Criminal Law Forum

, Volume 7, Issue 2, pp 265–298 | Cite as

The laws of armed conflict and the use or threat of use of nuclear weapons

  • Roger S. Clark
International Court of Justice: Advisory Proceedings on The Legality of the Threat or Use of Nuclear Weapons (Question Posed by the General Assembly)
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Keywords

International Economic Nuclear Weapon Armed Conflict 

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References

  1. 1.
    Prosecutor v. Tadic, Case No. IT-94-1-AR72 (Int'l Crim. Trib. for Former Yugo., App. Chamber, Oct. 2, 1995), reprinted in 7 Crim. L.F. 51, 111–33, ¶¶ 96–136 (1996) (expansion of rules applicable to international armed conflict into the sphere of noninternational conflict).Google Scholar
  2. 2.
    U.N. Doc. A/CN.4/L.532 (1996).Google Scholar
  3. 3.
    Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts,adopted June 6, 1977, art. 90, 1125 U.N.T.S. 3 (entered into force Dec. 7, 1978). On the Commission, see Developments in Criminal Law and Criminal Justice, in this issue ofCriminal Law Forum at 485.Google Scholar
  4. 4.
    Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases.Google Scholar
  5. 5.
    Roger S. Clark,Introduction toThe Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and futher written submissions by Marshall Islands, Smoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. at 1.Google Scholar
  6. 6.
    The United States and Solomon Islands submitted written comments in both the WHO case and the GA case. They also submitted additional written comments on the submissions of other states. Because of space limitations, we reproduce here only their initial statements in the GA case. The Solomons' responses to other states in the WHO case on such issues as deterrence, the reservations by nuclear weapon states to treaties creating nuclear weapon-free zones, the prohibition of chemical and poisonous weapons, and the application of environmental laws to armed conflict are particularly thoughtful and may be found at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/.Google Scholar
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    Seesupra notes 4, 6. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use of a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. The United States and Solomon Islands submitted written comments in both the WHO case and the GA case. They also submitted additional written comments on the submissions of other states. Because of space limitations, we reproduce here only their initial statements in the GA case. The Solomons' responses to other states in the WHO case on such issues as deterrence, the reservations by nuclear weapon states to treaties creating nuclear weapon-free zones, the prohibition of chemical and poisonous weapons, and the application of environmental laws to armed conflict are particularly thoughftul and may be found at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/.Google Scholar
  8. 8.
    WHA Res. 46/40 (14 May 1993).Google Scholar
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    G.A. Res. 49/75K, U.N. GAOR, 49th Sess., Supp. No. 49, at 71, U.N. Doc. A/49/49 (1995).Google Scholar
  10. 10.
    On the history of the effort, see Harold Evans,Open Letter to the Prime Ministers of Australia and New Zealand, 20 March 1987, inInternational Law and World Order 1248 (Burns Weston et al. eds., 2d ed. 1990) (advocating recourse to the Court through the General Assembly); World Court Project on Nuclear Weapons and International Law, Legal Memorandum by Nicholas Grief (1992); Peter Weiss et al.,Introduction to the Draft Memorial in Support of the Application of the World Health Organization for an Advisory Opinion by the International Court of Justice on the Legality of the Use of Nuclear Weapons under International Law, Including the W.H.O. Constitution, 4 Transar'l L. & Contemp. Prob. 709 (1994); Saul Mendlovitz & Peter Weiss,Judging the Illegality of Nuclear Weapons: Arms Control Moves to the World Court, Arms Control Today, Feb. 1996, at 10; John Burroughs & Jacqueline Cabasso,Nukes on Trial, Bull. Atom. Sci., Mar.–Apr. 1996, at 41; Kate Dewes & Robert Green,The World Court Project: How a Citizen Network Can Influence the United Nations, 7(2) Pacifica Rev. 17 (1995) (Dewes is working on a wider study of the World Court Project); Bill Bowring,France, Polynesia, Nuclear Testing, the World Court: Law and the Public Conscience, inChallenges for Law and Lawyers in the Next Millennium, Final Report of the XIVth Congress of the International Association of Democratic Lawyers 333 (Lennox S. Hinds ed., 1996). For a film account, seeIn No Uncertain Terms: Are Nuclear Weapons Legal (Karl Geiringer 1996). In the United States, the oral proceedings were covered extensively by Court TV.Google Scholar
  11. 11.
    Seesupra note 4. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases.Google Scholar
  12. 12.
    Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 729 U.N.T.S. 161 (entered into force Mar. 5, 1970) [hereinafter NPT]. The NPT draws a distinction between “nuclear weapon states” and “non-nuclear weapon states”.Id. art. IX defines a nuclear weapon state as “one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967.” In practical terms, this means China, France, the Russian Federation, the United Kingdom, and the United States. Nuclear weapon states promise not to transfer weapons, or the means of making them, to non-nuclear weapon states. Non-nuclear weapon states agree not to acquire nuclear weapons or the means of making them. The NPT was extended indefinitely in 1995. United Nations,Final Document on Extension of the Treaty on the Non-Proliferation of Nuclear Weapons, U.N. Doc. NPT/CONF. 1995/32 (Part I), reprinted in 34 I.L.M. 959; Tuiloma Neroni Slade,1995 Review and Extension of the Treaty on the Non-Proliferation of Nuclear Weapons, 5 Rev. Eur. Community & Int'l Envtl. L. 246 (1996).Google Scholar
  13. 13.
    Answers Submitted Jointly on Behalf of Marshall Islands, Samoa, and Solomon Islands, inThe Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weaspons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. at 295, 301-3 (Schwebel Question of Nov. 14, 1995).Google Scholar
  14. 14.
    The relationship agreement between the UN and the WHO (under which the WHO became a Specialized Agency) uses a slightly different formula to the same effect when it refers to questions “within the scope of its competence”. Agreement between the United Nations and the World Health Organization, art. X(2), 1947–48 U.N.Y.B. 919.Google Scholar
  15. 15.
    For Solomon Islands' written materials on the competence of the WHO, seeThe Case Against the Bomb, supra note 4 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. at 37; for Samoa's oral presentation, seeid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use of by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Somomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this materials is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. at 197, especially Tuiloma Neroni Slade, Oral Argument, Nov. 13, 1995, inid. Legality of the Threat or of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. at 197 [hereinafter Slade Oral Arg.]; Laurence Boisson de Chazournes, Oral Argument, Nov. 13, 1995, inid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. at 207. For differing views in the academic literature, see Leonard Marks & Howard Weller,Is the Use of Nuclear Weapons Legal?, N.Y.L.J., July 11, 1994, at 1 (concluding that the WHO had competence); Nicholas Rostow,The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151 (1995) (concluding that the WHO lacked competence); Geoffrey R. Watson, ASIL Insight,The ICJ and the Lawfulness of the Use of Nuclear Weapons, Am. Soc'y Int'l L. Newsl., June 1995 (finding the WHO's competence “controversial” but having “fewer doubts” about the General Assembly).Google Scholar
  16. 16.
    Government of Nauru, Legality of the Use by a State of Nuclear Weapons in Armed Conflict (Sept. 1994) (photocopy). These and other documents presented to the Court were made public the day the oral arguments commenced and will eventually be published in the series I.C.J. Pleadings, Oral Arguments, Documents.Google Scholar
  17. 17.
    Vienna Convention on the Law of Treaties, May 23, 1969, art 31, 1155 U.N.T.S. 331 (entered into force Jan. 27, 1980).Google Scholar
  18. 18.
    WHO Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. ¶ 21. The Court also insisted that giving a broad interpretation to the WHO Constitution would be a breach of “the principle of speciality,” which means that organizations are “invested by the States which create them with powers, the limits of which are a function of the common interests whose promotion those States entrust to them.”id. WHO Op.,supra note 4 Legality of the Threat of Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Calrk & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. ¶ 25. It should be noted that, on any interpretation, the WHO and the United Nations have some overlapping competence in the health area. The hard question is how far this extends into security matters where the WHO is concerned.Google Scholar
  19. 19.
    Reparation for Injuries Suffered in the Service of the United Nations, 1949 I.C.J. 174 (Apr. 11). For an excellent account of the assassination, see Kati Marton,A Death in Jerusalem (1994).Google Scholar
  20. 20.
    WHO Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. ¶ 30.Google Scholar
  21. 21.
    GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. ¶ 50.Google Scholar
  22. 22.
    As Ambassador Slade noted: [A]lthough the General Assembly's question is not expressly limited in respect of either persons or context, we take it to be concerned, like WHO's question, with the use by States [of nuclear weapons] in “war or other armed conflict,” as I have explained that term, and with issues of state responsibility in such an event. ... [“War or other armed conflict” is the] use by a State both against another State or other international legal person, and against its own people. Slade Oral Arg.,supra note 15.The Case Against the Bomb, supra note 4 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. at 37; for Samoa's oral presentation, seeid. at 197. Legality of the Threat or Use of Nuclear Weapons (Genral Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons inArmed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at the,Criminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M., 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. especially Tuiloma Neroni Slade, Oral Argument, Nov. 13, 1995, inid. at 197 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). Ga Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. [hereinafter Slade Oral arg.]; Laurence Boisson de Chazournes, Oral Argument, Nov. 13, 1995, inid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. at 207. For differing views in the academic literature, see Leonard Marks & Howard Weller,Is the Use of Nuclear Weapons Legal? N.Y.L.J., July 11, 1994, at 1 (concluding that the WHO had competence); Nicholas Rostow,The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151 (1995) (concluding that the WHO lacked competence); Geoffrey R. Watson, ASIL Insight,The ICJ and the Lawfulness of the Use of Nuclear Weapons, Am. Soc'y Int'l L. Newsl., June 1995 (finding the WHO's competence “controversial” but having “fewer doubts” about the General Assembly). ¶ ¶ 26, 24;see also Solomon Islands' Written Observations ¶¶ 3.80, 3.103, in this issue ofCriminal Law Forum at 299 [hereinafter Solom. Is. Written Observations].Google Scholar
  23. 23.
