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Pursuing “effective measures” relating to nuclear disarmament: Ways of making a legal obligation a reality

Published online by Cambridge University Press:  18 April 2016

Treasa Dunworth
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Abstract

This paper argues that pursuing negotiations in good faith on effective measures for nuclear disarmament is a legal obligation, not a foreign policy option. Drawing on the New Agenda Coalition paper of April 2014, which identified some pathways by which nuclear disarmament might be pursued, this paper identifies and analyzes international legal issues raised by each of those pathways. The paper concludes by explaining why legal analysis and discussion are important even in the absence of a settled political commitment to nuclear disarmament.

Keywords

nuclear disarmamentnuclear non-proliferationNPT Article VIeffective measuresNew Agenda Coalition
Type
The Current State of Disarmament
Information
International Review of the Red Cross , Volume 97 , Issue 899: The human cost of nuclear weapons , September 2015 , pp. 601 - 619
Copyright
Copyright © icrc 2016 

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References

1 See Nina Tannenwald, The Nuclear Taboo: The United States and the Non-Use of Nuclear Weapons since 1945, Cambridge University Press, Cambridge, 2007. See also Maria Rost Rublee, Nonproliferation Norms: Why States Choose Nuclear Restraint, University of Georgia Press, Athens, GA, 2009.

2 “Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons: Working Paper Submitted by Ireland on Behalf of the New Agenda Coalition (Brazil, Egypt, Ireland, Mexico, New Zealand and South Africa)”, NPT/CONF.2015/PC.III/WP.18, 2 April 2014 (WP.18), para. 29.

3 In fact, the debate preceded the actual advent of the bomb. See Andrew Brown, Keeper of the Nuclear Conscience: The Life and Work of Joseph Rotblat, Oxford University Press, Oxford and New York, 2012.

4 Treaty on the Non-Proliferation of Nuclear Weapons, 729 UNTS 161, 1 July 1968 (entered into force 5 March 1970) (NPT), Art. 6.

5 And see Daniel Joyner, Interpreting the Nuclear Non-Proliferation Treaty, Oxford University Press, New York, 2011, p 99. Cf. Ford, Christopher, “Debating Disarmament: Interpreting Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons”, Non-Proliferation Review, Vol. 14, No. 3, 2007, p. 403Google Scholar.

6 For discussion, see D. Joyner, above note 5; see also Kiernan, Paul M., “‘Disarmament’ under the NPT: Article VI in the 21st Century”, Michigan State University Journal of International Law, Vol. 20, No. 2, 2012Google Scholar; David A. Koplow, “Parsing Good Faith: Has the United States Violated Article VI of the Nuclear Non-Proliferation Treaty?”, Wisconsin Law Review, March/April 1993.

7 Jonathan Law and Elizabeth A. Martin, A Dictionary of Law, 7th ed., Oxford University Press, 2013.

8 For a recent discussion of the meaning of the good faith requirement in Article VI, see United States Court of Appeals, Republic of the Marshall Islands v. United States of America et al., Ninth Circuit, Brief of Amicus Curiae Lawyers Committee on Nuclear Policy Supporting Appellant and Reversal, pp. 9–18. Cf. United States Supreme Court, Medellín v. Texas, 128 S. Ct. 1346 (2008), No. 06-984, 2008, in which the Supreme Court held that the expression “undertakes to comply” in Article 94 of the UN Charter was only “a commitment on the part of U.N. Members to take future action through their political branches”.

9 “Extension of the Treaty on the Non-Proliferation of Nuclear Weapons”, 1995 Review and Extension Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons: Final Document, NPT/CONF.1995/32, Part I, Annex, Decision 3, pp. 12–13.

10 “Article VI and Eighth to Twelfth Preambular Paragraphs”, 2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons: Final Document, NPT/CONF.2000/28, Parts I and II, pp. 14–15.

11 “Conclusions and Recommendations for Follow-on Actions”, 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, NPT/CONF.2010/50, Vol. 1, pp. 19–24.

12 Ibid.

13 ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, para. 105(2)(f). The issue is again being considered by the ICJ in the pending cases Marshall Islands v. United Kingdom (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament), Marshall Islands v. Pakistan (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament), and Marshall Islands v. India (Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament).

