Legality of Nuclear Weapons Icj
Consequently, the threat or use of nuclear weapons would generally be contrary to international law applicable to armed conflict, in particular humanitarian law, but the Court cannot determine whether the threat or use of nuclear weapons would be lawful or unlawful in a circumstance of extreme self-defence in which the very survival of a State would be at stake. The threat or use of nuclear weapons should also be consistent with the requirements of international law applicable in armed conflict, in particular the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other obligations dealing explicitly with nuclear weapons; 27. In September 1999, three Trident Ploughshare activists, Ulla Røder of Denmark, Angie Zelter of England and Ellen Moxley of Scotland, were acquitted of intentional damages by the Greenock Sheriff`s Court. The three women had boarded Maytime, a barge anchored in Loch Goil and involved in scientific work related to Vanguard-class submarines anchored in nearby Gareloch, causing damage worth £80,000. As is often the case in trials related to such acts, the defendants tried to prove that their actions were necessary because they had prevented what they considered a “nuclear crime”.  The Court then turned to the law applicable in situations of armed conflict. Taking into account customary and treaty law, it concluded that the use of nuclear weapons could not be expressly considered expressly prohibited on the basis of that law, nor had it found a specific prohibition on the use of nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction. The Court then turned to an examination of customary international law in order to determine whether this source of law constituted a prohibition of the threat or use of nuclear weapons as such. It noted that members of the international community were deeply divided on whether the non-use of nuclear weapons over the past 50 years was an expression of opinio juris and did not consider itself in a position to establish the existence of such opinio juris. The emergence of a customary rule explicitly prohibiting the use of nuclear weapons as such has been hampered by persistent tensions between the nascent opinio juris on the one hand and the still firm adherence to the doctrine of deterrence on the other.
The Court then considered whether the use of nuclear weapons should be considered unlawful under the principles and rules of international humanitarian law and the requirement of neutrality applicable in armed conflict. He emphasized two fundamental principles: (a) the first is to distinguish between combatants and non-combatants; States must never target civilians and, therefore, never use weapons that are incapable of distinguishing between civilian and military targets, while (b) according to the second of these principles, combatants must not be subjected to unnecessary suffering. As a result, States do not have unlimited freedom of choice as to the weapons they use. The Court also referred to the Martens Clause, according to which civilians and combatants remain under the protection and authority of the principles of international law derived from established customs, principles of humanity and the dictates of public conscience. 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. In particular, it stressed that these provisions apply to any use of force, regardless of the weapons used. Moreover, the principle of proportionality as such cannot preclude the use of nuclear weapons for self-defence in all circumstances. At the same time, however, a proportionate use of force under the law of self-defence must meet the requirements of the law applicable to armed conflict, including in particular the principles and rules of humanitarian law. It pointed out that the concepts of “threat” and “use” of force within the meaning of Article 2, paragraph 4, of the Charter were combined in the sense that if the use of force itself in a particular case was unlawful, for whatever reason, the threat of the use of force would also be unlawful. The World Health Organization requested this opinion on 3 September 1993, but it was initially rejected because the WHO exceeded its legal capacity (ultra vires). In December 1994, the UN General Assembly requested a new opinion, which was adopted by the Court in January 1995.
In addition to establishing the illegality of the use of nuclear weapons, the Court considered the appropriate role of international judicial organs, the advisory role of the ICJ, international humanitarian law (jus in bello) and the rules governing the use of force (ius ad bellum). He examined the state of the “lotus approach” and used the concept of non-liquet. There are also strategic issues such as the legality of the practice of nuclear deterrence or the importance of article VI of the 1968 Treaty on the Non-Proliferation of Nuclear Weapons. A total of 42 States participated in the written phase of the oral arguments, the largest number ever participated in the proceedings before the Court.   Of the five declared nuclear-weapon states, only the People`s Republic of China did not participate. Of the three “threshold” nuclear-weapon States, only India participated. Many of the participants were developing countries that had not yet contributed to the proceedings before the ICJ, perhaps reflecting the unprecedented interest in the issue and the growing willingness of developing countries to participate in international judicial proceedings in the “post-colonial” period.   Any threat or use of nuclear weapons in violation of the Charter of the United Nations is illegal and such threat or use should be consistent with the requirements of international law relating to armed conflict and nuclear treaties.