ORAL STATEMENT BY

                          H.E. DR. M. JAVAD ZARIF

                      DEPUTY FOREIGN MINISTER

        FOR LEGAL AND INTERNATIONAL AFFAIRS

              OF THE ISLAMIC REPUBLIC OF IRAN

 

 

                                           BEFORE

            THE INTERNATIONAL COURT OF JUSTICE

 

 

                                      IN THE CASE

                                                 

IN LEGALITY OF THE USE BY A STATE OF NUCLEAR WEAPONS IN ARMED CONFLICT

(REQUEST FOR AN ADVISORY OPINION SUBMITTED BY THE WORLD HEALTH ORGANIZATION)

 

                                              AND

 

IN LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS (REQUEST FOR AN ADVISORY OPINION SUBMITTED BY THE GENERAL ASSEMBLY OF THE UNITED NATIONS)

 

 

                                   In the name of God, the Compassionate, the Merciful

 

Mr. President, Honorable Judges of the International Court of Justice,

 

1. On 14 May 1993, the World Health Assembly adopted resolution 46.40, requesting the International Court of Justice to give an advisory opinion on the following question:

In view of the health and environmental effects, would the use of nuclear weapons by a state in war or other armed conflict be a breach of its obligations under international law including the WHO constitution?

 

2. On 15 December 1994, the General Assembly of the United Nations, by resolution 49/75 K, requested the Court to render its advisory opinion on the following question:

Is the threat or use of nuclear weapons in any circumstances  permitted under international law?

 

3. Two similar requests for an advisory opinion of the Court provide true testimony of the vital importance of the case to the international community, and also reflect a significant responsibility conferred upon the Court in this respect.             

 

4. The Government of the Islamic Republic of Iran has previously presented its written statements on both requests. Now, as the International Court of Justice has decided to hold one oral hearing for both cases, I have the honor to elaborate on our statements and to submit additional points concerning the illegality of the threat or use of nuclear weapons under international law. I have divided my  presentation for the oral hearing into four parts. In the first part, I will explain our interest in this case and discus the validity of the decisions of the requesting Organ of the United Nations and of its specialized agency, as well as the responsibility of the Court in giving a reply. In Part II of my presentation, I will mainly cover the illegality of the threat or use of force in international relations. I will also touch upon the non-proliferation regime and its extension in the course of the Review and Extension Conference held earlier in 1995. Part III of my statement is related to the incompatibility of the use of nuclear weapons with the objectives and principles of the law of armed conflict. In this section I will make particular reference to the protection of the environment in times of armed conflict. In Part IV I will explain why the use of nuclear weapons is against public conscience. Finally, I will present my concluding remarks.

 

                                                                  PART I

The Islamic Republic of Iran's Interest in this Case

5. Concerning our interest in the question before the Court,  I wish to recall that the Islamic Republic of Iran ratified the 1968 Treaty on the Non-Proliferation of Nuclear Weapons on February 2, 1970 and is committed to the application of nuclear energy solely for peaceful purposes. Furthermore, Iran has concluded Safeguard Agreements with the International Atomic Energy Agency and has opened all its nuclear facilities for routine and special inspections. Reports prepared by the I.A.E.A. experts have made it crystally clear that Iran uses its nuclear facilities for peaceful purposes only.

 

6. However, our interest is this case is not limited to our treaty obligations, but goes far beyond that. We, along with other peace-loving nations share a common responsibility to save present and succeeding generations from the horrendous and uncontrollable effects of the use of nuclear weapons. I wish to emphasize here that the Islamic Republic of Iran is one of the adamant proponents of a Nuclear Weapons Free Zone in the Middle East and is actively engaged in endeavors to this end.

 

Validity and Opportunity of Requests for Advisory Opinions

7. As to the validity of the requests for the opinion of the Court, reference should be made to Article 96, paragraph 1 of the Charter of the United Nations which authorizes the General Assembly and the Security Council to request the Court to render an advisory opinion on any legal question.

 

8. A decision of the General Assembly to seek an advisory opinion of the Court requires a simple majority. This is so because Article 18, paragraph 2 of the Charter, does not specify seeking of advisory opinions as an important question. Furthermore, the General Assembly has followed this procedure for the past fifty years. Thus, General Assembly resolution 49/75 k was adopted in accordance with its rules of procedure. Now, it is for the Court to respond to the request duly made to it by the competent organ of the United Nations. As the court has observed in the Interpretation of Peace Treaties case:

No state, whether a member of the United Nations or not, can prevent the giving of advisory opinion which the United Nations considers to be desirable in order to obtain enlightenment as to the course of action it should take.[1]

 

9. The General Assembly has a mandate, in accordance with Article 11 of the Charter, to "consider the general principles of co-operation in the maintenance of international peace and security, including the principles governing disarmament and the regulation of armaments" in order to "make recommendations with regard to such principles to members or to the Security Council or both."

