Abstract
Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) obliges the State Parties to pursue negotiations in good faith in order to achieve the cessation of the nuclear arms race, the elimination of nuclear weapons and the ultimate goal of general and complete disarmament under strict and effective international control. The nature and exact scope of the rights and obligations flowing from this provision are uncertain. The present chapter aims at the clarification of some of the questions left open in this debate. It proposes a legal analysis of Article VI in the light of the different means of treaty interpretation according to Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT). Particular attention will be paid to the special nature of the NPT that distinguishes clearly between two different categories of State Parties, the few nuclear weapon States (NWS), on the one side, and the numerous non-nuclear weapon States (NNWS), on the other side. It will also be explained why in a treaty such as the NPT a teleological interpretation, taking into consideration its object and purpose and pursuing its effet utile, plays a significant role. Moreover, Article VI has to be analysed in the light of the political, social and technological developments as well as the considerable changes that the international legal order has itself undergone during almost half a century, including a higher protection of the human being. Therefore, this chapter will also reply to the allegation according to which the subsequent practice, since the adoption of the treaty in 1968 that had been surrounded by the special circumstances of the Cold War, has changed substantially the rights and obligations of States under Article VI NPT or even made this provision meaningless.
Ph.D. (University of Lausanne), MA (Graduate Institute of International Relations, Geneva). He is a reader of international law (University of Lausanne) and a member of the International Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law of the International Law Association (ILA). The views expressed in this article are the author’s personal opinions. The author goes to James Brannan for his precious help and his comments on the text.
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- 1.
Treaty on the Non-Proliferation of Nuclear Weapons (1 July 1968) 729 UNTS 161.
- 2.
Vienna Convention on the Law of Treaties (23 May 1969) 1155 UNTS 331.
- 3.
See, among many other authorities, LaGrand (Germany vs. United States of America), ICJ Reports 2001, para 99, or Avena and Other Mexican Nationals (Mexico vs. United States of America), ICJ Reports 2004, para 83.
- 4.
This follows also from the first sentence of Article 4 of the VCLT: ‘Without prejudice to the application of any rules set forth in the present Convention to which treaties would be subject under international law independently of the Convention…’.
- 5.
ACDI, 1966-II 218, para 4: ‘Their suitability [the suitability of principles and maxims in international practice] for use in any given case hinges on a variety of considerations which have first to be appreciated by the interpreter of the document; the particular arrangement of the words and sentences, their relation to each other and to other parts of the document, the general nature and subject-matter of the document, the circumstances in which it was drawn up, etc. Even when a possible occasion for their application may appear to exist, their application is not automatic but depends on the conviction of the interpreter that it is appropriate in the particular circumstances of the case. In other words, recourse to many of these principles is discretionary rather than obligatory and the interpretation of documents is to some extent an art, not an exact science’.
- 6.
- 7.
International Law Commission, Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law, Report of the Study Group of the International Law Commission, finalised by Martti Koskenniemi, A/CN.4/L.682, 13 April 2006, p. 215, para 427. The latter nevertheless claims that the Convention does not purport to be an exhaustive statement of interpretative techniques and points out that there is no mention, for instance, of lex specialis or lex posterior rules. See also Bernhardt 1999, p. 14; he observes that the principle that treaties should be interpreted restrictively and in favour of State sovereignty, in dubio mitius, is also not mentioned in Article 31 VCLT, rightly claiming that this principle is no longer relevant in international law.
- 8.
It does not seem that Article 33 VCLT has played a significant role in practice or legal doctrine in the context of the NPT, but this question deserves further investigation. As far as the ABM Treaty is concerned, see the article of Tuzmukhamedov 1994, and more generally, Rosenne 1971; Tabory 1980; Shelton 1997; Labuschagne 1999; Brannan 2004.
- 9.
Villiger 2009, p. 426.
- 10.
Ibid.
- 11.
See, for the list of State Parties, the United Nations Office for Disarmament Affairs: http://www.un.org/disarmament/.
- 12.
See, for more details of the three pillars, Grotto 2009.
- 13.
UNGA Resolution 2625 (XXV) of 24 October 1970, Declaration of Principles (1 para 11).
- 14.
In the case concerning The Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs. United States of America), Judgment of 27 June 1986, ICJ Reports 1986, paras 188, 191, 193, 202 and 264, the ICJ held that the prohibition of the use of force and the principle of non-intervention can be considered to be codifications of rules of customary law. See, for further reading on this issue, Keller 2009, paras 36–39. The question whether ‘the obligation to pursue in good faith negotiations for the early conclusion of a universal treaty on general and complete disarmament’ is of a customary nature can be left open here.
- 15.
International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009, p. 19.
- 16.
ICJ Reports 1996, § 105(2)(F). The ICJ was asked to give a second Advisory Opinion (Legality of the Use by a State of Nuclear Weapons in Armed Conflict), but the Court came to the conclusion that the request that had been submitted by the World Health Organisation (WHO) did not relate to a question which arose within the scope of the activities of that organisation in accordance with Article 96, para 2, of the Charter of the United Nations. Therefore, the Court considered itself unable to give the opinion requested.
