The Court Cannot Conclude Definitively . . . Non Liquet Revisited
![handle is hein.journals/cjtl36 and id is 115 raw text is: The Court Cannot Conclude
Definitively...
Non Liquet Revisited
PROSPER WEIL*
The General Assembly of the United Nations requested that the
International Court of Justice (I.C.J.) give an advisory opinion on the
legality of the threat or use of nuclear weapons.' In its advisory opinion
of July 8, 1996, the Court wrote that there is in customary or conven-
tional international law neither:
any specific authorization... [nor] any comprehensive and
universal prohibition of the threat or use of nuclear weapons
as such .... [T]he threat or use of nuclear weapons would
generally be contrary to the rules of international law... and
in particular the principles and rules of humanitarian law..
. However, in view of the current state of international law,
and of the elements at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons
would be lawful or unlawful in an extreme circumstance of
self-defence, in which the very survival of a State would be
at stake .... 2
No doubt this conclusion not to conclude will be criticized by
scholars, as it has been by members of the Court. No lawyer would
readily accept the idea that on whatever matter-and even more so on
a matter of such an importance-international law has nothing to say,
and the I.C.J. nothing to conclude. Does the specter of non liquet not
spell disaster for the future of both international law and the judicial
function? This part of the Court's opinion will certainly revive the
classical debate on the problem of the gaps in international law and of
non liquet in international adjudication.
Leaving aside the question whether, on the specific issue of the
legality of the threat or use of nuclear weapons, the non liquet reached
* Emeritus, Universitd de Droit d'Economie et de Sciences Sociales de Paris. Copyright
© Prosper Weil, 1997.
1. The question was as follows: Is the threat or use of nuclear weapons in any cir-
cumstance permitted under international law? G.A. Res. 4975, U.N. GAOR, 49th Sess., U.N.
Doc. A/49/75 (1995).
2. Legality of the Threat or Use of Nuclear Weapons (Adv. Op.), 1996 I.C.J. 35, 105
(July 8), reprinted in 35 I.L.M. 809, 831 (1996).](ViewImageLocal?handle=hein.journals/cjtl36&div=14&collection=&method=preview&ext=.png&size=3)
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The Court Cannot Conclude Definitively . . . Non Liquet Revisited
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