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[p.66]
1. By a letter dated 27 August 1993, filed in the Registry on 3 September
1993, the Director-General of the World Health Organization (hereinafter
called "the WHO") officially communicated to the Registrar a decision taken
by the World Health Assembly to submit a question to the Court for an advi-[p67]sory
opinion. The question is set forth in resolution WHA46.40 adopted by the
Assembly on 14 May 1993. That resolution, certified copies of the English
and French texts of which were enclosed with the said letter, reads as
follows:
"The Forty-sixth World Health Assembly,
Bearing in mind the principles laid down in the WHO Constitution;
Noting the report of the Director-General on health and environmental
effects of nuclear weapons FN1;
---------------------------------------------------------------------------------------------------------------------
FN1
Document A46/30.
---------------------------------------------------------------------------------------------------------------------
Recalling resolutions WHA34.38, WHA36.28 and WHA40.24 on the effects of
nuclear war on health and health services;
Recognizing that it has been established that no health service in the world
can alleviate in any significant way a situation resulting from the use of
even one single nuclear weaponFN2;
---------------------------------------------------------------------------------------------------------------------
FN2 See Effects of Nuclear War on Health and Health Services (2nd ed.),
Geneva, WHO, 1987.
---------------------------------------------------------------------------------------------------------------------
Recalling resolutions WHA42.26 on WHO's contribution to the international
efforts towards sustainable development and WHA45.31 which draws attention
to the effects on health of environmental degradation and recognizing the
short- and long-term environmental consequences of the use of nuclear
weapons that would affect human health for generations;
Recalling that primary prevention is the only appropriate means to deal with
the health and environmental effects of the use of nuclear weaponsFN2;
Noting the concern of the world health community about the continued threat
to health and the environment from nuclear weapons;
Mindful of the role of WHO as defined in its Constitution to act as the
directing and coordinating authority on international health work (Article 2
(a)); to propose conventions, agreements and regulations (Article 2 (k); to
report on administrative and social techniques affecting public health from
preventive and curative points of view (Article 2 (p)); and to take all
necessary action to attain the objectives of the Organization (Article 2
(v));
Realizing that primary prevention of the health hazards of nuclear weapons
requires clarity about the status in international law of their use, and
that over the last 48 years marked differences of opinion have been
expressed by Member States about the lawfulness of the use of nuclear
weapons;
1. Decides, in accordance with Article 96(2) of the Charter of the United
Nations, Article 76 of the Constitution of the World Health Organization and
Article X of the Agreement between the United Nations and the World Health
Organization approved by the General Assembly of the United Nations on 15
November 1947 in its resolution 124 (II), to [p 68] request the
International Court of Justice to give an advisory opinion on the following
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?
2. Requests the Director-General to transmit this resolution to the
International Court of Justice, accompanied by all documents likely to throw
light upon the question, in accordance with article 65 of the Statute of the
Court."
2. Pursuant to Article 65, paragraph 2, of the Statute, the Director-General
of the WHO communicated to the Court a dossier of documents likely to throw
light upon the question; the dossier reached the Registry in several
instalments.
3. By letters dated 14 and 20 September 1993, the Deputy-Registrar, pursuant
to Article 66, paragraph 1, of the Statute of the Court, gave notice of the
request for an advisory opinion to all States entitled to appear before the
Court.
4. By an Order dated 13 September 1993 the Court decided that the WHO and
the member States of that Organization entitled to appear before the Court
were likely to be able to furnish information on the question, in accordance
with Article 66, paragraph 2, of the Statute; and, by the same Order, the
Court fixed 10 June 1994 as the time-limit for the submission to it of
written statements on the question. The special and direct communication
provided for in Article 66, paragraph 2, of the Statute was included in the
aforementioned letters of 14 and 20 September 1993 addressed to the States
concerned. A similar communication was transmitted to the WHO by the
Deputy-Registrar on 14 September 1993.
5. By an Order dated 20 June 1994, the President of the Court, upon the
request of several States, extended to 20 September 1994 the time-limit for
the submission of written statements. By the same Order, the President fixed
20 June 1995 as the time-limit within which States and organizations having
presented written statements might submit written comments on the other
written statements, in accordance with Article 66, paragraph 4, of the
Statute.
6. Written statements were filed by the following States: Australia,
Azerbaijan, Colombia, Costa Rica, Democratic People's Republic of Korea,
Finland, France, Germany, India, Ireland, Islamic Republic of Iran, Italy,
Japan, Kazakhstan, Lithuania, Malaysia, Mexico, Nauru, Netherlands, New
Zealand, Norway, Papua New Guinea, Philippines, Republic of Moldova, Russian
Federation, Rwanda, Samoa, Saudi Arabia, Solomon Islands, Sri Lanka, Sweden,
Uganda, Ukraine, United Kingdom of Great Britain and Northern Ireland, and
United States of America. In addition, written comments on those written
statements were submitted by the following States: Costa Rica, France,
India, Malaysia, Nauru, Russian Federation, Solomon Islands, United Kingdom
of Great Britain and Northern Ireland, and United States of America. Upon
receipt of those statements and comments, the Registrar communicated the
text to all States having taken
part in the written proceedings.
7. The Court decided to hold public sittings, opening on 30 October 1995, at
which oral statements might be submitted to the Court by any State or
organization which had been considered likely to be able to furnish
information on the question before the Court. By letters dated 23 June 1995,
the Registrar [p 69] requested the WHO and its member States entitled to
appear before the Court to inform him whether they intended to take part in
the oral proceedings; it was indicated, in those letters, that the Court had
decided to hear, during the same public sittings, oral statements relating
to the request for an advisory opinion from the WHO as well as oral
statements concerning the request for an advisory opinion meanwhile laid
before the Court by the General Assembly of the United Nations on the
question of the Legality of the threat or use of nuclear weapons, on the
understanding that the WHO would be entitled to speak only in regard to the
request it had itself submitted; and it was further specified therein that
the participants in the oral proceedings which had not taken part in the
written proceedings would receive the text of the statements and comments
produced in the course of the latter.
8. Pursuant to Article 106 of the Rules of Court, the Court decided to make
the written statements and comments submitted to the Court accessible to the
public, with effect from the opening of the oral proceedings.
9. In the course of public sittings held from 30 October 1995 to 15 November
1995, the Court heard oral statements in the following order by:
For the WHO: Mr. Claude-Henri Vignes, Legal Counsel;
For the Commonwealth of Australia: Mr. Gavan Griffith, Q.C.,
Solicitor-General of Australia, Counsel;
The Honourable Gareth Evans, Q.C., Senator, Minister for Foreign Affairs,
Counsel;
For the Arab Republic of Egypt: Mr. Georges Abi-Saab, Professor of
International Law, Graduate Institute of International Studies, Geneva,
Member of the Institute of International Law;
For the French Republic: Mr. Marc Perrin de Brichambaut, Director of Legal
Affairs, Ministry of Foreign Affairs;
Mr. Alain Pellet, Professor of International Law, University of Paris X and
Institute of Political Studies, Paris;
For the Federal Republic of Germany: Mr. Hartmut Hillgenberg,
Director-General of Legal Affairs, Ministry of Foreign Affairs;
For Indonesia: H.E. Mr. Johannes Berchmans Soedarmanto Kadarisman,
Ambassador of Indonesia to the Netherlands;
For Mexico: H.E. Mr. Sergio Gonzalez Galvez, Ambassador, Under-Secretary of
Foreign Relations;
For the Islamic Republic of Iran: H.E. Mr. Mohammad J. Zarif, Deputy
Minister, Legal and International Affairs, Ministry of Foreign Affairs;
For Italy: Mr. Umberto Leanza, Professor of International Law at the Faculty
of Law at the University of Rome "Tor Vergata", Head of the Diplomatic Legal
Service at the Ministry of Foreign Affairs;
For Japan: H.E. Mr. Takekazu Kawamura, Ambassador, Director General for Arms
Control and Scientific Affairs, Ministry of Foreign Affairs;
Mr. Takashi Hiraoka, Mayor of Hiroshima;
Mr. Iccho Itoh, Mayor of Nagasaki;
For Malaysia: H.E. Mr. Tan Sri Razali Ismail, Ambassador, Permanent
Representative of Malaysia to the United Nations;
Dato' Mohtar Abdullah, Attorney-General;
For New Zealand: The Honourable Paul East, Q.C., Attorney-General of New
Zealand;
Mr. Allan Bracegirdle, Deputy Director of Legal Division of the New Zealand
Ministry of Foreign Affairs and Trade;
For the Philippines: H.E. Mr. Rodolfo S. Sanchez, Ambassador of the
Philippines to the Netherlands;
Professor Merlin M. Magallona, Dean, College of Law, University of the
Philippines;
For the Russian Federation: Mr. A. G. Khodakov, Director, Legal Department,
Ministry of Foreign Affairs;
For Samoa: H.E. Mr. Neroni Slade, Ambassador and Permanent Representative of
Samoa to the United Nations;
Mrs. Laurence Boisson de Chazournes, Assistant Professor, Graduate Institute
of International Studies, Geneva;
Mr. Roger S. Clark, Distinguished Professor of Law, Rutgers University
School of Law, Camden, New Jersey;
For the Marshall Islands: The Honourable Theodore G. Kronmiller, Legal
Counsel, Embassy of the Marshall Islands to the United States of America;
Mrs. Lijon Eknilang, Council Member, Rongelap Atoll Local Government;
For Solomon Islands: The Honourable Victor Ngele, Minister of Police and
National Security;
Mr. Jean Salmon, Professor of Law, Universite libre de Bruxelles;
Mr. Eric David, Professor of Law, Universite libre de Bruxelles;
Mr. Philippe Sands, Lecturer in Law, School of Oriental and African Studies,
London University, and Legal Director, Foundation for International
Environmental Law and Development; [p 71]
Mr. James Crawford, Whewell Professor of International Law, University of
Cambridge;
for Costa Rica: Mr. Carlos Vargas-Pizarro, Legal Counsel and Special Envoy
of the Government of Costa Rica;
For the United Kingdom of Great Britain and Northern Ireland:
The Rt. Honourable Sir Nicholas Lyell, Q.C., M.P., Her Majesty's
Attorney-General;
For the United States of America: Mr. Conrad K. Harper, Legal Adviser, US
Department of State;
Mr. Michael J. Matheson, Principal Deputy Legal Adviser, US Department of
State;
Mr. John H. McNeill, Senior Deputy General Counsel, US Department of
Defense;
For Zimbabwe: Mr. Jonathan Wutawunashe, Charge d'affaires a.i., Embassy of
the Republic of Zimbabwe in the Netherlands.
Questions were put by Members of the Court to particular participants in the
oral proceedings, which replied in writing, as requested, within the
prescribed time-limits; the Court having decided that the other participants
could also reply to those questions on the same terms, several of them did
so. Other questions put by Members of the Court were addressed, more
generally, to any participant in the oral proceedings; several of them
replied in writing, as requested, within the prescribed time-limits.
***
10. The Court has the authority to give advisory opinions by virtue of
Article 65 of its Statute, paragraph 1 of which reads as follows:
"The Court may give an advisory opinion on any legal question at the request
of whatever body may be authorized by or in accordance with the Charter of
the United Nations to make such a request."
It is also stated, in Article 96, paragraph 2, of the Charter that the
"specialized agencies, which may at any time be so authorized by the General
Assembly, may also request advisory opinions of the Court on legal questions
arising within the scope of their activities".
Consequently, three conditions must be satisfied in order to found the
jurisdiction of the Court when a request for an advisory opinion is
submitted to it by a specialized agency: the agency requesting the opinion
must be duly authorized, under the Charter, to request opinions from the [p
72] Court; the opinion requested must be on a legal question; and this
question must be one arising within the scope of the activities of the
requesting agency (cf. Application for Review of Judgement No. 273 of the
United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports
1982, pp. 333-334).
11. Where the WHO is concerned, the above-mentioned texts are reflected in
two other provisions, to which World Health Assembly Resolution WHA46.40
expressly refers in paragraph 1 of its operative part. These are, on the one
hand, Article 76 of that Organization's Constitution, under which:
"Upon authorization by the General Assembly of the United Nations or upon
authorization in accordance with any agreement between the Organization and
the United Nations, the Organization may request the International Court of
Justice for an advisory opinion on any legal question arising within the
competence of the Organization."
And on the other hand, paragraph 2 of Article X of the Agreement of 10 July
1948 between the United Nations and the WHO, under which:
"The General Assembly authorizes the World Health Organization to request
advisory opinions of the International Court of Justice on legal questions
arising within the scope of its competence other than questions concerning
the mutual relationships of the Organization and the United Nations or other
specialized agencies."
This agreement was approved by the United Nations General Assembly on 15
November 1947 (resolution 124 (II)) and by the World Health Assembly on 10
July 1948 (resolution [WHA1.102]).
12. There is thus no doubt that the WHO has been duly authorized, in
accordance with Article 96, paragraph 2, of the Charter, to request advisory
opinions of the Court. The first condition which must be met in order to
found the competence of the Court in this case is thus fulfilled. Moreover,
this point has not been disputed; and the Court has in the past agreed to
deal with a request for an advisory opinion submitted by the WHO (see
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt,
Advisory Opinion, I.C.J. Reports 1980, pp. 73 et seq.).
**
13. However, during both the written and oral proceedings, some States have
disputed whether the other conditions necessary for the jurisdiction of the
Court have been met in the present case. It has been contended that the
question before the Court is an essentially political one, [p 73] and also
that it goes beyond the scope of the WHO's proper activities, which would in
limine have deprived the Organization itself of any competence to seise the
Court of it.
14. Further, various arguments have been put forward for the purpose of
persuading the Court to use the discretionary power it possesses under
Article 65, paragraph 1, of the Statute, to decline to give the opinion
sought. The Court can however only exercise this discretionary power if it
has first established that it has jurisdiction in the case in question; if
the Court lacks jurisdiction, the question of exercising its discretionary
power does not arise.
15. The Court must therefore first satisfy itself that the advisory opinion
requested does indeed relate to a "legal question" within the meaning of its
Statute and the United Nations Charter.
The Court has already had occasion to indicate that questions
"framed in terms of law and raising problems of international law . . . are
by their very nature susceptible of a reply based on law . . . [and] appear
. . . to be questions of a legal character" (Western Sahara, Advisory
Opinion, I.C.J. Reports 1975, p. 18, para. 15).
16. The question put to the Court by the World Health Assembly does in fact
constitute a legal question, as the Court is requested to rule on whether,
"in view of the health and environmental effects, . . . the use of nuclear
weapons by a State in war or other armed conflict [would] be a breach of its
obligations under international law including the WHO Constitution".
To do this, the Court must identify the obligations of States under the
rules of law invoked, and assess whether the behaviour in question conforms
to those obligations, thus giving an answer to the question posed based on
law.
The fact that this question also has political aspects, as, in the nature of
things, is the case with so many questions which arise in international
life, does not suffice to deprive it of its character as a "legal question"
and to "deprive the Court of a competence expressly conferred on it by its
Statute" (Application for Review of Judgement No. 158 of the United Nations
Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 172,
para. 14). Whatever its political aspects, the Court cannot refuse to admit
the legal character of a question which invites it to discharge an
essentially judicial task, namely, an assessment of the legality of the
possible conduct of States with regard to the obligations imposed upon them
[p 74] by international law (cf. Conditions of Admission of a State to
Membership in the United Nations (Article 4 of Charter), Advisory Opinion,
I.C.J. Reports 1948, pp. 61-62; Competence of the General Assembly for the
Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports
1950, pp. 6-7; Certain Expenses of the United Nations (Article 17, paragraph
2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155).
Furthermore, as the Court said in the Opinion it gave in 1980 concerning the
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt:
"Indeed, in situations in which political considerations are prominent it
may be particularly necessary for an international organization to obtain an
advisory opinion from the Court as to the legal principles applicable with
respect to the matter under debate, especially when these may include the
interpretation of its constitution." (I.C.J. Reports 1980, p. 87, para. 33.)
17. The Court also finds that the political nature of the motives which may
be said to have inspired the request and the political implications that the
opinion given might have are of no
relevance in the establishment of its jurisdiction to give such an opinion.
**
18. The Court will now seek to determine whether the advisory opinion
requested by the WHO relates to a question which arises "within the scope of
[the] activities" of that Organization, in accordance with Article 96,
paragraph 2, of the Charter.
The Court notes that this third condition to which its advisory function is
subject is expressed in slightly different terms in Article X, paragraph 2,
of the Agreement of 10 July 1948 < which refers to questions arising within
the scope of the WHO's "competence" < and in Article 76 of the WHO
Constitution < which refers to questions arising "within the competence" of
the Organization. However, it considers that, for the purposes of this case,
no point of significance turns on the different formulations.
19. In order to delineate the field of activity or the area of competence of
an international organization, one must refer to the relevant rules of the
organization and, in the first place, to its constitution. From a formal
standpoint, the constituent instruments of international organizations are
multilateral treaties, to which the well-established rules of treaty
interpretation apply. As the Court has said with respect to the Charter:
"On the previous occasions when the Court has had to interpret the Charter
of the United Nations, it has followed the principles and rules applicable
in general to the interpretation of treaties, since it [p 75] has recognized
that the Charter is a multilateral treaty, albeit a treaty having certain
special characteristics." (Certain Expenses of the United Nations (Article
17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p.
157.)
But the constituent instruments of international organizations are also
treaties of a particular type; their object is to create new subjects of law
endowed with a certain autonomy, to which the parties entrust the task of
realizing common goals. Such treaties can raise specific problems of
interpretation owing, inter alia, to their character which is conventional
and at the same time institutional; the very nature of the organization
created, the objectives which have been assigned to it by its founders, the
imperatives associated with the effective performance of its functions, as
well as its own practice, are all elements which may deserve special
attention when the time comes to interpret these constituent treaties.
According to the customary rule of interpretation as expressed in Article 31
of the 1969 Vienna Convention on the Law of Treaties, the terms of a treaty
must be interpreted "in their context and in the light of its object and
purpose" and there shall be
"taken into account, together with the context:
. . . .
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation". any
subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation".
The Court has had occasion to apply this rule of interpretation several
times (see Arbitral Award of 31 July 1989 (Guinea Bissau v. Senegal),
Judgment of 31 July 1991, I.C.J. Reports, 1991, pp. 69-70, para. 48; Land,
Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua
intervening), Judgment of 11 September 1992, I.C.J. Reports 1992, pp.
582-583, para. 373 and p. 586, para. 380; Territorial Dispute (Libyan Arab
Jamahiriya/Chad), I.C.J. Reports 1994, pp. 21-22, para. 41; Maritime
Delimitation and Territorial Questions between Qatar and Bahrain (Qatar v.
Bahrain), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p.
18, para. 33); it will also apply it in this case for the purpose of
determining whether, according to the WHO Constitution, the question to
which it has been asked to reply arises "within the scope of [the]
activities" of that Organization.
*
20. The WHO Constitution was adopted and opened for signature on 22 July
1946; it entered into force on 7 April 1948 and was amended in 1960, 1975,
1977, 1984 and 1994.
The functions attributed to the Organization are listed in 22 subparagraphs
(subparagraphs (a) to (v)) in Article 2 of its Constitution. None of these
subparagraphs expressly refers to the legality of any activity [p 76]
hazardous to health; and none of the functions of the WHO is dependent upon
the legality of the situations upon which it must act. Moreover, it is
stated in the introductory sentence of Article 2 that the Organization
discharges its functions "in order to achieve its objective". The objective
of the Organization is defined in Article 1 as being "the attainment by all
peoples of the highest possible level of health". As for the Preamble to the
Constitution, it sets out various principles which the States parties
"declare, in conformity with the Charter of the United Nations, . . . [to
be] basic to the happiness, harmonious relations and security of all
peoples": hence, it is stated therein, inter alia, that "the enjoyment of
the highest attainable standard of health is one of the fundamental rights
of every human being" and that "the health of all peoples is fundamental to
the attainment of peace and security"; it is further indicated, at the end
of the Preamble that,
"for the purpose of co-operation among themselves and with others to promote
and protect the health of all peoples, the Contracting Parties . . .
establish . . . the . . . Organization . . . as a specialized agency within
the terms of Article 57 of the Charter of the United Nations".
21. Interpreted in accordance with their ordinary meaning, in their context
and in the light of the object and purpose of the WHO Constitution, as well
as of the practice followed by the Organization, the provisions of its
Article 2 may be read as authorizing the Organization to deal with the
effects on health of the use of nuclear weapons, or of any other hazardous
activity, and
to take preventive measures aimed at protecting the health of populations in
the event of such weapons being used or such activities engaged in.
The question put to the Court in the present case relates, however, not to
the effects of the use of nuclear weapons on health, but to the legality of
the use of such weapons in view of their health and environmental effects.
Whatever those effects might be, the competence of the WHO to deal with them
is not dependent on the legality of the acts that caused them. Accordingly,
it does not seem to the Court that the provisions of Article 2 of the WHO
Constitution, interpreted in accordance with the criteria referred to above,
can be understood as conferring upon the Organization a competence to
address the legality of the use of nuclear weapons, and thus in turn a
competence to ask the Court about that.
22. World Health Assembly resolution WHA46.40, by which the Court has been
seised of this request for an opinion, expressly refers, in its Preamble, to
the functions indicated under subparagraphs (a), (k), (p) and (v) of Article
2 under consideration. These functions are defined as:
"(a) to act as the directing and co-ordinating authority on international
health work;
. . . .
[p 77]
(k) to propose conventions, agreements and regulations, and make
recommendations with respect to international health matters; to propose
conventions, agreements and regulations, and make recommendations with
respect to international health matters;
. . . .
(p) to study and report on, in co-operation with other specialized agencies
where necessary, administrative and social techniques affecting public
health and medical care from preventive and curative points of view,
including hospital services and social security; to study and report on, in
co-operation with other specialized agencies where necessary, administrative
and social techniques affecting public health and medical care from
preventive and curative points of view, including hospital services and
social security;
. . . .
[and]
(v) generally to take all necessary action to attain the objective of the
Organization." generally to take all necessary action to attain the
objective of the Organization."
In the view of the Court, none of these functions has a sufficient
connection with the question before it for that question to be capable of
being considered as arising "within the scope of [the] activities" of the
WHO. The causes of the deterioration of human health are numerous and
varied; and the legal or illegal character of these causes is essentially
immaterial to the measures which the WHO must in any case take in an attempt
to remedy their effects. In particular, the legality or illegality of the
use of nuclear weapons in no way determines the specific measures, regarding
health or otherwise (studies, plans, procedures, etc.), which could be
necessary in order to seek to prevent or cure some of their effects. Whether
nuclear weapons are used legally or illegally, their effects on health would
be the same. Similarly, while it is probable that the use of nuclear weapons
might seriously prejudice the WHO's material capability to deliver all the
necessary services in such an eventuality, for example, by making the
affected areas inaccessible, this does not raise an issue falling within the
scope of the Organization's activities within the meaning of Article 96,
paragraph 2, of the Charter. The reference in the question put to the Court
to the health and environmental effects, which according to the WHO the use
of a nuclear weapon will always occasion, does not make the question one
that falls within the WHO's functions.
23. However, in its Preamble, resolution WHA46.40 refers to "primary
prevention" in the following terms:
"Recalling that primary prevention is the only appropriate means to deal
with the health and environmental effects of the use of nuclear weapons FN2;
------------------------------------------------------------------------------------------------------------
FN2 See Effects of Nuclear War on Health and Health Services (2nd ed.),
Geneva, WHO, 1987.
------------------------------------------------------------------------------------------------------------
. .. .
[p 78]
Realizing that primary prevention of the health hazards of nuclear weapons
requires clarity about the status in international law of their use, and
that over the last 48 years marked differences of opinion have been
expressed by Member States about the lawfulness of the use of nuclear
weapons;
. . . ;
The document entitled Effects of Nuclear War on Health and Health Services,
to which the Preamble refers, is a report prepared in 1987 by the Management
Group created by the Director-General of the WHO in pursuance of World
Health Assembly resolution WHA36.28; this report updates another report on
the same topic, which had been prepared in 1983 by an international
committee of experts in medical sciences and public health, and whose
conclusions had been approved by the Assembly in its above-mentioned
resolution. As several States have observed during the present proceedings,
the Management Group does indeed emphasize in its 1987 report that "the only
approach to the treatment of health effects of nuclear warfare is primary
prevention, that is, the prevention of nuclear war" (Summary, p. 5, para.
7). However, the Group states that "it is not [for it] to outline the
political steps by which this threat can be removed or the preventive
measures to be implemented" (ibid., para. 8); and the Group concludes:
"However, WHO can make important contributions to this process by
systematically distributing information on the health consequences of
nuclear warfare and by expanding and intensifying international cooperation
in the field of health." (Ibid., item 9.)
24. The WHO could only be competent to take those actions of "primary
prevention" which fall within the functions of the Organization as defined
in Article 2 of its Constitution. In consequence, the references to this
type of prevention which are made in the Preamble to resolution WHA46.40 and
the link there suggested with the question of the legality of the use of
nuclear weapons do not affect the conclusions reached by the Court in
paragraph 22 above.
25. The Court need hardly point out that international organizations are
subjects of international law which do not, unlike States, possess a general
competence. International organizations are governed by the "principle of
speciality", that is to say, they are invested by the States which create
them with powers, the limits of which are a function of the common interests
whose promotion those States entrust to them. The Permanent Court of
International Justice referred to this basic principle in the following
terms:
"As the European Commission is not a State, but an international institution
with a special purpose, it only has the functions bestowed [p 79] upon it by
the Definitive Statute with a view to the fulfilment of that purpose, but it
has power to exercise those functions to their full extent, in so far as the
Statute does not impose restrictions on it." (Jurisdiction of the European
Commission of the Danube, Advisory Opinion, P.C.I.J., Series B, No. 14, p.
64.)
The powers conferred on international organizations are normally the subject
of an express statement in their constituent instruments. Nevertheless, the
necessities of international life may point to the need for organizations,
in order to achieve their objectives, to possess subsidiary powers which are
not expressly provided for in the basic instruments which govern their
activities. It is generally accepted that international organizations can
exercise such powers, known as "implied" powers. As far as the United
Nations is concerned, the Court has expressed itself in the following terms
in this respect:
"Under international law, the Organization must be deemed to have those
powers which, though not expressly provided in the Charter, are conferred
upon it by necessary implication as being essential to the performance of
its duties. This principle of law was applied by the Permanent Court of
International Justice to the International Labour Organization in its
Advisory Opinion No. 13 of July 23rd, 1926 (Series B, No. 13, p. 18), and
must be applied to the United Nations." (Reparation for Injuries Suffered in
the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949,
pp. 182-183; cf. Effect of Awards of Compensation Made by the United Nations
Administrative Tribunal, I.C.J. Reports 1954, p. 57.)
In the opinion of the Court, to ascribe to the WHO the competence to address
the legality of the use of nuclear weapons < even in view of their health
and environmental effects < would be tantamount to disregarding the
principle of speciality; for such competence could not be deemed a necessary
implication of the Constitution of the Organization in the light of the
purposes assigned to it by its member States.
26. The World Health Organization is, moreover, an international
organization of a particular kind. As indicated in the Preamble and
confirmed by Article 69 of its Constitution, "the Organization shall be
brought into relation with the United Nations as one of the specialized
agencies referred to in Article 57 of the Charter of the United Nations."
Article 57 of the Charter defines "specialized agencies" as follows:
"1. The various specialized agencies, established by intergovernmental
agreement and having wide international responsibilities, as defined in
their basic instruments, in economic, social, cultural, educational, health,
and related fields, shall be brought into relationship with the United
Nations in accordance with the provisions of Article 63. [p 80]
2. Such agencies thus brought into relationship with the United Nations are
hereinafter referred to as 'specialized agencies'."
Article 58 of the Charter reads:
"The Organization shall make recommendations for the co-ordination of the
policies and activities of the specialized agencies."
Article 63 of the Charter then provides:
"1. The Economic and Social Council may enter into agreements with any of
the agencies referred to in Article 57, defining the terms on which the
agency concerned shall be brought into relationship with the United Nations.
Such agreements shall be subject to approval by the General Assembly.
2. It may co-ordinate the activities of the specialized agencies through
consultation with and recommendations to such agencies and through
recommendations to the General Assembly and to the Members of the United
Nations."
As these provisions demonstrate, the Charter of the United Nations laid the
basis of a "system" designed to organize international co-operation in a
coherent fashion by bringing the United Nations, invested with powers of
general scope, into relationship with various autonomous and complementary
organizations, invested with sectorial powers. The exercise of these powers
by the organizations belonging to the "United Nations system" is
co-ordinated, notably, by the relationship agreements concluded between the
United Nations and each of the specialized agencies. In the case of the WHO,
the agreement of 10 July 1948 between the United Nations and that
Organization actually refers to the WHO Constitution in the following terms
in Article I:
"The United Nations recognizes the World Health Organization as the
specialized agency responsible for taking such action as may be appropriate
under its Constitution for the accomplishment of the objectives set forth
therein."
It follows from the various instruments mentioned above that the WHO
Constitution can only be interpreted, as far as the powers conferred upon
that Organization are concerned, by taking due account not only of the
general principle of speciality, but also of the logic of the overall system
contemplated by the Charter. If, according to the rules on which that system
is based, the WHO has, by virtue of Article 57 of the Charter, "wide
international responsibilities", those responsibilities are necessarily
restricted to the sphere of public "health" and cannot encroach on the
responsibilities of other parts of the United Nations system. And there is
no doubt that questions concerning the use of force, the regulation of
armaments and disarmament are within the competence of the United Nations
and lie outside that of the specialized agencies. Besides, any other
conclusion would render virtually meaningless the notion of a specialized
agency; it is difficult to imagine what other meaning that [p 81] notion
could have if such an organization need only show that the use of certain
weapons could affect its objectives in order to be empowered to concern
itself with the legality of such use. It is therefore difficult to maintain
that, by authorizing various specialized agencies to request opinions from
the Court under Article 96, paragraph 2, of the Charter, the General
Assembly intended to allow them to seise the Court of questions belonging
within the competence of the United Nations.
For all these reasons, the Court considers that the question raised in the
request for an advisory opinion submitted to it by the WHO does not arise
"within the scope of [the] activities" of that Organization as defined by
its Constitution.
*
27. A consideration of the practice of the WHO bears out these conclusions.
None of the reports and resolutions referred to in the Preamble to World
Health Assembly resolution WHA46.40 is in the nature of a practice of the
WHO in regard to the legality of the threat or use of nuclear weapons. The
Report of the Director-General (doc. A46/30), referred to in the third
paragraph of the Preamble, the aforementioned resolutions WHA34.38 and
WHA36.28, as well as resolution WHA40.44, all of which are referred to in
the fourth paragraph, as well as the above-mentioned report of the
Management Group of 1987 to which reference is made in the fifth and seventh
paragraphs, deal exclusively, in the case of the first, with the health and
environmental effects of nuclear weapons, and in the case of the remainder,
with the effects of nuclear weapons on health and health services. As
regards resolutions WHA42.26 and WHA45.31, referred to in the sixth
paragraph of the Preamble to resolution WHA46.40, the first concerns the
WHO's contribution to international efforts towards sustainable development
and the second deals with the effects on health of environmental
degradation. None of these reports and resolutions deals with the legality
of the use of nuclear weapons.
Resolution WHA46.40 itself, adopted, not without opposition, as soon as the
question of the legality of the use of nuclear weapons was raised at the
WHO, could not be taken to express or to amount on its own to a practice
establishing an agreement between the members of the Organization to
interpret its Constitution as empowering it to address the question of the
legality of the use of nuclear weapons.
Nowhere else does the Court find any practice of this kind. In particular,
such a practice cannot be inferred from isolated passages of certain
resolutions of the World Health Assembly cited during the present
proceedings, such as resolution WHA15.51 on the role of the physician in the
preservation and development of peace, resolution WHA22.58 concerning
co-operation between the WHO and the United Nations in regard to chemical
and bacteriological weapons and the effects of their [p 82] possible use,
and resolution WHA42.24 concerning the embargo placed on medical supplies
for political reasons and restrictions on their movement. The Court has also
noted that the WHO regularly takes account of various rules of international
law in the exercise of its functions; that it participates in certain
activities undertaken in the legal sphere at the international level < for
example, for the purpose of drawing up an international code of practice on
transboundary movements of radioactive waste; and that it participates in
certain international conferences for the progressive development and
codification of international law. That the WHO, as a subject of
international law, should be led to apply the rules of international law or
concern itself with their development is in no way surprising; but it does
not follow that it has received a mandate, beyond the terms of its
Constitution, itself to address the legality or illegality of the use of
weaponry in hostilities.
*
28. It remains to be considered whether the insertion of the words
"including the WHO Constitution" in the question put to the Court (which
essentially seeks an opinion on the legality of the use of nuclear weapons
in general) could allow it to offer an opinion on the legality of the use of
nuclear weapons by reference to the passage in the question concerning the
WHO Constitution. The Court must answer in the negative. Indeed, the WHO is
not empowered to seek an opinion on the interpretation of its Constitution
in relation to matters outside the scope of its functions.
**
29. Other arguments have nevertheless been put forward in the proceedings to
found the jurisdiction of the Court in the present case.
It has thus been argued that World Health Assembly resolution WHA46.40,
having been adopted by the requisite majority, "must be presumed to have
been validly adopted" (cf. Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) notwithstanding
Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 22, para. 20). The Court would observe in this respect that the
question whether a resolution has been duly adopted from a procedural point
of view and the question whether that resolution has been adopted intra
vires are two separate issues. The mere fact that a majority of States, in
voting on a resolution, have complied with all the relevant rules of form
cannot in itself suffice to remedy any fundamental defects, such as acting
ultra vires, with which the resolution might be afflicted.
As the Court has stated, "each organ, must, in the first place at least,
determine its own jurisdiction" (Certain Expenses of the United Nations [p
83] (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J.
Reports 1962, p. 168). It was therefore certainly a matter for the World
Health Assembly to decide on its competence < and, thereby, that of the WHO
< to submit a request to the Court for an advisory opinion on the question
under consideration, having regard to the terms of the Constitution of the
Organization and those of the Agreement of 10 July 1948 bringing it into
relationship with the United Nations. But likewise it is incumbent on the
Court to satisfy itself that the conditions governing its own competence to
give the opinion requested are met; through the reference made,
respectively, by Article 96, paragraph 2, of the Charter to the "scope of
[the] activities" of the Organization and by Article X, paragraph 2, of the
Agreement of 10 July 1948 to its "competence", the Court also finds itself
obliged, in the present case, to interpret the Constitution of the WHO.
The exercise of the functions entrusted to the Court under Article 65,
paragraph 1, of its Statute requires it to furnish such an interpretation,
independently of any operation of the specific recourse mechanism which
Article 75 of the WHO Constitution reserves for cases in which a question or
dispute arises between States concerning the interpretation or application
of that instrument; and in doing so the Court arrives at different
conclusions from those reached by the World Health Assembly when it adopted
resolution WHA46.40.
*
30. Nor can the Court accept the argument that the General Assembly of the
United Nations, as the source from which the WHO derives its power to
request advisory opinions, has, in its resolution 49/75 K, confirmed the
competence of that organization to request an opinion on the question
submitted to the Court. In the last preambular paragraph of that resolution,
the General Assembly
"[welcomed] resolution 46/40 of 14 May 1993 of the Assembly of the World
Health Organization, in which the organization requested the International
Court of Justice to give an advisory opinion on whether the use of nuclear
weapons by a State in war or other armed conflict would be a breach of its
obligations under international law, including the Constitution of the World
Health Organization".
In expressing this opinion, the General Assembly clearly reflected the wish
of a majority of States that the Assembly should lend its political support
to the action taken by the WHO, which it welcomed. However, the Court does
not consider that, in doing so, the General Assembly meant to pass upon the
competence of the WHO to request an opinion on the question raised.
Moreover, the General Assembly could evidently [p 84] not have intended to
disregard the limits within which Article 96, paragraph 2, of the Charter
allows it to authorize the specialized agencies to request opinions from the
Court - limits which were reaffirmed in Article X of the relationship
agreement of 10 July 1948.
**
31. Having arrived at the view that the request for an advisory opinion
submitted by the WHO does not relate to a question which arises "within the
scope of [the] activities" of that Organization in accordance with Article
96, paragraph 2, of the Charter, the Court finds that an essential condition
of founding its jurisdiction in the present case is absent and that it
cannot, accordingly, give the opinion requested. Consequently, the Court is
not called upon to examine the arguments which were laid before it with
regard to the exercise of its discretionary power to give an opinion.
***
32. For these reasons,
THE COURT,
By eleven votes to three,
Finds that it is not able to give the advisory opinion which was requested
of it under World Health Assembly resolution WHA46.40 dated 14 May 1993.
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda,
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari
Bravo, Higgins.
AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.
Done in French and in English, the French text being authoritative, at the
Peace Palace, The Hague, this eighth day of July, one thousand nine hundred
and ninety-six, in three copies, one of which will be placed in the archives
of the Court and the others transmitted to the Secretary-General of the
United Nations and the Director-General of the World Health Organization,
respectively.
(Signed) Mohammed BEDJAOUI,
President.
(Signed) Eduardo VALENCIA-OSPINA,
Registrar. [p 85]
Judges RANJEVA and FERRARI BRAVO append declarations to the Advisory Opinion
of the Court.
Judge ODA appends a separate opinion to the Advisory Opinion of the Court.
Judges SHAHABUDDEEN, WEERAMANTRY and KOROMA append dissenting opinions to
the Advisory Opinion of the Court.
(Initialled) M. B.
(Initialled) E. V. O.
[p 86]
Declaration of judge Ranjeva
[ Translation ]
I have voted in favour of the Court's decision as I consider it to be in
accordance with the relevant law. I should nonetheless have preferred the
Court to have been more explicit in respect of the problem of its advisory
jurisdiction, by laying stress on the fact that the structure of the
question put by the World Health Assembly did not permit it to exercise the
jurisdiction that it had, in any case.
(Signed) Raymond Ranjeva.
[p 87]
Declaration of judge Ferrari Bravo
[ Translation ]
I have voted in favour of the Advisory Opinion on the legality of nuclear
weapons given this same day (Legality of the Threat or Use of Nuclear
Weapons, I.C.J. Reports 1996, p. 226) because I think it is incumbent upon
the International Court of Justice to spare no pains to answer, to the best
of its ability, the questions put to it by such principal organs of the
United Nations as are entitled to seise the Court, particularly when such
an answer may increase the likelihood of resolving a deadlock which, in the
present case, has been perpetuated for over 50 years, casting a sombre,
threatening shadow over the whole of mankind.
The Court, functioning as the principal judicial organ of the United Nations
(Article 92 of the Charter), was set up to do just that among other things
and does not have to ask itself whether its reply, given to the best of
its ability, can contribute to the development of the situation. Neither
does it have to justify itself if that reply is less than exhaustive. I
accordingly subscribe fully to the reasons given in support of the Court's
decision to allow the question put by the General Assembly.
In that regard, it is however necessary to point out that the matter appears
in a quite different light when the Court is seised by a specialized agency
of the United Nations, whose competence to make application to the Court is,
for reasons of principle, clearly defined. I accordingly also voted in
favour of the present Opinion whereby the Court decided not to answer the
question put to it by the World Health Organization, and consider my conduct
to have been consistent. The Court is the principal judicial organ of the
United Nations, but it is not the judicial organ of other international
bodies whose right to seise the Court needs to be carefully restricted if
the intention is to maintain a correct division of competences and hence
of effectiveness among the international organizations, in a bid to
prevent those political functions that the logic of the system has entrusted
only to the United Nations from being usurped by other organizations which,
to say the least, have neither the competence nor the structure to assume
them.
