Submission by World Court Project
UK
World Court Project UK is part of an international
citizens' network which worked for the 8 July 1996 Advisory
Opinion of the International Court of Justice (ICJ) on the legal
status of the threat or use of nuclear weapons. Since then it
has worked to raise awareness of this Opinion and its implications
in the UK and internationally, and to have it implemented.
1. This submission will concern itself only
with the Committee's request for views on the effectiveness of
the current rules-based international system in curbing current
weapons proliferation.
2. Since the end of the Cold War the public's
fear of nuclear weapons has diminished and they only feature on
the political agenda sporadically. But nuclear weapons have not
gone away. Arsenals have been slimmed down but there are still
about 26,000 of them, enough to destroy all the cities of
the earth many times over. In many ways the situation has become
more dangerous and urgent since the end of the Cold War. This
is because:
— nuclear weapons are no longer a last
resort. The nuclear-armed states now see them as a way of responding
to and even pre-empting chemical, biological and other vaguely
defined threats or attacks,
— the nuclear club is growing. First
there was the U.S. By 1968 Russia, U.K., France and China
had joined. Then came Israel, India, Pakistan and possibly North
Korea. Now additional states could decide to go nuclear and terrorists
groups may well have nuclear ambitions.
3. World Court Project UK believes that
the only rational way forward is the global abolition of nuclear
weapons under the law. We are not alone in this. It has long been
the policy of all three political parties and several senior statesmen,
across the political spectrum, have recently reinvigorated the
call for global abolition.
4. We already have a framework for abolition.
In 1996 the ICJ provided legal advice on nuclear weapons
for the UN General Assembly. This made it quite clear that:
— the threat or use of nuclear weapons,
would, as a general rule, violate International Humanitarian Law—the
customs and treaties accepted by states as a way of limiting the
suffering of war, especially to civilians. We argue that because
of their enormous and unpredictable explosive, heat, and radiation
effects no one launching a nuclear strike could reliably foresee
whether it would be lawful or not. As the ICJ stated, nuclear
weapons cannot be contained in space or time,
— there is a "Good Faith"
obligation to achieve the global abolition of nuclear weapons.
The ICJ concluded 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
international control."
5. This obligation is closely linked with
the basic illegality of nuclear weapons and their threat or use.
A binding global framework for a nuclear weapon-free world would
put nuclear weapons beyond the bounds of legality once and for
all.
6. Since 1968 nearly every state has
signed the Nuclear Non-Proliferation Treaty (NPT). This defined
the five states, the U.S. France, China, Russia and the U.K.,
which had nuclear weapons at that time as the "Nuclear-Weapon
States". Almost all the other states—the Non-Nuclear
Weapon States—have also signed up to the Treaty. The only
important exceptions are Israel, Pakistan and India which do have
nuclear weapons but have not entered the NPT, and North Korea
which left the Treaty but could rejoin as a result of current
negotiations.
7. The NPT has three equally important aims
which reinforce each other.
— preventing further proliferation
of nuclear weapons,
— controlling the use of materials
such as plutonium and uranium for nuclear power to ensure that
they are not used for nuclear weapons manufacture,
— the global abolition of nuclear weapons.
8. The 1995 Review and Extension Conference
of the NPT adopted the Statement of Principles and Objectives
for Nuclear Nonproliferation and Disarmament which included
the "determined pursuit by the nuclear-weapon states of
systematic and progressive efforts to reduce nuclear weapons globally,
with the ultimate goal of eliminating those weapons… ."
9. The 2000 Review Conference built
on the Principles and Objectives and reinforced the ICJ Opinion.
All 187 NPT states agreed on 13 Practical Steps.
These showed how Article VI of the NPT should be interpreted
and applied. The Thirteen Steps included verified reductions,
further efforts by the Nuclear-Weapon States to reduce their nuclear
arsenals unilaterally, removing nuclear weapons from hair-trigger
alert, and reducing their importance in security policies. This
would minimise the risk that nuclear weapons would ever be used,
and prepare the way for their total elimination. These steps must
be irreversible. There must be no going back on them. Above
all, the 13 Practical Steps included an "unequivocal
undertaking" by the Nuclear-Weapon States "to
accomplish the total elimination of their nuclear arsenals leading
to nuclear disarmament …"
10. The Chair's Paper at the end of the
2007 NPT Preparatory Committee recorded that most states
were concerned that thousands of nuclear weapons were still deployed.
They called for full implementation of the 13 Practical Steps.
Failure to comply with Article VI of the NPT could undermine both
non-proliferation and disarmament.