- 17.
Ibid., para 99. See also the Declaration of the former President of the ICJ, Mohammed Bedjaoui, ICJ Report 1996, pp. 268–274, § 23: ‘…I think …that there is in fact a twofold general obligation, opposable erga omnes, to negotiate in good faith and to achieve the desired result. Indeed, it is not unreasonable to think that, considering the at least formal unanimity in this field, this twofold obligation to negotiate in good faith and achieve the desired result has now, 50 years on, acquired a customary character’.
- 18.
Emphasis added.
- 19.
Ford 2007, p. 402, suggests that the Court, that was not explicitly asked to give any advice on Article VI, has acted ultra vires.
- 20.
- 21.
Beyerlin 1997, p. 855 and 858.
- 22.
- 23.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (10 April 1972) 1015 UNTS 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (13 January 1993) 1974 UNTS 45.
- 24.
Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (10 April 1972) 1015 UNTS 163; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (13 January 1993) 1974 UNTS 45.
- 25.
Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (18 September 1997) 2056 UNTS 211.
- 26.
Convention on Cluster Munitions (30 May 2008), registered under Registration No. I-47713 in the UNTS Database.
- 27.
See, in this sense, Rietiker 2010, p. 228.
- 28.
See, for the status of ratification of the different treaties: http://www.un.org/disarmament/.
- 29.
Treaty for the Prohibition of Nuclear Weapons in Latin America and Caribbean (Treaty of Tlatelolco, adopted on 14 February 1967) 634 UNTS 326.
- 30.
South Pacific Nuclear Free Zone Treaty—Rarotonga Treaty—(6 August 1985) 1676 UNTS 223.
- 31.
Treaty on the South–East Asia Nuclear Weapon Free Zone—Bangkok Treaty—(15 December 1995) 1981 UNTS 129.
- 32.
African Nuclear-Weapon-Free Zone Treaty—Pelindaba Treaty—(11 April 1996) 35 ILM 698.
- 33.
Treaty on a Nuclear-Weapon-Free Zone in Central Asia—Semipalatinsk Treaty—(8 September 2006), http://www.opanal.org/NWFZ/CentralAsia/canwfz_en.htm. Moreover, Mongolia had declared itself nuclear-weapon-free State, a status which was internationally recognised through UNGA Resolution 55/33S of 20 November 2000.
- 34.
According to Daillier et al. 2009, paras 169, 289, the notion of object and purpose of a treaty refers implicitly to the rule of ‘effet utile’. See also Cançado Trindade 2003, 749 ff. The ICJ mentioned this rule for instance in the Corfu Channel case: ‘It would indeed be incompatible with the generally accepted rules of interpretation to admit that a provision of this sort occurring in a special agreement should be devoid of purport or effect. In this connexion, the Court refers to the views expressed by the Permanent Court of International Justice with regard to similar questions of interpretation’. In Advisory Opinion No. 13 of 23 July 1926, that Court said (Series B., No. 13, p. 19): ‘But, so far as concerns the specific question of competence now pending, it may suffice to observe that the Court, in determining the nature and scope of a measure, must look to its practical effect rather than to the predominant motive that may be conjectured to have inspired it’. In its Order of 19 August 1929, in the Free Zones case, the Court said (Series A., No. 22, p. 13): ‘in case of doubt, the clauses of a special agreement by which a dispute is referred to the Court must, if it does not involve doing violence to their terms, be construed in a manner enabling the clauses themselves to have appropriate effects’ (ICJ Reports 1949, p. 24).
- 35.
For this reason, the expression ‘effet pratique’ has sometimes been preferred (Daillier et al. 2009, p. 288). The International Law Commission held in this respect that ‘[w]when a treaty is open to two interpretations one of which does and the other does not enable the treaty to have appropriate effects, good faith and the objects and purposes of the treaty demand that the former interpretation should be adopted’ (YBILC 1966 II 219, para 6).
- 36.
International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009, p. 16.
- 37.
Ibid.
- 38.
Preambular para 11.
- 39.
Technically speaking, and irrespective of the nature of the obligations, Article VI imposes on the States a ‘positive’ obligation and, from the standpoint of the international responsibility of States, a continuing obligation in the sense of the Articles on the Responsibility of States for Internationally Wrongful Acts, adopted by the International Law Commission at its fifty-third session, in 2001, and submitted to the UNGA (A/56/49(Vol. I)/Corr.4). Its Article 14 § 2 reads as follows: ‘The breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation’. See, for this kind of situation, the case United States Diplomatic and Consular Staff in Tehran, ICJ Reports 1980, p. 37, paras 78 and 80, or Rainbow Warrior (New Zealand/France), UNRIAA, Vol. XX, p. 217 (1990), at p. 264, para 101.
- 40.
Villiger 2009, p. 427.
- 41.
See above, Sect. 3.2.
- 42.
- 43.
- 44.
UN Charter Article 2 § 1: ‘The Organization is based on the principle of the sovereign equality of all its Members’. This principle was later confirmed in the 1970 Friendly Relations Declaration, referred to above.
- 45.
