Masterarbeit, 2019
35 Seiten, Note: 80.00%
CHAPTER 1: INTRODUCTION
CHAPTER 2: BACKGROUND ON THE REGULATION OF NUCLEAR WEAPONS
2.1 MULTILATERAL TREATIES IN FORCE BEFORE THE TPNW
2.2 THE INTERNATIONAL COURT OF JUSTICE ON THE ISSUE
CHAPTER 3: WORKING TOWARDS THE TREATY ON THE PROHIBITION OF NUCLEAR WEAPONS
3.1 FACTORS ENTAILING A NEED FOR THE TREATY
3.2 DRAFTING PROCESS
CHAPTER 4: CURRENT PROVISIONS AND STATUS OF THE TREATY
4.1 FINAL STRUCTURE OF THE TREATY
4.2 ADOPTION AND STATE POSITIONS
CHAPTER 5: CONCLUDING REMARKS
References
The issue of the legality of the threat or use of nuclear weapons has been widely contested in the field of international law due to there being no explicit indication under a universal convention that these weapons are prohibited. There have, however, been several attempts to govern the issue. Multilateral treaties, such as the Limited Test Ban Treaty1 (‘LTBT’) and the Non-Proliferation Treaty2 (‘NPT’), are few examples of attempts at decreasing nuclear proliferation as well as addressing the potential consequences of using nuclear weapons. Further, the International Court of Justice (‘ICJ’) has also addressed the problem in depth. The Nuclear Weapons Advisory Opinion 3 on this issue has been referenced countless times in literature over the past two decades, leaving a legacy which brought to the forefront several important factors that must be considered when dealing with nuclear weapons. The ICJ has also dealt with cases between states concerning nuclear disarmament, such as in the Marshall Islands case4 against the United Kingdom. Nonetheless, these attempts at regulating nuclear weapons, far from eliminating them, are merely attempting to minimize the issue or concerns that are still widespread. Consequently, and with a desire to take a more concrete approach towards eliminating the dangers of nuclear weapons, a more recent development aimed towards nuclear disarmament was established through the Treaty on the Prohibition of Nuclear Weapons (‘TPNW’ or ‘the Treaty’), negotiated following a conference convened by United Nations General Assembly (‘UNGA’) Resolution 71/258.5 The Treaty, not yet in force, was adopted on July 7, 2017, with 122 states voting for, one against, and one abstention.
The TPNW is significant in discussing the legality of nuclear weapons in that it is the first international treaty to completely prohibit them. The rules of the Treaty, therefore, provide for an unambiguous illegality of the threat or use of nuclear weapons for States Parties. Due to the Treaty being quite recent, however, there is a lack of literature surrounding it and suggesting its possible implications. Still, the TPNW is a major contribution to existing international law within the area of nuclear weapons, and codifies important rules on their prohibition. Its ultimate goal is to lead to an eventual elimination of these weapons in their entirety. Nonetheless, the Treaty is still in its early stages with 19 States Parties and 69 signatories, and is seen by many states to have issues of incompatibility with other international agreements. Furthermore, although working towards elimination, it is unlikely that the currently recognized nuclear powers (China, United States, France, Russia, United Kingdom) who are all parties to the NPT, will be inclined to ratify the TPNW in the near future. This is arguably less likely for nuclear-weapons-holding states other than the aforementioned five who have never even signed the NPT (India, Israel, Pakistan).6 Even more improbable is to expect that a state like North Korea, who currently possesses nuclear weapons and chose to withdraw from the NPT, would sign the Treaty.7
The TPNW’s likelihood of achieving its aims will depend on the pressure it creates on states that possess nuclear weapons and their efforts towards disarmament. With an analytical view of the drafting process and subsequent voting on the Treaty, it seems the only states likely to sign or ratify the Treaty belong to the group that does not possess them to begin with. These states would not have to alter their behaviour to a large extent (if any) to adhere to its provisions. Nonetheless, the Treaty may have an effect on nuclear weapon states’ behaviour if it is widely accepted by other states, compelling them to take more aggressive action towards nuclear disarmament. Therefore, while the TPNW’s adoption is a progressive step towards greater certainty on the illegality of nuclear weapons, its success in creating a safer world for humanity will largely depend on the likelihood of states in possession of nuclear weapons to feel some obligation to comply with its provisions.
