D ISSENTING OPINION OF JUDGE C ANÇADO T RINDADE
Table of Contents
Paragraphs
I. Prolegomena................................................................................................................................1-4
II. The Existence of a Dispute before the Hague Court ..................................................................... 5
1. Objective Determination by the Court.................................................................................5-15
2. Existence of a Dispute in the Cas d’Espèce (case Marshall Islands versus Pakistan).......16-17
3. The Threshold for the Determination of the Existence of a Dispute..................................18-23
4. Contentions in the Case of Marshall Islands versus Pakistan............................................24-25
5. General Assessment...........................................................................................................26-29
III. U.N. General Assembly Resolutions and Opinio Juris.............................................................. 30
1. U.N. General Assembly Resolutions on Nuclear Weapons (1961-1981)..........................31-36
2. U.N. General Assembly Resolutions on Freeze of Nuclear Weapons (1982-1992)..........37-39
3. U.N. General Assembly Resolutions on Nuclear Weapons as Breach of the
U.N. Charter (Acknowledgment before the ICJ, 1995)....................................................40-43
4. U.N. General Assembly Resolutions Condemning Nuclear Weapons (1982-2015)..........44-49
5. U.N. General Assembly Resolutions Following up the ICJ’s 1996 Advisory Opinion
(1996-2015) ......................................................................................................................50-55
IV. U.N. Security Council Resolutions and Opinio Juris...........................................................56-62
V. The Saga of the United Nations in the Condemnation of Nuclear Weapons.........................63-76
VI. U.N. Resolutions and the Emergence of Opinio Juris: The Positions of the Contending
Parties.....................................................................................................................................77-82
VII. Human Wickedness: From the XXIst Century Back to the Book of Genesis...................83-112
VIII. The Attention of the United Nations Charter to Peoples................................................113-121
IX. Impertinence of the So-Called Monetary Gold “Principle”..............................................122-125
X. The Fundamental Principle of the Juridical Equality of States..........................................126-129
XI. Unfoundedness of the Strategy of “Deterrence”...............................................................130-140 - 2 -
XII. The Illegality of Nuclear Weapons and the Obligation of Nuclear Disarmament........................
1. The Condemnation of All Weapons of Mass Destruction .............................................141-146
2. The Prohibition of Nuclear Weapons: The Need of a People-Centred Approach ........147-165
3. The Prohibition of Nuclear Weapons: The Fundamental Right to Life........................166-179
4. The Absolute Prohibitions of Jus Cogens and the Humanization of International Law 180-183
5. The Pitfalls of Legal Positivism: A Rebuttal of the So-Called Lotus “Principle” ........184-190
XIII. Recourse to the “Martens Clause” as an Expression of the Raison d’Humanité............191-199
XIV. Nuclear Disarmament: Jusnaturalism, the Humanist Conception and the Universality
of International Law...........................................................................................................200-210
XV. The Principle of Humanity and the Universalist Approach: Jus Necessarium
Transcending the Limitations of Jus Voluntarium.............................................................211-223
XVI. NPT Review Conferences..............................................................................................224-239
XVII. The Establishment of Nuclear-Weapon-Free Zones......................................................240-252
XVIII. Conferences on the Humanitarian Impact of Nuclear Weapons (2013-2014).............253-255
1. First Conference on the Humanitarian Impact of Nuclear Weapons .............................256-260
2. Second Conference on the Humanitarian Impact of Nuclear Weapons.........................261-269
3. Third Conference on the Humanitarian Impact of Nuclear Weapons............................270-281
4. Aftermath: The “Humanitarian Pledge”........................................................................282-289
XIX. Final Considerations: Opinio Juris Communis Emanating from Conscience (Recta
Ratio), Well Above the “Will”...........................................................................................290-304
XXI. Epilogue: A Recapitulation………………………………………………………..…..305-321
I. PROLEGOMENA
1. I regret not to be able to accompany the Court’s majority in the Judgment of today,
05.10.2016 in the present case of Obligations Concerning Negotiations Relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands versus Pakistan), whereby it
has found that the existence of a dispute between the parties has not been established before it, and
that the Court has no jurisdiction to consider the Application lodged with it by the Marshall Islands,
and cannot thus proceed to the merits of the case. I entirely disagree with the present Judgment.
As my dissenting position covers all points addressed in it, in its reasoning as well as in its
resolutory points, I feel obliged, in the faithful exercise of the international judicial function, to lay
on the records the foundations of my own position thereon.
2. In doing so, I distance myself as much as I can from the position of the Court’s majority,
so as to remain in peace with my conscience. I shall endeavor to make clear the reasons of my - 3 -
personal position on the matter addressed in the present Judgment, in the course of the present
Dissenting Opinion. I shall begin by examining the question of the existence of a dispute before
the Hague Court (its objective determination by the Court and the threshold for the determination
of the existence of a dispute). I shall then turn attention to the distinct series of
U.N. General Assembly resolutions on nuclear weapons and opinio juris. After surveying also
U.N. Security Council resolutions and opinio juris, I shall dwell upon the saga of the
United Nations in the condemnation of nuclear weapons. Next, I shall address the positions of the
contending parties on U.N. resolutions and the emergence of opinio juris.
3. In logical sequence, I shall then, looking well back in time, underline the need to go
beyond the strict inter-State dimension, bearing in mind the attention of the U.N. Charter to
peoples. Then, after recalling the fundamental principle of the juridical equality of States, I shall
dwell upon the unfoundedness of the strategy of “deterrence”. My next line of considerations
pertains to the illegality of nuclear weapons and the obligation of nuclear disarmament, encompassing:
a) the condemnation of all weapons of mass destruction; b) the prohibition of nuclear weapons (the
need of a people-centred approach, and the fundamental right to life); c) the absolute prohibitions
of jus cogens and the humanization of international law; d) pitfalls of legal positivism.
4. This will bring me to address the recourse to the “Martens clause” as an expression of the
raison d’humanité. My following reflections, on nuclear disarmament, will be in the line of
jusnaturalism, the humanist conception and the universality of international law; in addressing the
universalist approach, I shall draw attention to the principle of humanity and the jus necessarium
transcending the limitations of jus voluntarium. I shall then turn attention to the NPT Review
Conferences, to the relevant establishment of nuclear-weapon-free zones, and to the Conferences on
the Humanitarian Impact of Nuclear Weapons. The way will then be paved for my final
considerations, on opinio juris communis emanating from conscience (recta ratio), well above the
“will”, — and, last but not least, to the epilogue (recapitulation).
II. THE E XISTENCE OF A D ISPUTE BEFORE THE H AGUE C OURT
1. Objective Determination by the Court
5. May I start by addressing the issue of the existence of a dispute before the Hague Court.
In the jurisprudence constante of the Hague Court (PCIJ and ICJ), a dispute exists when there is “a
disagreement on a point of law or fact, a conflict of legal views or of interests between two
1
persons” . Whether there exists a dispute is a matter for “objective determinati2n” by the Court;
the “mere denial of the existence of a dispute does not prove its non-existence” . The Court must
examine if “the claim of one party is positively opposed by the other” . The Court further states
that “a disagreement on a point of law or fact, a conflict of legal views or interests, or the positive
opposition of the claim of one party by the other need not be necessarily be stated expressis
verbis” .
1
PCIJ, case of Mavrommatis Palestine Concessions, Judgment of 30.08.1924, p. 11.
2ICJ, Advisory Opinion (of 30.03.1950) on the Interpretation of Peace Treaties with Bulgaria, Hungary and
Romania, p. 74.
3ICJ, South-West Africa cases (Ethiopia and Liberia versus South Africa, Judgment on Preliminary Objections
of 21.12.1962), p. 32ICJ, case of Armed Activities on the Territory of the Congo (New Application — 2002,
D.R. Congo versus Rwanda, Judgment on Jurisdiction and Admissibility of 03.02.2006), p. 40, para. 90.
4
ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Judgment on Preliminary Objections,
of 11.06.1998), p. 275, para. 89. - 4 -
6. Along the last decade, the Court has deemed it fit to insist on its own faculty to proceed to
the “objective determination” of the dispute. Thus, in the case of Armed Activities on the Territory
of the Congo (D.R. Congo versus Rwanda, Jurisdiction and Admissibility, Judgment
of 03.02.2006), for example, the ICJ has recalled that, as long ago as 1924, the PCIJ stated that “a
dispute is a disagreement on a point of law or fact, a conflict of legal views or interests” (case of
Mavrommatis Palestine Concessions, Judgment of 30.08.1924, p. 11). It then added that
“For its part, the present Court has had occasion a number of times to state the
following:
“In order to establish the existence of a dispute, ‘it must be shown that the
claim of one party is positively opposed by the other’ (South West Africa,
Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328); and
further, ‘Whether there exists an international dispute is a matter for
objective determination’ (Interpretation of Peace Treaties with Bulgaria,
Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 74; East Timor (Portugal v. Australia), Judgment,
I.C.J. Reports 1995, p. 100, para. 22; Questions of Interpretation and
Application of the 1971 Montreal Convention arising from the Aerial
Incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom),
Preliminary Objections, Judgment, I.C.J. Reports 1998, p. 17, para. 22;
Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie (Libyan Arab
Jamahiriya v. United States of America), Preliminary Objections,
Judgment, I.C.J. Reports 1998, pp. 122-123, para. 21; Certain Property
(Liechtenstein v. Germany), Preliminary Objections, Judgment,
I.C.J. Reports 2005, p. 18, para. 24)’” (para. 90).
7. Shortly afterwards, in its Judgment on Preliminary Objections (of 18.11.2008) in the case
of the Application of the Convention against Genocide (Croatia versus Serbia), the ICJ has again
recalled that
“In numerous cases, the Court has reiterated the general rule which it applies in
this regard, namely: ‘the jurisdiction of the Court must normally be assessed on the
date of the filing of the act instituting proceedings’ (to this effect, cf. Application of
the Convention on the Prevention and Punishment of the Crime of Genocide
(Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, Judgment,
I.C.J. Reports 1996 (II), p. 613, para. 26; Questions of Interpretation and Application
of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie
(Libyan Arab Jamahiriya v. United Kingdom), Preliminary Objections, Judgment,
I.C.J. Reports 1998, p. 26, para. 44). (...) (I)t is normally by reference to the date of
the filing of the instrument instituting proceedings that it must be determined whether
those conditions are met.
(…) “What is at stake is legal certainty, respect for the principle of equality and the
right of a State which has properly seised the Court to see its claims decided, when it
has taken all the necessary precautions to submit the act instituting proceedings in
time. (….) [T]he Court must in principle decide the question of jurisdiction on the
basis of the conditions that existed at the time of the institution of the proceedings.
However, it is to be recalled that the Court, like its predecessor, has also shown
realism and flexibility in certain situations in which the conditions governing the
Court’s jurisdiction were not fully satisfied when proceedings were initiated but were
subsequently satisfied, before the Court ruled on its jurisdiction” (paras. 79-81). - 5 -
8. More recently, in its Judgment on Preliminary Objections (of 01.04.2011) in the case of
the Application of the International Convention on the Elimination of All Forms of Racial
Discrimination — CERD (Georgia versus Russian Federation), the ICJ has seen it fit, once again, to
stress:
“The Court recalls its established case law on that matter, beginning with the
frequently quoted statement by the Permanent Court of International Justice in the
Mavrommatis Palestine Concessions case in 1924: ‘A dispute is a disagreement on a
point of law or fact, a conflict of legal views or of interests between two persons’.
(Judgment n. 2, 1924, PCIJ, Series A, n. 2, p. 11). Whether there is a dispute in a
given case is a matter for ‘objective determination’ by the Court (Interpretation of
Peace Treaties with Bulgaria, Hungary and Romania, First Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 74). ‘It must be shown that the claim of one party is positively
opposed by the other’ (South West Africa (Ethiopia and Liberia v. South Africa),
Preliminary Objections, Judgment, I.C.J. Reports 1962, p. 328); and, most recently,
Armed Activities on the Territory of the Congo (New Application: 2002,
D.R. Congo v. Rwanda), Jurisdiction and Admissibility, Judgment,
I.C.J. Reports 2006, p. 40, para. 90). The Court’s determination must turn on an
examination of the facts. The matter is one of substance, not of form. As the Court
has recognized (for example, Land and Maritime Boundary between Cameroon and
Nigeria, Cameroon v. Nigeria, Preliminary Objections, Judgment, I.C.J. Reports 1998,
p. 315, para. 89), the existence of a dispute may be inferred from the failure of a State
to respond to a claim in circumstances where a response is called for. While the
existence of a dispute and the undertaking of negotiations are distinct as a matter of
principle, the negotiations may help demonstrate the existence of the dispute and
delineate its subject-matter.
The dispute must in principle exist at the time the Application is submitted to
the Court (Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v.
United Kingdom, Preliminary Objections, Judgment, I.C.J. Reports 1998, pp. 25-26,
paras. 42-44; Questions of Interpretation and Application of the 1971 Montreal
Convention arising from the Aerial Incident at Lockerbie, Libyan Arab Jamahiriya v.
United States of America, Preliminary Objections, Judgment, I.C.J. Reports 1998,
pp. 130-131, paras. 42-44) (...)” (para. 30).
9. This passage of the 2011 Judgment in the case of the Application of the CERD Convention
reiterates what the ICJ has held in its jurisprudence constante. Yet, shortly afterwards in that same
Judgment, the ICJ has decided to apply to the facts of the case a higher threshold for the
determination of the existence of a dispute, by proceeding to ascertain whether the applicant State
had given t5e respondent State prior notice of its claim and whether the respondent State had
opposed it . On this basis, it has concluded that no dispute had arisen between the contending
parties (before August 2008). Such new requirement, however, is not consistent with the PCIJ’s
and the ICJ’s jurisprudence constante on the determination of the existence of a dispute (cf. supra).
10. Now, in the present case of Obligations Concerning Negotiations Relating to Cessation
of the Nuclear Arms Race and to Nuclear Disarmament, the three respondent States (India,
United Kingdom and Pakistan), seek to rely on a requirement of prior notification of the claim, or
the test of prior awareness of the claim of the applicant State (the Marshall Islands), for a dispute to
exist under the ICJ’s Statute or general international law. Yet, nowhere can such a requirement be
found in the Court’s jurisprudence constante as to the existence of a dispute: quite on the contrary,
Cf. paras. 50-105, and esp. paras. 31, 61 and 104-105, of the Court’s Judgment of 01.04.2011. - 6 -
6
the ICJ has made clear that the position or the attitude of a party can be established by inference .
Pursuant to the Court’s approach, it is not necessary for the respondent to oppose previously the
claim by an express statement, or to express acknowledgment of the existence of a dispute.
11. The respondent States in the present case have made reference to the Court’s
2011 Judgment in the case of the Application of the CERD Convention in support of their position
that prior notice of the applicant’s claim is a requirement for the existence of a dispute. Already in
my Dissenting Opinion (para. 161) in that case, I have criticized the Court’s “formalistic
reasoning” in determining the existence of a dispute, introducing a higher threshold that goes
beyond the jurisprudence constante of the PCIJ and the ICJ itself (cf. supra).
12. As I pointed out in that Dissenting Opinion in the case of the Application of the CERD
Convention,
“As to the first preliminary objection, for example, the Court spent
92 paragraphs to concede that, in its view, a legal dispute at last crystallized, on
10 August 2008 (para. 93), only after the outbreak of an open and declared war
between Georgia and Russia! I find that truly extraordinary: the emergence of a legal
dispute only after the outbreak of widespread violence and war! Are there disputes
which are quintessentially and ontologically legal, devoid of any political ingredients
or considerations? I do not think so. The same formalistic reasoning leads the Court,
in 70 paragraphs, to uphold the second preliminary objection, on the basis of alleged
(unfulfilled) “preconditions” of its own construction, in my view at variance with its
own jurisprudence constante and with the more lucid international legal doctrine”
(para. 161).
13. Half a decade later, I was hopeful that the Court would distance itself from the
formalistic approach it adopted in the case of the Application of the CERD Convention. As it
regrettably has not done so, I feel obliged to reiterate here my dissenting position on the issue, this
time in the present case of Obligations Concerning Negotiations Relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament. In effect, there is no general requirement of
7
prior notice of the applicant State’s intention to initiate proceedings before the ICJ . It should not
pass unnoticed that the purpose of the need of determination of the existence of a dispute (and its
object) before the Court is to enable this latter to exercise jurisdiction properly: it is not intended to
protect the respondent State, but rather and more precisely to safeguard the proper exercise of the
Court’s judicial function.
14. There is no requirement under general international law that the contending parties must
first “exhaust” diplomatic negotiations before lodging a case with, and instituting proceedings
before, the Court (as a precondition for the existence of the dispute). There is no such requirement
in general international law, nor in the ICJ’s Statute, nor in the Court’s case-law. This is precisely
what the ICJ held in its Judgment on Preliminary Objections (of 11.06.1998) in the case of Land
and Maritime Boundary between Cameroon and Nigeria: it clearly stated that
6ICJ, Land and Maritime Boundary between Cameroon and Nigeria (Judgment on Preliminary Objections,
of 11.06.1998), p. 315, para. 89: “a disagreement on a point of law or fact, a conflict of legal views or interests, or the
positive opposition of the claim of one party by the other need not necessarily be stated expressis verbis. In the
determination of the existence of a dispute, as in other matters, the position or the attitude of a party can be established by
inference, whatever the professed view of that party”.
7Cf., to this effect, S. Rosenne, The Law and Practice of the International Court (1920-2005), 4th ed., vol. III,
Leiden, Nijhoff/Brill, 2006, p. 1153. - 7 -
“Neither in the Charter nor otherwise in international law is any general rule to be
found to the effect that the exhaustion of diplomatic negotiations constitutes a
precondition for a matter to be referred to the Court” (para. 56).
15. The Court’s statement refers to the “exhaustion” of diplomatic negotiations, — to discard
the concept. In effect, there is no such a requirement in the U.N. Charter either, that negotiations
would need to be resorted to or attempted. May I reiterate that the Court’s determination of the
existence of the dispute is not designed to protect the respondent State(s), but rather to safeguard
the proper exercise of its own judicial function in contentious cases. It is thus a matter for
objective determination by the Court, as it recalled in that same Judgment (para. 87), on the basis of
its own jurisprudence constante on the matter.
2. Existence of a Dispute in the Cas d’Espèce (case Marshall Islands versus Pakistan)
16. In the present case opposing the Marshall Islands to Pakistan, there were two sustained
and distinct courses of conduct of the two contending parties, evidencing their distinct legal
positions (as to the duty of negotiations leading to nuclear disarmament in all its aspects under
strict and effective international control), which suffice for the determination of the existence of a
dispute. This dispute concerns Pakistan’s compliance with its obligation under customary
international law 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.
17. On 14.02.2014, in its declaration at the aforementioned Conference of Nayarit, the
Marshall Islands publicly expressed its view concerning the obligation on nuclear disarmament.
Pakistan did not react to that declaration, nor did it change its conduct. Thus, one can already infer
an opposition of legal views. In its subsequent submissions to the ICJ, Pakistan sustained its
position, opposing that of the Marshall Islands in its Note Verbale of 09.07.2014, Pakistan
challenged the Marshall Islands’ arguments, referring to what it regarded as an exaggerated and
unfounded interpretation of Article VI of the NPT, which is in its view inapplicable to States that
are not parties to the NPT, and which does not have an erga omnes character. In its
Counter-Memorial, Pakistan submits that the Marshall Islands’ claims are manifestly without legal
merit or substance (paras. 4.1-4.6), clearly challenging the legal basis of the Marshall Islands’
claim (para. 4.5).
3. The Threshold for the Determination of the Existence of a Dispute
18. In the present cases of Obligations Concerning Negotiations Relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament (Marshall Islands versus
India/United Kingdom/Pakistan), the Court’s majority has unduly heightened the threshold for
establishing the existence of a dispute. Even if dismissing the need for an applicant State to
provide notice of a dispute, in practice, the requirement stipulated goes far beyond giving notice:
the Court effectively requires an applicant State to set out its legal claim, to direct it specifically to
the prospective-respondent State(s), and to make the alleged harmful conduct clear. All of this
forms part of the “awareness” requirement that the Court’s majority has laid down, seemingly
undermining its own ability to infer the existence of a dispute from the conflicting courses of
conduct of the contending parties.
19. This is not in line with the ICJ’s previous obiter dicta on inference, contradicting it. For
example, in the aforementioned case of Land and Maritime Boundary between Cameroon and
Nigeria (1998), the ICJ stated that - 8 -
“[A] disagreement on a point of law or fact, a conflict of legal views or interests, or
the positive opposition of the claim of one party by the other need not necessarily be
stated expressis verbis. In the determination of the existence of a dispute, as in other
matters, the position or attitude of a party can be established by inference, whatever
the professed view of that party” (para. 89).
20. The view taken by the Court’s majority in the present case contradicts the Hague Court’s
(PCIJ and ICJ) own earlier case-law, in which it has taken a much less formalistic approach to the
establishment of the existence of a dispute. Early in its life, the PCIJ made clear that it did not
attach much importance to “matters of form” ; it added that it could not “be hampered by a mere
9
defect of form” . The PCIJ further stated that “the manifestation of the existence of the dispute in a
specific manner, as for instance by diplomatic negotiations, is not required. (...) [T]he Court
considers that it cannot require that the dispute should have manifested itself in a formal way” . 10
21. The ICJ has, likewise, in its own case-law, avoided to take a very formalistic approach to
the determination of the existence of a dispute . May I recall, in this respect, inter alia, as notable
examples, the Court’s obiter dicta on the issue, in the cases of East Timor (Portugal versus
Australia), of the Application of the Convention against Genocide (Bosnia versus Yugoslavia), and
of Certain Property (Liechtenstein versus Germany). In those cases, the ICJ has considered that
conduct post-dating the critical date (i.e., the date of the filing of the Application) supports a
finding of the existence of a dispute between the parties. In the light of this approach taken by the
ICJ itself in its earlier case-law, it is clear that a dispute exists in each of the present cases lodged
with it by the Marshall Islands.
22. In the case of East Timor (1995), in response to Australia’s preliminary objection that
there was no dispute between itself and Portugal, the Court stated: “Portugal has, rightly or
wrongly, formulated complaints of fact and law against Australia which the latter has denied. By
virtue of this denial, there is a legal dispute” . Shortly afterwards, in the case of the Application of
the Convention against Genocide (Preliminary Objections, 1996), in response to Yugoslavia’s
preliminary objection that the Court did not have jurisdiction under Article IX of the Convention
against Genocide because there was no dispute between the Parties, the Court, contrariwise, found
that there was a dispute between them, on the basis that Yugoslavia had “wholly denied all of
Bosnia and Herzegovina’s allegations, whether at the stage of proceedings relating to the requests
for the indication of provisional measures, or at the stage of the (...) proceedings relating to
8PCIJ, case of Mavrommatis Palestine Concessions, Judgment of 30.08.1924, p. 34.
9
PCIJ, case of Certain German Interests in Polish Upper Silesia case (Jurisdiction), Judgment of 25.08.1925,
p. 14.
10
PCIJ, case of Interpretation of Judgments ns. 7 and 8 — Chorzów Factory, Judgment of 16.12.1927, pp. 10-11.
11Cf., e.g., ICJ, Advisory Opinion (of 26.04.1988) on the Applicability of the Obligation to Arbitrate under
Section 21 of the U.N. Headquarters Agreement of 26.06.1947, pp. 28-29, para. 38; ICJ, case of Nicaragua versus
United States (Jurisdiction and Admissibility), Judgment of 26.11.1984, pp. 428-429, para. 83. Moreover, the critical
date for the determination of the existence of a dispute is, “in principle” (as the ICJ says), the date on which the
application is submitted to the Court (ICJ, case of Questions Relation to the Obligation to Prosecute or Extradite,
Judgment of 20.07.2012, p. 20, para. 46; ICJ, case of Alleged Violations of Sovereign Rights and Maritime Spaces in the
Caribbean Sea, Preliminary Objections, Judgment of 17.03.2016, p. 25, para. 52); the ICJ’s phraseology shows that this
is not a strict rule, but rather one to be approached with flexibility.
12ICJ, case of East Timor (Portugal versus Australia), I.C.J. Reports 1995, p. 100, para. 22 (Judgment
of 30.06.1995). - 9 -
[...preliminary] objections” . 13 Accordingly, “by reason of the rejection by Yugoslavia of the
14
complaints formulated against it” , the ICJ found that there was a dispute.
23. In the case of Certain Property (Preliminary Objections, 2005), as to Germany’s
preliminary objection that there was no dispute between the parties, the ICJ found that complaints
of fact and law formulated by Liechtenstein were denied by Germany; accordingly, “[i]n
conformity with well-established jurisprudence”, — the ICJ concluded, — “by virtue of this
15
denial”, there was a legal dispute between Liechtenstein and Germany . Now, in the present
proceedings before the Court, in each of the three cases lodged with the ICJ by the Marshall Islands
(against India, the United Kingdom and Pakistan), the respondent States have expressly denied the
arguments of the Marshall Islands. May we now take note of the denials which, on the basis of the
Court’s aforementioned jurisprudence constante, evidence the existence of a dispute between the
contending parties .16
4. Contentions in the Case of Marshall Islands versus Pakistan
24. The Marshall Islands argues that Pakistan has breached the customary international law
obligation to negotiate nuclear disarmament in good faith by engaging in a course of conduct that is
contrary to the objective of disarmament. The Marshall Islands further contends that Pakistan, by
its conduct, has breached the customary international law obligation regarding the cessation of the
17
nuclear arms race at an early date . For its part, in its Counter-Memorial, Pakistan discloses a
dispute about the existence of the customary international law obligations asserted by the
Marshall Islands as well as its own compliance with such obligations . 18
25. In part 4 of its Counter-Memorial, e.g., Pakistan states that it emerges from the
Application Instituting Proceedings and the Memorial of the Marshall Islands that its “claims are
based upon: (1) multilateral treaties to which Pakistan is not a party; (2) non-binding
General Assembly resolutions; and (3) a non-binding Advisory Opinion of the Court”. And it
adds:
“As to (1), although the RMI seeks to present its claims as founded in
customary international law, the obligations which it identifies are said to be ‘rooted’
and ‘enshrined’ in Article VI of the NPT, a treaty provision to which the 22-page
Application refers at least 15 times. Pakistan is not a party to the NPT. As to (2)
and (3), due to their non-binding status, these cannot give rise to obligations binding
on Pakistan. None of the above-referenced sources invoked by the RMI is opposable
to Pakistan.
13
ICJ, case of the Application of the Convention against Genocide (Bosnia-Herzegovina versus Yugoslavia,
Preliminary Objections, Judgment of 11.07.1996), I.C.J. Reports 1996, pp. 595 and 614-615, paras. 27-29.
14Ibid., p. 615, para. 29.
15ICJ, case of Certain Property (Liechtenstein versus Germany, Preliminary Objections, Judgment
of 10.02.2005), I.C.J. Reports 2005, p. 19, para. 25, citing the Court’s Judgments in the cases of East Timor,
I.C.J. Reports 1995, p. 100, para. 22; and of the Application of the Convention against Genocide (Preliminary
Objections), I.C.J. Reports 1996, p. 615, para. 29.
16
As the present proceedings relate to jurisdiction, the opposition of views is captured in the various jurisdictional
objections; it would be even more forceful in pleadings on the merits, which, given the Court’s majority decision, will
regrettably no longer take place.
17
Application Instituting Proceedings of the Marshall Islands, pp. 20-21, paras. 52-55.
18For example, part 4 of the Counter-Memorial of Pakistan is titled “The RMI’s Claims against Pakistan are
Manifestly without Legal Merit or Substance”; cf. Counter-Memorial, p. 14. - 10 -
Even if Pakistan (and the Court) were to accept the facts as alleged by the RMI
to be true, these do not give rise to any breach by Pakistan and, as explained below,
the RMI’s asserted injuries and claims are not redressable. As a result, the RMI’s case
against Pakistan is inadmissible and manifestly without any legal merit or substance
and the Court must decline jurisdiction” .
5. General Assessment
26. Always attentive and over-sensitive to the position of nuclear-weapon States [NWS]
(cf. part XII, infra), — such as the respondent States in the present cases of Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament (India, United Kingdom and Pakistan), — the Court, in the cas d’espèce, dismisses
the statements made by the Marshall Islands in multilateral fora before the filing of the
Application, as being, in its view, insufficient to determine the existence of a dispute. Moreover,
the Court’s majority makes tabula rasa of the requirement that “in principle” the date for
determining the existence of the dispute is the date of filing of the application (case of Alleged
Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea, Nicaragua versus
Colombia, Preliminary Objections, Judgment of 17.03.2016, para. 52); as already seen, in its
case-law the ICJ has taken into account conduct post-dating that critical date (cf. supra).
27. In an entirely formalistic reasoning, the Court borrows the obiter dicta it made in the
case of the Application of the CERD Convention (2011), — unduly elevating the threshold for the
determination of the existence of a dispute, — in respect of a compromissory clause under that
Convention (wrongly interpreted anyway, making abstraction of the object and purpose of the
CERD Convention). In the present case, opposing the Marshall Islands to Pakistan, worse still, the
Court’s majority takes that higher standard out of context, and applies it herein, in a case lodged
with the Court on the basis of an optional clause declaration, and concerning an obligation under
customary international law.
28. This attempt to heighten still further the threshold for the determination of the existence
of a dispute (requiring further factual precisions from the applicant) is, besides formalistic,
artificial: it does not follow from the definition of a dispute in the Court’s jurisprudence constante,
as being “a conflict of legal views or of interests”, as already seen (cf. supra). The Court’s
majority formalistically requires a specific reaction of the respondent State to the claim made by
the applicant State (in applying the criterion of “awareness”, amounting, in my perception, to an
obstacle to access to justice), even in a situation where, as in the cas d’espèce, there are two
consistent and distinct courses of conduct on the part of the contending parties.
29. Furthermore, and in conclusion, there is a clear denial by the respondent States (India,
United Kingdom and Pakistan) of the arguments made against them by the applicant State, the
Marshall Islands. By virtue of these denials there is a legal dispute between the Marshall Islands
and each of the three respondent States. The formalistic raising, by the Court’s majority, of the
higher threshold for the determination of the existence of a dispute, is not in conformity with the
jurisprudence constante of the PCIJ and ICJ on the matter (cf. supra). Furthermore, in my
perception, it unduly creates a difficulty for the very access to justice (by applicants) at
international level, in a case on a matter of concern to the whole of humankind. This is most
regrettable.
1. Counter-Memorial of Pakistan, p. 14, paras. 4.4-4.6. - 11 -
III. U.N. GENERAL A SSEMBLY R ESOLUTIONS AND O PINIO JURIS
30. In the course of the proceedings in the present cases of Obligations Concerning
Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, both
the applicant State (the Marshall Islands) and the respondent States (India, United Kingdom and
Pakistan) addressed U.N. General Assembly resolutions on the matter of nuclear disarmament
(cf. part VI, infra)This is the point that I purport to consider, in sequence, in the present
Dissenting Opinion, namely, in addition to the acknowledgment before the ICJ (1995) of the
authority and legal value of General Assembly resolutions on nuclear weapons as breach of the
U.N. Charter, the distinct series of: a) U.N. General Assembly resolutions on Nuclear Weapons
(1961-1981); b) UN General Assembly Resolutions on Freeze of Nuclear Weapons (1982-1992);
c) U.N. General Assembly Resolutions Condemning Nuclear Weapons (1982-2015);
d) U.N. General Assembly Resolutions Following up the ICJ’s 1996 Advisory Opinion
(1996-2015).
1. U.N. General Assembly Resolutions on Nuclear Weapons (1961-1981)
31. The 1970s was the First Disarmament Decade: it was so declared by General Assembly
resolution A/RES/2602 E (XXIV) of 16.12.1969, followed by two other resolutions of 1978
20
and 1980 on non-use of nuclear weapons and prevention of nuclear war . The General
Assembly specifically called upon States to intensify efforts for the cessation of the nuclear arms
race, nuclear disarmament and the elimination of other weapons of mass destruction. Even before
that, the ground-breaking General Assembly resolution 1653 (XVI), of 24.11.1961, advanced its
célèbre “Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons” (cf.
part V, infra). In 1979, when the First Disarmament Decade was coming to an end, the General
Assembly, — disappointed that the objectives of the first Decade had not been realized, —
declared the 1980s as a Second Disarmament Decade . Likewise, the 1990s were subsequently
declared the Third Disarmament Decade .
