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“We are not talking about commercial mining here! It is when you blow people up!”
NUCLEAR TESTS CASES (20 December 1974)
New Zealand v. France; Australia v. France REQUEST FOR INTERIM MEASURES. The agents of both New Zealand and
Australia both filed a request in the Registry of the ICJ for the indication of interim
(Both cases have almost the same set of facts and ratio, so unless indicated the measures of protection under the General Act for the Pacific Settlement of
facts and discussion apply to both New Zealand and Australia.) International Disputes, the Statute of the ICJ, and the Rules of Court.

RE: FRENCH NUCLEAR TESTS. This case relates to a dispute between the JUNE 22 ORDER. By an Order dated June 22, 1973 the Court indicated, on the
Governments of New Zealand and Australia, on one side, and the French basis of Article 41 of the ICJ Statute, certain interim measures of protection in the
Government, on the other, concerning the legality of atmospheric nuclear tests cases. The Court also addressed France’s request that the case be removed from
conducted by the latter Government in the South Pacific region. The French the list, and held that the considerations did not “permit the Court to accede at the
Government had carried out atmospheric tests of nuclear devices at its Centre present stage of the proceedings” to that request. Also considering that it was
d’expérimentations du Pacifique in French Polynesia, from 1966 to 1968, and necessary to resolve as soon as possible the questions on jurisdiction and of the
1970 to 1972. The main firing site used has been Mururoa atoll, some 2,500 admissibility of the Applications, the ICJ decided that the written proceedings
nautical miles from the nearest point of the North Island of New Zealand, and should first be addressed to the questions of the jurisdiction of the Court to
some 6000 kilometers to the east of the Australian mainland. The French entertain the cases and of the admissibility of the Applications. The Governments
Government has created “Prohibited Zones” for aircraft and “Dangerous Zones” of New Zealand and Australia were able to file their Memorials on time, while the
for aircraft and shipping, in order to exclude aircraft and shipping from the area of French Government failed to submit a Counter-Memorial. The written proceedings
the tests centre; these “zones” have been put into effect during the period of were then closed, and the case set for hearing. Public hearings were then held,
testing in each year in which tests have been carried out. where the ICJ heard the oral arguments on the questions of the Court’s
jurisdiction and of the admissibility of the Applications. The French Government
FALL OUT. As the UN Scientific Committee on the Effects of Atomic Radiation was not represented at the hearings.
has recorded in its successive reports to the General Assembly, the testing of
nuclear devices in the atmosphere has entailed the release into the atmosphere SUBMISSIONS OF AUSTRALIA. In its Application: “The Government of Australia
and the consequent dissipation, in varying degrees throughout the world, of asks the Court to adjudge and declare that, for the above-
measurable quantities of radio-active matter. It is asserted by New Zealand and mentioned reasons or any of them or for any other reason that the
Australia that the French atmospheric tests have caused some fall-out of this kind Court deems to be relevant, the carrying out of further
to be deposited on their respective territories; France has maintained, in atmospheric nuclear weapon tests in the South Pacific Ocean is
particular, that the radio-active matter produced by its tests has been so not consistent with applicable rules of international law. And to
infinitesimal that it may be regarded as negligible and that any fall-out on the Order that the French Republic shall not carry out any further
territories has never involved any danger to the health of the population of New such tests.”
Zealand and Australia.
In the Mernorial: “The Government of Australia submits to the Court that it is
APPLICATIONS TO THE ICJ. On May 9, 1973, the Ambassadors of New entitled to a declaration and judgment that: (a) the Court has
Zealand and Australia to the Netherlands submitted Applications instituting jurisdiction to entertain the dispute, the subject of the Application
proceedings against France. To found the jurisdiction of the ICJ, both Applications filed by the Government of Australia on 9 May 1973; and (b ) the
relied on Art. 36, paragraph 1, and Art. 37 of the Statute of the ICJ, and Art. 17 of Application is admissible.”
the General Act for the Pacific Settlernent of International Disputes done at
Geneva on 26 Septernber 1928, and, in the alternative, on Art. 36, paragraphs 2 Submissions filed with the Registry of the Court during the oral proceedings: “The
and 5, of the Statute of the ICJ. Both applicants also chose the Honorable Sir final submissions of the Government of Australia are that: (a) the Court has
Garfield Barwick, Chief Justice of Australia, to sit as judge ad hoc. jurisdiction to entertain the dispute the subject of the Application filed by the
Government of Australia on 9 May 1973; and ( b ) the Application is admissible
FRENCH LETTER. On May 16, 1973, the French Ambassador to the Netherlands and that accordingly the Government of Australia is entitled to a declaration and
submitted a letter from the French Government that stated that, for reasons set judgment that the Court has full competence to proceed to entertain the
out, it considered that the Court was manifestly not competent in the case; that it Application by Australia on the Merits of the dispute.”
could not accept the Court’s jurisdiction; and that accordingly the French
Government did not intend to appoint an agent, and requested the Court to SUBMISSIONS OF NEW ZEALAND. In the Application: “New Zealand asks the
remove the case from its list. Court to adjudge and declare: That the conduct by the French Government of

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nuclear tests in the South Pacific region that give rise to radioactive fall-out the Court has therefore first to examine a question which it finds to be essentially
constitutes a violation of New Zealand’s rights under international law, and that preliminary, namely the existence of a dispute, for, whether or not the Court has
these rights will be violated by any further such tests.” jurisdiction in the present case, the resolution of that question could exert a
decisive influence on the continuation of the proceedings.
In the Memorial: “. . . the Government of New Zealand submits to the Court that it
is entitled to a declaration and judgment that ( a ) the Court has jurisdiction to SUBISSUE: What are the original and ultimate objectives of New Zealand and
entertain the Application filed by New Zealand and to deal with the merits of the Australia?
dispute; and ( b ) the Application is admissible.” HELD: To obtain a termination of the French nuclear tests.

Submissions filed with the Registry during oral proceedings: “The Government of i. NEW ZEALAND
New Zealand is entitled to a declaration and judgment that ( a ) the Court has
jurisdiction to entertain the Application filed by New Zealand and to deal with the IN DETERMINING THE OBJECTIVES, START WITH THE APPLICATION. The
merits of the dispute; and ( b ) the Application is admissible.” Court would recall that the submission made in the Application is that the Court
should adjudge and declare “that the conduct by the French Government of
NONE FOR FRANCE. No pleadings were filed by the French Government, and it nuclear tests in the South Pacific region that give rise to radioactive fallout
was not represented at the oral proceedings; no forma1 submissions were constitutes a violation of New Zealand’s rights under international law” - the
therefore made by that Government. The attitude of the French Government with alleged rights so violated being enumerated in the Application - and “that these
regard to the question of the Court’s jurisdiction was however defined in the May rights will be violated by any further such tests”.
16 letter.
DIPLOMATIC CORRESPONDENCE NEXT. The diplomatic correspondence
TESTS CONTINUED. By letters sent on September 1973, August and November between New Zealand and France over the past 10 years reveals New Zealand’s
1974, the Governments of New Zealand and Australia informed the ICJ that, after preoccupation with French nuclear tests, and indicates that its objective was to
the June 22 Order providing for interim measures that the French Government bring about their termination. Thus in a letter from the Prime Minister of New
should avoid nuclear tests causing the deposit of radioactive fallout on their Zealand to the French Ambassador in Wellington dated 19 December 1972, the
respective territories, two further series of atmospheric tests had been carried out Prime Minister said: “My Government is committed to working through all possible
in July and August 1973, and June to September 1974. The letters also stated means to bring the tests to an end, and we shall not hesitate to use the channels
that fallout had been recorded on their territories, analyses of samples of which, available to us in concert as appropriate with like-minded countries. It is my hope,
according to the two governments, established conclusively the presence of however, Mr. Ambassador, that you will convey to your Government while in Paris
fallout from these tests, and that it was their view that “there has been a clear my earnest desire to see this one element of serious contention removed from
breach by the French Government of the Court’s Order of 22 June 1973.” what is in other respects an excellent relationship between our countries. For my
part, I see no other way than a halt to further testing.”
ISSUE: WON a dispute exists between the parties (between Australia and
France, and between New Zealand and France). Furthermore in the Application of New Zealand, it is stated, in connection with
HELD: NO. As France has undertaken the obligation to hold no further nuclear discussions held in April 1973 between the two Governments that: “Unfortunately,
tests in the atmosphere in the South Pacific, the dispute has already disappeared, however, they [the discussions] did not lead to agreement. In particular, the
and there is nothing on which to give judgment. French Government did not feel able to give the Deputy Prime Minister of New
Zealand the assurance which he sought, namely that the French programme of
THE COURT’S INHERENT JURISDICTION. In this connection, it should be atmospheric nuclear testing in the South Pacific had come to an end.”
emphasized that the Court possesses an inherent jurisdiction enabling it to take
such action as may be required, on the one hand to ensure that the exercise of its And in a letter to the President of the French Republic by the Prime Minister of
jurisdiction over the merits, if and when established, shall not be frustrated, and New Zealand dated 4 May 1973, following those discussions, the Prime Minister
on the other, to provide for the orderly settlement of all matters in dispute, to said: “Since France has not agreed to Our request that nuclear weapons testing in
ensure the observance of the “inherent limitations on the exercise of the judicial the atmosphere of the South Pacific be brought to an end, and since the French
function” of the Court, and to “maintain its judicial character” (Northern Government does not accept New Zealand’s view that these tests are unlawful,
Cameroons Judgment). Such inherent jurisdiction, on the basis of which the Court the New Zealand Government sees no alternative to its proceeding with the
is fully empowered to make whatever findings may be necessary for the purposes submission of its dispute with France to the International Court of Justice. I stress
just indicated, derives from the mere existence of the Court as a judicial organ again that we see this as the one question at issue between
established by the consent of States, and is conferred upon it in order that its us, and that our efforts are solely directed at removing it from contention.”
basic judicial functions may be safeguarded. With these considerations in mind,
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THE FRENCH COMMUNIQUÉ. In the course of the oral proceedings, the not to any other form of testing, and as applying only to atmospheric tests so
Attorney-General of New Zealand outlined the history of the dispute, and included conducted as to give rise to radioactive fallout on New Zealand territory.
in this review mention of diplomatic correspondence exchanged between June
and July 1974 by France and New Zealand, and of a communiqué issued by the MUST ISOLATE THE REAL ISSUE IN THE CASE. In the light of the above
Office of the President of the French Republic on 8 June 1974. The Attorney- statements, it is essential to consider whether New Zealand requests a judgment
General’s comments on these documents indicated that they merited analysis as by the Court which would only state the legal relationship between New Zealand
possible evidence of a certain development in the controversy between the and France with regard to the matters in issue, or a judgment of a type which in
Parties, though at the same time he made it clear that this development was not, terms requires one or both of the Parties to take, or refrain from taking, some
in his Government’s view, of such a nature as to resolve the dispute to its action. Thus it is the Court’s duty to isolate the real issue in the case and to
satisfaction. More particularly, when referring to a Note of 10 June 1974 from the identify the object of the claim.
French Embassy in Wellington to the New Zealand Ministry of Foreign Affairs he
stated: “New Zealand has not been given anything in the nature of an unqualified THE ORIGINAL AND ULTIMATE OBJECTIVE = STOP THE TESTS. The Court
assurance that 1974 will see the end of atmospheric nuclear testing in the South is asked t o adjudge and declare that French atmospheric nuclear tests are illegal,
Pacific”. but at the same time it is requested to adjudge and declare that the rights of New
Zealand “will be violated by any further such tests”. The Application thus contains
The Attorney-General continued: “On 11 June the Prime Minister of New Zealand, a submission requesting a definition of the rights and obligations of the Parties.
Mr. Kirk, asked the French Ambassador in Wellington to convey a letter to the However, it is clear that the fons et origo of the dispute was the atmospheric
President of France. Copies of that letter have been filed with the Registry. It nuclear tests conducted by France, and that the original and ultimate objective of
urged among other things that the President should, even at that time, weigh the New Zealand was and has remained to obtain a termination of those tests. This is
implications of any further atmospheric testing in the Pacific and resolve to put an indeed confirmed by the various statements made by the New Zealand
end to an activity which has been the source of grave anxiety to the people of the Government, and in particular by the statement made before the Court in the oral
Pacific region for more than a decade.” It is clear from these statements, read in proceedings.
the light of the diplomatic correspondence, that if the Note of 10 June 1974 could
have been construed by New Zealand as conveying “an unqualified assurance ii. AUSTRALIA
that 1974 [would] see the end of atmospheric nuclear testing” by France “in the
South Pacific”, or if the President of the Republic, following the letter of 11 June THE SUBMISSION IN THE APPLICATION is that the Court should adjudge and
1974, did “resolve to put an end to [that] activity”, the New Zealand would have declare that “the carrying out of further atmospheric nuclear weapon tests in the
regarded its objective as having been achieved. South Pacific Ocean is not consistent with applicable rules of international law” -
the Application having specified in what respect further tests were alleged to be in
ACCORDING TO THE PRIME MINISTER. Subsequently, on 1 November 1974, violation of international law - and should order “that the French Republic shall not
the Prime Minister of New Zealand, Mr. W. E. Rowling, commented in a public carry out any further such tests”.
statement on the indications given by France of its intention to put an end to
atmospheric tests, and said: “It should . . . be clearly understood that nothing said THE DIPLOMATIC CORRESPONDENCE of recent years between Australia and
by the French Government, whether to New Zealand or to the international France reveals Australia’s preoccupation with French nuclear atmospheric tests,
community at large, has amounted to an assurance that there will be no further and indicates that its objective has been to bring about their termination. Thus in a
atmospheric nuclear tests in the South Pacific. The option of further atmospheric Note dated 3 January 1973 the Australian Government made it clear that it was
tests has been left open. Until we have an assurance that nuclear testing of this inviting the French Government “to refrain from any further atmospheric nuclear
kind is finished for good, the dispute between New Zealand and France persists . . tests in the Pacific area and formally to assure the Australian Government that no
.” (Emphasis added.) more such tests will be held in the Pacific area”.

REFERS TO ATMOSPHERIC TESTS. The type of tests to which the proceedings IN THE APPLICATION, Australia observed in connection with this Note (and the
relate is described in the Application as “nuclear tests in the South Pacific region French reply of 7 February 1973) that: “It is at these Notes, of 3 January and 7
that gave rise to radioactive fallout”, the type of testing contemplated not being February 1973, that the Court is respectfully invited to look most closely; for it is in
specified. However, New Zealand’s case has been argued mainly in relation to them that the shape and dimensions of the dispute which now so sadly divides the
atmospheric tests; and the statements of successive Prime Ministers of New parties appear so clearly. The Government of Australia claimed that the
Zealand show that an assurance “that nuclear testing of this kind”, that is to say, continuance of testing by France is illegal and called for the cessation of tests.
testing in the atmosphere, “is finished for good” would meet the object of the New The Government of France asserted the legality of its conduct and gave no
Zealand claim. The Court therefore considers that, for purposes of the Application, indication that the tests would stop.”
the New Zealand claim is to be interpreted as applying only to atmospheric tests,
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INTERIM MEASURES. That this was the object of the claim also clearly emerges It is clear that the Australian Government contemplated the possibility of “an
from the request for the indication of interim measures of protection, in which it assurance that no further atmospheric tests will take place” being sufficient to
was observed: “As is stated in the Application, Australia has sought to obtain from protect Australia.
the French Republic a permanent undertaking to refrain from further atmospheric
nuclear tests in the Pacific. However, the French Republic has expressly refused t ISOLATE THE REAL ISSUE. It is essential to consider whether Australia
o give any such undertaking. It was made clear in a statement in the French requests a judgment by the Court which would only state the legal relationship
Parliament on 2 May 1973 by the French Secretary of State for the Armies that between itself and France with regard to the matters in issue, or a judgment of a
the French Government, regardless of the protests made by Australia and other type which in terms requires one or both of the Parties to take, or refrain from
countries, does not envisage any cancellation or modification of the programme of taking, some action. Thus it is the Court’s duty to isolate the real issue in the case
nuclear testing as originally planned.” and to identify the object of the claim.

THE FRENCH COMMUNIQUÉ. During the oral proceedings, the Attorney- ALSO TERMINATION OF THE TESTS. Although Australia has in its Application
General of Australia outlined the history of the dispute subsequent to the June 22 used the traditional formula of asking the Court “to adjudge and declare,” the
Order, and included in this review mention of the June 8 communiqué. The Court must ascertain the true object and purpose of the claim and in doing so it
Attorney-General’s comments on this document indicated that it merited analysis cannot confine itself to the ordinary meaning of the words used; it must take into
as possible evidence of a certain development in the controversy between the account the Application as a whole, the arguments before the Court, the
Parties, though at the same time he made it clear that this development was not, diplomatic exchanges brought to the Court’s attention, and public statements
in his Government’s view, of such a nature as to resolve the dispute to its made on behalf of Australia. If these clearly circumscribe the object of the claim,
satisfaction. The Attorney-General said, with respect to the communiqué: “The the interpretation of the submissions must necessarily be affected. It is evident
concern of the Australian Government is t o exclude completely atmospheric that the fons et origo of the case was the atmospheric nuclear tests conducted by
testing. It has repeatedly sought assurances that atmospheric tests will end. It has France in the South Pacific region, and that the original and ultimate objective was
not received those assurances. The recent French Presidential statement cannot and has remained to obtain a termination of those tests; thus its claim cannot be
be read as a firm, explicit and binding undertaking to refrain from further regarded as being a claim for a declaratory judgment. While the judgment of the
atmospheric tests. It follows that the Government of France is still reserving to Court which Australia seeks to obtain would in its view have been based on a
itself the right to carry out atmospheric nuclear tests.” finding by the Court on questions of law, such finding would be only a means to
an end, and not an end in itself. The Court is of course aware of the role of
It is clear from these statements that if the French Government had given what declaratory judgments, but the present case is not one in which such a judgment
could have been construed by Australia as “a firm, explicit and binding is requested.
undertaking t o refrain from further atmospheric tests”, the latter would have
regarded its objective as having been achieved. SUBISSUE: WON France has announced its intent to cease the tests.
HELD: YES.
REGARDING REPORTS THAT FRANCE ANNOUNCED THAT IT HAD
FINISHED WITH ATMOSPHERIC TESTING, the Attorney-General said: “From FRENCH STATEMENTS. Certain French authorities have made a number of
the reports I have received it appears that what the French Foreign Minister consistent public statements concerning future tests which provide material
actually said was ‘We have now reached a stage in our nuclear technology that facilitating the Court’s task of assessing New Zealand’s and Australia’s
makes it possible for us to continue our program by underground testing, and we interpretations of the earlier documents, and which indeed require to be examined
have taken steps to do so as early as next year’ . . . this statement falls far short in order to discern whether they embody any modification of intention as to
of a commitment or undertaking that there will be no more atmospheric tests France’s future conduct. It is true that these statements have not been made
conducted by the French Government at its Pacific Tests Centre . . . There is a before the Court, but they are in the public domain, are known to the New Zealand
basic distinction between an assertion that steps are being taken to continue the and Australian Governments.
testing program by underground testing as early as next year and an assurance
that no further atmospheric tests will take place. It seems that the Government of ON USING THE STATEMENTS ISSUED AFTER THE CLOSE OF THE
France, while apparently taking a step in the right direction, is still reserving to PROCEEDINGS. It would no doubt have been possible for the Court, had it
itself the right to carry out atmospheric nuclear tests. In legal terms, Australia has considered that the interests of justice so required, to have afforded the Parties
nothing from the French Government which protects it against any further the opportunity, e.g., by reopening the oral proceedings, of addressing to the
atmospheric tests should the French Government subsequently decide to hold Court comments on the statements made since the close of those proceedings.
them.” Such a course however would have been fully justified only if the matter dealt with
in those statements had been completely new, had not been raised during the
proceedings, or was unknown to the Parties. This is manifestly not the case. The
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essential material which the Court must examine was introduced into the The phrase “in the normal course of events” was regarded by New Zealand as
proceedings by New Zealand and Australia themselves, by no means incidentally, qualifying the statement made, so that it did not meet its expectations, which
during the course of the hearings, when they drew the Court’s attention to evidently regarded those words as a form of escape clause.
statements by the French authorities made prior to that date, submitted the
documents containing them and presented an interpretation of their character, THE THIRD STATEMENT is contained in a reply made on 1 July 1974 by the
touching particularly upon the question whether they contained a firm assurance. President to the New Zealand Prime Minister’s letter of 11 June: “In present
Thus both the statements and the interpretations of them are before the Court. circumstances, it is at least gratifying for me to note the positive reaction in your
Moreover, New Zealand and Australia subsequently publicly expressed their letter to the announcement in the communiqué of 8 June 1974 that we are going
comments on statements made by the French authorities since the closure of the over to underground tests. There is in this a new element whose importance will
oral proceedings. The Court is therefore in possession not only of the statements not, I trust, escape the New Zealand Government.”
made by French authorities concerning the cessation of atmospheric nuclear
testing, but also of the views of the Applicants on them. Although as a judicial The above statements were made prior to the oral proceedings.
body the Court is conscious of the importance of the principle expressed in the
maxim audi alteram partem, it does not consider that this principle precludes the AFTER THE ORAL PROCEEDINGS. On 25 July at a press conference given by
Court from taking account of statements made subsequently to the oral the President, he said: “. . . on this question of nuclear tests, you know that the
proceedings, and which merely supplement and reinforce matters already Prime Minister had publicly expressed himself in the National Assembly in his
discussed in the course of the proceedings, statements with which the Applicants speech introducing the Government’s programme. He had indicated that French
must be familiar. Thus the Applicants, having commented on the statements of nuclear testing would continue. I had myself made it clear that this round of
the French authorities, both that made prior to the oral proceedings and those atmospheric tests would be the last, and so the members of the Government were
made subsequently, could reasonably expect that the Court would deal with the completely informed of our intentions in this respect . . .”
matter and come to its own conclusion on the meaning and effect of those
statements. Thus the reopening of the oral proceedings would serve no useful On 16 August 1974, in the course of an interview on French television, the
purpose. Minister of Defence said that the French Government had done its best t o ensure
that the 1974 nuclear tests would be the last atmospheric tests. On 25
THE FRENCH COMMUNIQUÉ issued by the President of the French Republic on September, the French Minister for Foreign Affairs, addressing the UN General
8 June 1974, shortly before the commencement of the 1974 series of French Assembly, said: “We have now reached a stage in our nuclear technology that
nuclear tests: “The Decree reintroducing the security measures in the South makes it possible for us to continue our programme by underground testing, and
Pacific nuclear test zone has been published in the Official Journal of 8 June we have taken steps to do so as early as next year.” On 11 October, the Minister
1974. The Office of the President of the Republic takes this opportunity of stating of Defence held a press conference during which he stated twice, in almost
that in view of the stage reached in carrying out the French nuclear defence identical terms, that there would not be any atmospheric tests in 1975 and that
programme France will be in a position to pass on to the stage of underground France was ready to proceed to underground tests. When the comment was
explosions as soon as the series of tests planned for this summer is completed.” made that he had not added “in the normal course of events”, he agreed that he
had not. This latter point is relevant in view of the Note of 10 June 1974 from the
JUNE 10, 1974 NOTE from the French Embassy in Wellington to the New French Embassy in Wellington to the Ministry of Foreign Affairs of New Zealand,
Zealand Ministry of Foreign Affairs: “It should . . . be pointed out that the decision to the effect that the atmospheric tests contemplated “will, in the normal course of
taken by the Office of the President of the French Republic to have the opening of events, be the last of this type”. The Minister also mentioned that, whether or not
the nuclear test series preceded by a press communiqué represents a departure other governments had been officially advised of the decision, they could become
from the practice of previous years. This procedure has been chosen in view of aware of it through the press and by reading the communiqués issued by the
the fact that a new element has intervened in the development of the programme Office of the President.
for perfecting the French deterrent force. This new element is as follows: France,
at the point which has been reached in the execution of its programme of defence INTENT WAS TO CEASE THE TESTS. In view of the foregoing, the Court finds
by nuclear means, will be in a position to move to the stage of under-ground that the communiqué, the French Embassy’s Note, and the President’s letter
firings as soon as the test series planned for this summer is completed. Thus the conveyed France’s intention to cease the conduct of atmospheric nuclear tests
atmospheric tests which will be carried out shortly will, in the normal course of following the conclusion of the 1974 series of tests. The Court must consider in
events, be the last of this type. The French authorities express the hope that the particular the President’s statement of 25 July followed by the Defence Minister’s
New Zealand Government will find this information of some interest and will wish statement of 11 October 1974. These reveal that the officia1 statements made on
to take it into consideration.” behalf of France concerning future nuclear testing are not subject to whatever
proviso, if any, was implied by the expression “in the normal course of events.”

