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World Court Digest

I. Substantive International Law - First Part
2. SOURCES OF INTERNATIONAL LAW
2.1. General Questions
2.1.4. Ius cogens / Obligations erga omnes

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

[p. 257] 79. It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and "elementary considerations of humanity" as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.

[p. 258] 83. It has been maintained in these proceedings that these principles and rules of humanitarian law are part of jus cogens as defined in Article 53 of the Vienna Convention on the Law of Treaties of 23 May 1969. The question whether a norm is part of the jus cogens relates to the legal character of the norm. The request addressed to the Court by the General Assembly raises the question of the applicability of the principles and rules of humanitarian law in cases of recourse to nuclear weapons and the consequences of that applicability for the legality of recourse to these weapons. But it does not raise the question of the character of the humanitarian law which would apply to the use of nuclear weapons. There is, therefore, no need for the Court to pronounce on this matter.

[p. 273 Decl. Bedjaoui] 21. I have no doubt that most of the principles and rules of humanitarian law and, in any event, the two principles, one of which prohibits the use of weapons with indiscriminate effects and the other the use of arms causing unnecessary suffering, form part of jus cogens. The Court raised this question in the present Opinion; but it nevertheless stated that it did not have to make a finding on the point since the question of the nature of the humanitarian law applicable to nuclear weapons did not fall within the framework of the request addressed to it by the General Assembly of the United Nations. Nonetheless, the Court expressly stated the view that these fundamental rules constitute "intransgressible principles of international customary law"1.

[p. 496 D.O. Weeramantry] The rules of the humanitarian law of war have clearly acquired the status of jus cogens, for they are fundamental rules of a humanitarian character, from which no derogation is possible without negating the basic considerations of humanity which they are intended to protect. In the words of Roberto Ago, the rules of jus cogens include:

"the fundamental rules concerning the safeguarding of peace, and notably those which forbid recourse to force or threat of force; fundamental rules of a humanitarian nature (prohibition of genocide, slavery and racial discrimination, protection of essential rights of the human person in time of peace and war); the rules prohibiting any infringement of the independence and sovereign equality of States; the rules which ensure to all members of the international community the enjoyment of certain common resources (high seas, outer space, etc.)"2 .

The question under consideration is not whether there is a prohibition in peremptory terms of nuclear weapons specifically so mentioned, but whether there are basic principles of a jus cogens nature which are violated by nuclear weapons. If there are such principles which are of a jus cogens nature, then it would follow that the weapon itself would be prohibited under the jus cogens concept.

1See paragraph 79 of the Advisory Opinion, which reads:
It is undoubtedly because a great many rules of humanitarian law applicable in armed conflict are so fundamental to the respect of the human person and 'elementary considerations of humanity' as the Court put it in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p. 22), that the Hague and Geneva Conventions have enjoyed a broad accession. Further these fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute in transgressible principles of international customary law." (Emphasis added.)
2Recueil des cours de l'Académie de droit international de La Haye, Vol. 134 (1971), p. 324, footnote 37; emphasis added. See, also, the detailed study of various peremptory norms in the international law of armed conflict, in Lauri Hannikainen, Peremptory Norms (Jus Cogens) in International Law, 1988, pp. 596-715, where the author finds that many of the principles of the humanitarian law of war are jus cogens.