 

10. The General Assembly has consistently addressed the issue of nuclear disarmament and, from its very first resolution, has called for the elimination of nuclear weapons. Since its inception, it has adopted numerous resolutions dealing with nuclear weapons, many of them condemning their use as a violation of international law, some calling their use a crime against humanity. For instance, the "Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons" adopted in 1962,[2] and the Resolution on Non-Use of Nuclear Weapons and Prevention of Nuclear War, adopted in 1981, could be mentioned.[3]

 

11. Therefore, the request for an advisory opinion on the illegality of threat or use of force falls, without a doubt, within the scope of "functions and powers" of the General Assembly. Certainly, an opinion from the Court would assist the General Assembly to fulfill the mandate entrusted to it and, with the obligations  of member states with respect to principles governing disarmament and regulations of armaments. Thus, such a ruling will be of immense help to the United Nations as well as to the cause of peace and security of the international community.  


12. As regards the request made by WHO, I would like to recall that in accordance with Article 96, paragraph 2 of the Charter, other organs of the United Nations and specialized agencies, if authorized by the General Assembly, may also request advisory opinions of the Court on legal questions arising within the scope of their activities.

 

13. The World Health Organization has been authorized by the General Assembly, in accordance with Article 96, paragraph 2 of the Charter, to seek the advisory opinion of the Court on legal questions relating to its activities. Article 76 of the constitution of the World Health Organization and Article X of the Agreement between the United Nations and WHO confirm the power given to World Health Assembly. Resolution 46.40 of the World Health Assembly has been adopted in accordance with its rules of procedure, and therefore attempts to question its validity have no legal basis.  

 

14. The request by the World Health Organization also falls within the scope of its mandate, as it is related to the powers and functions of WHO to advance and promote global health, including the avoidance of present and future health catastrophes, as defined in its Constitution. There is no doubt that the use of nuclear weapons would pose catastrophic health problems on an unprecedented scale. As the Legal Council of WHO stated before the Court on 30 October 1995, casualties and injury arising out of the use of nuclear weapons could vary from one million to one billion.[4]

 

15. In making the request to the I.C.J., the World Health Assembly noted: "... it has been established that no health service in the world can alleviate in any significant way a situation resulting from use of even one single weapon" and that "primary prevention is the only appropriate means to deal with the health and environmental effects of use of nuclear weapons."[5] This assertion clearly removes doubts, if there was any, on the genuine concern of WHO for the question put before the Court regarding the interpretation of its Constitution.

 

16. The Court itself observed in an advisory opinion on the Interpretation of the Agreement Between the Who and Egypt in 1980: "In situations in which political considerations are prominent, it may be particularly necessary for an advisory opinion from the court as to the legal principles applicable with respect to the matter under debate, especially when these may include the interpretation of its constitution."[6] 

 

17. Lauterpacht has observed in oppenheim's International Law:

The advisory opinion of the Court has been designed primarily to assist the Security Council and the General Assembly in the discharge of their duties of conciliation and reporting upon disputes submitted to them by affording them an authoritative legal opinion.[7]

 

18. The Court has taken a progressive view of its advisory competence when it observed in the case concerning Interpretation of Peace Treaties:

By lending its assistance in the solution of a problem confronting the General Assembly, the Court would discharge its responsibilities as the principal judicial organ of the United Nations.... The Court's opinion is not given to states but to the organ which is entitled to request it; the reply of the Court, itself an organ of the United Nations, represents its participation in the activities of the organization and, in principle it should not be refused.[8]

 

19. The Court further explained in the Western Sahara case conditions that may prevent it from rendering an advisory opinion:

            When the circumstances disclose that to give a reply would have the effect of circumventing the principle that a state is not obliged to allow its dispute to be submitted to judicial settlement without its consent.[9]


20. As it is evident, the question before the Court is not related to a dispute between two states; therefore, it does not undermine the consent principle. Consequently, we submit that there exists no compelling reason for denial of the requested opinion. 

 

21. Actually, the Court has accepted requests for advisory opinions on a number of subjects, including: interpretation of the Charter; the legal effects of the resolutions of the United Nations organs; decolonization; etc. In cases not involving a dispute between two states submitted without the consent of either of the parties, the present Court until now has never, I repeat never , refused to give an opinion even if the request was politically motivated.