(Signed) L. Ferrari Bravo.
[p 88]
Separate opinion of judge Oda
1. I am in general agreement with the Court's decision that the request for
advisory opinion made by the WHO should be dismissed as well as with the
reasoning leading to that decision.
2. I would like, however, to make one point in connection with the question
put to the Court by the World Health Assembly. Although that question was
whether "the use of nuclear weapons by a State . . . [would] be a breach of
its obligations under international law including the WHO Constitution"
(emphasis added), the matter of whether "the use of nuclear weapons by a
State . . . [would] be a breach of its obligations under international law"
is quite distinct from the separate issue of whether "[that use] [would] ...
be a breach of its obligations under . . . the WHO Con-stitution". Certainly
the question itself is made very ambiguous by the use of the word
"including". My interpretation is, however, that the Court is asked to
render an opinion on the question of whether such a use would be a breach of
the States' obligations not only under international law but also under the
WHO Constitution. The words, "including the WHO Constitution" seem to have
been added to the question put to the Court in the hope that if the question
concerning the use of nuclear weapons under international law were to be
rejected by the Court as not arising within the scope of the activities of
the Organization, then the question of whether such a use would be a breach
of the States' obligations under the WHO Constitution might possibly elicit
a different response.
When the Court, in its reasoning, uses the terms "the legal or illegal
character of [the] causes", "the legality or illegality of the use of
nuclear weapons" or "nuclear weapons . . . used legally or illegally", it
can be seen to deal with the first question only and, on that basis, reaches
the conclusion that the question posed by the World Health Assembly does not
arise within "the scope of the Organization's activities" (Advisory Opinion,
para. 22). I hold the view, however, that the question put to the Court
relates to the interpretation of the WHO Constitution and may be said to
have arisen "within the scope of [its] activities". It does not seem to be
proper for the Court to dispose of the question in the request only from the
standpoint of the "legality or illegality [under international law] of the
use of nuclear weapons", while paying scant attention to the question of
whether the use of nuclear weapons would be a breach of a member State's
obligations under the WHO Constitution.
In its final analysis the Court stated that "the WHO is not empowered to
seek an opinion on the interpretation of its Constitution in relation to [p
89] matters outside the scope of its functions" (Advisory Opinion, para.
28), but I hesitate to comment on the Court's Opinion and do not intend to
go into this aspect in any detail because of my view that the Court should,
in any event, have refrained from rendering an opinion on this question.
3. My particular reason for writing this opinion is that I am personally
very much afraid that if encouragement is given or invitations are extended
for a greater use of the advisory function of the Court as has recently
been advocated on more than one occasion by some authorities it may well
be seised of more requests for advisory opinions which may in essence be
unnecessary and over-simplistic. I firmly believe that the International
Court of Justice should primarily function as a judicial institution to
provide solutions to inter-State disputes of a contentious nature and should
neither be expected to act as a legislature (although new developments in
international law may well be crystallized through the jurisprudence of the
Court) nor to function as an organ giving legal advice (except that the
Court may give opinions on legal questions which arise within the scope of
activities of the authorized international organizations) in circumstances
in which there is no conflict or dispute concerning legal questions between
States or between States and international organizations.
Requests for advisory opinion should, before they are brought to the Court,
be more prudently considered by the international organizations authorized
under Article 96 of the Charter to submit such requests to the Court, and
the Court should in general give the most careful consideration to the way
in which it exercises its advisory function.
4. During the 50-year history of the International Court of Justice, the
Court's opinion has been requested on only three occasions by specialized
agencies, i.e., in the cases concerning: (a) Judgments of the
Administrative Tribunal of the ILO upon Complaints Made against UNESCO
(I.C.J. Reports 1956, p. 77), (b) Constitution of the Maritime Safety
Committee of the Inter-Governmental Maritime Consultative Organization
(I.C.J. Reports 1960, p. 150), and (c) Interpretation of the Agreement of 25
March 1951 between the WHO and Egypt (I.C.J. Reports 1980, p. 73).
In the UNESCO case, the Court was asked to render opinions concerning the
competence of the ILO Administrative Tribunal to hear complaints introduced
against UNESCO by certain staff members of the organization whose
appointments had not been renewed; the IMCO case was related to the
interpretation of the Convention for the Establishment of the IMCO and the
matter of whether the Maritime Safety Committee had been constituted in
accordance with the Convention, and the WHO case was concerned with the
application of the 1951 Regional Headquarters Agreement in a concrete
dispute between the WHO and Egypt (where the regional headquarters of the
WHO was located), and related to the proposed transfer of the headquarters
away from Egypt against that country's wishes.
In each of these three cases each specialized agency, that is, UNESCO, [p
90] IMCO and the WHO, needed the opinion of the Court in order to solve one
or more legal questions arising within the scope of its activities. These
cases brought by requests from specialized agencies in the past history of
the International Court of Justice cannot be considered as precedents for
the present request from the WHO which does not relate to a question
"arising within the scope of its activities".
***
5. The fact that the WHO made its request on the understanding that it was
competent to do so on the basis of the resolution validly passed by the
World Health Assembly does not preclude the Court from taking another
position, as is properly explained in the Court's Opinion (cf. para. 29).
I would merely like to point out in this opinion that the limited function
of the WHO, as one of the specialized agencies, was obviously well known to
the Organization and it may be seen from the records of the World Health
Assembly that the competence of the WHO to put the question to the Court as
set forth in resolution WHA46.40 was vigorously contested not only by a
number of States but also questioned by the Secretariat of the Organization
itself.
*
6. It is only since 1992 that some member States of the WHO have become
interested in the legal aspect of nuclear weapons those same nuclear
weapons which have been in existence for nearly 50 years, ever since the
Organization was created. At the General Committee of the Forty-fifth
Assembly (3rd meeting) on 12 May 1992, the Chairman of the Committee drew
attention to a draft resolution proposed by the delegations of Belarus,
Colombia, Costa Rica, El Salvador, Honduras, Kenya, Namibia, Nicaragua,
Nigeria, Panama, Senegal, Swaziland, Tonga and Zimbabwe,
"[r]equest[ing] the Director-General:
(1) to refer the matter to the Executive Board to study and formulate a
request for an advisory opinion from the International Court of Justice on
the status in international law of the use of nuclear weapons in view of
their serious effects on health and environment;
(2) to report back to the Forty-sixth World Health Assembly" (A45/A/Conf.
Paper No. 2; 9 May 1992).
The General Committee decided, however, not to include "this item" on the
agenda (WHA45/1992/REC/3: Forty-fifth World Health Assembly, 1992, Summary
Records and Reports of Committees, pp. 4-5). The [p 91] reason for this was
clearly explained by Mr. Piel, Legal Counsel, in a statement made in the
12th plenary meeting on the following day, 13 May 1992, which was worded as
follows:
"The reasoning . . . had to do with a number of factors, including some
serious concerns about the mandate of WHO . . . Whether the use of nuclear
weapons is legal or illegal is a question that does not so readily fit the
22 constitutional functions of WHO under Article 2 or the 13 Health Assembly
functions under Article 18.
[I]n order to obtain an advisory opinion, the problem must be real, i.e.,
related to genuine potential controversy and not mere speculation or
intellectual interest.
As Legal Counsel... I have to share with you my grave concerns about this
question of mandate and competence of WHO. My considered opinion is that
the matter is too complicated, and risks serious embarrassment and overlap
within the United Nations system for the Health Assembly to decide on the
matter this year. Therefore, I would suggest that you consider not adding
this supplementary item to the agenda of your Health Assembly at this
time." (WHA45/1992/REC/2: Forty-fifth World Health Assembly, 1992, Verbatim
Records of Plenary Meetings, p. 223.)
*
7. The inclusion of item 32 on "Health and environmental effects of nuclear
weapons" on the agenda of the following Forty-sixth World Health Assembly in
1993, as proposed by Nicaragua, Panama and Vanuatu (EB91/36), met with an
objection at the Executive Board meeting on 29 January 1993. The Legal
Counsel stated that
"he had received a letter on 22 December 1992 from the Office of the
Under-Secretary-General in charge of Legal Affairs of the United Nations,
agreeing that the United Nations itself was more suited to dealing with the
question of the illegality of nuclear weapons",
and he repeated his advice that "the illegality aspect should be referred to
the United Nations" (EB91/1993/REC/2: Executive Board, Ninety-first Session,
Summary Records, p. 247). The Executive Board seems to have paid
insufficient attention to the views of the Legal Counsel.
8. At the Forty-sixth Assembly in May 1993 the General Committee (1st
meeting), upon the suggestion of the Executive Board, approved the inclusion
of "Health and environmental effects of nuclear weapons" as agenda item 33
(WHA46/1993/REC/3: Forty-sixth World Health Assem-[p 92] bly, 1993, Summary
Records and Reports of Committees, p. xiii and p. 2).
Committee B had in hand, under this agenda item and together with the
Director-General's report on "Health and environmental effects of nuclear
weapons" (A46/30: 26 April 1993), a draft resolution sponsored by the
delegations of 21 States, i.e., Bahrain, Belarus, Bolivia, Colombia,
Comoros, Cook Islands, Cuba, Kazakhstan, Kenya, Kiribati, Lithuania, Mexico,
Namibia, Papua New Guinea, Republic of Moldova, Swaziland, Tonga, Uganda,
Vanuatu, Zambia and Zimbabwe (WHA46/1993/REC/3: Forty-sixth World Health
Assembly, 1993, Summary Records and Reports of Committees, p. 257) a text
worded in exactly the same way as the eventual WHA46.40.
When addressing the Committee at its 8th meeting on 11 May 1993, the Legal
Counsel presented a negative view, just as he had done in the previous
year. He suggested that "the task of deciding whether an advisory opinion on
the 'illegality' issue was needed [should] be that of the United Nations
General Assembly, rather than the Health Assembly". In his view,
"[m]ore urgently needed were further disarmament negotiations, culminating
in a truly international convention covering all nuclear weapons, which
would, of course, extend beyond the health mandate of WHO" (ibid, p. 258).
The delegates of Zambia, Mexico, Tonga, Vanuatu, Swaziland, Colombia,
Zimbabwe and Namibia which had themselves sponsored the draft resolution
together with the delegate of Barbados, all spoke in support of it (ibid.,
pp. 259-261).
On the other hand, the United States proposed that the draft resolution
should be determined not to be within the competence of the WHO (ibid., p.
260) and this United States proposal was then supported by Denmark, speaking
on behalf of the Member States of the European Community (ibid., p. 260),
and by Austria and Senegal (ibid., p. 261).
9. The support given to the draft resolution was echoed by the delegates of
certain non-governmental organizations who took part in the Assembly as
observers. The International Physicians for the Prevention of Nuclear War
believed that "WHO would be right to seek an opinion on the matter from the
International Court of Justice and that [WHO] had the competence to do so".
In its opinion, "[WHO's] request to the Court might be the only opportunity
the world health community would have to seek a solution to its greatest
health problem" (ibid., p. 262). The World Federation of Public Health
Associations informed the World Health Assembly at the 9th meeting that
"it had [itself] unanimously adopted a resolution on nuclear weapons and
public health which, inter alia, urged the . . . World Health [p 93]
Assembly to request an advisory opinion from the International Court of
Justice on the legal status of the use of nuclear weapons, so as to remove
the cloud of legal doubt under which the nuclear powers continued their
involvement with such weapons, as well as to provide the legal basis for the
gradual creation of a nuclear-free world" (WHA46/1993/REC/3: Forty-sixth
World Health Assembly, 1993, Summary Records and Reports of Committees, p.
263).
10. The motion of the United States to propose that "the draft resolution
should be determined not to be within the competence of WHO" was, as a
result of a secret ballot, rejected by 62 votes to 38 with 3 abstentions
(ibid., p. 264).
A negative attitude towards the draft resolution was once again voiced by
the Legal Counsel at the 10th meeting when he asserted that
"[s]ince the question of the illegality of nuclear weapons did fall squarely
within the mandate of the United Nations ... it clearly fell within the
mandate of the General Assembly to refer the question of illegality to the
International Court for an advisory opinion".
He stressed that "[f]rom a strictly legal point of view ... it was not
within the normal mandate of WHO to refer the 'illegality' issue to the
Court" (ibid., p. 265). The Director-General himself also stated that "the
content of the draft resolution posed some difficult problems" and
recognized that "WHO should continue to study what was undoubtedly a major
issue, but [that] collaboration was essential within the United Nations
system in that regard" (ibid., p. 266).
11. The further amendment suggested by the United States "to maintain WHO's
commitment to keeping the issue under review, while avoiding the
difficulties to which referral to the International Court would inevitably
give rise" (ibid., p. 266) met with objections from the delegate of Vanuatu,
speaking as a sponsor of the draft resolution, and the delegates of Mexico,
Zambia, Papua New Guinea, Tonga, Libya and Uganda but was supported by
Finland (ibid., pp. 266-268). Senegal maintained a somewhat reserved
position on the draft resolution (ibid., p. 267).
It is noted with particular interest that, with regard to the financial cost
which might be incurred in bringing a request to the Court, the delegate
from an NGO, the International Physicians for the Prevention of Nuclear War,
said that
"[the organization itself] as well as a number of other organizations with
worldwide membership, would assist WHO in its initiative by raising
extrabudgetary funds, should the Committee adopt the resolution before it"
(ibid., p. 268).
The United States amendment was rejected by 60 votes to 33, with 5
abstentions.[p 94]
The further appeal by the United States that a decision on the amendment
should be reached by a two-thirds majority was also rejected by 64 votes in
favour to 31 against, with 2 abstentions (WHA46/1993/REC/3: Forty-sixth
World Health Assembly, 1993, Summary Records and Reports of Committees, p.
268).
The original text of the draft resolution tabled before Committee B was
approved by 73 votes in favour to 31 against, with 6 abstentions (54 States
were absent) (ibid., p. 268). Australia, New Zealand and Sweden indicated
that they had abstained from voting on account of the WHO's lack of
competence to take such an action (ibid., p. 269).
12. It is extremely important to note that at the Committee level the
discussions between the sponsoring States and the opposing States were
exclusively focused upon the issue of whether the proposal for requesting
the Court's opinion should be adopted, as being within the competence of the
WHO. The questions of substance to be put to the Court which naturally had
legal or political implications were not, however, subjected to any
discussion by the delegates and were not elaborated upon.
*
13. At the 13th plenary meeting on the following and closing day of the
Forty-sixth Session of the Assembly, that is, on 14 May 1993, and taking up
the report of Committee B, the plenary dealt with the resolution entitled
"Health and environmental effects of nuclear weapons". The United States
delegate expressed his dismay that many speakers had chosen to disregard the
advice of the Legal Counsel of the WHO and he called for the plenary session
to overrule the decision of Committee B (WHA46/1993/REC/2: Forty-sixth World
Health Assembly, 1993, Ver-batim Records of Plenary Meetings, p. 273).
The United Kingdom gave support to the United States, saying that
"[w]e share the belief of WHO's own Legal Counsel . . . that this matter is
not within the competence of WHO ... A reference to the International Court
of Justice is, in any case, a pointless and expensive, and a disruptive
exercise." (Ibid., p. 273.)
France expressed its intention of voting against the draft resolution and
stated:
"the French Government considers that the World Health Assembly is not the
appropriate forum to deal with such a subject, which has purely political
connotations. My delegation deeply regrets that the work of the Assembly,
which has such important implications for the health of the world's peoples,
should have been disturbed and delayed by political considerations which
were quite out of place." (Ibid., p. 277.) [Translation by the Registry.][p
95]
On the other hand, the delegates of Mexico, Vanuatu, Zambia, Tonga and
Colombia, which were the original sponsors of the draft resolution, took an
opposite position (WHA46/1993/REC/2: Forty-sixth World Health Assembly,
1993, Verbatim Records of Plenary Meetings, pp. 274277).
The Legal Counsel then spoke again, saying that "it is not within the normal
competence or mandate of WHO to deal with the lawfulness or illegality of
the use of nuclear weapons" (ibid., p. 278). He stated that "the ultimate
fundamental issue is one of mandate and competence" and considered that it
was "not the legal mandate of WHO to deal with the lawfulness issue or refer
it to the International Court of Justice" (ibid.). The Director-General
implicitly expressed his reluctance by stating:
"We shall continue to operate within our mandate as a technical agency and a
cooperative of Member States, mandated to act as the directing and
coordinating authority on international health work." (Ibid., p. 279.)
14. A vote on the matter of whether a secret ballot should be held was taken
and the result was 75 votes in favour, 33 against, with 5 abstentions. The
result of a vote on the draft resolution was 73 votes in favour, 40 against,
with 10 abstentions (41 States were absent) (ibid., p. 282). The draft
resolution was thus adopted on 14 May 1993, obtaining only 73 votes from
among 164 member States.
As the vote had been taken by secret ballot, the President did not allow any
State to express its position on the voting beforehand; however Australia,
New Zealand, Canada and the Netherlands repeated after the voting that the
question of the legality of the use of nuclear weapons and the referral of
this question to the International Court of Justice was clearly outside the
mandate of the WHO (ibid., pp. 282-283).
*
15. The adoption at the Forty-sixth World Health Assembly in 1993 of the
resolution whereby the Court was asked to give an opinion was explained at
the recent oral hearings (30 October 1995) before the Court by Mr. Vignes,
who was re-appointed to the position of Legal Counsel after the Forty-sixth
Assembly (after having previously served as Legal Counsel at the time of the
earlier WHO advisory case in 1980), and who made the following statements:
"[T]his question is unprecedented. It is without precedent in dealing for
the first time with an aspect never previously considered by the World
Health Organization and not dealt with in any of the reports presented by
the Director-General. The issue is now no longer simply one of the 'effects
of the use of nuclear weapons', but [p 96] henceforth centres on 'the
lawfulness of the use of nuclear weapons'.
Why and how had this new aspect been raised? It is hard to say. But it would
none the less seem, from a reading of the discussions, that besides the
Governments which had asked for the item to be included in the agenda, and
the co-authors of the draft resolution, at least two non-governmental
organizations had been involved in its preparation . . . Furthermore, it
would seem that the failure at that time but this is obviously no longer
the case of attempts to get the . . . General Assembly to request an
advisory opinion also played some part." [Translation by the Registry.]
We cannot shut our eyes to interpretations given by the competent officials
of the Organization.
***
16. Not only does the WHO lack the competence to submit a request for
advisory opinion to the Court on the above-mentioned question, which appears
not to arise "within the scope of [its] activities" as the Court found in
its Opinion, but it also seems to be clear from the records of the
Forty-fifth and Forty-sixth World Health Assemblies for 1992 and 1993,
respectively, that resolution WHA46.40 was initiated by a few NGOs which had
apparently failed in an earlier attempt to get the United Nations General
Assembly to request an advisory opinion on the subject.
The Court should have fully noted the fact that, while resolution WHA46.40
was certainly adopted by the majority of the World Health Assembly, this was
in spite of strong objections not only from a number of States but also from
the Legal Counsel of the Organization, who was fully aware of and actually
asserted the Organization's lack of competence to request an advisory
opinion of the Court.
(Signed) Shigeru Oda.
[p 97]
Dissenting opinion of judge Shahabuddeen
The reason for my dissent is that, in my respectful view, the Court's
decision proceeds on a mistaken appreciation of the question presented by
the World Health Organization (WHO). In the result, due effect has not been
given to the distinction between preliminary issues and the merits, as the
distinction applies in relation to the question which has been asked: the
ground of the Court's preliminary holding which led to its decision not to
give the requested advisory opinion belongs to the merits. That ground is
less a reason for not answering the question than an answer to it; no
further finding needs to be made in order to provide an answer.
**
First, as to the meaning of the WHO's question. Contrary to an impression
which could be created by the title of the case, it has not been contended
that it is "within the scope of [its] activities", within the meaning of
Article 96, paragraph 2, of the Charter, for the Organization to address the
question of the legality of the use of nuclear weapons as a matter standing
by itself, or, as the Court puts it, to seek "an opinion on the legality of
the use of nuclear weapons in general" (Advisory Opinion, para. 28). The
reference in the question to "international law" does not suffice to suggest
an intention to raise an issue unconnected with the responsibilities of the
WHO.
The Court could, I think, place a more reasonable interpretation on the
question. As is indicated by the opening reference to "the health and
environmental effects", the WHO is not asking whether the use by a State of
nuclear weapons in war or other armed conflict would be a breach of its
obligations under some branch of international law unrelated to the scope of
the Organization's activities, but only whether such use would be a breach
of the obligations of the State under international law in so far as it
would also be a breach of its obligations under the Constitution of the
Organization. The Court has, I think, too lightly dismissed the references
in the question to "the health and environmental effects" and to "the WHO
Constitution".
In essence, the WHO's question is grounded in the specific issue whether the
use of nuclear weapons by a member State would give rise to a breach of its
obligations both under international law and under the Constitution of the
WHO, and not, as the Court considers, in the more general issue of the
legality of the use of nuclear weapons considered [p 98] apart from the
question whether such use would also constitute a breach of the State's
obligations under the Constitution of the WHO.
*
Second, as to the competence of the WHO to ask for an advisory opinion as to
whether some specified conduct of a member State (in this case, the use of
nuclear weapons) would breach its obligations under the Constitution of the
WHO.
The Court correctly holds that the duties of the WHO in relation to any
situation do not depend on the legality of the causes producing that
situation. Thus, in order to determine what are its functions in relation to
a given situation, the WHO is not justified in requesting an advisory
opinion on the subject of the legality of the causes which produced the
situation. The WHO would have to deal with the resulting situation
regardless of whether or not the State which produced it did so in breach of
its obligations under the Constitution of the Organization. A different
question is whether, in order to determine what are the rights and
obligations between itself and a member State, the WHO has competence to
request an advisory opinion as to whether, in producing a situation calling
for action by the WHO, that member State may have breached its obligations
under the Constitution of the WHO. Is the WHO competent to request an
advisory opinion as to whether there is such a breach?
In the course of carrying out its activities, the WHO can be confronted with
the constraining effects of the conduct of a member State. If that conduct
constitutes a breach by that State of its obligations under the Constitution
of the WHO, the latter could take or initiate appropriate remedial measures
to remove any resulting impediment to the carrying out of its activities.
Hence, a legal question as to whether there has been such a breach can arise
"within the scope of [WHO's] activities".
The WHO can consequently present a question to the Court, as it is doing, as
to whether some specified conduct of a State (in this case, the use of
nuclear weapons) would be a breach of its obligations under the Constitution
of the Organization.
*
Third, as to the proposition that the Court's holding concerns the merits.
A question whether some specified conduct of a State would be a breach of
its obligations under the Constitution of the WHO raises two issues: (i)
Does the obligation exist? (ii) If the obligation exists, does the specified
conduct constitute a breach of it? [p 99]
If the obligation exists, the answer to the question will be in the
affirmative or in the negative depending on whether the specified conduct is
or is not found to be a breach of the obligation.
However, if the Court finds that the obligation itself does not exist, then
ex hypothesi the specified conduct could not be a breach of any obligation
under the Constitution of the WHO. This alone suffices to yield an answer to
the question a negative answer, but an answer all the same.
From its analysis of the Constitution of the WHO, the Court concludes that
the Organization has no competence to address the question of the legality
of the use of nuclear weapons. That implies a finding that, under the
Constitution of the WHO, a member State has no obligation not to use
weapons, such as nuclear weapons, which could result in health and
environmental effects, for, if a member State had such an obligation, the
WHO would have had some competence to address a question of the legality of
a use of weapons which might have occurred in breach of that constitutional
obligation.
If a member State has no obligation under the Constitution of the WHO not to
use weapons (such as nuclear weapons) which could result in health and
environmental effects, it follows that, in using such weapons, it is not in
breach of any obligation under that Constitution. This is an answer to the
WHO's question. The Court's holding therefore concerns the merits of the
question which is actually asked.
*
Obviously, this approach is based on a certain view of the distinction
between merits and preliminary issues. What might be a general criterion for
identifying the merits? To borrow from the field of contentious litigation,
"the merits of a dispute consist of the issues of fact and law which give
rise to a cause of action, and which an applicant State must establish in
order to be entitled to the relief claimed" (Anglo-Iranian Oil Co.,
Preliminary Objection, Judgment, I.C.J. Reports 1952, p. 148, Judge Read,
dissenting).
The case at bar is, of course, a case within the Court's advisory
jurisdiction, and caution is appropriate; but that basic approach appears
transposable. It is implicit in paragraph 16 of the Court's decision. This,
in my opinion, recognizes that to give an affirmative answer to the
ques-tion in this case the Court would have to be satisfied that, as a
matter of law, member States have an obligation under the WHO Constitution
not to create health and environmental effects through the use of weapons in
war or other armed conflict, and that, as a matter of fact, the use of
nuclear weapons would create such effects. The issue whether a State has
such an obligation would therefore form part of the merits (see the gen-[p
100]eral reasoning in Electricity Company of Sofia and Bulgaria, Judgment,
1939, P.C.I.J., Series A/B, No. 77, pp. 82-83; Barcelona Traction, Light and
Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports
1964, pp. 44-46, and Judge Morelli, dissenting, at pp. 110-112; Barcelona
Traction, Light and Power Company, Limited, Second Phase, Judgment, I.C.J.
Reports 1970, pp. 226 ff., Judge Morelli, concurring; and South West Africa,
Second Phase, Judgment, I.C.J. Reports 1966, p. 19, para. 7).
**
The conclusion reached above is that the WHO can present a question to the
Court, as it is doing, as to whether some specified conduct of a State would
be a breach of its obligations under the Constitution of the Organization.
The suggested obligations may not exist and thus there may not be a breach
of any obligations. This would mean that, on the merits, the answer to the
question is "No"; but this would not affect the competence of the WHO to ask
the question.
The implication of the Court's decision is that member States do not have an
obligation under the Constitution of the WHO not to use nuclear weapons. It
follows that the use of such weapons by a member State would not "be a
breach of its obligations under international law including the WHO
Constitution", to use the terms of the question as construed above.
This means that the Court is giving an answer to the question asked by the
WHO; it is not really declining to answer the question. The reader of the
Court's decision would not think that the Court needs to do anything more in
order to provide an answer. Whether the Court answers in the negative or in
the affirmative, expressly or impliedly, correctly or incorrectly, it can
only answer by presupposing that the WHO has the competence to ask the
question. This is what the Court denies. I am respectfully of another view.
(Signed) Mohamed Shahabuddeen.
[p 101]
Dissenting opinion of judge Weeramantry
Table of contents
|
|
Pages |
|
|
|
|
I.
Preliminary |
104 |
|
|
|
|
1.
The genesis of WHO's request
|
105 |
|
2.
The Court's advisory jurisdiction
|
107 |
|
3.
The requisites to be fulfilled
|
109 |
|
4.
The question posed by WHO, compared with the
question posed by the General Assembly
|
110 |
|
5.
WHO's presentation of its request before the
Court |
112 |
|
6.
Two levels of WHO's involvement
|
113 |
|
7.
WHO's constitutional responsibilities in
regard to public health in general |
114 |
|
|
|
|
II.
Effects
of Nuclear Weapons on Health x |
115 |
|
|
|
|
1.
Overview of the effects of nuclear weapons on
health |
115 |
|
2.
Health problems in the short term
|
117 |
|
3.
Intermediate and long-term health effects
|
121 |
|
4.
The appearance of devastating epidemics
|
123 |
|
5.
The relevance of the medical material placed
before the Court |
124 |
|
6.
The experience of Hiroshima and Nagasaki
|
126 |
|
|
|
|
III.
Matters
Relating to
WHO's
Competence
|
127 |
|
|
|
|
1.
The objections to WHO's competence
|
127 |
|
2.
The importance of the enquiry relating to
WHO's Constitution |
128 |
|
3.
The constitutional functions of WHO
|
129 |
|
|
|
|
(i) Co-ordination of
international health work (Art.
2
(a))
|
129 |
|
(ii) Collaboration with the
United Nations, specialized agencies, etc. (Art.
2
(b))
|
130 |
|
(iii) Emergencies (Art.
2
(d))
|
131 |
|
(iv) Provision, upon the
request of the United Nations, of health services and facilities to
special groups (Art.
2(e))
|
131 |
|
(v) To propose conventions,
agreements and regulations (Art.
2
(k))
|
131 |
|
(vi)
Research (Art.
2
(n))
|
132 |
|
(vii) Improved standards of
teaching and training (Art. 2
(o))
|
132 |
|
(viii) Public education
(Art. 2
(q)
and
2
(r))
|
132 |
|
4.
The work and concerns of WHO
|
133 |
|
5.
The analogy with chemical and biological
weapons |
134 |
|
6.
The importance of prevention
|
135 |
|
7.
The argument relating to abuse of the Court's
advisory functions |
138 |
|
[p 102] |
|
|
IV.
State Obligations
|
139 |
|
|
|
|
1.
State
obligations in regard to the environment
|
139 |
|
|
|
|
(a)
The progress of
environmental law
|
140 |
|
(b)
The growth of the notion of
State obligations
|
141 |
|
(c)
Active and passive State
obligations |
141 |
|
(d)
The juristic nature of
State obligations
|
142 |
|
(e)
Multilateral treaty
obligations |
143 |
|
|
|
|
2.
State
obligations in regard to health
|
143 |
|
|
|
|
(a)
The human right to health
|
143 |
|
(b)
State obligations in
relation to health
|
144 |
|
(c)
Global implementation
measures involving State obligations in regard to health
|
144 |
|
(d)
The clash between State
obligations and the health-related effects of nuclear weapons
|
145 |
|
|
|
|
3.
The
duties of States under the
WHO
Constitution
|
146 |
|
|
|
|
V.
Principles of Interpretation Relating to WHO's
Constitution |
147 |
|
|
|
|
1.
Principles of interpretation applicable to
WHO's
Constitution |
147 |
|
2.
The
principle of speciality
|
149 |
|
|
|
|
VI.
WHO's
Prior
Efforts |
151 |
|
|
|
|
1.
WHO's
efforts in the nuclear field
|
151 |
|
2.
WHO's
past practice in matters relating to peace
|
152 |
|
3.
Lack
of objection of prior
WHO
actions
|
153 |
|
|
|
|
VII.
Admissibility and Jurisdiction
|
153 |
|
|
|
|
1.
The
Court's discretion
|
153 |
|
2.
The
Court's duty to act judicially
|
154 |
|
3.
The
objections |
155 |
|
|
|
|
(a)
The requested opinion would
enter the political sphere
|
156 |
|
(b)
Nuclear weapons are being
addressed in other contexts in the United Nations
|
157 |
|
(c)
An opinion would be devoid
of object or purpose
|
158 |
|
(d)
An opinion would have no
effect on the conduct of States
|
159 |
|
(e)
An opinion could adversely
affect important disarmament negotiations
|
160 |
|
(f)
The question referred is
purely abstract and theoretical
|
161 |
|
(g)
The question is too
general |
163 |
|
(h)
An opinion rendered in this
matter would be damaging to the prestige of the Court
|
164 |
|
(i)
The Court would be involved
in a law-making exercise if it rendered an opinion
|
164 |
|
(j)
The case falls outside the
categories of cases in which an opinion ought to be given
|
165 |
|
[p
103] |
|
|
(k)
An opinion would trespass
into areas of State policy
|
165 |
|
|
|
|
4. The Court's
responsibilities
|
167 |
|
|
|
|
(a)
As a judicial institution
|
167 |
|
(b)
As a principal organ of the
United Nations |
167 |
|
|
|
|
5. The refusal for want of
jurisdiction |
168 |
|
|
|
|
VIII.
Conclusion
|
169 |
[p 104]
I. Preliminary
It has been argued that the question asked by the World Health Organization
(WHO) travels outside its legitimate concerns. The Court has accepted that
argument. I respectfully dissent.
The question on which WHO seeks the Court's opinion is as follows:
"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?"
I read this question as containing an enquiry in relation to State
obligations in three particular areas:
(a) State obligations in regard to health;
(b) State obligations in regard to the environment; and
(c) State obligations under the WHO Constitution.
This opinion will endeavour to show that the question asked is directly
within WHO's legitimate and mandated area of concern. It relates to an issue
fundamental to global health. It relates to the integrity of the human
environment which is fundamental to global health. It relates to the
fundamental constitutional objective of WHO, which is the attainment by all
peoples of the highest possible level of health.
Global health is central to the question, just as global health is central
to the concerns of WHO. Health issues may have political or legal overtones,
as they often do, but such overtones do not lift them out of the category of
health issues; and health issues are the central concerns of WHO.
Moreover, the Court's ruling has significance for other specialized agencies
as well, who may in the future desire to invoke the Court's advisory
jurisdiction on matters of importance to them in the discharge of their
functions.
It will be noted that the International Court of Justice has not thus far
refused to render an advisory opinion requested of it by any organ or agency
of the United Nations which has been given authority to seek an opinion from
the Court. It is important therefore that when such a request is declined
for the first time in the Court's jurisprudence, the reasons for so
declining must be compelling. The consistent jurisprudence of this Court to
this effect is reflected in a stream of decisionsFN1, which the Court cites
with approval in its Opinion responding to the General Assembly's request
concerning the legality of nuclear weapons.
---------------------------------------------------------------------------------------------------------------------
FN1 Judgments of the Administrative Tribunal of the ILO upon Complaints Made
against UNESCO, Advisory Opinion, I.C.J. Reports 1956, p. 86; Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
Advisory Opinion, I.C.J. Reports 1962, p. 155; Legal Consequences for States
of the Continued Presence of South Africa in Namibia (South West Africa)
notwithstanding Security Council Resolution 276 (1970), Advisory Opinion,
I.C.J. Reports 1971, p. 27; Application for Review of Judgement No. 158 of
the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports
1973, p. 183; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 21;
Applicability of Article VI, Section 22, of the Convention on the Privileges
and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989,
p. 191.
---------------------------------------------------------------------------------------------------------------------
[p 105]
1. The Genesis of WHO's Request
It appears from the report of the Director-General of the World Health
Organization (doc. A46/30 of 25 April 1993) entitled "Health and
Environmental Effects of Nuclear Weapons", which has been furnished to the
Court, that the reference to the Court was proposed by Vanuatu, Ecuador,
Panama and Mexico for the agenda of the Forty-sixth World Health Assembly.
Vanuatu explained its co-sponsorship of the resolution in terms of its
commitment to the health of the international community, in the context of
its own health-related experiences of nuclear weapons. As one of many
thousands of small islands scattered in the Pacific, it claimed it had
suffered as a result of nuclear activity in the Pacific commencing in the
1950s, in that its people were facing many complicated health issues which
they did not have the expertise to diagnose, or the resources to treat.
According to its representative, increases in leukaemia, in cancer, in fish
poisoning, and in skin diseases were common; the food chain, the water and
the ecosystem had been contaminated; miscarriages were common, and
grotesquely deformed babies were being bornFN2.
---------------------------------------------------------------------------------------------------------------------
FN2 Record of 13th Plenary Meeting of the World Health Assembly. 14 May
1993, doc. A46/VR/13, p. 11.
---------------------------------------------------------------------------------------------------------------------
Tonga, another supporting member, referred to Article 1 of the WHO
Constitution and related the enquiry to the constitutional functions of WHO
as listed in various parts of Article 2 of its ConstitutionFN3. Other
members also addressed the Assembly. The matter had been debated earlier in
Committee B of the Assembly, where it had been fully discussed, with over a
hundred delegates taking part.
---------------------------------------------------------------------------------------------------------------------
FN3 Ibid., p. 12.
---------------------------------------------------------------------------------------------------------------------
At the Assembly, strong objections were raised to the reference by, among
others, the United Kingdom, whose representative asserted that this action
was not within the competence of WHO, and characterized it as a "pointless
and expensive, and a disruptive exercise" FN4; by the United States, whose
representative stressed that "This resolution would inject [p 106] the World
Health Organization into debates about arms control and disarmament that
are the responsibility of other organizations in the United Nations system .
. ."FN5; by France, whose representative thought that the Assembly was not
the appropriate forum to deal with a subject with purely political
connotationsFN6; and by Russia, whose representative stated that the
resolution went beyond the competence of WHO, and would lead to
politicization and involvement of the organization in the problem of
disarmament, without its having a proper perspective on the matterFN7.
---------------------------------------------------------------------------------------------------------------------
FN4 Ibid, p. 9.
FN5 Record of 13th Plenary Meeting of the World Health Assembly, 14 May
1993, doc. A46/VR/13, p. 9.
FN6 Ibid., p. 12. .
FN7 Ibid, p. 15.
---------------------------------------------------------------------------------------------------------------------
WHO's legal counsel then took the floor to advise the Assembly. His advice
was as follows:
"The question of health and health-related environmental effects of nuclear
weapons falls squarely within the mandate of WHO as a technical agency. The
question of whether the use of nuclear weapons by a State would be contrary
to the spirit and objective of WHO and, as such, a violation of the
Constitution of WHO, is also within the mandate and competence of this World
Health Assembly. It is not within the normal competence or mandate of WHO to
deal with the lawfulness or illegality of the use of nuclear weapons. In
consequence, it is also not within the normal competence or mandate of WHO
to refer the lawfulness or illegality question to the International Court
of Justice."FN8
------------------------------------------------------------------------------------------------------------
FN8 Ibid, p. 13.
------------------------------------------------------------------------------------------------------------
As already observed, the WHO question was not framed in terms of lawfulness
or illegality in general, but in terms of State obligations in relation to
health, the environment and the WHO Constitution.
The matter turned out to be so sensitive that it was proposed that the
voting be by secret ballot. 75 votes were received in favour of a secret
ballot, 33 against and there were 5 abstentions. The matter was then voted
upon by secret ballot, with the following result:
"Members entitled to vote, 164; absent, 41; abstentions, 10; papers null and
void, 0; number of Members present and voting, 113; number required for a
simple majority, 57; number of votes in favour, 73; number of votes against,
40."FN9
------------------------------------------------------------------------------------------------------------
FN9 Ibid, p. 17.
------------------------------------------------------------------------------------------------------------
Thereafter the General Assembly, in its resolution 49/75 K of 15 December
1994 (by which the Assembly itself requested an opinion of the question of
the legality of nuclear weapons), welcomed the resolution of the Assembly of
the World Health Organization to seek an advisory opinion from the Court.[p
107]
This brief recital of facts shows a clear division of opinion within WHO,
notwithstanding which a decision was taken by a substantial majority to
refer the matter to the Court.
2. The Court's Advisory Jurisdiction
The entitlement of specialized agencies, who have been admitted to this
privilege to seek an advisory opinion from the Court in relation to matters
arising within the scope of their activities, is an important
constitutional right which they enjoy.
Advisory jurisdiction was an innovation in international adjudication,
adopted not without difficultyFN10 after World War I. The right to seek an
opinion was initially given only to the Council and the Assembly of the
League of Nations. After World War II, the San Francisco Conference approved
the patterns of advisory practice as they had evolved, but the circle of
those entitled to seek it was extended. The United Nations family of
organizations today is widely expanded, closely knit, and works together, in
developing areas of international activity, within the framework of the
international rule of law. While each of these organizations has its
specific functions, they all interlock in the common service of the ideals
of the United Nations and they all operate under the common aegis of
international law. Though each of them is given a particular sphere of
activity, they do not necessarily function in closed compartments, for the
complex nature of United Nations activities may often result in overlapping
areas of interest. The work of one organization may interweave with that of
other organizations, and hence would have repercussions on the work of other
members of the United Nations family.