This thesis will first outline the background and key conventions that are predecessors to the TPNW in Chapter II. The Chapter will cover thematic similarities between these conventions, and then demonstrate how the ideas codified within these treaties left the issue of the use of nuclear weapons’ legality ambiguous. It will then analyse the ICJ’s famous Advisory Opinion on the matter, and the debates leading up to the acceptance for such a request. Chapter III will discuss the main recurring ideas and issues furthering the need for a convention with clarity on the illegality of nuclear weapons, and analyse the drafting process of the Treaty by observing the contribution of several states, international organizations, and non-governmental organizations (‘NGOs’). Various opinions will be observed to outline the perceived legal impact of the Treaty, considering that most are dubious of the cooperation of nuclear weapons states. Chapter IV will analyse key provisions of the Treaty, its adoption, and voting patterns. This will include a look at the boycotting of the process by states with nuclear weapons and their allies, with a closer observation of the case of the Netherlands, who was the only State voting against the adoption. The thesis will conclude by identifying the potential successes of the Treaty pursuant to goals outlined in the drafting process, and identifying possible recurring issues that may occur with regards to the cooperation of nuclear-weapons states.
Since their use in 1945, there have been a wide range of attempts at regulating the use of nuclear weapons. Due to the fact that there had been no convention explicitly indicating the prohibition of nuclear weapons, the issue has been regulated by bilateral and international treaties that have come to shape how nuclear weapons are controlled. These treaties are significant in that all states have some interest in regulating nuclear weapons, due to their immense possible consequences on humanity. The following multilateral treaties were both signed during the Cold War, when the threat of a nuclear attack was most prominent due to the arms race between the United States (‘US’) and the Soviet Union (‘USSR’). Nonetheless, for security purposes the likelihood of a successful convention declaring the illegality of nuclear weapons was optimistic at best. Therefore, the treaties focus on regulating existing nuclear weapons’ use, and limiting their spread to other states. These agreements have been drafted with a focus on the adverse effects that using these weapons may have on society, which come into conflict with preexisting rules of international law.
Two of the main multilateral treaties that provide insight on the development and eventual adoption of the TPNW are the Limited or Partial Test Ban Treaty (‘LTBT’/‘PTBT’) and the Treaty on the Non-Proliferation of Nuclear Weapons (‘NPT’). First, the LTBT was one of the initial attempts at regulating nuclear weapons and dealing with the parameters of their legality. It was the primary agreement that aimed at controlling bipolar competition in the arms race between the superpowers during the Cold War. The negotiations for the treaty began in July 1963, by the US, USSR, and the United Kingdom (‘UK’), following the tensions caused by the Cuban Missile crisis.8 The LTBT was signed on August 5th, 1963, and came into force on October 10th of the same year.9 Its provisions prohibit nuclear weapons testing or other explosions in places under its jurisdiction ‘in the atmosphere; beyond its limits, including outer space; or under water, including territorial waters or high seas,’ while still allowing for tests underground under certain precautionary conditions.10 The LTBT, therefore, is limited in scope in that its primary focus is on nuclear weapons testing, and does not prohibit the use of nuclear weapons during times of war. Nonetheless, it was one of the first attempts in regulating the potential use of nuclear weapons early on, and proved that there was opportunity for multilateral cooperation on the issue. It also constitutes a major step towards the eventual NPT, as it is explicitly referenced in its preamble:
Recalling the determination expressed by the Parties to the 1963 Treaty banning nuclear weapons tests in the atmosphere, in outer space and under water in its Preamble to seek to achieve the discontinuance of all test explosions of nuclear weapons for all time and to continue negotiations to this end.11
The NPT is therefore a further attempt at effectively controlling nuclear weapons. It was signed on July 1st, 1968, entered into force on 5 March, 1970, and currently has 191 StatesParties. There are more states that have ratified the NPT than any other agreement on disarmament.12