32. In this first period under review (1961-1981), the U.N. General Assembly paid
continuously special attention to disarmament issues and to nuclear disarmament in particular.
May I refer to General Assembly resolutions A/RES/2934 of 29.11.1972; A/RES/2936 of
29.11.1972; A/RES/3078 of 06.12.1973; A/RES/3257 of 09.12.1974; A/RES/3466 of
11.12.1975; A/RES/3478 of 11.12.1975; A/RES/31/66 of 10.12.1976; A/RES/32/78 of
12.12.1977; A/RES/33/71 of 14.12.1978; A/RES/33/72 of 14.12.1978; A/RES/33/91 of
16.12.1978; A/RES/34/83 of 11.12.1979; A/RES/34/84 of 11.12.1979; A/RES/34/85 of
11.12.1979; A/RES/34/86 of 11.12.1979; A/RES/35/152 of 12.12.1980; A/RES/35/155 of
12.12.1980; A/RES/35/156 of 12.12.1980; A/RES/36/81 of 09.12.1981; A/RES/36/84 of
09.12.1981; A/RES/36/92 of 09.12.1981; A/RES/36/94 of 09.12.1981; A/RES/36/95 of
09.12.1981; A/RES/36/97 of 09.12.1981; and A/RES/36/100 of 09.12.1981.
33. In 1978 and 1982, the U.N. General Assembly held two Special Sessions on Nuclear
Disarmament (respectively, the 10th and 12th sessions), where the question of nuclear disarmament
featured prominently amongst the themes discussed. In fact, it was stressed that the most
immediate goal of disarmament is the elimination of the danger of a nuclear war. In a subsequent
2Namely, in sequence, General Assembly resolutions A/RES/33/71B of 14.12.1978, and A/RES/35/152D
of 12.12.1980.
21
Cf. General Assembly resolutions A/RES/34/75 of 11.12.1979, and A/RES/35/46 of 03.12.1980.
2Cf. General Assembly resolutions A/RES/43/78L of 07.12.1988, and A/RES/45/62 A of 04.12.1990. - 12 -
series of its resolutions (in the following period of 1982-2015), as we shall see, the General
Assembly moved on straightforwardly to the condemnation of nuclear weapons (cf. infra).
34. In its resolutions adopted during the present period of 1972-1981, the General Assembly
repeatedly drew attention to the dangers of the nuclear arms race for humankind and the survival of
civilization and expressed apprehension concerning the harmful consequences of nuclear testing for
the acceleration of such arms race. Thus, the General Assembly reiterated its condemnation of all
nuclear weapon tests, in whatever environment they may be conducted. It called upon States that
had not yet done so to adhere to the 1963 Test Ban Treaty (banning nuclear tests in the atmosphere,
in outer space and under water) and called for the conclusion of a comprehensive test ban treaty,
which would ban nuclear weapons tests in all environments (e.g. underground as well). Pending
the conclusion of such treaty, it urged NWS to suspend nuclear weapon tests in all environments.
35. The General Assembly also emphasised that NWS bear a special responsibility for
fulfilling the goal of achieving nuclear disarmament, and in particular those nuclear weapon States
that are parties to international agreements in which they have declared their intention to achieve
the cessation of the nuclear arms race. It further called specifically on the heads of State of the
USSR and the United States to implement the procedures for the entry into force of the Strategic
Arms Limitation agreement (so-called “SALT” agreement).
36. At the 84th plenary meeting, following the 10th Special Session on Disarmament, the
General Assembly declared that the use of nuclear weapons is a “violation of the Charter of the
United Nations” and “a crime against humanity”, and that the use of nuclear weapons should be
23
prohibited, pending nuclear disarmament . The General Assembly further noted the aspiration of
non-nuclear weapon States [NNWS] to prevent nuclear weapons from being stationed on their
territories through the establishment of nuclear-weapon-free zones, and supported their efforts to
conclude an international Convention strengthening the guarantees for their security against the use
or threat of use of nuclear weapons. As part of the measures to facilitate the process of nuclear
disarmament and the non-proliferation of nuclear weapons, it requested the Committee on
Disarmament to consider the question of the cessation and prohibition of the production of
fissionable material for weapons purposes.
2. U.N. General Assembly Resolutions on Freeze of Nuclear Weapons (1982-1992)
37. Every year in the successive period 1982-1992 (following up on the 10th and 12th
Special Sessions on Nuclear Disarmament, held in 1978 and 1982, respectively), the
General Assembly adopted resolutions also calling for a nuclear-weapons freeze. May I refer to
General Assembly resolutions A/RES/37/100A of 13.12.1982; A/RES/38/73E of 15.12.1983;
A/RES/39/63C of 12.12.1984; A/RES/40/151C of 16.12.1985; A/RES/41/60E of 03.12.1986;
A/RES/42/39B of 30.11.1987; A/RES/43/76B of 07.12.1988; A/RES/44/117D of 15.12.1989;
A/RES/45/59D of 04.12.1990; A/RES/46/37C of 06.12.1991; and A/RES/47/53E of 09.12.1992.
38. These resolutions on freeze of nuclear weapons note that existing arsenals of nuclear
weapons are more than sufficient to destroy all life on earth. They express the conviction that
lasting world peace can be based only upon the achievement of general and complete disarmament,
under effective international control. In this connection, the aforementioned General Assembly
resolutions note that the highest priority objectives in the field of disarmament have to be nuclear
disarmament and the elimination of all weapons of mass destruction. They at last call upon NWS
23Cf. General Assembly resolutions A/RES/33/71B of 14.12.1978, and A/RES/35/152D of 12.12.1980. - 13 -
to agree to reach “a freeze on nuclear weapons”, which would, inter alia, provide for “a
simultaneous total stoppage of any further production of fissionable material for weapons
purposes”.
39. Such nuclear-weapons freeze is not seen as an end in itself but as the most effective first
step towards: a) halting any further increase and qualitative improvement in the existing arsenals
of nuclear weapons; and b) activating negotiations for the substantial reduction and qualitative
limitation of nuclear weapons. From 1989 onwards, these resolutions also set out the structure and
scope of the prospective joint declaration through which all nuclear-weapons States would agree on
a nuclear-arms freeze. Such freeze would encompass: a) a comprehensive test ban; b) cessation of
the manufacture of nuclear weapons; c) a ban on all further deployment of nuclear weapons; and
d) cessation of the production of fissionable material for weapons purposes.
3. U.N. General Assembly Resolutions on Nuclear Weapons as Breach of the U.N. Charter
(Acknowledgment before the ICJ, 1995)
40. Two decades ago, when U.N. General Assembly resolutions condemning nuclear
weapons were not as numerous as they are today, they were already regarded as authoritative in the
views of States from distinct continents. This was made clear, e.g., by States which participated in
the advisory proceedings of 30 October to 15 November 1995 before the ICJ, conducive to its
Advisory Opinion of 08.07.1996 on the Threat or Use of Nuclear Weapons. On the occasion, the
view was upheld that those General Assembly resolutions expressed a “general consensus” and had
a relevant “legal value” . Resolution 1653 (XVI), of 1961, e.g., was invoked as a “law-making”
resolution of the General Assembly, in stating that the use of nuclear weapons is contrary to the
letter and spirit, and aims, of the United Nations, and, as such, a “direct violation” of the
U.N. Charter .25
41. It was further stated that, already towards the end of 1995, “numerous”
General Assembly resolutions and declarations confirmed the illegality of the use of force,
26
including nuclear weapons . Some General Assembly resolutions (1653 (XVI), of 24.11.1961;
33/71B of 14.12.1978; 34/83G of 11.12.1979; 35/152D of 12.12.1980; 36/92I of 09.12.1981;
45/59B of 04.12.1990; 46/37D of 06.12.1991) were singled out for having significantly declared
that the use of nuclear weapons would be a violation of the U.N. Charter itself . The view was
expressed that the series of General Assembly resolutions (starting with resolution 1653 (XVI),
of 24.11.1961) amounted to “an authoritative interpretation” of humanitarian law treaties as well as
the U.N. Charter .28
42. In the advisory proceedings of 1995 before the ICJ, it was further recalled that
General Assembly resolution 1653 (XVI) of 1961 was adopted in the form of a declaration, being
thus “an assertion of the law”, and, ever since, the General Assembly’s authority to adopt such
declaratory resolutions (in condemnation of nuclear weapons) was generally accepted; such
resolutions declaring the use of nuclear weapons “unlawful” were regarded as ensuing from the
2ICJ, doc. CR 95/25, of 03.11.1995, pp. 52-53 (statement of Mexico).
25
ICJ, doc. CR 95/22, of 30.10.1995, pp. 44-45 (statement of Australia).
2ICJ, doc. CR 95/26, of 06.11.1995, pp. 23-24 (statement of Iran).
2ICJ, doc. CR 95/28, of 09.11.1995, pp. 62-63 (statement of the Philippines).
28
ICJ, doc. CR 95/31, of 13.11.1995, p. 46 (statement of Samoa). - 14 -
29
exercise of an “inherent” power of the General Assembl30. The relevance of General Assembly
resolutions has been reckoned by large groups of States
43. Ever since the aforementioned acknowledgment of the authority and legal value of
General Assembly resolutions in the course of the pleadings of late 1995 before the ICJ, those
resolutions continue to grow in number until today, clearly forming, in my perception, an opinio
juris communis as to nuclear disarmament. In addition to those aforementioned, may I also review,
in sequence, two other series of General Assembly resolutions, extending to the present, namely:
the longstanding series of General Assembly resolutions condemning nuclear weapons
(1982-2015), and the series of General Assembly resolutions following up the ICJ’s 1996 Advisory
Opinion (1997-2015).
4. U.N. General Assembly Resolutions Condemning Nuclear Weapons (1982-2015)
44. In the period 1982-2015, there is a long series of U.N. General Assembly resolutions
condemning nuclear weapons. May I refer to General Assembly resolutions A/RES/37/100C of
09.12.1982; A/RES/38/73G of 15.12.1983; A/RES/39/63H of 12.12.1984; A/RES/40/151F of
16.12.1985; A/RES/41/60F of 03.12.1986; A/RES/42/39C of 30.11.1987; A/RES/43/76E of
07.12.1988; A/RES/44/117C of 15.12.1989; A/RES/45/59B of 04.12.1990; A/RES/46/37D of
06.12.1991; A/RES/47/53C of 09.12.1992; A/RES/48/76B of 16.12.1993; A/RES/49/76E of
15.12.1994; A/RES/50/71E of 12.12.1995; A/RES/51/46D of 10.12.1996; A/RES/52/39C of
09.12.1997; A/RES/53/78D of 04.12.1998; A/RES/54/55D of 01.12.1999; A/RES/55/34G of
20.11. 2000; A/RES/56/25B of 29.11.2001; A/RES/57/94 of 22.11.2002; A/RES/58/64 of
08.12.2003; A/RES/59/102 of 03.12.2004; A/RES/60/88 of 08.12.2005; A/RES/61/97 of
06.12.2006; A/RES/62/51 of 05.12.2007; A/RES/63/75 of 02.02.2008; A/RES/64/59 of
02.12.2009; A/RES/65/80 of 08.12.2010; A/RES/66/57 of 02.12.2011; A/RES/67/64 of
03.12.2012; A/RES/68/58 of 05.12.2013; A/RES/69/69 of 02.12.2014; and A/RES/70/62 of
07.12.2015.
45. In those resolutions, the General Assembly warned against the threat by nuclear weapons
to the survival of humankind. They were preceded by two ground-breaking historical resolutions,
namely, General Assembly resolution 1(I) of 24.01.1946, and General Assembly
resolution 1653 (XVI), of 24.11.1961 (cf. infra). In this new and long series of resolutions
condemning nuclear weapons (1982-2015), at the opening of their preambular paragraphs the
General Assembly states, year after year, that it is
“Alarmed by the threat to the survival of mankind and to the life-sustaining
system posed by nuclear weapons and by their use, inherent in the concepts of
deterrence,
Convinced that nuclear disarmament is essential for the prevention of nuclear
war and for the strengthening of international peace and security,
Further convinced that a prohibition of the use or threat of use of nuclear
weapons would be a step towards the complete elimination of nuclear weapons
leading to general and complete disarmament under strict and effective international
control”.
29
ICJ, doc. CR 95/27, of 07.11.1995, pp. 58-59 (statement of Malaysia).
30Cf., e.g., ICJ, doc. CR 95/35, of 15.11.1995, p. 34, and cf. p. 22 (statement of Zimbabwe, on its initiative as
Chair of the Non-Aligned Movement). - 15 -
46. Those General Assembly resolutions next significantly reaffirm, in their preambular
paragraphs, year after year, that
“the use of nuclear weapons would be a violation of the Charter of the United Nations
and a crime against humanity, as declared in its resolutions 1653 (XVI) of 24.11.1961,
33/71B of 14.12.1978, 34/83G of 11.12.1979, 35/152D of 12.12.1980 and 36/92I
of 09.12.1981”.
47. Still in their preambular paragraphs, those General Assembly resolutions further note
with regret the inability of the Conference on Disarmament to undertake negotiations with a view
to achieving agreement on a nuclear disarmament Convention during each previous year. In their
operative part, those resolutions reiterate, year after year, the request that the Committee on
Disarmament undertakes, on a priority basis, negotiations aiming at achieving agreement on an
international Convention prohibiting the use or threat of use of nuclear weapons under any
circumstances, taking as a basis the text of the draft Convention on the Prohibition of the Use of
Nuclear Weapons.
48. From 1989 (44th session) onwards, those resolutions begin to note specifically that a
multilateral agreement prohibiting the use or threat of use of nuclear weapons should strengthen
international security and help to create the climate for negotiations leading to the complete
elimination of nuclear weapons. Subsequently, those resolutions come to stress, in particular, that
an international Convention would be a step towards the complete elimination of nuclear weapons,
leading to general and complete disarmament, under strict and effective international control.
31
49. Clauses of the kind then evolve, from 1996 onwards , to refer expressly to a time
framework, i.e., that an international Convention would be an important step in a phased
programme towards the complete elimination of nuclear weapons, within a specific framework of
time. More recent resolutions also expressly refer to the determination to achieve an international
Convention prohibiting the development, production, stockpiling and use of nuclear weapons,
leading to their ultimate destruction.
5. U.N. General Assembly Resolutions Following up the ICJ’s 1996 Advisory Opinion
(1996-2015)
50. Ever since the delivery, on 08.07.1996, of the ICJ’s Advisory Opinion on Nuclear
Weapons to date, the General Assembly has been adopting a series of resolutions (1996-2015), as
its follow up. May I refer to General Assembly resolutions A/RES/51/45 of 10.12.1996;
A/RES/52/38 of 09.12.1997; A/RES/53/77 of 04.12.1998; A/RES/54/54 of 01.12.1999;
A/RES/55/33 of 20.11.2000; A/RES/56/24 of 29.11.2001; A/RES/57/85 of 22.11.2002;
A/RES/58/46 of 08.12.2003; A/RES/59/83 of 03.12.2004; A/RES/60/76 of 08.12.2005;
A/RES/61/83 of 06.12.2006; A/RES/62/39 of 05.12.2007; A/RES/63/49 of 02.12.2008;
A/RES/64/55 of 02.12.2009; A/RES/65/76 of 08.12.2010; A/RES/66/46 of 02.12.2011;
A/RES/67/33 of 03.12.2012; A/RES/68/42 of 05.12.2013; A/RES/69/43 of 02.12.2014; and
A/RES/70/56 of 07.12.2015. These resolutions make a number of significant statements.
51. The series of aforementioned General Assembly resolutions on follow-up to the
1996 Advisory Opinion of the ICJ (1996-2015) begins by expressing the General Assembly’s
belief that “the continuing existence of nuclear weapons poses a threat to humanity” and that “their
31Cf., e.g., inter alia, General Assembly resolution A/RES/50/71E, of 12.12.1995. - 16 -
use would have catastrophic consequences for all life on earth”, and, further, that “the only defence
against a nuclear catastrophe is the total elimination of nuclear weapons and the certainty that they
will never be produced again” (2nd preambular paragraph). The General Assembly resolutions
reiteratedly reaffirm “the commitment of the international community to the realization of the goal
of a nuclear-weapon-free world through the total elimination of nuclear weapons” (3rd preambular
paragraph). They recall their request to the Conference on Disarmament to establish an ad hoc
Committee to commence negotiations on a phased programme of nuclear disarmament, aiming at
the elimination of nuclear weapons, within a “time bound framework”; they further reaffirm the
role of the Conference on Disarmament as the single multilateral disarmament negotiating forum.
52. The General Assembly then recalls, again and again, that “the solemn obligations of
States Parties, undertaken in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons
(NPT), particularly 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” (4th preambular paragraph).
They express the goal of achieving a legally binding prohibition on the development, production,
testing, deployment, stockpiling, threat or use of nuclear weapons, and their destruction under
“effective international control”. They significantly call upon all States to fulfil promptly the
obligation leading to an early conclusion of a Convention prohibiting the development, production,
testing, dep32yment, stockpiling, transfer, threat or use of nuclear weapons and providing for their
elimination .
53. Those resolutions (from 2003 onwards) express deep concern at the lack of progress
made in the implementation of the “thirteen steps” agreed to, at the 2000 Review Conference, for
the implementation of Article VI of the NPT. The aforementioned series of General Assembly
resolutions include, from 2010 onwards, an additional (6th) preambular paragraph, expressing
“deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons”, and
reaffirming, in this context, “the need for all States at all times to comply with applicable
international law, including international humanitarian law”. Those follow-up General Assembly
resolutions further recognize “with satisfaction that the Antarctic Treaty, the Treaties of Tlatelolco,
Rarotonga, Bangkok and Pelindaba, and the Treaty on a Nuclear-Weapon-Free Zone in Central
Asia, as well as Mongolia’s nuclear-weapon-free status, are gradually freeing the entire southern
hemisphere and adjacent areas covered by those treaties from nuclear weapons” (10th preambular
paragraph).
54. More recent resolutions (from 2013 onwards) are significantly further expanded. They
call upon all NWS to undertake concrete disarmament efforts, stressing that all States need to make
special efforts to achieve and maintain a world without nuclear weapons. They also take note of
the “Five-Point Proposal on Nuclear Disarmament” made by the U.N. Secretary-General (cf. part
XVI, infra), and recognize the need for a multilaterally negotiated and legally binding instrument to
assure that NNWS stand against the threat or use of nuclear weapons, pending the total elimination
of nuclear weapons. In their operative part, the same series of General Assembly resolutions
underline the ICJ’s unanimous conclusion, in its 1996 Advisory Opinion on the Threat or Use of
Nuclear Weapons, 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” (para. 1).
55. Looking at this particular series of General Assembly follow-up resolutions as a whole, it
should not pass unnoticed that they contain paragraphs referring to the obligation to pursue and
3Note that in earlier resolutions, the following year is explicitly referenced, i.e., States should commence
negotiations in “the following year”. This reference is removed in later resolutions. - 17 -
conclude, in good faith, negotiations leading to nuclear disarmament, without any reference to the
NPT or to States Parties to it. They rather refer to that obligation as a general one, not grounded on
any treaty provision. All States, and not only States Parties to the NPT, are called upon to fulfil
promptly that obligation, incumbent upon all States, to report (to the Secretary-General) on their
compliance with the resolutions at issue. There are, notably, other paragraphs in those resolutions
that are specifically directed at nuclear-weapon States, or make specific references to the NPT. In
sum, references to all States are deliberate, and in the absence of any references to a treaty or other
specifically-imposed international obligation, this thus points towards a customary law obligation
to negotiate and achieve nuclear disarmament.
IV. U.N. S ECURITY C OUNCIL RESOLUTIONS AND OPINIO JURIS
56. Like the U.N. General Assembly, the U.N. Security Council has also often dwelt upon
the matter at issue. May I refer, inter alia, to Security Council resolutions S/23500, of 31.01.1992;
S/RES/984, of 11.04.1995; S/RES/1540, of 28.04.2004; S/RES/1673, of 27.04.2006;
S/RES/1810, of 25.04.2008; S/RES/1887, of 24.09.2009; and S/RES/1997, of 20.04.2011, — to
33
which others can be added . May I at first recall that, at a Security Council’s meeting at the level
of Heads of State and Government, held on 31.01.1992, the President of the U.N. Security Council
made a statement on behalf of the members of the Security Council that called upon all member
States to fulfil their obligations on matters of arms control and disarmament, and to prevent the
34
proliferation of all weapons of mass destruction (encompassing nuclear, chemical, and biological
weapons).
57. The statement expressed the feeling prevailing at the time that the end of the Cold War
“has raised hopes for a safer, more equitable and more humane world”, giving now to the world
“the best chance of achieving international peace and security since the foundation of the
35
United Nations” . The members of the Security Council then warned against the threat to
international peace and security of all weapons of mass destruction, and expressed their
commitment to take appropriate action to prevent “the spread of technology related to the research
for or production of such weapons” . They further stressed the importance of “the integral role in
the implementation” of the NPT of “fully effective IAEA safeguards”, and of “effective export
controls”; they added that they would take “appropriate measures in the case of any violations
notified to them by the IAEA” .37
58. The proliferation of all weapons of mass destruction is defined in the aforementioned
Security Council statement, notably, as a threat to international peace and security, — a point
which was to be referred to, in subsequent resolutions of the Security Council, to justify its action
under Chapter VII of the U.N. Charter. In three of its subsequent resolutions, in a preambular
paragraph (resolutions 1540, of 28.04.2004, para. 2; 1810, of 25.04.2008, para. 3; and 1887,
of 24.09.2009, para. 2), the Security Council reaffirms the statement of its President (adopted
on 31.01.1992), and, also in other resolutions, further asserts (also in preambular paragraphs) that
33
Cf. also Security Council resolutions S/RES/1695 of 15.07.2006; S/RES/1718 of 14.10.2006; S/RES/1874
of 12.06.2009;S/RES/1928 of 07.06.2010; S/RES/2094 of 07.03.2013; S/RES/2141 of 05.03.2014; S/RES/2159
of 09.06.2014; S/RES/2224 of 09.06.2015; S/RES/2270 of 02.03.2016. In preambular paragraphs of all these
Security Council resolutions, the Security Council reaffirms, time and time again, that the proliferation of nuclear,
chemical and biological weapons, and their means of delivery, constitutes a threat to international peace and security.
34
U.N. doc. S/23500, of 31.01.1992, pp. 1-5.
3Ibid., pp. 2 and 5.
3Ibid., p. 4.
37
Ibid., p. 4. - 18 -
the proliferation of nuclear, chemical and biological weapons is a threat to international peace and
security and that all States need to take measures to prevent such proliferation.
59. In resolution 1540/2004 of 28.04.2004, adopted by the Security Council acting under
chapter VII of the U.N. Charter, it sets forth legally binding obligations on all U.N. member States
to set up and enforce appropriate and effective measures against the proliferation of nuclear,
chemical, and biological weapons, — including the adoption of controls and a reporting procedure
for U.N. member States to a Committee of the Security Council (sometimes referred to as the
“1540 Committee”). Subsequent Security Council resolutions reaffirm resolution 1540/2004 and
call upon U.N. member States to implement it.
60. The U.N. Security Council refers, in particular, in two of its resolutions (984/1995,
of 11.04.1995; and 1887/2009 of 24.09.2009), to the obligation to pursue negotiations in good faith
in relation to nuclear disarmament. In its preamble, Security Council resolution 984/1995 affirms
the need for all States Parties to the NPT “to comply fully with all their obligations”; in its
operative part, it further “[u]rges all States, as provided for in Article VI of the Treaty on the
Non-Proliferation of Nuclear Weapons, to pursue negotiations in good faith on effective measures
relating to nuclear disarmament and on a treaty on general and complete disarmament under strict
and effective international control which remains a universal goal” (para. 8). It should not pass
unnoticed that Security Council resolution 984/1995 pre-dates the ICJ’s 1996 Advisory Opinion on
the Threat or Use of Nuclear Weapons.
61. And Security Council resolution 1887/2009 of 24.09.2009, in its operative part, again
calls upon States Parties to the NPT “to comply fully with all their obligations and fulfil their
commitments under the Treaty” (para. 2), and, in particular, “pursuant to Article VI of the Treaty,
to undertake to pursue negotiations in good faith on effective measures relating to nuclear arms
reduction and disarmament”; furthermore, it calls upon “all other States to join in this endeavour”
(para. 5). It should not pass unnoticed that it is a general call, upon all U.N. member States,
whether or not Parties to the NPT.
62. In my perception, the aforementioned resolutions of the Security Council, like those of
the General Assembly (cf. supra), addressing all U.N. member States, provide significant elements
of the emergence of an opinio juris, in support of the gradual formation of an obligation of
customary international law, corresponding to the conventional obligation under Article VI of the
NPT. In particular, the fact that the Security Council calls upon all States, and not only States
Parties to the NPT, to pursue negotiations towards nuclear disarmament in good faith (or to join the
NPT State Parties in this endeavour) is significant. It is an indication that the obligation is
incumbent on all U.N. member States, irrespectively of their being or not Parties to the NPT.
V. T HE SAGA OF THE U NITED NATIONS IN THE C ONDEMNATION OF NUCLEAR W EAPONS
63. The U.N. resolutions (of the General Assembly and the Security Council) that I have just
reviewed (supra) portray the United Nations’ longstanding saga in the condemnation of nuclear
weapons. This saga goes back to the birth and earlier years of the United Nations. In fact, nuclear
weapons were not in the minds of the Delegates to the San Francisco Conference of June 1945, at
the time when the United Nations Charter was adopted on 26.06.1945. The U.S. dropping of
3Cf. e.g. Security Council resolutions 1540, of 28.04.2004; 1673, of 27.04.2006; 1810, of 25.04.2008; 1977,
of 20.04.2011And cf. also resolutions 1695, of 15.071718, of 14.10.2001874, of 12.06.20091928,
of 07.06.2010; 2094, of 07.03.2013; 2141, of 05.03.2014; 2159, of 09.06.2014; 2224, of 09.06.2015; and 2270,
of 02.03.2016. - 19 -
atomic bombs over Hiroshima and Nagasaki, heralding the nuclear age, occurred on 06
and 09 August 1945, respectively, over ten weeks before the U.N. Charter’s entry into force,
on 24.10.1945.
64. As soon as the United Nations Organization came into being, it promptly sought to equip
itself to face the new challenges of the nuclear age: the General Assembly’s very first
resolution, — resolution 1(I) of 24.01.1946, — thus, established a Commission to deal with the
matter, entrusted with submitting reports to the Security Council “in the interest of peace and
security” (para. 2(a)), as well as with making proposals for “control of atomic energy to the extent
necessary to ensure its use only for peaceful purposes”, and for “the elimination from national
armaments of atomic weapons and of all other major weapons adaptable to mass destruction”
(para. 5(b)(c)).
65. One decade later, in 1956, the International Atomic Energy Agency (IAEA) was
established. And half a decade later, in 1961, the General Assembly adopted a ground-breaking
resolution: it would be proper here to recall the precise terms of the historical General Assembly
resolution 1653 (XVI), of 24.11.1961, titled “Declaration on the Prohibition of the Use of Nuclear
and Thermo-Nuclear Weapons”. That célèbre resolution 1653 (1961) remains contemporary today,
and, 55 years later, continues to require close attention; in it, the General Assembly
“Mindful of its responsibility under the Charter of the United Nations in the
maintenance of international peace and security, as well as in the consideration of
principles governing disarmament,
Gravely concerned that, while negotiations on disarmament have not so far
achieved satisfactory results, the armaments race, particularly in the nuclear and
thermo-nuclear fields, has reached a dangerous stage requiring all possible
precautionary measures to protect humanity and civilization from the hazard of
nuclear and thermo-nuclear catastrophe,
Recalling that the use of weapons of mass destruction, causing unnecessary
human suffering, was in the past prohibited, as being contrary to the laws of humanity
and to the principles of international law, by international declarations and binding
agreements, such as the Declaration of St. Petersburg of 1868, the Declaration of the
Brussels Conference of 1874, the Conventions of The Hague Peace Conferences
of 1899 and 1907, and the Geneva Protocol of 1925, to which the majority of nations
are still parties,
Considering that the use of nuclear and thermo-nuclear weapons would bring
about indiscriminate suffering and destruction to mankind and civilization to an even
greater extent than the use of those weapons declared by the aforementioned
international declarations and agreements to be contrary to the laws of humanity and a
crime under international law,
Believing that the use of weapons of mass destruction, such as nuclear and
thermo-nuclear weapons, is a direct negation of the high ideals and objectives which
the United Nations has been established to achieve through the protection of
succeeding generations from the scourge of war and through the preservation and
promotion of their cultures,
1. Declares that: - 20 -
a) The use of nuclear and thermo-nuclear weapons is contrary to the spirit, letter
and aims of the United Nations and, as such, a direct violation of the Charter
of the United Nations;
b) The use of nuclear and thermo-nuclear weapons would exceed even the scope of
war and cause indiscriminate suffering and destruction to mankind and
civilization and, as such, is contrary to the rules of international law and to
the laws of humanity;
c) The use of nuclear and thermo-nuclear weapons is a war directed not against an
enemy or enemies alone but also against mankind in general, since the
peoples of the world not involved in such a war will be subjected to all the
evils generated by the use of such weapons;
d) Any State using nuclear and thermo-nuclear weapons is to be considered as
violating the Charter of the United Nations, as acting contrary to the laws of
humanity and as committing a crime against mankind and civilization;
2. Requests the Secretary-General to consult the Governments of Member States to
ascertain their views on the possibility of convening a Special Conference for
signing a Convention on the prohibition of the use of nuclear and thermo-nuclear
weapons for war purposes and to report on the results of such consultation to the
General Assembly at its XVIIth session”.
66. Over half a century later, the lucid and poignant declaration contained in
General Assembly resolution 1653 (1961) appears endowed with permanent topicality, as the
whole international community remains still awaiting for the conclusion of the propounded general
Convention on the prohibition of nuclear and thermo-nuclear weapons: nuclear disarmament
remains still a goal to be achieved by the United Nations today, as it was in 1961. The
Comprehensive Nuclear-Test-Ban Treaty (CTBT), adopted on 24.09.1996, has not yet entered into
force, although 164 States have ratified it to date.
67. It is beyond the scope of the present Dissenting Opinion to dwell upon t39 reasons why,
already for two decades, one remains awaiting for the CTBT’s entry into force . Suffice it here to
recall that the CTBT provides (Article XIV) that for it to enter into force, the 44 States specified in
its Annex 2 need to ratify it ; a number of these States have not yet ratified the CTBT, including
some NWS, like India and Pakistan. NWS have invoked distinct reasons for their positions
conditioning nuclear disarmament (cf. infra). The entry into force of the CTBT has thus been
delayed.
68. Recently, in a panel in Vienna (on 27.04.2016) in commemoration of the
20th anniversary of the CTBT, the U.N. Secretary-General (Ban Ki-moon) pondered that there
have been advances in the matter, but there remains a long way to go, in the determination “to
bring into force a legally binding prohibition against all nuclear tests”. He recalled to have
3For a historical account and the perspectives of the CTBT, cf., e.g., K.A. Hansen, The Comprehensive Nuclear
Test Ban Treaty, Stanford, Stanford University Press, 2006, pp. 1-84; [Various Authors,] Nuclear Weapons after the
Comprehensive Test Ban Treaty (ed. E. Arnett), Stockholm-Solna/Oxford, SIPRI/Oxford University Press, 1996,
pp. 1-141; J. Ramaker, J. Mackby, P.D. Marshall and R. Geil, The Final Test — A History of the Comprehensive
Nuclear-Test-Ban Treaty Negotiations, Vienna, Ed. Prep. Comm. of CTBTO, 2003, pp. 1-265.
4Those 44 States, named in Annex 2, participated in the CTBT negotiations at the Conference on Disarmament,
from 1994 to 1996, and possessed nuclear reactors at that time. - 21 -
“repeatedly pointed to the toxic legacy that some 2,000 tests left on people and the
environment in parts of Central Asia, North Africa, North America and the
South Pacific. Nuclear testing poisons water, causes cancers, and pollutes the area
with radioactive fall-out for generations and generations to come. We are here to
honour the victims. The best tribute to them is action to ban and to stop nuclear
testing. Their sufferings should teach the world to end this madness” . 41
He then called on the (eight) remaining CTBT Annex 2 States “to sign and ratify the Treaty
without further delay”, so as to strengthen its goal of universality; in this way, — he concluded, —
“we can leave a safer world, free of nuclear tests, to our children and to succeeding generations of
this world” .2
69. To this one may add the unaccomplished endeavours of the U.N. General Assembly
Special Sessions on Disarmament. Of the three Special Sessions held so far (in 1978, 10th Special
Session; in 1982, 12th Special Session; and in 1988, 15th Special Session) , the first one appears
to have been the most significant one so far. The Final Document adopted unanimously (without a
vote) by the 1st Special Session on Disarmament sets up a programme of action on disarmament
and the corresponding mechanism in its current form.