---------------------------------------------------------------------------------------------------------------------
FN10 See Shabtai Rosenne, The World Court: What It Is and How It Works, 5th
ed., 1995, p. 107.
---------------------------------------------------------------------------------------------------------------------
An important role assigned to the Court in this network of interrelated
activity, under the aegis of international law, is the grant of advisory
opinions on matters of law to assist authorized organizations in the United
Nations system who may need it. This represents an important part of the
contribution the Court can make as a member of the United Nations family of
organizations, all pursuing the common objectives of the United Nations,
each in its different ways. It is, inter alia, a means of ensuring a clearer
understanding of the principles of international law relating to their work.
The right of such organizations to seek an opinion from the Court is a
hard-won right and is valuable, both to each organization in particular, and
to the United Nations system in general. This right therefore needs to be
carefully conserved from the standpoint of assisting these organi-[p
108]zations in the discharge of their duties, from the standpoint of the
development of international law, and from the standpoint of ensuring the
smooth interrelationship of these organizations within the family of United
Nations organizations.
The Court's consciousness of its role in assisting the United Nations in
this respect through the Court's advisory jurisdiction has been manifested
in its prior jurisprudence. For example, in the case concerning
Interpretation of Peace Treaties, the Court observed that:
"the reply of the Court, itself an 'organ of the United Nations',
represents its participation in the activities of the Organization, and, in
principle, should not be refused" (I.C.J. Reports 1950, p. 71).
A refusal by the Court to grant an opinion at the request of a specialized
agency authorized to request one is therefore fraught with far-ranging
implications. The first such refusal in the history of this Court could well
affect the readiness of other specialized agencies to approach the Court,
even on a matter relating to their own Constitutions.
This becomes particularly important when decisions are involved which may
have political overtones, or else different organizations may, in case of
doubt, tend to go their different ways on the basis of the dominant
political influences playing upon them rather than on the basis of
international law. As this Court observed in a previous Advisory Opinion
sought by WHO:
"Indeed, in situations in which political considerations are prominent it
may be particularly necessary for an international organization to obtain
an advisory opinion from the Court as to the legal principles applicable
with respect to the matter under debate, especially when these may include
the interpretation of its constitution." (Interpretation of the Agreement of
25 March 1951 between the WHO and Egypt, I.C.J. Reports 1980, p. 87;
emphasis added.)
The reference already made to the history of this request indicates the deep
divisions of opinion that operated within WHO, on a politically sensitive
issue. It is precisely on such matters that great value attaches to the
right to seek an independent opinion based on international law, rather than
on the varying political perceptions of parties.
The Court is of course entitled to refuse a request for an advisory opinion
for cogent reasons and indeed should so refuse if cogent reasons be
present. However, in their absence, there is created a climate of
uncertainty in the relevant area, which can result in a diversity of
inter-pretations on the same legal question. This does not augur well for
the concept of their all functioning harmoniously under a common mantle of
international law. [p 109] WHO seeks this opinion to assist it in the
discharge of one of its weightiest responsibilities. It is the organ
responsible for the planning of the worldwide medical services which can be
offered to the world's population in relation to the various health hazards
that will confront it from time to time. A nuclear attack is one such health
hazard and perhaps the most awful of them all; and WHO will be called upon
to bear the brunt of the international responsibility for organizing medical
assistance to stricken populations after a nuclear attack not only in the
belligerent countries, but also in the neutral countries (all Member States
of the United Nations) who would suffer dire consequences in a war to which
they are not parties. In view of the health and environmental effects of
nuclear weapons, WHO seeks information from the Court regarding State
obligations under international law in relation to health, in relation to
the environment, and in relation to the WHO Constitution.
I believe that the Court's refusal to grant an opinion is based upon
restricted principles of treaty interpretation. The present application
requires, rather, a construction of WHO's statute in the light of its object
and purpose. Its overall purpose is "to promote and protect the health of
all peoples" an objective which all the nations subscribing to the WHO
Charter have recognized in the opening words of that Constitution to be
basic to the security of all peoples. A literal construction of WHO's
Constitution, so as to deprive it of an advisory opinion on the legality of
a serious threat to global health, is not in accordance with the spirit of
WHO's Constitution, or the purposes of the Court's advisory jurisdiction.
3. The Requisites to Be Fulfilled
I begin by stating my agreement with the Court in regard to the three
conditions to be fulfilled to enable a specialized agency to make a request
for an advisory opinion. They are that the agency must be authorized to
request advisory opinions, that the request must be in respect of a legal
question, and that this question must arise within the scope of its
activities.
I believe that in the present case all three conditions are satisfied. I
agree in principle with the Court's treatment of the first and second
requisites, which it is therefore not necessary to consider in this opinion.
I agree in particular with its observations that the presence of political
aspects in the question referred to the Court cannot suffice to deprive it
of its character as a legal question (Advisory Opinion, para. 16), and that
the political implications are of no relevance in this respect (ibid., para.
17).
I respectfully disagree, however, with the Court's finding in regard to the
third requisite and this opinion will centre mainly on an examination of
this aspect.[p 110]
4. The Question Posed by WHO, Compared with the Question Posed by the
General Assembly
There is a substantial difference between the question posed by WHO and that
posed by the General Assembly. Both organizations raise issues of vital
importance and both equally call for the most careful consideration, but it
would not be correct to treat the questions posed by the two bodies as
though they raise the identical issues.
The WHO question, as already noted, is as follows:
"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 General Assembly question reads:
"Is the threat or use of nuclear weapons in any circumstance permitted
under international law?"
The following differences appear at once in the phraseology of the two
questions:
(a) the WHO request relates to use only;
(b) the WHO request is cast in terms of State responsibility;
(c) the WHO request concentrates on health and environmental effects;
(d) the WHO request is limited to use in war or other armed conflict;
(e) the WHO question is cast also in terms of obligations under the WHO
Constitution;
(f) the WHO question raises the issue of specific State obligations
visa-vis health and the environment, and of any conflict between these and
the use of nuclear weapons.
It will be seen that the WHO question is carefully drafted, in conformity
with the health concerns of WHO as contrasted with the broader concerns of
the General Assembly. The question concerns itself with actual use (and not
threat of use), with State responsibility (rather than the broader question
of illegality under international law), with health and environmental
effects (which are the proper sphere of concern of WHO), with use in war or
other armed conflict (and not, again, with the status of nuclear weapons
generally), and with obligations under the WHO Constitution (which is
manifestly a matter of concern to WHO).
WHO's question shows awareness of the need to confine its attention to
questions arising within the scope of its activities, as required by Article
96 (2) of the United Nations Charter, and to questions "arising within the
competence of the Organization", as specified in Article 76 of [p 111] the
WHO Constitution. In conformity with these provisions, it did not traverse
the whole ground of illegality, but made a very specific enquiry. The
question was set in the framework of actual use, which produces medical
consequences, and did not enter the theoretical area of threats. It homed in
on health and environmental effects, which are its undoubted areas of
concern. It sought a legal opinion on the interpretation of its own
Constitution which, in my view, it cannot in any event be denied. Unless
there are compelling reasons to take an opposite view, an enquiry by WHO,
set within the framework of health and environment and of its own
Constitution, seems directly related to its mandate and its functions and
seems eminently to be a question on which, in the event of uncertainty, WHO
is entitled to seek an opinion from the Court.
As already observed, there are three specific segments of WHO's enquiry
which call for particular attention State obligations in regard to health,
in regard to the environment, and in terms of WHO's Constitution.
These require the Court to enquire with some degree of particularity into
the effects of nuclear weapons on health and on the environment. The general
awareness that nuclear weapons damage both health and the environment is
insufficient for this purpose. A more precise examination is required of the
facts.
The next stage of the enquiry is to consider current international law
relating to each of the three heads of obligation set out above.
With the factual and legal material thus placed in juxtaposition with each
other, a clear picture will be obtained as to whether there are conflicts
between State obligations and the results produced by the use of the weapon.
The ensuing discussion will proceed on this basis.
The Opinion of the Court nowhere examines the nature of State obligations
in regard to health and the environment under international law in general,
nor does it examine those obligations in terms of the WHO Constitution. In
my view, it was necessary for the Court to undertake this examination in
order to decide whether or not this enquiry falls within WHO's legitimate
areas of concern.
Moreover, the Court does not focus its attention precisely on the terms of
WHO's question, but addresses, rather, the question of general legality or
illegality of the use of nuclear weapons. This takes the discussion further
away from the immediate concerns of WHO, as reflected in its carefully
worded question, and nearly equates it to the question of general illegality
asked by the General Assembly. Had the Court proceeded on the basis of an
examination of State obligations regarding health and the environment under
international law and under the WHO Constitution, it would have been more
apparent how closely these were related to the work of WHO. [p 112]
5. WHO's Presentation of its Request before the Court
I must confess to some unease at the manner in which WHO presented its
submissions to the Court.
WHO's presentation was extremely detached and objective. This approach
reflected the division of opinion within WHO. WHO's presentation indeed
prompted two questions from a Member of the Court who asked whether
resolution WHA46/40 was "validly adopted" and
"If so, is it now open to any State which was then a member of the World
Health Organization to challenge the competence of the World Health
Organization to request the Court to give an advisory opinion in terms of
the question set out in that resolution?" (CR 95/23, p. 51.)
The reply to the first question was in the affirmative, and the reply to the
second reflected this divided attitude within WHOFN11.
---------------------------------------------------------------------------------------------------------------------
FN11 It stated that
"the legal nature of this type of resolution, and the absence of a specific
provision in the Constitution on this subject, suggest that there is nothing
to prevent a Member State from challenging before the Court the competence
of WHO to request an advisory opinion in terms of the question set out in
that resolution".
---------------------------------------------------------------------------------------------------------------------
There is no requirement now, as there was in the days of the League of
Nations, that a request for an advisory opinion should be based upon a
unanimous vote. That requirement was left behind after World War II and, as
Rosenne observes, "In the United Nations, the unanimity rule has been
completely abandoned . . ."FN12. What we have here is a deliberate decision
democratically taken by a large majority in WHO to seek an opinion. That
must be taken to be the decision of WHO and acted upon as such. The
different view held by a minority, whoever they may be, does not make the
request to the Court any the less a request by WHO, considered as a whole.
---------------------------------------------------------------------------------------------------------------------
FN12 Op. cit., p. 109.
---------------------------------------------------------------------------------------------------------------------
Speaking for myself, I would have appreciated a fuller and ampler
presentation, based upon the rich material which was formally placed before
the Court by WHO.
WHO's representative observed that WHO's attitude in its presentation:
"has never prevented it and will never prevent it from being profoundly
concerned by the sufferings of people, nor from doing everything within its
power to improve their 'level of health'" (CR 95/22, p. 32).
He submitted further that:
"Neutrality does not signify indifference. Neutrality here is the neutrality
of Henri Dunant on the evening of the battle of Solferino, [p 113] who,
regardless of the merits of the belligerents' dispute, was overwhelmed by
the suffering and devastation that the fighting had caused." (CR 95/22, p.
22.)
The Organization's neutrality did not therefore mean that it took no
interest in the health-related effects of the use of weapons. The
comparison with Dunant scarcely matches the situation of WHO. The
neutrality of Dunant was a neutrality between two warring States. That great
humanitarian was concerned only with the sufferings of the victims and not
with the merits of the dispute. There are no hostile parties involved in
this request for an opinion only member States of WHO, all of them equally
committed to the pursuit of global health a cause to which they have all
without distinction committed themselves by being parties to WHO's
Constitution.
Unlike the warring nations at Solferino, the member States of WHO are at
peace with each other, genuinely pursuing through their common organization
their common objective of global health. Those nations, by a large majority,
have decided to seek an advisory opinion from this Court. That decision
needed, in my view, to be implemented in the spirit as well as the letter,
and not in a spirit of neutrality.
6. Two Levels of WHO's Involvement
There are two broad positions that can be taken regarding WHO's interest in
the matters on which the Court's opinion is sought.
One position is that nuclear weapons are so devastating that thereafter all
medical treatment is meaningless. The preventive ethic, which is part of the
medical enterprise, then comes into play and one needs to examine WHO's
interest in prevention.
Those who argue in terms of limited nuclear war tend however to deny the
proposition of total devastation, for they seek to equate the use of nuclear
weapons as far as possible to the use of conventional weapons. In that
event, one must go further and ask what services WHO can prepare itself to
provide after a nuclear attack.
The utility to WHO of an opinion from the Court must therefore be examined
at both levels, if proper consideration is to be given to both points of
view:
(a) the futility of medical services after a nuclear attack, in which case
the emphasis must be on prevention; and
(b) preparedness to deliver medical services after a nuclear attack, in
which case WHO must direct its attention to such matters as planning,
medical equipment, and research and training in radiation injuries.
Another factor to be borne in mind in this regard is that even on the
supposition that both parties to the nuclear exchange are completely
destroyed, the question will still remain of damage to non-combatant [p 114]
States. Urgent medical services will be required on the peripheries of the
nuclear devastation perhaps in countries hundreds or thousands of miles
away from the belligerents. WHO has a constitutional responsibility towards
them no less than to the belligerents and must be prepared to render what
assistance it can.
7. WHO's Constitutional Responsibilities in Regard to Public Health in
General
It is well accepted that public health concerns itself not merely with cure,
but also with prevention and planning and the provision of technical
assistance and aid in emergencies (vide Art. 2 (d) of WHO Constitution). No
one would deny that WHO must warn of the medical dangers of foreseeable
emergencies (Art. 2 (r)), or that it should concern itself with regulations
(Art. 2 (k)) governing activities that spread disease, such as travel from
the infected area or transport of infected foodstuffs. It must co-ordinate
arrangements for the necessary nutrition and sanitation (Art. 2 (i)) when
an epidemic occurs. It must evaluate the probabilities of an outbreak and
must plan for them (Art. 2 (p)). These obligations of planning and
prevention (see Art. 2 (p)) become all the more compelling when the disease
is incurable. These general obligations apply to WHO's activities, whatever
the source of danger to health whether resulting from sanitational,
nutritional, epidemiological or military sources.
It may be noted in this connection that the Court itself observes, in
paragraph 21 of its Opinion, that:
"the provisions of its Article 2 may be read as authorizing the Organization
to deal with the effects on health of the use of nuclear weapons, or of any
other hazardous activity, and to take preventive measures aimed at
protecting the health of populations in the event of such weapons being used
or such activities engaged in".
I would agree, respectfully, with this view, and many of the areas of
relevance to the WHO Constitution outlined in this opinion proceed on that
basis. However, the preventive function of WHO is not limited to providing
assistance after the event.
Each of the details set out in the next Part of this opinion, on health
problems caused by the nuclear weapon, has a bearing upon the
constitutional responsibilities of WHO in such areas as maternal and child
health (Art. 2 (I)); improving standards of teaching and training (Art. 2
(o)); studying and reporting on public health from preventive and curative
points of view (Art. 2 (p)); providing information (Art. 2 (q)); developing
an informed public opinion (Art. 2 (r)); promoting co-operation among
scientific and professional groups (Art. 2 (j)); making recommendations
with regard to international health matters (Art. 2 (k)); [p 115] and
furnishing practical assistance in emergencies (Art. 2(d)). This list is by
no means complete.
Health services perform only half of their function if they concern
themselves only with curative procedures after disease has struck. They need
also to explore two other areas prevention before the disease strikes and
advance planning against the eventuality of a sudden and perhaps massive
outbreak. This is all the more so when the threatened damage to health is
of an incurable or irreversible nature.
1. Prevention. There can be no argument concerning the wisdom of the ages
that prevention is better than cure. This was so since the inception of
medical science and must be so whatever the agency that damages health be
it a microbe which can kill tens of thousands or a nuclear weapon which can
kill tens of millions. The topic of prevention is more fully dealt with in
Section III.6 below.
2. Planning. There must be planning in advance for handling the medical
emergency, if prevention is not possible. WHO can summon global medical
resources as no other organization can. How many nurses and doctors should
be available, what stock of painkilling and damage-limiting drugs should be
kept in readiness, how many hospital beds and how much equipment? How should
the populace be informed and educated regarding immediate precautionary
measures that can lessen the chances of agonizing suffering, of the
formation of cancers and keloids, and even help in prolonging life? A
domestic medical service that fails to provide prevention and planning would
fail dismally in the discharge of its responsibilities. An international
medical service that focuses its attention only on cure after the event and
neglects prevention and preparation, would be a no less dismal failure.
Indeed, the responsibility for prevention and planning would rank even
higher, with a service that carries global responsibility a service of
last resort so to speak, for the world has no higher medical service to turn
to when domestic systems fail. The copious medical material placed before
the Court provides the background to the WHO request.
II. Effects of Nuclear Weapons on Health
1. Overview of the Effects of Nuclear Weapons on Health
This survey commences with a brief overview, and follows with a more
detailed examination of the material placed before the Court by WHO.
The legal counsel of WHO has given the Court an overview of the
health-related effects of the use of nuclear weapons. In a presentation not
[p 116] disputed by any States appearing before the Court, he drew attention
to the threefold immediate effects of nuclear explosions mechanical,
thermal and radioactive. While the first two differ quantitatively from
those resulting from the explosion of conventional bombs, the third is
peculiar to nuclear weapons. In addition to instantaneous radiation, there
is also radioactive fallout. Further, the explosion generates an
electromagnetic pulse which disrupts electronic devices, including those
needed for health services. Over and above this, there are longer-term
effects caused by ionizing radiation acting on human beings and on the
environment.
WHO has collected a large amount of data from the 1945 bombings and also
from an analysis of tests and mathematical models. It has also taken into
account information obtained after nuclear accidents, such as those at
Kyshtym, Rocky Flats and Chernobyl.
This information reveals inter alia that radiation overexposure suppresses
the body's immune systems and increases victims' vulnerability to infection
and cancers (CR 95/22, pp. 23-24).
Other effects upon health which were referred to by the WHO representative
are the increase in genetic defects, the psychological traumas which
continue to be noted among the survivors of Hiroshima and Nagasaki, and the
effects of ionizing radiation on the crops, the food chain, livestock and
the marine ecosystem.
As observed by the WHO representative:
"Obviously a specialized agency whose purpose, as laid down in Article 1 of
its Constitution, is the 'attainment by all peoples of the highest possible
level of health' could not ignore such a topic, and this was the case well
before the request for an advisory opinion was transmitted to the Court in
1993." (CR 95/22, p. 24.)
An international group of experts was set up to investigate the effect of
nuclear war on health and health services. After their report was received,
the Director-General set up a management group to consider the implications
of the report. When the management group's report was pre-sented, the
Chairman of the group observed that, while long-term effects were worrying,
"the immediate effects were utterly staggering" (CR95/ 22, p. 28).
Reference should also be made to the testimony of the Mayor of Hiroshima to
the effect that medical treatment after Hiroshima was a matter of groping in
the dark, with hospitals in ruins, medical staff dead and a lack of drugs
and medicines, all of which caused an incredible number of victims to die
without sufficient treatment.
WHO has analysed the effects of nuclear weapons on health in its Report,
Effects of Nuclear War on Health and Health ServicesFN13, under [p 117] two
heads "Health Problems in the Short Term" (Arm. 6) and "Intermediate and
Long-Term Health Effects" (Ann. 7). A perusal of these annexes demonstrates
very clearly WHO's grave concerns and legitimate interests in the aspects of
prevention and planning.
---------------------------------------------------------------------------------------------------------------------
FN13 World Health Organization, Geneva, 2nd ed., 1987.
---------------------------------------------------------------------------------------------------------------------
It is necessary to outline these facts and findings briefly, as that is the
setting in which the WHO request has been brought to this Court. To consider
the functions of WHO in the abstract, on the basis of formal constitutional
provisions read apart from their medical and factual context, would be an
academic exercise not sufficiently related to the dire medical realities
which WHO must face, as the only organization which is under a duty to
co-ordinate global medical assistance in this fearsome eventuality. As this
Court observed in Barcelona Traction, it is important not to "lose touch
with reality" in considering a legal question (Barcelona Traction, Light and
Power Company, Limited, Second Phase, I.C.J. Reports 1970, p. 37).
A short summary follows of the medical material placed before the Court.
2. Health Problems in the Short Term
(i) Heat. The enormous thermal energy released by thermonuclear explosions,
rather than blast, will be the major cause of casualties. The direct thermal
pulse or thermal wave would cause immediate charring of exposed parts of the
body in the direct line of the thermal rays. Flash burns would occur within
fractions of a second and reach their maximum within a few seconds. Indirect
burns would result in many more casualties.
The danger of immediate burn injuries becomes apparent when one considers
that a single one-megaton air burst could ignite combustible material
within a radius of 5-15 km depending on the clarity of the atmosphere. With
usual weather conditions this radius would be around 12 km. Simultaneous
fires breaking out within this area would probably coalesce into a superfire
over an area of some 450 square kilometres. Air temperatures within the fire
zone will exceed that of boiling water. The effect of such heat on the human
body would be devastating.
(ii) Blast will cause shock waves, collapsing buildings and flying debris
and individuals will be hurled into the air like projectiles. On contact
with immovable objects, there would be head injuries, fractures, crush
injuries and penetrating abdominal and thoracic wounds. A one-megaton air
burst is capable of killing everyone within a radius of 7 km from the
hypocentre.
(iii) Radiation effects, such as whole body irradiation, result from two [p
118] sources the immediate burst of gamma and neutron radiations or the
radiation from fall-out of radioactive particles. Resulting injuries would
be:
(a) gastrointestinal effects, including anorexia, nausea, vomiting,
diarrhoea, intestinal cramps, dehydration;
(b) neuromuscular effects producing fatigue, fever, headache, hypertension
and hypotensive shock.
In peacetime conditions some such cases would be survivable, with treatment
which would include antibiotics, white blood cell or whole blood
transfusions and 8 to 12 weeks of hospitalization. The WHO ReportFN14 states
that following a nuclear war, such conditions of medical care would not be
available. Even in cases where there are few or no symptoms, a late increase
in cancers, particularly leukaemias, will occur.
---------------------------------------------------------------------------------------------------------------------
FN14 Op. at., Ann. 6, p. 157.
---------------------------------------------------------------------------------------------------------------------
As stated by a professor of radiology at the Sixth World Congress of the
International Physicians for the Prevention of Nuclear War, radiation
injuries include anorexia, cessation of production of new blood cells,
diarrhoea, haemorrhage, damage to the bone marrow, convulsions, vascular
damage and cardiovascular collapseFN15.
---------------------------------------------------------------------------------------------------------------------
FN15 Herbert Abrams, "Chernobyl and the Short-Term Medical Effects of
Nuclear War", in Proceedings of Sixth World Congress of International
Physicians for the Prevention of Nuclear War (IPPNW), Cologne, 1986,
published under the title Maintain Life on Earth!, 1987 pp. 122-125.
---------------------------------------------------------------------------------------------------------------------
(iv) Inhalation of radioactive dust could cause acute effects leading to
death and long-term effects such as fibrosis and cancer, permeability of the
membranes of the alveoli (air sacs) with symptoms of coughing, shortness of
breath and feelings of drowning leading to death by hypoxia, pneumonia and
sepsis. There is no means of prevention of this source of infection except
wholesale relocation of populations.
(v) Ingestion. Among the radionuclides present in the fall-out, iodine-131
presents a special risk, especially to cancer of the thyroid. The effects of
radioactive strontium and caesium will be apparent only later. These are
dealt with under the long-term effects.
The WHO ReportFN16 points out that "the casualties incurred even in a
so-called 'limited' nuclear exchange would be truly overwhelming".
---------------------------------------------------------------------------------------------------------------------
FN16 Op. cit., Ann. 6, p. 158.
---------------------------------------------------------------------------------------------------------------------
It states that the kinds of injuries cited are most demanding of medical
resources. Burns of second or third degree involving 20 per cent of the [p
119] body surface are generally regarded as fatal unless given intensive
therapy with massive fluid replacement, sterile management, antibiotics,
surgical care and general nursing, dietary and supportive care for periods
of weeks in hospital, followed by lengthy rehabilitation. Even with today's
sophisticated medical care, there would be considerable mortalityFN17.
---------------------------------------------------------------------------------------------------------------------
FN17 Op. cit., Ann. 6, pp. 159-160.
---------------------------------------------------------------------------------------------------------------------
In these circumstances, WHO, as a body of experts, has no alternative but to
direct its thoughts to prevention and planning for the minimization of
injury and suffering when cure is impossible.
It is pointed out further that up to 80 per cent of physicians could well be
casualties. With reference to a single megaton air explosion over a
metropolitan area such as Boston with a population of 2,844,000, reference
is made to a 1979 United States Arms Control and Disarmament Agency estimate
of 695,000 direct fatalities and 735,000 surviving injured. Of the 12,816
hospital beds in Boston, at the date of that investigation, around 83 per
cent were expected to be destroyed, leaving 2,135 beds and a heavily
depleted force of doctors and nurses for the care of 735,000 seriously
injured survivorsFN18.
---------------------------------------------------------------------------------------------------------------------
FN18 Ibid.
---------------------------------------------------------------------------------------------------------------------
According to another study, burn injuries, which are particularly painful,
present special medical problems and require careful and specialized
treatmentFN19. Montreal, a city of 2 million people, had facilities (in
1983) for six severe burn cases. In the whole of North America, it was
estimated that there were only 2,500 beds for serious burn cases. Yet a one
megaton bomb exploding over Montreal would result in as many as 10,000
people requiring such facilities. Moreover, whatever facilities there are
tend to be concentrated on the cities, and will themselves be destroyed.
---------------------------------------------------------------------------------------------------------------------
FN19 Don G. Bates, "Medical and Ecological Effects of Nuclear War", McGill
Law Journal, 1983, Vol. 28, pp. 722-724.
---------------------------------------------------------------------------------------------------------------------
Indeed, in all branches of medicine, the bulk of practising doctors tend to
be within a few miles of the city as in Quebec with 50 per cent of all
practising physicians being within 5 milesFN20.
---------------------------------------------------------------------------------------------------------------------
FN20 Ibid., p. 724.
---------------------------------------------------------------------------------------------------------------------
The total inadequacy of medical facilities to cope with nuclear war is
graphically indicated in a study already referred toFN21. It reveals that
after a major nuclear attack, even if medical resources remain substantially
intact:
---------------------------------------------------------------------------------------------------------------------
FN21 Herbert Abrams, "Chernobyl and the Short-Term Medical Effects of
Nuclear War", op. cit., p. 127.
---------------------------------------------------------------------------------------------------------------------
[p 120]
"The disparities are great: 273,000 available hospital beds compared to the
17.6 million needed; few burn beds, with 5.3 million needed; 15,000
intensive care beds, with 6.7 million required. Among essential personnel,
48,000 physicians may be confronted with the work of 1.3 million; or 150,000
registered nurses with that of 6.7 million; or 17,000 medical technologists
with that of 450,000. If there are 14,000 units of whole blood available,
for example, and 64 million units required, the problem of developing a
credible medical response for the millions of surviving injured can readily
be grasped."FN22
------------------------------------------------------------------------------------------------------------
FN22 Herbert Abrams, "Chernobyl and the Short-Term Medical Effects of
Nuclear War", op. cit., p. 127, quoting Abrams, "Medical Resources after
Nuclear War: Availability v. Need", Journal of the American Medical
Association, 1984, pp. 252, 653-658.
------------------------------------------------------------------------------------------------------------
Even years before the WHO Report, many detailed studies had been made on the
effects of nuclear war on health. For example, the Japanese Association of
Doctors Against the A- and H-Bombs appointed an international commission of
medical specialists to examine the biological effects of the radioactive
fallout produced by United States nuclear tests in the Pacific in 1954. The
Japanese fishing boat Fukuryu Maru was found to be contaminated while 80
miles outside the estimated danger zone. All 23 members of the crew showed
symptoms of radiation disease and were found to have fissionable material in
their organs. One of the crew died. The vessel was rendered radioactive,
dust from it producing radiation sickness in animals and genetic effects in
plants.
Fish caught in various parts of the Pacific, even eight months after the
explosion, were found to be contaminated and unfit for human consumption.
Crops in different parts of Japan were affected by radioactive rain The
medical experts, who arrived unanimously at these conclusions, were drawn,
inter alia, from Paris, East Africa, Berlin, Santiago, Czechoslovakia,
Moscow and MukdenFN23.
---------------------------------------------------------------------------------------------------------------------
FN23 Singh and McWhinney, Nuclear Weapons and Contemporary International
Law, 1989, p. 124.
---------------------------------------------------------------------------------------------------------------------
It is little wonder that WHO seeks information on a question fundamental to
prevention and planning the question of State obligations under
international law. Is this a lawful weapon of war? Is the use of such a
weapon by a State a violation of the State's obligations under international
law or under the WHO Constitution? As the global coordinating authority for
health work, it must plan for the nuclear contingency as part of its
statutory duty. It is entitled to know the answer to this question. If it is
to be held to its duties in terms of its Constitution, it must know the
reciprocal duties of States in terms of that same Con-[p 121] stitution. I
cannot agree that they can be denied this basic information and, even more
so, their very entitlement to seek it.
It is difficult to conclude that this is not their business. Rather, I would
consider WHO to be neglectful of its responsibilities if it did not address
this question.
Indeed, as is only to be expected, it has for years been turning its
attention to this problem, and the reference to this Court for an opinion
on the legal aspects is only a part, and a necessary part, of the much
broader investigation it has engaged in for the purpose of discharging this
aspect of its responsibilities. There is no material before this Court
showing that any exception was ever taken to such investigations relating to
nuclear weapons, which WHO has been conducting ever since 1966.
By way of analogy, in the field of chemical and bacteriological weapons,
WHO has been pressing for prohibition "as a necessary measure in the fight
for human health" (WHA resolution 23.53 of 1970). No objection was raised
relating to any alleged "intrusion" into the sphere of actual regulation.
The current enquiry relates not to an attempt at regulation, but only to an
enquiry for information. If WHO was not seen to be intermeddling outside its
province when it asked for the actual prohibition of chemical and
bacteriological weapons, it is difficult to see how it could be seen to be
intermeddling when it merely asks for information regarding nuclear weapons.
3. Intermediate and Long-Term Health Effects
These conclusions, reached upon an analysis of the short-term effects, are
strengthened even further upon an examination of the intermediate and
long-term effectsFN24.
---------------------------------------------------------------------------------------------------------------------
FN24 See WHO Report, op. cit., Ann. 7.
---------------------------------------------------------------------------------------------------------------------
Iodine-131, we are told, constitutes the greatest potential long-term
hazard. Iodine-131 enters the body primarily by ingestion of milk. The route
from bomb, to atmosphere, to grass, to cow, to milk, to man is described as
surprisingly rapid, and milk with high concentrations of iodine-131 has been
detected thousands of miles away from test explosion sites. The radioactive
iodine concentrates in the thyroid gland, destroying thyroid tissue and
producing late thyroid cancerFN25.
---------------------------------------------------------------------------------------------------------------------
FN25 Ibid., p. 165.
---------------------------------------------------------------------------------------------------------------------
While iodine-131 has a half-life of only 8 days, strontium-90 and
caesium-137 are nuclides with half-lives of 29 and 30 years respectively.
The long delayed descent of global fallout does not therefore effectively
reduce their potency. When they do descend, they are trapped in the [p 122]
superficial layers of the soil. They are taken up from there by plants which
are eaten by animals. Through vegetables and meats, they are ingested by
humans, both elements increasing the incidence of cancers. Once ingested,
there is no rapid means of ridding the body of these carcinogenic
elementsFN26.
---------------------------------------------------------------------------------------------------------------------
FN26 WHO Report, op. cit., pp. 165-166.
---------------------------------------------------------------------------------------------------------------------
Strontium mimics calcium in the body and is deposited in bones and teeth,
thus placing its radiation close to the highly sensitive bone marrow.
Caesium accumulates in cells in close juxtaposition to nuclear DNAFN27.
---------------------------------------------------------------------------------------------------------------------
FN27 Ibid., p. 165.
---------------------------------------------------------------------------------------------------------------------
Ionizing radiation impairs the function of the immune system, and virtually
all elements of the immune system are affected by irradiation. Hard
ultraviolet radiation also has an immuno-suppressive effect.
The long-term effects add to the pressure on WHO to turn its attention to
prevention and planning to minimize human sufferingFN28, even if no cure is
possible.
---------------------------------------------------------------------------------------------------------------------
FN28 On the long-term effects, see also Z. Dienstbier, "Long-Term Medical
Effects of Nuclear War", in IPPNW Congress Proceedings, op. cit., pp. 130
ff.
---------------------------------------------------------------------------------------------------------------------
The long-term effects range from after-effects of the injuries sustained to
long-term effects of radiation exposure, and health problems resulting from
the disruption and destruction of health services. They are conveniently
summarized in the Report by the Director-General of WHO to the Forty-sixth
World Health Assembly (doc. A46/30 of 26 April 1993). Survivors of nuclear
explosions will be confronted with protracted non-healing wounds,
suppurating extensive burns, skin infestations, gastrointestinal
infections, and psychic trauma (ibid., para. 20).
A recognized consequence of radiation overexposure is the suppression of the
body's immune system. Ionizing radiation, according to this Report, reduces
the helper T-lymphocytes and increases the suppressor T-lymphocytes, thus
increasing the victims' vulnerability to infection and cancers (ibid., para.
21).
Survivors of the nuclear explosion and the populations of contaminated
areas will be at risk of cancer induction and genetic damage, the risk
varying with the dose received (ibid., para. 23)FN29.
---------------------------------------------------------------------------------------------------------------------
FN29 At an exposure of 1 Gray whole body irradiation, there will be an
estimated lifetime risk of mortality from all forms of cancer in the range
of 4 per cent to 11 per cent of survivors. A Gray is the "International
System unit of absorbed dose, equal to the energy imparted by ionizing
radiation to a mass of matter corresponding to 1 joule per kilogram"
(McGraw-Hill Dictionary of Scientific and Technical Terms, 2nd ed., p. 696).
---------------------------------------------------------------------------------------------------------------------
[p 123]
Exposure to plutonium alpha particles produces chromosomal instability
which can be transmitted to progeny, thus causing cancer in future
generations (doc. A46/30 of 26 April 1993, para. 24). Also the effects of
internal exposure from the inhalation or ingestion of radioactive materials
is much greater than was originally thought (ibid.).
Further, with special reference to public health and sanitary facilities, it
was pointed out that a nuclear explosion would destroy these, thus opening
the way for the spread of disease. Water supplies would be contaminated not
only by radioactivity, but also by pathogenic bacteria and viruses. Sewage
treatment and waste disposal facilities would have almost completely
disappeared (ibid., para. 29).
In addition:
"Great numbers of putrefying human bodies and animal carcasses as well as
untreated waste and sewage would provide easy breeding ground for flies and
other insects. Diseases like salmonellosis, shigellosis, infectious
hepatitis, amoebic dysentery, malaria, typhus, streptococcal and
staphylococcal infections, respiratory infections and tuberculosis would
occur in epidemic form over vast areas." (Ibid., para. 30.)
These are areas par excellence of WHO's constitutional concern and medical
expertise.
Long-term effects on health through the disruption of the food supply on a
regional or a global scale, resulting from environmental damage, is another
important factor, impairing health and lowering resistance to disease. A
multiple nuclear exchange could result in a nuclear winter, causing famine
situations on a global scale.
4. The Appearance of Devastating Epidemics
The various glands and organs of the body that provide natural immunity
against infection are, according to the writings on this topic,
particularly sensitive to radiation. "When combined with social
disintegration, this would invite the rapid spread of communicable diseases
in unusually severe forms."FN30
---------------------------------------------------------------------------------------------------------------------
FN30 Abrams and Von Kaenel, "Medical Problems of Survivors of Nuclear War:
Infection and the Spread of Communicable Disease", New England Journal of
Medicine, 1981, Vol. 305, p. 1226, cited in Bates, "The Medical and
Ecological Effects of Nuclear War", op. cit., p. 726.
---------------------------------------------------------------------------------------------------------------------
Diseases such as plague, smallpox, cholera and typhoid fever, now largely
relegated to the history books, which have been kept at bay by nutrition,
sanitation and immunization programmes would reappear. [p 124] Nuclear war
would compromise those defences severelyFN31, and in addition would lower
the body's organic and glandular resistance to them.
---------------------------------------------------------------------------------------------------------------------
FN31 Bates, op. cit.
---------------------------------------------------------------------------------------------------------------------
The World Health Report 1996, issued by WHO on 20 May 1996, warns that there
is currently a devastating upsurge in infectious diseases caused inter alia
by the weakening of people's immune systemsFN32. The Report warns that, "We
are standing on the brink of a global crisis in infectious diseases", with
17 million deaths every year. Up to half of the 5.72 billion people on earth
are at risk of many endemic diseases old diseases such as tuberculosis and
malaria which are resurgent, and deadly new diseases such as ebola, for
which no cure is known. Diarrhoeal dis-eases such as cholera, typhoid and
dysentery, caused by contaminated water or food kill millions every year. If
this is so in the comparatively organized societies of today, the danger of
uncontrollable epidemics after the social disintegration, the breakdown of
sanitation systems, especially in cities, and the weakening of the immune
system caused by nuclear war must be self-evident, and must surely be an
important constitutional concern of WHO.
---------------------------------------------------------------------------------------------------------------------
FN32 Reported in International Herald Tribune, 21 May 1996, p. 10, and The
Guardian Weekly, 26 May 1996. According to the Report, "In the contest for
supremacy the microbes are sprinting ahead."
---------------------------------------------------------------------------------------------------------------------
5. The Relevance of the Medical Material Placed before the Court
This brief summary of the material placed before the Court demonstrates:
(a) the futility of awaiting a nuclear catastrophe to move into action in
relation to medical services;
(b) the incurability of most of the medical afflictions resulting from the
bomb;
(c) the prospect of worldwide famine in the event of nuclear war, with its
resultant disastrous effect on human health;
(d) the need to plan in advance for rapid emergency services and supplies
in such an eventuality;
(e) the need to plan in advance for public education, medical research,
medical education;
(f) the need to understand what precisely are the obligations of States
under international law in relation to the health effects of use of nuclear
weapons; [p 125]
(g) the need to understand what precisely are the obligations of States
under international law in relation to the environmental effects of use of
nuclear weapons;
(h) the need to understand what precisely are the obligations of States
under the WHO Constitution in relation to the use of nuclear weapons;
(i) the deep constitutional concerns of WHO with the medical consequences
of nuclear war.
The relevance of the medical material placed before the Court can be more
pointedly illustrated by taking just one effect the cancer-inducing
qualities of the bomb, for the nuclear weapon can well be described as the
greatest cancer-inducing instrumentality yet devised. The legality of
cancer-inducing agencies, whatever their scale, are already concerns of WHO.
Thus the legality of the sale of a drug that increases the risk of cancer,
for example cervical or womb cancer, is clearly a matter that concerns WHO,
for it would have to adopt different strategies to deal with the problem
depending on whether the drug is legal (and thus freely available) or
illegal (and thus less likely to be freely available).
It may be argued that the legality of the nuclear weapon is different from
the legality of a drug, in that the weapon will in any event be used by
those who desire to use it, irrespective of legality. However, this is a
difference with which this Court cannot concern itself, as the Court
operates on the assumption of a community ruled by law, and can only act on
the assumption that member States of that community will abide by that law.
If a particular weapon is a legal weapon of war, it stands on a very
different footing from a weapon whose use is banned by law, and WHO is
entitled to know in which category the weapon falls.
