Some Thoughts on Article VI NPT and its Customary Nature

I’m very pleased to host a guest post by Dr. Daniel Rietiker. See his bio details following.

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Some Thoughts on Article VI NPT and its Customary Nature

Daniel Rietiker

Dan Joyner was kind enough to allow me to react to some of the arguments which have been invoked in the interesting and useful debate on the pending applications introduced at the ICJ by the Marshall Islands in respect of Article VI NPT. These applications raise important and difficult questions of public international law and the stakes are obviously very high. One of the main issues will be whether Article VI NPT is of a customary nature. The answer to the question is crucial for the admissibility of the applications against India, Israel, Pakistan and the DPRK, which are all non-States Parties to the NPT and with respect to which the applicant invoked customary international law in the sense of Article 38 § 1 b) of the Statute of the ICJ. I am offering hereby my rather intuitional reactions which would necessitate further deepening:
First of all, it is appropriate to reiterate the exact scope of the duty imposed on States deriving from the – presumed – customary rule and to define the nature of the obligation at stake. I suggest that the starting point for this assessment must be the text itself of Article VI NPT:
“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 and on a treaty on general and complete disarmament under strict and effective international control.”
From the outset, it transpires from this clause that the duty of the States, nuclear weapon States (NWS) as well as non-nuclear weapon States (NNWS), is the obligation to negotiate in good faith with a view to the effective realization of the three goals mentioned in Article VI. Narrowly construed, it is limited to a mere obligation of conduct, more generously interpreted, it entails an obligation to reach actual agreement. This latter approach was adopted by the ICJ in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (para. 99). However, such agreement has unfortunately not been reached yet.
From my point of view, and contrary to what has been suggested by previous comments, it does in principle not matter, for the crystallization of a customary norm in the sense of Article VI NPT, whether the NWS have actually got rid of all their nuclear weapons or not, but rather whether the States Parties, NWS and NNWS, agree that their duty to negotiate in good faith in view of a world without nuclear weapons still exists. This assessment will be the difficult task of the Court. From my point of view, there is clear evidence that, in spite of the rather clouded record of disarmament performance, the ultimate objective of general and complete disarmament, including nuclear disarmament, has never been given up. I have exposed the reasons in favor of this affirmation more in detail in an upcoming article (“The meaning of Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons: Analysis in the light of treaty interpretation according to the VCLT”, in: Black-Branch/Fleck (eds), Nuclear Non-Proliferation in International Law, Vol. I, TMCC Asser Press, July 2014). A couple of elements shall just be mentioned here: The most recent multilateral treaties dealing with nuclear weapons, in particular the CTBT, ratified by over 160 States including France, the UK and Russia, all NWS, expressly confirm the objective of general and complete disarmament in their preambles (para. 4 of the preamble of the CTBT). Moreover, preambular paragraph 2 of the 2006 Semipalatinsk Treaty on a Nuclear-Weapon-Free-Zone in Central Asia contains the same commitment. From my point of view, it is significant in this regard that only some weeks ago, on 6 May 2014, all the five NWS as defined by the NPT, have signed the Protocol to the Semipalatinsk Treaty, through which they accept the nuclear-weapon-free status of this region. The second preambular paragraph of this Protocol could hardly be more explicit: “The Parties to this Protocol…convinced of the need to take all steps in achieving the ultimate goal of a world entirely free of nuclear weapons and that all States are obliged to contribute to that end…”
Moreover, the message delivered in Prague in spring 2009 by Barack Obama, the Head of State of another nuclear power, was very clear, too. Furthermore, in a very recent Resolution, the UNGA affirmed the ultimate goal of general and complete disarmament by 169 to one vote (DPRK), with 14 abstentions (Resolution 68/51 of 5 December 2013, “United action towards the total elimination of nuclear weapons”).
In addition, let me briefly react to Marco Roscini, who suggests that the 1996 Advisory Opinion was clear insofar as the ICJ stated that the obligation under Article VI NPT only concerned the 182 States Parties (para. 100). First, I wonder whether it is appropriate to take this Advisory Opinion, which was delivered 18 years ago, as a starting point, especially since it did not deal, strictly speaking, with disarmament. Second, if we take this Opinion as the basis for our discussion, I would suggest a very different interpretation, recalling that, in the operative part, the ICJ, unanimously found that “[t]here 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.” (2 F.) It seems to me that this operative paragraph, in which the Court did not at all refer to Article VI NPT, is a clear expression of the fact that also non-States Parties are bound by this duty.
This affirmation is furthermore confirmed by the Court’s statement according to which “virtually the whole of this [international] community moreover appears to have been involved when resolutions of the United Nations General Assembly concerning nuclear disarmament have repeatedly been unanimously adopted.” The Court continued by adding that “[i]ndeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all States.” (para. 100).
