Legality of the use by a state of nuclear weapons in armed conflict, Advisory opinion, 8th July 1996 ( ICJ Rep 66), OXIO 136
International Court of Justice [ICJ]
- Armed conflict, international — Weapons, nuclear — Advisory opinions
1. Whether the World Health Organization was empowered to request an advisory opinion of the International Court of Justice on the legality of the use, or threat, of nuclear weapons
This headnote pertains to: Legality of the use by a state of nuclear weapons in armed conflict, Advisory opinion, a court decision relevant to the law of international organizations. Jump to full text
In 1993 the World Health Organization (WHO) requested the International Court of Justice (ICJ) to render an advisory opinion on the legality of the threat, or use, of nuclear weapons. The ICJ’s response is an important international judicial statement on the powers of international organizations. It is an authoritative statement on the interpretation of constituent instruments, the powers of international organizations, and the first—and to date the sole—attempt by the ICJ to explicitly introduce the broader system of global governance as a guiding principle in its decision-making.
The proposal to make the request was initially made by the representatives of Belarus, Colombia, Costa Rica, El Salvador, Honduras, Kenya, Namibia, Nicaragua, Nigeria, Panama, Senegal, Swaziland, Tonga, and Zimbabwe. Within the deliberative organ of the WHO there was considerable debate regarding the legality of the proposed resolution. The legal department was strongly critical of the proposal on the grounds that it lay beyond the competence of the organization.
The WHO’s power to request advisory opinions is governed by Article 76 of the Constitution of the World Health Organization (‘WHO Constitution’) (1946); Article 96 (2) of the Charter of the United Nations (‘UN Charter’) (1945) and Article X of the Agreement between the United Nations and the World Health Organization (‘1947 Agreement’) (1947). Article 96 (2) of the UN Charter granted the General Assembly (GA) the power to grant specialised agencies the right to request advisory opinions ‘on legal questions arising within the scope of their activities’. The WHO Constitution granted the WHO, on the condition of GA approval, the right to request advisory opinions on ‘any legal question arising with the competence of the Organization’. The 1947 Agreement between the two organizations, which resolved the question of authorisation, was also restricted to requests ‘arising within the scope of its competence.’
Despite the concerns of its legal advisors and a minority of states, the World Health Assembly (WHA) requested the ICJ to give its opinion on the question: '[i]n view of the health and environmental effects, would the use of nuclear weapons by a [s]tate in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution'? On 15 December 1994, before the ICJ had a chance to consider the case, the GA submitted a substantively similar request for an advisory opinion.
The WHA’s request for an advisory opinion was rejected by a majority of eleven to three by the ICJ. The ICJ stated that it was under a duty to review whether the conditions for its jurisdiction were met. Two conditions were identified: firstly, that the request was concerned a legal question; secondly, that the request fell within the competence of the WHO. Un-controversially, the ICJ considered the first condition to be met
The question of whether the request fell within the competence of the WHO was far more significant. The competence of an international organization was defined by ‘the relevant rules of the organization and, in the first place, to its constitution’. These instruments, particularly the WHO Constitution, were to be interpreted according to the law of treaties. However, the application of the law of treaties had to take into account the particular characteristics of constituent instruments, arising from ‘their character which is conventional and at the same time institutional.’ Therefore, the judges had to take into account ‘the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice’. [para 19]
From this perspective the ICJ examined the functions of the WHO. It concluded that the functions entrusted to the WHO did not concern the ‘legality of any activity’ and that ‘none of the functions of the WHO is dependent upon the legality of the situations upon which it must act’. [para 20] The ICJ then drew a crucial distinction between a hypothetical situation of the WHO making a request for an advisory opinion regarding the effects of a nuclear attack and the actual situation whereby the WHO made a request regarding the legality of a nuclear attack. In the former, hypothetical case, the request would fall within the competence of the WHO. In the actual case at hand, the request went beyond the competence of the WHO. [para 21]
The ICJ restated what it considered the legal principles governing the competence of international organizations. It first noted that organizations, unlike states, were creatures of limited competences. As such, they were governed by what the ICJ termed ‘principle of speciality’. [para 25] Normally, the powers held by an organization were expressly enumerated by their constituent instruments, ‘nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities’. [ref 1] However, the ICJ rejected that the WHO should be considered to have an implied power to make the request. To do so ‘would be tantamount to disregarding the principle of speciality’. [ref 2]
This reasoning would have been sufficient to resolve the matter. However the ICJ moved from the interpretation of the WHO Constitution in isolation and examined its place in the wider system of international organization. The WHO was not any organization, but a specialised agency of the United Nations (UN). The ‘Charter of the United Nations laid the basis of a “system” designed to organize international co-operation in a coherent fashion by bringing the United Nations, invested with powers of general scope, into relationship with various autonomous and complementary organizations, invested with sectorial powers’. [ref 3] Therefore, any interpretation of the WHO Constitution had to take into account, not only the ‘principle of speciality’ but ‘also the logic of the overall system contemplated by the Charter’. Allowing specialised agencies the capacity to make such significant encroachments into the competence of the UN itself would ‘render virtually meaningless the notion of a specialised agency’. [ref 4]
The opinion of the ICJ may be divided into three sections: the restatement of the interpretative rules applicable to constituent instruments; the ‘internal’ examination of the WHO Constitution; and the ‘external’ examination of its place in the wider international system.
On the matter of interpretation, the ICJ adds clarity to its previous reasoning. It states that constituent instruments are primarily to be understood as treaties, but that any interpretation must necessarily take account of the fact that they also create autonomous institutions. While in the past the ICJ limited itself to describing constituent instruments as treaties ‘with certain special characteristics’, in this advisory opinion the ICJ elaborates on the consequences of this particularity. This part of the opinion is essentially a clarification and elaboration of prior reasoning.
The second section of the opinion, which interprets the competences of the WHO from an internal perspective, is also best seen as a restatement of existing principles. While the Court adds a new term of art: ‘the principle of speciality’, it adds little in terms of substance. Indeed, the reference to the Jurisdiction of the European Commission of the Danube between Galatz and Braila advisory opinion of 1927 reflects this. In certain quarters the combination of a reference to a Permanent Court of International Justice (PCIJ) case and the fact that the ICJ rejected a claim to implied powers has been interpreted as a conservative retrenchment on the part of the ICJ. However, such criticisms tend to underplay both the sophistication of the PCIJ’s construction of the powers of organizations and the audacity of the WHO’s claim to authority.
Nevertheless, it is the final part of the ICJ’s reasoning which is indisputably innovative and important; the point at which the ICJ examines the place of the WHO in the broader system of global governance. In a certain sense, the reasoning is remarkable because it is unnecessary. The ICJ seems to argue that as well as the constraints placed upon organizations by their governing instruments, restrictions are also placed upon organizations by virtue of the existence of other organizations. This claim has been criticised as being overly reductive; failing to appreciate the degree to which competences overlap in the contemporary system of global governance; and taking a ‘black or white’ perspective. However, these criticisms read rather too much into the opinion. The ICJ’s opinion does not advocate a black and white division between competences, rather it makes it clear that the WHO’s request was a grave violation of the division.
Lastly, the ICJ’s movement between the conceptualisation of the WHO as a treaty regime and as an autonomous institution of global governance is worth consideration. Initially the ICJ, while recognising the complexities of constituent instruments from an institutional perspective, places emphasis on treaty interpretation. However, in examining the systematic constraints which restrain the WHO the ICJ declined to use techniques of treaty interpretation which would could have been employed to similar effect, notably the principle of systematic interpretation of Article 31 (3) (c) of the Vienna Convention on the Law of Treaties (1969). Instead it adopted an innovative approach specifically tailored to suit the demands of global governance under the auspices of the UN.
The impact of the present advisory opinion has, to date, been limited. With respect to the immediate issue, the request was taken up by the GA and the ICJ in turn rendered an opinion on the legality of nuclear weapons (see Legality of the threat or use of nuclear weapons (1996)). To widespread disappointment, the ICJ opined that nuclear weapons were generally, but not unequivocally, illegal.
With respect to the law of international organizations, the opinion has a dubious position. On the one hand, it tends to be seen as the point at which the tide turned on the implied powers doctrine. In this respect, its importance is probably exaggerated. Despite taking place when scholarly attitudes to international organizations were being revised, the decision—with respect to legal powers—is best seen as a continuation of the ICJ’s—and indeed the PCIJ’s—reasoning on the powers of international organizations. The ICJ is at pains to stress continuity in its approach and scholarly criticisms which allege a departure from existing case-law underestimate the audacity of the WHO’s request.
On the other hand, the importance of the opinion regarding the legal organization of global governance is under-valued. Indeed it is the first, and sole, instance where the ICJ has suggested that the competences of international organizations may be constrained by relation to those of other organizations. While the ICJ has not had further opportunity to expand upon its reasoning and scholarship has not seriously endeavoured to sketch out the implications, the opinion’s impact in this respect remains to be seen.
Further Analysis and Relevant Materials
International Court of Justice (ICJ)
- Legality of threat or use of nuclear weapons, Advisory opinion, 8 July 1996,  ICJ Rep 226
Permanent Court of International Justice (historical) (PCIJ)
- Jurisdiction of the European Commission of the Danube between Galatz and Braila, Advisory opinion, 8 December 1927, PCIJ Series B No. 14
United Nations (UN)
- Vienna Convention on the Law of Treaties (signed 23 May 1969, entered into force 27 January 1980) 1155 UNTS 331
- Agreement between the United Nations and the World Health Organization (10 July 1948) 19 UNTS 193
- Charter of the United Nations (signed 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI
World Health Organization (WHO)
- Constitution of the World Health Organizations (signed 22 July 1946, entered into force 7 April 1948) 14 UNTS 185
International Court of Justice (ICJ)
- Reparation for injuries suffered in the service of the United Nations, Advisory Opinion, 11 April 1949,  ICJ Rep 174
Present: President Bedjaoui; Vice-President Schwebel ; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fletschhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins ; Registrar Valencia-Ospina.
“The Forty-sixth World Health Assembly,
Bearing in mind the principles laid down in the WHO Constitution ;
Noting the report of the Director-General on health and environmental effects of nuclear weapons 1 ;
Recalling resolutions WHA34.38 , WHA36.28 and WHA40.24 on the effects of nuclear war on health and health services ;
Recognizing that it has been established that no health service in the world can alleviate in any significant way a situation resulting from the use of even one single nuclear weapon 2 ;
Recalling resolutions WHA42.26 on WHO's contribution to the international efforts towards sustainable development and WHA45.31 which draws attention to the effects on health of environmental degradation and recognizing the short- and long-term environmental consequences of the use of nuclear weapons that would affect human health for generations ;
Recalling that primary prevention is the only appropriate means to deal with the health and environmental effects of the use of nuclear weapons2;
Noting the concern of the world health community about the continued threat to health and the environment from nuclear weapons ;
Mindful of the role of WHO as defined in its Constitution to act as the directing and coordinating authority on international health work (Article 2 (a) ) ; to propose conventions, agreements and regulations (Article 2 (k) ) ; to report on administrative and social techniques affecting public health from preventive and curative points of view (Article 2 (p) ); and to take all necessary action to attain the objectives of the Organization (Article 2 (v) ) ;
Realizing that primary prevention of the health hazards of nuclear weapons requires clarity about the status in international law of their use, and that over the last 48 years marked differences of opinion have been expressed by Member States about the lawfulness of the use of nuclear weapons ;
1. Decides, in accordance with Article 96 (2) of the Charter of the United Nations , Article 76 of the Constitution of the World Health Organization and Article X of the Agreement between the United Nations and the World Health Organization approved by the General Assembly of the United Nations on 15 November 1947 in its resolution 124 (II) , to request the International Court of Justice to give an advisory opinion on the following question :
‘In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution ?’
2. Requests the Director-General to transmit this resolution to the International Court of Justice, accompanied by all documents likely to throw light upon the question, in accordance with Article 65 of the Statute of the Court .”
2. Pursuant to Article 65, paragraph 2, of the Statute , the Director-General of the WHO communicated to the Court a dossier of documents likely to throw light upon the question ; the dossier reached the Registry in several instalments.
3. By letters dated 14 and 20 September 1993, the Deputy-Registrar, pursuant to Article 66, paragraph 1, of the Statute of the Court , gave notice of the request for an advisory opinion to all States entitled to appear before the Court.
4. By an Order dated 13 September 1993 the Court decided that the WHO and the member States of that Organization entitled to appear before the Court were likely to be able to furnish information on the question, in accordance with Article 66, paragraph 2, of the Statute ; and, by the same Order, the Court fixed 10 June 1994 as the time-limit for the submission to it of written statements on the question. The special and direct communication provided for in Article 66, paragraph 2, of the Statute was included in the aforementioned letters of 14 and 20 September 1993 addressed to the States concerned. A similar communication was transmitted to the WHO by the Deputy-Registrar on 14 September 1993.
5. By an Order dated 20 June 1994, the President of the Court, upon the request of several States, extended to 20 September 1994 the time-limit for the submission of written statements. By the same Order, the President fixed 20 June 1995 as the time-limit within which States and organizations having presented written statements might submit written comments on the other written statements, in accordance with Article 66, paragraph 4, of the Statute .
6. Written statements were filed by the following States : Australia, Azerbaijan, Colombia, Costa Rica, Democratic People's Republic of Korea, Finland, France, Germany, India, Ireland, Islamic Republic of Iran, Italy, Japan, Kazakhstan, Lithuania, Malaysia, Mexico, Nauru, Netherlands, New Zealand, Norway, Papua New Guinea, Philippines, Republic of Moldova, Russian Federation, Rwanda, Samoa, Saudi Arabia, Solomon Islands, Sri Lanka, Sweden, Uganda, Ukraine, United Kingdom of Great Britain and Northern Ireland, and United States of America. In addition, written comments on those written statements were submitted by the following States : Costa Rica, France, India, Malaysia, Nauru, Russian Federation, Solomon Islands, United Kingdom of Great Britain and Northern Ireland, and United States of America. Upon receipt of those statements and comments, the Registrar communicated the text to all States having taken part in the written proceedings.
7. The Court decided to hold public sittings, opening on 30 October 1995, at which oral statements might be submitted to the Court by any State or organization which had been considered likely to be able to furnish information on the question before the Court. By letters dated 23 June 1995, the Registrar requested the WHO and its member States entitled to appear before the Court to inform him whether they intended to take part in the oral proceedings ; it was indicated, in those letters, that the Court had decided to hear, during the same public sittings, oral statements relating to the request for an advisory opinion from the WHO as well as oral statements concerning the request for an advisory opinion meanwhile laid before the Court by the General Assembly of the United Nations on the question of the Legality of the Threat or Use of Nuclear Weapons , on the understanding that the WHO would be entitled to speak only in regard to the request it had itself submitted ; and it was further specified therein that the participants in the oral proceedings which had not taken part in the written proceedings would receive the text of the statements and comments produced in the course of the latter.
8. Pursuant to Article 106 of the Rules of Court , the Court decided to make the written statements and comments submitted to the Court accessible to the public, with effect from the opening of the oral proceedings.
9. In the course of public sittings held from 30 October 1995 to 15 November 1995, the Court heard oral statements in the following order by :
for the WHO:
Mr. Claude-Henri Vignes, Legal Counsel;
for the Commonwealth of Australia:
Mr. Gavan Griffith, Q.C., Solicitor-General of Australia, Counsel,
The Honourable Gareth Evans, Q.C., Senator, Minister for Foreign Affairs, Counsel;
for the Arab Republic of Egypt:
Mr. Georges Abi-Saab, Professor of International Law, Graduate Institute of International Studies, Geneva, Member of the Institute of International Law;
for the French Republic:
Mr. MarcPerrin de Brichambaut, Director of Legal Affairs, Ministry of Foreign Affairs,
Mr. Alain Pellet, Professor of International Law, University of Paris X and Institute of Political Studies, Paris;
for the Federal Republic of Germany:
Mr. Hartmut Hillgenberg, Director-General of Legal Affairs, Ministry of Foreign Affairs;
H.E. Mr. Johannes Berchmans Soedarmanto Kadarisman, Ambassador of Indonesia to the Netherlands;
H.E. Mr. Sergio González Gálvez, Ambassador, Under-Secretary of Foreign Relations;
for the Islamic Republic of Iran:
H.E. Mr. Mohammad J. Zarif, Deputy Minister, Legal and International Affairs, Ministry of Foreign Affairs;
Mr. Umberto Leanza, Professor of International Law at the Faculty of Law at the University of Rome “Tor Vergata”, Head of the Diplomatic Legal Service at the Ministry of Foreign Affairs;
H.E. Mr. Takekazu Kawamura, Ambassador, Director General for Arms Control and Scientific Affairs, Ministry of Foreign Affairs,
Mr. Takashi Hiraoka, Mayor of Hiroshima,
Mr. Iccho Itoh, Mayor of Nagasaki;
H.E. Mr. Tan Sri Razali Ismail, Ambassador, Permanent Representative of Malaysia to the United Nations,
Dato' Mohtar Abdullah, Attorney-General;
for New Zealand:
The Honourable Paul East, Q.C., Attorney-General of New Zealand,
Mr. Allan Bracegirdle, Deputy Director of Legal Division of the New Zealand Ministry of Foreign Affairs and Trade;
for the Philippines:
H.E. Mr. Rodolfo S. Sanchez, Ambassador of the Philippines to the Netherlands,
Professor Merlin M. Magallona, Dean, College of Law, University of the Philippines;
for the Russian Federation:
Mr. A. G. Khodakov, Director, Legal Department, Ministry of Foreign Affairs;
H.E. Mr. Neroni Slade, Ambassador and Permanent Representative of Samoa to the United Nations,
Miss Laurence Boisson de Chazournes, Assistant Professor, Graduate Institute of International Studies, Geneva,
Mr. Roger S. Clark, Distinguished Professor of Law, Rutgers University School of Law, Camden, New Jersey;
for the Marshall Islands:
The Honourable Theodore G. Kronmiller, Legal Counsel, Embassy of the Marshall Islands to the United States of America,
Mrs. Lijon Eknilang, Council Member, Rongelap Atoll Local Government;
for Solomon Islands:
The Honourable Victor Ngele, Minister of Police and National Security,
Mr. Jean Salmon, Professor of Law, Université libre de Bruxelles,
Mr. Eric David, Professor of Law, Université libre de Bruxelles,
Mr. Philippe Sands, Lecturer in Law, School of Oriental and African Studies, London University, and Legal Director, Foundation for International Environmental Law and Development,
Mr. James Crawford, Whewell Professor of International Law, University of Cambridge;
for Costa Rica:
Mr. Carlos Vargas-Pizarro, Legal Counsel and Special Envoy of the Government of Costa Rica;
for the United Kingdom of Great Britain and Northern Ireland:
The Rt. Honourable Sir Nicholas Lyell, Q.C., M.P., Her Majesty's Attorney-General;
for the United States of America:
Mr. Conrad K. Harper, Legal Adviser, United States Department of State,
Mr. Michael J. Matheson, Principal Deputy Legal Adviser, United States Department of State,
Mr. John H. McNeill, Senior Deputy General Counsel, United States Department of Defence;
Mr. Jonathan Wutawunashe, Chargé d'affaires a.i., Embassy of the Republic of Zimbabwe in the Netherlands.
Questions were put by Members of the Court to particular participants in the oral proceedings, which replied in writing, as requested, within the prescribed time-limits; the Court having decided that the other participants could also reply to those questions on the same terms, several of them did so. Other questions put by Members of the Court were addressed, more generally, to any participant in the oral proceedings ; several of them replied in writing, as requested, within the prescribed time-limits.
∗ ∗ ∗
It is also stated, in Article 96, paragraph 2, of the Charter that the
Consequently, three conditions must be satisfied in order to found the jurisdiction of the Court when a request for an advisory opinion is submitted to it by a specialized agency : the agency requesting the opinion must be duly authorized, under the Charter , to request opinions from the Court ; the opinion requested must be on a legal question ; and this question must be one arising within the scope of the activities of the requesting agency (cf. Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1982, pp. 333–334).
“Upon authorization by the General Assembly of the United Nations or upon authorization in accordance with any agreement between the Organization and the United Nations, the Organization may request the International Court of Justice for an advisory opinion on any legal question arising within the competence of the Organization.”
And on the other hand, paragraph 2 of Article X of the Agreement of 10 July 1948 between the United Nations and the WHO , under which :
“The General Assembly authorizes the World Health Organization to request advisory opinions of the International Court of Justice on legal questions arising within the scope of its competence other than questions concerning the mutual relationships of the Organization and the United Nations or other specialized agencies.”
This agreement was approved by the United Nations General Assembly on 15 November 1947 ( resolution 124 (II) ) and by the World Health Assembly on 10 July 1948 ( resolution [WHA1.102] ).
12. There is thus no doubt that the WHO has been duly authorized, in accordance with Article 96, paragraph 2, of the Charter , to request advisory opinions of the Court. The first condition which must be met in order to found the competence of the Court in this case is thus fulfilled. Moreover, this point has not been disputed; and the Court has in the past agreed to deal with a request for an advisory opinion submitted by the WHO (see Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, Advisory Opinion, I.C.J. Reports 1980, pp. 73 et seq. ).
13. However, during both the written and oral proceedings, some States have disputed whether the other conditions necessary for the jurisdiction of the Court have been met in the present case. It has been contended that the question before the Court is an essentially political one, and also that it goes beyond the scope of the WHO's proper activities, which would in limine have deprived the Organization itself of any competence to seise the Court of it.
14. Further, various arguments have been put forward for the purpose of persuading the Court to use the discretionary power it possesses under Article 65, paragraph 1, of the Statute , to decline to give the opinion sought. The Court can however only exercise this discretionary power if it has first established that it has jurisdiction in the case in question ; if the Court lacks jurisdiction, the question of exercising its discretionary power does not arise.
15. The Court must therefore first satisfy itself that the advisory opinion requested does indeed relate to a “legal question” within the meaning of its Statute and the United Nations Charter .
The Court has already had occasion to indicate tha questions
“framed in terms of law and rais[ing] problems of international law … are by their very nature susceptible of a reply based on law … [and] appear … to be questions of a legal character” ( Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 18, para. 15).
16. The question put to the Court by the World Health Assembly does in fact constitute a legal question, as the Court is requested to rule on whether,
“in view of the health and environmental effects, … the use of nuclear weapons by a State in war or other armed conflict [would] be a breach of its obligations under international law including the WHO Constitution ”.
To do this, the Court must identify the obligations of States under the rules of law invoked, and assess whether the behaviour in question conforms to those obligations, thus giving an answer to the question posed based on law.
The fact that this question also has political aspects, as, in the nature of things, is the case with so many questions which arise in international life, does not suffice to deprive it of its character as a “legal question” and to “deprive the Court of a competence expressly conferred on it by its Statute ” ( Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 172, para. 14). Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law (cf. Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947–1948, pp. 61–62 ; Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, pp. 6–7 ; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155).
Furthermore, as the Court said in the Opinion it gave in 1980 concerning the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt :
“Indeed, in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate, especially when these may include the interpretation of its constitution.” (I.C.J. Reports 1980, p. 87, para. 33.)
17. The Court also finds that the political nature of the motives which may be said to have inspired the request and the political implications that the opinion given might have are of no relevance in the establishment of its jurisdiction to give such an opinion.
18. The Court will now seek to determine whether the advisory opinion requested by the WHO relates to a question which arises “within the scope of [the] activities” of that Organization, in accordance with Article 96, paragraph 2, of the Charter .
The Court notes that this third condition to which its advisory function is subject is expressed in slightly different terms in Article X, paragraph 2, of the Agreement of 10 July 1948 — which refers to questions arising within the scope of the WHO's “competence” — and in Article 76 of the WHO Constitution — which refers to questions arising “within the competence” of the Organization. However, it considers that, for the purposes of this case, no point of significance turns on the different formulations.
“On the previous occasions when the Court has had to interpret the Charter of the United Nations , it has followed the principles and rules applicable in general to the interpretation of treaties, since it has recognized that the Charter is a multilateral treaty, albeit a treaty having certain special characteristics.” ( Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 157.)
But the constituent instruments of international organizations are also treaties of a particular type ; their object is to create new subjects of law endowed with a certain autonomy, to which the parties entrust the task of realizing common goals. Such treaties can raise specific problems of interpretation owing, inter alia, to their character which is conventional and at the same time institutional ; the very nature of the organization created, the objectives which have been assigned to it by its founders, the imperatives associated with the effective performance of its functions, as well as its own practice, are all elements which may deserve special attention when the time comes to interpret these constituent treaties.
According to the customary rule of interpretation as expressed in Article 31 of the 1969 Vienna Convention on the Law of Treaties , the terms of a treaty must be interpreted “in their context and in the light of its object and purpose” and there shall be
The Court has had occasion to apply this rule of interpretation several times (see Arbitral Award of 31 July 1989 ( Guinea-Bissau v. Senegal ), Judgment, I.C.J. Reports 1991, pp. 69–70, para. 48 ; Land, Island and Maritime Frontier Dispute ( El Salvador/Honduras : Nicaragua intervening), Judgment, I.C.J. Reports 1992, pp. 582–583, para. 373, and p. 586, para. 380 ; Territorial Dispute ( Libyan Arab Jamahiriya/Chad ), Judgment, I.C.J. Reports 1994, pp. 21–22, para. 41 ; Maritime Delimitation and Territorial Questions between Qatar and Bahrain ( Qatar v. Bahrain ), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1995, p. 18, para. 33) ; it will also apply it in this case for the purpose of determining whether, according to the WHO Constitution , the question to which it has been asked to reply arises “within the scope of [the] activities” of that Organization.
20. The WHO Constitution was adopted and opened for signature on 22 July 1946 ; it entered into force on 7 April 1948 and was amended in 1960, 1975, 1977, 1984 and 1994.
The functions attributed to the Organization are listed in 22 subparagraphs (subparagraphs (a) to (v)) in Article 2 of its Constitution . None of these subparagraphs expressly refers to the legality of any activity hazardous to health ; and none of the functions of the WHO is dependent upon the legality of the situations upon which it must act. Moreover, it is stated in the introductory sentence of Article 2 that the Organization discharges its functions “in order to achieve its objective”. The objective of the Organization is defined in Article 1 as being “the attainment by all peoples of the highest possible level of health”. As for the Preamble to the Constitution, it sets out various principles which the States parties “declare, in conformity with the Charter of the United Nations , … [to be] basic to the happiness, harmonious relations and security of all peoples” : hence, it is stated therein, inter alia, that “[t]he enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being” and that “[t]he health of all peoples is fundamental to the attainment of peace and security” ; it is further indicated, at the end of the Preamble that,
“for the purpose of co-operation among themselves and with others to promote and protect the health of all peoples, the Contracting Parties … establish … the … Organization … as a specialized agency within the terms of Article 57 of the Charter of the United Nations ”.
21. Interpreted in accordance with their ordinary meaning, in their context and in the light of the object and purpose of the WHO Constitution , as well as of the practice followed by the Organization, the provisions of its Article 2 may be read as authorizing the Organization to deal with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in.
The question put to the Court in the present case relates, however, not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects. Whatever those effects might be, the competence of the WHO to deal with them is not dependent on the legality of the acts that caused them. Accordingly, it does not seem to the Court that the provisions of Article 2 of the WHO Constitution , interpreted in accordance with the criteria referred to above, can be understood as conferring upon the Organization a competence to address the legality of the use of nuclear weapons, and thus in turn a competence to ask the Court about that.
“(a) to act as the directing and co-ordinating authority on international health work;
… … … … … … … … …
(k) to propose conventions, agreements and regulations, and make recommendations with respect to international health matters and to perform such duties as may be assigned thereby to the Organization and are consistent with its objective ;
… … … … … … … … …
(p) to study and report on, in co-operation with other specialized agencies where necessary, administrative and social techniques affecting public health and medical care from preventive and curative points of view, including hospital services and social security ;
… … … … … … … … …
In the view of the Court, none of these functions has a sufficient connection with the question before it for that question to be capable of being considered as arising “within the scope of [the] activities” of the WHO. The causes of the deterioration of human health are numerous and varied ; and the legal or illegal character of these causes is essentially immaterial to the measures which the WHO must in any case take in an attempt to remedy their effects. In particular, the legality or illegality of the use of nuclear weapons in no way determines the specific measures, regarding health or otherwise (studies, plans, procedures, etc.), which could be necessary in order to seek to prevent or cure some of their effects. Whether nuclear weapons are used legally or illegally, their effects on health would be the same. Similarly, while it is probable that the use of nuclear weapons might seriously prejudice the WHO's material capability to deliver all the necessary services in such an eventuality, for example, by making the affected areas inaccessible, this does not raise an issue falling within the scope of the Organization's activities within the meaning of Article 96, paragraph 2, of the Charter . The reference in the question put to the Court to the health and environmental effects, which according to the WHO the use of a nuclear weapon will always occasion, does not make the question one that falls within the WHO's functions.
“Recalling that primary prevention is the only appropriate means to deal with the health and environmental effects of the use of nuclear weapons 2 ;
… … … … … … … … …
Realizing that primary prevention of the health hazards of nuclear weapons requires clarity about the status in international law of their use, and that over the last 48 years marked differences of opinion have been expressed by Member States about the lawfulness of the use of nuclear weapons ;
The document entitled Effects of Nuclear War on Health and Health Services , to which the Preamble refers, is a report prepared in 1987 by the Management Group created by the Director-General of the WHO in pursuance of World Health Assembly resolution WHA36.28 ; this report updates another report on the same topic, which had been prepared in 1983 by an international committee of experts in medical sciences and public health, and whose conclusions had been approved by the Assembly in its above-mentioned resolution. As several States have observed during the present proceedings, the Management Group does indeed emphasize in its 1987 report that “the only approach to the treatment of health effects of nuclear warfare is primary prevention, that is, the prevention of nuclear war” (Summary, p. 5, para. 7). However, the Group states that “it is not for [it] to outline the political steps by which this threat can be removed or the preventive measures to be implemented” (ibid., para. 8) ; and the Group concludes :
“However, WHO can make important contributions to this process by systematically distributing information on the health consequences of nuclear warfare and by expanding and intensifying international cooperation in the field of health.” (Ibid., para. 9.)
24. The WHO could only be competent to take those actions of “primary prevention” which fall within the functions of the Organization as defined in Article 2 of its Constitution . In consequence, the references to this type of prevention which are made in the Preamble to resolution WHA46.40 and the link there suggested with the question of the legality of the use of nuclear weapons do not affect the conclusions reached by the Court in paragraph 22 above.
25. The Court need hardly point out that international organizations are subjects of international law which do not, unlike States, possess a general competence. International organizations are governed by the “principle of speciality”, that is to say, they are invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them. The Permanent Court of International Justice referred to this basic principle in the following terms :
“As the European Commission is not a State, but an international institution with a special purpose, it only has the functions bestowed upon it by the Definitive Statute with a view to the fulfilment of that purpose, but it has power to exercise these functions to their full extent, in so far as the Statute does not impose restrictions upon it.” ( Jurisdiction of the European Commission of the Danube, Advisory Opinion, P.C.I.J., Series B, No. 14, p. 64.)
The powers conferred on international organizations are normally the subject of an express statement in their constituent instruments. Nevertheless, the necessities of international life may point to the need for organizations, in order to achieve their objectives, to possess subsidiary powers which are not expressly provided for in the basic instruments which govern their activities. It is generally accepted that international organizations can exercise such powers, known as “implied” powers. As far as the United Nations is concerned, the Court has expressed itself in the following terms in this respect :
“Under international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter , are conferred upon it by necessary implication as being essential to the performance of its duties. This principle of law was applied by the Permanent Court of International Justice to the International Labour Organization in its Advisory Opinion No. 13 of July 23rd, 1926 (Series B, No. 13, p. 18), and must be applied to the United Nations.” ( Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion, I.C.J. Reports 1949, pp. 182–183; cf. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1954, p. 57.)
In the opinion of the Court, to ascribe to the WHO the competence to address the legality of the use of nuclear weapons — even in view of their health and environmental effects — would be tantamount to disregarding the principle of speciality ; for such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States.
“1. The various specialized agencies, established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63.
Article 58 of the Charter reads :
Article 63 of the Charter then provides :
“1. The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly.
As these provisions demonstrate, the Charter of the United Nations laid the basis of a “system” designed to organize international co-operation in a coherent fashion by bringing the United Nations, invested with powers of general scope, into relationship with various autonomous and complementary organizations, invested with sectorial powers. The exercise of these powers by the organizations belonging to the “United Nations system” is co-ordinated, notably, by the relationship agreements concluded between the United Nations and each of the specialized agencies. In the case of the WHO, the agreement of 10 July 1948 between the United Nations and that Organization actually refers to the WHO Constitution in the following terms in Article I :
It follows from the various instruments mentioned above that the WHO Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter . If, according to the rules on which that system is based, the WHO has, by virtue of Article 57 of the Charter , “wide nternational responsibilities”, those responsibilities are necessarily restricted to the sphere of public “health” and cannot encroach on the responsibilities of other parts of the United Nations system. And there is no doubt that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies. Besides, any other conclusion would render virtually meaningless the notion of a specialized agency ; it is difficult to imagine what other meaning that notion could have if such an organization need only show that the use of certain weapons could affect its objectives in order to be empowered to concern itself with the legality of such use. It is therefore difficult to maintain that, by authorizing various specialized agencies to request opinions from the Court under Article 96, paragraph 2, of the Charter , the General Assembly intended to allow them to seise the Court of questions belonging within the competence of the United Nations.
For all these reasons, the Court considers that the question raised in the request for an advisory opinion submitted to it by the WHO does not arise “within the scope of [the] activities” of that Organization as defined by its Constitution.
27. A consideration of the practice of the WHO bears out these conclusions. None of the reports and resolutions referred to in the Preamble to World Health Assembly resolution WHA46.40 is in the nature of a practice of the WHO in regard to the legality of the threat or use of nuclear weapons. The Report of the Director-General (doc. A46/30), referred to in the third paragraph of the Preamble, the aforementioned resolutions WHA34.38 and WHA36.28 , as well as resolution WHA40.24 , all of which are referred to in the fourth paragraph, as well as the abovementioned report of the Management Group of 1987 to which reference is made in the fifth and seventh paragraphs, deal exclusively, in the case of the first, with the health and environmental effects of nuclear weapons, and in the case of the remainder, with the effects of nuclear weapons on health and health services. As regards resolutions WHA42.26 and WHA45.31 , referred to in the sixth paragraph of the Preamble to resolution WHA46.40, the first concerns the WHO's contribution to international efforts towards sustainable development and the second deals with the effects on health of environmental degradation. None of these reports and resolutions deals with the legality of the use of nuclear weapons.
