• Kakoli Nath

Whether States Are Permitted to Use Nuclear Weapons under International Law: Analysis and Opinion.

Introduction

International humanitarian law originates from customary law has its widespread in all continents through generations. This branch is called law and customs of war. Professor Francis Lieber drafted this custom in one catalogue by the instruction given by government of armies of the United States and by president Lincoln in 1863 during the American civil war and on the basis of draft on an International Convention on the laws and customs of war presented in Brussels conference in 1874 which used in development of the 1899 and 1907 Hague Conventions and Declarations. The International Committee of the Red Cross (ICRC), founded in 1863 which is driving force in the development of the Humanitarian Law.

It led to the process for the Geneva Conventions for the protection of the victims of war of 1864, 1906, 1929 and 1949. Has it origin at the 1899 Hague Convention (III) and 1907 Hague Convention (X), which adapted, respectively, the 1864 and 1906 Geneva Conventions to maritime warfare and was the forerunner of the Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea of 1949. It took the action to supplement the Geneva Conventions that led to the adoption in 1977 of two Additional Protocols.

The two important barriers for applying these treaties to current armed conflicts are: First, treaties apply only to the States that have authorized them. This means that different treaties of international humanitarian law are applied to different armed conflicts depending on which treaties the States involved have authorized. While nearly all States have approved the four Geneva Conventions of 1949, Additional Protocol I have not yet gained universal loyalty. As the Protocol is applicable only between parties to a conflict that have approved it, its efficacy today is limited because several States that have been involved in international armed conflicts are not a party to it. Similarly, Additional Protocol II is only applicable in armed conflicts taking place on the territory of a State that has authorized it. While some 150 States have approved this Protocol, several States in which non-international armed conflicts are taking place have not. In these non-international armed conflicts, common Article 3 of the four Geneva Conventions often remains the only applicable treaty provision.


Secondly, majority of current armed conflicts are non-international, so this wealth of treaty law does not regulate a large proportion of today’s armed conflicts in sufficient detail. Which are subject to far fewer treaty rules than international conflicts? In fact, only a limited number of treaties apply to non-international armed conflicts, namely the Convention on Certain Conventional Weapons, as amended, the Statute of the International Criminal Court, the Ottawa Convention banning anti-personnel landmines, the Chemical Weapons Convention, the Hague Convention for the Protection of Cultural Property and its Second Protocol and, as already mentioned, Additional Protocol II and Article 3 common to the four Geneva Conventions. While common Article 3 is of fundamental importance, it only provides a rudimentary framework of minimum standards and does not contain much detail.

Facts:

Whether states are permitted to use nuclear weapons under international law was placed before the International Court of Justice by the U.N. General Assembly. 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

Issue. Under certain circumstances, are threats or use of nuclear weapons permitted under international law?

Analysis Judgement of Court:

“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 in accordance with Article 66, paragraph 2, of the Statute. Written statements were filed by 35 States. During the oral proceedings 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.


· The three conditions had to be satisfied in order to find 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. It is the principles of special protection of certain categories of persons, such as prisoners of war, internees, repatriates and medical and religious personnel, as well as on the principles of special protection of specific categories of locations and premises that are to be protected against the impact of hostilities, namely, cultural property, hospitals, graves and the natural environment. 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. Advisory opinion

THE DIRECTOR-GENERAL OF THE WORLD HEALTH ORGANIZATION TO THE REGISTRAR OF THE INTERNATIONAL COURT OF JUSTICE 27 August 1993. Pusuant to resolution WHA46.40 adopted by the World Health Assembly on 14 May 1993, and in accordance with Article 96, paragraph 2, of the Charter of the United Nations, Article 76 of the Constitution of the World Health Organization, and Article X, paragraph 2, of the Agreement between the United Nations and the World Health Organization, first have the honour to lay before the International Court of Justice for its advisory opinion the following question: "ln 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"

