|I.||Substantive International Law - First Part|
|5.||THE UNITED NATIONS|
Legality of the Use by a State
of Nuclear Weapons in Armed
Conflict (Request by WHO)
Advisory Opinion of 8 July 1996,
I.C.J. Reports 1996, p. 66
[pp. 75-78] 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 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 "[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being" and that "[t]he 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;
(k) 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;
(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;
(v) 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, teir 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 1;
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., para. 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.
[pp. 79-81] 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.
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 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.
[pp. 83-84] 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 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.
[pp. 114-115 D.O. Weeramantry] 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 2l 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 (l)); 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)); 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.
[p. 133 D.O. Weeramantry] 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 jurisprudence 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, irreactive of whether they are also within the sphere of peace and security.
[p. 195 D.O. Koroma] 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.
[pp. 197-198 D.O. Koroma] 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 functional agencies, such as the WHO, it would unnecessarily restrict and ultimately defeat their effectiveness.
[p. 220 D.O.Koroma] 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.
|1||See Effects of Nuclear War on Health Services (2nd ed.), Geneva WHO. 1987|