Doc. A/Res/S-10/2. It was pointed out that the TNP is by far not the only arms control treaty that contains discriminatory features. This is in particular true concerning the older treaties, which were concluded between a small group of States in the cold war environment; see for more details Rietiker 2010, pp. 159–161, in particular for the questions of the mechanism of triple depositary (344–346), the conditions for entry into force of the treaties (346–350) and their amendments (442–451).
- 46.
See, for instance, the observations of Mexico and Nauru before the ICJ in the 1996 Advisory Opinion proceedings; these governments referred to the obligation under Article VI as constituting a possible way ‘to attain a balance between the rights and the obligations of the Parties’ (Note Verbale from the Embassy of Mexico (19 June 1995), and Letter from Counsel Appointed by Nauru (15 June 1995)).
- 47.
- 48.
In this sense, Abi-Saab 1987, pp. 328–331.
- 49.
The principle was confirmed in the above-mentioned Friendly Relations Declaration; in its preamble (para 5), it stipulates that the ‘fulfilment in good faith of the obligations assumed by the States, in accordance with the Charter, is of greatest importance for the maintenance of international peace and security, and for the implementation of the other purposes of the United Nations’. The last operative paragraph of part 1 of the declaration is also devoted to this principle.
- 50.
Villiger 2009, p. 425, referring to the case concerning the Interpretation of the Algerian Declaration of 19 January 1981 by the Iran-US Claims Tribunal, ILR 62 (1982) 605 f. (‘spirit of honesty and respect for law’). See also O’Connor 1991, p. 124: ‘The principle of good faith in international law is a fundamental principle from which the rule pacta sunt servanda and other legal rules distinctively and directly related to honesty, fairness and reasonableness are derived, and the application of these rules is determined at any particular time by the compelling standards of honesty, fairness and reasonableness prevailing in the international community at that time’. For an often quoted definition in French, see Basdevant in the Dictionnaire de la terminologie du droit international (Paris, Sirey 1960, p. 91): ‘Esprit de loyauté, de respect du droit, de fidélité aux engagements de la part de celui dont l’action est en cause, absence de dissimulation, de tromperie, de dol dans les relations avec autrui’.
- 51.
International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009, p. 29.
- 52.
- 53.
Villiger 2009, p. 426, with further references.
- 54.
Gabčíkovo-Nagymaros Project (Hungary vs. Slovakia), ICJ Reports 1997, para 142.
- 55.
Para 3 of the preamble.
- 56.
Villiger 2009, p. 363 and 368.
- 57.
Villiger 2009, p. 367, referring to Harvard Draft, AJIL 29 (1935) Supplement 981.
- 58.
See, for instance, the 2nd preambular paragraph of the NPT: ‘Considering the devastation that would be visited upon all mankind by a nuclear war and the consequent need to make every effort to avert the danger of such a war and to take measures to safeguard the security of peoples’.
- 59.
Op.cit. n 51, pp. 29–32.
- 60.
In the North Sea Continental Shelf case, the ICJ underlined that the parties should ‘not merely…go through a formal process of negotiation’ but rather that they ‘are under an obligation so to conduct themselves that the negotiations are meaningful’ (ICJ Reports 1969, para 85).
- 61.
The 1972 Arbitral Tribunal of the Agreement on German External Debts held that ‘parties must make every effort…to reach a mutually satisfactory compromise, even going so far as to abandon previously inflexibly held positions (Genevieve Guyomar, Arbitration Panel/Tribunal of the Agreement on German External Debt AFDI, in XIX Recueil des sentences arbitrales [R. Int’l Arb. Awards] 27–64 (1973)).
- 62.
Lake Lanoux Arbitration (France vs. Spain), 12 Int’l Arb. Awards 281 (1957).
- 63.
Tacna-Arica (Chile vs. Peru), 2 R. Int’l Arb. Awards 921, 929–940 (1925).
- 64.
In her separate opinion in the 2004 Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Judge Higgins noted that, in addition to existing substantive obligations, States should honour the ‘procedural obligation to move forward simultaneously’ (ICJ Reports 2004, para 18). As the Lake Lanoux Arbitral Tribunal explained, good faith would be violated ‘in case of unjustified breaking off of talks, of abnormal delay, [or] of failure to follow agreed procedures’ (Lake Lanoux Arbitration, op.cit, supra n. 62, at 281).
- 65.
Gulf of Maine (Canada vs. US), ICJ Reports 1984, para 87. Similarly, the 1972 Arbitral Tribunal of the Agreement on German external Debts stated that good faith does not imply ‘the obligation to reach an agreement, but it does imply serious efforts aimed toward that end’ (Guyomar, op.cit., supra n 61, p. 535).
- 66.
Villiger 2009, 425 ff., with reference.
- 67.
- 68.
See, inter alia, the title of the contribution of Buffard and Zemanek 1998, pp. 311–343.
- 69.
Klabbers 1997, p. 141.
- 70.
In accordance with Article 22, para 1, the treaty shall enter into force 90 days following the date of the deposit of the 50th instrument of ratification, acceptance or approval with the Depositary.
- 71.
