IRRC No. 316

The Advisory Opinion on nuclear weapons and the contribution of the International Court to international humanitarian law

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The request by the United Nations General Assembly, in resolution 49/75 K (1994), that the International Court give an advisory opinion on the question “Is the threat or use of nuclear weapons in any circumstance permitted under international law?” gave the Court an unusual opportunity to consider the principles of international humanitarian law. It is an opportunity which the Court might well have preferred to do without. The question was not well framed and the reasons for asking it were wholly unsatisfactory. In particular, the necessarily abstract nature of the question placed the Court in an exceptionally difficult position, because it could not possibly consider all the combinations of circumstances in which nuclear weapons might be used or their use threatened. Yet unless one takes the position that the use of nuclear weapons is always lawful (which is obvious nonsense), falls wholly outside the law (which no State suggested) or is always unlawful (a view which has had some supporters but which the majority of the Court quite rightly rejected), then the answer to the General Assembly's question would have to depend upon a careful examination of those circumstances.

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