    See supra note 1. Prosecutor v. Tadic, Case No. IT-94-1-AR72 (Int'l Crim. Trib. for Former Yugo., App. Chamber, Oct. 2, 1995), reprinted in 7 Crim. L.F. 51, 111–33, ¶¶ 96–136 (1996) (expansion of rules applicable to international armed conflict into the sphere of noninternational conflict).Google Scholar
  24. 24.
    Decisions of the Court, following European practice, include a paragraph summarizing the irreducible minimum to which the judges agree, and the votes that indicate the degree of disagreement. This paragraph is called thedispositif. GA Op.,supra note 4 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996), GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. ¶ 105 reprintedinfra at 296, is thedispositif.Google Scholar
  25. 25.
    I.C.J. Statute art. 65(1) provides that the Court “may give” advice. The Court treats this language as leaving it “a discretion as to whether or not it will give an advisory opinion that has been requested of it, once it has established its competence to do so.” GA Op.,supra note 4 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw-rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, ¶ 14. It is a discretion that the Court has never exercised. The two occasions on which the Court declined to answer can be explained in jurisdictional terms. WHO Op.,supra note 4; Advisory Opinion No. 5, Status of Eastern Carelia, 1923 P.C.I.J. (ser. B) No. 5.Google Scholar
  26. 26.
    GA Op.,supra note 4 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, ¶ 20.Google Scholar
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    Id. GA Op.,supra note 4 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, ¶ 20.Google Scholar
  28. 28.
    Slade Oral Arg.,supra note 15The Case Against the Bomb, supra note 4 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 37; for Samoa's oral presentation, seeid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 197, especially Tuiloma Neroni Slade, Oral Argument, Nov. 13, 1995, inid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 197 [hereinafter Slade Oral Arg.]; Laurence Boisson de Chazournes, Oral Argument, Nov. 13, 1995, inid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996, I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 207. For differing views in the academic literature, see Leonard Marks & Howard Weller,Is the Use of Nuclear Weapons Legal? N.Y.L.J., July 11, 1994, at 1 (concluding that the WHO had competence); Nicholas Rostow,The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151 (1995) (concluding that the WHO lacked competence); Geoffrey R. Watson, ASIL Insight,The ICJ and the Lawfulness of the Use of Nuclear Weapons, Am. Soc'y Int'l L. Newsl., June 1995 (finding the WHO's competence “controversial” but having “fewer doubts” about the General Assembly), ¶ 26.Google Scholar
  29. 29.
    See also Solom. Is. Written Observations,supra note 22 As Ambassador Slade noted: [A]lthough the General Assembly's question is not expressly limited in respect of either persons or context, we take it to be concerned, like WHO's question, which the use by States [of nuclear weapons] in “war or other armed conflict,” as I have explained that term, and with issues of state responsibility in such an event. ... [“War or other armed conflict” is the] use by a State both against another State or other international legal person, and against its own people. Slade Oral Arg.,supra note 15The Case Against the Bomb, supra note 4 Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 37; for Samoa's oral presentation, seeid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 197, especially Tuiloma Neroni Slade, Oral Argument, Nov. 13, 1995, inid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 197 [hereinafter Slade Oral Arg.]; Laurence Boisson de Chazournes, Oral Argument, Nov. 13, 1995, inid. Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 207. For differing views in the academic literature, see Leonard Marks & Howard Weller,Is the Use of Nuclear Weapons Legal?, N.Y.L.J., July 11, 1994, at 1 (concluding that the WHO had competence); Nicholas Rostow,The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151 (1995) (concluding that the WHO lacked competence); Geoffrey R. Watson, ASIL Insight,The ICJ and the Lawfulness of the Use of Nuclear Weapons, Am. Soc'y Int'l L. Newsl., June 1995 (finding the WHO's competence “controversial” but having “fewer doubts” about the General Assembly) ¶¶ 26, 24;see also Solomon Islands' Written Observations ¶¶ 3.80, 3.103, in this issue ofCriminal Law Forum at 299 [hereinafter Solom. Is. Written Observations], ¶ 3.5.Google Scholar
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    Seesupra notes 12–13 and accompanying text. For arguments that at least flirt with the view that possession and the policy of deterrence amount to either a “use” or a “threat of use”, see,e.g., Government of Australia, Oral Argument, Oct. 30, 1995, CR 95/22, at 57; Government of Malaysia, Oral Argument, Nov. 7, 1995, CR 95/27, at 52–53; Government of Indonesia, Oral Argument, Nov. 3, 1995, CR 95/25, at 19.Google Scholar
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    S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10.Google Scholar
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    Id. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10. at 18.Google Scholar