Resolution WHA46.40 itself, adopted, not without opposition, as soon as the question of the legality of the use of nuclear weapons was raised at the WHO, could not be taken to express or to amount on its own to a practice establishing an agreement between the members of the Organization to interpret its Constitution as empowering it to address the question of the legality of the use of nuclear weapons.
Nowhere else does the Court find any practice of this kind. In particular, such a practice cannot be inferred from isolated passages of certain resolutions of the World Health Assembly cited during the present proceedings, such as resolution WHA15.51 on the role of the physician in the preservation and development of peace, resolution WHA22.58 concerning co-operation between the WHO and the United Nations in regard to chemical and bacteriological weapons and the effects of their possible use, and resolution WHA42.24 concerning the embargo placed on medical supplies for political reasons and restrictions on their movement. The Court has also noted that the WHO regularly takes account of various rules of international law in the exercise of its functions ; that it participates in certain activities undertaken in the legal sphere at the international level — for example, for the purpose of drawing up an international code of practice on transboundary movements of radioactive waste ; and that it participates in certain international conferences for the progressive development and codification of international law. That the WHO, as a subject of international law, should be led to apply the rules of international law or concern itself with their development is in no way surprising ; but it does not follow that it has received a mandate, beyond the terms of its Constitution, itself to address the legality or illegality of the use of weaponry in hostilities.
28. It remains to be considered whether the insertion of the words “including the WHO Constitution ” in the question put to the Court (which essentially seeks an opinion on the legality of the use of nuclear weapons in general) could allow it to offer an opinion on the legality of the use of nuclear weapons by reference to the passage in the question concerning the WHO Constitution. The Court must answer in the negative. Indeed, the WHO is not empowered to seek an opinion on the interpretation of its Constitution in relation to matters outside the scope of its functions.
29. Other arguments have nevertheless been put forward in the proceedings to found the jurisdiction of the Court in the present case.
It has thus been argued that World Health Assembly resolution WHA46.40 , having been adopted by the requisite majority, “must be presumed to have been validly adopted” (cf. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 22, para. 20). The Court would observe in this respect that the question whether a resolution has been duly adopted from a procedural point of view and the question whether that resolution has been adopted intra vires are two separate issues. The mere fact that a majority of States, in voting on a resolution, have complied with all the relevant rules of form cannot in itself suffice to remedy any fundamental defects, such as acting ultra vires, with which the resolution might be afflicted.
As the Court has stated, “each organ must, in the first place at least, determine its own jurisdiction” ( Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 168). It was therefore certainly a matter for the World Health Assembly to decide on its competence — and, thereby, that of the WHO — to submit a request to the Court for an advisory opinion on the question under consideration, having regard to the terms of the Constitution of the Organization and those of the Agreement of 10 July 1948 bringing it into relationship with the United Nations. But likewise it is incumbent on the Court to satisfy itself that the conditions governing its own competence to give the opinion requested are met ; through the reference made, respectively, by Article 96, paragraph 2, of the Charter to the “scope of [the] activities” of the Organization and by Article X, paragraph 2, of the Agreement of 10 July 1948 to its “competence”, the Court also finds itself obliged, in the present case, to interpret the Constitution of the WHO.
The exercise of the functions entrusted to the Court under Article 65, paragraph 1, of its Statute requires it to furnish such an interpretation, independently of any operation of the specific recourse mechanism which Article 75 of the WHO Constitution reserves for cases in which a question or dispute arises between States concerning the interpretation or application of that instrument ; and in doing so the Court arrives at different conclusions from those reached by the World Health Assembly when it adopted resolution WHA46.40.
“[welcomed] resolution 46/40 of 14 May 1993 of the Assembly of the World Health Organization, in which the organization requested the International Court of Justice to give an advisory opinion on whether the use of nuclear weapons by a State in war or other armed conflict would be a breach of its obligations under international law, including the Constitution of the World Health Organization ”.
In expressing this opinion, the General Assembly clearly reflected the wish of a majority of States that the Assembly should lend its political support to the action taken by the WHO, which it welcomed. However, the Court does not consider that, in doing so, the General Assembly meant to pass upon the competence of the WHO to request an opinion on the question raised. Moreover, the General Assembly could evidently not have intended to disregard the limits within which Article 96, paragraph 2, of the Charter allows it to authorize the specialized agencies to request opinions from the Court — limits which were reaffirmed in Article X of the relationship agreement of 10 July 1948.
31. Having arrived at the view that the request for an advisory opinion submitted by the WHO does not relate to a question which arises “within the scope of [the] activities” of that Organization in accordance with Article 96, paragraph 2, of the Charter , the Court finds that an essential condition of founding its jurisdiction in the present case is absent and that it cannot, accordingly, give the opinion requested. Consequently, the Court is not called upon to examine the arguments which were laid before it with regard to the exercise of its discretionary power to give an opinion.
∗ ∗ ∗
32. For these reasons,
By eleven votes to three,
Finds that it is not able to give the advisory opinion which was requested of it under World Health Assembly resolution WHA46.40 dated 14 May 1993.
IN FAVOUR: President Bedjaoui ; Vice-President Schwebel ; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins ;
AGAINST : Judges Shahabuddeen, Weeramantry, Koroma.
Done in French and in English, the French text being authoritative, at the Peace Palace, The Hague, this eighth day of July, one thousand nine hundred and ninety-six, in three copies, one of which will be placed in the archives of the Court and the others transmitted to the Secretary-General of the United Nations and the Director-General of the World Health Organization, respectively.
(Signed) Mohammed Bedjaoui,
(Signed) Eduardo Valencia-Ospina,
Judges Ranjeva and Ferrari Bravo append declarations to the Advisory Opinion of the Court.
Judge Oda appends a separate opinion to the Advisory Opinion of the Court.
Judges Shahabuddeen, Weeramantry and Koroma append dissenting opinions to the Advisory Opinion of the Court.
Declaration of Judge Ranjeva
1 I have voted in favour of the Court's decision as I consider it to be in accordance with the relevant law. I should nonetheless have preferred the Court to have been more explicit in respect of the problem of its advisory jurisdiction, by laying stress on the fact that the structure of the question put by the World Health Assembly did not permit it to exercise the jurisdiction that it had, in any case.
(Signed) Raymond Ranjeva.
Declaration of Judge Ferrari Bravo
Judge Ferrari Bravo
1 I have voted in favour of the Advisory Opinion on the legality of nuclear weapons given this same day ( Legality of the Threat or Use of Nuclear Weapons, I.C.J. Reports 1996, p. 226) because I think it is incumbent upon the International Court of Justice to spare no pains to answer, to the best of its ability, the questions put to it by such principal organs of the United Nations as are entitled to seise the Court, particularly when such an answer may increase the likelihood of resolving a deadlock which, in the present case, has been perpetuated for over 50 years, casting a sombre, threatening shadow over the whole of mankind.
2 The Court, functioning as the principal judicial organ of the United Nations (Article 92 of the Charter ), was set up to do just that — among other things — and does not have to ask itself whether its reply, given to the best of its ability, can contribute to the development of the situation. Neither does it have to justify itself if that reply is less than exhaustive. I accordingly subscribe fully to the reasons given in support of the Court's decision to allow the question put by the General Assembly.
3 In that regard, it is however necessary to point out that the matter appears in a quite different light when the Court is seised by a specialized agency of the United Nations, whose competence to make application to the Court is, for reasons of principle, clearly defined. I accordingly also voted in favour of the present Opinion whereby the Court decided not to answer the question put to it by the World Health Organization, and consider my conduct to have been consistent. The Court is the principal judicial organ of the United Nations, but it is not the judicial organ of other international bodies whose right to seise the Court needs to be carefully restricted if the intention is to maintain a correct division of competences — and hence of effectiveness — among the international organizations, in a bid to prevent those political functions that the logic of the system has entrusted only to the United Nations from being usurped by other organizations which, to say the least, have neither the competence nor the structure to assume them.
(Signed) L. Ferrari Bravo.
Separate Opinion of Judge Oda
1. I am in general agreement with the Court's decision that the request for advisory opinion made by the WHO should be dismissed as well as with the reasoning leading to that decision.
2. I would like, however, to make one point in connection with the question put to the Court by the World Health Assembly. Although that question was whether “the use of nuclear weapons by a State … [would] be a breach of its obligations under international law including the WHO Constitution ” (emphasis added), the matter of whether “the use of nuclear weapons by a State … [would] be a breach of its obligations under international law” is quite distinct from the separate issue of whether “[that use] [would] … be a breach of its obligations under … the WHO Constitution”. Certainly the question itself is made very ambiguous by the use of the word “including”. My interpretation is, however, that the Court is asked to render an opinion on the question of whether such a use would be a breach of the States' obligations not only under international law but also under the WHO Constitution. The words, “including the WHO Constitution” seem to have been added to the question put to the Court in the hope that if the question concerning the use of nuclear weapons under international law were to be rejected by the Court as not arising within the scope of the activities of the Organization, then the question of whether such a use would be a breach of the States' obligations under the WHO Constitution might possibly elicit a different response.
When the Court, in its reasoning, uses the terms “the legal or illegal character of [the] causes”, “the legality or illegality of the use of nuclear weapons” or “nuclear weapons … used legally or illegally”, it can be seen to deal with the first question only and, on that basis, reaches the conclusion that the question posed by the World Health Assembly does not arise within “the scope of the Organization's activities” (Advisory Opinion, para. 22). I hold the view, however, that the question put to the Court relates to the interpretation of the WHO Constitution and may be said to have arisen “within the scope of [its] activities”. It does not seem to be proper for the Court to dispose of the question in the request only from the standpoint of the “legality or illegality [under international law] of the use of nuclear weapons”, while paying scant attention to the question of whether the use of nuclear weapons would be a breach of a member State's obligations under the WHO Constitution.
In its final analysis the Court stated that “the WHO is not empowered to seek an opinion on the interpretation of its Constitution in relation to matters outside the scope of its functions” (Advisory Opinion, para. 28), but I hesitate to comment on the Court's Opinion and do not intend to go into this aspect in any detail because of my view that the Court should, in any event, have refrained from rendering an opinion on this question.
3. My particular reason for writing this opinion is that I am personally very much afraid that if encouragement is given or invitations are extended for a greater use of the advisory function of the Court — as has recently been advocated on more than one occasion by some authorities — it may well be seised of more requests for advisory opinions which may in essence be unnecessary and over-simplistic. I firmly believe that the International Court of Justice should primarily function as a judicial institution to provide solutions to inter-State disputes of a contentious nature and should neither be expected to act as a legislature (although new developments in international law may well be crystallized through the jurisprudence of the Court) nor to function as an organ giving legal advice (except that the Court may give opinions on legal questions which arise within the scope of activities of the authorized international organizations) in circumstances in which there is no conflict or dispute concerning legal questions between States or between States and international organizations.
Requests for advisory opinion should, before they are brought to the Court, be more prudently considered by the international organizations authorized under Article 96 of the Charter to submit such requests to the Court, and the Court should in general give the most careful consideration to the way in which it exercises its advisory function.
4. During the 50-year history of the International Court of Justice, the Court's opinion has been requested on only three occasions by specialized agencies, i.e., in the cases concerning : (a) Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco (I.C.J. Reports 1956, p. 77), (b) Constitution of the Maritime Safety Committee of the Inter-Governmental Maritime Consultative Organization (I.C.J. Reports 1960, p. 150), and (c) Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (I.C.J. Reports 1980, p. 73).
In the Unesco case, the Court was asked to render opinions concerning the competence of the ILO Administrative Tribunal to hear complaints introduced against Unesco by certain staff members of the organization whose appointments had not been renewed ; the IMCO case was related to the interpretation of the Convention for the Establishment of the IMCO and the matter of whether the Maritime Safety Committee had been constituted in accordance with the Convention, and the WHO case was concerned with the application of the 1951 Regional Headquarters Agreement in a concrete dispute between the WHO and Egypt (where the regional headquarters of the WHO was located), and related to the proposed transfer of the headquarters away from Egypt against that country's wishes.
In each of these three cases each specialized agency, that is, Unesco, IMCO and the WHO, needed the opinion of the Court in order to solve one or more legal questions arising within the scope of its activities. These cases brought by requests from specialized agencies in the past history of the International Court of Justice cannot be considered as precedents for the present request from the WHO which does not relate to a question “arising within the scope of its activities“.
∗ ∗ ∗
5. The fact that the WHO made its request on the understanding that it was competent to do so on the basis of the resolution validly passed by the World Health Assembly does not preclude the Court from taking another position, as is properly explained in the Court's Opinion (cf. para. 29).
I would merely like to point out in this opinion that the limited function of the WHO, as one of the specialized agencies, was obviously well known to the Organization and it may be seen from the records of the World Health Assembly that the competence of the WHO to put the question to the Court as set forth in resolution WHA46.40 was vigorously contested not only by a number of States but also questioned by the Secretariat of the Organization itself.
6. It is only since 1992 that some member States of the WHO have become interested in the legal aspect of nuclear weapons — those same nuclear weapons which have been in existence for nearly 50 years, ever since the Organization was created. At the General Committee of the Forty-fifth Assembly (3rd meeting) on 12 May 1992, the Chairman of the Committee drew attention to a draft resolution proposed by the delegations of Belarus, Colombia, Costa Rica, El Salvador, Honduras, Kenya, Namibia, Nicaragua, Nigeria, Panama, Senegal, Swaziland, Tonga and Zimbabwe,
“[r]equest[ing] the Director-General :
(1) to refer the matter to the Executive Board to study and formulate a request for an advisory opinion from the International Court of Justice on the status in international law of the use of nuclear weapons in view of their serious effects on health and environment ;
(2) to report back to the Forty-sixth World Health Assembly” (A45/A/Conf. Paper No. 2; 9 May 1992).
The General Committee decided, however, not to include “this item” on the agenda (WHA45/1992/REC/3: Forty-fifth World Health Assembly, 1992, Summary Records and Reports of Committees , pp. 4–5). The reason for this was clearly explained by Mr. Piel, Legal Counsel, in a statement made in the 12th plenary meeting on the following day, 13 May 1992, which was worded as follows :
“The reasoning … had to do with a number of factors, including some serious concerns about the mandate of WHO … Whether the use of nuclear weapons is legal or illegal is a question that does not so readily fit the 22 constitutional functions of WHO under Article 2 or the 13 Health Assembly functions under Article 18.
… … … … … … … … … . .
[I]n order to obtain an advisory opinion, the problem must be real, i.e., related to genuine potential controversy and not mere speculation or intellectual interest.
As Legal Counsel … I have to share with you my grave concerns about this question of mandate and competence of WHO. My considered opinion is that the matter is too complicated, and risks serious embarrassment and overlap within the United Nations system for the Health Assembly to decide on the matter this year. Therefore, I would suggest that you consider not adding this supplementary item to the agenda of your Health Assembly at this time.” (WHA45/1992/REC/2 : Forty-fifth World Health Assembly, 1992, Verbatim Records of Plenary Meetings , p. 223.)
7. The inclusion of item 32 on “Health and environmental effects of nuclear weapons” on the agenda of the following Forty-sixth World Health Assembly in 1993, as proposed by Nicaragua, Panama and Vanuatu (EB91/36), met with an objection at the Executive Board meeting on 29 January 1993. The Legal Counsel stated that
“he had received a letter on 22 December 1992 from the Office of the Under-Secretary-General in charge of Legal Affairs of the United Nations, agreeing that the United Nations itself was more suited to dealing with the question of the illegality of nuclear weapons”,
and he repeated his advice that “the illegality aspect should be referred to the United Nations” (EB91/1993/REC/2 : Executive Board, Ninety-first Session, Summary Records , p. 247). The Executive Board seems to have paid insufficient attention to the views of the Legal Counsel.
8. At the Forty-sixth Assembly in May 1993 the General Committee (1st meeting), upon the suggestion of the Executive Board, approved the inclusion of “Health and environmental effects of nuclear weapons” as agenda item 33 (WHA46/1993/REC/3: Forty-sixth World Health Assembly, 1993, Summary Records and Reports of Committees , p. xiii and p. 2).
Committee B had in hand, under this agenda item and together with the Director-General's report on “Health and environmental effects of nuclear weapons” (A46/30 : 26 April 1993), a draft resolution sponsored by the delegations of 21 States, i.e., Bahrain, Belarus, Bolivia, Colombia, Comoros, Cook Islands, Cuba, Kazakhstan, Kenya, Kiribati, Lithuania, Mexico, Namibia, Papua New Guinea, Republic of Moldova, Swaziland, Tonga, Uganda, Vanuatu, Zambia and Zimbabwe (WHA46/1993/REC/3 : Forty-sixth World Health Assembly, 1993, Summary Records and Reports of Committees, p. 257) — a text worded in exactly the same way as the eventual WHA46.40 .
When addressing the Committee at its 8th meeting on 11 May 1993, the Legal Counsel presented a negative view, just as he had done in the previous year. He suggested that “the task of deciding whether an advisory opinion on the ‘illegality’ issue was needed [should] be that of the United Nations General Assembly, rather than the Health Assembly”. In his view,
“[mjore urgently needed were further disarmament negotiations, culminating in a truly international convention covering all nuclear weapons, which would, of course, extend beyond the health mandate of WHO” (ibid., p. 258).
The delegates of Zambia, Mexico, Tonga, Vanuatu, Swaziland, Colombia, Zimbabwe and Namibia — which had themselves sponsored the draft resolution — together with the delegate of Barbados, all spoke in support of it (ibid., pp. 259–261).
On the other hand, the United States proposed that the draft resolution should be determined not to be within the competence of the WHO (ibid., p. 260) and this United States proposal was then supported by Denmark, speaking on behalf of the Member States of the European Community (ibid., p. 260), and by Austria and Senegal (ibid., p. 261).
9. The support given to the draft resolution was echoed by the delegates of certain non-governmental organizations who took part in the Assembly as observers. The International Physicians for the Prevention of Nuclear War believed that “WHO would be right to seek an opinion on the matter from the International Court of Justice and that [WHO] had the competence to do so”. In its opinion, “[WHO's] request to the Court might be the only opportunity the world health community would have to seek a solution to its greatest health problem” (ibid., p. 262). The World Federation of Public Health Associations informed the World Health Assembly at the 9th meeting that
“it had [itself] unanimously adopted a resolution on nuclear weapons and public health which, inter alia, urged the … World Health Assembly to request an advisory opinion from the International Court of Justice on the legal status of the use of nuclear weapons, so as to remove the cloud of legal doubt under which the nuclear powers continued their involvement with such weapons, as well as to provide the legal basis for the gradual creation of a nuclear-free world” (WHA46/1993/REC/3 : Forty-sixth World Health Assembly, 1993, Summary Records and Reports of Committees , p. 263).
10. The motion of the United States to propose that “the draft resolution should be determined not to be within the competence of WHO” was, as a result of a secret ballot, rejected by 62 votes to 38 with 3 abstentions (ibid., p. 264).
A negative attitude towards the draft resolution was once again voiced by the Legal Counsel at the 10th meeting when he asserted that
“[s]ince the question of the illegality of nuclear weapons did fall squarely within the mandate of the United Nations … it clearly fell within the mandate of the General Assembly to refer the question of illegality to the International Court for an advisory opinion”.
He stressed that “[f]rom a strictly legal point of view … it was not within the normal mandate of WHO to refer the ‘illegality’ issue to the Court” (ibid., p. 265). The Director-General himself also stated that “the content of the draft resolution posed some difficult problems” and recognized that “WHO should continue to study what was undoubtedly a major issue, but [that] collaboration was essential within the United Nations system in that regard” (ibid., p. 266).
11. The further amendment suggested by the United States “to maintain WHO's commitment to keeping the issue under review, while avoiding the difficulties to which referral to the International Court would inevitably give rise” (ibid., p. 266) met with objections from the delegate of Vanuatu, speaking as a sponsor of the draft resolution, and the delegates of Mexico, Zambia, Papua New Guinea, Tonga, Libya and Uganda but was supported by Finland (ibid., pp. 266–268). Senegal maintained a somewhat reserved position on the draft resolution (ibid., p. 267).
It is noted with particular interest that, with regard to the financial cost which might be incurred in bringing a request to the Court, the delegate from an NGO, the International Physicians for the Prevention of Nuclear War, said that
“[the organization itself] as well as a number of other organizations with worldwide membership, would assist WHO in its initiative by raising extrabudgetary funds, should the Committee adopt the resolution before it” (ibid., p. 268).
The United States amendment was rejected by 60 votes to 33, with 5 abstentions.
The further appeal by the United States that a decision on the amendment should be reached by a two-thirds majority was also rejected by 64 votes in favour to 31 against, with 2 abstentions (WHA46/1993/REC/3 : Forty-sixth World Health Assembly, 1993, Summary Records and Reports of Committees , p. 268).
The original text of the draft resolution tabled before Committee B was approved by 73 votes in favour to 31 against, with 6 abstentions (54 States were absent) (ibid., p. 268). Australia, New Zealand and Sweden indicated that they had abstained from voting on account of the WHO's lack of competence to take such an action (ibid., p. 269).
12. It is extremely important to note that at the Committee level the discussions between the sponsoring States and the opposing States were exclusively focused upon the issue of whether the proposal for requesting the Court's opinion should be adopted, as being within the competence of the WHO. The questions of substance to be put to the Court — which naturally had legal or political implications — were not, however, subjected to any discussion by the delegates and were not elaborated upon.
13. At the 13th plenary meeting on the following and closing day of the Forty-sixth Session of the Assembly, that is, on 14 May 1993, and taking up the report of Committee B, the plenary dealt with the resolution entitled “Health and environmental effects of nuclear weapons”. The United States delegate expressed his dismay that many speakers had chosen to disregard the advice of the Legal Counsel of the WHO and he called for the plenary session to overrule the decision of Committee B (WHA46/1993/REC/2 : Forty-sixth World Health Assembly, 1993, Verbatim Records of Plenary Meetings , p. 273).
The United Kingdom gave support to the United States, saying that
“[w]e share the belief of WHO's own Legal Counsel … that this matter is not within the competence of WHO … A reference to the International Court of Justice is, in any case, a pointless and expensive, and a disruptive exercise.” (Ibid., p. 273.)
France expressed its intention of voting against the draft resolution and stated :
“the French Government considers that the World Health Assembly is not the appropriate forum to deal with such a subject, which has purely political connotations. My delegation deeply regrets that the work of the Assembly, which has such important implications for the health of the world's peoples, should have been disturbed and delayed by political considerations which were quite out of place. ” (Ibid., p. 277.) [Translation by the Registry.]
On the other hand, the delegates of Mexico, Vanuatu, Zambia, Tonga and Colombia, which were the original sponsors of the draft resolution, took an opposite position (WHA46/1993/REC/2 : Forty-sixth World Health Assembly, 1993, Verbatim Records of Plenary Meetings, pp. 274–277).
The Legal Counsel then spoke again, saying that “it is not within the normal competence or mandate of WHO to deal with the lawfulness or illegality of the use of nuclear weapons” (ibid., p. 278). He stated that “the ultimate fundamental issue is one of mandate and competence” and considered that it was “not the legal mandate of WHO to deal with the lawfulness issue or refer it to the International Court of Justice” (ibid.). The Director-General implicitly expressed his reluctance by stating :
“We shall continue to operate within our mandate as a technical agency and a cooperative of Member States, mandated to act as the directing and coordinating authority on international health work.” (Ibid., p. 279.)
14. A vote on the matter of whether a secret ballot should be held was taken and the result was 75 votes in favour, 33 against, with 5 abstentions. The result of a vote on the draft resolution was 73 votes in favour, 40 against, with 10 abstentions (41 States were absent) (ibid., p. 282). The draft resolution was thus adopted on 14 May 1993, obtaining only 73 votes from among 164 member States.
As the vote had been taken by secret ballot, the President did not allow any State to express its position on the voting beforehand ; however Australia, New Zealand, Canada and the Netherlands repeated after the voting that the question of the legality of the use of nuclear weapons and the referral of this question to the International Court of Justice was clearly outside the mandate of the WHO (ibid., pp. 282–283).
15. The adoption at the Forty-sixth World Health Assembly in 1993 of the resolution whereby the Court was asked to give an opinion was explained at the recent oral hearings (30 October 1995) before the Court by Mr. Vignes, who was re-appointed to the position of Legal Counsel after the Forty-sixth Assembly (after having previously served as Legal Counsel at the time of the earlier WHO advisory case in 1980), and who made the following statements :
“[T]his question is unprecedented. It is without precedent in dealing for the first time with an aspect never previously considered by the World Health Organization and not dealt with in any of the reports presented by the Director-General. The issue is now no longer simply one of the ‘effects of the use of nuclear weapons”, but henceforth centres on ‘the lawfulness of the use of nuclear weapons’.
Why and how had this new aspect been raised ? It is hard to say. But it would none the less seem, from a reading of the discussions, that besides the Governments which had asked for the item to be included in the agenda, and the co-authors of the draft resolution, at least two non-governmental organizations had been involved in its preparation … Furthermore, it would seem that the failure at that time — but this is obviously no longer the case — of attempts to get the … General Assembly to request an advisory opinion also played some part.” [Translation by the Registry.]
We cannot shut our eyes to interpretations given by the competent officials of the Organization.
∗ ∗ ∗
16. Not only does the WHO lack the competence to submit a request for advisory opinion to the Court on the above-mentioned question, which appears not to arise “within the scope of [its] activities” as the Court found in its Opinion, but it also seems to be clear from the records of the Forty-fifth and Forty-sixth World Health Assemblies for 1992 and 1993, respectively, that resolution WHA46.40 was initiated by a few NGOs which had apparently failed in an earlier attempt to get the United Nations General Assembly to request an advisory opinion on the subject.
The Court should have fully noted the fact that, while resolution WHA46.40 was certainly adopted by the majority of the World Health Assembly, this was in spite of strong objections not only from a number of States but also from the Legal Counsel of the Organization, who was fully aware of and actually asserted the Organization's lack of competence to request an advisory opinion of the Court.
(Signed) Shigeru Oda.
Dissenting Opinion of Judge Shahabuddeen
1 The reason for my dissent is that, in my respectful view, the Court's decision proceeds on a mistaken appreciation of the question presented by the World Health Organization (WHO). In the result, due effect has not been given to the distinction between preliminary issues and the merits, as the distinction applies in relation to the question which has been asked : the ground of the Court's preliminary holding which led to its decision not to give the requested advisory opinion belongs to the merits. That ground is less a reason for not answering the question than an answer to it; no further finding needs to be made in order to provide an answer.
2 First, as to the meaning of the WHO's question. Contrary to an impression which could be created by the title of the case, it has not been contended that it is “within the scope of [its] activities”, within the meaning of Article 96, paragraph 2, of the Charter , for the Organization to address the question of the legality of the use of nuclear weapons as a matter standing by itself, or, as the Court puts it, to seek “an opinion on the legality of the use of nuclear weapons in general” (Advisory Opinion, para. 28). The reference in the question to “international law” does not suffice to suggest an intention to raise an issue unconnected with the responsibilities of the WHO.
3 The Court could, I think, place a more reasonable interpretation on the question. As is indicated by the opening reference to “the health and environmental effects”, the WHO is not asking whether the use by a State of nuclear weapons in war or other armed conflict would be a breach of its obligations under some branch of international law unrelated to the scope of the Organization's activities, but only whether such use would be a breach of the obligations of the State under international law in so far as it would also be a breach of its obligations under the Constitution of the Organization . The Court has, I think, too lightly dismissed the references in the question to “the health and environmental effects” and to “the WHO Constitution”.
4 In essence, the WHO's question is grounded in the specific issue whether the use of nuclear weapons by a member State would give rise to a breach of its obligations both under international law and under the Constitution of the WHO , and not, as the Court considers, in the more general issue of the legality of the use of nuclear weapons considered apart from the question whether such use would also constitute a breach of the State's obligations under the Constitution of the WHO.
5 Second, as to the competence of the WHO to ask for an advisory opinion as to whether some specified conduct of a member State (in this case, the use of nuclear weapons) would breach its obligations under the Constitution of the WHO .
6 The Court correctly holds that the duties of the WHO in relation to any situation do not depend on the legality of the causes producing that situation. Thus, in order to determine what are its functions in relation to a given situation, the WHO is not justified in requesting an advisory opinion on the subject of the legality of the causes which produced the situation. The WHO would have to deal with the resulting situation regardless of whether or not the State which produced it did so in breach of its obligations under the Constitution of the Organization . A different question is whether, in order to determine what are the rights and obligations between itself and a member State, the WHO has competence to request an advisory opinion as to whether, in producing a situation calling for action by the WHO, that member State may have breached its obligations under the Constitution of the WHO. Is the WHO competent to request an advisory opinion as to whether there is such a breach ?
7 In the course of carrying out its activities, the WHO can be confronted with the constraining effects of the conduct of a member State. If that conduct constitutes a breach by that State of its obligations under the Constitution of the WHO , the latter could take or initiate appropriate remedial measures to remove any resulting impediment to the carrying out of its activities. Hence, a legal question as to whether there has been such a breach can arise “within the scope of [WHO's] activities“.
8 The WHO can consequently present a question to the Court, as it is doing, as to whether some specified conduct of a State (in this case, the use of nuclear weapons) would be a breach of its obligations under the Constitution of the Organization .
10 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 ?
11 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.
12 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.
13 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.
14 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.
15 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).
16 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 16 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 Electricity 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. 44–46, 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).
17 The conclusion reached above is that the WHO can present a question to the Court, as it is doing, as to whether some specified conduct of a State would be a breach of its obligations under the Constitution of the Organization . The suggested obligations may not exist and thus there may not be a breach of any obligations. This would mean that, on the merits, the answer to the question is “No” ; but this would not affect the competence of the WHO to ask the question.
18 The implication of the Court's decision is that member States do not have an obligation under the Constitution of the WHO not to use nuclear weapons. It follows that the use of such weapons by a member State would not “be a breach of its obligations under international law including the WHO Constitution”, to use the terms of the question as construed above.
19 This means that the Court is giving an answer to the question asked by the WHO ; it is not really declining to answer the question. The reader of the Court's decision would not think that the Court needs to do anything more in order to provide an answer. Whether the Court answers in the negative or in the affirmative, expressly or impliedly, correctly or incorrectly, it can only answer by presupposing that the WHO has the competence to ask the question. This is what the Court denies. I am respectfully of another view.
(Signed) Mohamed Shahabuddeen.
Dissenting Opinion of Judge Weeramantry
(iii) Emergencies (Art. 2 (d))
1 It has been argued that the question asked by the World Health Organization (WHO) travels outside its legitimate concerns. The Court has accepted that argument. I respectfully dissent.
2 The question on which WHO seeks the Court's opinion is as follows:
“In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution ?”
3 I read this question as containing an enquiry in relation to State obligations in three particular areas:
(a) State obligations in regard to health;
(b) State obligations in regard to the environment; and
(c) State obligations under the WHO Constitution .
4 This opinion will endeavour to show that the question asked is directly within WHO's legitimate and mandated area of concern. It relates to an issue fundamental to global health. It relates to the integrity of the human environment which is fundamental to global health. It relates to the fundamental constitutional objective of WHO, which is the attainment by all peoples of the highest possible level of health.
5 Global health is central to the question, just as global health is central to the concerns of WHO. Health issues may have political or legal overtones, as they often do, but such overtones do not lift them out of the category of health issues; and health issues are the central concerns of WHO.
6 Moreover, the Court's ruling has significance for other specialized agencies as well, who may in the future desire to invoke the Court's advisory jurisdiction on matters of importance to them in the discharge of their functions.
7 It will be noted that the International Court of Justice has not thus far refused to render an advisory opinion requested of it by any organ or agency of the United Nations which has been given authority to seek an opinion from the Court. It is important therefore that when such a request is declined for the first time in the Court's jurisprudence, the reasons for so declining must be compelling. The consistent jurisprudence of this Court to this effect is reflected in a stream of decisions 1 , which the Court cites with approval in its Opinion responding to the General Assembly's request concerning the legality of nuclear weapons.
1. The Genesis of WHO's Request
8 It appears from the report of the Director-General of the World Health Organization (doc. A46/30 of 25 April 1993) entitled “Health and Environmental Effects of Nuclear Weapons”, which has been furnished to the Court, that the reference to the Court was proposed by Vanuatu, Ecuador, Panama and Mexico for the agenda of the Forty-sixth World Health Assembly.
9 Vanuatu explained its co-sponsorship of the resolution in terms of its commitment to the health of the international community, in the context of its own health-related experiences of nuclear weapons. As one of many thousands of small islands scattered in the Pacific, it claimed it had suffered as a result of nuclear activity in the Pacific commencing in the 1950s, in that its people were facing many complicated health issues which they did not have the expertise to diagnose, or the resources to treat. According to its representative, increases in leukaemia, in cancer, in fish poisoning, and in skin diseases were common; the food chain, the water and the ecosystem had been contaminated; miscarriages were common, and grotesquely deformed babies were being born 2 .
10 Tonga, another supporting member, referred to Article 1 of the WHO Constitution and related the enquiry to the constitutional functions of WHO as listed in various parts of Article 2 of its Constitution 3 . Other members also addressed the Assembly. The matter had been debated earlier in Committee B of the Assembly, where it had been fully discussed, with over a hundred delegates taking part.
11 At the Assembly, strong objections were raised to the reference by, among others, the United Kingdom, whose representative asserted that this action was not within the competence of WHO, and characterized it as a “pointless and expensive, and a disruptive exercise” 4 ; by the United States, whose representative stressed that “This resolution would inject the World Health Organization into debates about arms control and disarmament that are the responsibility of other organizations in the United Nations system …“ 5 ; by France, whose representative thought that the Assembly was not the appropriate forum to deal with a subject with purely political connotations 6 ; and by Russia, whose representative stated that the resolution went beyond the competence of WHO, and would lead to politicization and involvement of the organization in the problem of disarmament, without its having a proper perspective on the matter 7 .
12 WHO's legal counsel then took the floor to advise the Assembly. His advice was as follows:
“The question of health and health-related environmental effects of nuclear weapons falls squarely within the mandate of WHO as a technical agency. The question of whether the use of nuclear weapons by a State would be contrary to the spirit and objective of WHO and, as such, a violation of the Constitution of WHO , is also within the mandate and competence of this World Health Assembly. It is not within the normal competence or mandate of WHO to deal with the lawfulness or illegality of the use of nuclear weapons. In consequence, it is also not within the normal competence or mandate of WHO to refer the lawfulness or illegality question to the International Court of Justice.” 8
13 As already observed, the WHO question was not framed in terms of lawfulness or illegality in general, but in terms of State obligations in relation to health, the environment and the WHO Constitution .