70. That Final Document of the first General Assembly Special Session on
Disarmament (1978) addresses nuclear disarmament in its distinct aspects. In this respect, the
General Assembly begins by observing that the accumulation of nuclear weapons constitutes a
threat to the future of humankind (para. 1), in effect “the greatest danger” to humankind and to “the
survival of civilization” (para. 47). It adds that the arms race, particularly in its nuclear aspect, is
incompatible with the principles enshrined in the United Nations Charter (para. 12). In its view,
the most effective guarantee against the dangers of nuclear war is the complete elimination of
44
nuclear weapons (paras. 8 and 56) .
71. While disarmament is the responsibility of all States, the General Assembly asserts that
NWS have the primary responsibility for nuclear disarmament. There is pressing need of “urgent
negotiations of agreements” to that end, and in particular to conclude “a treaty prohibiting
nuclear-weapon tests” (paras. 50-51). It further stresses the importance of nuclear-weapon-free
zones that have been established or are the subject of negotiations in various parts of the globe
(paras. 60-64).
72. The Conference on Disarmament, — since 1979 the sole multilateral
disarmament-negotiating forum of the international community, — has helped to negotiate
45
multilateral arms-limitation and disarmament agreements . It has focused its work on four main
issues, namely: nuclear disarmament, prohibition of the production of fissile material for weapon
use, prevention of arms race in outer space, and negative security assurances. Yet, since the
adoption of the CTBT in 1996, the Conference on Disarmament has been largely deadlocked, in
4U.N. doc. SG/SM/17709-DC/3628, of 27.04.2016, pp. 1-2.
4Ibid., p. 2.
43
Ever since, several G.A. resolutions have called for a 4th Special Session on Disarmament, but it has not yet
taken place.
4And cf. also paras. 18 and 20.
45
E.g., the aforementioned NPT, CTBT, the Biological Weapons Convention, and the Chemical Weapons
Convention, in addition to the seabed treaties, and the Convention on the Prohibition of Military or Any Other Hostile
Use of Environmental Modification Techniques. - 22 -
face of the invocation of divergent security interests, added to the understanding that nuclear
weapons require mutuality; furthermore, the Rules of Procedure of the Conference provide that all
decisions must be adopted by consensus. In sum, some States blame political factors for causing its
long-standing stalemate, while others attribute it to outdated procedural rules.
73. After all, in historical perspective, some advances have been attained in the last decades
in respect of other weapons of mass destruction, as illustrated by the adoption of the Convention on
the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on their Destruction (on 10.04.1972), as well as the Convention on the
Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on
their Destruction (on 13.01.1993); distinctly from the CTBT (supra), these two Conventions have
already entered into force (on 26.03.1975, and on 29.04.1997, respectively).
74. If we look at conventional international law only, weapons of mass destruction
(poisonous gases, biological and chemical weapons) have been outlawed; yet, nuclear weapons, far
more destructive, have not been banned yet. This juridical absurdity nourishes the positivist
myopia, or blindness, in inferring therefrom that there is no customary international obligation of
nuclear disarmament. Positivists only have eyes for treaty law, for individual State consent,
revolving in vicious circles, unable to see the pressing needs and aspirations of the international
community as a whole, and to grasp the universality of contemporary international law — as
envisaged by its “founding fathers”, already in the XVIth-XVIIth centuries, — with its underlying
fundamental principles (cf. infra).
75. The truth is that, in our times, the obligation of nuclear disarmament has emerged and
crystallized, in both conventional and customary international law, and the United Nations has been
giving a most valuable contribution to this along the decades. The matter at issue, the
United Nations saga in this domain, was brought to the attention of the ICJ, two decades ago, in the
advisory proceedings that led to its Advisory Opinion of 1996 on the Threat or Use of Nuclear
Weapons, and now again, two decades later, in the present contentious proceedings in the cases of
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament, opposing the Marshall Islands to India, Pakistan and the United Kingdom,
respectively.
76. The aforementioned U.N. resolutions were in effect object of attention on the part of the
contending parties before the Court (Marshall Islands, India, Pakistan and the United Kingdom). In
the oral phase of their arguments, they were dealt with by the participating States (Marshall Islands,
India and the United Kingdom), and, extensively so, in particular, by the Marshall Islands and
India. The key point is the relation of those resolutions with the emergence of opinio juris, of
relevance to the identification of a customary international law obligation in the present domain.
May I turn, then, to the positions sustained by the contending parties, in the written phase of the
proceedings in the cas d’espèce.
VI. U.N. RESOLUTIONS AND THE EMERGENCE OF O PINIO JURIS: THE P OSITIONS OF THE
CONTENDING P ARTIES
77. In its written submissions and oral arguments before the Court in the present case(s) of
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament, the Marshall Islands addresses General Assembly resolutions on nuclear - 23 -
46
disarmament, in relation to the development of customary international law ; it also refers to
Security Council resolutions . Quoting the ICJ’s Advisory Opinion of 1996, it contends (perhaps
not as clearly as it could have done) that although General Assembly resolutions lack binding force,
they may “sometimes have normative value”, and thus contribute to the emergence of an opinio
juris .
78. In its written submissions and oral arguments before the Court, India addresses
U.N. General Assembly resolutions on follow-up to the ICJ’s Advisory Opinion of 1996, pointing
out that it is the only nuclear weapon State that has co-sponsored and voted in favour of such
49
resolutions . India supports nuclear d50armament “in a time-bound, universal, non-discriminatory,
phased and verifiable manner” . And it criticizes the M.I. for not supporting the General
Assembly follow-up resolutions in its own voting pattern (having voted against one of them, in
51
favour once, and all other times abstained) .
79. In its Preliminary Objections (of 15.06.2015), the United Kingdom, for its part, after
recalling the Marshall Islands’ position on earlier U.N. General Assembly resolutions, in the sixties
and seventies (paras. 21 and 98(c) and (h)), then refers to its own position thereon (paras. 84
and 99(c)). It also refers to U.N. Security Council resolutions (para. 92). It then recalls the
Marshall Islands’ arguments — e.g., that “the U.K. has always voted against” General Assembly
resolutions on the follow-up of the ICJ Advisory Opinion of 1996, and of the U.N. High Level
Meetings in 2013 and 2014 (paras. 98(e) and (h)), — in order to rebut them (paras. 99-103).
80. As for Pakistan, though it informed the Court of its decision not to participate in the oral
phase of the present proceedings (letter of 02.03.2016), in the submissions in its Counter-Memorial
it argues that the ICJ 1996 Advisory Opinion nowhere stated that the obligation under Article VI of
the NPT was a general obligation or that it was opposable erga omnes; in its view, there was no
prima facie evidence to this effect erga omnes . As to the U.N. General Assembly resolutions
following up the ICJ’s 1996 Advisory Opinion, Pakistan notes that it has voted in favour of these
resolutions from 1997 to 2015, and by contrast, — it adds, — the Marshall Islands abstained from
53
voting in 2002 and 2003 and again from 2005 to 2012 .
54
81. After recalling that it is not a Party to the NPT , Pakistan further argues that
General Assembly resolutions do not have binding force and cannot thus, in its view, give rise to
obligations enforceable against a State . Pakistan concludes that the General Assembly resolutions
46ICJ, doc. CR 2016/1, of 07.03.2016, para. 7.
47
Ibid., para. 8.
48
Ibid., para. 7.
49ICJ, doc. CR 2016/4, of 10.03.2016, para. 1, p. 19.
50Counter-Memorial of India, p. 9, para. 13.
51
Ibid., p. 8, para. 12.
52
Counter-Memorial of Pakistan., p. 8, para. 2.3.
53Ibid., p. 8, para. 2.4.
54Ibid., p. 14, para. 4.4; p. 30, para. 7.55.
55Ibid., p. 38, paras. 7.95-7.97. - 24 -
do not support the proposition that there exists a customary international law obligation “rooted” in
56
Article VI of the NPT. Rather, it is the NPT that underpins the Marshall Islands’ claims .
82. In sum, the United Kingdom has voted against such resolutions, the Marshall Islands has
abstained in most of them, India and Pakistan have voted in favour of them. Despite these distinct
patterns of voting, in my view the U.N. General Assembly resolutions reviewed in the present
Dissenting Opinion, taken altogether, are not at all deprived of their contribution to the
conformation of opinio juris as to the formation of a customary international law obligation of
nuclear denuclearization. After all, they are resolutions of the U.N. General Assembly itself (and
not only of the large majority of U.N. member States which voted in their favour); they are
resolutions of the United Nations Organization itself, addressing a matter of common concern of
humankind as a whole (cf. part XIX, infra).
VII. H UMAN W ICKEDNESS : FROM THE XXI ST C ENTURY BACK TO THE B OOK OF GENESIS
83. Since the beginning of the nuclear age in August 1945, some of the great thinkers of the
XXth century started inquiring whether humankind has a future. Indeed, this is a question which
cannot be eluded. Thus, already in 1946, for example, deeply shocked by the U.S. atomic
bombings of Hiroshima and Nagasaki (on 06 and 09 August 1945, respectively) ,
Mahatma Gandhi, in promptly expressing his worry about the future of human society, wrote, in
the Journal Harijan, on 07.07.1946, that
“So far as I can see, the atomic bomb has deadened the finest feeling that has
sustained mankind for ages. There used to be the so-called laws of war which made 58
tolerable. Now we know the naked truth. War knows no law except that of might” .
84. And M. Gandhi, denouncing its brutality, added that the “atom bomb is the weapon of
ultimate force and destruction”, evidencing the “futility” of such violence; the development of the
atom bomb “represents the most sinful and diabolical use of science” . In the same Journal
Harijan, M. Gandhi further wrote, on 29.09.1946, that non-violence is “the only thing the atom
bomb cannot destroy”; and he further warned that “unless now the world adopts non-violence, it
will spell certain suicide for mankind” .
85. Over a decade later, in the late fifties, Karl Jaspers, in his book La bombe atomique et
l’avenir de l’homme (1958), regretted that the existence of nuclear weapons seemed to have been
61
taken for granted, despite their capacity to destroy humankind and all life on the surface of earth .
One has thus to admit, — he added, — that “cette terre, qui est née d’une explosion de l’atome, soit
anéantie aussi par les bombes atomiques” . K. Jaspers further regretted that progress had occurred
56Ibid., p. 38, para. 7.97.
57
Preceded by a nuclear test undertaken by the United States at Alamagordo, New Mexico, on 16.07.1945.
58M. Gandhi, “Atom Bomb and Ahimsa”, Harijan (07.07.1946), reproduced in: Journalist Gandhi — Selected
Writings of Gandhi (org. S. Sharma), 1st ed., Mumbai, Ed. Gandhi Book Center, 1994, p. 104; also cit. in: P.F. Power,
Gandhi on World Affairs, London, Allen & Unwin, 1961, pp. 63-64.
59Cit. in: What Mahatma Gandhi Said about the Atom Bomb (org. Y.P. Anand), New Delhi, National Gandhi
Museum, 1998, p. 5.
60From the Journal Harijan (29.09.1946), cit.Faisal Devji, The Impossible Indian — Gandhi and the
Temptation of Violence, London, Hurst & Co., 2012, p. 150.
61
K. Jaspers, La bombe atomique et l’avenir de l’homme [1958], Paris, Buchet/Chastel, 1963, pp. 22 and 336.
62Ibid., p. 576. - 25 -
in technological knowledge, but there had been “no progress of ethics nor of 63ason”. Human
nature has not changed: “ou l’homme se transforme ou il disparaît” .
86. In the early sixties, for his part, Bertrand Russell, in his book Has Man a Future? (1961),
likewise regretted that people seemed to have got used to the existence of nuclear weapons, in a
64
world dominated by a “will towards death”, prevailing over sanity . Unfortunately,— he
proceeded, — “love for power” has enticed States “to pursue irrational policies”; and he added:
“Those who regard Genesis as authentic history, may take Cain as the first example:
he may well have thought that, with Abel out of the way, he could rule over coming
generations” . 65
To B. Russell, it is “in the hearts of men that the evil lies”, it is in their minds that “the cure must be
sought” . He further regretted the discouraging results of disarmament Conferences, and even
wrote that ICJ pronouncements on the issue shoul67be authoritative, and it was not “optional” for
States “to respect or not international law” .
87. For his part, Karl Popper, at the end of his life, in his book (in the form of an interview)
The Lesson of This Century (1997), in assembling his recollections of the XXth century, expressed
the anguish, for example, at the time of the 1962 Cuban missiles crisis, with the finding that each of
the 38 warheads at issue had three thousand times more power than the atomic bomb dropped over
Hiroshima . Once again, the constatation: human nature has not changed. K. Popper, like other
great thinkers of the XXth century, regretted that no lessons seemed to have been learned from the
past; this increased the concern they shared, in successive decades, with the future of humankind,
in the presence of arsenals of nuclear weapons.
88. A contemporary writer, Max Gallo, in his recent novel Caïn et Abel — Le premier crime,
has written that the presence of evil is within everyone; “l69Mal est au coeur du Bien, et cette
réalité ambiguë est le propre des affaires humaines” . Writers of the past, — he went on, — “eux
aussi — toi Dante, toi Dostoïevski, et ceux qui vous ont inspiré, Eschyle, Sophocle — attisent le
70
brasier du châtiment et de la culpabilité” . And he added:
“Partout, Caïn poignarde ou étrangle Abel. (...) Et personne ne semble voir (...)
la mort prochaine de toute humanité. Elle tient entre ses mains l’arme de sa
destruction. Ce ne sont plus seulement des villes entières qui seront incendiées,
rasées: toute vie sera alors consumée, et la terre vitrifiée.
Deux villes ont déjà connu ce sort, et l’ombre des corps de leurs habitants est à
jamais encrustée dans la pierre sous l’effet d’une chaleur de lave solaire.
63
Ibid., pp. 621 and 640.
64
B. Russell, Has Man a Future?, [London], Penguin Books, 1962 [reprint], pp. 27 and 37.
65Ibid., p. 45.
66Ibid., pp. 45-46, and cf. 69.
67
Ibid., pp. 97 and 79.
68K. Popper, The Lesson of This Century (interview with G. Bosetti), London/N.Y., Routledge, 1997, pp. 24
and 28. And cf. also, earlier on, K. Popper, La Responsabilidad de Vivir — Escritos sobre Política, Historia y
Conocimiento [1994], Barcelona, Paidós, 2012 [reed.], p. 242, and cf. p. 274.
69M. Gallo, Caïn et Abel — Le premier crime, [Paris], Fayard, 2011, pp. 112 and 141.
70Ibid., p. 174. - 26 -
(...) [P]artout Caïn poursuivra Abel. (...) Les villes vulnérables seront
ensanglantées. Le71tours les plus hautes seront détruites, leurs habitants ensevelis sous
les décombres” .
89. As well captured by those and other thinkers, in the Book of Genesis, the episode of the
brothers Cain and Abel portraying the first murder ever, came to be seen, along the centuries, as
disclosing the presence of evil and guilt in the world everyone lives. This called for care, prudence
and reflection, as it became possible to realize that human beings were gradually distancing
themselves from their Creator. The fragility of civilizations soon became visible. That distancing
became manifest in the subsequent episode of the Tower of Babel (Genesis, ch. 11: 9). As they
were built, civilizations could be destroyed. History was to provide many examples of that (as
singled out, in the XXth century, by Arnold Toynbee). Along the centuries, with the growth of
scientific-technological knowledge, the human capacity of self-destruction increased considerably,
having become limitless in the present nuclear age.
90. Turning back to the aforementioned book by B. Russell, also in its French edition
(L’homme survivra-t-il?, 1963), he further warned therein that
“il faut que nous nous rendions compte que la haine, la perte de temps, d’argent et
d’habilité intellectuelle en vue de la création d’engins de destruction, la crainte du mal
que nous pouvons nous faire mutuellement, le risque quotidien et permanent de voir la
fin de tout ce que l’homme a réalisé, sont le produit de la folie humaine. (...) C’est72
dans nos cœurs que réside le mal, c’est de nos cœurs qu’il doit être extirpé” . [“we
must become aware that the hatred, the expenditure of time and money and intellectual
hability upon weapons of destruction, the fear of what we may do to each other, and
the imminent daily and hourly risk of an end to all that man has achieved, (...) all this
is a product of human folly. (...) It is in our hearts that the evil lies, and it is from our
hearts that it must be plucked out” ].73
91. Some other great thinkers of the XXth century (from distinct branches of knowledge),
expressed their grave common concern with the increased human capacity of destruction coupled
with the development of scientific-technological knowledge. Thus, the historian Arnold Toynbee
(A Study in History, 1934-1954; and Civilization on Trial, 1948), regretted precisely the modern
tragedy that human iniquity was not eliminated with the development of scientific-technological
74
knowledge, but widely enlarged, without a concomitant advance at spiritual level . And the
increase in armaments and in the capacity of destruction, — he added, — became a symptom of the
fall of civilizations .
92. For his part, the writer Hermann Hesse, in a posthumous book of essays (Guerre et paix,
1946), originally published shortly after the II world war, warned that with the mass killings, not
71
Ibid., pp. 236-237.
72B. Russell, L’homme survivra-t-il?, Paris, Éd. J. Didier, 1963, pp. 162-163.
73B. Russell, Has Man a Future?, op. cit. supra n. (64), pp. 109-110. Towards the end of his life,
Bertrand Russell again warned against the extreme danger of atomic and hydrogen bombs, and expressed his concern that
people seemed to get used to their existence; cf. B. Russell, Autobiography [1967], London, Unwin, 1985 [reed.],
pp. 554-555.
74
Cf. A.J. Toynbee, A Study in History, Oxford, Oxford University Press, 1970 [3rd reprint], pp. 48-558, 559-701,
702-718 and 826-850; A.J. Toynbee, Civilization on Trial, Oxford/N.Y., Oxford University Press, 1948, pp. 3-263.
75
A.J. Toynbee, Guerra e Civilização [War and Civilization], Lisbon, Edit. Presença, 1963, pp. 29, 129 and 178. - 27 -
76
only do we keep on killing ourselves, but also our present and perhaps also our future . The worst
destruction, — he added, — was the one organized by the State itself, with its corollary, “the
77
philosophy of the State”, accompanied by capital and industry . The philosopher and theologian
Jacques Maritain (Oeuvres Complètes, 1961-1967), in turn, wrote that the atrocities perpetrated in
the XXth century had “une importance plus tragique pour la conscience humaine” . In calling for 78
an “integral humanism”, he warned that the human person transcends the State, and the realisation
of the common good is to be pursued keeping in mind human dignity . In his criticism of the
“realists”, he stressed the imperatives of ethics80nd justice, and the importance of general principles
of law, in the line of jusnaturalist thinking .
93. Another writer, the humanist Stefan Zweig, remained always concerned with the fate of
humankind. He was impressed with the Scripture’s legend of the Tower of Babel, having written
an essay on it in 1916, and kept it in mind81long the years, as shown in successive essays written in
more than the two following decades , taking it as a symbol of the perennial yearning for a unified
humanity. In his own words,
“The history of tomorrow must be a history of all humanity and the conflicts between
individual conflicts must be seen as redundant alongside the common good of the
community. History must then be transformed from the current woeful State to a
completely new position; (...) it must clearly contrast the old ideal of victory with the
new one of unity and the old glorification of war with a new contempt for it. (...)
[T]he only important thing is to push forward under the banner of a community of
nations, the mentality of mankind (...)” . 82
94. Yet, in his dense and thoughtful intellectual autobiography (Le monde d’hier, 1944),
written shortly before putting an end to his own life, Stefan Zweig expressed his deep concern with
the fading away of conscience, disclosed by the fact that the world got used to the
83
“dehumanisation, injustice and brutality, as84ever before in hundreds of centuries” ; persons had
been transformed into simple objects . Earlier on, — before the nuclear age, — his friend the
psychologist Sigmund Freud, in a well-known essay (Civilization and Its Discontents, 1930),
expressed his deep preoccupation with what he perceived as an impulse to barbarism and
76H. Hesse, Sobre la Guerra y la Paz [1946], 5th ed., Barcelona, Edit. Noguer, 1986, pp. 119 and 122.
77H. Hesse, Guerre et Paix, Paris, L’Arche Éd., 2003 [reed.], pp. 127 and 133.
78J. Maritain, “Dieu et la permission du mal”, in Œuvres de Jacques Maritain — 1961-1967 (Jacques et
Raissa Maritain — Oeuvres Complètes), vol. XII, Fribourg/Paris, Éd. Universitaires/Éd. Saint-Paul, 1992, p. 17, and
cf. p. 41.
79Cf. J. Maritain, Humanisme intégral, Paris, Aubier, 2000 (reed.), pp. 18, 37, 137 and 230-232; J. Maritain, The
Person and the Common Good, Notre Dame, University of Notre Dame Press, 2002 (reed.), pp. 29, 49-50, 92-93
and 104; J. Maritain, O Homem e o Estado, 4th ed., Rio de Janeiro, Livr. Agir Ed., 1966, pp. 96-102; J. Maritain, Los
Derechos del Hombre y la Ley Natural, Buenos Aires, Ed. Leviatan, 1982, pp. 38, 44, 50, 69 and 94-95, and
cf. pp. 79-82; J. Maritain, Para una Filosofía de la Persona Humana, Buenos Aires, Ed. Club de Lectores, 1984,
pp. 164, 176-178, 196-197, 221 and 231.
80J. Maritain, De la justice politique — Notes sur la présente guerre, Paris, Libr. Plon, 1940, pp. 88, 90-91,
106-107 and 112-114.
81As shown in his posthumous book of essays: S. Zweig, Messages from a Lost World, London, Pushkin Press,
2016, pp. 55, 88-90, 97, 107 and 176.
82Ibid., pp. 170 and 175.
83S. Zweig, O Mundo que Eu Vi [1944, Die Welt von Gestern], Rio de Janeiro, Edit. Record, 1999, p. 483, and
cf. 272-274, 278, 462, 467, 474, 490 and 503-505.
84Ibid., p. 490. - 28 -
destruction, which could not be expelled from the human psyche . In face of human hostility and
86
the threat of self-disintegration, — he added, — there is a consequent loss of happiness .
95. Another psychologist, Carl Jung, referring, in his book Aspects du drame contemporain
(1948), to events of contemporary history of his epoch, warned against subsuming individuals
87
under the State; in his view, collective evil and culpability contaminate 88eryone everywhere .
He further warned against the tragic dehumanization of others and the psychic exteriorizations of
mass movements (of the collective inconscient) conducive to destruction . 89
96. To the writer and theologian Albert Schweitzer (who wrote his Kulturphilosophie
in 1923), the essence of civilization lies in the respect for life, to the benefit of each person and of
humankind . He rejected the “illness” of Realpolitik, having stated that good consists in the
preservation and exaltation of life, and evil lies in its destruction; nowadays more than ever, — he
added, — we need an “ethics of reverence for life”, what requires responsibility . He insisted, in
his book La civilisation et l’éthique (1923), that respect for life started as from “une prise de
conscience” of one’s responsibility vis-à-vis the life of others . 92
97. Later on in his life, then in the nuclear age, in his series of lectures Paix ou guerre
atomique (1958), A. Schweitzer called for an end to nuclear weapons, with their “destructions et
anéantissements inimaginables” . In his own words,
“La guerre atomique ne connaît pas de vainqueurs, mais uniquement des
vaincus. Chaque belligérant subit par les bombes et les projectiles atomiques de
l’adversaire les mêmes dégâts qu’il lui inflige par les siens. Il en résulte un
anéantissement continu (...). Il peut seulement dire: allons-nous nous suicider tous les
94
deux par une extermination réciproque?” .
98. Well before them, by the turn of the XIXth to the XXth century, the writer Leo Tolstoi
warned (The Slavery of Our Times, 1900) against the undue use of the State monopoly of
95
“organized violence”, conforming a new form of slavery of the vulnerable ones ; he criticized the
recruitment of personnel to be sent to war to kill defenseless persons, perpetrating acts of extreme
violence . On his turn, the physician Georges Duhamel warned (in his account Civilisation —
85
Sigmund Freud, Civilization and Its Discontents [1930], N.Y., Norton & Cia., 1962 [reed.], pp. 7-9, 26, 36-37
and 59-63.
86
Cf. ibid., pp. 23 and 67-92.
87
C.G. Jung, Aspects du drame contemporain, Genève/Paris, Libr. de l’Univ. Georg/Éd. de la Colonne Vendôme,
1948, pp. 99 and 145.
88
Ibid., pp. 173 and 179.
89
Ibid., pp. 198-200, 208, 218-219 and 223.
9A. Schweitzer, Filosofia da Civilização [1923], São Paulo, Edit. Unesp, 2011 [reed.], pp. 80, 304, 311 and 315.
9A. Schweitzer, Pilgrimage to Humanity [Weg zur Humanität], N.Y., Philosophical Library, 1961, pp. 87-88, 99
and 101.
9M. Arnold, Albert Schweitzer — La compassion et la raison, Lyon, Éd. Olivétan, 2015, pp. 74-75 and 77.
9Cit. in ibid., p. 111.
94
Extract from his book Paix ou guerre atomique (1958), reproduced in his posthumous book of essays:
A. Schweitzer, Respect de la vie (org. B. Kaempf), Paris, Éd. Arfuyen/CIAL, 1990, p. 98.
95
L. Tolstoi, La Esclavitud de Nuestro Tiempo [1900], Barcelona, Littera, 2000 [reed.], pp. 86-87, 89, 91 and 97.
96
Ibid., pp. 101, 103-104 and 121. - 29 -
1914-1917) against the fact that war had become an industry of killing, with a “barbaric ideology”,
destroying civilization with its “lack of humanity”; yet, he still cherished the hope that the spirit of
humanism could flourish from the ashes . 97
99. The historian of ideas Isaiah Berlin, for his part, warned (The Proper Study of Mankind)
against the dangers of the raison d’État, and stressed the relevance of values, in the search of
knowledge, of cultures, and of the recta ratio . On his turn, the writer Erich Fromm upheld human
99
life in insisting that there could only exist a truly “civilized” society if based on humanist values .
Towards the end of his life , in his book The Anatomy of Human Destructi100y (1974), he warned
against destruction and propounded the prevalence of love for life .
100. E. Fromm further warned that the devastation of wars (including the contemporary
ones) have led to the loss of hope and to brutalization, amidst the tension of the co-existence or
ambivalence between civilization and barbarism, which requires all our endeavours towards the
revival of humanism . Likewise, in our days, the philosopher Edgar Morin has also warned that
the advances of scientific knowledge disclosed an ambivalence, in that they provided, on the one
hand, the means to improve the knowledge of the world, and, on the other hand, with the
production (and proliferation) of nuclear weapons, in addition to other weapons (biological and
102
chemical) of mass destruction, the means to destroy the world .
101. Future has thus become unpredictable, and unknown, in face of the confrontation
between the forces of life and the forces of death. Yet, — he added, — human beings are endowed
with conscience, and are aware that civilizations, as well as the whole of humankind, are mortal . 103
E. Morin further contended the tragic experiences lived in recent times should lead to the
repentance of barbarism and the return to humanism; in effect, to think about, and resist to,
barbarism, amounts to contributing to recreate humanism . 104
102. For his part, in the late eighties, in his book of essays Silences et mémoires d’hommes
(1989), Elie Wiesel stressed the need of memory and attention to the world wherein we live, so as
to combat the indifference to violence and evil . Looking back to the Book of Genesis, he saw it
fit to recall that “Caïn et Abel — les premiers enfants sur terre, — se découvrirent ennemis. Bien
que frères, l’un devin l’assassin ou la victime de l’autre. L’enseignement que nous devrions en
97G. Duhamel, Civilisation — 1914-1917, Paris, Mercure de France, 1944, pp. 53 and 274-275; G. Duhamel,
Mémorial de la guerre blanche — 1938, Paris, Mercure de France, 1945, pp. 41, 95, 100, 102 and 170.
98I. Berlin, The Proper Study of Mankind, N.Y., Farrar & Straus & Giroux, 2000 (reed.), pp. 78, 135, 155, 217,
235-236, 242, 247, 311 and 334; I. Berlin, “Return of the Volksgeist: Nationalism, Good and Bad”, in At Century’s End
(ed. N.P. Gardels), San Diego/Cal., Alti Publ., 1995, p. 94.
99Cf. E. Fromm, Las Cadenas de la Ilusión — Una Autobiografía Intelectual [1962], Barcelona, Paidós, 2008
[reed.], pp. 78 and 234-239.
100
Cf. E. Fromm, Anatomía de la Destructividad Humana [1974], Mexico/Madrid/Buenos Aires, 2009 [reed.],
pp. 16-468; and cf. also E. Fromm, El Amor a la Vida [1983 — Über die Liebe zum Leben], Barcelona, Paidós, 2016
(4th reprint), pp. 15-250.
101
E. Fromm, Las Cadenas de la Ilusión..., op. cit. supra n. (99), pp. 240 and 250-251.
102
E. Morin, Vers l’abîme?, Paris, L’Herne, 2012, pp. 9, 24-25 and 40-41.
103Ibid., pp. 27, 30, 59, 85, 89, 126 and 181.
104E. Morin, Breve Historia de la Barbarie en Occidente, Barcelona, Paidós, 2009, p. 94, and cf. pp. 60 and
92-93.
105E. Wiesel, Silences et mémoires d´hommes, Paris, Éd. Seuil, 1989, pp. 166, 173 and 175. - 30 -
tirer? Deux hommes peuvent être frères et néanmoins désireux de s’entre-tuer.106 Et aussi:
quiconque tue, tue son frère. Seulement cela, on l’apprend plus tard” .
103. Turning attention to the threat of nuclear weapons, E. Wiesel sharply criticized the
already prevailing attitude of indifference to it: “le monde, aujourd’hui, nous paraît étonnamment
107
indifférent vis-à-vis de la question nucléaire”, — an attitude which he found ununderstandable .
And he added that
“L´indifférence (...) peut elle aussi devenir contagieuse. (...) L’indifférence permet
également de mesurer la progression du mal que mine la société. (...) Là encore, la
mémoire seule peut nous réveiller. Si nous nous souvenons de ce qui s’est passé il y a
quarante ans, nous avons une possibilité d’empêcher de nouvelles catastrophes.
Sinon, nous risquons d’être les victimes de notre propre indifférence. Car si nous
sommes indifférents aux leçons de notre passé, nous le serons aux espoirs inhérents à
notre avenir. (...) Voici mon angoisse: si nous oublions, nous serons oubliés. (...) Si
nous restons indifférents à notre sort, (...) il ne restera personne pour raconter notre
histoire” .08
104. In effect, already in the early XXth century, Henri Bergson, in his monograph La
conscience et la vie (1911), devoted attention to the search for meaning in life: to him, to live with
conscience is to remember the past (memory) in the present, and to anticipate the future . In his 109
own words,
“Retenir ce qui n’est déjà plus, anticiper sur ce qui n’est pas encore, voilà donc
la première fonction de la conscience. (...) [L]a conscience est un trait d’union entre
110
ce qui a été et ce qui sera, un pont jeté entre le passé et l’avenir” .
105. Also in international legal doctrine, there have been those who have felt the need to
move away from State voluntarism and acknowledge the prevalence of conscience over the “will”.
It is not my intention to dwell upon this point here, as I have dealt with it elsewhere . For the 111
purposes of the present Dissenting Opinion, suffice it to recall a couple of examples. The jurist
Gustav Radbruch, at the end of his life, forcefully discarded legal positivism, always subservient to
power and the established order, and formulated his moving conversion and profession of faith in
112 113
jusnaturalism . His lucid message was preserved and has been projected in time , thanks to the
devotion of his students and disciples of the School of Heidelberg.
106. There are further examples of doctrinal endeavours to put limits to State voluntarism,
such as the jusnaturalist construction of, e.g., Alfred Verdross, — as from the idée du droit, — of
106
Ibid., pp. 167-168.
107Ibid., p. 174, and cf. p. 170.
108Ibid., pp. 175-176.
109
H. Bergson, La conscience et la vie [1911], Paris, PUF, 2012 [reprint], pp. 10-11, 13 and 26.
110
Ibid., pp. 5-6.