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    Ironically, an evenly divided court, with a “casting,” or tie-breaking, vote by the President of the Court, just as in GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; ¶ 105(2)(E). Under I.C.J. Statute art. 31(2), the President of the Court has both a deliberative vote and a second, “casting,” vote in the event of a tie. It is very rare for the President to be in such a position, which can occur only when there is an even number of judges because, as happened in the Nuclear Weapons cases, there is a vacancy, or because in contentious proceedings before the Court one of the parties exercises the right to appoint an (additional) ad hoc judge if there is already a judge of the nationality of the opposing party on the Court. Seeinfra text accompanying note 57.Google Scholar
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    The case came before the Court pursuant to acompromis, an agreement between the parties to refer this particular dispute to the Court.Google Scholar
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    Lotus, 1927 P.C.I.J. (ser. A) No. 10, at 18.Google Scholar
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    Id. Lotus, 1927 P.C.I.J. (ser. A) No. 10, at 52 (Lord Finlay dissenting) (emphasis added).Google Scholar
  37. 37.
    GA Op.supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. ¶ 22.Google Scholar
  38. 38.
    Id. GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996 I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases. Weeramantry Dissent, at 45–46.Google Scholar
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    Id. GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]. Shahabuddeen Dissent, at 10–11, 12–16. Finding it unnecessary to decide generally between the majority approach and Lord Finlay's approach in theLotus, Judge Shahabuddeen commented: Whichever way the issue in “Lotus” was determined, the Court's determination could be accommodated within the framework of an international society consisting of “co-existing independent communities.” Not so as regards the issue whether there is a right to use nuclear weapons. Were the Court to uphold such a right, it would be upholding a right that could be used to destroy that framework and which could not therefore be accommodated within it. However extensive might be the powers available to a State, there is not any basis for supposing that the Permanent Court of International Justice considered that, in the absence of a prohibition, they included powers the exercise of which could extinguish civilization and annihilate mankind and thus destroy the framework of the international community; powers of this kind were not in issue.Id. GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 15.Google Scholar
  40. 40.
    The majority noted that customary and treaty law “does not contain any specific prescription authorizing the threat or use of nuclear weapons.”Id. ¶ 52. What looks like an assault on theLotus is undercut later in the same paragraph: “State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition.” President Bedjaoui saw the Court as having retreated some from theLotus. Id., Bedjaoui Declaration ¶ 15.Google Scholar
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    Solom. Is. Written Observations,supra note 22, As Ambassador Slade noted: [A]lthough the General Assembly's question is not expressly limited in respect of either persons or context, we take it to be concerned, like WHO's question, with the use by States [of nuclear weapons] in “war or other armed conflict,” as I have explained that term, and with issues of state responsibility in such an event. ... [“War or other armed conflict” is the] use by a State both against another State or other international legal person and against its own people. Slade Oral Arg.,supra note 15 For Solomon Islands' written materials on the competence of the WHO, seeThe Case Against the Bomb, supra note 4, at 37; for Samoa's oral presentation, seeid. at 197, especially Tuiloma Neroni Slade, Oral Argument, Nov. 13, 1995, inid. at 197 [hereinafter Slade Oral Arg.]; Laurence Boisson de Chazournes, Oral Argument, Nov. 13, 1995, inid. at 207. For differing views in the academic literature, see Leonard Marks & Howard Weller,Is the Use of Nuclear Weapons Legal?, N.Y.L.J., July 11, 1994, at 1 (concluding that the WHO had competence); Nicholas Rostow,The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151 (1995) (concluding that the WHO lacked competence); Geoffrey R. Watson, ASIL Insight,The ICJ and the Lawfulness of the Use of Nuclear Weapons, Am. Soc'y Int'l L. Newsl., June 1995 (finding the WHO's competence “controversial” but having “fewer doubts” about the General Assembly). ¶¶ 26, 24;see also Solomon Islands' Written Observations ¶¶ 3.80, 3.103, in this issue ofCriminal Law Forum at 299 [hereinafter Solom. Is. Written Observations]. ¶4.1.Google Scholar
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    GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.]. ¶ 25. The International Covenant on Civil and Political Rights,adopted Dec. 19, 1966, art. 6(1), 999 U.N.T.S. 171 (entered into force Mar. 23, 1976), provides, in very general language, “Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.”Google Scholar
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    GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases ¶ 30.Google Scholar
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    Judges Weeramantry and Koroma offered a more careful examination of the human rights and environmental arguments in their dissents.Google Scholar
