The ICJ and nuclear disarmament: towards a universal obligation?

Today is the anniversary of the ICJ’s Nuclear Weapons Advisory Opinion. We would like to revisit, and invite readers to reflect on, one particular conclusion (not discussed in previous posts on the Marshall Islands cases here, here, here), contained in operative paragraph 2 F (§ 105) of the Opinion: “(t)here 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”.

The treaty origin of the disarmament obligation

Under the Non-Proliferation Treaty (NPT) (191 parties, including the P5), nuclear-weapon States are under an obligation not to transfer nuclear weapons to non-nuclear-weapon States (Article I) and the latter are under an obligation not to acquire nuclear weapons (Article II). Without making any distinction, Article VI stipulates that “(e)ach 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 international control.”

Thus, in essence, the NPT is based on a compromise: non-nuclear-weapon States are under an obligation to remain non-nuclear-weapon States, while nuclear-weapon States are under an obligation to negotiate in good faith with a view to becoming non-nuclear-weapons States.

The ICJ Advisory Opinion

This interpretation finds support in the ICJ’s Opinion. While the Court could not “reach a definitive conclusion as to the legality or illegality of nuclear weapons” (§ 97), it emphasised that “complete nuclear disarmament appears to be the most appropriate means“ to “put an end to this state of affairs” of uncertainty as to “the legal status of weapons as deadly as nuclear weapons” (§ 98). Article VI NPT, so the Court continued, “goes beyond that of a mere obligation of conduct; the obligation involved here is an obligation to achieve a precise result – nuclear disarmament in all its aspects – by adopting a particular course of conduct, namely, the pursuit of negotiations on the matter in good faith” (§ 99). The Court therefore characterised Article VI NPT as a “twofold obligation to pursue and to conclude negotiations” which “formally concerns” the NPT parties (§ 100).

But how does this obligation relate to States not parties to the NPT?

After having characterised the parties to the NPT as “the vast majority of the international community” (§ 100, italics added here and throughout), the Court noted that “(v)irtually the whole of this community appears moreover to have been involved” in UNGA resolutions on nuclear disarmament and that “any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all States” (§ 100). The Court also did not fail to mention that in 1995 the UNSC had urged “all States, as provided for in Article VI [NPT] (…) to pursue negotiations in good faith (…)”. Ultimately, the Court concluded that “fulfilling the obligation expressed in Article VI [NPT] (…) remains without any doubt an objective of vital importance to the whole of the international community today” (§ 103).

Moving from the reasoning to the dispositif, operative paragraph 2 F of the Advisory Opinion is then of utmost importance in our context for at least two reasons.

First, it does not simply reproduce the text of Article VI NPT but advances the obligation considerably into the direction of effective disarmament. The Court formulates the obligation in a more general way, expressing what the Court seems to consider to be the essence of Article VI, namely, “to achieve a precise result – nuclear disarmament in all its aspects – … by (…) negotiations (…) in good faith” (§ 99).

Second, paragraph 2 F, while apparently containing a quite broad obligation, is silent on the reach of this obligation, i.e., whether it applies only to NPT parties or – expressing customary international law (‘CIL’) – to all States. In fact, 2 F does not mention any source while other operative paragraphs refer to relevant sources: 2 A and 2 B both mention customary and conventional international law; 2 C refers to Articles 2(4) and 51 UN Charter the substance of which the Court has recognised as CIL before in Nicaragua (§§ 187 ff.);  2 D refers both to “principles and rules of [IHL]” and to “specific obligations under treaties and other undertakings”.

In their individual opinions, judges expressed different views on 2 F,  which, on the one hand, they all had supported but which, on the other hand, some considered as potentially ultra petita (Fleischhauer § 7 and Weeramantry p.437; more critical: Guillaume § 13; Schwebel p.329). According to Judge Fleischhauer, this paragraph is about the existence “of a general obligation of States” (§ 7). Commenting on the Court’s interpretation of Article VI NPT as a twofold obligation, President Bedjaoui argued that “one can go beyond that conclusion and assert that there is in fact a twofold general obligation, opposable erga omnes” and that “this twofold obligation (…) has (…) acquired a customary character. For the rest, I fully share the Court’s opinion as to the legal scope of this obligation” (§ 23, italics original). According to Judges Guillaume and Oda, paragraph 2 F simply “attempts to summarize” (§ 13) or “reproduces” (p.373) Article VI NPT. Perhaps the most critical opinion was that of Judge Schwebel who considered 2 F to be a “dubious holding” if it was meant to concern all States: “It would not be a conclusion that was advanced in any quarter in these proceedings; it would have been subjected to no demonstration of authority, to no test of advocacy” (p. 329).