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SUBISSUE: What is the significance of the statements made by France? NEW ZEALAND’S CONCLUSION RE: FRENCH STATEMENTS. New Zealand
HELD: These constitute an undertaking possessing legal effect. has recognized the possibility of the dispute being resolved by a unilateral
declaration by France. In the public statement of 1 November 1974, it is stated
UNILATERAL ACTS, LEGAL OBLIGATIONS. It is well recognized that that “Until we have an assurance that nuclear testing of this kind is finished for
declarations made by way of unilateral acts, concerning legal or factual situations, good, the dispute between New Zealand and France persists”. This is based on
may have the effect of creating legal obligations. Declarations of this kind may be, the view that “the option of further atmospheric tests has been left open”.
and often are, very specific. When it is the intention of the State making the
declaration that it should become bound according to its terms, that intention AUSTRALIA’S CONCLUSION RE: FRENCH STATEMENTS. As a reply to a
confers on the declaration the character of a legal undertaking, the State being question concerning reports that France had announced that it had finished
thenceforth legally required to follow a course of conduct consistent with the atmospheric nuclear testing, the Australian Attorney-General said that the
declaration. An undertaking of this kind, if given publicly, and with an intent to be statement of the French Foreign Minister “falls far short of an undertaking that
bound, even though not made within the context of inter-national negotiations, is there will be no more atmospheric tests conducted by the French Government at
binding. In these circumstances, nothing in the nature of a quidpro quo nor any its Pacific Tests Centre” and that France was “still reserving to itself the right to
subsequent acceptance of the declaration, nor even any reply or reaction from carry out atmospheric nuclear tests” so that “in legal terms, Australia has nothing
other States, is required for the declaration to take effect, since such a from the French Government which protects it against any further atmospheric
requirement would be inconsistent with the strictly unilateral nature of the juridical tests”. Australia has recognized the possibility of the dispute being resolved by a
act by which the pronouncement by the state was made. Of course, not all unilateral declaration by France, and its conclusion that in fact no “commitment” or
unilateral acts imply obligation; but a State may choose to take up a certain “firm, explicit and binding undertaking” had been given is based on the view that
position in relation to a particular matter with the intention of being bound - the the assurance is not absolute in its terms, that there is a “distinction between an
intention is to be ascertained by interpretation of the act. When States make assertion that tests will go underground and an assurance that no further
statements by which their freedom of action is to be limited, a restrictive atmospheric tests will take place”, that “the possibility of further atmospheric
interpretation is called for. testing taking place after the commencement of underground tests cannot be
excluded” and that thus “the Government of France is still reserving to itself the
WRT FORM, it should be observed that this is not a domain in which international right to carry out atmospheric nuclear tests”.
law imposes any special or strict requirements. Whether a statement is made
orally or in writing makes no essential difference, for such statements made in STATEMENTS = ACTS OF THE STATE. Of the statements by the French
particular circumstances may create commitments in international law, which does Government, the most essential are clearly those made by the President. There
not require that they should be couched in written form. Thus the question of form can be no doubt, in view of his functions, that his public communications or
is not decisive. As the Court said in its Judgment on the preliminary objections in statements, oral or written, as Head of State, are in international relations acts of
the case concerning the Temple of Preah Vihear: “Where . . . as is generally the the French State. His statements, and those of members of the French
case in international law, which places the principal emphasis on the intentions of Government acting under his authority, up to the last statement made by the
the parties, the law prescribes no particular form, parties are free to choose what Minister of Defence, constitute a whole. Thus, in whatever form these statements
form they please provided their intention clearly results from it… the sole relevant were expressed, they must be held to constitute an engagement of the State,
question is whether the language employed in any given declaration does reveal a having regard to their intention and to the circumstances in which they were
clear intention . . .” made.

GOOD FAITH. One of the basic principles governing the creation and STATEMENTS MADE PUBLICLY, ERGA OMNES. The unilateral statements of
performance of legal obligations, whatever their source, is the the French authorities were made outside the Court, publicly and erga omnes,
principle of good faith. Trust and confidence are inherent in even though the first of them was communicated to the Government of Australia.
international cooperation, in particular in an age when this To have legal effect, there was no need for these statements to be addressed to a
cooperation in many fields is becoming increasingly essential. Just particular State, nor was acceptance by any other State required. The general
as the very rule of pacta sunt servanda in the law of treaties is nature and characteristics of these statements are decisive for the evaluation of
based on good faith, so also is the binding character of an the legal implications, and it is to the interpretation of the statements that the
international obligation assumed by unilateral declaration. Thus Court must now proceed. The Court is entitled to presume, at the outset, that
interested States may take cognizance of unilateral declarations these statements were not made in vacuo, but in relation to the tests which
and place confidence in them, and are entitled to require that the constitute the very object of the present proceedings, although France has not
obligation thus created be respected. appeared in the case.

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UNDERTAKING WITH LEGAL EFFECT. In announcing that the 1974 series of account declarations, admissions or proposals which the Parties may have made
atmospheric tests would be the last, the French Government conveyed to the during direct negotiations between themselves, when such negotiations have not
world at large, including Australia and New Zealand, its intention effectively to led to a complete agreement.” However that is not the situation before the Court in
terminate these tests. It was bound to assume that other States might take note of the present cases. New Zealand and Australia have clearly indicated what would
these statements and rely on their being effective. The validity of these satisfy their claim, and France has independently taken action; the question for
statements and their legal consequences must be considered within the general the Court is thus one of interpretation of the conduct of each of the Parties. The
framework of the security of international intercourse, and the confidence and conclusion at which the Court has arrived as a result of such interpretation does
trust which are so essential in the relations among States. It is from the actual not mean that it is itself effecting a compromise of the claim; the Court is merely
substance of these statements, and from the circumstances attending their ascertaining the object of the claim and the effect of France’s action, and this it is
making, that the legal implications of the unilateral act must be deduced. The obliged t o do. Any suggestion that the dispute would not be capable of being
objects of these statements are clear and they were addressed to the international terminated by statements made on behalf of France would run counter to the
community as a whole, and the Court holds that they constitute an undertaking unequivocally expressed views of New Zealand and Australia both before the
possessing legal effect. The Court considers that the President, in deciding upon Court and elsewhere.
the effective cessation of atmospheric tests, gave an undertaking to the
international community to which his words were addressed. It is true that the DISPUTE IS PRIMARY CONDITION FOR EXERCISE OF JUDICIAL FUNCTION.
French Government has consistently maintained that its nuclear experiments The Court, as a court of law, is called upon to resolve existing disputes between
don’t contravene any subsisting provision of international law, nor did France States. Thus the existence of a dispute is the primary condition for the Court to
recognize that it was bound by an rule of international law to terminate its tests, exercise its judicial function; it is not sufficient for one party to assert that there is
but this does not affect the legal consequences of the above statements. The a dispute, since “whether there exists an international dispute is a matter for
Court finds that the unilateral undertaking resulting from these statements cannot objective determination” by the Court (Interpretation of Peace Treaties with
be interpreted as having been made in implicit reliance on an arbitrary power of Bulgaria, Hungary and Romania (First Phase), Advisory Opinion). The dispute
reconsideration. The Court finds further that the French Government has brought before it must therefore continue to exist at the time when the Court
undertaken an obligation the precise nature and limits of which must be makes its decision. It must not fail to take cognizance of a situation in which the
understood in accordance with the actual terms in which they have been publicly dispute has disappeared because the object of the claim has been achieved by
expressed. The objectives of both New Zealand and Australia have in effect been other means. If the declarations of France concerning the effective cessation of
accomplished. the nuclear tests have the significance described by the Court - if they have
caused the dispute to disappear - al1 the necessary consequences must be
SUBISSUE: WON a pronouncement, concerning the rights and obligations drawn from this finding.
between New Zealand and France, is proper.
HELD: NO. IT MAY BE ARGUED THAT although France may have undertaken such an
obligation, by a unilateral declaration, not to carry out atmospheric nuclear tests in
NO NEED ANYMORE. Though New Zealand has formally requested a finding on the South Pacific Ocean, a judgment of the Court on this subject might still be of
the rights and obligations of the Parties, it has throughout the dispute maintained value because, if the judgment upheld the contentions of New Zealand and
as its final objective the termination of the tests. It has sought from France an Australia, it would reinforce their position by affirming the French obligation.
assurance that the French programme of atmospheric nuclear testing would come
to an end. On more than one occasion it has indicated that it would be ready to NO FURTHER JUDICIAL ACTION! However, the Court having found that France
accept such an assurance. Since the Court now finds that a commitment in this has assumed an obligation as to conduct, concerning the effective cessation of
respect has been entered into by France, there is no occasion for a nuclear tests, no further judicial action is required. New Zealand and Australia
pronouncement in respect of rights and obligations of the Parties concerning the have repeatedly sought from France an assurance that the tests would cease,
past, which in other circumstances the Court would be entitled and even obliged and France has, on its own initiative, made a series of statements to the effect
to make. that they will cease. Thus the Court concludes that, the dispute having
disappeared, the claims advanced no longer has any object. It follows that any
GOING BACK TO THE ISSUE OF WON THERE IS A DISPUTE: further finding would have no raison d’être.
ICJ, INTERPRET CONDUCT OF THE PARTIES. It would of course have been ARTICLE 38 of the Court’s Statute provides that its function is “to decide in
open to New Zealand Australia, if they have considered that the case had in effect accordance with international law such disputes as are submitted to it”; but not
been concluded, to discontinue the proceedings in accordance with the Rules of only Article 38 itself but other provisions of the Statute and Rules also make it
Court. If it has not done so, this does not prevent the Court from making its own clear that the Court can exercise its jurisdiction in contentious proceedings only
independent finding on the subject. It is true that “the Court cannot take into when a dispute genuinely exists between the parties. In refraining from further
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action in this case the Court is therefore merely acting in accordance with the their attention. Australia thus confined its Memorial and its oral argument to those
proper interpretation of its judicial function. This case is one of those in which questions. Having read the Memorial and heard that argument, the Court has
“circumstances that have … arisen render any adjudication devoid of purpose” discussed those questions but, whilst the Parties await the Court’s decision upon
(Northern Cameroons, Judgment). Thus there is no reason to allow the them, the Court of its own motion and without any notice to the Parties has
continuance of proceedings, which are bound to be fruitless, and no further decided the question whether the Application has ceased to have any object by
pronouncement is required. The object of the claim having clearly disappeared, reason of events which have occurred since the Application was lodged. It has
there is nothing on which to give judgment. taken cognizance of information as to events said to have occurred since the
close of the oral proceedings and has treated it as evidence in the proceedings. It
WRT FUTURE CONDUCT. Once the Court has found that a State has entered has not informed the Parties of the material which it has thus introduced into
into a commitment concerning its future conduct it is not the Court’s function to evidence. By the use of it the Court has drawn a conclusion of fact. It has also
contemplate that it will not comply with it. However, the Court observes that if the placed a particular interpretation upon the Application. Upon this conclusion of
basis of this Judgment were to be affected, New Zealand and Australia could fact and this interpretation of the Application the Court has decided the question
request an examination of the situation in accordance with the provisions of the whether the Application has ceased to have any object. That question, in my
Statute; the denunciation by France, by letter dated 2 January 1974, of the opinion, is not embraced within either of the two questions on which argument has
General Act for the Pacific Settlement of International Disputes, which is relied on been heard. It is a separate, different and new question.
as a basis of jurisdiction in the present case, cannot by itself constitute an
obstacle to the presentation of such a request. DIDN’T DECIDE ON JURISDICTION, ADMISSIBILITY. However, without
notifying the Parties of what it was considering and without hearing them, the
WRT PROVISIONAL MEASURES, the Court stated that these were indicated Court avoids deciding either of the two matters which it directed to be, and which
“pending its final decision in the proceedings….” It follows that such Order ceases have been argued. This, in my opinion, is an unjustifiable course, uncharacteristic
to be operative upon the delivery of the present Judgment, and that the of a court of justice. It is a procedure which in my opinion is unjust, failing to fulfil
provisional measures lapse at the same time. an essential obligation of the Court’s judicial process.

For these reasons, by nine votes to six, finds that the claim of AUSTRALIA no NOT A MATTER FOR THE COURT. It may be thought quite reasonable that if
longer has any object and that the Court is therefore not called France is willing to give to Australia such an unqualified and binding promise as
upon to give a decision thereon. Australia finds satisfactory for its protection never again to test nuclear weapons,
this case should be compromised and the Application withdrawn. But that is a
For these reasons, by nine votes to six, finds that the claim of NEW ZEALAND no matter entirely for the sovereign States. It is not a matter for this Court. The Rules
longer has any object and that the Court is therefore not called of Court provide the means whereby the proceedings can be discontinued at the
upon to give a decision thereon. will of the Parties. It is no part of the Court’s function to place any pressure on a
State to compromise its claim or itself to effect a compromise.
DISSENTING OPINION OF JUDGE SIR GARFIELD BARWICK in AUSTRALIA
V. FRANCE “WITHOUT OBJECT.” The Court has decided that the Application has become
“without object” and that therefore the Court is not called upon to give a decision
BARWICK HOLDS THAT the dispute between the Parties as to their legal rights upon it. The term “without object” when applied to an application or claim implies
was not resolved or caused to disappear by the communiqué and statements that no dispute exists between the Parties which is capable of resolution by the
quoted in the Judgment and that the Parties remained at the date of the Judgment Court by the application of legal norms available to the Court or that the relief
in dispute as to their legal rights. This is so even if the communiqué and which is sought is incapable of being granted by the Court or that in the
statements amounted to an assurance by France that it would not again test circumstances which obtain or would obtain at the time the Court is called upon to
nuclear weapons in the atmosphere. That assurance, if given, did not concede grant the relief claimed, no order productive of effect upon the Parties or their
any Australian rights in relation to nuclear explosions or the testing of nuclear rights could properly be made by the Court in exercising its judicial function. To
weapons: indeed, it impliedly asserted a right in France to continue such apply the expression “has become without object” to the present circumstances,
explosions or tests. Such an assurance would of itself in my opinion be incapable means in my opinion, that this Judgment can only be valid if the dispute between
of resolving a dispute as to legal rights. France and Australia as to their respective rights has been resolved; has ceased
to exist or if the Court, in the circumstances now prevailing, cannot with propriety,
AUSTRALIA ENTITLED TO MAKE SUBMISSIONS RE: MATTERS INVOLVED within its judicial function, make any declaration or Order having effect between
IN THE DECISION. The Court, by its June 22 Order, separated two questions, the Parties. If the Parties were not in dispute as to their respective rights the
jurisdiction to hear and determine the Application and of its admissibility, from all Application would have been “without object” when lodged, and no question of its
other questions. These were the only questions to which the Parties were to direct having no longer any object could arise. On the other hand if the Parties were in
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dispute as to their respective rights, it is that dispute which is relevant in any “without object” in the sense that there were no legal norms by resort to which the
consideration of the question whether or not the Application no longer has any dispute in fact existing between the Parties could be resolved, which is to say,
object. though it is not expressly said that there was no dispute between the Parties as to
their respective rights. This, it seems to me, was suggested in relation to the claim
ISSUE: WON the ICJ had jurisdiction over the case. that the testing of nuclear weapons had become unlawful by the customary
HELD: YES. The General Act of Geneva of 26 September 1928, on which international law. It was not, and in my opinion could not be, said that there were
Australia based jurisdiction, was a treaty in force between the parties and the no legal norms by reference to which the claim for the infringement of territorial
dispute between those States fell within the scope of its Article 17. and decisional sovereignty could be determined-though important and difficult
legal considerations arise in that connection.
ISSUE: WON there exists, in fact and in law, a dispute between the two States as
to their respective legal rights. (If no, then the application is inadmissible.) AN ELEMENT OF ADMISSIBILITY is the possession by the applicant State of a
HELD: YES. legal interest in the subject-matter of its Application. As it is the existence of a
dispute as to the respective legal rights of the Parties which must be the subject-
JURISDICTION VS. ADMISSIBILITY. A distinction has been drawn in the matter of the Application, upon the establishment of such a dispute each of the
jurisprudence of the Court between its jurisdiction in a matter and the admissibility disputants must be held to have a legal interest in the resolution of the dispute.
of the reference or application made to it. This might be significant in a case such For my part, the matter of admissibility would end at the point at which it was
as the present where there has been no preliminary objection to admissibility decided that there was a dispute between France and Australia as to their
setting out the grounds upon which it is said the Application is not admissible. It respective legal rights - that a dispute existed as to the right claimed by Australia
may be said that the jurisdiction of the Court relates to the capacity of the Court to as its right or of an obligation of France towards Australia which Australia claimed
hear and determine matters of a particular nature, whereas admissibility relates to to be infringed. There is importance in the presence of the word their in the
the competence, receivability, of the reference or application itself which is made formula; it is to be a dispute as to their respective rights. That possessive pronoun
to the Court. embraces in my opinion the need for a legal interest in the subject-matter.