 

22. It has been argued that the question before the I.C.J. is basically a political one, not a legal question. In this respect, I wish to state that it is difficult to perceive any question relating to violation of a specific rule of international law to be deemed non-legal in nature. It is obvious that many legal issues may have political dimensions or connotations. But, this should not, and cannot, prevent the Court from rendering its opinion on the legal aspect of the question. As the Court has observed in 1984 on the case concerning Military and Paramilitary Activities In and Against Nicaragua:

The [Security] Council has functions of a political nature assigned to it, whereas the Court exercises purely judicial functions. Both organs can therefore perform their separate but complementary functions with respect to the same event.[10]        

23.  Fitzmaurice has observed in this respect:

If the question put to the court is in itself a legal question (and inter alia, all questions relating to the interpretation of international instruments, with which requests for advisory opinions are usually concerned, are ipso facto legal questions) the fact that it has a political element is irrelevant.[11]

 

Responsibility of the Court

24. I now intend to say a few words on the important responsibility that has been conferred on the International Court of Justice, as the principal judicial organ of the United Nations, to consider requests for advisory opinions on a crucial question relating to the very existence of human species. The International Court of Justice, during its 50 years of life, has acquired considerable credibility among nations and its current consideration of this vital question is a true testimony to validity of this trust.

 

25. Today, the International Court of Justice is requested to fulfill an indispensable responsibility of issuing an opinion on the illegality of the use of nuclear weapons. A decision that would reaffirm the principle of international law, would bring to an end any doubts on this issue, and would constitute a major step towards achieving the lofty objectives of the United Nations, "to save succeeding generations from the scourge of war" and "to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained."

 

26. I wish to remind this august Court that the responsibility bestowed upon it is of legal, historic, and moral importance. Any doubt, hesitation or indecisiveness on this issue may encourage conditions for the repetition of disasters similar to Hiroshima and Nagasaki. Rendering advisory opinions is a mandate given to the Court by its Statute. As the Court observed on the Interpretation of the Agreement Between WHO and Egypt in 1980:

The function of the court is to give an opinion based on law, once it has come to the conclusion that the questions put to it are relevant and have a practical and contemporary effect and, consequently are not devoid of object or purpose.[12]

 

27. It is quite clear that the opinion of the Court in the present case will have practical and contemporary effects on the international community. Therefore, it will not be devoid of object or purpose. President Bedjaoui, speaking before the Sixth Committee in the current session of the General Assembly, emphasized the preventive nature of advisory opinions when he observed: "The advisory procedure thus appears, at the minimum, to be an instrument of 'preventive diplomacy', a particularly suitable means for the Court to defuse tension and ward off conflicts by determination of law."[13]

 

                                                                PART II

Illegality of Threat or Use of Force

28. Turning to the subject of the illegality of threat or use of force, I wish to emphasize that the unequivocal rejection of use or threat of use of force, contained in Article 2, paragraph 4 of the Charter of the United Nations, provides no room for use or threat of use of nuclear weapons against other states. In addition, this ban, in accordance with paragraph 6 of Article 2 of the Charter, is extended to non-members of the United Nations. This norm of international law, as the International Law Commission has concluded, is "a peremptory norm of international law."[14] The International Court of Justice has called it: "not only a principle of customary international law, but also a fundamental or cardinal principle of such law."[15] Accordingly, its violation under any circumstances, irrespective of any pretext, is unjustifiable. I wish to reemphasize that the right to self defence as provided in Article 51 of the Charter, cannot be invoked to justify use of nuclear weapons. The right to self defence is limited by the general principles of necessity and proportionality as well as those of International Humanitarian Law, which will be covered in part III of my statement.

 

29. Numerous United Nation's General Assembly resolutions and declarations have confirmed the illegality of use of force in international relations. For instance, the Declaration on Principles of International Law Concerning Friendly Relations restates the language of Article 2(4) of the Charter and declares that: "Such a threat or use of force constitutes a violation of International Law and the Charter of the United Nations and shall never be employed as a means of settling international disputes."[16] The Declaration on the Inadmissibility of Intervention in Domestic Affairs of Other States further condemns "[Armed intervention and all other forms of interference or attempted threats."[17] And finally, the 1987 Declaration on the Enhancement of the Principle of Non-Use of Force emphasizes: "The principle of refraining from the threat or use of force in international relations is universal in character and is binding, regardless of each state's political, economic, social or cultural system or relation of alliance."[18] Although  resolutions of the General Assembly are commonly perceived to be of a recommendatory nature, declarations interpreting the provisions of the charter, along with those declaring the principles of international law, certainly do not constitute mere recommendations.