14 UN Secretary-General, “The United Nations and Security in a Nuclear-Weapon-Free World”, address to the East-West Institute, New York, 24 October 2008, available at: www.un.org/disarmament/WMD/Nuclear/sg5point (all internet references were accessed in December 2015).

15 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 1974 UNTS 317, 13 January 1993 (entered into force 29 April 1997) (CWC).

16 WP.18, above note 2. The New Agenda Coalition is a group of countries currently comprising Brazil, Egypt, Ireland, Mexico, New Zealand and South Africa. Established in 1998, the aim of the Coalition was to inject fresh momentum and thinking into the nuclear disarmament process. See New Agenda Coalition, Towards a Nuclear-Weapons-Free World: The Need for a New Agenda, Joint Declaration, A/53/138, Annex, 9 June 1998.

17 WP.18, above note 2, para. 29(1), and detailed in Annex I.

18 For instance, along the lines of the Organization for the Prohibition of Chemical Weapons, created by Article VIII of the CWC.

19 Letter dated 17 December 2007 from the Permanent Representatives of Costa Rica and Malaysia to the UN Secretary-General, A/62/650, 18 January 2008.

20 WP.18, above note 2, para. 32.

21 NPT, above note 4, Art. 2.

22 Comprehensive Nuclear Test Ban Treaty, 10 September 1996 (not in force) (CTBT), Art. 1.

23 Starting with Universal Declaration of Human Rights, UN Doc. A/810, 10 December 1948, Art. 3, the right to life is also protected in the International Covenant on Civil and Political Rights, 999 UNTS 171, 16 December 1966 (entered into force 23 March 1976), Art. 6; the African Charter on Human and Peoples' Rights, 1520 UNTS 217, 27 June 1981 (entered into force 21 October 1986), Art. 4; the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 UNTS 222, 4 November 1950 (entered into force 3 September 1953) (European Convention on Human Rights), Art. 2; and the American Convention on Human Rights, 1144 UNTS 123, 22 November 1969 (entered into force 18 July 1978), Art. 4. There are also related provisions in the Convention on the Rights of the Child, 1577 UNTS 3, 20 November 1989 (entered into force 2 September 1990), Art. 6; and the Convention on the Rights of Persons with Disabilities, UN Doc. A/61/49, 13 December 2006 (entered into force 3 May 2008), Art. 10.

24 See CWC, above note 15, Art. XIII. Note that Article XVI of the CWC provides that the withdrawal of a State Party from the Convention does not affect the duty of States to continue fulfilling the obligations assumed under the 1925 Protocol. Similarly, see Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 1015 UNTS 163, 10 April 1972 (entered into force 26 March 1975) (BWC), Art. VIII.

25 Repetition of substantive obligations across regimes and overlapping dispute resolution processes is far from unusual. In the context of international trade law, the US–Canada softwood lumber dispute illustrates the potential difficulties and possible solutions nicely. This trade dispute concerning imports of Canadian softwood into the United States was litigated extensively in both the World Trade Organization and under the dispute resolution procedures of the North American Free Trade Agreement, with the decisions pointing in completely different directions. For a discussion of the two regimes in this context, see Greg Anderson, “Can Someone Please Settle This Dispute? Canadian Softwood Lumber and the Dispute Settlement Mechanisms of the NAFTA and the WTO”, The World Economy, Vol. 29, No. 5, 2006. In the end, a political settlement was reached between the two States.

26 See International Law Commission Study Group, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, UN Doc. Z/CN.4/L.682, 13 April 2006; International Law Commission Study Group, “Conclusions of the Work of the Study Group on the Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law”, in International Law Commission, Report on the Work of the 58th Session, UN Doc A/61/10, 1 May–9 June and 3 July–11 August 2006.

27 UNSC Res. S/Res/2118(2013), 27 September 2013; OPCW Executive Council, Decision: Destruction of Syrian Chemical Weapons, EC-M-33/DEC.1, 27 September 2013.