It is thus difficult to see a logical distinction between WHO's concern with
the legality of a cancer-inducing drug and the legality of a cancer-inducing
weapon. If the first concern is legitimate which no one would doubt it
is difficult to see how the other is not. The concern of other organs of the
United Nations with the political aspects of the problem cannot negative or
override WHO's concern with the medical aspects of the same problem.
This background of medical information reveals numerous areas of obvious
concern to WHO in the discharge of its constitutional responsibilities. It
also provides the essential factual background to the various applicable
principles of international law particularly of international humanitarian
law. If humanitarian concerns are the criterion which triggers into action
the principles of humanitarian law, it must be self-evident that the
preceding resume of the medical effects of nuclear war must activate those
principles and bring them into play. [p 126]
6. The Experience of Hiroshima and Nagasaki
As is well known, even a comparatively minor catastrophe such as Chernobyl
imposes on domestic health services a burden greater than they can bear.
There would be no other entity to which a nation stricken by a nuclear
attack could turn, for its medical services, however rich the country, would
be virtually non-existent. Even a comparatively "small" nuclear attack such
as occurred in Hiroshima and Nagasaki crippled and destroyed the health
services of a well-organized nation. As Dr. Henry Kissinger observed in his
work on Nuclear Weapons and Foreign Policy:
"Under normal conditions, a hospital requires five persons to care for one
patient. It has been estimated that at Nagasaki, under the most primitive
medical conditions, each survivor required two persons to care for him. The
whole surviving population of an affected area would therefore either be
injured or engaged in caring for the injured.
Even then, adequate medical assistance for the injured will be impossible,
for most hospitals and most medical personnel are themselves within the
target area."FN33
------------------------------------------------------------------------------------------------------------
FN33 1 95 7, p. 70
------------------------------------------------------------------------------------------------------------
One has only to peruse medical accounts of the aftermath of Hiroshima and
Nagasaki to understand how futile medical services can be after the nuclear
event, especially if they are caught unprepared. Hiroshima Diary: The
Journal of a Japanese Physician August 6-September 30, 1945, by Michihiko
Hachiya, M.D.FN34, is one such.
---------------------------------------------------------------------------------------------------------------------
FN34 University of North Carolina Press, 1955.
---------------------------------------------------------------------------------------------------------------------
The multitude of descriptions available on the position of a society which
has been the victim of a nuclear attack heavily underscore this aspect of
the breakdown of all health services, in which we have the grotesque
situation of human beings with shreds of flesh hanging upon them, their
eyeballs melted away, and their senses dazed by blast and radiation,
wandering around in their thousands in search of assistance, and helpless in
the midst of a prevailing despairFN35. Such scenes, the sad realities of the
aftermath of a "small" nuclear attack, are amply documented as having
occurred in Hiroshima and Nagasaki. They will occur again whenever and
wherever nuclear weapons are used. They are the health administrator's
worst nightmare, and any institution concerned with world health needs to
know whether the only agency capable of causing such a [p 127] scenario
stands within or without the international legal system, and whether
therefore it is permitted or banned.
---------------------------------------------------------------------------------------------------------------------
FN35 Here is a quote from Hiroshima Diary:
"And they had no faces! Their eyes, noses and mouths had been burned away,
and it looked like their ears had been melted off. It was hard to tell front
from back. One soldier, whose features had been destroyed and was left with
his white teeth sticking out, asked me for some water and I didn't have any.
I clasped my hands and prayed for him. He didn't say anything more. His plea
for water must have been his last words." (P. 15.)
---------------------------------------------------------------------------------------------------------------------
III. Matters Relating to WHO's Competence
1. The Objections to WHO's Competence
Of the 189 member States of WHO as at 19 May 1994, only nine have raised
objections before this Court on grounds that WHO does not have the
competence to make this request, namely, Australia, Finland, France,
Germany, Italy, Netherlands, Russia, the United Kingdom and the United
States. It will be noted that one nuclear power, China, is not among those
who have objected to WHO's competence.
The objections to WHO's competence centre around two broad propositions:
(a) that the legality of the use of nuclear weapons is not a matter for WHO,
whose competence is limited to the effect of nuclear weapons on human health
and environment; and
(b) that WHO has no special interest in the matter and a recognition of its
competence would, in effect, expand the scope of its activities.
Thus France has urged before the Court that:
"WHO has no more competence to put this question than it would have, itself,
to declare that the use of a particular kind of weapon was unlawful or to
rule on the international legality of a particular conflict; it has not the
slightest competence in this area." (CR 95/23, p. 56.)
France has submitted further that WHO's action "seems nothing less than an
abuse of the Court's advisory functions and, to say the least, a somewhat
alarming trend" (ibid., pp. 56-57).
With their deep implications, both for the advisory jurisdiction of the
Court and for the scope of the legitimate activities of specialized
agencies, such submissions need careful consideration.
WHO has no means at its disposal to prevent nuclear war and in no way does
its enquiry amount to any act of intermeddling in the causes of nuclear war.
It only seeks information and that information could well be relevant in
drawing attention to the need to prevent nuclear war. Alternatively, on the
supposition that there is room for medical action after a nuclear attack, it
is relevant to its state of preparedness. As already noted, even if an
entire nation should be destroyed, medical services would be urgently
required by neighbouring States. Relevant to its duties in this situation
are Article 2 (d) and (e) of the WHO Constitution which cast upon WHO the
express duty of furnishing aid in emergencies and providing health services
and facilities to special groups. [p 128]
It is therefore a mistake to read into WHO's enquiry an attempt at dabbling
in the political question of prevention of nuclear war. It keeps well within
its mandate in seeking information which it considers necessary for
discharging its constitutional obligation of preparation to render
assistance in the event of nuclear war. Here again the analogy of
bacteriological or chemical warfare comes to mind. If these are legitimate
weapons of war, WHO's state of readiness to cope with the medical problems
they raise must surely be different from the situation where the law of
nations accepts that they are illegal and should not be used in any
circumstances.
2. The Importance of the Enquiry Relating to WHO's Constitution
Elsewhere in its jurisprudence, this Court has stressed the importance of
rendering an opinion to a specialized agency when it relates to that
agency's Constitution and, indeed, it has made this observation in relation
to the constitution of WHO itself (Interpretation of the Agreement of 25
March 1951 between the WHO and Egypt, I.C.J. Reports 1980, p. 87. See p.
108, supra.)
As the Court has observed in its reply to the General Assembly's request for
an opinion on the legality of nuclear weapons:
"Whatever its political aspects, the Court cannot refuse to admit the legal
character of a question which invites it to discharge an essentially
judicial task, namely, an assessment of the legality of the possible conduct
of States with regard to the obligations imposed upon them by international
law." (I.C.J. Reports 1996, p. 234, para. 13.)
This principle assumes particular importance in regard to a request for
interpretation of an organ's Constitution, for not only is that manifestly a
question of law, but it is one of the most practical forms of assistance the
Court can give to the members of the United Nations family of organizations.
It is a question anchored to the law and, at the same time, lying at the
heart of an organization's work. In short, it is the sort of question which
in my view the Court would be under a special obligation to address.
With much respect, I must therefore disagree with the Court's conclusion
that "WHO is not empowered to seek an opinion on the interpretation of its
Constitution in relation to matters outside the scope of its functions"
(Advisory Opinion, para. 28). The finding that the matter is "outside the
scope of its functions" is itself an interpretation of WHO's Constitution
and, in reaching this conclusion, the Court is in effect interpreting WHO's
Constitution in response to WHO's request. I find it difficult also to
accept that an organ of the United Nations, empowered to [p 129] seek an
advisory opinion on a question of law, has no competence to seek an
interpretation of its own Constitution.
3. The Constitutional Functions of WHO
There are a number of constitutional functions of WHO which have a bearing
on the question referred to the Court. Some of them have been referred to
earlier in this opinion. Among these functions, which are specified in
Article 2 of its Constitution, are the following, shown against the
respective subsections of Article 2:
(1) to act as the directing and co-ordinating authority on international
health work (Art. 2 (a));
(2) to establish and maintain effective collaboration with the United
Nations, specialized agencies, governmental health administrations,
professional groups and such other organizations as may be deemed
appropriate (Art. 2 (b));
(3) to furnish appropriate technical assistance and, in emergencies,
necessary aid upon the request or acceptance of Governments (Art. 2(d));
(4) to provide or assist in providing, upon the request of the United
Nations, health services and facilities to special groups (Art. 2 (e));
(5) to propose conventions, agreements and regulations, and make
recommendations with respect to international health matters and to perform
such duties as may be assigned thereby to the Organization and are
consistent with its objective (Art. 2 (k));
(6) to promote and conduct research in the field of health (Art. 2 (n))\
(7) to promote improved standards of teaching and training in the health,
medical and related professions (Art. 2 (o));
(8) to provide information, counsel and assistance in the field of health
(Art. 2 (q));
(9) to assist in developing an informed public opinion among all peoples on
matters of health (Art 2 (r));
(10) generally to take all necessary action to attain the objective of the
Organization (Art. 2 (v)).
These will be referred to in the course of the ensuing discussion. It will
be sufficient to draw attention at the present stage to the following areas
relevant to nuclear weapons in which these constitutional provisions become
pertinent:
(i) Co-ordination of international health work (Art. 2 (a);
WHO's obligations under Article 2 may be summarized in terms that: "WHO's
first constitutional function is to act as the directing and co-[p
130]ordinating authority on international health work"FN36. Part of this
task is stated to be to "devise strategies, principles and programmes to
give effect to these policies".
---------------------------------------------------------------------------------------------------------------------
FN36 A compendium of United Nations Action in the Field of Human Rights,
1988, p. 29, para. 234.
---------------------------------------------------------------------------------------------------------------------
WHO cannot act as the directing and co-ordinating authority on
international health work if it has to act behind a veil of ignorance
regarding the legality or otherwise of the greatest of man-made threats to
human health.
Moreover this provision highlights the fact that WHO is concerned with
"health work". The expression "health work" clearly refers, as already
observed, not merely to the curative, but also to the preventive and
planning aspects of health services, which are an integral part of modern
medical services.
The consideration, already referred to, that planning for any contingency
requires a knowledge of the legal structure within which a particular
hazard takes place acquires even greater significance in a world where many
violent conflicts are raging concurrently. The possibility is ever present
of an escalation of any of these conflicts and, if the nuclear weapon is a
legal weapon of war, any one of one of them could quite "legally" flare into
a nuclear war.
(ii) Collaboration with the United Nations, specialized agencies, etc. (Art.
2 (b))
WHO is part of the United Nations system, dedicated to the aims and
objectives of the United Nations. It is the agent par excellence for
coordination with other specialized agencies and professional bodies in
relation to the medical hazards of nuclear weapons. For example, the effects
on crops and the world famine situation resulting from nuclear weapons
constitute an obvious area for collaboration with organizations such as the
Food and Agriculture Organization. Professional groups of doctors,
worldwide, need to be alerted regarding the medical effects of nuclear
weapons. WHO must liaise with medical organizations worldwide and share
information with them, alert them to the medical dangers and promote
readiness to deal with the medical hazards. It must currently do so in the
dark, unaware whether these weapons are legal or not. [p 131]
(iii) Emergencies (Art. 2 (d))
The inadequacy of national health services to cope with the after effects of
a nuclear attack have already been discussed at some length. The practical
situation that existed in Hiroshima and Nagasaki has also been described.
Such realities, nowhere discussed in the Court's Opinion, make WHO the
obvious authority for national Governments to turn to for assistance, in the
emergency created by a nuclear attack. If the nuclear weapon is a legal
weapon of war, the responsibility lies all the more heavily on WHO to plan
for this. It would quite clearly be the only international authority to whom
the stricken nation could turn for assistance. All this is consistent with
WHO's responsibilities for promoting "the rationalization and mobilization
of resources for health"FN37.
---------------------------------------------------------------------------------------------------------------------
FN37 Op. cit. footnote 36, supra.
---------------------------------------------------------------------------------------------------------------------
WHO's constitutional mandate is to be ready with medical services needed for
emergencies.
(iv) Provision, upon the request of the United Nations, of health services
and facilities to special groups (Art. 2 (e))
The radiation victims of a nuclear attack would be a special group within
the meaning of this clause. People far from the source of the explosion
hundreds or thousands of miles away will be affected. Non-belligerent
States, far distant from the scene, will need assistance. WHO is the only
organization they could turn to. The dire event of a nuclear attack,
whatever the nation that is struck, would raise health problems of such
proportions that WHO would be the only entity to which the United Nations
itself could turn for special services. WHO cannot be unprepared for such an
eventuality, especially if it is one which is permitted by the law.
(v) To propose conventions, agreements and regulations (Art. 2 (k))
If the use of nuclear weapons is a legal form of warfare, WHO will need to
take the initiative in relation to conventions, agreements and regulations
regarding such matters as the exchange of knowledge and facilities relating
to the treatment of radiation victims. Granted the impossibility of any one
country being able by itself to treat all radiation victims, there will need
to be a consideration of mutual medical assistance in the event of such a
catastrophe. WHO's constitutional functions in regard to conventions,
agreements and regulations then come into play. If an international medical
convention is the best means for arranging emergency medical services to a
country stricken by a nuclear attack, who but the World Health Organization
could take the initiative in this?[p 132]
(vi) Research (Art 2 (n))
In the words of the United Nations study already cited:
"The Organization brings together the world's experts in health matters and
serves as a neutral ground for absorbing, distilling, synthesizing and
widely disseminating information which has practical value for countries in
solving their health problems."FN38
------------------------------------------------------------------------------------------------------------
FN38 Op. cit. footnote 36, supra.
------------------------------------------------------------------------------------------------------------
Medical knowledge regarding radiation injuries and their treatment is still
the subject of ongoing research. There needs to be co-operation in this
field. This task devolves heavily on the shoulders of WHO. Especially if the
nuclear weapon is a legal weapon of war, WHO would have little excuse for
not planning for the co-ordination and spread of such scientific knowledge.
Contemporary accounts of Hiroshima or Nagasaki show how ill equipped medical
practitioners were to deal with radiation injuriesFN39.
---------------------------------------------------------------------------------------------------------------------
FN39 See Hiroshima Diary: The Journal of a Japanese Physician August
6-September 30, 1945, op. cit. footnote 34, supra.
---------------------------------------------------------------------------------------------------------------------
(vii) Improved standards of teaching and training (Art. 2 (o))
The promotion of improved standards of teaching and training are also
activities falling within this field. The medical response to nuclear war,
especially if the nuclear weapon is legal, calls for special teaching and
training.
(viii) Public education (Art. 2 (q) and 2 (r)J
These functions, dealt with in Article 2 (q) and 2 (r) of WHO's
Constitution, are discussed elsewhere in this opinion. It is sufficient to
note at this point that the WHO Report stresses WHO's role in
"systematically distributing information on the health consequences of
nuclear warfare"FN40. As the radiation injuries resulting from the
Chernobyl accident continue to manifest themselves, even ten years after the
event, the world is offered repeated confirmation of the importance of prior
public knowledge of how best to react to exposure to radiation. Most people
in Chernobyl, unaware of the dangers of radiation, were, from all medical
reports now emerging, unable to react in a manner that would minimize the
health damage caused to them. In terms of human health, an enormous price
is being paid for this lack of knowledge. Spreading such knowledge is
clearly within WHO's constitutional functions.
---------------------------------------------------------------------------------------------------------------------
FN40 Op. cit. footnote 13, supra, p. 5, para. 9.
---------------------------------------------------------------------------------------------------------------------
[p 133]
4. The Work and Concerns of WHO
It has been said in argument that nuclear weapons are matters exclusively
within the area of peace and security matters which are within the
exclusive jurisdiction of other agencies such as the Security Council and
that therefore WHO can have no concern with them. WHO's function is
confined to health, pure and simple, and it strays into unauthorized fields
when it enters the area of peace and security. The cobbler to his last.
The work of WHO cannot be said to be unrelated to peace and security. In
fact, the very Constitution of WHO draws attention in the preamble itself
to the interrelatedness of health and security when it states that the
health of all peoples is fundamental to the attainment of peace and security
and is dependent upon the fullest co-operation of individuals and States.
WHO is also empowered by Article 2 (v) of its Constitution "generally to
take all necessary action to attain the objective of the Organization". The
objective of the Organization is set out in Article 1 to be "the attainment
by all peoples of the highest possible level of health". The highest
possible levels of health must obviously be achieved both by curative and
preventive processes, there being no restriction to the former.
There are clearly some areas where WHO's concern with health overlaps with
concerns of peace and security. One of the dangers of nuclear war, as
pointed out in Section II.4 above, is the appearance of devastating
epidemics. The decimation of populations caused by severe epidemics can
reduce thriving societies to total helplessness. Such an event would quite
obviously be a matter affecting global peace and security, for law and
order, both domestic and international, would in those circumstances tend
to break down. The linkage in its own Constitution (to which all Member
States of the United Nations have agreed) between health on the one hand,
and peace and security on the other, renders the argument unavailable that
the two concerns are incompatible with each other. Indeed the greater the
threat to global health, the greater would be the overlap with peace and
security.
The argument that concern with peace and security removes a matter from WHO
concerns is analogous to the argument that, although a matter clearly
involves a legal issue, this Court should not enter into it if the matter is
also political. Such an argument, as repeatedly held in the juris-prudence
of the Court, is unsustainable. The Court is the pre-eminent authority on
questions of law and must attend to matters properly within its
jurisdiction, irrespective of whether they also involve political
considerations. Likewise, WHO is the pre-eminent authority on questions of
health and must be permitted to attend to matters properly within its
sphere, irrespective of whether they are also within the sphere of peace
and security.
This case is concerned not with a natural threat, but with a man-made threat
to human health so great as to dwarf all other threats, whether man-made or
natural. The agency of damage is fully within human con-[p 134]trol. WHO
desires to know what the law is regarding such potentially damaging
activity, which occurs not accidentally, but in consequence of deliberate
State action.
It is difficult to subscribe to the view that WHO can be told that this is
none of its concern that its legitimate business is curing the sick after
the disaster occurs and that it has no right to knowledge which has a
bearing on how it is caused. That is the implication of the Court's Opin-ion
and with that I cannot agree. The state of the law, relating to any form of
activity hazardous to human health, is WHO's legitimate concern, and though
WHO may not have the power to alter the law, it has at least the right to
know what the law is. The greater the hazard, the greater is WHO's right to
information. If the hazard can be created legally, the duty of preparedness
for that eventuality becomes all the greater.
The lawfulness of deliberate State conduct which damages public health on a
global scale cannot, in my view, be excluded from the area of WHO's concerns
without serious damage to the authority and mission of WHO in relation to
the health of the world's population, and without a restricting effect also
upon other United Nations agencies who may be guided by this narrow view of
the area of their legitimate concerns.
The causes of damage to world health do not have to be medical causes in the
sense in which they are commonly understood. The causes may be natural
disasters, such as forest fires or earthquakes, or man-made disasters, such
as occur in war. Whatever the sources of danger to human health, WHO needs
to study them, understand their causes, anticipate them, and plan to meet
these emergencies. It has a global mandate to do so and every organ of the
United Nations system must co-operate with it in the discharge of that
global mandate.
5. The Analogy with Chemical and Biological Weapons
If chemical and biological weapons were accepted as legal weapons of war,
WHO would no doubt have had to take that factor into account in its global
planning. The knowledge that these weapons are outlawed is a factor relevant
to WHO's consideration of that problem. No doubt it was for such reasons
that WHO, before the Convention relating to these weapons, emphasized the
need for their prohibition, by resolution 23.53 of 1970.
The same reasoning must apply to nuclear weapons. Legality or illegality
makes a major difference to the authority charged with responsibility for
global health, particularly when the health hazards are so far flung and
long-enduring as those caused by the nuclear weapon.
If WHO, before the chemical and biological weapons treaty, had made an
enquiry as to whether the use of those weapons was a violation of [p 135]
State obligations under the WHO Constitution, it is difficult to imagine
that any objections would have been taken to that enquiry. The intimate
concern of nuclear weapons with geopolitics and military strategy does not
alter the principle involved. WHO needs to know, no less than it needs to
know in the case of chemical and bacteriological weapons, whether nuclear
weapons, like chemical and bacteriological weapons, are banned by
international law.
This Court cannot say in what precise ways the information sought by WHO
will help it in its planning. What it does know is that WHO has considered
such knowledge to be useful to it and, on this matter, the Court will
naturally be guided by the professional judgment of WHO in regard to its
usefulness.
WHO, be it noted, is not pressing one view or the other in relation to State
obligations. It only seeks information.
6. The Importance of Prevention
It has been stressed already that medical services are quite obviously not
confined to matters of cure. Prevention looms large, even if not larger than
cure, in the planning of modern medicine.
A standard modern text-book on public health medicine observes in its
chapter on the "Promotion of Health":
"Drawing on the great success of preventive medicine in the past, the United
States Surgeon General, in his 1979 report Healthy People, set in context
the need for a modern impetus for health promotion and disease prevention:
'Not to find and employ those [preventive] strategies would be irresponsible
as irresponsible as it would have been for our predecessors merely to
alleviate the ravages of smallpox and polio and cholera, without attempting
to eradicate them.'
Health services should have as their major aims to reduce the amount of
illness, disease, disability and premature death in the population . ..
Health services do not have direct control over all the factors which can
influence these aspects of the health of the popula-tion but the design and
implementation of health promotion strategies is one of their major
functions."FN41
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FN41 R. J. and L. J. Donaldson, Essential Public Medicine, 1993, p. 107.
------------------------------------------------------------------------------------------------------------
In the arguments before the Court, the term "primary prevention" has been
frequently used. The meaning of this term appears from the following
passage in the same work: [p 136]
"Traditionally, prevention has been classified into three types:
(a) Primary prevention
This approach seeks actively to prevent the onset of a disease. The ultimate
goal of preventive medicine is to alter some factor in the environment, ...
or to change behaviour so that disease is prevented from developing . . .
(b) Secondary prevention
This level of prevention aims to halt the progression of a disease once it
is established. The crux, here, is early detection or early diagnosis
followed by prompt, effective treatment . . .
(c) Tertiary prevention
This level is concerned with rehabilitation of people with an established
disease to minimize residual disabilities and complications."FN42
------------------------------------------------------------------------------------------------------------
FN42 R. J. and L. J. Donaldson, Essential Public Medicine, 1993, pp.
120-121.
------------------------------------------------------------------------------------------------------------
It is little wonder that the pre-eminent health organization in the world
concerns itself with all aspects of prevention. If it did not, it would not
be true to the first principles of its vocation.
With prevention comes advance planning. Both prevention and advance
planning, enabling WHO to deal with a possible medical situation which can
be anticipated, are thus part of WHO's essential duties. It is not
surprising therefore to observe WHO's practice in this regard which
indi-cates quite clearly its concern with the legal and regulatory aspect of
matters under its charge.
The WHO Report puts its concerns and its legitimate interests in this area
very succinctly when it observes that:
"When treatment is ineffective, the only solution available to the health
professions is prevention. Prevention is obviously the only possibility in
case of a nuclear war."FN43
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FN43 Op. cit. footnote 13, supra, p. 33, para. 84.
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The world's leading judicial authority would show little recognition of this
undeniable truth if it were to say to the world's leading health authority,
on a matter intimately concerning the world's health, "Your function is care
after disaster strikes. Prevention is the exclusive concern of other
authorities properly vested with jurisdiction in that regard." Such a
position seems not only highly legalistic and abstruse, but also
irreconcilable with the known facts. Medical responsibilities at the
highest possible level and involving the health of the entire global
population need to be viewed in the context of the basic facts surrounding
those responsibilities and not as though there somehow exists a watertight
legal division of responsibilities which must be preserved whatever the
cost. [p 137]
I regret that I cannot subscribe to a conclusion that a body charged with
the highest responsibilities in regard to the health of the global
community should sit passively by, until the catastrophe occurs in which
its services are required, for the technical reason that it would be
trespassing upon the exclusive preserve of the Security Council, who are the
sole custodians of peace and security. The Constitution of WHO, a body
designed for humanitarian service, cannot be so encased in rigidity as to
require it not to move into action in relation to nuclear weapons except in
a nightmarish world of ghastly suffering which it is wholly unable to
handle. Surely the more reasonable view is that WHO must, by the very nature
of its functions and responsibilities, be empowered to warn of medical
dangers, seek clarification of legal issues, and prepare itself as best it
can in the light of the applicable law.
In this instance, WHO is by no means seeking to lay down a regulatory
framework, in regard to the use of nuclear weapons, which of course would be
beyond its competence, but is only making an enquiry for the clarification
of a matter which is crucial to its proper discharge of its
responsibilities.
As the Report of the WHO's Committee of Experts concluded:
"As doctors and scientists, the members of the Committee feel that they have
both the right and the duty to draw attention in the strongest possible
terms to the catastrophic results that would follow from any use of nuclear
weapons. The immediate and the delayed loss of human and animal life would
be enormous, and the effect on the fabric of civilization would be either to
impede its recovery or make recovery impossible. The plight of the survivors
would be physically and psychologically appalling. The partial or complete
disruption of the health services would deprive survivors of effective help.
The Committee is convinced that there is a sound professional basis for its
conclusions that nuclear weapons constitute the greatest immediate threat to
the health and welfare of mankind."FN44
------------------------------------------------------------------------------------------------------------
FN44 Effects of Nuclear War on Health and Health Services, WHO, Geneva,
1984, p. 6; emphasis added.
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According to a summary of the 1986 Report on the Medical Implications of
Nuclear War, published by the Institute of Medicine of the United States
National Academy of Science:
"Each successive study of the possible human destruction that would result
from a nuclear war draws a grimmer conclusion about what the human cost
would be. Instead of speculating that the casualties might amount to only a
few tens of millions, recent studies [p 44] have indicated that the
casualties are more likely to number a billion or more, and even the
survival of human beings on earth has been questioned." (CR 95/27, p. 77.)
The relevance of WHO's concern appears further from the following statement
in the WHO Report which has been placed before the Court:
"Historically medicine has played an important part in military campaigns.
This has been particularly the case in recent wars in which the
effectiveness of a prompt medical response did much to maintain morale among
combat troops. Following a nuclear war, however, all the evidence indicates
that medicine will have nothing to offer the injured survivors; the number
of casualties will be too great and the remaining medical resources grossly
insufficient."FN45
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FN45
Op. cit. footnote 13, supra, Ann. 6, p. 158
------------------------------------------------------------------------------------------------------------
In nuclear war, physicians and health professionals will themselves be
killed in large numbers and the depleted ranks of the survivors will have to
cope with a situation where the hospitals themselves are destroyed. The WHO
studies thus show that treatment after the event is at best a forlorn hope.
The view that WHO's role is limited to such assistance as it can give after
the devastation of a nuclear attack was well answered in homely terms by the
Marshall Islands that it is not "merely a charlady, a femme de menage
called in to clean up after the event is over and all the participants have
gone home" (CR 95/32, p. 86, Professor Crawford).
7. The Argument Relating to Abuse of the Court's Advisory Functions
For the various reasons set out above, the argument is untenable that WHO
has no special interest in this matter. WHO's constitutional mandate
relating to global health is concerned with all aspects of health
preventive, curative, educational, precautionary, research, regulatory,
planning, emergency assistance, international co-operation. The nuclear
weapon touches all of these and the measure in which it touches them will
vary, depending on whether it is or is not a lawful weapon of war.
The deliberate act of spreading lethal disease, be it by chemicals or germs
or poisons or noxious fumes, has, even in ancient times been considered to
be contrary to the laws of war. I have dealt in my dissenting opinion in the
General Assembly request with various cultural traditions on this matter,
and do not need to cover the same ground here (see Section III.2). Nowhere
in the age-old history of the laws of war ancient or modern is there
found a principle which permits the poisoning of the enemy forces, leave
alone the poisoning of the enemy population en masse. This is what nuclear
weapons do (see my dissent in the General [p 139] Assembly request, Section
II) apart, that is, from poisoning the populations of non-combatant
countries.
To vary the factor that damages health, I take the following hypothetical
illustration. Before any bacteriological weapons convention had been entered
into, a country has rockets on its launching pads, fitted, not with a
nuclear warhead but with a warhead containing a fatal virus such as ebola,
for which no cure is known. Since the spreading of this virus has not been
specifically prohibited by any treaty, WHO makes an enquiry from this Court
as to the legality of deliberately infecting enemy populations with such an
incurable virus. In such a situation, it seems inconceivable that it could
have been submitted that this was an abuse of the Court's advisory
functions. Any objection that because it concerned peace and security, it
was not therefore a matter for WHO, would attract incredulity and disbelief.
It might indeed have been asked what necessity there was for WHO to ask a
question, the answer to which was so obvious according to the principles of
humanitarian law. The nuclear warhead causes no less a danger to global
health than the warhead in the hypothetical illustration above, the
difference being that it is not packed with germs, but with an agency that
causes cancers, keloids, and deformities with equal irreversibility, but on
an infinitely larger scale than that hypothetical warhead.
The nuclear weapon is not so powerful that it can sail above the law.
Further, the argument that WHO has no more competence to put this question
than it would have, itself, to declare the use of a particular weapon
illegal, is one which, with all respect, I have some difficulty in
following. It is for the very reason that WHO manifestly does not have power
to make declarations on the law that it has approached this Court, which
manifestly has that power.
Finally, arguments that the World Health Organization has been goaded or
influenced into taking this action by interested parties are not considered
in this opinion. The WHO is a United Nations agency of high standing and
repute and the argument suggests that this high body is permitting itself
to be made use of in some way to satisfy the ulterior motives of others. I
do not think this submission calls for any attention from this Court.
IV. State Obligations
1. State Obligations in Regard to the Environment
The Court is asked whether the use of nuclear weapons is a breach of State
obligations in relation to the environment. The Court has not considered
this question. The Court's Opinion (para. 16) states that [p 140]
"the Court must identify the obligations of States under the rules of law
invoked, and assess whether the behaviour in question conforms to those
obligations, thus giving an answer to the question posed based on law",
but does not proceed to identify and examine those obligations in order to
answer the question. I consider that it needs more attention. It is
moreover an area very much within the legitimate concerns of WHO.
The question asked by WHO affords the Court an opportunity for contributing
to an important aspect of this development, for it focuses attention on the
vital question of the duties of States in regard to the environment. I
regret this opportunity has not been taken by the Court.
(a) The progress of environmental law
From rather hesitant and tentative beginnings, environmental law has
progressed rapidly under the combined stimulus of ever more powerful means
of inflicting irreversible environmental damage and an ever increasing
awareness of the fragility of the global environment. Together these have
brought about a universal concern with activities that may damage the global
environment, which is the common inheritance of all nations, great and
small. To use the words of a well-known text on international environmental
law:
"The global environment constitutes a huge, intricate, delicate and
interconnected web in which a touch here or palpitation there sends tremors
throughout the whole system. Obligations erga omnes, rules jus cogens, and
international crimes respond to this state of affairs by permitting
environmental wrongs to be guarded against by all nations."FN46
------------------------------------------------------------------------------------------------------------
FN46 International Environmental Law and World Order, Guruswamy, Palmer and
Wes-ton, 1994, p. 344.
------------------------------------------------------------------------------------------------------------
Such compelling facts do not admit of any exceptions, however powerful the
actor or compelling the purpose, for it is increasingly clear that what is
at stake can well be the very survival of humanity. Nuclear weapons bring us
to such a limit situation, and therefore attract the principles of
environmental law. As was observed in the preamble of the Treaty of
Tlatelolco:
"nuclear weapons, whose terrible effects are suffered, indiscriminately and
inexorably, by military forces and civilian population alike, constitute,
through the persistence of the radioactivity they release, an attack on the
integrity of the human species and ultimately may even render the whole
earth uninhabitable". [p 141]
(b) The growth of the notion of State obligations
The Declaration of the United Nations Conference on the Human Environment
(Stockholm), adopted on 16 June 1972, was designed to "inspire and guide the
peoples of the world in the preservation and enhancement of the human
environment". Principle 1 of that Declaration states that:
"Man has the fundamental right to freedom, equality and adequate conditions
of life, in an environment of a quality that permits a life of dignity and
well-being, and he bears a solemn responsibility to protect and improve the
environment for present and future generations . . ."
Principle 21 has a direct relevance to WHO's enquiry, for it deals
specifically with the obligation of States not to damage or endanger
significantly the environment beyond their jurisdiction. Principle 2 of the
Rio Declaration gives expression to the same principle. Both may be said to
be articulations, in the context of the environment, of general principles
of customary law. In the words of Corfu Channel, there is a "general and
well-recognized" principle that every State is under an "obligation not to
allow knowingly its territory to be used for acts contrary to the rights of
other States" (I.C.J. Reports 1949, p. 22).
Principle 24 of the Rio Declaration on Environment and Development (1992),
whereby States are called upon to "respect international law providing
protection for the environment in times of armed conflict and cooperate in
its further development, as necessary", is a further expression of this
general principle. It cannot therefore be gainsaid that the concept of
State responsibility in regard to the environment is today an established
part of international law.
(c) Active and passive State obligations
There is a State obligation lying upon every member State of the community
of nations to protect the environment, not merely in the negative sense of
refraining from causing harm, but in the positive sense of contributing
affirmatively to the improvement of the environment. A wide recognition of
this principle was evidenced when, in 1971, the General Assembly affirmed
"the responsibility of the international community to take action to
preserve and enhance the environment" (General Assembly resolution 2849
(XXVI); emphasis added).
For the purposes of the present case, however, it is not necessary to enter
the area of active State responsibility to conserve the environment an
aspect now receiving increasing attention. The passive responsibility not
to damage the environment is sufficient for the purposes of this [p 142]
case, for it is patently clear that any State action which damages the
environment in the way that nuclear weapons do is a violation of the
obligation of environmental protection which modern international law
places upon States. A contrary view would negative the basic logic of
environ-mental law and send a tremor through the foundations of this vital
sub-discipline of modern international law.
(d) The juristic nature of State obligations
In relation to environmental obligations, the notion is evolving of duties
owed erga omnes and of rights assertible erga omnes, irrespective of the
compartmentalization of the planetary population into nation States.
The concept of an erga omnes right is not new. In 1915, the eminent American
jurist, Elihu Root, who later became a member of the Committee which
drafted the Statute of the Permanent Court, stated, in a paper on "The
Outlook for International Law":
"Wherever in the world the laws which should protect the independence of
nations, the inviolability of their territory, the lives and property of
their citizens, are violated, all other nations have a right to protest
against the breaking down of the law."FN47
------------------------------------------------------------------------------------------------------------
FN47 Proceedings of the American Society of International Law, 1915, Vol. 2,
pp. 7-9, cited in Guruswamy, Palmer and Weston, op. cit., p. 345.
------------------------------------------------------------------------------------------------------------
Such thinking is the background against which the damage caused to the
environment must be considered, for the purpose of ascertaining whether the
use of a nuclear weapon by a State is in conflict with State obligations
under international law.
The concept of obligations erga omnes has, of course, received recognition
in the Court's jurisprudence, though in a different context, in Barcelona
Traction, Light and Power Company, Limited, Second Phase (I.C.J. Reports
1970, p. 3).
Indeed, in some areas, modern discussions of State responsibility take the
matter even further, to elevate serious breach of State duty in regard to
the environment to the level of an international crime when they state that:
"a serious breach of an international obligation of essential importance
for the safeguarding and preservation of the human environment, such as
those prohibiting massive pollution of the atmosphere or of the seas"
may result in an international crimeFN48.
---------------------------------------------------------------------------------------------------------------------
FN48 International Law Commission, Draft Article 19 (3) (d) on State
Responsibility, Yearbook of the International Law Commission, 1976, Vol. II,
Part II, p. 96.
---------------------------------------------------------------------------------------------------------------------
It is not necessary for present purposes to examine the various levels of
State obligations in respect of the environment, which may range from [p
143] obligations erga omnes, through obligations which are in the nature of
jus cogens, all the way up to the level of international crime.
(e) Multilateral treaty obligations
There have been, since the Stockholm Declaration of the United Nations
Conference on the Human Environment (1972), over one hundred multilateral
environmental instruments which are in force. A United Nations Environment
Programme is in force, major instruments have been signed regarding the law
of the sea, transboundary pollution, hazardous waste, nuclear accidents,
the ozone layer, endangered species to name but a few. The United Nations
Environment Programme register of multilateral treaties affecting the
environment revealed as many as 152 treaties in May 1991FN49.
---------------------------------------------------------------------------------------------------------------------
FN49 See Geoffrey Palmer, "New Ways to Make International Environmental
Law", American Journal of International Law, 1992, Vol. 86, p. 262.
---------------------------------------------------------------------------------------------------------------------
The multifarious international instruments relating to the environment, to
which reference has been made, build up the rising tide of international
acceptance which creates in its totality a universal acceptance of State
obligation which in turn translates itself into law. All of the areas they
deal with are areas affected by the nuclear weapon to an extent which is
impermissible under these instruments, had the damage been caused by any
other agency.
The areas named are a small sample of the areas of State obligations under
international law which are affected by the nuclear weapon. What WHO wants
to know, in view of the close linkage of a pure environment with human
health, is whether there is a breach of such State obligations when a State
uses a nuclear weapon. It cannot, in my view, be denied this information,
which lies at the very heart of its constitutional mandate of safeguarding
global health.
2. State Obligations in Regard to Health
The next question to be addressed is whether there are State obligations in
regard to health, and whether these are violated by the use of the nuclear
weapon.
(a) The human right to health
An examination of the various international developments in regard to health
shows that State duties in regard to health have now passed beyond the field
of good intentions into the realm of binding international law. [p 144]
Even before the Universal Declaration of Human Rights, the Constitution of
WHO (1946) recognized the enjoyment of the highest attainable standard of
health as one of the fundamental rights of every human being. This will be
dealt with more fully in the section on the WHO Con-stitution.
Article 25 (1) of the Universal Declaration recognizes the right of everyone
to health and well-being, through its stress on the right to a standard of
living adequate for health and well-being.
(b) State obligations in relation to health
A more specific recognition of the right to health is contained in Article
12 of the International Covenant on Economic, Social and Cultural Rights of
1966. Article 12 states that the "States Parties to the present Covenant
recognize the right of everyone to the enjoyment of the highest attainable
standard of physical and mental health". It will be noted here that the
recognition by States of the right to health is in the general terms that
they recognize the right of "everyone" and not merely of their own subjects.
Consequently each State is under an obligation to respect the right to
health of all members of the international community.
It is to be noted also that the formulation contained in the Covenant is not
restricted to mere recognition or to statements of good intention. Article 2
(1) provides that:
"Each State party to the present Covenant undertakes to take steps,
individually and through international assistance and cooperation,
especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of
the rights recognized in the present Covenant by all appropriate means,
including particularly the adoption of legislative measures." (Emphasis
added.)
Further, Article 2 (2) contains a guarantee by States that "the rights
enunciated in the present Covenant will be exercised without discrimination
of any kind as to race, . . . national or social origin, ... or other
status". Quite clearly this is a reinforcement of the obligation erga omnes
towards the entire global population which is contained in Article 12 and a
further obligation to take active steps towards guaranteeing this right to
health of the global population.
(c) Global implementation measures involving State obligations in regard to
health
On 22 May 1981, the World Health Assembly, by resolution WHA34.36,
unanimously adopted a "Global Strategy for health for all by the year [p
145] 2000", which was noted with approval by the General Assembly. In that
resolution, the Assembly urged all member States to assure its
implementation and requested all appropriate organizations and bodies of
the United Nations system to collaborate with the World Health Organization
in carrying it out.
In particular, there has been much action on the regulation of products
harmful to health and the environment. A consolidated list has been issued
of products which have been banned, withdrawn, severely restricted or not
approved. At its thirty-ninth session, the General Assembly received a
report from the Secretary-General on products harmful to health and the
environment, and decided that an updated consolidated list should be issued
annually, and urged Member States to avail themselves of this information,
and to supplement the data in the consolidated list.