These different views indicate that operative paragraph 2 F can indeed be regarded as “[t]he final element” of the “judicial compromise package” (Kreß, 293) and as solution to the uncertainty which paragraph 2 E expresses (Bedjaoui § 23: the Court “patently had to say this”; see also Vereshchetin p.281; cf. Koroma p.581 on a “correlation” between Article VI and the obligations under the UNC and IHL). The ambiguity as to whether the obligation applies to all States or only to parties to the NPT perhaps made the unanimous holding possible. The ICJ’s formula was well received: It is noteworthy that the formula was later taken up in GA resolutions with the support of States (India and Pakistan) not parties to the NPT (e.g. pp.21-22). Also, the statements of State parties to the NPT arguably give support to the view that Article VI aspires nuclear disarmament and entails a positive disarmament obligation (p. 14, p. 12; cf. Joyner, pp. 412-3 and 416-7; Joyner, p. 74; critical: Ford [current U.S. Assistant Secretary of State for International Security and Non-Proliferation]).

The Marshall Islands cases

The Court was presented with an opportunity to revisit operative paragraph 2 F in 2014. The Republic of the Marshall Islands (RMI) filed applications against India, Pakistan and the UK and requested the Court to adjudge and to declare that these States had violated and continued to violate their respective obligations under Article VI NPT (UK) and CIL (India, Pakistan and the UK) by, inter alia, failing to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament and by failing to pursue negotiations that would end the nuclear arms race. Noting that the statement in operative paragraph 2 F was not confined to NPT parties, the RMI referred to the obligation expressed therein as an obligation of CIL (eg p. 30, p. 25, 26-8, 19, p. 48, p. 37). India and Pakistan questioned the RMI’s analysis of CIL (e.g. India:  pp. 4, 41, p. 36; Pakistan: pp. 14, 25).

The RMI also filed applications against China, the Democratic People’s Republic of Korea, France, Israel, the Russian Federation and the USA, but, in contrast to the three States mentioned above, these six States had not submitted a declaration pursuant to Article 36 (2) ICJ Statute, nor did they decide to accept the Court’s jurisdiction (§ 21, § 21, § 22).

The Court upheld, based on a narrow majority (9:7, 9:7 and 8:8 by the President’s casting vote), the respondent States’ preliminary objections to jurisdiction. In the Court’s view, the existence of a legal dispute between the parties at the time of each application, one condition of the Court’s jurisdiction under Article 36 (2) ICJ Statute, could not be established: In particular, the RMI’s statement in a multilateral forum such as the Nayarit conference on the humanitarian impact of nuclear weapons in 2014, according to which “States possessing nuclear arsenals are failing to fulfil their legal obligations”, lacked the necessary specificity in order to bring into existence a dispute between the RMI and each respondent State. It could not be demonstrated that one respondent State was “aware, or could not have been unaware” on the basis of the statements prior to the RMI’s applications that it was alleged to be in breach of its obligations by the RMI (§ 48, § 48, § 52).

Moreover, the Court held in each case that a legal dispute could neither be created through RMI’s application and the positions expressed over the course of the judicial proceeding alone (§§ 49-50, §§ 49-50, §§ 53-4), nor be inferred from the respondent State’s conduct in relation to their its nuclear arsenal or certain diplomatic initiatives (§§ 51-2, §§ 51-2, §§ 57-8). Additionally, the Court held that the UK’s voting record in multilateral fora on nuclear disarmament could not by itself indicate the legal position of the UK given that resolutions can include a number of different propositions (§§ 55-6; for a different view see Yusuf § 60, § 25, § 23 who distinguished the case against the UK from the cases against India and Pakistan according to the voting records, hence the 8:8 vote).

