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World Court Digest

III. The International Court of Justice
5. ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE
5.2. Request for Advisory Opinion

¤ 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. 97-98 D.O. Shahabuddeen] 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 Organizations 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 apart from the question whether such use would also constitute a breach of the State's obligations under the Constitution of the WHO.

[pp. 110-111 D.O. Weeramantry] 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 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.

[p. 111 D.O. Weeramantry] 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. 201-202 D.O.Koroma] 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 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.

[p. 203 D.O.Koroma] 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 making 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.