Thus, not only has the right to health been recognized as a human right, but
specific implementation measures have been urged on all States in measures
which have been universally accepted by States, without any demurrer on the
ground that health is not an area of State responsibility. Special action
programmes have been worked out in relation to agencies likely to damage
health and the environment.
(d) The clash between State obligations and the health-related effects of
nuclear weapons
How does the use of the nuclear weapon accord with this obligation which
States under binding treaty obligation, and by general agreement, have
recognized as binding, and have in fact agreed by treaty to implement? The
nuclear weapon produces the various effects upon health which have been
outlined in this opinion. They include the inducement of radiation sickness,
leukaemia, cancer, keloids, genetic deformities, and the like. They do so on
a massive scale, not limiting their effects to the target population of the
countries at war. Even within the countries at war, they promote these
sources of destruction of human health among civilian and combatant alike.
It appears evident that there is here a clear contradiction between State
obligations under international law in relation to health and the use of the
nuclear weapon. There can be no doubt that if a State by deliberate action
of any other kind should foster this sort of danger to human health, it
would clearly be seen as a contradiction between that act and the State's
obligations in regard to health. Even if that act should have been performed
in conditions of war, there would still be a breach of State obligations
under humanitarian law in relation to human health, as is clear with
chemical, bacteriological or asphyxiating weapons. By what title of
exemption does the nuclear weapon fall clear of this principle? I know of
none. [p 146]
3. The Duties of States under the WHO Constitution
WHO asks whether, in view of their health and environmental effects, the use
of a nuclear weapon by a State would be a breach of its obligations under
the WHO Constitution. Knowledge of the legal reach of its constitution is
vital to the proper functioning of any agency. The Court is the pre-eminent
authority under the United Nations system to advise a United Nations agency
on such a matter which is unquestionably a matter of law, and which is
unquestionably a matter of legitimate concern to the agency. WHO turns
naturally to the Court for advice on precisely such a matter. The Court
denies this advice on what seems to me to be a technicality.
Quite apart from their responsibilities under customary international law
and any other conventions to which they are parties, the States that are
parties to the WHO Constitution, which is itself an international treaty,
accepted certain principles and obligations. The Constitution was signed by
61 States on 22 July 1946 and entered into force on 7 April 1948. Appendix I
to the WHO volume of Basic Documents shows that, at 31 October 1992, 182
States had become party to the Constitution.
What are the obligations of States under the WHO Constitution?
In the first place, the States Parties to the Constitution declare inter
alia that "The enjoyment of the highest attainable standard of health is one
of the fundamental rights of every human being . . ."; that "The health of
all peoples is fundamental to the attainment of peace and security and is
dependent upon the fullest co-operation of individuals and States"; and that
"Governments have a responsibility for the health of their peoples . . .".
They proceed to accept these principles and they establish the World Health
Organization "for the purpose of co-operation among themselves and with
others to promote and protect the health of all peoples . . .".
This Organization's objective, as stated in Article 1 is "the attainment by
all peoples of the highest possible level of health".
There is thus a commitment to the attainment by all people to the highest
possible level of health, to regarding the achievement of the highest
achievable standard of health as a fundamental right of every person on the
planet, a recognition of health as fundamental to peace, and of the duty of
State co-operation to achieve this ideal. More such commitments would appear
from a scrutiny of other articles of the Constitution, but the foregoing
suffices for purposes of present discussion.
The Constitution is a multilateral treaty, and each participating State
holds out to all others its adherence to these principles, on the basis of
which all others make a similar commitment. All participating States [p 147]
have committed themselves, to the extent of their respective abilities, to
pursue this objective, consistently with the underlying assumption that the
health of all peoples is fundamental to the attainment of peace and
security.
As stated in the next section, the WHO Constitution and its object and
purpose must be interpreted in accordance with the principle of broad
interpretation approved by the Court in its Opinion in the present case. It
is in this sense that the commitments of the participating nations under the
WHO Constitution must be construed. It seems to be clearly inconsistent
with this objective that any of these nations, even for purposes of war,
should consciously spread a means by which global health is undermined. In
fact, it is a contradiction in terms to commit oneself to the attainment by
all peoples of the highest possible levels of health and at the same time to
launch into the midst of the global population a lethal instrumentality for
spreading ill health on an unprecedented scale.
The use of conventional weapons in war does not spread disease. It does not
cause genetic deformities. It does not imperil crops. It does not cause
intergenerational climatic effects which imperil the global food supply. The
use of nuclear weapons does. The user of the weapon now knows, in the
present state of scientific knowledge, that all these dangers to health will
be caused.
There is thus a clear breach of State obligations undertaken in the treaty
which forms the WHO Constitution, when States resort to the use of nuclear
weapons. This is the crux of the WHO enquiry regarding the interpretation of
its Constitution.
Such a result would be achieved even without the application of broad
principles of interpretation, discussed in the next section, for it follows
naturally from a consideration of these declarations and commitments
collectively.
The Constitution also accepts the promotion of child health and welfare as
one of the mandatory functions of the Organization (Art. 2 (I)). This
principle has been accepted by every participating State. Nuclear weapons
surely violate this principle, if for no other reason than the genetic
damage they cause. The position is no different in regard to maternal health
and welfare dealt with in the same Article (2 (l)).
V. Principles of Interpretation Relating to WHO's Constitution
1. Principles of Interpretation Applicable to WHO's Constitution
An important aspect of the question referred to the Court is the legal
interpretation of State obligations under the WHO Constitution, which is [p
148] a multilateral treaty. As the Court has observed in its Advisory
Opinion (at para. 19), the principles of treaty interpretation are thus
brought into play and Article 31 of the Vienna Convention "makes it possible
to give quite broad consideration to the particularities of the
constitutional instruments of international organizations", for the terms of
a treaty must be interpreted "in their context and in the light of its
object and purpose". The Court's jurisprudence has given effect to this
principle on numerous occasions, as the Court has observedFN50.
---------------------------------------------------------------------------------------------------------------------
FN50 See references to the relevant cases in paragraph 19 of the Court's
Advisory Opinion.
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In the interpretation of a multilateral convention of this type,
particularly one which sets before itself certain sociological or
humanitarian goals, the task of interpretation should be guided by the
object and purpose which the Convention sets before itself. A literal
interpretation, using strict methods of anchoring interpretation to the
letter rather than the spirit of the convention, would be inappropriate.
Fitzmaurice observes of interpretation by reference to objects, principles
and purposes (the teleological method) that:
"This is a method of interpretation more especially connected with the
general multilateral convention of the 'normative', and, particularly, of
the sociological or humanitarian type. The characters or constitutive
instruments of international organizations may also be placed in this
category."FN51
------------------------------------------------------------------------------------------------------------
FN51 Sir Gerald Fitzmaurice, The Law and Procedure of the International
Court of Jus-tice, 1986, Vol. I, p. 341.
------------------------------------------------------------------------------------------------------------
The interpretation of a multilateral, sociological or humanitarian treaty,
such as the WHO Constitution, cannot be permitted to diverge from its
objects, purposes and principles. I am of the view that the approach of the
Court has in effect taken it far from these objects, purposes and
principles, through a narrow and literal construction, which sees the
Organization as being precluded from enquiring, inter alia, about the
conformity of a certain item of State conduct with the terms of its own
Constitution.
There are numerous specific provisions within the treaty, several of which
have already been referred to. These need to be interpreted in accordance
with the treaty's overall object and purpose as stated in its preamble. This
is not to state that in the treaty in question there is any conflict between
the natural meaning of the words used and its overall purpose, but merely to
state that its various specific provisions should not be interpreted
narrowly, but always with the end in view which the treaty seeks to achieve
the attainment of the highest standards of health on a global scale.
The object and purpose of the Constitution the attainment by all peoples
of the highest possible level of health is clearly defeated by the [p 149]
infliction upon the global population of multiple health dangers on a
massive scale, as follows from the use of a nuclear weapon.
There is no ambiguity about the expression "highest possible level of
health". States declare they will co-operate to achieve this, others make
similar declarations on this basis, and a commitment to achieve this
objective has emerged.
The governing principle as to whether the nuclear weapon violates State
obligations under the Constitution is to be found in the object and purpose
of the WHO Constitution. When so regarded, the answer emerges beyond any
possibility of doubt or obscurity. State actions which negative the State
declarations and commitments to health outlined earlier are clearly a
violation of the WHO Statute. To interpret the statutory provisions
outlined earlier, so as to enable a State to inflict health damage to
present and future generations without violating its constitutional duties,
does violence to this principle of interpretation, and to the Statute
itself.
The maxim ut res magis valeat quam pereat may also be invoked in this
regardFN52. The central purpose of the Statute is health. The Statute must
be interpreted so as to promote that purpose, rather than endanger it. A
statutory construction of the WHO Constitution which sees State use of the
nuclear weapon as not being in conflict with State obligations thereunder is
a construction that endangers rather than promotes the central purpose of
the Statute.
---------------------------------------------------------------------------------------------------------------------
FN52 See Fitzmaurice, op. cit., pp. 345 ff. See, generally, C. F.
Amerasinghe, "Interpretation of Texts in Open International Organizations",
British Year Book of International Law, 1994, Vol. 65, pp. 189 ff.; H. W. A.
Thirlway, "The Law and Procedure of the International Court of Justice,
1960-1989", British Year Book of International Law, 1991, Vol. 62, pp. 20
ff.
---------------------------------------------------------------------------------------------------------------------
In view of the clear and incontrovertible contradiction between the
obligations assumed by States under the Constitution, and the use of nuclear
weapons, it is scarcely necessary to examine other elements in the
Constitution which are confirmatory of these conclusions. For example, the
provisions that "the enjoyment of the highest attainable standard of health
is one of the fundamental rights of every human being", or that the
organization is established "for the purpose of co-operation ... to promote
and protect the health of all peoples" are just a few of the many provisions
scattered throughout the Statute which confirm its dominant and
incontrovertible purpose, to which all participating nations have subscribed
without reservation.
2. The Principle of Speciality
The Court has attached much importance to the principle of speciality in
dealing with the question whether the present request falls within the [p
150] proper sphere of activities of WHO. The Court is of course anxious to
ensure that there should not be an unnecessary confusion or overlapping of
functions between the different organs and agencies of the United Nations.
However, the principle of speciality does not mean that there can be no
overlap. It is in the nature of a complex organization like the United
Nations that there will be, owing to the multiplicity and complexity of its
functions, some areas of overlap between the legitimate spheres of
author-ity of its constituent entities. As observed earlier, at the highest
levels of the United Nations Organization, this Court itself has an area of
overlap with the Security Council. Although the Security Council has basic
responsibility for matters pertinent to peace and security, the same
matters can also present legal problems properly within the sphere of
adjudication, which is the Court's particular responsibility. The
inextricable interlinkage between the legal aspects of a matter and its
political implications has never been seen as depriving the Court of its
right and its duty to act in its proper legal sphere.
As so well observed by the Court in its Opinion in the present case (para.
16), the fact that a matter has political implications does not deprive a
legal question of its quality of being a legal question. The same concerns
should apply in regard to medical questions. In Military and Paramilitary
Activities in and against Nicaragua, the Court gave expression to what may
be described as the principle of complementarity at the highest levels of
the United Nations Organization in the clearest terms when it observed:
"The [Security] Council has functions of a political nature assigned to it,
whereas the Court exercises purely judicial functions. Both organs can
therefore perform their separate but complementary functions with respect to
the same events." (I.C.J. Reports 1984, p. 435, para. 95.)
Likewise, a medical question may involve also some other ramifications
which make it an appropriate matter for another specialized agency. For
example, ventilation requirements on aircraft could equally well concern the
World Health Organization and the International Civil Aviation
Organization; safety regulations relating to the carriage of noxious waste
may equally concern WHO and the International Maritime Organization;
questions relating to patent rights in pharmaceuticals may equally concern
WHO and the World Intellectual Property Organization; questions regarding
the disposal of nuclear waste may equally concern WHO and the International
Atomic Energy Agency; questions relating to herbicides may equally concern
WHO and the Food and Agriculture Organization ; unhealthy working
conditions in the paint and chemical industry may equally concern WHO and
the International Labour Organisation.The family of United Nations
organizations was not set up in a fretwork pattern of neatly dovetailing [p
151] components, each with a precisely carved outline of its own. These
organizations deal with human activities and human interrelationships, and
it is of their very nature that they should have overlapping areas of
concern. Their broad contours are of course defined, but different aspects
of the self-same question may well fall within the ambit of two or more
organizations. The particularities of various international organizations
were never meant to exclude areas of overlap, so long as these lay within
the legitimate sphere of concern of the respective agencies involved.
Specialized agencies with specialized interests can home in on specialized
implications of some activity, which might otherwise pass unnoticed in other
reactions to other aspects of the same problem. Complex problems have
ramifications in many specialized directions to which the specialists alone
are most competent to draw attention. Such a view contributes to the
richness of the United Nations system. To expect otherwise would be contrary
to the essence and rationale of a complex organization which straddles all
facets of human activity.
VI. WHO's Prior Efforts
1. WHO's Efforts in the Nuclear Field
WHO's representative has outlined three phases of WHO activity in the field
of nuclear radiation going back to the 1950s. At that stage, WHO was
concerned with the harmful effects of ionizing radiation of all kinds. In
1960 it directed its attention, inter alia, to the effects of radioactive
fallout from experimental nuclear explosions in the atmosphere. In 1966 it
adopted a resolution particularly referring to nuclear weapons. In 1979 it
specifically concerned itself with nuclear war which was mentioned in WHA
resolution 32.24.
In this phase, the Assembly began to concern itself with the "effects of
nuclear war on health and health services". It produced a detailed report on
the subject which took two years in preparation. This has been deposited
with the Court and has already been cited.
That Report dealt with the explosion of a single bomb, a limited war and a
total war. The dead in each of these scenarios ranged from one million to
one billion, with a similar number of injured people in addition.
The next phase of WHO activity in this regard commenced in 1992 when a
possible request to this Court for an advisory opinion was taken up, though
not without opposition from some members, as noted earlier in this opinion.
[p 152]
2. WHO's Past Practice in Matters Relating to Peace
WHO has in the past asserted its "interest in the consolidation of peace as
an inalienable prerequisite for preservation and improvement of the health
of all nations" (WHA resolution 20.54, referring to resolutions 11.31 and
15.51), and it has called upon all WHO member States to implement United
Nations General Assembly resolution 2162 (XXI). In 1969 WHO, in resolution
22.58, referred to "the necessity of achieving a rapid international
agreement for the complete prohibition and disposal of all types of chemical
and bacteriological (biological) weapons".
WHO has thus in its practice very clearly indicated its concern with the
legal status of weapons that could have damaging effects on health and the
environment. Health and the purity of the environment, without which health
cannot be fostered, are undoubtedly within its purview and, indeed,
constitute the very rationale for its existence. The suggestion that WHO
should concern itself with the practicalities of attention to matters of
health and the environment without any concern with the legal framework
within which health and environment are affected has not been the basis on
which WHO has conducted its activities thus far. It has viewed a concern for
health and environment as including a concern for the legal framework within
which damage to health and environment may be caused. WHO would indeed be
lacking in due attention to its duties in this regard if it did not, where
possible, draw attention to the need for clarification or correction of a
legal framework within which such damage could occur.
If the legality of chemical and bacteriological weapons was a proper subject
for WHO's concern, having regard to their effect on health and the
environment, then a fortiori nuclear weapons would be.
If WHO did not concern itself with international legislation in regard to
such matters as plague prevention, smallpox inoculation, or noxious waste
disposal, this would be universally regarded as a grave omission. It could
similarly concern itself with legislation in regard to the level of a toxic
or carcinogenic substance that can be carried in a product offered for
public consumption, or with the need for legislation regarding the
advertising on product labels of the carcinogenic or other effects of the
product. A WHO division, the International Agency for Research on Cancer
puts out reports from time to time on such matters. Recent outbreaks of the
deadly ebola virus have highlighted the imperative need for stringent
regulations, be they on a global scale, for containment of the virus.
Questions of legality whether they be in regard to transport, food
certification, quarantine and indeed any means of spread of disease are
very much the concern of WHO, whatever the agency that spreads it among the
global population. The nuclear weapon may concern matters of high national
policy, but it is also a global health hazard of the [p 153]
first order, thus bringing its legality clearly within WHO's legitimate
sphere of interest, no less than any of the other legal questions outlined
above.
3. Lack of Objection to Prior WHO Actions
Furthermore, in taking such action as it has in the past, there has been, as
far as may be gathered from material placed before the Court, no opposition
to WHO action, on the basis of a transgression beyond the bounds of its
mandate. There has been no suggestion that WHO should confine itself purely
to the medical/epidemiologic level of prevention, and not enter the legal
and political areas of prevention of activities damaging to health. If,
indeed, it was outside WHO's province to dabble in these questions of the
illegality of weapons and, if such action was viewed by the international
community as such, one would have expected some exception to be taken to WHO
venturing into this area.
It is only necessary to refer to resolution WHA23.53 of 1970, in which WHO
emphasizes:
"the need for the rapid prohibition of the development, production and
stockpiling of chemical and bacteriological (biological) weapons and the
destruction of stocks of such weapons as a necessary measure in the fight
for human health" (emphasis added).
An illustration of WHO's actions protecting its areas of concern, even in
relation to the legality of the use of force, is its appeal in resolution
WHA42.24 of 1989 to all member States: "to abstain from aggression and the
use of threats in their international relations, including threats against
medical centres and medical production plants".
Another factor bearing upon this aspect is the General Assembly's own
understanding of the practice relating to this matter, as reflected in its
resolution 49/75 K, welcoming the WHO resolution to seek this opinion from
the Court. Without being authoritative in itself on the legal question
involved, this is a recognition by the General Assembly itself that the
issues raised in the request were not seen as taking WHO outside its proper
sphere of competence.
VII. Admissibility and Jurisdiction
1. The Court's Discretion
The precedential implications of this Court's first refusal of a
specialized agency's request for an advisory opinion prompt me to set out
spe-[p 154]cifically some reasons why I consider that the objections to
admissibility and jurisdiction should fail.
The refusal of the Permanent Court in Status of Eastern Carelia the only
instance in the jurisprudence of this Court's predecessor where an opinion
was declined is distinguishable from the present, for in that case the
refusal was based on the principle that an existing dispute to which a State
was a party could not be indirectly brought to the Court in the form of an
advisory opinion. No such situation exists in relation to the WHO request.
Many objections, mainly based on policy considerations, have been urged by
those opposing the grant of this opinion. Several of those policy objections
were raised also in regard to the opinion requested by the General Assembly,
and the Court has, in its Advisory Opinion on that request, dismissed those
objections. I agree with the Court's reasoning in dismissing those
objections.
However, it is necessary to make some observations on those objections, in
the context of the WHO request, for those objections must likewise be
overcome in regard to this request as well.
To a large extent, the objections were common. For example, the United
Kingdom observed:
"The United Kingdom submits that the Court should exercise its discretion
not to respond to the request from the General Assembly. Similarly, if,
contrary to my earlier submission, the Court were to consider that WHO was
competent to put its question to the Court, the United Kingdom submits that
the Court should none the less decline to answer that question also. The
reason is that both questions are too abstract and speculative for a
meaningful response. A response would serve no useful purpose and may, in
fact, actually do harm." (CR95/34, p. 28, Sir Nicholas Lyell; emphasis
added.)
In my view, these objections constitute no impediment to the grant of the
advisory opinion sought by WHO, and in this section I set out my reasons for
so concluding.
2. The Court's Duty to Act Judicially
The power of the Court to grant an advisory opinion is discretionary, in
terms of the permissive rather than compulsory language (Statute, Art. 65
(1)) which states that the Court:
"may give an advisory opinion on any legal question at the request of
whatever body may be authorized by or in accordance with the Charter of the
United Nations to make such a request" (emphasis added). [p 155]
Yet the principle holds good that that discretion is not an absolute and
overriding discretion, but is circumscribed by the overriding principle of
the Court's duty, whether in contentious or in advisory jurisdictions,
always to act judicially.
As the Permanent Court observed in Status of Eastern Carelia:
"The Court, being a Court of Justice, cannot, even in giving advisory
opinions, depart from the essential rules guiding their activity as a
Court." (P.C.I.J., Series B, No. 5, p. 29.)
In Northern Cameroons this Court emphasized the correspondence between the
principles governing its contentious and advisory jurisdiction when it
observed:
"Both Courts have had occasion to make pronouncements concerning requests
for advisory opinions, which are equally applicable to the proper role of
the Court in disposing of contested cases; in both situations, the Court is
exercising a judicial function." (I.C.J. Reports 1963, p. 30.)
So, also, in Certain Expenses of the United Nations, the Court stressed that
its task in rendering advisory opinions is "an essentially judicial task"
(I.C.J. Reports 1962, p. 155).
The essential rules guiding the Court's activity as a Court have not been
comprehensively spelt out in any decision. An important guideline has
however been spelt out in the jurisprudence of the Court namely, that the
Court will render an opinion in cases when it is so requested by a
competent body, in the absence of "compelling reasons to the contrary"FN53.
---------------------------------------------------------------------------------------------------------------------
FN53 For numerous decisions on this matter, see footnote 1, supra.
---------------------------------------------------------------------------------------------------------------------
Do such compelling reasons exist?
3. The Objections
Among the reasons adduced by those opposing a request for an advisory
opinion on nuclear weapons are the following:
(a) the requested opinion would enter into the sphere of politics, State
policy and State security;
(b) nuclear weapons are being addressed in other contexts in the United
Nations;
(c) an advisory opinion would be devoid of object or purpose;
(d) the opinion would have no effect on the conduct of States;
(e) an advisory opinion on this question could adversely affect important
disarmament negotiations;
(f) the question referred is purely abstract and theoretical;[p 156]
(g) the question is too general;
(h) an opinion rendered in this matter would be damaging to the prestige of
the Court;
(i) the Court would be involved in a law-making exercise, were it to render
an opinion;
(j) this case falls outside the categories of cases in which an opinion
ought to be given; (k) the opinion would trespass into areas of State
policy.
(a) The requested opinion would enter the political sphere
The submissions under this head take a variety of forms.
In the first place, it was argued that the request is only a search for
means of support of a political objective and that, despite the "legal
camouflage" (France, Written Statement, p. 7), the question is not a legal
one. France indeed argued that "the questions are of a purely political
nature" and that they "have obviously been put for exclusively political
purposes" (CR 95/23, p. 66).
It was further submitted that the ruling sought from this Court goes beyond
the will of the States concerned into areas they have carefully refrained
from entering. In developing this point, it was argued that the topic of
legality or illegality is one which States have deliberately chosen not to
broach directly or indirectly. The method deliberately chosen by States on
this matter is, we are told, "by elaborating and developing a body of very
complex and highly technical international treaty law" (CR 95/24, p. 41,
Germany). Despite this, the request seeks, according to some submissions, to
draw the Court into a purely political debate in a realm not pertaining to
its judicial function. For such reasons, the request is said to be one which
is not amenable to judicial enquiry.
These objections have been effectively answered by the Court, so far as
concerns the General Assembly request. The same reasoning would apply in
regard to WHO's request. Stronger objections have been taken to the WHO
request than were taken in regard to the General Assembly request; but the
same reasoning on which the Court has overruled the objections to the
General Assembly request would apply equally to the WHO request. The fact
that the legal question is inextricably interlinked with political
considerations, that political motives are alleged to lie behind the
request, that political consequences would ensue from a ruling of the Court
these are matters extraneous to the consideration whether a given matter
is a legal one. In fact, in the international world there are few issues
indeed which do not have political overtones in varying degrees. The
weightier the issue, the heavier its likely political overtones. The heavier
its political overtones, the more necessary it may be to seek a legal
opinion. Whether the question be raised by the General Assembly [p 157] or
by WHO, if it is a legal issue it is a proper matter for the Court, and
there this particular objection ends. As this Court has observed:
"in situations in which political considerations are prominent it may be
particularly necessary for an international organization to obtain an
advisory opinion from the Court as to the legal principles applicable with
respect to the matter under debate" (Interpretation of the Agreement of 25
March 1951 between the WHO and Egypt, I.C.J. Reports 1980, p. 87, para. 33).
The delicate nuances of diplomatic activity on the subject of nuclear
weapons are matters for the appropriate political authorities to pursue.
This Court cannot thereby be deterred from addressing its proper function
giving its considered opinion on the purely legal question referred to it,
irrespective of the political implications of the subject.
Sir Gerald Fitzmaurice, in referring to the prior jurisprudence of the
CourtFN54, observed that, "if the question put [to the Court] is in itself a
legal question, . . . the fact that it has a political element is
irrelevant"FN55.
---------------------------------------------------------------------------------------------------------------------
FN54 Conditions of Admission of a State to Membership in the United Nations
(Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p.
57, Competence of the General Assembly for the Admission of a State to the
United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 4, and
Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, Advisory Opinion, I.C.J. Reports 1950, p. 65.
FN55 The Law and Procedure of the International Court of Justice, op. cit.,
p. 116.
---------------------------------------------------------------------------------------------------------------------
The joint dissenting opinion of Judges Onyeama, Dillard, de Arechaga and
Waldock is also worthy of note in this connection:
"'Few indeed would be the cases justiciable before the Court if a legal
dispute were to be regarded as deprived of its legal character by reason of
one or both parties being also influenced by political considerations.
Neither in contentious cases nor in requests for advisory opinions has the
Permanent Court or this Court ever at any time admitted the idea that an
intrinsically legal issue could lose its legal character by reason of
political considerations surrounding it.' (Nuclear Tests (New Zealand v.
France), I.C.J. Reports 1974, p. 518.)" (CR95/27, p. 61.)
The statement referred to earlier that the questions are "of a purely
political nature" does not stand the test of these considerations.
Moreover, the suggested motivation of the questions is quite obviously not
a matter for speculation on the part of the Court.
(b) Nuclear weapons are being addressed in other contexts in the United
Nations
The argument that matters relating to nuclear weapons are the preserve of
other organs of the United Nations has been used for two purposes in the
present application: [p 158]
(a) so far as concerns the capacity of WHO to make this application; and
(b) so far as concerns the capacity of this Court to consider the
application.
The first has been dealt with in the section of this opinion dealing with
the Principle of Speciality (Sec. V.2).
The second has been dealt with by the Court in answering the General
Assembly's request. I associate myself with the Court's answer to that
objection as contained in its Opinion regarding the General Assembly
request.
The mere circumstance that a matter is pending in other forums cannot
deprive a legal question of the quality of being legal, nor can it deprive
the Court of a jurisdiction expressly vested in it by the Charter. Nor can
the circumstance that it relates to international peace and security
preserve such a matter within the exclusive jurisdiction of the Security
Council and exclude it from the jurisdiction of the Court. It would be
quite impossible for the Court to function as the principal judicial organ
of the United Nations if this were the case, and the Court is required to
abdicate jurisdiction merely because a matter involves peace and security.
The entire jurisprudence of the Court militates against this proposition.
Cases such as the Genocide case, relating to Bosnia, and the Lockerbie
case, despite the heaviest implications attaching to them relating to peace
and security, were nevertheless entertained and handled by the Court.
Likewise, in regard to advisory jurisdiction matters, the fact that the
international status of South West Africa was a question which threatened
peace and security did not prevent the Court from giving the opinion
requested.
Just as the presence of a political element does not take away the
jurisdiction of the Court, so also the presence of an element relating to
peace and security does not take away from WHO its undoubted competence in
relation to medical matters.
(c) An opinion would be devoid of object or purpose
Advisory procedure is intended to allow the body invoking it to seek a legal
opinion that will be of assistance to it in the performance of its duties.
WHO, for reasons best known to it, has decided to seek the Court's opinion.
It is an expert body charged with worldwide responsibilities in relation to
the health of the global population. As discussed earlier, it has
obligations not only to render assistance after a health catastrophe, but to
plan its services before the occurrence of the catastrophe. It would
otherwise be denying itself the ability to be of maximum usefulness to the
global community. It seeks information in regard to the nuclear catastrophe,
the worst health catastrophe that can befall humanity. Provided the request
is within the scope of its activities, as the earlier part of this opinion
seeks to show, the Court must respect the technical judgment of WHO when it
decides that it needs that opinion. As Egypt put it, it would be "improper"
for the Court to indulge in speculation [p 159] about the consequences of an
opinion which the requesting organ, in its collective wisdom, has referred
to the Court.
(d) An opinion would have no effect on the conduct of States
Clarification of the law by an authoritative body can never be described as
having no effect upon the community bound by that law. The proposition is
incontrovertible that clear law is a guide to societal conduct. Such clarity
is in the interests of the community served by that law, whether that
community be national or global. It is not for the Court to speculate as to
whether that clarification of the law will be complied with or not.
As Egypt so aptly submitted, the first Advisory Opinion given by this Court
on the status of South West Africa was a statement of the law which was not
acted upon by those who should have acted upon it. The Court, rendering the
opinion, was probably aware of the likelihood that this opinion would not be
acted upon. Yet there can be little doubt that the clarification of the law
resulting from that opinion was a factor which helped, over the long term,
in the eventual dismantling of a structure which was anathema to the rule of
law.
So, also, in regard to nuclear weapons. Whatever be the opinion of the
Court, and whether the advisory opinion clarifying the law be acted upon or
not, it must prove a valuable building block in the realization of a world
ruled by law which in the ultimate analysis is what all members of the world
community desire.
It is axiomatic that every individual in any community living under the rule
of law is entitled to know the rules that relate to his or her protection,
and the basic rules relating to the rights or duties of every member of that
community. Not for nothing were the XII Tables publicly posted in the Roman
forum. It would be strange indeed if the rule of law was said to prevail in
any society whose individual members did not know whether, in quarrels
between neighbours with which they were not concerned, their neighbours had
the right to indulge in conduct which could destroy the former's lives and
property. It would be stranger still if they did not have this right of
information in matters which spell the difference between the survival and
the extinction of their entire family. It cannot be any different in the
international legal system.
The contention that the opinion would have no effect upon the conduct of
States is thus not true to reality. The Court upholds the rule of law,
serves a community bound to obey the rule of law and can only function on
the supposition that a community subject to the rule of law will rule itself
by law.
One is reminded of the statement of this Court in the Western Sahara case
where the Court was greatly influenced, in deciding to respond positively
to the request for an opinion, by the circumstance that its reply [p 160]
fulfilled "a practical and contemporary purpose" (I.C.J. Reports 1975, p.
20). It is difficult to think of a more "practical and contemporary
purpose" than the clarification of the law attendant on the use or threat
of use of nuclear weapons.
There is another angle as well from which this objection can be viewed.
It is the unanimous sentiment of the international community, as evidenced
in the Nuclear Non-Proliferation Treaty (Article VI of which commits every
State to general and complete nuclear disarmament) and numerous other
international documents, that there should be a striving towards the goal of
total nuclear disarmament. The road towards this goal is a difficult one.
The Court's opinion one way or another on the legality of nuclear weapons
would clarify the steps which the international community needs to take
towards removing the obstacles along the path to the attainment of that
goal.
It is for the Court to pronounce upon what the law is. Other matters,
extraneous to the question of legality, are not factors which should deter
the Court from doing its duty.
(e) An opinion could adversely affect important disarmament negotiations
It has been said in argument that a reply by the Court will adversely affect
the course of current disarmament negotiations.
In terms equally applicable to the WHO request, France observed of the
General Assembly's request:
"a reply from the Court, far from representing a positive contribution to
the functioning of the General Assembly, and the United Nations as a whole,
could but adversely affect the current negotiations to achieve a more secure
world" (France, Written Statement, p. 16).
This is said to be particularly so at a time when, with the end of the Cold
War, disarmament talks have achieved a fresh impetus.
It is not for the Court to indulge in speculation as to the likely effect
upon future negotiations of a finding by the Court one way or the other. Nor
is the Court competent to assess the subtle diplomatic nuances of complex
situations in an area outside its proper domain. It is difficult to see how
speculation as to whether an advisory opinion could adversely affect
important disarmament negotiations can affect the question of the Court's
competence to consider a legal question.
What the Court needs to consider is whether it is possessed of the requisite
jurisdiction to address the particular matter on which an opinion is sought.
If it has this jurisdiction it must proceed.
[p 161]
It is difficult to see how, if the Court has the authority to give this
opinion, it should be invited to desist from using this authority merely
because some members of the community of nations prefer to proceed upon the
basis of uncertainty rather than clarity of the applicable law and thereby
to proceed on premises which may eventually turn out to be false, one way or
the other. Whether the use of the weapon would or would not be a breach of
State responsibility, the sooner the correct position is known, the firmer
will be the basis on which the negotiations will proceed.
(f) The question referred is purely abstract and theoretical
The question is said to be abstract and theoretical, as it is not related to
any specific threat or imminent use of a nuclear weapon. Such opinion as the
Court may give is said therefore to be one which has little regard to
practicalities. It is submitted that the question is general, vague and
imprecise, whereas Article 65 (2) of the Statute requires that the written
request should contain "an exact statement of the question upon which an
opinion is required". Reference is made in this connection to the Advisory
Opinion on Namibia where this Court observed that:
"to enable a court to pronounce on legal questions, it must also be
acquainted with, take into account and, if necessary, make findings as to
the relevant factual issues" (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).
France similarly argued that the Court's response should not involve
speculation which, in the present case, is claimed to be inevitable in the
absence of specific facts to which the legal question is related (France,
Written Statement, p. 15).
France argued that it is:
"impossible to examine the issue of nuclear weapons irrespective of their
real purpose, which is to avoid war. Nor can it disregard the fact that, for
decades, the policy of deterrence has helped to ward off the risk of a new
world conflict." (Ibid., p. 20.)
Finland contended that the legality of the use of nuclear weapons can only
be determined in respect of specific circumstances, for there can be a large
number of potential situations for example, first use, counter use,
different practices of targeting, different types of nuclear weapons and
the Court cannot hypothesize about all these possibilities (Written
Statement of Finland, p. 4). This aspect was rather bluntly put by France
[p 162] when it stated that, in the absence of factual issues, the Court
would have to discover and invent them and that the Court's "function is to
state the law, not to write scenarios" (CR 95/23, p. 62).
There are several reasons why this line of argument cannot succeed.
In the first place, the question posed to the Court is a very specific
question relating to State responsibility for health, State responsibility
in regard to the environment, and State responsibility under the WHO
Constitution. The effects of nuclear weapons are amply documented and are
well known. There is no element of abstractness about those concrete facts.
The question posed by WHO relates those questions of State responsibility to
those concrete facts.
Secondly, a distinction must be made between a question which is abstract in
the sense of being unrelated to reality, and one which is abstract in the
sense of being theoretical, though related to reality. A question based upon
invented facts, unrelated to reality or upon problems stemming from those
invented facts, is clearly the sort of abstract question which the Court
cannot entertain. Self-evidently, the advisory jurisdiction of the Court was
not constructed to enable it to stage moot courts, but to clarify legal
problems on live issues in the real world. Few issues in the real world can
be so live and cause such universal concern as the question whether or not
the use of nuclear weapons is compatible with basic principles of State
responsibility.
Thirdly, a request for an opinion upon a pure point of law which can clearly
be of great practical importance to the community of nations cannot be
ruled out on the basis of being abstract or hypothetical. The answer to such
a question can be an invaluable source of guidance to the international
community. The purpose of a clarification of the law is to assist
individuals and entities subject to the law in guiding and controlling
their social behaviour. Such a ruling, given in anticipation of an actual
occurrence, would serve a useful societal purpose, as pointed out earlier.
Such a ruling, given subsequent to an actual occurrence or threat, could
savour of the ridiculous, especially in the context of such a question as
the use of nuclear weapons.
In the fourth place, it seems to me that this objection is unrelated to the
basic nature of the Court's advisory function. The advisory function was
specifically tailored to deal with questions of law that have a practical
connotation. For example, questions could be raised in anticipation, so as
to clear doubts which might prevent an organization from deciding on its
proper course of legal action in a foreseen eventuality. To attempt to
restrict the advisory opinion to a specific situation which has actually [p
163] arisen is to confuse the advisory function with the judicial function
in contentious cases. The latter looks back upon a factual situation that
has already occurred. It necessarily operates post factum. The advisory
function, on the other hand, may look back to a past event or it may look
forward to the future, seeking guidance for the resolution of an expected
practical problem. It has the flavour of the work of the Roman jurisconsult
whose opinions, by giving guidance for the future, in relation to
situations which may not already have occurred, formed one of the principal
factors in developing that monumental system of law.
It was after considerable debate that this advisory function was given to
the Permanent Court and its successor; and it was one of the means by which
this first ever international court was taken out of the narrow mould of
contentious jurisdiction which had confined international tri-bunals in the
past. The world community was thereby given the means to seek guidance,
having regard to the many matters on which the world community would need
guidance on the law in order to shape its conduct. The case of nuclear
weapons, on the use or non-use of which all civilization depends, is the
classic instance of such a matter. It is indeed difficult to see a more
appropriate case for the invocation of that advisory jurisdiction.
To conclude the consideration of this ground of objection, reference should
be made to the Conditions of Admission case where this Court observed:
"According to Article 96 of the Charter and Article 65 of the Statute, the
Court may give an advisory opinion on any legal question, abstract or
otherwise." (Conditions of Admission of a State to Membership in the United
Nations (Article 4 of Charter), 1948, I.C.J. Reports 1947-1948, p. 61;
emphasis added.)
(g) The question is too general
Some submissions were made (for example, by Australia) that the question is
too general. The analogy offered by Australia was the question "What are
the rules of customary international law?" Though such a question is
manifestly a legal question, it was submitted that this was the sort of
question that the Court should not answer.
There can be little doubt that a question as broadly framed as the analogy
suggested is far too general for it to be sensibly addressed. The present
question is clearly in a totally different category. It does not traverse a
considerable segment of the totality of international law as does the
comparison offered, but is indeed a limited question, confined to State
responsibility in regard to the use or threat of use of a specific type of
weapon. [p 164]
(h) An opinion rendered in this matter would be damaging to the prestige of
the Court
It is submitted that if the Court should trespass outside its proper
judicial function, such a course would be damaging to the Court's prestige.
This case was contrasted with cases such as the Conditions of Admission case
(supra) where the Court was invited to undertake what was described as an
essentially judicial task, namely, the interpretation of a treaty
provision. On the contrary, the question now before the Court is said to
require the Court to engage in speculation and to encroach upon the
sovereign powers of States. Were the Court to move in this direction, it is
argued that it would compromise the Court's judicial role.
It cannot be damaging to the Court to consider a legal question properly
referred to it. What could be damaging to the Court is a refusal by it to
consider such a question on grounds of political implications and like
considerations, for then the Court would (to quote the P.C.I.J.'s statement
in Status of Eastern Carelia, as approved by this Court in Northern
Cameroons) "depart from the essential rules guiding their activity as a
Court".
(i) The Court would be involved in a law-making exercise if it rendered an
opinion
This objection covers well-trodden jurisprudential ground. "Do judges, in
deciding cases, make law under cover of merely applying pre-existing law?"
It is not proposed to enter into that discussion here, except to observe
that the law has always relied for its development on the ability of the
judiciary to apply the general principle to the specific instance. Out of
the resulting clarification comes further development.
If the law were all-embracing, self-evident and specifically tailored to
cover every situation, the judicial function would be reduced to a merely
mechanical application of rules. By very definition, international law is
not such a system any more than any domestic system is. Its inherent
principles infuse it with vitality, enabling it to apply them to new
situations as they arise and give them a specificity they lacked before.