See, for instance, The Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs. United States of America), Judgment of 27 June 1986, ICJ Reports 1986, paras 273 and 275, Certain Norwegian Loans, ICJ Reports 1957, p. 24 or the advisory opinion concerning the Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, ICJ Reports 1951, p. 23; see also the European Court of Human Rights, Golder vs. United Kingdom, Series A No. 18, para 34; and as far as the authors are concerned Buffard and Zemanek 1998, p. 332; Klabbers 1997, pp. 155–159; Kolb 2000, p. 209; Villiger 2009, p. 428.
- 72.
Villiger 2009, p. 427, with reference.
- 73.
See above, Sect. 3.5.
- 74.
See in particular preambular paras 8 and 11, that read as follows: ‘Declaring their intention to achieve at the earliest possible date the cessation of nuclear arms race and to undertake effective measures in the direction of nuclear disarmament’ (para 8) and ‘Desiring to further the easing of international tension and the strengthening of trust between States in order to facilitate the cessation of the manufacture of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national arsenals of nuclear weapons and the means of their delivery pursuant to a Treaty on general and complete disarmament under strict and effective international control’ (para 11).
- 75.
See, in particular, the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and Ocean Floor and in the Subsoil Thereof—Sea-Bed Treaty—(11 February 1971) 955 UNTS 115, the 1972 Biological Weapons Convention, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques—ENMOD—(18 May 1977) 1108 UNTS 151, the 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 (10 October 1980) 1342 UNTS 137, the 1993 Chemical Weapons Convention, and the 1996 Comprehensive Nuclear-Test-Ban Treaty—CTBT—(24 September 1996) UN Doc A/50/1027, Annex.
- 76.
The other four treaties on regional nuclear disarmament also name, explicitly or in essence, the general and complete disarmament as one of their goals.
- 77.
Rietiker 2010, 610 ff.
- 78.
See below, Sect. 3.7.2.2.
- 79.
Villiger 2009, p. 427, with reference.
- 80.
- 81.
Wemhoff vs. Germany, 27 June 1968, ECHR, Series A, no. 7 p. 23, para 8.
- 82.
See, for instance, G. G. Fitzmaurice, Second Report, YBILC 1957 II 54, paras 124–126; Fitzmaurice, ibid., p. 54, para 126, and more recently, Koskenniemi, op.cit. supra n. 7, para 262.
- 83.
The legal nature of arms control treaties will be dealt with in a separate chapter of a subsequent volume of this book series.
- 84.
This means of interpretation is well established in the practice of the Court (see, for instance, the case of Kasikili/Sedudu Island (Botswana/Namibia), ICJ Reports 1999, para 48). See, for further reading, Distefano 1994, 41 ff.
- 85.
Villiger 2009, p. 431.
- 86.
Waldock Report VI, YBILC 1966 II 99, para 18, ILC Report 1966, p. 222, para 15. See other references at Villiger 2009, note 69, 431 ff.
- 87.
Villiger 2009, p. 432.
- 88.
The rules on modifications and amendments of treaties contained in the VCLT are flexible and of a subsidiary nature. Article 39 of the VCLT reads as follows: ‘General rules regarding the amendment of treaties: A treaty may be amended by agreement between the parties…’; See also Article 40: ‘Amendment of multilateral treaties: 1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed by the following paragraphs…’.
- 89.
Weapons of Mass Destruction Commission, Weapons of Terror: Freeing the World of Nuclear, Chemical and Biological Arms, 2006, at 94.
- 90.
Ford 2007, p. 407.
- 91.
Above, Sect. 3.2.
- 92.
See, as far as India and Pakistan are concerned, Security Council Resolution 1172 (1998).
- 93.
The DPRK had declared its withdrawal from the NPT on 12 March 1993, but suspended that declaration on 11 June. On 10 January 2003, it declared that its withdrawal would take immediate effect.
- 94.
See SC Resolution 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008) 1929 (2010) and 1984 (2011).
- 95.
Deterrence and Defence Posture Review, adopted by Heads of State and Government participants in the meeting of the North Atlantic Council in Chicago on 20 May 2012.
- 96.
Military Doctrine of the Russian Federation, approved by Decree of the President of the Russian Federation, 5 February 2010.
- 97.
See Chinese State Council, China’s National Defence in 2010 (Information Office of the Chinese State Council, Beijing, March 2011). See also Lewis and Xue Litai 2012, pp. 45–65.
- 98.
Shaker 2006, p. 146, referred to ‘some achievements in the field of disarmament and arms control’, but acknowledged also that there were ‘failures and disappointments’.
- 99.
See above, Sect. 3.3.
- 100.
In a very recent declaration, the UN Disarmament Commission adopted concrete and detailed principles, objectives and recommendations in view to achieve nuclear non-proliferation and disarmament: Doc. A/CN.10/2013/WG.I/WP.2, 11 April 2013, Disarmament Commission, New York, 1–19 April 2013, ‘Recommendations for achieving the objective of nuclear disarmament and non-proliferation of nuclear weapons’ (Working paper submitted by the Chair):
http://www.un.org/ga/search/view_doc.asp?symbol=A/CN.10/2013/WG.I/WP.2
- 101.