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    Solom. Is. Written Observations,supra note 22 As Ambassador Slade noted: [A]lthough the General Assembly's question is not expressly limited in respect of either persons or context, we take it to be concerned, like WHO's question, with the use by States [of nuclear weapons] in “war or other armed conflict,” as I have explained that term, and with issues of state responsibility in such an event. ... [“War or other armed conflict” is the] use by a State both against another State or other international legal person, and against its own people. Slade Oral Arg.,supra note 15, For Solomon Islands' written materials on the competence of the WHO, seeThe Case Against the Bomb, supra note 4, at 37; for Samoa's oral presentation, seeid. at 197, especially Tuiloma Neroni Slade, Oral Argument, Nov. 13, 1995, inid. at 197 [hereinafter Slade Oral Arg.]; Laurence Boisson de Chazournes, Oral Argument, Nov. 13, 1995, inid. at 207. For differing views in the academic literature, see Leonard Marks & Howard Weller,Is the Use of Nuclear Weapons Legal?, N.Y.L.J., July 11, 1994, at 1 (concluding that the WHO had competence); Nicholas Rostow,The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151 (1995) (concluding that the WHO lacked competence); Geoffrey R. Watson, ASIL Insight,The ICJ and the Lawfulness of the Use of Nuclear Weapons, Am. Soc'y Int'l L. Newsl., June 1995 (finding the WHO's competence “controversial” but having “fewer doubts” about the General Assembly). ¶¶ 26, 24;see also Solomon Islands' Written Observations ¶¶ 3.80, 3.103, in this issue ofCriminal Law Forum at 299 [hereinafter Solom. Is. Written Observations]. ¶¶ 4.1–4.49;see also Philippe Sands, Oral Argument, Nov. 14, 1995, inThe Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 277.Google Scholar
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    GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases ¶ 105(2)(B).Google Scholar
  48. 48.
    Seeid. GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases ¶ 55.Google Scholar
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    “Humanitarian law” was once used as a term of art to encompass the rules and principles contained in the Hague Conventions of 1899 and 1907 and the Geneva Conventions of 1949, and in the customary law surrounding them. This body of law affords various types of protection to civilians and combatants, originally in the context of international armed conflict but increasingly in noninternational armed conflict as well. The term now seems to extend also to the 1977 Protocols to the Geneva Conventions, which elaborate upon and expand the protection of civilians and combatants in both international and noninternational armed conflict, and to the proscriptions against genocide and crimes against humanity, which are embodied in both customary and treaty law. Hence the terminology used by the Security Council in its resolution setting up the International Tribunal for Rwanda to prosecute persons responsible for “genocide and other systematic, widespread and flagrant violations of international humanitarian law” in Rwanda. S.C. Res. 955, U.N. SCOR, 49th Year, 3453d mtg. at 1, U.N. Doc. S/RES/955 (1994).Google Scholar
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    United States v. List (Feb. 19, 1948), in 11Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No. 10, 1946–1949, at 1230, 1272.Google Scholar
  56. 56.
    GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases, at 39.Google Scholar
  57. 57.
    As in theLotus. Seesupra note 33 and accompanying text. Ironically, an evenly divided court, with a “casting,” or tie-breaking, vote by the President of the Court, just as in GA Op.,supra note 4, ¶ 105(2)(E). Under I.C.J. Statute art. 31(2), the President of the Court has both a deliberative vote and a second, “casting,” vote in the event of a tie. It is very rare for the President to be in such a position, which can occur only when there is an even number of judges because, as happened in the Nuclear Weapons cases, there is a vacancy, or because in contentious proceedings before the Court one of the parties exercises the right to appoint an (additional) ad hoc judge if there is already a judge of the nationality of the opposing party on the Court. Seeinfra text accompanying note 57.Google Scholar
  58. 58.
    One commentary on the opinion has emphasized in thedispositif the words “a state”: One of the few areas in[sic] which all parties agree is that the language of the opinion recognized the concept of collective self-defense when the Court could not conclude that the use or threat of use of nuclear weapons in a case of extreme circumstance of self-defense of a State (as opposed to “the” State) would be illegal.The International Court of Justice and Nuclear Weapons, 23(3) The Reporter—Office of the U.S. Judge Advocate General, Sept. 1996, at 21, 22. The situation is not so clear: the Court speaks, elsewhere in the opinion, of not being able to reach a conclusion on the use “bya State in an extreme circumstance of self-defence, in whichits very survival would be at stake.” GA Op.,supra note 4, ¶ 97 (emphasis added). This language is open to the interpretation that a state may use a nuclear weapon only for its own survival, not that of others. The aim of the NPT,supra note 12, is to confine possession of nuclear weapons to five major powers. Presumably, these five (and possibly any nonparties that have the weapon) are the only states that can lawfully exercise their own or other states' rights to self-defense in extreme circumstances.Google Scholar
  59. 59.
    GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases Bedjaoui Declaration ¶¶ 18–22.Google Scholar
  60. 60.
    Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases Herczegh Declaration, at 1.Google Scholar
  61. 61.
    Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases Ferrari Bravo Declaration, at 2–4.Google Scholar
  62. 62.
    Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases Fleischhauer Separate Op., at 3.Google Scholar
  63. 63.
    Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases Ranjeva Separate Op., at 8.Google Scholar
  64. 64.
    Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases Vereshchetin Declaration, at 1–2.Google Scholar
  65. 65.
    Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] Shi Declaration (which discussed only the legal significance of the policy of deterrence).Google Scholar
  66. 66.
    Note the strong criticism, from both ends of the dissent, of this failure to decide.Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] Shahabuddeen Dissent, at 10–11;id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] Koroma Dissent, at 2, 14;id., GA Op.supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] Schwebel Dissent, at 8;id. GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] Higgins Dissent, at 1, 6, 7.Google Scholar
  67. 67.
    Four days after the bombing of Hiroshima and Nagasaki, the Japanese government issued a strong protest to the government of the United States, through the government of Switzerland, claiming that the bombing violated the laws of armed conflict.See Shimoda v. State (Japan), 8 Jap. Ann. Int'l L. 212, 251 (1964) (Exhibit III). InShimoda, the Tokyo District Court held that, while the bombing of Hiroshima and Nagasaki violated the laws of armed conflict, the plaintiffs had no claim against the Japanese government for entering into a peace treaty that abandoned any rights the victims might have had against the United States. In deciding the GA question, the Court did not express any opinion on the legality or illegality of the bombing of Hiroshima and Nagasaki. Given the relative military situation of the United States and Japan at the relevant time, those actions would not pass muster under the majority's extreme situation of self-defense.Google Scholar
  68. 68.
    Seesupra notes 31–37 and accompanying text. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10.Id. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J. (ser. A) No. 10. at 18. Ironically, an evenly divided court, with a “casting,” or tie-breaking, vote by the President of the Court, just as in GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] ¶ 105(2)(E). Under I.C.J. Statute art. 31(2), the President of the Court has both a deliberative vote and a second, “casting”, vote in the event of a tie. It is very rare for the President to be in such a position, which can occur only when there is an even number of judges because, as happened in the Nuclear Weapons cases, there is a vacancy, or because in contentious proceedings before the Court one of the parties exercises the right to appoint an (additional) ad hoc judge if there is already a judge of the nationality of the opposing party on the Court. Seeinfra text accompanying note 57. The case came before the Court pursuant to acompromis an agreement between the parties to refer this particular dispute to the Court.Lotus, 1927 P.C.I.J. (ser. A) No. 10, at 18.Id. Lotus, 1927 P.C.I.J. (ser A) No. 10, at 52 (Lord Finlay dissenting) (emphasis added). GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] ¶ 22.Google Scholar
  69. 69.
    Seesupra notes 38–40 and accompanying text.Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] Weeramantry Dissent, at 45–46.Id., GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter Ga Op.] Weeramantry Dissent, at 45–46. Shahabuddeen Dissent, at 10–11, 12–16. Finding it unnecessary to decide generally between the majority approach and Lord Finlay's approach in theLotus, Judge Shahabuddeen commented: Whichever way the issue in “Lotus” was determined, the Court's determination could be accommodated within the framework of an international society consisting of “co-existing independent communities.” Not so as regards the issue whether there is a right to use nuclear weapons. Were the Court to uphold such a right, it would be upholding a right that could be used to destroy that framework and which could not therefore be accommodated within it. However extensive might be the powers available to a State, there is not any basis for supposing that the Permanent Court of International Justice considered that, in the absence of a prohibition, they included powers the exercise of which could extinguish civilization and annihilate mankind and thus destroy the framework of the international community; powers of this kind were not in issue.Id. GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] Weeramantry Dissent, at 45–46. Shahabuddeen Dissent, at 10–11, 12–16. Finding it unnecessary to decide generally between the majority approach and Lord Finlay's approach in theLotus, Judge Shahabuddeen commented: Whichever way the issue in “Lotus” was determined, the Court's determination could be accommodated within the framework of an international society consisting of “co-existing independent communities.” Not so as regards the issue whether there is a right to use nuclear weapons. Were the Court to uphold such a right, it would be upholding a right that could be used to destroy that framework and which could not therefore be accommodated within it. However extensive might be the powers available to a State, there is not any basis for supposing that the Permanent Court of International Justice considered that, in the absence of a prohibition, they included powers the exercise of which could extinguish civilization and annihilate mankind and thus destroy the framework of the international community; powers of this kind were not in issue. The majority noted that customary and treaty law “does not contain any specific prescription authorizing the threat or use of nuclear weapons.”Id. ¶ 52. What looks like an assault on theLotus is undercut laer in the same paragraph: “State practice shows that the illegality of the use of certain weapons as such does not result from an absence of authorization but, on the contrary, is formulated in terms of prohibition.” President Bedjaoui saw the Court as having retreated some from theLotus. Id., Bedjaoui Declaration ¶ 15.Google Scholar
  70. 70.