14 The matter turned out to be so sensitive that it was proposed that the voting be by secret ballot. 75 votes were received in favour of a secret ballot, 33 against and there were 5 abstentions. The matter was then voted upon by secret ballot, with the following result:
“Members entitled to vote, 164; absent, 41 ; abstentions, 10; papers null and void, O; number of Members present and voting, 113; number required for a simple majority, 57; number of votes in favour, 73; number of votes against, 40.” 9
15 Thereafter the General Assembly, in its resolution 49/75 K of 15 December 1994 (by which the Assembly itself requested an opinion of the question of the legality of nuclear weapons), welcomed the resolution of the Assembly of the World Health Organization to seek an advisory opinion from the Court.
2. The Court's Advisory Jurisdiction
17 The entitlement of specialized agencies, who have been admitted to this privilege to seek an advisory opinion from the Court in relation to matters arising within the scope of their activities, is an important constitutional right which they enjoy.
18 Advisory jurisdiction was an innovation in international adjudication, adopted not without difficulty 10 after World War I. The right to seek an opinion was initially given only to the Council and the Assembly of the League of Nations. After World War II, the San Francisco Conference approved the patterns of advisory practice as they had evolved, but the circle of those entitled to seek it was extended. The United Nations family of organizations today is widely expanded, closely knit, and works together, in developing areas of international activity, within the framework of the international rule of law. While each of these organizations has its specific functions, they all interlock in the common service of the ideals of the United Nations and they all operate under the common aegis of international law. Though each of them is given a particular sphere of activity, they do not necessarily function in closed compartments, for the complex nature of United Nations activities may often result in overlapping areas of interest. The work of one organization may interweave with that of other organizations, and hence would have repercussions on the work of other members of the United Nations family.
19 An important role assigned to the Court in this network of interrelated activity, under the aegis of international law, is the grant of advisory opinions on matters of law to assist authorized organizations in the United Nations system who may need it. This represents an important part of the contribution the Court can make as a member of the United Nations family of organizations, all pursuing the common objectives of the United Nations, each in its different ways. It is, inter alia, a means of ensuring a clearer understanding of the principles of international law relating to their work.
20 The right of such organizations to seek an opinion from the Court is a hard-won right and is valuable, both to each organization in particular, and to the United Nations system in general. This right therefore needs to be carefully conserved from the standpoint of assisting these organizations in the discharge of their duties, from the standpoint of the development of international law, and from the standpoint of ensuring the smooth interrelationship of these organizations within the family of United Nations organizations.
21 The Court's consciousness of its role in assisting the United Nations in this respect through the Court's advisory jurisdiction has been manifested in its prior jurisprudence. For example, in the case concerning Interpretation of Peace Treaties , the Court observed that:
“the reply of the Court, itself an Organ of the United Nations', represents its participation in the activities of the Organization, and, in principle, should not be refused” (I.C.J. Reports 1950, p. 71).
22 A refusal by the Court to grant an opinion at the request of a specialized agency authorized to request one is therefore fraught with farranging implications. The first such refusal in the history of this Court could well affect the readiness of other specialized agencies to approach the Court, even on a matter relating to their own Constitutions.
23 This becomes particularly important when decisions are involved which may have political overtones, or else different organizations may, in case of doubt, tend to go their different ways on the basis of the dominant political influences playing upon them rather than on the basis of international law. As this Court observed in a previous Advisory Opinion sought by WHO:
“Indeed, in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate, especially when these may include the interpretation of its constitution.” ( Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, I.C.J. Reports 1980, p. 87; emphasis added.)
24 The reference already made to the history of this request indicates the deep divisions of opinion that operated within WHO, on a politically sensitive issue. It is precisely on such matters that great value attaches to the right to seek an independent opinion based on international law, rather than on the varying political perceptions of parties.
25 The Court is of course entitled to refuse a request for an advisory opinion for cogent reasons — and indeed should so refuse if cogent reasons be present. However, in their absence, there is created a climate of uncertainty in the relevant area, which can result in a diversity of interpretations on the same legal question. This does not augur well for the concept of their all functioning harmoniously under a common mantle of international law.
26 WHO seeks this opinion to assist it in the discharge of one of its weightiest responsibilities. It is the organ responsible for the planning of the worldwide medical services which can be offered to the world's population in relation to the various health hazards that will confront it from time to time. A nuclear attack is one such health hazard and perhaps the most awful of them all; and WHO will be called upon to bear the brunt of the international responsibility for organizing medical assistance to stricken populations after a nuclear attack — not only in the belligerent countries, but also in the neutral countries (all Member States of the United Nations) who would suffer dire consequences in a war to which they are not parties. In view of the health and environmental effects of nuclear weapons, WHO seeks information from the Court regarding State obligations under international law in relation to health, in relation to the environment, and in relation to the WHO Constitution .
27 I believe that the Court's refusal to grant an opinion is based upon restricted principles of treaty interpretation. The present application requires, rather, a construction of WHO's statute in the light of its object and purpose. Its overall purpose is “to promote and protect the health of all peoples” — an objective which all the nations subscribing to the WHO Charter have recognized in the opening words of that Constitution to be basic to the security of all peoples. A literal construction of WHO's Constitution, so as to deprive it of an advisory opinion on the legality of a serious threat to global health, is not in accordance with the spirit of WHO's Constitution, or the purposes of the Court's advisory jurisdiction.
3. The Requisites to Be Fulfilled
28 I begin by stating my agreement with the Court in regard to the three conditions to be fulfilled to enable a specialized agency to make a request for an advisory opinion. They are that the agency must be authorized to request advisory opinions, that the request must be in respect of a legal question, and that this question must arise within the scope of its activities.
29 I believe that in the present case all three conditions are satisfied. I agree in principle with the Court's treatment of the first and second requisites, which it is therefore not necessary to consider in this opinion. I agree in particular with its observations that the presence of political aspects in the question referred to the Court cannot suffice to deprive it of its character as a legal question (Advisory Opinion, para. 16), and that the political implications are of no relevance in this respect (ibid., para. 17).
4. The Question Posed by WHO, Compared with the Question Posed by the General Assembly
31 There is a substantial difference between the question posed by WHO and that posed by the General Assembly. Both organizations raise issues of vital importance and both equally call for the most careful consideration, but it would not be correct to treat the questions posed by the two bodies as though they raise the identical issues.
32 The WHO question, as already noted, is as follows:
“In view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution ?”
33 The General Assembly question reads:
“Is the threat or use of nuclear weapons in any circumstance permitted under international law?”
34 The following differences appear at once in the phraseology of the two questions:
(a) the WHO request relates to use only;
(b) the WHO request is cast in terms of State responsibility;
(c) the WHO request concentrates on health and environmental effects;
(d) the WHO request is limited to use in war or other armed conflict;
(e) the WHO question is cast also in terms of obligations under the WHO Constitution ;
(f) the WHO question raises the issue of specific State obligations visa-vis health and the environment, and of any conflict between these and the use of nuclear weapons.
35 It will be seen that the WHO question is carefully drafted, in conformity with the health concerns of WHO as contrasted with the broader concerns of the General Assembly. The question concerns itself with actual use (and not threat of use), with State responsibility (rather than the broader question of illegality under international law), with health and environmental effects (which are the proper sphere of concern of WHO), with use in war or other armed conflict (and not, again, with the status of nuclear weapons generally), and with obligations under the WHO Constitution (which is manifestly a matter of concern to WHO).
36 WHO's question shows awareness of the need to confine its attention to questions arising within the scope of its activities, as required by Article 96 (2) of the United Nations Charter , and to questions “arising within the competence of the Organization”, as specified in Article 76 of the WHO Constitution . In conformity with these provisions, it did not traverse the whole ground of illegality, but made a very specific enquiry. The question was set in the framework of actual use, which produces medical consequences, and did not enter the theoretical area of threats. It homed in on health and environmental effects, which are its undoubted areas of concern. It sought a legal opinion on the interpretation of its own Constitution which, in my view, it cannot in any event be denied. Unless there are compelling reasons to take an opposite view, an enquiry by WHO, set within the framework of health and environment and of its own Constitution, seems directly related to its mandate and its functions and seems eminently to be a question on which, in the event of uncertainty, WHO is entitled to seek an opinion from the Court.
37 As already observed, there are three specific segments of WHO's enquiry which call for particular attention -State obligations in regard to health, in regard to the environment, and in terms of WHO's Constitution .
38 These require the Court to enquire with some degree of particularity into the effects of nuclear weapons on health and on the environment.The general awareness that nuclear weapons damage both health and the environment is insufficient for this purpose. A more precise examination is required of the facts.
39 The next stage of the enquiry is to consider current international law relating to each of the three heads of obligation set out above.
40 With the factual and legal material thus placed in juxtaposition with each other, a clear picture will be obtained as to whether there are conflicts between State obligations and the results produced by the use of the weapon. The ensuing discussion will proceed on this basis.
41 The Opinion of the Court nowhere examines the nature of State obligations in regard to health and the environment under international law in general, nor does it examine those obligations in terms of the WHO Constitution . In my view, it was necessary for the Court to undertake this examination in order to decide whether or not this enquiry falls within WHO's legitimate areas of concern.
42 Moreover, the Court does not focus its attention precisely on the terms of WHO's question, but addresses, rather, the question of general legality or illegality of the use of nuclear weapons. This takes the discussion further away from the immediate concerns of WHO, as reflected in its carefully worded question, and nearly equates it to the question of general illegality asked by the General Assembly. Had the Court proceeded on the basis of an examination of State obligations regarding health and the environment under international law and under the WHO Constitution , it would have been more apparent how closely these were related to the work of WHO.
5. WHO's Presentation of its Request before the Court
45 The reply to the first question was in the affirmative, and the reply to the second reflected this divided attitude within WHO 11 .
46 There is no requirement now, as there was in the days of the League of Nations, that a request for an advisory opinion should be based upon a unanimous vote. That requirement was left behind after World War II and, as Rosenne observes, “In the United Nations, the unanimity rule has been completely abandoned …” 12 . What we have here is a deliberate decision democratically taken by a large majority in WHO to seek an opinion. That must be taken to be the decision of WHO and acted upon as such. The different view held by a minority, whoever they may be, does not make the request to the Court any the less a request by WHO, considered as a whole.
47 Speaking for myself, I would have appreciated a fuller and ampler presentation, based upon the rich material which was formally placed before the Court by WHO.
48 WHO's representative observed that WHO's attitude in its presentation:
“has never prevented it — and will never prevent it — from being profoundly concerned by the sufferings of people, nor from doing everything within its power to improve their ‘level of health’ ” (CR 95/22, p. 32).
49 He submitted further that:
“Neutrality does not signify indifference. Neutrality here is the neutrality of Henri Dunant on the evening of the battle of Solferino, who, regardless of the merits of the belligerents' dispute, was overwhelmed by the suffering and devastation that the fighting had caused.” (CR 95/22, p. 22.)
The Organization's neutrality did not therefore mean that it took no interest in the health-related effects of the use of weapons. The comparison with Dunant scarcely matches the situation of WHO. The neutrality of Dunant was a neutrality between two warring States. That great humanitarian was concerned only with the sufferings of the victims and not with the merits of the dispute. There are no hostile parties involved in this request for an opinion — only member States of WHO, all of them equally committed to the pursuit of global health — a cause to which they have all without distinction committed themselves by being parties to WHO's Constitution .
50 Unlike the warring nations at Solferino, the member States of WHO are at peace with each other, genuinely pursuing through their common organization their common objective of global health. Those nations, by a large majority, have decided to seek an advisory opinion from this Court. That decision needed, in my view, to be implemented in the spirit as well as the letter, and not in a spirit of neutrality.
6. Two Levels of WHO's Involvement
51 There are two broad positions that can be taken regarding WHO's interest in the matters on which the Court's opinion is sought.
52 One position is that nuclear weapons are so devastating that thereafter all medical treatment is meaningless. The preventive ethic, which is part of the medical enterprise, then comes into play and one needs to examine WHO's interest in prevention.
53 Those who argue in terms of limited nuclear war tend however to deny the proposition of total devastation, for they seek to equate the use of nuclear weapons as far as possible to the use of conventional weapons. In that event, one must go further and ask what services WHO can prepare itself to provide after a nuclear attack.
54 The utility to WHO of an opinion from the Court must therefore be examined at both levels, if proper consideration is to be given to both points of view:
(a) the futility of medical services after a nuclear attack, in which case the emphasis must be on prevention; and
(b) preparedness to deliver medical services after a nuclear attack, in which case WHO must direct its attention to such matters as planning, medical equipment, and research and training in radiation injuries.
55 Another factor to be borne in mind in this regard is that even on the supposition that both parties to the nuclear exchange are completely destroyed, the question will still remain of damage to non-combatant States. Urgent medical services will be required on the peripheries of the nuclear devastation — perhaps in countries hundreds or thousands of miles away from the belligerents. WHO has a constitutional responsibility towards them no less than to the belligerents and must be prepared to render what assistance it can.
7. WHO's Constitutional Responsibilities in Regard to Public Health in General
56 It is well accepted that public health concerns itself not merely with cure, but also with prevention and planning and the provision of technical assistance and aid in emergencies (vide Art. 2 (d) of WHO Constitution ). No one would deny that WHO must warn of the medical dangers of foreseeable emergencies (Art. 2 (r) ), or that it should concern itself with regulations (Art. 2 (k) ) governing activities that spread disease, such as travel from the infected area or transport of infected foodstuffs. It must co-ordinate arrangements for the necessary nutrition and sanitation (Art. 2 (i) ) when an epidemic occurs. It must evaluate the probabilities of an outbreak and must plan for them (Art. 2 (p) ). These obligations of planning and prevention (see Art. 2 (p)) become all the more compelling when the disease is incurable. These general obligations apply to WHO's activities, whatever the source of danger to health — whether resulting from sanitational, nutritional, epidemiological or military sources.
57 It may be noted in this connection that the Court itself observes, in paragraph 21 of its Opinion, that:
“the provisions of its Article 2 may be read as authorizing the Organization to deal with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in”.
58 I would agree, respectfully, with this view, and many of the areas of relevance to the WHO Constitution outlined in this opinion proceed on that basis. However, the preventive function of WHO is not limited to providing assistance after the event.
59 Each of the details set out in the next Part of this opinion, on health problems caused by the nuclear weapon, has a bearing upon the constitutional responsibilities of WHO in such areas as maternal and child health (Art. 2 (l) ), improving standards of teaching and training (Art. 2 (o) ); studying and reporting on public health from preventive and curative points of view (Art. 2 (p) ); providing information (Art. 2 (q) ), developing an informed public opinion (Art. 2 (r) ); promoting co-operation among scientific and professional groups (Art. 2 (j) ); making recommendations with regard to international health matters (Art. 2 (k) ); and furnishing practical assistance in emergencies (Art. 2(d) ). This list is by no means complete.
60 Health services perform only half of their function if they concern themselves only with curative procedures after disease has struck. They need also to explore two other areas — prevention before the disease strikes and advance planning against the eventuality of a sudden and perhaps massive outbreak. This is all the more so when the threatened damage to health is of an incurable or irreversible nature.
1. Prevention. There can be no argument concerning the wisdom of the ages that prevention is better than cure. This was so since the inception of medical science and must be so whatever the agency that damages health — be it a microbe which can kill tens of thousands or a nuclear weapon which can kill tens of millions. The topic of prevention is more fully dealt with in Section III.6 below.
2. Planning. There must be planning in advance for handling the medical emergency, if prevention is not possible. WHO can summon global medical resources as no other organization can. How many nurses and doctors should be available, what stock of painkilling and damage-limiting drugs should be kept in readiness, how many hospital beds and how much equipment? How should the populace be informed and educated regarding immediate precautionary measures that can lessen the chances of agonizing suffering, of the formation of cancers and keloids, and even help in prolonging life? A domestic medical service that fails to provide prevention and planning would fail dismally in the discharge of its responsibilities. An international medical service that focuses its attention only on cure after the event and neglects prevention and preparation, would be a no less dismal failure. Indeed, the responsibility for prevention and planning would rank even higher, with a service that carries global responsibility — a service of last resort so to speak, for the world has no higher medical service to turn to when domestic systems fail. The copious medical material placed before the Court provides the background to the WHO request.
II. Effects Of Nuclear Weapons On Health
1. Overview of the Effects of Nuclear Weapons on Health
61 This survey commences with a brief overview, and follows with a more detailed examination of the material placed before the Court by WHO.
62 The legal counsel of WHO has given the Court an overview of the health-related effects of the use of nuclear weapons. In a presentation not disputed by any States appearing before the Court, he drew attention to the threefold immediate effects of nuclear explosions — mechanical, thermal and radioactive. While the first two differ quantitatively from those resulting from the explosion of conventional bombs, the third is peculiar to nuclear weapons. In addition to instantaneous radiation, there is also radioactive fallout. Further, the explosion generates an electromagnetic pulse which disrupts electronic devices, including those needed for health services. Over and above this, there are longer-term effects caused by ionizing radiation acting on human beings and on the environment.
63 WHO has collected a large amount of data from the 1945 bombings and also from an analysis of tests and mathematical models. It has also taken into account information obtained after nuclear accidents, such as those at Kyshtym, Rocky Flats and Chernobyl.
64 This information reveals inter alia that radiation overexposure suppresses the body's immune systems and increases victims' vulnerability to infection and cancers (CR 95/22, pp. 23–24).
65 Other effects upon health which were referred to by the WHO representative are the increase in genetic defects, the psychological traumas which continue to be noted among the survivors of Hiroshima and Nagasaki, and the effects of ionizing radiation on the crops, the food chain, livestock and the marine ecosystem.
66 As observed by the WHO representative:
“Obviously a specialized agency whose purpose, as laid down in Article 1 of its Constitution, is the ‘attainment by all peoples of the highest possible level of health’ could not ignore such a topic, and this was the case well before the request for an advisory opinion was transmitted to the Court in 1993.” (CR 95/22, p. 24.)
67 An international group of experts was set up to investigate the effect of nuclear war on health and health services. After their report was received, the Director-General set up a management group to consider the implications of the report. When the management group's report was presented, the Chairman of the group observed that, while long-term effects were worrying, “the immediate effects were utterly staggering” (CR 95/22, p. 28).
68 Reference should also be made to the testimony of the Mayor of Hiroshima to the effect that medical treatment after Hiroshima was a matter of groping in the dark, with hospitals in ruins, medical staff dead and a lack of drugs and medicines, all of which caused an incredible number of victims to die without sufficient treatment.
69 WHO has analysed the effects of nuclear weapons on health in its Report, Effects of Nuclear War on Health and Health Services 13 , under two heads — “Health Problems in the Short Term” (Ann. 6) and “Intermediate and Long-Term Health Effects” (Ann. 7). A perusal of these annexes demonstrates very clearly WHO's grave concerns and legitimate interests in the aspects of prevention and planning.
70 It is necessary to outline these facts and findings briefly, as that is the setting in which the WHO request has been brought to this Court. To consider the functions of WHO in the abstract, on the basis of formal constitutional provisions read apart from their medical and factual context, would be an academic exercise not sufficiently related to the dire medical realities which WHO must face, as the only organization which is under a duty to co-ordinate global medical assistance in this fearsome eventuality. As this Court observed in Barcelona Traction , it is important not to “lose touch with reality” in considering a legal question (Barcelona Traction, Light and Power Company, Limited, Second Phase, I. C.J. Reports 1970, p. 37).
2. Health Problems in the Short Term
(i) Heat. The enormous thermal energy released by thermonuclear explosions, rather than blast, will be the major cause of casualties. The direct thermal pulse or thermal wave would cause immediate charring of exposed parts of the body in the direct line of the thermal rays. Flash burns would occur within fractions of a second and reach their maximum within a few seconds. Indirect burns would result in many more casualties.
The danger of immediate burn injuries becomes apparent when one considers that a single one-megaton air burst could ignite combustible material within a radius of 5–15 km depending on the clarity of the atmosphere. With usual weather conditions this radius would be around 12 km. Simultaneous fires breaking out within this area would probably coalesce into a superfire over an area of some 450 square kilometres. Air temperatures within the fire zone will exceed that of boiling water. The effect of such heat on the human body would be devastating.
(ii) Blast will cause shock waves, collapsing buildings and flying debris and individuals will be hurled into the air like projectiles. On contact with immovable objects, there would be head injuries, fractures, crush injuries and penetrating abdominal and thoracic wounds. A one-megaton air burst is capable of killing everyone within a radius of 7 km from the hypocentre.
(iii) Radiation effects, such as whole body irradiation, result from two sources — the immediate burst of gamma and neutron radiations or the radiation from fall-out of radioactive particles. Resulting injuries would be:
(a) gastrointestinal effects, including anorexia, nausea, vomiting, diarrhoea, intestinal cramps, dehydration;
(b) neuromuscular effects producing fatigue, fever, headache, hypertension and hypotensive shock.
In peacetime conditions some such cases would be survivable, with treatment which would include antibiotics, white blood cell or whole blood transfusions and 8 to 12 weeks of hospitalization. The WHO Report 14 states that following a nuclear war, such conditions of medical care would not be available. Even in cases where there are few or no symptoms, a late increase in cancers, particularly leukaemias, will occur.
As stated by a professor of radiology at the Sixth World Congress of the International Physicians for the Prevention of Nuclear War, radiation injuries include anorexia, cessation of production of new blood cells, diarrhoea, haemorrhage, damage to the bone marrow, convulsions, vascular damage and cardiovascular collapse 15 .
(iv) Inhalation of radioactive dust could cause acute effects leading to death and long-term effects such as fibrosis and cancer, permeability of the membranes of the alveoli (air sacs) with symptoms of coughing, shortness of breath and feelings of drowning — leading to death by hypoxia, pneumonia and sepsis. There is no means of prevention of this source of infection except wholesale relocation of populations.
(v) Ingestion. Among the radionuclides present in the fall-out, iodine-131 presents a special risk, especially to cancer of the thyroid. The effects of radioactive strontium and caesium will be apparent only later. These are dealt with under the long-term effects.
72 The WHO Report 16 points out that “the casualties incurred even in a so-called ‘limited’ nuclear exchange would be truly overwhelming”.
73 It states that the kinds of injuries cited are most demanding of medical resources. Burns of second or third degree involving 20 per cent of the body surface are generally regarded as fatal unless given intensive therapy with massive fluid replacement, sterile management, antibiotics, surgical care and general nursing, dietary and supportive care for periods of weeks in hospital, followed by lengthy rehabilitation. Even with today's sophisticated medical care, there would be considerable mortality 17 .
74 In these circumstances, WHO, as a body of experts, has no alternative but to direct its thoughts to prevention and planning for the minimization of injury and suffering when cure is impossible.
75 It is pointed out further that up to 80 per cent of physicians could well be casualties. With reference to a single megaton air explosion over a metropolitan area such as Boston with a population of 2,844,000, reference is made to a 1979 United States Arms Control and Disarmament Agency estimate of 695,000 direct fatalities and 735,000 surviving injured. Of the 12,816 hospital beds in Boston, at the date of that investigation, around 83 per cent were expected to be destroyed, leaving 2,135 beds and a heavily depleted force of doctors and nurses for the care of 735,000 seriously injured survivors 18 .
76 According to another study, burn injuries, which are particularly painful, present special medical problems and require careful and specialized treatment 19 . Montreal, a city of 2 million people, had facilities (in 1983) for six severe burn cases. In the whole of North America, it was estimated that there were only 2,500 beds for serious burn cases. Yet a one megaton bomb exploding over Montreal would result in as many as 10,000 people requiring such facilities. Moreover, whatever facilities there are tend to be concentrated on the cities, and will themselves be destroyed.
77 Indeed, in all branches of medicine, the bulk of practising doctors tend to be within a few miles of the city — as in Quebec with 50 per cent of all practising physicians being within 5 miles 20 .
78 The total inadequacy of medical facilities to cope with nuclear war is graphically indicated in a study already referred to 21 . It reveals that after a major nuclear attack, even if medical resources remain substantially intact:
“The disparities are great: 273,000 available hospital beds compared to the 17.6 million needed; few burn beds, with 5.3 million needed; 15,000 intensive care beds, with 6.7 million required. Among essential personnel, 48,000 physicians may be confronted with the work of 1.3 million; or 150,000 registered nurses with that of 6.7 million; or 17,000 medical technologists with that of 450,000. If there are 14,000 units of whole blood available, for example, and 64 million units required, the problem of developing a credible medical response for the millions of surviving injured can readily be grasped.” 22
79 Even years before the WHO Report , many detailed studies had been made on the effects of nuclear war on health. For example, the Japanese Association of Doctors Against the A- and C-Bombs appointed an international commission of medical specialists to examine the biological effects of the radioactive fallout produced by United States nuclear tests in the Pacific in 1954. The Japanese fishing boat Fukuryu Maru was found to be contaminated while 80 miles outside the estimated danger zone. All 23 members of the crew showed symptoms of radiation disease and were found to have fissionable material in their organs. One of the crew died. The vessel was rendered radioactive, dust from it producing radiation sickness in animals and genetic effects in plants.
80 Fish caught in various parts of the Pacific, even eight months after the explosion, were found to be contaminated and unfit for human consumption. Crops in different parts of Japan were affected by radioactive rain The medical experts, who arrived unanimously at these conclusions, were drawn, inter alia, from Paris, East Africa, Berlin, Santiago, Czechoslovakia, Moscow and Mukden 23 .
81 It is little wonder that WHO seeks information on a question fundamental to prevention and planning — the question of State obligations under international law. Is this a lawful weapon of war? Is the use of such a weapon by a State a violation of the State's obligations under international law or under the WHO Constitution ? As the global coordinating authority for health work, it must plan for the nuclear contingency as part of its statutory duty. It is entitled to know the answer to this question. If it is to be held to its duties in terms of its Constitution, it must know the reciprocal duties of States in terms of that same Constitution. I cannot agree that they can be denied this basic information and, even more so, their very entitlement to seek it.
82 It is difficult to conclude that this is not their business. Rather, I would consider WHO to be neglectful of its responsibilities if it did not address this question.
83 Indeed, as is only to be expected, it has for years been turning its attention to this problem, and the reference to this Court for an opinion on the legal aspects is only a part, and a necessary part, of the much broader investigation it has engaged in for the purpose of discharging this aspect of its responsibilities. There is no material before this Court showing that any exception was ever taken to such investigations relating to nuclear weapons, which WHO has been conducting ever since 1966.
84 By way of analogy, in the field of chemical and bacteriological weapons, WHO has been pressing for prohibition “as a necessary measure in the fight for human health” ( WHA resolution 23.53 of 1970). No objection was raised relating to any alleged “intrusion” into the sphere of actual regulation. The current enquiry relates not to an attempt at regulation, but only to an enquiry for information. If WHO was not seen to be intermeddling outside its province when it asked for the actual prohibition of chemical and bacteriological weapons, it is difficult to see how it could be seen to be intermeddling when it merely asks for information regarding nuclear weapons.
3. Intermediate and Long-Term Health Effects
85 These conclusions, reached upon an analysis of the short-term effects, are strengthened even further upon an examination of the intermediate and long-term effects 24 .
86 Iodine-131, we are told, constitutes the greatest potential long-term hazard. Iodine-131 enters the body primarily by ingestion of milk. The route from bomb, to atmosphere, to grass, to cow, to milk, to man is described as surprisingly rapid, and milk with high concentrations of iodine-131 has been detected thousands of miles away from test explosion sites. The radioactive iodine concentrates in the thyroid gland, destroying thyroid tissue and producing late thyroid cancer 25 .
87 While iodine-131 has a half-life of only 8 days, strontium-90 and caesium-137 are nuclides with half-lives of 29 and 30 years respectively. The long delayed descent of global fallout does not therefore effectively reduce their potency. When they do descend, they are trapped in the superficial layers of the soil. They are taken up from there by plants which are eaten by animals. Through vegetables and meats, they are ingested by humans, both elements increasing the incidence of cancers. Once ingested, there is no rapid means of ridding the body of these carcinogenic elements 26 .
88 Strontium mimics calcium in the body and is deposited in bones and teeth, thus placing its radiation close to the highly sensitive bone marrow. Caesium accumulates in cells in close juxtaposition to nuclear DNA 27 .
89 Ionizing radiation impairs the function of the immune system, and virtually all elements of the immune system are affected by irradiation. Hard ultraviolet radiation also has an immuno-suppressive effect.
90 The long-term effects add to the pressure on WHO to turn its attention to prevention and planning to minimize human suffering 28 , even if no cure is possible.
91 The long-term effects range from after-effects of the injuries sustained to long-term effects of radiation exposure, and health problems resulting from the disruption and destruction of health services. They are conveniently summarized in the Report by the Director-General of WHO to the Forty-sixth World Health Assembly (doc. A46/30 of 26 April 1993). Survivors of nuclear explosions will be confronted with protracted non-healing wounds, suppurating extensive burns, skin infestations, gastrointestinal infections, and psychic trauma (ibid., para. 20).
92 A recognized consequence of radiation overexposure is the suppression of the body's immune system. Ionizing radiation, according to this Report, reduces the helper T-lymphocytes and increases the suppressor T-lymphocytes, thus increasing the victims’ vulnerability to infection and cancers (ibid., para. 21).
93 Survivors of the nuclear explosion and the populations of contaminated areas will be at risk of cancer induction and genetic damage, the risk varying with the dose received (ibid., para. 23) 29 .
94 Exposure to plutonium alpha particles produces chromosomal instability which can be transmitted to progeny, thus causing cancer in future generations (doc. A46/30 of 26 April 1993, para. 24). Also the effects of internal exposure from the inhalation or ingestion of radioactive materials is much greater than was originally thought (ibid.).
95 Further, with special reference to public health and sanitary facilities, it was pointed out that a nuclear explosion would destroy these, thus opening the way for the spread of disease. Water supplies would be contaminated not only by radioactivity, but also by pathogenic bacteria and viruses. Sewage treatment and waste disposal facilities would have almost completely disappeared (ibid., para. 29).
96 In addition:
“Great numbers of putrefying human bodies and animal carcasses as well as untreated waste and sewage would provide easy breeding ground for flies and other insects. Diseases like salmonellosis, shigellosis, infectious hepatitis, amoebic dysentery, malaria, typhus, streptococcal and staphylococcal infections, respiratory infections and tuberculosis would occur in epidemic form over vast areas.” (Ibid., para. 30.)
These are areas par excellence of WHO's constitutional concern and medical expertise.
97 Long-term effects on health through the disruption of the food supply on a regional or a global scale, resulting from environmental damage, is another important factor, impairing health and lowering resistance to disease. A multiple nuclear exchange could result in a nuclear winter, causing famine situations on a global scale.
4. The Appearance of Devastating Epidemics
98 The various glands and organs of the body that provide natural immunity against infection are, according to the writings on this topic, particularly sensitive to radiation. “When combined with social disintegration, this would invite the rapid spread of communicable diseases in unusually severe forms.” 30
99 Diseases such as plague, smallpox, cholera and typhoid fever, now largely relegated to the history books, which have been kept at bay by nutrition, sanitation and immunization programmes would reappear. Nuclear war would compromise those defences severely 31 , and in addition would lower the body's organic and glandular resistance to them.
100 The World Health Report 1996 , issued by WHO on 20 May 1996, warns that there is currently a devastating upsurge in infectious diseases caused inter alia by the weakening of people's immune systems 32 . The Report warns that, “We are standing on the brink of a global crisis in infectious diseases”, with 17 million deaths every year. Up to half of the 5.72 billion people on earth are at risk of many endemic diseases — old diseases such as tuberculosis and malaria which are resurgent, and deadly new diseases such as ebola, for which no cure is known. Diarrhoeal diseases such as cholera, typhoid and dysentery, caused by contaminated water or food kill millions every year. If this is so in the comparatively organized societies of today, the danger of uncontrollable epidemics after the social disintegration, the breakdown of sanitation systems, especially in cities, and the weakening of the immune system caused by nuclear war must be self-evident, and must surely be an important constitutional concern of WHO.
5. The Relevance of the Medical Material Placed before the Court
101 This brief summary of the material placed before the Court demonstrates:
(a) the futility of awaiting a nuclear catastrophe to move into action in relation to medical services;
(b) the incurability of most of the medical afflictions resulting from the bomb;
(c) the prospect of worldwide famine in the event of nuclear war, with its resultant disastrous effect on human health;
(d) the need to plan in advance for rapid emergency services and supplies in such an eventuality;
(e) the need to plan in advance for public education, medical research, medical education;
(f) the need to understand what precisely are the obligations of States under international law in relation to the health effects of use of nuclear weapons;
(g) the need to understand what precisely are the obligations of States under international law in relation to the environmental effects of use of nuclear weapons;
(h) the need to understand what precisely are the obligations of States under the WHO Constitution in relation to the use of nuclear weapons;
(i) the deep constitutional concerns of WHO with the medical consequences of nuclear war.
102 The relevance of the medical material placed before the Court can be more pointedly illustrated by taking just one effect — the cancer-inducing qualities of the bomb, for the nuclear weapon can well be described as the greatest cancer-inducing instrumentality yet devised. The legality of cancer-inducing agencies, whatever their scale, are already concerns of WHO. Thus the legality of the sale of a drug that increases the risk of cancer, for example cervical or womb cancer, is clearly a matter that concerns WHO, for it would have to adopt different strategies to deal with the problem depending on whether the drug is legal (and thus freely available) or illegal (and thus less likely to be freely available).
103 It may be argued that the legality of the nuclear weapon is different from the legality of a drug, in that the weapon will in any event be used by those who desire to use it, irrespective of legality. However, this is a difference with which this Court cannot concern itself, as the Court operates on the assumption of a community ruled by law, and can only act on the assumption that member States of that community will abide by that law. If a particular weapon is a legal weapon of war, it stands on a very different footing from a weapon whose use is banned by law, and WHO is entitled to know in which category the weapon falls.
104 It is thus difficult to see a logical distinction between WHO's concern with the legality of a cancer-inducing drug and the legality of a cancerinducing weapon. If the first concern is legitimate — which no one would doubt — it is difficult to see how the other is not. The concern of other organs of the United Nations with the political aspects of the problem cannot negative or override WHO's concern with the medical aspects of the same problem.
105 This background of medical information reveals numerous areas of obvious concern to WHO in the discharge of its constitutional responsibilities. It also provides the essential factual background to the various applicable principles of international law — particularly of international humanitarian law. If humanitarian concerns are the criterion which triggers into action the principles of humanitarian law, it must be self-evident that the preceding resume of the medical effects of nuclear war must activate those principles and bring them into play.