See above, Sect. 3.5.2.
- 102.
See for instance the statement by Henry A. Kissinger/George P. Schultz/William J. Perry and Sam Nunn, ‘Toward a Nuclear-Free World’, The Wall Street Journal, 15 January 2008.
- 103.
Ban Ki-moon, UN Secretary-General, Address to the East–West Institute: The United Nations and Security in a Nuclear-Weapon-Free-World (24 October 2000). See, for other examples, International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009.
- 104.
Joint Statement by former Russian Federation President Dmitriy Medvedev and US President Barack Obama, Office of the Press Secretary, The White House, 1 April 2009. See also the speech of President Obama in Prague on 5 April 2009.
- 105.
Treaty between the United States of America and the Russian Federation on Measures for the Further Reduction and Limitation of Strategic Offensive Arms, including Protocol and Technical Annexes to the Protocol.
- 106.
See the Website of this organisation: http://www.icanw.org/. Also partly thanks to this initiative, a series of conferences on this topic have been launched (Oslo 2013, Nayarit 2014, Vienna 2015).
- 107.
International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009, 20 ff.
- 108.
2000 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), New York, USA, 24 April–19 May 2000, Final Document, Part II, at 14, para 15, UN Doc. NPT/CONF.2000/28. For a critical voice concerning the 13 Steps, see Ford 2007, p. 412 ff.
- 109.
International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009, p. 21. These authors claim that the 1995 Principles and Objectives and the 2000 Thirteen Steps can be considered ‘subsequent agreements between the parties regarding the interpretation of the treaty or the application of its provision’, in the sense of Article 31 subpara 3a) of the VCLT. For an opposite view, see Ford 2007, p. 412.
- 110.
International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009, p. 22. See, for instance as far as Nigeria is concerned, 2005 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), New York, USA, 2–27 May 2005, Issue to be considered by Main Committee I: Working Paper Submitted by Nigeria, at 1, para 4, UN Doc. NPT/CONF.2005/MC.I/WP.2.
- 111.
Also at the 2010 Review Conference, Costa Rica submitted a working paper on the Model Nuclear Weapons Convention (NPT/Conf.2010/PC.I/WP.17). For the consideration by the Conference of the Model Convention, see 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons, Final Document, Volume II (NPT/Conf.2010/50, Vol. II), pp. 702–705; see moreover the intervention by the representative of Lebanon, speaking on behalf of the Group of Arab States, Final Document, Vol. III (NPT/Conf.2010/50, Vol. III), para 30 ff.
- 112.
Final Document, Volume II (NPT/Conf.2010/50, Vol. II), p. 705. The full recommendations read as follows: ‘(a) States parties agree to undertake the preparatory process to explore the legal, technical and political elements required for a nuclear weapons Convention or a framework of instruments; and (b) States parties agree to commence multilateral negotiations leading to the conclusion of a nuclear weapons Convention and invite those States that have not acceded to the Treaty on the Non-Proliferation of Nuclear Weapons to join in such negotiations’ (p. 705).
- 113.
Letter of 31 October 1997 from the Chargé d’affaires a.i. of the Permanent Mission of Costa Rica to the United Nations addressed to the Secretary-General (UN Doc. A/C.1/52/7, 17 November 1997).
- 114.
Letter of 31 October 1997 from the Chargé d’affaires a.i. of the Permanent Mission of Costa Rica to the United Nations addressed to the Secretary-General (UN Doc. A/62/650, 18 January 2008).
- 115.
Press Release, Secretary-General Ban Ki-Moon, The United Nations and Security in a Nuclear-Weapon-Free World (UN Doc. SG/SM/11881, 24 October 2008).
- 116.
International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009, p. 26.
- 117.
Villiger 2009, pp. 432 and 513.
- 118.
According to Villiger 2009, p. 432, parties may in their practice gradually wander from interpretation to a customary modification of the treaty. He further points out (p. 515) that the 1966 ILC Draft provided in its Article 38 as follows: ‘Modification of treaties by subsequent practice: A treaty may be modified by subsequent practice in the application of the treaty establishing the agreement of the parties to modify its provisions’ (YBILC 1966 II 236 f). He adds that this provision attracted little support and was eventually deleted.
- 119.
The North Sea Cases confirm that a customary rule requires both material practice and opinio juris, and that there is a close affinity between the two (Villiger 2009, p. 10). In particular, State practice should ‘show a general recognition that a rule of law is involved’ (ICJ Reports 1969, para 74; see also para 77). Villiger adds that from this can be inferred that the opinio has to be widespread, including the specially affected States, but that it need not be found in every State or in a particular one (Villiger 2009, p. 10).
- 120.
According to Article 60 para 3 of the VCLT, a ‘material breach’ of a treaty, for the purpose of this article, consists in: ‘(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object and purpose of the treaty’.
- 121.
See, for instance, the Judgment of Demir and Baykara vs. Turkey (GC), No. 34503/97, 12 November 2008, ECHR 2009, in which the Court clearly stated as far as Article 31 subpara 3(c) VCLT was concerned: ‘The Court … can and must take into account elements of international law other than the Convention…’ (para 85).
