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World Court Digest

III. The International Court of Justice
1.7. Jura novit curia

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

[p. 263] 97. Accordingly, in view of the present state of international law viewed as a whole, as examined above by the Court, and of the elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive conclusion as to the legality or illegality of the use of nuclear weapons by a State in an extreme circumstance of self-defense, in which its very survival would be at stake.

[pp. 279-280 Decl. Vereshchetin] However, I find myself obliged to explain the reasons which have led me to vote in favour of paragraph 2 E of the dispositif, which carries the implication of the indecisiveness of the Court and indirectly admits the existence of a "grey area" in the present regulation of the matter.
The proponents of the view that a court should be prohibited from declaring non liquet regard this prohibition as a corollary of the concept of the "completeness" of the legal system. Those among their number who do not deny the existence of gaps in substantive international law consider that it is the obligation of the Court in a concrete case to fill the gap and thus, by reference to a general legal principle or by way of judicial law-creation, to provide for the "completeness" of the legal system.

On the other hand, there is a strong doctrinal view that the alleged "prohibition" on a declaration of a non liquet "may not be fully sustained by any evidence yet offered" (J. Stone, "Non Liquet and the Function of Law in the International Community", The British Year Book of International Law, 1959, p. 145). In his book devoted specifically to the problems of lacunae in international law, L. Siorat comes to the conclusion that in certain cases a court is obliged to declare a non liquet (Le problème des lacunes en droit international, 1958, p. 189).

In critically assessing the importance for our case of the doctrinal debate on the issue of non liquet, one cannot lose sight of the fact that the debate has concerned predominantly, if not exclusively, the admissibility or otherwise of non liquet in a contentious procedure in which the Court is called upon to pronounce a binding, definite decision settling the dispute between the parties. Even in those cases, the possibility of declaring a non liquet was not excluded by certain authoritative publicists, although this view could not be convincingly supported by arbitral and judicial practice.
In the present case, however, the Court is engaged in advisory procedure. It is requested not to resolve an actual dispute between actual parties, but to state the law as it finds it at the present stage of its development. Nothing in the question put to the Court or in the written and oral pleadings by the States before it can be interpreted as a request to fill the gaps, should any be found, in the present status of the law on the matter. On the contrary, several States specifically stated that the Court "is not being asked to be a legislator, or to fashion a régime for nuclear disarmament" (Samoa, CR 95/31, p. 34) and that "[t]he Court would be neither speculating nor legislating, but elucidating the law as it exists and is understood by it ..." (Egypt, CR95/23, pp. 32-33; see also the oral statement of Malaysia, CR95/27, p. 52.)

Even had the Court been asked to fill the gaps, it would have had to refuse to assume the burden of law-creation, which in general should not be the function of the Court. In advisory procedure, where the Court finds a lacuna in the law or finds the law to be imperfect, it ought merely to state this without trying to fill the lacuna or improve the law by way of judicial legislation. The Court cannot be blamed for indecisiveness or evasiveness where the law, upon which it is called to pronounce, is itself inconclusive. Even less warranted would be any allegation of the Court's indecisiveness or evasiveness in this particular Opinion, which gives an unequivocal, albeit non-exhaustive, answer to the question put to the Court.

[p. 591 D.O. Higgins] It is also, I think, an important and well-established principle that the concept of non liquet – for that is what we have here – is no part of the Court's jurisprudence.