6. The Experience of Hiroshima and Nagasaki
106 As is well known, even a comparatively minor catastrophe such as Chernobyl imposes on domestic health services a burden greater than they can bear. There would be no other entity to which a nation stricken by a nuclear attack could turn, for its medical services, however rich the country, would be virtually non-existent. Even a comparatively “small” nuclear attack such as occurred in Hiroshima and Nagasaki crippled and destroyed the health services of a well-organized nation. As Dr. Henry Kissinger observed in his work on Nuclear Weapons and Foreign Policy:
“Under normal conditions, a hospital requires five persons to care for one patient. It has been estimated that at Nagasaki, under the most primitive medical conditions, each survivor required two persons to care for him. The whole surviving population of an affected area would therefore either be injured or engaged in caring for the injured.
Even then, adequate medical assistance for the injured will be impossible, for most hospitals and most medical personnel are themselves within the target area.” 33
107 One has only to peruse medical accounts of the aftermath of Hiroshima and Nagasaki to understand how futile medical services can be after the nuclear event, especially if they are caught unprepared. Hiroshima Diary: The Journal of a Japanese Physician August 6–September 30, 1945, by Michihiko Hachiya, M.D. 34 , is one such.
108 The multitude of descriptions available on the position of a society which has been the victim of a nuclear attack heavily underscore this aspect of the breakdown of all health services, in which we have the grotesque situation of human beings with shreds of flesh hanging upon them, their eyeballs melted away, and their senses dazed by blast and radiation, wandering around in their thousands in search of assistance, and helpless in the midst of a prevailing despair 35 . Such scenes, the sad realities of the aftermath of a “small” nuclear attack, are amply documented as having occurred in Hiroshima and Nagasaki. They will occur again whenever and wherever nuclear weapons are used. They are the health administrator's worst nightmare, and any institution concerned with world health needs to know whether the only agency capable of causing such a scenario stands within or without the international legal system, and whether therefore it is permitted or banned.
III. Matters Relating to WHO's Competence
1. The Objections to WHO's Competence
109 Of the 189 member States of WHO as at 19 May 1994, only nine have raised objections before this Court on grounds that WHO does not have the competence to make this request, namely, Australia, Finland, France, Germany, Italy, Netherlands, Russia, the United Kingdom and the United States. It will be noted that one nuclear power, China, is not among those who have objected to WHO's competence.
110 The objections to WHO's competence centre around two broad propositions:
(a) that the legality of the use of nuclear weapons is not a matter for WHO, whose competence is limited to the effect of nuclear weapons on human health and environment; and
(b) that WHO has no special interest in the matter and a recognition of its competence would, in effect, expand the scope of its activities.
111 Thus France has urged before the Court that:
“WHO has no more competence to put this question than it would have, itself, to declare that the use of a particular kind of weapon was unlawful or to rule on the international legality of a particular conflict; it has not the slightest competence in this area.” (CR 95/23, p. 56.)
France has submitted further that WHO's action “seems nothing less than an abuse of the Court's advisory functions and, to say the least, a somewhat alarming trend” (ibid., pp. 56–57).
112 With their deep implications, both for the advisory jurisdiction of the Court and for the scope of the legitimate activities of specialized agencies, such submissions need careful consideration.
113 WHO has no means at its disposal to prevent nuclear war and in no way does its enquiry amount to any act of intermeddling in the causes of nuclear war. It only seeks information and that information could well be relevant in drawing attention to the need to prevent nuclear war. Alternatively, on the supposition that there is room for medical action after a nuclear attack, it is relevant to its state of preparedness. As already noted, even if an entire nation should be destroyed, medical services would be urgently required by neighbouring States. Relevant to its duties in this situation are Article 2 (d) and (e) of the WHO Constitution which cast upon WHO the express duty of furnishing aid in emergencies and providing health services and facilities to special groups.
114 It is therefore a mistake to read into WHO's enquiry an attempt at dabbling in the political question of prevention of nuclear war. It keeps well within its mandate in seeking information which it considers necessary for discharging its constitutional obligation of preparation to render assistance in the event of nuclear war. Here again the analogy of bacteriological or chemical warfare comes to mind. If these are legitimate weapons of war, WHO's state of readiness to cope with the medical problems they raise must surely be different from the situation where the law of nations accepts that they are illegal and should not be used in any circumstances.
2. The Importance of the Enquiry Relating to WHO's Constitution
115 Elsewhere in its jurisprudence, this Court has stressed the importance of rendering an opinion to a specialized agency when it relates to that agency's Constitution and, indeed, it has made this observation in relation to the constitution of WHO itself ( Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, I. C. J. Reports 1980, p. 87. See p. 108, supra.)
116 As the Court has observed in its reply to the General Assembly's request for an opinion on the legality of nuclear weapons:
“ Whatever its political aspects, the Court cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law.” ( I.C.J. Reports 1996, p. 234, para. 13.)
This principle assumes particular importance in regard to a request for interpretation of an organ's Constitution, for not only is that manifestly a question of law, but it is one of the most practical forms of assistance the Court can give to the members of the United Nations family of organizations. It is a question anchored to the law and, at the same time, lying at the heart of an organization's work. In short, it is the sort of question which in my view the Court would be under a special obligation to address.
117 With much respect, I must therefore disagree with the Court's conclusion that “WHO is not empowered to seek an opinion on the interpretation of its Constitution in relation to matters outside the scope of its functions” (Advisory Opinion, para. 28). The finding that the matter is “outside the scope of its functions” is itself an interpretation of WHO's Constitution and, in reaching this conclusion, the Court is in effect interpreting WHO's Constitution in response to WHO's request. I find it difficult also to accept that an organ of the United Nations, empowered to seek an advisory opinion on a question of law, has no competence to seek an interpretation of its own Constitution.
3. The Constitutional Functions of WHO
(2) to establish and maintain effective collaboration with the United Nations, specialized agencies, governmental health administrations, professional groups and such other organizations as may be deemed appropriate (Art. 2 (b) );
(3) to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments (Art. 2 (d) );
(4) to provide or assist in providing, upon the request of the United Nations, health services and facilities to special groups (Art. 2 (e) );
(5) to propose conventions, agreements and regulations, and make recommendations with respect to international health matters and to perform such duties as may be assigned thereby to the Organization and are consistent with its objective (Art. 2 (k) );
(7) to promote improved standards of teaching and training in the health, medical and related professions (Art. 2 (o) );
(9) to assist in developing an informed public opinion among all peoples on matters of health (Art 2 (r) );
(i) Co-ordination of international health work (Art. 2 (a))
120 WHO's obligations under Article 2 may be summarized in terms that: “WHO's first constitutional function is to act as the directing and coordinating authority on international health work” 36 . Part of this task is stated to be to “devise strategies, principles and programmes to give effect to these policies”.
121 WHO cannot act as the directing and co-ordinating authority on international health work if it has to act behind a veil of ignorance regarding the legality or otherwise of the greatest of man-made threats to human health.
122 Moreover this provision highlights the fact that WHO is concerned with “health work”. The expression “health work” clearly refers, as already observed, not merely to the curative, but also to the preventive and planning aspects of health services, which are an integral part of modern medical services.
123 The consideration, already referred to, that planning for any contingency requires a knowledge of the legal structure within which a particular hazard takes place acquires even greater significance in a world where many violent conflicts are raging concurrently. The possibility is ever present of an escalation of any of these conflicts and, if the nuclear weapon is a legal weapon of war, any one of one of them could quite “ legally” flare into a nuclear war.
(ii) Collaboration with the United Nations, specialized agencies, etc. (Art. 2 (b))
124 WHO is part of the United Nations system, dedicated to the aims and objectives of the United Nations. It is the agent par excellence for coordination with other specialized agencies and professional bodies in relation to the medical hazards of nuclear weapons. For example, the effects on crops and the world famine situation resulting from nuclear weapons constitute an obvious area for collaboration with organizations such as the Food and Agriculture Organization. Professional groups of doctors, worldwide, need to be alerted regarding the medical effects of nuclear weapons. WHO must liaise with medical organizations worldwide and share information with them, alert them to the medical dangers and promote readiness to deal with the medical hazards. It must currently do so in the dark, unaware whether these weapons are legal or not.
(iii) Emergencies (Art. 2 (d))
125 The inadequacy of national health services to cope with the after effects of a nuclear attack have already been discussed at some length. The practical situation that existed in Hiroshima and Nagasaki has also been described. Such realities, nowhere discussed in the Court's Opinion, make WHO the obvious authority for national Governments to turn to for assistance, in the emergency created by a nuclear attack. If the nuclear weapon is a legal weapon of war, the responsibility lies all the more heavily on WHO to plan for this. It would quite clearly be the only international authority to whom the stricken nation could turn for assistance. All this is consistent with WHO's responsibilities for promoting “the rationalization and mobilization of resources for health” 37 .
(iv) Provision, upon the request of the United Nations, of health services and facilities to special groups (Art. 2 (e))
127 The radiation victims of a nuclear attack would be a special group within the meaning of this clause. People far from the source of the explosion — hundreds or thousands of miles away — will be affected. Non-belligerent States, far distant from the scene, will need assistance. WHO is the only organization they could turn to. The dire event of a nuclear attack, whatever the nation that is struck, would raise health problems of such proportions that WHO would be the only entity to which the United Nations itself could turn for special services. WHO cannot be unprepared for such an eventuality, especially if it is one which is permitted by the law.
(v) To propose conventions, agreements and regulations (Art. 2 (k))
128 If the use of nuclear weapons is a legal form of warfare, WHO will need to take the initiative in relation to conventions, agreements and regulations regarding such matters as the exchange of knowledge and facilities relating to the treatment of radiation victims. Granted the impossibility of any one country being able by itself to treat all radiation victims, there will need to be a consideration of mutual medical assistance in the event of such a catastrophe. WHO's constitutional functions in regard to conventions, agreements and regulations then come into play. If an international medical convention is the best means for arranging emergency medical services to a country stricken by a nuclear attack, who but the World Health Organization could take the initiative in this?
(vi) Research (Art 2 (n))
129 In the words of the United Nations study already cited:
“The Organization brings together the world's experts in health matters and serves as a neutral ground for absorbing, distilling, synthesizing and widely disseminating information which has practical value for countries in solving their health problems.” 38
130 Medical knowledge regarding radiation injuries and their treatment is still the subject of ongoing research. There needs to be co-operation in this field. This task devolves heavily on the shoulders of WHO. Especially if the nuclear weapon is a legal weapon of war, WHO would have little excuse for not planning for the co-ordination and spread of such scientific knowledge.
131 Contemporary accounts of Hiroshima or Nagasaki show how ill equipped medical practitioners were to deal with radiation injuries 39 .
(vii) Improved standards of teaching and training (Art. 2 (o))
(viii) Public education (Art. 2 (q) and 2 (r.))
133 These functions, dealt with in Article 2 (q) and 2 (r) of WHO's Constitution , are discussed elsewhere in this opinion. It is sufficient to note at this point that the WHO Report stresses WHO's role in “systematically distributing information on the health consequences of nuclear warfare” 40 . As the radiation injuries resulting from the Chernobyl accident continue to manifest themselves, even ten years after the event, the world is offered repeated confirmation of the importance of prior public knowledge of how best to react to exposure to radiation. Most people in Chernobyl, unaware of the dangers of radiation, were, from all medical reports now emerging, unable to react in a manner that would minimize the health damage caused to them. In terms of human health, an enormous price is being paid for this lack of knowledge. Spreading such knowledge is clearly within WHO's constitutional functions.
4. The Work and Concerns of WHO
134 It has been said in argument that nuclear weapons are matters exclusively within the area of peace and security — matters which are within the exclusive jurisdiction of other agencies such as the Security Council —and that therefore WHO can have no concern with them. WHO's function is confined to health, pure and simple, and it strays into unauthorized fields when it enters the area of peace and security. The cobbler to his last.
135 The work of WHO cannot be said to be unrelated to peace and security. In fact, the very Constitution of WHO draws attention in the preamble itself to the interrelatedness of health and security when it states that the health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States. WHO is also empowered by Article 2 (v) of its Constitution “generally to take all necessary action to attain the objective of the Organization”. The objective of the Organization is set out in Article 1 to be “the attainment by all peoples of the highest possible level of health”. The highest possible levels of health must obviously be achieved both by curative and preventive processes, there being no restriction to the former.
136 There are clearly some areas where WHO's concern with health overlaps with concerns of peace and security. One of the dangers of nuclear war, as pointed out in Section II.4 above, is the appearance of devastating epidemics. The decimation of populations caused by severe epidemics can reduce thriving societies to total helplessness. Such an event would quite obviously be a matter affecting global peace and security, for law and order, both domestic and international, would in those circumstances tend to break down. The linkage in its own Constitution (to which all Member States of the United Nations have agreed) between health on the one hand, and peace and security on the other, renders the argument unavailable that the two concerns are incompatible with each other. Indeed the greater the threat to global health, the greater would be the overlap with peace and security.
137 The argument that concern with peace and security removes a matter from WHO concerns is analogous to the argument that, although a matter clearly involves a legal issue, this Court should not enter into it if the matter is also political. Such an argument, as repeatedly held in the jurisprudence of the Court, is unsustainable. The Court is the pre-eminent authority on questions of law and must attend to matters properly within its jurisdiction, irrespective of whether they also involve political considerations. Likewise, WHO is the pre-eminent authority on questions of health and must be permitted to attend to matters properly within its sphere, irrespective of whether they are also within the sphere of peace and security.
138 This case is concerned not with a natural threat, but with a man-made threat to human health so great as to dwarf all other threats, whether man-made or natural. The agency of damage is fully within human control. WHO desires to know what the law is regarding such potentially damaging activity, which occurs not accidentally, but in consequence of deliberate State action.
139 It is difficult to subscribe to the view that WHO can be told that this is none of its concern — that its legitimate business is curing the sick after the disaster occurs and that it has no right to knowledge which has a bearing on how it is caused. That is the implication of the Court's Opinion and with that I cannot agree. The state of the law, relating to any form of activity hazardous to human health, is WHO's legitimate concern, and though WHO may not have the power to alter the law, it has at least the right to know what the law is. The greater the hazard, the greater is WHO's right to information. If the hazard can be created legally, the duty of preparedness for that eventuality becomes all the greater.
140 The lawfulness of deliberate State conduct which damages public health on a global scale cannot, in my view, be excluded from the area of WHO's concerns without serious damage to the authority and mission of WHO in relation to the health of the world's population, and without a restricting effect also upon other United Nations agencies who may be guided by this narrow view of the area of their legitimate concerns.
141 The causes of damage to world health do not have to be medical causes in the sense in which they are commonly understood. The causes may be natural disasters, such as forest fires or earthquakes, or man-made disasters, such as occur in war. Whatever the sources of danger to human health, WHO needs to study them, understand their causes, anticipate them, and plan to meet these emergencies. It has a global mandate to do so and every organ of the United Nations system must co-operate with it in the discharge of that global mandate.
5. The Analogy with Chemical and Biological Weapons
142 If chemical and biological weapons were accepted as legal weapons of war, WHO would no doubt have had to take that factor into account in its global planning. The knowledge that these weapons are outlawed is a factor relevant to WHO's consideration ofthat problem. No doubt it was for such reasons that WHO, before the Convention relating to these weapons, emphasized the need for their prohibition, by resolution 23.53 of 1970.
143 The same reasoning must apply to nuclear weapons. Legality or illegality makes a major difference to.the authority charged with responsibility for global health, particularly when the health hazards are so far flung and long-enduring as those caused by the nuclear weapon.
144 If WHO, before the chemical and biological weapons treaty, had made an enquiry as to whether the use of those weapons was a violation of State obligations under the WHO Constitution , it is difficult to imagine that any objections would have been taken to that enquiry. The intimate concern of nuclear weapons with geopolitics and military strategy does not alter the principle involved. WHO needs to know, no less than it needs to know in the case of chemical and bacteriological weapons, whether nuclear weapons, like chemical and bacteriological weapons, are banned by international law.
145 This Court cannot say in what precise ways the information sought by WHO will help it in its planning. What it does know is that WHO has considered such knowledge to be useful to it and, on this matter, the Court will naturally be guided by the professional judgment of WHO in regard to its usefulness.
6. The Importance of Prevention
147 It has been stressed already that medical services are quite obviously not confined to matters of cure. Prevention looms large, even if not larger than cure, in the planning of modern medicine.
148 A standard modern text-book on public health medicine observes in its chapter on the “Promotion of Health”:
“Drawing on the great success of preventive medicine in the past, the United States Surgeon General, in his 1979 report Healthy People, set in context the need for a modern impetus for health promotion and disease prevention:
‘Not to find and employ those [preventive] strategies would be irresponsible — as irresponsible as it would have been for our predecessors merely to alleviate the ravages of smallpox and polio and cholera, without attempting to eradicate them.’
Health services should have as their major aims to reduce the amount of illness, disease, disability and premature death in the population … Health services do not have direct control over all the factors which can influence these aspects of the health of the population but the design and implementation of health promotion strategies is one of their major functions.” 41
149 In the arguments before the Court, the term “primary prevention” has been frequently used. The meaning of this term appears from the following passage in the same work:
“Traditionally, prevention has been classified into three types:
(a) Primary prevention
This approach seeks actively to prevent the onset of a disease. The ultimate goal of preventive medicine is to alter some factor in the environment, … or to change behaviour so that disease is prevented from developing …
(b) Secondary prevention
This level of prevention aims to halt the progression of a disease once it is established. The crux, here, is early detection or early diagnosis followed by prompt, effective treatment …
(c) Tertiary prevention
This level is concerned with rehabilitation of people with an established disease to minimize residual disabilities and complications.” 42
150 It is little wonder that the pre-eminent health organization in the world concerns itself with all aspects of prevention. If it did not, it would not be true to the first principles of its vocation.
151 With prevention comes advance planning. Both prevention and advance planning, enabling WHO to deal with a possible medical situation which can be anticipated, are thus part of WHO's essential duties. It is not surprising therefore to observe WHO's practice in this regard which indicates quite clearly its concern with the legal and regulatory aspect of matters under its charge.
152 The WHO Report puts its concerns and its legitimate interests in this area very succinctly when it observes that:
“When treatment is ineffective, the only solution available to the health professions is prevention. Prevention is obviously the only possibility in case of a nuclear war.” 43
153 The world's leading judicial authority would show little recognition of this undeniable truth if it were to say to the world's leading health authority, on a matter intimately concerning the world's health, “Your function is care after disaster strikes. Prevention is the exclusive concern of other authorities properly vested with jurisdiction in that regard.”Such a position seems not only highly legalistic and abstruse, but also irreconcilable with the known facts. Medical responsibilities at the highest possible level and involving the health of the entire global population need to be viewed in the context of the basic facts surrounding those responsibilities and not as though there somehow exists a watertight legal division of responsibilities which must be preserved whatever the cost.
154 I regret that I cannot subscribe to a conclusion that a body charged with the highest responsibilities in regard to the health of the global community should sit passively by, until the catastrophe occurs in which its services are required, for the technical reason that it would be trespassing upon the exclusive preserve of the Security Council, who are the sole custodians of peace and security. The Constitution of WHO , a body designed for humanitarian service, cannot be so encased in rigidity as to require it not to move into action in relation to nuclear weapons except in a nightmarish world of ghastly suffering which it is wholly unable to handle. Surely the more reasonable view is that WHO must, by the very nature of its functions and responsibilities, be empowered to warn of medical dangers, seek clarification of legal issues, and prepare itself as best it can in the light of the applicable law.
155 In this instance, WHO is by no means seeking to lay down a regulatory framework, in regard to the use of nuclear weapons, which of course would be beyond its competence, but is only making an enquiry for the clarification of a matter which is crucial to its proper discharge of its responsibilities.
156 As the Report of the WHO's Committee of Experts concluded:
“As doctors and scientists, the members of the Committee feel that they have both the right and the duty to draw attention in the strongest possible terms to the catastrophic results that would follow from any use of nuclear weapons. The immediate and the delayed loss of human and animal life would be enormous, and the effect on the fabric of civilization would be either to impede its recovery or make recovery impossible. The plight of the survivors would be physically and psychologically appalling. The partial or complete disruption of the health services would deprive survivors of effective help.
The Committee is convinced that there is a sound professional basis for its conclusions that nuclear weapons constitute the greatest immediate threat to the health and welfare of mankind.” 44
“Each successive study of the possible human destruction that would result from a nuclear war draws a grimmer conclusion about what the human cost would be. Instead of speculating that the casualties might amount to only a few tens of millions, recent studies have indicated that the casualties are more likely to number a billion or more, and even the survival of human beings on earth has been questioned.” (CR 95/27, p. 77.)
158 The relevance of WHO's concern appears further from the following statement in the WHO Report which has been placed before the Court:
“Historically medicine has played an important part in military campaigns. This has been particularly the case in recent wars in which the effectiveness of a prompt medical response did much to maintain morale among combat troops. Following a nuclear war, however, all the evidence indicates that medicine will have nothing to offer the injured survivors; the number of casualties will be too great and the remaining medical resources grossly insufficient.” 45
159 In nuclear war, physicians and health professionals will themselves be killed in large numbers and the depleted ranks of the survivors will have to cope with a situation where the hospitals themselves are destroyed. The WHO studies thus show that treatment after the event is at best a forlorn hope.
160 The view that WHO's role is limited to such assistance as it can give after the devastation of a nuclear attack was well answered in homely terms by the Marshall Islands — that it is not “merely a charlady, a femme de menage called in to clean up after the event is over and all the participants have gone home” (CR 95/32, p. 86, Professor Crawford).
7. The Argument Relating to Abuse of the Court's Advisory Functions
161 For the various reasons set out above, the argument is untenable that WHO has no special interest in this matter. WHO's constitutional mandate relating to global health is concerned with all aspects of health — preventive, curative, educational, precautionary, research, regulatory, planning, emergency assistance, international co-operation. The nuclear weapon touches all of these and the measure in which it touches them will vary, depending on whether it is or is not a lawful weapon of war.
162 The deliberate act of spreading lethal disease, be it by chemicals or germs or poisons or noxious fumes, has, even in ancient times been considered to be contrary to the laws of war. I have dealt in my dissenting opinion in the General Assembly request with various cultural traditions on this matter, and do not need to cover the same ground here (see Section III.2). Nowhere in the age-old history of the laws of war — ancient or modern — is there found a principle which permits the poisoning of the enemy forces, leave alone the poisoning of the enemy population en masse. This is what nuclear weapons do (see my dissent in the General Assembly request, Section II) — apart, that is, from poisoning the populations of non-combatant countries.
163 To vary the factor that damages health, I take the following hypothetical illustration. Before any bacteriological weapons convention had been entered into, a country has rockets on its launching pads, fitted, not with a nuclear warhead but with a warhead containing a fatal virus such as ebola, for which no cure is known. Since the spreading of this virus has not been specifically prohibited by any treaty, WHO makes an enquiry from this Court as to the legality of deliberately infecting enemy populations with such an incurable virus. In such a situation, it seems inconceivable that it could have been submitted that this was an abuse of the Court's advisory functions. Any objection that because it concerned peace and security, it was not therefore a matter for WHO, would attract incredulity and disbelief. It might indeed have been asked what necessity there was for WHO to ask a question, the answer to which was so obvious according to the principles of humanitarian law. The nuclear warhead causes no less a danger to global health than the warhead in the hypothetical illustration above, the difference being that it is not packed with germs, but with an agency that causes cancers, keloids, and deformities with equal irreversibility, but on an infinitely larger scale than that hypothetical warhead.
165 Further, the argument that WHO has no more competence to put this question than it would have, itself, to declare the use of a particular weapon illegal, is one which, with all respect, I have some difficulty in following. It is for the very reason that WHO manifestly does not have power to make declarations on the law that it has approached this Court, which manifestly has that power.
166 Finally, arguments that the World Health Organization has been goaded or influenced into taking this action by interested parties are not considered in this opinion. The WHO is a United Nations agency of high standing and repute and the argument suggests that this high body is permitting itself to be made use of in some way to satisfy the ulterior motives of others. I do not think this submission calls for any attention from this Court.
IV. State Obligations
1. State Obligations in Regard to the Environment
167 The Court is asked whether the use of nuclear weapons is a breach of State obligations in relation to the environment. The Court has not considered this question. The Court's Opinion (para. 16) states that
“the Court must identify the obligations of States under the rules of law invoked, and assess whether the behaviour in question conforms to those obligations, thus giving an answer to the question posed based on law”,
but does not proceed to identify and examine those obligations in order to answer the question. I consider that it needs more attention. It is moreover an area very much within the legitimate concerns of WHO.
(a) The progress of environmental law
169 From rather hesitant and tentative beginnings, environmental law has progressed rapidly under the combined stimulus of ever more powerful means of inflicting irreversible environmental damage and an ever increasing awareness of the fragility of the global environment. Together these have brought about a universal concern with activities that may damage the global environment, which is the common inheritance of all nations, great and small. To use the words of a well-known text on international environmental law:
“The global environment constitutes a huge, intricate, delicate and interconnected web in which a touch here or palpitation there sends tremors throughout the whole system. Obligations erga omnes, rules jus cogens, and international crimes respond to this state of affairs by permitting environmental wrongs to be guarded against by all nations.” 46
“nuclear weapons, whose terrible effects are suffered, indiscriminately and inexorably, by military forces and civilian population alike, constitute, through the persistence of the radioactivity they release, an attack on the integrity of the human species and ultimately may even render the whole earth uninhabitable”.
(b) The growth of the notion of State obligations
172 Principle 21 has a direct relevance to WHO'S enquiry, for it deals specifically with the obligation of States not to damage or endanger significantly the environment beyond their jurisdiction. Principle 2 of the Rio Declaration gives expression to the same principle. Both may be said to be articulations, in the context of the environment, of general principles of customary law. In the words of Corfu Channel , there is a “general and well-recognized” principle that every State is under an “obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States” (I.C.J. Reports 1949, p. 22).
173 Principle 24 of the Rio Declaration on Environment and Development (1992), whereby States are called upon to “respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary”, is a further expression of this general principle. It cannot therefore be gainsaid that the concept of State responsibility in regard to the environment is today an established part of international law.
(c) Active and passive State obligations
174 There is a State obligation lying upon every member State of the community of nations to protect the environment, not merely in the negative sense of refraining from causing harm, but in the positive sense of contributing affirmatively to the improvement of the environment. A wide recognition of this principle was evidenced when, in 1971, the General Assembly affirmed “the responsibility of the international community to take action to preserve and enhance the environment” ( General Assembly resolution 2849 (XXVI) ; emphasis added).
175 For the purposes of the present case, however, it is not necessary to enter the area of active State responsibility to conserve the environment — an aspect now receiving increasing attention. The passive responsibility not to damage the environment is sufficient for the purposes of this case, for it is patently clear that any State action which damages the environment in the way that nuclear weapons do is a violation of the obligation of environmental protection which modern international law places upon States. A contrary view would negative the basic logic of environmental law and send a tremor through the foundations of this vital subdiscipline of modern international law.
(d) The juristic nature of State obligations
176 In relation to environmental obligations, the notion is evolving of duties owed erga omnes and of rights assertible erga omnes, irrespective of the compartmentalization of the planetary population into nation States.
177 The concept of an erga omnes right is not new. In 1915, the eminent American jurist, Elihu Root, who later became a member of the Committee which drafted the Statute of the Permanent Court , stated, in a paper on “The Outlook for International Law”:
“Wherever in the world the laws which should protect the independence of nations, the inviolability of their territory, the lives and property of their citizens, are violated, all other nations have a right to protest against the breaking down of the law.” 47
178 Such thinking is the background against which the damage caused to the environment must be considered, for the purpose of ascertaining whether the use of a nuclear weapon by a State is in conflict with State obligations under international law.
179 The concept of obligations erga omnes has, of course, received recognition in the Court's jurisprudence, though in a different context, in Barcelona Traction, Light and Power Company, Limited, Second Phase (I.C.J. Reports 1970, p. 3).
180 Indeed, in some areas, modern discussions of State responsibility take the matter even further, to elevate serious breach of State duty in regard to the environment to the level of an international crime when they state that:
“a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas”
may result in an international crime 48 .
(e) Multilateral treaty obligations
182 There have been, since the Stockholm Declaration of the United Nations Conference on the Human Environment (1972), over one hundred multilateral environmental instruments which are in force. A United Nations Environment Programme is in force, major instruments have been signed regarding the law of the sea, transboundary pollution, hazardous waste, nuclear accidents, the ozone layer, endangered species — to name but a few. The United Nations Environment Programme register of multilateral treaties affecting the environment revealed as many as 152 treaties in May 1991 49 .
183 The multifarious international instruments relating to the environment, to which reference has been made, build up the rising tide of international acceptance which creates in its totality a universal acceptance of State obligation which in turn translates itself into law. All of the areas they deal with are areas affected by the nuclear weapon to an extent which is impermissible under these instruments, had the damage been caused by any other agency.
184 The areas named are a small sample of the areas of State obligations under international law which are affected by the nuclear weapon. What WHO wants to know, in view of the close linkage of a pure environment with human health, is whether there is a breach of such State obligations when a State uses a nuclear weapon. It cannot, in my view, be denied this information, which lies at the very heart of its constitutional mandate of safeguarding global health.
2. State Obligations in Regard to Health
(a) The human right to health
186 An examination of the various international developments in regard to health shows that State duties in regard to health have now passed beyond the field of good intentions into the realm of binding international law.
187 Even before the Universal Declaration of Human Rights , the Constitution of WHO (1946) recognized the enjoyment of the highest attainable standard of health as one of the fundamental rights of every human being. This will be dealt with more fully in the section on the WHO Constitution.
(b) State obligations in relation to health
189 A more specific recognition of the right to health is contained in Article 12 of the International Covenant on Economic, Social and Cultural Rights of 1966. Article 12 states that the “States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”. It will be noted here that the recognition by States of the right to health is in the general terms that they recognize the right of “everyone” and not merely of their own subjects. Consequently each State is under an obligation to respect the right to health of all members of the international community.
“Each State party to the present Covenant undertakes to take steps, individually and through international assistance and cooperation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” (Emphasis added.)
191 Further, Article 2 (2) contains a guarantee by States that “the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, … national or social origin, … or other status”. Quite clearly this is a reinforcement of the obligation erga omnes towards the entire global population which is contained in Article 12 and a further obligation to take active steps towards guaranteeing this right to health of the global population.
(c) Global implementation measures involving State obligations in regard to health
192 On 22 May 1981, the World Health Assembly, by resolution WHA34.36 , unanimously adopted a “Global Strategy for health for all by the year 2000”, which was noted with approval by the General Assembly. In that resolution, the Assembly urged all member States to assure its implementation and requested all appropriate organizations and bodies of the United Nations system to collaborate with the World Health Organization in carrying it out.
193 In particular, there has been much action on the regulation of products harmful to health and the environment. A consolidated list has been issued of products which have been banned, withdrawn, severely restricted or not approved. At its thirty-ninth session, the General Assembly received a report from the Secretary-General on products harmful to health and the environment, and decided that an updated consolidated list should be issued annually, and urged Member States to avail themselves of this information, and to supplement the data in the consolidated list.
194 Thus, not only has the right to health been recognized as a human right, but specific implementation measures have been urged on all States in measures which have been universally accepted by States, without any demurrer on the ground that health is not an area of State responsibility. Special action programmes have been worked out in relation to agencies likely to damage health and the environment.
(d) The clash between State obligations and the health-related effects of nuclear weapons
195 How does the use of the nuclear weapon accord with this obligation which States under binding treaty obligation, and by general agreement, have recognized as binding, and have in fact agreed by treaty to implement? The nuclear weapon produces the various effects upon health which have been outlined in this opinion. They include the inducement of radiation sickness, leukaemia, cancer, keloids, genetic deformities, and the like. They do so on a massive scale, not limiting their effects to the target population of the countries at war. Even within the countries at war, they promote these sources of destruction of human health among civilian and combatant alike.
196 It appears evident that there is here a clear contradiction between State obligations under international law in relation to health and the use of the nuclear weapon. There can be no doubt that if a State by deliberate action of any other kind should foster this sort of danger to human health, it would clearly be seen as a contradiction between that act and the State's obligations in regard to health. Even if that act should have been performed in conditions of war, there would still be a breach of State obligations under humanitarian law in relation to human health, as is clear with chemical, bacteriological or asphyxiating weapons. By what title of exemption does the nuclear weapon fall clear of this principle? I know of none.
3. The Duties of States under the WHO Constitution
197 WHO asks whether, in view of their health and environmental effects, the use of a nuclear weapon by a State would be a breach of its obligations under the WHO Constitution . Knowledge of the legal reach of its constitution is vital to the proper functioning of any agency. The Court is the pre-eminent authority under the United Nations system to advise a United Nations agency on such a matter which is unquestionably a matter of law, and which is unquestionably a matter of legitimate concern to the agency. WHO turns naturally to the Court for advice on precisely such a matter. The Court denies this advice on what seems to me to be a technicality.
198 Quite apart from their responsibilities under customary international law and any other conventions to which they are parties, the States that are parties to the WHO Constitution , which is itself an international treaty, accepted certain principles and obligations. The Constitution was signed by 61 States on 22 July 1946 and entered into force on 7 April 1948. Appendix I to the WHO volume of Basic Documents shows that, at 31 October 1992, 182 States had become party to the Constitution.
200 In the first place, the States Parties to the Constitution declare inter alia that “The enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being …”; that “The health of all peoples is fundamental to the attainment of peace and security and is dependent upon the fullest co-operation of individuals and States”; and that “ Governments have a responsibility for the health of their peoples …”.
201 They proceed to accept these principles and they establish the World Health Organization “for the purpose of co-operation among themselves and with others to promote and protect the health of all peoples …”.
202 This Organization's objective, as stated in Article 1 is “the attainment by all peoples of the highest possible level of health”.
203 There is thus a commitment to the attainment by all people to the highest possible level of health, to regarding the achievement of the highest achievable standard of health as a fundamental right of every person on the planet, a recognition of health as fundamental to peace, and of the duty of State co-operation to achieve this ideal. More such commitments would appear from a scrutiny of other articles of the Constitution , but the foregoing suffices for purposes of present discussion.
204 The Constitution is a multilateral treaty, and each participating State holds out to all others its adherence to these principles, on the basis of which all others make a similar commitment. All participating States have committed themselves, to the extent of their respective abilities, to pursue this objective, consistently with the underlying assumption that the health of all peoples is fundamental to the attainment of peace and security.
