Memorandum from Peacerights
INTRODUCTION AND
SUMMARY OF
ADVICE
1. We are asked to advise Peacerights on
the legality under international law of the United Kingdom's actions
with respect to the Trident nuclear missile system. The question
on which our advice is sought is whether the UK is in breach of
international law through maintenance of the Trident system or
the replacement of that system by one with a similar yield. More
specifically advice is sought on (i) whether Trident or a likely
replacement to Trident breaches customary international law and
(ii) whether the replacement of Trident would breach the Non-Proliferation
Treaty 1967 (NPT), article VI.
2. In our opinion, for the reasons which are
set out below:
(1) The use of the Trident system would breach
customary international law, in particular because it would infringe
the "intransgressible" requirement that a distinction
must be drawn between combatants and non-combatants.
(2) The replacement of Trident is likely
to constitute a breach of article VI of the NPT.
(3) Such a breach would be a material breach
of that treaty.
THE UK'S
OBLIGATIONS UNDER
CUSTOMARY INTERNATIONAL
LAW
3. Since there is no immediate question
of the use of Trident the question is whether its possession or
replacement is contrary to customary international law. Possession
of Trident has been justified by the government in the following
terms:
"The justification of Trident
is as an instrument of deterrence with the possibility of its
use only in the "extreme circumstances of self-defence."
(Geoff Hoon MP, written answer, 4 April 2005).
4. The language of "extreme circumstances
of self-defence" is taken from the Legality of the Threat
or Use of Nuclear Weapons advisory opinion of the International
Court of Justice (ICJ) where the Court concluded by the President's
casting vote that:
"in view of the current
state of international law, and of the elements of fact at its
disposal, the Court cannot conclude definitively whether the threat
or use of nuclear weapons would be lawful or unlawful in an extreme
circumstance of self-defence, in which the very survival of a
State would be at stake;" (1996 ICJ Reports, Dispositif,
para 105 2 E).
5. The Court did not determine that the
threat or use of such weapons would be lawful or unlawful but
said that it could not definitively rule on the subject. President
Bedjaoui, who made the casting vote, explained that para 105 2
E of the dispositif must not "in any way be interpreted
as leaving the way open to the recognition of the lawfulness of
the threat or use of nuclear weapons." (Declaration of
President Bedjaoui, 1996 ICJ Reports, para. 11).
6. The Court emphasised that the dispositif
must not be read alone for the Court's reply to the question put
to it "rests on the totality of the legal grounds set
forth by the Court ... each of which is to be read in the light
of the others." (1996 ICJ Reports, para 104).
7. Included within the legal grounds analysed
by the ICJ was the affirmation that for a particular instance
of the threat or use of force to be lawful it must not be contrary
to either the laws regulating the lawfulness of recourse to force
(jus ad bellum) or the international laws of war (jus
in bello). It stated that: "a use of force that is
proportionate under the law of self-defence, must, in order to
be lawful also meet the requirements of the law applicable in
armed conflict which comprise in particular the principles and
rules of humanitarian law." (1996 ICJ Reports para 42;
see also paras 39, 91 and dispositif, paras 2 C and D).
8. The UK did not challenge this legal principle
and stated before the Court that:
"The legality of the use
of nuclear weapons must therefore be assessed in the light of
the applicable principles of international law regarding the use
of force and conduct of hostilities, as is the case with other
methods and means of warfare." (cited 1996 ICJ Reports,
para 91).
UK OBLIGATIONS UNDER
THE JUS
AD BELLUM
9. UN Charter, article 51 provides that
self defence is an exception to the prohibition of the use of
force contained in the UN Charter, article 2 (4). It is also an
exception under customary international law. The International
Law Commission (ILC) Articles on Responsibility of States for
Internationally Wrongful Acts (GA Res. 56/83, 12 December 2001),
article 21 reiterates that: "The wrongfulness of an act
of a State is precluded if the act constitutes a lawful measure
of self-defence in conformity with the Charter of the United Nations."
10. In the Legality of the Threat or
Use of Nuclear Weapons the ICJ clarified some aspects of the
application of the prohibition of the use of force and self-defence
to the use or threat of nuclear weapons.
11. First, the Court coupled the threat
of force with its use. The Court stated that:
"Whether a signalled intention
to use force if certain events occur is or is not a "threat"
within Article 2, paragraph 4 of the Charter depends upon various
factors. If the envisaged use of force is itself unlawful, the
stated readiness to use it would be a threat prohibited under
Article 2, paragraph 4 no State, whether or not it defended the
policy of deterrence suggested to the Court that it would be lawful
to threaten force if the use of force contemplated would be illegal."
(1996 ICJ Reports, para 47).
12. Thus where a use of force is prohibited
under UN Charter, article 2(4), a threat to use that same force
is also prohibited. If a use of force allegedly in self-defence
would violate the principles of necessity and proportionality
so too would the threat of use of such force. "In any
of these circumstances the use of force, and the threat to use
it, would be unlawful under the law of the Charter." (1996
ICJ Reports para 48).
13. Second, this same assertion makes it
clear that any use of nuclear weapons in lawful self-defence is
subject to the conditions of necessity and proportionality. "In
plain English, the conditions of necessity and proportionality
require that the use of nuclear weapons in self-defence could
be envisaged only to meet an attack of comparable gravity that
could not be neutralized by any other means." (Luigi
Condorelli, "Nuclear weapons: a weighty matter for the International
Court of Justice" 316 International Review of the Red Cross
(1997) 9.
