|III.||The International Court of Justice|
|5.||ADVISORY OPINIONS OF THE INTERNATIONAL COURT OF JUSTICE|
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
[pp.98-100 D.O. Shahabuddeen] Third, as to the proposition that the Court's holding concerns the merits.
A question whether some specified conduct of a State would be a breach of its obligations under the Constitution of the WHO raises two issues: (i) Does the obligation exist? (ii) If the obligation exists, does the specified conduct constitute a breach of it?
If the obligation exists, the answer to the question will be in the affirmative or in the negative depending on whether the specified conduct is or is not found to be a breach of the obligation.
However, if the Court finds that the obligation itself does not exist, then ex hypothesi the specified conduct could not be a breach of any obligation under the Constitution of the WHO. This alone suffices to yield an answer to the question a negative answer, but an answer all the same.
From its analysis of the Constitution of the WHO, the Court concludes that
the Organization has no competence to address the question of the legality of
the use of nuclear weapons. That implies a finding that, under the Constitution
of the WHO, a member State has no obligation not to use weapons such as nuclear
weapons which could result in health and environmental effects, for if a member
State had such an obligation, the WHO would have had some competence to address
a question of the legality of a use of weapons which might have occurred in
breach of that constitutional obligation.
If a member State has no obligation under the Constitution of the WHO not to use weapons (such as nuclear weapons) which could result in health and environmental effects, it follows that in using such weapons, it is not in breach of any obligation under that Constitution. This is an answer to the WHO's question. The Court's holding therefore concerns the merits of the question which is actually asked.
Obviously, this approach is based on a certain view of the distinction between merits and preliminary issues. What might be a general criterion for identifying the merits? To borrow from the field of contentious litigation,
"the merits of a dispute consist of the issues of fact and law which give rise to a cause of action, and which an applicant State must establish in order to be entitled to the relief claimed" (Anglo-Iranian Oil Co., Preliminary Objection, Judgment I.C.J. Reports 1952, p. 148, Judge Read, dissenting).
The case at bar is, of course, a case within the Court's advisory jurisdiction, and caution is appropriate: but that basic approach appears transposable. It is implicit in paragraph l6 of the Court's decision. This, in my opinion, recognizes that to give an affirmative answer to the question in this case the Court would have to be satisfied that, as a matter of law, member States have an obligation under the WHO Constitution not to create health and environmental effects through the use of weapons in war or other armed conflict, and that, as a matter of fact. the use of nuclear weapons would create such effects. The issue whether a State has such an obligation would therefore form part of the merits (see the general reasoning in Electric Company of Sofia and Bulgaria, Judgment, 1939, P.C.I.J., Series A/B, No. 77, pp. 82-83; Barcelona Traction, Light and Power Company, Limited, Preliminary Objections, Judgment, I.C.J. Reports 1964, pp. 4446, and Judge Morelli, dissenting, at pp. 110-112; Barcelona Traction, Light and Power Company Limited, Second Phase, Judgment, I.C.J. Reports 1970, pp. 226 ff., Judge Morelli, concurring: and South West Africa, Second Phase, Judgment, I.C.J. Reports 1966, p. 19. para. 7).