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World Court Digest

I. Substantive International Law - First Part
4.2. States
4.2.5. Fundamental Rights and Obligations Equality

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

[pp. 277-278 Decl. Shi] Also, leaving aside the nature of the policy of deterrence, this "appreciable section of the international community" adhering to the policy of deterrence is composed of certain nuclear-weapon States and those States that accept the protection of the "nuclear umbrella". No doubt, these States are important and powerful members of the international community and play an important role on the stage of international politics. However, the Court, as the principal judicial organ of the United Nations, cannot view this "appreciable section of the international community" in terms of material power. The Court can only have regard to it from the standpoint of international law. Today the international community of States has a membership of over 185 States. The appreciable section of this community to which the Opinion refers by no means constitutes a large proportion of that membership, and the structure of the international community is built on the principle of sovereign equality. Therefore, any undue emphasis on the practice of this "appreciable section" would not only be contrary to the very principle of sovereign equality of States, but would also make it more difficult to give an accurate and proper view of the existence of a customary rule on the use of the weapon.

[p. 417 D.O. Shahabuddeen] There would be difficulty also in following how it is that what is inalienable for some States is alienable for others. It is an attribute of sovereignty that a State may by agreement restrain the exercise of its competence; yet how far it may do so without losing its status as a State is another question 1. Since the right of self-defence is "inherent" in a State, it is not possible to conceive of statehood which lacks that characteristic. See the illustration in General Assembly resolution 49/10 of 3 November 1994,

"[r]eaffirming ... that as the Republic of Bosnia and Herzegovina is, a sovereign, independent State and a Member of the United Nations, it is entitled to all rights provided for in the Charter of the United Nations, including the right to self-defence under Article 51 thereof".

Arrangements for the exercise of the right of self-defence are a different matter. But, so far as the right itself is concerned, if the right includes a right to use nuclear weapons, the latter is not a small part of the former. It was no doubt for this reason that, in the parallel case brought by the World Health Organization, it was argued that to "deny the victim of aggression the right to use the only weapons which might save it would be to make a mockery of the inherent right of self-defence"2. The argument is understandable, granted the premise that the right to use nuclear weapons is part of the inherent right of self-defence. The question is whether the premise is correct. For, if it is correct, then, by the same token, there is difficulty in seeing how the NNWS which were parties to the NPT could have wished to part with so crucially important a part of their inherent right of self-defence.

[p. 526-527 D.O. Weeramantry] As with all sections of the international legal system, the concept of equality is built into the texture of the laws of war.
Another anomaly is that if, under customary international law, the use of the weapon is legal, this is inconsistent with the denial, to 180 of the 185 Members of the United Nations, of even the right to possession of this weapon. Customary international law cannot operate so unequally, especially if, as is contended by the nuclear powers, the use of the weapon is essential to their self-defence. Self-defence is one of the most treasured rights of States and is recognized by Article 51 of the United Nations Charter as the inherent right of every Member State of the United Nations. It is a wholly unacceptable proposition that this right is granted in different degrees to different Members of the United Nations family of nations.

De facto inequalities always exist and will continue to exist so long as the world community is made up of sovereign States, which are necessarily unequal in size, strength, wealth and influence. But a great conceptual leap is involved in translating de facto inequality into inequality de jure. It is precisely such a leap that is made by those arguing, for example, that when the Protocols to the Geneva Conventions did not pronounce on the prohibition of the use of nuclear weapons, there was an implicit recognition of the legality of their use by the nuclear powers. Such silence meant an agreement not to deal with the question, not a consent to legality of use. The "understandings" stipulated by the United States and the United Kingdom that the rules established or newly introduced by the 1977 Additional Protocol to the four 1949 Geneva Conventions would not regulate or prohibit the use of nuclear weapons do not undermine the basic principles which antedated these formal agreements and received expression in them. They rest upon no conceptual or juristic reason that can make inroads upon those principles. It is conceptually impossible to treat the silence of these treaty provisions as overruling or overriding these principles.

1See argument of M. Yasseen in I.C.J. Pleadings, Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, pp. 298-299.
2Statement of the Government of the United Kingdom (para. 24), in the case concerning Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Request for Advisory Opinion).