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conflict, together with any specific treaties on nuclear
By a letter dated 19 December 1994, filed in the
Registry on 6 January 1995, the Secretary-General of
the United Nations officially communicated to the
Registry a decision taken by the General Assembly,
by its resolution 49/75 K adopted on 15 December
1994, to submit to the Court, for advisory opinion, the
following question : “Is the threat or use of nuclear
weapons in any circumstance permitted under
international law ?” The resolution asked the Court to
render its advisory opinion “urgently”. Written
statements were filed by 28 States, and subsequently
written observations on those statements were
presented by two States. In the course of the oral
proceedings, which took place in October and
November 1995, 22 States presented oral statements.
On 8 July 1996, the Court rendered its Advisory
Opinion. Having concluded that it had jurisdiction to
render an opinion on the question put to it and that
there was no compelling reason to exercise its
discretion not to render an opinion, the Court found
that the most directly relevant applicable law was that
relating to the use of force, as enshrined in the United
Nations Charter, and the law applicable in armed
weapons that the Court might find relevant.
The Court then considered the question of the legality
or illegality of the use of nuclear weapons in the light
of the provisions of the Charter relating to the threat
or use of force. It observed, inter alia, that those
provisions applied to any use of force, regardless of
the weapons employed. In addition it stated that the
principle of proportionality might not in itself exclude
the use of nuclear weapons in self-defence in all
circumstances. However at the same time, a use of
force that was proportionate under the law of self-
defence had, in order to be lawful, to meet the
requirements of the law applicable in armed conflict,
including, in particular, the principles and rules of
humanitarian law. It pointed out that the notions of a
“threat” and “use” of force within the meaning of
Article 2, paragraph 4, of the Charter stood together in
the sense that if the use of force itself in a given case
was illegal — for whatever reason — the threat to use
such force would likewise be illegal.
The Court then turned to the law applicable in
situations of armed conflict. From a consideration of
customary and conventional law, it concluded that the
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use of nuclear weapons could not be seen as
specifically prohibited on the basis of that law, nor did
it find any specific prohibition of the use of nuclear
weapons in the treaties that expressly prohibited the
use of certain weapons of mass destruction. The Court
then turned to an examination of customary
international law to determine whether a prohibition
of the threat or use of nuclear weapons as such flowed
from that source of law. Noting that the members of
the international community were profoundly divided
on the matter of whether non-recourse to nuclear
weapons over the past 50 years constituted the
expression of an opinio juris, it did not consider itself
able to find that there was such an opinio juris. The
emergence, as lex lata, of a customary rule
specifically prohibiting the use of nuclear weapons as
such was hampered by the continuing tensions
between the nascent opinio juris on the one hand, and
the still strong adherence to the doctrine of deterrence
on the other. The Court then dealt with the question
whether recourse to nuclear weapons ought to be
considered as illegal in the light of the principles and
rules of international humanitarian law applicable in
armed conflict and of the law of neutrality. It laid
emphasis on two cardinal principles : (a) the first
being aimed at the distinction between combatants
and non-combatants ; States must never make
civilians the object of attack and must consequently
never use weapons that are incapable of distinguishing
between civilian and military targets
while (b) according to the second of those principles,
unnecessary suffering should not be caused to
combatants. It follows that States do not have
unlimited freedom of choice in the weapons they use.
The Court also referred to the Martens Clause,
according to which civilians and combatants remained
under the protection and authority of the principles of
international law derived from established custom, the
principles of humanity and the dictates of public
conscience.
The Court indicated that, although the applicability to
nuclear weapons of the principles and rules of
humanitarian law and of the principle of neutrality
was not disputed, the conclusions to be drawn from it
were, on the other hand, controversial. It pointed out
that, in view of the unique characteristics of nuclear
weapons, the use of such weapons seemed scarcely
reconcilable with respect for the requirements of the
law applicable in armed conflict. The Court was led to
observe that “in view of the current state of
international law and of the elements of fact at its
disposal, [it] cannot conclude definitively whether the
threat or use of nuclear weapons would be lawful or
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unlawful in an extreme circumstance of self-defence,

in which the very survival of a State would be at
stake”. The Court added, lastly, that there was an
obligation to pursue in good faith and to conclude
negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control.