14. These requirements of necessity and
proportionality have been confirmed by the ICJ to constitute customary
international law: "For example it [the UN Charter] does
not contain any specific rule whereby self-defence would warrant
only measures which are proportional to the armed attack and necessary
to respond to it, a rule well established in customary international
law." (Military and Paramilitary Activities in and against
Nicaragua (Nicaragua v. US) (Merits), 1986 ICJ Reports, para.176;
Oil Platforms (Islamic Republic of Iran v US) (Merits),
2003 ICJ Reports, para 76; Legality of the Threat or Use of
Nuclear Weapons 1996 ICJ Reports, para 41).
15. Necessity is a justification precluding
the unlawfulness of a wrongful act in exceptional circumstances.
Under the International Law Commission (ILC), Articles on Responsibility
of States for Internationally Wrongful Acts (GA Res 56/83, 12
December 2001), article 25, necessity may not be invoked unless
the act:
(a) is the only means for the State to safeguard
an essential interest against a grave and imminent peril; and
(b) does not seriously impair an essential
interest of the state or states towards which the obligation exists,
or of the international community as a whole.
16. This article was in draft form at the time
of the ICJ decision in the Gabcikovo-Nagymaros case. Nevertheless
the ICJ relied upon it, reiterated its negative wording and its
emphasis on the exceptional nature of the plea. It affirmed the
basic principles: the act contrary to an international obligation
must have been occasioned by an essential interest of the State
which is the author of the act; the interest must have been threatened
by a "grave and imminent" peril; the act being challenged
must have been the only means of safeguarding the interest; the
act must not have seriously impaired an essential interest of
the state towards which the act is directed; and the state the
author of the act must not have "contributed to the occurrence
of the state of necessity." The ICJ also stated that these
conditions reflect customary international law. (Gabcikovo-Nagymaros
Project (Hungary/Slovakia) 1997 ICJ Reports 7, paras 51-2).
17. The assessment of necessity must be
made at the time the decision is made to commit the otherwise
unlawful act. In the Legality of Nuclear Weapons the Court
did not elaborate on the requirement of necessity, perhaps because
of the abstract nature of the question put to it. In the Oil
Platforms case the Court construed necessity strictly and
with specific application to the facts in question. It determined
that US attacks on the oil platforms could not be justified as
acts of self-defence and also were not necessary to that state's
security interests under the Treaty of Amity, 1955, article XX(1)(d).
18. The assessment of proportionality is
ongoing throughout any use of force. It requires determining the
amount of force that can be legitimately used to achieve the goal.
The ICJ also assessed the requirement of proportionality strictly
in the Oil Platforms case. In determining the proportionality
of the US attacks the Court held that it could not "close
its eyes to the scale of the whole operation, which involved inter
alia the destruction of two Iranian frigates and a number of other
naval vessels and aircraft." (Oil Platforms (Islamic
Republic of Iran v US) (Merits), 2003 ICJ Reports, para 77).
UK OBLIGATIONS UNDER
INTERNATIONAL HUMANITARIAN
LAW
19. In the Threat or Use of Nuclear Weapons
the Court advised that:
"It is undoubtedly because
a great many rules of humanitarian law applicable in armed conflict
are so fundamental to the respect of the human person and "elementary
considerations of humanity" as the Court put it in its Judgment
of 9 April 1949 in the Corfu Channel case (ICJ Reports 1949, p
22), that the Hague and Geneva Conventions have enjoyed a broad
accession. Further these fundamental rules are to be observed
by all States whether or not they have ratified the conventions
that contain them, because they constitute intransgressible principles
of international customary law." (1996 ICJ Reports, para
79).
20. The Court affirmed this paragraph in
the advisory opinion on the Legal Consequences of the Construction
of a Wall in the Occupied Palestinian Territory (2004) ICJ
Reports, para 157. The expression "intransgressible"
is not part of the usual vocabulary of customary international
law and the ICJ appears to be bestowing these principles with
some especially weighty status. Vincent Chetail argues that: "the
Court intended to emphasize the importance of humanitarian norms
for international law and order as a whole and the particularity
of such norms in comparison with the other ordinary customary
rules of international law." (Vincent Chetail, "The
Contribution of the International Court of Justice to International
Humanitarian Law", 850 International Review of the Red Cross
(2003) 235, 251).
21. Condorelli argues that "the
solemn tone of the phrase, and its wording, show that the Court
intended to declare something much more incisive and significant,
doubtless in order to bring the fundamental rules so described
closer to jus cogens". Condorelli continues that: "In
other words, the circumstances eliminating unlawfulness that apply
in other sectors of the international legal order (such as the
victim's consent, self-defence, counter-measures or a state of
necessity) cannot be invoked in this particular case." (Luigi
Condorelli , "Nuclear weapons: a weighty matter for the International
Court of Justice" 316 International Review of the Red Cross
(1997) 9). Professor Cassesse has said in this context that "intransgressible"
means "peremptory in nature as the ICJ held in Threat or
Use of Nuclear Weapons (at para 79)": International Law (2nd
ed 2005) 206.
22. Clearly the Court regarded the relevant
principles of international humanitarian law as of extreme significance.
President Bedjaoui stated from this that a use of force even exercised
in the extreme circumstances in which the survival of a state
is in question cannot allow a state to exonerate itself from compliance
with these intransgressible norms of international humanitarian
law. (1996 ICJ Reports, Declaration Judge Bedjaoui, para 22).