It might be said that jurisdiction in the present case includes the right of the Court THE PARTIES WERE IN DISPUTE. It is clear that there were political or merely
to enter upon the enquiry whether or not a dispute of the relevant kind exists and diplomatic approaches by the Applicant for a time; and there are political aspects
a jurisdiction, if the dispute exists, to grant the Applicant’s claim for its resolution of the subject-matter of the correspondence which evidences their dispute. But so
by declaration and Order. If such a dispute exists, the claim is admissible. to conclude does not deny that the Parties may be in dispute nonetheless about
An examination as to admissibility is itself an exercise of jurisdiction even though their respective rights. That question will be determined by what in substance they
a finding as to admissibility may be a foundation for the exercise of further are in difference about.
jurisdiction in resolving the claim. The overlapping nature of the two concepts of
jurisdiction and admissibility is apparent, particularly where, as here, the existence It is quite evident from the correspondence between the parties that at the outset
of a relevant dispute may be seen as a prerequisite to the right to adjudicate. the hope of the Australian Government was that France might be deterred from
making or from continuing its nuclear test experiments in the South Pacific by the
WHAT IS ADMISSIBILITY. There is no universally applicable definition of the pressure of international opinion and by the importance of maintaining the
requirements of admissibility. The claim may be incompetent, that is to say undiminished goodwill and the economic cooperation of Australia. But when it was
inadmissible, because its subject-matter does not fall within the description of apparent that none of these endeavours have been or are likely to be successful,
matters which the Court is competent to hear and decide; or because the relief and it is firmly known that a further series of tests will be undertaken by France in
which the reference or application seeks is not within the Court’s power to the mid-year, this showed that France denied Australia’s claim that its legal rights
consider or to give; or because the applicant is not an appropriate State to make will be infringed by further testing of nuclear devices in the South Pacific.
the reference or application, as it is said that the applicant lacks standing in the
matter; or the applicant may lack any legal interest in the subject-matter of the FOUR BASES OF CLAIM.
application or it may have applied too soon or otherwise at the wrong time, or,
lastly, all preconditions to the making or granting of such a reference or (1) unlawfulness in the modification of the physical conditions of the Australian
application may not have been performed. Admissibility has various territory and environment;
manifestations. (2) unlawfulness in the pollution of the ‘Australian atmosphere and of the
resources of its adjacent seas;
The Court labours under the disability that it has no formal objection to (3) unlawfulness in the interference with freedom of navigation on sea and in air;
admissibility, as France objected based on lack of jurisdiction and not lack of and
dispute. It is, however, possible to construct an argument that the Application was (4) breach of legal norms concerning atmospheric testing of nuclear weapons.
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of jurisdiction is accepted, the touchstone of admissibility. If the dispute is not a
None of these were conceded by France and indeed they were disputed. dispute as to the existence of a Iegal right, it will not satisfy Article 17 and it may
be said to be a dispute “without object” because, if it is not a dispute as to a legal
CIL ON TESTING. It might be observed at this point that there is a radical right, the Court will not be able to resolve it by the application of legal norms: the
distinction to be made between the claims that violation of territorial and dispute will not be justiciable.
decisional sovereignty by the intrusion and deposition of radio-active nuclides and
of pollution of the sea and its resources thereby is unlawful according to The impossibility for a decision of the Court in favour of Australia to have any
international law, and the claim that the testing of nuclear weapons has become effective legal application in the present case (and therefore the incompatibility
unlawful according to the customary international law, which is expressed in the with the judicial function of the Court that would be involved by the Court
Australian Note of 3 January 1973 as “legal norms concerning atmospheric testing entertaining the case) is the reverse of a coin, the obverse of which is the
of nuclear weapons”. In the first instance, it is the intrusion of the ionized particles absence of any genuine dispute. Since, with reference to a judicial decision
of matter into the air, sea and land of Australia which is said to be in breach of its sought as the outcome of a dispute said to exist between the Parties, the dispute
rights sustained by international law. It is not fundamentally significant in this claim must essentially relate to what that decision ought to be, it follows that if the
that the atomic explosions from which the ionized particles have come into the decision (whatever it might be) must plainly be without any possibility of effective
Australian environment were explosions for the purpose of developing nuclear legal application at all, the dispute becomes void of all content, and is reduced to
weapons, though in fact that is what happened. But in the second instance the an empty shell.
customary law is claimed now to include a prohibition on the testing of nuclear
weapons. The particular purpose of the detonations by France is thus of the The Court must be able both to resolve this case by the application of legal norms
essence of the suggested prohibition. Though Australia points to the resultant fall- because legal rights of the Parties are in question and to make at least a
out in Australia, these consequences are not of the essence of the unlawfulness declaration as to the existence or non-existence of the disputed right or obligation.
claimed: it is the testing itself which is claimed to be unlawful. It is essential, in my opinion, to observe that the existence of a dispute as to legal
rights does not depend upon the validity of the disputed claim that a right exists or
It might be noticed that the objection to the testing of nuclear weapons in that it was of a particular nature or of a particular extent. In order to establish the
international discussions is placed on a twofold basis: there is the danger to the existence of a dispute it is not necessary to show that the claimed right itself
health of this and succeeding generations of the human race from the exists. To determine the validity of the disputed claim is to determine the merits of
dissemination of radio-active fall-out, but there is also the antipathy of the the application. It is conceivable that a person may claim a right which, being
international community to the enlargement of the destructive quality of nuclear denied, gives the appearance of a dispute, but because the claim is beyond all
armaments and to the proliferation of their possession. Thus, it is not only nuclear question and on its face baseless, it may possibly be said that truly there is no
explosions as such which are the suggested objects of the prohibition, but the dispute because there was in truth quite obviously nothing to dispute about, or it
testing of nuclear weapons as an adjunct to the increase in the extent of nuclear may be said that the disputed claim is patently absurd or frivolous. But these
weaponry. The order in which these four bases of claim were argued and the things, in my opinion, cannot be said as to any of the bases of claim which are put
emphasis respectively placed upon them has tended to obscure the significànce forward in the Application and which were present in the correspondence which
of the Applicant’s claim for the infringement of its territorial and decisional antedated it.
sovereignty. Because of this presentation and its emotional overtones it might be
thought that the last of the above-enumerated bases of claim which, I may say, CONSIDERATIONS OF BASES OF CLAIMS. I now consider whether these
has its own peculiar difficulties, was the heart-land of the Australian claim. But bases of claim being disputed are capable of resolution by the application of legal
asIunderstand the matter, the contrary is really the case. It is the infraction of norms and whether Australia has a legal interest to maintain its claim in respect of
territorial sovereignty by the intrusion and deposition of nuclides which is the those rights. In considering these questions, it must be recalled that if they are to
major basis of the claim. be decided at this stage, they must be questions of an exclusively preliminary
character. If, to resolve either of them, it is necessary to go into the merits, then
A DISPUTE ABOUT RESPECTIVE RIGHTS may be a dispute between the that question is not of that character.
Parties as to whether a right exists at all, or it may be a dispute as to the extent of
an admitted right, or it may be a dispute as to the existence of a breach of an 1ST, 2ND BASES. Australia’s claim is that the deposition and intrusion of the
admitted right, or of course it may combine all these things, or some of them, in nuclides is an infringement of its right to territorial and, as it says, decisional
the one dispute. The claim on the one hand and the denial on the other that a sovereignty. It is part of this claim that the mere deposition and intrusion of this
right exists or as to its extent or as to its breach constitute, in my opinion, a particular and potentially harmful physical matter is a breach of Australia’s
dispute as to rights. If such a dispute between the Parties is as to their respective undoubted sovereign right to territorial integrity, a right clearly protected by
rights it will in my opinion satisfy the terms of Article 17 of the General Act which, international law. France asserts that the right to territorial integrity in relevant
in my opinion, is the touchstone of jurisdiction in this case or, if the contrary view respects is only a right not to be subjected to actual and demonstrable damage by
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matter intruded into its territory and environment. Hence the reference to a THE 4TH CLAIM IN relation to the testing of nuclear weapons in the atmosphere
threshold of nuclear pollution. It would seem that France claims that although the stands on a quite different footing from the foregoing. It is a claim that Australia’s
nuclides were inherently dangerous, their deposition and intrusion into the rights are infringed by the testing of nuclear weapons by France in the
Australian territory and environment did not relevantly cause damage to Australia atmosphere of the South Pacific. I have expressed it in that fashion, emphasizing
or people within its territory. Damage in that view would not have been caused that it is Australia’s rights which are said to be infringed, though I am bound to say
unless some presently demonstrable injury had been caused to land or persons that the claim is not so expressed in the Australian Note of 3 January 1973.
by the nuclear fall-out. However, the expression of the relevant claim in the Application is susceptible of
that interpretation.
THE FRENCH PROPOSITION is a proposition of law. It is disputed by Australia
and is itself an argument disputing the Australian claim as to the state of the PROHIBITION NOW PART OF CIL. It is said that there has been such a
relevant law. So far as the question of French responsibility to Australia may progression of general opinion amongst the nations, evidenced in treaty,
depend upon whether or not damage has been done by the involuntary reception resolution and expression of international opinion, that the stage has been
in Australia of the radio-active fall-out, it should be said that the question whether reached where the prohibition of the testing of nuclear weapons is now part of the
damage has in fact been done has not yet been fully examined. Obviously such a customary international law. It cannot be doubted that that customary law is
question forms part of the merits. Again, if there is no actual damage presently subject to growth and to accretion as international opinion changes and hardens
provable, the question remains whether the nuclides would in future probably or into law. It should not be doubted that the Court is called upon to play its part in
only possibly cause injury to persons within Australian territory; and in either case, the discernment of that growth and in the authoritative declaration that in point of
there is a question of whether the degree of probability or possibility, bearing in law that growth has taken place to the requisite extent and that the stretch of
mind the nature of the injuries which the nuclides are capable of causing, is customary law has been attained. The Court will, of course, confine itself to
sufficient to satisfy the concept of damage if the view of the law put forward by the declaring what the law has already become, and in doing so will not be altering
French Annex were accepted. The resolution of such questions, which in my the law or deciding what the law ought to be, as distinct from declaring what it is.
opinion are legal questions, partakes of the merits of the case.
I think it must be considered that it is legally possible that at some stage the
Thus is a dispute which can be resolved according to legal norms and by judicial testing of nuclear weapons could become, or could have become, prohibited by
process. Clearly Australia has a legal interest to maintain the validity of its claim in the customary international law. Treaties, resolutions, expressions of opinion and
this respect. international practice, may all combine to produce the evidence of that customary
law. The time when such a law emerges will not necessarily be deferred until all
3RD BASIS OF THE CLAIM is that Australia’s rights of navigation and fishing on nations have acceded to a test ban treaty, or until opinion of the nations is
the high seas and of oceanic flight will be infringed by the action of the French universally held in the same sense. Customary law amongst the nations does not,
Government not limited to the mere publication of NOTAMS and AVROMARS in in my opinion, depend on universal acceptance. Conventional law limited to the
connection with its nuclear tests in the atmosphere of the South Pacific. Here parties to the convention may become in appropriate circumstances customary
there is, in my opinion, a claim of right. The claim also involves an assertion that a law. On the other hand, it may be that even a widely accepted test ban treaty
situation will exist which would be a breach of that right. It seems also to be does not create or evidence a state of customary international law in which the
claimed that pollution of the high seas, with resultant effects on fish and fishing, testing of nuclear weapons is unlawful, and that resolutions of the United Nations
constitutes an infringement of the Applicant’s rights in the sea. and other expressions of international opinion, however frequent, numerous and
emphatic, are insufficient to warrant the view that customary law now embraces a
FRANCE disputes that what it proposes to do would infringe Australia’s rights in prohibition on the testing of nuclear weapons.
the high seas and super-incumbent air, bearing in mind established international
practice. Thus the question arises as to the extent of the right of the unimpeded QUESTION OF LAW. The question raised by Australia’s claim in respect of the
use of the high seas and super-incumbent air, and of the nature and effect of nuclear testing of weapons and its denial by France is whether the stage has
international practice in the closure of areas of danger during the use of the sea already been reached where it can be said as a matter of law that there is now a
and air for the discharge of weapons or for dangerous experimentation. legal prohibition against the testing of nuclear weapons, particularly the testing of
nuclear weapons in the atmosphere. Or it is whether the “…atmospheric tests of
A DISPUTE. Again there is, in connection with the third basis of claim, a dispute nuclear weapons are, generally speaking, already governed by norms of
as to the existence and infringement of rights according to international law: there international law, or whether they do not still belong to a highly political domain
is a dispute as to the respective rights of the Parties. On that footing, the interest where the norms concerning their international legality or illegality are still at the
of the Applicant to sustain the Application is, in my opinion, apparent. gestation stage” which is, in my opinion, a description of a question of law. The
difficulties in the way of establishing such a change in the customary international
law are fairly obvious, and they are very considerable, but it is not the validity of
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the claim that is in question at this stage. The question is whether a dispute as to
the law exists. There is, in my opinion, no justification for dismissing this basis of ISSUE: WON it is proper to give the French statements a legal and binding effect.
the Applicant’s claim as to the present state of international law out of hand, HELD: NO.
particularly at a stage when the Court is limited to dealing with matters of an
exclusively preliminary nature. Nor is it the case that the state of the customary ON THE EFFECT OF THE FRENCH STATEMENTS. My first observation is that
law could not be determined by the application of legal considerations. There this is a conclusion of fact. It is not in my opinion a conclusion of law. The
remains, however, another and a difficult question, namely whether Australia has inferences to be drawn from the issuing and the terms of the communiqué are, in
an interest to maintain an application for a declaration that the customary law has my opinion, inferences of fact, including the critical fact of the intention of France
reached the point of including a prohibition against the testing of nuclear in the matter. So also, in my opinion, is the meaning to be given to the various
weapons. statements which are set out in the Judgment. A decision as to those inferences
and those meanings is not in my opinion an exercise in legal interpretation; it is an
AUSSIE CLAIMS. In expressing its claim, it is noticeable that Australia speaks of exercise in fact-finding. But whether the conclusion be one of fact or one of law,
its right as being a right along with all other States. It does not claim an individual my comments as to the judicial impropriety of deciding the matter without notice to
right exclusive to itself. In its Memorial, it puts the obligation not to test nuclear the Parties of the questions to be considered, and without affording them an
weapons as owed by each State to every other State in the international opportunity to make their submissions, are equally applicable. This is a very
community; thus it is claimed that each State can be held to have a legal interest important conclusion purporting to impose on France an internationally binding
in the maintenance of a prohibition against the testing of nuclear weapons. obligation of a far-reaching kind. Nothing is found as to the duration of the
Australia says that the prohibition it claims now to exist in the customary obligation although nothing said in the Judgment would suggest that it is of a
international law against the testing of nuclear weapons is of the same kind as the temporary nature. There are apparently no qualifications of it related to changes in
instances of laws concerning the basic rights of the human person as are given in circumstances or to the varying needs of French security. Apparently it is
paragraph 34 of the Court’s Judgment in the Barcelona Traction, Light and Power restricted to the South Pacific area, a limitation implied from the fact that the
Company, Limited case, and that therefore the obligation to observe the source of the obligation is the communiqué.
prohibition is erga omnes. The Applicant says that in consequence the right to
observance of the prohibition is a right of each state corresponding to the duty of POLICY STATEMENTS. The purpose and intention of issuing the communiqué
each state to observe the prohibition, a duty which the Applicant claims is owed and subsequently making the various statements is to my mind far from clear. The
by each State to each and every other State. Judgment finds an intention to enter into a binding legal obligation after giving the
warning that statements limiting a State’s freedom of action should receive a
IF YES, WITH LEGAL INTEREST. If this submission were accepted, Australia restrictive interpretation. The Judgment apparently finds the clear intention in the
would, in my opinion, have the requisite legal interest, the locus standi to maintain language used.I regret to say that I am unable to do so. There seems to be
this basis of its claim. The right it claims in its dispute with France would be ifs nothing, either in the language used or in the circumstances of its employment,
right: the obligation it claims France to be under, namely an obligation to refrain which in my opinion would warrant, and certainly nothing to compel, the
from the atmospheric testing of nuclear weapons, would be an obligation owed to conclusion that those making the statements were intending to enter into a
Australia. The Parties would be in dispute as to their respective rights. solemn and far-reaching international obligation rather than to announce the
current intention of the French Government. I would have thought myself that the
NOT PRELIM. But in my opinion the question this submission raises is not a more natural conclusion to draw from the various statements was that they were
matter which ought to be decided as a question of an exclusively preliminary statements of policy and not intended as undertaking to the international
character. Not only are there substantial matters to be considered in connection community such a far-reaching obligation. The Judgment does not seem to my
with it, but, if a prohibition of the kind suggested by Australia were to be found to mind to offer any reason why these statements should be regarded as expressing
be part of the customary international law, the precise formulation of, and perhaps an intention to accept an internationally binding undertaking rather than an
limitations upon, that prohibition may well bear on the question of the rights of intention to make statements of current government policy and intention.
individual States to seek to enforce it. Thus the decision and question of the
admissibility of Australia’s claim in this respect may trench upon the merits. Further, it seems to me strange to Say the least that the French Government at a
time when it had not completed its 1974 series of tests and did not know that the
AUSTRALIA’S CLAIM is admissible in relation to the first three of the four bases weather conditions of the winter in the southern hemisphere would permit them to
which I have enumerated at an earlier part of this opinion. But I am not able t o be carried out, should pre-empt itself from testing again in the atmosphere, even if
say affirmatively at this stage that the Application is admissible, as to the fourth of the 1974 series should, apart from the effects of weather, prove inadequate for
those bases of claim. In my opinion, the question whether the Application is in that the purposes which prompted France to undertake them. A conclusion that
respect admissible is not a question of an exclusively preliminary nature, and for France has made such an undertaking without any reservation of any kind, such,
that reason it cannot be decided at this stage of the proceedings. for example, as is found in the Moscow Treaty Banning Nuclear Weapon Tests in
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the Atmosphere, in Outer Space and Under Water, to which France is not a Party, "The General Assembly,
is quite remarkable and difficult to accept. It is noticeable that the communiqué - Conscious that the continuing existence and development of nuclear weapons
itself as sent to Australia makes no express reference to atmospheric testing. The pose serious risks to humanity,
message sent by the French Embassy in Wellington to the Government of New - Mindful that States have an obligation under the Charter of the United Nations to
Zealand with respect to the communiqué, drew a conclusion not expressed in the refrain from the threat or use of force against the territorial integrity or political
communiqué itself. Somewhat guardedly the Embassy added the words “in the independence of any State.
normal course of events” which tended to weaken the inference which apparently - Recalling its resolutions 1653 (XVI) of 24 November 1961, 33/71 B of 14
the Embassy had drawn from the terrns of the communiqué. December 1978, 34/83 G of 11 December 1979, 35/152 D of 12 December 1980,
36/92 1 of 9 December 1981, 45/59 B of 4 December 1990 and 46/37 D of 6
In this connection it may be observed that both the Government of Australia and December 1991, in which it declared that the use of nuclear weapons would be a
the Government of New Zealand in responding to the communiqué virtually violation of the Charter and a crime against humanity,
challenged France to give to them an express undertaking that no further tests - Welcoming the progress made on the prohibition and elimination of weapons of
would be carried out in the South Pacific. There has been ample opportunity for mass destruction, including the Convention on the Prohibition of the Development,
France to have unequivocally made such a statement: but no such express Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and
statement has been communicated to either Applicant. It is enough to Say that on Their Destruction and the Convention on the Prohibition of the Development,
there is, in my opinion, much room for grave doubt as to the correctness of the Production, Stockpiling and Use of Chemical Weapons and on Their
conclusion which the Court has drawn. Destruction(2), - Convinced that the complete elimination of nuclear weapons is
the only guarantee against the threat of nuclear war,
BUT WHAT ABOUT JURISDICTION? There is a further substantial matter to be - Noting the concerns expressed in the Fourth Review Conference of the Parties
mentioned in this connection. The Court has purported to decide to the Treaty on the Non-Proliferation of Nuclear Weapons that insufficient
that France has assumed an international obligation of which progress had been made towards the complete elimination of nuclear weapons at
Australia has the benefit. It is this circumstance which the the earliest possible time,
Judgment holds has resolved the dispute between France and - Recalling that, convinced of the need to strengthen the rule of law in
Australia and caused it to cease to exist. But the Court has not international relations, it has declared the period 1990-1999 the United Nations
decided its jurisdiction as between these Parties. France has Decade of International Law,
steadfastly maintained that the Court has no jurisdiction. The - Noting that Article 96, paragraph 1, of the Charter empowers the General
Court’s finding that France has entered into an international Assembly to request the ICJ to give an advisory opinion on any legal question,
obligation is intended to be a finding binding both Parties to the - Recalling the recommendation of the Sec-Gen, made in his report entitled 'An
litigation, France as well as Australia. But I am at a loss to Agenda for Peace', that United Nations organs that are authorized to take
understand how France can be bound by the finding if the Court advantage of the advisory competence of the International Court of Justice turn to
has not declared its jurisdiction in the matter. the Court more frequently for such opinions,
- Welcoming 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
ON THE LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS State in war or other armed conflict would be a breach of its obligations under
ADVISORY OPINION (8 July 1996) international law, including the Constitution of the World Health Organization,

Present: Decides, pursuant to Article 96, paragraph 1, of the Charter of the UN, to request
President BEDJAOUI; Vice-President SCHWEBEL; Judges ODA, the ICJ urgently to render its advisory opinion on the following question: 'IS THE
GUILLAUME, SHAHABUDDEEN, WEERAMANTRY, RANJEVA, HERCZEGH, THREAT OR USE OF NUCLEAR WEAPONS IN ANY CIRCUMSTANCE
SHI, FLEISCHHAUER, KOROMA, VERESHCHETIN, FERRARI BRAVO, PERMITTED UNDER INTERNATIONAL LAW?'"
HIGGINS; Registrar VALENCIA-OSPINA.