Mindful of the role of WHO as defined in its Constitution to an as the directing and coordinating authority on international health work:

(Article 2 (a,): to propose conventions, agreements and regulations. (Article 2 (k)); to report on administrative and social techniques affecting public health from preventive and curative points of view (Article 2 (p)): and to take all necessary action to attain the objectives of the Organization (Article 2 (v)): Realizing that primary prevention of the health hazards of nuclear weapons requires clarity about the status in international law of their use and that over the last 48 reveals marked differences of opinion have been expressed by Member States about the lawfulness of the use of nuclear weapons;' . Decides, in accordance with Article 96 (2) of the Charter.


Analysis on Indian perspectives:

I was the Letter dated 20 June 1995 from the Ambassador of India, together with Written Comments of the Government of India (written proceedings)

The question raised on whether WHO request an opinion from ICJ?

Firstly, in accordance with Article 96(2) of the Charter of the United Nations, Article 76 of its Constitution and Article 10(2) of its agreement with the United Nations, the WHO may request an Advisory Opinion from the Court on any legal question within the scope of its activities.

Secondly Request within the scope of WHO activities

It is a "legal questioning' concerning international legal aspects of the use of nuclear weapons which would, no matter how cautiously employed, affect human health and the environment in an irretrievable way. The WHO request invites the Court to contribute through the exercise of its advisory role to the effective functioning of the UN system and the activities of one of its Specialized agencies. The World Health Assembly has declared that the primary objective of prevention of the health hazards posed by nuclear weapons requires clarity about their statue in international law since "over the last 48 years marked difference of opinion have men expressed by member States about the lawfulness of the use of nuclear weapons"

Thirdly ICJ opinion would assist WHO in future conduct of activities

In this context, it has become evident that it was necessary for the Organization to identify the lead basis on which nuclear weapons might be used under international Law in order to allow it to assess its activities in the most efficient manner if possible.

Another question which arises in relation to the theory of deterrence is whether the keeping of peace or the prevention of war first to be made dependent on the threat of horrific indiscriminate destruction which justifies the stockpiling of such weapons at an enormous expense. In the hope that they will merely act as a deterrent but will not in fact bemused.


However those who do not have such weapons at an enormous expense the time is racing to build them those who already have nuclear weapons would continue to develop even more destructive weapons to maintain the superiority necessary for


Deterrence and this would keep humanity in the perpetual fear of total destruction. A better and safer we to secure everlasting peace would be to ensure that only are such weapons never used but also not made.

The preamble to the United Nations Charter expresses the determination "to save succeeding generations from the scourge of war". The prohibition on the use of force, enshrined in Article 2, paragraph 4, of the Charter, has since been continuously reaffirmed, and progressively more clearly articulated and defined in a series of authoritative General Assembly Declarations.

International standards of human rights must shape conceptions of humanity and have an impact on the dictates of public conscience.

The commitment to human rights in Charter provisions such as Articles 1, 55, 62 and 76, has been developed and reinforced by instruments such as the 1948 Universal Declaration of Human Rights and the 1966 Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, as well as specific conventions on acts such as torture. It is now accepted that the most fundamental human rights are now part of customary international law. The General Assembly in a resolution adopted in 1983, drew the connection between international human rights and nuclear weapons, when it condemned nuclear war "as a violation of the foremost human right - the right to life".

International civilian protection law-

Another area of the law in which there have been significant recent developments is that of the protection of the civilian population in times of armed conflict. A significant step further was taken as recently as 1977, with the adoption of the Additional Protocol I to the Geneva Conventions 31.

Australia, together with the bulk of the international community, believes that the essential terms of the Protocol should be regarded as reflecting customary international law. Article 51, paragraph 4, of this Protocol prohibits "indiscriminate attacks", defined to include "an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated"32 . Article 54, paragraph 2, provides that a Party may not "attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party". Again, Article 57, paragraph 2 (b), prohibits attacks where it is apparent "that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated".