111Cf. A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, 2nd rev. ed.,
Leiden/The Hague, Nijhoff/The Hague Academy of International Law, 2013, pp. 141-147 and 153-161.
112Cf. G. Radbruch, Introducción a la Filosofía del Derecho, 3rd ed., Mexico/Buenos Aires, Fondo de Cultura
Económica, 1965, pp. 9-180.
113Cf., e.g., R. Alexy, The Argument from Injustice — A Reply to Legal Positivism, Oxford, Oxford University
Press, 2010, pp. 3-130. - 31 -
an objective law fi114ng expression in the general principles of law, preceding positive
international law ; or else the conception of the droit spontanée, of Roberto Ago, upholding the
spontaneous formation (emanating from human conscience, well beyond the “will” of individual
115
States) of new rules of international law .
107. In the view of Albert de La Pradelle, the conception of the formation of international
law on the strict basis of reciprocal rights and duties only of States is “extremely grave and
dangerous” . International law is a “droit de la communauté humaine”, encompassing, besides
States, also peoples and human beings; it is t117“droit de toute l’humanité”, on the foundations of
which are the general principles of law . To A. de La Pradelle, this “droit de l’humanité” is not
static, but rather dynamic, attentive to human values, in the line of jusnaturalist thinking . 118
108. “Juridical conscience” is invoked in lucid criticisms of legal positivism . Thus, in his
monograph-plea (of 1964) against nuclear weapons, for example, Stefan Glaser sustained that
customary international norms are those that, “according to universal conscience”, ought to
regulate the international community, for fulfilling common interest and responding to the demands
of justice; and he added that
“C’est sur cette conscience universelle que repose la principale caractéristique
du droit international: la conviction que ses normes sont indispensables pour le bien
commun explique leur reconnaissance en tant que règles obligatoires” . 120
109. This is the position that I also uphold; in my own understanding, it is the universal
juridical conscience that is the ultimate material source of international law . In my view, one
cannot face the new challenges confronting the whole international community keeping in mind
only State susceptibilities; such is the case with the obligation to render the world free of nuclear
weapons, an imperative of recta ratio and not a derivative of the “will” of States. In effect, to keep
hope alive it is necessary to bear always in mind humankind as a whole.
110. For my part, within the ICJ, I have deemed it fit to ponder, in my Dissenting Opinion
(paras. 488-489) in the case concerning the Application of the Convention against Genocide
(Croatia versus Serbia, Judgment of 03.02.2015), that, from Homer’s Iliad (late VIIIth or early
VIIth century b.C.) to date, individuals, indoctrinated and conditioned for war and destruction, have
become objects of the struggle for domination. I recalled that this has been lucidly warned by
Simone Weil, in a penetrating essay (of 1934), to whom this ends up victimizing everyone, there
occurring “the substitution of the ends by the means”, transforming human life into a simple
114
A. Verdross, Derecho Internacional Público, 5th ed., Madrid, Aguilar, 1969 [reprint], pp. 15-19.
115R. Ago, “Nouvelles réflexions sur la codification du droit international”, 92 Revue générale de droit
international public (1988) p. 540, and cf. p. 541 on “la nature non volontaire de l’origine du droit coutumier”.
116A. de La Pradelle, Droit international public (cours sténographié), Paris, Institut des Hautes Études
Internationales/Centre Européen de la Dotation Carnegie, November 1932/May 1933, p. 33, and cf. pp. 36-37.
117Ibid., pp. 49-59, 149, 222 and 264.
118
Cf. ibid., pp. 412-413.
119Such as, e.g., those of Antonio Gómez Robledo, Meditación sobre la Justicia [1963], Mexico/Buenos Aires, Fondo
de Cultura Económica, 1963, pp. 179 and 185; R. Quadri, “Cours général de droit international public”, 113 Recueil des
Cours de l’Académie de Droit International de La Haye (1964) pp. 326, 332, 336-337, 339 and 350-351.
120S. Glaser, L’arme nucléaireà la lumière du droit international, Paris, Pédone, 1964, p. 18.
121Cf. A.A. Cançado Trindade, op. cit. supra (111), ch. VI, pp. 139-161. - 32 -
means, which can be sacrificed; individuals become unable to think, in face of the “social machine”
of destruction of the spirit and fabrication of the inconscience . 122
111. The presence of evil has accompanied and marked human existence along the centuries.
In the same aforementioned Dissenting Opinion in the case concerning the Application of the
Convention against Genocide (2015), after drawing attention to “the ever-lasting presence of evil,
which appears proper to the human condition, in all times”, I added:
“It is thus understandable that it has attracted the concern of, and has presented
challenges to, legal thinking, in our times and previous centuries, as well as other
branches of knowledge (such as, e.g., history, psychology, anthropology, sociology,
philosophy and theology, among others). It has marked presence in literature as well.
This long-standing concern, along centuries, has not, however, succeeded to provide
an explanation for evil.
Despite the endeavours of human thinking, along history, it has not been able to
rid humankind of it. Like the passing of time, the ever-lasting presence of evil is yet
another mystery surrounding human beings, wherever and while they live. Whenever
individuals purport to subject their fellow human beings to their ‘will’, placing this
latter above conscience, evil is bound to manifest itself. In one of the most learned
writings on the problem of evil, R.P. Sertillanges ponders that the awareness of evil
and the anguish emanated therefrom have marked presence in all civilizations. The
ensuing threat to the future of human kind has accounted for the continuous presence
123
of that concern throughout the history of human thinking .
Religions were the first to dwell upon the problem of evil, which came also to
be considered by philosophy, history, psychology, social sciences, and literature.
Along the centuries, human thinking has always acknowledged the need to examine
the problem of evil, its incidence in human relations, in the world wherein we live,
without losing faith in human values . 124 Despite the perennial quest of human
thinking to find answers to the problem of evil, — going as far back as the Book of
125
Job, or even further back, to the Genesis itself , — not even theology has found an
explanation for it, satisfactory to all” (paras. 472-474).
112. The Scripture’s account of Cain and Abel (Genesis, ch. 4: 8-10) along the centuries
came to be regarded as the aetiology of the fragmentation of humankind, as from the indifference
of an individual to the fate of another. The increasing disregard for human life was fostered by
growing, generalized and uncontrolled violence in search of domination. This was further
aggravated by ideological manipulations, and even the dehumanization of the others, the ones to be
victimized. The problem of evil continues to be studied, in face of the human capacity for extreme
12S. Weil, Reflexiones sobre las Causas de la Libertad y de la Opresión Social, Barcelona, Ed.
Paidós/Universidad Autónoma de Barcelona, 1995, pp. 81-82, 84 and 130-131; S. Weil, Réflexions sur les causes de la
liberté et de l’oppression sociale, Paris, Gallimard, 1955, pp. 124-125, and cf. pp. 114-115 and 144.
12R.P. Sertillanges, Le problème du mal — l’histoire, Paris, Aubier, 1948, pp. 5-412.
124
Ibid., pp. 5-412.
12Cf., inter alia, e.g., M. Neusch, L’énigme du mal, Paris, Bayard, 2007, pp. 7-193; J. Maritain, Dio e la
Permissione del Male, 6th ed., Brescia, Edit. Morcelliana, 2000, pp. 9-100; E. Fromm, Anatomía de la Destructividad
Humana, Mexico/Madrid/Buenos Aires, Siglo XXI Edit., 2009 [reprint.], pp. 11-468; P. Ricoeur, Evil — A Challenge to
Philosophy and Theology, London, Continuum, 2007, pp. 33-72; P. Ricoeur, Le mal — Un défi à la philosophie et à la
théologie, Genève, Éd. Labor et Fides, 2004, pp. 19-65; C.S. Nino, Juicio al Mal Absoluto, Buenos Aires, Emecé Edit.,
1997, pp. 7-292; A. Morton, On Evil, N.Y./London, Routledge, 2004, pp. 1-148; T. Eagleton, On Evil,
New Haven/London, Yale University Press, 2010, pp. 1-163; P. Dews, The Idea of Evil, Oxford, Wiley-Blackwell, 2013,
pp. 1-234. - 33 -
violence and self-destruction on a large scale . The tragic message of the Book of Genesis, in my
perception, seems perennial, as contemporary as ever, in the current nuclear age.
VIII. T HE ATTENTION OF THE U NITED N ATIONS C HARTER TO P EOPLES
113. It should be kept in mind that the United Nations Charter was adopted on 26.06.1945 on
behalf of “we, the peoples of the United Nations”. In several provisions it expresses its concern
with the living conditions of all peoples (preamble, Articles 55, 73(a), 76, 80), and calls for the
promotion of, and universal respect for, human rights (Articles 55(c), 62(2), 68, 76(c)). It invokes
the “principles of justice and international law” (Article 1(1), and refers to “justice and respect for
the obligations arising from treaties and other sources of international law” (preamble). It further
states that the Statute of the ICJ, “the principal judicial organ of the United Nations”, forms “an
integral part” of the U.N. Charter itself (Article 92).
114. In the mid-fifties, Max Huber, a former Judge of the PCIJ, wrote that international law
has to protect also values common to humankind, attentive to respect for life and human dignity, in
the line of the jusnaturalist conception of the jus gentium; the U.N. Charter, in incorporating
human rights into this droit de l’humanité, initiated a new era in the development of international
law, in a way rescuing the idea of the civitas maxima, which marked presence already in the
historical origins of the law of nations. The U.N. Charter’s attention to peoples, its principled
position for the protection of the human person, much transcend positive domestic law and
127
politics .
115. The new vision advanced by the U.N. Charter, and espoused by the Law of the
United Nations, has, in my perception, an incidence upon judicial settlement of international
disputes. Thus, the fact that the ICJ’s mechanism for the handling of contentious cases is an
inter-State one, does not mean that its reasoning should also pursue a strictly inter-State dimension;
that will depend on the nature and substance of the cases lodged with it. And there have been
several cases lodged with the Court that required a reasoning going well beyond the inter-State
dimension . Such reasoning beyond the inter-State dimension is faithful to the U.N. Charter, the
ICJ being “the principal judicial organ of the United Nations” (Article 92).
12Cf., moreover, inter alia, e.g., [Various Authors,] Le Mal (ed. C. Crignon), Paris, Flammarion, 2000,
pp. 11-232; J. Waller, Becoming Evil, 2nd ed., Oxford, Oxford University Press, 2007, pp. 3-330; S. Baron-Cohen, The
Science of Evil — On Empathy and the Origins of Cruelty, N.Y., Basic Books, 2012, pp. 1-243; L. Svendsen, A
Philsophy of Evil, Champaign/London, Dalkey Archive Press, 2011 [reprint], pp. 9-282; M. Salvioli, Bene e Male —
Variazioni sul Tema, Bologna, Ed. Studio Domenicano (ESD), 2012, pp. 11-185; D. Livingstone Smith, Less than
Human, N.Y., St. Martin’s Press, 2011, pp. 1-316; R. Safranski, El Mal, o el Drama de la Libertad, 4th ed., Barcelona,
Tusquets Edit., 2014, pp. 15-281; S. Neiman, Evil in Modern Thought, 2nd ed., Princeton/Oxford, Princeton University
Press, 2015, pp. 1-359; J.-C. Guillebaud, Le tourment de la guerre, Paris, Éd. de l’Iconoclaste, 2016, pp. 9-390.
12Max Huber, La pensée et l’action de la Croix-Rouge, Genève, CICR, 1954, pp. 26, 247, 270, 286 and 291.
128
Cf., e.g., the case of Nottebohm (1955, pertaining to double nationality); the cases of the Trial of Pakistani
Prisoners of War (1973), of the Hostages (U.S. Diplomatic and Consular Staff) in Teheran case (1980); of the
Application of the Convention against Genocide (Bosnia versus Serbia, 1996 and 2007); of the Frontier Dispute between
Burkina Faso and Mali (1998); the triad of cases concerning consular assistance — namely, the cases Breard
(Paraguay versus United States,1998), the case LaGrand (Germany versus United States, 2001), the case Avena and
Others (Mexico versus United States, 2004); the cases of Armed Activities in the Territory of Congo (D.R. Congo versus
Uganda, 2000, concerning grave violations of human rights and of International Humanitarian Law); of the Land and
Maritime Boundary between Cameroon and Nigeria (1996); of Questions Relating to the Obligation to Prosecute or
Extradite (Belgium versus Senegal, 2009-2013, pertaining to the principle of universal jurisdiction under the
U.N. Convention against Torture); of A.S. Diallo (Guinea versus D.R. Congo, 2010), on detention and expulsion of a
foreigner), of the Jurisdictional Immunities of the State (Germany versus Italy, Greece intervening, 2010-2012); of the
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia versus
Russian Federation, 2011); of the Temple of Preah Vihear (Cambodia versus Thailand, provisional measures, 2011); of - 34 -
116. Recently, in one of such cases, that of the Application of the Convention against
Genocide (Croatia versus Serbia, 2015), in my extensive Dissenting Opinion appended thereto, I
have deemed it fit, inter alia, to warn that
“The present case concerning the Application of the Convention against
Genocide (Croatia versus Serbia) provides yet another illustration of the pressing need
to overcome and move away from the dogmatic and strict inter-State outlook, even
more cogently. In effect, the 1948 Convention against Genocide, — adopted on the
eve of the Universal Declaration of Human Rights, — is not State-centered, but rather
people-centred. The Convention against Genocide cannot be properly interpreted and
applied with a strict State-centered outlook, with attention turned to inter-State
susceptibilities. Attention is to be kept on the justiciables, on the victims, — real and
potential victims, — so as to impart justice under the Genocide Convention”
(para. 496).
117. In a report in the early nineties, a former U.N. Secretary-General, calling for a
“concerted effort” towards complete disarmament, rightly pondered that “[d]ans le monde
d’aujourd’hui, les nations ne peuvent plus se permettre de résoudre les problèmes par la force. (...)
Le désarmement est l’un des moyens les plus importants de réduire la violence dans les relations
entre États” . There followed the cycle of World Conferences of the United Nations along the
nineties, in a commendable endeavour of the United Nations to go beyond and transcend the purely
inter-State dimension, imbued of a spirit of solidarity, so as to consider the challenges for the future
of humankind.
118. Those U.N. World Conferences disclosed a growing awareness of the international
community as a whole, and entered into a continuing universal dialogue between U.N. member
States and entities of the civil societies, — which I well remember, having participated in it , — 130
so as to devise the new international agenda in the search of common solutions for the new
challenges affecting humankind as a whole. In focusing attention on vulnerable segments of the
populations, the immediate concern has been with meeting basic human needs, that memorable
cycle of World Conferences disclosed a common concern with the deterioration of living
conditions, dramatically affecting increasingly greater segments of the population in many parts of
131
the world nowadays .
the Application of the Convention against Genocide (Croatia versus Serbia, 2015). To those cases one can add the two
most recent Advisory Opinions of the ICJ, on the Declaration of Independence of Kosovo (2010); and on a Judgment of
the ILO Administrative Tribunal upon a Complaint Filed against the IFAD (2012).
12B. Boutros-Ghali, Nouvelles dimensions de la réglementation des armements et du désarmement dans la période de
l’après-guerre froide — Rapport du Secrétaire Général, N.Y., Nations Unies, 1993, pp. 21-22.
13E.g., in the U.N. Conference on Environment and Development (Rio de Janeiro, 1992, in its World NGO
Forum) and in the II World Conference on Human Rights (Vienna, 1993, in the same Forum and in its Drafting
Committee).
131
A growing call was formed for the pursuance of social justice among and within nations. - 35 -
119. The common denominator in those U.N. World Conferences — as I have pointed out on
distinct occasions along the last two decades 132 — can be found in the recognition of the
legitimacy of the concern of the international community as a whole with the conditions of living
of all human beings everywhere. The placing of the well-being of peoples and human beings, of
the improvement of their conditions of living, at the centre of the concerns of the international
community, is remindful of the historical origins of the droit des gens .
120. At the end of the decade and the dawn of the new millennium, the United Nations
Millennium Declaration (adopted by General Assembly’s resolution 55/2, of 08.09.2000) stated the
determination “to eliminate the dangers posed by weapons of mass destruction” (para. II(8)), and,
noticeably,
“To strive for the elimination of weapons of mass destruction, particularly
nuclear weapons, and to keep all options open for achieving this aim, including the
possibility of convening and international conference to identify ways of eliminating
nuclear dangers” (para. II(9)).
121. In addition to our responsibilities to our individual societies, — the U.N. Millennium
Declaration added, —
“we have a collective responsibility to uphold the principles of human dignity,
equality and equity at the global level. (...) [W]e have a duty therefore to all the
world’s people, especially the most vulnerable and, in particular, the children of the
world, to whom the future belongs.
We reaffirm our commitment to the purposes and principles of the Charter of
the United Nations, which have proved timeless and universal. Indeed, their relevance
and capacity to inspire have increased, as nations and peoples have become
increasingly interconnected and interdependent” (paras. I(2-3)).
IX. IMPERTINENCE OF THE SO -CALLED M ONETARY G OLD “P RINCIPLE ”
122. The distortions generated by the obsession with the strict inter-State paradigm are not
hard to detect. An example is afforded, in this connection, by the ICJ’s handling of the East Timor
case (1995): the East Timorese people had no locus standi to request intervention in the
proceedings, not even to present an amicus curiae, although the crucial point under consideration
was that of sovereignty over their own territory. Worse still, the interests of a third State (which
had not even accepted the Court’s jurisdiction) were taken for granted and promptly safeguarded by
the Court, by means of the application of the so-called Monetary Gold “principle”, — an assumed
13A.A. Cançado Trindade, A Proteção dos Vulneráveis como Legado da II Conferência Mundial de Direitos
Humanos (1993-2013), Fortaleza/Brazil, IBDH/IIDH/SLADI, 2014, pp. 13-356; A.A. Cançado Trindade, “Sustainable
Human Development and Conditions of Life as a Matter of Legitimate International Concern: The Legacy of the U.N. World
Conferences”, in Japan and International Law — Past, Present and Future (International Symposium to Mark the Centennial
of the Japanese Association of International Law), The Hague, Kluwer, 1999, pp. 285-309; A.A. Cançado Trindade, “The
Contribution of Recent World Conferences of the United Nations to the Relations between Sustainable Development and
Economic, Social and Cultural Rights”, in Les hommes et l’environnement: Quels droits pour le vingt-et-unième siècle? -
Études en hommage à Alexandre Kiss (eds. M. Prieur and C. Lambrechts), Paris, Éd. Frison-Roche, 1998, pp. 119-146;
A.A. Cançado Trindade, “Memória da Conferência Mundial de Direitos Humanos (Viena, 1993)”, 87/90 Boletim da
Sociedade Brasileira de Direito Internacional (1993-1994) pp. 9-57.
133
Those Conferences acknowledged that human rights do in fact permeate all areas of human activity, and contributed
decisively to the reestablishment ofthe central position of human beings in the conceptual universe of the law of nations (droit
des gens). Cf., on the matter, A.A. Cançado Trindade, Évolution du Droit international au droit des gens — L’accès des
particuliers à la justice internationale: le regard d’un juge, Paris, Pédone, 2008, pp. 1-187. - 36 -
“principle” also invoked now, two decades later, in the present case concerning the obligation of
elimination of nuclear weapons!
123. Attention has to be turned to the nature of the case at issue, which may well require a
reasoning— as the cas d’espèce does — moving away from “a strict State-centred voluntarist
perspective” and from the “exaltation of State consent”, and seeking guidance in fundamental
principles (prima principia), such as the principle of humanity. This is what I pointed out in my
extensive Dissenting Opinion in the case concerning the Application of the Convention against
Genocide (Croatia versus Serbia, Judgment of 03.02.2015), where I pondered inter alia that such
prima principia confer to the international legal order “its ineluctable axiological dimension”; they
“conform its substratum, and convey the idea of an objective justice, in the line of jusnaturalist
thinking” (para. 517).
124. That was not the first time I made such ponderation: I had done the same, in another
extensive Dissenting Opinion (para. 213), in the case concerning the Application of the
International Convention on the Elimination of All Forms of Racial Discrimination — CERD
(Georgia versus Russian Federation, Judgment of 01.04.2011). In my subsequent aforementioned
Dissenting Opinion in the case concerning the Application of the Convention against Genocide I
expressed my dissatisfaction that in a case pertaining to the interpretation and application of the
Convention against Genocide, the ICJ even made recourse to the so-called Monetary Gold
“principle” , which had no place in a case like that, and “which does not belong to the realm of
the prima principia, being nothing more than a concession to State consent, within an outdated
State voluntarist framework” (para. 519).
125. May I, in the present Dissenting Opinion, this time in the case of Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament, again leave on the records my dissatisfaction for the same reason. Once again, may
I stress that the adjudication of a case like the present one shows the need to go beyond the strict
inter-State outlook. The fact that the mechanism for the adjudication of contentious cases before the
ICJ is an inter-State one, does not at all imply that the Court’s reasoning should likewise be strictly
inter State. In the present case concerning nuclear weapons and the obligation of nuclear disarmament,
it is necessary to focus attention on peoples, rather than on inter-State susceptibilities. It is imperative
to keep in mind the world population, in pursuance of a humanist outlook, in the light of the principle
of humanity.
X. T HE FUNDAMENTAL P RINCIPLE OF THE J URIDICAL E QUALITY OF S TATES
126. The present case of Obligations Concerning Negotiations Relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament stresses the utmost importance of the principle of
the juridical equality of States. The importance attributed to fundamental principles, the idea of an
objective justice, and its incidence upon the laws, go back in time, being deeply-rooted in
jusnaturalist thinking. If laws are deprived of justice, they no longer oblige in conscience. Ethics
cannot be dissociated from law; in the international scenario, each one is responsible for all the
others. To the “founding fathers” of the law of nations (droit des gens), like F. de Vitoria and
F. Suárez, the principle of equality was fundamental, in the relations among individuals, as well as
among nations. Their teachings have survived the erosion of time: today, four and a half centuries
later, the basic principle of equality and non-discrimination is in the foundations of the Law of the
United Nations itself.
13Even if only to dismiss it (para. 116). - 37 -
127. The present case of Obligations Concerning Negotiations Relating to Cessation of the
Nuclear Arms Race and to Nuclear Disarmament is surely not the first one before the ICJ that
brings to the fore the relevance of the principle of the juridical equality of States. In the ICJ’s
Order (of Provisional Measures of Protection) of 03.03.2014, I have deemed it fit to point out, in
my Separate Opinion appended thereto, that the case concerning Questions Relating to the Seizure
and Detention of Certain Documents and Data
“bears witness of the relevance of the principle of the juridical equality of States. The
prevalence of this fundamental principle has marked a longstanding presence in the
realm of international law, ever since the times of the II Hague Peace Conference
of 1907, and then of the drafting of the Statute of the Permanent Court of International
Justice by the Advisory Committee of Jurists, in June-July 1920. Recourse was then
made, by that Committee, inter alia, to general principles of law, as these latter
embodied the objective idea of justice. A general principle such as that of the juridical
equality of States, enshrined a quarter of a century later in the United Nations Charter
(Article 2(1)), is ineluctably intermingled with the quest for justice.
Subsequently, throughout the drafting of the 1970 U.N. Declaration on
Principles of International Law concerning Friendly Relations and Co-operation
among States in accordance with the Charter of the United Nations (1964-1970), the
need was felt to make it clear that stronger States cannot impose their will upon the
weak, and that de facto inequalities among States cannot affect the weaker in the
vindication of their rights. The principle of the juridical equality of States gave
expression to this concern, embodying the idée de justice, emanated from the universal
juridical conscience” (paras. 44-45).
128. And one decade earlier, in my General Course on Public International Law delivered at
the Hague Academy of International Law (2005), I pondered that
“On successive occasions the principles of international law have proved to be
of fundamental importance to humankind’s quest for justice. This is clearly illustrated
by the role played, inter alia, by the principle of juridical equality of States. This
fundamental principle, — the historical roots of which go back to the II Hague Peace
Conference of 1907, — proclaimed in the U.N. Charter and enunciated also in
the 1970 Declaration of Principles, means ultimately that all States, — factually strong
and weak, great and small, — are equal before international law, are entitled to the
same protection under the law and before the organs of international justice, and to
equality in the exercise of international rights and duties.
Despite successive attempts to undermine it, the principle of juridical equality
of States has remained, from the II Hague Peace Conference of 1907 to date, one of
the basic pillars of International Law. It has withstood the onslaught of time, and
shown itself salutary for the peaceful conduction of international relations, being
ineluctably associated — as it stands — with the foundations of International Law. It
has been very important for the international legal system itself, and has proven to be a
cornerstone of international law in the United Nations era. In fact, the U.N. Charter
gave it a new dimension, and the principle developments such as that of the system of
collective security, within the ambit of the law of the United Nations” .35
13A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra
n. (111), pp. 84-85, and cf. pp. 62-63, 65 and 73. - 38 -
129. By the turn of the century, the General Assembly’s resolution 55/2, of 08.09.2000,
adopted the United Nations Millennium Declaration, which inter alia upheld the “sovereign
equality of all States”, in conformity with “the principles of justice and international law”
(para. I(4)). Half a decade later, the General Assembly’s resolution 60/1, of 16.09.2005, adopted
the World Summit Outcome, which inter alia expressed the determination “to establish a just and
lasting peace all over the world in accordance with the purposes and principles of the
[U.N.] Charter”, as well as “to uphold the sovereign equality of all States” (para. I(5)). In stressing
therein the “vital importance of an effective multilateral system” to face current challenges to
international peace and security (paras. 6-7), the international community reiterated its profession of
faith in the general principles of international law.
XI. U NFOUNDEDNESS OF THE S TRATEGY OF “D ETERRENCE ”
130. In effect, the strategy of “deterrence”, pursued by NWS in the present context of
nuclear disarmament in order to attempt to justify their own position, makes abstraction of the
fundamental principle of the juridical equality of States, enshrined into the U.N. Charter. Factual
inequalities cannot be made to prevail over the juridical equality of States. All U.N. member States
are juridically equal. The strategy of a few States pursuing their own “national security interests”
cannot be made to prevail over a fundamental principle of international law set forth in the
U.N. Charter: factual inequalities between States cannot, and do not prevail over the juridical
equality of States.
131. In its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, permeated
with ambiguity, the ICJ gave undue weight to “the still strong adherence to the practice of
deterrence” (paras. 67 and 73) by a few NWS, to the point of beholding in it an obstacle to the
formation and consolidation of opinio juris and a customary rule as to the illegality of nuclear
weapons, leading to “a specific and express prohibition” of their use (para. 73). Here the Court
assumed its usual positivist posture: in its view, the prohibition must be express, stated in positive
law, even if those weapons are capable of destroying all life on earth, the whole of humankind...
132. The ICJ, in its Advisory Opinion of 1996, gave too much weight to the opposition of
NWS as to the existence of an opinio juris on the unlawfulness of nuclear weapons. And this,
despite the fact that, in their overwhelming majority, member States of the United Nations stand
clearly against nuclear weapons, and in favour of nuclear disarmament. The 1996 Advisory
Opinion, notwithstanding, appears unduly influenced by the lack of logic of “deterrence” 13. One
cannot conceive,— as the 1996 Advisory Opinion did, — of recourse to nuclear weapons by a
hypothetical State in “self-defence” at the unbearable cost of the devasta137g effects and sufferings
inflicted upon humankind as a whole, in an “escalade vers l’apocalypse” .
133. The infliction of such devastation and suffering is in flagrant breach of international
law, — of the ILHR, IHL and the Law of the United Nations138f. part XII, infra). It is,
furthermore, in flagrant breach of norms of jus cogens . The strategy of “deterrence” seems to
make abstraction of all that. The ICJ, as the International Court of Justice, should have given, on
136
Cf. criticisms of such posture in, e.g., A. Sayed, Quand le droit est face à son néant — Le droit à l’épreuve de
l’emploi de l’arme nucléaire, Bruxelles, Bruylant, 1998, pp. 79-80, 84, 88-89, 96 and 113.
13Cf. ibid., p. 147, and cf. pp. 129, 133, 151, 160, 174-175, 197 and 199-200.
138
On the expansion of the material content of this latter, cf. A.A. Cançado Trindade, “Jus CThens:
Determination and the Gradual Expansion of Its Material Content in Contemporary International Case-Law", in XXXV Curso
de Derecho Internacional Organizado por el Comité Jurídico Interamericano — 2008, Washington D.C., OAS General
Secretariat, 2009, pp. 3-29. - 39 -
all occasions when it has been called upon to pronounce on nuclear weapons (in the exercise of its
jurisdiction on contentious and advisory matters), far greater weight to the raison d’humanité , 139
rather than to the raison d’État nourishing “deterrence”. We have to keep in mind the human
person and the peoples, for which States were created, instead of relying only on what one assumes
to be the raison d’État. The raison d’humanité, in my understanding, prevails surely over
considerations of Realpolitik.
134. In its 1996 Advisory Opinion, the ICJ, however, at the same time, rightly acknowledged
the importance of complete nuclear disarmament, asserted in the series of General Assembly
resolutions, and the relevance of the corresponding obligation under Article VI of the NPT to the
international community as a whole (paras. 99 and 102). To the Court, this is an obligation of
result, and not of mere conduct (para. 99). Yet, it did not extract the consequences of that. Had it
done so, it would have reached the conclusion that nuclear disarmament cannot be hampered by the
conduct of a few States — the NWS — which maintain and modernize their own arsenals of
nuclear weapons, pursuant to their strategy of “deterrence” .
135. The strategy of “deterrence” has a suicidal component. Nowadays, in 2016,
twenty years after the 1996 ICJ Advisory Opinion, and with the subsequent reiteration of the
conventional and customary international legal obligation of nuclear disarmament, there is no
longer any room for ambiguity. There is an opinio juris communis as to the illegality of nuclear
weapons, and as to the well-established obligation of nuclear disarmament, which is an obligation
of result and not of mere conduct. Such opinio juris cannot be erased by the dogmatic positivist
insistence on an express prohibition of nuclear weapons; on the contrary, that opinio juris discloses
that the invocation of the absence of an express prohibition is nonsensical, in relying upon the
destructive and suicidal strategy of “deterrence”.
136. Such strategy is incompatible with jusnaturalist thinking, always attentive to ethical
considerations (cf. part XIV, infra). Over half a century ago (precisely 55 years ago), the
U.N. General Assembly had already stated, in its seminal resolution 1653 (XVI) of 1961, that the
use of nuclear weapons was “contrary to the spirit, letter and aims of the United Nations”, a “direct
violation” of the U.N. Charter, a breach of international law and of “the laws of humanity”, and “a
crime against mankind and civilization” (operative para. 1). Several subsequent General Assembly
resolutions upheld the same understanding of resolution 1653(XVI) of 1961 (cf. part III, supra),
leaving thus no room at all for ambiguity or hesitation, or to any concession.
137. Two decades ago, in the advisory proceedings of late 1995 before the ICJ, conducive to
its 1996 Advisory Opinion on Threat or Use of Nuclear Weapons, fierce criticisms were voiced of
the strategy of “deterrence”, keeping in mind the inhumane sufferings of victims of nuclear
detonation, radiation and contamination . 140 Attention was drawn, on the occasion, to the
“distortion of logic” in “deterrence”, in trying to rely on so immensely destructive weapons to keep
peace, and in further trying to persuade others “to accept that for the last 50 or so years this new
and more dangerous and potentially genocidal level or armaments should be credited with keeping
peace” .41
139
A.A. Cançado Trindade, “La Humanización del Derecho Internacional y los Límites de la Razón de Estado”, in
40 Revista da Faculdade de Direito da Universidade Federal de Minas Gerais — Belo Horizonte/Brazil (2001), pp. 11-23.
14Cf., e.g., the testimonies of the Mayors of Hiroshima and Nagasaki, in part XII, infra.