- 122.
Report Koskenniemi, op.cit. supra n. 7, p. 206.
- 123.
Villiger 2009, p. 432. In the Oil Platforms case (Iran/US), the ICJ was confronted with Article XX, subpara 1d) of the US/Iran Treaty of amity, economic relations and consular rights of 1955 which ‘[did] not preclude the application of measures…necessary to fulfil the obligations of a High Contracting Party for the maintenance or restoration of international peace and security’. The Court considered, invoking Article 31 subpara 3c) of the VCLT, that it ‘[could not] accept that [Article XX] was intended to operate wholly independently of the relevant rules of international law on the use of force, so as to be capable of being successfully invoked, even in the limited context of a claim for a breach of the Treaty, in relation to an unlawful use of force’ (ICJ Reports 2003, para 41).
- 124.
Waldock Report VI,YBILC 1966 II 97, para 10; Waldock in the ILC, YBILC 1964 I 310, para 10, and 316, paras 13 and 17.
- 125.
ILC Report 1964, YBILC 1964 II 202 f, para 11, Castren in the ILC, YBILC 1966 I/2 188, para 49, Yasseen 1976, 63; see also Koskenniemi, op.cit, supra n. 7, paras 462–469. It is more disputed whether non-binding rules, so-called soft law, including memorandum of understandings, can be taken into consideration. For Villiger 2009, 433, the term ‘applicable’ leaves no room for doubt: in his view, non-binding rules cannot be relied upon.
- 126.
For this reason, Koskenniemi mentions the possibility of taking into consideration, in the field of Article 31 subpara 3c) VCLT, instruments to which at least all the parties to a specific proceeding are bound (op.cit. supra n. 7, para 472).
- 127.
Antarctic Treaty (adopted on 1 December 1959).
- 128.
Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies (27 January 1967).
- 129.
Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and Ocean Floor and in the Subsoil Thereof (11 February 1971).
- 130.
Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (18 December 1979).
- 131.
See, for the definition of this concept, the case concerning The Barcelona Traction, Light and Power Company, Limited (Second Phase), ICJ Reports 1970, para 33: ‘…an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes’. The Court gave as examples of such obligations the prohibition of aggression, genocide and principles and rules concerning the basic rights of the human being, including protection against slavery and racial discrimination (para 34).
- 132.
Sir Humphrey Waldock had included in his third report on the law of treaties a provision (draft Article 63) on treaties setting up objective régimes, that was later deleted. He described them as establishing ‘in the general interest general obligations and rights relating to a particular region, State territory, locality, river, waterway, or to a particular area of sea, sea-bed, or air space’ (YBILC 1964 II 26 f.).
- 133.
See, for instance, Article 1 of the 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and other Celestial Bodies; for an other in favour of an erga omnes nature of the régime created by this treaty Barnes 2000, p. 129. See also the Preamble of the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and Ocean Floor and in the Subsoil Thereof.
- 134.
See above, Sect. 3.3.3.
- 135.
As far as the concept of ‘nuclear-weapon-free zones’ is concerned, reference can be made to UNGA Resolution 3472 B (1975) that defines such zones as ‘any zone recognised as such by the General Assembly of the United Nations, which any group of States, in the free exercises of their sovereignty, has established by virtue of a treaty or convention thereby: (a) The statute of total absence of nuclear weapons to which the zone shall be subject, including the procedure for the delimitation of the zone, is defined; (b) An international system of verification and control is established to guarantee compliance with the obligations deriving from that statute’.
- 136.
See, for instance, Article 8 of the Treaty of Semipalatinsk or Article 5 of the Treaty of Bangkok. See, for a general discussion of the regional treaties, Shaker 2006, pp. 160–178.
- 137.
See, for a recent document on this topic, Resolution UNGA 66/25 of 13 December 2011 (Establishment of a nuclear-weapon-free zone in the region of the Middle East).
- 138.
See, for instance, the Protocol to the Treaty on a Nuclear-Weapon-Free Zone in Central Asia, by virtue of which France, China, Russia, the UK and the USA can undertake ‘not to use or threaten to use nuclear weapon or other nuclear explosive device against any Party to the Treaty’ (Article 1) and ‘not to contribute to any act that constitutes a violation of the Treaty or of its Protocol by Parties to them’ (Article 2). Such commitments have actually been undertaken by four nuclear weapon States through the ratification of the First Protocol to the Pelindaba Treaty.
- 139.
As the Court rightly pointed out in the Nuclear Weapons Opinion (para 59b), not all the Protocols have been ratified by all nuclear States and those who ratified made declarations and reservations. In the case of the Treaty of Rarotonga, for instance, China declared when ratifying the 2nd Protocol to this treaty, on 21 October 1988, that ‘the Chinese Government reserves the right to reconsider these obligations if other nuclear weapon States of the contracting parties to the Treaty take action in gross violation of the Treaty and its attached Protocols, thus changing the status of the nuclear free zone and endangering the security interests of China’. Such a reservation would have to be scrutinised against the provisions of the regime on reservations under the 1969 VCLT (Articles 19–23) and, moreover, repeats in substance Article 6 of the Protocol that allows withdrawal under certain circumstances.
