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The Loophole in the Nuclear Disarmament Process

About The Author

Ivonna Beches (Writer)

Ivonna is a third year law student at Durham University, currently undertaking a study year abroad at the University of Groningen in the Netherlands. Ivonna aspires to be a barrister, and has a keen interest in immigration law. Outside her studies, Ivonna is a keen writer, and is currently working on a novel.

The Marshall Islands has accused nine States of grave breaches of international law for their decision to strengthen their nuclear weapons as opposed to engaging in active disarmament, contrary to the Nuclear Non-Proliferation Treaty and customary international law on nuclear weapons. But does this very ambitious claim have any basis in international law, and how likely is it to succeed?                   

The Nuclear Non-Proliferation Treaty was signed by several nuclear and non-nuclear powers in 1968 and came into force in 1970, in the context of the Cold War and the growing international concern about the effect of nuclear war. Its main objective is to 'prevent the spread of nuclear weapons and weapons technology, promote cooperation in the peaceful uses of nuclear energy and further the goal of achieving nuclear disarmament and general and complete disarmament'. This goal has also been clarified as representing the ‘three pillars’ of the Treaty: non-proliferation, peaceful nuclear cooperation, and disarmament. The third pillar mentioned is the one this article will be concentrating on, as it goes on to discuss the claim brought by the Marshall Islands to the International Court of Justice (ICJ) regarding the issue of nuclear disarmament under the Treaty and under customary law.

Currently, 190 States have ratified the Treaty, including the five main nuclear-weapon States: the US, the UK, Russia, China and France. Non-nuclear States that are parties to the Treaty have essentially pledged not to acquire any nuclear weapons, while the five States mentioned have previously undertaken an agreement to disarm, under Article VI of the Treaty. Notably however, Article VI sets out that ‘each 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’. Article VI does not set out any clear, binding obligation to disarm on any of the Parties and, in addition, it does not set any time limit under which a definitive disarmament programme could be framed. The only official guidelines on how the process is meant to proceed were set out in the “thirteen steps to nuclear disarmament” in the Review Conference of the parties of the Treaty to the NPT of 2000 (pages 14 and 15). Nevertheless even this set of guidelines failed to provide any definitive timeframe in which disarmament should be achieved and merely encourages nuclear powers to disarm gradually. There is a lenient and cautious approach to the issue of disarmament in the international sphere and it is this context that the Marshall Islands’ claim is based.

The claim, brought to the ICJ in The Hague in April 2014, accuses nine nations that are in possession of nuclear weapons of “flagrant violations” of international law. The argument is that not only have the nations in question not successfully disarmed as per the requirements of the NPT but that they have also engaged in active modernization of their nuclear arsenal which is claimed to be a violation of the Treaty. Unfortunately, the latter point, while true, is not one that has been discussed at all by the Conference on the NPT, not even in their most recent session in 2010 (see pages 12-14). This only serves to weaken the position of the Marshall Islands, as it is unclear whether modernization is truly regarded as a breach of the Treaty in international law.

Moreover, returning to the point that the claim regards nine as opposed to five countries, it is important to note that the Marshall Islands is suing the five established nuclear weapons States, which are party to the NPT, as well as four other States: India, Pakistan, North Korea and Israel, which are in possession of nuclear weapons but are not party to the Treaty. In addition, Israel is technically an undeclared nuclear State, meaning that the State itself has not made any declarations regarding its ownership of nuclear weapons: its status is based purely on suspicions held by other States, with no concrete evidence on the matter. The main rule in situations such as this is that, as the Treaty does not bind all of the States, the claim is made under customary international law. Customary law is not imposed by any one international law body and rather arises from obligations that States voluntarily take on when they engage in relations with other States. Outside of treaties in a certain area of law which can form the basis for customary law, the two other important factors are State practice and opinio juris, the latter being the intention of States in relation to their actions; they must conform to a certain course of conduct because they feel obligated to do so (see paragraph 77, page 44).

With regards to nuclear disarmament, the main case detailing the prevailingcustomary law remains the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons provided by the ICJ in 1996 (page 97, paragraphs 47-73), which the 2010 Conference on the NPT recognises as important (88, page 14). The relevant aspect of the judgment to the case at hand can be broken down into three facts. The first, as asserted by the court, is that the legality of the use of nuclear weapons is not dependent on any authorization, and can only be banned through prohibition. In other words, the enforcement of complete disarmament would require a Treaty that explicitly criminalises the use of nuclear weapons. In the absence of such a statute, States are free to own and use nuclear weapons, subject to the limitations placed on them by other treaties or agreements they may have signed. The second fact, linked in to the first is that no such explicit Treaty exists; Treaties dealing ‘exclusively with acquisition, manufacture, deployment and testing of nuclear weapons' do not constitute prohibition of use. On the other hand, they are useful to the extent that they suggest widespread international concern regarding nuclear weapons. Unfortunately, this is not sufficient to create a ban on nuclear weapons in customary international law, which is the third point made by the ICJ in the advisory opinion. The court notes that even agreements that prohibit the use of these weapons in specific areas (known as nuclear-free zones) do not negate the fact that the nuclear-weapon States reserve the right to use their weapons in certain circumstances, particularly in self-defence. Furthermore, although it is recognised that non-recourse to nuclear weapons for over 50 years may be sufficient to prove State practice, the issue of opinio juris, of the intentions behind these actions still reflects a fundamental disagreement between nuclear and non-nuclear weapons States. As customary international law is not created simply because the majority of States agree on a course of conduct, the strong adherence to the doctrine of deterrence on the part of the nuclear States indicates that there is a lack of sufficient consensus.    

What this means for the case at hand is that the judgement is unlikely to find in favour of the Marshall Islands. That is not to say that the claim is not important, as it flags up the anomaly created by the vagueness and leniency of the NPT when it comes to the issue of nuclear disarmament. In that context, this claim is definitely a step in the right direction. Unfortunately, the effect it will have on the process of disarmament and the eventual complete prohibition of the use of nuclear weapons is a very small one.

New developments in the case can be followed through the ICJ website (currently pending cases 11, 12 and 13), where information about the proceedings is posted regularly.  

Further Reading:

Jill M. Sheldon, Nuclear Weapons and the Laws of War: Does Customary International Law prohibit the use of Nuclear Weapons in all Circumstances?, Fordham International Law Journal, Vol. 20 Issue 1 1996

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Tagged: International Law, Regulators

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