14ICJ, doc. CR 95/35, of 15.11.1995, p. 32 (statement of Zimbabwe). - 40 -
138. In the aforementioned advisory proceedings, “nuclear deterrence” was dismissed as
being “simply the maintenance of a balance of fear” ; it was criticized as seeking to ground itself
on a “highly questionable” premise, whereby a handful of NWS feel free to “arrogate to
themselves” the faculty “to determine what is world peace and security, exclusive in the context of
their own” national strategies and interests . It was contended that nuclear weapons are in breach
of international law by their own nature, as weapons of catastrophic mass destruction; “nuclear
deterrence” wrongfully assumes that States and individuals act rationally, leaving the world “under
the nuclear sword of Damocles”, stimulating “the nuclear ambitions of their countries, thereby
increasing overall instability”, and also increasing the danger of their being used “intentionally or
accidentally” .4
139. The NWS, in persisting to rely on the strategy of “deterrence”, seem to overlook the
above-reviewed distinct series of U.N. General Assembly resolutions (cf. part III, supra)
condemning nuclear weapons and calling for their elimination. The strategy of “deterrence” has
come under strong criticism along the years, for the serious risks it carries with it, and for its
indifference to the goal — supported by the United Nations, — of achieving a world free of nuclear
weapons. Very recently, e.g., participants in the series of Conferences on the Humanitarian Impact
of Nuclear Weapons (2013-2014) have strongly criticized the strategy of nuclear “deterrence”. In a
statement sent to the 2014 Vienna Conference, for example, the U.N. Secretary-General warned
against the dangers of nuclear “deterrence”, undermining world stability (cf. part XVIII, infra).
140. There is here, in effect, clearly formed, an opinio juris communis as to the illegality and
prohibition of nuclear weapons. The use or threat of use of nuclear weapons being a clear breach
of international law, of International Humanitarian Law and of the International Law of Human
Rights, and of the U.N. Charter, renders unsustainable and unfounded any invocation of the
strategy of “deterrence”. In my view, a few States cannot keep on insisting on “national security
interests” to arrogate to themselves indefinitely the prerogative to determine by themselves the
conditions of world peace, and to impose them upon all others, the overwhelming majority of the
international community. The survival of humankind cannot be made to depend on the “will” of a
handful of privileged States. The universal juridical conscience stands well above the “will” of
individual States.
XII. THE ILLEGALITY OF N UCLEAR W EAPONS AND THE O BLIGATION OF N UCLEAR
D ISARMAMENT
1. The Condemnation of All Weapons of Mass Destruction
141. Since the beginning of the nuclear age, it became clear that the effects of nuclear
weapons (such as heat and radiation) cannot be limited to military targets only, being thus by
nature indiscriminate and disproportionate in their long-term devastation, disclosing the utmost
cruelty. The opinio juris communis as to the prohibition of nuclear weapons, and of all weapons of
mass destruction, has gradually been formed, along the last decades . If weapons less destructive
than nuclear weapons have already been expressly prohibited (as is the case of biological and
142
ICJ, doc. CR 95/27, of 07.11.1995, p. 37 (statement of the Mayor of Nagasaki).
14Ibid., p. 45, para. 14 (statement of Malaysia).
14Ibid., p. 55, para. 8; and cf. pp. 60-61 and 63, paras. 17-20 (statement of Malaysia).
145
Cf., e.g., G. E. do Nascimento e Silva, “A Proliferação Nuclear e o Direito Internacional”, in Pensamiento Jurídico
y Sociedad Internacional — Libro-Homenaje al Prof. A. Truyol y Serra, vol. II, Madrid, Universidad Complutense, 1986,
pp. 877-886; C.A. Dunshee de Abranches, Proscrição das Armas Nucleares, Rio de Janeiro, Livr. Freitas Bastos, 1964,
pp. 114-179. - 41 -
chemical weapons), it would be nonsensical to argue that, those which have not, by positive
conventional international law, like nuclear weapons, would not likewise be illicit; after all, they
have far greater and long-lasting devastating effects, threatening the existence of the international
community as a whole.
142. It may be recalled that, already in 1969, all weapons of mass destruction were
condemned by the Institut de Droit International (I.D.I.). In the debates of its Edinburgh session
on the matter, emphasis was placed on the need to respect the principle of distinction (between
military and non-military objectives), and the terrifying effects of the use of nuclear weapons were
pointed out, — the example of the atomic bombing of Hiroshima and Nagasaki having been
expressly recalled . In its resolution of September 1969 on the matter, the Institut began by
restating, in the preamble, the prohibition of recourse to force in international law, and the duty of
protection of civilian populations in any armed conflict; it further recalled the general principles of
international law, customary rules and conventions, — supported by international case-law and
practice, — which “clearly restrict” the extent to which the parties engaged in a conflict may harm
the adversary, and warned against
“the consequences which the indiscriminate conduct of hostilities and particularly the
use of nuclear, chemical and bacteriological weapons, may involve for civilian
147
populations and for mankind as a whole ” .
143. In its operative part, the aforementioned resolution of the Institut stressed the
importance of the principle of distinction (between military and non-military objectives) as a
“fundamental principle of international law” and the pressing need to protect civilian populations in
armed conflicts , and added, in paragraphs 4 and 7, that:
“Existing international law prohibits all armed attacks on the civilian population
as such, as well as on non-military objects, notably dwellings or other buildings
sheltering the civilian population, so long as these are not used for military purposes
(...).
Existing international law prohibits the use of all weapons which, by their
nature, affect indiscriminately both military objectives and non-military objects, or
both armed forces and civilian populations. In particular, it prohibits the use of
weapons the destructive effect of which is so great that it cannot be limited to specific
military objectives or is otherwise uncontrollable (self-generating weapons), as well as
149
of ‘blind’ weapons” .
144. For its part, the International Law Association (I.L.A.), in its more recent work
(in 2014) on nuclear disarmament, after referring to Article VI of the NPT, was of the view that it
was not only conventional, but also an evolving customary international obligation with an erga
omnes character, affecting “the international community as a whole”, and not only the States
Parties to the NPT . 150 It also referred to the “world-wide public opinion” pointing to “the
14Cf. Annuaire de l’Institut de Droit International — Session d’Edimbourg (1969)-II, pp. 49-50, 53, 55, 60, 62-63,
66, 88-90 and 99.
147
Text in: Annuairede l’Institut de Droit International — Session d’Edimbourg (1969) II, pp. 375-376.
14Paras. 1-3, 5-6 and 8, in ibid., pp. 376-377.
14Text in ibid., pp. 376-377.
150
International Law Association (I.L.A.), Committee: Nuclear Weapons, Non-Proliferation and Contemporary
International Law (2nd Report: Legal Aspects of Nuclear Disarmament), I.L.A. Washington Conference, 2014, pp. 2-4. - 42 -
catastrophic consequences for humankind of any use or detonation of nuclear weapons”, and added
that reliance on nuclear weapons for “deterrence” was thus unsustainable . 151
145. In its view, “nuclear” deterrence is not a global “umbrella”, but rather a threat to
152
international peace and security, and NWS are still far from implementing Article VI of the NPT .
To the International Law Association, the provisions of Article VI are not limited to States Parties
to the NPT, “they are part of customary international law or at least evolving custom”; they are
valid erga omnes, as they affect “the international community as a whole”, and not only a group of
States or a particular State . Thus, as just seen, learned institutions in international law, such as
the I.D.I. and the I.L.A., have also sustained the prohibition in international law of all weapons of
mass destruction, starting with nuclear weapons, the most devastating of all.
146. A single use of nuclear weapons, irrespective of the circumstances, may today
ultimately mean the end of humankind itself . All weapons of mass destruction are illegal, and
are prohibited: this is what ineluctably ensues from an international legal155der of which the
ultimate material source is the universal juridical conscience . This is the position I have
consistently sustained along the years, including in a lecture I delivered at the University of
156
Hiroshima, Japan, on 20.12.2004 . I have done so in the line of jusnaturalist thinking, faithful to
the lessons of the “founding fathers” of the law of nations, keeping in mind not only States, but also
peoples and individuals, and humankind as a whole.
2. The Prohibition of Nuclear Weapons: The Need of a People-Centred Approach
147. In effect, the nuclear age itself, from its very beginning (the atomic blasts of Hiroshima
and Nagasaki in August 1945) can be properly studied from a people-centred approach. There are
moving testimonies and historical accounts of the devastating effects of nuclear weapons, from
surviving victims and witnesses . Yet, even with the eruption of the nuclear age, attention
remained focused largely on State strategies: it took some time for them gradually to shift to the
devastating effects of nuclear weapons on peoples.
148. As recalled in one of the historical accounts, only at the first Conference against Atomic
and Hydrogen Bombs (1955), “the victims had their first opportunity, after ten years of silence, to
151Ibid., pp. 5-6.
152Ibid., pp. 8-9.
153
Ibid., p. 18.
154
Nagendra Singh, Nuclear Weapons and International Law, London, Stevens, 1959, p. 242.
155A.A. Cançado Trindade, International Law for Humankind - Towards a New Jus Gentium, op. cit. supra
n. (111), ch. VI (“The Material Source of International Law: Manifestations of the Universal Juridical Conscience”),
pp. 139-161.
156Text of my lecture reproduced in: A.A. Cançado Trindade, Le Droit international pour la personne humaine,
Paris, Pédone, 2012, ch. I (“L’illicéité de toutes les armes de destruction massive au regard du droit international
contemporain”), pp. 61-90; A.A. Cançado Trindade, A Humanização do Direito Internacional, 2nd ed.,
Belo Horizonte/Brazil, Edit. Del Rey, 2015, ch. XVII (“The Illegality under Contemporary International Law of All
Weapons of Mass Destruction”), pp. 361-390.
157
Michihiko Hachiya, Journal d’Hiroshima — 6 août-30 septembre 1945 [1955], Paris, Éd. Tallandier, 2015
[reed.], pp. 25-281; Toyofumi Ogura, Letters from the End of the World — A Firsthand Account of the Bombing of
Hiroshima [1948], Tokyo/N.Y./London, Kodansha International, 2001 [reed.], pp. 15-173; Naomi Shohno, The Legacy
of Hiroshima — Its Past, Our Future, Tokyo, Kösei Publ. Co., 1987 [reed.], pp. 13-140; Kenzaburo Oe, Notes de
Hiroshima [1965], [Paris,] Gallimard, 1996 [reed.], pp. 17-230; J. Hersey, Hiroshima [1946], London, Penguin, 2015
[reprint], pp. 1-98. - 43 -
make themselves heard”, in that forum . Along the last decades, there have been endeavours to
shift attention from State strategies to the numerous victims and enormous da159es caused by
nuclear weapons, focusing on “human misery and human dignity” . Recently, one significant
initiative to this effect has been the series of Conferences on the Humanitarian Impact of Nuclear
Weapons (2013-2014), which I shall survey later on in this Dissenting Opinion (cf. part XVIII,
infra).
149. There has been a chorus of voices of those who have been personally victimized by
nuclear weapons in distinct circumstances, — either in the atomic bombings of Hiroshima and
Nagasaki (1945), or in nuclear testing (during the cold-war era) in regions such as Central Asia and
the Pacific. Focusing on 160ir intensive suffering (e.g., ensuing from radioactive contamination and
forced displacement) , affecting successive generations, they have drawn attention to the
humanitarian consequences of nuclear weapon detonations.
150. In addressing the issue of nuclear weapons, on four successive occasions (cf. infra), the
ICJ appears, however, to have always suffered from inter-State myopia. Despite the clarity of the
formidable threat that nuclear weapons represent, the treatment of the issue of their prohibition under
international law has most regrettably remained permeated by ambiguities. The present case of
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament is the third time that attempts were made, by means of the lodging of
contentious cases with the ICJ, to obtain its pronouncement thereon. On two prior occasions — in the
Nuclear Tests cases (1974 and 1995) , the Court assumed, in both of them, a rather evasive posture,
avoiding to pronounce clearly on the substance of a matter pertaining to the very survival of
humankind.
151. May I here briefly single out one aspect of those earlier contentious proceedings, given
its significance in historical perspective. It should not pass unnoticed that, in the first Nuclear Tests
case (Australia and New Zealand versus France), one of the applicant States contended, inter alia,
that the nuclear testing undertaken by the French government in the South Pacific region violated
not only the right of New Zealand that no radioactive material enter its territory, air space and
territorial waters and those of other Pacific territories but also “the rights of all members of the
international community, including New Zealand, that no nuclear tests that give rise to radioactive
162
fall-out be conducted” .
152. For its part, the other applicant State contended that it was seeking protection to the life,
health and well-being of Australia’s population, in common with the populations of other States,
against atmospheric nuclear tests by any State . Thus, over three decades ago, the perspective of
the Applications Instituting Proceedings of both New Zealand and Australia (of 1973) went
158
Kenzaburo Oe, Hiroshima Notes [1965], N.Y./London, Marion Boyars, 1997 [reed.], pp. 72 and 159.
15Ibid., pp. 149 and 162.
16Cf. J. Borrie, “Humanitarian Reframing of Nuclear Weapons and the Logic of a Ban”, 90 International Affairs
(2014) p. 633, and cf. pp. 637, 643-644 and 646.
161
Cf. I.C.J. Reports 1974, pp. 63-455; and cf. I.C.J. Reports 1995, pp. 4-23, and the position of three dissenting
Judges in ibid., pp. 317-421.
162
ICJ, Application Instituting Proceedings (of 09.05.1973), Nuclear Tests case (New Zealand versus France), pp. 8
and 15-16, cf. pp. 4-16.
16ICJ, Application Instituting Proceedings (of 09.05.1973), Nuclear Tests case (Australia versus France), pp. 12
and 14, paras. 40, 47 and 49(1). - 44 -
clearly — and correctly so — beyond the purely inter-State dimension, as the problem at issue
concerned the international community as a whole.
153. Both Australia and New Zealand insisted on the people-centred approach throughout
the legal proceedings (written and oral phases). New Zealand, for example, in its Memorial,
invoked the obligation erga omnes not to undertake nuclear testing “owed to the international
community as a whole” (paras. 207-208), adding that non-compliance with it aroused “the keenest
sense of alarm and antagonism among the peoples” and States of the region wherein the tests were
conducted (para. 212). In its oral arguments in the public sitting of 10.07.1974 in the same Nuclear
Tests case, New Zealand again invoked “the rights of all members of the international community”,
and the obligations erga omnes owed to the international community as a whole . And Australia,4
for example, in its oral arguments in the public sitting of 08.07.1974, referring to the 1963 Partial
Test Ban Treaty, underlined the concern of “the whole international community” for “the future of
mankind” and the responsibility imposed by “the principles of international law” upon “all States to
refrain from testing nuclear weapons in the atmosphere” . 165
154. The outcome of the Nuclear Test cases, however, was rather disappointing: even
though the ICJ issued orders of Provisional Measures of Protection in the cases in June 1973 166
(requiring the respondent State to cease testing), subsequently, in its Judgments of 1974 , in view
of the announcement of France’s voluntary discontinuance of its atmospheric tests, the ICJ found,
yielding to State voluntarism, that the claims of Australia and New Zealand no l167er had “any
object” and that it was thus not called upon to give a decision thereon . The dissenting Judges in
the case rightly pointed out that the legal dispute between the contending parties, far from having
ceased, still persisted, since what Australia and New Zealand sought was a declaratory jud168nt of
the ICJ stating that atmospheric nuclear tests were contrary to international law .
155. The reticent position of the ICJ in that case was even more regrettable if one recalls that
the applicants, in referring to the “psychological injury” caused to the peoples of the South Pacific
region through their “anxiety as to the possible effects of radioactive fall-out on the well-being of
themselves and their descendants”, as a result of the atmospheric nuclear tests, ironically invoked
the notion of erga omnes obligations (as propounded by the ICJ itself in its obiter dicta in the
169
Barcelona Traction case only four years earlier) . As the ICJ reserved itself the right, in certain
circumstances, to reopen the case decided in 1974, it did so two decades later, upon an application
instituted by New Zealand versus France. But in its Order of 22.09.1995, the ICJ dismissed the
164
ICJ, Pleadings, Oral Arguments, Documents — Nuclear Tests cases (vol. II: New Zealand versus France,
1973-1974), pp. 256-257 and 264-266.
165ICJ, Pleadings, Oral Arguments, Documents — Nuclear Tests cases (vol. I: Australia versus France,
1973-1974), p. 503.
166For a critical parallel between the 1973 Orders and the 1974 Judgments, cf. P. Lellouche, “The Nuclear Tests Cases:
Judicial Silence versus Atomic Blasts”, 16 Harvard International Law Journal (1975) pp. 615-627 and 635; and, for further
criticisms, cf. ibid., pp. 614-637;
167I.C.J. Reports 1974, pp. 272 and 478, respectively.
168
ICJ, Nuclear Tests case, Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock,
I.C.J. Reports 1974, pp. 319-322, 367-369, 496, 500, 502-504, 514 and 520-521; and cf. Dissenting Opinion of
Judge De Castro, ibid., pp. 386-390; and Dissenting Opinion of Judge Barwick, ibid., pp. 392-394, 404-405, 436-437 and
525-528. It was further pointed out that the ICJ should thus have dwelt upon the question of the existence of rules of
customary international law prohibiting States from causing, through atmospheric nuclear tests, the deposit of radio-active
fall-out on the territory of other States; ICJ, Nuclear Tests case, Separate Opinion of Judge Petrén, I.C.J. Reports 1974,
pp. 303-306 and 488-489. It was the existence or otherwise of such customary rules that had to be determined, — a question
which unfortunately was left largely unanswered by the Court in that case.
169As recalled in the Joint Dissenting Opinion of Judges Onyeama, Dillard, Jiménez de Aréchaga and Waldock,
I.C.J. Reports 1974, pp. 362, 368-369 and 520-521; as well as in theDissenting Opinion of Judge Barwick, ibid., pp. 436-437. - 45 -
complaint, as it did not fit into the caveat of the 1974 Judgment, which concerned atmospheric
nuclear tests; here, the complaint was directed against the underground nuclear tests conducted by
170
France since 1974 .
156. The ICJ thus lost two historical opportunities, in both contentious cases (1974
and 1995), to clarify the key point at issue (nuclear tests). And now, with the decision it has just
rendered today, 05.10.2016, it has lost a third occasion, this time to pronounce on the Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament, at the request of the Marshall Islands. This time the Court has found that the
existence of a legal dispute has not been established before it and that it has no jurisdiction to
consider the Application lodged with it by the Marshall Islands on 24.04.2014.
157. Furthermore, in the mid-nineties, the Court was called upon to exercise its advisory
function, in respect of a directly related issue, that of nuclear weapons: both the U.N. General
Assembly and the World Health Organization (WHO) opened those proceedings before the ICJ, by
means of requests for an Advisory Opinion. Such requests no longer referred to nuclear tests, but
rather to the question of the threat or use of nuclear weapons in the light of international law, for
the determination of their illegality or otherwise.
171
158. In response to only one of the applications, that of the U.N. General Assembly , the
Court, in the Advisory Opinion of 08.07.1996 on the Threat or Use of Nuclear Weapons, affirmed
that neither customary international law nor conventional international law authorizes specifically
the threat or use of nuclear weapons; neither one, nor the other, contains a complete and universal
prohibition of the threat or use of nuclear weapons as such; it added that such threat or use which
is contrary to Article 2(4) of the U.N. Charter and does not fulfil the requisites of its Article 51, is
illicit; moreover, the conduct in armed conflicts should be compatible with the norms applicable in
them, including those of International Humanitarian Law; it also affirmed the obligation to
undertake in good will negotiations conducive to nuclear disarmament in all its aspects . 172
159. In the most controversial part of its Advisory Opinion (resolutory point 2E), the ICJ
stated that the threat or use of nuclear weapons “would be generally contrary to the rules of
international law applicable in armed conflict”, mainly those of International Humanitarian Law;
however, the Court added that, at the present stage of international law “it cannot conclude
definitively if 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” . The Court
therein limited itself to record the existence of a legal uncertainty.
160. In fact, it did not go further than that, and the Advisory Opinion was permeated with
evasive ambiguities, not avoiding the shadow of the non liquet, in relation to a question which
affects, more than each State individually, the whole of humankind. The Advisory Opinion made
17Cf. I.C.J. Reports 1995, pp. 288-308;once again, there were Dissenting Opinions (cf. ibid., pp. 317-421).
Furthermore, petitions against the French nuclear tests in the atoll of Mururoa and in that of Fangataufa, in French Polinesia,
were lodged with the European Commission of Human Rights (EComHR); cf. EComHR, case N.N. Tauira
and 18 Others versus France (appl. n. 28204/95), decision of 04.12.1995, 83-A Decisions and Reports (1995) p. 130.
17As the ICJ understood, as to the other application, that the WHO was not competent to deal with the question at
issue, — despite the purposes of that U.N. specialized agency at issue and the devastating effects of nuclear weapons over
human health and the environment...
17I.C.J. Reports 1996, pp. 266-267.
173
Ibid., p. 266. - 46 -
abstraction of the fact that International Humanitarian Law applies likewise in case of self-defence,
always safeguarding the principles of distinction and proportionality (which nuclear weapons
simply ignore) , and upholding the prohibition of infliction of unnecessary suffering.
161. The Advisory Opinion could and should have given greater weight to a point made
before the ICJ in the oral arguments of November 1995, namely, that of the need of a
people-centred approach in the present domain. Thus, it was stated, for example, that the
“experience of the Marshallese people confirms that unnecessary suffering is an unavoidable
175
consequence of the detonation of nuclear weapons” ; the effects of nuclear weapons, by their 176
nature, are widespread, adverse and indiscriminate, affecting also future generations . It was
further stated that the “horrifying evidence” of the use of atomic bombs in Hiroshima and
Nagasaki, followed by the experience and the aftermath of the nuclear tests carried out in the
region of the Pacific Island States in the 1950s and the 1960s, have alerted to “the much graver
risks to which mankind is exposed by the use of nuclear weapons” . 177
162. The 1996 Opinion, on the one hand, recognized that nuclear weapons cause
indiscriminate and durable suffering, and have an enormous destructive effect (para. 35), and that
the principles of humanitarian law (encompassing customary law) are “intransgressible” (para. 79);
nevertheless, these considerations did not appear sufficient to the Court to discard the use of such
weapons also in self-defence, thus eluding to tell what the Law is in all circumstances. It is clear to
me that States are bound to respect, and to ensure respect, for International Humanitarian Law
(IHL) and the International Law of Human Rights (ILHR) in any circumstances; their fundamental
principles belong to the domain of jus cogens, in prohibition of nuclear weapons.
163. Again, in the 1996 Opinion, it were the dissenting Judges, and not the Court’s split
178
majority179ho drew attention to this , and to the relevance of the Martens clause in the present
context (cf. part XIII, infra). Moreover, the 1996 Opinion also minimized (para. 71) the
resolutions of the U.N. General Assembly which affirm the illegality of nuclear weapons 180 and
condemn their use as a violation of the U.N. Charter and as a crime against humanity. Instead, it
took note of the “policy of deterrence”, which led it to find that the members of the international
community continued “profoundly divided” on the matter, rendering it impossible to determine the
existence of an opinio juris in this respect (para. 67).
174L. Doswald-Beck, “International Humanitarian Law and the Advisory Opinion of the International Court of Justice
on the Legality of the Threat or Use of Nuclear Weapons”, 316 International Review of the Red Cross (1997) pp. 35-55;
H. Fujita, “The Advisory Opinion of the International Court of Justice on the Legality of Nuclear Weapons”, in ibid.,
pp. 56-64. International Humanitarian Law prevails also over self-defence; cf. M.-P. Lanfranchi and Th. Christakis, La licéité
de l’emploi d’armes nucléaires devant la Cour Internationale de Justice, Aix-Marseille/Paris, Université d’Aix-Marseille
III/Economica, 1997, pp. 111, 121 and 123; S. Mahmoudi, “The International Court of Justice and Nuclear Weapons”,
66 Nordic Journal of International Law (1997) pp. 77-100; E. David, “The Opinion of the International Court of Justice on
the Legality of the Useof Nuclear Weapons”, 316 International Review of the Red Cross (1997) pp. 21-34.
175ICJ, doc. CR 95/32, of 14.11.1995, p. 22 (statement of the Marshall Islands).
176Ibid., p. 23.
177
ICJ, doc. CR 95/32, of 14.11.1995, p. 31 (statement of Solomon Islands). Customary international law and
general principles of international law have an incidence in this domain; ibid., pp. 36 and 39-40.
178
ICJ Advisory Opinion on Threat or Use of Nuclear Weapons, I.C.J. Reports 1996, Dissenting Opinion of
Judge Koroma, pp. 573-574 and 578.
179Cf. ibid., Dissenting Opinions of Judge Shahabuddeen, pp. 386-387, 406, 408, 410-411 and 425; and of
Judge Weeramantry, pp. 477-478, 481, 483, 486-487, 490-491, 494, 508 and 553-554.
180Notably, the ground-breaking General Assembly resolution 1653(XVI), of24.11.1961. - 47 -
164. It was not incumbent upon the Court to resort to the unfounded strategy of “deterrence”
(cf. part XI, supra), devoid of any legal value for the determination of the formation of a customary
international law obligation of prohibition of the use of nuclear weapons. The Court did not
contribute on this matter. In unduly relying on “deterrence” (para. 73), it singled out a division, in
its view “profound”, between an extremely reduced group of nuclear powers on the one hand, and
the vast majority of the countries of the world on the other; it ended up by favouring the former, by
means of an inadmissible non liquet . 181
165. The Court, thus, lost yet another opportunity, — in the exercise of its advisory function
as well, — to contribute to the consolidation of the opinio juris communis in condemnation of
nuclear weapons. Its 1996 Advisory Opinion considered the survival of a hypothetical State (in its
resolutory point 2E), rather than that of peoples and individuals, and ultimately of humankind as a
whole. It seemed to have overlooked that the survival of a State cannot have primacy over the right
to survival of humankind as a whole.
3. The Prohibition of Nuclear Weapons: The Fundamental Right to Life
166. There is yet another related point to keep in mind. The ICJ’s 1996 Advisory Opinion
erroneously took IHL as lex specialis (para. 25), overstepping the ILHR, oblivious that the maxim
lex specialis derogat generalis, thus understood, has no application in the present context: in face
of the immense threat of nuclear weapons to human life on earth, both IHL and the ILHR apply in a
182
converging way , so as to enhance the much-needed protection of human life. In any
circumstances, the norms which best protect are the ones which apply, be them of IHL or of the
ILHR, or any other branch of international protection of the human person (such as the
International Law of Refugees — ILR). They are all equally important. Regrettably,
the 1996 Advisory Opinion unduly minimized the international case-law and the whole doctrinal
construction on the right to life in the ambit of the ILHR.
167. It should not pass unnoticed, in this connection, that contemporary international human
rights tribunals, such as the European (ECtHR) and the Inter-American (IACtHR) Courts of Human
Rights, in the adjudication of successive cases in recent years, have taken into account the relevant
principles and norms of both the ILHR and IHL (conventional and customary). For its part, the
African Commission of Human and Peoples’ Rights (AfComHPR), in its long-standing practice,
has likewise acknowledged the approximations and convergences between the ILHR and IHL, and
drawn attention to the principles underlying both branches of protection (such as, e.g., the principle
of humanity).
168. This has been done, in distinct continents, so as to seek to secure the most effective
safeguard of the protected rights, in all circumstances (including in times of armed conflict).
Contrary to what was held in the ICJ’s 1996 Advisory Opinion, there is no lex specialis here, but
rather a concerted endeavour to apply the relevant norms (be them of the ILHR or of IHL) that best
18A.A. Cançado Trindade, International Law for Humankind - Towards a New Jus Gentium, op. cit. supra
n. (111), pp. 415-418; L. Condorelli, “Nuclear Weapons: A Weighty Matter for the International Court of Justice— Jura
Novit Curia?”, 316 International Review of the Red Cross (1997) pp. 9-20; M. Mohr, “Advisory Opinion of the International
Court of Justice on the Legality of the Use of Nuclear Weapons under International Law — A Few Thoughts on Its Strengths
and Weaknesses”, 316 International Review of the Red Cross (1997) pp. 92-102. The Opinion is not conclusive and provides
no guidance; J.-P. Queneudec, “E.T. à la C.I.J.: méditations d’un extra-terrestre sur deux avis consultatifs”, 100 Revue
générale de Droit international public (1996) 907-914, esp. p. 912.
18Cf. A.A. Cançado Trindade, Derecho Internacional de los Derechos Humanos, Derecho Internacional de los
Refugiados y Derecho Internacional Humanitario — Aproximaciones y Convergencias, Geneva, ICRC, [2000], pp. 1-66. - 48 -
protect human beings. This is particularly important when they find themselves in a situation of
utmost vulnerability, — such as in the present context of threat or use of nuclear weapons. In their
case-law, international human rights tribunals (like the ECtHR and the IACtHR) have focused
attention on the imperative of securing pro183tion, e.g., to the fundamental right to life, of persons
in great vulnerability (potential victims) .
169. In the course of the proceedings before the ICJ in the present cases of Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament, the applicant State draws attention reiteratedly to the devastating effects upon human
life of nuclear weapons detonations. Thus, in the case opposing the Marshall Islands to the
United Kingdom, the applicant State draws attention, in its Memorial, to the destructive effects of
nuclear weapons (testing) in space and time (pp. 12-14). In its oral arguments of 11.03.2016, the
Marshall Islands addresses the “tragic losses to the Marshallese”, the “dire health consequences
suffered by the Marshallese following nuclear contamination, including extreme birth defects and
184
cancers” .
170. In the case opposing the Marshall Islands to India, the applicant State, in its Memorial,
refers to the grave “health and environmental consequences of nuclear testing” upon the
Marshallese (pp. 5-6). In its oral arguments of 07.03.2016, the Marshall Islands stated:
“The Marshall Islands has a unique and devastating history with nuclear
weapons. While it was designated as a Trust Territory by the United Nations, no
fewer than 67 atomic and thermonuclear weapons were deliberately exploded as
‘tests’ in the Marshall Islands, by the United States. (...) Several islands in my country
were vaporized and others are estimated to remain uninhabitable for thousands of
years. Many, many Marshallese died, suffered birth defects never before seen and
battled cancers resulting from the contamination. Tragically the Marshall Islands thus
bears eyewitness to the horrific and indiscriminate lethal capacity of these weapons,
and the intergenerational and continuing effects that they perpetuate even 60 years
later.
One ‘test’ in particular, called the ‘Bravo’ test [in March 1954], was 185
one thousand times stronger than the bombs dropped on Hiroshima and Nagasaki” .
171. And in the case opposing the Marshall Islands to Pakistan, the applicant State, in its
Memorial, likewise addresses the serious “health and environmental consequences of nuclear
testing” upon the Marshallese (pp. 5-6). In its oral arguments of 08.03.2016, the Marshall Islands
recalls the 67 atomic and thermonuclear weapons “tests” that it had to endure (since it became a
U.N. Trust Territory); it further recalls the reference, in the U.N. Charter, to nations “large and
small” having “equal rights” (preamble), and to the assertion in its Article 2 that the United Nations
is “based on the principle of the sovereign equality of all its Members” . 186
172. Two decades earlier, in the course of the advisory proceedings before the ICJ of
late 1995 preceding the 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, the
18Cf. A.A. Cançado Trindade, The Access of Individuals to International Justice, Oxford, Oxford University Press,
2012 [reprint], chs. II-III and VII, pp. 17-62 and 125-131.
184
ICJ, doc. CR 2016/5, of 11.03.2016, p. 9, para. 10.
18ICJ, doc. CR 2016/1, of 07.03.2016, p. 16, paras. 4-5.
186
ICJ, doc. CR 2016/2, of 08.03.2016, p. 10, paras. 5-7. - 49 -
devastating effects upon human life of nuclear weapons detonations were likewise brought to the
Court’s attention. It is beyond the purposes of the present Dissenting Opinion to review all
statements to this effect; suffice it here to recall two of the most moving statements, from the
Mayors of Hiroshima and Nagasaki, who appeared before the Court as members of the Delegation
of Japan. The Mayor of Hiroshima (Mr. Takashi Hiraoka) thus began his statement of 07.11.1995
before the ICJ:
“I am here today representing Hiroshima citizens, who desire the abolition of
nuclear weapons. More particularly, I represent the hundreds of thousands of victims
whose lives were cut short, and survivors who are still suffering the effects of
radiation, 50 years later. On their behalf, I am here to testify to the cruel, inhuman
nature of nuclear weapons. (...)
The development of the atomic bomb was the product of cooperation among
politicians, military and scientists. The nuclear age began the moment the bombs
were dropped on human beings.
Their enormous destructive power reduced utterly innocent civilian populations
to ashes. Wome187the elderly, and the newborn were bathed in deadly radiation and
slaughtered” .