- 140.
See above, Sect. 3.3.3.
- 141.
See, for this expression, Greenwood 1999, p. 252.
- 142.
ICJ, Nuclear Weapons, para 48.
- 143.
Ibid. The Court added here that ‘[i]n order to be effective, the policy of deterrence, by which those States possessing or under the umbrella of nuclear weapons seek to discourage military aggression by demonstrating that it will serve no purpose, necessitates that the intention to use nuclear weapons be credible. Whether this is a “threat” contrary to Article 2, para 4, depends upon whether the particular use of force envisaged would be directed against the territorial integrity or political independence of a State, or against the Purposes of the United Nations or whether, in the event that it were intended as a means of defence, it would necessarily violated the principles of necessity and proportionality. In any of these circumstances the use of force, and the threat to use it, would be unlawful under the law of the Charter’.
- 144.
Ibid, para 78.
- 145.
See the case concerning The Military and Paramilitary Activities in and against Nicaragua (Nicaragua vs. United States of America), ICJ Reports 1986, para 190: ‘A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, para 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law. The International Law Commission, in the course of its work on the codification of the law of treaties, expressed the view that “the law of the Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens” (para 1 of the commentary of the Commission to Article 50 of its draft Articles on the Law of Treaties, ILC Yearbook, 1966-II, p. 247)…’.
- 146.
Dispositif, para C.
- 147.
ICJ, Nuclear Weapons, para 42, and dispositif, para D.
- 148.
Id, para 78.
- 149.
Id, para 79. In it Judgment of 9 April 1949 in the Corfu Channel case (ICJ Reports 1949, p. 22), the Court referred to ‘elementary considerations of humanity’.
- 150.
Dispositif, para E, first para.
- 151.
Dispositf, para E, second para. See also Kohen 1999, pp. 293–314. The proponents of the lawfulness of nuclear weapons had alleged before the Court that the effects of the use of ‘clean’, low yield nuclear weapons would be controllable and without escalation; the Court was not convinced by this argument, but was not apply to reply to it definitively because of lack of information and facts (para 94 of the Opinion). See, in this respect, Bodansky 1999, pp. 153–170.
- 152.
See, the above-mentioned request by Harvard Law School.
- 153.
The Court’s refusal to declare the threat or use of nuclear weapons absolutely illegally under international law is probably also due to the nature of an advisory opinion; see in this respect Abi-Saab 1999, pp. 36–50.
- 154.
ICJ, Nuclear Weapons, para 25.
- 155.
See, for instance, Gowlland-Debbas 1999, pp. 319 and 325.
- 156.
It was also put forward before the Court that the use of nuclear weapons could constitute genocide in the sense of the Convention on the Prevention and Punishment of the Crime of Genocide (9 December 1948) 78 UNTS 277 (ICJ, Nuclear Weapons, para 26). The Court held that the prohibition of genocide would pertinent if the recourse to nuclear weapons did entail the element of intent according to Article II of the Convention (dolus specialis) (ibid.).
- 157.
These obligations were later confirmed in Article 7 of the Declaration on the Right to Development of 4 December 1986, that reads as follows: ‘All States should promote the establishment, maintenance and strengthening of international peace and security and, to that end, should do their utmost to achieve general and complete disarmament under effective international control, as well as to ensure that the resources released by effective disarmament measures are used for comprehensive development, in particular that of the developing countries’. See also, concerning the topic, Bourantonis and Kostakos 1996, pp. 117–133; Taylor 2002. See furthermore the Final Document of the Tenth Special Session of the UN General Assembly on Disarmament (23 May–30 June 1978) (Doc. A/S-10/4. Paragraph 35 of the Final Document).
- 158.
As far as testing of nuclear weapons is concerned, it is interesting to refer to the ICJ’s Order in the case concerning the Request for an Examination of the Situation in Accordance with Para 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand vs. France), where the Court stated that its conclusion was ‘without prejudice to the obligations of States to respect and protect the natural environment’ (Order of 22 September 1995, ICJ Reports 1995, p. 306, para 64). In this case, New Zealand sought to challenge the proposed French underground nuclear tests in the Pacific on the basis of the 1974 Judgment in the Nuclear Test cases. While the Court declined jurisdiction because underground and not atmospheric tests, as in 1974, were at stake, Judge Weeramantry, in his dissenting opinion, explicitly argued as follows: ‘This Court must regard itself as a trustee of those [future generations’] rights in the sense that a domestic court is a trustee of the interests of an infant unable to speak for itself…New Zealand’s complaint that its rights are affected does not relate only to the rights of people presently in existence. The rights of the people of New Zealand include the rights of unborn posterity…’ (1995 Nuclear Test (New Zealand vs. France), ICJ Reports 1995, p. 341).
- 159.
Brown Weiss 1999, p. 338.
- 160.
ICJ, Nuclear Weapons, para 29.
- 161.