This paragraph deserves our attention insofar as it suggests that, through the adoption of almost unanimous UNGA resolutions, the international community has reiterated, throughout the years, the goal of general and complete disarmament (see, for instance, Resolution 68/51 of 5 December 2013, cited above). From my point of view, these resolutions are very important tools to establish the opinion juris, the legal conviction of the States that the main goal, a world without nuclear weapons, still exists today. Indeed, in the same opinion, the ICJ observed that UNSC resolutions may sometimes have normative value and that they can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinion juris. (par. 70). I would not be surprised if the Court, in the current cases, would rely on such resolutions, including the voting results, in order to establish whether the duty deriving from Article VI NPT is of customary international law. This approach has the considerable advantage of relying on written documents (the adopted resolutions) and is, thus, easier and more precise than the analysis of unwritten, voluminous and often contradictory State practice. A resolution expresses the opinio juris of the international community and thus replaces, to a large extent, the troublesome analysis of the question whether State practice (which States exactly?) is coherent, constant and uniform enough (G. Abi-Saab, in his general course of international law at the Hague Academy of International Law, 1987, refers in this respect to “wise” custom, compared to the traditional, “wild” custom). This is even more important considering the nature of the duty under Article VI, which is a positive obligation to negotiate in good faith with a view of achieving the goals aimed at. In this kind of situation, the question whether or not the States have fulfilled their duty is obviously more difficult to measure than in the case of a “negative obligation”, consisting, for instance, in the obligation not to transfer or acquire nuclear weapons etc.
A last set of observations concerns the question whose practice has to be taken into consideration for the establishment of a customary international rule? This aspect is closely linked to the question whether Article VI NPT binds also non-States Parties, dealt with above. Marco Roscini suggests that the “specially affected” States have to be represented, a principle that goes in fact back to the ICJ’s judgment in the 1969 North Sea Continental Shelf Case (para. 74). I agree with Dan that the situation it that case, where a group of certain States, namely those possessing a continental shelf (or at least one whose delimitation poses problems), is hardly comparably with the duties stemming from Article VI NPT, a virtually universal treaty whose ultimate goal is general and complete disarmament, including nuclear disarmament. In my humble opinion, it would also be too simplistic to define the NWS as “specially affected” States; on the contrary, it could be argued that the NNWS have a special interest in nuclear disarmament (the French version of the judgment in the North Sea Continental Shelf case is possibly more precise, using “Etats particulièrement intéressés).
Moreover, it derives from the travaux préparatoires to the VCLT (YBILC 1957 II 53 § 126) as well as from the ILC’s 2001 Articles on the Responsibility of States for Internationally Wrongful Acts that disarmament obligations are generally considered to be “interdependent” obligations. Generally speaking, an essential breach of such an obligation would confer to all the other States Parties, including the “specially affected” ones but not exclusively, the right to invoke the wrongful act and request its reparation. By the same token, they are considered to be of an ergo omnes partes nature (see, in particular, Article 42 b) ii), and the ILC’s Commentary to the Articles on State Responsibility, p. 296).
To sum up, I suggest that, before discussing the question whether Article VI NPT is of customary nature, it is necessary to define the precise duty imposed on States by a presumed customary rule flowing from this provision. Moreover, I am of the opinion that there are solid reasons to believe that even the NWS, including the few non-States Parties to the NPT, are still convinced that the ultimate goal of the NPT and other arms control instruments is general and complete disarmament, including the elimination of all nuclear weapons. As a consequence, the duty deriving from Article VI NPT, thanks to its customary nature, would also apply to those respondent States in the pending applications before the ICJ that have not ratified the NPT. The characteristic feature of customary international law is that, contrary to treaties, it binds also States which have not expressly agreed to it or have not actively participated in its creation. As a result, if States such as India, Israel, Pakistan and the DPRK do not provide – the difficult – evidence that they are “persistent objectors” in the sense of the Anglo-Norwegian Fisheries case (the only case, as far as I know, where this concept has been admitted by the ICJ for universal customary law, the Asylum case having concerned regional custom), the ICJ could rely, in the current cases, on the customary norm stemming from Article VI NPT in respect of these States. Finally, it has been demonstrated above that, for the establishment of the opinio juris among States, the UNGA resolutions, including the voting results, constitute a particularly useful and inviting tool.
(Daniel Rietiker, PhD, Lecturer in international law, University of Lausanne, Swiss Member of the ILA’s International Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law and, currently, Visiting Fellow at the Human Rights Program of Harvard Law School)

