Legality of the Use by a State of Nuclear Weapons in Armed Conflict
OVERVIEW OF THE CASE
By a letter dated 27 August 1993, filed in the Registry on 3 September 1993, the Director-General of the World Health Organization officially communicated to the Registrar a decision taken by the World Health Assembly to submit to the Court the following question, set forth in resolution WHA46.40 adopted on 14 May 1993
“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 ?”
The Court decided that the WHO and the member States of that organization entitled to appear before the Court were likely to be able to furnish information on the question, in accordance with Article 66, paragraph 2, of the Statute. Written statements were filed by 35 States, and subsequently written observations on those written statements were presented by nine States. In the course of the oral proceedings, which took place in October and November 1995, the WHO and 20 States presented oral statements. On 8 July 1996, the Court found that it was not able to give the advisory opinion requested by the World Health Assembly.
It considered that three conditions had to be satisfied in order to found the jurisdiction of the Court when a request for advisory opinion was submitted to it by a specialized agency : the agency requesting the opinion had to be duly authorized, under the Charter, to request opinions of the Court ; the opinion requested had to be on a legal question ; and that question had to be one arising within the scope of the activities of the requesting agency. The first two conditions had been met. With regard to the third, however, the Court found that although according to its Constitution the WHO is authorized to deal with the health effects of the use of nuclear weapons, or of any other hazardous activity, and to take preventive measures aimed at protecting the health of populations in the event of such weapons being used or such activities engaged in, the question put to the Court in the present case related not to the effects of the use of nuclear weapons on health, but to the legality of the use of such weapons in view of their health and environmental effects.
The Court further pointed out that international organizations did not, like States, possess a general competence, but were governed by the “principle of speciality”, that is to say, they were invested by the States which created them with powers, the limits of which were a function of the common interests whose promotion those States entrusted to them. Besides, the WHO was an international organization of a particular kind — a “specialized agency” forming part of a system based on the Charter of the United Nations, which was designed to organize international co-operation in a coherent fashion by bringing the United Nations, invested with powers of general scope, into relationship with various autonomous and complementary organizations, invested with sectorial powers. The Court therefore concluded that the responsibilities of the WHO were necessarily restricted to the sphere of “public health” and could not encroach on the responsibilities of other parts of the United Nations system. There was no doubt that questions concerning the use of force, the regulation of armaments and disarmament were within the competence of the United Nations and lay outside that of the specialized agencies. The Court accordingly found that the request for an advisory opinion submitted by the WHO did not relate to a question arising “within the scope of [the] activities” of that organization.
This overview is provided for information only and in no way involves the responsibility of the Court.