UN GENERAL ASSEMBLY’s REQUEST FOR AN ADVISORY OPINION. ICJ SOUGHT POSITIONS OF DIFFERENT STATES.
By a letter dated 19 December 1994, the Sec-Gen of the UN officially Pursuant to Article 65, paragraph 2, of the Statute, the Sec-Gen of the UN
communicated to the Registrar of the ICJ the decision taken by the General communicated to the Court a collection of documents likely to throw light upon the
Assembly to submit the question to the Court for an advisory opinion. Resolution question. By letters dated 21 December 1994, the Registrar, pursuant to Article
49/75 K, reads as follows: 66, paragraph 1, of the Statute, gave notice of the request for an advisory opinion
to all States entitled to appear before the Court. It is to be noted that it was stated
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in particular that the General Assembly had requested that the advisory opinion of advisory opinion on a legal question only within the scope of their activities.
the Court be rendered "urgently"; reference was also made to the procedural time-
limits already fixed for the request for an advisory opinion previously submitted to In the view of the Court, it matters little whether this interpretation of Article 96,
the Court by the World Health Organization on the question of the Legality of the paragraph 1, is or is not correct; Indeed, Article 10 of the Charter has conferred
use by a State of nuclear weapons in armed conflict. upon the General Assembly a competence relating to "any questions or any
matters" within the scope of the Charter. Article 11 has specifically provided it with
Written statements were filed by 30 States including France, Italy, Japan, UK, US a competence to "consider the general principles . . . in the maintenance of
and many more. In addition, written comments on those written statements were international peace and security, including the principles governing disarmament
submitted by 3 States. and the regulation of armaments". Lastly, according to Article 13, the General
Assembly "shall initiate studies and make recommendations for the purpose of . . .
The Court decided to hold public sittings, opening on 30 October 1995, at which encouraging the progressive development of international law and its codification".
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 The question put to the Court has a relevance to many aspects of the activities
before the Court. Several representatives/speakers were heard from around 22 and concerns of the General Assembly including those relating to the threat or
states including Mr. Rodolfo S. Sanchez, Ambassador of the Philippines to the use of force in international relations, the disarmament process, and the
Netherlands and Prof. Merlin N. Magallona, Dean, College of Law, University of progressive development of international law. The General Assembly has a long-
the Philippines. Questions were put by Members of the Court to particular standing interest in these matters and in their relation to nuclear weapons. This
participants in the oral proceedings, who replied in writing, as requested, within interest has been manifested in the annual First Committee debates, and the
the prescribed time-limits; the Court having decided that the other participants Assembly resolutions on nuclear weapons; in the holding of three special
could also reply to those questions on the same terms, several of them did so. sessions on disarmament (1978, 1982 and 1988) by the General Assembly, and
Other questions put by Members of the Court were addressed, more generally, to the annual meetings of the Disarmament Commission since 1978; and also in the
any participant in the oral proceedings; several of them replied in writing, as commissioning of studies on the effects of the use of nuclear weapons. In this
requested, within the prescribed time-limits. context, it does not matter that important recent and current activities relating to
nuclear disarmament are being pursued in other fora.
JURISDICTION OF THE ICJ IN GIVING ADVISORY OPINIONS
The Court must first consider whether it has the jurisdiction to give a reply to the Finally, Article 96, paragraph 1, of the Charter cannot be read as limiting the
request of the General Assembly for an Advisory Opinion and whether, should the ability of the Assembly to request an opinion only in those circumstances in which
answer be in the affirmative, there is any reason it should decline to exercise any it can take binding decisions. The fact that the Assembly's activities in the above-
such jurisdiction. mentioned field have led it only to the making of recommendations thus has no
bearing on the issue of whether it had the competence to put to the Court the
The Court draws its competence in respect of advisory opinions from Article 65, question of which it is seized.
par. 1, of its Statute. Under this Article, the Court "may give an advisory opinion
on any legal question at the request of whatever body may be authorized by or in ADVISORY OPINION SHOULD RELATE TO A LEGAL QUESTION.
accordance with the Charter of the UN to make such a request". The Court must furthermore satisfy itself that the advisory opinion requested does
indeed relate to a "legal question" within the meaning of its Statute and the United
For the Court to be competent to give an advisory opinion, it is thus necessary at Nations Charter. The Court has already had occasion to indicate that questions
the outset for the body requesting the opinion to be "authorized by or in "framed in terms of law and rais[ing] problems of international law . . . are by their
accordance with the Charter of the UN to make such a request". The Charter very nature susceptible of a reply based on law . . . [and] appear . . . to be
provides in Article 96, paragraph 1, that: "The General Assembly or the Security questions of a legal character". The question put to the Court by the General
Council may request the ICJ to give an advisory opinion on any legal question." Assembly is indeed a legal one, since the Court is asked to rule on the
compatibility of the threat or use of nuclear weapons with the relevant principles
THE GENERAL ASSEMBLY IS COMPETENT TO SEEK AN ADVISORY and rules of international law. To do this, the Court must identify the existing
OPINION TO ANY QUESTION WITHIN THE SCOPE OF THE CHARTER. principles and rules, interpret them and apply them to the threat or use of nuclear
Some States which oppose the giving of an opinion by the Court argued that the weapons, thus offering a reply to the question posed based on law.
General Assembly and Security Council are not entitled to ask for opinions on
matters totally unrelated to their work. They suggested that, as in the case of The fact that this question also has political aspects, as, in the nature of things, is
organs and agencies acting under Article 96, paragraph 2, of the Charter, and the case with so many questions which arise in international life, does not suffice
notwithstanding the difference in wording between that provision and paragraph 1 to deprive it of its character as a "legal question" and to "deprive the Court of a
of the same Article, the General Assembly and Security Council may ask for an competence expressly conferred on it by its Statute". Whatever its political
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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 1. VAGE & ABSTRACT QUESTION. "The question presented is vague and
legality of the possible conduct of States with regard to the obligations imposed abstract, addressing complex issues which are the subject of consideration
upon them by international law. among interested States and within other bodies of the United Nations which
have an express mandate to address these matters. An opinion by the Court in
Furthermore, as the Court said in the Opinion it gave in 1980 concerning the regard to the question presented would provide no practical assistance to the
Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt: General Assembly in carrying out its functions under the Charter. Such an opinion
"Indeed, in situations in which political considerations are prominent it may be has the potential of undermining progress already made or being made on this
particularly necessary for an international organization to obtain an advisory sensitive subject and, therefore, is contrary to the interest of the United Nations
opinion from the Court as to the legal principles applicable with respect to the Organization." In contending that the question put to the Court is vague and
matter under debate . . ." The Court moreover considers that the political nature abstract, some States appeared to mean by this that there exists no specific
of the motives which may be said to have inspired the request and the political dispute on the subject-matter of the question. In order to respond to this
implications that the opinion given might have are of no relevance in the argument, it is necessary to distinguish between requirements governing
establishment of its jurisdiction to give such an opinion. contentious procedure and those applicable to advisory opinions. The purpose of
the advisory function is not to settle - at least directly - disputes between States,
DISCRETION TO GIVE AN ADVISORY OPINION. but to offer legal advice to the organs and institutions requesting the opinion. The
Article 65, paragraph 1, of the Statute provides: "The Court may give an advisory fact that the question put to the Court does not relate to a specific dispute should
opinion . . ." This is more than an enabling provision. As the Court has repeatedly consequently not lead the Court to decline to give the opinion requested.
emphasized, the Statute leaves a discretion as to whether or not it will give an
advisory opinion that has been requested of it, once it has established its 2. QUESTION COUCHED IN ABSTRACT TERMS. Moreover, it is the clear
competence to do so. In this context, the Court has previously noted as follows: position of the Court that to contend that it should not deal with a question
"The Court's Opinion is given not to the States, but to the organ which is entitled couched in abstract terms is "a mere affirmation devoid of any justification", and
to request it; the reply of the Court, itself an 'organ of the United Nations', that "the Court may give an advisory opinion on any legal question, abstract or
represents its participation in the activities of the Organization, and, in principle, otherwise" Certain States have however expressed the fear that the abstract
should not be refused." nature of the question might lead the Court to make hypothetical or speculative
declarations outside the scope of its judicial function. The Court does not consider
The Court has constantly been mindful of its responsibilities as "the principal that, in giving an advisory opinion in the present case, it would necessarily have to
judicial organ of the United Nations" (Charter, Art. 92). When considering each write "scenarios", to study various types of nuclear weapons and to evaluate
request, it is mindful that it should not, in principle, refuse to give an advisory highly complex and controversial technological, strategic and scientific
opinion. In accordance with the consistent jurisprudence of the Court, only information. The Court will simply address the issues arising in all their aspects by
"compelling reasons" could lead it to such a refusal There has been no refusal, applying the legal rules relevant to the situation.
based on the discretionary power of the Court, to act upon a request for advisory
opinion in the history of the present Court; in the case concerning the Legality of 3. UNKNOWN PURPOSE. Certain States have observed that the General
the Use by a State of Nuclear Weapons in Armed Conflict, the refusal to give the Assembly has not explained to the Court for what precise purposes it seeks the
World Health Organization the advisory opinion requested by it was justified by advisory opinion. Nevertheless, it is not for the Court itself to purport to decide
the Court's lack of jurisdiction in that case. The Permanent Court of International whether or not an advisory opinion is needed by the Assembly for the
Justice took the view on only one occasion that it could not reply to a question put performance of its functions. The General Assembly has the right to decide for
to it, having regard to the very particular circumstances of the case, among which itself on the usefulness of an opinion in the light of its own needs.
were that the question directly concerned an already existing dispute, one of the
States parties to which was neither a party to the Statute of the Permanent Court Equally, once the Assembly has asked, by adopting a resolution, for an advisory
nor a Member of the League of Nations, objected to the proceedings, and refused opinion on a legal question, the Court, in determining whether there are any
to take part in any way compelling reasons for it to refuse to give such an opinion, will not have regard to
the origins or to the political history of the request, or to the distribution of votes in
REASONS TO PERSUADE THE ICJ TO DECLINE RENDERING AN ADVISORY respect of the adopted resolution.
OPINION & A REBUTTAL FOR EACH REASON.
Most of the reasons adduced in these proceedings in order to persuade the Court 4. ADVERSE EFFECT TO ON-GOING DISARMAMENT NEGOTIATIONS. It has
that in the exercise of its discretionary power it should decline to render the also been submitted that a reply from the Court in this case might adversely affect
opinion requested by General Assembly resolution 49/75K were summarized in disarmament negotiations and would, therefore, be contrary to the interest of the
the following statement made by one State in the written proceedings: United Nations. The Court is aware that, no matter what might be its conclusions
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in any opinion it might give, they would have relevance for the continuing debate dicta of the Permanent Court of International Justice in the "Lotus" case that
on the matter in the General Assembly and would present an additional element in "restrictions upon the independence of States cannot . . . be presumed" and that
the negotiations on the matter. Beyond that, the effect of the opinion is a matter of international law leaves to States "a wide measure of discretion which is only
appreciation. The Court has heard contrary positions advanced and there are no limited in certain cases by prohibitive rules" Reliance was also placed on the
evident criteria by which it can prefer one assessment to another. That being so, dictum of the present Court in the case concerning Military and Paramilitary
the Court cannot regard this factor as a compelling reason to decline to exercise Activities in and against Nicaragua (Nicaragua v. United States of America) that:
its jurisdiction. "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
5. JUDICIAL LEGISLATION. Finally, it has been contended by some States that a sovereign State can be limited".
in answering the question posed, the Court would be going beyond its judicial role
and would be taking upon itself a law-making capacity. It is clear that the Court For other States, the invocation of these dicta in the "Lotus" case was unsuitable;
cannot legislate, and, in the circumstances of the present case, it is not called their status in contemporary international law and applicability in the very different
upon to do so. Rather its task is to engage in its normal judicial function of circumstances of the present case were challenged. It was also contended that
ascertaining the existence or otherwise of legal principles and rules applicable to the above-mentioned dictum of the present Court was directed to the possession
the threat or use of nuclear weapons. The contention that the giving of an answer of armaments and was irrelevant to the threat or use of nuclear weapons. Finally,
to the question posed would require the Court to legislate is based on a it was suggested that, were the Court to answer the question put by the
supposition that the present corpus juris is devoid of relevant rules in this matter. Assembly, the word "permitted" should be replaced by "prohibited".
The Court could not accede to this argument; it states the existing law and does
not legislate. This is so even if, in stating and applying the law, the Court The Court notes that the nuclear-weapon States appearing before it either
necessarily has to specify its scope and sometimes note its general trend. accepted, or did not dispute, that their independence to act was indeed restricted
by the principles and rules of international law, more particularly humanitarian law
IN VIEW OF WHAT IS STATED ABOVE, THE COURT CONCLUDES THAT IT (see below, paragraph 86), as did the other States which took part in the
HAS THE AUTHORITY TO DELIVER AN OPINION ON THE QUESTION POSED proceedings. Hence, the argument concerning the legal conclusions to be drawn
BY THE GENERAL ASSEMBLY, AND THAT THERE EXIST NO "COMPELLING from the use of the word "permitted", and the questions of burden of proof to
REASONS" WHICH WOULD LEAD THE COURT TO EXERCISE ITS which it was said to give rise, are without particular significance for the disposition
DISCRETION NOT TO DO SO. of the issues before the Court.

ARGUMENTS FOR/AGAINST THE USE OF NUCLEAR WEAPONS.


FORUMULATION OF THE QUESTION. In seeking to answer the question put to it by the General Assembly, the Court
The Court must next address certain matters arising in relation to the formulation must decide, after consideration of the great corpus of international law norms
of the question put to it by the General Assembly. The English text asks: "Is the available to it, what might be the relevant applicable law.
threat or use of nuclear weapons in any circumstance permitted under
international law?" It was suggested that the Court was being asked by the 1. VIOLATE THE RIGHT TO LIFE. Some of the proponents of the illegality of the
General Assembly whether it was permitted to have recourse to nuclear weapons use of nuclear weapons have argued that such use would violate the right to life
in every circumstance, and it was contended that such a question would inevitably as guaranteed in Article 6 of the International Covenant on Civil and Political
invite a simple negative answer. Its real objective is clear: to determine the legality Rights, as well as in certain regional instruments for the protection of human
or illegality of the threat or use of nuclear weapons. rights. Article 6, paragraph 1, of the International Covenant provides as follows:
"Every human being has the inherent right to life. This right shall be
CRITICISM ON THE USE OF THE WORD “PERMITTED”. protected by law. No one shall be arbitrarily deprived of his life."
The use of the word "permitted" in the question put by the General Assembly was
criticized before the Court by certain States on the ground that this implied that APPLICATION OF INTERNATIONAL COVENANT ON CIVIL & POLITICAL
the threat or the use of nuclear weapons would only be permissible if RIGHTS. In reply, others contended that the International Covenant on Civil and
authorization could be found in a treaty provision or in customary international Political Rights made no mention of war or weapons, and it had never been
law. Such a starting point, those States submitted, was incompatible with the very envisaged that the legality of nuclear weapons was regulated by that instrument. It
basis of international law, which rests upon the principles of sovereignty and was suggested that the Covenant was directed to the protection of human rights
consent; accordingly, and contrary to what was implied by use of the word in peacetime, but that questions relating to unlawful loss of life in hostilities were
"permitted", States are free to threaten or use nuclear weapons unless it can be governed by the law applicable in armed conflict. The Court observes that the
shown that they are bound not to do so by reference to a prohibition in either protection of the International Covenant of Civil and Political Rights does not
treaty law or customary international law. Support for this contention was found in cease in times of war, except by operation of Article 4 of the Covenant whereby
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certain provisions may be derogated from in a time of national emergency. Hostile Use of Environmental Modification Techniques, which prohibits the use of
Respect for the right to life is not, however, such a provision. In principle, the weapons which have "widespread, long-lasting or severe effects" on the
right not arbitrarily to be deprived of one's life applies also in hostilities. environment (Art. 1). Also cited were Principle 21 of the Stockholm Declaration of
The test of what is an arbitrary deprivation of life, however, then falls to be 1972 and Principle 2 of the Rio Declaration of 1992 which express the common
determined by the applicable lex specialis, namely, the law applicable in conviction of the States concerned that they have a duty "to ensure that activities
armed conflict which is designed to regulate the conduct of hostilities. Thus within their jurisdiction or control do not cause damage to the environment of other
whether a particular loss of life, through the use of a certain weapon in warfare, is States or of areas beyond the limits of national jurisdiction". These instruments
to be considered an arbitrary deprivation of life contrary to Article 6 of the and other provisions relating to the protection and safeguarding of the
Covenant, can only be decided by reference to the law applicable in armed environment were said to apply at all times, in war as well as in peace, and it was
conflict and not deduced from the terms of the Covenant itself. contended that they would be violated by the use of nuclear weapons whose
consequences would be widespread and would have transboundary effects.
2. PROHIBITION AGAINST GENOCIDE. Some States also contended that the
prohibition against genocide, contained in the Convention of 9 December 1948 on ARE THEY BINDING? Other States questioned the binding legal quality of these
the Prevention and Punishment of the Crime of Genocide, is a relevant rule of precepts of environmental law; or, in the context of the Convention on the
customary international law which the Court must apply. The Court recalls that, in Prohibition of Military or Any Other Hostile Use of Environmental Modification
Article II of the Convention genocide is defined as: Techniques, denied that it was concerned at all with the use of nuclear weapons
"any of the following acts committed with intent to destroy, in whole or in in hostilities; or, in the case of Additional Protocol I, denied that they were
part, a national, ethnical, racial or religious group, as such: generally bound by its terms, or recalled that they had reserved their position in
(a) Killing members of the group; respect of Article 35, paragraph 3, thereof.
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to being PROTECTION OF THE ENVIRONMENT ONLY IN TIME OF PEACE. It was also
about its physical destruction in whole or in part; argued by some States that the principal purpose of environmental treaties and
(d) Imposing measures intended to prevent births within the group; norms was the protection of the environment in time of peace. It was said that
(e) Forcibly transferring children of the group to another group." those treaties made no mention of nuclear weapons. It was also pointed out that
warfare in general, and nuclear warfare in particular, were not mentioned in their
It was maintained before the Court that the number of deaths occasioned by the texts and that it would be destabilizing to the rule of law and to confidence in
use of nuclear weapons would be enormous; that the victims could, in certain international negotiations if those treaties were now interpreted in such a way as
cases, include persons of a particular national, ethnic, racial or religious group; to prohibit the use of nuclear weapons.
and that the intention to destroy such groups could be inferred from the fact that
the user of the nuclear weapon would have omitted to take account of the well- NUCLEAR WEAPONS, A CATASTROPHE TO THE ENVI. The Court recognizes
known effects of the use of such weapons. The Court would point out in that that the environment is under daily threat and that the use of nuclear weapons
regard that the prohibition of genocide would be pertinent in this case if the could constitute a catastrophe for the environment. The Court also recognizes that
recourse to nuclear weapons did indeed entail the element of intent, towards a the environment is not an abstraction but represents the living space, the quality
group as such, required by the provision quoted above. In the view of the Court, it of life and the very health of human beings, including generations unborn. The
would only be possible to arrive at such a conclusion after having taken due existence of the general obligation of States to ensure that activities within their
account of the circumstances specific to each case. jurisdiction and control respect the environment of other States or of areas beyond
national control is now part of the corpus of international law relating to the
3. VIOLATION OF NORMS RELATING TO THE ENVIRONMENT. In both their environment.
written and oral statements, some States furthermore argued that any use of
nuclear weapons would be unlawful by reference to existing norms relating to the ARE THESE OBLIGATIONS OF TOTAL RESTRAINT? However, the Court is of
safeguarding and protection of the environment, in view of their essential the view that the issue is not whether the treaties relating to the protection of the
importance. environment are or not applicable during an armed conflict, but rather whether the
obligations stemming from these treaties were intended to be obligations of total
Specific references were made to various existing international treaties and restraint during military conflict.
instruments. These included Additional Protocol I of 1977 to the Geneva
Conventions of 1949, Article 35, paragraph 3, of which prohibits the employment The Court does not consider that the treaties in question could have intended to
of "methods or means of warfare which are intended, or may be expected, to deprive a State of the exercise of its right of self-defence under international law
cause widespread, long-term and severe damage to the natural environment"; because of its obligations to protect the environment. Nonetheless, States must
and the Convention of 18 May 1977 on the Prohibition of Military or Any Other take environmental considerations into account when assessing what is
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necessary and proportionate in the pursuit of legitimate military objectives. APPLICABLE LAW: USE OF FORCE. In the light of the foregoing the Court
Respect for the environment is one of the elements that go to assessing whether concludes that the most directly relevant applicable law governing the question of
an action is in conformity with the principles of necessity and proportionality. which it was seised, is that relating to the use of force enshrined in the United
Nations Charter and the law applicable in armed conflict which regulates the
This approach is supported, indeed, by the terms of Principle 24 of the Rio conduct of hostilities, together with any specific treaties on nuclear weapons that
Declaration, which provides that: the Court might determine to be relevant.

"Warfare is inherently destructive of sustainable development. States shall CHARACTERISTICS OF NUCLEAR WEAPONS. In applying this law to the
therefore respect international law providing protection for the environment present case, the Court cannot however fail to take into account certain unique
in times of armed conflict and cooperate in its further development, as characteristics of nuclear weapons.
necessary."
31. The Court notes furthermore that Articles 35, paragraph 3, and 55 of DEFINITION OF NUKES. The Court has noted the definitions of nuclear
Additional Protocol I provide additional protection for the environment. weapons contained in various treaties and accords. It also notes that nuclear
Taken together, these provisions embody a general obligation to protect the weapons are explosive devices whose energy results from the fusion or fission of
natural environment against widespread, long-term and severe the atom. By its very nature, that process, in nuclear weapons as they exist today,
environmental damage; the prohibition of methods and means of warfare releases not only immense quantities of heat and energy, but also powerful and
which are intended, or may be expected, to cause such damage; and the prolonged radiation. According to the material before the Court, the first two
prohibition of attacks against the natural environment by way of reprisals. causes of damage are vastly more powerful than the damage caused by other
weapons, while the phenomenon of radiation is said to be peculiar to nuclear
These are powerful constraints for all the States having subscribed to these weapons. These characteristics render the nuclear weapon potentially
provisions. catastrophic. The destructive power of nuclear weapons cannot be contained in
either space or time. They have the potential to destroy all civilization and the
UNJUSTIFIED DESTRUCTION OF ENVIRONMENT: CONTRARY TO INT’L entire ecosystem of the planet.
LAW. General Assembly resolution 47/37 of 25 November 1992 on the Protection
of the Environment in Times of Armed Conflict, is also of interest in this context. It EFFECTS OF A NUCLEAR EXPLOSION. The radiation released by a nuclear
affirms the general view according to which environmental considerations explosion would affect health, agriculture, natural resources and demography over
constitute one of the elements to be taken into account in the implementation of a very wide area. Further, the use of nuclear weapons would be a serious danger
the principles of the law applicable in armed conflict: it states that "destruction of to future generations. Ionizing radiation has the potential to damage the future
the environment, not justified by military necessity and carried out wantonly, is environment, food and marine ecosystem, and to cause genetic defects and
clearly contrary to existing international law". Addressing the reality that certain illness in future generations.
instruments are not yet binding on all States, the General Assembly in this
resolution "[a]ppeals to all States that have not yet done so to consider becoming In consequence, in order correctly to apply to the present case the Charter law on
parties to the relevant international conventions." the use of force and the law applicable in armed conflict, in particular
humanitarian law, it is imperative for the Court to take account of the unique
In its recent Order in the Request for an Examination of the Situation in characteristics of nuclear weapons, and in particular their destructive capacity,
Accordance with Paragraph 63 of the Court's Judgment of 20 December 1974 in their capacity to cause untold human suffering, and their ability to cause damage
the Nuclear Tests (New Zealand v. France) Case, the Court stated that its to generations to come.
conclusion was "without prejudice to the obligations of States to respect and
protect the natural environment.” Although that statement was made in the context QUESTION OF THE (IL)LEGALITY OF THE RECOURSE TO NUCLEAR
of nuclear testing, it naturally also applies to the actual use of nuclear weapons in WEAPONS WRT TO THE UN CHARTER PROVISIONS RELATING TO THE
armed conflict. THREAT OR USE OF FORCE.

INT’L LAW DOES NOT PROHIBIT BUT…The Court thus finds that while the CHARTER PROVISIONS. The Charter contains several provisions relating to the
existing international law relating to the protection and safeguarding of the threat and use of force. In Article 2, paragraph 4, the threat or use of force against
environment does not specifically prohibit the use of nuclear weapons, it indicates the territorial integrity or political independence of another State or in any other
important environmental factors that are properly to be taken into account in the manner inconsistent with the purposes of the United Nations is prohibited. That
context of the implementation of the principles and rules of the law applicable in paragraph provides:
armed conflict.
"All Members shall refrain in their international relations from the threat or
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use of force against the territorial integrity or political independence of any of necessity and proportionality, Article 51 specifically requires that measures
State, or in any other manner inconsistent with the Purposes of the United taken by States in the exercise of the right of self-defence shall be immediately
Nations." reported to the Security Council; this article further provides that these measures
This prohibition of the use of force is to be considered in the light of other relevant shall not in any way affect the authority and responsibility of the Security Council
provisions of the Charter. In Article 51, the Charter recognizes the inherent right of under the Charter to take at any time such action as it deems necessary in order
individual or collective self-defence if an armed attack occurs. A further lawful use to maintain or restore international peace and security. These requirements of
of force is envisaged in Article 42, whereby the Security Council may take military Article 51 apply whatever the means of force used in self-defence.
enforcement measures in conformity with Chapter VII of the Charter.
RESOLUTION 984. The Court notes that the Security Council adopted on 11 April
NOT WEAPON SPECIFIC. These provisions do not refer to specific weapons. 1995, in the context of the extension of the Treaty on the Non-Proliferation of
They apply to any use of force, regardless of the weapons employed. The Charter Nuclear Weapons, resolution 984 (1995) by the terms of which, on the one hand,
neither expressly prohibits, nor permits, the use of any specific weapon, including it "[t]akes note with appreciation of the statements made by each of the nuclear-
nuclear weapons. A weapon that is already unlawful per se, whether by treaty or weapon States (S/1995/261, S/1995/262, S/1995/263, S/1995/264, S/1995/265),
custom, does not become lawful by reason of its being used for a legitimate in which they give security assurances against the use of nuclear weapons to
purpose under the Charter. non-nuclear-weapon States that are Parties to the Treaty on the Non-Proliferation
of Nuclear Weapons," and, on the other hand, it "[w]elcomes the intention
CONSTRAINTS TO THE EXERCISE OF SELF-DEFENSE. The entitlement to expressed by certain States that they will provide or support immediate
resort to self-defence under Article 51 is subject to certain constraints. Some of assistance, in accordance with the Charter, to any non-nuclear-weapon State
these constraints are inherent in the very concept of self defence. Other Party to the Treaty on the Non-Proliferation of Nuclear Weapons that is a victim of
requirements are specified in Article 51. The submission of the exercise of the an act of, or an object of a threat of, aggression in which nuclear weapons are
right of self-defence to the conditions of necessity and proportionality is a rule of used".
customary international law. As the Court stated in the case concerning Military
and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States USE OF NUKES IN REPRISALS. Certain States asserted that the use of nuclear
of America): "there is a specific rule whereby self-defence would warrant only weapons in the conduct of reprisals would be lawful. The Court does not have to
measures which are proportional to the armed attack and necessary to respond to examine, in this context, the question of armed reprisals in time of peace, which
it, a rule well established in customary international law". This dual condition are considered to be unlawful. Nor does it have to pronounce on the question of
applies equally to Article 51 of the Charter, whatever the means of force belligerent reprisals save to observe that in any case any right of recourse to such
employed. The proportionality principle may thus not in itself exclude the use of reprisals would, like self-defence, be governed inter alia by the principle of
nuclear weapons in self-defence in all circumstances. But at the same time, a use proportionality.
of force that is proportionate under the law of self-defence, must, in order to be
lawful, also meet the requirements of the law applicable in armed conflict which LEGALITY OF “THREAT TO USE”. In order to lessen or eliminate the risk of
comprise in particular the principles and rules of humanitarian law. unlawful attack, States sometimes signal that they possess certain weapons to
use in self-defence against any State violating their territorial integrity or political
APPLICATION OF THE PRINCIPLE OF PROPORTIONALITY TO THE USE OF independence. Whether a signalled intention to use force if certain events occur is
NUCLEAR WEAPONS. Certain States have in their written and oral pleadings or is not a "threat" within Article 2, paragraph 4, of the Charter depends upon
suggested that in the case of nuclear weapons, the condition of proportionality various factors. If the envisaged use of force is itself unlawful, the stated
must be evaluated in the light of still further factors. They contend that the very readiness to use it would be a threat prohibited under Article 2, paragraph 4. Thus
nature of nuclear weapons, and the high probability of an escalation of nuclear it would be illegal for a State to threaten force to secure territory from another
exchanges, mean that there is an extremely strong risk of devastation. The risk State, or to cause it to follow or not follow certain political or economic paths. The
factor is said to negate the possibility of the condition of proportionality being notions of "threat" and "use" of force under Article 2, paragraph 4, of the Charter
complied with. The Court does not find it necessary to embark upon the stand together in the sense that if the use of force itself in a given case is illegal -
quantification of such risks; nor does it need to enquire into the question whether for whatever reason - the threat to use such force will likewise be illegal. In short,
tactical nuclear weapons exist which are sufficiently precise to limit those risks: it if it is to be lawful, the declared readiness of a State to use force must be a use of
suffices for the Court to note that the very nature of all nuclear weapons and the force that is in conformity with the Charter. For the rest, no State - whether or not
profound risks associated therewith are further considerations to be borne in mind it defended the policy of deterrence - suggested to the Court that it would be
by States believing they can exercise a nuclear response in self-defence in lawful to threaten to use force if the use of force contemplated would be illegal.
accordance with the requirements of proportionality.
Some States put forward the argument that possession of nuclear weapons is
IMMEDIATE REPORTING TO THE SECURITY COUNCIL. Beyond the conditions itself an unlawful threat to use force. Possession of nuclear weapons may indeed
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justify an inference of preparedness to use them. In order to be effective, the advanced that nuclear weapons should be treated in the same way as poisoned
policy of deterrence, by which those States possessing or under the umbrella of weapons. In that case, they would be prohibited under:
nuclear weapons seek to discourage military aggression by demonstrating that it (a) the Second Hague Declaration of 29 July 1899, which prohibits "the use of
will serve no purpose, necessitates that the intention to use nuclear weapons be projectiles the object of which is the diffusion of asphyxiating or deleterious
credible. Whether this is a "threat" contrary to Article 2, paragraph 4, depends gases";
upon whether the particular use of force envisaged would be directed against the (b) Article 23 (a) of the Regulations respecting the laws and customs of war on
territorial integrity or political independence of a State, or against the Purposes of land annexed to the Hague Convention IV of 18 October 1907, whereby "it is
the United Nations or whether, in the event that it were intended as a means of especially forbidden: ...to employ poison or poisoned weapons"; and
defence, it would necessarily violate the principles of necessity and (c) the Geneva Protocol of 17 June 1925 which prohibits "the use in war of
proportionality. In any of these circumstances the use of force, and the threat to asphyxiating, poisonous or other gases, and of all analogous liquids, materials or
use it, would be unlawful under the law of the Charter. devices".