When the nuclear weapon emerged, a hundred years after modern humanitarian
law had begun to evolve, no specific rule banning nuclear weapons as such
could have been contained within its repertory of specific rules. For
various reasons, which have been dealt with in the relevant literatureFN56,
the emergence of a rule dealing specifically with nuclear weapons has been
delayed for half a century. The Court is now being invited to exer-[p 165]
cise its classic judicial function. It is being asked to pronounce whether
general principles already existing in the body of international law are
comprehensive enough to cover the specific instance. To suggest that this is
to invite the Court to legislate is to lose sight of the essence of the
judicial function.
---------------------------------------------------------------------------------------------------------------------
FN56 See Nagendra Singh, Nuclear Weapons and International Law, 1959, p. 11;
see, also, Richard Falk, Lee Meyrowitz and Jack Sanderson, "Nuclear Weapons
and International Law", Indian Journal of International Law, 1980, Vol. 20,
p. 542.
---------------------------------------------------------------------------------------------------------------------
(j) The case falls outside the categories of cases in which an opinion ought
to be given
The United Kingdom, in its written statement in reply to the General
Assembly's request (p. 11, para. 2.27), submits that the present request
does not fall within any of the categories of cases in which, as a matter of
propriety, an opinion ought to be given. It was also argued (for example by
Australia) that the facts and issues of this case raise matters different
from any previous request for an advisory opinion. It was pointed out that
previous requests have related to such matters as the constitutional powers
of a United Nations organ or specialized agency, the construction of a
constituent instrument, or the discharge of particular functions by the
requesting organ.
The Court's jurisdiction to grant advisory opinions cannot be considered in
terms of categories or precedents. The express language of the Statute
enables the Court to give an advisory opinion on any legal question that is
referred to it, and the categories of cases on which an advisory opinion may
with propriety be sought are never closed. The qualification or limitation
of such a wide enabling power cannot rest on the absence of precedent, but
must rest on considerations based on some fundamental matter of principle.
(k) An opinion would trespass into areas of State policy
One of the submissions of States opposing the Court's consideration of this
question was that the question on which the Court is invited to pronounce
involves, inter alia, the place of the policy of deterrence in the
maintenance of world peace. It was said that such a concept involves direct
or indirect assessments of international strategic balances and of
particular defence policies of individual States. The Court was urged not to
stray into these areas of individual State sovereignty and, more
importantly, into an evaluation of military considerations.
An argument adduced in support of this contention was that the requested
opinion would render it necessary for the Court to deal with the different
types of nuclear weapons those of limited strike capability, for example,
as distinguished from larger weapons, and that the Court would then be
pronouncing upon which types of weapon a State [p 166] would be entitled to
use, whereas such matters fall essentially within the province of each
individual State to determine matters of strategy and defence policy being
undeniably within the purview of each State. It was argued also that if the
Court pronounces on the illegality of one category of weapon, the nuclear,
it would then equally have jurisdiction to pronounce upon other weapons of
a more traditional nature, thus bringing it again within areas of authority
appertaining to the individual State.
Reliance was placed in this context upon the Court's statement, already
cited in another connection, 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" (Military and Paramilitary
Activities in and against Nicaragua (Nicaragua v. United States of America),
I.C.J. Reports 1986, p. 135; CR 95/23, pp. 71 and 79, France).
Such contentions are unsustainable for a variety of reasons:
the Court's dictum in the Nicaragua case, as already observed, does not
deal with the use of weapons, which is the matter on which the Court's
opinion is sought in this case;
it has never been argued that the rules relating to the laws of war or
international humanitarian law, which in fact regulate the conduct of
States, constitute an intrusion upon State sovereignty, or an interference
in a State's military decisions. What is sought from the Court is no more
than an opinion on the legal question whether a particular weapon, by reason
of its nature and known consequences, violates certain well-established
principles of international law;
if, in fact, a particular type of weapon for example, chemical or
bacteriological is contrary to international law, its prohibition may
indeed affect questions of strategy and strategic balance in the sense that
a State without those weapons would be less powerful than a State with those
weapons. One has yet to hear it argued that, for this reason, such
prohibitions trespass upon a State's sovereign rights regarding the level of
strategic balance it wishes to maintain. It can be no different with nuclear
weapons. If international law decrees a particular weapon illegal, that can
constitute no interference with questions of State strategy;
the Court's opinion is sought on the question whether all nuclear weapons,
irrespective of their size or quality, offend basic principles of
international law. For this reason, it is competent to the Court to consider
the question put to it without drawing any distinctions in regard to the
category of nuclear weapons used; [p 167]
the WHO request makes an enquiry regarding State obligations in the
special fields of environment and health. In the present state of
international law, there can be no question that special State obligations
have evolved in these fields. No serious contention has even been set up
thus far that when international law recognizes special State obligations
in those fields, it is trespassing into areas of State policy. International
law has long passed the stage when it was possible to contend that the
manner in which a sovereign treated his subjects or the territory under his
control was a matter within his absolute authority, unlimited by
international norms and standards.
4. The Court's Responsibilities (a) As a judicial institution
As already observed (see Sec. VII.2), advisory opinion jurisdiction vests
the Court with a judicial function which must be discharged in a judicial
fashion. The Court's consistent jurisprudence reaffirming this principle has
already been cited.
This means, inter alia, that the Court confines itself to legal issues,
decides according to judicial criteria, uses judicial procedures, and
exercises its discretion in a judicial manner. By such means is judicial
duty discharged, and it is self-evident that political and diplomatic
considerations are not part of this process.
The criteria and procedures the Court applies are contained in its Statute
and Rules, in the corpus of international law, in its own jurisprudence,
and in the well-accepted universal principles relating to the nature of the
judicial process. The fact that the judicial function is exercised in an
advisory capacity does not result in any deviation regarding the principles
governing the judicial process, not the least of which is that jurisdiction
can be declined only for a good judicial reason. The Court's own
jurisprudence has held that nothing short of "compelling reasons" would
constitute such a good judicial reason.
(b) As a principal organ of the United Nations
Quite apart from the Court's responsibility as a judicial body, there is
also its responsibility within the United Nations family as the principal
judicial organ of the United Nations. It is not a Court existing outside the
United Nations system, but one functioning from within. It is in a state of
harmonious co-existence and co-operation with the other organs of the
Organization in their common goal of the attainment of world peace and the
high ideals set before them all by the United Nations Charter. [p 168]
As the Court observed in Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania:
"the reply of the Court, itself an 'organ of the United Nations',
represents its participation in the activities of the Organization, and, in
principle, should not be refused" (I.C.J. Reports 1950, p. 71).
A factor to be borne in mind additionally is the precedential effect of a
refusal to render an opinion. This is all the more so in regard to such a
question as one relating to the future of global peace, to the well-being of
the international community, and to the central objectives of the United
Nations.
I believe that functions such as this are among the most important with
which the Court can be entrusted and that it would not only be eminently
proper and fitting, but obligatory upon the Court to render the legal
opinion requested. Failure to render so important a decision on grounds such
as those advanced is scarcely compatible with the Court's position as "the
principal judicial organ" of the United Nations.
5. The Refusal for Want of Jurisdiction
I wish to note finally my disagreement with the Court's reasoning, which
couches its refusal to answer WHO's request in terms of lack of
jurisdiction. I do not think this is a case of lack of jurisdiction. The
dismissal is based not upon any incapacity of the Court, for constitutional
reasons, to consider the request, but rather upon the Court's view that WHO,
in requesting this opinion, is traversing outside the proper area of its
legitimate authority. The Court has held that WHO has no status to make this
enquiry. It is for this reason that the application is refused.
The Court's jurisdiction to render an advisory opinion is an ample
jurisdiction, conferred on the Court after mature deliberation, to enable it
to make a vital contribution to the functioning of international society
according to law. The formula of refusal for lack of jurisdiction tends to
suggest some deficiency in the scope of that jurisdiction when in fact there
is none.
The case is no more a case of want of Court jurisdiction than a case in
which a court refuses to entertain an application made by an applicant who,
for one reason or another for example, minority lacks the capacity to
make such an application. Such a request would be refused by the court for
the applicant's want of capacity and not for the court's want of
jurisdiction. It may be a case of lack of jurisdiction in the sense that a
court has no jurisdiction to make any order unless the party seeking it has,
in the first place, the right to approach the court. Yet in such an instance
the want or shortcoming is not in the powers of the court but in the status
of the applicant.
I consider this aspect to be of some importance. It is essential to the [p
169] development of the Court's advisory jurisdiction that there should not
be an impression among those who may seek to use it of some jurisdictional
limitation which prevents the Court from taking cognizance of a matter such
as this.
***
VIII. Conclusion
For the reasons set out above, it seems clear that
1. WHO has an interest in matters of global health, even though they also
concern questions of peace and security.
2. WHO has an interest in environmental matters, even though they also
concern questions of peace and security.
3. The fact that other organs in the United Nations system are expressly
charged with responsibilities in the area of peace and security does not
preclude WHO from concerning itself with matters of peace and security to
the extent that they affect global health and the global environment.
4. There are compelling medical and environmental reasons which require WHO
to take an interest in the matter on which it seeks an opinion.
5. There are several constitutional provisions rendering the requested
opinion relevant to WHO.
6. The impossibility of curative steps forces WHO into the area of
prevention.
7. WHO has a legitimate interest in knowing whether the use of nuclear
weapons constitutes a violation of State obligations in relation to health.
8. WHO has a legitimate interest in knowing whether the use of nuclear
weapons constitutes a violation of State obligations in relation to the
environment.
9. WHO has a legitimate interest in knowing whether State obligations under
its own Constitution are violated by the use of nuclear weapons.
10. There are State obligations under international law in regard to health
which would be violated by the use of nuclear weapons.
11. There are State obligations under international law in regard to the
environment which would be violated by the use of nuclear weapons.
12. There are State obligations under international law in regard to the WHO
Constitution which would be violated by the use of nuclear weapons.
***[p 170]
With much respect, it seems to me to be a compelling conclusion that, in the
light of the medical facts surrounding the use of nuclear weapons, WHO is
well within its constitutional functions in concerning itself with the
question of the legality of nuclear weapons. It transcends no limitations
of power or propriety in seeking this opinion from the Court. It does so in
pursuance of its mandated constitutional functions as well as in pursuance
of its duties as a protector of global health. The futility of medical
treatment after a nuclear catastrophe is a reason that cries out aloud for
attention in the fields of planning and prevention, and it would be an
irresponsible custodian of global health that stands aloof from that
question, waiting for the medical catastrophe to occur in which it is
powerless to extend any meaningful medical assistance.
The matter assumes added importance because the increasingly complex
ramifications of international life in the future will perhaps oblige the
specialized agencies from time to time to seek clarifications from the Court
of the law relating to their areas of interest. International law, in many
of these new areas, will be in need of development, and this Court, by
virtue of its advisory jurisdiction, will be in a special position to assist
in that development.
These needs of the future will require all United Nations instrumentalities
to work in the spirit of their respective constitutions rather than to
confine their vision within compartmentalized categories of exclusive
activity. They should in the like spirit be free to approach the Court for
assistance in the clarification of legal matters they need to know for the
due discharge of their responsibilities within their allotted sphere.
The family of United Nations agencies, in working harmoniously for the
common welfare of the global community, will need to work as a team, each
helping the other with the special expertise that lies within its province.
The Court's advisory jurisdiction is a means par excellence by which the
Court can discharge its responsibilities in this regard.
It is my opinion that the Court should answer the question WHO has addressed
to it and that it should answer WHO's question in the affirmative.
If this dissent sets out my views in some depth and detail, it is because no
less is necessary on an issue of this magnitude. An important feature of the
tradition of judicial responsibility is that the judges "will not hesitate
to speak frankly and plainly on the great issues coming before them".
***[p 171]
This opinion may appropriately be closed with an extract from John Hersey's
classic narrative, HiroshimaFN57. It shows the total inadequacy of medical
facilities in a well-organized country after a single nuclear attack with a
comparatively small weapon:
---------------------------------------------------------------------------------------------------------------------
FN57 John Hersey, Hiroshima, first published in The New Yorker, August 1946,
reissued as a Penguin Modern Classic, 1966, pp. 68-69.
---------------------------------------------------------------------------------------------------------------------
"Patients were dying by the hundreds, but there was nobody to carry away the
corpses ... By three o'clock in the morning, after nineteen straight hours
of his gruesome work, Dr. Sasaki was incapable of dressing another wound. He
and some other survivors of the hospital staff got straw mats and went
outdoors . . . and lay down in hiding to catch some sleep. But within an
hour wounded people had found them; a complaining circle formed around them:
'Doctors! Help us! How can you sleep?'"
In this case the custodians of health have not been asleep, and it is to the
Court that they turn for assistance. They do so on a matter which is within
their legitimate sphere of interest. They do so on a matter peculiarly
within the expertise of the Court. They do so in pursuance of their
constitutional right to seek a legal opinion from this Court. They do so
concerning the legality of the most profound and far-reaching man-made
threat to health in human history. International law joins with the
imperatives of global health in requiring the Court to answer that request.
(Signed) Christopher Gregory Weeramantry.
[p 172]
Dissenting opinion of judge Koroma
The Court, in this Advisory Opinion in which it declines to grant the
request of the WHO for an opinion as to whether
"in view of the health and environmental effects, . . . the use of nuclear
weapons by a State in war or other armed conflict [would] be a breach of its
obligations under international law including the WHO Constitution",
reached the rather unprecedented finding that the request does not relate to
a question "arising within the scope of [the] activities" of the
Organization in accordance with Article 96, paragraph 2, of the Charter,
that an essential prerequisite for the exercise of its jurisdiction in the
case is absent and that it does not, accordingly, have jurisdiction to
render the opinion requested. This finding of lack of jurisdiction to
respond to a request for an advisory opinion is not only unprecedented for
this Court but is also at considerable variance with its jurisprudence
constante.
In the Western Sahara case, the Court emphasized that its function
"is to give an opinion based on law, once it has come to the conclusion
that the questions put to it are relevant and have a practical and
contemporary effect and, consequently, are not devoid of object or purpose"
(Advisory Opinion, I.C.J. Reports 1975, p. 37, para. 73).
In the same Opinion, the Court reaffirmed that only "compelling reasons"
should lead it to refuse to give a requested advisory opinion (ibid., p.
21). The question put by the WHO, in my view, relates to an issue which is
not only of direct relevance to the Organization but has practical and
contemporary effect as well and is not devoid of object or purpose, as will
be shown later, nor is there any "compelling reason" why the opinion should
not have been rendered.
Confronted with what appears to me to be inconsistent jurisprudence, I find
myself not only in disagreement with most of the reasoning of the Opinion of
the Court but disagree totally with its findings. For, as the Court itself
has stated, "whatever the legal reasoning of a court of justice, its
decisions must by definition be just" (North Sea Continental Shelf, I.C.J.
Reports 1969, p. 48). Since the request by itself is of such fundamental
importance to the WHO and its member States and raises serious [p 173]
issues of fact and law, I feel constrained to set out my position on the
matter.
Importance of the Request by the WHO
On the basis of studips carried out by the WHO as well as other materials
before the Court, the Court was told that, should a nuclear weapon be used
in an armed conflict, the number of dead would vary from 1 million to 1,000
million, to which the same number of people injured is to be added. If a
larger number of nuclear weapons were to be used, severe environmental
effects, including the disruption of transport, food delivery, fuel, and
basic medical supplies, would occur and result in possible famine and mass
starvation on a global scale. Civilized and organized community life would
come to an end not only in the countries involved in the conflict but even
in those not involved; millions would die from the effects of intense and
widespread radioactive fallout. Such a catastrophe, it was argued, would be
in violation of the health and environmental obligations undertaken by
States under international law, particularly international humanitarian law,
as well as under the Constitution of the WHO. Whether or not such
obligations exist for States and whether they would be violated in the
course of war or other armed conflict involving the use of nuclear weapons
is, in my view, an eminently suitable matter for the Court to determine in
accordance with its Statute.
Effects of the Use of Nuclear Weapons in an Armed Conflict
According to detailed studies carried out by the WHO on the Effects of
Nuclear War on Health and Health Services and presented to the Court by the
WHO, in a conflict involving the use of a single nuclear weapon, such a
weapon could have a destructive power of a million times that of the largest
conventional weapon.
A detonated nuclear weapon would produce three major sources of death and
injury: the heat wave blast and instantaneous radiation. The enormous
thermal energy produced will be the main cause of casualties. Immediate
charring of the exposed parts of the body in the direct line of the thermal
rays will be caused either by the direct thermal pulse or thermal wave.
Flash burns would occur within fractions of a second and reach their maximum
within a few seconds. Indirect burns would result in many more casualties.
[p 174]
Blast will cause shock waves, causing buildings to collapse, debris to fly
with individuals hurled into the air as immovable objects causing head
injuries, fractures, crush injuries and abdominal and thoracic injuries. A
1-megaton air burst could kill everyone within a radius of 7 km from the
hypocentre.
Radiation resulting from the immediate burst of gamma and neutron radiations
or from the fallout of radioactive particles will produce gastrointestinal
effects, including anorexia, nausea, vomiting, diarrhoea, intestinal cramps
and dehydration. Neuromuscular effects producing fatigue, fever, headache,
hypertension and hypertensive shock would occur. Inhalation of radioactive
dust would produce long-term effects such as fibrosis and cancer, coughing,
shortness of breath and feelings of drowning, leading to death by hypoxia,
pneumonia and sepsis. Ingestion of radionuclides will induce thyroid cancer.
An immediate source of destruction would be the electromagnetic pulse which
would lead to the impairment of electronic devices, including those needed
for health services. Initially, the release of radioactive substances and
human exposure to them would play a secondary role in terms of the health
effects produced.
The report further notes that the destruction and impairment of health
services would greatly impede efforts to treat the victims; among those
killed and injured would be about 80 per cent of physicians, nurses and
other health workers. Hospitals and health facilities would be destroyed or
greatly damaged, while power supplies, which are important for the operation
of hospitals, would be interrupted and would severely interfere with the
treatment and care that could be provided.
In the face of such catastrophe, the WHO has reached the conclusion that to
cure the victims of a nuclear attack would hardly be feasible, hence
preventing the consequences described is a more viable and realistic
alternative.
Intermediate and Long-term Effects of the Use of Nuclear Weapons
The intermediate and long-term effects, the report continues, would range
from after-effects of the injuries sustained from the explosion to long-term
effects of radiation exposure and health problems caused by the disruption
and destruction of health services. Those who survived the acute effects of
a nuclear explosion would still be confronted by protracted non-healing
wounds, suppurating extensive burns, skin infestations, gastrointestinal
infections and psychic trauma.
[p 175]
Suppression of the body's immune system is recognized as a consequence of
radiation over-exposure. Ionizing radiation would reduce the helper
T-lymphocytes and would increase the suppressor T-lymphocytes, thus
increasing the victim's vulnerability to infection and cancers. Other
effects of the explosion, such as burns, trauma and psychic depression would
also influence the immune response.
The drastic fall in available health services on account of the small number
of remaining health personnel, health centres, supplies of functioning
ambulances and the immense logistical difficulties would render care totally
inadequate.
Long-term effects, such as cancer induction and genetic damage would result
from instantaneous radiation during the explosion and long-term radiation
contamination of the environment. The survivors of the nuclear explosion and
the population of contaminated areas would be at risk from such effects. The
risk from instantaneous radiation would vary depending on the dose received,
whole-body irradiation or estimated lifetime risk of mortality, and all
forms of cancer.
Genetic defects among offspring of the survivors is said to be one of the
risks, which would not be limited to the immediate offspring of the exposed,
but would extend over many generations. Exposure to plutonium particles
could produce chromosomal instability which could be transmitted to the
progeny, thus causing cancer in future generations.
Other long-term effects are said to include behavioural and psychological
disturbances; after an initial tendency to profound apathy and
disorientation, feelings of guilt would appear. Survivors would have a
continuing fear of cancer and late effects of radiation and an expectation
of abnormalities in their offspring.
Health-Related Environmental Effects of the Use of Nuclear Weapons
Effects of Actual Use
Furthermore and according to the material, within the extensive destruction
of the built environment, a nuclear explosion would destroy public health
and sanitary facilities, thus opening the way for the spread of disease.
Water supplies would be contaminated not only by radio-activity but also by
pathogenic bacteria and viruses; sewage treatment and waste disposal
facilities would almost completely disappear.
Great numbers of putrefying human bodies and animal carcasses as well as
untreated waste and sewage would provide an easy breeding ground for flies
and other insects. Diseases like salmonellosis (food [p 176] poisoning),
shigellosis (dysentery), infectious hepatitis, amoebic dysentery, malaria,
typhus, streptococcal and staphylococcal infections (pus-producing),
respiratory infections and tuberculosis would occur in epidemic form over
vast areas.
In addition to the acquired health risk for survivors from high-dose
external radiation, the report points out that longer-lived radioisotopes
would lead to a risk for the population over a large area and over long
periods. An impaired immune system would contribute later to an increased
incidence of cancer.
With regard to environmental effects, the report states that if a number of
powerful nuclear weapons were used at the same time, global environmental
disturbance and climatic changes would take place. As regards trees,
evergreens would be especially vulnerable to radiation, coniferous forests
would be liable to suffer most, whereas weeds which are more resistant would
proliferate. Radiation, the report continued, would be harmful to crops and
the food chain; livestock would be harmed and milk and meat products
contaminated. Plant pests which are particularly resistant would abound. The
marine ecosystem would become contaminated and suffer similarly. For all
practical intents, the report points out, there would be a severe shortage
of edible and sustaining substances, at a time when the victims' needs were
greatest.
Thus, in a conflict involving the use of nuclear weapons, climatic and
environmental changes would occur with extensive health implications.
The Socio-Economic Effects of the Use of Nuclear Weapons
While noting the socio-economic impact of the use of nuclear weapons, the
report finds that this would be devastating. After a nuclear war, besides
the extensive breakdown of health facilities, attendant social structures,
the economic system, communication lines and the very fabric of society
would be severely disrupted.
Evacuation of large numbers of people to uncontaminated areas in the same
country or a mass exodus to neighbouring countries would imply not only
exacerbated health problems but also a series of social and economic
difficulties for both the abandoned area and the receiving regions.
Shortages of food, the possibility of inter-communal strife, disarray due to
lack of work, societal disorganization, poverty, dependence and apathy, or
revolts, would all converge to create complicated social and economic
problems that would in all likelihood be of some duration.
[p 177] Environmental degradation would create poverty and shortages of food which,
in turn, would exacerbate social friction, conflict and disorganization of
authority, which might lead to violence and societal disintegration.
Adults, the report observes, tend to fear genetic defects and cancer, as has
been noted among the survivors of Hiroshima and Nagasaki and the affected
population of Chernobyl.
Thus, a society that suffered a major nuclear devastation would be
traumatized and, most likely, profoundly changed.
According to the Mayor of Hiroshima who made a testimony to the Court, the
atomic bomb which was detonated in Hiroshima produced an enormous
destructive power and reduced innocent civilian populations to ashes. Women,
the elderly and the newborn were said to have bathed in deadly radiation.
The dropping of the bomb unleashed a mushroom cloud and human skin was
burned raw while other victims died in desperate agony, he stated. He
further told the Court that when the bomb exploded, enormous pillars of
flame leaped up towards the sky and a majority of the buildings crumbled
with many people dead or injured.
Later in his testimony he described the unique characteristic of the atomic
bombing as one whose enormous destruction was instantaneous and universal.
Old, young, male, female, soldiers, civilians were all killed
indiscriminately. The entire city of Hiroshima, he said, had been exposed to
thermal rays, shock-wave blast and radiation. The bomb purportedly generated
heat that reached several million degrees centigrade. The fireball was
about 280 metres in diameter, the thermal rays emanating from it were
thought to have instantly charred any human being who was outdoors near the
hypocentre. The witness further disclosed that according to documented
cases, clothing had burst into flames at a distance of 2 kilometres from the
hypocentre of the bomb; many fires had been ignited simultaneously
throughout the city; the entire city had been carbonized and reduced to
ashes. Yet another phenomenon was a shock-wave which inflicted even greater
damage when it ricocheted off the ground and buildings. The blast wind which
resulted had, he said, lifted and carried people through the air. All wooden
buildings within a radius of 2 kilometres collapsed; many well beyond that
distance were damaged.
The blast and thermal rays combined to burn to ashes or cause the collapse
of approximately 70 per cent of the 76,327 dwellings in Hiroshima at the
time. The remainder were partially destroyed, half-bombed or damaged. The
entire city was said to have been instantly devastated by the dropping of
the bomb.
On the day the bomb was dropped, the witness further disclosed that there
were approximately 350,000 people in Hiroshima, but it was later estimated
that some 140,000 had died by the end of December 1945. Hos-[p 178]pitals
were said to be in ruins with medical staff dead or injured and with no
medicines or equipment, and an incredible number of victims died, unable to
receive sufficient treatment. Survivors developed fever, diarrhoea,
haemorrhaging, and extreme fatigue, many died abruptly. Such was said to be
the pattern of the acute symptoms of the atomic bomb disease. Other
consequences were widespread destruction of cells, loss of blood-producing
tissue, and organ damage. The immune systems of survivors were weakened and
such symptoms as hair loss were conspicuous. Other experiences recorded were
an increase in leukaemia, cataracts, thyroid cancer, breast cancer, lung
cancer and other cancers. As a result of the bombing, children exposed to
radiation suffered mental and physical retardation. Nothing could be done
for these children medically and even unborn babies, the Mayor stated, had
been affected. The exposure in Hiroshima to high levels of radiation, he
concluded, continues to this day.
The Mayor of Nagasaki, in his testimony, described effects on his city that
were similar to those experienced by Hiroshima as a result of the atomic
bombing which had taken place during the war. According to the witness,
"The explosion of the atomic bomb generated an enormous fireball, 200
metres in radius, almost as though a small sun had appeared in the sky. The
next instant, a ferocious blast and wave of heat assailed the ground with a
thunderous roar. The surface temperature of the fireball was about 7,000° C,
and the heat rays that reached the ground were over 3,000° C. The explosion
instantly killed or injured people within a two-kilometre radius of the
hypocentre, leaving innumerable corpses charred like clumps of charcoal and
scattered in the ruins near the hypocentre. In some cases not even a trace
of the person's remains could be found. The blast wind of over 300 metres
per second slapped down trees and demolished most buildings. Even iron
reinforced concrete structures were so badly damaged that they seemed to
have been smashed by a giant hammer. The fierce flash of heat meanwhile
melted glass and left metal objects contorted like strands of taffy, and the
subsequent fires burned the ruins of the city to ashes. Nagasaki became a
city of death where not even the sounds of insects could be heard. After a
while, countless men, women and children began to gather for a drink of
water at the banks of nearby Urakami River, their hair and clothing scorched
and their burnt skin hanging off in sheets like rags. Begging for help, they
died one after another in the water or in heaps on the banks. Then radiation
began to take its toll, killing people like a scourge of death expanding in
concentric circles from the hypocentre. Four months after the atomic
bombing, 74,000 were dead and 75,000 had suffered injuries, that is,
two-thirds of the city population had fallen [p 179] victim to this calamity
that came upon Nagasaki like a preview of the Apocalypse." (CR 95/27, p.
38.)
The witness went on to state that even people who were lucky enough to
survive continue to this day to suffer from the late effects unique to
nuclear weapons. Nuclear weapons, he concluded, bring in their wake
indiscriminate devastation to civilian populations.
According to the testimony by the delegation of the Marshall Islands which
was the site of 67 nuclear weapons tests from 30 June to 18 August 1958,
during the period of the United Nations Pacific Islands territories
trusteeship, the total yield of those weapons was said to be equivalent to
more than 7,000 bombs the size of which destroyed Hiroshima. These nuclear
weapon tests were said to have caused extensive radiation, induced
illnesses, deaths and birth defects. Further on in the testimony, it was
disclosed that human suffering and damage to the environment occurred at
great distances, both in time and in geography, from the sites of
detonations even when an effort was made to avoid or mitigate harm. The
delegation went on to inform the Court that the unique characteristics of
nuclear weapons are that they cause unnecessary suffering and include not
only widespread, extensive, radioactive contamination with cumulative
adverse effects, but also locally intense radiation with severe, immediate
and long-term adverse effects, far-reaching blast, heat, and light resulting
in acute injuries and chronic ailments. Permanent, as well as temporary,
blindness from intense light and reduced immunity from radiation exposures
were said to be common and unavoidable consequences of the use of nuclear
weapons, but uncommon or totally absent when other destructive devices were
employed.
The delegation further disclosed that birth defects and extraordinarily
prolonged and painful illnesses caused by the radioactive fallout
inevitably and profoundly affected the civilian population long after the
nuclear weapons tests had been carried out. Such suffering had affected
generations born long after the testing of such weapons. The Court was told
that, apart from the immediate damage at and near ground zero (where the
detonation took place), there had been a large-scale contamination of
animals and plants and a poisoning of both soil and water. As a consequence
thereof, some of the islands were still abandoned and on those islands that
had recently been resettled, the presence of caesium in plants from the
radioactive fallout rendered them inedible. Women on some of the other
atolls in the Marshall Islands who had been assured that their [p 180]
atolls were not affected by radiation, were said to have given birth to
"monster babies". A young girl on one of these atolls was said to have no
knees, three toes on each foot and a missing arm; her mother had not been
born by 1954 when the tests started but had been raised on a contaminated
atoll.
In the light of the foregoing, to hold as the Court has done, that these
matters do not lie within the competence or scope of activities of the WHO
borders on the unreal and smacks of cynicism, and the law is not cynical.
The Role of the World Health Organization and International Health Work
The World Health Organization is the United Nations specialized agency
responsible for protecting and safeguarding the health of all peoples at the
international level and its responsibilities include the taking of measures
to prevent health problems on a catastrophic scale, such as those which may
result from the use of nuclear weapons. In this regard, the Organization
deals primarily with preventive and more particularly with administrative
preventive medicine.
Against this background, it is understandable, and in conformity with its
mandate, that the WHO took the view that prevention is the only way from
realizing the catastrophic consequences which the explosion of a nuclear
weapon would bring in its trail.
Furthermore, according to its Constitution, the objective of the WHO is "the
attainment by all peoples of the highest possible level of health", defined
as "a state of complete physical, mental and social well-being and not
merely the absence of disease or infirmity". In pursuance of its
objectives, the WHO is endowed with 22 functions, including the following:
"(a) to act as the directing and co-ordinating authority on international
health work;
(c) to assist Governments, upon request, in strengthening health services;
(d) to furnish appropriate technical assistance and, in emergencies,
necessary aid upon the request or acceptance of Governments;
(k) to propose conventions, agreements and regulations, and make
recommendations with respect to international health matters [p 181]
and to perform such duties as may be assigned thereby to the Organization
and are consistent with its objective;
(m) to foster activities in the field of mental health, especially those
affecting the harmony of human relations ;
(p) to study and report on, in co-operation with other specialized agencies
where necessary, administrative and social techniques affecting public
health and medical care from preventive and curative points of view,
including hospital services and social security;
(q) to provide information, counsel and assistance in the field of health;
(r) to assist in developing an informed public opinion among all peoples on
matters of health;
(v) generally to take all necessary action to attain the objective of the
Organization."
Given the very serious health and medical problems which would ensue as a
result of the use of nuclear weapons, death and injury to civilians and
medical personnel alike, destruction of hospital and medical supplies, it
follows that it would be within the WHO's mandate to take measures to
address and alleviate such a situation. For instance, and in line with its
mandate, the WHO would be required to provide medical assistance and
emergency relief to the victims of such assistance, help in the restoration
of medical services and attempt to organize and co-ordi-nate medical
assistance in terms of the provision of necessary drugs and medical
personnel both at the national and international level.
According to studies carried out, following the First World War, 20 million
people a higher figure than those killed in the course of the war itself
were said to have died as a result of an outbreak of an influenza epidemic
with which the international community was not prepared to deal, and should
such an eventuality occur in the wake of a nuclear war, the WHO would be
expected and required to address a similar outbreak, in accordance with its
Constitution.
Furthermore, according to the material before the Court, the WHO has been
concerned with the effects of nuclear weapons on health for many years. In
1984 and 1987 it presented detailed reports on the effects of nuclear war on
health and health services, recognizing that it had been established that no
health service in the world could assure the conditions in which people
could be healthy or achieve physical, social and mental well-being, or could
alleviate in any significant way a situation resulting from the use of even
one single nuclear weapon, and that primary preven-[p 182]tion is the only
appropriate means to deal with the health and environmental effects of the
use of nuclear weapons.
Faced with the possible magnitude of the health and environmental
consequences resulting from the use of nuclear weapons and realizing that
the health hazards associated with the use of such weapons could only be
obviated by means of prevention, the WHO requested the Court to give an
advisory opinion as to whether, in view of the health and environmental
consequences, the use of nuclear weapons by a State in war or other armed
conflict would be a breach of its obligations under international law,
including the WHO Constitution.
The WHO's request was based on Article 96, paragraph 2, of the Charter of
the United Nations, Article 76 of the Constitution of the World Health
Organization, and Article X of the Agreement between the United Nations and
the World Health Organization. Article 96, paragraph 2, of the Charter
provides that:
"specialized agencies, which may at any time be so authorized by the General
Assembly, may also request advisory opinions of the Court on legal questions
arising within the scope of their activities".
According to Article 76 of the Constitution of the WHO,
"Upon authorization by the General Assembly of the United Nations or upon
authorization in accordance with any agreement between the Organization and
the United Nations, the Organization may request the International Court of
Justice for an advisory opinion on any legal question arising within the
competence of the Organization."
Article X, paragraph 2, of the Agreement of 10 July 1948 between the United
Nations and WHO states as follows:
"The General Assembly authorizes the World Health Organization to request
advisory opinions of the International Court of Justice on legal questions
arising within the scope of its competence other than questions concerning
the mutual relationships of the Organization and the United Nations or other
specialized agencies."
Health and Environmental Obligations of States
The question posed by the WHO presupposes that States had undertaken
certain legal obligations in relation to health and the environment which
would be violated by the use of nuclear weapons in war or other armed
conflict. These obligations are said to be found mainly in interna-[p 183]
tional humanitarian law as reflected in specific conventions and in
customary international law applicable in war or armed conflict.
Foremost among these is said to be the obligation according to which the
right of a State to injure a belligerent is not unlimited and means of
warfare which caused unnecessary suffering are prohibited. This obligation
is said to be reflected in the 1868 Declaration of St. Petersburg, which
represents the beginning of the application of humanitarian principles to
the necessities of war and forbids the use of projectiles weighing less than
400 g that are explosive or charged with inflammable substances. The
obligation also found expression in the Declaration of Brussels of 1874,
according to which the laws of war do not recognize in belligerents an
unlimited power to adopt whatever means to injure the enemy. Based on this
principle, States were, inter alia, prohibited from:
1. The employment of poison or poisoned weapons.
2. The employment of arms, projectiles or material calculated to cause
unnecessary suffering, as well as the use of projectiles prohibited by the
St. Petersburg Declaration.
The principle is also codified in the Hague Convention IV of 1907, Article
22 of which provides that the right of belligerents to adopt means of
injuring the enemy is not unlimited. According to Article 23, paragraph
(a), the employment of poison and poisoned weapons, and the employment of
arms, projectiles or materials calculated to cause unnecessary suffering is
prohibited. Article 25 prohibits "the attack or bombardment, by whatever
means, of towns, villages, dwellings, or buildings which are undefended".
Also said to be relevant in this regard are both the 1925 Geneva Protocol
which reaffirms the prohibition of the use of poison gases and of analogous
materials and bacteriological methods of warfare and the 1993 Convention on
the Prohibition of the Development, Production, Stockpiling and Use of
Chemical Weapons and on Their Destruction. The principle, it is said, was
reaffirmed and codified in Article 35, paragraph 1, of Additional Protocol I
of 1977.
It is argued that the explosive and blast effects of nuclear weapons and
their other instant and long-term effects including genetic consequences
place them in the category of weapons of mass destruction that cause
superfluous and excessive injury and suffering over a long period of time
and space. The use of such weapons, it is submitted, would violate the
aforementioned principle and accordingly the obligations undertaken both
under customary international law and the relevant international conventions
and instruments.
One other obligation undertaken by States which, it was contended, would be
violated by the use of nuclear weapons in an armed conflict relates to the
principle of discrimination between combatants and non-combatants and
between military and non-military objectives which also has its basis in
customary international law. The principle is said to be [p 184] reflected
in Article 27 of the Hague Regulations, and Articles 22 and 24 of the Draft
Hague Rules on Air Warfare of 1923, is largely accepted as customary law,
and is now codified in Articles 51 and 52 of Additional Protocol I to the
1949 Geneva Conventions. These instruments are said to prohibit
indiscriminate attacks. It was argued that, given the known characteristics
of nuclear weapons, the detonation of such a weapon in an armed conflict
would fail to differentiate between combatants and non-combatants and, as
such weapons release radioactivity which is detrimental to human beings and
destructive to the environment, their use would violate the obligation to
discriminate during armed conflict between combatants and non-combatants and
between military and non-military objectives.
Furthermore, under the Geneva Convention of 1949, belligerents are said to
be obliged to perform post-battle obligations, which include the duties of
collecting the wounded and the dead, of individual burial, of evacuation of
prisoners, of the ban on exposing prisoners to unnecessary danger, together
with the rules on the protection of persons and property, wounded and sick
members of the armed forces, hospital ships and medical transporters. It has
been suggested that such duties could not be fulfilled should nuclear
weapons be used in an armed conflict, because of their radioactive and other
effects.
According to Article 147 of the Fourth Geneva Convention of 1949, the
commission of acts against protected persons, serious injury to body or
health, and extensive destruction of property not justified by military
necessity are qualified as grave breaches of the Convention, while,
according to Article 85 of Additional Protocol I "making the civilian
population or individual civilians the object of attack" (para. 3(a)), and
"launching an indiscriminate attack affecting the civilian population or
civilian objects in the knowledge that such attack will cause excessive
loss of life, injury to civilians or damage to civilian objects" (para.
3(b)),
are considered to be "grave breaches" of the Protocol and of the Convention
and would constitute "war crimes".
It was accordingly argued that given the characteristics of nuclear weapons
when used, their radioactive, heat and blast effects, the obligation to
distinguish between protected persons and property from belligerent
military objectives could not be observed. Consequently, the use of such
weapons would result in the violation of obligations undertaken both under
the Geneva Conventions and the Additional Protocol I.[P 185]
Martens Clause
Also said to be violated is the Martens Clause which dates back to the Hague
Conventions of 1899 and 1907, considered applicable to every armed conflict
and most recently codified in Additional Protocol I to the Geneva
Conventions of 1949 relating to the protection of victims of international
armed conflict and which stipulates that:
"In cases not covered by this Protocol or by other international agreements,
civilians and combatants remain under the protection and authority of
principles of international law derived from established custom, from
principles of humanity and from the dictates of public conscience."
It has been submitted that the fact that civilians and combatants alike
would not be spared the cruel effects of a war with nuclear weapons would
constitute a violation of the obligations enshrined in this provision.
Environmental Obligations
The environmental obligations assumed by States, it is also argued, would be
violated by the use of nuclear weapons. Such obligations are said to be
found in various international legal instruments, among which is the 1907
Hague Convention IV Respecting the Laws and Customs of War on Land, Article
55 of which states that:
"The occupying State shall be regarded only as administrator and
usufructuary of public buildings, real estate, forests, and agricultural
estates belonging to the hostile State, and situated in the occupied
country. It must safeguard the capital of these properties, and administer
them in accordance with the rules of usufruct."
