² The Court declined to answer the question posed by the World Health Organization (WHO) but agreed to answer the one posed by the General Assembly. The Court’s decision on WHO’s request (Legality of the Use by a State of Nuclear Weapons in Armed Conflict, 1996 I.C.J. 66 (Advisory Opinion of July 8)) was based on conditions under which the judicial body would be prepared to review the legality of acts of international organizations. Although not contesting the sharing of competence which is to prevail among institutions of the UN system, one may regret the formalistic interpretation the Court gave of “the principle of speciality” which had been invoked for justifying its decision. Id. at 78-79, para. 25. The question of the threat or use of nuclear weapons and their legal aspects are surely among the problems that cut across all lines and fall within the United Nations’ purview as well as specialized agencies’ mandate. Speciality should not be seen as a static concept but as an evolving one.

² See, e.g., Roger Clark & Madeleine Sann, The Case against the Bomb (1996); Luigi Contforeili, Nuclear Weapons: A Weighty Matter for the International Court of Justice—Jura non Novit Curia?, INT’l Rev. Red Cross, Jan.-Feb. 1997 (Special Issue: The Advisory Opinion of the International Court of Justice on the Legality of Nuclear Weapons and International Humanitarian Law), at 9; Eric David, The Opinion of the International Court of Justice on the Legality of the Use of Nuclear Weapons, Int’l Rev. Red Cross, Jan.-Feb. 1997, at 21; Philippe Sands, The International Court of Justice and Nuclear Weapons: Preliminary Observations on the Advisory Opinions, Bull. Nuclear Energy (OECD), 1997, at 55.

³ G.A. Res. 45 0, 51 Sess. (Dec. 10, 1996).

⁴ Treaty on the Non-Proliferation of Nuclear Weapons, July 7, 1968, 21 U.S.T. 483, 729 U.N.T.S. 169 (entered into force Mar. 5, 1970). Article VI reads as follows: “Each of the parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective control.”

⁵ Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. 809, 831, para. 105(F) (Advisory Opinion of July 8, 1996).

⁶ For example, a resident of the Marshall Islands described what has happened following the series of hydrogen bomb tests conducted in the 1950s (i.e., the long-term physical and psychological effects those Marshall Islanders present at the time of the detonations have continued to experience). Clark & Sann, supra note 2, at 239-43.

⁷ Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. at 831, para. 105(E).

⁸ Id. It is to be noted that on this central issue facing the Court, i.e., the legality of the use of nuclear weapons, the majority was achieved only on the casting vote of the President. In addition, the majority was able to support paragraph 105(E) for very different reasons. Some have argued “that the seven-seven division came because three judges wanted to go further in circumscribing the nuclear deterrent, so there was actually a 10-4 vote for illegality.” Use or Threat of Nuclear Arms Unlawful, 26 Envtl. PoĽy & L. 192 (1996).

⁹ Unless reference is made to theories such as the one developed by Vattel in the eighteenth century and quoted by Dapo Akande in The Role of the International Court of Justice in the Maintenance of International Peace, in 8 Revue Africaine de Droit International et Comparé 595 n. 15 (1996). Vattel is quoted as saying that “when one should seek to rob [a nation] of an essential right, of a right without which it cannot hope to maintain its existence,” the duty of the nation is not even to attempt pacific settlement but to “exhaust its resources, and nobly shed the last drop of its blood.” 2 Le Droit des Gens, Ou Principes de la Loi Naturelle, Applique a la Conduite et Aux Affaires des Nations et des Souverains, ch. 18 ( 1758).

¹⁰ Legality of the Threat or Use of Nuclear Weapons, 35 I.L.M. at 937, para. 29 (dissenting opinion of Judge Higgins).

¹¹ Id.