Moreover, the Security Council may take enforcement measures under Chapter The Court will observe that the Regulations annexed to the Hague Convention IV
VII of the Charter. From the statements presented to it the Court does not do not define what is to be understood by "poison or poisoned weapons" and that
consider it necessary to address questions which might, in a given case, arise different interpretations exist on the issue. Nor does the 1925 Protocol specify the
from the application of Chapter VII. meaning to be given to the term "analogous materials or devices". The terms have
been understood, in the practice of States, in their ordinary sense as covering
The terms of the question put to the Court by the General Assembly in resolution weapons whose prime, or even exclusive, effect is to poison or asphyxiate. This
49/75K could in principle also cover a threat or use of nuclear weapons by a State practice is clear, and the parties to those instruments have not treated them as
within its own boundaries. However, this particular aspect has not been dealt with referring to nuclear weapons.
by any of the States which addressed the Court orally or in writing in these
proceedings. The Court finds that it is not called upon to deal with an internal use In view of this, it does not seem to the Court that the use of nuclear weapons
of nuclear weapons. can be regarded as specifically prohibited on the basis of the above-
mentioned provisions of the Second Hague Declaration of 1899, the
FOCUS ON APPLICABLE LAW IN ARMED CONFLICT. Having dealt with the Regulations annexed to the Hague Convention IV of 1907 or the 1925
Charter provisions relating to the threat or use of force, the Court will now turn to Protocol
the law applicable in situations of armed conflict. It will first address the question
whether there are specific rules in international law regulating the legality or WEAPONS ARE DECLARED ILLEGAL BY SPECIFIC INSTRUMENTS. NO
illegality of recourse to nuclear weapons per se; it will then examine the question SUCH INSTRUMENT FOR NUKES. The pattern until now has been for weapons
put to it in the light of the law applicable in armed conflict proper, i.e. the principles of mass destruction to be declared illegal by specific instruments. The most recent
and rules of humanitarian law applicable in armed conflict, and the law of such instruments are the Convention of 10 April 1972 on the Prohibition of the
neutrality. Development, Production and Stockpiling of Bacteriological (Biological) and Toxin
Weapons and on their destruction - which prohibits the possession of
FORMULATED IN TERMS OF PROHIBITION. The Court notes by way of bacteriological and toxic weapons and reinforces the prohibition of their use - and
introduction that international customary and treaty law does not contain any the Convention of 13 January 1993 on the Prohibition of the Development,
specific prescription authorizing the threat or use of nuclear weapons or any other Production, Stockpiling and Use of Chemical Weapons and on Their Destruction -
weapon in general or in certain circumstances, in particular those of the exercise which prohibits all use of chemical weapons and requires the destruction of
of legitimate self-defence. Nor, however, is there any principle or rule of existing stocks. Each of these instruments has been negotiated and adopted in its
international law which would make the legality of the threat or use of nuclear own context and for its own reasons. The Court does not find any specific
weapons or of any other weapons dependent on a specific authorization. State prohibition of recourse to nuclear weapons in treaties expressly prohibiting the
practice shows that the illegality of the use of certain weapons as such does not use of certain weapons of mass destruction.
result from an absence of authorization but, on the contrary, is formulated in terms
of prohibition. In the last two decades, a great many negotiations have been conducted
regarding nuclear weapons; they have not resulted in a treaty of general
The Court must therefore now examine whether there is any prohibition of prohibition of the same kind as for bacteriological and chemical weapons.
recourse to nuclear weapons as such; it will first ascertain whether there is a However, a number of specific treaties have been concluded in order to limit:
conventional prescription to this effect. (a) the acquisition, manufacture and possession of nuclear weapons (Peace
Treaties of 10 February 1947; State Treaty for the Re-establishment of an
NUKES AS POISONED WEAPONS. In this regard, the argument has been Independent and Democratic Austria of 15 May 1955; Treaty of Tlatelolco of 14
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February 1967 for the Prohibition of Nuclear Weapons in Latin America, and its
Additional Protocols; Treaty of 1 July 1968 on the Non-Proliferation of Nuclear (b) the Treaty of Rarotonga of 6 August 1985 establishes a South Pacific Nuclear
Weapons; Treaty of Rarotonga of 6 August 1985 on the Nuclear- Weapon-Free Free Zone in which the Parties undertake not to manufacture, acquire or possess
Zone of the South Pacific, and its Protocols; Treaty of 12 September 1990 on the any nuclear explosive device (Art. 3). Unlike the Treaty of Tlatelolco, the Treaty of
Final Settlement with respect to Germany); Rarotonga does not expressly prohibit the use of such weapons. But such a
(b) the deployment of nuclear weapons (Antarctic Treaty of 1 December 1959; prohibition is for the States parties the necessary consequence of the prohibitions
Treaty of 27 January 1967 on Principles Governing the Activities of States in the stipulated by the Treaty. The Treaty has a number of protocols. Protocol 2, open
Exploration and Use of Outer Space, including the Moon and Other Celestial to the five nuclear-weapon States, specifies in its Article 1 that:
Bodies; Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear "Each Party undertakes not to use or threaten to use any nuclear explosive
Weapons in Latin America, and its Additional Protocols; Treaty of 11 February device against:
1971 on the Prohibition of the Emplacement of Nuclear Weapons and Other (a) Parties to the Treaty; or
Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the (b) any territory within the South Pacific Nuclear Free Zone for which a State that
Subsoil Thereof; Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon- has become a Party to Protocol 1 is internationally responsible."
Free Zone of the South Pacific, and its Protocols); and
(c) the testing of nuclear weapons (Antarctic Treaty of 1 December 1959; Treaty China and Russia are parties to that Protocol. In signing it, China and the Soviet
of 5 August 1963 Banning Nuclear Weapon Tests in the Atmosphere, in Outer Union each made a declaration by which they reserved the" right to reconsider"
Space and under Water; Treaty of 27 January 1967 on Principles Governing the their obligations under the said Protocol; the Soviet Union also referred to certain
Activities of States in the Exploration and Use of Outer Space, including the Moon circumstances in which it would consider itself released from those obligations.
and Other Celestial Bodies; Treaty of Tlatelolco of 14 February 1967 for the France, the United Kingdom and the United States, for their part, signed Protocol
Prohibition of Nuclear Weapons in Latin America, and its Additional Protocols; 2 on 25 March 1996, but have not yet ratified it. On that occasion, France
Treaty of Rarotonga of 6 August 1985 on the Nuclear-Weapon-Free Zone of the declared, on the one hand, that no provision in that Protocol "shall impair the full
South Pacific, and its Protocols). exercise of the inherent right of self-defence provided for in Article 51 of the ...
Charter" and, on the other hand, that "the commitment set out in Article 1 of [that]
CONVENTIONS CONCERNED WITH NUKES. Recourse to nuclear weapons is Protocol amounts to the negative security assurances given by France to non-
directly addressed by two of these Conventions and also in connection with the nuclear-weapon States which are parties to the Treaty on . . . Non-Proliferation",
indefinite extension of the Treaty on the Non-Proliferation of Nuclear Weapons of and that "these assurances shall not apply to States which are not parties" to that
1968: Treaty. For its part, the United Kingdom made a declaration setting out the precise
(a) the Treaty of Tlatelolco of 14 February 1967 for the Prohibition of Nuclear circumstances in which it "will not be bound by [its] undertaking under Article 1" of
Weapons in Latin America prohibits, in Article 1, the use of nuclear weapons by the Protocol.
the Contracting Parties. It further includes an Additional Protocol II open to
nuclear-weapon States outside the region, Article 3 of which provides: (c) as to the Treaty on the Non-Proliferation of Nuclear Weapons, at the time of its
"The Governments represented by the undersigned Plenipotentiaries also signing in 1968 the United States, the United Kingdom and the USSR gave
undertake not to use or threaten to use nuclear weapons against the Contracting various security assurances to the non-nuclear-weapon States that were parties
Parties of the Treaty for the Prohibition of Nuclear Weapons in Latin America." to the Treaty. In resolution 255 (1968) the Security Council took note with
The Protocol was signed and ratified by the five nuclear-weapon States. Its satisfaction of the intention expressed by those three States to
ratification was accompanied by a variety of declarations. The United Kingdom
Government, for example, stated that "in the event of any act of aggression by a "provide or support immediate assistance, in accordance with the Charter, to any
Contracting Party to the Treaty in which that Party was supported by a nuclear- non-nuclear-weapon State Party to the Treaty on the Non-Proliferation . . . that is
weapon State", the United Kingdom Government would "be free to reconsider the a victim of an act of, or an object of a threat of, aggression in which nuclear
extent to which they could be regarded as committed by the provisions of weapons are used".
Additional Protocol II". The United States made a similar statement. The French
Government, for its part, stated that it "interprets the undertaking made in article 3 On the occasion of the extension of the Treaty in 1995, the five nuclear-weapon
of the Protocol as being without prejudice to the full exercise of the right of self- States gave their non-nuclear-weapon partners, by means of separate unilateral
defence confirmed by Article 51 of the Charter". China reaffirmed its commitment statements on 5 and 6 April 1995, positive and negative security assurances
not to be the first to make use of nuclear weapons. The Soviet Union reserved against the use of such weapons. All the five nuclear-weapon States first
"the right to review" the obligations imposed upon it by Additional Protocol II, undertook not to use nuclear weapons against non-nuclear-weapon States that
particularly in the event of an attack by a State party either "in support of a were parties to the Treaty on the Non-Proliferation of Nuclear Weapons. However,
nuclear-weapon State or jointly with that State". None of these statements drew these States, apart from China, made an exception in the case of an invasion or
comment or objection from the parties to the Treaty of Tlatelolco. any other attack against them, their territories, armed forces or allies, or on a
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State towards which they had a security commitment, carried out or sustained by States; to accept the fact that those States possess nuclear weapons is
a non-nuclear-weapon State party to the Non-Proliferation Treaty in association or tantamount to recognizing that such weapons may be used in certain
alliance with a nuclear-weapon State. Each of the nuclear-weapon States further circumstances. Nor, they contend, could the security assurances given by the
undertook, as a permanent Member of the Security Council, in the event of an nuclear-weapon States in 1968, and more recently in connection with the Review
attack with the use of nuclear weapons, or threat of such attack, against a non- and Extension Conference of the Parties to the Treaty on the Non-Proliferation of
nuclear-weapon State, to refer the matter to the Security Council without delay Nuclear Weapons in 1995, have been conceived without its being supposed that
and to act within it in order that it might take immediate measures with a view to there were circumstances in which nuclear weapons could be used in a lawful
supplying, pursuant to the Charter, the necessary assistance to the victim State manner. For those who defend the legality of the use, in certain circumstances, of
(the commitments assumed comprising minor variations in wording). The Security nuclear weapons, the acceptance of those instruments by the different non-
Council, in unanimously adopting resolution 984 (1995) of 11 April 1995, cited nuclear-weapon States confirms and reinforces the evident logic upon which
above, took note of those statements with appreciation. It also recognized "that those instruments are based.
the nuclear-weapon State permanent members of the Security Council will bring
the matter immediately to the attention of the Council and seek Council action to FORESHADOWING OF A FUTURE GENERAL PROHIBITION. The Court notes
provide, in accordance with the Charter, the necessary assistance to the State that the treaties dealing exclusively with acquisition, manufacture, possession,
victim"; deployment and testing of nuclear weapons, without specifically addressing their
and welcomed the fact that "the intention expressed by certain States that they threat or use, certainly point to an increasing concern in the international
will provide or support immediate assistance, in accordance with the Charter, to community with these weapons; the Court concludes from this that these treaties
any non-nuclear- weapon State Party to the Treaty on the Non-Proliferation of could therefore be seen as foreshadowing a future general prohibition of the use
Nuclear Weapons that is a victim of an act of, or an object of a threat of, of such weapons, but they do not constitute such a prohibition by themselves. As
aggression in which nuclear weapons are used." to the treaties of Tlatelolco and Rarotonga and their Protocols, and also the
declarations made in connection with the indefinite extension of the Treaty on the
SUCH TREATIES REFLECT AN EMERGING RULE OF PROHIBITION OF Non-Proliferation of Nuclear Weapons, it emerges from these instruments that:
NUKES. Those States that believe that recourse to nuclear weapons is illegal
stress that the conventions that include various rules providing for the limitation or (a) a number of States have undertaken not to use nuclear weapons in specific
elimination of nuclear weapons in certain areas (such as the Antarctic Treaty of zones (Latin America; the South Pacific) or against certain other States (non-
1959 which prohibits the deployment of nuclear weapons in the Antarctic, or the nuclear-weapon States which are parties to the Treaty on the Non-Proliferation of
Treaty of Tlatelolco of 1967 which creates a nuclear-weapon-free zone in Latin Nuclear Weapons);
America), or the conventions that apply certain measures of control and limitation (b) nevertheless, even within this framework, the nuclear-weapon States have
to the existence of nuclear weapons (such as the 1963 Partial Test-Ban Treaty or reserved the right to use nuclear weapons in certain circumstances; and
the Treaty on the Non-Proliferation of Nuclear Weapons) all set limits to the use of (c) these reservations met with no objection from the parties to the Tlatelolco or
nuclear weapons. In their view, these treaties bear witness, in their own way, to Rarotonga Treaties or from the Security Council.
the emergence of a rule of complete legal prohibition of all uses of nuclear
weapons. These two treaties, the security assurances given in 1995 by the nuclear-weapon
States and the fact that the Security Council took note of them with satisfaction,
OTHERS STATES BELIEVE OTHERWISE, STILL NO ABSOLUTE testify to a growing awareness of the need to liberate the community of States and
PROHIBITION. Those States who defend the position that recourse to nuclear the international public from the dangers resulting from the existence of nuclear
weapons is legal in certain circumstances see a logical contradiction in reaching weapons. The Court moreover notes the signing, even more recently, on 15
such a conclusion. According to them, those Treaties, such as the Treaty on the December 1995, at Bangkok, of a Treaty on the Southeast Asia Nuclear-Weapon-
Non-Proliferation of Nuclear Weapons, as well as Security Council resolutions 255 Free Zone, and on 11 April 1996, at Cairo, of a treaty on the creation of a nuclear-
(1968) and 984 (1995) which take note of the security assurances given by the weapons-free zone in Africa. It does not, however, view these elements as
nuclear-weapon States to the non-nuclear-weapon States in relation to any amounting to a comprehensive and universal conventional prohibition on the use,
nuclear aggression against the latter, cannot be understood as prohibiting the use or the threat of use, of those weapons as such.
of nuclear weapons, and such a claim is contrary to the very text of those
instruments. For those who support the legality in certain circumstances of A LOOK AT CUSTOMARY INTERNATIONAL LAW. The Court will now turn to
recourse to nuclear weapons, there is no absolute prohibition against the use of an examination of customary international law to determine whether a prohibition
such weapons. The very logic and construction of the Treaty on the Non- of the threat or use of nuclear weapons as such flows from that source of law. As
Proliferation of Nuclear Weapons, they assert, confirm this. This Treaty, whereby, the Court has stated, the substance of that law must be "looked for primarily in the
they contend, the possession of nuclear weapons by the five nuclear-weapon actual practice and opinio juris of States"
States has been accepted, cannot be seen as a treaty banning their use by those
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NON-UTILIZATION OF NUKES AS EVIDENCE OF OPINIO JURIS? States normative value. They can, in certain circumstances, provide evidence important
which hold the view that the use of nuclear weapons is illegal have endeavoured for establishing the existence of a rule or the emergence of an opinio juris. To
to demonstrate the existence of a customary rule prohibiting this use. They refer establish whether this is true of a given General Assembly resolution, it is
to a consistent practice of non-utilization of nuclear weapons by States since 1945 necessary to look at its content and the conditions of its adoption; it is also
and they would see in that practice the expression of an opinio juris on the part of necessary to see whether an opinio juris exists as to its normative character. Or a
those who possess such weapons. series of resolutions may show the gradual evolution of the opinio juris required
for the establishment of a new rule.
Some other States, which assert the legality of the threat and use of nuclear
weapons in certain circumstances, invoked the doctrine and practice of RESOLUTIONS FALL SHORT TO ESTABLISH O.J. Examined in their totality,
deterrence in support of their argument. They recall that they have always, in the General Assembly resolutions put before the Court declare that the use of
concert with certain other States, reserved the right to use those weapons in the nuclear weapons would be "a direct violation of the Charter of the United Nations";
exercise of the right to self-defence against an armed attack threatening their vital and in certain formulations that such use "should be prohibited". The focus of
security interests. In their view, if nuclear weapons have not been used since these resolutions has sometimes shifted to diverse related matters; however,
1945, it is not on account of an existing or nascent custom but merely because several of the resolutions under consideration in the present case have been
circumstances that might justify their use have fortunately not arisen. adopted with substantial numbers of negative votes and abstentions; thus,
although those resolutions are a clear sign of deep concern regarding the problem
The Court does not intend to pronounce here upon the practice known as the of nuclear weapons, they still fall short of establishing the existence of an opinio
"policy of deterrence". It notes that it is a fact that a number of States adhered to juris on the illegality of the use of such weapons.
that practice during the greater part of the Cold War and continue to adhere to it.
Furthermore, the Members of the international community are profoundly divided The Court further notes that the first of the resolutions of the General Assembly
on the matter of whether non-recourse to nuclear weapons over the past fifty expressly proclaiming the illegality of the use of nuclear weapons, resolution 1653
years constitutes the expression of an opinio juris. Under these circumstances the (XVI) of 24 November 1961 (mentioned in subsequent resolutions), after referring
Court does not consider itself able to find that there is such an opinio juris. to certain international declarations and binding agreements, from the Declaration
of St. Petersburg of 1868 to the Geneva Protocol of 1925, proceeded to qualify
GENERAL ASSEMBLY RESOLUTIONS AS EVIDENCE? According to certain the legal nature of nuclear weapons, determine their effects, and apply general
States, the important series of General Assembly resolutions, beginning with rules of customary international law to nuclear weapons in particular. That
resolution 1653 (XVI) of 24 November 1961, that deal with nuclear weapons and application by the General Assembly of general rules of customary law to the
that affirm, with consistent regularity, the illegality of nuclear weapons, signify the particular case of nuclear weapons indicates that, in its view, there was no
existence of a rule of international customary law which prohibits recourse to specific rule of customary law which prohibited the use of nuclear weapons; if
those weapons. According to other States, however, the resolutions in question such a rule had existed, the General Assembly could simply have referred to it
have no binding character on their own account and are not declaratory of any and would not have needed to undertake such an exercise of legal qualification.
customary rule of prohibition of nuclear weapons; some of these States have also
pointed out that this series of resolutions not only did not meet with the approval Having said this, the Court points out that the adoption each year by the General
of all of the nuclear-weapon States but of many other States as well. Assembly, by a large majority, of resolutions recalling the content of resolution
1653 (XVI), and requesting the member States to conclude a convention
States which consider that the use of nuclear weapons is illegal indicated that prohibiting the use of nuclear weapons in any circumstance, reveals the desire of
those resolutions did not claim to create any new rules, but were confined to a a very large section of the international community to take, by a specific and
confirmation of customary law relating to the prohibition of means or methods of express prohibition of the use of nuclear weapons, a significant step forward along
warfare which, by their use, overstepped the bounds of what is permissible in the the road to complete nuclear disarmament. The emergence, as lex lata, of a
conduct of hostilities. In their view, the resolutions in question did no more than customary rule specifically prohibiting the use of nuclear weapons as such is
apply to nuclear weapons the existing rules of international law applicable in hampered by the continuing tensions between the budding opinio juris on the one
armed conflict; they were no more than the "envelope" or instrumentum containing hand, and the still strong adherence to the practice of deterrence on the other.
certain pre-existing customary rules of international law. For those States it is
accordingly of little importance that the instrumentum should have occasioned VIOLATES INT’L HUMANITARIAN LAW? The Court not having found a
negative votes, which cannot have the effect of obliterating those customary rules conventional rule of general scope, nor a customary rule specifically proscribing
which have been confirmed by treaty law. the threat or use of nuclear weapons per se, it will now deal with the question
whether recourse to nuclear weapons must be considered as illegal in the light of
NORMATIVE VALUE OF G.A.’s RESOLUTIONS. The Court notes that General the principles and rules of international humanitarian law applicable in armed
Assembly resolutions, even if they are not binding, may sometimes have conflict and of the law of neutrality.
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must never make civilians the object of attack and must consequently never use
75. A large number of customary rules have been developed by the practice of weapons that are incapable of distinguishing between civilian and military targets.
States and are an integral part of the international law relevant to the question 2. According to the second principle, it is prohibited to cause unnecessary
posed. The "laws and customs of war" - as they were traditionally called - were suffering to combatants: it is accordingly prohibited to use weapons causing them
the subject of efforts at codification undertaken in The Hague (including the such harm or uselessly aggravating their suffering. In application of that second
Conventions of 1899 and 1907), and were based partly upon the St. Petersburg principle, States do not have unlimited freedom of choice of means in the
Declaration of 1868 as well as the results of the Brussels Conference of 1874. weapons they use.
This "Hague Law" and, more particularly, the Regulations Respecting the Laws
and Customs of War on Land, fixed the rights and duties of belligerents in their MARTENS CLAUSE. The Court would likewise refer, in relation to these
conduct of operations and limited the choice of methods and means of injuring the principles, to the Martens Clause, which was first included in the Hague
enemy in an international armed conflict. One should add to this the "Geneva Convention II with Respect to the Laws and Customs of War on Land of 1899 and
Law" (the Conventions of 1864, 1906, 1929 and 1949), which protects the victims which has proved to be an effective means of addressing the rapid evolution of
of war and aims to provide safeguards for disabled armed forces personnel and military technology. A modern version of that clause is to be found in Article 1,
persons not taking part in the hostilities. These two branches of the law applicable paragraph 2, of Additional Protocol I of 1977, which reads as follows:
in armed conflict have become so closely interrelated that they are considered to "In cases not covered by this Protocol or by other international agreements,
have gradually formed one single complex system, known today as international civilians and combatants remain under the protection and authority of the
humanitarian law. The provisions of the Additional Protocols of 1977 give principles of international law derived from established custom, from the principles
expression and attest to the unity and complexity of that law. of humanity and from the dictates of public conscience."