While the aim of the NPT was not to prohibit nuclear weapons, it did attempt to govern their spread or proliferation. The language of its preamble demonstrates the fear that states had of a nuclear war commencing: ‘the devastation… would be visited upon by all mankind’.13 As such, the NPT focuses on lowering the possibility of a nuclear war outbreak by declaring the spread of nuclear weapons to states that do not already have them illegal for states parties. Article I of the treaty, for instance, states that ‘each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices’.14 Article II addresses states that do not have nuclear weapons, and obliges them ‘not to receive the transfer or whatsoever of nuclear weapons’ and ‘not to manufacture or otherwise acquire nuclear weapons’.15
By addressing these two groups individually, however, the NPT created a new division in terms of nuclear-weapons status. Initially, the US and USSR wanted to use the treaty to codify rules prohibiting the transfer of these weapons from nuclear-weapons states (NWS) to non-nuclear weapons states (NNWS). Throughout the negotiation process this upset several NNWS who believed that while the treaty would bind them to the legal obligation not to acquire nuclear weapons, it would require much less from those states that already had them in their possession.16 The Indian delegate, for example, stated that the issue should primarily be of concern for the nuclear powers, rather than NNWS, while the delegate for Sweden indicated a strong preference for a treaty banning nuclear tests, as this would pose more obligations on nuclear weapons states as well.17 At this point, far from addressing the legality of the threat or use of nuclear weapons, the NPT was focused on their non-proliferation and regulation, to avoid more states from coming into their possession. Furthermore, while the NPT is relatively successful as a nonproliferation treaty, considering the fact that it binds the NWS, the US under the Trump administration has recently threatened to withdraw from related agreements.18 This not only compromises the legitimacy of the NPT if the US maintains its current stance, but also points to a major weakness that the TPNW may have, which is that it is highly unlikely that the US or other NWS would be willing to sign it. This point is crucial to the anticipated success of the TPNW, and will be further discussed in Chapter IV.
The efforts to regulate nuclear weapons also motivated certain groups to desire a declaration on their legality (or illegality). The issue of nuclear weapons was one that affected several states’ interests, if not humanity as a whole, considering the potential consequences of their use after the first incidence in 1945. The ICJ, as a UN Organ with the competence to respond to requests for advisory opinions, was an important contributor in addressing the question. The ICJ derives the power to issue advisory opinions from Article 65(1) of the ICJ Statute, which states that ‘[t]he Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request’. 19 The cases that the ICJ is typically presented with concern disputes over certain territory or the competence of certain UN organs. This issue, however, was brought to the ICJ as more of a result of pressure from global interest-groups. 20 A request for an advisory opinion was therefore the logical path. What was anticipated, and hoped for, was some clarification from the ICJ regarding the law surrounding the threat or use of nuclear weapons. The weight of such a declaration would be significant, since despite the fact that advisory opinions are not binding on states, they hold a great amount of weight as they pronounce on the law as perceived by the world’s most senior jurists. 21
Initially, a request was made from the World Health Organization (‘WHO’) for the International Court of Justice to answer the question: ‘in view of the health and environmental effects, would the use of nuclear weapons by a State in war or other armed conflict be a breach of its obligations under international law including the WHO Constitution?’ 22 Later, the United Nations General Assembly (‘UNGA’) asked a similar question worded ‘[is] the threat or use of nuclear weapons in any circumstance permitted under international law?’ 23 However, there was an extensive amount of debate as to whether the ICJ should answer the question. 24 While the WHO focused on the environmental consequences of nuclear weapons to justify their request from the court, by attempting to put the issue within their scope of activities, the UNGA had a broader scope. Their request was based on the ideas that ‘the continuing existence and development of nuclear weapons pose serious risks to humanity’ and ‘the complete elimination of nuclear weapons is the only guarantee against the threat of nuclear war’. 25 As such, they frame the prevailing issues relating to the legality of nuclear weapons, and also the fact that there is no guarantee of a world without nuclear attack if they remain in various states’ possessions.