 

30. The General Assembly Resolution 1653 adopted in 1961 particularly should be mentioned here. Paragraph 1(a) of this Resolution declared that the use of nuclear and thermonuclear weapons is contrary to the spirit, letter, and aim of the United Nations, and, as such, is a direct violation of the Charter of the United Nations. Clearly, this assertion is also not a mere recommendation because it is based on Charter provisions.

 

Regional Security Treaties

31. After the coming into force of the Charter of the United Nations, a number of regional security treaties concluded in various parts of the world reaffirmed the commitment of states with respect to the principle of non-use of force in international relations. For instance, the North Atlantic Treaty, the Final Act of the Conference on Security and Co-operation in Europe, the Charter of the Organization of American States, and constituent instruments of the Organization of African States and the Organization of Islamic Conference contain such  provisions.  

 

Non-Distinction between Threat or Use of Force       

32. The United Nations Charter, treaties, and resolutions pertaining to the prohibition of the use of force do not distinguish between actual use of force and the threat to use force. Both, use of force and threats to use force are equally outlawed. Consequently, the argument advanced by the nuclear weapon states that their deterrence policies, over the years, have helped to maintain stability and world peace, seems to be extraneous. The very essence of the deterrence policy is based on the threat to use nuclear arsenal, which contravene the very letter and spirit of the Charter of the United Nations. We all remember the Cuban Missile Crisis, and the terrible conditions which prevailed in the years following that dilemma. The people of the world lived for decades, between war and peace, in uncertainty. Volatile and horrifying circumstances caused mainly by so called deterrence policies of nuclear-weapon states. Moreover, nuclear deterrence has not prevented conventional wars. Occurrence of almost 150 wars in fifty years, with casualties more than those of the second world war, certainly do not correspond with the better and peaceful world that the founders of the United Nations had in mind.

 

Non-Proliferation of Nuclear Weapons

33.It is quite appropriate to recall here obligations of states arising from the N.P.T. regime for achieving nuclear disarmament. The treaty on Non-Proliferation of Nuclear Weapons, which entered into force on March 5, 1970, is an essential measure towards achieving the goal of nuclear disarmament. Its preamble calls for: "Cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and their means of delivery." Article VI of the Treaty which has been regarded as the most important part of the arrangements between nuclear and non-nuclear parties contains a legally binding commitment on all parties "To pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and nuclear disarmament."[19] This article reflects the undertaking of the nuclear powers to end vertical proliferation of nuclear weapons and eventually dismantle their nuclear arsenal and the commitment of non-nuclear states to end horizontal proliferation. This mutual undertaking was clearly expressed by the then Prime Minister of the United Kingdom Harold Wilson:

We know that there are two forms of proliferation, vertical and horizontal. The countries which do not possess weapons and which are now undertaking an obligation not to possess them, have the right to expect nuclear-weapon states will fulfill their part of the bargain.[20]

 

34. the United States Representative, Adrian S. Fisher, stated at the 1968 Geneva Conference that Article VI of Non-Proliferation of Nuclear Weapons constitutes a "solemn affirmation of the responsibility of nuclear weapon states to strive for effective measures regarding cessation of the nuclear arms race and disarmament. Moreover, the article does not make the negotiations of this measure conditional upon their inclusion within the framework of a treaty on general disarmament."[21]

 

35. Throughout the history of the N.P.T., the non-nuclear states have strived for a universal and non-discriminatory regime like those established by the 1972 Biological Weapons Convention and the 1993 Chemical Weapons Convention. Each one of these conventions provides for total elimination of certain classes of mass destruction weapons. From the beginning of the N.P.T. negotiations, those states called for the elimination of all nuclear weapons and their delivery vehicles.

 

36. On 11 May 1995, the N.P.T. Review and Extension Conference decided without a vote: "As a majority exists among states party to the treaty for its indefinite extension, in accordance with Article X.2, the treaty shall remain in force indefinitely." It need to be clarified however, that the extension decision was part of a package of three inter-linked compromise decisions. The other two decisions were: "Strengthening the Review Process for the Treaty," which provides for a greater measure of accountability by all parties, in particular by the nuclear powers, and "Principles and Objectives for Nuclear Non-Proliferation and Disarmament," which reiterates the "ultimate goal of the complete elimination of nuclear weapons and a treaty on general and complete disarmament." 

