact Summary: An advisory opinion as to
whether States are permitted to use nuclear
weapons udner international law was placed
before the International court of Justice by the
Un General Assembly.
Synopsis of Rule of Law: Under certain
circumstance, threat or use of nuclear weapons
is permitted under international law
FACTS: The World Health Organization (WHO)
requested the opinion on 3 September 1993,
but it was initially refused because it was acting
outside its legal capacity (ultra vires). So the UN
General Assembly requested for another
opinion in December 1994 for an advisory
opinion as to whether States are permitted to
use nuclear weapons under international law
was laid on the table of the International Court
of justice by the UN General Assembly.
ISSUE: Under certain circumstances, are threats
or use of nuclear weapons permitted under
international law?
RULING: Yes. Under certain circumstance,
threat or use of nuclear weapons are permitted
under international law. The threat or use of
nuclear weapons in all circumstances is not
authorized or prohibited by either the
customary or conventional international nuclear
law. Under the UN Charter, the threat or use of
nuclear weapons would be considered legal if all
requirements of Article 51 which deals with
state’s rights to self-defense are met. However,
in whatever the situation can be, a state
obligation exists to pursue in good faith and
bring to a disarmament in all its aspect under
strict and effective international control.
The court considered the matter of deterrence,
which involves a threat to use nuclear weapons
under certain circumstances on a potential
enemy or an enemy. The court decided, with
some judges dissenting, that, if a threatened
retaliatory strike was consistent with military
necessity and proportionality, it would not
necessarily be illegal.
There is neither customary nor conventional
international law any comprehensive and
univerasal probition of the threat or use of
nuclear weapon as such. However, a threat or
use of force by means of nuclear weapons that
is contrary to Art 2, par 4 of the UN Charter and
that fails to meet all requirements of Aet 51 is
unlawful.
A threat or use of nuclear weapons should also
be compatible with the requirements of the
international law applicable in armed conflict,
particularly those of the principles and rules of
humanitarian law, as well as with specific
obligations under treaties and other
undertakings which expressly deal with nuclear
weapon.
Discussion: the idea that despite steps taken by
a very large part of the international community
toward complete nuclear disarmament, in
which no customary rule specifically proscribe
the threat or use of nuclear weapons that exists
is illustrated by this case. Reservations about
the notion that there are no imaginable
circumstances warranting their use have been
expressed by too many dissenters.