205 As stated in the next section, the WHO Constitution and its object and purpose must be interpreted in accordance with the principle of broad interpretation approved by the Court in its Opinion in the present case. It is in this sense that the commitments of the participating nations under the WHO Constitution must be construed. It seems to be clearly inconsistent with this objective that any of these nations, even for purposes of war, should consciously spread a means by which global health is undermined. In fact, it is a contradiction in terms to commit oneself to the attainment by all peoples of the highest possible levels of health and at the same time to launch into the midst of the global population a lethal instrumentality for spreading ill health on an unprecedented scale.
206 The use of conventional weapons in war does not spread disease. It does not cause genetic deformities. It does not imperil crops. It does not cause intergenerational climatic effects which imperil the global food supply. The use of nuclear weapons does. The user of the weapon now knows, in the present state of scientific knowledge, that all these dangers to health will be caused.
207 There is thus a clear breach of State obligations undertaken in the treaty which forms the WHO Constitution , when States resort to the use of nuclear weapons. This is the crux of the WHO enquiry regarding the interpretation of its Constitution.
208 Such a result would be achieved even without the application of broad principles of interpretation, discussed in the next section, for it follows naturally from a consideration of these declarations and commitments collectively.
209 The Constitution also accepts the promotion of child health and welfare as one of the mandatory functions of the Organization (Art. 2 (l) ). This principle has been accepted by every participating State. Nuclear weapons surely violate this principle, if for no other reason than the genetic damage they cause. The position is no different in regard to maternal health and welfare dealt with in the same Article (2 (l)).
V. Principles Of Interpretation Relating To WHO'S Constitution
1. Principles of Interpretation Applicable to WHO's Constitution
210 An important aspect of the question referred to the Court is the legal interpretation of State obligations under the WHO Constitution , which is a multilateral treaty. As the Court has observed in its Advisory Opinion (at para. 19), the principles of treaty interpretation are thus brought into play and Article 31 of the Vienna Convention “makes it possible to give quite broad consideration to the particularities of the constitutional instruments of international organizations”, for the terms of a treaty must be interpreted “in their context and in the light of its object and purpose”. The Court's jurisprudence has given effect to this principle on numerous occasions, as the Court has observed 50 .
211 In the interpretation of a multilateral convention of this type, particularly one which sets before itself certain sociological or humanitarian goals, the task of interpretation should be guided by the object and purpose which the Convention sets before itself. A literal interpretation, using strict methods of anchoring interpretation to the letter rather than the spirit of the convention, would be inappropriate. Fitzmaurice observes of interpretation by reference to objects, principles and purposes (the Ideological method) that:
“This is a method of interpretation more especially connected with the general multilateral convention of the ‘normative’, and, particularly, of the sociological or humanitarian type. The characters or constitutive instruments of international organizations may also be placed in this category.” 51
212 The interpretation of a multilateral, sociological or humanitarian treaty, such as the WHO Constitution , cannot be permitted to diverge from its objects, purposes and principles. I am of the view that the approach of the Court has in effect taken it far from these objects, purposes and principles, through a narrow and literal construction, which sees the Organization as being precluded from enquiring, inter alia, about the conformity of a certain item of State conduct with the terms of its own Constitution.
213 There are numerous specific provisions within the treaty, several of which have already been referred to. These need to be interpreted in accordance with the treaty's overall object and purpose as stated in its preamble. This is not to state that in the treaty in question there is any conflict between the natural meaning of the words used and its overall purpose, but merely to state that its various specific provisions should not be interpreted narrowly, but always with the end in view which the treaty seeks to achieve — the attainment of the highest standards of health on a global scale.
214 The object and purpose of the Constitution — the attainment by all peoples of the highest possible level.of health — is clearly defeated by the infliction upon the global population of multiple health dangers on a massive scale, as follows from the use of a nuclear weapon.
215 There is no ambiguity about the expression “highest possible level of health”. States declare they will co-operate to achieve this, others make similar declarations on this basis, and a commitment to achieve this objective has emerged.
216 The governing principle as to whether the nuclear weapon violates State obligations under the Constitution is to be found in the object and purpose of the WHO Constitution. When so regarded, the answer emerges beyond any possibility of doubt or obscurity. State actions which negative the State declarations and commitments to health outlined earlier are clearly a violation of the WHO Statute . To interpret the statutory provisions outlined earlier, so as to enable a State to inflict health damage to present and future generations without violating its constitutional duties, does violence to this principle of interpretation, and to the Statute itself.
217 The maxim ut res magis valeat quam pereat may also be invoked in this regard 52 . The central purpose of the Statute is health. The Statute must be interpreted so as to promote that purpose, rather than endanger it. A statutory construction of the WHO Constitution which sees State use of the nuclear weapon as not being in conflict with State obligations thereunder is a construction that endangers rather than promotes the central purpose of the Statute.
218 In view of the clear and incontrovertible contradiction between the obligations assumed by States under the Constitution , and the use of nuclear weapons, it is scarcely necessary to examine other elements in the Constitution which are confirmatory of these conclusions. For example, the provisions that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being”, or that the organization is established “for the purpose of co-operation … to promote and protect the health of all peoples” are just a few of the many provisions scattered throughout the Statute which confirm its dominant and incontrovertible purpose, to which all participating nations have subscribed without reservation.
2. The Principle of Speciality
219 The Court has attached much importance to the principle of speciality in dealing with the question whether the present request falls within the proper sphere of activities of WHO. The Court is of course anxious to ensure that there should not be an unnecessary confusion or overlapping of functions between the different organs and agencies of the United Nations.
220 However, the principle of speciality does not mean that there can be no overlap. It is in the nature of a complex organization like the United Nations that there will be, owing to the multiplicity and complexity of its functions, some areas of overlap between the legitimate spheres of authority of its constituent entities. As observed earlier, at the highest levels of the United Nations Organization, this Court itself has an area of overlap with the Security Council. Although the Security Council has basic responsibility for matters pertinent to peace and security, the same matters can also present legal problems properly within the sphere of adjudication, which is the Court's particular responsibility. The inextricable interlinkage between the legal aspects of a matter and its political implications has never been seen as depriving the Court of its right and its duty to act in its proper legal sphere.
221 As so well observed by the Court in its Opinion in the present case (para. 16), the fact that a matter has political implications does not deprive a legal question of its quality of being a legal question. The same concerns should apply in regard to medical questions. In Military and Paramilitary Activities in and against Nicaragua , the Court gave expression to what may be described as the principle of complementarity at the highest levels of the United Nations Organization in the clearest terms when it observed:
“The [Security] Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same events.” (I.C.J. Reports 1984, p. 435, para. 95.)
222 Likewise, a medical question may involve also some other ramifications which make it an appropriate matter for another specialized agency. For example, ventilation requirements on aircraft could equally well concern the World Health Organization and the International Civil Aviation Organization; safety regulations relating to the carriage of noxious waste may equally concern WHO and the International Maritime Organization; questions relating to patent rights in pharmaceutical s may equally concern WHO and the World Intellectual Property Organization; questions regarding the disposal of nuclear waste may equally concern WHO and the International Atomic Energy Agency; questions relating to herbicides may equally concern WHO and the Food and Agriculture Organization; unhealthy working conditions in the paint and chemical industry may equally concern WHO and the International Labour Organisation.The family of United Nations organizations was not set up in a fretwork pattern of neatly dovetailing components, each with a precisely carved outline of its own. These organizations deal with human activities and human interrelationships, and it is of their very nature that they should have overlapping areas of concern. Their broad contours are of course defined, but different aspects of the self-same question may well fall within the ambit of two or more organizations. The particularities of various international organizations were never meant to exclude areas of overlap, so long as these lay within the legitimate sphere of concern of the respective agencies involved. Specialized agencies with specialized interests can home in on specialized implications of some activity, which might otherwise pass unnoticed in other reactions to other aspects of the same problem. Complex problems have ramifications in many specialized directions to which the specialists alone are most competent to draw attention. Such a view contributes to the richness of the United Nations system. To expect otherwise would be contrary to the essence and rationale of a complex organization which straddles all facets of human activity.
VI. WHO's Prior Efforts
1. WHO's Efforts in the Nuclear Field
223 WHO's representative has outlined three phases of WHO activity in the field of nuclear radiation going back to the 1950s. At that stage, WHO was concerned with the harmful effects of ionizing radiation of all kinds. In 1960 it directed its attention, inter alia, to the effects of radioactive fallout from experimental nuclear explosions in the atmosphere. In 1966 it adopted a resolution particularly referring to nuclear weapons. In 1979 it specifically concerned itself with nuclear war which was mentioned in WHA resolution 32.24 .
224 In this phase, the Assembly began to concern itself with the “effects of nuclear war on health and health services”. It produced a detailed report on the subject which took two years in preparation. This has been deposited with the Court and has already been cited.
225 That Report dealt with the explosion of a single bomb, a limited war and a total war. The dead in each of these scenarios ranged from one million to one billion, with a similar number of injured people in addition.
2. WHO's Past Practice in Matters Relating to Peace
227 WHO has in the past asserted its “interest in the consolidation of peace as an inalienable prerequisite for preservation and improvement of the health of all nations” ( WHA resolution 20.54 , referring to resolutions 11.31 and 15.51), and it has called upon all WHO member States to implement United Nations General Assembly resolution 2162 (XXI) . In 1969 WHO, in resolution 22.58 , referred to “the necessity of achieving a rapid international agreement for the complete prohibition and disposal of all types of chemical and bacteriological (biological) weapons”.
228 WHO has thus in its practice very clearly indicated its concern with the legal status of weapons that could have damaging effects on health and the environment. Health and the purity of the environment, without which health cannot be fostered, are undoubtedly within its purview and, indeed, constitute the very rationale for its existence. The suggestion that WHO should concern itself with the practicalities of attention to matters of health and the environment without any concern with the legal framework within which health and environment are affected has not been the basis on which WHO has conducted its activities thus far. It has viewed a concern for health and environment as including a concern for the legal framework within which damage to health and environment may be caused. WHO would indeed be lacking in due attention to its duties in this regard if it did not, where possible, draw attention to the need for clarification or correction of a legal framework within which such damage could occur.
229 If the legality of chemical and bacteriological weapons was a proper subject for WHO's concern, having regard to their effect on health and the environment, then a fortiori nuclear weapons would be.
230 If WHO did not concern itself with international legislation in regard to such matters as plague prevention, smallpox inoculation, or noxious waste disposal, this would be universally regarded as a grave omission. It could similarly concern itself with legislation in regard to the level of a toxic or carcinogenic substance that can be carried in a product offered for public consumption, or with the need for legislation regarding the advertising on product labels of the carcinogenic or other effects of the product. A WHO division, the International Agency for Research on Cancer puts out reports from time to time on such matters. Recent outbreaks of the deadly ebola virus have highlighted the imperative need for stringent regulations, be they on a global scale, for containment of the virus. Questions of legality — whether they be in regard to transport, food certification, quarantine and indeed any means of spread of disease — are very much the concern of WHO, whatever the agency that spreads it among the global population. The nuclear weapon may concern matters of high national policy, but it is also a global health hazard of the first order, thus bringing its legality clearly within WHO's legitimate sphere of interest, no less than any of the other legal questions outlined above.
3. Lack of Objection to Prior WHO Actions
231 Furthermore, in taking such action as it has in the past, there has been, as far as may be gathered from material placed before the Court, no opposition to WHO action, on the basis of a transgression beyond the bounds of its mandate. There has been no suggestion that WHO should confine itself purely to the medical/epidemiologic level of prevention, and not enter the legal and political areas of prevention of activities damaging to health. If, indeed, it was outside WHO's province to dabble in these questions of the illegality of weapons and, if such action was viewed by the international community as such, one would have expected some exception to be taken to WHO venturing into this area.
232 It is only necessary to refer to resolution WHA23.53 of 1970, in which WHO emphasizes:
“the need for the rapid prohibition of the development, production and stockpiling of chemical and bacteriological (biological) weapons and the destruction of stocks of such weapons as a necessary measure in the fight for human health” (emphasis added).
233 An illustration of WHO's actions protecting its areas of concern, even in relation to the legality of the use of force, is its appeal in resolution WHA42.24 of 1989 to all member States: “to abstain from aggression and the use of threats in their international relations, including threats against medical centres and medical production plants”.
234 Another factor bearing upon this aspect is the General Assembly's own understanding of the practice relating to this matter, as reflected in its resolution 49/75 K , welcoming the WHO resolution to seek this opinion from the Court. Without being authoritative in itself on the legal question involved, this is a recognition by the General Assembly itself that the issues raised in the request were not seen as taking WHO outside its proper sphere of competence.
VII. Admissibility And Jurisdiction
1. The Court's Discretion
235 The precedential implications of this Court's first refusal of a specialized agency's request for an advisory opinion prompt me to set out specifically some reasons why I consider that the objections to admissibility and jurisdiction should fail.
236 The refusal of the Permanent Court in Status of Eastern Carelia — the only instance in the jurisprudence of this Court's predecessor where an opinion was declined — is distinguishable from the present, for in that case the refusal was based on the principle that an existing dispute to which a State was a party could not be indirectly brought to the Court in the form of an advisory opinion. No such situation exists in relation to the WHO request.
237 Many objections, mainly based on policy considerations, have been urged by those opposing the grant of this opinion. Several of those policy objections were raised also in regard to the opinion requested by the General Assembly, and the Court has, in its Advisory Opinion on that request, dismissed those objections. I agree with the Court's reasoning in dismissing those objections.
238 However, it is necessary to make some observations on those objections, in the context of the WHO request, for those objections must likewise be overcome in regard to this request as well.
239 To a large extent, the objections were common. For example, the United Kingdom observed:
“The United Kingdom submits that the Court should exercise its discretion not to respond to the request from the General Assembly. Similarly, if, contrary to my earlier submission, the Court were to consider that WHO was competent to put its question to the Court, the United Kingdom submits that the Court should none the less decline to answer that question also. The reason is that both questions are too abstract and speculative for a meaningful response. A response would serve no useful purpose and may. in fact, actually do harm.” (CR 95/34, p. 28, Sir Nicholas Lyell; emphasis added.)
2. The Court's Duty to Act Judicially
Yet the principle holds good that that discretion is not an absolute and overriding discretion, but is circumscribed by the overriding principle of the Court's duty, whether in contentious or in advisory jurisdictions, always to act judicially.
242 As the Permanent Court observed in Status of Eastern Carelia :
“The Court, being a Court of Justice, cannot, even in giving advisory opinions, depart from the essential rules guiding their activity as a Court.” (P.C.I.J., Series B, No. 5, p. 29.)
243 In Northern Cameroons this Court emphasized the correspondence between the principles governing its contentious and advisory jurisdiction when it observed:
“Both Courts have had occasion to make pronouncements concerning requests for advisory opinions, which are equally applicable to the proper role of the Court in disposing of contested cases; in both situations, the Court is exercising a judicial function.” (I.C.J. Reports 1963, p. 30.)
244 So, also, in Certain Expenses of the United Nations , the Court stressed that its task in rendering advisory opinions is “an essentially judicial task” (I.C.J. Reports 1962, p. 155).
245 The essential rules guiding the Court's activity as a Court have not been comprehensively spelt out in any decision. An important guideline has however been spelt out in the jurisprudence of the Court — namely, that the Court will render an opinion in cases when it is so requested by a competent body, in the absence of “compelling reasons to the contrary” 53 .
3. The Objections
247 Among the reasons adduced by those opposing a request for an advisory opinion on nuclear weapons are the following:
(a) the requested opinion would enter into the sphere of politics, State policy and State security;
(b) nuclear weapons are being addressed in other contexts in the United Nations;
(c) an advisory opinion would be devoid of object or purpose;
(d) the opinion would have no effect on the conduct of States;
(e) an advisory opinion on this question could adversely affect important disarmament negotiations;
(f) the question referred is purely abstract and theoretical;
(g) the question is too general;
(h) an opinion rendered in this matter would be damaging to the prestige of the Court;
(i) the Court would be involved in a law-making exercise, were it to render an opinion;
(j) this case falls outside the categories of cases in which an opinion ought to be given;
(k) the opinion would trespass into areas of State policy.
(a) The requested opinion would enter the political sphere
249 In the first place, it was argued that the request is only a search for means of support of a political objective and that, despite the “legal camouflage” (France, Written Statement, p. 7), the question is not a legal one. France indeed argued that “the questions are of a purely political nature” and that they “have obviously been put for exclusively political purposes” (CR 95/23, p. 66).
250 It was further submitted that the ruling sought from this Court goes beyond the will of the States concerned into areas they have carefully refrained from entering. In developing this point, it was argued that the topic of legality or illegality is one which States have deliberately chosen not to broach directly or indirectly. The method deliberately chosen by States on this matter is, we are told, “ by elaborating and developing a body of very complex and highly technical international treaty law” (CR 95/24, p. 41, Germany). Despite this, the request seeks, according to some submissions, to draw the Court into a purely political debate in a realm not pertaining to its judicial function. For such reasons, the request is said to be one which is not amenable to judicial enquiry.
251 These objections have been effectively answered by the Court, so far as concerns the General Assembly request. The same reasoning would apply in regard to WHO's request. Stronger objections have been taken to the WHO request than were taken in regard to the General Assembly request; but the same reasoning on which the Court has overruled the objections to the General Assembly request would apply equally to the WHO request. The fact that the legal question is inextricably interlinked with political considerations, that political motives are alleged to lie behind the request, that political consequences would ensue from a ruling of the Court — these are matters extraneous to the consideration whether a given matter is a legal one. In fact, in the international world there are few issues indeed which do not have political overtones in varying degrees. The weightier the issue, the heavier its likely political overtones. The heavier its political overtones, the more necessary it may be to seek a legal opinion. Whether the question be raised by the General Assembly or by WHO, if it is a legal issue it is a proper matter for the Court, and there this particular objection ends. As this Court has observed:
“in situations in which political considerations are prominent it may be particularly necessary for an international organization to obtain an advisory opinion from the Court as to the legal principles applicable with respect to the matter under debate” ( Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, I. C. J. Reports 1980, p. 87, para. 33).
252 The delicate nuances of diplomatic activity on the subject of nuclear weapons are matters for the appropriate political authorities to pursue. This Court cannot thereby be deterred from addressing its proper function — giving its considered opinion on the purely legal question referred to it, irrespective of the political implications of the subject.
253 Sir Gerald Fitzmaurice, in referring to the prior jurisprudence of the Court 54 , observed that, “if the question put [to the Court] is in itself a legal question, … the fact that it has a political element is irrelevant” 55 .
254 The joint dissenting opinion of Judges Onyeama, Dillard, de Aréchaga and Waldock is also worthy of note in this connection:
“‘Few indeed would be the cases justiciable before the Court if a legal dispute were to be regarded as deprived of its legal character by reason of one or both parties being also influenced by political considerations. Neither in contentious cases nor in requests for advisory opinions has the Permanent Court or this Court ever at any time admitted the idea that an intrinsically legal issue could lose its legal character by reason of political considerations surrounding it.’ ( Nuclear Tests ( New Zealand v. France ), I.C.J. Reports 1974, p. 518.)” (CR 95/27, p. 61.)
(b) Nuclear weapons are being addressed in other contexts in the United Nations
256 The argument that matters relating to nuclear weapons are the preserve of other organs of the United Nations has been used for two purposes in the present application:
(a) so far as concerns the capacity of WHO to make this application; and
(b) so far as concerns the capacity of this Court to consider the application.
257 The first has been dealt with in the section of this opinion dealing with the Principle of Speciality (Sec. V.2).
258 The second has been dealt with by the Court in answering the General Assembly's request. I associate myself with the Court's answer to that objection as contained in its Opinion regarding the General Assembly request.
259 The mere circumstance that a matter is pending in other forums cannot deprive a legal question of the quality of being legal, nor can it deprive the Court of a jurisdiction expressly vested in it by the Charter . Nor can the circumstance that it relates to international peace and security preserve such a matter within the exclusive jurisdiction of the Security Council and exclude it from the jurisdiction of the Court. It would be quite impossible for the Court to function as the principal judicial organ of the United Nations if this were the case, and the Court is required to abdicate jurisdiction merely because a matter involves peace and security.
260 The entire jurisprudence of the Court militates against this proposition. Cases such as the Genocide case, relating to Bosnia, and the Lockerbie case, despite the heaviest implications attaching to them relating to peace and security, were nevertheless entertained and handled by the Court. Likewise, in regard to advisory jurisdiction matters, the fact that the international status of South West Africa was a question which threatened peace and security did not prevent the Court from giving the opinion requested.
(c) An opinion would be devoid of object or purpose
262 Advisory procedure is intended to allow the body invoking it to seek a legal opinion that will be of assistance to it in the performance of its duties. WHO, for reasons best known to it, has decided to seek the Court's opinion. It is an expert body charged with worldwide responsibilities in relation to the health of the global population. As discussed earlier, it has obligations not only to render assistance after a health catastrophe, but to plan its services before the occurrence of the catastrophe. It would otherwise be denying itself the ability to be of maximum usefulness to the global community. It seeks information in regard to the nuclear catastrophe, the worst health catastrophe that can befall humanity. Provided the request is within the scope of its activities, as the earlier part of this opinion seeks to show, the Court must respect the technical judgment of WHO when it decides that it needs that opinion. As Egypt put it, it would be “improper” for the Court to indulge in speculation about the consequences of an opinion which the requesting organ, in its collective wisdom, has referred to the Court.
(d) An opinion would have no effect on the conduct of States
263 Clarification of the law by an authoritative body can never be described as having no effect upon the community bound by that law. The proposition is incontrovertible that clear law is a guide to societal conduct. Such clarity is in the interests of the community served by that law, whether that community be national or global. It is not for the Court to speculate as to whether that clarification of the law will be complied with or not.
264 As Egypt so aptly submitted, the first Advisory Opinion given by this Court on the status of South West Africa was a statement of the law which was not acted upon by those who should have acted upon it. The Court, rendering the opinion, was probably aware of the likelihood that this opinion would not be acted upon. Yet there can be little doubt that the clarification of the law resulting from that opinion was a factor which helped, over the long term, in the eventual dismantling of a structure which was anathema to the rule of law.
265 So, also, in regard to nuclear weapons. Whatever be the opinion of the Court, and whether the advisory opinion clarifying the law be acted upon or not, it must prove a valuable building block in the realization of a world ruled by law which in the ultimate analysis is what all members of the world community desire.
266 It is axiomatic that every individual in any community living under the rule of law is entitled to know the rules that relate to his or her protection, and the basic rules relating to the rights or duties of every member of that community. Not for nothing were the XII Tables publicly posted in the Roman forum. It would be strange indeed if the rule of law was said to prevail in any society whose individual members did not know whether, in quarrels between neighbours with which they were not concerned, their neighbours had the right to indulge in conduct which could destroy the former's lives and property. It would be stranger still if they did not have this right of information in matters which spell the difference between the survival and the extinction of their entire family. It cannot be any different in the international legal system.
267 The contention that the opinion would have no effect upon the conduct of States is thus not true to reality. The Court upholds the rule of law, serves a community bound to obey the rule of law and can only function on the supposition that a community subject to the rule of law will rule itself by law.
268 One is reminded of the statement of this Court in the Western Sahara case where the Court was greatly influenced, in deciding to respond positively to the request for an opinion, by the circumstance that its reply fulfilled “a practical and contemporary purpose” (I.C.J. Reports 1975, p. 20). It is difficult to think of a more “practical and contemporary purpose” than the clarification of the law attendant on the use or threat of use of nuclear weapons.
270 It is the unanimous sentiment of the international community, as evidenced in the Nuclear Non-Proliferation Treaty (Article VI of which commits every State to general and complete nuclear disarmament) and numerous other international documents, that there should be a striving towards the goal of total nuclear disarmament. The road towards this goal is a difficult one. The Court's opinion one way or another on the legality of nuclear weapons would clarify the steps which the international community needs to take towards removing the obstacles along the path to the attainment of that goal.
(e) An opinion could adversely affect important disarmament negotiations
272 It has been said in argument that a reply by the Court will adversely affect the course of current disarmament negotiations.
273 In terms equally applicable to the WHO request, France observed of the General Assembly's request:
“a reply from the Court, far from representing a positive contribution to the functioning of the General Assembly, and the United Nations as a whole, could but adversely affect the current negotiations to achieve a more secure world” (France, Written Statement, p. 16).
This is said to be particularly so at a time when, with the end of the Cold War, disarmament talks have achieved a fresh impetus.
274 It is not for the Court to indulge in speculation as to the likely effect upon future negotiations of a finding by the Court one way or the other. Nor is the Court competent to assess the subtle diplomatic nuances of complex situations in an area outside its proper domain. It is difficult to see how speculation as to whether an advisory opinion could adversely affect important disarmament negotiations can affect the question of the Court's competence to consider a legal question.
275 What the Court needs to consider is whether it is possessed of the requisite jurisdiction to address the particular matter on which an opinion is sought. If it has this jurisdiction it must proceed.
276 It is difficult to see how, if the Court has the authority to give this opinion, it should be invited to desist from using this authority merely because some members of the community of nations prefer to proceed upon the basis of uncertainty rather than clarity of the applicable law and thereby to proceed on premises which may eventually turn out to be false, one way or the other. Whether the use of the weapon would or would not be a breach of State responsibility, the sooner the correct position is known, the firmer will be the basis on which the negotiations will proceed.
(f) The question referred is purely abstract and theoretical
277 The question is said to be abstract and theoretical, as it is not related to any specific threat or imminent use of a nuclear weapon. Such opinion as the Court may give is said therefore to be one which has little regard to practicalities. It is submitted that the question is general, vague and imprecise, whereas Article 65 (2) of the Statute requires that the written request should contain “an exact statement of the question upon which an opinion is required”. Reference is made in this connection to the Advisory Opinion on Namibia where this Court observed that:
“to enable a court to pronounce on legal questions, it must also be acquainted with, take into account and, if necessary, make findings as to the relevant factual issues” ( Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 27).
278 France similarly argued that the Court's response should not involve speculation which, in the present case, is claimed to be inevitable in the absence of specific facts to which the legal question is related (France, Written Statement, p. 15).
279 France argued that it is:
“impossible to examine the issue of nuclear weapons irrespective of their real purpose, which is to avoid war. Nor can it disregard the fact that, for decades, the policy of deterrence has helped to ward off the risk of a new world conflict.” (Ibid., p. 20.)
280 Finland contended that the legality of the use of nuclear weapons can only be determined in respect of specific circumstances, for there can be a large number of potential situations — for example, first use, counter use, different practices of targeting, different types of nuclear weapons — and the Court cannot hypothesize about all these possibilities (Written Statement of Finland, p. 4). This aspect was rather bluntly put by France when it stated that, in the absence of factual issues, the Court would have to discover and invent them and that the Court's “function is to state the law, not to write scenarios” (CR 95/23, p. 62).
282 In the first place, the question posed to the Court is a very specific question relating to State responsibility for health, State responsibility in regard to the environment, and State responsibility under the WHO Constitution . The effects of nuclear weapons are amply documented and are well known. There is no element of abstractness about those concrete facts. The question posed by WHO relates those questions of State responsibility to those concrete facts.
283 Secondly, a distinction must be made between a question which is abstract in the sense of being unrelated to reality, and one which is abstract in the sense of being theoretical, though related to reality. A question based upon invented facts, unrelated to reality or upon problems stemming from those invented facts, is clearly the sort of abstract question which the Court cannot entertain. Self-evidently, the advisory jurisdiction of the Court was not constructed to enable it to stage moot courts, but to clarify legal problems on live issues in the real world. Few issues in the real world can be so live and cause such universal concern as the question whether or not the use of nuclear weapons is compatible with basic principles of State responsibility.
284 Thirdly, a request for an opinion upon a pure point of law which can clearly be of great practical importance to the community of nations cannot be ruled out on the basis of being abstract or hypothetical. The answer to such a question can be an invaluable source of guidance to the international community. The purpose of a clarification of the law is to assist individuals and entities subject to the law in guiding and controlling their social behaviour. Such a ruling, given in anticipation of an actual occurrence, would serve a useful societal purpose, as pointed out earlier. Such a ruling, given subsequent to an actual occurrence or threat, could savour of the ridiculous, especially in the context of such a question as the use of nuclear weapons.
285 In the fourth place, it seems to me that this objection is unrelated to the basic nature of the Court's advisory function. The advisory function was specifically tailored to deal with questions of law that have a practical connotation. For example, questions could be raised in anticipation, so as to clear doubts which might prevent an organization from deciding on its proper course of legal action in a foreseen eventuality. To attempt to restrict the advisory opinion to a specific situation which has actually arisen is to confuse the advisory function with the judicial function in contentious cases. The latter looks back upon a factual situation that has already occurred. It necessarily operates post factum. The advisory function, on the other hand, may look back to a past event or it may look forward to the future, seeking guidance for the resolution of an expected practical problem. It has the flavour of the work of the Roman jurisconsult whose opinions, by giving guidance for the future, in relation to situations which may not already have occurred, formed one of the principal factors in developing that monumental system of law.
286 It was after considerable debate that this advisory function was given to the Permanent Court and its successor; and it was one of the means by which this first ever international court was taken out of the narrow mould of contentious jurisdiction which had confined international tribunals in the past. The world community was thereby given the means to seek guidance, having regard to the many matters on which the world community would need guidance on the law in order to shape its conduct. The case of nuclear weapons, on the use or non-use of which all civilization depends, is the classic instance of such a matter. It is indeed difficult to see a more appropriate case for the invocation of that advisory jurisdiction.
287 To conclude the consideration of this ground of objection, reference should be made to the Conditions of Admission case where this Court observed:
“According to Article 96 of the Charter and Article 65 of the Statute , the Court may give an advisory opinion on any legal question, abstract or otherwise.” ( Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), 1948, I.C.J. Reports 1947–1948, p. 61 ; emphasis added.)
(g) The question is too general
288 Some submissions were made (for example, by Australia) that the question is too general. The analogy offered by Australia was the question “What are the rules of customary international law?” Though such a question is manifestly a legal question, it was submitted that this was the sort of question that the Court should not answer.
289 There can be little doubt that a question as broadly framed as the analogy suggested is far too general for it to be sensibly addressed. The present question is clearly in a totally different category. It does not traverse a considerable segment of the totality of international law as does the comparison offered, but is indeed a limited question, confined to State responsibility in regard to the use or threat of use of a specific type of weapon.
(h) An opinion rendered in this matter would be damaging to the prestige of the Court
290 It is submitted that if the Court should trespass outside its proper judicial function, such a course would be damaging to the Court's prestige. This case was contrasted with cases such as the Conditions of Admission case (supra) where the Court was invited to undertake what was described as an essentially judicial task, namely, the interpretation of a treaty provision. On the contrary, the question now before the Court is said to require the Court to engage in speculation and to encroach upon the sovereign powers of States. Were the Court to move in this direction, it is argued that it would compromise the Court's judicial role.
291 It cannot be damaging to the Court to consider a legal question properly referred to it. What could be damaging to the Court is a refusal by it to consider such a question on grounds of political implications and like considerations, for then the Court would (to quote the P.C.I.J.'s statement in Status of Eastern Carelia , as approved by this Court in Northern Cameroons) “depart from the essential rules guiding their activity as a Court”.
(i) The Court would be involved in a law-making exercise if it rendered an opinion
292 This objection covers well-trodden jurisprudential ground. “Do judges, in deciding cases, make law under cover of merely applying pre-existing law?” It is not proposed to enter into that discussion here, except to observe that the law has always relied for its development on the ability of the judiciary to apply the general principle to the specific instance. Out of the resulting clarification comes further development.
293 If the law were all-embracing, self-evident and specifically tailored to cover every situation, the judicial function would be reduced to a merely mechanical application of rules. By very definition, international law is not such a system any more than any domestic system is. Its inherent principles infuse it with vitality, enabling it to apply them to new situations as they arise and give them a specificity they lacked before. When the nuclear weapon emerged, a hundred years after modern humanitarian law had begun to evolve, no specific rule banning nuclear weapons as such could have been contained within its repertory of specific rules. For various reasons, which have been dealt with in the relevant literature 56 , the emergence of a rule dealing specifically with nuclear weapons has been delayed for half a century. The Court is now being invited to exercise its classic judicial function. It is being asked to pronounce whether general principles already existing in the body of international law are comprehensive enough to cover the specific instance. To suggest that this is to invite the Court to legislate is to lose sight of the essence of the judicial function.
(j) The case falls outside the categories of cases in which an opinion ought to be given
294 The United Kingdom, in its written statement in reply to the General Assembly's request (p. 11, para. 2.27), submits that the present request does not fall within any of the categories of cases in which, as a matter of propriety, an opinion ought to be given. It was also argued (for example by Australia) that the facts and issues of this case raise matters different from any previous request for an advisory opinion. It was pointed out that previous requests have related to such matters as the constitutional powers of a United Nations organ or specialized agency, the construction of a constituent instrument, or the discharge of particular functions by the requesting organ.
295 The Court's jurisdiction to grant advisory opinions cannot be considered in terms of categories or precedents. The express language of the Statute enables the Court to give an advisory opinion on any legal question that is referred to it, and the categories of cases on which an advisory opinion may with propriety be sought are never closed. The qualification or limitation of such a wide enabling power cannot rest on the absence of precedent, but must rest on considerations based on some fundamental matter of principle.
(k) An opinion would trespass into areas of State policy
296 One of the submissions of States opposing the Court's consideration of this question was that the question on which the Court is invited to pronounce involves, inter alia, the place of the policy of deterrence in the maintenance of world peace. It was said that such a concept involves direct or indirect assessments of international strategic balances and of particular defence policies of individual States. The Court was urged not to stray into these areas of individual State sovereignty and, more importantly, into an evaluation of military considerations.
297 An argument adduced in support of this contention was that the requested opinion would render it necessary for the Court to deal with the different types of nuclear weapons — those of limited strike capability, for example, as distinguished from larger weapons, and that the Court would then be pronouncing upon which types of weapon a State would be entitled to use, whereas such matters fall essentially within the province of each individual State to determine — matters of strategy and defence policy being undeniably within the purview of each State. It was argued also that if the Court pronounces on the illegality of one category of weapon, the nuclear, it would then equally have jurisdiction to pronounce upon other weapons of a more traditional nature, thus bringing it again within areas of authority appertaining to the individual State.
Reliance was placed in this context upon the Court's statement, already cited in another connection, that:
“in international law there are no rules, other than such rules as may be accepted by the State concerned, by treaty or otherwise, whereby the level of armaments of a sovereign State can be limited” ( Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ), I.C.J. Reports 1986, p. 135; CR 95/23, pp. 71 and 79, France).
