Written Statementof the Governmentof Mexico . ~
EMBAJADADE hlEXlCO
-. . .
WRITTEN STATEMENT BY THE GOVERNMENT OF MEXICO ON THE
REQUEST FOR AN ADVISORY OPINION SWMITTED TO THE
INTERNATIONAL COURT OF JüSTICE BY TRE FORTY-SIXTH WORLD
HEALTH ASSEMBLY (RESOLUTION WEiA46.40ADOPTED 14 MAY 1993).
1. Pursuant to Article 66, paragraph 2 of the Statute of
International Court of Justice and recalling the Court
Order of 13 Septem--r 1993, the Government of Mexico
submits hereby the following written statement on the
request for an advisory opinion submitted to theCourt per
resolution WHA 46.40, adopted by the Forty-sixth World
Hzalth Assembly on 14 May 1993, on the question:
"In view of the health and environmentaleffects would the
use of nuclear weapons by a State in war or other armed'
conflict be a breach of its obligationsunder international
law, including the WHO Constitution?
2. This statement wi11 answer the aforementioned question -
in the affirmative. It will allege that, in view of its
effects on health and the environment, the use of nuclear
weapons by a State in war or other armed conflict
constitutes a breach of the obligations imposed by
international law, including the Constitution of the World
Health Organization (WHO), in that it represents a breach
of generally-accepted, conventional and customary
principles. of international law, mainly those that
guarantee peace and international security, the right to
life and health; the protection to the environment; and the
protection to mankind, since the effects of nuclear weapons
are genetically passed on to future generations and alter
the lives of human beings not yet conceived.
Introduction
3. The definition of health in the Preamble of the
Constitution of the World Health Organization asa "state
of complete physical,mental and socialwell-being, and not
particularly relevant in asserting the faculty of WHO to, is
request the aforementioned advisory opinion.Since the
functions of WHO include to take al1 necessary actions in
order to accomplish its objective of the attaining by al1
peoples of the highest possible level of health (Article
2), -the request for an advisory opinionof this Court does ..
EXBAJADADE MEXICO
indeed represent an important measurefor achieving such an
objective.
Health Assembly as per its resoiutionraWHA 34.38,e since 1981
based on nurnerousresearch experiments,on the effects oforts,
nuclear war on health and health services. The first,
approved in 1983 by resolution WHA 36.28, pertains to
scientific aspects of the problem such .as characteristics
of nuclear explosionsand their effects, relief for victims
and short and long-term effects of a nuclear war on health
services. The main conclusion of this reportis that the
onl-yapproach to treatment of health effects of nuclear
explosions is primary prevention of this type of
explosions, that is prevention of atomic war. The second
edition of the report, approved in 1987 by resolution WHA
40.27, includes among the immediate effects of a nuclear'
explosion,' environmental alteration and climate change
worldwide, deaths and injuries caused by explosive and
thermal shock, diseases such as radiation syndromes and
destruction and deterioration of health services and
contaminationof crops and cattle from radiation, etc. And
in the medium and long-term, there would be health problems
as a result of damage to immune system, increased
susceptibilityto cancer and genetic damage.
5. The effects on climate would have an impact not only on
countries involved in armed conflict but on non-combatant-
countries as we11, affecting most of the people in the
world. Nuclear explosions would cause enormous fires that...
might produce serious clirnatedisturbances: The black
smoke from these fires would spread through the atmosphere
to large areas of the earth. The presence of large amounts
of soot in the atmosphere would severely alter the radiant
hthe earth's surface wouldbe cooled and the upper layers of
the atmosphere warmed, creating conditions of
meteorological inversionand rain shortages over extensive
areas of continents. This factor would seriously impair
agricultural productivity,which would in turn contribute
to a severe food shortage.
6. The use of nuciear weapons wouldalso give rise to many
other potentially serious physical and atmospheric
disturbances; such as the deposit of radioactive sediments
on the earth's surface, release of dust into the air
cooling the earth's surface furtherly, reduction .of
stratospheric ozone, and release of air pollutants andtoxic chemicals from fires and chemical industries. The
impact on the environment would be extremely damaging to
almost the entire pl -anet.
