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| I. | Substantive International Law - First Part |
| 7. | LAW OF TREATIES |
| 7.8. | Interpretation |
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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. 74-75] 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. 148-149 D.O. Weeramantry] In the interpretation of a multilateral convention of this type, particularly one which sets before itself certain sociological or humanitarian goals, the task of interpretation should be guided by the object and purpose which the Convention sets before itself. A literal interpretation, using strict methods of anchoring interpretation to the letter rather than the spirit of the convention, would be inappropriate. Fitzmaurice observes of interpretation by reference to objects, principles and purposes (the teleological method) that:
"This is a method of interpretation more especially connected with the general multilateral convention of the 'normative', and, particularly, of the sociological or humanitarian type. The characters or constitutive instruments of international organizations may also be placed in this category." 1
The interpretation of a multilateral, sociological or humanitarian treaty,
such as the WHO Constitution, cannot be permitted to diverge from its objects,
purposes and principles. I am of the view that the approach of the Court has in
effect taken it far from these objects, purposes and principles, through a
narrow and literal construction, which sees the Organization as being precluded
from enquiring, inter alia, about the conformity of a certain item of
State conduct with the terms of its own Constitution.
There are numerous specific provisions within the treaty, several of which
have already been referred to. These need to be interpreted in accordance with
the treaty's overall object and purpose as stated in its preamble. This is not
to state that in the treaty in question there is any conflict between the
natural meaning of the words used and its overall purpose, but merely to state
that its various specific provisions should not be interpreted narrowly, but
always with the end in view which the treaty seeks to achieve the attainment of
the highest standards of health on a global scale.
The object and purpose of the Constitution - the attainment by all peoples
of the highest possible level of health - is clearly defeated by the infliction
upon the global population of multiple health dangers on a massive scale, as
follows from the use of a nuclear weapon.
There is no ambiguity about the expression "highest possible level of
health". States declare they will co-operate to achieve this, others make
similar declarations on this basis, and a commitment to achieve this objective
has emerged.
The governing principle as to whether the nuclear weapon violates State
obligations under the Constitution is to be found in the object and purpose of
the WHO Constitution. When so regarded, the answer emerges beyond any
possibility of doubt or obscurity. State actions which negative the State
declarations and commitments to health outlined earlier are clearly a violation
of the WHO Statute. To interpret the statutory provisions outlined earlier, so
as to enable a State to inflict health damage to present and future generations
without violating its constitutional duties, does violence to this principle of
interpretation, and to the Statute itself.
[p. 199 D.O.Koroma] In the Namibia case this Court emphasized that in interpreting an instrument the Court must take into consideration the changes which have occurred over the years as its interpretation cannot remain unaffected by the subsequent development of the law. The Court further emphasized,
"Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation" (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 31).
The reference to the Nationality Decrees case is not intended to
suggest that the WHO is a State let alone a super-State, as the Court put it in
the Reparation case, nor is this the intention with respect to the
reference to the Namibia case either. The point sought to be made is
that both Courts when interpreting relevant documents have taken into
consideration developments which had taken place or had done so within the
framework of the entire legal system prevailing at the time of the
interpretation.
In other words, in determining the competence or scope of activities of the
WHO in the context of its Constitution and with reference to the health and
environmental effects of the use of nuclear weapons, account must be taken of
the Organization's role and practice in situations similar to those involving
the use of similar nuclear devices.
| 1 | Sir Gerald Fitzmaurice; The Law and Procedure of the international Court of Justice, 1986. VOL. I, p. 341 |