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2 Comments on “Some Thoughts on Article VI NPT and its Customary Nature”

  1. yousaf says:

    Sorry to post this here as it is off-topic, but since the Armscontrol Wonk folks are either slow and/or biased in their moderation I thought I would post my response here. This is under Hibbs latest post there at ACW. He posted my first comment but not my second response to GWH.

    http://hibbs.armscontrolwonk.com/archive/2775/the-t-word-and-the-iran-negotiations#comments

    yousaf | June 9, 2014
    Since they are “possible” military dimensions, they may not have occurred. Insisting on coming clean on the PMD in such a case may prove difficult.

    Reply
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    George William Herbert | June 10, 2014
    Yousaf writes:
    Since they are “possible” military dimensions, they may not have occurred. Insisting on coming clean on the PMD in such a case may prove difficult.

    The PMD case is made by a number of specific leaks, about programs and locations and alleged tests. Iran went to some effort to apparently sanitize locations afterwards.

    If those were not sanitization operations, if there really wasn’t anything to hide and it was just normal remodeling / reconstruction / demolition activity (for example), then detailed pictures of before/after and allowing inspections now would help clarify the situation.

    It’s impossible to *prove* a negative, but one can make a fairly suggestive case for one if better explanations are made for all the apparent supporting evidence.

    I don’t think that’s the actual case, but it is important not to assert as fact that or assume as fact that which one strongly suspects. Lack of factual confirmation makes the suspicion refutable. Being open to refutation means being able to consider cases in which new information would change one’s opinion, on a specific detail or on the overall pattern.

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    yousaf | June 11, 2014
    Your comment is awaiting moderation.
    The re-modeling etc. you mention was at Parchin.

    Firstly, let’s recall that the IAEA has already visited Parchin twice in 2005 and found nothing – although they did not go to the specific area they are now interested in. However, the IAEA could have gone to that area even in 2005 – they simply chose to go to other sites on the military base. As the IAEA report at the time summarized:

    “The Agency was given free access to those buildings and their surroundings and was allowed to take environmental samples, the results of which did not indicate the presence of nuclear material, nor did the Agency see any relevant dual use equipment or materials in the locations visited.”

    When the IAEA last went to Parchin, Olli Heinonen was head of IAEA safeguards and led the inspections – the methodology for choosing which buildings to inspect is described in an excellent Christian Science Monitor article which is worth reading in its entirety, but I quote the relevant bits:

    “At the time, it[Parchin] was divided into four geographical sectors by the Iranians. Using satellite and other data, inspectors were allowed by the Iranians to choose any sector, and then to visit any building inside that sector. Those 2005 inspections included more than five buildings each, and soil and environmental sampling. They yielded nothing suspicious, but did not include the building now of interest to the IAEA.