In the discussions leading up to the advisory opinion, there was a clear distinction between states with nuclear weapons and those without them and their views on whether the question should be put forth. In verbatim records as well as written statements by several states, these issues come to light. First, at a public sitting, the representative for the United Kingdom, Sir Nicholas Lyell, argued that the WHO is not competent to request an opinion on the question above, 26 since it goes beyond the scope of their activities as per their constitution. 27 This is no surprise considering the UK is one of the recognized nuclear weapons states. Similarly, in a Written Statement from the US Government, their representative argued that the Court does not have jurisdiction to provide this opinion ‘because the WHO has not been authorized to request an opinion on the legal question’. 28 On the other side of the debate, Costa Rica was much in support of an advisory opinion upon the request of both the WHO and the UNGA. Their representative argued that both of these organs are competent to request the opinion. 29 They pointed out that states such as France, the Russian Federation, the US, and the UK, have been arguing against the consideration of the question on the grounds that it would impede current disarmament negotiations. 30 They noted that this position is coming from those states that have had merely a minor commitment to nuclear disarmament, while non-nuclear states are the ones that are in support of the case and further progress on nuclear disarmament. 31 They further note that there is a large amount of evidence supporting ‘a global opinion juris that [the threat or use of nuclear weapons] is illegal’. 32 Finally, they state that the claims supporting the value of deterrence are not relevant to requesting an advisory opinion, and that if the threat or use of nuclear weapons is indeed illegal, the theory of deterrence would not legitimize it. 33
The Marshall Islands, ‘in light of [their] experience of the long-term… radiological effects of nuclear weapons’ similarly note that these weapons are unlawful based on ‘elementary considerations of humanity’. 34 Here they are referring to the fact that the Marshall Islands was the site of 67 nuclear weapons tests between 1946 and 1958. 35 They argue that any use of nuclear weapons would necessarily cause indiscriminate suffering and violate several fundamental human rights, as well as environmental rights. 36 Paul East, Attorney-General of New Zealand at the time, also argued in support of this position that the question at hand was fundamental to the international legal order, and the Court should have jurisdiction to decide on the matter. 37 East also expressed New Zealand’s frustration at French nuclear testing in their region of the world, while noting that South Pacific countries have had to deal with this for a long time. 38 What may be important to note is how he addressed the NPT, as dividing states into the ‘haves’ and ‘have-nots’ of nuclear weapons, while outlining the conditions where the gap between the two may be filled. This, he argues, is ‘a world in which nuclear weapons would be eliminated as quickly as possible,’ rather than maintaining the status quo. 39 Finally, Ambassador Takekazu Kawamura spoke on behalf of Japan, arguing that based on the ‘tragic suffering of Hiroshima and Nagasaki,’ nuclear weapons should never be used and this should be made certain of. Therefore, disarmament and non-proliferation, with the ultimate aim of eliminating nuclear weapons, must be emphasized. 40 These opinions show the difficulty in establishing a consensus with merely requesting an opinion of the Court on the subject. As will be shown in the next Chapter, similar viewpoints continue to be prevalent, as evidenced by states’ opinions (or nonparticipation) in the process of drafting the Treaty on the Prohibition on Nuclear Weapons.
Despite the opposing views by nuclear and non-nuclear-weapons states, the ICJ gave an advisory opinion on July 8, 1996, on the legality of the threat or use of nuclear weapons.41 The Court found first that it could not offer an advisory opinion as requested by the WHO because this was not within the organization’s mandate or scope of activities, but it did find that the UNGA’s request was within their competence.42 This advisory opinion has been referred to as ‘the best-known pronouncement of the ICJ in the 90s’, as it is an extensive commentary on the issue, yet remains ambiguous on the legality of nuclear weapons.43 Nonetheless, it was the first time that an international court addressed this issue, and as such was given a significant amount of consideration.44
[...]
1 Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (adopted 5 August 1963, entered into force 10 October 1963) 480 UNTS 43; 14 UST 1313; 2 ILM 889 (LTBT)
2 Treaty on the Non-proliferation of Nuclear Weapons (adopted 1 July 1968, entered into force 5 March 1970) 729 UNTS 161 (NPT)
3 Legality of the Threat or Use of Nuclear Weapons (1996) International Court of Justice Report of Judgments, Advisory Opinions and Orders 226 (Advisory Opinion)
4 Obligations concerning Negotiations relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands v United Kingdom) (Preliminary Objections, Judgment) [2016] ICJ 833
5 Treaty on the Prohibition of Nuclear Weapons (adopted 7 July 2017, not yet in force) (TPNW); UNGA Resolution 71/258 (23 December 2016).