This principle is said to be further reflected in the 1949 Geneva
Convention IV relative to the Protection of Civilian Persons in Time of
War, Article 53 of which provides as follows:
"Any destruction by the Occupying Power of real or personal property
belonging individually or collectively to private persons, or to the State,
or to other public authorities, or to social or cooperative organizations,
is prohibited, except where such destruction is rendered absolutely
necessary by military operations."
The 1977 Additional Protocol I to the 1949 Geneva Conventions was also
invoked as having imposed obligations on environmental protection against
military activities. The provisions of the Protocol in this regard [p 186]
were said to represent the development of the relevant principles embodied
in the 1899 and 1907 Hague Conventions. Article 35 of Protocol I Basic
Rules stipulates that
" 1. In any armed conflict, the right of the Parties to the conflict to
choose methods or means of warfare is not unlimited.
3. It is prohibited to employ methods or means of warfare which are
intended, or may be expected, to cause widespread, long-term and severe
damage to the natural environment."
Article 53 declares that
"Without prejudice to the provisions of the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict of 14 May
1954, and of other relevant international instruments, it is prohibited:
(c) to make such objects the object of reprisals."
According to Article 54,
"1. Starvation of civilians as a method of warfare is prohibited.
2. It is prohibited to attack, destroy, remove or render useless objects
indispensable to the survival of the civilian population, such as
foodstuffs, agricultural areas for the production of foodstuffs, crops,
livestock, drinking water installations and supplies and irrigation works,
for the specific purpose of denying them for their sustenance value to the
civilian population or to the adverse Party, whatever the motive, whether
in order to starve out civilians, to cause them to move away, or for any
other motive.
4. These objects shall not be made the object of reprisals."
Article 55 obliges States to observe the following during military conflict
in relation to the natural environment
" 1. Care shall be taken in warfare to protect the natural environment
against widespread, long-term and severe damage. This protection includes a
prohibition of the use of methods or means of warfare which are intended or
may be expected to cause such damage to the natural environment and thereby
to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are
prohibited."
The general prohibition of Article 55 of the Protocol is said to be made
more specific in Article 56, which provides that "dams, dykes and nuclear
electrical generating stations" shall not be made the object of attack [p
187] "even where these objects are military objectives". Article 56,
paragraph 1, forbids attack upon military objectives located at or in the
vicinity of these works or installations
"if such attack may cause the release of dangerous forces and consequent
severe losses among the civilian population. Other military objectives
located at or in the vicinity of these works or installations shall not be
made the object of attack if such attack may cause the release of dangerous
forces from the works or installations and consequent severe losses among
the civilian population."
Also considered relevant is the Rio Declaration on Environment and
Development, which was adopted during the Rio Conference in 1992 and which
stipulates that
"Warfare is inherently destructive of sustainable development. States shall
therefore respect international law providing protection for the environment
in times of armed conflict and co-operate in its further development, as
necessary." (Principle 24.)
It was submitted that States would be in breach of their legal obligations
were nuclear weapons, given their established characteristics, to be used in
war or other armed conflict, as such use would violate the obligations
undertaken by States in relation to the protection of the natural
environment.
The Role of the Court in Exercising Its Advisory Function
The purpose of the Court's advisory jurisdiction is to offer an
authoritative legal opinion and to enlighten the requesting body on certain
legal aspects of an issue which it has to deal with in discharging its
functions, or "to guide the United Nations in respect of its own action"
(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. 24).
The Court's authority to render an advisory opinion resides in Article 65 of
its Statute. This has been reaffirmed in several of its advisory opinions,
inter alia, in the case concerning Certain Expenses of the United Nations
(Article 17, paragraph 2, of the Charter), where it stated that: "The power
of the Court to give an advisory opinion is derived from Article 65 of the
Statute." (I.C.J. Reports 1962, p. 155; see also Western Sahara, I.C.J.
Reports 1975, p. 21.)
Over the years the Court has taken the view that by exercising its advisory
jurisdiction it participates in the activities of the United Nations. In the
Namibia case the Court emphasized that:
"by replying to the request it [the Court] would not only 'remain[p 188]
faithful to the requirements of its judicial character' (I.C.J. Reports
1960, p. 153), but also discharge its functions as 'the principal judicial
organ of the United Nations' (Art. 92 of the Charter)" (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).
In the Interpretation of Peace Treaties case the Court pointed out that its
"Opinion is given not to the States, but to the organ which is entitled to
request it; the reply of the Court, itself an 'organ of the United Nations',
represents its participation in the activities of the Organization, and, in
principle, should not be refused" (Interpretation of Peace Treaties with
Bulgaria, Hungary and Romania, Second Phase, I.C.J. Reports 1950, p. 71).
Accordingly, by rendering advisory opinions, the Court lends its assistance
in the solution of problems confronting the United Nations while, at the
same time, discharging its responsibilities as its principal judicial organ.
In this regard, the Court has regarded the rendering of an opinion as a duty
while pointing out, at the same time, that there are certain limits to its
duty to reply to a request for an opinion. In the case concerning Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
the Court found that it would be entitled to refuse to render an opinion
only for "compelling reasons" following its Opinion in Judgments of the
Administrative Tribunal of the ILO upon Complaints Made against UNESCO
(I.C.J. Report 1956, p. 86), and there are no "compelling reasons" when the
principal question is one of treaty interpretation. A compelling reason,
the Court had held, would be that the request requires the Court to depart
from its judicial functions, such as passing on facts insufficiently
established (Status of Eastern Carelia, 1923, P.C.I.J., Series B, No. 5).
Furthermore and as stated earlier, the Court has also perceived its advisory
function as giving an opinion based on law once it has come to the
conclusion that the questions put to it are relevant and have a practical
and contemporary effect and are consequently not devoid of object and
purpose. Hence, the Court has never declined to render an advisory opinion
on jurisdictional grounds even though it has repeatedly observed that:
"21. It is ... a precondition of the Court's competence that the advisory
opinion be requested by an organ duly authorized to seek it under the
Charter, that it be requested on a legal question, and that . . . that
question should be one arising within the scope of the activities of the
requesting organ" (Application for Review of Judgement No. 273 of the United
Nations Administrative Tribunal, I.C.J. Reports 1982, pp. 333-334). [p 189]
The Role of the Court in the Present Request
In the case under consideration, the Court, after considering the request,
found that the WHO had been duly authorized to request the opinion it seeks;
that the WHO was entitled to ask the question and that the question
constitutes a legal question within the meaning of the Statute and the
United Nations Charter. The Court then went on to state that it
"cannot refuse to admit the legal character of a question which invites it
to discharge an essentially judicial task, namely, an assessment of the
legality of the possible conduct of States with regard to the obligations
imposed upon them by international law" (para. 16).
"To do this", the Court stated, it
"must identify the obligation of States under the rules of law invoked, and
assess whether the behaviour in question conforms to those obligations,
thus giving an answer to the question posed based on law." (Ibid.)
Having found that the WHO was entitled to ask the question posed and that it
is legal, the Court then went on to determine whether the advisory opinion
requested related to a question "arising within the scope of [the]
activities" of the Organization, in accordance with Article 96, paragraph
2, of the Charter. In order to delineate the field of activity or area of
competence of the WHO, the Court referred to the Constitution of the
Organization, concluding that none of the functions attributed to it in
Article 2 of its Constitution expressly referred to the legality of any
activity hazardous to health, and that none of its functions is dependent
upon the legality of the situations upon which it must act.
To reach such a conclusion, the Court "interpreted" the question posed as
relating not to the obligations which might arise in view of the health and
environmental effects of the use of nuclear weapons, but as to the "legality
of the use of such weapons". It is this interpretation which led the Court
to hold that whatever the responsibility of the WHO to deal with such
effects, it is not dependent on the legality of the acts which caused them.
This interpretation also enabled the Court to reach the conclusion that
Article 2 of the WHO Constitution cannot be understood as conferring upon
the Organization a competence to address the legality of the use of nuclear
weapons, and hence the competence to ask the Court about that legality. The
interpretation also enabled the Court to hold that none of the functions of
the agency has a sufficient connection with the question before it for that
question to be capable of being considered as arising "within the scope of
the activities" of the Organization. The Court's Opinion then went on to
state that:
"in particular, the legality or illegality of the use of nuclear weapons [p
190] in no way determines the specific measures, regarding health or
otherwise . . ., which could be necessary in order to seek to prevent or
cure some of their effects" (Advisory Opinion, para. 22; emphasis added).
It continued, "whether nuclear weapons are used legally or illegally, their
effects on health would be the same" (ibid.; emphasis added), and elaborated
further as follows:
"while it is probable that the use of nuclear weapons might seriously
prejudice the WHO's material capability to deliver all the necessary
services in such an eventuality, for example, by making the affected areas
inaccessible, this does not raise an issue falling within the scope of the
Organization's activities within the meaning of Article 96, para-graph 2, of
the Charter" (ibid.; emphasis added).
In the view of the Court, the WHO could only be competent to take those
actions of "primary prevention" which fall within the functions of the
Organization as defined in Article 2 of its Constitution, therefore the
reference to "primary prevention" in the preamble to resolution WHA46.40 and
the link which is there established with the question of the legality of the
use of nuclear weapons are not in themselves capable of casting doubt upon
the conclusions reached by the Court that the question before it does not
lie within the scope of the activities of the WHO.
In considering the principle of "speciality" which the Court recognized as
governing international organizations, the Court went on to state that to
ascribe to the WHO the competence to deal with the legality of the use of
nuclear weapons even in view of their health and environmental effects
would be tantamount to disregarding the principle of speciality, as such
competence could not be deemed a necessary implication of the Constitution
of the Organization in the light of the purposes assigned to it by its
member States; that WHO's responsibilities in the sphere of "public health"
cannot encroach on the responsibilities of the United Nations without giving
rise to overlaps which are detrimental to the viability and effectiveness of
the system. It further pointed out that questions concerning the use of
force, the regulations of armaments and disarmament are within the
competence of the United Nations and lie outside the domain of the
specialized agencies.
It was on the basis of that reasoning that the Court came to the conclusion
that the question posed in the request does not arise "'within the scope of
[the] activities' of that Organization as defined by its Constitution", and
accordingly that an essential condition of its jurisdiction in the present
case is absent and that it does not therefore have jurisdiction to give the
opinion requested. This conclusion was arrived at not only as a result of a
fundamental misconstruction of the question posed by the WHO and of its
Constitution, but also as a result of an unduly formal-[p 191]istic and
narrow view taken of the competence and scope of activities of the
Organization, a view which is unsustainable on the basis of both the
material before the Court and the applicable law.
To focus, first of all, on the Court's finding that it lacks jurisdiction to
render an opinion while the Court has always emphasized that a
precondition for it to exercise its jurisdiction to deal with a request for
advisory opinion is that the request must be by an organ duly authorized to
seek it under the Charter, and that the "question should be one arising
within the scope of the activities of the requesting organ" (Application for
Review of Judgement No. 273 of the United Nations Administrative Tribunal,
I.C.J. Reports 1982, pp. 333-334; see also Application for Review of
Judgement No. 158 of the United Nations Administrative Tribunal, I.C.J.
Reports 1973, pp. 171-172), yet the Court has repeatedly stated that
"only 'compelling reasons' should lead it to refuse to give a requested
advisory opinion (Judgments of the Administrative Tribunal of the ILO upon
Complaints Made against UNESCO, I.C.J. Reports 1956, p. 86)" (Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
I.C.J. Reports 1962, p. 155),
and to date this Court has never declined to answer a request for an
advisory opinion on the grounds of lack of jurisdiction, but has answered
every question put to it even if to do so it had had to interpret or
reformulate the question posed.
For instance, in the case of the Application for Review of Judgement No. 273
of the United Nations Administrative Tribunal referred to above, even though
the Court noted a number of procedural irregularities in the way the request
for an advisory opinion had been formulated and observed that the form in
which the question had been formulated did not correspond to the intentions
of the requesting organ, yet the Court did not decline to give an opinion in
the matter. In its Opinion, the Court stated as follows:
"45. Despite the irregularities described . . ., the Court nevertheless
feels called upon ... to accept the task of assisting the United Nations
Organization. It is in accordance with the Court's jurisprudence that even
though its power to give advisory opinions is discre-tionary under Article
65 of its Statute, only 'compelling reasons' would justify the refusal of
such a request (cf. I.C.J. Reports 1973, p. 183; I.C.J. Reports 1956, p.
86). Of course the irregularities which feature throughout the proceedings
in the present case could well be regarded as constituting 'compelling
reasons' for a refusal by the Court to entertain the request. The stability
and efficiency of the international organizations, of which the United
Nations is the supreme example, are however of such paramount importance to
world order, that the Court should not fail to assist a subsidiary [p 192]
body of the United Nations General Assembly in putting its operation upon a
firm and secure foundation. While it would have been a compelling reason,
making it inappropriate for the Court to entertain a request, that its
judicial role would be endangered or discredited, that is not so in the
present case, and the Court thus does not find that considerations of
judicial restraint should prevent it from rendering the advisory opinion
requested. . . . While there can be no question ... of any restriction on
the Court's discretion, the Court will not refuse 'its participation in the
activities of the Organization' (I.C.J. Reports 1950, p. 71), so that the
important legal principles involved may be disposed of, whilst at the same
time the Court must point out the various irregularities. It is not by
appearing to shy away from the latter that the Court can discharge its true
judicial functions.
46. ... Thus, in the first place, the question put to the Court is, on the
face of it, at once infelicitously expressed and vague ; and, in the second
place, the records and report of the Committee cast doubt on whether the
question as framed really corresponds to the intentions of the Committee in
seising the Court.
47. The Court has therefore to consider whether it should confine itself to
answering the question put; or, having examined the question, decline to
give an opinion in response to the request; or, in accordance with its
established jurisprudence, seek to bring out what it conceives to be the
real meaning of the Committee's request, and thereafter proceed to attempt
to answer rationally and effectively 'the legal questions really in issue'
(I.C.J. Reports 1980, p. 89, para. 35). . . . The dilemma has been
emphasized in the written state-ment of France: while not going so far as to
contend that the Court should not give effect to the request, the French
Government observed that the question put to the Court 'does not indicate on
what grounds the Committee on Applications for Review has decided that
"there is a substantial basis" for the application presented by the United
States of America' and that the Court may therefore 'encounter particular
difficulties in exercising its jurisdiction'.
48. The Court does not however conclude that in the present case it is
obliged to decline on these grounds to give an opinion. The Court pointed
out in its advisory opinion concerning the Interpretation of the Agreement
of 25 March 1951 between the WHO and Egypt that
'if [the Court] is to remain faithful to the requirements of its judicial
character in the exercise of its advisory jurisdiction, it must ascertain
what are the legal questions really in issue in questions formulated in a
request' (I.C.J. Reports 1980, p. 88, para. 35)."[p 193](Application for
Review of Judgement No. 273 of the United Nations Administrative Tribunal,
I.C.J. Reports 1982, pp. 347349; emphasis added.)
While apologizing for this extended quotation, I consider it necessary to
demonstrate how the Court has in the past exercised its advisory function.
Thus in the case under reference, although the Court found the question
posed to be irregular and considered that such irregularities could well be
regarded as constituting "compelling reasons" for refusing to render an
opinion or that the Court could have encountered particular difficulties in
exercising its jurisdiction, it nevertheless took the view that it should
not fail to assist a subsidiary body of the United Nations in putting its
operation upon a secure and firm foundation on account of any reluctance to
deal with the important legal principles involved in the case.
The Court, faithful to the requirements of its judicial character in the
exercise of its advisory jurisdiction, ascertained what were the legal
questions really in issue in the question formulated in the request and
rendered the Opinion. In so doing, it did not consider that it was
discrediting, let alone endangering, its judicial role.
The Court has accordingly always taken a liberal view of its advisory
jurisdiction and, while not abandoning its judicial character, it has not
taken as unduly restrictive and narrow a view of that jurisdiction as the
Court appears to have done in the present case, even though the question put
by the WHO is not only of cardinal importance to the WHO in terms of its
constitutional functions, but is also of significance for the attainment of
one of its objectives, namely, that "the enjoyment of the highest attainable
standard of health is one of the fundamental rights of every human being".
Given the importance of the question formulated by the WHO in its request,
if the Court had taken into consideration the overall mandate of the
Organization and even if it had found the question afflicted it would
have been consonant with its jurisdiction to apply to the WHO request the
same standards as those applied in the case referred to above, so as to
dispose of the important legal principles involved. Additionally, reasons of
consistency in its jurisprudence should have recommended a similar
treatment.
With regard to the principle of "speciality" and how it perceives that
principle in relation to the question, the Court had rightly observed that
that principle governs international relations. In other words,
international organizations are limited to the powers and functions
conferred on them by States. While such powers are normally expressed in the
constituent instruments of the organization, the Court itself acknowledges
that because of the necessities of international life, international
organizations can exercise implied powers, which without conflicting with
their constitution, are a logical incident of it and contribute to ensuring
its [p 194] effectiveness. However, the Court then goes on to infer that to
ascribe to the WHO the competence to address the legality of the use of
nuclear weapons, which as I have already stated distorts the meaning and
intention of the question, would be tantamount to disregarding the
principle of speciality and would be "encroaching" on the responsibilities
of other parts of the United Nations system. As if to reinforce that
interpretation, the Court states that
"questions concerning the use of force, the regulation of armaments and
disarmament are within the competence of the United Nations and lie outside
that of the specialized agencies" (Advisory Opinion, para. 26).
While it is recognized that questions relating to the use of force,
regulation of armaments and disarmament are within the competence of the
United Nations and lie outside that of the specialized agencies, it should
nevertheless be recalled that the WHO is also part of the United Nations
system, and that one of the objectives of the Charter of the United Nations
is not only to maintain international peace and security but to "promote
solutions of international economic, social, health, and related problems".
Moreover, although the WHO is the agency primarily responsible for health
matters at the international level, the need for international co-operation
in that sphere is also mentioned in Articles 13, 55, 57 and 62 of the
Charter as well. Article 13 provides that:
" 1. The General Assembly shall initiate studies and make recommendations
for the purpose of:
(b) promoting international co-operation in the economic, social, cultural,
educational, and health fields . . ." (Emphasis added.)
Article 55 provides that:
"With a view to the creation of conditions of stability and well-being which
are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples,
the United Nations shall promote:
(b) solutions of international economic, social, health, and related
problems." (Emphasis added.)
Article 57 stipulates as follows:
"1. The various specialized agencies, established by intergovernmental
agreement and having wide international responsibilities, as defined in
their basic instruments, in economic, social, cultural, edu-[p
195]cational, health, and related fields, shall be brought into relationship
with the United Nations in accordance with the provisions of Article 63.
2. Such agencies thus brought into relationship with the United Nations are
hereinafter referred to as 'specialized agencies'." (Emphasis added.)
Article 62 provides that:
"1. The Economic and Social Council may make or initiate studies and reports
with respect to international economic, social, cultural, educational,
health, and related matters and may make recommendations with respect to any
such matters to the General Assembly, to the Members of the United Nations,
and to the specialized agencies concerned." (Emphasis added.)
In other words, the General Assembly has jurisdiction over health matters in
general, but the WHO is given a specific assignment in relation to such
matters under its Constitution.
According to that Constitution, "The enjoyment of the highest attainable
standard of health" is not only "one of the fundamental rights of every
human being", so also is that "the health of all peoples is fundamental to
the attainment of peace and security". In a similar way, the primary purpose
of the United Nations is "to maintain international peace and security". It
can thus readily be seen that despite the fact that the Security Council
and, to a lesser degree, the General Assembly are pre-eminent in the role of
maintenance of international peace and security, functional co-operation
with the specialized agencies was envisaged for the achievement of that
common objective. It does not appear to have been the intention of the
Charter that, because of the pre-eminent role of these bodies in the area of
peace and security, they should become a legally exclusive domain to the
extent of even precluding functional cooperation with other bodies who
might be required to carry out their functions especially in an emergency
situation such as one resulting from the consequences of the use of nuclear
weapons. Furthermore, among the functions of the WHO, in accordance with
Article 2 of its Constitution, are
"(a) to act as the directing and co-ordinating authority on international
health work;
(d) to furnish appropriate technical assistance and, in emergencies,
necessary aid upon the request or acceptance of Governments;
(f) to establish and maintain such administrative and technical services as
may be required, including epidemiological and statistical services; [p
196]
(g) to stimulate and advance work to eradicate epidemic, endemic and other
diseases".
In effect, the WHO is competent to deal with every conceivable element in
the field of health, and given its functions as the specialized agency on
international health matters, this is why the health consequences of the
use of nuclear weapons would naturally fall within the scope of activities
of the Organization. In such a situation, the agency would be expected and
required to direct and co-ordinate medical and health assistance at the
international level, to furnish appropriate technical advice, for instance,
on how to mitigate the effects of radiation both immediately and with
respect to the intermediate and long term. Reference has already been made
to the influenza epidemic which broke out after the First World War and to
the fact that, because the international community was caught unprepared, 20
million people more than the war casualties died during that epidemic.
The WHO is the body Governments would turn to for technical advice in case
of such a contingency as a result of the use of nuclear weapons.
The United Nations has taken cognizance of such a contingency in resolution
47/168, in which it expressed deep concern about the suffering of the
victims of disasters and emergency situations (such as could arise as a
result of the use of nuclear explosions), resulting in the loss in human
lives, the flow of refugees, the mass displacement of people and material
destruction, and mindful of the need to strengthen and make more effective
the collective efforts of the international community, established the
Department of Humanitarian Affairs to provide international humanitarian
assistance when disasters or catastrophes occur.
In that resolution, the Assembly also expressed its deep concern about the
magnitude and ruinous effects of disasters and emergency situations which,
inter alia, call for more international co-operation to mitigate the human
suffering of the victims. To expedite the rehabilitation and reconstruction
processes, the Assembly underlined the need for an adequate, co-ordinated
and prompt response by the international community to disasters and
emergency situations. Noting the increasing number and complexity of
disasters and humanitarian emergencies, it established the Inter-Agency
Standing Committee to ensure better preparation for, as well as rapid and
coherent response to, natural disasters and other emergencies, in
particular emergencies involving the supply of food, medicines, shelter and
health care. The WHO is one of the agencies invited to take part in the
Inter-Agency Standing Committee.
The resolution further requested the Secretary-General to report on ways and
means to improve the United Nations capability in the areas of prevention
and preparedness in relation to natural disasters and other [p 197]
emergencies, in particular emergencies involving food, medicines, shelter
and health care, as provided for in General Assembly resolution 46/182.
Also in this connection, the Secretary-General of the United Nations, in his
report on humanitarian assistance and disaster relief, observed that a
notable feature in the humanitarian activities of the United Nations is the
increased involvement of the Security Council, which had accorded
humanitarian assistance high priority and developed modalities to that
effect (A/47/595).
Thus, in the light of the foregoing, while the principle of "speciality"
governing international organizations is to be respected for reasons of
effectiveness and co-ordination and to prevent duplication, it is wrong in
my view to give an unduly restricted and narrow interpretation to that
concept in relation to health matters and humanitarian affairs. As has been
established, the use of nuclear weapons would precipitate an emergency
situation involving tremendous suffering to the victims, loss in human
lives, the outflow of refugees, mass displacement of people and destruction
to the environment. These matters would involve not only the efforts of the
WHO but those of the other functional agencies as well, with a common
purpose of protecting human welfare and saving the lives of human beings.
Not only can such co-operation not be regarded as an encroachment on the
competence of the other organs or agencies of the United Nations system, but
the case before the Court relates to the health and environmental effects of
the use of nuclear weapons, matters which fall within the domain of the WHO
and which would require such cooperation for effective action. However, the
WHO is the only specialized agency that is assigned the study of public
health. If too narrow an interpretation is given to the scope of
activities, then because of its activities, even the Security Council could
be regarded as encroaching in the fields of health and humanitarian affairs.
It cannot, therefore, be sustained that the request violated the principle
of "speciality" which also seemed to have inspired its rejection.
However, the foregoing should not be interpreted as a tacit acknowledgment
of the correctness of the Court's opinion that the WHO's question
transgressed the "speciality" rule or that the request itself constitutes an
encroachment on the competence of other organs of the United Nations, or is
ultra vires even the Organization's implied powers which the Court has
acknowledged to be such as to be exercised by international organizations
for reasons of effectiveness, with the implication that WHO could have done
so by seising the Court with the request, if it were not acting ultra vires.
On the contrary, the discourse was intended to demonstrate that in an
emergency situation, involving the use of nuclear weapons, the functional
agencies of the United Nations would have to undertake a co-operative
endeavour; and if too narrow a construction were to be given to the concept
of "the scope and activities" of the func-[p 198]tional agencies, such as
the WHO, it would unnecessarily restrict and ultimately defeat their
effectiveness.
I agree with the Court that because of the necessities of international
life, it is accepted that international organizations can exercise implied
powers, which are not in conflict with their constitution and are required
to ensure their effectiveness. However, the implication that the WHO could
not have intended to address "the legality of the use of nuclear weapons"
even if it had relied on the exercise of such powers could only have been
arrived at as a result of the interpretation given to the question by the
Court which, as I have said, not only distorts the intention of the question
to say the least, but cannot stand scrutiny when judged against the law or
the facts. In the first place, as implied powers are those which may
reasonably be deduced from the practice and functions of the organization in
question, or, as the Court put it in the case concerning Reparation for
Injuries Suffered in the Service of the United Nations, such powers are
limited to those which, though not expressly provided for in the Statute of
an organ, "are conferred upon it by necessary implication as being
essential to the performance of its duties" (I.C.J. Reports 1949, p. 182),
the question that arises is whether the WHO, by asking the question posed,
could have been regarded as exercising its implied powers, deduced from its
practice and functions or essential to the performance of its duties. The
response to the question would have to be sought in both the Constitution
and the practice of the Organization.
As has already been stressed, the objective of the WHO is "the attainment
by all peoples of the highest possible level of health", and in order to
achieve that objective it is assigned certain functions which have already
been mentioned. Furthermore, the WHO over the years, as has been
demonstrated, has been concerned with the health effects of nuclear weapons.
It has also been noted and demonstrated that the use of nuclear weapons in
armed conflict would result in a catastrophe which would precipitate an
emergency situation in relation to health and the environment. Thus, even if
the Organization, in asking the question, were to claim to be exercising
implied powers, this, in my view, it would be entitled to do in order to
seek legal guidance for the performance of its function or for the
attainment of its objectives of promoting the health of all peoples, and in
order to ascertain whether States by using nuclear weapons with consequent
health and environmental effects would be in breach of their obligations
under international law including the WHO Constitution. In other words, the
WHO is, in my view, entitled to request the Court to determine whether the
effects of a certain activity by a State would be in breach of that State's
obligations under international law including the WHO Constitution. The
Court acknowledged this position when it stated in the Reparation case that
"the rights and duties of an entity such as the Organization must depend
upon its purposes and functions as specified or implied in its constituent
documents and developed in practice" (Repa-ration for Injuries Suffered in
the Service of the United Nations, I.C.J.[p 199] Reports 1949, p. 180).
Earlier, the Permanent Court, in its Advisory Opinion on the Nationality
Decrees Issued in Tunis and Morocco, had observed that the question whether
a certain matter is or is not solely within the jurisdiction of a State is
an entirely relative question and depends upon the "development of
international relations" (P.C.I.J., Series B, No. 4).
In the Namibia case, this Court emphasized that in interpreting an
instrument, the Court must take into consideration the changes which have
occurred over the years as its interpretation cannot remain unaffected by
the subsequent development of the law. The Court further emphasized,
"Moreover, an international instrument has to be interpreted and applied
within the framework of the entire legal system prevailing at the time of
the interpretation" (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. 31).
The reference to the Nationality Decrees case is not intended to suggest
that the WHO is a State let alone a super-State, as the Court put it in the
Reparation case, nor is this the intention with respect to the reference to
the Namibia case either. The point sought to be made is that both Courts
when interpreting relevant documents have taken into consideration
developments which had taken place or had done so within the framework of
the entire legal system prevailing at the time of the interpretation.
In other words, in determining the competence or scope of activities of the
WHO in the context of its Constitution and with reference to the health and
environmental effects of the use of nuclear weapons, account must be taken
of the Organization's role and practice in situations similar to those
involving the use of similar nuclear devices. Evidence of this is the fact
that the WHO has been concerned with the study of the health effects of the
use of nuclear weapons for many years and in 1984 and 1987 presented
detailed reports on the effects of nuclear war on health and health
services. More recently the agency has been involved in the aftermath of the
Chernobyl incident in which a nuclear power plant exploded in 1986 resulting
in many deaths and fears of the threat of radiation. Immediately after that
accident the WHO, in collaboration with the Government of the country
concerned, took many initiatives which led to the establishment of the
International Programme on the Health Effects of the Chernobyl Accident
(IPHECA). At least 9 million people are said to have been directly or
indirectly affected. Morbidity rates are reported to be 30 per cent higher
in one of the affected countries for those who lived in the contaminated
region, and more than 50 per cent higher for those in the immediate area of
the reactor. Thyroid cancer had increased some 285-fold in one of the other
affected countries, with children being mostly the victims, while the
general health conditions of
[p 200] the people in the area immediately affected continue to deteriorate.
Ten years after the accident the WHO has continued to monitor the health
effects and assist those affected to mitigate the health consequences of the
nuclear accident. IPHECA's broad mandate is to support efforts to relieve
the health consequences of the accident by assisting health authorities in
the affected countries, especially in areas significantly contaminated by
radiation.
Even though the Chernobyl accident did not take place in a theatre of war,
the analogy resulting from the use of nuclear weapons is appropriate, as
the health and environmental effects are similar to those of nuclear
weapons, except that in a nuclear war, such effects would be far worse and
the consequences far more serious. Nonetheless, the experience gained by
the WHO from this accident should prove propitious and useful if the worst
should ever happen. There is thus sufficient evidence of practice of what
the role of the WHO would be in a conflict involving nuclear weapons to
justify its legal interest and to make it clear that, in posing the
question, it is legitimately exercising of its implied powers.
Thus far, my effort has been to demonstrate why the reasoning relied upon by
the Court to reach its finding is unpersuasive and cannot be sustained. It
is even more regrettable that the Court, having found that the WHO is
entitled to bring the request and that the question is legal, chose to
preclude itself from answering it for want of jurisdiction, when in fact if
its jurisprudence had been followed and if adequate account had been taken
of the functions and practice of the Organization, the Court would have
found its authority to answer the question beyond a shadow of a doubt.
In considering a request for an advisory opinion, and in order to obviate
what might appear to be an attempt not to engage a controversial or
difficult issue for lack of jurisdiction, the Court has endeavoured to
"ascertain what are the legal questions really in issue in questions
formulated in a request" (Interpretation of the Agreement of 25 March 1951
between the WHO and Egypt, I.C.J. Reports 1980, p. 88); and whenever it has
found it to be necessary, the Court has defined or reinterpreted the
question posed in order to discover and provide an answer, dealing with what
is crucial in the request. Judge Sir Hersch Lauterpacht, in the
Admissibility of Hearings of Petitioners by the Committee on South West
Africa case, stated as follows:
"the Court enjoys considerable latitude in construing the question put to it
or in formulating its answer in such a manner as to make its advisory
function effective and useful. . . . Undoubtedly it is desirable that the
request for an Advisory Opin-[p 201]ion should not, through excess of
brevity, make it necessary for the Court to go outside the question as
formulated. . . . However, the absence of the requisite degree of precision
or elaboration in the wording of the request does not absolve the Court of
the duty to give an effective and accurate answer in conformity with the
true purpose of its advisory function." (I.C.J. Reports 1956, pp. 37-38.)
The question put to the Court by the WHO is whether
"in view of the health and environmental effects . . . the use of nuclear
weapons by a State in war or other armed conflict [would] be a breach of its
obligations under international law including the WHO Constitution".
The Court, as we have seen, not only interpreted the question as if it was
about "the legality of the use by a State of nuclear weapons in armed
conflict" per se an interpretation which proved most unfortunate and
provided the basis for the Court to reach its findings but it also enabled
the Court to take a decision to hear, during the same public sittings, oral
statements relating to the request for an advisory opinion from the General
Assembly of the United Nations as to whether "the threat or use of nuclear
weapons in any circumstance [is] permitted under interna-tional law", a
question which the Court sees as being intended to determine the legality
or otherwise of the threat or use of nuclear weapons.
Apart from the fact that the two questions are posed by an organ and a
specialized agency of the United Nations with primarily different
functions, they are not identical, even though they are similar. Moreover,
in spite of their having been directed to different issues, the Court
nonetheless interpreted those questions in such a way as to have ascribed
almost identical meanings to them. It was this interpretation which
emasculated the meaning of the WHO's question as if it had asked about the
legality of the use of nuclear weapons per se, as in the case of the
question by the General Assembly, and led the Court to conclude that the
request for an advisory opinion by the WHO does not relate to a question
arising within the scope of its activities and that an essential condition
for its jurisdiction is absent. This interpretation given to the WHO's
question, as stated earlier, was not only fundamentally erroneous but proved
fatal for the request.
The WHO's question is not about the illegality of the use of nuclear weapons
per se. The question is not whether Article 2, paragraph 4, of the Charter
prohibiting the use of force in international relations would be violated by
the threat or use of nuclear weapons per se nor is it formulated in
relation to Article 11 of the Charter as relating to questions of [p 202]
maintenance of international peace including the principles governing
disarmament and the regulation of armaments or primarily aimed at
ascertaining whether a State would be in breach of its obligations under
Article 39 of the Charter with respect to threat to the peace, breach of the
peace or act of aggression. It was essentially against this background that
the Court viewed the question and hence the Opinion is replete with
references to the legality or illegality of such weapons. If only to recall
some such references: in delineating the field of activity or area of
competence of the WHO, the Court came to the conclusion that none of the
functions attributed to the WHO in Article 2 of its Constitution expressly
referred to the legality of any activity hazardous to health, and that none
of the functions of WHO is dependent upon the legality of the situations
upon which it must act. In interpreting the question the Court stated that
it relates not to the effects of the use of nuclear weapons on health and
the environment but to the legality of the use of such weapons and came to
the conclusion that the responsibility of the WHO to deal with such effects
does not depend on the legality of the acts which caused them. In paragraph
22, the Court stated that "in particular, the legality or illegality of the
use of nuclear weapons in no way determines. . . specific measures,
regarding health or otherwise" or that "whether nuclear weapons are used
legally or illegally, their effects on health would be the same" (emphasis
added). Further, in the same paragraph, the Court stated that while the use
of nuclear weapons might seriously prejudice WHO's material capability, the
question of the legality or illegality of the use of these weapons would be
irrelevant in that respect. When considering the principle of "speciality"
in paragraph 25, the Court stated that to ascribe to WHO the competence to
deal with the legality of nuclear weapons even in view of the health and
environmental effects would be tantamount to disregarding the principle
of "speciality". It can thus be seen that the Court interpreted the question
as meaning that what was at issue was whether it would be legal or illegal
to use nuclear weapons per se, whereas what really was at issue was whether
the obligations of States in relation to health and the environment would be
engaged or be violated by the use of nuclear weapons. In other words, even
though the origin of the breach of obligation is nuclear weapons, the WHO's
question relates to the health and environmental consequences. The Court
itself acknowledged this as a possible interpretation of the question when
it stated in paragraph 21 of the Opinion that:
"Interpreted in accordance with their ordinary meaning, in their context and
in the light of the object and purpose of the WHO Constitution, as well as
of the practice followed by the Organization, the provisions of its Article
2 may be read as authorizing the Organiza-tion to deal with the effects on
health of the use of nuclear weapons, [p 203]or of any other hazardous
activity, and to take preventive measures aimed at protecting the health of
populations in the event of such weapons being used or such activities
engaged in."
But it chose not to adopt this interpretation and instead chose that which
enabled it not to make a determination for want of jurisdiction.
Since, in my considered opinion, the request by the WHO is not about the
legality or illegality of nuclear weapons per se the interpretation given
to the question by the Court I shall now endeavour to interpret the
question so as to bring out its true intention and thereby establish that it
falls within the scope of the activities and functions of the Organization.
In the first place and as mentioned earlier, the Court, when exercising its
advisory jurisdiction, has interpreted or reformulated requests for advisory
opinions both to establish the object for which the question was posed and
to be able to give a real and effective answer to the question. In so doing,
the Court has had to take various factors into consideration, that is to
say, inter alia, the circumstances in which the request was made, the terms
of the resolution embodying the request, discussions of the request in the
organ in which it was adopted prior to its adoption and the divergences
between the different versions of the request. In reformulating or
reinterpreting a question, the Court would seem to have been concerned to
give such a meaning to the question as would bring out the particular issue
in the light of the circumstances which had presented themselves to it
within the scope of its judicial function. When doing so, the Court has
invariably resorted to a less restrictive interpretation of the question in
trying to determine its true intention or the critical issues in dispute or
has interpreted it to coincide with the desire of the body mak-ing the
request (Free City of Danzig and ILO, P.C.I.J., Series C, No. 18 (II), pp.
145-146, 193).
In other words, and as pointed out earlier, it was open to the Court, given
the importance of the issues raised in the request, to have reformulated
the question in such a way so as to cover the area in which the WHO wanted
an authoritative legal opinion. The Court, however, chose not to follow this
approach, even though the facts produced were neither disputed nor
unascertained.
Although the resolution containing the request is not itself a treaty,
however, like the Court in its majority opinion, its interpretation can be
guided by the relevant provisions of the 1969 Vienna Convention on the Law
of Treaties so as to establish that the question formulated in the
resolution falls within the competence or scope of activities of the
Organization as defined in its Constitution.
Article 31 of the Convention provides as follows:
"1. A treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and
in the light of its object and purpose. [p 204]
2. The context for the purpose of the interpretation of a treaty shall
comprise, in addition to the text, including its preamble and annexes:
3. There shall be taken into account, together with the context:
(b) any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its interpretation".
Article 32 states that
"Recourse may be had to supplementary means of interpretation, including the
preparatory work of the treaty and the circumstances of its conclusion, in
order to confirm the meaning resulting from the application of article 31,
or to determine the meaning when the interpretation according to article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable."
These Articles thus embody the different approaches to treaty
interpretation, that is, the textual and teleological approaches and the
intention of the parties. Article 31 stipulates that in interpreting a
treaty it must be given its ordinary meaning, and the context to be used in
addition to the treaty includes its preamble. Subsequent practice may also
be invoked in the application of the treaty, which clearly establishes the
understanding of all the parties regarding its interpretation or its
meaning.
In its jurisprudence, the Court has made considerable use of the subsequent
practice of the organization in interpreting the Charter of the United
Nations (Conditions of Admission of a State to Membership in the United
Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports
1947-1948, p. 57; Competence of the General Assembly for the Admission of a
State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 4;
Certain Expenses of the United Nations (Article 17, paragraph 2, of the
Charter), Advisory Opinion, I.C.J. Reports 1962, p. 151). Moreover, where
the interpretation of a treaty would seem to lead to a result which is
manifestly absurd or unreasonable in the light of the objects and purposes
of the treaty, the Court has interpreted the Charter as embodying implied
powers so as to give effectiveness to the institution concerned. In the
Certain Expenses case, the Court was asked to give an opinion on the
question whether the expenditures authorized by the General Assembly
resolutions for peace-keeping and separately accounted for were "expenses of
the Organization" within the meaning of Article 17, paragraph 2, of the
United Nations Charter. It was objected that the Court, under Article 62,
paragraph 2, of its Statute could only [p 205] answer a request containing
an exact statement of the question upon which an opinion is required, and
that in this case the question actually before the Court could only be
answered after considering whether the expenditures were undertaken in
accordance with the provisions of the Charter in general, which was a
consideration preliminary to the answer to the question whether they were
consonant with Article 17, paragraph 2. The Court dismissed the objections
on the grounds that the General Assembly had declined to ask the Court to
give an opinion on the conformity of the expenditures with the Charter, and
that the Court could answer the question by interpreting Article 17,
paragraph 2, in the light of the whole Charter and stated that
"when the Organization takes action which warrants the assertion that it was
appropriate for the fulfilment of one of the stated purposes of the United
Nations, the presumption is that such action is not ultra vires the
Organization" (I.C.J. Reports 1962, p. 168).