    “The selection [of target buildings] did not take place in advance, it took place just when we arrived, so all of Parchin was available,” recalls Heinonen, who led those past inspections. “When we drove there and arrived, we told them which building.”

    In the same article Heinonen also explains why the current IAEA approach is deeply, logically flawed:

    “Also unusual is how open and specific the IAEA has been about what exactly it wants to see, which could yield doubts about the credibility of any eventual inspection.

    “I’m puzzled that the IAEA wants to in this case specify the building in advance, because you end up with this awkward situation,” says Olli Heinonen, the IAEA’s head of safeguards until mid-2010.

    “First of all, if it gets delayed it can be sanitized. And it’s not very good for Iran. Let’s assume [inspectors] finally get there and they find nothing. People will say, ‘Oh, it’s because Iran has sanitized it,’” says Mr. Heinonen, who is now at Harvard University in Cambridge, Mass. “But in reality it may have not been sanitized. Iran is also a loser in that case. I don’t know why [the IAEA] approach it this way, which was not a standard practice…”

    Hans Blix, former chief of the IAEA and later of UN weapons inspectors in Iraq, has also expressed surprise at the focus on Parchin, as a military base that inspectors had been to before.

    “Any country, I think, would be rather reluctant to let international inspectors to go anywhere in a military site,” Mr. Blix told Al Jazeera English… “In a way, the Iranians have been more open than most other countries would be.”

    One of the reasons that Mr. Blix says that is because normally the IAEA does not have the legal authority to inspect undeclared non-nuclear-materials related facilities, in a nation – like Iran — that has not ratified the Additional Protocol.

    The IAEA can call for “special inspections” but they have not done so. They can also choose arbitration, as specified in the Comprehensive Safeguards Agreement, but again they have not done that.

    So Iran has been more cooperative than they have needed to be in already allowing inspections of Parchin.

    Regarding reports (e.g. from the ISIS group ) that Iran may be sanitizing the site, perhaps to prevent the IAEA from detecting uranium contamination, Kelley states in a SIPRI report:

    “Iran has engaged in large-scale bulldozing operations on about 25 hectares near the Parchin building. This includes the bulldozing of old dirt piles to level a field 500 metres north of the building of interest. However, there has been no such activity in the area west of the building, except for removing some parking pads within about 10 m of it. The fact that the building’s immediate vicinity has been largely untouched on the west side strongly suggests that the purpose of the earth-moving operations was for construction and renovation work and not for ‘sanitizing’ the site by covering up contamination.”

  2. Marco Roscini says:

    Thanks for your post and for referring to my previous one on the same subject. This is a great and useful debate, which I hope our readers are enjoying. I share some of your points but I am less persuaded by others. In particular, it is true that the ICJ found that ‘[t]here 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’ and that, in that paragraph, the Court did not expressly refer to Article VI of the NPT, but we should read that finding in the light of the entire Opinion, not as an isolated sentence. Indeed, in para. 100, the Court had specified that ‘[t]his twofold obligation to pursue and to conclude negotiations [therefore, the one that it eventually reproduces in 2F] formally concerns the 182 States parties to the Treaty on the Non- Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community’: the vast majority, but not the entire international community. The Court could have not been clearer. True, this was 18 years ago: it remains to be demonstrated that things have changed since then.
    Also, the fact that the NNWS may have a ‘special’ interest in nuclear disarmament does not mean that they are ‘specially affected states’ for the purposes of custom formation. Indeed, it would be misleading to apply concepts derived from the law of treaties (in particular the grounds for terminating a treaty) and the law of state responsibility, such as interdependent obligations or ‘injured state’, to the formation of custom: they are completely different things. A state may well be ‘injured’ by the violation of an obligation or be entitled to suspend the operation of a treaty under Article 60 VCLT, but this does not automatically mean that it is a ‘specially affected state’ for the purposes of the formation of a customary rule. In any case, it is somehow simplistic to state that disarmament obligations are interdependent: some of them are, others are not. I will refer to Dan’s and my edited book for further discussion of this aspect.


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