 

37. The indefinite extension of the treaty, therefore, should in no way be interpreted as legitimizing the continued existence of nuclear weapons, nor should it be construed as permitting their use. The Decision number 2 on the Principles and Objectives for Nuclear Non-Proliferation and Disarmament, adopted by the Review and Extension Conference, affirms this point. Article 4 of this decision stipulates the obligations of states parties with respect to achieving nuclear disarmament which is inherently linked to indefinite extension of the Non-Proliferation Treaty. These commitments include:

-           "The completion by the Conference on Disarmament of the negotiations on a universal and internationally and effectively verifiable comprehensive Nuclear-Test-Ban Treaty no later than 1996,"[22]

-           "The immediate commencement and early conclusion of negotiations on a non-discriminatory and universally applicable convention banning the production of fissile material for nuclear weapons or other nuclear explosive devices,"[23] and

-           "The determined pursuit by the nuclear-weapon states of systematic and progressive efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating those weapons." [24]

 

38. The President of 1995 Review and Extension Conference clearly explained the feelings of the participants in the conference in following terms: "All wanted concrete steps taken towards nuclear disarmament and were emphatic that the indefinite extension of the treaty was not a carte blanche for the nuclear weapon-states to retain their monopoly over possession of these weapons forever."[25]

 

The Security Council Resolutions

39. The Security Council Resolution 255(1968) "...recognizes that aggression with nuclear weapons or the threat of such aggression against a non-nuclear state would create a situation in which the Security Council, and above all its nuclear weapon state permanent members, would have to act immediately in accordance with their obligations under the United Nations Charter."

 

40. The Security Council Resolution 984 adopted in 1995 "urges all states, as provided for in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, to pursue negotiations in good faith on effective measures relating to nuclear disarmament and on a treaty on general and complete disarmament under strict and effective international control which remains a universal goal."[26] This resolution also gives non-nuclear states assurances from the nuclear states that nuclear weapons will not be threatened or used against them.[27]

 

41. Resolutions 255 and 984, therefore, recognize the illegality of nuclear weapons use against a non-nuclear weapon state. On the other hand they call for the pursuance of negotiations in good faith for achieving complete nuclear disarmament. Inclusion of 'good faith' both in Article VI of the Non-Proliferation Treaty and in the Security Council Resolution indicates the high value attached to good faith negotiations. The I.C.J. in the Continental Shelf Judgement described negotiations with 'good faith' in following terms: "The parties are under an obligation to enter into negotiations with a view to arriving at an agreement." The court further added "They are under an obligation so to conduct themselves that the negotiations are meaningful, which will not be the case when either of them insists upon its own position without contemplating any modification of it." [28]

 

42. To say the least on the good faith negotiations, unfortunately we feel that nuclear weapon states words do not correspond with their deeds. In this respect, I wish to recall the statement made by the Minister for Foreign Affairs of Australia before the Court on November 30, 1995, in which he elucidated the aspects of the "continuous and profound developments" in nuclear technology. It is difficult to believe proclaimed intentions of the nuclear-weapon states to pursue negotiations with good faith while witnessing the ongoing endeavors to acquire ever more destructive, ever more deadly nuclear technology, and ever more efficient delivery systems.     

 

                                                               PART III

Prohibition of Nuclear Weapons According to the Law of Armed Conflict

43. Now I come to Part III of my remarks which examines the illegality of use of nuclear weapons in accordance with the law of armed conflict. Although the world has not experienced a large scale use of nuclear weapons, the consequences of the first use of atomic bombs in Hiroshima and Nagasaki still disturb the health and environment of those cities. WHO's 1987 study clearly describes the gravity of the destructive force of nuclear weapons in comparison to conventional weapons:

Qualitatively, the difference between nuclear and conventional weapons is of ever greater significance. In conventional weapons the two most lethal are blast and heat. Blast and heat both cause injury and death when nuclear weapons are used, but to an extent thousands of times greater. Nuclear weapons, however, also produce additional lethal effects by radiation. Apart from the direct effects of radiation, the radioactive materials from a nuclear bomb can be transported to a great distance from the site of the explosion, as has recently been demonstrated on a very much smaller scale by the accident at the nuclear power plant in Chernobyl. Moreover, radiation from the fallout may be an obstacle to rescue operations and effective care of injured survivors and have harmful or lethal effects long after the explosion. Its deleterious effects may indeed continue to be felt in future generations, long after hostilities would have ended.[29]

 