23. Further in the Wall case the
Court affirmed the greater authority of these rules by noting
that they "incorporate obligations which are essentially
of an erga omnes character." Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territory 2004
ICJ Reports, para 157). Obligations owed erga omnes are
the "concern of all states" and all states have a "legal
interest in their protection." (Barcelona Traction, Light
and Power Company, Ltd, Second Phase, 1970 ICJ Reports para
33).
24. The particular rules that are bestowed
with this intransgressible nature are:
— the principle of distinction between
combatants and non-combatants (civilians);
— prohibition of weapons that cause
superfluous injury or unnecessary suffering; and
— the residual principle of humanity
from the Martens Clause. (1996 ICJ Reports, para 78).
25. The principle of distinction between
combatants and civilians is central to certain international crimes
within the jurisdiction of the Rome Statute of the International
Criminal Court. Under the Rome Statute of the International Criminal
Court, 1998 article 8(2)(b)(iv): "Intentionally launching
an attack in the knowledge that such attack will cause incidental
loss of life or injury to civilians or damage to civilian objects
or widespread, long-term and severe damage to the natural environment
which would be clearly excessive in relation to the concrete and
direct overall military advantage anticipated" is a serious
violation of the laws and customs applicable in international
armed conflict. So too is: "Attacking or bombarding, by
whatever means, towns, villages, dwellings or buildings which
are undefended and which are not military objectives;" (Rome
Statute, article 8(2)(b)(v)).
LEGALITY OF
THE POSSESSION
OR REPLACEMENT
OF TRIDENT
UNDER THE
JUS AD
BELLUM AND
JUS IN
BELLO
26. The Court's inability to give a definitive
answer to the question put to it in the Threat or Use of Nuclear
Weapons was based both on its assessment of the current state
of international law and on the "elements of fact at its
disposal." Its determination was made in the abstract without
reference to a specific incident of maintenance or replacement
of a specific weapons system in the hands of any particular state.
Even then, referring to the "principles and rules of law
applicable in armed conflict" it found that: "In view
of the unique characteristics of nuclear weapons, ... the use
of such weapons in fact seems scarcely reconcilable with respect
for such requirements." 1996 ICJ Reports para 95).
27. To determine the legality of the possession
or replacement of a particular system requires contextual analysis
in any particular case. Thus the possession or replacement of
Trident must be assessed against the two bodies of treaty and
customary law (jus ad bellum and jus in bello) and in light
of the factual circumstances of its capabilities and the context
of its possession. The "intransgressible" principles
described above have been distilled into three core questions
that need to be asked in making a contextual determination such
as that with respect to Trident:
1. "Would the use of a nuclear weapon
in the particular circumstances inflict unnecessary suffering
upon combatants?
2. Would the use of a nuclear weapon in the
particular circumstances be directed against civilians, or indiscriminate,
or even if directed against a military target, be likely to cause
disproportionate civilian casualties?
3. Would the use of a nuclear weapon in the
particular circumstances be likely to cause disproportionate
harmful effects to a neutral state?" (C Greenwood, "Jus
ad bellum and Jus in Bello in the Nuclear Weapons Advisory Opinion"
, in L Boisson de Chazournes and P Sands, eds), International
Law, the International Court of Justice and Nuclear Weapons, 1999,
247, 261, emphasis in the original).
28. The UK Trident system currently consists
of four Vanguard class nuclear powered submarines each carrying
up to 16 US Trident II D 5 missiles. There are around three nuclear
warheads mounted on every missile making about 48 warheads carried
on each submarine. At least one is on patrol at all times. Trident
nuclear warheads are 100 to 120 kilotons each. Even one kiloton,
a "nuclear mini-bomb" "would flatten all buildings
within half a kilometre with up to 50% fatalities up to 1 kilometre".
(Lord Murray (Former Lord Advocate of Scotland), "Nuclear
Weapons and the Law", 1998, available at http://wcp.gn.apc.org/newmurray.html).
"The fireball of a detonated trident warhead is said to
have a diameter of half a mile across while the heat and blast
extend miles further." "A low-yield Trident warhead
would reduce a whole town to rubble." (Ibid). Each warhead
can be aimed at a different target and each has at least eight
times the explosive power of the bomb which was dropped on Hiroshima
on 6 August 1945.
29. The first Trident submarine entered
service in 1994 with the others coming into service progressively
over the next five years. Its life span is approximately 30 years
and so it could remain operational until approximately 2025. In
light of the lead time for a replacement for the current Trident
system to become operational (about 14 years) a decision is now
due. The government has indicated that a decision about replacement
will be made during the current Parliament. (Bundle Tab 8). The
Defence Secretary, John Reid MP, has said that the options are
to replace Trident with another submarine-launched missile system,
or a ship or air-launched system, or even a land-based system.
30. In light of the blast, heat and radio-active
effects of a detonation of a Trident warhead, in our view, it
is impossible to envisage how the intransgressible requirement
of the principle of distinction between combatants and non-combatants
or the requirement of proportionality in the jus ad bellum
could be met. The use of a Trident warhead would be inherently
indiscriminate. Even if aimed at a military target it cannot distinguish
between that and civilians within its range. Radioactive effects
are not contained by time or space. Accordingly the use of a single
Trident warhead in any circumstance, whether a first or second
use and whether targeted against civilian populations or military
objectives would inevitably be indiscriminate in effect, inflicting
unnecessary civilian suffering and disproportionate civilian
casualties and disproportionate harmful effects to a neutral
state.