11. The Court's strong statement of the
Good Faith obligation is based on NPT Article VI:
"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."
12. There have been claims that Article
VI was only a vague commitment to negotiation. The ICJ firmly
rejected this view. It said that negotiations must be pursued
in Good Faith and brought to a conclusion. Just negotiating is
not enough. There must be a result—global nuclear disarmament.
The fulfillment of this obligation is a Convention, or a series
of interlocking instruments, banning the development, possession,
use and threat of use of nuclear weapons. The Court's Opinion
implies that the obligation applies to all states, not just the
NPT ones and would therefore necessarily involve India, Pakistan
and Israel.
13. Furthermore, the Court's Opinion firmly
rejected the claim that nuclear disarmament is legally dependent
on "complete and general disarmament". The final paragraph
treats of nuclear disarmament and nuclear disarmament only. We
recognize that there is certainly a contingent connection
between general and nuclear disarmament. Both processes reinforce
each other. However, if we had to wait for a general disarmament
treaty before negotiating nuclear abolition, nuclear weapons would
be with us for generations.
14. There is no substance in the claim sometimes
made by Nuclear Weapons States that the NPT "recognises"
the nuclear weapons status of the nuclear-armed states. It only
notes the fact that they do, indeed, possess them, but that is
only a temporary situation which must be brought to an end.
15. The "Good Faith" obligation
is the heart of the matter. In our view this means negotiating
sincerely and flexibly to achieve the desired result—global
nuclear disarmament. The objective must be pursued consistently
with political will. It means considering proposals from the other
side, and re-examining one's own position. The conclusion should
be reached within a reasonable time-frame and the parties must
avoid policies which contradict the very purpose of the negotiations.
RECOMMENDATIONS
In its National Security Strategy the UK Government
refers to "the effectiveness of the current rules-based international
system in curbing current weapons proliferation." The forgoing
reflects our understanding of what such a system entails.
The Strategy lays considerable emphasis on counter-proliferation,
but the references to disarmament do not go far enough. We recognise
the value of pursuing negotiations towards a Fissile Material
Cut-off Treaty and a Comprehensive Test Ban Treaty, but can find
little reference to irreversible steps to be taken by the UK towards
a reduction in the salience of its nuclear weapons.
However, we welcome the statement in the Security
Strategy that "In the run up to the 2010 NPT review
conference, we will lead the international effort to accelerate
disarmament among possessor states, in pursuit of our objective
of a negotiated elimination of all nuclear weapons. We have offered
to host a technical conference for the five NPT Nuclear Weapons
States on the verification of nuclear disarmament." However,
as far as detail is concerned, it mentions only the offer to host
a technical conference for the five NPT Nuclear Weapons States
on the verification of nuclear disarmament. Valuable as this is,
it is only one of the international initiatives that the UK could
provide.
The UK Government should:
(a) emphasise that the global abolition of nuclear
weapons is a legally binding obligation on all states and avoid
any suggestion that the treaty confers the right on any state
to possess nuclear weapons. It should also make it quite clear
that the negotiation of their abolition is legally independent
of complete and general disarmament,
(b) ask itself whether it is complying with its
Good Faith obligations by retaining the option to retain its policy
of nuclear deterrence for the next generation by replacing Trident
and upgrading work at Aldermaston and Faslane to achieve this,
(c) unilaterally carry out irreversible measures
which would make nuclear deterrence less relevant in its security
policy. Examples include taking Trident off continuous patrol,
separating warheads from their delivery systems and renouncing
the policy of nuclear first-use by NATO,
(d) take account of the urgent need to achieve
global abolition. Although the NPT does not refer to a time-bound
framework, Good Faith requires implementation of the disarmament
obligation within a reasonable period; and the Treaty was signed
forty years ago,
(e) devote considerable resources to taking a
lead, at the highest level, in starting negotiations for the global
abolition of nuclear weapons in order to comply with the obligations
of the NPT as confirmed by the ICJ,
(f) clarify, in detail, the claim constantly
made by ministers that negotiations for a Convention would undermine
the NPT. This seems to contradict the statement in the Security
Strategy that UK "will lead the international effort to accelerate
disarmament among possessor states, in pursuit of our objective
of a negotiated elimination of all nuclear weapons",
(g) provide a more comprehensive account of what
"achieving a positive outcome from the 2010 NPT Review
Conference" (as referred to in the Security Strategy) would
actually comprise,
We believe that these recommendations are ultimately
consistent with the government's declared policies.
September 2008
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