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The Advisory Opinion of the International Court of Justice (ICJ) of 8 July 1996 regarded the legality under international law of the use (or threat to use) nuclear weapons. They decided that humanitarian law would apply to the use of nuclear weapons but the use of such weapons was not declared illegal in all circumstances.

Initially, the advisory opinion was requested by the World Health Organization (WHO), which, as a health agency, was deemed by the court to not have standing to request the opinion. The UN General Assembly subsequently requested an opinion and the court, by a vote of thirteen to one, decided to hear the case.

The court first investigated the matter of deterrence, which involves a threat to use nuclear weapons under certain circumstances (i.e. a nuclear strike on the deterring country). Was such a threat illegal? It was widely agreed that if the use of force would be illegal, then the threat to use such force would also be illegal. They decided that if the retaliatory strike was consistent with necessity and proportionality, it might be legal.

The court then looked at the very existence of nuclear weapons. Was just having them illegal? They looked at various treaties (including the UN Charter) and found no treaty language which specifically forbade the possession of nuclear weapons. It was argued by some that the Hague Conventions concerning the use of chemical weapons would also apply to nuclear weapons, but the court rejected this argument.

Customary International Law also provided no evidence that the possession of nuclear weapons was perceived to be illegal. Many nations have nuclear weapons or are trying to acquire them and most nations which get them adopt policies of deterrence. The court found no opinio juris (that is, legal consensus) that such weapons are illegal to have. However, in practice, nuclear weapons have not been used since 1945 and there are numerous UN resolutions condemning their use (however, such resolutions are not universally supported--most notably, the nuclear powers object to them). But the ICJ did not find that these facts indicated a new customary law against nuclear weapons.

However, there are many universal humanitarian laws applying to war. For instance, it is illegal for a combatant to specifically target civilians and many weapons which cause indiscriminate damage are specifically outlawed. All states seem to observe these rules. The court ruled that these laws would also apply to the use of nuclear weapons. Therefore, if the use of nuclear weapons was proportional and a last resort, such use might be legal in extreme circumstances, such as if the existence of the state was in jeopardy.

1 See also

jus in bello
Mutual assured destructionMutual assured destruction (MAD) is the doctrine of military strategy in which a full scale use of nuclear weapons by one of two opposing sides would result in the destruction of both the attacker and the defender. It is based on the theory of deterrence
Nuclear warfareNuclear war or atomic war is war in which nuclear weapons are used. In general the discussion can be broken down further into subgroups. In the limited nuclear war (sometimes attack or exchange only small numbers of weapons are used in a tactical exchange

2 External links

Advisory Opinion of 8 July 1996 (from the ICJ website)
Summary of the Opinion

Nuclear weapons

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