Jurisdiction of the Court to give the advisory opinion

Is requested under Article 65, paragraph 1, of the Statute and Article 96, paragraph 2, of the Charter - Specialized agency authorized to request opinions under the Charter - "Legal question" - Political aspects of the question posed - Motives said to have inspired the request and political implications that the opinion might have - Question arising "within the scope of [the] activities" of the requesting Organization - Interpretation of the constitution of the Organization - Article 2 of the World Health organization Constitution - Absence of sufficient connection between the functions vested in the Organization and the question posed - "Principle of speciality" - Relationship between the United Nations and the specialized agencies - Issue of World Health Organization practice in the field of nuclear weapons - Resolution duly adopted from a procedural point of view and question whether that resolution has been adopted intra vires - Resolution of the United Nations General Assembly "welcoming" the request for an opinion submitted by the World Health Organization The World Health Organization is, moreover, an international organization of a kind. As indicated in the Preamble and confirmed by Article 69 of its Constitution, "the Organization shall be brought into relation with the United Nations as one of the specialized agencies referred to in Article 57 of the Charter of the United Nations".

Article 57 of the Charter defines "specialized agencies" as follows:

1. The various specialized agencies, established by intergovernmental agreement and having wide international responsibilities, as defined in their basic instruments, in economic, social, cultural, educational, health, and related fields, shall be brought into relationship with the United Nations in accordance with the provisions of Article 63.


2. Such agencies thus brought into relationship with the United Nations are hereinafter referred to as 'specialized agencies'. Article 58 of the Charter reads: "The Organization shall make recommendations for the co-ordination of the policies and activities of the specialized agencies."

Article 63 of the Charter then provides:

1. The Economic and Social Council may enter into agreements with any of the agencies referred to in Article 57, defining the terms on which the agency concerned shall be brought into relationship with the United Nations. Such agreements shall be subject to approval by the General Assembly.

2. It may co-ordinate the activities of the specialized agencies through consultation with and recommendations to such agencies and through recommendations to the General Assembly and to the Members of the United Nations."

As these provisions demonstrate, the Charter of the United Nations laid the basis of a "system" 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 exercise of these powers by the organizations belonging to the "United Nations system" is coordinated, notably, by the relationship agreements concluded between the United Nations and each of the specialized agencies. In the case of the WHO, the agreement of 10 July 1948 between the United Nations and that Organization actually refers to the WHO Constitution in the following terms in Article 1: "The United Nations recognizes the World Health Organization as the specialized agency responsible for taking such action as may be appropriate under its Constitution for the accomplishment of the objectives set forth therein." It follows from the various instruments mentioned above that the WHO Constitution can only be interpreted, as far as the powers conferred upon that Organization are concerned, by taking due account not only of the general principle of speciality, but also of the logic of the overall system contemplated by the Charter.

Conclusion

The WHO by virtue of Article 57 of the Charter, "wide international responsibilities", those responsibilities are necessarily restricted to the sphere of public "health" and cannot encroach on the responsibilities of other parts of the United Nations system. And there is no doubt that questions concerning the use of force, the regulation of armaments and disarmament are within the competence of the United Nations and lie outside that of the specialized agencies. It would render virtually meaningless the notion of a specialized agency it is difficult to imagine what other meaning that notion could have if such an organization need only show that the use of certain weapons could affect its objectives in order to be empowered to concern itself with the legality of such use. It is therefore difficult to maintain that, by authorizing various specialized agencies to request opinions from the Court under Article 96, paragraph 2, of the Charter, the General Assembly intended to allow them to seize the Court of questions belonging within the competence  of  the  United Nations. For all these reasons, the Court considers that the question raised in the request for an advisory opinion submitted to it by the WHO does not arise "within the scope of the activities" of that Organization as defined by its Constitution. -Submitted by- Parul Chaturvedi RML Law College, Bangalore



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