31. In the Threat or Use of Nuclear Weapons
the Court stated that: "If the envisaged use of force
is itself unlawful, the stated readiness to use it would be a
threat prohibited under Article 2, paragraph 4." The
former Defence Secretary, Mr Hoon, has stated that "in
the right conditions we would be willing to use our nuclear weapons."
(Bundle, Tab 6, para 237). In the later 4 April 2005 statement
he referred to "extreme circumstances of self-defence"
although he omitted the further qualification of the ICJ: "in
which the very survival of a State would be at stake." The
former statement was made in the context of questions about a
UK response to the use of weapons of mass destruction against
our forces in the field. This assertion was repeated on
television where Mr Hoon stated that the government "reserved
the right to use nuclear weapons if Britain or British troops
were threatened by chemical or biological weapons." (Bundle,
Tab 7). In our view, threats to British troops in the field even
with weapons of mass destruction could not be said to threaten
the survival of the state and thus would not come even within
the ICJ's ambivalent dispositif in the Threat or Use
of Nuclear Weapons.
32. Mr Hoon has stated that the government
must make clear its willingness to use nuclear weapons: "for
that to be a deterrent, a British government must be able to express
their view that ultimately and in conditions of extreme self-defence,
nuclear weapons would have to be used." And: "It is
therefore important to point out that the Government have nuclear
weapons available to them, and that—in certain specified
conditions to which I have referred—we would be prepared
to use them." (Hansard, 29 April 2002, Bundle Tab 6).
33. As he was then Secretary of State for
Defence Mr Hoon's words can be taken to be the government's position.
In the Nuclear Tests cases the ICJ stated that the statements
of the President of France "and members of the French
Government acting under his authority up to the last statement
made by the Minister of Defence ... constitute a whole. Thus in
whatever form these statements were expressed, they must be held
to constitute an engagement of the State, having regard to their
intention and to the circumstances in which they were made."
(Nuclear Tests cases (Australia v France; New Zealand v France)
1974 ICJ Reports 253;457, para 49). It is clear that his various
statements represent the UK position. They were repeated, recorded
in Hansard and expressed on television. He explicitly stated that
he was expressing the position of the UK government.
34. Since it is impossible to envisage how
the intransgressible requirement of the principle of distinction
between combatants and non-combatants or the requirement of proportionality
in the jus ad bellum could be met by the use of Trident,
even if the strict requirements of necessity for self defence
were met, it is hard to see how its use could ever conform with
the requirements of international law relating to the jus ad
bellum or jus in bello.
35. As a footnote it is worth noting General
Comment No 14 of the Human Rights Committee on the right to life.
In the Threat or Use of Nuclear Weapons the Court considered
that whether a particular loss of life through the use of a certain
weapon in warfare violated the right to life under human rights
law would fall to be determined by reference to the law applicable
in armed conflict, not the human rights provisions. Nevertheless
the words of the Human Rights Committee are strong:
"4. It is evident that the designing,
testing, manufacture, possession and deployment of nuclear weapons
are among the greatest threats to the right to life which confront
mankind today. This threat is compounded by the danger that the
actual use of such weapons may be brought about, not only in the
event of war, but even through human or mechanical error or failure.
5. Furthermore, the very existence and
gravity of this threat generates a climate of suspicion and fear
between States, which is in itself antagonistic to the promotion
of universal respect for and observance of human rights and fundamental
freedoms in accordance with the Charter of the United Nations
and the International Covenants on Human Rights." (Human
Rights General Comment, No 14, The Right to Life, 1984).
Conformity of the Possession or Replacement
of Trident with the Treaty on the Non-Proliferation of Nuclear
Weapons (NPT), article VI
UK OBLIGATIONS UNDER
THE NPT, ARTICLE
VI
36. Regardless of the legality under customary
international law of the possession or replacement of Trident
the UK has entered into treaty obligations with respect to negotiation
of disarmament. In particular the NPT, article VI states 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 and on a treaty on
general and complete disarmament under strict and effective control."
37. The importance of Article VI has been
recognised by commentators. It has been called "the single
most important provision of the treaty, however, from the standpoint
of long-term success or failure of its goal of proliferation prevention".
(E. Firmage, "The Treaty on the Non-Proliferation of
Nuclear Weapons", 63 American Journal of International
Law (1969) 711, 732).
38. It is necessary to determine the extent
of UK obligations under this Article and whether actions to extend
the life of Trident or to replace it with another system would
be in accordance with it. At the 2005 Review Conference the UK
Ambassador asserted that: "We abide by the undertakings
we have given to non-proliferation, to the peaceful uses of nuclear
energy and, under Article VI of the Treaty, to those on disarmament."
(Statement by Ambassador John Freeman, Head of the UK Delegation,
to the Seventh Review Conference of the Treaty on the Non-Proliferation
of Nuclear Weapons, May 2005, available at http://www.un.org/events/npt2005/statements/npt05unitedkingdom.pdf.)
The UK thus accepts its obligations under the NPT, article VI
so determination of whether it is in breach of those obligations
requires:
(i) determination of the scope of those obligations
through interpretation of Article VI in accordance with principles
of treaty interpretation; and
(ii) determination of whether maintaining
or seeking to replace Trident are in conformity with those obligations.
