Advisory Opinion of 8 July 1996
In August 1993, the Director-General of the World Health Organization (WHO) officially communicated to the Court a decision taken by the World Health Assembly to submit a question for an advisory opinion. The question set forth in resolution WHA46.40 adopted by the Assembly on 14 May 1993, reads 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?"
In its advisory opinion in response to this request, the Court considered that there are three conditions which 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 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.
The first two conditions had been met. With regard to the third, however, the Court found that although according to its Constitution the World Health Organization is authorized 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 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. And the Court pointed out that 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. The Court further pointed out that international organizations do not, unlike States, possess a general competence, but 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. Besides, the World Health Organization is an international organization of a particular kind - a "specialized agency" forming part of a system based in the Charter of the United Nations, which is 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 Court therefore concluded that the responsibilities of the WHO are necessarily restricted to the sphere of public "health" and cannot encroach on the responsibilities of other parts of the United Nations system. And that 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. The request for an advisory opinion submitted by the WHO thus does not relate to a question which arises "within the scope of [the] activities" of that Organization.
Accordingly, the Court found, by eleven votes to three, that it was not able to give the advisory opinion requested by the World Health Organization on the question of the Legality of the Use by a State of Nuclear Weapons in Armed Conflict.
In his Declaration, Judge Ranjeva stated that although he essentially agreed with the advisory opinion, he would nonetheless have preferred the Court to be more explicit with respect to the problem of its advisory jurisdiction, by stressing that the fact that the structure of the question put by the World Health Assembly had not been such as to enable it to exercise the jurisdiction that it did, in any case, possess.
Judge Ferrari Bravo, in his Declaration on the opinion, emphasized that while the Court was the principal judicial organ of the United Nations, it was not the judicial organ of other international bodies whose right to seize the Court needed to be carefully restricted if a correct division of competencies were to be maintained and the usurpation of functions of the United Nations by other organisations were to be prevented.
In his Separate Opinion, Judge Oda, while being in agreement with the reasoning of the Court, nevertheless wished to make clear his view that the Court should have taken more note of the fact that it was asked not only whether the use of nuclear weapons would be a breach of the obligations of States under international law but whether it would also be a breach of the obligations of States under the WHO Constitution. He was concerned that the Court might be seized of more requests for advisory opinion which may in essence be unnecessary and over-simplistic. He stressed that the advisory function should only be used in cases of conflict or dispute and not merely to discuss general matters of international law.
The main reason for Judge Shahabuddeen's dissent was that, in his view, the Court had mistaken the meaning of the WHO's question. The WHO was not asking whether the use of nuclear weapons by one of its members is lawful under international law as a general matter; but whether it would also be a breach of obligations under the Constitution of the WHO. The WHO would have to deal with the health and environmental effects produced by the action of a member even if that action is in breach of the member's obligations under that Constitution; but it nevertheless remained competent for the WHO to concern itself with the question whether, in producing a situation demanding action by the WHO, a member may have breached its obligations under that Constitution.
Judge Weeramantry, in his Dissenting Opinion, stated that the question asked by the WHO related to obligations in three particular areas, namely state obligations in regard to health; state obligations in regard to the environment; and state obligations under the WHO Constitution. The question asked by the WHO was substantially different from the general question of legality of use or threat of use of nuclear weapons, asked by the General Assembly. However, the Court had treated it as a question of general illegality, and had not examined state obligations in the three areas mentioned. Had the Court inquired into these three areas, it would have found that each of them was intimately linked with the legitimate concerns of the WHO and that, in each of these areas, state obligations were violated by nuclear weapons. In his view, the question asked by the WHO was entirely within its legitimate and constitutional sphere of interest. The WHO was in fact to be commended for having given its attention to the question of the legality of the nuclear weapon, which was the greatest man-made threat to human health thus far devised.
In his Dissenting Opinion Judge Koroma disputed the Court's finding that the question posed by the Organization was outside its competence and scope of activities. To reach that conclusion, he maintained that the Court had misconstrued the question put by the WHO as relating to the legality of the use by a state of nuclear weapons in armed conflict. In his view, that question related to the health and environmental effects of nuclear weapons and to the problem of whether those effects would be in breach of the obligations of States, a matter which falls eminently within the competence and scope of the agency's activities. He recalled that the WHO is the specialized agency responsible for the protection and the safeguarding of the health of all peoples at international level and its responsibilities include the taking of measures to prevent health problems like those which are bound to arise following the use of nuclear weapons.