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World Court Digest

II. Substantive International Law - Second Part

¤ Legality of the Threat or Use
of Nuclear Weapons
Advisory Opinion of 8 July 1996
I.C.J. Reports 1996, p. 226

[pp. 241-243] 27. In both their written and oral statements, some States furthermore argued that any use of nuclear weapons would be unlawful by reference to existing norms relating to the safeguarding and protection of the environment, in view of their essential importance.
Specific references were made to various existing international treaties and instruments. These included Additional Protocol I of 1977 to the Geneva Conventions of 1949, Article 35, paragraph 3, of which 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"; and the Convention of 18 May 1977 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, which prohibits the use of weapons which have "widespread, long-lasting or severe effects" on the environment (Art. 1). Also cited were Principle 21 of the Stockholm Declaration of 1972 and Principle 2 of the Rio Declaration of 1992 which express the common conviction of the States concerned that they have a duty

"to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction".

These instruments and other provisions relating to the protection and safeguarding of the environment were said to apply at all times, in war as well as in peace, and it was contended that they would be violated by the use of nuclear weapons whose consequences would be widespread and would have transboundary effects.
28. Other States questioned the binding legal quality of these precepts of environmental law; or, in the context of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, denied that it was concerned at all with the use of nuclear weapons in hostilities; or, in the case of Additional Protocol 1, denied that they were generally bound by its terms, or recalled that they had reserved their position in respect of Article 35, paragraph 3, thereof.

It was also argued by some States that the principal purpose of environmental treaties and norms was the protection of the environment in time of peace. It was said that those treaties made no mention of nuclear weapons. It was also pointed out that warfare in general, and nuclear warfare in particular, were not mentioned in their texts and that it would be destabilizing to the rule of law and to confidence in international negotiations if those treaties were now interpreted in such a way as to prohibit the use of nuclear weapons.
29. The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment.

30. However, the Court is of the view that the issue is not whether the treaties relating to the protection of the environment are or are not applicable during an armed conflict, but rather whether the obligations stemming from these treaties were intended to be obligations of total restraint during military conflict.
The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.
This approach is supported, indeed, by the terms of Principle 24 of the Rio Declaration, which provides 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 cooperate in its further development, as necessary."

31. The Court notes furthermore that Articles 35, paragraph 3, and 55 of Additional Protocol I provide additional protection for the environment. Taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals.
These are powerful constraints for all the States having subscribed to these provisions.

32. General Assembly resolution 47/37 of 25 November 1992 on the "Protection of the Environment in Times of Armed Conflict" is also of interest in this context. It affirms the general view according to which environmental considerations constitute one of the elements to be taken into account in the implementation of the principles of the law applicable in armed conflict: it states that "destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law". Addressing the reality that certain instruments are not yet binding on all States, the General Assembly in this resolution "[a]ppeals to all States that have not yet done so to consider becoming parties to the relevant international conventions".
In its recent Order in the Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, the Court stated that its conclusion was "without prejudice to the obligations of States to respect and protect the natural environment" (Order of 22 September 1995, I.C.J. Reports 1995, p. 306, para. 64). Although that statement was made in the context of nuclear testing, it naturally also applies to the actual use of nuclear weapons in armed conflict.

[pp. 502-504 D.O. Weeramantry] Environmental law incorporates a number of principles which are violated by nuclear weapons. The principle of intergenerational equity and the common heritage principle have already been discussed. Other principles of environmental law, which this request enables the Court to recognize and use in reaching its conclusions, are the precautionary principle, the principle of trusteeship of earth resources, the principle that the burden of proving safety lies upon the author of the act complained of, and, the "polluter pays principle", placing on the author of environmental damage the burden of making adequate reparation to those affected1. There have been juristic efforts in recent times to formulate what have been described as "principles of ecological security" - a process of norm creation and codification of environmental law which has developed under the stress of the need to protect human civilization from the threat of self-destruction.
. . .
These principles of environmental law thus do not depend for their validity on treaty provisions. They are part of customary international They are part of the sine qua non for human survival.

[pp. 505-506 D.O. Weeramantry] The basic principle in this regard is spelt out by Article, 35 (3) of the 1977 Additional Protocol I to the Geneva Convention in terms prohibiting

"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 prohibits

"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".

The question is not whether nuclear weapons were or were not intended to be covered by these formulations. It is sufficient to read them as stating undisputed principles of customary international law. To consider that these general principles are not explicit enough to cover nuclear weapons, or that nuclear weapons were designedly left unmentioned and are therefore not covered, or even that there was a clear understanding that these provisions were not intended to cover nuclear weapons, is to emphasize the incongruity of prohibiting lesser weapons of environmental damage, while leaving intact the infinitely greater agency of causing the very damage which it was the rationale of the treaty to prevent.

If there are general duties arising under customary international law, it clearly matters not that the various environmental agreements do not specifically refer to damage by nuclear weapons. The same principles apply whether we deal with belching furnaces, leaking reactors or explosive weapons. The mere circumstance that coal furnaces or reactors are not specifically mentioned in environmental treaties cannot lead to the conclusion that they are exempt from the incontrovertible and well-established standards and principles laid down therein.

Another approach to the applicability of environmental law to the matter before the Court is through the principle of good neighbourliness, which is both impliedly and expressly written into the United Nations Charter. This principle is one of the bases of modern international law, which has seen the demise of the principle that sovereign States could pursue their own interests in splendid isolation from each other. A world. order in which every sovereign State depends on the same global environment generates a mutual interdependence which can only be implemented by co-operation and good neighbourliness.
The United Nations Charter spells this out as "the general principle of good-neighbourliness, due account being taken of the interests and well-being of the rest of the world, in social, economic, and commercial matters" (Art. 74). A course of action that can destroy the global environment will take to its destruction not only the environment, but the social, economic and commercial interests that cannot exist apart from that environment. The Charter's express recognition of such a general duty of good neighbourliness makes this an essential part of international law.

This Court, from the very commencement of its jurisprudence, has supported this principle by spelling out the duty of every State not to allow knowingly its territory to be used for acts contrary to the rights of other States" (Corfu Channel, I.C.J. Reports 1949, p. 22).

1See the references to these principles in my dissenting opinion in Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France) Case, I.C.J. Reports 1995, pp. 339-347.