7. In light of the aforementioned effectsof the use of
nuclear warfare, this statement shall identify the
principle> of international law that would be infringed
upon in the event of the use of nuclear weapons in an armed
conflict . Throughout this statementthe term nuclear arm
is understood in its broad sense: "A .collective term for
atomic and hydr-ogen weapons of al1 types and their delivery
systems" (United Nations. Disarmament Facts: Towards a
Nuclear-Test Ban. New York, 1989. p. 21). -
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8. The relevant scientificdata outlined in the reports of
the Director-General of the ..World Health Organization on
the effect of nuclear war on health and the environment,
approved by resolutions WHA 36.28 of 1983 and WHA 40.27 of
1987, contain sufficient authoritativeopinions to produce
legal effects within the scope of international law on.the
sub-ject. A universal reinterpretation is obviously called -+.
for in the light of these studies and the advisory opinion
of the International Court of Justice would therefore
represent a pertinent contribution to the development of
international law.
Maintenance of internatio..l peace and security
9. One of the principal Purposes of the United Nations, as
stated in the Preamble of the Charter, is to ". .save
succeeding generations from the scourgeof war, which twice
in our lifetime has brought untold sorrow to mankind.,."
This objective would obviouslybe frustated if a State had
the capacity to resort to nuclear arms, thereby causing
mass destruction of life in the attacked state, in the
population of other neighboring States and extremely
harmful effects on health and the environmentin -the rest
of the world. .. .
10. Additionally, the Charter of the United Nations
establishes as one of its Principles the proscription of
the threat -or use of force against the territorial
integrity or political independenceof any State, or in any
other manner inconsistent withthe Purposes of the United
use of force is applicable regardlessthe type of armsn of the
employed and, therefore, the use of nuclear arms in
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violation of Article 2, paragraph 4, would undoubtedly be a
breach of internationallaw.
11. International law does also recognize the right of
individual or collective self-defence, if exercised in
accordance with Article 51 of the Charter. Additionally,
international customary law, mainly established in The
Carolina Case (US vs Canada, 1837, in Moore, Diaest of
~nternational Law, Vo1.2, p. 409 and McNair, International
Law O~inions, vol. ii, p. 221) requires that an action..of
self-defence satisfks the following requisites: (a)
instant and overwhelmingnecessity, (b) no choice of means,
(c)no moment for deliberation, and (d) proportionality. It
should also be observed that in any event, military
actions in self-defence must also be governed by the rules
of international humanitarianlaw in the same degree as in
the case of war or other armed conflict. .-
couldn theoretically beencresortedto nuclear arms..k,if the
requirements of Article 51 of the Charter and the rules of
customary law of The Carolina Case are satisfied. As
regards necessity, it must be stressed that it is not an
absolute and that it cannot derogate other principles of
international law, as explained in paragraphs 26 to 29
infra. It could be argued that the requirements of absence
of other means or no moment for deliberation could be
somehow met, however the requirment of proportionality by
no means could be satisfied. In case of a nuclear attack,
a nuclear response would be out of control (see paragraphs
18 to 20 infra). Therefore, the enforcement of the
doctrine of nuclear deterrence contradictsthe concept of
self-defenceas accepted in internationallaw.
~. .
13. On the other hand, provisions of Article 51 of the
Charter proscribes contrario sensu the concept of
preventive self-defence, as sustained by Mexico in San
Francisco; that is, the right to self-defence may not be
invoked if there has been no act of aggression..
Furthermore, for effects of precedents. ofthis Article, it
should be recalled that the principle of proportionality
was subject of authoritative opinions, as observed in the
Lytton Report (Official Gazette of the League of Nations,
Special supplement No. 111, p. 44, quoted by Antonio
Cassesse in his analysis of Article 51 in La Charte des
Nations Unies, Jean Pierre Cot and Alain Pellet, 1985).
