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World Court Digest

III. The International Court of Justice
5.2. Request for Advisory Opinion

¤ Legality of the Threat or Use
of Nuclear Weapons
Advisory Opinion of 8.7.1996
I.C.J. Reports 1996, p. 226

[pp. 232-233] 11. For the Court to be competent to give an advisory opinion, it is thus necessary at the outset for the body requesting the opinion to be authorized by or in accordance with the Charter of the United Nations to make such a request". The Charter provides in Article 96, paragraph 1, that: "The General Assembly or the Security Council may request the International Court of Justice to give an advisory opinion on any legal question."
Some States which oppose the giving of an opinion by the Court argued that the General Assembly and Security Council are not entitled to ask for opinions on matters totally unrelated to their work. They suggested that, as in the case of organs and agencies acting under Article 96, paragraph 2, of the Charter, and notwithstanding the difference in wording between that provision and paragraph 1 of the same Article, the General Assembly and Security Council may ask for an advisory opinion on a legal question only within the scope of their activities.

In the view of the Court, it matters little whether this interpretation of Article 96, paragraph 1, is or is not correct; in the present case, the General Assembly has competence in any event to seise the Court. Indeed, Article 10 of the Charter has conferred upon the General Assembly a competence relating to "any questions or any matters" within the scope of the Charter. Article 11 has specifically provided it with a competence to "consider the general principles ... in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments". Lastly, according to Article 13, the General Assembly "shall initiate studies and make recommendations for the purpose of ... encouraging the progressive development of international law and its codification".
12. The question put to the Court has a relevance to many aspects of the activities and concerns of the General Assembly including those relating to the threat or use of force in international relations, the disarmament process, and the progressive development of international law. The General Assembly has a long-standing interest in these matters and in their relation to nuclear weapons. This interest has been manifested in the annual First Committee debates, and the Assembly resolutions on nuclear weapons; in the holding of three special sessions on disarmament (1978, 1982 and 1988) by the General Assembly, and the annual meetings of the Disarmament Commission since 1978; and also in the commissioning of studies on the effects of the use of nuclear weapons. In this context, it does not matter that important recent and current activities relating to nuclear disarmament are being pursued in other fora.

Finally, Article 96, paragraph 1, of the Charter cannot be read as limiting the ability of the Assembly to request an opinion only in those circumstances in which it can take binding decisions. The fact that the Assembly's activities in the above-mentioned field have led it only to the making of recommendations thus has no bearing on the issue of whether it had the competence to put to the Court the question of which it is seised.

[p. 367 D.O. Oda] 43. I have shown, firstly, that the request contained in General Assembly resolution 49/75 K and that reads:
"Is the threat or use of nuclear weapons permitted in any circumstance under international law?" was, in fact, nothing more than a request to the Court to endorse what, in the view of those that framed it, is a legal axiom that the threat or use of nuclear weapons is not permitted under international law in any circumstance, and so cannot be considered as a request for advisory opinion in the real sense as laid down by Article 96 (1) of the Charter of the United Nations.

In the second place, I maintain that the request contains an element of uncertainty as regards the meaning of the phrase "threat or use of nuclear weapons", as opposed to "the use or threat of use of nuclear weapons", and provides no clarification of the concept of "threat", leading one to raise the question of whether or not the possession or the production of nuclear weapons should be included as an object of the request. In my view there was sufficient reason to believe that, in view of the background to the drafting, the absolute illegality of nuclear weapons themselves was in the mind of some States.

[pp. 367-368 D.O. Oda] In the development of nuclear disarmament in the forum of the United Nations, the movement aiming at the conclusion of a treaty to totally prohibit the "use or threat of use of nuclear weapons" was at a standstill for more than ten years, that is, from 1982 to 1994. Support for such repeated resolutions on disarmament within the United Nations General Assembly in New York did not increase but rather decreased (see above Table III), and the Conference on Disarmament in Geneva made no attempt to respond favourably to those resolutions nor did it commence negotiations in order to achieve agreement on such a convention.

Against the background of that situation, a group of States stimulated by a few NG0s attempted to achieve a breakthrough by obtaining the Court's endorsement of an alleged legal axiom in order to move towards a worldwide anti-nuclear weapons convention. I have no doubt that the request was prepared and drafted - not in order to ascertain the status of existing international law on the subject but to try to promote the total elimination of nuclear weapons - that is to say, with highly political motives. This reason, among others, explains why, in 1994,, resolution 49/75 K, although passed at the General Assembly with the support of 78 States, did meet with 43 objections while 38 States abstained from the voting.