173. After stressing that the mass killing was “utterly indiscriminate”, he added that, even
today, “thousands of people struggle daily with the curse of illness caused by that radiation”, there
being until then “no truly accurate casualty figures” . The exposure in Hiroshima to high levels
of radiation, — he proceeded, — “was the first in human history”, generating leukemia, distinct
kinds of cancer (of breast, lung, stomach, thyroid, and other), extending for “years or decades”,
with all the fear generated by such continuing killing “across years or decades” . 189
174. Even half a century later, — added the Mayor of Hiroshima, — “the effects of radiation
on human bodies are not thoroughly understood. Medically, we do know that radiation destroys
190
cells in the human body, which can lead to many forms of pathology” . The victimized segments
of the population have continued suffering “psychologically, physically, and socially from the
atomic bomb’s after-effects” . He further stated that
“The horror of nuclear weapons (. . .) derives (. . .) from the tremendous
destructive power, but equally from radiation, the effects of which reach across
generations. (. . .) What could be more cruel? Nuclear weapons are more cruel and
192
inhumane than any weapon banned thus far by international law” .
175. After singling out the significance of U.N. General Assembly resolution 1653 (XVI)
of 1961, the Mayor of Hiroshima warned that “[t]he stockpiles of nuclear weapons on earth today
are enough to annihilate the entire human race several times over. These weapons are possessed on
18ICJ, doc. CR 95/27, of 07.11.1995, pp. 22-23.
188
Ibid., pp. 24-25.
18Ibid., pp. 25-27.
19Ibid., p. 25.
191
Ibid., pp. 27-28.
19Ibid., p. 30. - 50 -
the assumption that they can be used” . He concluded with a strong criticism of the strategy of
“deterrence”; in his own words,
“As long as nuclear weapons exist, the human race faces a real and present
danger of self-extermination. The idea based on nuclear deterrence that nuclear war
can be controlled and won exhibits a failure of human intelligence to comprehend the
human tragedy and global environmental destruction brought about by nuclear war.
(...) [O]nly through a treaty that clearly stipulates the abolition of nuclear weapons can
194
the world step toward the future (...)” .
176. For his part, the Mayor of Nagasaki (Mr. Iccho Itoh), in his statement before the ICJ,
also of 07.11.1995, likewise warned that “nuclear weapons bring enormous, indiscriminate
devastation to civilian populations”; thus, five decades ago, in Hiroshima and Nagasaki, “a single
aircraft dropped a single bomb and snuffed out the lives of 140.000 and 74.000 people,
respectively. And that is not all. Even the people who were lucky enough to survive continue to
this day to suffer from the late effects unique to nuclear weapons. In thi195ay, nuclear weapons
bring enormous, indiscriminate devastation to civilian populations” .
177. He added that “the most fundamental difference between nuclear and conventional
weapons is that the former release radioactive rays at the time of explosion”, and the exposure to
large doses of radiation generates a “high incidence of disease” and mortality (such as leukaemia
and cancer). Descendants of atomic bomb survivors will have, amidst anxiety, “to be monitored
for several generations to clarify the genetic impact”; “nuclear weapons are inhuman tools for
mass slaughter and destruction”, their use “violates international law” . The Mayor of Nagasaki
concluded with a strong criticism of “nuclear deterrence”, characterizing it as “simply the
maintenance of a balance of fear” (p. 37), always threatening peace, with its “psychology of
suspicion and intimidation”; the Nagasaki survivors of the atomic bombing of 50 years ago,
“continue to live in fear of late effects” .97
178. Those testimonies before the ICJ, in the course of contentious proceedings (in 2016) as
well as advisory proceedings (two decades earlier, in 1995), leave it quite clear that the threat or
use (including “testing”) of nuclear weapons entails an arbitrary deprivation of human life, and is in
flagrant breach of the fundamental right to life. It is in manifest breach of the ILHR, of IHL, as
well as the Law of the United Nations, and hand an incidence also on the ILR. There are,
furthermore, in such grave breach, aggravating circumstances: the harm caused by radiation from
nuclear weapons cannot be contained in space, nor can it be contained in time, it is a true
inter-generational harm.
179. As pointed out in the pleadings before the ICJ of late 1995, the use of nuclear weapons
thus violates the right to life (and the right to health) of “not only people currently living, but also
of the unborn, of those to be born, of subsequent generations” . Is there anything quintessentially
more cruel? To use nuclear weapons appears like condemning innocent persons to hell on earth,
even before they are born. That seems to go even further than the Book of Genesis’s story of the
19Ibid., pp. 30-31.
194
Ibid., p. 31.
195
ICJ, doc. CR 95/27, of 07.11.1995, p. 33.
19Ibid., pp. 36-37.
197
Ibid., pp. 39.
198
ICJ, doc. CR 95/35, of 15.11.1995, p. 28 (statement of Zimbabwe). - 51 -
original sin. In reaction to such extreme cruelty, the consciousness of the rights inherent to the
human person has always marked a central presence in endeavours towards complete nuclear
disarmament.
4. The Absolute Prohibitions of Jus Cogens and the Humanization of International Law
180. The absolute prohibition of arbitrary deprivation of human life (supra) is one of jus
cogens, originating in the ILHR, and with an incidence also on IHL and the ILR, and marking
presence also in the Law of the United Nations. The absolute prohibition of inflicting cruel,
inhuman or degrading treatment is one of jus cogens, originating likewise in the ILHR, and with an
incidence also on IHL and the ILR. The absolute prohibition of inflicting unnecessary suffering is
one of jus cogens, originating in IHL, and with an incidence also on the ILHR and the ILR.
181. In addition to those converging trends (ILHR, IHL, ILR) of international protection of
the rights of the human person, those prohibitions of jus cogens mark presence also in
contemporary International Criminal Law (ICL), as well as in the corpus juris gentium of
condemnation of all weapons of mass destruction. The absolute prohibitions of jus cogens
nowadays encompass the threat or use of nuclear weapons, for all the human suffering they entail:
in the case of their use, a suffering without limits in space or in time, and extending to succeeding
generations.
182. I have been characterizing, along the years, the doctrinal and jurisprudential
construction of international jus cogens as proper of the new jus gentium of our times, the
International Law for Humankind. I have been sustaining, moreover, that, by definition,
international jus cogens goes beyond the law of treaties, extending itself to the law of the
international responsibility of the State, and to the whole corpus juris of contemporary
International Law, and reaching, ultimately, any juridical act .
183. In my lectures in an OAS Course of International Law delivered in Rio de Janeiro
almost a decade ago, e.g., I have deemed it fit to ponder that
“The fact that the concepts both of the jus cogens, and of the obligations (and
rights) erga omnes ensuing therefrom, already integrate the conceptual universe of
contemporary international law, the new jus gentium of our days, discloses the
reassuring and necessary opening of this latter, in the last decades, to certain superior
and fundamental values. This significant evolution of the recognition and assertion of
norms of jus cogens and obligations erga omnes of protection is to be fostered,
seeking to secure its full practical application, to the benefit of all human beings. In
this way the universalist vision of the founding fathers of the droit des gens is being
duly rescued. New conceptions of the kind impose themselves in our days, and, of
their faithful observance, will depend to a large extent the future evolution of
contemporary international law.
This latter does not emanate from the inscrutable ‘will’ of the States, but rather,
in my view, from human conscience. General or customary international law
emanates not so much from the practice of States (not devoid of ambiguities and
contradictions), but rather from the opinio juris communis of all the subjects of
199A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra
n. (111), ch. XII, pp. 291-326. - 52 -
international law (States, international organizations, human beings, and humankind as
a whole). Above the will stands the conscience. (...)
The current process of the necessary humanization of international law stands in
reaction to that state of affairs. It bears in mind the universality and unity of the
human kind, which inspired, more than four and a half centuries ago, the historical
process of formation of the droit des gens. In rescuing the universalist vision which
marked the origins of the most lucid doctrine of international law, the aforementioned
process of humanization contributes to the construction of the new jus gentium of the
XXIst century, oriented by the general principles of law. This process is enhanced by
its own conceptual achievements, such as, to start with, the acknowledgement and
recognition of jus cogens and the consequent obligations erga omnes of protection,
followed by other concepts disclosing likewise a universalist perspective of the law of
nations.
(...) The emergence and assertion of jus cogens in contemporary international
law fulfill the necessity of a minimum of verticalization in the international legal
order, erected upon pillars in which the juridical and the ethical are merged. The
evolution of the concept of jus cogens transcends nowadays the ambit of both the law
of treaties and the law of the international responsibility of the States, so as to reach
200
general international law and the very foundations of the international legal order” .
5. The Pitfalls of Legal Positivism: A Rebuttal of the So-Called Lotus “Principle”
184. A matter which concerns the whole of humankind, such as that of the existence of
nuclear weapons, can no longer be appropriately dealt with from a purely inter-State outlook of
international law, which is wholly surpassed in our days. After all, without humankind there is no
State whatsoever; one cannot simply have in mind States, apparently overlooking humankind. In
its 1996 Advisory Opinion, the ICJ took note of the treaties which nowadays prohibit, e.g.,
biological and chemical weapons , and weapons which cause excessive damages or have
indiscriminate effects (para. 76) .202
185. But the fact that nowadays, in 2016, there does not yet exist a similar general treaty, of
specific prohibition of nuclear weapons, does not mean that these latter are permissible (in certain
203
circumstances, even in self defence) . In my understanding, it cannot be sustained, in a matter
which concerns the future of humankind, that which is not expressly prohibited is thereby
permitted (a classic postulate of positivism). This posture would amount to the traditional — and
surpassed — attitude of the laisser-faire, laisser-passer, proper of an international legal order
fragmented by State voluntarist subjectivism, which in the history of international law has
invariably favoured the most powerful ones. Ubi societas, ibi jus...
20A.A. Cançado Trindade, “Jus Cogens: The Determination and the Gradual Expansion of Its Material Content in
Contemporary International Case-Law”, in XXXV Curso de Derecho Internacional Organizado por el Comité Jurídico
Interamericano — 2008, Washington D.C., OAS General Secretariat, 2009, pp. 3-29.
201The Geneva Protocol of 1925, and the Conventions of 1972 and 1993 against Biological and Chemical Weapons,
respectively.
202
E.g., the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May
Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects.
203
The Roman-privatist influence — with its emphasis on the autonomy of the will had harmful consequences in
traditional international law; in the public domain, quite on the contrary, conscience stands above the “will”, also in the
determination of competences. - 53 -
186. Legal positivists, together with the so-called “realists” of Realpolitik, have always been
sensitive to the established power, rather than to values. They overlook the time dimension, and
are incapable to behold a universalist perspective. They are static, in time and space. Nowadays,
in the second decade of the XXIst century, in an international legal order which purports to assert
common superior values, amidst considerations of international ordre public, and basic
considerations of humanity204t is precisely the reverse logic which is to prevail: that which is not
permitted, is prohibited .
187. Even in the days of the Lotus case (1927), the view endorsed by the old PCIJ whereby
under international law everything that was not expressly prohibited would thereby be permitted,
was object of severe criticisms, not only of a compelling Dissenting Opinion in the case itself 205 but
206
also on the part of expert writing of the time . Such conception could only have flourished in an
epoch “politically secure” in global terms, certainly quite different from that of the current nuclear
age, in face of the recurrent threat of nuclear weapons and other weapons of mass destruction, the
growing vulnerability of territorial States and indeed of the world population, and the increasing
complexity in the conduction of international relations. In our days, in face of such terrifying
threat, it is the logic opposite to that of the Lotus case which imposes itself: all that is not expressly
permitted is surely prohibited . All weapons of mass destruction, including nuclear weapons, are
illegal and prohibited under contemporary international law.
188. The case of Shimoda and Others (District Court of Tokyo, decision of 07.12.1963),
with the dismissed claims of five injured survivors of the atomic bombings of Hiroshima and
Nagasaki, stands as a grave illustration of the veracity of the maxim summum jus, summa injuria,
when one proceeds on the basis of an allegedly absolute submission of the human person to a
degenerated international legal order built on an exclusively inter-State basis. May I here reiterate
what I wrote in 1981, regarding the Shimoda and Others case, namely,
“(...) The whole arguments in the case reflect the insufficiencies of an international
legal order being conceived and erected on the basis of an exclusive inter-State
system, leaving individual human beings impotent in the absence of express treaty
provisions granting them procedural status at international level. Even in such a
matter directly affecting fundamental human rights, the arguments were conducted in
the case in the classical lines of the conceptual apparatus of the so-called law on
diplomatic protection, in a further illustration of international legal reasoning still
being haunted by the old Vattelian fiction” 208.
189. There exists nowadays an opinio juris communis as to the illegality of all weapons of
mass destruction, including nuclear weapons, and the obligation of nuclear disarmament, under
204A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro, Edit. Renovar,
2002, p. 1099.
205Cf. Dissenting Opinion of Judge Loder, PCIJ, Lotus case (France versus Turkey), Series A, n. 10, Judgment of
07.09.1927, p. 34 (such conception was not in accordance with the “spirit of international law”).
206
Cf. J.L. Brierly, The Basis of Obligation in International Law and Other Papers, Oxford, Clarendon Press, 1958,
p. 144; H. Lauterpacht, The Function of Law in the International Community, Oxford, Clarendon Press, 1933, pp. 409-412
and 94-96; and cf., subsequently, e.g., G. Herczegh, “Sociology of International Relations and International Law”, in
Questions of International Law (ed. G. Haraszti), Budapest, Progresprint, 1971, pp. 69-71 and 77.
207
A.A. Cançado Trindade, O Direito Internacional emum Mundo em Transformação, op. cit. supra n. (204), p. 1099.
208A.A. Cançado Trindade, “The Voluntarist Conception of International Law: A Re-Assessment”, 59 Revue de droit
international de sciences diplomatiques et politiques — Geneva (1981) p. 214, and cf. pp. 212-213. On the need of a
universalist perspective, cf. also Cf. K. Tanaka, “The Character or World Law in the International Court of Justice” [translated
from Japanese into English by S. Murase], 15 Japanese Annual of International Law (1971) pp. 1-22. - 54 -
contemporary international law. There is no “gap” concerning nuclear weapons; given the
indiscriminate, lasting and indescribable suffering they inflict, they are outlawed, as much as other
weapons of mass destruction (biological and chemical weapons) are. The positivist outlook
purporting to challenge this prohibition of contemporary general international law has long been
surpassed. Nor can this matter be approached from a strictly inter-State outlook, without taking
into account the condition of peoples and human beings as subjects of international law.
190. All weapons of mass destruction are illegal under contemporary international law. The
threat or use of such weapons is condemned in any circumstances by the universal juridical
conscience, which in my view constitutes the ultimate material source of International Law, as of
all Law. This is in keeping with the conception of the formation and evolution of International
Law which I have been sustaining for many years; it transcends the limitations of legal positivism,
seeking to respond effectively to the needs and aspirations of the international community as a
whole, and, ultimately, of all humankind.
XIII. R ECOURSE TO THE “M ARTENS C LAUSE ”AS AN E XPRESSION OF THE RAISON
D’H UMANITÉ .
191. Even if there was a “gap” in the law of nations in relation to nuclear weapons, — which
there is not,— it is possible to fill it by resorting to general principles of law. In its 1996 Advisory
Opinion, the ICJ preferred to focus on self-defence of a hypothetical individual State, instead of
developing the rationale of the Martens clause, the purpose of which is precisely that of filling
209
gaps in the light of the principles of the law of nations, the “laws of humanity” and the “d210ates
of public conscience” (terms of the wise premonition of Fyodor Fyodorovich von Martens ,
originally formulated in the I Hague Peace Conference of 1899).
192. Yet, continuing recourse to the Martens clause, from 1899 to our days, consolidates it
as an expression of the strength of human conscience. Its historical trajectory of more than one
century has sought to extend protection juridically to human beings in all circumstances (even if
not contemplated by conventional norms). Its reiteration for over a century in successive
international instruments, besides showing that conventional and customary international law in the
domain of protection of the human person go together, reveals the Martens clause as an emanation
of the material source par excellence of the whole law of nations (the universal juridical
conscience), giving expression to the raison d’humanité and imposing limits to the raison d’État .
193. It cannot be denied that nuclear weapons are intrinsically indiscriminate, incontrollable,
that they cause severe and durable damage and in a wide scale in space and time, that they are
prohibited by International Humanitarian Law (Articles 35, 48 and 51 of the Additional Protocol I
of 1977 to the 1949 Geneva Conventions on International Humanitarian Law), and are inhuman as
20J. Salmon, Le problème des lacunes à la lumière de l’avis ‘Licéité de la menace ou de l'emploi d´armes nucléaires’
rendu le 8 juillet 1996 par la Cour Internationale de Justice”, in Mélanges en l’honneur de N. Valticos — Droit et justice (ed.
R.-J. Dupuy), Paris, Pédone, 1999, pp. 197-214, esp. pp. 208-209; R. Ticehurst, “The Martens Clause and the Laws of Armed
Conflict”, 317 International Review of the Red Cross (1997) pp. 125-134, esp. pp. 133-134; A. Azar, Les opinions des juges
dans l’Avis consultatif sur la licéité de la menace ou de l’emploi d’armes nucléaires, Bruxelles, Bruylant, 1998, p. 61.
21Which was intended to extend juridically the protection to the civilians and combatants in all situations, even if not
contemplated by the conventional norms.
211
A.A. Cançado Trindade, Tratado de Direito Internacional dos Direitos Humanos, vol. II, Porto Alegre/Brazil,
S.A. Fabris Ed., 1999, pp. 497-509. - 55 -
212
weapons of mass destruction . Early in the present nuclear age, the four Geneva Conventions
established the grave violations of international law (Convention I, Article 49(3); Convention II,
Article 50(3); Convention III, Article 129(3); and Convention IV, Article 146(3)). Such grave
violations, when involving nuclear weapons, victimize not only States, but all other subjects of
international law as well, individuals and groups of individuals, peoples, and humankind as a
whole.
194. The absence of conventional norms stating specifically that nuclear weapons are
prohibited in all circumstances does not mean that they would be allowed in a given circumstance.
Two decades ago, in the course of the advisory proceedings of late 1995 before the ICJ leading to
its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons, some of the participating
213
States drew attention to the incidence of the Martens clause in the present domain . It was
pointed out, on the occasion, that the argument that international instruments do not specifically
contain an express prohibition of use of nuclear weapons seems to overlook the Martens clause . 214
195. Also in rebuttal of that argument, — typical of legal positivism, in its futile search for
an express prohibition, — it was further observed that the “principles of humanity” and the
“dictates of public conscience”, evoked by the Martens clause, permeate not only the law of armed
conflict, but “the whole of international law”; they are essentially dynamic, pointing to conduct
215
which may nowadays be condemned as inhumane by the international community , such as
recourse to the threat or use of nuclear weapons. It was further stated, in the light of the
Martens clause, that the “threat and use of nuclear weapons violate both customary international
216
law and the dictates of public conscience” .
196. The Martens clause safeguards the integrity of Law (against the undue permissiveness
of a non liquet) by invoking the principles of the law of nations, the “laws of humanity” and the
“dictates of the public conscience”. Thus, that absence of a conventional norm is not conclusive,
and is by no means the end of the matter, — bearing in mind also customary international law.
Such absence of a conventional provision expressly prohibiting nuclear weapons does not at all
mean that they are legal or legitimate . The evolution of international law 218points, in our days,
219
in my understanding, towards the construction of the International Law for humankind and,
within the framework of this latter, to the outlawing by general international law of all weapons of
mass destruction.
212Cf. comments in Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of
12 August 1949 (eds. Y. Sandoz, C. Swinarski and B. Zimmermann), Geneva, ICRC/Nijhoff, 1987, pp. 389-420 and 597-600.
213Cf. ICJ, doc. CR 95/31, of 13.11.1995, p. 45-46(statement of Samoa); ICJ, doc. CR 95/25, of 03.11.1995,
p. 55 (statement of Mexico); ICJ, doc. CR 95/27, of 07.11.1995, p. 60 (statement of Malaysia).
214ICJ, doc. 95/26, of 06.11.1995, p. 32 (statement of Iran).
215
ICJ, doc. 95/22, of 30.10.1995, p. 39 (statement of Australia).
216ICJ, doc. 95/35, of 15.11.1995, p. 33 (statement of Zimbabwe).
21Stefan Glaser, L’arme nucléaire à la lumière du Droit international, Paris, Pédone, 1964, pp. 15, 21, 24-27, 32,
36-37, 41, 43-44 and 62-63, and cf. pp. 18 and 53.
218If, in other epochs, the ICJ had likewise limited itself to verify a situation of “legal uncertainty” (which, anyway,
does not apply in the present context), most likely it would not have issued its célèbres Advisory Opinions on Reparations for
Injuries (1949), on Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide (1951), and on
Namibia (1971), which have so much contributed to the evolution of international law.
219Cf. A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra
n. (111), pp. 1-726. - 56 -
197. Had the ICJ, in its 1996 Advisory Opinion on the Threat or Use of Nuclear Weapons,
made decidedly recourse in great depth to the Martens clause, it would not have lost itself in a
sterile exercise, proper of a legal positivism déjà vu, of a hopeless search of conventional norms,
frustrated by the finding of what it understood to be a lack of these latter as to nuclear weapons
specifically, for the purposes of its analysis. The existing arsenals of nuclear weapons, and of other
weapons of mass destruction, are to be characterized by what they really are: a scorn and the
ultimate insult to human reason, and an affront to the juridical conscience of humankind.
198. The aforementioned evolution of international law, — of which the Martens clause is a
significant manifestation, — has gradually moved from an international into a universal dimension,
on the basis of fundamental values, and in the sense of an objective justice , which has always
been present in jusnaturalist thinking. Human conscience stands above the “will” of individual
States. This evolution has, in my perception, significantly contributed to the formation of an opinio
juris communis in recent decades, in condemnation of nuclear weapons.
199. This opinio juris communis is clearly conformed in our days: the overwhelming
majority of member States of the United Nations, the NNWS, have been sustaining for years the
series of General Assembly resolutions in condemnation of the use of nuclear weapons as illegal
under general international law. To this we can add other developments, reviewed in the present
Dissenting Opinion, such as, e.g., the NPT Review Conferences, the establishment of regional
nuclear-weapon-free zones, and the Conferences on the Humanitarian Impact of Nuclear Weapons
(cf. parts XVI-XVIII, infra).
XIV. N UCLEAR D ISARMAMENT : JUSNATURALISM ,THE HUMANIST C ONCEPTION AND THE
UNIVERSALITY OF INTERNATIONAL L AW
200. The existence of nuclear weapons, — maintained by the strategy of “deterrence” and
“mutually assured destruction” (“MAD”, as it became adequately called, since it was devised in the
cold-war era), is the contemporary global tragedy of the nuclear age. Death, or self-destruction,
haunts everyone everywhere, propelled by human madness. Human beings need protection from
themselves, today more than ever , — and this brings our minds to other domains of human
knowledge. Law by itself cannot provide answers to this challenge to humankind as a whole.
201. In the domain of nuclear disarmament, we are faced today, within the conceptual
universe of international law, with unexplainable insufficiencies, or anomalies, if not absurdities.
For example, there are fortunately in our times Conventions prohibiting biological and chemical
weapons (of 1972 and 1993), but there is to date no such comprehensive conventional prohibition
of nuclear weapons, which are far more destructive. There is no such prohibition despite the fact
that they are in clear breach of international law, of IHL and the ILHR, as well as of the Law of the
United Nations.
202. Does this make any sense? Can international law prescind from ethics? In my
understanding, not at all. Just as law and ethics go together (in the line of jusnaturalist thinking),
22A.A. Cançado Trindade, Los Tribunales Internacionales Contemporáneos y la Humanización del Derecho
Internacional, Buenos Aires, Ed. Ad-Hoc, 2013, pp. 166-167; and cf. C. Husson-Rochcongar, Droit international des
droits de l’homme et valeurs — Le recours aux valeurs dans la jurisprudence des organes spécialisés, Bruxelles,
Bruylant, 2012, pp. 309-311, 451-452, 578-580, 744-745 and 771-772.
221
In another international jurisdiction, in my Separate Opinion in the IACtHR’s case of the Massacres of
Ituango versus Colombia (Judgment of 01.07.2006), I devoted part of my reflections to “human cruelty in its distinct
manifestations in the execution of State policies” (part II, paras. 9-13). - 57 -
scientific knowledge itself cannot be dissociated from ethics. The production of nuclear weapons
is an illustration of the divorce between ethical considerations and scientific and technological
progress. Otherwise, weapons which can destroy millions of innocent civilians, and the whole of
humankind, would not have been conceived and produced.
203. The principles of recta ratio, orienting the lex praeceptiva, emanate from human
conscience, affirming the ineluctable relationship between law and ethics. Ethical considerations
are to guide the debates on nuclear disarmament. Nuclear weapons, capable of destroying
humankind as a whole, carry evil in themselves. They ignore civilian populations, they make
abstraction of the principles of necessity, of distinction and of proportionality. They overlook the
principle of humanity. They have no respect for the fundamental right to life. They are wholly
illegal and illegitimate, rejected by the recta ratio, which endowed jus gentium, in its historical
evolution, with ethical foundations, and its character of universality.
204. Already in 1984, in its general comment n. 14 (on the right to life), the U.N. Human
Rights Committee (HRC — under the Covenant on Civil and Political Rights), for example, began
by warning that war and mass violence continue to be “a scourge of humanity”, taking the lives of
thousands of innocent human beings every year (para. 2). In successive sessions of the
General Assembly, — it added, — representatives of States from all geographical regions have
expressed their growing concern at the development and proliferation of “increasingly awesome
weapons of mass destruction” (para. 3). Associating itself with this concern, the HRC stated that
“(...) 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.
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.
The production, testing, possession, deployment and use of nuclear weapons
should be prohibited and recognized as crimes against humanity.
The Committee, accordingly, in the interest of mankind, calls upon all States
222
(...) to take urgent steps (...) to rid the world of this menace” (paras. 4-7) .
205. The absence in contemporary international law of a comprehensive conventional
prohibition of nuclear weapons is incomprehensible. Contrary to what legal positivists think, law is
not self-sufficient, it needs inputs from other branches of human knowledge for the realisation of
justice. Contrary to what legal positivists think, norms and values go together, the former cannot
prescind from the latter. Contrary to legal positivism, — may I add, — jusnaturalism, taking into
22‘General Comment’ n. 14 (of 1984) of the HRC, text in: United Nations, Compilation of General Comments and
General Recommendations Adopted by Human Rights Treaty Bodies, doc. HRI/GEN/1/Rev.3, of 15.08.1997, pp. 18-19. The
HRC, further stressing that the right to life is a fundamental right which does not admit any derogation not even in time of
public emergency, related the current proliferation of weapons of mass destruction to “the supreme duty of States to prevent
wars”. Cf. also U.N. Report of theHuman Rights Committee, G.A.O.R. — 40th Session (1985), suppl. n. 40 (A/40/40), p. 162. - 58 -
account ethical considerations, pursues a universalist outlook (which legal positivists are incapable
223
of doing), and beholds humankind as entitled to protection .
224
206. Humankind is subject of rights, in the realm of the new jus gentium . As this cannot
be visualized from the optics of the State, contemporary international law has reckoned the limits
of the State as from the optics of humankind. Natural law thinking has always been attentive to
justice, which much transcends positive law. The present case of Obligations Concerning
Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament has
been lodged with the International Court of Justice, and not with an International Court of Positive
Law. The contemporary tragedy of nuclear weapons cannot be addressed from the myopic outlook
of positive law alone.
207. Nuclear weapons, and other weapons of mass destruction, have no ethics, have no
ground on the law of nations (le droit des gens): they are in flagrant breach of its fundamental
principles, and those of IHL, the ILHR, as well as the Law of the United Nations. They are a
contemporary manifestation of evil, in its perennial trajectory going back to the Book of Genesis
(cf. part VII, supra). Jusnaturalist thinking, always open to ethical considerations, identifies and
discards the disrupting effects of the strategy of “deterrence” of fear creation and infliction 225 (cf.
part XI, supra). Humankind is victimized by this.
208. In effect, humankind has been, already for a long time, a potential victim of nuclear
weapons. To establish such condition of potential victim, one does not need to wait for the actual
destruction of life on earth. Humankind has, for the last decades, been suffering psychological
harm caused by the existence itself of arsenals of nuclear weapons. And there are peoples, and
segments of populations, who have been actual victims of the vast and harmful effects of nuclear
tests. The existence of actual and potential victims is acknowledged in international case-law in
the domain of the International Law of Human Rights . To address this danger from a strict
inter-State outlook is to miss the point, to blind oneself. States were created and exist for human
beings, and not vice-versa.
223
A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra
n. (111), pp. 1-726. Recta ratio and universalism, present in the jusnaturalist thinking of the “founding fathers” of
international law (F. de Vitoria, F. Suárez, H. Grotius, among others), go far back in time to the legacies of Cicero, in his
characterization of recta ratio in the foundations of jus gentium itself, and of Thomas Aquinas, in his conception of
synderesis, as predisposition of human reason to be guided by principles in the search of the common good; ibid.,
pp. 10-14.
224
Ibid., ch. XI, pp. 275-288; A.A. Cançado Trindade, “Quelques réflexions sur l’humanité comme sujet du droit
international”, in Unité et diversité du Droit international — Écrits en l’honneur du Prof. P.-M. Dupuy (eds. D. Alland,
V. Chetail, O. de Frouville and J.E. Viñuales), Leiden, Nijhoff, 2014, pp. 157-173.
225
Cf., to this effect, C.A.J. Coady, “Natural Law and Weapons of Mass Destruction”, in Ethics and Weapons of
Mass Destruction — Religious and Secular Perspectives (eds. S.H. Hashmi and S.P. Lee), Cambridge, Cambridge
University Press, 2004, p. 122, and cf. p. 113; and cf. also J. Finnis, J.M. Boyle Jr. and G. Grisez, Nuclear Deterrence,
Morality and Realism, Oxford, Clarendon Press, 1987, pp. 77-103, 207-237, 275-319 and 367-390. In effect,
contemporary expert writing has become, at last, very critical of the “failed strategy” of “deterrence”; cf., inter alia, e.g.,
[Various Authors,] At the Nuclear Precipice — Catastrophe or Transformation? (eds. R. Falk and D. Krieger), London,
Palgrave/MacMillan, 2008, pp. 162, 209, 218 and 229; A.C. Alves Pereira, Os Impérios Nucleares e Seus Reféns:
Relações Internacionais Contemporâneas, Rio de Janeiro, Ed. Graal, 1984, pp. 87-88, and cf. pp. 154, 209 and 217.
226For an early study on this issue, cf. A.A. Cançado Trindade, “Co-Existence and Co-Ordination of Mechanisms of
International Protection of Human Rights (At Global and Regional Levels)”, 202 Recueil des Cours de l’Académie de Droit
International de La Haye (1987), ch. XI, pp. 271-283. And for subsequent developments on the notion of potential victims,
cf. A.A. Cançado Trindade, The Access of Individuals to International Justice, Oxford, Oxford University Press, 2012
[reprint], ch. VII, pp. 125-131. - 59 -
209. The NPT has a universalist vocation, and counts on everyone, as shown by its three
basic principled pillars together. In effect, as soon as it was adopted, the 1968 NPT came to be
seen as having been devised and concluded on the basis of those principled pillars, namely:
non-proliferation of nuclear weapons (preamble and Articles I-III), peaceful use of nuclear energy
(preamble and Articles IV-V), and nuclear disarmament (preamble and Article VI) . 227 The
228
antecedents of the NPT go back to the work of the U.N. General Assembly in 1953 . The NPT’s
three-pillar framework came to be reckoned as the “grand bargain” between its parties, NWS and
NNWS. But soon it became a constant point of debate between NWS and NNWS parties to the
229
NPT. In effect, the “grand bargain” came to be seen as “asymmetrical” , and NNWS began to
criticize the very slow pace of achieving nuclear disarmament as one of the three basic principled
pillars of the NPT (Article VI) .
210. Under the NPT, each State is required to do its due. NWS are no exception to that, if
the NPT is not to become dead letter. To achieve the three interrelated goals (non-proliferation of
nuclear weapons, peaceful use of nuclear energy, and nuclear disarmament) is a duty of each and
every State towards humankind as a whole. It is a universal duty of conventional and customary
international law in the nuclear age. There is an opinio juris communis to this effect, sedimented
along the recent decades, and evidenced in the successive establishment, in distinct continents, of
nuclear-weapon-free zones, and nowadays in the Conferences on the Humanitarian Impact of
Nuclear Weapons (cf. parts XVII-XVIII, infra).