THE VIENNA
CONVENTION ON
THE LAW
OF TREATIES
39. The principles relating to the law of
treaties are largely codified in the Vienna Convention on the
Law of Treaties, 1969, 1155 UNTS (VCLT). The United Kingdom is
a party to the VCLT (ratified 25 June 1971), which came into force
on 27 January 1980. The VCLT does not have retroactive effect
(article 4) and therefore does not apply to the original NPT,
1967 which came into force on 5 March 1970.
40. However some provisions of the VCLT
have been explicitly accepted by the ICJ as constituting customary
international law, including those on material breach and interpretation.
(Eg Legal Consequences for States of the Continued Presence
of South Africa in Namibia (South West Africa) Notwithstanding
Security Council 276 (1970) 1971 ICJ Rep 16, 47; Fisheries
Jurisdiction Case (United Kingdom v Iceland) 1974 ICJ Rep
3, para 36; Gabcikovo-Nagymaros Project (Hungary/Slovakia)
1997 ICJ Reports para 4).
PRINCIPLES OF
TREATY INTERPRETATION
41. The VCLT, articles 31-33 provide the
basic principles of treaty interpretation that are widely accepted
as constituting customary international law (Indonesia/Malaysia
case, 2002 ICJ Reports 3, para 37; Libya/Chad case,
1994 ICJ Reports, 6, 21-2; Qatar/Bahrain case, 1995 ICJ
Reports 6, 18). Interpretation of the NPT, article VI will therefore
be in accordance with these articles.
42. VCLT, article 31 (1) provides that:
"A treaty shall be interpreted in good faith in accordance
with the ordinary meaning to be given to the terms of the treaty
in their context and in the light of its object and purpose."
43. There are two sets of materials that
may be relevant to interpreting the terms of the NPT and its object
and purpose: the initial negotiation history (travaux preparatoires)
and the documents and resolutions of the subsequent Review Conferences.
The two reflect very different moments in time. The former evidences
the intentions of the original Treaty parties and reflects the
cold war politics of the time while the latter reflect the ongoing
concerns of all the parties to the Treaty, non-nuclear weapon
states as well as nuclear weapon states.
44. The VCLT requires that the words of
a treaty are interpreted in their context and in the light of
its object and purpose. The NPT, article VIII (3), makes explicit
that the purposes of the Treaty are to be found in the preamble
(five yearly reviews must take place "with a view to assuring
that the purposes of the preamble and the provisions of the treaty
are being realised"). This brings the Preamble more firmly
into the obligatory provisions of the Treaty.
45. The preamble of a treaty is in any case
part of the treaty's context for the purpose of interpretation.
The VCLT, article 31(2) makes it clear that: "The context
for the purpose of the interpretation of a treaty" includes
"its preamble and annexes". Further VCLT, article 31(3),
specifies that: "There shall be taken into account, together
with the context: (a) any subsequent agreement between the parties
regarding the interpretation of the treaty or the application
of its provisions; (b) any subsequent practice in the application
of the treaty which establishes the agreement of the parties regarding
its interpretation;... " A Declaration of a Review Conference
adopted by consensus would come within the wording of article
31(3)(a) and is thus an appropriate source of interpretation of
the obligations of the NPT.
46. Reference to the use that can be made
of a treaty's travaux preparatoires (preparatory work)
is made in VCLT, article 32. Article 32 states that: "Recourse
may be had to supplementary means of interpretation, including
the preparatory work of the treaty and the circumstances of its
conclusion, in order to confirm the meaning resulting from the
application of article 31, or to determine the meaning when the
interpretation according to article 31: (a) leaves the meaning
ambiguous or obscure; or (b) leads to a result which is manifestly
absurd or unreasonable."
47. Article 32 makes preparatory work relevant
only as a secondary source of interpretation, to be referred to
when there is ambiguity, or where the approach under article 31
leads to a manifestly absurd or unreasonable result. This is a
lesser status than that accorded to the preamble and any subsequent
agreement between the parties by article 31. This is confirmed
by the heading given to each of the two articles. Article 31 is
headed "General rule of interpretation" while
article 32 is headed "Supplementary means of interpretation."
48. Accordingly, if there is any disparity
between them greater weight should be given to the Declarations
of the Review Conference than to the preparatory work of the NPT
in determining the scope of obligations under the Treaty text
today.
NEGOTIATION HISTORY
OF THE
NPT
49. Turning first to the negotiation history,
a commitment to disarmament was a major concern of non-nuclear
weapon states. India, Brazil, Scandinavian states, Canada, the
then UAR and Germany "brought strong pressure upon the
Co-chairmen to obtain some statement within the treaty concerning
nuclear disarmament." (E Firmage, "The Treaty on
the Non-Proliferation of Nuclear Weapons", 63 American
Journal of International Law (1969) 711, 733). The August
1967 draft included reference to "cessation of the arms
race" only in its preamble. An earlier version of Article
VI was brought within the body of the Revised Draft Treaty on
Nonproliferation of Nuclear Weapons, 18 January 1968. Sweden in
particular insisted on strengthening Article VI by broadening
the commitment of the nuclear weapon states to seek disarmament
agreements. In the General Assembly debate on the draft treaty
further objections were made (for example by Brazil, India) to
the lack of tangible commitment to nuclear disarmament by nuclear
weapon states. Article VI was further revised before its inclusion
in the adopted Treaty. (E. Firmage, "The Treaty on the Non-Proliferation
of Nuclear Weapons", 63 American Journal of International
Law (1969) 711, 716-721).