14. It is noteworthy that the first resolution adopted by
the United Nations GeneralAssembly, only four months afterEXfBAJADDE MEXICO
the dropping of the two atomic bombs over Hiroshima and
Nagasaki, acknowledged the dangerof nuclear warfare to
mankind. In resolution 1653 (XVI),dated 24 November 1961,
the .GeneralAssembly-declared that the use of nuclear or
thermonuclear warfare constitutes a violation of the
Charter and a crime against mankind and civilization. This
condemnation was reaffirmed in resolutions 33/71 B of 14
December 1978; 34/83 G of 11 December 1979, 35/152 of 12
December 1980; and 36/92 1 of 9 December 1981.
International Humanitarian Law
15. International law on armed conflict is codified in a -
body of international legal rules that, by virtue of the
principles of proportionality, moderation,discrimination
and necessity, ban the use of nuclear arms in the event of
an armed conflict. In light of the rules of international-
law analyzed hereunder, the doctrines adopted by the
nations that have developed nuclear arms have no
justification.whatsoever. In fact, the concept of mutual .
assured destruction and the doctrine of deterrence run
counter to the fundamental principlesof international law
on armed conflict; the principles of proportionality,
discrimination,necessity and moderation, in particular.
16. In addition to the four Geneva Conventions of 1949 and
the Protocols of 1977, these principles, closelyrelated to
ius cosens, have been reaffirmedin several multilateral
instruments, including: the Declaration banning the useof
400 gram weights, 1868; Convention on respecting the laws
and customs of war on land, 1899; The Hague Declaration
concerning asphyxiating gases, 1899; the Declaration on
dumdum expanding bullets, 1989; Convention on mines ..
automatically detonated by contact, 1907; Convention that
prohibits dropping projectiles and explosives from
balloons, 1907; Treaty relating the use of submarines and
noxiuos gases in warfare, 1922; The Hague Rules of Air
Warfare, 1922/23.;Protocol for the prohibition of the use
in war of asphyxiating,poisonous or other gases, and-of
bacteriological methods of warfare, 1925; the League of
Nations resolution on the protection of civilian
populations against bombing from the--air in case of war,
'1938; Draft rules for the limitation of the dangers
Declaration banning the use of nuclear and thermonuclear1956;
warfare, 1961; the Resolution on human rights in armed
conflict adopted by the International Conferenceon Human
Rights convened by the United Nations in Teheran, 1968;EMBAJADADE MEXICO
Assembly on the respect of human rights in armed conflicts;
Assemblyon on03chemicalV)and bacteriologicaltio(biological)
warfare, 1969; and many others referred to subsequently.
17. ~t is important to add that many of these multilateral
instruments were ratified at the time by States that are
currently nuclear powers, such as the Regulations on laws
and customs of war on land of the Convention for peaceful
settlement of in~ernationaldisputes, July 1899; Convention
for adaptation of the Principles of the Geneva Convention
of 22 May 1864 to naval warfare; the Declaration that
prohibits dropping projectiles and explosivesfrom balloons
or similar means, 1899; the Declaration on the use of
projectiles for spreading asphyxiatingor noxious gases;
and the Declaration on the use of bullets that are easily
crushed in the human body.
Principleof proportionality
18. The principle of proportionality prohibits reprisals
disproportionate to preceding provocationor to legitimate
military targets, or against perçons, institutions and
resources protected by-the internationalhumanitarian law.
19. The IV Geneva Convention of 12 August 1949 prohibits
reprisals against protected persons or their property
(Article 33). Furthermore, the Protocol Additional to the
1949 Geneva Conventions relating to the protection of
victims of international armed conflicts (Protocol 1,
adopted in Geneva on 8 June 19771, provides that attacks
against the civilian population or civilians by way of
civilian objectç shall not be the object of attacks or 6);
reprisals (Article 52, paragraph i); it is prohibited to
make the object of reprisals objects indispensable forthe
survival of the civilian population -foodstuffS,
agricultural areas for the production of foodstuffs, crops,
livestock, drinking water, installations and supplies and
irrigationworks- (Article54, paragraphs 2 and 4).
20. In view of special protection to civilians in
conflicts, the use of nuclear arms is obviously
disproportionate,and therefore illegal.
Principle of moderationEZIBAJADDEMEXICO
21. International humanitarian law provides for a princi~le
of moderation, whereby the right of belligerents to adÔpt
measures against the enemy is not unlimited. The 1925
Geneva Gas Protocol prohibited the use of asphyxiating,
poisonous or other gases and of bacteriological methodsof
warfare.
