Chapter

Dissenting Opinion of Judge Higgins Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion

Rosalyn Higgins Dbe Qc

in Themes and Theories

Published in print August 2009 | ISBN: 9780198262350
Published online March 2012 | e-ISBN: 9780191682322 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780198262350.003.0085
Dissenting Opinion of Judge Higgins Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion

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In its judgment on Military and Paramilitary Activities, the International Court of Justice confirmed the existence of a rule of proportionality in the exercise of self-defence under customary international law. Importantly, in the present Advisory Opinion the Court makes clear that notwithstanding the absence of specific mention of proportionality in Article 51, this requirement applies equally to the exercise of self-defence under the Charter. Paragraph 2E states in its first part that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, in particular the principles and rules of humanitarian law; and in its second part that the Court cannot conclude whether a threat or use of nuclear weapons in extremis in self-defence, where a state’s very survival was at stake, would be lawful or unlawful. In this chapter, the author explains the reasons for her dissenting opinion concerning paragraph 2E of the dispositif.

Keywords: International Court of Justice; international law; self-defence; proportionality; Advisory Opinion; nuclear weapons; armed conflict; humanitarian law; dissenting opinion; judgment

Chapter.  4961 words. 

Subjects: Public International Law

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