I Take it Back. The Multilateral Treaty Exception Won’t Work for India and Pakistan, Because the RMI is Arguing Their Breach on the Basis of CIL, Not the Treaty
Posted: April 24, 2014 Filed under: Nuclear 1 CommentExcellent points made by a commenter to my last post. So please belay/ignore my last post.
Arms Control Law 
There is nothing in customary international law which obliges states to disarm other than the 1996 Advisory Opinion of the ICJ itself. The NPT commits state parties to do so and 105 (f) of the ICJ Advisory Opinion states: “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.”
Since India is the only one of the nine actively pushing for all NWS to meet and discuss getting to this goal in stages (first, delegitimise NWs in our security doctrines, second, go for a global NFU treaty, then an NW Convention eliminating NWs), it will have no problem with the MIL lawsuit or with ICJ jurisdiction over it.
India’s approach on disarmament was reiterated recently by Prime Minister Manmohan Singh in a speech on April 3, 2014:
“For nearly half a century, the international community has tried different approaches to this issue, but these have often been partial and discriminatory. I submit that what is really needed today is to bring an end to Cold War thinking. What is needed today is an agreed multilateral framework that can involve all states possessing nuclear weapons. What is needed is to focus on practical measures that reduce nuclear dangers by reducing the salience of nuclear weapons in security doctrines.
“More and more voices are speaking out today that the sole function of nuclear weapons, while they exist, should be to deter a nuclear attack. If all states possessing nuclear weapons recognise that this is so and are prepared to declare it, we can quickly move to the establishment of a global no-first-use norm. In many ways, this can open the way to gradual reductions and, finally, elimination through a Nuclear Weapons Convention. Such a Convention would require necessary verification measures. It would also require political measures to ensure that stability is maintained as the level of nuclear arsenals approaches zero.”
The only reason why India is likely to be cautious about the MIL move is if the ICJ takes the view that the NPT, because more than 190 countries have signed it, is customary international law and that all states must therefore adhere to it. This India cannot accept because the NPT only allows it to join as a non-NWS, and it will not give up its NWs except as part of a global, non-discriminatory disarmament process.
The Vienna Convention on the Law of Treaties, which is customary law on all questions of treaty adherence, is very clear that the ICJ cannot direct India or any other reluctant state to join a treaty it does not wish to.
The Advisory Opinion’s language in 105 (f) is clearly evocative of Article VI of the NPT even if there is no explicit reference to the treaty. As long as the ICJ sticks to this approach, linking the obligation to disarm to the destructive potential of nuclear weapons, India ought not to have a major problem with the matter going ahead.
Siddharth Varadarajan