XV. T HE PRINCIPLE OF H UMANITY AND THE U NIVERSALIST APPROACH : JUS N ECESSARIUM
T RANSCENDING THE L IMITATIONS OF JUS V OLUNTARIUM
211. In my understanding, there is no point in keeping attached to an outdated and
reductionist inter-State outlook, particularly in view of the revival of the conception of the law of
nations (droit des gens) encompassing humankind as a whole, as foreseen and propounded by the
“founding fathers” of international law3(in the XVIth-XVIIth centuries). It would be nonsensical
to try to cling to the unduly reductionist inter-State outlook in the international adjudication of a
case concerning the contending parties and affecting all States, all peoples and humankind as a
whole.
212. An artificial, if not fossilized, strictly inter-State mechanism of dispute-settlement
cannot pretend to entail or require a (likewise) entirely inadequate and groundless inter-State
reasoning. The law of nations cannot be interpreted and applied in a mechanical way, as from an
exclusively inter-State paradigm. To start with, the humane ends of States cannot be overlooked.
22Articles VIII-XI, in turn, are procedural in nature.
22In particular the speech of President D. D. Eisenhower (U.S.) to the U.N. General Assembly in 1953, as part of
his plan “Atoms for Peace”; cf., e.g., I. Chernus, Eisenhower’s Atoms for Peace, [Austin,] Texas A&M University Press,
2002, pp. 3-154.
229
J. Burroughs, The Legal Framework for Non-Use and Elimination of Nuclear Weapons, [N.Y.], Greenpeace
International, 2006, p. 13.
230
H. Williams, P. Lewis and S. Aghlani, The Humanitarian Impacts of Nuclear Weapons Initiative: The ‘Big
Tent’ in Disarmament, London, Chatam House, 2015, p. 7; D.H. Joyner, “The Legal Meaning and Implications of
Article VI of the Non-Proliferation Treaty”,Nuclear Weapons and International Law (eds. G. Nystuen,
S. Casey-Maslen and A.G. Bersagel), Cambridge, Cambridge University Press, 2014, pp. 397, 404 and 417, and cf.
pp. 398-399 and 408; and cf. D.H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty, Oxford, Oxford University
Press, 2013 [reprint], pp. 2, 104 and 126, and cf. pp. 20, 26-29, 31, 97 and 124.
23A.A. Cançado Trindade, Évolution du Droit international au droit des gens — L´accès des particuliers à la justice
internationale: le regard d’un juge, Paris, Pédone, 2008, pp. 1-187. - 60 -
In relation to nuclear weapons, the potential victims are the human beings and peoples, beyond
their respective States, for whom these latter were created and exist.
213. As I had the occasion to point out in another international jurisdiction, the law of
nations (droit des gens), since its historical origins in the XVIth century, was seen as comprising
not only States (emerging as they were232but also peoples, the human person (individually and in
groups), and humankind as a whole . The strictly inter-State outlook was devised much later on,
as from the Vattelian reductionism of the mid-XVIIIth century, which became en vogue by the end
of the XIXth century and beginning of the XXth century, with the well-known disastrous
consequences — the successive atrocities victim233ng human beings and peoples in distinct regions
of world, — along the whole XXth century . In the present nuclear age, extending for the last
seven decades, humankind as a whole is threatened.
214. Within the ICJ as well, I have had also the occasion to stress the need to go beyond the
inter-State outlook. Thus, in my Dissenting Opinion in the recent case of the Application of the
Convention against Genocide (Croatia versus Serbia, Judgment of 03.02.2015), I have pointed out,
inter alia, that the 1948 Convention against Genocide is not State-centric, but is rather oriented
towards groups of persons, towards the victims, whom it seeks to protect (paras. 59 and 529). The
humanist vision of the international legal order pursues an outlook centred on the peoples, keeping
in mind the humane ends of States.
215. I have further underlined that the principle of humanity is deeply-rooted in the
long-standing thinking of natural law (para. 69).
“Humaneness came to the fore even more forcefully in the treatment of persons in
situation of vulnerability, or even defencelessness, such as those deprived of their
personal freedom, for whatever reason. The jus gentium, when it emerged as
amounting to the law of nations, came then to be conceived by its ‘founding fathers’
(F. de Vitoria, A. Gentili, F. Suárez, H. Grotius, S. Pufendorf, C. Wolff) as regulating
the international community constituted by human beings socially organized in the
(emerging) States and co-extensive with humankind, thus conforming the necessary
law of the societas gentium.
The jus gentium, thus conceived, was inspired by the principle of humanity lato
sensu. Human conscience prevails over the will of individual States. Respect for the
human person is to the benefit of the common good. This humanist vision of the
international legal order pursued — as it does nowadays — a people-centered outlook,
keeping in mind the humane ends of the State. The precious legacy of natural law
thinking, evoking the right human reason (recta ratio), has never faded away;
(paras. 73-74).
The precious legacy of natural law thinking has never vanished; despite the indifference and
pragmatism of the “strategic” droit d’étatistes (so numerous in the legal profession nowadays), the
principle of humanity emerged and remained in international legal thinking as an expression of the
raison d’humanité imposing limits to the raison d’État (para. 74).
232
IACtHR, case of the Community Moiwana versus Suriname (Judgment of 15.06.2005), Separate Opinion of
Judge Cançado Trindade, paras. 6-7.
23Ibid., paras. 6-7. - 61 -
216. This is the position I have always taken, within the ICJ and, earlier on, the IACtHR.
For example, in the ICJ’s Advisory Opinion on Judgment n. 2867 of the ILO Administrative
Tribunal upon a Complaint Filed against IFAD (of 01.02.2012), I devoted one entire part (n. XI) of
my Separate Opinion to the erosion — as I perceive it — of the inter-State outlook of adjudication
by the ICJ (paras. 76-81). I warned likewise in my Separate Opinion (paras. 21-23) in the case of
Whaling in the Antarctic (Australia versus Japan, Order of 06.02.2013, on New Zealand’s
intervention), as well as in my recent Separate Opinion (paras. 16-21 and 28-41) in the case of
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea
(Nicaragua versus Colombia, Preliminary Objections, Judgment of 17.03. 2016).
217. Earlier on, within the IACtHR, I took the same position: for example, inter alia, in my
Concurring Opinions in both the Advisory Opinion n. 16, on the Right to Information on Consular
Assistance in the Framework of the Due Process of Law (of 01.10.1999), and the Advisory Opinion
n. 18, on the Juridical Condition and Rights of Undocumented Migrants (of 17.09.2003), of the
IACtHR, I deemed it fit to point out, — going beyond the strict inter-State dimension, — that, if
non-compliance with Article 36(1)(b) of the 1963 Vienna Convention on Consular Relations takes
place, it occurs to the detriment not only of a State Party but also of the human beings at issue.
Such pioneering jurisprudential construction, in the line of jusnaturalist thinking, rested upon the
evolving concepts of jus cogens and obligations erga omnes of protection . 234
218. Recta ratio stands firmly above the “will”. Human conscience, — the recta ratio so
cultivated in jusnaturalism, — clearly prevails over the “will” and the strategies of individual
States. It points to a universalist conception of the droit des gens (the lex praeceptiva for the totus
orbis), applicable to all (States as well as peoples and individuals), given the unity of the human
kind. Legal positivism, centred on State power and “will”, has never been able to develop such
universalist outlook, so essential and necessary to address issues of concern to humankind as a
whole, such as that of the obligation of nuclear disarmament. The universal juridical conscience
prevails over the “will” of individual States.
219. The “founding fathers” of the law of nations (such as, inter alii, F. de Vitoria, F. Suárez
and H. Grotius) had in mind humankind as a whole. They conceived a universal jus gentium for
the totus orbis, securing the unity of the societas gentium; based on a lex praeceptiva, the jus
gentium was apprehended by the recta ratio, and conformed a true jus necessarium, much
transcending the limitations of the jus voluntarium. Law ultimately emanates from the common235
conscience of what is juridically necessary (opinio juris communis necessitatis) . The
contribution of the “founding fathers” of jus gentium found inspiration largely in the scholastic
philosophy of natural law (in particular in the stoic and Thomist conception of recta ratio and
justice), which recognized the human being as endowed with intrinsic dignity).
220. Moreover, in face of the unity of the human kind, they conceived a truly universal law
of nations, applicable to all — States as well as peoples and individuals — everywhere (totus
orbis). In thus contributing to the emergence of the jus humanae societatis, thinkers like
F. de Vitoria and D. de Soto, among others, permeated their lessons with the humanist thinking that
preceded them. Four and a half centuries later, their lessons remain contemporary, endowed with
perennial validity and aptitude to face, e.g., the contemporary and dangerous problem of the
234
Cf. comments of A.A. Cançado Trindade, Os Tribunais Internacionais e a Realização da Justiça,
Rio de Janeiro, Edit. Renovar, 2015, pp. 463-468.
23A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra
n. (111), pp. 137-138. - 62 -
existing arsenals of nuclear weapons. Those thinkers went well beyond the “will” of States, and
rested upon the much safer foundation of human conscience (recta ratio and justice).
221. The conventional and customary obligation of nuclear disarmament brings to the fore
another aspect: the issue of the validity of international legal norms is, after all, metajuridical.
International law cannot simply remain indifferent to values, general principles of law and ethical
considerations; it has, to start with, to identify what is necessary, — such as a world free of nuclear
weapons, — in order to secure the survival of humankind. This idée du droit precedes positive
international law, and is in line with jusnaturalist thinking.
222. Opinio juris communis necessitatis upholds a customary international law obligation to
secure the survival of humankind. Conventional and customary obligations go here together. Just
as customary rules may eventually be incorporated into a convention, treaty provisions may
likewise eventually enter into the corpus of general international law. Customary obligations can
either precede, or come after, conventional obligations. They evolve pari passu. This being so, the
search for an express legal prohibition of nuclear weapons (such as the one undertaken in the ICJ’s
Advisory Opinion of 1996 on the Threat or Use of Nuclear Weapons) becomes a futile, if not
senseless, exercise of legal positivism.
223. It is clear to human conscience that those weapons, which can destroy the whole of
humankind, are unlawful and prohibited. They are in clear breach of jus cogens. And jus cogens
was reckoned by human conscience well before it was incorporated into the two Vienna
Conventions on the Law of Treaties (of 1969 and 1986). As I had the occasion to warn,
three decades ago, at the 1986 U.N. Conference on the Law of Treaties between States and
International Organizations or between International Organizations, jus cogens is “incompatible with
the voluntarist conception of international law, because that conception failed to explain the formation
of rules of general international law” .
XVI. NPT R EVIEW CONFERENCES
224. In fact, in the course of the written phase of the proceedings before the Court in the
present case of Obligations Concerning Negotiations Relating to Cessat237 of the Nuclear Arms 238
Race and to Nuclear Disarmament, both the Marshall Islands and the United Kingdom
addressed, in their distinct arguments, the series of NPT Review Conferences. For its part, India
also addressed the Review Conferences , in particular to leave on the records its position on the
matter, as explained in a statement made on 09.05.2000.
225. Likewise, in the course of the oral phase of the present proceedings before the Court in
cas d’espèce, the applicant State, the Marshall Islands, referred to the NPT Review Conferences in
236
U.N., United Nations Conference on the Law of Treaties between States and International Organizations or
between International Organizations — Official Records, vol. I (statement by the Representative of Brazil,
A.A. Cançado Trindade, of 12.03.1986), pp. 187-188, para. 18.
23Application Instituting Proceedings, p. 24, para. 66; and Memorial, pp. 29, 56-60, 61, 63, 68-69, 71 and 73,
paras. 50, 123-128, 130, 136, 150, 153, 154, 161-162 and 168; and Statement of Observations on [U.K.’s] Preliminary
Objections, pp. 15 and 47, paras. 32 and 126.
23Preliminary Objections, pp. 1-2, 10 and 23, paras. 2-3, 21 and 50.
239
Counter-Memorial, p. 15, para. 23 n. 49, and Annex 23. - 63 -
240
its oral arguments in two of the three cases it lodged with the Court against India , and the
United Kingdom ; references to the Review Conferences were also made, for their part, in their
oral arguments, by the tw242espondent States which partici243ed in the public sittings before the
Court, namely, India and the United Kingdom . Those Review Conferences conform the
factual context of the cas d’espèce, and cannot pass unnoticed. May I thus proceed to a brief
review of them.
226. The NPT Review Conferences, held every five years, started in 1975. The following
three Conferences of the kind were held, respectively, in 1980, 1985 and 1990, respectively . The 244
fifth of such Conferences took place in 1995, the same year that the Marshall Islands became a
party to the NPT (on 30.01.1995). In one of its decisions, the 1995 NPT Conference singled out
the vital role of the NPT in preventing the proliferation of nuclear weapons, and warned that the
245
proliferation of nuclear weapons would seriously increase the danger of nuclear war . For their
part, NWS reaffirmed their commitment, under Article VI of the NPT, to pursue in good faith
negotiations on effective measures relating to nuclear disarmament.
227. The 1995 Review Conference prolonged indefinitely the NPT, and adopted its decision
on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament”. Yet, in its report,
the Main Committee I (charged with the implementation of the provisions of the NPT) observed
with regr246that Article VI and preambular paragraphs 8-12 of the NPT had not been wholly
fulfilled , with the number of nuclear weapons then existing being greater than the one existing
when the NPT entered into force; it further regretted “the continuing lack of progress” on relevant
items of the Conference on Disarmament, and urged a commitment on the part of NWS on “no-first
use and non-use of nuclear weapons with immediate effect” . 247
228. Between the fifth and the sixth Review Conferences, India and Pakistan carried out
nuclear tests in 1998. For its part, on several occasions, the Movement of Non-Aligned Countries
248
called for “urgent” measures of nuclear disarmament . To this effect, the 2000 Review
Conference agreed to a document containing the “13 Practical Steps” in order to meet the
249
commitments of States Parties under Article VI of the NPT . The “13 Practical Steps” stress the
relevance and urgency of ratifications of the CTBT so as to achieve its entry into force, and of
setting up a moratorium on nuclear-weapon tests pending such entry into force. Furthermore, they
240
ICJ. doc. CR 2016/1, of 07.03.2016, pp. 26-27 and 50, paras. 9 and 17 (M.I.); ICJ. doc. CR 2016/6,
of 14.03.2016, p. 32, para. 10 (M.I.).
241
ICJ. doc. CR 2016/5, of 11.03.2016, p. 47, para. 8 (M.I.).
242ICJ. doc. CR 2016/4, of 10.03.2016, p. 14, para. 3 (India).
243ICJ. doc. CR 2016/7, of 09.03.2016, pp. 14-16 and 18-19, paras. 20, 22, 24, 32 and 37 (United Kingdom).
244For an assessment of these earlier NPT Review Conferences, cf. H. Müller, D. Fischer and W. Kötter, Nuclear
Non-Proliferation and Global Order, Stockholm-Solna/Oxford, SIPRI/Oxford University Press, 1994, pp. 31-108.
245
Decision 2, NPT/CONF.1995/32 (Part I), Annex, p. 2.
246
Final Document, part II, p. 257, paras. 3-3ter., and cf. pp. 258 and 260, paras. 4 and 9.
247Ibid., pp. 271-273, paras. 36-39.
248NPT/CONF.2000/4, paras. 12-13.
249Final Document, part I, pp. 14-15. - 64 -
call for the commencement of negotiations on a treaty banning the production of fissile material for
250
nuclear weapons and also call upon NWS to accomplish the total elimination of nuclear arsenals .
229. At the 2005 Review Conference, no substantive decision was adopted, amidst
continuing disappointment at the lack of progress on implementation of Article VI of the NPT,
particularly in view of the “13 Practical Steps” agreed to at the 2000 Review Conference.
Concerns were expressed that new nuclear weapon systems were being developed, and strategic
doctrines were being adopted lowering the threshold for the use of nuclear weapons; moreover,
regret was also expressed that States whose ratification was needed for the CTBT’s entry into force
had not yet ratified the CTBT . 251
230. Between the 2005 and the 2010 Review Conferences, there were warnings that the NPT
was “now in danger” and “under strain”, as the process of disarmament had “stagnated” and needed
to be “revived” in order to prevent the spread of weapons of mass destruction. The concerns
addressed what was regarded as the unsatisfactory stalemate in the Conference on Disarmament in
Geneva, which had been “unable to adopt an agenda for almost a decade” to identify substantive
252
issues to be discussed and negotiated in the Conference .
231. The “Five-Point Proposal on Nuclear Disarmament”, announced by the
253
Secretary-General in an address of 24.10.2008 , began by urging all NPT States Parties, in
particular the NWS, to fulfil their obligations under the Treaty “to undertake negotiations on
effective measures leading to nuclear disarmament” (para. 1) . It called upon the permanent
members of the Security Council to commence discussions on security issues in the nuclear
disarmament process, including by giving NNWS assurances against the use or threat of use of
nuclear weapons (para. 5). It stressed the need of “new efforts to bring the CTBT into force”, and
encouraged NWS to ratify all the Protocols to the Treaties which established Nuclear-Weapon-Free
Zones (para. 6). Moreover, it also stressed “the need for greater transparency” in relation to
arsenals of nuclear weapons and disarmament achievements (para. 7). And it further called for the
elimination also of other types of weapons of mass destruction (para. 8).
232. The “Five-Point Proposal on Nuclear Disarmament” was reiterated by the
255
U.N. Secretary-General in two subsequent addresses in the following three years . In one of
them, before the Security Council on 24.09.2009, he stressed the need of an “early entry into force”
of the CTBT, and pondered that “disarmament and non-proliferation must proceed together”; he
urged “a divided international community” to start moving ahead towards achieving “a
25The “13 Practical Steps”, moreover, affirm that the principle of irreversibility should apply to all nuclear
disarmament and reduction measures. At last, the 13 practical steps reaffirm the objective of general and complete
disarmament under effective international control, and stress the importance of both regular reports on the
implementation of NPT’s Article VI obligations, and the further development of verification capabilities.
25NPT/CONF.2005/57, part I, and cf. report on the 2005 Review Conference in: 30 U.N. Disarmament
Yearbook (2005) ch. I, p. 23.
25Hans Blix, Why Disarmament Matters, Cambridge, Mass./London, Boston Review/MIT, 2008, pp. 6 and 63.
253
Cf. U.N. Secretary-General (Ban Ki-moon), Address (at a conference at the East-West Institute): “The
United Nations and Security in a Nuclear-Weapon-Free World”, in U.N. News Centre, of 24.10.2008, pp. 1-3.
254
It added that this could be pursued either by an agreement on “a framework of separate, mutually reinforcing
instruments”, or else by negotiating “a nuclear-weapons convention, backed by a strong system of verification, as has
long been proposed at the United Nations” (para. 2).
25On two other occasions, namely, during a Security Council Summit on Nuclear Non-Proliferation
on 24.09.2009, and at a Conference organized by the East-West Institute on 24.10.2011. - 65 -
nuclear-weapon-free wo256”, and, at last, he expressed his hope in the forthcoming 2010 NPT
Review Conference .
233. Both the 2000 and the 2010 Review Conferences made an interpretation of nuclear
disarmament under Article VI of the NPT as a “positive disarmament obligation”, in line with the
dictum in 257 ICJ’s 1996 Advisory Opinion of nuclear disarmament in good faith as an obligation
of result . The 2010 Review Conference expressed its deep concern that there remained the
continued risk for humankind put by the possibility that nuclear weapons could be used, and the
catastrophic humanitarian consequences that would result therefrom.
234. The 2010 Review Conference, keeping in mind the 1995 decision on “Principles and
Objectives for Nuclear Non-Proliferation and Disarmament” as well as the 2000 agreement on the
“13 Practical Steps”, affirmed the vital importance of the universality of the NPT , and, 258
furthermore, took note of the “Five-Point Proposal on Nuclear Disarmament” of the
U.N. Secretary-General, of 2008. For the first time in the present series of Review Conferences,
the Final Document of the 2010 Review Conference recognized “the catastrophic humanitarian
259
consequences that would result from the use of nuclear weapons” .
2605. The Final Document welcomed the creation of successive nuclear-weapon-free
zones , and, in its conclusions, it endorsed the “legitimate interest” of NNWS to receive
“unequivocal and legally binding security assurances” from NWS on the matter at issue; it asserted
and recognized that “the total elimination of nuc261r weapons is the only absolute guarantee against
the use or threat of use of nuclear weapons” . The aforementioned Final Document reiterated the
2010 Review Conference’s “deep concern at the catastrophic humanitarian consequences of any
use of nuclear weapons”, and “the need for all States at all times to comply with applicable
international law, including international humanitarian law” . 262 This key message of the
2010 Review Conference triggered the initiative, three years later, of the new series of Conferences
on the Humanitarian Impact of Nuclear Weapons (cf. infra).
236. The “historic acknowledgement” of “the catastrophic humanitarian consequences of any
use of nuclear weapons” was duly singled out by the ICRC, in its statement in the more
recent 2015 Review Conference ; the ICRC pointed out that that new series of Conferences
(2013-2014, in Oslo, Nayarit and Vienna) has given the international community “a much clearer
grasp” of the effects of nuclear detonations on peoples around the world. It then warned that,
45 years after the NPT’s entry into force, “there has been little or no concrete progress” in fulfilling
the goal of elimination of nuclear weapons. As nuclear weapons remain the only weapons of mass
25U.N. Secretary-General (Ban Ki-moon), “Opening Remarks to the Security Council Summit on Nuclear
Non-Proliferation and Nuclear Disarmament”, in U.N. News Centre, of 24.09.2009, pp. 1-2.
25D.H. Joyner, “The Legal Meaning and Implications of Article VI of the Non-Proliferation Treaty”, in: Nuclear
Weapons and International Law (eds. G. Nystuen, S. Casey-Maslen and A.G. Bersagel), Cambridge, Cambridge
University Press, 2014, pp. 413 and 417.
25NPT/CONF.2010/50, vol. I, pp. 12-14 and 19-20.
25Cf. 2010 Review Conference — Final Document, vol. I, doc. NPT/CONF.2010/50, of 18.06.2010, p. 12,
para. 80.
260
Cf. ibid., p. 15, para. 99.
261
Ibid., p. 21, point (i).
26Ibid., p. 19, point (v).
26ICRC, “Eliminating Nuclear Weapons”, Statement — 2015 Review Conference of the Parties to the NPT,
of 01.05.2015, p. 1. - 66 -
destruction not prohibited by a treaty, “filling this gap is a humanitarian imperative”, as the
“imme264te risks of intentional or accidental nuclear detonations” are “too high and the dangers too
real” .
237. The 2015 Review Conference displayed frustration over the very slow pace of action on
nuclear disarmament, in addition to current nuclear modernization programs and reiteration of
dangerous nuclear strategies, apparently oblivious of the catastrophic humanitarian consequences
of nuclear weapons. At the 2015 Review Conference, the Main Committee I, charged with
addressing Article VI of the NPT, stressed the importance of “the ultimate goal” of elimination of
nuclear weapons, so as to achieve “general and complete disarmament under effective international
265
control” .
238. The 2015 Review Conference reaffirmed that “the total elimination of nuclear weapons
is the only absolute guarantee against the use or threat of use o266uclear weapons, including the risk
of their unauthorized, unintentional or accidental detonation” . It expressed its “deep concern”
that, during the period 2010-2015, the Conference on Disarmament did not commence negotiations
267
of an instrument on such nuclear disarmament , and then stressed the “urgency for the Conference
on Disarmament” to achieve “an internationally legally binding instrument” to that effect”, so as
“to assure” NNWS against the use or threat of use of nuclear weapons by all NWS . 268
239. After welcoming “the increased and positive interaction with civil society” during the
cycle of Review Conferences, the most recent 2015 Review Conference stated that
“understandings and concerns pertaining to the catastrophic humanitarian
consequences of any nuclear weapon detonation underpin and should compel urgent
efforts by all States leading to a world without nuclear weapons. The Conference
affirms that, pending the realization of this objective, it is in the interest of the very
survival of humanity that nuclear weapons never be used again” . 269
XVII. T HE E STABLISHMENT OF N UCLEAR -W EAPON -FREE Z ONES
240. In addition to the aforementioned NPT Review Conferences, the opinio juris communis
on the illegality of nuclear weapons finds expression also in the establishment, along the last half
century, of nuclear-weapon-free zones, which has responded to the needs and aspirations of
humankind, so as to rid the world of the threat of nuclear weapons. The establishment of those zones
has, in effect, given expression to the growing disapproval of nuclear weapons by the international
community as a whole. There are, in effect, references to nuclear-weapon-free zones in the arguments,
in the written phase of the present proceedings, of the Marshall Islands 270 and of the
26Ibid., pp. 2-3.
265
2015 Review Conference — Working Paper of the Chair of Main Committee I,
doc. NPT/CONF.2015/MC.I/WP.1, of 18.05.2015, p. 3, para. 17.
266
Ibid., p. 5, para. 27.
26Ibid., p. 5, para. 35.
26Ibid., p. 6, para. 43.
269
Ibid., p. 7, paras. 45-46(1).
27Application Instituting Proceedings of the M.I., p. 26, para. 73; and Memorial of the M.I., pp. 40, 53 and 56,
paras. 84, 117 and 122. - 67 -
271
United Kingdom in the present case of Obligations Concerning Negotiations Relating to
Cessation of the Nuclear Arms Race and to Nuclear Disarmament.
241. I originally come from the part of the world, Latin America, which, together with the
Caribbean, form the first region of the world to have prohibited nuclear weapons, and to have
proclaimed itself as a nuclear-weapon-free zone. The pioneering initiative in this domain, of
Latin America and the Caribbean , resulted in the adoption of the 1967 Treaty for the Prohibition
of Nuclear Weapons in Latin America and the Caribbean and its two Additional Protocols. Its
reach transcended Latin America and the Caribbean, as evidenced by its two Additional
273
Protocols , and the obligations set forth in its legal regime were wide in scope:
“Le régime consacré dans le Traité n’est pas simplement celui de
non-prolifération: c’est un régime d’absence totale d’armes nucléaires, ce qui veut dire
que ces armes seront interdites à perpétuité dans les territoires auxquels s’applique le
Traité, quel que soit l’État sous le contrôle duquel pourraient se trouver ces terribles
274
instruments de destruction massive” .
242. By the time of the creation of that first nuclear-weapon-free zone by the 1967 Treaty of
Tlatelolco, it was pointed out that it came as a response to humanity’s concern with its own future
275
(given the threat276 nuclear weapons), and in particular with “the survival of the humankind” .
That initiative was followed by four others of the kind, in distinct regions of the world,
conducive to the adoption of the 1985 South Pacific (Rarotonga) Nuclear-Free Zone Treaty, the
1995 Southeast Asia (Bangkok) Nuclear-Weapon277ee Zone Treaty, the 1996 African (Pelindaba)
Nuclear Weapon-Free Zone Treaty , as well as the 2006 Central Asian (Semipalatinsk)
Nuclear-Weapon-Free Zone Treaty. Basic considerations of humanity have surely been taken into
account for the establishment of those nuclear-weapon-free zones.
243. In fact, besides the Treaty of Tlatelolco, also the Rarotonga, Bangkok, Pelindaba, and
Semipalatinsk Treaties purport to extend the obligations enshrined therein, by means of their
278
respective Protocols, not only to the States of the regions at issue, but also to nuclear States , as
well as States which are internationally responsible, de jure or de facto, for territories located in the
respective regions. The verification of compliance with the obligations regularly engages the
279
IAEA . Each of the five aforementioned treaties (Tlatelolco, Rarotonga, Bangkok, Pelindaba and
271
Preliminary Objections of the U.K., p. 2, para. 4.
272On the initial moves in the U.N. to this effect, by Brazil (in 1962) and Mexico (taking up the leading role from 1963
onwards), cf. Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. infra n. (277), pp. 116, 20
and 139.
273
The first one concerning the States internationally responsible for territories located within the limits of the zone of
application of the Treaty, and the second one pertaining to thenuclear-weapon States.
274A. García Robles, “Mesures de désarmement dans des zones particulières: le Traité visant l'interdiction des armes
nucléaires en Amérique Latine”, 133 Recueil des Cours de l'Académie de Droit International de La Haye [RCADI] (1971) p.
103, and cf. p. 71.
275Ibid., p. 99, and cf. p. 102.
276Which was originally prompted by a reaction to the Cuban missiles crisis of 1962.
277Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, N.Y./Geneva, U.N.-OPANAL/UNIDIR,
1997, pp. 9, 25, 39 and 153.
278Those Protocols contain the undertaking not only not to use nuclear weapons, but also not to threaten their use;
cf. M. Roscini, op. cit. infra (n. 286), pp. 617-618.
279
The Treaty of Tlatelolco has in addition counted on its own regional organism to that end, the Organism for the
Prohibition of Nuclear Weapons in Latin America (OPANAL). - 68 -
Semipalatinsk) creating nuclear-weapon-free zones has distinctive features, as to the kinds and
extent of obligations and methods of verification , but they share the common ultimate goal of
preserving humankind from the threat or use of nuclear weapons.
244. The second nuclear-weapon-free zone, established by the Treaty of Rarotonga (1985),
with its three Protocols, came as a response 281to long-sustained regional aspirations, and increasing
frustra282n of the populations of the countries of the South Pacific with incursions of NWS in the
region . The Rarotonga Treaty encouraged the negotiation of a similar zone, — by means of the
1995 Bangkok Treaty, — in the neighbouring region of Southeast Asia, and confirmed the
“continued relevance of zonal approaches” to the goal of disarmament and the safeguard of
humankind from the menace of nuclear weapons . 283
245. The third of those treaties, that of Bangkok, of 1995 (with its Protocol), was prompted
by the initiative of the Association of South-East Asian Nations (ASEAN) to insulate the region
from the policies and rivalries of the nuclear powers. The Bangkok Treaty, besides covering the
land territories of all ten Southeast Asian States, is the first treaty of the kind also to encompass
284
their territorial sea, 200-mile exclusive economic zone and continental shelf . The fourth such
treaty, that of Pelindaba, of 1996, in its turn, was prompted by the continent’s reaction to nuclear
tests in the region (as from the French nuclear tests in the Sahara in 1961), and the aspirati285—
deeply-rooted in African thinking — to keep nuclear weapons out of the region . The Pelindaba
Treaty (with its three Protocols) appears to have served the purpose to eradicate nuclear weapons
from the African continent.
246. The fifth such treaty, that of Semipalatinsk, of 2006, contains, like the other treaties
creating nuclear weapon-free zones (supra), the basic prohibitions to manufacture, acquire,
286
possess, station or control nuclear explosive devices within the zones . The five treaties at issue, 287
though containing loopholes (e.g., with regard to the transit of nuclear weapons) , have as
common denominator the practical value of arrangements that transcend the non-proliferation of
288
nuclear weapons .
280
Cf., in general, M. Roscini, Le Zone Denuclearizzate, Torino, Giappichelli Ed., 2003, pp. 1-410; J. Goldblat,
“Zones exemptes d’armes nucléaires: une vue d’ensemble”, in Le droit international des armes nucléaires (Journée d’études,
ed. S. Sur), Paris, Pédone, 1998, pp. 35-55.
281
Upon the initiative of Australia.
282
M. Hamel-Green, “The South Pacific — The Treaty of Rarotonga”, in Nuclear Weapons-Free Zones (ed.
R. Thakur), London/N.Y., MacMillan/St. Martin’sPress, 1998, p. 59, and cf. p. 62.
283
Ibid., pp. 77 and 71.
28This extended territorial scope has generated resistance on the part of nuclear-weapon States to accept its present
form; A. Acharya and S. Ogunbanwo, “The Nuclear-Weapon-Free Zones in South-East Asia and Africa”, in Armaments,
Disarmament and International Security — SIPRI Yearbook (1998) pp. 444 and 448.
285
Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. supra n. (277), pp. 60-61; and cf.
J. O. Ihonvbere, “Africa — The Treaty of Pelindaba”, in Nuclear Weapons-Free Zones, op. cit. supra n. (282), pp. 98-99
and 109. And, for a general study, cf. O. Adeniji, The Treaty of Pelindaba on the African Nuclear-Weapon-Free Zone,
Geneva, UNIDIR, 2002, pp. 1-169.
286
M. Roscini, “Something Old, Something New: The 2006 Semipalatinsk Treaty on a Nuclear Weapon-Free
Zone in Central Asia”, 7 Chinese Journal of International Law (2008) p. 597.
287
As to their shortcomings, cf., e.g., J. Goldblat, “The Nuclear Non-Proliferation Régime: Assessment and
Prospects”, 256 Recueil des Cours de l’Académie de Droit International de La Haye (1995) pp. 137-138; M. Roscini, op. cit.
supra n. (286), pp. 603-604.
