Comments from a Nuclear Zero Lawyer

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Phon van den Biesen delivered these comments during the NGO presentations at the 2014 Non-Proliferation Treaty PrepCom.

Introduction

Nuclear Zero LawsuitsIt is a great honor for me to address this distinguished meeting. I am an attorney in Amsterdam and Vice-President of the International Association of Lawyers Against Nuclear Arms.

Last Thursday, in my capacity as Co-Agent of the Republic of the Marshall Islands (RMI), I submitted nine Applications to the International Court of Justice against each of the nine states possessing nuclear weapons.(1)  The legal team advised the RMI that this was an entirely responsible thing to do given the state of the law today.

In litigation breach of contract is one of the common grounds to sue. This is not different in international litigation. If any one State is not getting what it is entitled to, based on a contract, a treaty or norms of customary international law, in spite of the clarity of the language in which the obligations are stated, there comes a day that such a State will stop requesting politely and will bring the State that is not delivering to Court. Since July 1996, some three quarters of the UN General Assembly have, indeed and over and over again, been asking politely for a beginning of negotiations leading to leading to an early conclusion of a convention prohibiting and eliminating nuclear weapons.(2)  However, most of the nuclear armed States wouldn’t have it and ignored the polite request. And so these cases are now in Court.

Jurisdiction of the Court

Three of the nuclear-armed States have accepted the general compulsory jurisdiction of the Court (UK, India and Pakistan). The other six have not done so and are, therefore, in accordance with the rules regulating the World Court, invited to accept the Court’s jurisdiction in the cases brought by the RMI. These six states maintain they are committed to the international rule of law and the at least eventual elimination of nuclear weapons. They should come before the Court and explain their positions, and give the Court a wider opportunity to resolve the deep divide of opinion concerning compliance with obligations of nuclear disarmament.

The 1996 Advisory Opinion

In its Advisory Opinion of July 1996 the World Court provided an extensive answer to the question posed by the General Assembly with respect to the legality or illegality of the use and threat of use of nuclear weapons. Besides that and in the context of the question posed by the UNGA, the Court provided additional analysis:

“98. (…)In the long run, international law, and with it the stability of the international order which it is intended to govern, are bound to suffer from the continuing difference of views with regard to the legal status of weapons as deadly as nuclear weapons. It is consequently important to put an end to this state of affairs: the long-promised complete nuclear disarmament appears to be the most appropriate means of achieving that result.” (para. 98. of the Advisory Opinion)

From that starting point the Court went ahead and stated that it “appreciates the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament.”  (para. 99 of the Advisory Opinion) And then the Court went on to – unanimously  –conclude:

“F. 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.” (para. 105(2)F, concluding section of the Advisory Opinion)

So, the Court provided this additional analysis; the existing obligation is formulated in no uncertain terms.

Contents of the applications

In each of the nine Applications – which serve as a mere introduction to the proceedings – the RMI provides the relevant facts with respect to the nuclear arsenals as well as the nuclear policy of the Respondent State and sets out the main points of our legal position.(3)   Among other things we argue that upgrading and modernizing a State’s nuclear arsenal is not particularly providing evidence of respect for the legal obligation to bring the nuclear arms race to an early cessation, but rather it demonstrates that the Respondent State is not performing its legal obligations in good faith. The RMI also argues that the continued refusal of most of the nuclear-armed States to permit the commencement of negotiations on complete nuclear disarmament or even to participate in an Open-Ended Working Group aimed at facilitating such negotiations is evidence of their breaching the central obligation “to pursue and bring to a conclusion”.

What RMI asks from the Court

The RMI requests the Court to adjudge and declare that the Respondent is, in performing its obligations, not acting in good faith, and also to adjudge and declare that the Respondent breaches its obligation to pursue and conclude negotiations leading to nuclear disarmament. Obligations that flow from Article VI of the NPT and also from the requirements developed under customary international law. Also, in each of these cases the RMI requests the Court to Order the Respondent to pursue, by initiation if necessary, negotiations leading to nuclear disarmament.

David and Goliath

The steps taken by the RMI have been characterized through the David and Goliath metaphor. That picture, certainly, is useful especially when one is aware that in the fight between these two men David prevailed. But we should not forget that in Court cases the respective actual powers of the two parties to “the fight” are not a relevant factor. All parties are equal before the law; all parties are equal before the World Court. Each State is entitled to demand that promises made are kept.

All State Parties to the NPT are under the obligation to pursue these negotiations. A situation in which less than two hands full of States are frustrating the expectations, yes, the rights of the great majority of States is not sustainable and needs to be put to an end, not by the law of force, but rather by the force of law.

Endnotes

1. Three of the cases are on the Court’s General List: Proceedings instituted by the Republic of the Marshall Islands against the United Kingdom of Great Britain and Northern Ireland on 24 April 2014; Proceedings instituted by the Republic of the Marshall Islands against the Islamic Republic of Pakistan on 24 April 2014; Proceedings instituted by the Republic of the Marshall Islands against the Republic of India on 24 April 2014. http://www.icj-cij.org/docket/index.php?p1=3&p2=3

2. Most recently, A/RES/68/42, adopted 5 December 2013

3. UK: http://www.icj-cij.org/docket/files/160/18296.pdf; Pakistan: http://www.icj-cij.org/docket/files/159/18294.pdf; India: http://www.icj-cij.org/docket/files/158/18292.pdf. Applications filed against the other six nuclear-armed states are available at www.nuclearzero.org, which also has contact information for the International Legal Team.