13 May 2014
A shared obligation to negotiate (and achieve?) nuclear disarmament
Every year since the International Court of Justice’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, the UN General Assembly has adopted by a large majority a follow-up resolution. Each resolution reiterates that ‘the continuing existence of nuclear weapons poses a threat to humanity and all life on Earth’, and underlines ‘the unanimous conclusion of the International Court of Justice that 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’. The ICJ derived this obligation from Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which provides 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.
On 24 April 2014 the Republic of the Marshall Islands (RMI) instituted legal proceedings before the ICJ against nine nuclear weapons possessing states: France, India, Pakistan, the United Kingdom, the United States, Israel, China, Russia and North Korea. The Application states that their failure to pursue and conclude negotiations leading to complete nuclear disarmament amounts to a continuing breach of the obligations enshrined in Article VI NPT (to which five of these states are parties), as well as of identical obligations that exist separately under customary international law. Only Pakistan, the UK and India have accepted the compulsory jurisdiction of the ICJ (albeit with several reservations); the remaining six states have been requested to accept the jurisdiction of the Court.
Assuming that the potential barriers to jurisdiction and admissibility would be overcome, the initiation of these proceedings calls for some reflection on the substantive content of the shared obligation(s) arising from Article VI NPT (and, if they indeed exist, identical obligations under customary international law). As the total elimination of nuclear weapons cannot be achieved by any state in isolation, Article VI NPT requires all states parties to take part in overall disarmament efforts. But while it is clear that nuclear disarmament is a goal that can only be achieved through the combined action of all states, it remains uncertain what action is legally required of them. There exist a variety of conflicting views as to ‘what state behaviour is required to meet the nuclear disarmament obligation’. Arguably, this lack of clarity has contributed to the overall failure of nuclear weapon states to take concrete steps towards the common goal of nuclear disarmament.
It has been argued that Article VI NPT ‘merely’ gives rise to an obligation to negotiate in good faith – a pactum de negotiando – which obliges individual duty-bearers to make a genuine effort towards coming to an agreement, but ‘does not imply an obligation to reach an agreement’. However, in its Nuclear Weapons Advisory Opinion the ICJ has held that the legal import of Article VI NPT ‘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’. It subsequently qualified Article VI NPT as giving rise to ‘a two-fold obligation to pursue and conclude negotiations’. These passages have been used to support the argument that Article VI NPT gives rise to a pactum de contrahendo – an obligation of states parties to conclude an international agreement on complete nuclear disarmament.
The difference between these two interpretations of Article VI NPT is far from negligible. An obligation to negotiate in good faith is generally considered to be an obligation of conduct, which entails that each duty-bearer can independently fulfil or breach its obligation by conducting or failing to conduct negotiations in good faith. It would be perfectly possible for one duty-bearer to fulfil its obligation by negotiating in good faith whereas another breaches its obligation by failing to do so (though how a state may demonstrate good faith will of course be up for discussion). In the end, whether or not negotiations bring about a certain result does not have a necessary bearing on the fulfilment (or breach) of the obligation to negotiate.
This seems to be different when it comes to the obligation to conclude negotiations and achieve the result of ‘nuclear disarmament in all its aspects’. If Article VI NPT indeed requires the achievement of such a result, the duty-bearers of this obligation will be highly dependent upon one another when it comes to complying with this requirement. The desired result of complete nuclear disarmament, whether or not through the conclusion of a multilateral treaty, cannot be brought about by a duty-bearer on its own; regardless of the amount of effort it puts in or the extent of good faith it displays (for example by unilaterally declaring that it will dispose of its entire nuclear arsenal). This would entail that the obligation cannot be fulfilled by any duty-bearer as long as the result of total nuclear disarmament has not been achieved. At the same time, it is not clear when this obligation would be breached, as no definitive timeframe has been set out within which negotiations should be concluded and/or complete nuclear disarmament should be achieved. Should a breach nevertheless be established, the question arises whether this would automatically result in shared responsibility for all duty-bearers.
The proceedings instituted by the RMI may provide the ICJ with an opportunity to clarify the substantive content of Article VI NPT. At first sight, the ICJ’s pronouncements in its Nuclear Weapons Advisory Opinion seem to support the argument that Article VI NPT gives rise to an obligation that goes beyond a ‘mere’ obligation to negotiate. But how far does that obligation go? Does it really require that the result of complete nuclear disarmament is achieved before duty-bearers can fulfil the obligation, regardless of the result achieved by each duty-bearer individually? Should nuclear disarmament necessarily be achieved through the conclusion of a multilateral treaty? And would a breach of the obligation to achieve nuclear disarmament entail that both nuclear weapon states and non-nuclear weapon states would share the resulting responsibility?
In the midst of these uncertainties, what does seem evident is that progress towards nuclear disarmament is occurring at a disturbingly slow pace. A clarification of what it is that states must do in order to comply with their legal obligations will make it more difficult to justify their inaction; hopefully bringing us one step closer to the collective goal of nuclear disarmament.
 Legal Memorandum by the International Association of Lawyers Against Nuclear Arms and the International Human Rights Clinic Human Rights Program, Harvard Law School, Good Faith Negotiations Leading to the Total Elimination of Nuclear Weapons: Request for an Advisory Opinion from the International Court of Justice (International Human Rights Clinic Human Rights Program, Harvard Law School, Cambridge, 2009) at 4. Available at http://www.un.org/disarmament/education/docs/goodfaithnegs.pdf.
 Railway Traffic Between Lithuania and Poland, Advisory Opinion, 1931, P.C.I.J. Series A/B No. 42, p. 108, at p. 116.
 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, p. 226, at para. 99 (emphasis added).
 Ibid., at para. 100 (emphasis added).