Advisory Opinion of the International Court of Justice on the Threat or Use of Nuclear Weapons: A Critical Study

Although there is in neither conventional nor customary international law any comprehensive or universal prohibition of the use of nuclear weapons, it was absolutely possible for the Court to conclude, in the light of the documentary evidence and factual data placed before it, that recourse to these weapons would be illegal, in all circumstances. The article tries to examine critically the World Court’s refusal or its inability to come to such a conclusion. Apart from some shortcomings and criticisms attached to the Court’s views, in the advisory opinion, it appears that the most cardinal factor in its abeyance originates from the role and place which it gives to the principles and requirements of international humanitarian law. While there is no doubt that these principles and rules must be respected in all circumstances, the Court cannot exclude the possibility that certain uses of nuclear weapons may, in very limited and exceptional situations, be lawful even if they are contrary to the principles and requirements of international humanitarian law. Proving the invalidity of this view, according to the contemporary international law, constitutes one of the main concerns of the present study.