6 Paul F. Power, ‘The Mixed State of Non-Proliferation” the NPT Review Conference and Beyond’ (1986) 62 International Affairs 477, 483-484.
7 Wade L. Huntley, ‘Rebels without a Cause: North Korea, Iran and the NPT’ (2006) 82 International Affairs 723, 723.
8 Paul Warnke, “Peaceful Nuclear Explosions: from the Limited Test-Ban Treaty to the Non-Proliferation Treaty” (2016) 56 Adelphi Series 79, 82.
9 Egon Schwelb, “The Nuclear Test Ban Treaty and International Law” (1964) 58 The American Journal of International Law 642, 642.
10 LTBT (n 1) art 1.
11 NPT (n 2) preamble.
12 'Treaty On The Non-Proliferation Of Nuclear Weapons (NPT) – UNODA' (United Nations, 2019) <https://www.un.org/disarmament/wmd/nuclear/npt/>
13 NPT (n 2) preamble.
14 Ibid art 1.
15 Ibid art 2.
16 Warnke (n 8) 92.
17 James E. Dougherty, “The Non-Proliferation Treaty” (1966) 25 Russian Review 10, 20-21.
18 William J Henningan, 'Trump Plans To Tear Up A 31-Year-Old Nuclear Weapons Treaty. Now What?' (Time, 2018) <https://time.com/5430388/donald-trump-nuclear-weapons-treaty-inf-withdrawal/> accessed 15 June 2019; see also Sarah Bidgood, 'Trump Accidentally Just Triggered Global Nuclear Proliferation' (Foreign Policy, 2019) <https://foreignpolicy.com/2019/02/21/trump-accidentally-just-triggered-global-nuclear-proliferation/> accessed 15 June 2019.
19 Statute of the International Court of Justice (adopted 25 June 1945) USTS 993 (ICJ Statute) art 96(2).
20 Michael N. Schmitt, “The International Court of Justice and the Use of Nuclear Weapons” (1998) 91 The American Journal of International Law 91, 92-93.
21 Ibid 93.
22 Legality of the Use by a State of Nuclear Weapons in Armed Conflict (1996) International Court of Justice Report of Judgments, Advisory Opinions and Orders 66 [1].
23 Advisory Opinion (n 3) [6].
24 Schmitt (n 20) 93.
25 Request for Advisory Opinion, United Nations General Assembly (6 January 1995) International Court of Justice Report of Judgments, Advisory Opinions, and Orders 1, 4.
26 Verbatim Record 1995/34, Legality of the Threat or Use of Nuclear Weapons (15 November 1995) 1, 20.
27 Ibid 23.
28 Written Statement of the Government of the United States of America, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict (10 June 1994) 1, 1.
29 Verbatim record 1995/33, Legality of the Threat or Use of Nuclear Weapons, (14 November 1995) 1, 18.
30 Ibid.
31 Ibid 22.
32 Ibid 23.
33 Ibid 25.
34 Verbatim record 1995/32, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict (14 November 1995) 1, 18.
35 Ibid 19.
36 Ibid 21-22.
37 Verbatim record 1995/28, Legality of the Threat or Use of Nuclear Weapons in Armed Conflict (9 November 1995) 1, 19.
38 Ibid 20.
39 Ibid 30.
40 Ibid 20.
41 Michael J. Matheson, “The Opinions of the International Court of Justice on the Threat or Use of Nuclear Weapons” (1997) 91 The American Journal of International Law 417, 417.
42 Ibid 418.
43 Daniel Thurer, 'The Legality Of The Threat Or Use Of Nuclear Weapons: The ICJ Advisory Opinion Reconsidered' (2012) 61 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais 213, 217.
44 Richard A. Falk, “Nuclear Weapons, International Law and the World Court: A Historic Encounter” (1997) 91 The American Journal of International Law 64, 64.
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