    Note GA Op.supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op] ¶ 105(2)(A), where the Court unanimously decided in thedispositif that “[t]here is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons.” “Authorization” is surely from the Finlay dissent in theLotus. Seesupra note 36Id. Lotus, 1927 P.C.I.J. (ser A) No. 10. at 52 (Lord Finlay dissenting) (emphasis added) and accompanying text. The above-quoted subparagraph ought, on his analysis, to lead to an opinion in favor of the nonnuclear powers, but the majority did not go that way.Google Scholar
  71. 71.
    GA Op.,supra note 4, Legality of the Threat or Use of Nuclear Weapors (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases ¶ 96.Google Scholar
  72. 72.
    Id., GA Op.,supa note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. —(July 8) [hereinafter GA Op.]; Legality of the Use by a State of Nuclear Weapons in Armed Conflict (World Health Organization), 1996. I.C.J. — (July 8) [hereinafter WHO Op.]. These opinions, as well as the individual opinions in both cases, and the oral arguments, written submissions, and further written submissions by Marshall Islands, Samoa, and Solomon Islands in both cases, are available at theCriminal Law Forum World Wide Web page, http://www-camlaw.rutgers.edu/publications/crimlawforum/. Much of this material is also reproduced inThe Case Against the Bomb (Roger S. Clark & Madeleine Sann eds., 1996). GA Op.,supra, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases Schwebel Dissent, at 1.Google Scholar
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    Id., GA Op.,supra note 4, Legality of the Threat or Use Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] Shi Declaration (emphasizing principle of “sovereign equality” of states);id., Ferrari Bravo Declaration, at 4 (claiming that deterrence is not a legal theory). The Pacific coalition legal team took the position that the proceedings were not about either possession or deterrence and thus the policy was irrelevant to the legal issues involved. Joint Answer to Schwebel Question of Nov. 14, 1995,supra note 13, Answers Submitted Jointly on Behalf of Marshall Islands, Samoa, and Solomon Islands, inThe Case Against the Bomb,supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 295, 301–03 (Schwebel Question of Nov. 14, 1995).see also Solom. Is. Written Observations,supra note 22, As Ambassador Slade noted: [A]lthough the General Assembly's question is not expressly limited in respect of either persons or context, we take it to be concerned, like WHO's question, with the use by States [of nuclear weapons] in “war or other armed conflict,” as I have explained that term, and with issues of state responsibility in such an event. ... [“War or other armed conflict” is the] use by a State both against another State or other international legal person and against its own people. Slade Oral Arg.,supra note 15, For Solomon Islands' Written materials on the competence of the WHO, seeThe Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly) 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 37; for Samoa's oral presentation, seeid. The Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 197, especially Tuiloma Neroni Slade, Oral Argument, Nov. 13, 1995, inid. The Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 197 [hereinafter Slade Oral Arg.]; Laurence Boisson de Chazournes, Oral Argument, Nov. 13, 1995, inid. The Case Against the Bomb, supra note 4, Legalityof the Threat of Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 207. For differing, views in the academic literature, see Leonard Marks & Howard Weller,Is the Use of Nuclear Weapons Legal?, N.Y.L.J., July 11, 1994, at 1 (concluding that the WHO had competence); Nicholas Rostow,The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151 (1995) (concluding that the WHO lacked competence); Geoffrey R. Watson, ASIL Insight,The ICJ and the Lawfulness of the Use of Nuclear Weapons, Am. Soc'y Int'l L. Newsl., June 1995 (finding the WHO's competence “controversial” but having “fewer doubts” about the General Assembly). ¶¶ 26, 24;see also Solomon Islands' Written Observations ¶¶ 3.80, 3.103, in this issue ofCriminal Law Forum at 299 [hereinafter Solom. Is. Written Observations] ¶¶, 3.4–3.5.Google Scholar