76. Since the turn of the century, the appearance of new means of combat has - In conformity with the aforementioned principles, humanitarian law, at a very early
without calling into question the longstanding principles and rules of international stage, prohibited certain types of weapons either because of their indiscriminate
law - rendered necessary some specific prohibitions of the use of certain effect on combatants and civilians or because of the unnecessary suffering
weapons, such as explosive projectiles under 400 grammes, dum-dum bullets and caused to combatants, that is to say, a harm greater than that unavoidable to
asphyxiating gases. Chemical and bacteriological weapons were then prohibited achieve legitimate military objectives. If an envisaged use of weapons would not
by the 1925 Geneva Protocol. More recently, the use of weapons producing "non- meet the requirements of humanitarian law, a threat to engage in such use would
detectable fragments", of other types of "mines, booby traps and other devices", also be contrary to that law.
and of "incendiary weapons", was either prohibited or limited, depending on the
case, by the Convention of 10 October 1980 on Prohibitions or Restrictions on the HUMANITARIAN LAW: FUNDAMENTAL, CONSTITUTING PRINCIPLES OF
Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively INT’L CUSTOMARY LAW. It is undoubtedly because a great many rules of
Injurious or to Have Indiscriminate Effects. The provisions of the Convention on humanitarian law applicable in armed conflict are so fundamental to the respect of
"mines, booby traps and other devices" have just been amended, on 3 May 1996, the human person and "elementary considerations of humanity" as the Court put it
and now regulate in greater detail, for example, the use of anti-personnel land in its Judgment of 9 April 1949 in the Corfu Channel case (I.C.J. Reports 1949, p.
mines. 22), that the Hague and Geneva Conventions have enjoyed a broad accession.
Further these fundamental rules are to be observed by all States whether or not
All this shows that the conduct of military operations is governed by a body of they have ratified the conventions that contain them, because they constitute
legal prescriptions. This is so because "the right of belligerents to adopt means of intransgressible principles of international customary law.
injuring the enemy is not unlimited" as stated in Article 22 of the 1907 Hague
Regulations relating to the laws and customs of war on land. The St. Petersburg The Nuremberg International Military Tribunal had already found in 1945 that the
Declaration had already condemned the use of weapons "which uselessly humanitarian rules included in the Regulations annexed to the Hague Convention
aggravate the suffering of disabled men or make their death inevitable". The IV of 1907 "were recognized by all civilized nations and were regarded as being
aforementioned Regulations relating to the laws and customs of war on land, declaratory of the laws and customs of war" (International Military Tribunal, Trial
annexed to the Hague Convention IV of 1907, prohibit the use of "arms, of the Major War Criminals, 14 November 1945 - 1 October 1946, Nuremberg,
projectiles, or material calculated to cause unnecessary suffering" (Art. 23). 1947, Vol. 1, p. 254).

CARDINAL PRINCIPLES OF IHL. The cardinal principles contained in the texts The Report of the Secretary-General pursuant to paragraph 2 of Security Council
constituting the fabric of humanitarian law are the following: resolution 808 (1993), with which he introduced the Statute of the International
Tribunal for the Prosecution of Persons Responsible for Serious Violations of
1. The first is aimed at the protection of the civilian population and civilian objects International Humanitarian Law Committed in the Territory of the Former
and establishes the distinction between combatants and non-combatants; States Yugoslavia since 1991, and which was unanimously approved by the Security
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Council (resolution 827 (1993)), stated: use of nuclear weapons, the Court notes that doubts in this respect have
"In the view of the Secretary-General, the application of the principle nullum sometimes been voiced on the ground that these principles and rules had evolved
crimen sine lege requires that the international tribunal should apply rules of prior to the invention of nuclear weapons and that the Conferences of Geneva of
international humanitarian law which are beyond any doubt part of customary 1949 and 1974-1977 which respectively adopted the four Geneva Conventions of
law . . . 1949 and the two Additional Protocols thereto did not deal with nuclear weapons
specifically. Such views, however, are only held by a small minority. In the view of
The part of conventional international humanitarian law which has beyond doubt the vast majority of States as well as writers there can be no doubt as to the
become part of international customary law is the law applicable in armed conflict applicability of humanitarian law to nuclear weapons.
as embodied in: the Geneva Conventions of 12 August 1949 for the Protection of
War Victims; the Hague Convention (IV) Respecting the Laws and Customs of “NEWNESS” OF NUCLEAR WEAPONS IMMATERIAL TO IHL. The Court
War on Land and the Regulations annexed thereto of 18 October 1907; the shares that view. Indeed, nuclear weapons were invented after most of the
Convention on the Prevention and Punishment of the Crime of Genocide of 9 principles and rules of humanitarian law applicable in armed conflict had already
December 1948; and the Charter of the International Military Tribunal of 8 August come into existence; the Conferences of 1949 and 1974-1977 left these weapons
1945." aside, and there is a qualitative as well as quantitative difference between nuclear
82. The extensive codification of humanitarian law and the extent of the weapons and all conventional arms. However, it cannot be concluded from this
accession to the resultant treaties, as well as the fact that the denunciation that the established principles and rules of humanitarian law applicable in armed
clauses that existed in the codification instruments have never been used, have conflict did not apply to nuclear weapons. Such a conclusion would be
provided the international community with a corpus of treaty rules the great incompatible with the intrinsically humanitarian character of the legal principles in
majority of which had already become customary and which reflected the most question which permeates the entire law of armed conflict and applies to all forms
universally recognized humanitarian principles. These rules indicate the normal of warfare and to all kinds of weapons, those of the past, those of the present and
conduct and behaviour expected of States. those of the future. In this respect it seems significant that the thesis that the rules
of humanitarian law do not apply to the new weaponry, because of the newness of
It has been maintained in these proceedings that these principles and rules of the latter, has not been advocated in the present proceedings. On the contrary,
humanitarian law are part of jus cogens as defined in Article 53 of the Vienna the newness of nuclear weapons has been expressly rejected as an argument
Convention on the Law of Treaties of 23 May 1969. The question whether a norm against the application to them of international humanitarian law:
is part of the jus cogens relates to the legal character of the norm. The request
addressed to the Court by the General Assembly raises the question of the "In general, international humanitarian law bears on the threat or use of nuclear
applicability of the principles and rules of humanitarian law in cases of recourse to weapons as it does of other weapons.
nuclear weapons and the consequences of that applicability for the legality of
recourse to these weapons. But it does not raise the question of the character of International humanitarian law has evolved to meet contemporary circumstances,
the humanitarian law which would apply to the use of nuclear weapons. There is, and is not limited in its application to weaponry of an earlier time. The
therefore, no need for the Court to pronounce on this matter. fundamental principles of this law endure: to mitigate and circumscribe the cruelty
of war for humanitarian reasons." None of the statements made before the Court
Nor is there any need for the Court elaborate on the question of the applicability of in any way advocated a freedom to use nuclear weapons without regard to
Additional Protocol I of 1977 to nuclear weapons. It need only observe that while, humanitarian constraints. Quite the reverse; it has been explicitly stated,
at the Diplomatic Conference of 1974-1977, there was no substantive debate on "Restrictions set by the rules applicable to armed conflicts in respect of means
the nuclear issue and no specific solution concerning this question was put and methods of warfare definitely also extend to nuclear weapons" (Russian
forward, Additional Protocol I in no way replaced the general customary rules Federation, CR 95/29, p. 52);
applicable to all means and methods of combat including nuclear weapons. In "So far as the customary law of war is concerned, the United Kingdom has always
particular, the Court recalls that all States are bound by those rules in Additional accepted that the use of nuclear weapons is subject to the general principles of
Protocol I which, when adopted, were merely the expression of the pre-existing the jus in bello" (United Kingdom, CR 95/34, p. 45); and
customary law, such as the Martens Clause, reaffirmed in the first article of "The United States has long shared the view that the law of armed conflict
Additional Protocol I. The fact that certain types of weapons were not specifically governs the use of nuclear weapons - just as it governs the use of conventional
dealt with by the 1974-1977 Conference does not permit the drawing of any legal weapons" (United States of America, CR 95/34, p. 85.)
conclusions relating to the substantive issues which the use of such weapons
would raise. Finally, the Court points to the Martens Clause, whose continuing existence and
applicability is not to be doubted, as an affirmation that the principles and rules
APPLICABILITY OG IHL TO NUCLEAR WEAPONS. Turning now to the of humanitarian law apply to nuclear weapons.
applicability of the principles and rules of humanitarian law to a possible threat or
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PRINCIPLE OF NEUTRALITY. The Court will now turn to the principle of
neutrality which was raised by several States. In the context of the advisory "The reality . . . is that nuclear weapons might be used in a wide variety of
proceedings brought before the Court by the WHO concerning the Legality of the circumstances with very different results in terms of likely civilian casualties. In
Use by a State of Nuclear Weapons in Armed Conflict, the position was put as some cases, such as the use of a low yield nuclear weapon against warships on
follows by one State: the High Seas or troops in sparsely populated areas, it is possible to envisage a
"The principle of neutrality, in its classic sense, was aimed at preventing the nuclear attack which caused comparatively few civilian casualties. It is by no
incursion of belligerent forces into neutral territory, or attacks on the persons or means the case that every use of nuclear weapons against a military objective
ships of neutrals. Thus: 'the territory of neutral powers is inviolable' (Article 1 of would inevitably cause very great collateral civilian casualties." (United Kingdom,
the Hague Convention (V) Respecting the Rights and Duties of Neutral Powers Written Statement, p. 53, para. 3.70; see also United States of America, Oral
and Persons in Case of War on Land, concluded on 18 October 1907); Statement, CR 95/34, pp. 89-90.)
'belligerents are bound to respect the sovereign rights of neutral powers . . .'
(Article 1 to the Hague Convention (XIII) Respecting the Rights and Duties of VIEW 2: NUKES INCOMPATIBLE WITH IHL. Another view holds that recourse to
Neutral Powers in Naval War, concluded on 18 October 1907), 'neutral states nuclear weapons could never be compatible with the principles and rules of
have equal interest in having their rights respected by belligerents . . .' (Preamble humanitarian law and is therefore prohibited. In the event of their use, nuclear
to Convention on Maritime Neutrality, concluded on 20 February 1928). It is clear, weapons would in all circumstances be unable to draw any distinction between
however, that the principle of neutrality applies with equal force to transborder the civilian population and combatants, or between civilian objects and military
incursions of armed forces and to the transborder damage caused to a neutral objectives, and their effects, largely uncontrollable, could not be restricted, either
State by the use of a weapon in a belligerent State." (Legality of the Use by a in time or in space, to lawful military targets. Such weapons would kill and destroy
State of Nuclear Weapons in Armed Conflict, Nauru, Written Statement (I), p. 35, in a necessarily indiscriminate manner, on account of the blast, heat and radiation
IV E.) occasioned by the nuclear explosion and the effects induced; and the number of
casualties which would ensue would be enormous. The use of nuclear weapons
The principle so circumscribed is presented as an established part of the would therefore be prohibited in any circumstance, notwithstanding the absence
customary international law. of any explicit conventional prohibition. That view lay at the basis of the assertions
by certain States before the Court that nuclear weapons are by their nature illegal
The Court finds that as in the case of the principles of humanitarian law applicable under customary international law, by virtue of the fundamental principle of
in armed conflict, international law leaves no doubt that the principle of neutrality, humanity.
whatever its content, which is of a fundamental character similar to that of the
humanitarian principles and rules, is applicable (subject to the relevant provisions USE OF NUKES WILL ALSO VIOLATE PRINCIPLE OF NEUTRALITY. A similar
of the United Nations Charter), to all international armed conflict, whatever type of view has been expressed with respect to the effects of the principle of neutrality.
weapons might be used. Like the principles and rules of humanitarian law, that principle has therefore been
Although the applicability of the principles and rules of humanitarian law and of considered by some to rule out the use of a weapon the effects of which simply
the principle of neutrality to nuclear weapons is hardly disputed, the conclusions cannot be contained within the territories of the contending States.
to be drawn from this applicability are, on the other hand, controversial.
COURT CANNOT WITH CERTAINTY RULE THAT USE OF NUKES VIOLATE
SO DOES IHL PROHIBIT NUCLEAR WEAPONS? IHL. The Court would observe that none of the States advocating the legality of
VIEW 1: NOT NECESSARILY PROHIBITED. According to one point of view, the the use of nuclear weapons under certain circumstances, including the "clean"
fact that recourse to nuclear weapons is subject to and regulated by the law of use of smaller, low yield, tactical nuclear weapons, has indicated what, supposing
armed conflict does not necessarily mean that such recourse is as such such limited use were feasible, would be the precise circumstances justifying such
prohibited. As one State put it to the Court: use; nor whether such limited use would not tend to escalate into the all-out use of
high yield nuclear weapons. This being so, the Court does not consider that it has
"Assuming that a State's use of nuclear weapons meets the requirements of self- a sufficient basis for a determination on the validity of this view.
defence, it must then be considered whether it conforms to the fundamental
principles of the law of armed conflict regulating the conduct of hostilities" (United Nor can the Court make a determination on the validity of the view that the
Kingdom, Written Statement, p. 40, para. 3.44); recourse to nuclear weapons would be illegal in any circumstance owing to their
inherent and total incompatibility with the law applicable in armed conflict.
"the legality of the use of nuclear weapons must therefore be assessed in the Certainly, as the Court has already indicated, the principles and rules of law
light of the applicable principles of international law regarding the use of force and applicable in armed conflict - at the heart of which is the overriding consideration
the conduct of hostilities, as is the case with other methods and means of warfare" of humanity - make the conduct of armed hostilities subject to a number of strict
(United Kingdom, Written Statement, p. 75, para. 4.2(3)); and requirements. Thus, methods and means of warfare, which would preclude any
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distinction between civilian and military targets, or which would result in conduct; the obligation involved here is an obligation to achieve a precise result -
unnecessary suffering to combatants, are prohibited. In view of the unique nuclear disarmament in all its aspects - by adopting a particular course of
characteristics of nuclear weapons, to which the Court has referred above, the conduct, namely, the pursuit of negotiations on the matter in good faith.
use of such weapons in fact seems scarcely reconcilable with respect for such
requirements. Nevertheless, the Court considers that it does not have sufficient This twofold obligation to pursue and to conclude negotiations formally concerns
elements to enable it to conclude with certainty that the use of nuclear weapons the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons,
would necessarily be at variance with the principles and rules of law applicable in or, in other words, the vast majority of the international community.
armed conflict in any circumstance.
Virtually the whole of this community appears moreover to have been involved
Furthermore, the Court cannot lose sight of the fundamental right of every State to when resolutions of the United Nations General Assembly concerning nuclear
survival, and thus its right to resort to self-defence, in accordance with Article 51 disarmament have repeatedly been unanimously adopted. Indeed, any realistic
of the Charter, when its survival is at stake. search for general and complete disarmament, especially nuclear disarmament,
necessitates the co-operation of all States.
Nor can it ignore the practice referred to as "policy of deterrence", to which an
appreciable section of the international community adhered for many years. The Even the very first General Assembly resolution, unanimously adopted on 24
Court also notes the reservations which certain nuclear-weapon States have January 1946 at the London session, set up a commission whose terms of
appended to the undertakings they have given, notably under the Protocols to the reference included making specific proposals for, among other things, "the
Treaties of Tlatelolco and Rarotonga, and also under the declarations made by elimination from national armaments of atomic weapons and of all other major
them in connection with the extension of the Treaty on the Non-Proliferation of weapons adaptable to mass destruction". In a large number of subsequent
Nuclear Weapons, not to resort to such weapons. resolutions, the General Assembly has reaffirmed the need for nuclear
disarmament. Thus, in resolution 808 A (IX) of 4 November 1954, which was
Accordingly, in view of the present state of international law viewed as a whole, as likewise unanimously adopted, it concluded:
examined above by the Court, and of the elements of fact at its disposal, the "that a further effort should be made to reach agreement on comprehensive and
Court is led to observe that it cannot reach a definitive conclusion as to the legality co-ordinated proposals to be embodied in a draft international disarmament
or illegality of the use of nuclear weapons by a State in an extreme circumstance convention providing for: . . . (b) The total prohibition of the use and manufacture
of self-defence, in which its very survival would be at stake. of nuclear weapons and weapons of mass destruction of every type, together with
the conversion of existing stocks of nuclear weapons for peaceful purposes."
Given the eminently difficult issues that arise in applying the law on the use of The same conviction has been expressed outside the United Nations context in
force and above all the law applicable in armed conflict to nuclear weapons, the various instruments.
Court considers that it now needs to examine one further aspect of the question
before it, seen in a broader context. PRINCIPLE OF GOOD FAITH IN COMPLYING WITH OBLIGATIONS. The
obligation expressed in Article VI of the Treaty on the Non-Proliferation of Nuclear
THE ANSWER: NUCLEAR DISARMAMENT. In the long run, international law, Weapons includes its fulfillment in accordance with the basic principle of good
and with it the stability of the international order which it is intended to govern, are faith. This basic principle is set forth in Article 2, paragraph 2, of the Charter. It
bound to suffer from the continuing difference of views with regard to the legal was reflected in the Declaration on Friendly Relations between States (resolution
status of weapons as deadly as nuclear weapons. It is consequently important to 2625 (XXV) of 24 October 1970) and in the Final Act of the Helsinki Conference of
put an end to this state of affairs: the long-promised complete nuclear 1 August 1975. It is also embodied in Article 26 of the Vienna Convention on the
disarmament appears to be the most appropriate means of achieving that result. Law of Treaties of 23 May 1969, according to which "[e]very treaty in force is
binding upon the parties to it and must be performed by them in good faith".
In these circumstances, the Court appreciates the full importance of the
recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Nor has the Court omitted to draw attention to it, as follows:
Weapons of an obligation to negotiate in good faith a nuclear disarmament. This "One of the basic principles governing the creation and performance of legal
provision is worded as follows: obligations, whatever their source, is the principle of good faith. Trust and
"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith confidence are inherent in international co-operation, in particular in an age when
on effective measures relating to cessation of the nuclear arms race at an early this co-operation in many fields is becoming increasingly essential." (Nuclear
date and to nuclear disarmament, and on a treaty on general and complete Tests (Australia v. France), Judgment of 20 December 1974, I.C.J. Reports 1974,
disarmament under strict and effective international control." p. 268, para. 46.)

The legal import of that obligation goes beyond that of a mere obligation of In its resolution 984 (1995) dated 11 April 1995, the Security Council took care to
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reaffirm "the need for all States Parties to the Treaty on the Non-Proliferation of E. By seven votes to seven, by the President's casting vote,
Nuclear Weapons to comply fully with all their obligations" and urged "all States, It follows from the above-mentioned requirements that the threat or use of
as provided for in Article VI of the Treaty on the Non-Proliferation of Nuclear nuclear weapons would generally be contrary to the rules of international
Weapons, to pursue negotiations in good faith on effective measures relating to law applicable in armed conflict, and in particular the principles and rules of
nuclear disarmament and on a treaty on general and complete disarmament humanitarian law;
under strict and effective international control which remains a universal goal". However, in view of the current state of international law, and of the
elements of fact at its disposal, the Court cannot conclude definitively
The importance of fulfilling the obligation expressed in Article VI of the Treaty on whether the threat or use of nuclear weapons would be lawful or unlawful in
the Non-Proliferation of Nuclear Weapons was also reaffirmed in the final an extreme circumstance of self-defence, in which the very survival of a
document of the Review and Extension Conference of the parties to the Treaty on State would be at stake;
the Non-Proliferation of Nuclear Weapons, held from 17 April to 12 May 1995. In IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer,
the view of the Court, it remains without any doubt an objective of vital importance Vereschetin, Ferrari Bravo;
to the whole of the international community today. AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen,
Weeramantry, Koroma, Higgins.
TOTALITY OF THE LEGAL GROUNDS. At the end of the present Opinion, the F. Unanimously,
Court emphasizes that its reply to the question put to it by the General Assembly There exists an obligation to pursue in good faith and bring to a conclusion
rests on the totality of the legal grounds set forth by the Court above, each of negotiations leading to nuclear disarmament in all its aspects under strict
which is to be read in the light of the others. Some of these grounds are not such and effective international control.
as to form the object of formal conclusions in the final paragraph of the Opinion;
they nevertheless retain, in the view of the Court, all their importance.
ASYLUM CASE (Columbia/Peru)
DISPOSITION. For these reasons,THE COURT, Colombian-Peruvian asylum case
(1) By thirteen votes to one, Judgment of November 20th 1950: I.C. J. Reports 1950, pp. 266.
Decides to comply with the request for an advisory opinion;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Guillaume, PRELIMINARIES.
Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, In the Asylum case, between the Republic of Colombia, represented by:
Vereshchetin, Ferrari Bravo, Higgins; AGAINST: Judge Oda. M. J. M. Yepes, Professor, Minister Plenipotentiary, Legal Adviser to the Ministry
(2) Replies in the following manner to the question put by the General Assembly: for Foreign Affairs of Colombia, former Senator, as Agent; assisted by M. Alfredo
A. Unanimously, Vasquez, Minister Plenipotentiary, Secretary-General of the Ministry for Foreign
There is in neither customary nor conventional international law any Affairs of Colombia, as Advocate; and
specific authorization of the threat or use of nuclear weapons; the Republic of Peru, represented by: M. Carlos Sayan Alvarez, Barrister,
B. By eleven votes to three, Ambassador, former Minister, former President of the Peruvian Chamber of
There is in neither customary nor conventional international law any Deputies, as Agent; assisted by M. Felipe Tudela y Barreda, Barrister, Professor
comprehensive and universal prohibition of the threat or use of nuclear of Constitutional Law at Lima, M. Fernando Morales Macedo R., Parliamentary
weapons as such; Interpreter, M. Juan José Calle y Calle, Secretary of Embassy; and, as Counsel,
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, M. Georges Scelle, Honorary Professor of the University of Paris, and M. Julio
Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Lopez Olivan, Ambassador,
Higgins;
AGAINST: Judges Shahabuddeen, Weeramantry, Koroma. THE ACT OF LIMA. On August 31st, 1949, an agreement called the "Act of Lima"
C.Unanimously, was signed at Lima in the name of the Colombian and of the Peruvian
A threat or use of force by means of nuclear weapons that is contrary to Government. This Act is as follows:
Article 2, paragraph 4, of the United Nations Charter and that fails to meet all
the requirements of Article 51, is unlawful; "His Excellency Monsieur Victor Andrés Belaunde, Ambassador
D. Unanimously, Extraordinary and Plenipotentiary ad hoc of the Peruvian Republic, and
A threat or use of nuclear weapons should also be compatible with the His Excellency Monsieur Eduardo Zuleta Angel, Ambassador
requirements of the international law applicable in armed conflict, Extraordinary and Plenipotentiary ad hoc of Colombia, duly designated
particularly those of the principles and rules of international humanitarian by their respective Governments to negotiate and draw up the terms of
law, as well as with specific obligations under treaties and other an agreement to refer to the International Court of Justice a dispute
undertakings which expressly deal with nuclear weapons; which arose following a request by the Colombian Embassy in Lima for
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delivery of a safe-conduct for Monsieur Victor Raul Haya de la Torre, "To pass judgment on and answer, whether the Government of the
have met in the Ministry of Foreign Affairs and Public Worship in Lima Republic of Peru enters an appearance or not, and after such time-limits
and, having exchanged their respective credentials, make the following as the Court may fix in the absence of an agreement between the
declaration in the spirit of cordial frendship which characterizes the Parties, the following questions:
relations between the two countries :
First Question.-Within the limits of the obligations resulting in particular
First : from the Bolivarian Agreement on Extradition of July 18th, 1911, and the
They have examined in a spirit of understanding the existing dispute Convention on Asylum of February 20th, 1928, both in force between
which they agree to refer for decision to the International Court of Colombia and Peru, and in general from American international law, was
Justice, in accordance with the agreement concluded by the two Colombia competent, as the country granting asylum, to qualify the
Governments. offence for the purposes of said asylum ?