Id, para 30. In the same paragraph, the Court refers to the Principle 24 of the Rio Declaration, which provides that: ‘Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary’. See also Momtaz 1999, pp. 355–374, who holds that ‘[t]he principle of necessity and proportionality were not originally conceived to protect the environment, but it is now clear that they also have a role to play. In clarifying this point, the Court has greatly contributed to improving the legal situation in times of armed conflicts’ (p. 354, summary in English).
- 162.
Brown Weiss 1999, p. 338. Moreover, the Court reiterated those provisions of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts—Protocol I—(8 June 1977, 1125 UNTS 3) that explicitly provide protection against widespread, long-term and severe environmental damage and prohibit attacks against the natural environment by way of reprisals (Article 35 para 3 and Article 55).
- 163.
ICJ, Nuclear Weapons, para 36.
- 164.
Id, para 35.
- 165.
For instance, all the five regional treaties on disarmament contain, in their preamble or the main text, a reference to environmental concerns. Article 6 of the Treaty of Semipalatinsk, as an example, reads as follows: ‘Environmental security: Each Party undertakes to assist any efforts toward the environmental rehabilitation of territories contaminated as a result of past activities related to the development, production or storage of nuclear weapons or other nuclear devices, in particular uranium tailings storage sites and nuclear test sites’. Another interesting example constitutes Article 7 of the Treaty of Pelindaba: ‘Prohibition of dumping of radioactive wastes: Each Party undertakes: (a) To effectively implement or to use as guidelines the measures contained in the Bamako Convention on the Ban of the Import into Africa and Control of Transboundary Movement and Management of Hazardous Wastes within Africa in so far as it is relevant to radioactive waste; (b) Not to take any action to assist or encourage the dumping of radioactive wastes and other radioactive matter anywhere within the African nuclear-weapon-free zone’. See also the 1996 CNTBT whose preamble points out that ‘the Treaty could contribute to the protection of the environment’ (para 9).
- 166.
Adopted on 10 December 1976 and entered into force on 5 October 1978.
- 167.
See, in particular, paras 27 ff.
- 168.
- 169.
Those mentioned in Article 32 are the most important, but not the only supplementary means; see Villiger 2009, p. 445, referring to ILC Report 1966, YBILC 1966 II 223, para 20. He adds, as examples that are not listed in Article 32, inter alia, the rational techniques of interpretation, such as per analogiam, e contrario, lex posterior derogat legi priori, lex specialis derogat legi speciali, in dubio mitis, interpretatio in favorem debitoris, etc.
- 170.
Villiger 2009, p. 446, referring to Waldock Report III, YBILC 1964 II 58, para 21.
- 171.
Ibid, 447.
- 172.
- 173.
Marin Bosch 1999, p. 376.
- 174.
Resolution 1 (I) of 24 January 1946.
- 175.
Marin Bosch 1999, pp. 376 ff.
- 176.
Ibid, p. 377.
- 177.
Ibid.
- 178.
UNGA Resolution 1378 (XIV) of 20 November 1959. In its preamble, the General Assembly considered that ‘the question of general and complete disarmament is the most important one facing the word today’.
- 179.
See Bunn and Timerbaev 1995, p. 15.
- 180.
The first point of this statement left no doubt that ‘[d]isarmament would be general and complete and war no longer be an instrument for settling international problems…’. Point 5 added that ‘[a]ll disarmament measures would be implemented from beginning to end under strict effective international control, which would provide firm assurances that all parties were honouring their obligations’. For more details and the text of this agreement, see Corradini 1993, 1046 ff.
- 181.
Ford 2007, p. 405.
- 182.
Ibid; see for more details of the ENDC negotiations Corradini 1993, pp. 1047–1050.
- 183.
Ford 2007, p. 405, with further reference.
- 184.
Ibid.
- 185.
Ibid., note 27.
- 186.
Ibid., 405.
- 187.
Ibid., 406.
- 188.
Ibid.
- 189.
Ibid., 406 ff., with further references.
- 190.
Ibid., 407, with further references.
- 191.
The following statement made by US negotiator Gerard Smith some months after the adoption of the NPT runs clearly against the principle of good faith: ‘[Article VI] does not require us to achieve any disarmament agreement, since it is obviously impossible to predict the exact nature and results of such negotiations’ (Hearing before the Senate Committee on Armed Services, ‘Military Implications of the Treaty on the Non-Proliferation of Nuclear Weapons’, 27–28 February 1969, at p. 121 (answer to questions submitted by South Carolina Republican Senator Strom Thurmond)).
- 192.
International Association of Lawyers Against Nuclear Arms and International Human Rights Clinic, Human Rights Program, Harvard Law School 2009, p. 16. According to Mohamed Shaker, a member of the Egyptian delegation to the ENDC during the NPT negotiations, the ‘obligation to pursue negotiations in good faith…was not admitted without…broad interpretation of its implications’ and it ‘was generally felt that negotiating was not an end in itself but a means to achieving concrete results’ (Shaker 1980, p. 572).
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Rietiker, D. (2014). The Meaning of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons: Analysis Under the Rules of Treaty Interpretation. In: Black-Branch, J., Fleck, D. (eds) Nuclear Non-Proliferation in International Law - Volume I. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-020-6_3
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