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    As notedsupra p. 268, Professor Rotblat was also a major contributor to the WHO's work on the effects of nuclear weapons. The Court also had before it voluminous material from the WHO. Detailed factual discussion is also provided in Solom. Is. Written Observations,supra note 22, As Ambassador Slade noted: [A]lthough the General Assembly's question is not expressly limited in respect of either persons or context, we take it to be concerned, like WHO's question, with the use by States [of nuclear weapons] in “war or other armed conflict,” as I have explained that term, and with issues of state responsibility in such an event. ... [“War or other armed conflict” is the] use by a State both against another State or other international legal person and against its own people. Slade Oral Arg.,supra note 15, For Solomon Islands' written materials on the competence of the WHO, seeThe Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly) 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 37; for Samoa's oral presentation, seeid. The Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 197, especially Tuiloma Neroni Slade, Oral Argument, Nov. 13, 1995, inid. The Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 197 [hereinafter Slade Oral Arg.]; Laurence Boisson de Chazournes, Oral Argument, Nov. 13, 1995, inid. The Case Against the Bomb, supra note 4, Legality of the Threat or Use of Nuclear Weapons (General Assembly), 1996 I.C.J. — (July 8) [hereinafter GA Op.] at 207. For differing views in the academic literature, see Leonard Marks & Howard Weller,Is the Use of Nuclear Weapons Legal?, N.Y.L.J., July 11, 1994, at 1 (concluding that the WHO had competence); Nicholas Rostow,The World Health Organization, the International Court of Justice, and Nuclear Weapons, 20 Yale J. Int'l L. 151 (1995) (concluding that the WHO lacked competence); Geoffrey R. Watson, ASIL Insight,The ICJ and the Law fulness of the Use of Nuclear Weapons, Am. Soc'y Int'l L. Newsl., June 1995 (finding the WHO's competence “controvesial” but having “fewer doubts” about the General Assembly). ¶¶ 26, 24;see also Solomon Islands' Written Observations ¶¶ 3.80, 3.103, in this issue ofCriminal Law Forum at 299 [hereinafter Solom. Is. Written Observations]. ¶¶ 3.44–3.76, 4.1–4.2.Google Scholar
  75. 75.
    Under I.C.J. Statute art. 66(2), the Court in advisory proceedings, may receive written and oral statements from NGOs. IPPNW endeavored to present a statement in the WHO case but was rebuffed. Letter from the Registrar of the International Court of Justice to IPPNW (Mar. 28, 1994) (on file with Roger S. Clark); Dinah Shelton,The Participation of Nongovernmental Organizations in International Judicial Proceedings, 88 Am J. Int'l L. 611, 624 (1994). At a late stage, the International Committee of the Red Cross sent material to the Court concerning, in particular, the Geneva Protocols of 1977. The receipt (or nonreceipt) of this material was controversial but I can find to reference to it in either opinion.Google Scholar
  76. 76.
    I.C.J. Statute art. 68 gives the Court wide latitude: “In the exercise of its advisory functions the Court shall further be guided by the provisions of the present Statute which apply in contentious cases to the extent to which it recognizes them to be applicable.”Google Scholar
  77. 77.
    GA Op.,supra note 4, is reprinted in 35 I.L.M. 809. References herein are to the text of GA Op.,supra, as supplied by the Registrar of the International Court of Justice, and to photocopies of WHO Op.,supra, and of the individual opinions in both cases.Google Scholar
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    Seesupra note 12. Treaty on the Non-Proliferation of Nuclear Weapons, July 1, 1968, 729 U.N.T.S. 161 (entered into force mar. 5, 1970) [hereinafter NPT]. The NPT draws a distinction between “nuclear weapon states” and “non-nuclear weapon states.”Id. art. IX defines a nuclear weapon state as “one which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967.” In practical terms, this means China, France, the Russian Federation, the United Kongdom, and the United States. Nuclear weapon states promise nor to transfer weapons, or the means of making them, to non-nuclear weapon states. Non-nuclear weapon states agree not to acquire nuclear weapons or the means of making them. The NPT was extended indefinitely in 1995. United Nations,Final Document on Extension of the Treaty on the Non-Proliferation of Nuclear Weapons, U.N. Doc. NPT/CONF. 1995/32 (Part I), reprinted in 34 I.L.M. 959; Tuiloma Neroni Slade,1995 Review and Extension of the Treaty on the Non-Proliferation of Nuclear Weapons, 5 Rev. Eur. Community & Int'l Envtl. L. 246 (1996).Google Scholar
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    U.N. Doc A/50/1027 (1996);see Ian Williams,The End of the Nuclear Age, Pacific Is. Monthly, Nov. 1996, at 11.Google Scholar
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    U.N. Doc. A/C.1/51/L.37 (1996). In this connection, see the series of practical steps toward nuclear disarmament recommended in Report of the Canberra Commission on the Elimination of Nuclear Weapons (Aug. 1996);see also World Court Project, Implications of the Advisory Opinion by the International Court of Justice on the Legal Status of Nuclear Weapons (Oct. 1996).Google Scholar

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© Rutgers University School of Law at Camden 1996

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  • Roger S. Clark

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