44. The endeavor of the people of the world to avoid war and achieve peace is as old as human history. Yet, despite  the categorical rejection of use or threat of use of force in accordance with the Charter, armed conflicts continue to persist in international relations. Therefore, the international community over the years has ventured to place certain limitations on techniques and methods of war in order to bring hostilities under control and make them more compatible with the governing norms and principles of humanity. The objectives of the laws of armed conflict are as follows: Limiting conflicts to combatants and avoidance of attacking non-combatants; limiting conflicts to war zones and prohibiting attacks on civilian areas; limiting devices of fighting; and finally, limiting conflicts to the belligerent and prohibiting attacks on neutral powers. Thus far, many declaration, treaties and conventions have been adopted, mainly in the Hague and Geneva, codifying or setting a number of rules to achieve the above-mentioned objectives.  

 

International Humanitarian Law

45. Among these rules, the International Humanitarian Law has acquired particular importance, and it is especially relevant to the current case before the International Court of Justice. There are well established principles of International Humanitarian Law, expressed in a variety of specific conventions, that are widely regarded by states and publicists as part of customary international law and applicable to wars on land, sea and air. They are customary rules because their origins are found in the Hague rules, which mainly codified the customary laws of war. These principles are neither new nor established by protocols. As has been stated by the Secretary-General of the United Nations: "Much of the conventional law of war has beyond doubt become part of customary law."[30]  Universal adherence to these rules by states is another reason for their customary status. Moreover, the general principles accepted through instruments relating to International Humanitarian Law, as has been declared by the International Conference of the Red Cross, apply to nuclear weapons as well.[31]  Due to the relevance of these rules to the case under review, I will venture to mention a few:

 

Means of Injury Are Not Unlimited

46. Article 22 of the Regulations Annexed to the Hague Convention No. IV of 1907 provides that the right of  belligerent to adopt means of injuring the enemy is not unlimited. This principle is reaffirmed in Article 35(I) of the Additional Protocol I of 1977. The ban on extremely inhuman weapons dates back to the 1868 St. Petersburg Declaration.[32] Since then, a number of other weapons that cause unnecessary suffering have been outlawed. For instance, the 1925 Geneva Protocol on the Prohibition of Use of Chemical Weapons and the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction can be mentioned.

 

47. The burn and blast effects of nuclear weapons and their instant and long-range aftermath, including genetic consequences, place them in the category of weapons that cause superfluous and excessive destruction and anguish. Therefore, we are convinced that use of these types of weapons would violate the above mentioned principle of International Humanitarian Law.

 

Discrimination Between Combatants and Non-Combatants

48. The prohibition of weapons or tactics that cause indiscriminate harm between combatants and non-combatants is another argument against the legality of the use of nuclear weapons.  Article 27 of the Hague Regulations, Articles 22 and 24 of the Draft Hague Rules on Air Warfare of 1923, largely accepted as customary law, and Articles 51 and 52 of Additional Protocol I, all prohibit indiscriminate attacks.

 

49. Here, I wish to submit that if a nuclear device with the yield of up to several megatons is delivered, in practice it would be impossible to differentiate between combatants and non-combatants.  A convincing statement of the indiscriminate nature of nuclear weapons is found in the preamble of the 1967 Treaty for the Prohibition of Nuclear Weapons in Latin America:

Nuclear weapons, whose terrible effects are suffered indiscriminately and inexorably by military forces and civilian populations alike, constitute, through the persistence of the radioactivity they release, an attack on the integrity of the human species and ultimately may even render the whole earth uninhabitable.

 

50. I wish to emphasize that, use of both tactical and strategic nuclear weapons will cause non-discriminatory destruction and injury. All types of nuclear weapons release radioactivity which is destructive, detrimental to human being and environment and their incalculable effects are uncontrollable. So called "Micro-nukes", "Mini-nukes" and "Tiny-nukes", all are considered to be weapons of mass destruction. Thus, their use irrespective of type and size will constitute violation of this principle of International Humanitarian Law.

 

Belligerent Duties and Protection Under the Geneva Conventions

51. The use of nuclear weapons inevitably will impair fulfillment of  certain duties of belligerents under the Geneva Conventions of 1949. Briefly, the use of high-yield nuclear weapons will make it impossible for belligerents to perform their post-battle obligations under the Geneva Conventions and would also cause damage to legally protected persons and property. These duties include, inter-alia: collection of wounded or dead; individual burial; evacuation of prisoners; and the ban on exposing prisoners to unnecessary danger; and, on protection of persons and property, including wounded and sick members of armed forces, hospital ships and medical transports.