298 Such contentions are unsustainable for a variety of reasons:
— the Court's dictum in the Nicaragua case, as already observed, does not deal with the use of weapons, which is the matter on which the Court's opinion is sought in this case;
— it has never been argued that the rules relating to the laws of war or international humanitarian law, which in fact regulate the conduct of States, constitute an intrusion upon State sovereignty, or an interference in a State's military decisions. What is sought from the Court is no more than an opinion on the legal question whether a particular weapon, by reason of its nature and known consequences, violates certain well-established principles of international law;
— if, in fact, a particular type of weapon -for example, chemical or bacteriological — is contrary to international law, its prohibition may indeed affect questions of strategy and strategic balance in the sense that a State without those weapons would be less powerful than a State with those weapons. One has yet to hear it argued that, for this reason, such prohibitions trespass upon a State's sovereign rights regarding the level of strategic balance it wishes to maintain. It can be no different with nuclear weapons. If international law decrees a particular weapon illegal, that can constitute no interference with questions of State strategy;
— the Court's opinion is sought on the question whether all nuclear weapons, irrespective of their size or quality, offend basic principles of international law. For this reason, it is competent to the Court to consider the question put to it without drawing any distinctions in regard to the category of nuclear weapons used;
— the WHO request makes an enquiry regarding State obligations in the special fields of environment and health. In the present state of international law, there can be no question that special State obligations have evolved in these fields. No serious contention has even been set up thus far that when international law recognizes special State obligations in those fields, it is trespassing into areas of State policy. International law has long passed the stage when it was possible to contend that the manner in which a sovereign treated his subjects or the territory under his control was a matter within his absolute authority, unlimited by international norms and standards.
4. The Court's Responsibilities
(a) As a judicial institution
299 As already observed (see Sec. VII.2), advisory opinion jurisdiction vests the Court with a judicial function which must be discharged in a judicial fashion. The Court's consistent jurisprudence reaffirming this principle has already been cited.
300 This means, inter alia, that the Court confines itself to legal issues, decides according to judicial criteria, uses judicial procedures, and exercises its discretion in a judicial manner. By such means is judicial duty discharged, and it is self-evident that political and diplomatic considerations are not part of this process.
301 The criteria and procedures the Court applies are contained in its Statute and Rules , in the corpus of international law, in its own jurisprudence, and in the well-accepted universal principles relating to the nature of the judicial process. The fact that the judicial function is exercised in an advisory capacity does not result in any deviation regarding the principles governing the judicial process, not the least of which is that jurisdiction can be declined only for a good judicial reason. The Court's own jurisprudence has held that nothing short of “compelling reasons” would constitute such a good judicial reason.
(b) As a principal organ of the United Nations
302 Quite apart from the Court's responsibility as a judicial body, there is also its responsibility within the United Nations family as the principal judicial organ of the United Nations. It is not a Court existing outside the United Nations system, but one functioning from within. It is in a state of harmonious co-existence and co-operation with the other organs of the Organization in their common goal of the attainment of world peace and the high ideals set before them all by the United Nations Charter .
303 As the Court observed in Interpretation of Peace Treaties with Bulgaria, Hungary and Romania :
“the reply of the Court, itself an Organ of the United Nations', represents its participation in the activities of the Organization, and, in principle, should not be refused” (I.C.J. Reports 1950, p. 71).
304 A factor to be borne in mind additionally is the precedential effect of a refusal to render an opinion. This is all the more so in regard to such a question as one relating to the future of global peace, to the well-being of the international community, and to the central objectives of the United Nations.
305 I believe that functions such as this are among the most important with which the Court can be entrusted and that it would not only be eminently proper and fitting, but obligatory upon the Court to render the legal opinion requested. Failure to render so important a decision on grounds such as those advanced is scarcely compatible with the Court's position as “the principal judicial organ” of the United Nations.
5. The Refusal for Want of Jurisdiction
306 I wish to note finally my disagreement with the Court's reasoning, which couches its refusal to answer WHO's request in terms of lack of jurisdiction. I do not think this is a case of lack of jurisdiction. The dismissal is based not upon any incapacity of the Court, for constitutional reasons, to consider the request, but rather upon the Court's view that WHO, in requesting this opinion, is traversing outside the proper area of its legitimate authority. The Court has held that WHO has no status to make this enquiry. It is for this reason that the application is refused.
307 The Court's jurisdiction to render an advisory opinion is an ample jurisdiction, conferred on the Court after mature deliberation, to enable it to make a vital contribution to the functioning of international society according to law. The formula of refusal for lack of jurisdiction tends to suggest some deficiency in the scope of that jurisdiction when in fact there is none.
308 The case is no more a case of want of Court jurisdiction than a case in which a court refuses to entertain an application made by an applicant who, for one reason or another — for example, minority — lacks the capacity to make such an application. Such a request would be refused by the court for the applicant's want of capacity and not for the court's want of jurisdiction. It may be a case of lack of jurisdiction in the sense that a court has no jurisdiction to make any order unless the party seeking it has, in the first place, the right to approach the court. Yet in such an instance the want or shortcoming is not in the powers of the court but in the status of the applicant.
309 I consider this aspect to be of some importance. It is essential to the development of the Court's advisory jurisdiction that there should not be an impression among those who may seek to use it of some jurisdictional limitation which prevents the Court from taking cognizance of a matter such as this.
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310 For the reasons set out above, it seems clear that
1. WHO has an interest in matters of global health, even though they also concern questions of peace and security.
2. WHO has an interest in environmental matters, even though they also concern questions of peace and security.
3. The fact that other organs in the United Nations system are expressly charged with responsibilities in the area of peace and security does not preclude WHO from concerning itself with matters of peace and security to the extent that they affect global health and the global environment.
4. There are compelling medical and environmental reasons which require WHO to take an interest in the matter on which it seeks an opinion.
5. There are several constitutional provisions rendering the requested opinion relevant to WHO.
6. The impossibility of curative steps forces WHO into the area of prevention.
7. WHO has a legitimate interest in knowing whether the use of nuclear weapons constitutes a violation of State obligations in relation to health.
8. WHO has a legitimate interest in knowing whether the use of nuclear weapons constitutes a violation of State obligations in relation to the environment.
9. WHO has a legitimate interest in knowing whether State obligations under its own Constitution are violated by the use of nuclear weapons.
10. There are State obligations under international law in regard to health which would be violated by the use of nuclear weapons.
11. There are State obligations under international law in regard to the environment which would be violated by the use of nuclear weapons.
12. There are State obligations under international law in regard to the WHO Constitution which would be violated by the use of nuclear weapons.
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311 With much respect, it seems to me to be a compelling conclusion that, in the light of the medical facts surrounding the use of nuclear weapons, WHO is well within its constitutional functions in concerning itself with the question of the legality of nuclear weapons. It transcends no limitations of power or propriety in seeking this opinion from the Court. It does so in pursuance of its mandated constitutional functions as well as in pursuance of its duties as a protector of global health. The futility of medical treatment after a nuclear catastrophe is a reason that cries out aloud for attention in the fields of planning and prevention, and it would be an irresponsible custodian of global health that stands aloof from that question, waiting for the medical catastrophe to occur in which it is powerless to extend any meaningful medical assistance.
312 The matter assumes added importance because the increasingly complex ramifications of international life in the future will perhaps oblige the specialized agencies from time to time to seek clarifications from the Court of the law relating to their areas of interest. International law, in many of these new areas, will be in need of development, and this Court, by virtue of its advisory jurisdiction, will be in a special position to assist in that development.
313 These needs of the future will require all United Nations instrumentalities to work in the spirit of their respective constitutions rather than to confine their vision within compartmentalized categories of exclusive activity. They should in the like spirit be free to approach the Court for assistance in the clarification of legal matters they need to know for the due discharge of their responsibilities within their allotted sphere.
314 The family of United Nations agencies, in working harmoniously for the common welfare of the global community, will need to work as a team, each helping the other with the special expertise that lies within its province. The Court's advisory jurisdiction is a means par excellence by which the Court can discharge its responsibilities in this regard.
315 It is my opinion that the Court should answer the question WHO has addressed to it and that it should answer WHO's question in the affirmative.
316 If this dissent sets out my views in some depth and detail, it is because no less is necessary on an issue of this magnitude. An important feature of the tradition of judicial responsibility is that the judges “will not hesitate to speak frankly and plainly on the great issues coming before them”.
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This opinion may appropriately be closed with an extract from John Hersey's classic narrative, Hiroshima 57 . It shows the total inadequacy of medical facilities in a well-organized country after a single nuclear attack with a comparatively small weapon:
“Patients were dying by the hundreds, but there was nobody to carry away the corpses … By three o'clock in the morning, after nineteen straight hours of his gruesome work, Dr. Sasaki was incapable of dressing another wound. He and some other survivors of the hospital staff got straw mats and went outdoors … and lay down in hiding to catch some sleep. But within an hour wounded people had found them; a complaining circle formed around them: ‘Doctors! Help us! How can you sleep?’”
317 In this case the custodians of health have not been asleep, and it is to the Court that they turn for assistance. They do so on a matter which is within their legitimate sphere of interest. They do so on a matter peculiarly within the expertise of the Court. They do so in pursuance of their constitutional right to seek a legal opinion from this Court. They do so concerning the legality of the most profound and far-reaching man-made threat to health in human history. International law joins with the imperatives of global health in requiring the Court to answer that request.
(Signed) Christopher Gregory Weeramantry.
Dissenting Opinion of Judge Koroma
1 The Court, in this Advisory Opinion in which it declines to grant the request of the WHO for an opinion as to whether
“in view of the health and environmental effects, … the use of nuclear weapons by a State in war or other armed conflict [would] be a breach of its obligations under international law including the WHO Constitution ”,
reached the rather unprecedented finding that the request does not relate to a question “arising within the scope of [the] activities” of the Organization in accordance with Article 96, paragraph 2, of the Charter , that an essential prerequisite for the exercise of its jurisdiction in the case is absent and that it does not, accordingly, have jurisdiction to render the opinion requested. This finding of lack of jurisdiction to respond to a request for an advisory opinion is not only unprecedented for this Court but is also at considerable variance with its jurisprudence constante.
2 In the Western Sahara case, the Court emphasized that its function
“is to give an opinion based on law, once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently, are not devoid of object or purpose” (Advisory Opinion, I.C.J. Reports 1975, p. 37, para. 73).
3 In the same Opinion, the Court reaffirmed that only “compelling reasons” should lead it to refuse to give a requested advisory opinion (ibid., p. 21). The question put by the WHO, in my view, relates to an issue which is not only of direct relevance to the Organization but has practical and contemporary effect as well and is not devoid of object or purpose, as will be shown later, nor is there any “compelling reason” why the opinion should not have been rendered.
4 Confronted with what appears to me to be inconsistent jurisprudence, I find myself not only in disagreement with most of the reasoning of the Opinion of the Court but disagree totally with its findings. For, as the Court itself has stated, “whatever the legal reasoning of a court of justice, its decisions must by definition be just” ( North Sea Continental Shelf , I.C.J. Reports 1969, p. 48). Since the request by itself is of such fundamental importance to the WHO and its member States and raises serious issues of fact and law, I feel constrained to set out my position on the matter.
Importance of the Request by the WHO
5 On the basis of studies carried out by the WHO as well as other materials before the Court, the Court was told that, should a nuclear weapon be used in an armed conflict, the number of dead would vary from 1 million to 1,000 million, to which the same number of people injured is to be added. If a larger number of nuclear weapons were to be used, severe environmental effects, including the disruption of transport, food delivery, fuel, and basic medical supplies, would occur and result in possible famine and mass starvation on a global scale. Civilized and organized community life would come to an end not only in the countries involved in the conflict but even in those not involved ; millions would die from the effects of intense and widespread radioactive fallout. Such a catastrophe, it was argued, would be in violation of the health and environmental obligations undertaken by States under international law, particularly international humanitarian law, as well as under the Constitution of the WHO . Whether or not such obligations exist for States and whether they would be violated in the course of war or other armed conflict involving the use of nuclear weapons is, in my view, an eminently suitable matter for the Court to determine in accordance with its Statute.
Effects of the Use of Nuclear Weapons in an Armed Conflict
6 According to detailed studies carried out by the WHO on the Effects of Nuclear War on Health and Health Services and presented to the Court by the WHO, in a conflict involving the use of a single nuclear weapon, such a weapon could have a destructive power of a million times that of the largest conventional weapon.
7 A detonated nuclear weapon would produce three major sources of death and injury : the heat wave blast and instantaneous radiation. The enormous thermal energy produced will be the main cause of casualties. Immediate charring of the exposed parts of the body in the direct line of the thermal rays will be caused either by the direct thermal pulse or thermal wave. Flash bums would occur within fractions of a second and reach their maximum within a few seconds. Indirect burns would result in many more casualties.
8 Blast will cause shock waves, causing buildings to collapse, debris to fly with individuals hurled into the air as immovable objects causing head injuries, fractures, crush injuries and abdominal and thoracic injuries. A 1-megaton air burst could kill everyone within a radius of 7 km from the hypocentre.
9 Radiation resulting from the immediate burst of gamma and neutron radiations or from the fallout of radioactive particles will produce gastrointestinal effects, including anorexia, nausea, vomiting, diarrhoea, intestinal cramps and dehydration. Neuromuscular effects producing fatigue, fever, headache, hypertension and hypertensive shock would occur. Inhalation of radioactive dust would produce long-term effects such as fibrosis and cancer, coughing, shortness of breath and feelings of drowning, leading to death by hypoxia, pneumonia and sepsis. Ingestion of radionuclides will induce thyroid cancer. An immediate source of destruction would be the electromagnetic pulse which would lead to the impairment of electronic devices, including those needed for health services. Initially, the release of radioactive substances and human exposure to them would play a secondary role in terms of the health effects produced.
10 The report further notes that the destruction and impairment of health services would greatly impede efforts to treat the victims ; among those killed and injured would be about 80 per cent of physicians, nurses and other health workers. Hospitals and health facilities would be destroyed or greatly damaged, while power supplies, which are important for the operation of hospitals, would be interrupted and would severely interfere with the treatment and care that could be provided.
Intermediate and Long-term Effects of the Use of Nuclear Weapons
12 The intermediate and long-term effects, the report continues, would range from after-effects of the injuries sustained from the explosion to long-term effects of radiation exposure and health problems caused by the disruption and destruction of health services. Those who survived the acute effects of a nuclear explosion would still be confronted by protracted non-healing wounds, suppurating extensive burns, skin infestations, gastrointestinal infections and psychic trauma.
13 Suppression of the body's immune system is recognized as a consequence of radiation over-exposure. Ionizing radiation would reduce the helper T-lymphocytes and would increase the suppressor T-lymphocytes, thus increasing the victim's vulnerability to infection and cancers. Other effects of the explosion, such as burns, trauma and psychic depression would also influence the immune response.
14 The drastic fall in available health services on account of the small number of remaining health personnel, health centres, supplies of functioning ambulances and the immense logistical difficulties would render care totally inadequate.
15 Long-term effects, such as cancer induction and genetic damage would result from instantaneous radiation during the explosion and long-term radiation contamination of the environment. The survivors of the nuclear explosion and the population of contaminated areas would be at risk from such effects. The risk from instantaneous radiation would vary depending on the dose received, whole-body irradiation or estimated lifetime risk of mortality, and all forms of cancer.
16 Genetic defects among offspring of the survivors is said to be one of the risks, which would not be limited to the immediate offspring of the exposed, but would extend over many generations. Exposure to plutonium particles could produce chromosomal instability which could be transmitted to the progeny, thus causing cancer in future generations.
17 Other long-term effects are said to include behavioural and psychological disturbances ; after an initial tendency to profound apathy and disorientation, feelings of guilt would appear. Survivors would have a continuing fear of cancer and late effects of radiation and an expectation of abnormalities in their offspring.
Health-Related Environmental Effects of the Use of Nuclear Weapons
Effects of Actual Use
18 Furthermore and according to the material, within the extensive destruction of the built environment, a nuclear explosion would destroy public health and sanitary facilities, thus opening the way for the spread of disease. Water supplies would be contaminated not only by radioactivity but also by pathogenic bacteria and viruses ; sewage treatment and waste disposal facilities would almost completely disappear.
19 Great numbers of putrefying human bodies and animal carcasses as well as untreated waste and sewage would provide an easy breeding ground for flies and other insects. Diseases like salmonellosis (food poisoning), shigellosis (dysentery), infectious hepatitis, amoebic dysentery, malaria, typhus, streptococcal and staphylococcal infections (pus-producing), respiratory infections and tuberculosis would occur in epidemic form over vast areas.
20 In addition to the acquired health risk for survivors from high-dose external radiation, the report points out that longer-lived radioisotopes would lead to a risk for the population over a large area and over long periods. An impaired immune system would contribute later to an increased incidence of cancer.
21 With regard to environmental effects, the report states that if a number of powerful nuclear weapons were used at the same time, global environmental disturbance and climatic changes would take place. As regards trees, evergreens would be especially vulnerable to radiation, coniferous forests would be liable to suffer most, whereas weeds which are more resistant would proliferate. Radiation, the report continued, would be harmful to crops and the food chain ; livestock would be harmed and milk and meat products contaminated. Plant pests which are particularly resistant would abound. The marine ecosystem would become contaminated and suffer similarly. For all practical intents, the report points out, there would be a severe shortage of edible and sustaining substances, at a time when the victims' needs were greatest.
The Socio-Economic Effects of the Use of Nuclear Weapons
23 While noting the socio-economic impact of the use of nuclear weapons, the report finds that this would be devastating. After a nuclear war, besides the extensive breakdown of health facilities, attendant social structures, the economic system, communication lines and the very fabric of society would be severely disrupted.
24 Evacuation of large numbers of people to uncontaminated areas in the same country or a mass exodus to neighbouring countries would imply not only exacerbated health problems but also a series of social and economic difficulties for both the abandoned area and the receiving regions. Shortages of food, the possibility of inter-communal strife, disarray due to lack of work, societal disorganization, poverty, dependence and apathy, or revolts, would all converge to create complicated social and economic problems that would in all likelihood be of some duration.
25 Environmental degradation would create poverty and shortages of food which, in turn, would exacerbate social friction, conflict and disorganization of authority, which might lead to violence and societal disintegration.
26 Adults, the report observes, tend to fear genetic defects and cancer, as has been noted among the survivors of Hiroshima and Nagasaki and the affected population of Chernobyl.
27 Thus, a society that suffered a major nuclear devastation would be traumatized and, most likely, profoundly changed.
28 According to the Mayor of Hiroshima who made a testimony to the Court, the atomic bomb which was detonated in Hiroshima produced an enormous destructive power and reduced innocent civilian populations to ashes. Women, the elderly and the newborn were said to have bathed in deadly radiation. The dropping of the bomb unleashed a mushroom cloud and human skin was burned raw while other victims died in desperate agony, he stated. He further told the Court that when the bomb exploded, enormous pillars of flame leaped up towards the sky and a majority of the buildings crumbled with many people dead or injured.
29 Later in his testimony he described the unique characteristic of the atomic bombing as one whose enormous destruction was instantaneous and universal. Old, young, male, female, soldiers, civilians were all killed indiscriminately. The entire city of Hiroshima, he said, had been exposed to thermal rays, shock-wave blast and radiation. The bomb purportedly generated heat that reached several million degrees centigrade. The fireball was about 280 metres in diameter, the thermal rays emanating from it were thought to have instantly charred any human being who was outdoors near the hypocentre. The witness further disclosed that according to documented cases, clothing had burst into flames at a distance of 2 kilometres from the hypocentre of the bomb ; many fires had been ignited simultaneously throughout the city; the entire city had been carbonized and reduced to ashes. Yet another phenomenon was a shock-wave which inflicted even greater damage when it ricocheted off the ground and buildings. The blast wind which resulted had, he said, lifted and carried people through the air. All wooden buildings within a radius of 2 kilometres collapsed ; many well beyond that distance were damaged.
30 The blast and thermal rays combined to burn to ashes or cause the collapse of approximately 70 per cent of the 76,327 dwellings in Hiroshima at the time. The remainder were partially destroyed, half-bombed or damaged. The entire city was said to have been instantly devastated by the dropping of the bomb.
31 On the day the bomb was dropped, the witness further disclosed that there were approximately 350,000 people in Hiroshima, but it was later estimated that some 140,000 had died by the end of December 1945. Hospitals were said to be in ruins with medical staff dead or injured and with no medicines or equipment, and an incredible number of victims died, unable to receive sufficient treatment. Survivors developed fever, diarrhoea, haemorrhaging, and extreme fatigue, many died abruptly. Such was said to be the pattern of the acute symptoms of the atomic bomb disease. Other consequences were widespread destruction of cells, loss of blood-producing tissue, and organ damage. The immune systems of survivors were weakened and such symptoms as hair loss were conspicuous. Other experiences recorded were an increase in leukaemia, cataracts, thyroid cancer, breast cancer, lung cancer and other cancers. As a result of the bombing, children exposed to radiation suffered mental and physical retardation. Nothing could be done for these children medically and even unborn babies, the Mayor stated, had been affected. The exposure in Hiroshima to high levels of radiation, he concluded, continues to this day.
32 The Mayor of Nagasaki, in his testimony, described effects on his city that were similar to those experienced by Hiroshima as a result of the atomic bombing which had taken place during the war. According to the witness,
“The explosion of the atomic bomb generated an enormous fireball, 200 metres in radius, almost as though a small sun had appeared in the sky. The next instant, a ferocious blast and wave of heat assailed the ground with a thunderous roar. The surface temperature of the fireball was about 7,000° C, and the heat rays that reached the ground were over 3,000° C. The explosion instantly killed or injured people within a two-kilometre radius of the hypocentre, leaving innumerable corpses charred like clumps of charcoal and scattered in the ruins near the hypocentre. In some cases not even a trace of the person's remains could be found. The blast wind of over 300 metres per second slapped down trees and demolished most buildings. Even iron reinforced concrete structures were so badly damaged that they seemed to have been smashed by a giant hammer. The fierce flash of heat meanwhile melted glass and left metal objects contorted like strands of taffy, and the subsequent fires burned the ruins of the city to ashes. Nagasaki became a city of death where not even the sounds of insects could be heard. After a while, countless men, women and children began to gather for a drink of water at the banks of nearby Urakami River, their hair and clothing scorched and their burnt skin hanging off in sheets like rags. Begging for help, they died one after another in the water or in heaps on the banks. Then radiation began to take its toll, killing people like a scourge of death expanding in concentric circles from the hypocentre. Four months after the atomic bombing, 74,000 were dead and 75,000 had suffered injuries, that is, two-thirds of the city population had fallen victim to this calamity that came upon Nagasaki like a preview of the Apocalypse.” (CR 95/27, p. 38.)
33 The witness went on to state that even people who were lucky enough to survive continue to this day to suffer from the late effects unique to nuclear weapons. Nuclear weapons, he concluded, bring in their wake indiscriminate devastation to civilian populations.
34 According to the testimony by the delegation of the Marshall Islands which was the site of 67 nuclear weapons tests from 30 June to 18 August 1958, during the period of the United Nations Pacific Islands territories trusteeship, the total yield of those weapons was said to be equivalent to more than 7,000 bombs the size of which destroyed Hiroshima. These nuclear weapon tests were said to have caused extensive radiation, induced illnesses, deaths and birth defects. Further on in the testimony, it was disclosed that human suffering and damage to the environment occurred at great distances, both in time and in geography, from the sites of detonations even when an effort was made to avoid or mitigate harm. The delegation went on to inform the Court that the unique characteristics of nuclear weapons are that they cause unnecessary suffering and include not only widespread, extensive, radioactive contamination with cumulative adverse effects, but also locally intense radiation with severe, immediate and long-term adverse effects, far-reaching blast, heat, and light resulting in acute injuries and chronic ailments. Permanent, as well as temporary, blindness from intense light and reduced immunity from radiation exposures were said to be common and unavoidable consequences of the use of nuclear weapons, but uncommon or totally absent when other destructive devices were employed.
35 The delegation further disclosed that birth defects and extraordinarily prolonged and painful illnesses caused by the radioactive fallout inevitably and profoundly affected the civilian population long after the nuclear weapons tests had been carried out. Such suffering had affected generations born long after the testing of such weapons. The Court was told that, apart from the immediate damage at and near ground zero (where the detonation took place), there had been a large-scale contamination of animals and plants and a poisoning of both soil and water. As a consequence thereof, some of the islands were still abandoned and on those islands that had recently been resettled, the presence of caesium in plants from the radioactive fallout rendered them inedible. Women on some of the other atolls in the Marshall Islands who had been assured that their atolls were not affected by radiation, were said to have given birth to “monster babies”. A young girl on one of these atolls was said to have no knees, three toes on each foot and a missing arm ; her mother had not been born by 1954 when the tests started but had been raised on a contaminated atoll.
The Role of the World Health Organization and International Health Work
37 The World Health Organization is the United Nations specialized agency responsible for protecting and safeguarding the health of all peoples at the international level and its responsibilities include the taking of measures to prevent health problems on a catastrophic scale, such as those which may result from the use of nuclear weapons. In this regard, the Organization deals primarily with preventive and more particularly with administrative preventive medicine.
38 Against this background, it is understandable, and in conformity with its mandate, that the WHO took the view that prevention is the only way from realizing the catastrophic consequences which the explosion of a nuclear weapon would bring in its trail.
39 Furthermore, according to its Constitution , the objective of the WHO is “the attainment by all peoples of the highest possible level of health”, defined as “a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”. In pursuance of its objectives, the WHO is endowed with 22 functions, including the following :
“(a) to act as the directing and co-ordinating authority on international health work ;
… … … … … … … … …
(c) to assist Governments, upon request, in strengthening health services ;
(d) to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments ;
… … … … … … … … …
(k) to propose conventions, agreements and regulations, and make recommendations with respect to international health matters and to perform such duties as may be assigned thereby to the Organization and are consistent with its objective ;
… … … … … … … … …
(m) to foster activities in the field of mental health, especially those affecting the harmony of human relations ;
… … … … … … … … …
(p) to study and report on, in co-operation with other specialized agencies where necessary, administrative and social techniques affecting public health and medical care from preventive and curative points of view, including hospital services and social security ;
(q) to provide information, counsel and assistance in the field of health;
(r) to assist in developing an informed public opinion among all peoples on matters of health ;
… … … … … … … … …
(v) generally to take all necessary action to attain the objective of the Organization.”
40 Given the very serious health and medical problems which would ensue as a result of the use of nuclear weapons, death and injury to civilians and medical personnel alike, destruction of hospital and medical supplies, it follows that it would be within the WHO's mandate to take measures to address and alleviate such a situation. For instance, and in line with its mandate, the WHO would be required to provide medical assistance and emergency relief to the victims of such assistance, help in the restoration of medical services and attempt to organize and co-ordinate medical assistance in terms of the provision of necessary drugs and medical personnel both at the national and international level.
41 According to studies carried out, following the First World War, 20 million people -a higher figure than those killed in the course of the war itself -were said to have died as a result of an outbreak of an influenza epidemic with which the international community was not prepared to deal, and should such an eventuality occur in the wake of a nuclear war, the WHO would be expected and required to address a similar outbreak, in accordance with its Constitution .
42 Furthermore, according to the material before the Court, the WHO has been concerned with the effects of nuclear weapons on health for many years. In 1984 and 1987 it presented detailed reports on the effects of nuclear war on health and health services, recognizing that it had been established that no health service in the world could assure the conditions in which people could be healthy or achieve physical, social and mental well-being, or could alleviate in any significant way a situation resulting from the use of even one single nuclear weapon, and that primary prevention is the only appropriate means to deal with the health and environmental effects of the use of nuclear weapons.
43 Faced with the possible magnitude of the health and environmental consequences resulting from the use of nuclear weapons and realizing that the health hazards associated with the use of such weapons could only be obviated by means of prevention, the WHO requested the Court to give an advisory opinion as to whether, in view of the health and environmental consequences, the use of nuclear weapons by a State in war or other armed conflict would be a breach of its obligations under international law, including the WHO Constitution .
“Upon authorization by the General Assembly of the United Nations or upon authorization in accordance with any agreement between the Organization and the United Nations, the Organization may request the International Court of Justice for an advisory opinion on any legal question arising within the competence of the Organization.”
“The General Assembly authorizes the World Health Organization to request advisory opinions of the International Court of Justice on legal questions arising within the scope of its competence other than questions concerning the mutual relationships of the Organization and the United Nations or other specialized agencies.”
Health and Environmental Obligations of States
47 The question posed by the WHO presupposes that States had undertaken certain legal obligations in relation to health and the environment which would be violated by the use of nuclear weapons in war or other armed conflict. These obligations are said to be found mainly in international humanitarian law as reflected in specific conventions and in customary international law applicable in war or armed conflict.
48 Foremost among these is said to be the obligation according to which the right of a State to injure a belligerent is not unlimited and means of warfare which caused unnecessary suffering are prohibited. This obligation is said to be reflected in the 1868 Declaration of St. Petersburg , which represents the beginning of the application of humanitarian principles to the necessities of war and forbids the use of projectiles weighing less than 400 g that are explosive or charged with inflammable substances. The obligation also found expression in the Declaration of Brussels of 1874, according to which the laws of war do not recognize in belligerents an unlimited power to adopt whatever means to injure the enemy. Based on this principle, States were, inter alia, prohibited from :
1. The employment of poison or poisoned weapons.
2. The employment of arms, projectiles or material calculated to cause unnecessary suffering, as well as the use of projectiles prohibited by the St. Petersburg Declaration.
49 The principle is also codified in the Hague Convention IV of 1907, Article 22 of which provides that the right of belligerents to adopt means of injuring the enemy is not unlimited. According to Article 23, paragraph (a) , the employment of poison and poisoned weapons, and the employment of arms, projectiles or materials calculated to cause unnecessary suffering is prohibited. Article 25 prohibits “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended”. Also said to be relevant in this regard are both the 1925 Geneva Protocol which reaffirms the prohibition of the use of poison gases and of analogous materials and bacteriological methods of warfare and the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction . The principle, it is said, was reaffirmed and codified in Article 35, paragraph 1, of Additional Protocol I of 1977 .
50 It is argued that the explosive and blast effects of nuclear weapons and their other instant and long-term effects including genetic consequences place them in the category of weapons of mass destruction that cause superfluous and excessive injury and suffering over a long period of time and space. The use of such weapons, it is submitted, would violate the aforementioned principle and accordingly the obligations undertaken both under customary international law and the relevant international conventions and instruments.
51 One other obligation undertaken by States which, it was contended, would be violated by the use of nuclear weapons in an armed conflict relates to the principle of discrimination between combatants and noncombatants and between military and non-military objectives which also has its basis in customary international law. The principle is said to be reflected in Article 27 of the Hague Regulations , and Articles 22 and 24 of the Draft Hague Rules on Air Warfare of 1923, is largely accepted as customary law, and is now codified in Articles 51 and 52 of Additional Protocol I to the 1949 Geneva Conventions . These instruments are said to prohibit indiscriminate attacks. It was argued that, given the known characteristics of nuclear weapons, the detonation of such a weapon in an armed conflict would fail to differentiate between combatants and non-combatants and, as such weapons release radioactivity which is detrimental to human beings and destructive to the environment, their use would violate the obligation to discriminate during armed conflict between combatants and non-combatants and between military and non-military objectives.
52 Furthermore, under the Geneva Convention of 1949, belligerents are said to be obliged to perform post-battle obligations, which include the duties of collecting the wounded and the dead, of individual burial, of evacuation of prisoners, of the ban on exposing prisoners to unnecessary danger, together with the rules on the protection of persons and property, wounded and sick members of the armed forces, hospital ships and medical transporters. It has been suggested that such duties could not be fulfilled should nuclear weapons be used in an armed conflict, because of their radioactive and other effects.
53 According to Article 147 of the Fourth Geneva Convention of 1949, the commission of acts against protected persons, serious injury to body or health, and extensive destruction of property not justified by military necessity are qualified as grave breaches of the Convention, while, according to Article 85 of Additional Protocol I “making the civilian population or individual civilians the object of attack” (para. 3(a), and
“launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects” (para. 3(b)),
are considered to be “grave breaches” of the Protocol and of the Convention and would constitute “war crimes”.
54 It was accordingly argued that given the characteristics of nuclear weapons when used, their radioactive, heat and blast effects, the obligation to distinguish between protected persons and property from belligerent military objectives could not be observed. Consequently, the use of such weapons would result in the violation of obligations undertaken both under the Geneva Conventions and the Additional Protocol I .
55 Also said to be violated is the Martens Clause which dates back to the Hague Conventions of 1899 and 1907, considered applicable to every armed conflict and most recently codified in Additional Protocol I to the Geneva Conventions of 1949 relating to the protection of victims of international armed conflict and which stipulates that :
“In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of principles of international law derived from established custom, from principles of humanity and from the dictates of public conscience.”
“The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”
This principle is said to be further reflected in the 1949 Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, Article 53 of which provides as follows :
“Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.”
58 The 1977 Additional Protocol I to the 1949 Geneva Conventions was also invoked as having imposed obligations on environmental protection against military activities. The provisions of the Protocol in this regard were said to represent the development of the relevant principles embodied in the 1899 and 1907 Hague Conventions . Article 35 of Protocol I — Basic Rules — stipulates that
“1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.
… … … … … … … … …
3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”
2. It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.
… … … … … … … … …
“1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
62 The general prohibition of Article 55 of the Protocol is said to be made more specific in Article 56, which provides that “dams, dykes and nuclear electrical generating stations” shall not be made the object of attack “even where these objects are military objectives”. Article 56, paragraph 1, forbids attack upon military objectives located at or in the vicinity of these works or installations
“if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations shall not be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.”
63 Also considered relevant is the Rio Declaration on Environment and Development, which was adopted during the Rio Conference in 1992 and which stipulates that
“Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and co-operate in its further development, as necessary.” (Principle 24.)
64 It was submitted that States would be in breach of their legal obligations were nuclear weapons, given their established characteristics, to be used in war or other armed conflict, as such use would violate the obligations undertaken by States in relation to the protection of the natural environment.
The Role of the Court in Exercising Its Advisory Function
65 The purpose of the Court's advisory jurisdiction is to offer an authoritative legal opinion and to enlighten the requesting body on certain legal aspects of an issue which it has to deal with in discharging its functions, or “to guide the United Nations in respect of its own action” ( Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 24).