28 This Article provides that a State which has signed or ratified a treaty that is not yet in force has an obligation to refrain from acts which would defeat the object and purpose of the treaty.

29 See generally the studies discussed in Anthony Aust, Masahiko Asada, Edward Ifft, Nicholas Kyriakopoulos, Jenifer Mackby, Bernard Massinon, Arend Meerburg and Bernard Sitt, A New Look at the Comprehensive Nuclear-Test-Ban Treaty (CTBT), Netherlands Institute of International Relations, Clingendael, September 2008, Chapter 3, pp. 9 ff.

30 For an accessible and up-to-date overview of the law on provisional application of treaties, see Robert E. Dalton, “Provisional Application of Treaties”, in Duncan B. Hollis (ed.), The Oxford Guide to Treaties, Oxford University Press, Oxford, 2012. For a discussion on provisional application in the specific context of arms control treaties, see Andrew Michie, “The Provisional Application of Arms Control Treaties”, Journal of Conflict and Security Law, Vol. 10, No. 3, 2005.

31 Consideration could then be given to the question of whether the Preparatory Commission for the Comprehensive Test Ban Treaty Organization could enter into an information-sharing arrangement with a newly created agency.

32 Discussed by R. E. Dalton, above note 30, pp. 234–245.

33 Accepting, of course, that by virtue of the UN Charter, the Security Council would have the mandate, in any event, to deal with any issues threatening international peace and security, regardless of what the treaty provided.

34 Fry, James D., “Arbitrating Arms Control Disputes”, Stanford Journal of International Law, Vol. 44, No. 2, 2008Google Scholar.

35 Ibid., p. 372.

36 Agreement Establishing the World Trade Organization, 1994, Annex 2, “Understanding on Rules and Procedures Governing the Settlement of Disputes”, Art. 10.

37 UN Convention on the Law of the Sea, 1833 UNTS 3, 10 December 1982 (entered into force 16 November 1994), Art. 287.

38 For discussion in the context of the CWC, see generally Walter Krutzsch, Eric Myjer and Ralf Trapp (eds), The Chemical Weapons Convention: A Commentary, Oxford University Press, Oxford, 2014. For particular issues relating to verification, see Walter Krutzsch and Ralf Trapp (eds), Verification Practice under the Chemical Weapons Convention: A Commentary, Kluwer Law International, The Hague, London and Boston, 1999.

39 See, for example, Trapp, Ralf, “The Chemical Weapons Convention a Decade after its Entry into Force”, Japanese Yearbook of International Law, Vol. 52, 2009, p. 149Google Scholar.

40 For a range of issues, see Rodrigo Yepes-Enriquez and Lisa Tabassi (eds), Treaty Enforcement and International Cooperation in Criminal Matters with Special Reference to the Chemical Weapons Convention, TMC Asser Press, The Hague, 2002.

41 For example, the CWC specified an absolute deadline by which destruction of all chemical weapons stockpiles had to be achieved (no later than fifteen years after entry into force). Due to unforeseen complications (including radically different environmental regulations in force than when the treaty was negotiated), and notwithstanding the efforts of the United States and the Russian Federation, those deadlines were unable to be met, with the result that both States are now in technical non-compliance with the treaty.

42 Ray Acheson, Thomas Nash and Richard Moyes, A Treaty Banning Nuclear Weapons: Developing a Legal Framework for the Prohibition and Elimination of Nuclear Weapons, Article 36 and Reaching Critical Will, 2014, p. 4.

43 For a fuller discussion, see ibid., Chapter 1.

44 And indeed, it should be noted that even this prohibition on use was hollowed out by “no first use” reservations made by States Parties at that time.

45 CWC, above note 15, Art. 1. See also Article 1 of the BWC, with its slightly different articulation (“develop, produce, stockpile or otherwise acquire or retain”), and note that the BWC does not explicitly ban the “use” of biological weapons. However, the States Parties to the Convention subsequently confirmed that this was intended in the formulation. See Fourth Review Conference of the Parties to the Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, Final Declaration, BWC/CONF.IV/9/PART II, Geneva, 25 November–6 December 1996, para. 3. For discussion, see Dunworth, Treasa, Mathews, Robert J. and McCormack, Timothy L.H., “National Implementation of the Biological Weapons Convention”, Journal of Conflict and Security Law, Vol. 11, No. 1, 2006, p. 103CrossRefGoogle Scholar.