Second : Second Question.-In the specific case under consideration, was Peru, as
The Plenipotentiaries of Peru and Colombia having been unable to reach the territorial State, bound to give the guarantees necessary for the
an agreement on the terms in which they might refer the dispute jointly to departure of the refugee from the country, with due regard to the
the International Court of Justice, agree that proceedings before the inviolability of his person ?"
recognized jurisdiction of the Court may be instituted on the application
of either of the Parties without this being regarded as an unfriendly act Together with the Application, the Agent of the Colombian Government filed in the
toward the other, or as an act likely to affect the good relations between Registry a certified true copy of the original in Spanish, accompanied by a French
the two countries. The Party exercising this right shall, with reasonable translation, of the Act of Lima. By letter of October 15th, 1949, received by the
advance notice, announce in a friendly way to the other Party the date on Registry on the same day, the Agent of the Peruvian Government also deposited
which the application is to be made. a certified true translation of the Act of Lima.

Third : The Application was notified, under Article 40, paragraph 3 of the Statute of the
They agree, here and now : (a) that the procedure in this case shall be Court, to the States entitled to appear before the Court. It was also transmitted to
the ordinary procedure ; (b) that, in accordance with Article 31, the Secretary-General of the United Nations.
paragraph 3, of the Statute of the Court, each of the Parties may
exercise its right to choose a judge of its nationality ; (c) that the case As the Application was based upon the Convention on Asylum signed at Havana
shall be conducted in French. on February 20th, 1928, and upon the Agreement on Extradition signed at
Caracas on July 18th, 1911, the notification prescribed by Article 63, paragraph 1,
Fourth : of the Statute of the Court was addressed to the States other than those
This document, after it has been signed, shall be communicated to the concerned in the case which were parties to the foregoing Conventions.
Court by the Parties."
The Pleadings having been deposited within the time-limits prescribed in the
COLUMBIA FILES APPLICATION RE ACT OF LIMA; OTHER EVENTS Order of October 20th, 1949, as extended by Orders of December 17th, 1949,
LEADING TO THE HEARING. On October 15th, 1949, an Application, referring to and May 9th, 1950, the case was ready for hearing on June 15th, 1950.
the Act of Lima of August 31st, 1949, was filed in the Registry of the Court in the
name of the Colombian Government. After stating that Colombia asserts : As the Court did not include upon the Bench any judge of the nationality of the
Parties, the latter availed themselves of the right provided by Article 31, paragraph
"(a) that she is entitled in the case of persons who have claimed asylum 3 of the Statute. The Judges ad hoc designated were M. José Joaquin Caicedo
in her embassies, legations, warships, military camps or military aircraft, Castilla, for Colombia, and M. Luis Alayza y Paz Soldan, for Peru.
to qualify the refugees, either as offenders for common crimes or
deserters from the army or navy, or as political offenders ; The opening of the oral proceedings was fixed for September 26th, 1950. Public
(b) that the territorial State, namely, in this case, Peru, is bound to give sittings were held by the Court on September 26th, 27th, 28th and 29th and on
'the guarantees necessary for the departure of the refugee, with due October and, 3rd, 6th and gth, 1950.
regard to the inviolability of his person, from the country' ",
In the course of the sittings, the Court heard statements by Yepes and Vasquez
The Application concludes by requesting the Court : on behalf of Colombia, and by Alvarez and Scelle, on behalf of the Peru.

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COLUMBIA’S SUBMISSIONS AT THE END OF THE WRITTEN II.-That Peru, as the territorial State, is bound in the case now before the Court to
PROCEEDINGS. At the end of the written proceedings the Parties had presented give the guarantees necessary for the departure of M. Victor Raul Haya de la
the following submissions :On behalf of Colombia (submissions contained in the Torre from the country, with due regard to the inviolability of his person."
Reply) :
(on the counter-claim)
"MAY IT PLEASE THE COURT
To dismiss the submissions of the Government of the Republic of Peru, I. That the counter-claim presented by the Peruvian Government on March 21st,
TO ADJUDGE AND DECLARE : 1950, is not admissible because of its lack of direct connexion with the Application
In accordance with the submissions presented by Colombia in its Memorial of of the Colombian Government;
January 10th, 1950, which was submitted to the Court on the same date, and
Rejecting all contrary submissions, II. That the new counter-claim, irregularly presented on October 3rd, 1950, in the
form of a submission upon allegations made during the oral debate, is not
I. That Colombia, as the country granting asylum, is competent to qualify the admissible on the grounds that :
offence for the purpose of the said asylum, within the limits of the obligations
resulting in particular from the Bolivarian Agreement on Extradition, and the (a.) It was presented in violation of Article 63 of the Rules of Court ;
Convention on Asylum, and of American international law in general ; (b) The Court has no jurisdiction to take cognizance of it ;
(c) It has no direct connexion with the Application of the Colombian
II. That Peru, as the territorial State, is bound in the case now before the Court to Government."
give the guarantees necessary for the departure of Haya de la Torre from the
country, with due regard to the inviolability of his person." On behalf of Peru :
"MAY IT PLEASE THE COURT
PERU’S SUBMISSIONS AT THE END OF THE WRITTEN PROCEEDINGS. On To set aside submissions I and II of the Colombian Memorial.
behalf of Peru (submissions contained in the Rejoinder) : To set aside the submissions which were presented by the Agent of the
Colombian Government at the end of his oral statement on October 6th, 1950, in
"MAY IT PLEASE THE COURT regard to the counter-claim of the Government of Peru, and which were repeated
To set aside the submissions of Colombia; in his letter of October 7th, 1950.
TO ADJUDGE AND DECLARE TO ADJUDGE AND DECLARE,
As a counter-claim, under Article 63 of RoC, and in the same decision, that the As a counter-claim, under Article 63 of the Rules of Court and in the same
grant of asylum by the Colombian Ambassador at Lima to Haya de la Torre was decision, that the grant of asylum by the Colombian Ambassador at Lima to Victor
made in violation of Article 1, paragraph 1, and Article 2, paragraph 2, item I Raul Haya de la Torre was made in violation of Article 1, paragraph 1, and of
(inciso primera), of the Convention on Asylum." Article 2, paragraph 2, item I (inciso primera), of the Convention on Asylum signed
in 1928, and that in any case the maintenance of the asylum constitutes at the
ADDITION TO THE SUBMISSION IN THE PLEADINGS MADE BY PERU’S present time a violation of that treaty."
AGENT; FINAL SUBMISSIONS OF PARTIES. At the end of the oral statements,
the Agent for Peru having made an addition to the submissions in the Pleadings, BACKTRACK: MILITARY REBELLION BREAKS OUT IN PERU IN 1948. On
the following final submissions were presented to the Court orally and confirmed October 3rd, 1948, a military rebellion broke out in Peru. It was suppressed on the
in writing: same day and investigations were at once opened.

On behalf of Colombia AMERICAN PEOPLE’S REVOLUTIONARY ALLIANCE CHARGED. On October


(on the claim) 4th, the President of the Republic issued a decree in the recitals of which a
T0 ADJUDGE AND DECLARE : political party, the American People's Revolutionary Alliance, was charged with
having organized and directed the rebellion. The decree consequently enacted
I.-That Colombia, as the country granting asylum, is competent to qualify the that this party had placed itself outside the law, that it would henceforth not be
offence for the purpose of the said asylum, within the limits of the obligations permitted to exercise any kind of activity, and that its leaders would be brought to
resulting in particular from the Bolivarian Agreement on Extradition, and the justice in the national courts as instigators of the rebellion. Simultaneously, the
Havana Convention on Asylum, and of American international law in general; head of the Judicial Department of the Navy issued an order requiring the
Examining Magistrate to open at once an enquiry as to the facts constituting the
crime of military rebellion.

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HAYA DE LA TORRE DENOUNCED. On October 5th, the Minister of the Interior
addressed to the Minister for the Navy a "note of denunciation" against the leader In view of the foregoing, and in view of the desire of this Embassy that
of the American People's Revolutionary Alliance, Victor Raul Haya de la Torre, Sr. Haya de la Torre should leave Peru as early as possible, I request
and other members of the party as responsible for the rebellion. This denunciation Your Excellency to be good enough to give orders for the requisite safe-
was approved on the same day by the Minister for the Navy and on October 10th conduct to be issued, so that Sr. Haya de la Torre may leave the country
by the Public Prosecutor, who stated that the subject-matter of the proceedings with the usual facilities attaching to the right of diplomatic asylum."
was the crime of military rebellion.
On January 14th, the Ambassador sent to the Minister a further note as follows :
HAYA DE LA TORRE, ET AL. TRIED. On October 11th, the Examining
Magistrate issued an order for the opening of judicial proceedings against Haya "Pursuant to instructions received from the Chancellery of my country, I
de la Torre and others "in respect of the crime of military rebellion with which they have the honour to inform Your Excellency that the Government of
are charged in the 'denunciation' ", and on October 25th he ordered the arrest of Colombia, in accordance with the right conferred upon it by Article 2 of
the persons "denounced" who had not yet been detained. the Convention on Political Asylum has qualified Sr. Victor Raul Haya de
la Torre as a political refugee."
COUP D’ETAT. On October 27th, a Military Junta made a coup d'état and seized
the supreme power. This Military Junta of the Govèrnment issued on November A diplomatic correspondence followed, leading up to the Act of Lima of August
4th a decree providing for Courts-Martial for summary procedure in cases of 31st, 1949, whereby the dispute which had arisen between the two Governments
rebellion, sedition and rioting, fixing short time-limits and severe punishment was referred to the Court.
without appeal. This decree was not applied to the judicial proceedings against
Haya de la Torre and others. These proceedings continued under the same COLUMBIA’S SUBMISSION TO BE DECLARED COMPETENT TO GRANT
jurisdiction as theretofore. This is shown by a note of November 8th from the ASYLUM. The Colombian Government has presented two submissions, of which
Examining Magistrate requesting the production of certain documents, by a note the first asks the Court to adjudge and declare
of November 13th from the Head of the Investigation and Surveillance Service to
the Examining Magistrate stating that Haya de la Torre and others were not "That the Republic of Colombia, as the country granting asylum, is
arrested as they could not be found, and by an Order by the Examining Magistrate competent to qualify the offence for the purpose of the said asylum,
of the same date requiring the defaulters to be cited by public summons. On within the limits of the obligations resulting in particular from the
November 16th and the two subsequent days, the summons was published in the Bolivarian Agreement on Extradition, and the Convention on Asylum, and
official gazette El Peruano, requiring "the accused persons who are in default" of American international law in general."
-Haya de la Torre and others-to report to the office of the Examining Magistrate to
answer the accusation brought against them "for the crime of military rebellion". COURT’S TAKE ON COLUMBIA’S SUBMISSION. If the Colombian Government
Haya de la Torre did not report, and the facts brought to the knowledge of the by this submission intended to allege that Colombia, as the State granting asylum,
Court do not show that any further measures were taken against him. is competent to qualify the offence only provisionally and without binding effect for
Peru, the solution would not remain a matter of doubt. It is evident that the
STATE OF SIEGE DECLARED. On October 4th, the day after the military diplomatic representative who has to determine whether a refugee is to be
rebellion, a state of siege was declared, suspending certain constitutional rights ; granted asylum or not must have the competence to make such a provisional
it was renewed on November 2nd and December 2nd, 1948, and on January 2 nd, qualification of any offence alleged to have been committed by the refugee. He
1949. must in fact examine the question whether the conditions required for granting
asylum are fulfilled. The territorial State would not thereby be deprived of its right
HAYA DE LA TORRE SEEKS ASYLUM IN COLUMBIA; GRANTED BY to contest the qualification. In case of disagreement between the two States, a
COLUMBIAN AMBASSADOR. On January 3rd, 1949, Haya de la Torre sought dispute would arise which might be settled by the methods provided by the Parties
asylum in the Colombian Embassy in Lima. On the next day, the Colombian for the settlement of their disputes.
Ambassador sent the following note to the Peruvian Minister for Foreign Affairs
and Public Worship : This is not, however, the meaning which the Colombian Government has put on
its submission. It has not claimed the right of qualification for the sole purpose of
"I have the honour to inform Your Excellency, in accordance with what is determining its own conduct. The written and oral arguments submitted on behalf
provided in Article 2, paragraph 2, of the Convention on Asylum signed of that Government show that its claim must be understood in the sense that
by Our two countries in the city of Havana in the year 1928, that Señor Colombia, as the State granting asylum, is competent to qualify the nature of the
Victor Raul Haya de la Torre has been given asylum at the seat of this offence by a unilateral and definitive decision binding on Peru. Colombia has
mission as from 9 p.m. yesterday.
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based this submission partly on rules resulting from agreement, partly on an competence is implied in that Convention and is inherent in the institution of
alleged custom. asylum.

COURT LOOKS INTO THE AGREEMENTS REFERRED TO BY COLUMBIA. A competence of this kind is of an exceptional character. It involves a derogation
from the equal rights of qualification which, in the absence of any contrary rule,
(a) Bolivarian Agreement of 1911 must be attributed to each of the States concerned; it thus aggravates the
The Colombian Government has referred to the Bolivarian Agreement of 1911, derogation from territorial sovereignty constituted by the exercise of asylum. Such
Article 18: a competence is not inherent in the institution of diplomatic asylum. This institution
would perhaps be more effective if a rule of unilateral and definitive qualification
"Aside from the stipulations of the present Agreement, the signatory were applied. But such a rule is not essential to the exercise of asylum.
States recognize the institution of asylum in conformity with the principles
of international law." These considerations show that the alleged right of unilateral and definitive
qualification cannot be regarded as recognized by implication in the Havana
In recognizing "the institution of asylum", this article merely refers to the principles Convention. Moreover, this Convention, in pursuance of the desire expressed in
of international law. But the principles of international law do not recognize any its preamble of "fixing the rules" which the Governments of the States of America
rule of unilateral and definitive qualification by the State granting diplomatic must observe for the granting of asylum, was concluded with the manifest
asylum. intention of preventing the abuses which had arisen in the previous practice, by
limiting the grant of asylum. It did so in a number of ways and in terms which are
The Colombian Government has also relied on Article 4 of this Agreement unusually restrictive and emphatic ("It is not permissible for States...." ; "Asylum
concerning extradition of a criminal refugee from the territory of the State in which may not be granted except in urgent cases and for the period of time strictly
he has sought refuge. The arguments submitted in this respect reveal a confusion indispensable....", etc.).
between territorial asylum (extradition), on the one hand, and diplomatic asylum,
on the other. The Colombian Government has invoked Article 2, paragraph 1, of the Havana
Convention, which is framed in the following terms :
In the case of extradition, the refugee is within the territory of the State of refuge.
A decision with regard to extradition implies only the normal exercise of the "Asylum granted to political offenders in legations, warships, military
territorial sovereignty. The refugee is outside the territory of the State where the camps or military aircraft, shall be respected to the extent in which
offence was committed, and a decision to grant him asylum in no way derogates allowed as a right or through humanitarian toleration, by the usages, the
from the sovereignty of that State. conventions or the laws of the country in which granted and in
accordance with the following provisions :"
In the case of diplomatic asylum, the refugee is within the territory of the State
where the offence was committed. A decision to grant diplomatic asylum involves This provision has been interpreted by that Government in the sense that the
a derogation from the sovereignty of that State. It withdraws the offender from the usages, conventions and laws of Colombia relating to the qualification of the
jurisdiction of the territorial State and constitutes an intervention in matters which offence can be invoked against Peru. This interpretation, which would mean that
are exclusively within the competence of that State. Such a derogation from the extent of the obligation of one of the signatory States would depend upon any
territorial sovereignty cannot be recognized unless its legal basis is established in modifications which might occur in the law of another, cannot be accepted. The
each particular case. provision must be regarded as a limitation of the extent to which asylum shall be
respected. What the provision says in effect is that the State of refuge shall not
For these reasons, it is not possible to deduce from the provisions of agreements exercise asylum to a larger extent than is warranted by its own usages,
concerning extradition any conclusion which would apply to the question now conventions or laws and that the asylum granted must be respected by the
under consideration. territorial State only where such asylum would be permitted according to the
usages, conventions or laws of the State of refuge. Nothing therefore can be
(b) Havana Convention on Asylum deduced from this provision in so far as qualification is concerned.

The Colombian Government further relies on the Havana Convention on Asylum (c) Montevideo Convention On Political Asylum
of 1928. This Convention lays down certain rules relating to diplomatic asylum,
but does not contain any provision conferring on the State granting asylum a The Colombian Government has further referred to the Montevideo Convention on
unilateral competence to qualify the offence with definitive and binding force for Political Asylum of 1933. It was in fact this Convention which was invoked in the
the territorial State. The Colombian Government contends, however, that such a note of January 14th, 1949, from the Colombian Ambassador to the Peruvian
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Minister for Foreign Affairs. It is argued that, by Article 2 of that Convention, the (e) previous diplomatic asylum cases granted and respected
Havana Convention of 1928 is interpreted in the sense that the qualification of a
political offence appertains to the State granting asylum. Articles 6 and 7 of the Finally, the Colombian Government has referred to a large number of particular
Montevideo Convention provide that it shall be ratified and will enter into force as cases in which diplomatic asylum was in fact granted and respected. But it has
and when the ratifications are deposited. The Montevideo Convention has not not shown that the alleged rule of unilateral and definitive qualification was
been ratified by Peru, and cannot be invoked against that State. The fact that it invoked or -- if in some cases it was in fact invoked -- that it was, apart from
was considered necessary to incorporate in that Convention an article accepting conventional stipulations, exercised by the States granting asylum as a right
the right of unilateral qualification, seems to indicate that this solution was appertaining to them and respected by the territorial States as a duty incumbent
regarded as a new rule not recognized by the Havana Convention. Moreover, the on them and not merely for reasons of political expediency. The facts brought to
preamble of the Montevideo Convention states in its Spanish, French and the knowledge of the Court disclose so much uncertainty and contradiction, so
Portuguese texts that it modifies the Havana Convention. It cannot therefore be much fluctuation and discrepancy in the exercise of diplomatic asylum and in the
considered as representing merely an interpretation of that Convention. official views expressed on various occasions, there has been so much
inconsistency in the rapid succession of conventions on asylum, ratified by some
(d) American international law in general States and rejected by others, and the practice has been so much influenced by
considerations of political expediency in the various cases, that it is not possible to
The Colombian Government has finally invoked "American international law in discern in all this any constant and uniform usage, accepted as law, with regard to
general". In addition to the rules arising from agreements which have already the alleged rule of unilateral and definitive qualification of the offence.
been considered, it has relied on an alleged regional or local custom peculiar to
Latin-American States. The Court cannot therefore find that the Colombian Government has proved the
existence of such a custom. But even if it could be supposed that such a custom
The Party which relies on a custom of this kind must prove that this custom is existed between certain Latin-American States only, it could not be invoked
established in such a manner that it has become binding on the other Party. The against Peru which, far from having by its attitude adhered to it, has, on the
Colombian Government must prove that the rule invoked by it is in accordance contrary, repudiated it by refraining from ratifying the Montevideo Conventions of
with a constant and uniform usage practised by the States in question, and that 1933 and 1939, which were the first to include a rule concerning the qualification
this usage is the expression of a right appertaining to the State granting asylum of the offence in matters of diplomatic asylum.
and a duty incumbent on the territorial State. This follows from Article 38 of the
Statute of the Court, which refers to international custom “as evidence of a GOVERNMENT DOCUMENTS, USED BY BOTH PARTIES, SHOWED VIEWS
general practice accepted as law.” RE QUALIFICATION DIFFERENT FROM THEIR RESPECTIVE PLEADINGS
AND ORAL PROCEEDINGS. In the written Pleadings and during the oral
In support of its contention concerning the existence of such a custom, the proceedings, the Government of Colombia relied upon official communiqués
Colombian Government has referred to a large number of extradition treaties published by the Peruvian Ministry of Foreign Affairs on October 13 th and 26th,
which, as already explained, can have no bearing on the question now under 1948, and the Government of Peru relied upon a Report of the Advisory
consideration. It has cited conventions and agreements which do not contain any Committee of the Ministry of Foreign Affairs of Colombia dated September 2nd,
provision concerning the alleged rule of unilateral and definitive qualification such 1937 ; on the question of qualification, these documents state views which are
as the Montevideo Convention of 1889 on international penal law, the Bolivarian contrary to those now maintained by these Governments. The Court, whose duty
Agreement of 1911 and the Havana Convention of 1928. It has invoked it is to apply international law in deciding the present case, cannot attach decisive
conventions which have not been ratified by Peru, such as the Montevideo importance to any of these documents. For these reasons, the Court has arrived
Conventions of 1933 and 1939. The Convention of 1933 have, in fact, been at the conclusion that Colombia, as the State granting asylum, is not competent to
ratified by not more than eleven States and the Convention of 1939 by two States qualify the offence by a unilateral and definitive decision, binding on Peru.
only.
COLUMBIA’S SECOND SUBMISSION; COURT DISCUSSION RE REQUEST
It is particularly the Montevideo Convention of 1933 which Counsel for the FOR SAFE CONDUCT. In its second submission, the Colombian Government
Colombian Government has also relied on in this connexion. It is contended that asks the Court to adjudge and declare :
this Convention has merely codified principles which were already recognized by
Latin-American custom, and that it is valid against Peru as a proof of customary "That the Republic of Peru, as the territorial State, is bound in the case
law. The limited number of States which have ratified this Convention reveals the now before the Court, to give the guarantees necessary for the departure
weakness of this argument, and furthermore, it is invalidated by the preamble of M. Victor Raul Haya de la Torre from the country, with due regard to
which states that this Convention modifies the Havana Convention. the inviolability of his person."

