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| III. | The International Court of Justice |
| 5. | ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE |
| 5.3. | Jurisdictional Questions and Denial of the Request for Advisory Opinion |
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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
[p. 73] 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.
[pp. 73-74] 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 rais[ing] 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 by international law
(cf. 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, 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.
[pp. 74-75] 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 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".
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, I.C.J. Reports 1991, pp. 69-70, para. 48; Land, Island and Maritime Frontier Dispute (El Salvador/Honduras: Nicaragua intervening), Judgment, I.C.J Reports 1992, pp. 582-583, para. 373, and p. 586, para. 380; Territorial Dispute (Libyan Arab Jamahiriya/Chad) Judgment, 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.
[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; [and] (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, 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 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.
[p. 82] 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.
[pp. 82-83] 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
(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 l, 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.
[pp. 98 D.O.Shahabuddeen] 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.
[pp. 128-129 D.O. Weeramantry] 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 shorts 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 seek an advisory opinion on a
question of law, has no competence to seek an interpretation of its own
Constitution.
[p. 219 D.O.Koroma] 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).
| 1 | See Effects of Nuclear War on Health and Health Services (2nd ed.), Geneva WHO. 1987. |