50. This drafting history of Article VI
is important as it shows the linkage between the commitment to
non-proliferation and the obligations of all states to pursue
negotiations towards nuclear disarmament. Article VI was an integral
part of the NPT package, not just an "add-on". Its importance
to the objectives of the Treaty is indicated by the preamble,
paras 8-12. These include the "intention to achieve at
the earliest possible date the cessation of the nuclear arms race"
and "to undertake effective measures in the direction
of nuclear disarmament."
NPT REVIEW CONFERENCE
2000
51. Turning to the Review Conferences it
is clear that the commitment to disarmament remains strong. The
Review Conferences take place in accordance with the terms of
the NPT, article VIII (2) which provides for the holding of a
Conference of Parties to the Treaty "to review the operation
of this treaty with a view to assuring that the purposes of the
Preamble and the provisions of the Treaty are being realised."
The provision for a Review Conference is separate from both
the articles for amendment (article VIII (1)) and for extension
of the Treaty (article X (2)). The objective of the Review Conference
is to determine compliance with the purposes of the Treaty as
expressed in the preamble and its provisions.
52. The Final Document of the Review Conference
2000 (NPT/CONF.2000/28 (Parts I and II) reiterated the importance
of the commitment to disarmament in a number of its statements.
In its Review of the operation of the Treaty the Conference noted
that the overwhelming majority of states entered into their legally
binding commitments not to acquire nuclear weapons "in the
context, inter alia of the corresponding legally binding
commitments by the nuclear weapon States to nuclear disarmament
in accordance with the Treaty." (Final Document of the Review
Conference 2000, Part I, Articles I and II and first to third
preambular paragraphs, para 2). Further the Conference reaffirmed
that the "strict observance" of the provisions of the
Treaty remains central to achieving the shared objectives of preventing
under any circumstances, the further proliferation of nuclear
weapons and preserving the Treaty's vital contribution to peace
and security. (Part I, Articles I and II and first to third preambular
paragraphs, para 5).
53. The 2000 Review Conference also agreed
a landmark series of practical steps for the systematic and progressive
efforts to implement NPT, Article VI and paras 3 and 4 (c) of
the 1995 Decision on "Principles and Objectives for Nuclear
Non-Proliferation and Disarmament". Step 6 is especially
relevant: "An unequivocal undertaking by the nuclear weapon
states to accomplish the total elimination of their nuclear arsenals
leading to nuclear disarmament, to which all States parties are
committed under article VI."
54. Step 9 provides the basis for "Steps
by all the nuclear weapon States leading to nuclear disarmament
in a way that promotes international stability ...
— Increased transparency by the
NWS with regard to the nuclear weapons capabilities and the implementation
of agreements pursuant to Article VI...
— Concrete agreed measures to further
reduce the operational status of nuclear weapons systems. (Final
Document of the Review Conference 2000, Part I, Article VI and
paras 3 and 4(c) of the 1995 Decision on "Principles and
Objectives for Nuclear Non-Proliferation and Disarmament",
para 15.9).
55. While NPT, article VI applies to "Each
of the Parties to the Treaty" these steps adopted by
the 2000 Review Conference make explicit that there are particular
obligations on the nuclear weapon states.
56. A number of points can be made about
the weight to be accorded to the documents of the 2000 Review
Conference. First, a Declaration of the Review Conference is not
a formal amendment to the NPT in the terms of article VIII (1)
and does not have formally legally binding effect. However, Review
Conferences are included within the NPT as an integral part of
the structure for reviewing state compliance and resolutions adopted
represent the expressed will of the states parties. Security Council
resolution 1172, 6 June 1998 recalled the "Principles and
Objectives for Nuclear Non-Proliferation and Disarmament"
adopted by the 1995 Review Conference, which are themselves the
basis of the steps agreed at the 2000 Conference.
57. Further the ICJ has given weight to
the documentation of the NPT Review Conference process when it
noted that the 1995 Review Conference had reaffirmed the importance
of fulfilling the obligation of the NPT, article VI in its determination
that the obligation "remains without any doubt an objective
of vital importance to the whole of the international community
today." (Legality of the Threat or Use of Nuclear Weapons
1996 ICJ Reports, para 103). These factors all support the
conclusion that the documents of such bodies have juridical significance
"as a source of authoritative interpretation of the treaty."
(B Carnahan, "Treaty Review Conferences", 81 American
Journal of International Law (1987) 226, 229). This is also
in line with the VCLT, article 31 (3) (a) as noted above.
58. Second, the language of the 2000 Review
Conference is in many instances strong in its reiteration of the
states parties' obligations under the NPT. For example, the Conference
notes the "reaffirmation" of the states parties'
commitment to Article VI (Part I, Article VI, para 1); the "unequivocal
undertaking by the nuclear weapon states" (Part I, Article
VI, para 15.6); the agreement for "concrete agreed measures
to further reduce the operational status of nuclear weapons systems"
(Part I, Article VI, para 15.9). Concreteness of language has
been identified as one of the factors for determining when non-binding
statements become normative. (G. Abi-Saab, "Cours General
de Droit International Public" 207 Rec. Des Cours (1987)
160).
59. Third, the Conference agreed steps for
the "systematic and progressive efforts to implement Article
VI." This is important as Article VI is imprecise in
the nature of the obligation other than the requirement of good
faith. There are no specified conditions or qualifications for
taking those steps. In the context of obligations under human
rights treaties the Committee on Economic, Social and Cultural
rights noted that the similar phrase "progressive realization"
in the Covenant on Economic, Social and Cultural Rights, article
2 "must be read in the light of the overall objective,
... of the Covenant ... It thus imposes an obligation to move
as expeditiously and effectively as possible towards that goal.