 

The Obligations of Belligerent Parties towards Neutral Powers

52. The principle of neutrality, contained in Article I of the Hague Convention No. V, in its classic perception, was aimed at preventing the incursion of belligerent forces into neutral territory, or attacks on the persons or ships of neutrals. In accordance with this principle, the territory of neutral powers are inviolable.  


53. Given the very high likelihood of fall-out being transmitted from the area of conflict to the territory of such states, any use of nuclear weapons would violate the neutrality rights of states not participating in the conflict.  Hence, use of nuclear weapons, due to their uncontrollable effects, constitute neutrality-violating devices par excellence.

 

Marten's Clause

54. "Marten's clause, "which was developed by the St. Petersburg Declaration of 1868 and later found a place in the Hague Rules and Geneva Conventions of 1949, along with Additional Protocol I, provides that "In cases not covered by this protocol or by other international agreements, civilians and combatants remain under the protection and authority of principles of international law derived from established custom, from principles of humanity and from the dictates of public conscience." Thus the argument that prohibition of use of nuclear weapons is not specifically mentioned in any international instrument seems to overlook "Marten's Clause." As has been stated by Tokyo District Court in the Shimoda Case in 1963: "Specific prohibitions embody a wider principle and this principle extends to new weapons development not foreseen at the time when the prohibition was agreed upon."[33]

 

55. The last point that I wish to make concerning the law of the armed conflict relates to Article 147 of the Fourth Geneva Convention. It has specified among others, commission of acts against protected persons, serious injury to body or health, and extensive destruction of property not justified by military necessity, as grave breaches of the provisions of the Convention. Furthermore, in accordance with Article 89 of protocol I, "Making the civilian population or individual civilian the object of attack", and "launching an indiscriminate attack affecting the civilian population or civilian objects in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects" considered to be as "grave breaches" of the protocol and of the convention and constitute "war crimes."[34] Furthermore, Article 19 (3) (d) of the first part the International Law Commission's project on state responsibility adopted by the commission in 1976, classifies massive pollution of the atmosphere or of the seas as an international crime of state.

 

56. As I indicated earlier, due to uncontrollable deleterious effects of nuclear weapons, if they are used, it will not be possible to distinguish protected persons and property from civilian property and objects. Consequently, their use will form grave breaches of the convention and of the protocol and will constitute "war crimes."

 

Laws Relating to the Protection of the Environment

57. It is quite clear that use of nuclear weapons will cause widespread, long-term and severe damage to the natural environment.[35] Thus, their use goes against Article 35(3) and Article 55 of the Additional Protocol I of 1977 and Article 1 of the U.N. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques of 1977. Before I enter into a discussion of the laws on the protection of the environment, it is quite pertinent to quote here again a paragraph from WHO's 1987 classic study, which is a concise and excellent illustration of the effects of the use of nuclear weapons on health and the environment:

Less quantifiable effects of nuclear war include atmospheric changes detrimental to agriculture and the economy, not only in the countries where the war takes place, but also in others not engaged in hostilities. Moreover, since the world has never experienced a large-scale nuclear war, other unpredictable direct and indirect effects cannot be excluded. Any assessment of the effects of a nuclear war must therefore be attended by a high degree of uncertainty. However, on the basis of the information derived from the explosions at Hiroshima and Nagasaki, the tests of nuclear weapons and accidents at nuclear power plants, research in radiation physics and biology, and earthquakes, fires, floods, volcanic eruptions, and other natural disasters, it is possible to predict with reasonable accuracy the main effects on people and their environment. Those effects would not be limited to the people of the area where the bombs fell; some of them would be felt by people throughout most of the world.[36]    

 

58. The above words explicitly indicate the magnitude of the effects of use of nuclear weapons on the environment. Now I intend to discuss, in brief, laws pertaining to the protection of the environment. There are two categories of law on the protection of the environment. While environmental law entails protection of the environment in general, the law of the armed conflict tends to protect unnecessary damage to the environment in time of war, in particular.

 

59. As far as the law of armed conflict is concerned, both the customary rules and the provisions of treaty law prohibit belligerent parties, directly or indirectly, from inflicting unnecessary damage on the environment. Parties to the armed conflict are obliged , in accordance with well-established rules of customary law pertaining to armed conflict, to protect the environment in time of armed conflict. These rules include proportionality and the prohibition on military operations not directed against legitimate military targets, as well as the prohibition of destruction of enemy property not imperatively demanded by the necessities of war.

 

60. Prohibition of the destruction of non-military enemy property, which is also a customary rule, is included in the Hague Rules on Land Warfare: Article 23(g) of these rules prohibits the destruction or seizure of enemy property "unless such destruction or seizure be imperatively demanded by necessities of war."