It is also a rule of interpretation that a treaty is not to be given a
restrictive interpretation if such an interpretation would be contrary to
the text of the treaty itself.
Resolution WHA46.40 drew attention to the effects on health and on the
environment of the use of nuclear weapons, and the long-term consequences
connected therewith. It also noted that it had been established that no
health service in the world could alleviate in any significant way a
situation resulting from the use of even one single nuclear weapon. It
further noted the concern of the world health community about the continued
threat to the health and the environment resulting from the use of nuclear
weapons and the role of the WHO which, as the agency charged with
responsibilities for international public health, would have to take action
of primary prevention of the health hazards resulting from the use of such
weapons. The resolution requested clarity about the status in international
law of the effects of the use of such weapons about which, in the last 48
years, marked differences of opinion have been expressed by member States.
On the basis of the material presented to the Court, and as noted earlier, a
single nuclear weapon exploded either intentionally or accidentally over a
large city like Boston, United States, with a population of 2,844,000, the
United States Arms Control and Disarmament Agency estimated there would
result 695,000 direct fatalities and 735,000 surviving injured. Of the
5,186 physicians, 50 per cent (2,593) would be potentially available to
treat the injured. This would result in some 284 injured persons for each
available physician. Of the 12,816 hospital beds, since they are mostly in
the urban target area, of the 48 acute case hospitals, 38 would be destroyed
or badly damaged, thus 83 per cent of the beds would be destroyed leaving
some 2,135 beds for the care of 735,000 seriously injured survivors.
Clearly the numbers needing medical care would [p 206] overwhelm the medical
facilities and resources of the entire country. In the event of actual
hostilities the attack would not be limited to a single city.
A massive nuclear attack on the United Kingdom would kill or injure half the
population, and 97 per cent of Londoners. Not only hospitals, physicians,
nurses, all other health professionals and technicians would be in short
supply, but antibiotics, parenteral fluids, bandages, surgical equipment and
all the sophisticated medical technology would be similarly lacking. The
problems facing surviving medical workers would be overwhelming. They would
not only lack nearly all essential facilities for the care of the injured,
but would need to find the injured among the debris of collapsed buildings
and houses, transport them through streets clogged with fallen structures,
raging fires, and contaminated with radioactivity, probably with little if
any transportation available and without electricity or fuel, while having
major worries about the fate of their own loved ones and themselves. Thus,
if a larger number of weapons were to be exploded in warfare, the overall
consequences would include not only short- and medium-term medical injuries,
but also severe environmental effects, disruption of transport and delivery
of food, fuel and basic medical supplies, possible famine and mass
starvation on a global scale. It was also disclosed to the Court that more
recent studies have indicated that the casualties are more likely to number
a billion or more, and the very survival of human beings on earth has been
doubted.
According to its Constitution, the WHO's functions include the collection
and dissemination of information relating to epidemic diseases, dealing
with emergency situations resulting from war, the carrying out of relief
work and extensive international health programmes, taking sanitary and
quarantine action to prevent epidemics following a war and aiding the
reconstruction of national health services which may have been affected by
war, and generally taking all necessary action to attain the objective of
the Organization. The functions would seem to bring the health and
environmental consequences of nuclear weapons within the scope and
activities or competence of the Organization.
Furthermore, in terms of its past practice, the Organization has, over the
years, been preoccupied with the health effects of weapons of mass
destruction in general and nuclear weapons in particular. This practice,
which had been accepted by all the States concerned and provides a sup-erior
and reliable evidence to be used in interpreting resolution WHA46.40 in the
light of the Organization's Constitution. Since the 1960s the WHO has been
co-operating with the United Nations on the prohibition of chemical and
biological weapons and has submitted reports on the health [p 207] effects
of those weapons. Beginning with resolution 34.38 and based on that
resolution, the Director-General of the WHO, in 1983, set up an
international commission of experts which submitted a report on the effects
of nuclear weapons on health and health services. The Assembly of the
Organization endorsed the conclusions of the Commission in resolution
WHA36.28 and recommended that the work should continue. This recommendation
formed the basis of the 1987 Report entitled Effects of Nuclear Weapons on
Health and Health Services.
Furthermore, while the debate leading up to the adoption of resolution
WHA46.40 proved controversial, there was no question but that the health
effects of nuclear weapons were matters which fell within the ambit of the
WHO. Even though such debates are not binding on the Court, the Court has in
the past, when interpreting questions in a request and in order to get at
the real issue in dispute, taken account of the debates in the organ in
which the resolution containing the question was adopted. Also on this
aspect of the matter, the Court chose not to follow its practice. As already
mentioned, Article 31 of the Convention on the Law of Treaties presupposes
that, in interpreting a treaty, subsequent practice may be used to establish
the understanding of parties regarding that treaty. Judged against this
background, to have found as the Court has done, that the question does not
fall within the scope of activities or competence of the Organization, would
suggest that no realistic appraisal of the material presented to the Court
or of the practice of the Organization was carried out by the Court with a
view to enabling itself to give an effective reply to the question posed.
It now remains to determine whether in light of the health and
environmental effects, obligations undertaken by States will be violated by
the use of nuclear weapons or, in other words, what principles of law, if
any, would apply to the question. In this regard, it must first be pointed
out that it is a principle of international law that obligations assumed by
States are binding on them and that in their conduct or activities they are
required to comply with such obligations. In accordance with the Charter of
the United Nations, obligations arising from treaties and other sources of
law are to be observed. Article 26 of the Vienna Convention on the Law of
Treaties specifies that every treaty in force is binding upon the parties to
it and must be performed by them in good faith. This requirement is also
stipulated in the Declaration on Principles of International Law concerning
Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations, General Assembly resolution 2625 (XXV) of
1970, to the effect that every State has the duty to fulfil in good faith
the obligations assumed by it:
(a) in accordance with the Charter of the United Nations;
(b) under the generally recognized principles and rules of international
law; and [p 208]
(c) under international agreements valid in accordance with the generally
recognized principles and rules of international law.
The principle that obligations should be fulfilled in good faith requires
States not only to implement obligations which they have undertaken, but
that they should also refrain from acts which could defeat such
obligations.
Such obligations may arise from treaties, customary international law rules
and from general principles of international law. The non-fulfilment or
violation of such obligations entails international responsibility. This
assumes even greater significance in the case of obligations under the law
of armed conflict and more particularly international humanitarian law,
whose main purpose is the protection of human beings during warfare, as well
as the mitigation of their physical and mental sufferings. Accordingly,
belligerent States are under a duty to observe the principle of humanity
during warfare.
The question asked by the WHO, therefore, also involves State
responsibility in other words, the question of whether a State would be
in breach of its legal obligations assumed under international law by the
detonation of a nuclear weapon in war or during armed conflict as a result
of the effects on human health and the natural environment. The obligations
in question may involve the breach of treaty or of a legal duty. The
obligation could also arise as a result of an illegal act or from an event
involving the use of prohibited weapons in an armed conflict. In the Corfu
Channel case, the Court held that Albania was liable for the consequences of
a mine-laying in her territorial water and the absence of a warning of the
danger, rinding that
"These grave omissions involve the international responsibility of Albania.
The Court therefore reaches the conclusion that Albania is responsible
under international law for the explosions which occurred on October 22nd,
1946, in Albanian waters, and for the damage and loss of human life which
resulted from them . . ." (I.C.J. Reports 1949, p. 23 ; emphasis added.)
Accordingly, the judicial task of the Court should have been to identify and
apply the relevant international law including the WHO's Constitution
relating to the question posed, identify the obligations, if any, that are
prescribed in those rules and on the basis of the materials presented, and
determine whether in view of the health and environmental effects those
obligations would be breached by the use of nuclear weapons in war or any
other armed conflict. Such had been the practice of both this Court and its
predecessor in exercising their advisory jurisdiction. Both Courts have
"regularly made simple findings of facts, established on the basis of
documentation submitted to the Court" (Rosenne, Law and [p 209] Practice of
the International Court, 2nd rev. ed., p. 701), or on the basis of testimony
given. In the Eastern Carelia case (P. C.I.J., Series B, No. 5, p. 28), with
regard to the enquiry as to the facts, the Court stated that if the facts
upon which the opinion of the Court is desired are non-controversial and
the Court does not have to ascertain what they are, it would be prepared to
take such facts into consideration. This position was confirmed in the
Namibia Opinion where the Court declared as follows:
"In the view of the Court, the contingency that there may be factual issues
underlying the question posed does not alter its character as a 'legal
question' as envisaged in Article 96 of the Charter. The reference in this
provision to legal questions cannot be interpreted as opposing legal to
factual issues. Normally, to enable a court to pronounce on legal
questions, it must also be acquainted with, take into account and, if
necessary, make findings as to the relevant factual issues. The limitation
of the powers of the Court contended for by . . . South Africa has no basis
in the Charter or the Statute." (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; emphasis added.)
In accordance with Article 38 of its Statute, the Court is enjoined in
deciding a dispute to apply international conventions, whether general or
particular, establishing rules expressly recognized by States; international
custom, as evidence of general practice accepted as law; the generally
recognized principles and rules of international law; judicial decisions;
and the teachings of the most highly qualified jurists.
But, before attempting to identify the applicable law, since that law would
have to be applied to the effects of nuclear weapons, it would be
appropriate to recall the definition of a nuclear weapon so as to provide
the appropriate background against which that law is to be applied. The
Paris Accords of 1954 defines atomic weapons as those which through nuclear
explosion or analogous processes are "capable of causing massive
destruction, generalized damage or massive poisoning". According to the 1967
Treaty of Tlatelolco on the Prohibition of Nuclear Weapons in Latin America,
a nuclear weapon is defined as "any device which is capable of releasing
nuclear energy in an uncontrolled manner and which has a group of
characteristics that are appropriate for use for warlike purposes". Thus,
nuclear weapons, like biological and chemical weapons, are regarded as
weapons of mass destruction. However, the characteristics of nuclear weapons
are unique. They release not only immense quantities of heat and energy but
also powerful and prolonged radiation. Such radiation would affect human
health, agriculture and demography over a vast area. Nuclear weapons when
used also have serious effects on future gen-[p 210] erations, causing
genetic and other similar defects. As the preamble to the Treaty of
Tlatelolco proclaims,
"nuclear weapons, whose terrible effects are suffered, indiscriminately and
inexorably, by military forces and civilian populations alike, constitute,
through the persistence of the radioactivity they release, an attack on the
integrity of the human species and ultimately may even render the whole
earth uninhabitable".
It is against this background that an identification and application of the
rules and principles of law which appear to be most pertinent, will now be
undertaken. Of immediate and direct relevance is the international law of
armed conflict, in particular international humanitarian law. Central to
that law is the principle of humanity which imposes an obligation to
mitigate the sufferings of war or to exercise constraints on the necessities
of war. The preambles to the Hague Convention II of 1899 and IV of 1907
recognize the principles of humanity as an important source of the laws of
war in situations where no specific international convention exists
prohibiting a particular type of weapon or tactic.
The International Committee of the Red Cross, in its "Fundamental Rules of
International Humanitarian Law Applicable in Armed Conflicts" published in
1978, stated, in its preamble, that:
"International humanitarian law is made up of all the international legal
provisions, whether of written or customary law, ensuring respect for the
individual in armed conflict. Taking its inspiration from the sentiment of
humanity, it postulates the principle that belligerents must not inflict
harm on their adversaries out of proportion with the object of warfare,
which is to destroy or weaken the military strength of the enemy."
International humanitarian law comprises the "Law of Geneva", which aims to
safeguard military personnel hors de combat and persons who do not take part
in the hostilities, and the "Law of The Hague", which determines the rights
and duties of belligerents in the conduct of operations and limits the
choice of the means of harming an enemy.
The four Geneva Conventions have come to be regarded as internationally
binding upon all States, as virtually all States are parties to them. These
are:
Geneva Convention I for the Amelioration of the Condition of the Wounded
and Sick in Armed Forces in the Field (GC I);
Geneva Convention II for the Amelioration of the Condition of Wounded,
Sick and Shipwrecked Members of Armed Forces at Sea (GC II);
Geneva Convention III relative to the Treatment of Prisoners of War (GC
III); and [p 211]
Geneva Convention IV relative to the Protection of Civilian Persons in
Time of War (GC IV).
These Conventions have achieved almost universal acceptance and as of today
are binding on 186 parties to each of the Conventions. They will therefore
apply as treaties in almost any international armed conflict. Furthermore,
most, if not all, of the provisions of the Conventions are now regarded as
declaratory of customary international law.
Additional Protocols I and II of 1977 to the Geneva Conventions constitute
a reaffirmation and development of the rules embodied in the Law of Geneva
of 1949 and part of the Law of The Hague of 1907. As of date 143 States have
become parties to Additional Protocol I and 134 to Additional Protocol II.
The Protocols are accordingly binding upon a substantial majority of States
of the international community. In addition, many of their provisions are
declaratory of customary international law and are thus applicable in all
international armed conflicts.
As regards the 1907 Hague Conventions, these are regarded as binding not
only upon the contracting parties, but have largely become recognized as
customary international law as well. Pertinent to the question before the
Court are
Hague Convention IV Respecting the Laws and Customs of War on Land, and
Annex to the Convention: "Regulations Respecting the Laws and Customs of War
on Land".
Hague Convention V Respecting the Rights and Duties of Neutral Powers and
Persons in Case of War on Land.
Hague Convention IV and the annexed Regulation directly apply to occupied
territory and the treatment of property in such territory. Equally
applicable are the provisions on methods and means of warfare which have now
been codified in Additional Protocol I of 1977.
The International Military Tribunal at Nuremberg held that the provisions
of the 1907 Regulations had become a part of customary international law
and that accordingly they are binding on all States.
Accordingly, the obligations enshrined in these international legal
instruments apply in virtually all armed conflicts including those
involving the use of nuclear weapons. Prominent among such obligations are
the following:
The right to choose methods and means of warfare is not unlimited, nor is
the right to injure a belligerent. It is prohibited to use weapons which, by
their nature, affect indiscriminately both military objectives and
non-military objectives, or combatants and civilian population. Weapons
whose destructive effects are so great that they cannot be limited to
specific military objectives or are otherwise uncontrollable are
particularly prohibited. This obligation is set forth in the Declaration of
[p 212] St. Petersburg of 1868 and was the first to introduce limitations on
means of waging war. The preamble to the Declaration specifically prohibits,
and considers as contrary to the laws of humanity, the use of weapons that
cause unnecessary and excessive suffering. Its preamble reads as follows:
"Considering
That the progress of civilization should have the effect of alleviating as
much as possible the calamities of war;
That the only legitimate object which States should endeavour to accomplish
during war is to weaken the military forces of the enemy;
That for this purpose it is sufficient to disable the greatest possible
number of men;
That this object would be exceeded by the employment of arms which uselessly
aggravate the sufferings of disabled men, or render their death inevitable;
That the employment of such arms would therefore be contrary to the laws of
humanity."
The Declaration places a specific ban on the use of "any projectile of a
weight below 400 g, which is either explosive or charged with fulminating or
inflammable substances". According to this principle, while international
law recognizes that the object of warfare is to disable the belligerent
enemy, it prohibits the use of weapons which cause gratuitous and
unnecessary suffering. The principle was embodied in the following articles
of Convention II of the First Hague Conference of 1899 which provide:
"Article 22. The right of belligerents to adopt means of injuring the enemy
is not unlimited.
Article 23. Besides the prohibitions provided by special Conventions, it is
especially prohibited:
(a) To employ poison or poisoned arms;
(e) To employ arms, projectiles or material of a nature calculated to cause
superfluous injury;
Article 25. The attack or bombardment of towns, villages, habitations or
buildings which are not defended is prohibited."
That principle was subsequently articulated in the Hague Convention of 1907
in Articles 22, 23 and 25 and reaffirmed the rules of international law
which had been enunciated in 1899. Its further development is to be found in
the Geneva Gas Protocol of 1925, which prohibits not just [p 213] poisonous
and other gases but also "analogous liquids, materials or devices" and
extends the prohibition to bacteriological warfare as well.
The principle was codified in the Additional Protocols of 1977 to the Geneva
Conventions of 1949. Article 35 Basic Rules provides that in any armed
conflict:
"1. . . ., the right of the Parties to the conflict to choose methods or
means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods
of warfare of a nature to cause superfluous injury or unnecessary suffering.
3. It is prohibited to employ methods or means of warfare which are
intended, or may be expected, to cause widespread, long-term and severe
damage to the natural environment."
Furthermore, in warfare or during an armed conflict, States are under an
obligation to observe the principle of discrimination between civilians and
combatants and between military and non-military objects. The principle is
recognized as one of the most fundamental principles of interna-tional
humanitarian law. Civilians and non-military objects are not to be made the
object of attack. Even where indirect injury may occur to civilians or
civilian objectives by dint of military necessity, such losses if manifestly
excessive, would violate the rule. The rule is embodied in Article 27 of the
Hague Convention of 1907 and the annexed regulations concerning the laws and
customs of war on land; Articles 22 and 24 of the Draft Hague Rules on Air
Warfare of 1923 prohibit States from bombarding civilian targets and are
accepted as customary international law. It is also codified in Articles 35,
36, 48, 51, 52, 54 and 55 of the First Additional Protocol of 1977. Article
35, as we have seen, limits the right of the Parties to a conflict to choose
methods or means of warfare and prohibits the use of weapons which cause
superfluous and unnecessary injury.
Article 48 of the Protocol provides that:
"In order to ensure respect for and protection of the civilian population
and the civilian objects, the Parties to the conflict shall at all times
distinguish between the civilian population and combatants and between
civilian objects and military objectives and accordingly shall direct their
operations only against military objectives."
This is regarded as a reaffirmation of the principle of distinction that
methods or means of warfare must make a distinction between combatants and
non-combatants.
Article 51, paragraph 5, of the Protocol prohibits
"an attack which may be expected to cause incidental loss of civilian life,
injury to civilians, damage to civilian objects, or a combination [p
214]thereof, which would be excessive in relation to the concrete and direct
military advantage anticipated".
Article 51, paragraph 6, places a prohibition on reprisals against the
civilian population or civilians. The provision is considered not to be
subject to any conditions and has been considered to be of a peremptory
character that does not allow for any derogation from the rule on the
grounds of military necessity. Support for this position is to be found in
Article 52, paragraph 1, which states that "civilian objects shall not be
the object of attack or of reprisals".
Article 53 declares that
"Without prejudice to the provisions of the Hague Convention for the
Protection of Cultural Property in the Event of Armed Conflict of 14 May
1954, and of other relevant international instruments, it is prohibited :
(c) to make such objects the objects of reprisals."
Article 54 prohibits reprisals against objects indispensable to the
survival of the civilian population, while Article 55, paragraph 2,
prohibits attacks against the natural environment by way of reprisals.
Article 56, paragraph 4, prohibits the works, installations or military
objectives mentioned in paragraph 1 from being made the object of reprisals.
Additional obligations are laid down by the Geneva Convention of 1949
according to which States assume responsibility for certain duties such as
the collection of the wounded or dead, individual burial and the evacuation
of prisoners and undertake not to expose prisoners to un-necessary danger.
The duty regarding protected persons including the wounded and sick members
of the armed forces, hospital ships, medical transport, would be difficult,
if not impossible, to observe should nuclear weapons be used, inter alia,
because of their radioactive effects and contamination.
In like manner, the radioactive fallout would violate territorial
sovereignty and cause injury to the citizens of neutral territories in
violation of Article 1 of the 1907 Hague Convention Respecting the Rights
and Duties of Neutral Powers and Persons in Case of War on Land. Evidently
the use of nuclear weapons would fail to observe or respect the principle of
discrimination between civilians and combatants in the neutral territory as
well, and could cause devastation involving innocent civilian neutrals as
well as civilians of both belligerent parties.
Evidently, the use of such weapons would violate the obligations assumed by
States under the Martens Clause according to which, even in the absence of
an international convention, [p 215]
"civilians and combatants remain under the protection and authority of
principles of international law derived from established custom, from
principles of humanity and from the dictates of public conscience".
Thus, according to this formula, which is reflected in the Geneva
Conventions of 1949 and in the Additional Protocols of 1977, warfare does
not allow belligerents to cause unnecessary and excessive injury and
suffering to one another, to fail to observe the rule of discrimination
between civilians and non-civilians or to exercise an unlimited choice of
means of injuring the enemy.
Environmental Obligations
As far as the environmental obligations assumed by States are concerned,
these are to be found both in customary international law and in the
provisions of treaties as well. Taken together, they impose legal restraints
against environmental warfare per se or the means of waging it. Article 25
of the Hague Convention IV of 1907 prohibits, as we have seen, "attack or
bombardment by whatever means of towns, villages, dwellings or buildings
which are undefended" (emphasis added). Belligerent parties are prohibited,
directly or indirectly, from inflicting unnecessary damage on the
environment.
The Geneva Protocol of 1925 is also relevant in this connection as it
prohibits the use in war of chemical or biological agents, and the
Bacteriological and Toxin Weapons Convention of 1972 prohibits the
possession of biological agents.
Articles 53 and 147 of the 1949 Fourth Geneva Convention also provide a
degree of indirect protection for the environment, in the context of
protecting property rights in occupied territories. Thus, an occupying Power
which destroys, for example, industrial installations in an occupied
territory, causing consequent damage to the environment, would be in breach
of its obligations under the Convention, provided that such destruction was
not justified by military necessity. If such destruction is extensive, it
would constitute a grave breach of the Convention, or even a war crime, in
accordance with Article 147.
Article 35 of Additional Protocol I of 1977 also prohibits the employment
of methods or means of warfare which are intended or may be expected to
cause widespread, long-term and severe damage to the natural environment;
Article 55, as we have seen, imposes an obligation upon States Parties to
take care in warfare to protect the natural environment against such damage;
Article 54 protects objects indispensable to the survival of the civilian
population; while Article 56 protects certain installations containing
dangerous forces, namely dams, dykes and nuclear electrical generating
stations which are not to be made the object of [p 216] attack, even where
those objects are military objectives, if such attack might cause the
release of dangerous forces and consequent severe losses among the civilian
population. Other military objectives located at or in the vicinity of these
works or installations are not to be made the object of attack if such
attack may cause the release of dangerous forces from the works or
installations and consequent severe losses among the civilian population.
Also considered applicable to the question under consideration is the 1977
Convention on the Modification of the Environment. The Convention prohibits
the hostile use of environmental modification techniques having "widespread,
long-lasting or severe effects 'as the means of dam-age'". An environmental
modification technique is defined as any technique for changing through
the "deliberate manipulation" of natural processes the dynamics,
composition or structure of space or of the earth, including its atmosphere,
lithosphθre, hydrosphere and biota.
Also relevant, in this connection, is the principle of environmental
security intended to secure the environment and given expression in
Principle 24 of the Rio Declaration on Environment and Development to the
effect that
"Warfare is inherently destructive of sustainable development. States shall
therefore respect international law providing protection for the environment
in times of armed conflict and co-operate in its future development, as
necessary."
It is thus in terms of these obligations that the health and environmental
effects produced by the use of nuclear weapons are to be judged. According
to the available material, nuclear weapons when used did, in an instant,
take a tremendous toll of human lives. Estimates of the number of people who
had died by the end of 1945 following the atomic bombing of Hiroshima and
Nagasaki amounted to approximately 140,000 in Hiroshima and 74,000 in
Nagasaki. Of the people who were exposed to thermal radiation, 90 to 100 per
cent died within a week. In addition to direct injury from the bomb blasts,
death was said to have been caused by several interrelated factors such as
being crushed under buildings, injuries caused by splinters of glass,
radiation damage, food shortages or shortages of doctors and medical
personnel. Over 320,000 people who survived but were affected by radiation
still suffer from various malignant tumours caused by radiation, including
leukaemia, thyroid cancer, breast cancer, lung cancer, gastric cancer,
cataracts and a variety of other after-effects. [p 217]
From another source that had experienced the effects of the use of nuclear
weapons, the Court learned that the explosion that took place on the island
had caused what looked like a snowfall for the first time in its people's
history. Such "snow", it was later discovered, was in fact radio-active
fallout from the nuclear explosion. As a result of the contamination to
which their bodies were exposed, the islanders experienced blisters and
other sores over the weeks that followed. Their serious internal and
external exposure to radioactivity caused them long-term health prob-lems
that have affected four generations of the island's inhabitants. Such
effects are said to be indistinguishable from poison, a "substance which
when introduced into the body can kill or cause injury to health". Uranium,
a central component of nuclear weapons, is regarded as one of the most toxic
substances. Accordingly, when used, nuclear weapons would expose human
beings to effects indistinguishable from those of poison. Such use would be
in breach of the obligations prohibiting the use of poison or poisonous
weapons. The effects could also be both long-term, intergenerational and
affect a wide area as well.
Yet, the detonations which took place in Hiroshima and Nagasaki, as well as
the nuclear explosions in the Marshall Islands, have been considered
relatively minor when compared to the destructive power of today's nuclear
weapons. As we have seen, a massive nuclear attack on modern cities like
Boston or London would result in the death of millions of people. The use of
such weapons would produce delayed radioactive fallout across potentially
great distances and over extended periods of time. The radiation effects, it
is said, are not unlike effects produced by chemical and biological
weapons. As opposed to conventional weapons, nuclear weapons, even those
with fairly low yields, are capable of causing harm to non-combatants
including civilians and neutral parties alike.
On the basis of the material before the Court, and in view of their health
and environmental consequences, it is undeniable that nuclear weapons when
used would be in breach of the obligations assumed by States under
international law.
These obligations include:
(i) a limitation on the choice of methods and means of warfare;
(ii) the prohibition from using poison or poisonous weapons intended to
cause unnecessary suffering;
(iii) the prohibition from causing unnecessary and superfluous suffering;
(iv) the requirement that belligerent parties respect the distinction
between military objectives and non-military objects, as well as between
persons participating in the hostilities and members of the civilian
population;
(v) the prohibition of armed attacks against the civilian population; [p
218]
(vi) the prohibition of wanton destruction of cities, towns or villages, or
devastation not justified by military necessity;
(vii) the requirement not to attack, or bombard, by whatever means
undefended towns, villages, dwellings or buildings;
(viii) the requirement not to employ methods or means of warfare which are
intended or may be expected to cause widespread, long-term and severe damage
to the natural environment.
It is also clear that, because of their health and environmental effects,
the use of nuclear weapons would be in breach of the provisions of the WHO
Constitution, whose objective is the attainment by all peoples of the
highest possible level of health. Health, it will be recalled, is defined as
a state of complete physical, mental and social well-being, and the WHO is
enjoined to promote and protect the health of all peoples, by, among other
activities, directing and co-ordinating international health, assisting
Governments upon request to strengthen health services, promoting material
and child health and welfare and fostering the ability to live harmoniously
in a changing environment.
Given the health and environmental effects of nuclear weapons, a State that
is a party to the Constitution of the WHO and which uses nuclear weapons
will be in breach of both the letter and spirit of that Constitution which,
inter alia, calls for the co-operation of individuals and States for the
attainment of health and peace by all peoples as well as the objective of
the Organization itself.
The Court, in its Opinion, has stated that having found that it lacked
jurisdiction in the present case, it could not examine the arguments which
were expounded before it with regard to the propriety of giving such an
Opinion. This position notwithstanding, it is my view that if the Court had
allowed itself to consider the abundance of material at its disposal, it
could have reached a different conclusion other than the one arrived at.
The Court was not persuaded by the argument advanced, that as resolution
WHA46.40 was adopted by the requisite majority, it was proper and therefore
must be presumed to have been validly adopted to serve as a basis of the
Court's jurisdiction. Having taken this view the Court, after acknowledging
that the World Health Assembly is entitled to decide on its competence and
consequently that of the WHO to submit a request to the Court for an
advisory opinion on the question under consideration, stated however that in
exercising its functions under Article 65, paragraph 1, of its Statute, it
had arrived at "different conclusions from those reached by the World Health
Assembly when it adopted resolution WHA46.40". Regrettably, the Court did
not explain nor offer reasons why it had arrived at a different conclusion
from the one reached by the World Health Assembly. Here again, one cannot
fail to discern a departure by the Court from its long-established
jurisprudence in this regard. [p 219]
On the question whether an international organization is entitled to
determine its own competence or jurisdiction, the Court had this to say in
its Advisory Opinion in the Certain Expenses case:
"In the legal systems of States, there is often some procedure for
determining the validity of even a legislative or governmental act, but no
analogous procedure is to be found in the structure of the United Nations.
Proposals made during the drafting of the Charter to place the ultimate
authority to interpret the Charter in the International Court of Justice
were not accepted; the opinion which the Court is in course of rendering is
an advisory opinion. As anticipated in 1945, therefore, each organ must, in
the first place at least, determine its own jurisdiction." (Certain
Expenses of the United Nations (Article 17, paragraph 2, of the Charter),
I.C.J. Reports 1962, p. 168; second emphasis added.)
In that same Opinion, the Court stated that
"when the Organization takes action which warrants the assertion that it was
appropriate for the fulfilment of one of the stated purposes of the United
Nations, the presumption is that such action is not ultra vires the
Organization" (ibid.).
What this shows, in my view, is that prior to the present case and in
accordance with its jurisprudence, the Court has held that international
organizations are competent to determine their competence or jurisdiction.
On this occasion, the Court decided to depart from this its jurisprudence,
but with hardly any explanation or reason but not only did the Court
choose not to follow its jurisprudence on this occasion in the past, while
not denying itself the right to examine the competence of the body making
the request, it rejected certain objections to its jurisdiction based on the
claims that such bodies were not competent to make the request
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, I.C.J. Reports 1950, pp. 72 et seq., and Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J.
Reports 1951, pp. 19-20).
The Court also rejected the argument that the United Nations General
Assembly, as the source from which the WHO derives its power to request
advisory opinions, had in its resolution 49/75 K confirmed the competence of
the agency to request an opinion on the question submitted. The General
Assembly, in resolution 49/75 K
"[welcomed] resolution 46/40 of 14 May 1993 of the Assembly of the World
Health Organization, in which the organization requested the International
Court of Justice to give an advisory opinion on whether the use of nuclear
weapons by a State in war or other armed conflict [p 220]would be a breach
of its obligations under international law, includ-ing the Constitution of
the World Health Organization".
The Court interpreted such approval as political and did not consider that
the Assembly had intended to operate in the legal sphere and make any kind
of ruling whatsoever regarding the competence of the WHO to request an
opinion on the question raised; it also found that the Assembly could not
have intended to disregard the limits within which Article 96, paragraph 2,
of the Charter allows it to authorize the specialized agency to request
opinions from the Court.
While it is admitted that the Assembly could not have intended to disregard
the limits of Article 96, paragraph 2, of the Charter, the conclusion
reached by the Court that the Assembly, by that resolution, had not intended
to operate and make any ruling whatsoever regarding the com-petence of the
WHO to request the opinion sought turned on the particular construction
which the Court had given to the question posed. But even then, the issue
does not seem so clear-cut and dry as the Court would have it. According to
Article 96, paragraph 2, of the Charter, the WHO is empowered to request
opinions "on legal questions arising within the scope of its activities".
This power is also provided for in Article 76 of the WHO Constitution which
reads as follows:
"Upon authorization by the General Assembly of the United Nations or upon
authorization in accordance with any agreement between the Organization and
the United Nations, the Organization may request the International Court of
Justice for an advisory opinion on any legal question arising within the
competence of the Organization."
Admittedly, the WHO can only ask a question which is not outside its ambit
or competence, and the General Assembly can also restrict the power of the
agency by limiting its competence or the scope of its activities. In other
words, since it is the Assembly that originally granted the authorization to
request an opinion for matters within the Organization's competence, the
Assembly would, in my view, have been in a position if it had considered
that the agency, by adopting resolution WHA46.40, had acted ultra vires to
bring this to the attention of the agency or to exercise its discretionary
powers and bring the irregularity to an end. Evidently, the Assembly
exercised neither of those options but it rather welcomed resolution
WHA46.40, with the implication that the agency had not acted ultra vires.
The WHO, in resolution WHA46.40, offered various reasons why it had
requested the advisory opinion of the Court on this matter including, inter
alia, the concern felt by the world health community about the con-[p 221]
tinued threat to health and the environment by the use of nuclear weapons
and the need for prevention. Also, as the agency primarily responsible for
the promotion and protection of international health, it considered that the
opinion of the Court would have acted as a guide in the performance of its
functions. It is conceivable that, had the Court decided to render an
opinion in accord with the manifest desire of the Organization, such an
opinion would have put States on notice that in view of the health and
environmental consequences that are bound to ensue from the use of nuclear
weapons, they would be in breach of their obligations under international
law, including the WHO Constitution were they to have recourse to such
weapons. Regrettably, this potentially preventive effect of the Court's
authoritative advice cannot now be realized in view of the Court's decision
to decline the request.
Conclusion
To sum up, the Court, in order to reject the request by the WHO, had to
ignore its established jurisprudence, for as the Court has repeatedly
stated, only "compelling reasons" should lead it to refuse to render an
advisory opinion requested of it. In my view, no such "compelling reasons"
have been demonstrated to warrant the dismissal of the request. In the
Interpretation of Peace Treaties case, the Court had said:
"The Court's reply is only of an advisory character: as such, it has no
binding force. It follows that no State . . . can prevent the giving of an
Advisory Opinion which the United Nations considers to be desirable in order
to obtain enlightenment as to the course of action it should take."
(Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First
Phase, I.C.J. Reports 1950, p. 71.)
It is submitted that the considerations enunciated by the Court in that
earlier case are equally applicable to the present case. The Court's
decision on this matter has almost entirely turned on its interpretation of
the question submitted for its consideration. That interpretation, with
respect, not only distorted the intention of the question but also took too
narrow and restrictive a view of the competence and scope of the activities
of the WHO. Hitherto, the Court's purpose in interpreting or reformulating a
question in a request for an advisory opinion had been to ascertain what
were the legal questions really in issue in the question formulated, so as
to be in a position to render an effective and useful opinion and not to
provide a basis for the rejection of the request.
In my view, since the responsibility of the WHO includes the promotion and
protection of international public health, including the taking of
preventive measures, a question that seeks the opinion of the Court as to [p
222] whether in view of their health and environmental effects, a State
using nuclear weapons would be in breach of its obligations under
international law, including the WHO Constitution, relates to a matter
eminently within the competence and scope of activities of the
Organization. The legal question in the request is directed to the factual
effects of the use of nuclear weapons and not to the legality or illegality
of such weapons per se. Therefore, to find that such a question is outside
the scope of activities of the Organization strikes me, with respect, as a
classic case of overshooting a target and appears to be lacking in validity.
The request cannot be considered as incompatible with the purpose and
objective of WHO nor can it be considered as detrimental to the interests of
member States in excess of what they had accepted as a basis of their
membership. As mentioned earlier, the Court itself has said that "when the
Organization takes action . . . appropriate for the fulfilment of one of
the stated purposes of the United Nations, the presumption is that such
action is not ultra vires the Organization" (I.C.J. Reports 1962, p. 168).
This statement is equally applicable to the action taken by the WHO in
formulating the request. Accordingly, what appears to be a legal rebuke or
an attempt to teach the WHO a lesson for asking the question seems to me to
be both gratuitous and unwarranted. Indeed, denying the request for lack of
jurisdiction leaves one wondering whether this is not one of those cases in
which a former Member of this Court, Judge Sir Gerald Fitzmaurice,
considered that a finding against jurisdiction might prove to be a solution
"in those cases where the necessity of giving a decision on the merits would
involve unusual difficulty or embarrassment for the tribunal" ("The Law and
Procedure of the International Court of Justice, 1951-1954: Questions of
Jurisdiction, Competence and Procedure", British Year Book of International
Law, Vol. 34, 1958, pp. 11-12, footnote 3). The only thing is that, in this
very important matter, a finding against jurisdiction will not prove to be a
solution, as States would be in breach of their international obligations
were they to use nuclear weapons. It is, moreover, not discernible to me why
if a decision on the "merits" had been given, it would have involved any
embarrassment for the Court; nor should the Court have allowed itself to be
seen to have been swayed from performing its judicial functions by declining
to enter into the merits of the case. It is undeniable that the question
asked by the WHO is controversial, but the Court has never declined a
request for the reason that it is controversial or might prove to be an
embarrassment. Indeed, in the Namibia case, when it was suggested that the
Court should not or could not give the advisory opinion requested because of
political pressure to which the Court, it was suggested, had been or might
be subjected, the Court responded as follows:
"29. It would not be proper for the Court to entertain these observations,
bearing as they do on the very nature of the Court as [p 223] the principal
judicial organ of the United Nations, an organ which, in that capacity, acts
only on the basis of the law, independently of all outside influence or
interventions whatsoever, in the exercise of the judicial function entrusted
to it alone by the Charter and its Statute. A court functioning as a court
of law can act in no other way." (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. 23.)
Regarding the argument that because matters relating to nuclear weapons are
being discussed in other fora, the Court should therefore not render an
opinion, when a similar argument was advanced in the Fisheries Jurisdiction
cases, the Court replied as follows:
"The Court is also aware of present endeavours, pursued under the auspices
of the United Nations, to achieve in a third Conference on the Law of the
Sea the further codification and progressive development of this branch of
the law ... In the circumstances, the Court, as a court of law, cannot
render judgment sub specie legis ferendae, or anticipate the law before the
legislator has laid it down." (I.C.J. Reports 1974, p. 192.)
As already mentioned, international organizations have regarded the
instrument of an advisory opinion as a means of securing an authoritative
legal opinion on thorny or difficult issues facing them. The Court has
always responded positively to requests for advisory opinions, regarding its
role as participation in the activities of the Organization while at the
same time protecting its judicial character. That trust would now appear to
have been broken. It is regrettable that the Court has chosen to vacate its
positive record in this sphere on an issue of such vital importance, an
issue that embraces not only a legal but a moral and humanitarian dimension
as well. The Court considered these aspects in the case concerning
Reservations to the Convention on the Prevention and Punishment of the Crime
of Genocide (I.C.J. Reports 1951, p. 23). It has been said that "medicine is
one of the pillars of peace"; it can equally be said that "health is a
pillar of peace" or as is stated in the Constitution of the WHO "the health
of all peoples is fundamental to the attainment of peace and security".
On the basis of the aforesaid, I find that the Court's Opinion is
inadequately reasoned, has failed to address the crucial issues raised and
is inconsistent with its jurisprudence. I, therefore, find myself unable to
concur with it. On the other hand, and on the basis of the material before
the Court, applying the law to that material, I am of the firm conviction
that a State would be in breach of its obligations under international law,
including the WHO Constitution, were it to use nuclear weapons in war [p
224]or other armed conflict in view of the health and environmental
consequences. To put a question of this kind to the Court is indeed within
the competence and scope of the activities of the WHO.
(Signed) Abdul G. Koroma. |
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