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This alleged obligation of the Peruvian Government does not entirely depend on In the present case, the Peruvian Government has not requested that Haya de la
the answer given to the first Colombian submission relating to the unilateral and Torre should leave Peru. It has contested the legality of the asylum granted to him
definitive qualification of the offence. It follows from the first two articles of the and has refused to deliver a safe-conduct. In such circumstances the Colombian
Havana Convention that, even if such a right of qualification is not admitted, the Government is not entitled to claim that the Peruvian Government should give the
Colombian Government is entitled to request a safe-conduct under certain guarantees necessary for the departure of Haya de la Torre from the country, with
conditions. due regard to the inviolability of his person.

The first condition is that asylum has been regularly granted and maintained. It PERU’S COUNTERCLAIM. The counter-claim of the Government of Peru was
can be granted only to political offenders who are not accused or condemned for stated in its final form during the oral statement of October 3rd, 1950, in the
common crimes and only in urgent cases and for the time strictly indispensable for following terms :
the safety of the refugee. These points relate to the Peruvian counterclaim and
will be considered later to the extent necessary for the decision of the present “MAY IT PLEASE THE COURT:
case. To adjudge and declare as a counter-claim under Article 63 of the Rules
of Court, and in the same decision, that the grant of asylum by the
The second condition is laid down in Article 2 of the Havana Convention : Colombian Ambassador at Lima to Victor Raul Haya de la Torre was
made in violation of Article 1, paragraph 1, and Article 2, paragraph 2,
"Third: The Government of the State may require that the refugee be item I (inciso primera), of the Convention on Asylum signed in 1928, and
sent out of the national territory within the shortest time possible ; and that in any case the maintenance of the asylum constitutes at the present
the diplomatic agent of the country who has granted asylum may in turn time a violation of that treaty."
require the guarantees necessary for the departure of the refugee from
the country with due regard to the inviolability of his person." As has already been pointed out, the last part of this sentence : "and that in any
case the maintenance of the asylum constitutes at the present time a violation of
If regard is had, on the one hand, to the structure of this provision which indicates that treaty", did not appear in the counter-claim presented by the Government of
a successive order, and, on the other hand, to the natural and ordinary meaning Peru in the Counter-Memorial. The addition was only made during the oral
of the words "in turn", this provision can only mean that the territorial State may proceedings. The Court will first consider the counter-claim in its original form.
require that the refugee be sent out of the country, and that only after such a
demand can the State granting asylum require the necessary guarantees as a COURT FIRST CONSIDERS PERU’S COUNTERCLAIM IN ITS ORIGINAL
condition of his being sent out. The provision gives, in other words, the territorial FORM. This counter-claim is intended, in substance, to put an end to the dispute
State an option to require the departure of the refugee, and that State becomes by requesting the Court to declare that asylum was wrongfully given, the grant of
bound to grant a safe-conduct only if it has exercised this option. asylum being contrary to certain provisions of the Havana Convention. The object
of the counter-claim is simply to define for this purpose the legal relations which
A contrary interpretation would lead, in the case now before the Court, to the that Convention has established between Colombia and Peru. The Court
conclusion that Colombia would be entitled to decide alone whether the conditions observes in this connexion that the question of the possible surrender of the
provided by Articles I and 2 of the Convention for the regularity of asylum are refugee to the territorial authorities is in no way raised in the counter-claim. It
fulfilled. Such a consequence obviously would be incompatible with the legal points out that the Havana Convention, which provides for the surrender to those
situation created by the Convention. authorities of persons accused of or condemned for common crimes, contains no
similar provision in respect of political offenders. The Court notes, finally, that this
There exists undoubtedly a practice whereby the diplomatic representative who question was not raised either in the diplomatic correspondence submitted by the
grants asylum immediately requests a safe conduct without awaiting a request Parties or at any moment in the proceedings before the Court, and in fact the
from the territorial State for the departure of the refugee. This procedure meets Government of Peru has not requested that the refugee should be surrendered.
certain requirements : the diplomatic agent is naturally desirous that the presence
of the refugee on his premises should not be prolonged ; and the government of COURT, ON COLUMBIA’S ARGUMENT THAT PERU’S COUNTERCLAIM IS
the country, for its part, desires in a great number of cases that its political NOT DIRECTLY CONNECTED WITH THE SUBJECT-MATTER OF ITS
opponent who has obtained asylum should depart. This concordance of views APPLICATION. It results from the final submissions of the Government of
suffices to explain the practice which has been noted in this connexion, but this Colombia, as formulated before the Court on October 6th, 1950, that that
practice does not and cannot mean that the State, to whom such a request for a Government did not contest the jurisdiction of the Court in respect of the original
safe-conduct has been addressed, is legally bound to accede to it. counter-claim ; it did so only in respect of the addition made during the oral
proceedings. On the other hand, relying upon Article 63 of the Rules of Court, the
Government of Colombia has disputed the admissibility of the counter-claim by
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arguing that it is not directly connected with the subject-matter of the Application. On the other hand, the Court considers that the Government of Peru has not
In its view, this lack of connexion results from the fact that the counter-claim proved that the acts of which the refugee was accused before January 3rd/4th,
raises new problems and thus tends to shift the grounds of the dispute. 1949, constitute common crimes. From the point of view of the application of the
Havana Convention, it is the terms of the accusation, as formulated by the legal
The Court is unable to accept this view. It emerges clearly from the arguments of authorities before the grant of asylum, that must alone be considered. As has
the Parties that the second submission of the Government of Colombia, which been shown in the recital of the facts, the sole accusation contained in all the
concerns the demand for a safe conduct, rests largely on the alleged regularity of documents emanating from the Peruvian legal authorities is that of military
the asylum, which is precisely what is disputed by the counter-claim. The rebellion, and the Government of Peru has not established that military rebellion in
connexion is so direct that certain conditions which are required to exist before a itself constitutes a common crime. Article 248 of the Peruvian Code of Military
safe-conduct can be demanded depend precisely on facts which are raised by the Justice of 1939 even tends to prove the contrary, for it makes a distinction
counter-claim. The direct connexion being thus clearly established, the sole between military rebellion and common crimes by providing that : "Common
objection to the admissibility of the counter-claim in its original form is therefore crimes committed during the course of, and in connexion with, a rebellion, shall be
removed. punishable in conformity with the laws, irrespective of the rebellion."

“GRANT OF ASYLUM”. Before examining the question whether the counter- These considerations lead to the conclusion that the first objection made by the
claim is well founded, the Court must state in precise terms what meaning it Government of Peru against the asylum is not justified and that on this point the
attaches to the words "the grant of asylum" which are used therein. The grant of counter-claim is not well founded and must be dismissed.
asylum is not an instantaneous act which terminates with the admission, at a
given moment, of a refugee to an embassy or a legation. Any grant of asylum COURT, ON THE HAVANA CONVENTION. The Government of Peru relies, as a
results in, and in consequence logically implies, a state of protection ; the asylum second basis for its counterclaim, upon the alleged disregard of Article 2,
is granted as long as the continued presence of the refugee in the embassy paragraph 2, of the Havana Convention, which provides as follows : "Asylum may
prolongs this protection. This view, which results from the very nature of the not be granted except in urgent cases and for the period of time strictly
institution of asylum, is further confirmed by the attitude of the Parties during this indispensable for the person who has sought asylum to ensure in some other way
case. The counter-claim, as it appears in the Counter-Memorial of the his safety."
Government of Peru, refers expressly to Article 2, paragraph 2, of the Havana
Convention, which provides that asylum may not be granted except "for the period Before proceeding to an examination of this provision, the Court considers it
of time strictly indispensable". Such has also been the view of the Government of necessary to make the following remark concerning the Havana Convention in
Colombia ; its Reply shows that, in its opinion, as in that of the Government of general and Article 2 in particular.
Peru, the reference to the abovementioned provision of the Havana Convention
raises the question of "the duration of the refuge". The object of the Havana Convention, which is the only agreement relevant to the
present case, was, as indicated in its preamble, to fix the rules which the signatory
The Government of Peru has based its counter-claim on two different grounds States must observe for the granting of asylum in their mutual relations. The
which correspond respectively to Article 1, paragraph 1, and Article 2, paragraph intention was, as has been stated above, to put an end to the abuses which had
2, of the Havana Convention. arisen in the practice of asylum and which were likely to impair its credit and
usefulness. This is borne out by the wording of Articles I and 2 of the Convention
Under Article 1, paragraph 1, "It is not permissible for States to grant asylum .... to which is at times prohibitive and at times clearly restrictive.
persons accused or condemned for common crimes....". The onus of proving that
Haya de la Torre had been accused or condemned for common crimes before the Article 2 refers to asylum granted to political offenders and lays down in precise
grant of asylum rested upon Peru. terms the conditions under which asylum granted to such offenders shall be
respected by the territorial State. It is worthy of note that all these conditions are
The Court has no difficulty in finding, in the present case, that the refugee was an designed to give guarantees to the territorial State and appear, in the final
"accused person" within the meaning of the Havana Convention, inasmuch as the analysis, as the consideration for the obligation which that State assumes to
evidence presented by the Government of Peru appears conclusive in this respect asylum, that is, to accept its principle and its consequences as long as it
connexion. It can hardly be agreed that the term "accused" occurring in a is regularly maintained.
multilateral treaty such as that of Havana has a precise and technical connotation,
which would have the effect of subordinating the definition of "accused" to the At the head of the list of these conditions appears Article 2, paragraph 2, quoted
completion of certain strictly prescribed steps in procedure, which might differ above. It is certainly the most important of them, the essential justification for
from one legal system to another. asylum being in the imminence or persistence of a danger for the person of the

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refugee. It was incumbent upon the Government of Colombia to submit proof of
facts to show that the above-mentioned condition was fulfilled. In principle, it is inconceivable that the Havana Convention could have intended
the term "urgent cases" to include the danger of regular prosecution to which the
IMMINENCE OR PERSISTENCE OF DANGER SHOULE BE PROVED BY citizens of any country lay themselves open by attacking the institutions of that
COLUMBIA. It his not been disputed by the Parties that asylum may be granted country ; nor can it be admitted that in referring to "the period of time strictly
on humanitarian grounds in order to protect political offenders against the violent indispensable for the person who has sought asylum to ensure in some other way
and disorderly action of irresponsible sections of the population. It has not been his safety", the Convention envisaged protection from the operation of regular
contended by the Government of Colombia that Haya de la Torre was in such a legal proceedings.
situation at the time when he sought refuge in the Colombian Embassy at Lima. At
that time, three months had elapsed since the military rebellion. This long interval It would be useless to seek an argument to the contrary in Article I of the Havana
gives the present case a very special character. During those three months, Haya Convention which forbids the grant of asylum to persons "accused or condemned
de la Torre had apparently been in hiding in the country, refusing to obey the for common crimes" and directs that such persons shall be surrendered
summons to appear of the legal authorities which was published on November immediately upon request of the local government. It is not possible to infer from
16th/18th, 1948, and refraining from seeking asylum in the foreign embassies that provision that, because a person is accused of political offences and not of
where several of his co-accused had found refuge beforé these dates. It was only common crimes, he is, by that fact alone, entitled to asylum. It is clear that such
on January 3rd, 1949, that he sought refuge in the Colombian Embassy. The an inference would disregard the requirements laid down by Article 2, paragraph
Court considers that, prima facie, such circumstances make it difficult to speak of 2, for the grant of asylum to political offenders.
urgency.
ASYLUM CANNOT BE OPPOSED TO THE OPERATION OF JUSTICE,
The diplomatic correspondence between the two Governments does not indicate EXCEPT WHEN ARBITRARY ACTION SUBS RULE OF LAW; LATIN AMERICA
the nature of the danger which was alleged to threaten the refugee. Likewise, the STRONGLY ADHERES TO NON-INTERVENTION. In principle, therefore, asylum
Memorial of the Government of Colombia confines itself to stating that the refugee cannot be opposed to the operation of justice. An exception to this rule can occur
begged the Ambassador to grant him the diplomatic protection of asylum as his only if, in the guise of justice, arbitrary action is substituted for the rule of law.
freedom and life were in jeopardy. It is only in the written Reply that the Such would be the case if the administration of justice were corrupted by
Government of Colombia described in more precise terms the nature of the measures clearly prompted by political aims. Asylum protects the political offender
danger against which the refugee intended to request the protection of the against any measures of a manifestly extra-legal character which a government
Ambassador. It was then claimed that this danger resulted in particular from the might take or attempt to take against its political opponents. The word "safety",
abnormal political situation existing in Peru, following the state of siege which in Article 2, paragraph 2, determines the specific effect of asylum granted to
proclaimed on October 4th, 1948, and renewed successively on November 2nd, political offenders, means that the refugee is protected against arbitrary action by
December 2nd, 1948, and January 2nd, 1949 ; that it further resulted from the the government, and that he enjoys the benefits of the law. On the other hand, the
declaration of "a state of national crisis" made on October 25th, 1938, containing safety which arises out of asylum cannot be construed as a protection against the
various statements against the Arnerican People's Revolutionary Alliance of which regular application of the laws and against the jurisdiction of legally constituted
the refugee was the head; from the outlawing of this Party by the decree of tribunals. Protection thus understood would authorize the diplomatic agent to
October 4th, 1948 ; from the Order issued by the acting Examining Magistrate for obstruct the application of the laws of the country whereas it is his duty to respect
the Navy on November 13th, 1948, requiring the defaulters to be cited by public them ; it would in fact become the equivalent of an immunity, which was evidently
summons ; from the decree of November 4th, 1948, providing for Courts-Martial to not within the intentions of the draftsmen of the Havana Convention.
judge summarily, with the option of increasing the penalties and without appeal,
the authors, accomplices and others responsible for the offences of rebellion, It is true that successive decrees promulgated by the Government of Peru
sedition or mutiny. proclaimed and prolonged a state of siege in that country ; but it has not been
shown that the existence of a state of siege implied the subordination of justice to
From these facts regarded as a whole the nature of the danger now becomes the executive authority, or that the suspension of certain constitutional guarantees
clear, and it is upon the urgent character of such a danger that the Government of entailed the abolition of judicial guarantees. As for the decree of November 4th,
Colombia seeks to justify the asylum-the danger of political justice by reason of 1948, providing for Courts-Martial, it contained no indication which might be taken
the subordination of the Peruvian judicial authorities to the instructions of the to mean that the new provisions would apply retroactively to offences committed
Executive. prior to the publication of the said decree. In fact, this decree was not applied to
the legal proceedings against Haya de la Torre, as appears from the foregoing
TO WHAT EXTENT THE DANGER SHOULD BE TO SERVE AS BASIS OF recital of the facts. As regards the future, the Court places on record the following
ASYLUM. It is therefore necessary to examine whether, and, if so, to what extent, declaration made on behalf of the Peruvian Government :
a danger of this kind can serve as a basis for asylum.
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"The decree in question is dated November 4th, 1948, that is, it was particularly offensive nature in the domestic affairs of States ; besides which, no
enacted one month after the events which led to the institution of confirmation of this criterion can be found in Latin-American practice, as this
proceedings against Haya de la Torre. This decree was intended to practice has been explained to the Court.
apply to crimes occurring after its publication, and nobody in Peru would
ever have dreamed of utilizing it in the case to which the Colombian COURT OBSERVATION ON NUMEROUS AYLUM CASES. In thus expressing
Government clumsily refers, since the principle that laws have no itself, the Court does not lose sight of the numerous cases of asylum which have
retroactive effect, especially in penal matters, is broadly admitted in that been cited in the Reply of the Government of Colombia and during the oral
decree. If the Colombian Government's statement on this point were statements.
true, the Peruvian Goverilment would never have referred this case to
the International Court of Justice." In this connexion, the following observations should be made :

This declaration, which appears in the Rejoinder, was confirmed by the Agent for In the absence of precise data, it is difficult to assess the value of such cases as
the Government of Peru in his oral statement of October 2nd, 1950. precedents tending to establish the existence of a legal obligation upon a
territorial State to recognize the validity of asylum which has been granted against
The Court cannot admit that the States signatory to the Havana Convention proceedings instituted by local judicial authorities. The facts which have been laid
intended to substitute for the practice of the Latin-American republics, in which before the Court show that in a number of cases the persons who have enjoyed
considerations of courtesy, goodneighbourliness and political expediency have asylum were not, at the moment at which asylum was granted, the object of any
always held a prominent place, a legal system which would guarantee to their own accusation on the part of the judicial authorities. In a more general way,
nationals accused of political offences the privilege of evading national considerations of convenience or simple political expediency seem to have led the
jurisdiction. Such a conception, moreover, would come into conflict with one of the territorial State to recognize asylum without that decision being dictated by any
most firmly established traditions of Latin America, namely, non-intervention. It feeling of legal obligation.
was at the Sixth Pan-American Conference of 1928, during which the Convention
on Asylum was signed, that the States of Latin America declared their resolute If these remarks tend to reduce considerably the value as precedents of the cases
opposition to any foreign political intervention. It would be difficult to conceive that of asylum cited by the Government of Colombia, they show, none the less, that
these same States had consented, at the very same moment, to submit to asylum as practiced in Latin America is an institution which, to a very great extent,
intervention in its least acceptable form, one which implies foreign interference in owes its development to extra-legal factors. The good-neighbour relations
the administration of domestic justice and which could not manifest itself without between the republics, the different political interests of the governments, have
casting some doubt on the impartiality of that justice. favoured the mutual recognition of asylum apart from any clearly defined juridical
system. Even if the Havana Convention, in particular, represents an indisputable
Indeed the diplomatic correspondence between the two Governments shows the reaction against certain abuses in practice, it in no way tends to limit the practice
constant anxiety of Colombia to remain, in this field as elsewhere, faithful to the of asylum as it may arise from agreements between interested governments
tradition of non-intervention. Colombia did not depart from this attitude, even when inspired by mutual feelings of toleration and goodwill.
she found herself confronted with an emphatic declaration by the Peruvian
Minister for Foreign Affairs asserting that the tribunal before which Haya de la CONCLUSION. In conclusion, on the basis of the foregoing observations and
Torre had been summoned to appear was in conformity with the general and considerations, the Court considers that on January 3rd/4th, 1949, there did not
permanent organization of Peruvian judicial administration and under the control exist a danger constituting a case of urgency within the meaning of Article 2,
of the Supreme Court. This assertion met with no contradiction or reservation on paragraph 2, of the Havana Convention. This finding implies no criticism of the
the part of Colombia. It was only much later, following the presentation of the Ambassador of Colombia. His decision to receive the refugee on the evening of
Peruvian counter-claim, that the Government of Colombia chose, in the Reply January 3rd, 1949, may have been taken without the opportunity of lengthy
-and during the oral proceedings, to transfer the defence of asylum to a plane on reflection ; it may have been influenced as much by the previous grant of safe-
which the Havana Convention, interpreted in the light of the most firmly conducts to persons accused together with Haya de la Torre as by the more
established traditions of Latin America, could provide it with no foundation. general consideration of recent events in Peru ; these events may have led him to
believe in the existence of urgency. But this subjective appreciation is not the
The foregoing considerations lead us to reject the argument that the Havana relevant element in the decision which the Court is called upon to take concerning
Convention was intended to afford a quite general protection of asylum to any the validitv of the asylum ; the only important question to be considered here is
person prosecuted for political offences, either in the course of revolutionary the objective existence of the facts, and it is this which must determine the
events, or in .the more or less troubled times that follow, for the sole reason that it decision of the Court.
must be assumed that such events interfere with the administration of justice. It is
clear that the adoption of such a criterion would lead to foreign interference of a
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The notes of the Ambassador of Colombia of January 14th and February 12 th, Rejects the second submission ;
1949, reflect the attitude of the Government towards the asylum granted by its on the counter-claim of the Government of Peru,
Ambassador. The first of these confirms the asylum and claims to justify its grant
by a unilateral qualification of the refugee. The second formulates a demand for a by fifteen votes to one,
safeconduct with a view to permitting the departure of the refugee, and has based Rejects it in so far as it is founded on a violation of Arricle 1, paragraph 1, of the
this demand expressly on the "international obligations" alleged to be binding on Convention on Asylum signed at Havana in 1928 ;
the Government of Peru. In thus expressing itself, the Government of Colombia
definitively proclaimed its intention of protecting Haya de la Torre, in spite of the by ten votes to six,
existence of proceedings instituted against him for military rebellion. It has Finds that the grant oi asylum by the Colombian Government to Victor Rahl Haya
maintained this attitude and this protection by continuing to insist on the grant of a de la Torre was not made in conformity with Article 2, paragraph 2 ("First"), of that
safe-conduct, even when the Minister for Foreign Affairs of Peru referred to the Convention.
existence of "a judicial prosecution, instituted by the sovereign power of the State"
against the refugee (notes of the Mïnister for Foreign Affairs of Peru of March 19 th, SEPARATE OPINIONS. Judges ALVAREZ, BADAWI PASHA, READ and
1949; of the Ambassador of Colombia of March 28th, 1949). AZEVEDO and M. CAICEDO, Judge ad hoc, declaring that they are unable to
concur in certain points of the Judgment of the Court, have availed themselves of
Thus, it is clearly apparent from this correspondence that the Court, in its the right conferred on them by Article 57 of the Statute and appended to the
appraisal of the asylum, cannot be confined to the date of January 3rd/4th, 1949, Judgment statements of their dissenting opinions.
as the date on which it was granted. The grant, as has been stated above, is
inseparable from the protection to which it gives rise -a protection which has here Judge ZORICIC, whilst accepting the first three points of the operative part of the
assumed the form of a defence against legal proceedings. It therefore results that Judgment and the reasons given in support, regrets to state that he is unable to
asylum has been granted for as long as the Government of Colombia has relied agree with the last point of the operative part, as he considers that asylum was
upon it in support of its request for a safeconduct. granted in conformity with Article 2, paragraph 2, of the Havana Convention. On
this point he shares the views expressed by Judge Read in his dissenting opinion.
The Court is thus led to find that the grant of asylum from January 3rd/4th, 1949,
until the time when the two Governments agreed to submit the dispute to its
jurisdiction, has been prolonged for a reason which is not recognized by Article 2,
paragraph 2, of the Havana Convention.
“Wala akong sinabi tungkol sa ‘yo. MA-ABILIDAD KA.
You are almost worthy.”
This finding renders superfluous the addition to the counterclaim submitted during
the oral proceedings and worded as follows: "and that in any case the
maintenance of the asylum constitutes at the present time a violation of that
treaty". This part of the submission, as finally worded by the Government of Peru,
was intended as a substitution for the counter-claim in its original form if the latter
were rejected : it disappears with the allowance of this counter-claim. Hence it will
not be necessary for the Court to consider either the objection on the ground of
lack of jurisdiction or the objections on the grounds of inadmissibility which the
Government of Colombia has based on an alleged disregard of Article 63 of the
Rules of Court or to consider the merits of the claim thus submitted by the
Government of Peru.

FOR THESE REASONS, THE COURT, on the submissions of the Government of


Colombia,

by fourteen votes to two,


Rejects the first submission in so far as it involves a right for Colombia, as the
country granting asylum, to qualify the nature of the offence by a unilateral and
definitive decision, binding on Peru ;

by fifteen votes to one,


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