66 The Court's authority to render an advisory opinion resides in Article 65 of its Statute . This has been reaffirmed in several of its advisory opinions, inter alia, in the case concerning Certain Expenses of the United Nations ( Article 17, paragraph 2, of the Charter ), where it stated that : “The power of the Court to give an advisory opinion is derived from Article 65 of the Statute .” ( I.C.J. Reports 1962, p. 155; see also Western Sahara, I.C.J. Reports 1975, p. 21.)
67 Over the years the Court has taken the view that by exercising its advisory jurisdiction it participates in the activities of the United Nations. In the Namibia case the Court emphasized that :
“by replying to the request it [the Court] would not only ‘remain faithful to the requirements of its judicial character’ ( I.C.J. Reports 1960, p. 153), but also discharge its functions as ‘the principal judicial organ of the United Nations’ (Art. 92 of the Charter )” (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 27).
In the Interpretation of Peace Treaties case the Court pointed out that its
“Opinion is given not to the States, but to the organ which is entitled to request it ; the reply of the Court, itself an ‘organ of the United Nations’, represents its participation in the activities of the Organization, and, in principle, should not be refused” ( Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Second Phase, I.C.J. Reports 1950, p. 71).
Accordingly, by rendering advisory opinions, the Court lends its assistance in the solution of problems confronting the United Nations while, at the same time, discharging its responsibilities as its principal judicial organ. In this regard, the Court has regarded the rendering of an opinion as a duty while pointing out, at the same time, that there are certain limits to its duty to reply to a request for an opinion. In the case concerning Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter ), the Court found that it would be entitled to refuse to render an opinion only for “compelling reasons” following its Opinion in Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco (I.C.J. Report 1956, p. 86), and there are no “compelling reasons” when the principal question is one of treaty interpretation. A compelling reason, the Court had held, would be that the request requires the Court to depart from its judicial functions, such as passing on facts insufficiently established ( Status of Eastern Carelia, 1923, P.C.I.J., Series B, No. 5 ).
68 Furthermore and as stated earlier, the Court has also perceived its advisory function as giving an opinion based on law once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and are consequently not devoid of object and purpose. Hence, the Court has never declined to render an advisory opinion on jurisdictional grounds even though it has repeatedly observed that :
“21. It is … a precondition of the Court's competence that the advisory opinion be requested by an organ duly authorized to seek it under the Charter, that it be requested on a legal question, and that … that question should be one arising within the scope of the activities of the requesting organ” ( Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, I.C.J. Reports 1982, pp. 333–334).
The Role of the Court in the Present Request
69 In the case under consideration, the Court, after considering the request, found that the WHO had been duly authorized to request the opinion it seeks ; that the WHO was entitled to ask the question and that the question constitutes a legal question within the meaning of the Statute and the United Nations Charter . The Court then went on to state that it
“cannot refuse to admit the legal character of a question which invites it to discharge an essentially judicial task, namely, an assessment of the legality of the possible conduct of States with regard to the obligations imposed upon them by international law” (para. 16).
70 “To do this”, the Court stated, it
“must identify the obligation of States under the rules of law invoked, and assess whether the behaviour in question conforms to those obligations, thus giving an answer to the question posed based on law.” (Ibid.)
71 Having found that the WHO was entitled to ask the question posed and that it is legal, the Court then went on to determine whether the advisory opinion requested related to a question “arising within the scope of [the] activities” of the Organization, in accordance with Article 96, paragraph 2, of the Charter . In order to delineate the field of activity or area of competence of the WHO, the Court referred to the Constitution of the Organization , concluding that none of the functions attributed to it in Article 2 of its Constitution expressly referred to the legality of any activity hazardous to health, and that none of its functions is dependent upon the legality of the situations upon which it must act.
72 To reach such a conclusion, the Court “interpreted” the question posed as relating not to the obligations which might arise in view of the health and environmental effects of the use of nuclear weapons, but as to the “legality of the use of such weapons”. It is this interpretation which led the Court to hold that whatever the responsibility of the WHO to deal with such effects, it is not dependent on the legality of the acts which caused them. This interpretation also enabled the Court to reach the conclusion that Article 2 of the WHO Constitution cannot be understood as conferring upon the Organization a competence to address the legality of the use of nuclear weapons, and hence the competence to ask the Court about that legality. The interpretation also enabled the Court to hold that none of the functions of the agency has a sufficient connection with the question before it for that question to be capable of being considered as arising “within the scope of the activities” of the Organization. The Court's Opinion then went on to state that :
“in particular, the legality or illegality of the use of nuclear weapons in no way determines the specific measures, regarding health or otherwise …, which could be necessary in order to seek to prevent or cure some of their effects” (Advisory Opinion, para. 22 ; emphasis added).
73 It continued, “whether nuclear weapons are used legally or illegally, their effects on health would be the same” (ibid. ; emphasis added), and elaborated further as follows :
“while it is probable that the use of nuclear weapons might seriously prejudice the WHO's material capability to deliver all the necessary services in such an eventuality, for example, by making the affected areas inaccessible, this does not raise an issue falling within the scope of the Organization's activities within the meaning of Article 96, paragraph 2, of the Charter ” (ibid. ; emphasis added).
74 In the view of the Court, the WHO could only be competent to take those actions of “primary prevention” which fall within the functions of the Organization as defined in Article 2 of its Constitution , therefore the reference to “primary prevention” in the preamble to resolution WHA46.40 and the link which is there established with the question of the legality of the use of nuclear weapons are not in themselves capable of casting doubt upon the conclusions reached by the Court that the question before it does not lie within the scope of the activities of the WHO.
75 In considering the principle of “speciality” which the Court recognized as governing international organizations, the Court went on to state that to ascribe to the WHO the competence to deal with the legality of the use of nuclear weapons — even in view of their health and environmental effects — would be tantamount to disregarding the principle of speciality, as such competence could not be deemed a necessary implication of the Constitution of the Organization in the light of the purposes assigned to it by its member States; that WHO's responsibilities in the sphere of “public health” cannot encroach on the responsibilities of the United Nations without giving rise to overlaps which are detrimental to the viability and effectiveness of the system. It further pointed out that questions concerning the use of force, the regulations of armaments and disarmament are within the competence of the United Nations and lie outside the domain of the specialized agencies.
76 It was on the basis of that reasoning that the Court came to the conclusion that the question posed in the request does not arise “‘within the scope of [the] activities’ of that Organization as defined by its Constitution ”, and accordingly that an essential condition of its jurisdiction in the present case is absent and that it does not therefore have jurisdiction to give the opinion requested. This conclusion was arrived at not only as a result of a fundamental misconstruction of the question posed by the WHO and of its Constitution, but also as a result of an unduly formalistic and narrow view taken of the competence and scope of activities of the Organization, a view which is unsustainable on the basis of both the material before the Court and the applicable law.
77 To focus, first of all, on the Court's finding that it lacks jurisdiction to render an opinion — while the Court has always emphasized that a precondition for it to exercise its jurisdiction to deal with a request for advisory opinion is that the request must be by an organ duly authorized to seek it under the Charter , and that the “question should be one arising within the scope of the activities of the requesting organ” ( Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, I.C.J. Reports 1982, pp. 333–334; see also Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, I.C.J. Reports 1973, pp. 171–172), yet the Court has repeatedly stated that
“only ‘compelling reasons’ should lead it to refuse to give a requested advisory opinion ( Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, I.C.J. Reports 1956, p. 86)” ( Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), I.C.J. Reports 1962, p. 155),
and to date this Court has never declined to answer a request for an advisory opinion on the grounds of lack of jurisdiction, but has answered every question put to it even if to do so it had had to interpret or reformulate the question posed.
78 For instance, in the case of the Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal referred to above, even though the Court noted a number of procedural irregularities in the way the request for an advisory opinion had been formulated and observed that the form in which the question had been formulated did not correspond to the intentions of the requesting organ, yet the Court did not decline to give an opinion in the matter. In its Opinion, the Court stated as follows :
“45. Despite the irregularities described …, the Court nevertheless feels called upon … to accept the task of assisting the United Nations Organization. It is in accordance with the Court's jurisprudence that even though its power to give advisory opinions is discretionary under Article 65 of its Statute , only ‘compelling reasons’ would justify the refusal of such a request (cf. I.C.J. Reports 1973, p. 183 ; I.C.J. Reports 1956, p. 86). Of course the irregularities which feature throughout the proceedings in the present case could well be regarded as constituting ‘compelling reasons’ for a refusal by the Court to entertain the request. The stability and efficiency of the international organizations, of which the United Nations is the supreme example, are however of such paramount importance to world order, that the Court should not fail to assist a subsidiary body of the United Nations General Assembly in putting its operation upon a firm and secure foundation. While it would have been a compelling reason, making it inappropriate for the Court to entertain a request, that its judicial role would be endangered or discredited, that is not so in the present case, and the Court thus does not find that considerations of judicial restraint should prevent it from rendering the advisory opinion requested… . While there can be no question … of any restriction on the Court's discretion, the Court will not refuse ‘its participation in the activities of the Organization’ ( I.C.J. Reports 1950, p. 71), so that the important legal principles involved may be disposed of, whilst at the same time the Court must point out the various irregularities. It is not by appearing to shy away from the latter that the Court can discharge its true judicial functions.
… … … … … … … … …
46. … Thus, in the first place, the question put to the Court is, on the face of it, at once infelicitously expressed and vague ; and, in the second place, the records and report of the Committee cast doubt on whether the question as framed really corresponds to the intentions of the Committee in seising the Court.
… … … … … … … … …
47. The Court has therefore to consider whether it should confine itself to answering the question put ; or, having examined the question, decline to give an opinion in response to the request ; or, in accordance with its established jurisprudence, seek to bring out what it conceives to be the real meaning of the Committee's request, and thereafter proceed to attempt to answer rationally and effectively ‘the legal questions really in issue’ ( I.C.J. Reports 1980, p. 89, para. 35)… . The dilemma has been emphasized in the written statement of France : while not going so far as to contend that the Court should not give effect to the request, the French Government observed that the question put to the Court ‘does not indicate on what grounds the Committee on Applications for Review has decided that “there is a substantial basis” for the application presented by the United States of America’ and that the Court may therefore ‘encounter particular difficulties in exercising its jurisdiction’.
… … … … … … … … …
48. The Court does not however conclude that in the present case it is obliged to decline on these grounds to give an opinion. The Court pointed out in its advisory opinion concerning the Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt that
‘if [the Court] is to remain faithful to the requirements of its judicial character in the exercise of its advisory jurisdiction, it must ascertain what are the legal questions really in issue in questions formulated in a request’ ( I.C.J. Reports 1980, p. 88, para. 35).” ( Application for Review of Judgement No. 273 of the United Nations Administrative Tribunal, I.C.J. Reports 1982, pp. 347–349; emphasis added.)
79 While apologizing for this extended quotation, I consider it necessary to demonstrate how the Court has in the past exercised its advisory function. Thus in the case under reference, although the Court found the question posed to be irregular and considered that such irregularities could well be regarded as constituting “compelling reasons” for refusing to render an opinion or that the Court could have encountered particular difficulties in exercising its jurisdiction, it nevertheless took the view that it should not fail to assist a subsidiary body of the United Nations in putting its operation upon a secure and firm foundation on account of any reluctance to deal with the important legal principles involved in the case.
80 The Court, faithful to the requirements of its judicial character in the exercise of its advisory jurisdiction, ascertained what were the legal questions really in issue in the question formulated in the request and rendered the Opinion. In so doing, it did not consider that it was discrediting, let alone endangering, its judicial role.
81 The Court has accordingly always taken a liberal view of its advisory jurisdiction and, while not abandoning its judicial character, it has not taken as unduly restrictive and narrow a view of that jurisdiction as the Court appears to have done in the present case, even though the question put by the WHO is not only of cardinal importance to the WHO in terms of its constitutional functions, but is also of significance for the attainment of one of its objectives, namely, that “the enjoyment of the highest attainable standard of health is one of the fundamental rights of every human being”.
82 Given the importance of the question formulated by the WHO in its request, if the Court had taken into consideration the overall mandate of the Organization — and even if it had found the question afflicted — it would have been consonant with its jurisdiction to apply to the WHO request the same standards as those applied in the case referred to above, so as to dispose of the important legal principles involved. Additionally, reasons of consistency in its jurisprudence should have recommended a similar treatment.
83 With regard to the principle of “speciality” and how it perceives that principle in relation to the question, the Court had rightly observed that that principle governs international relations. In other words, international organizations are limited to the powers and functions conferred on them by States. While such powers are normally expressed in the constituent instruments of the organization, the Court itself acknowledges that because of the necessities of international life, international organizations can exercise implied powers, which without conflicting with their constitution, are a logical incident of it and contribute to ensuring its effectiveness. However, the Court then goes on to infer that to ascribe to the WHO the competence to address the legality of the use of nuclear weapons, which as I have already stated distorts the meaning and intention of the question, would be tantamount to disregarding the principle of speciality and would be “encroaching” on the responsibilities of other parts of the United Nations system. As if to reinforce that interpretation, the Court states that
“questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies” (Advisory Opinion, para. 26).
Article 55 provides that :
“With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote :
… … … … … … … … …
Article 57 stipulates as follows :
“1. The various specialized agencies, established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63.
Article 62 provides that :
“1. The Economic and Social Council may make or initiate studies and reports with respect to international economic, social, cultural, educational, health, and related matters and may make recommendations with respect to any such matters to the General Assembly, to the Members of the United Nations, and to the specialized agencies concerned.” (Emphasis added.)
85 In other words, the General Assembly has jurisdiction over health matters in general, but the WHO is given a specific assignment in relation to such matters under its Constitution.
“(a) to act as the directing and co-ordinating authority on international health work ;
… … … … … … … … …
(d) to furnish appropriate technical assistance and, in emergencies, necessary aid upon the request or acceptance of Governments ;
… … … … … … … … …
(f) to establish and maintain such administrative and technical services as may be required, including epidemiological and statistical services ;
87 In effect, the WHO is competent to deal with every conceivable element in the field of health, and given its functions as the specialized agency on international health matters, this is why the health consequences of the use of nuclear weapons would naturally fall within the scope of activities of the Organization. In such a situation, the agency would be expected and required to direct and co-ordinate medical and health assistance at the international level, to furnish appropriate technical advice, for instance, on how to mitigate the effects of radiation both immediately and with respect to the intermediate and long term. Reference has already been made to the influenza epidemic which broke out after the First World War and to the fact that, because the international community was caught unprepared, 20 million people — more than the war casualties — died during that epidemic. The WHO is the body Governments would turn to for technical advice in case of such a contingency as a result of the use of nuclear weapons.
88 The United Nations has taken cognizance of such a contingency in resolution 47/168 , in which it expressed deep concern about the suffering of the victims of disasters and emergency situations (such as could arise as a result of the use of nuclear explosions), resulting in the loss in human lives, the flow of refugees, the mass displacement of people and material destruction, and mindful of the need to strengthen and make more effective the collective efforts of the international community, established the Department of Humanitarian Affairs to provide international humanitarian assistance when disasters or catastrophes occur.
89 In that resolution, the Assembly also expressed its deep concern about the magnitude and ruinous effects of disasters and emergency situations which, inter alia, call for more international co-operation to mitigate the human suffering of the victims. To expedite the rehabilitation and reconstruction processes, the Assembly underlined the need for an adequate, co-ordinated and prompt response by the international community to disasters and emergency situations. Noting the increasing number and complexity of disasters and humanitarian emergencies, it established the Inter-Agency Standing Committee to ensure better preparation for, as well as rapid and coherent response to, natural disasters and other emergencies, in particular emergencies involving the supply of food, medicines, shelter and health care. The WHO is one of the agencies invited to take part in the Inter-Agency Standing Committee.
90 The resolution further requested the Secretary-General to report on ways and means to improve the United Nations capability in the areas of prevention and preparedness in relation to natural disasters and other emergencies, in particular emergencies involving food, medicines, shelter and health care, as provided for in General Assembly resolution 46/182 .
91 Also in this connection, the Secretary-General of the United Nations, in his report on humanitarian assistance and disaster relief, observed that a notable feature in the humanitarian activities of the United Nations is the increased involvement of the Security Council, which had accorded humanitarian assistance high priority and developed modalities to that effect (A/47/595).
92 Thus, in the light of the foregoing, while the principle of “speciality” governing international organizations is to be respected for reasons of effectiveness and co-ordination and to prevent duplication, it is wrong in my view to give an unduly restricted and narrow interpretation to that concept in relation to health matters and humanitarian affairs. As has been established, the use of nuclear weapons would precipitate an emergency situation involving tremendous suffering to the victims, loss in human lives, the outflow of refugees, mass displacement of people and destruction to the environment. These matters would involve not only the efforts of the WHO but those of the other functional agencies as well, with a common purpose of protecting human welfare and saving the lives of human beings. Not only can such co-operation not be regarded as an encroachment on the competence of the other organs or agencies of the United Nations system, but the case before the Court relates to the health and environmental effects of the use of nuclear weapons, matters which fall within the domain of the WHO and which would require such cooperation for effective action. However, the WHO is the only specialized agency that is assigned the study of public health. If too narrow an interpretation is given to the scope of activities, then because of its activities, even the Security Council could be regarded as encroaching in the fields of health and humanitarian affairs. It cannot, therefore, be sustained that the request violated the principle of “speciality” which also seemed to have inspired its rejection.
93 However, the foregoing should not be interpreted as a tacit acknowledgment of the correctness of the Court's opinion that the WHO's question transgressed the “speciality” rule or that the request itself constitutes an encroachment on the competence of other organs of the United Nations, or is ultra vires even the Organization's implied powers which the Court has acknowledged to be such as to be exercised by international organizations for reasons of effectiveness, with the implication that WHO could have done so by seising the Court with the request, if it were not acting ultra vires. On the contrary, the discourse was intended to demonstrate that in an emergency situation, involving the use of nuclear weapons, the functional agencies of the United Nations would have to undertake a co-operative endeavour ; and if too narrow a construction were to be given to the concept of “the scope and activities” of the functional agencies, such as the WHO, it would unnecessarily restrict and ultimately defeat their effectiveness.
94 I agree with the Court that because of the necessities of international life, it is accepted that international organizations can exercise implied powers, which are not in conflict with their constitution and are required to ensure their effectiveness. However, the implication that the WHO could not have intended to address “the legality of the use of nuclear weapons” even if it had relied on the exercise of such powers could only have been arrived at as a result of the interpretation given to the question by the Court which, as I have said, not only distorts the intention of the question to say the least, but cannot stand scrutiny when judged against the law or the facts. In the first place, as implied powers are those which may reasonably be deduced from the practice and functions of the organization in question, or, as the Court put it in the case concerning Reparation for Injuries Suffered in the Service of the United Nations , such powers are limited to those which, though not expressly provided for in the Statute of an organ, “are conferred upon it by necessary implication as being essential to the performance of its duties” (I.C.J. Reports 1949, p. 182), the question that arises is whether the WHO, by asking the question posed, could have been regarded as exercising its implied powers, deduced from its practice and functions or essential to the performance of its duties. The response to the question would have to be sought in both the Constitution and the practice of the Organization.
95 As has already been stressed, the objective of the WHO is “the attainment by all peoples of the highest possible level of health”, and in order to achieve that objective it is assigned certain functions which have already been mentioned. Furthermore, the WHO over the years, as has been demonstrated, has been concerned with the health effects of nuclear weapons.
96 It has also been noted and demonstrated that the use of nuclear weapons in armed conflict would result in a catastrophe which would precipitate an emergency situation in relation to health and the environment. Thus, even if the Organization, in asking the question, were to claim to be exercising implied powers, this, in my view, it would be entitled to do in order to seek legal guidance for the performance of its function or for the attainment of its objectives of promoting the health of all peoples, and in order to ascertain whether States by using nuclear weapons with consequent health and environmental effects would be in breach of their obligations under international law including the WHO Constitution . In other words, the WHO is, in my view, entitled to request the Court to determine whether the effects of a certain activity by a State would be in breach of that State's obligations under international law including the WHO Constitution. The Court acknowledged this position when it stated in the Reparation case that “the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implied in its constituent documents and developed in practice” (Reparation for Injuries Suffered in the Service of the United Nations, I.C.J. Reports 1949, p. 180). Earlier, the Permanent Court, in its Advisory Opinion on the Nationality Decrees Issued in Tunis and Morocco , had observed that the question whether a certain matter is or is not solely within the jurisdiction of a State is an entirely relative question and depends upon the “development of international relations” (P.C.I.J., Series B, No. 4).
97 In the Namibia case, this Court emphasized that in interpreting an instrument, the Court must take into consideration the changes which have occurred over the years as its interpretation cannot remain unaffected by the subsequent development of the law. The Court further emphasized,
“Moreover, an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation” (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 31).
98 The reference to the Nationality Decrees case is not intended to suggest that the WHO is a State let alone a super-State, as the Court put it in the Reparation case, nor is this the intention with respect to the reference to the Namibia case either. The point sought to be made is that both Courts when interpreting relevant documents have taken into consideration developments which had taken place or had done so within the framework of the entire legal system prevailing at the time of the interpretation.
99 In other words, in determining the competence or scope of activities of the WHO in the context of its Constitution and with reference to the health and environmental effects of the use of nuclear weapons, account must be taken of the Organization's role and practice in situations similar to those involving the use of similar nuclear devices. Evidence of this is the fact that the WHO has been concerned with the study of the health effects of the use of nuclear weapons for many years and in 1984 and 1987 presented detailed reports on the effects of nuclear war on health and health services. More recently the agency has been involved in the aftermath of the Chernobyl incident in which a nuclear power plant exploded in 1986 resulting in many deaths and fears of the threat of radiation. Immediately after that accident the WHO, in collaboration with the Government of the country concerned, took many initiatives which led to the establishment of the International Programme on the Health Effects of the Chernobyl Accident (IPHECA). At least 9 million people are said to have been directly or indirectly affected. Morbidity rates are reported to be 30 per cent higher in one of the affected countries for those who lived in the contaminated region, and more than 50 per cent higher for those in the immediate area of the reactor. Thyroid cancer had increased some 285-fold in one of the other affected countries, with children being mostly the victims, while the general health conditions of the people in the area immediately affected continue to deteriorate. Ten years after the accident the WHO has continued to monitor the health effects and assist those affected to mitigate the health consequences of the nuclear accident. IPHECA's broad mandate is to support efforts to relieve the health consequences of the accident by assisting health authorities in the affected countries, especially in areas significantly contaminated by radiation.
100 Even though the Chernobyl accident did not take place in a theatre of war, the analogy resulting from the use of nuclear weapons is appropriate, as the health and environmental effects are similar to those of nuclear weapons, except that in a nuclear war, such effects would be far worse and the consequences far more serious. Nonetheless, the experience gained by the WHO from this accident should prove propitious and useful if the worst should ever happen. There is thus sufficient evidence of practice of what the role of the WHO would be in a conflict involving nuclear weapons to justify its legal interest and to make it clear that, in posing the question, it is legitimately exercising of its implied powers.
101 Thus far, my effort has been to demonstrate why the reasoning relied upon by the Court to reach its finding is unpersuasive and cannot be sustained. It is even more regrettable that the Court, having found that the WHO is entitled to bring the request and that the question is legal, chose to preclude itself from answering it for want of jurisdiction, when in fact if its jurisprudence had been followed and if adequate account had been taken of the functions and practice of the Organization, the Court would have found its authority to answer the question beyond a shadow of a doubt.
102 In considering a request for an advisory opinion, and in order to obviate what might appear to be an attempt not to engage a controversial or difficult issue for lack of jurisdiction, the Court has endeavoured to “ascertain what are the legal questions really in issue in questions formulated in a request” ( Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt, I.C.J. Reports 1980, p. 88) ; and whenever it has found it to be necessary, the Court has defined or reinterpreted the question posed in order to discover and provide an answer, dealing with what is crucial in the request. Judge Sir Hersch Lauterpacht, in the Admissibility of Hearings of Petitioners by the Committee on South West Africa case, stated as follows :
“the Court enjoys considerable latitude in construing the question put to it or in formulating its answer in such a manner as to make its advisory function effective and useful….
Undoubtedly it is desirable that the request for an Advisory Opinion should not, through excess of brevity, make it necessary for the Court to go outside the question as formulated… . However, the absence of the requisite degree of precision or elaboration in the wording of the request does not absolve the Court of the duty to give an effective and accurate answer in conformity with the true purpose of its advisory function.” (I.C.J. Reports 1956, pp. 37–38.)
The question put to the Court by the WHO is whether
“in view of the health and environmental effects … the use of nuclear weapons by a State in war or other armed conflict [would] be a breach of its obligations under international law including the WHO Constitution ”.
The Court, as we have seen, not only interpreted the question as if it was about “the legality of the use by a State of nuclear weapons in armed conflict” per se — an interpretation which proved most unfortunate and provided the basis for the Court to reach its findings — but it also enabled the Court to take a decision to hear, during the same public sittings, oral statements relating to the request for an advisory opinion from the General Assembly of the United Nations as to whether “the threat or use of nuclear weapons in any circumstance [is] permitted under international law”, a question which the Court sees as being intended to determine the legality or otherwise of the threat or use of nuclear weapons.
103 Apart from the fact that the two questions are posed by an organ and a specialized agency of the United Nations with primarily different functions, they are not identical, even though they are similar. Moreover, in spite of their having been directed to different issues, the Court nonetheless interpreted those questions in such a way as to have ascribed almost identical meanings to them. It was this interpretation which emasculated the meaning of the WHO's question as if it had asked about the legality of the use of nuclear weapons per se, as in the case of the question by the General Assembly, and led the Court to conclude that the request for an advisory opinion by the WHO does not relate to a question arising within the scope of its activities and that an essential condition for its jurisdiction is absent. This interpretation given to the WHO's question, as stated earlier, was not only fundamentally erroneous but proved fatal for the request.
104 The WHO's question is not about the illegality of the use of nuclear weapons per se. The question is not whether Article 2, paragraph 4, of the Charter prohibiting the use of force in international relations would be violated by the threat or use of nuclear weapons per se nor is it formulated in relation to Article 11 of the Charter as relating to questions of maintenance of international peace including the principles governing disarmament and the regulation of armaments or primarily aimed at ascertaining whether a State would be in breach of its obligations under Article 39 of the Charter with respect to threat to the peace, breach of the peace or act of aggression. It was essentially against this background that the Court viewed the question and hence the Opinion is replete with references to the legality or illegality of such weapons. If only to recall some such references : in delineating the field of activity or area of competence of the WHO, the Court came to the conclusion that none of the functions attributed to the WHO in Article 2 of its Constitution expressly referred to the legality of any activity hazardous to health, and that none of the functions of WHO is dependent upon the legality of the situations upon which it must act. In interpreting the question the Court stated that it relates not to the effects of the use of nuclear weapons on health and the environment but to the legality of the use of such weapons and came to the conclusion that the responsibility of the WHO to deal with such effects does not depend on the legality of the acts which caused them. In paragraph 22, the Court stated that “in particular, the legality or illegality of the use of nuclear weapons in no way determines … specific measures, regarding health or otherwise” or that “whether nuclear weapons are used legally or illegally, their effects on health would be the same” (emphasis added). Further, in the same paragraph, the Court stated that while the use of nuclear weapons might seriously prejudice WHO's material capability, the question of the legality or illegality of the use of these weapons would be irrelevant in that respect. When considering the principle of “speciality” in paragraph 25, the Court stated that to ascribe to WHO the competence to deal with the legality of nuclear weapons —even in view of the health and environmental effects — would be tantamount to disregarding the principle of “speciality”. It can thus be seen that the Court interpreted the question as meaning that what was at issue was whether it would be legal or illegal to use nuclear weapons per se, whereas what really was at issue was whether the obligations of States in relation to health and the environment would be engaged or be violated by the use of nuclear weapons. In other words, even though the origin of the breach of obligation is nuclear weapons, the WHO's question relates to the health and environmental consequences. The Court itself acknowledged this as a possible interpretation of the question when it stated in paragraph 21 of the Opinion that :
“Interpreted in accordance with their ordinary meaning, in their context and in the light of the object and purpose of the WHO Constitution , as well as of the practice followed by the Organization, the provisions of its Article 2 may be read as authorizing the Organization to deal with the effects on health of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in.”
But it chose not to adopt this interpretation and instead chose that which enabled it not to make a determination for want of jurisdiction.
105 Since, in my considered opinion, the request by the WHO is not about the legality or illegality of nuclear weapons per se — the interpretation given to the question by the Court — I shall now endeavour to interpret the question so as to bring out its true intention and thereby establish that it falls within the scope of the activities and functions of the Organization.
106 In the first place and as mentioned earlier, the Court, when exercising its advisory jurisdiction, has interpreted or reformulated requests for advisory opinions both to establish the object for which the question was posed and to be able to give a real and effective answer to the question. In so doing, the Court has had to take various factors into consideration, that is to say, inter alia, the circumstances in which the request was made, the terms of the resolution embodying the request, discussions of the request in the organ in which it was adopted prior to its adoption and the divergences between the different versions of the request. In reformulating or reinterpreting a question, the Court would seem to have been concerned to give such a meaning to the question as would bring out the particular issue in the light of the circumstances which had presented themselves to it within the scope of its judicial function. When doing so, the Court has invariably resorted to a less restrictive interpretation of the question in trying to determine its true intention or the critical issues in dispute or has interpreted it to coincide with the desire of the body making the request ( Free City of Danzig and ILO , P.C.I.J., Series C, No. 18 (II), pp. 145–146, 193).
107 In other words, and as pointed out earlier, it was open to the Court, given the importance of the issues raised in the request, to have reformulated the question in such a way so as to cover the area in which the WHO wanted an authoritative legal opinion. The Court, however, chose not to follow this approach, even though the facts produced were neither disputed nor unascertained.
108 Although the resolution containing the request is not itself a treaty, however, like the Court in its majority opinion, its interpretation can be guided by the relevant provisions of the 1969 Vienna Convention on the Law of Treaties so as to establish that the question formulated in the resolution falls within the competence or scope of activities of the Organization as defined in its Constitution .
“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes :
… … … … … … … … …
“Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31 :
111 These Articles thus embody the different approaches to treaty interpretation, that is, the textual and teleological approaches and the intention of the parties. Article 31 stipulates that in interpreting a treaty it must be given its ordinary meaning, and the context to be used in addition to the treaty includes its preamble. Subsequent practice may also be invoked in the application of the treaty, which clearly establishes the understanding of all the parties regarding its interpretation or its meaning.
It is also a rule of interpretation that a treaty is not to be given a restrictive interpretation if such an interpretation would be contrary to the text of the treaty itself.
113 Resolution WHA46.40 drew attention to the effects on health and on the environment of the use of nuclear weapons, and the long-term consequences connected therewith. It also noted that it had been established that no health service in the world could alleviate in any significant way a situation resulting from the use of even one single nuclear weapon. It further noted the concern of the world health community about the continued threat to the health and the environment resulting from the use of nuclear weapons and the role of the WHO which, as the agency charged with responsibilities for international public health, would have to take action of primary prevention of the health hazards resulting from the use of such weapons. The resolution requested clarity about the status in international law of the effects of the use of such weapons — about which, in the last 48 years, marked differences of opinion have been expressed by member States.
114 On the basis of the material presented to the Court, and as noted earlier, a single nuclear weapon exploded either intentionally or accidentally over a large city like Boston, United States, with a population of 2,844,000, the United States Arms Control and Disarmament Agency estimated there would result 695,000 direct fatalities and 735,000 surviving injured. Of the 5,186 physicians, 50 per cent (2,593) would be potentially available to treat the injured. This would result in some 284 injured persons for each available physician. Of the 12,816 hospital beds, since they are mostly in the urban target area, of the 48 acute case hospitals, 38 would be destroyed or badly damaged, thus 83 per cent of the beds would be destroyed leaving some 2,135 beds for the care of 735,000 seriously injured survivors. Clearly the numbers needing medical care would overwhelm the medical facilities and resources of the entire country. In the event of actual hostilities the attack would not be limited to a single city.
115 A massive nuclear attack on the United Kingdom would kill or injure half the population, and 97 per cent of Londoners. Not only hospitals, physicians, nurses, all other health professionals and technicians would be in short supply, but antibiotics, parenteral fluids, bandages, surgical equipment and all the sophisticated medical technology would be similarly lacking. The problems facing surviving medical workers would be overwhelming. They would not only lack nearly all essential facilities for the care of the injured, but would need to find the injured among the debris of collapsed buildings and houses, transport them through streets clogged with fallen structures, raging fires, and contaminated with radioactivity, probably with little if any transportation available and without electricity or fuel, while having major worries about the fate of their own loved ones and themselves. Thus, if a larger number of weapons were to be exploded in warfare, the overall consequences would include not only short- and medium-term medical injuries, but also severe environmental effects, disruption of transport and delivery of food, fuel and basic medical supplies, possible famine and mass starvation on a global scale. It was also disclosed to the Court that more recent studies have indicated that the casualties are more likely to number a billion or more, and the very survival of human beings on earth has been doubted.
116 According to its Constitution , the WHO's functions include the collection and dissemination of information relating to epidemic diseases, dealing with emergency situations resulting from war, the carrying out of relief work and extensive international health programmes, taking sanitary and quarantine action to prevent epidemics following a war and aiding the reconstruction of national health services which may have been affected by war, and generally taking all necessary action to attain the objective of the Organization. The functions would seem to bring the health and environmental consequences of nuclear weapons within the scope and activities or competence of the Organization.
117 Furthermore, in terms of its past practice, the Organization has, over the years, been preoccupied with the health effects of weapons of mass destruction in general and nuclear weapons in particular. This practice, which had been accepted by all the States concerned and provides a superior and reliable evidence to be used in interpreting resolution WHA46.40 in the light of the Organization's Constitution . Since the 1960s the WHO has been co-operating with the United Nations on the prohibition of chemical and biological weapons and has submitted reports on the health effects of those weapons. Beginning with resolution 34.38 and based on that resolution, the Director-General of the WHO, in 1983, set up an international commission of experts which submitted a report on the effects of nuclear weapons on health and health services. The Assembly of the Organization endorsed the conclusions of the Commission in resolution WHA36.28 and recommended that the work should continue. This recommendation formed the basis of the 1987 Report entitled Effects of Nuclear Weapons on Health and Health Services .