46 International Association of Lawyers against Nuclear Arms, International Network of Engineers and Scientists against Proliferation and International Physicians for the Prevention of Nuclear War, Securing Our Survival (SOS): The Case for a Nuclear Weapons Convention, International Physicians for the Prevention of Nuclear War, Cambridge, MA, 2007, p. 48 (proposed Article 1). In some respects the prohibitions in the Model Convention were based on the CWC.

47 There are five Nuclear Weapons Free Zones currently in existence. See, generally, Michael Hamel-Green, “Peeling the Orange: Regional Paths to a Nuclear-Weapon-Free World”, Disarmament Forum, No. 2, 2011. For a mapping of existing Zones, see International Law and Policy Institute (ILPI), “Nuclear-Weapon-Free-Zones”, ILPI Nuclear Weapons Project, Nutshell Paper No. 1, 2012. For discussion and comparative evaluation focusing on the Southeast Asian Nuclear Weapon-Free Zone, see Chin, Lionel Yee Woon, “Nuclear Weapon-Free Zones: A Comparative Analysis of the Basic Undertakings in the SEANWFZ Treaty and their Geographical Scope of Application”, Singapore Journal of International and Comparative Law, Vol. 2, 1998Google Scholar.

48 See the useful overview of UN-related forums in United Nations Institute for Disarmament Research (UNIDIR), The Treatment of the Issue of Nuclear Disarmament in Relevant Forums Established by the United Nations, UNIDIR, 2013.

49 For more detailed discussion, see Rebecca Johnson, Unfinished Business: The Negotiation of the CTBT and the End of Nuclear Testing, UNIDIR, 2009, Chapter 6.

50 R. Acheson, T. Nash and R. Moyes, above note 42, p. 20.

51 For an overview of the work of the Open Ended Working Group, see Christian N. Ciobanu, Esteban Ramirez Gonzalez, Jana Jedlickova and Alyn Ware, Open the Door to a Nuclear Free World: Manual for Governments on the UN Working Group on Nuclear Disarmament, Edition 1.0, Abolition 2000 Task Force on the Open Ended Working Group, Basel, 2010. See also Note by the Secretary-General, “Proposals to Take Forward Multilateral Nuclear Disarmament Negotiations for the Achievement and Maintenance of a World without Nuclear Weapons, UN Doc. A/68/514, 9 October 2013 (transmitting the report of the Working Group to the General Assembly).”

52 Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005, Rule 73 (“The use of biological weapons is prohibited”).

53 Lisa Tabassi “The Nuclear Test Ban: Lex Lata or Lege Ferenda?”, Journal of Conflict and Security Law, Vol. 14, No. 2, 2009.

54 WP.18, above note 2, Annex III.

55 Nele Matz-Luck, “Framework Agreements”, in Max Planck Encyclopedia of Public International Law, 2011, para. 1, available at: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e703?prd=EPIL.

56 United Nations Framework Convention on Climate Change, UNGA Res. A/RES/48/189, 20 January 1994 (UNFCCC).

57 Kyoto Protocol to the United Nations Framework Convention on Climate Change, 2303 UNTS 148, 11 December 1997 (entered into force 16 February 2005).

58 Such as: Framework Convention on Tobacco Control, 2302 UNTS 229, 21 May 2003 (entered into force 27 February 2005); European Framework Convention for the Protection of National Minorities, 2151 UNTS 243, 10 November 1995 (entered into force 1 February 1998); Basel Convention on Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1673 UNTS 57, 22 March 1989 (entered into force 5 May 1992); Bonn Convention on the Conservation of Migratory Species of Wild Animals, 1651 UNTS 333, 23 June 1980 (entered into force 1 November 1983); Vienna Convention for the Protection of the Ozone Layer, 1513 UNTS 293, 22 March 1985 (entered into force 22 September 1988).

59 There are proposals for a Framework Convention on Global Health, for example.

60 United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, 1342 UNTS 137, 10 October 1980 (entered into force 2 December 1983).

