핵무기 위협 또는 사용의 적법성에 관한 국제사법재판소 권고적 의견에 대한 비판적 검토 = A Critical Study on the Advisory Opinions of the International Court of Justice concerning the Legality of the Threat or Use of Nuclear Weapons

다국어 초록 (Multilingual Abstract)

This paper reviews the legality of threat or use of nuclear weapons based on the two advisory opinions made by the International Court of Justice (ICJ) in 1996. The first one which was requested by the World Health Organization(WHO), was rejected by the ICJ on the ground that the request for an advisory opinion was submitted by an organ which had not the competence to do so. And the other was requested by the U.N. General Assembly. In the face of the request for an advisory opinion by the U.N. General Assembly, the ICJ answered in its operative parts of the advisory opinion that: (2) A: There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons. (2) B: There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such. (2) C: A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful. (2) D: A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict, and in particular those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons. (2) E: It follows from the above-mentioned requirements that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law; However, in view of the current state of international law, and of the elements of facts at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an exterme circumstance of self-defence, in which the very survival of a State would be at stake. (2) F: There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control. To me, the opinions expressed in (2) A, B, C, D, F are correct but it is dubious whether the opinion expressed in (2) E is right. I think that the ICJ could have investigated more factual aspects related to the threat or use of nuclear weapons and then it could have reached a more decisive and clear-cut conclusion.