 

61. In addition to the obligation under customary law, parties to armed conflict are obliged, in accordance with treaty law, to protect the environment in time of war. Almost all states are legally bound by the Geneva Conventions of 1949, and are committed to comply with them in an international conflict. Articles 53 and 147 of the Fourth Geneva Convention provide a degree of indirect protection for the environment, in the context of protecting property rights in occupied territories. Thus, an occupying power that destroys, for example, industrial installations in an occupied territory, causing consequent damage to the environment, would be in violation of the Fourth Geneva convention, provided that such destruction is not justified by military necessity. If such destruction is extensive, it would constitute a grave breach of the Convention, or even a war crime, in accordance with the provision of Article 147.

 

62. Additional Protocol I of 1977 also contains a number of articles relevant to the protection of the environment. The articles of particular relevance are Article 35(3), which prohibits the employment of methods or means of warfare which "are indeed, or may be expected to cause widespread, long term and severe damage to the natural environment"; Article 55, which imposes an obligation upon the states parties to be careful in conducting war in order to protect the environment against such damage; Article 54, which protects objects indispensable to the survival of the civilian population; and, article 56, which protects certain works and installations containing dangerous forces. Thus, consideration of the provisions of Protocol I leads us to the conclusion that it prohibits clearly (a) attacks on the environment and (b) use of the environment as a tool of warfare. Since the use of nuclear weapons will have above mentioned effects on the environment, therefore it will breach rules pertaining to the protection of the environment.

 

63. Apart from the above mentioned, there are other instruments that have indirect relevance to the protection of the environment. For instance, the 1925 Geneva Protocol on the prohibition of use of chemical and bacteriological weapons in time of war is pertinent.

 

64. Turning to the law on the protection of the environment, it must be pointed out that the general principles of customary international law clearly contain specific rules pertaining to protection of the environment. A fundamental rule of customary international law, incorporated in the Principle 21 of 1972 Stockholm Declaration, is the obligation of states not to damage or endanger significantly the environment beyond their jurisdiction. There are a considerable number of international and regional agreements that support this rule, including among these, the United Nations Convention on the Law of the Sea, the 1978 Kuwait Convention on the Protection of Marine Environment in the Persian Gulf and Sea of Oman, the 1985 Vienna Convention on the Protection of the Ozone Layer, 1992 Framework Convention on Climate Change, and the 1992 Convention on Biological Diversity.

 

65. The Principle of Environmental Security, apart from the above mentioned agreements, is included in the Principle 24 of the Rio Declaration on Environment and Development which stipulates that "Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and co-operate in its future development, as necessary."

 

66. In 1991, Protection of the Environment In Times of Armed Conflict was included on the agenda of the General Assembly. The Sixth Committee entrusted the International Committee of the Red Cross to carry out a study on the subject and report to the General Assembly. The I.C.R.C.  organized a meeting of experts, and summarized the conclusions of its study in a report to the Secretary General as follows:

The idea of creating an entirely new body of international rules for protection of the environment was ruled out. Most experts insisted on the importance of existing law, while acknowledging that there were a number of gaps in the rules currently applicable. The first step, therefore, was to ensure that even more states accede to or ratify existing treaties, that they observe their existing obligations and, at the same time, enact coordinate domestic legislation."[37]

 

67. This conclusion of the I.C.R.C., which was confirmed by the Sixth Committee, undeniably, covers the protection of the environment against the use of nuclear weapons.                 

 

 

                                                               PART IV

Use of Nuclear Weapons Is Against Public Conscience

68. As provided in Marten's Clause, a customary rule of international law, in cases not covered by international instruments, civilians and combatants "remain under the protection and authority of principles of international law derived from established custom, from principles of humanity and from the dictates of public conscience." Since the case before the Court has vital importance as it is linked to the destiny of the human race, the Court needs to endeavor to determine the law on the subject. To this end the Court is authorized in accordance with Article 38(d) of its Statute to apply "subsidiary means for determination of law." It can convincingly be argued that there exists an Opinio Juris on the cruel and inhuman nature of nuclear weapons as well as on the prohibition of their use as violating the generally accepted principles of International Humanitarian Law. A scrutiny of statements, draft rules, declarations, resolutions, and other communications expressed by governments and highly qualified persons and institutions leads us to the conclusion that a rule concerning prohibition of the use of nuclear weapons, as professor Abi-Saab mentioned here before the Court, is in the "process of crystallization."[38]