61 N. Matz-Luck, above note 55, para. 11.

62 Setear, John K., “An Iterative Perspective on Treaties: A Synthesis of International Relations Theory and International Law”, Harvard International Law Journal, Vol. 37, No. 1, 1996Google Scholar.

63 Gostin, Lawrence O., “Meeting Basic Survival Needs of the World's Least Healthy People: Towards a Framework Convention on Global Health”, Georgetown Law Journal, Vol. 96, No. 2, 2008Google Scholar.

64 Daniel Bodansky, Jutta Brunnée and Ellen Hey, “International Environmental Law: Mapping the Field”, in Daniel Bodansky, Jutta Brunnée and Ellen Hey (eds), Oxford Handbook of International Environmental Law, Oxford University Press, Oxford, 2007, pp. 21–23.

65 For an overview and discussion of the different possible forums, see the brief prepared for the Open Ended Working Group: UNIDIR, The Treatment of the Issue of Nuclear Disarmament in the Relevant Forums Established by the United Nations, OEWG Brief No. 1, 2013.

66 L. O. Gostin, above note 63, p. 390; Downs, George W., Danish, Kyle W. and Barsoom, Peter N., “The Transformational Model of International Regime Design: Triumph of Hope or Experience?”, Columbia Journal of Transnational Law, Vol. 38, No. 1, 2000, p. 467Google Scholar.

67 UNFCCC, above note 56. Article 2 sets out the objective, which is the stabilization of greenhouse gas emissions; in Article 3 the States Parties agree to be guided by certain principles; Article 4 sets out commitments; and Article 7 establishes a COP.

68 UNFCCC, Art. 4.3.

69 Meyer, Timothy, “From Contract to Legislation: The Logic of Modern International Lawmaking”, Chicago Journal of International Law, Vol. 14, No. 2, 2014, p. 572Google Scholar.

70 See the “First Pathway” section above.

71 WP.18, above note 2, Annex IV.

72 For a recent example, see Ramesh Thakur, “Australia Should Take the Lead on Global No-First-Use Convention”, Commentary, Japan Times, 18 August 2014. A “no first use” treaty or agreement is a system whereby the nuclear possessor State pledges not to be the first to resort to the use of nuclear weapons.

73 See the discussion by Scott Sagan on why the United States should adopt an NFU approach: Sagan, Scott, “The Case for No First Use”, Survival, Vol. 51, No. 3, 2009CrossRefGoogle Scholar.

74 See International Law Commission, Guiding Principles Applicable to Unilateral Declarations of States Capable of Creating Legal Obligations, 2006. See also the discussion on the legal effect of unilateral declarations by the ICJ, Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Rwanda), Judgment, ICJ Reports 2006, paras 46–54, and cases cited therein. See also the negative security assurances the P5 have made, which are considered to be binding: Reaching Critical Will, “Negative Security Assurances”, Fact Sheet, available at: www.reachingcriticalwill.org.

75 For example, in the current negotiations for the Trans Pacific Partnership. For an overview, see Elms, Deborah Kay, “The Trans-Pacific Partnership Trade Negotiations: Some Outstanding Issues for the Final Stretch”, Asian Journal of WTO and International Health Law and Policy, Vol. 8, No. 2, 2014, p. 379Google Scholar.

76 See discussion above.

77 See for example, Hirsch, Moshe, “The Sociology of International Law: Invitation to Study International Rules in their Social Context”, University of Toronto Law Journal, Vol. 55, No. 5, 2005CrossRefGoogle Scholar. The leading legal sociology scholar was, of course, the great US jurist, Roscoe Pound.

78 Brunnée, Jutta and Toope, Stephen J., “International Law and Constructivism: Elements of an Interactional Theory of International Law”, Columbia Journal of Transnational Law, Vol. 39, 2000–2001Google Scholar.

79 Consider the evolution of society's thinking on issues such as domestic violence, alcohol and driving, homosexuality and, even now, physical disciplining of children.

80 And see R. Acheson, T. Nash and R. Moyes, above note 42, Chapter 3.