22. Furthermore, pursuant to common Article 3 of the four
1949 Geneva Conventions, perçonstaking no active part in
the hostilities shall in al1 ..cir.cumstance be treated
humanely and protected from violenceto life and person.
23. Protocol 1 to the 1949 Geneva conkention.~r .epresgnts
the most extensive confirmation of the principle of ,.
moderation. First, it provides that the right. of Parties
to a conflict to hoo oseethods or means of warfare is not
unlimited and that it is prohibited to. employ weapons,.
projectiles and materials and methods of warfare of a.
nature to cause superfluous injury or unnecessary suffering
(Article 35). This provision also adds a prohibition
against the employnent of methods or means of warfare .-
causing widespread, long-term and severe damage -to the
environment.
24. Thus the use of nuclear arms constitutes a breach of
the obligation-of belligerents to limit their choice of
warfare methods.
Princip1e of discrimina tion
weapons that fail to discriminate between civilian andf
military personnel. Mexico, as depositary of the Treaty
for the prohibitionof nuclear weapons in Latin America and
the Caribbean (Treatyof Tlaltelolco)is morally obliged to
cal1 the attention of this Court to paragraph 9 of the
Prearnble to the Treaty, which discriminates between
civilian and military personnel: "That nuclear weapons,
whose terrible effects are suffered indiscriminatela ynd
inexorably, by military forces and civilian populations
alike, constitute, through the persistence of the
radioactivity they release, an attack on the integrity of
the human species; and ultimately may even render the whole
earth uninhabitable."
Princip1e of necessity
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26. The principle of necessity acknowledges a prohibition
on using weapons with a scope that exceeds the effect
needed to accomplish a legitimatemilitary objective.
27. some arguments used in armed conflicts have attempted
to justify actions based on the fact thataccomplishment of
a military objective supersedes other principles in order
to achieve final victory. Nonetheless, necessity is not an
certain weapons or military tactics if their useto prohibwere
subsequently justified by virtue of military requirements.
28. International humanitarian law has proceeded -to
establishing exceptions under circumstances in which
certain principles would fail to apply by virtue of
military necessity. For example, Protocol 1 to the 1949
Geneva Conventions grants Member States an exemption from.
the prohibition against attacking, destroying, pillaging or'
disabling goods indispensable to the survival of the
civilian population, such as foodstuffs, agriculturalareas
for the production of foodstuffs, crops, livestock,
drinking water, installations and supplies and irrigation
works, where required by imperative military necessity
(Article 54, paragraph 5). Nonetheless, common Article 1
of the four Geneva Conventions,enjoins High Contracting
Parties to respect their provisions "in al1 circumstances.~
29. Therefore, unless the use of nuclear arms were
explicitly permitted, States would be banned from resorting
to nuclear arms since there would be no place for an
exception on the use of nuclear arms justifying an
"imperative military necessity", if we bear in mind that
international humanitarian law protects civilians in al1
circumstances.
Right to life and health
30. Both conventional and customary international law
guarantee the right to life and health. Obviously, any
threat or use of nuclear warfare would make an attempt
against these legally-protected goods. Likewise, the
design, testing, manufacture,possession and deployment of
nuclear weapons represent a threat to the right to life and
health, which might be actualized not only in an armed
attack but also in the event of human error.
31. Article 3 of the Universal Declaration of Human Rights
of -1948 provides for the right to life, freedom and security of person. Article 6, paragraph 1 of the
International Covenant on Civil and Political Rights
stipulates that every human being has the inherent right to
life.
32. in so far as the right tohealth is concerned, the 189
WHO Member States -.areobliged to respect the Principles
laid dom in the WHO Constitution, especially the
fundamental right of every human being to the enjoyment of
the highest attainable standard of health (paragraph two-of
the preamble) ; that the health of al1 peoples is
fundamental to the attainment of peace and security
(paragraph three of the preamble); and that governments
which can be fulfilled only by the provision of adequate
health and social measures (paragraph nine of the
preamble) .