Moreover, any deliberately retrogressive measures in that regard
would require the most careful consideration and would need to
be fully justified by reference to the totality of the rights
provided for in the Covenant". (UN Committee on Economic,
Social and Cultural rights, General Comment No 3, The Nature of
States Parties" Obligations, 1994).
60. By analogy the assertion of practical
steps for systematic and progressive efforts towards implementation
of the NPT, article VI requires positive action towards that end
by the nuclear weapon states and implies that retrogressive measures
would be contrary to the Treaty's objective and wording. This
view is supported by the emphasis given by the ICJ that the Article
VI obligation must be carried out in accordance with the basic
principle of good faith.
61. Thus the importance of Article VI to
the objects and purposes of the NPT and to the reciprocal obligations
of nuclear weapon and non-nuclear weapon states is confirmed by
the negotiation history of the NPT and reinforced by the reaffirmation
of its significance by the 2000 Review Conference. The Security
Council too has expressed the importance of this international
regime in resolution 1172, 6 June 1998 which reaffirmed "its
full commitment to and the crucial importance of the [NPT] …
as the cornerstones of the international regime on the non-proliferation
of nuclear weapons and as essential foundations for the pursuit
of nuclear disarmament."
62. The inability of the 2005 Review Conference
to agree a consensus statement does not detract from the continued
applicability of the 2000 Review Conference, especially the practical
steps for the "systematic and progressive efforts to implement
Article VI." Of particular interest in this regard is
the statement by the Head of the UK Delegation. He noted that
"non-proliferation and disarmament are inter-linked in
achieving the Treaty's goals" and that the UK continues
"to implement the decisions of past review conferences,
including those taken at the Review and Extension Conference in
1995 and the last Review Conference in 2000." He also
noted that as a nuclear weapon state the UK has particular obligations
under Article VI and that it continued to support the disarmament
provisions agreed at the 1995 and 2000 Review Conferences. (Statement
by Ambassador John Freeman, Head of the UK Delegation, to the
Seventh Review Conference of the Treaty on the Non-Proliferation
of Nuclear Weapons, May 2005, available at http://www.un.org/events/npt2005/statements/npt05unitedkingdom.pdf.)
OBLIGATION TO
NEGOTIATE IN
GOOD FAITH
63. Between the 1995 and 2000 Review Conferences
the ICJ in The Legality of the Threat or Use of Nuclear Weapons
1996 advisory opinion unanimously asserted in dispositif
paragraph 105. 2. F that:
"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 control." (Emphasis added)
64. The Court based this conclusion on NPT,
article VI and confirmed that the obligation contained in article
VI, as reaffirmed by the 1995 Review Conference "remains
without any doubt an objective of vital importance to the whole
of the international community today." (1996 ICJ Reports,
para. 103). As the words we have emphasised in the quotation in
paragraph 63 above make clear, the Court has interpreted the obligation
in article VI to include not merely an obligation to pursue negotiations
in good faith but also to bring those negotiations to a conclusion.
65. The Court asserted that this obligation
goes beyond that of a "mere" obligation of conduct for
it is an obligation to achieve a precise result: "nuclear
disarmament in all its aspects by the pursuit of negotiations
on the matter in good faith." (1996 ICJ Reports, para
99 and 102; see also M Marin Bosch, The Non-Proliferation Treaty
and its Future", in L Boisson de Chazournes and P Sands,
eds), International Law, the International Court of Justice
and Nuclear Weapons, 1999, 375).
66. The Court also noted Security Council
resolution 984, 11 April 1995 which reaffirmed the "need
for all States parties to the [NPT] to comply fully with all their
obligations" (1996 ICJ Reports, para 103).
67. Commentators have noted the importance
of the obligation contained in the NPT, Article VI. "It
is important to note that the NPT is the only existing international
treaty under which the major nuclear powers are legally committed
to disarmament." (T Rauf, "Nuclear Disarmament:
Review of Article VI", in J Simpson and D Howlett (eds),
The Future of the Non-Proliferation Treaty, 1995, 66, 67).
The affirmation and extension of this obligation by the Court
has also been noted. Richard Falk asserted that the obligation
to negotiate to achieve nuclear disarmament was not necessary
for the Court's judgment but that it went out of its way to assert
this unanimously. "This emphasis in the advisory opinion
on the obligatory character of Article VI of the Nuclear Proliferation
Treaty appears to represent common legal ground between nuclear
and non-nuclear weapons states." (R Falk, Nuclear Weapons,
International Law and the World Court : A Historic Encounter",
91 AJIL (1997) 64, 65). Marin Bosch notes that Article VI is the
"only treaty provision in which NWS have undertaken a
legal obligation to negotiate nuclear disarmament agreements".
(M. Marin Bosch, The Non-Proliferation Treaty and its Future",
in L Boisson de Chazournes and P Sands, eds), International
Law, the International Court of Justice and Nuclear Weapons, 1999,
375).
68. The wording of NPT, article VI, the
assertion of the importance of the obligation by the ICJ, and
by the 2000 Review Conference along with practical measures for
its implementation all make clear that the obligations of nuclear
weapon states parties to the NPT, including the UK are:
— to undertake to pursue negotiations
in good faith on effective measures relating to cessation of the
nuclear arms race;
— to undertake to pursue negotiations
in good faith on effective measures relating to nuclear disarmament,
and to bring them to a conclusion; and
— on a Treaty on general and complete
disarmament.