118 Furthermore, while the debate leading up to the adoption of resolution WHA46.40 proved controversial, there was no question but that the health effects of nuclear weapons were matters which fell within the ambit of the WHO. Even though such debates are not binding on the Court, the Court has in the past, when interpreting questions in a request and in order to get at the real issue in dispute, taken account of the debates in the organ in which the resolution containing the question was adopted. Also on this aspect of the matter, the Court chose not to follow its practice. As already mentioned, Article 31 of the Convention on the Law of Treaties presupposes that, in interpreting a treaty, subsequent practice may be used to establish the understanding of parties regarding that treaty. Judged against this background, to have found as the Court has done, that the question does not fall within the scope of activities or competence of the Organization, would suggest that no realistic appraisal of the material presented to the Court or of the practice of the Organization was carried out by the Court with a view to enabling itself to give an effective reply to the question posed.
120 The principle that obligations should be fulfilled in good faith requires States not only to implement obligations which they have undertaken, but that they should also refrain from acts which could defeat such obligations.
121 Such obligations may arise from treaties, customary international law rules and from general principles of international law. The non-fulfilment or violation of such obligations entails international responsibility. This assumes even greater significance in the case of obligations under the law of armed conflict and more particularly international humanitarian law, whose main purpose is the protection of human beings during warfare, as well as the mitigation of their physical and mental sufferings. Accordingly, belligerent States are under a duty to observe the principle of humanity during warfare.
122 The question asked by the WHO, therefore, also involves State responsibility — in other words, the question of whether a State would be in breach of its legal obligations assumed under international law by the detonation of a nuclear weapon in war or during armed conflict as a result of the effects on human health and the natural environment. The obligations in question may involve the breach of treaty or of a legal duty. The obligation could also arise as a result of an illegal act or from an event involving the use of prohibited weapons in an armed conflict. In the Corfu Channel case, the Court held that Albania was liable for the consequences of a mine-laying in her territorial water and the absence of a warning of the danger, finding that
“These grave omissions involve the international responsibility of Albania.
The Court therefore reaches the conclusion that Albania is responsible under international law for the explosions which occurred on October 22nd, 1946, in Albanian waters, and for the damage and loss of human life which resulted from them …” (I.C.J. Reports 1949, p. 23 ; emphasis added.)
123 Accordingly, the judicial task of the Court should have been to identify and apply the relevant international law including the WHO's Constitution relating to the question posed, identify the obligations, if any, that are prescribed in those rules and on the basis of the materials presented, and determine whether in view of the health and environmental effects those obligations would be breached by the use of nuclear weapons in war or any other armed conflict. Such had been the practice of both this Court and its predecessor in exercising their advisory jurisdiction. Both Courts have “regularly made simple findings of facts, established on the basis of documentation submitted to the Court” ( Rosenne, Law and Practice of the International Court , 2nd rev. ed., p. 701), or on the basis of testimony given. In the Eastern Carelia case (P.C.I.J., Series B, No. 5, p. 28), with regard to the enquiry as to the facts, the Court stated that if the facts upon which the opinion of the Court is desired are non-controversial and the Court does not have to ascertain what they are, it would be prepared to take such facts into consideration. This position was confirmed in the Namibia Opinion where the Court declared as follows :
“In the view of the Court, the contingency that there may be factual issues underlying the question posed does not alter its character as a ‘legal question’ as envisaged in Article 96 of the Charter . The reference in this provision to legal questions cannot be interpreted as opposing legal to factual issues. Normally, to enable a court to pronounce on legal questions, it must also be acquainted with, take into account and, if necessary, make findings as to the relevant factual issues. The limitation of the powers of the Court contended for by … South Africa has no basis in the Charter or the Statute.” (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 27 ; emphasis added.)
124 In accordance with Article 38 of its Statute , the Court is enjoined in deciding a dispute to apply international conventions, whether general or particular, establishing rules expressly recognized by States ; international custom, as evidence of general practice accepted as law ; the generally recognized principles and rules of international law ; judicial decisions ; and the teachings of the most highly qualified jurists.
“nuclear weapons, whose terrible effects are suffered, indiscriminately and inexorably, by military forces and civilian populations alike, constitute, through the persistence of the radioactivity they release, an attack on the integrity of the human species and ultimately may even render the whole earth uninhabitable”.
126 It is against this background that an identification and application of the rules and principles of law which appear to be most pertinent, will now be undertaken. Of immediate and direct relevance is the international law of armed conflict, in particular international humanitarian law. Central to that law is the principle of humanity which imposes an obligation to mitigate the sufferings of war or to exercise constraints on the necessities of war. The preambles to the Hague Convention II of 1899 and IV of 1907 recognize the principles of humanity as an important source of the laws of war in situations where no specific international convention exists prohibiting a particular type of weapon or tactic.
127 The International Committee of the Red Cross, in its “Fundamental Rules of International Humanitarian Law Applicable in Armed Conflicts” published in 1978, stated, in its preamble, that :
“International humanitarian law is made up of all the international legal provisions, whether of written or customary law, ensuring respect for the individual in armed conflict. Taking its inspiration from the sentiment of humanity, it postulates the principle that belligerents must not inflict harm on their adversaries out of proportion with the object of warfare, which is to destroy or weaken the military strength of the enemy.”
128 International humanitarian law comprises the “ Law of Geneva ”, which aims to safeguard military personnel hors de combat and persons who do not take part in the hostilities, and the “ Law of The Hague ”, which determines the rights and duties of belligerents in the conduct of operations and limits the choice of the means of harming an enemy.
129 The four Geneva Conventions have come to be regarded as internationally binding upon all States, as virtually all States are parties to them. These are :
— Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (GC I) ;
— Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (GC II) ;
— Geneva Convention III relative to the Treatment of Prisoners of War (GC III) ; and
— Geneva Convention IV relative to the Protection of Civilian Persons in Time of War (GC IV).
These Conventions have achieved almost universal acceptance and as of today are binding on 186 parties to each of the Conventions. They will therefore apply as treaties in almost any international armed conflict. Furthermore, most, if not all, of the provisions of the Conventions are now regarded as declaratory of customary international law.
130 Additional Protocols I and II of 1977 to the Geneva Conventions constitute a reaffirmation and development of the rules embodied in the Law of Geneva of 1949 and part of the Law of The Hague of 1907. As of date 143 States have become parties to Additional Protocol I and 134 to Additional Protocol II. The Protocols are accordingly binding upon a substantial majority of States of the international community. In addition, many of their provisions are declaratory of customary international law and are thus applicable in all international armed conflicts.
131 As regards the 1907 Hague Conventions , these are regarded as binding not only upon the contracting parties, but have largely become recognized as customary international law as well. Pertinent to the question before the Court are
— Hague Convention IV Respecting the Laws and Customs of War on Land , and Annex to the Convention : “Regulations Respecting the Laws and Customs of War on Land”.
— Hague Convention V Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land .
132 Hague Convention IV and the annexed Regulation directly apply to occupied territory and the treatment of property in such territory. Equally applicable are the provisions on methods and means of warfare which have now been codified in Additional Protocol I of 1977.
133 The International Military Tribunal at Nuremberg held that the provisions of the 1907 Regulations had become a part of customary international law and that accordingly they are binding on all States.
134 Accordingly, the obligations enshrined in these international legal instruments apply in virtually all armed conflicts including those involving the use of nuclear weapons. Prominent among such obligations are the following :
That the progress of civilization should have the effect of alleviating as much as possible the calamities of war ;
That the only legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy ;
That for this purpose it is sufficient to disable the greatest possible number of men ;
That this object would be exceeded by the employment of arms which uselessly aggravate the sufferings of disabled men, or render their death inevitable ;
That the employment of such arms would therefore be contrary to the laws of humanity.”
The Declaration places a specific ban on the use of “any projectile of a weight below 400 g, which is either explosive or charged with fulminating or inflammable substances”. According to this principle, while international law recognizes that the object of warfare is to disable the belligerent enemy, it prohibits the use of weapons which cause gratuitous and unnecessary suffering. The principle was embodied in the following articles of Convention II of the First Hague Conference of 1899 which provide :
Article 23 .
That principle was subsequently articulated in the Hague Convention of 1907 in Articles 22, 23 and 25 and reaffirmed the rules of international law which had been enunciated in 1899. Its further development is to be found in the Geneva Gas Protocol of 1925, which prohibits not just poisonous and other gases but also “analogous liquids, materials or devices” and extends the prohibition to bacteriological warfare as well.
“1. …, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited.
2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering.
137 Furthermore, in warfare or during an armed conflict, States are under an obligation to observe the principle of discrimination between civilians and combatants and between military and non-military objects. The principle is recognized as one of the most fundamental principles of international humanitarian law. Civilians and non-military objects are not to be made the object of attack. Even where indirect injury may occur to civilians or civilian objectives by dint of military necessity, such losses if manifestly excessive, would violate the rule. The rule is embodied in Article 27 of the Hague Convention of 1907 and the annexed regulations concerning the laws and customs of war on land ; Articles 22 and 24 of the Draft Hague Rules on Air Warfare of 1923 prohibit States from bombarding civilian targets and are accepted as customary international law. It is also codified in Articles 35, 36, 48, 51, 52, 54 and 55 of the First Additional Protocol of 1977. Article 35, as we have seen, limits the right of the Parties to a conflict to choose methods or means of warfare and prohibits the use of weapons which cause superfluous and unnecessary injury.
“In order to ensure respect for and protection of the civilian population and the civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”
This is regarded as a reaffirmation of the principle of distinction — that methods or means of warfare must make a distinction between combatants and non-combatants.
140 Article 51, paragraph 6, places a prohibition on reprisals against the civilian population or civilians. The provision is considered not to be subject to any conditions and has been considered to be of a peremptory character that does not allow for any derogation from the rule on the grounds of military necessity. Support for this position is to be found in Article 52, paragraph 1, which states that “civilian objects shall not be the object of attack or of reprisals”.
142 Article 54 prohibits reprisals against objects indispensable to the survival of the civilian population, while Article 55, paragraph 2, prohibits attacks against the natural environment by way of reprisals.
143 Article 56, paragraph 4, prohibits the works, installations or military objectives mentioned in paragraph 1 from being made the object of reprisals.
144 Additional obligations are laid down by the Geneva Convention of 1949 according to which States assume responsibility for certain duties such as the collection of the wounded or dead, individual burial and the evacuation of prisoners and undertake not to expose prisoners to unnecessary danger. The duty regarding protected persons including the wounded and sick members of the armed forces, hospital ships, medical transport, would be difficult, if not impossible, to observe should nuclear weapons be used, inter alia, because of their radioactive effects and contamination.
145 In like manner, the radioactive fallout would violate territorial sovereignty and cause injury to the citizens of neutral territories in violation of Article 1 of the 1907 Hague Convention Respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land . Evidently the use of nuclear weapons would fail to observe or respect the principle of discrimination between civilians and combatants in the neutral territory as well, and could cause devastation involving innocent civilian neutrals as well as civilians of both belligerent parties.
146 Evidently, the use of such weapons would violate the obligations assumed by States under the Martens Clause according to which, even in the absence of an international convention,
“civilians and combatants remain under the protection and authority of principles of international law derived from established custom, from principles of humanity and from the dictates of public conscience”.
Thus, according to this formula, which is reflected in the Geneva Conventions of 1949 and in the Additional Protocols of 1977, warfare does not allow belligerents to cause unnecessary and excessive injury and suffering to one another, to fail to observe the rule of discrimination between civilians and non-civilians or to exercise an unlimited choice of means of injuring the enemy.
147 As far as the environmental obligations assumed by States are concerned, these are to be found both in customary international law and in the provisions of treaties as well. Taken together, they impose legal restraints against environmental warfare per se or the means of waging it. Article 25 of the Hague Convention IV of 1907 prohibits, as we have seen, “attack or bombardment by whatever means of towns, villages, dwellings or buildings which are undefended” (emphasis added). Belligerent parties are prohibited, directly or indirectly, from inflicting unnecessary damage on the environment.
148 The Geneva Protocol of 1925 is also relevant in this connection as it prohibits the use in war of chemical or biological agents, and the Bacteriological and Toxin Weapons Convention of 1972 prohibits the possession of biological agents.
149 Articles 53 and 147 of the 1949 Fourth Geneva Convention also provide a degree of indirect protection for the environment, in the context of protecting property rights in occupied territories. Thus, an occupying Power which destroys, for example, industrial installations in an occupied territory, causing consequent damage to the environment, would be in breach of its obligations under the Convention , provided that such destruction was not justified by military necessity. If such destruction is extensive, it would constitute a grave breach of the Convention, or even a war crime, in accordance with Article 147.
150 Article 35 of Additional Protocol I of 1977 also prohibits the employment of methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment ; Article 55, as we have seen, imposes an obligation upon States Parties to take care in warfare to protect the natural environment against such damage ; Article 54 protects objects indispensable to the survival of the civilian population ; while Article 56 protects certain installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations which are not to be made the object of attack, even where those objects are military objectives, if such attack might cause the release of dangerous forces and consequent severe losses among the civilian population. Other military objectives located at or in the vicinity of these works or installations are not to be made the object of attack if such attack may cause the release of dangerous forces from the works or installations and consequent severe losses among the civilian population.
151 Also considered applicable to the question under consideration is the 1977 Convention on the Modification of the Environment . The Convention prohibits the hostile use of environmental modification techniques having “widespread, long-lasting or severe effects ‘as the means of damage’”. An environmental modification technique is defined as any technique for changing — through the “deliberate manipulation” of natural processes — the dynamics, composition or structure of space or of the earth, including its atmosphere, lithosphere, hydrosphere and biota.
153 It is thus in terms of these obligations that the health and environmental effects produced by the use of nuclear weapons are to be judged. According to the available material, nuclear weapons when used did, in an instant, take a tremendous toll of human lives. Estimates of the number of people who had died by the end of 1945 following the atomic bombing of Hiroshima and Nagasaki amounted to approximately 140,000 in Hiroshima and 74,000 in Nagasaki. Of the people who were exposed to thermal radiation, 90 to 100 per cent died within a week. In addition to direct injury from the bomb blasts, death was said to have been caused by several interrelated factors such as being crushed under buildings, injuries caused by splinters of glass, radiation damage, food shortages or shortages of doctors and medical personnel. Over 320,000 people who survived but were affected by radiation still suffer from various malignant tumours caused by radiation, including leukaemia, thyroid cancer, breast cancer, lung cancer, gastric cancer, cataracts and a variety of other after-effects.
154 From another source that had experienced the effects of the use of nuclear weapons, the Court learned that the explosion that took place on the island had caused what looked like a snowfall for the first time in its people's history. Such “snow”, it was later discovered, was in fact radioactive fallout from the nuclear explosion. As a result of the contamination to which their bodies were exposed, the islanders experienced blisters and other sores over the weeks that followed. Their serious internal and external exposure to radioactivity caused them long-term health problems that have affected four generations of the island's inhabitants. Such effects are said to be indistinguishable from poison, a “substance which when introduced into the body can kill or cause injury to health”. Uranium, a central component of nuclear weapons, is regarded as one of the most toxic substances. Accordingly, when used, nuclear weapons would expose human beings to effects indistinguishable from those of poison. Such use would be in breach of the obligations prohibiting the use of poison or poisonous weapons. The effects could also be both long-term, intergenerational and affect a wide area as well.
155 Yet, the detonations which took place in Hiroshima and Nagasaki, as well as the nuclear explosions in the Marshall Islands, have been considered relatively minor when compared to the destructive power of today's nuclear weapons. As we have seen, a massive nuclear attack on modern cities like Boston or London would result in the death of millions of people. The use of such weapons would produce delayed radioactive fallout across potentially great distances and over extended periods of time. The radiation effects, it is said, are not unlike effects produced by chemical and biological weapons. As opposed to conventional weapons, nuclear weapons, even those with fairly low yields, are capable of causing harm to non-combatants — including civilians — and neutral parties alike.
156 On the basis of the material before the Court, and in view of their health and environmental consequences, it is undeniable that nuclear weapons when used would be in breach of the obligations assumed by States under international law.
157 These obligations include :
(i) a limitation on the choice of methods and means of warfare ;
(ii) the prohibition from using poison or poisonous weapons intended to cause unnecessary suffering ;
(iii) the prohibition from causing unnecessary and superfluous suffering ;
(iv) the requirement that belligerent parties respect the distinction between military objectives and non-military objects, as well as between persons participating in the hostilities and members of the civilian population ;
(v) the prohibition of armed attacks against the civilian population ;
(vi) the prohibition of wanton destruction of cities, towns or villages, or devastation not justified by military necessity ;
(vii) the requirement not to attack, or bombard, by whatever means undefended towns, villages, dwellings or buildings ;
(viii) the requirement not to employ methods or means of warfare which are intended or may be expected to cause widespread, long-term and severe damage to the natural environment.
158 It is also clear that, because of their health and environmental effects, the use of nuclear weapons would be in breach of the provisions of the WHO Constitution , whose objective is the attainment by all peoples of the highest possible level of health. Health, it will be recalled, is defined as a state of complete physical, mental and social well-being, and the WHO is enjoined to promote and protect the health of all peoples, by, among other activities, directing and co-ordinating international health, assisting Governments upon request to strengthen health services, promoting material and child health and welfare and fostering the ability to live harmoniously in a changing environment.
159 Given the health and environmental effects of nuclear weapons, a State that is a party to the Constitution of the WHO and which uses nuclear weapons will be in breach of both the letter and spirit of that Constitution which, inter alia, calls for the co-operation of individuals and States for the attainment of health and peace by all peoples as well as the objective of the Organization itself.
160 The Court, in its Opinion, has stated that having found that it lacked jurisdiction in the present case, it could not examine the arguments which were expounded before it with regard to the propriety of giving such an Opinion. This position notwithstanding, it is my view that if the Court had allowed itself to consider the abundance of material at its disposal, it could have reached a different conclusion other than the one arrived at.
161 The Court was not persuaded by the argument advanced, that as resolution WHA46.40 was adopted by the requisite majority, it was proper and therefore must be presumed to have been validly adopted to serve as a basis of the Court's jurisdiction. Having taken this view the Court, after acknowledging that the World Health Assembly is entitled to decide on its competence and consequently that of the WHO to submit a request to the Court for an advisory opinion on the question under consideration, stated however that in exercising its functions under Article 65, paragraph 1, of its Statute , it had arrived at “different conclusions from those reached by the World Health Assembly when it adopted resolution WHA46.40”. Regrettably, the Court did not explain nor offer reasons why it had arrived at a different conclusion from the one reached by the World Health Assembly. Here again, one cannot fail to discern a departure by the Court from its long-established jurisprudence in this regard. On the question whether an international organization is entitled to determine its own competence or jurisdiction, the Court had this to say in its Advisory Opinion in the Certain Expenses case :
“In the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations. Proposals made during the drafting of the Charter to place the ultimate authority to interpret the Charter in the International Court of Justice were not accepted ; the opinion which the Court is in course of rendering is an advisory opinion. As anticipated in 1945, therefore, each organ must, in the first place at least, determine its own jurisdiction.” (Certain Expenses of the United Nations ( Article 17, paragraph 2, of the Charter ), I.C.J. Reports 1962, p. 168 ; second emphasis added.)
In that same Opinion, the Court stated that
“when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization” (ibid.).
162 What this shows, in my view, is that prior to the present case and in accordance with its jurisprudence, the Court has held that international organizations are competent to determine their competence or jurisdiction. On this occasion, the Court decided to depart from this its jurisprudence, but with hardly any explanation or reason — but not only did the Court choose not to follow its jurisprudence on this occasion — in the past, while not denying itself the right to examine the competence of the body making the request, it rejected certain objections to its jurisdiction based on the claims that such bodies were not competent to make the request ( Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, I.C.J. Reports 1950, pp. 72 et seq. , and Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, I.C.J. Reports 1951, pp. 19–20).
“[welcomed] resolution 46/40 of 14 May 1993 of the Assembly of the World Health Organization, in which the organization requested the International Court of Justice to give an advisory opinion on whether the use of nuclear weapons by a State in war or other armed conflict would be a breach of its obligations under international law, including the Constitution of the World Health Organization ”.
164 The Court interpreted such approval as political and did not consider that the Assembly had intended to operate in the legal sphere and make any kind of ruling whatsoever regarding the competence of the WHO to request an opinion on the question raised ; it also found that the Assembly could not have intended to disregard the limits within which Article 96, paragraph 2, of the Charter allows it to authorize the specialized agency to request opinions from the Court.
“Upon authorization by the General Assembly of the United Nations or upon authorization in accordance with any agreement between the Organization and the United Nations, the Organization may request the International Court of Justice for an advisory opinion on any legal question arising within the competence of the Organization.”
Admittedly, the WHO can only ask a question which is not outside its ambit or competence, and the General Assembly can also restrict the power of the agency by limiting its competence or the scope of its activities. In other words, since it is the Assembly that originally granted the authorization to request an opinion for matters within the Organization's competence, the Assembly would, in my view, have been in a position —if it had considered that the agency, by adopting resolution WHA46.40 , had acted ultra vires — to bring this to the attention of the agency or to exercise its discretionary powers and bring the irregularity to an end. Evidently, the Assembly exercised neither of those options but it rather welcomed resolution WHA46.40, with the implication that the agency had not acted ultra vires.
166 The WHO, in resolution WHA46.40 , offered various reasons why it had requested the advisory opinion of the Court on this matter including, inter alia, the concern felt by the world health community about the continued threat to health and the environment by the use of nuclear weapons and the need for prevention. Also, as the agency primarily responsible for the promotion and protection of international health, it considered that the opinion of the Court would have acted as a guide in the performance of its functions. It is conceivable that, had the Court decided to render an opinion in accord with the manifest desire of the Organization, such an opinion would have put States on notice that in view of the health and environmental consequences that are bound to ensue from the use of nuclear weapons, they would be in breach of their obligations under international law, including the WHO Constitution were they to have recourse to such weapons. Regrettably, this potentially preventive effect of the Court's authoritative advice cannot now be realized in view of the Court's decision to decline the request.
167 To sum up, the Court, in order to reject the request by the WHO, had to ignore its established jurisprudence, for as the Court has repeatedly stated, only “compelling reasons” should lead it to refuse to render an advisory opinion requested of it. In my view, no such “compelling reasons” have been demonstrated to warrant the dismissal of the request. In the Interpretation of Peace Treaties case, the Court had said :
“The Court's reply is only of an advisory character : as such, it has no binding force. It follows that no State … can prevent the giving of an Advisory Opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take.” (Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, I.C.J. Reports 1950, p. 71.)
It is submitted that the considerations enunciated by the Court in that earlier case are equally applicable to the present case. The Court's decision on this matter has almost entirely turned on its interpretation of the question submitted for its consideration. That interpretation, with respect, not only distorted the intention of the question but also took too narrow and restrictive a view of the competence and scope of the activities of the WHO. Hitherto, the Court's purpose in interpreting or reformulating a question in a request for an advisory opinion had been to ascertain what were the legal questions really in issue in the question formulated, so as to be in a position to render an effective and useful opinion and not to provide a basis for the rejection of the request.
168 In my view, since the responsibility of the WHO includes the promotion and protection of international public health, including the taking of preventive measures, a question that seeks the opinion of the Court as to whether in view of their health and environmental effects, a State using nuclear weapons would be in breach of its obligations under international law, including the WHO Constitution , relates to a matter eminently within the competence and scope of activities of the Organization. The legal question in the request is directed to the factual effects of the use of nuclear weapons and not to the legality or illegality of such weapons per se. Therefore, to find that such a question is outside the scope of activities of the Organization strikes me, with respect, as a classic case of overshooting a target and appears to be lacking in validity. The request cannot be considered as incompatible with the purpose and objective of WHO nor can it be considered as detrimental to the interests of member States in excess of what they had accepted as a basis of their membership. As mentioned earlier, the Court itself has said that “when the Organization takes action … appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization” ( I.C.J. Reports 1962, p. 168). This statement is equally applicable to the action taken by the WHO in formulating the request. Accordingly, what appears to be a legal rebuke or an attempt to teach the WHO a lesson for asking the question seems to me to be both gratuitous and unwarranted. Indeed, denying the request for lack of jurisdiction leaves one wondering whether this is not one of those cases in which a former Member of this Court, Judge Sir Gerald Fitzmaurice, considered that a finding against jurisdiction might prove to be a solution “in those cases where the necessity of giving a decision on the merits would involve unusual difficulty or embarrassment for the tribunal” (“The Law and Procedure of the International Court of Justice, 1951–1954 : Questions of Jurisdiction, Competence and Procedure”, British Year Book of International Law, Vol. 34, 1958, pp. 11–12, footnote 3). The only thing is that, in this very important matter, a finding against jurisdiction will not prove to be a solution, as States would be in breach of their international obligations were they to use nuclear weapons. It is, moreover, not discernible to me why if a decision on the “merits” had been given, it would have involved any embarrassment for the Court ; nor should the Court have allowed itself to be seen to have been swayed from performing its judicial functions by declining to enter into the merits of the case. It is undeniable that the question asked by the WHO is controversial, but the Court has never declined a request for the reason that it is controversial or might prove to be an embarrassment. Indeed, in the Namibia case, when it was suggested that the Court should not or could not give the advisory opinion requested because of political pressure to which the Court, it was suggested, had been or might be subjected, the Court responded as follows :
“29. It would not be proper for the Court to entertain these observations, bearing as they do on the very nature of the Court as the principal judicial organ of the United Nations, an organ which, in that capacity, acts only on the basis of the law, independently of all outside influence or interventions whatsoever, in the exercise of the judicial function entrusted to it alone by the Charter and its Statute. A court functioning as a court of law can act in no other way.” (Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), I.C.J. Reports 1971, p. 23.)
169 Regarding the argument that because matters relating to nuclear weapons are being discussed in other fora, the Court should therefore not render an opinion, when a similar argument was advanced in the Fisheries Jurisdiction cases, the Court replied as follows :
“The Court is also aware of present endeavours, pursued under the auspices of the United Nations, to achieve in a third Conference on the Law of the Sea the further codification and progressive development of this branch of the law … In the circumstances, the Court, as a court of law, cannot render judgment sub specie legis ferendae, or anticipate the law before the legislator has laid it down.” (I.C.J. Reports 1974, p. 192.)
170 As already mentioned, international organizations have regarded the instrument of an advisory opinion as a means of securing an authoritative legal opinion on thorny or difficult issues facing them. The Court has always responded positively to requests for advisory opinions, regarding its role as participation in the activities of the Organization while at the same time protecting its judicial character. That trust would now appear to have been broken. It is regrettable that the Court has chosen to vacate its positive record in this sphere on an issue of such vital importance, an issue that embraces not only a legal but a moral and humanitarian dimension as well. The Court considered these aspects in the case concerning Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (I.C.J. Reports 1951, p. 23). It has been said that “medicine is one of the pillars of peace” ; it can equally be said that “health is a pillar of peace” or as is stated in the Constitution of the WHO “the health of all peoples is fundamental to the attainment of peace and security”.
171 On the basis of the aforesaid, I find that the Court's Opinion is inadequately reasoned, has failed to address the crucial issues raised and is inconsistent with its jurisprudence. I, therefore, find myself unable to concur with it. On the other hand, and on the basis of the material before the Court, applying the law to that material, I am of the firm conviction that a State would be in breach of its obligations under international law, including the WHO Constitution , were it to use nuclear weapons in war or other armed conflict in view of the health and environmental consequences. To put a question of this kind to the Court is indeed within the competence and scope of the activities of the WHO.
(Signed) Abdul G. Koroma.
1 Document A46/30.
2 See Effects of Nuclear War on Health and Health Services (2nd ed.), Geneva, WHO, 1987.
2 See Effects of Nuclear War on Health and Health Services (2nd ed.), Geneva, WHO, 1987.
1 Judgments of the Administrative Tribunal of the ILO upon Complaints Made against Unesco, Advisory Opinion, I.C.J. Reports 1956, p. 86; Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), Advisory Opinion, I.C.J. Reports 1962, p. 155; Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports 1971, p. 27; Application for Review of Judgement No. 158 of the United Nations Administrative Tribunal, Advisory Opinion, I.C.J. Reports 1973, p. 183 ; Western Sahara, Advisory Opinion, I.C.J. Reports 1975, p. 21 ; Applicability of Article Vl, Section 22, of the Convention on the Privileges and Immunities of the United Nations, Advisory Opinion, I.C.J. Reports 1989, p. 191.
2 Record of 13th Plenary Meeting of the World Health Assembly, 14 May 1993, doc. A46/VR/13, p. 11.
3 Ibid., p. 12.
4 Ibid., p. 9.
5 Record of 13th Plenary Meeting of the World Health Assembly, 14 May 1993, doc. A46/VR/13, p. 9.
6 Ibid., p. 12.
7 Ibid., p. 15.
8 Ibid., p. 13.
9 Ibid., p. 17.
10 See Shabtai Rosenne, The World Court: What It Is and How It Works , 5th ed., 1995, p. 107.
11 It stated that
“the legal nature of this type of resolution, and the absence of a specific provision in the Constitution on this subject, suggest that there is nothing to prevent a Member State from challenging before the Court the competence of WHO to request an advisory opinion in terms of the question set out in that resolution”.
12 Op. cit., p. 109.
13 World Health Organization, Geneva, 2nd ed., 1987.
14 Op. cit., Ann. 6, p. 157.
15 Herbert Abrams, “Chernobyl and the Short-Term Medical Effects of Nuclear War”, in Proceedings of Sixth World Congress of International Physicians for the Prevention of Nuclear War (IPPNW) , Cologne, 1986, published under the title Maintain Life on Earth! , 1987 pp. 122–125.
16 Op. cit., Ann. 6, p. 158.
17 Op. cit., Ann. 6, pp. 159–160.
19 Don G. Bates, “Medical and Ecological Effects of Nuclear War”, McGiIl Law Journal, 1983, Vol. 28, pp. 722–724.
20 Ibid., p. 724.
21 Herbert Abrams, “Chernobyl and the Short-Term Medical Effects of Nuclear War”, op. cit., p. 127.
22 Herbert Abrams, “Chernobyl and the Short-Term Medical Effects of Nuclear War”, op. cit., p. 127, quoting Abrams, “Medical Resources after Nuclear War: Availability v. Need”, Journal of the American Medical Association, 1984, pp. 252, 653–658.
23 Singh and McWhinney, Nuclear Weapons and Contemporary International Law , 1989, p. 124.
24 See WHO Report, op. cit., Ann. 7.
25 Ibid., p. 165.
26 WHO Report, op. cit., pp. 165–166.
27 Ibid., p. 165.
28 On the long-term effects, see also Z. Dienstbier, “Long-Term Medical Effects of Nuclear War”, in IPPNW Congress Proceedings, op. cit., pp. 130 ff.
29 At an exposure of 1 Gray whole body irradiation, there will be an estimated lifetime risk of mortality from all forms of cancer in the range of 4 per cent to 11 per cent of survivors. A Gray is the “International System unit of absorbed dose, equal to the energy imparted by ionizing radiation to a mass of matter corresponding to 1 joule per kilogram” ( McGraw-Hill Dictionary of Scientific and Technical Terms , 2nd ed., p. 696).
30 Abrams and Von Kaenel, “Medical Problems of Survivors of Nuclear War: Infection and the Spread of Communicable Disease”, New England Journal of Medicine, 1981, Vol. 305, p. 1226, cited in Bates, “The Medical and Ecological Effects of Nuclear War”, op. cit., p. 726.
31 Bates, op. cit.
32 Reported in International Herald Tribune , 21 May 1996, p. 10, and The Guardian Weekly , 26 May 1996. According to the Report, “In the contest for supremacy the microbes are sprinting ahead.”
33 1957, p. 70
34 University of North Carolina Press, 1955.
35 Here is a quote from Hiroshima Diary:
“And they had no faces ! Their eyes, noses and mouths had been burned away, and it looked like their ears had been melted off. It was hard to tell front from back. One soldier, whose features had been destroyed and was left with his white teeth sticking out, asked me for some water and I didn't have any. I clasped my hands and prayed for him. He didn't say anything more. His plea for water must have been his last words.” (P. 15.)
36 A compendium of United Nations Action in the Field of Human Rights , 1988, p. 29, para. 234.
37 Op. cit. footnote 36, supra.
38 Op. cit. footnote 36, supra.
39 See Hiroshima Diary: The Journal of a Japanese Physician August 6–September 30, 1945 , op. cit. footnote 34, supra.
40 Op. cit. footnote 13, supra, p. 5, para. 9.
41 R. J. and L. J. Donaldson, Essential Public Medicine , 1993, p. 107.
42 R. J. and L. J. Donaldson, Essential Public Medicine , 1993, pp. 120–121.
43 Op. cit. footnote 13, supra, p. 33, para. 84.
44 Effects of Nuclear War on Health and Health Services , WHO, Geneva, 1984, p. 6; emphasis added.
45 Op. cit. footnote 13, supra, Ann. 6, p. 158
46 International Environmental Law and World Order , Guruswamy, Palmer and Weston, 1994, p. 344.
47 Proceedings of the American Society of International Law , 1915, Vol. 2, pp. 7–9, cited in Guruswamy, Palmer and Weston, op. cit., p. 345.
48 International Law Commission, Draft Article 19 (3) (d) on State Responsibility, Yearbook of the International Law Commission, 1976, Vol. II, Part II, p. 96.
49 See Geoffrey Palmer, “New Ways to Make International Environmental Law”, American Journal of International Law. 1992, Vol. 86, p. 262.
50 See references to the relevant cases in paragraph 19 of the Court's Advisory Opinion.
51 Sir Gerald Fitzmaurice, The Law and Procedure of the International Court of Justice , 1986, Vol. I, p. 341.
52 See Fitzmaurice, op. cit., pp. 345 ff. See, generally, C. F. Amerasinghe, “Interpretation of Texts in Open International Organizations”, British Year Book of International Law, 1994, Vol. 65, pp. 189 ff.; H. W. A. Thirlway, “The Law and Procedure of the International Court of Justice, 1960-1989”, British Year Book of International Law, 1991, Vol. 62, pp. 20 ff.
53 For numerous decisions on this matter, see footnote 1, supra.
54 Conditions of Admission of a State to Membership in the United Nations (Article 4 of Charter), Advisory Opinion, 1948, I.C.J. Reports 1947-1948, p. 57, Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion, I.C.J. Reports 1950, p. 4, and Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion, I.C.J. Reports 1950, p. 65.
55 The Law and Procedure of the International Court of Justice , op. cit., p. 116.
56 See Nagendra Singh, Nuclear Weapons and International Law , 1959, p. 11; see, also, Richard Falk, Lee Meyrowitz and Jack Sanderson, “Nuclear Weapons and International Law”, Indian Journal of International Law, 1980, Vol. 20, p. 542.
57 John Hersey, Hiroshima , first published in The New Yorker, August 1946, reissued as a Penguin Modern Classic, 1966, pp. 68–69.