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33. The use of nuclear arms by a WHO Member State in a war
or armed conflict, would constitute a breach of the
obligations laid down in the Constitutionof WHO, impairing
cornpliancewith the Principles outlined in the preceding -
paragraph, the objective of WHO of the attaining by al1
peoples of the highest possiblelevel of health (Article 1)
and the functions of WHO to act as the directing and co-
ordinating authority ininternationalhealth work (Article
2 (a)); to promote the prevention of accidental injuries
(Article 2 (h)); to make recommendations with respect to
international health matters (Article2 (k); and to take
al1 necessary action to attain the objective of the
- Organization (Article 2 (v)).
34. Conclusions of the reports of the Director-General of
the World Health Organizationon the-effectsof nuclear war
on health and the environment, approved by resolutions
WHA36.28 of 1983 and WHA40.27 of 1987, are proof of the
state of insufficiency that the WHO would encounter to
fulfill its functions in the event of the effects of the
use of nuclear arms in an armed conf lict . Thus the.direct
actor of this artificial state of insufficiency wouldbe
breaching its fundamental obligationsunder the WHO
Constitution.
Protection of the environment
35. Likewise, there is a consolidated bodyof environmental
law, whereby the threat or use of nuclear arm in an armedEMBAJADADE MEXICO
conflict would constitute a breach of principles of
internationalenvironmental law generallyaccepted.
36. A starting po3nt in the analysis of the rules
integrating such a body of law is the Declaration adopted
by the United Nations Conferenceon the Human Environment,
held in S-tockholmin 1972. Principle 21 of the Stockholm
Declaration embodies a general principle of international
law whereby al1 States have the responsibility to ensure
that activities withintheir jnrisdictionor control do not
cause damage tq..theenvironment of other States and areas
beyond the limits of national jurisdiction. Thus Principle
21 provides for a limit on a presumed absolute right to
explosions, which would have aegal .harmful impact on otheror
States.
37. Principle 21 was also included at Che United Nations
Conference on the Environment and Development, held in Rio
de Janeiro in June 1992. In fact, Principle 2 of the
Declaration adopted on that occasion reproduces..and
reiterates Principle 21 of the Stockholm Declaration.
Further, Principle 1 of the Declaration of Rio provides
that human beings are at the center of concerns for
sustainable development and are entitled to a healthy and
-productive life in harmony with nature. Principle 25,
which provides that peace, development and environmental
protection are interdependent and indivisible, is equally
important. .. .
38. Furthermore, it must be borne in mind that, given its
effects on tke ozone layer and on the world climate, the
use of nuclear arms might also infringe upon the principles
outlined in the Framework Convention on Climate Change,
adopted 9 May 1992, which in Article 3, paragraph 1,
provides for the obligation of Parties to protect the
climate system for the benefit of present and future
generations.
. .
39. Finally, it is worth noting that international
humanitarian law protect the environmentduring the course
of hostilities. Protocol 1 of the 1949 Geneva Conventions
provides several obligations. It mainly prohibits the use
of methods or means of warfare which are intended, or may
be expected, to cause widespread, long-term and severe
damage to the environment (Article 35, paragraph 3).
Furthermore, it provides for the obligation to safeguard
protection of the nat..al environment against widesperad,long-term and severe damage in warfare (Article 55,
paragraph 1).
40. Although the Convention on the prohibition of military
or any other hostile use of environmental modification
techniques, adopted on 18 May 1977, does not sufficiently
protect the environmentin case of war, it does contain
obligations aiming at preventing the effects of
environmental degradation by the use of warfare techniques,
such as those produced in the event of the use of nuclear
arms . Article 1, paragraph -1 of the Convention provides
for the obligation of Parties not to engage in military or
any other hostile use of environmental modification
techniques having widespread, long-lasting or severe --
effects as the means of destruction, damage or injury to
any other State Party.
Conclusion
41. In the light of the legal arguments mentionedaboved,
it is concluded that the use of nuclear arms in war or -
other armed con£lict constitute a breach of both
conventionaland customary internationallaw, including the
Constitutionof the Wor-1-dealth Organization.
Mexico, D.F., 9 June 1994
Written Statement of the Government of Mexico