69. The Treaty obligation is thus not to
disarm as such, but a positive obligation to pursue in good faith
negotiations towards these ends, and to bring them to a conclusion.
Good faith is the legal requirement for the process of carrying
out of an existing obligation. In the Nuclear Tests cases the
ICJ described the principle of good faith as "one of the
basic principles governing the creation and performance of legal
obligations". (Nuclear Tests cases Australia v France;
New Zealand v France) 1974 ICJ Reports 253; 457, para 46). The
obligation of good faith has been described as not being one "which
obviously requires actual damage. Instead its violation may be
demonstrated by acts and failures to act which, taken together,
render the fulfilment of specific treaty obligations remote or
impossible." (G Goodwin-Gill, "State Responsibility
and the "Good Faith" Obligation in International Law",
in M Fitzmaurice and D Sarooshi (eds) Issues of State Responsibility
before International Judicial Institutions (2004) 75, 84).
In the context of an obligation to negotiate in good faith this
would involve taking no action that would make a successful outcome
impossible or unlikely.
70. Would a UK policy with respect to extend
or replace Trident be in accordance with this obligation?
BREACH OF
TREATY: LAW
OF STATE
RESPONSIBILITY
71. Questions of breach of a treaty are
determined both by treaty law and by the principles on state responsibility.
The International Law Commission (ILC), Articles on Responsibility
of States for Internationally Wrongful Acts (GA Res 56/83, 12
December 2001), article 12, defines the existence of a breach
of an international obligation as occurring "when an act
of that State is not in conformity with what is required of it
by that obligation, regardless of its origin or character."
The International Court of Justice has asserted that such
breach includes "failure to comply with treaty obligations."
(Gabcikovo-Nagymaros Project (Hungary/Slovakia) 1997 ICJ Reports
7, para 57). Whether there has been such failure is determined
by asking whether the behaviour in question "was in conformity"
with the treaty requirements (J Crawford, The International
Law Commission's Articles on State Responsibility: Introduction,
Text and Commentaries (Cambridge University Press, 2002) 125).
72. There are indicators that the UK intends
to replace—or extend the life of—its Trident weapon
system. Statements have been made that indicate that the government
is not looking at the non-nuclear weapon option. For example the
Defence White Paper, Delivering Security in a Changing World (December
2003) reiterates the conclusion from the Strategic Defence Review
1998 that: "We should maintain a minimum nuclear deterrent
based on the Trident system." (Defence White Paper, page
2) At paragraph 3.11 it states that the government's policy on
nuclear weapons remains as set out in the 1998 Strategic Defence
Review. The Labour Party Manifesto 2005 states that "We
are also committed to retaining the independent nuclear deterrent."
(Bundle, Tab 8).
73. There have also been actions in conformity
with this stance, for example the 2004 renewal of the Mutual Defence
Agreement between the UK and the US. At that time President Bush
stated that: "The United Kingdom intends to continue to
maintain viable nuclear forces. I have concluded that it is in
our interest to continue to assist them in maintaining a credible
nuclear force." (Bundle, Tab 8).
74. Enhancing nuclear weapons systems, possibly
without going through parliamentary processes, is, in our view,
not conducive to entering into negotiations for disarmament as
required by the NPT, article VI and evinces no intention to "bring
to a conclusion negotiations leading to nuclear disarmament in
all its aspects". It is difficult to see how unilateral
(or bilateral) action that pre-empts any possibility of an outcome
of disarmament can be defined as pursuing negotiations in good
faith and to bring them to a conclusion and is, in our view, thereby
in violation of the NPT, article VI obligation.
BREACH OF
TREATY: THE
VCLT
75. The analysis has proceeded under the
definition of breach provided by the International Law Commission's
Articles on State Responsibility. Breach is also included in the
VCLT. However the VCLT deals only with "material" breach.
The Articles on State Responsibility provisions are not limited
to material breach and are applicable to any breach of a treaty.
76. In addition to determining that the
UK is in breach of the obligations of the NPT, article VI under
the ILC, Articles on State Responsibility, we also consider whether
such behaviour amounts to material breach under the VCLT, article
60.
77. The VCLT, article 60 (3) defines a material
breach as occurring in one of two ways: "A material breach
of a treaty, for the purposes of this article, consists in: (a)
a repudiation of the treaty not sanctioned by the present Convention;
or (b) the violation of a provision essential to the accomplishment
of the object or purpose of the treaty."
78. The UK has not repudiated the NPT and
has indeed reaffirmed it as in the words of Ambassador Freeman
cited above.
79. Therefore, if there is any material
breach it must be under VCLT, article 60 (3)(b), that is whether
there is behaviour that violates a provision "essential
to the accomplishment of the object or purpose of the treaty."
The object and purpose of the NPT as spelled out in its preamble
include "to undertake effective measures in the direction
of nuclear disarmament".
80. The linkage between the principles of
non-proliferation and the obligation to negotiate towards disarmament
shown by the negotiation history (discussed in paras 14-5 above)
indicate that Article VI is a provision "essential to
the accomplishment of the object or purpose of the treaty."
The non-nuclear weapon states required commitments from the nuclear
weapon states as part of their willingness to accept non-nuclear
status under the NPT and failure to comply with article VI thus,
in our view, constitutes material breach.
19 December 2006
| 