As these cases did not proceed to the merits, the Court, unfortunately, did not address the scope of Article VI NPT and the existence and scope of an equivalent obligation under CIL as invoked by RMI (for an individual treatment see Cançado Trindade § 65, § 62, § 63). The Court referred to operative paragraph 2 F in its judgment (§ 19, § 19, § 20) but did not revisit the substance of it. New proceedings are unlikely because, as anticipated by Judge ad hoc Bedjaoui (§§ 64-6, §§ 62-4, §§ 70-2), the respondent States modified their respective declarations under Article 36 (2) ICJ Statute, excluding disputes relating to nuclear weapons, unless all the other nuclear-weapon States Party to the NPT have consented to the Court’s jurisdiction and are parties to the proceedings in question, (UK) and disputes on national security (Pakistan, India, see also here).

To be sure, the multilateral dimension of nuclear disarmament was not lost on the judges who draw different consequences from it. On the one hand, Judge Crawford, for instance, took account of the multilateral disagreement between a group of non-nuclear-weapon States and nuclear-weapon States and argued that a legal dispute between the RMI and the respondent States has emerged at least by the time of the Nayarit declaration when the RMI “had associated itself with one side of that multilateral disagreement” (Crawford § 25, § 25, § 26; for the view that a dispute existed at this time see also Bennouna, pp. 317-8, 611-2, 903-4; Cançado Trindade §§ 17, 273, §§ 17, 263, §§ 17-8, 269;  Sebutinde §§ 26-9, 34, §§ 25-7, 32, §§ 26-9, 34; Robinson, §§ 58-60, §§ 58-60, §§ 59-67; cf. Bedjaoui, § 81, § 79, §§ 47, 87; cf. also Yusuf, § 59; Tomka §§ 28-30, 41, §§ 28-30, 41, §§ 30-2, 41, accepting a dispute but basing the inadmissibility on the absence of the other nuclear powers). The fact that the UK was not present at this particular conference was seen either as confirmation of a pre-existing dispute between non-nuclear-weapon States and nuclear-weapon States (Sebutinde § 28) or as an insignificant factor in the Court’s reasoning (Crawford § 28; see also Robinson § 62, Bedjaoui § 47). On the other hand, other judges questioned whether disputes concerning the obligation to pursue and to conclude negotiations on nuclear disarmament can be meaningfully addressed in bilateral contentious proceedings without the participation of all nuclear-weapon States (Tomka §§ 31-41, §§ 31-41, §§ 33-41; Xue §§ 9-15, §§ 9-16, §§ 9-16; cf. also Bhandari § 51, § 17, § 17 and Gaja pp. 449, 742, 1038, arguing that other preliminary objections should have been considered).

Towards Disarmament, but how and when?

The obligation set forth in operative paragraph 2 F was meant to offer the solution to the problem which the Court itself could not resolve in paragraph 2 E. The years since then have demonstrated that there is not only a “continuing difference of views with regard to the legal status” of nuclear weapons (§ 98) but also with regard to the compliance with the obligation expressed in 2 F. The RMI cases stand pars pro toto for this “broader multilateral disagreement” (cf. Crawford § 27, § 27, § 30). Another example is the Treaty on the Prohibition of Nuclear Weapons (TPNW) which has yet to enter into force. This treaty arguably can contribute to the delegitimization of nuclear weapons, but so far it has also met opposition from major players (e.g. here, here, and here p. 24) who prefer a step-by-step approach instead of an absolute prohibition now.

Both the RMI cases and the process leading to the TPNW give cause to reflect on whether Article VI NPT and CIL require States to be more ambitious with regard to nuclear disarmament than they have been so far.

Ultimately, the answer to the disagreement over the path to nuclear disarmament, which might inform also the next NPT Review conference, must not be a stalemate; rather, it must be further cooperation of all States to achieve concrete progress. A world without nuclear weapons is not just a dream but, as the ICJ rightly pointed out, a precise result that needs to be achieved.