288
J. Enkhsaikhan, “Nuclear-Weapon-Free Zones: Prospects and Problems”, 20 Disarmament — Periodic Review by
the United Nations (1997) n. 1, p. 74. - 69 -
247. Each of the five treaties (of Tlatelolco, Rarotonga, Bangkok, Pelindaba and
Semipalatinsk) reflects the characteristics of each of the five regions, and they all pursue the same
cause. The establishment of the nuclear weapon-free zones has been fulfilling the needs and
289
aspirations of peoples living under the fear of nuclear victimization . Their purpose is being
served, also in withholding or containing nuclear ambitions, to the ultimate benefit of humankind
as a whole.
248. Nowadays, the five aforementioned nuclear weapon-free zones are firmly established in
densely populated areas, covering most (almost all) o290he landmass of the southern hemisphere
land areas (while excluding most sea areas) . The adoption of the 1967 Tlatelolco Treaty,
the 1985 Rarotonga Treaty, the 1995 Bangkok Treaty, the 1996 Pelindaba Treaty, and the 2006
Semipalatinsk Treaty, have discl291d the shortcomings and artificiality of the posture of the
so-called political “realists” , which insisted on the suicidal strategy of nuclear “deterrence”, in
their characteristic subservience to power politics.
249. The substantial Final Report of 1999 of the U.N. Disarmament Commission underlined
the relevance of nuclear-weapon-free zones and of their contribution to the achievement of nuclear
292
disarmament , “expressing and promoting common values” and constituting “important
complementary” instruments to the NPT and the “international regime for the prohibition” of any
nuclear-weapon explosions . Drawing attention to the central role of the United Nations in the
294
field of disarmament , the aforementioned Report added:
“Nuclear-weapon-free zones have ceased to be exceptional in the global
strategic environment. To date, 107 States have signed or become parties to treaties
establishing existing nuclear-weapon-free zones. With the addition of Antarctica,
which was demilitarized pursuant to the Antarctic Treaty, nuclear-weapon-free zones
now cover more than 50 per cent of the Earth’s land mass. (…)
The establishment of further nuclear-weapon-free zones reaffirms the
commitment of the States that belong to such zones to honour their legal obligations
deriving from other international instruments in force in the area of nuclear
non-proliferation and disarmament to which they are parties” . 295
250. Moreover, the 1999 Final Report of the U.N. Disarmament Commission further stated
that, for their part, NWS should fully comply with their obligations, under the ratified Protocols to
the Treaties of treaties on nuclear-weapon-free zones, “not to use or threaten to use nuclear
28Cf., e.g., H. Fujita, “The Changing Role of International Law in the Nuclear Age: from Freedom of the High Seas to
Nuclear-Free Zones”, in Humanitarian Law of Armed Conflict: Challenges Ahead —Essays in Honour of F. Kalshoven (eds.
A.J.M. Delissen and G.J. Tanja), Dordrecht, Nijhoff, 1991, p. 350, and cf. pp. 327-349.
29J. Prawitz, “Nuclear-Weapon-Free Zones: Their Added Value in a Strengthened International Safeguards System”,
in Tightening the Reins — Towards a Strengthened International Nuclear Safeguards System (eds. E. Häckel and G. Stein),
Berlin/Heidelberg, Springer-Verlag, 2000, p. 166.
29Cf. Naciones Unidas, Las Zonas Libres de Armas Nucleares en el Siglo XXI, op. cit. supra n. (277), pp. 27, 33-38
and 134.
29U.N., Report of the Disarmament Commission — General Assembly Official Records (54th Session,
supplement n. 42), U.N. doc. A/54/42, of 06.05.1999, Annex I, pp. 6-7, paras. 1, 6 and 9.
293
Ibid., p. 7, paras. 10-11 and 13.
294
Ibid., Annex II, p. 11 3rd preambular paragraph.
29Ibid., Annex I, p. 7, para. 5; and p. 8, para. 28. - 70 -
weapons” . It went on to encourage member States of those zones “to share experiences” with
297
States of other regions, so as “to establish further nuclear-weapon-free zones” . It concluded that
the international community, by means of “the creation of nuclear-weapon-free zones around the
globe”, should aim at “general and complete disarmament under strict and effective international
298
control, so that future generations can live in a more stable and peaceful atmosphere” .
251. To the establishment of aforementioned five nuclear-weapon-free zones other initiatives
against nuclear weapons are to be added, such as the prohibitions of placement of nuclear weapons,
and other kinds of weapons of mass destruction, in outer space, on the seabed, on the ocean floor
and in the subsoil beyond the outer limit of the territorial seabed zone, — “denuclearized” by the
Treaties of Antarctica (1959), Outer Space (1967) and the Deep Sea Bed (1971), respectively, to
which can be added the Treaty on the Moon and Other Celestial Bodies (1979), established a
complete demilitarization thereon .299
252. The fact that the international community counts today on five nuclear-weapon-free
zones, in relation to which States that possess nuclear weapons do have a particular responsibility,
reveals an undeniable advance of right reason, of the recta ratio in the foundations of contemporary
international law. Moreover, the initiative of nuclear-weapon-free zones keeps on clearly gaining
ground. In recent years, proposals are being examined for the setting up of new denuclearized
300 301
zones of the kind , as well as of the so-called single-State zone (e.g., Mongolia) . That initiative
further reflects the increasing disapproval, by the international community as a whole, of nuclear
weapons, which, in view of their hugely destructive capability, constitute an affront to right reason
(recta ratio).
XVIII. C ONFERENCES ON THE H UMANITARIAN IMPACT OF NUCLEAR W EAPONS (2013-2014)
253. In the course of the proceedings in the present case of Obligations Concerning
Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear Disarmament, several
references were made to the more recent series of Conferences on the Humanitarian Impact of
Nuclear Weapons (2013-2014), and in particular to the statement made therein (in the second of
those Conferences) by the Marshall Islands, asserting that NWS should fulfill their obligation,
“long overdue”, of negotiation to achieve complete nuclear disarmament (cf. infra). The
Marshall Islands promptly referred to its own statement in the Nayarit Conference (2014) in its
Memorial in the cas d’espèce, as well as in its oral arguments before the ICJ.
254. In effect, the Conferences on the Humanitarian Impact of Nuclear Weapons (a series
initiated in 2013) were intended to provide a forum for dialogue on, and a better understanding of,
the humanitarian consequences of use of nuclear weapons for human beings, societies, and the
296
Ibid., p. 9, para. 36.
29Ibid., p. 9, para. 41.
29Ibid., p. 9, para. 45.
299
Cf. G. Venturini, “Control and Verification of Multilateral Treaties on Disarmament and Non-Proliferation of
Weapons of Mass Destruction”, 17 University of California Davis Journal of International Law and Policy (2011)
pp. 359-360.
30E.g., in Central and Eastern Europe, in the Middle East, in Central and North-East and South Asia, and in the whole
of the southern hemisphere.
30Cf. A. Acharya and S. Ogunbanwo, op. cit. supra n. (284), p. 443; J. Enkhsaikhan, op. cit. supra n. (288),
pp. 79-80. Mongolia in effect declared its territory as a nuclear-weapon-free zone (in 1992), and in February 2000 adopted
national legislation defining its status as a nuclear-weapon-free State. This was acknowledged by U.N. General Assembly
resolution 55/33S of 20.11.2000. - 71 -
environment, rather than a substitute of bilateral and multilateral fora for disarmament negotiations.
This forum for dialogue and better understanding of the matter has counted on three Conferences to
date, held, respectively, in Oslo in March 2013, in Nayarit in February 2014, and in Vienna in
December 2014.
255. This recent series of Conferences has drawn attention to the humanitarian effects of
nuclear weapons, restoring the central position of the concern for human beings and peoples. It has
thus stressed the importance of the human dimension of the whole matter, and has endeavoured to
awaken the conscience of the whole international community as well as to enhance the needed
humanitarian coordination in the present domain. May I next proceed to a survey of their work and
results so far.
1. First Conference on the Humanitarian Impact of Nuclear Weapons
256. The first Conference on the Humanitarian Impact of Nuclear Weapons took place in
Oslo, Norway, on 04-05 March 2013, having counted on the participation of Delegations
representing 127 States, United Nations agencies, the International Committee of the Red Cross
(ICRC), the Red Cross and the Red Crescent movement, international organizations, and civil
society entities. It should not pass unnoticed that only two of the NWS, India and Pakistan, were
present at this Conference (and only India made a statement) . On the other hand, neither the
Marshall Islands, nor the permanent members of the U.N. Security Council, attended it.
257. The Oslo Conference addressed three key issues, namely: a) the immediate human
impact of a nuclear weapon detonation; b) the wider economic, developmental and environmental
consequences of a nuclear weapon detonation; and c) the preparedness of States, international
organizations, civil society and the general public to deal with the predictable humanitarian
consequences that would follow from a nuclear weapon detonation. A wide range of experts made
presentations during the Conference.
258. Attention was drawn, e.g., to the nuclear testing’s impact during the cold-war period, in
particular to the detonation of not less than 456 nuclear bombs in the four decades (between 1949
and 1989) in the testing ground of Semipalatinsk, in eastern Kazakhstan. It was reported (by
UNDP) that, according to the Kazakh authorities, up to 1.5 million people were affected by fall-out
from the blasts at Semipalatinsk; the nuclear test site was shut down in mid-1991. Other aspects
were examined, all from a humanitarian outlook . 303 References were made, e.g., to
General Assembly resolutions (such as resolution 63/279, of 25.04.2009), on humanitarian
rehabilitation of the region. Such a humanitarian approach proved necessary, as the “historical
experience from the use and testing of nuclear weapons has demonstrated their devastating
immediate and long-term effects” . 304
259. The key conclusions of the Oslo Conference, as highlighted by Norway’s Minister of
Foreign Affairs in his closing statement , can be summarized as follows. First, it is unlikely that
302
In: https://www.regjeringen.no/globalassets/upload/ud/vedlegg/hum/hum_india….
30For accounts of the work of the 2013 Oslo Conference, cf., e.g., Viewing Nuclear Weapons through a
Humanitarian Lens (eds. J. Borrie and T. Caughley), Geneva/N.Y., U.N./UNIDIR, 2013, pp. 81-82, 87, 90-91, 93-96, 99,
105-108 and 115-116.
30Norway/Ministry of Foreign Affairs, Chair´s Summary — Humanitarian Impact of Nuclear Weapons, Oslo,
05.03.2013, p. 2.
305
In: https://www.regjeringen.no/en/aktuelt/nuclear_summary/id716343/. - 72 -
any state or international body (such as U.N. relief agencies and the ICRC) could address the
immediate humanitarian emergency caused by a nuclear weapon detonation in an adequate manner
and provide sufficient assistance to those affected. Thus, the ICRC called for the abolition of
nuclear weapons as the only effective preventive measure, and several participating States stressed
that elimination of nuclear weapons is the only way to prevent their use; some States called for a
ban on those weapons.
260. Secondly, the historical experience from the use and testing of nuclear weapons has
demonstrated their devastating immediate and long-term effects. While the international scenario
and circumstances surrounding it have changed, the destructive potential of nuclear weapons
remains. And thirdly, the effects of a nuclear weapon detonation, irrespective of its cause, will not
be constrained by national borders, and will affect States and peoples in significant ways, in a
trans-frontier dimension, regionally as well as globally.
2. Second Conference on the Humanitarian Impact of Nuclear Weapons
261. The second Conference on the Humanitarian Impact of Nuclear Weapons took place in
Nayarit, Mexico, on 13-14 February 2014, having counted on the participation of Delegations
representing 146 States. The Marshall Islands, India and Pakistan attended it, whereas the
United Kingdom did not. In addition to States, other participants included the ICRC, the Red Cross
and the Red Crescent movement, international organizations, and civil society entities. During the
Nayarit Conference, the Delegate of the Marshall Islands stated that NWS States were failing to
fulfill their obligations, under Article VI of the NPT and customary international law, to commence
and conclude multilateral negotiations on nuclear disarmament; in his words:
“the Marshall Islands is convinced that multilateral negotiations on achieving and
sustaining a world free of nuclear weapons are long overdue. Indeed we believe that
states possessing nuclear arsenals are failing to fulfill their legal obligations in this
regard. Immediate commencement and conclusion of such negotiations is required by
legal obligation of nuclear disarmament resting upon each and every state under
Article VI of the Non Proliferation Treaty and customary international law. It also
would achieve the objective of nuclear disarmament long and consistently set by the
United Nations, and fulfi306.ur responsibilities to present and future generations while
honouring the past ones”
262. Earlier on, the Minister of Foreign Affairs of the Marshall Islands stated, at the
U.N. High-Level Meeting on Nuclear Disarmament, on 26.09.2013, that the Marshall Islands “has
a unique and compelling reason” to urge nuclear disarmament, namely,
“The Marshall Islands, during its time as a UN Trust Territory, experienced
67 large-scale tests of nuclear weapons. At the time of testing, and at every possible
occasion in the intervening years, the Marshall Islands has informed UN members of
the devastating impacts of these tests — of the deliberate use of our people as
unwilling scientific experiments, of ongoing health impacts inherited through
generations, of our displaced populations who still live in exile or who were resettled
under unsafe circumstances, and then had to be removed. Even today, science remains
a moving target and our exiled local communities are still struggling with
resettlement.
30Marshall Islands’ Statement, Second Conference on the Humanitarian Impact of Nuclear Weapons, Nayarit,
Mexico, 13-14 February 2014 (in: http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/n…-
2014/statements/MarshallIslands.pdfThe text is also quoted by the Marshall Islands in its Memorial in
Marshall Islands versus United Kingdom, Annex 72. - 73 -
(...) Perhaps we [the Marshallese] have one of the most important stories to tell
regarding the need to avert the use of nuclear weapons,307d a compelling story to spur
greater efforts for nuclear disarmament” (pp. 1-2) .
263. The Marshall Islands’ statement in the 2014 Nayarit Conference was thus one of a few
statements in which the Marshall Islands has articulated its claim, whereon they rely in the cas
d’espèce, inter alia, to substantiate the existence of a dispute, including with the United Kingdom,
which was not present at the Conference . The Nayarit Conference participants also heard the
poignant testimonies of five Hibakusha, — survivors of the atomic bombings of Hiroshima and
Nagasaki, — who presented their accounts of the overwhelming devastation inflicted on those
cities and their inhabitants by the atomic blasts (including the victims’ burning alive, and
carbonized or vaporized, as well as the long-term effects of radiation, killing survivors along seven
decades).
264. They stressed the “moral imperative” of abolition of nuclear weapons, as humanity and
nuclear weapons cannot coexist. A group of Delegations of no less than 20 States called expressly
for a ban of nuclear weapons, already long overdue; this was the sword of Damocles hanging over
everyone’s heads. The “mere existence” of nuclear weapons was regarded as “absurd”; attention
was also drawn to the 2013 U.N. General Assembly High-Level Meeting on Disarmament, and to
the obligations under international law, including those deriving from the NPT as well as common
Article 1 of the Geneva Conventions on IHL . 309
265. Furthermore, an association of over 60 entities of the civil society, from more than
50 countries, stated 310 that their own engagement was essential, as responsibilities fell on everyone
to prevent the use of nuclear weapons; and prevention required the prohibition and ban of nuclear
weapons, in the same way as those of biological and chemical weapons, landmines, and cluster
munitions. Both the association, and the Hibakusha, condemned the dangerous strategy of nuclear
“deterrence”.
266. The 2014 Nayarit Conference’s conclusions, building on the conclusions of the
previous Oslo Conference, can be summarized as follows. First, the immediate and long-term
effects of a single nuclear weapon detonation, let alone a nuclear exchange, would be catastrophic.
The mere existence of nuclear weapons generates great risks, because the military doctrines of the
NWS envisage preparations for the deliberate use of nuclear weapons. Nuclear weapons could be
detonated by accident, miscalculation, or deliberately.
307
In: http://www.un.org/en/ga/68/meetings/nucleardisarmament/pdf/MH_en.pdf. And the Marshall Islands’
Minister of Foreign Affairs (Ph. Muller) added that
“It should be our collective goal as the United Nations to not only stop the spread of nuclear weapons, but also to
pursue the peace and security of a world without them. Further, the Republic of the Marshall Islands has recently
ratified the Comprehensive Test Ban Treaty and urges other member states to work towards bringing this
important agreement into force.
The Marshall Islands is not the only nation in the Pacific to be touched by the devastation of nuclear
weapon testing. (...) We express again our eventual aspirations to join with our Pacific neighbours in supporting
a Pacific free of nuclear weapons in a manner consistent with international security” (pp. 1-2).
30Memorial of the M.I. in Marshall Islands versus United Kingdom, para. 99.
309
Mexico/Gobierno de la República, Chair’s Summary — Second Conference on the Humanitarian Impact of
Nuclear Weapons, Mexico, 14.02.2014, pp. 2-3.
31On behalf of the International Campaign to Abolish Nuclear Weapons (ICAN), a coalition of over 350 entities
in 90 countries. - 74 -
267. Delegations of over 50 States from every region of the world made statements
unequivocally calling for the total elimination of nuclear weapons and the achievement of a world
free of nuclear weapons. At least 20 Delegations of participating States in the Conference (supra)
expressed the view that the way forward would be a ban on nuclear weapons. Others were equally
clear in their calls for a Convention on the elimination of nuclear weapons or a new legally binding
instrument .11
268. Secondly, some Delegations pointed out the security implications of nuclear weapons,
or else expressed skepticism about the possibility of banning nuclear weapons as such. There were
those which favoured a “step-by-step” approach to nuclear disarmament (within the framework of
the NPT Action Plan), and called for the participation of NWS in this process. For their part, the
nuclear-weapon-free States, in their majority, were however of the view that the step-by-step
approach had failed to achieve its goal; they thus called for a new approach to nuclear
disarmament.
269. Thirdly, for the Chairman of the Conference, a ban on nuclear weapons would be the
first step towards their elimination; such a ban would also rectify the anomaly that nuclear
weapons are the only weapons of mass destruction that are not subject to an explicit legal
prohibition. He added that achieving a world free of nuclear weapons is consistent with States’
obligations under international law, including under the NPT and common Article 1 to the
Geneva Conventions on IHL. He at last called for the development of new international standards
on nuclear weapons, including a legally binding instrument, to be concluded by
the 70th anniversary of the atomic bombings of Hiroshima and Nagasaki . 312
3. Third Conference on the Humanitarian Impact of Nuclear Weapons
270. The third Conference on the Humanitarian Impact of Nuclear Weapons took place in
Vienna, Austria, on 08-09 December 2014, having carried forward the momentum created by the
previous Conference in Mexico. It counted on the participation of Delegations of 158 States, as
well as the U.N., the ICRC, the Red Cross and Red Crescent movement, civil society entities and
representatives of the academic world. For the first time, of the NWS, the United Kingdom
attended the Conference; Delegates from India, Pakistan, and the Marshall Islands were present as
well.
271. Once again, the Conference participants heard the testimonies of survivors, the
Hibakusha. Speaking of the “hell on earth” experienced in Hiroshima and Nagasaki; the
“indiscriminate mas313re of the atomic bombing” showed “the illegality and ultimate evil of
nuclear weapons” . In its statement, the Marshall Islands, addressing the testing in the region
of 67 atomic and hydrogen bombs, between 1946 and 1958, — the strongest one having been the
Bravo test (of 01.03.1954) of a hydrogen bomb, 1000 times more powerful than the atomic bomb
dropped over Hiroshima, — referred to their harmful impacts, such as the birth of “monster-like
311
For example, for its part, India favoured a step-by-step approach towards the elimination of nuclear weapons,
ultimately leading to “a universal, non-discriminatory Convention on prohibition and elimination of nuclear weapons”;
cf. www.reachingcriticalwill.org/images/documents/Disarmament-fora/nayarit-….
31Cf.http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/n…-
summary.pdf.
313
Cf. Vienna Conference on the Humanitarian Impact of Nuclear Weapons (08-09 December 2014), Vienna,
Austria’s Federal Ministry for Europe, Integration and Foreign Affairs, 2015, p. 19. - 75 -
babies”, the continuous suffering from “thyroid cancer, liver cancer and all types of radiogenic
cancerous illnesses”, extending over the years . 314
272. For its part, the ICRC stated that nuclear weapons ignore the principle of
proportionality, and stand in breach of IHL (both conventional and customary) by causing
unnecessary suffering to civilians; it expressed “significant concerns about the eventual spread of 315
radiation to civilian areas and the radiological contamination of the environment” and everyone .
The ICRC further observed that, after “decades of focusing on nuclear weapons primarily in
technical-military terms and as symbols of power”, a fundamental and reassuring change has
occurred, as debates on the matter now shift attention316 what those weapons “would mean for
people and the environment, indeed for humanity” .
273. The U.N. Secretary-General (Ban Ki-moon) sent a statement, read at the Conference,
wherein he condemned expenditures in the modernization of weapons of mass destruction (instead
of meeting the challenges of poverty and climate change). Recalling that the obligation of nuclear
disarmament was one of both conventional and customary international law, he further condemned
the strategy of nuclear “deterrence”; in his own words,
“Upholding doctrines of nuclear deterrence does not counter proliferation, but it
makes the weapons more desirable. Growing ranks of nuclear-armed States does not
ensure global stability, but instead undermines it. (...) The more we understand about
the humanitarian impacts, the more it becomes clear that we must pursue disarmament
as an urgent imperative” .317
274. The Vienna Conference contributed to a deeper understanding of the consequences and
risks of a nuclear detonation, having focused to a larger extent on the legal framework (and gaps
therein) with regard to nuclear weapons . It was reckoned that the impact of nuclear weapons
detonation, irrespective of the cause, would go well beyond national borders, and could have
regional and even global consequences, causing destruction, death, diseases and displacement on a
very large scale, as well as profound and long-term damage to the environment, climate, human
health and well-being, socioeconomic development and social order. They could, in sum, threaten
the very survival of humankind. It was acknowledged that the scope, scale and interrelationship of
the humanitarian consequences caused by nuclear weapon detonation are catastrophic, and more
complex than commonly understood; these consequences can be large scale and potentially
irreversible.
275. States expressed various views regarding the ways and means of advancing the nuclear
disarmament agenda. The Delegations of 29 States called for negotiations of a legally-binding
instrument to prohibit or ban nuclear weapons. A number of Delegations considered that the
inability to make progress on any particular step was no reason not to pursue negotiations in good
faith on other effective measures to achieve and maintain a nuclear-weapon-free world. Such steps
have been taken very effectively in regional contexts in the past, as evidenced by
nuclear-weapon-free zones.
31Ibid., p. 34.
315
Ibid., p. 58.
31Ibid., p. 17.
31Statement reproduced in ibid., p. 16.
318
Cf. ibid. pp. 1-88. - 76 -
276. As the general report of the Vienna Conference observed, the three Conferences on the
Humanitarian Impact of Nuclear Weapons (of Oslo, Nayarit and then Vienna), have contributed to
a “deeper understanding” of the “actual risks” posed by nuclear weapons, and the “unspeakable
suffering”, devastating effects, and “catastrophic humanitarian consequences” caused by their use.
As “nuclear deterrence entails preparing for nuclear war, the risk of nuclear weapon use is real.
(...) The only assurance against the risk of a nuclear weapon detonation is the total elimination of
nuclear weapons”, in “the interest of the very survival of human319”; hence the importance of
Article VI of the NPT, and of the entry into force of the CTBT .
277. The 2014 Vienna Conference’s conclusions can be summarized as follows. First, the
use and testing of nuclear weapons have demonstrated their devastating immediate, mid- and
long-term effects. Nuclear testing in several parts of the world has left a legacy of serious health
and environmental consequences. Radioactive contamination from these tests disproportionately
affects women and children. It contaminated food supplies and continues to be measurable in the
atmosphere to this day.
278. Secondly, as long as nuclear weapons exist, there remains the possibility of a nuclear
weapon explosion. The risks of accidental, mistaken, unauthorized or intentional use of nuclear
weapons are evident due to the vulnerability of nuclear command and control networks to human
error and cyber-attacks, the maintaining of nuclear arsenals on high levels of alert, forward
deployment and their modernization. The dangers of access to nuclear weapons and related
materials by non-state actors, particularly terrorist groups, persist. All such risks, which increase
over time, are unacceptable.
279. Thirdly, as nuclear deterrence entails preparing for nuclear war, the risk of the use of
nuclear weapons is real. Opportunities to reduce this risk must be taken now, such as de-alerting
and reducing the role of nuclear weapons in security doctrines. Limiting the role of nuclear
weapons to deterrence does not remove the possibility of their use, nor does it address the risks
stemming from accidental use. The only assurance against the risk of a nuclear weapon detonation
is the total elimination of nuclear weapons.
280. Fourthly, the existence itself of nuclear weapons raises serious ethical questions, —
well beyond legal discussions and interpretations, — which should be kept in mind. Several
Delegations asserted that, in the interest of the survival of humankind, nuclear weapons must never
be used again, under any circumstances. Fifthly, no State or international organ could adequately
address the immediate humanitarian emergency or long-term consequences caused by a nuclear
weapon detonation in a populated area, nor provide adequate assistance to those affected. The
imperative of prevention as the only guarantee against the humanitarian consequences of nuclear
weapons use is thus to be highlighted. Sixthly, participating Delegations reiterated the importance
of the entry into force of the CTBT as a key element of the international nuclear disarmament and
non-proliferation regime.
281. Seventhly, it is clear that there is no comprehensive legal norm universally prohibiting
the possession, transfer, production and use of nuclear weapons, that is, international law does not
address today nuclear weapons in the way it addresses biological and chemical weapons. This is
generally regarded as an anomaly — or rather, a nonsense, — as nuclear weapons are far more
destructive. In any case, international environmental law remains applicable in armed conflict and
can pertain to nuclear weapons, even if not specifically regulating these latter. Likewise,
31Ibid., pp. 5-7. - 77 -
international health regulations would cover effects of nuclear weapons. In the light of the new
evidence produced in those two years (2013-2014) about the humanitarian impact of nuclear
weapons, it is very doubtful whether such weapons could ever be used in conformity with IHL.
4. Aftermath: The “Humanitarian Pledge”
282. At the 2014 Vienna Conference, although a handful of States expressed scepticism
about the effectiveness of a ban on nuclear weapons, the overwhelming majority of NPT States
Parties expected the forthcoming 2015 NPT Review Conference to take stock of all relevant
developments, including the outcomes of the Conferences on the Humanitarian Impact of Nuclear
Weapons (supra), and determine the next steps for the achievement and maintenance of a
nuclear-weapon-free world. At the end of the Vienna Conference, the host State, Austria,
presented a “Pledge” calling upon States parties to the NPT to renew their commitment to the
urgent and full implementation of existing obligations under Article VI, and to this end, to identify
and pursu320ffective measures to fill the legal gap for the prohibition and elimination of nuclear
weapons .
283. The Pledge further called upon NWS to take concrete interim measures to reduce the
risk of nuclear weapons detonations, including by diminishing the role of nuclear weapons in
military doctrines. The Pledge also recognised that: a) the rights and needs of the victims of
nuclear weapon use and testing have not yet been adequately addressed; b) all States share the
responsibility to prevent any use of nuclear weapons; and c) the consequences of nuclear weapons
use raise profound moral and ethical questions going beyond debates about the legality of these
weapons.
284. Shortly before the Vienna Conference, 66 States had already endorsed the Pledge; by
the end of the Conference, 107 States had endorsed it, thus “internationalizing” it and naming it at
the end as the “Humanitarian Pledge” . On 07.12. 2015, the U.N. General Assembly adopted the
substance of the Humanitarian Pledge in the form of its resolution 70/48. As of April 2016,
127 States have formally endorsed the Humanitarian Pledge; unsurprisingly, none of the NWS has
done so.
285. Recent endeavours, such as the ones just reviewed of the Conferences on the
Humanitarian Impact of Nuclear Weapons have been rightly drawing attention to the grave
humanitarian consequences of nuclear weapons detonations. The reframing of the whole matter in
a people-centred outlook appears to me particularly lucid, and necessary, keeping in mind the
unfoundedness of the strategy of “deterrence” and the catastrophic consequences of the use of
nuclear weapons. The “step-by-step” approach, pursued by the NWS in respect to the obligation
under Article VI of the NPT, appears essentially State-centric, having led to an apparent standstill
or deadlock.
286. The obligation of nuclear disarmament being one of result, the “step-by-step” approach
cannot be extended indefinitely in time, with its insistence on the maintenance of the nuclear sword
of Damocles. The “step-by-step” approach has produced no significantly concrete results to date,
seeming to make abstraction of the numerous pronouncements of the United Nations upholding the
320
In:http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abr…-
HINW14/HINW14Vienna_Pledge _Document.pdf. The Pledge only refers to States’ obligations under the NPT and
makes no mention of customary international law.
32http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abr…. - 78 -
obligation of nuclear disarmament (cf. supra). After all, the absolute prohibition of nuclear
322
weapons, — which is multifaceted , is one of jus cogens (cf. supra). Such weapons, as the
Conferences on the Humanitarian Impact of Nuclear Weapons have evidenced, are essentially
inhumane, rendering the strategy of “deterrence” unfounded and unsustainable (cf. supra).
287. Ever since those Conferences (2013-2014), there has been a tendency (in 2014-2016) of
slight reduction of nuclear warheads , though NWS have kept on modernizing their respective
nuclear armament p324rams, in an indication that nuclear weapons are likely to remain in the
foreseeable future . Yet, the growing awareness of the humanitarian impact of nuclear weapons
has raised the question of the possibility of developing “a deontological position according to
which the uniquely inhumane suff325ng that nuclear weapons inflict on their victims makes it
inherently wrongful to use them” .
288. Tempus fugit. There remains a long way to go to achieve a nuclear-weapon-free world.
The United Nations itself has been drawing attention to the urgency of nuclear disarmament. It has
done so time and time again, and, quite recently, in the convocation in October 2015, of a new
Open-Ended Working Group (OEWG), as a subsidiary body of the U.N. General Assembly, to
address concrete and effective legal measures to attain and maintain a world without nuclear
weapons . It draws attention therein to the importance of multilateralism, to the relevance of
“inclusiveness” (participation of all U.N. member States) and of the contribution, in addition327 that
of States, also of international organizations, of entities of the civil society, and of the academia .
And it reaffirms “the urgency of securing substantive progress in multilateral nuclear disarmament
negotiations”, in order “to attain and maintain a world without nuclear weapons” .
289. It should not pass unnoticed that all the initiatives that I have just reviewed in the
present Dissenting Opinion (NPT Review Conferences, the establishment of nuclear-weapon-free
zones, and the Conferences on the Humanitarian Impact of Nuclear Weapons), referred to by the
contending parties in the course of the proceedings before the ICJ in the present case of Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament, have gone beyond the inter-State outlook. In my perception, there is great need, in
the present domain, to keep on looking beyond States, so as to behold peoples’ and humankind’s
quest for survival in our times.
XIX. F INAL C ONSIDERATIONS : O PINIO JURIS C OMMUNIS EMANATING FROM CONSCIENCE
(R ECTA R ATIO ), WELL ABOVE THE “W ILL”
290. Nuclear weapons, as from their conception, have been associated with overwhelming
destruction. It may be recalled that the first atomic bombs were fabricated in an epoch of
destruction and devastation, — the II world war, — of the abominable “total war”, in flagrant
32Encompassing measures relating to any use, threat of use, development, production, acquisition, possession,
stockpiling and transfer of nuclear weapons.
323
From around 16.300 nuclear warheads in 2014 to 15,850 in 2015, and to 15,395 in early 2016.
324
Cf. SIPRI Yearbook 2016: Armaments, Disarmament and International Security, Stockholm-Solna, SIPRI,
2016, ch. 16, pp. 609-667.
32ILPI, Evidence of Catastrophe — A Summary of the Facts Presented at the Three Conferences on the
Humanitarian Impact of Nuclear Weapons, Oslo, ILPI, 2015, p. 15.
32U.N. General Assembly, doc. A/C.1/70/L.13/Rev.1, of 29.10.2015, pp. 1-3.
327
Preamble, paras. 8 and 14-15.
32Operative part, para. 2. - 79 -
breach of IHL and of the ILHR . The fabrication of nuclear weapons, followed by their use,
made abstraction of the fundamental principles of international law, moving the world into
lawlessness in the current nuclear age. The strategy of “deterrence”, in a “dialectics of suspicion”,
leads to an unforeseeable outcome, amidst complete destruction. Hence the utmost importance of
negotiations conducive to general disarmament, which, — as warned by Raymond Aron [a330ady]
in the early sixties, — had “never been taken seriously” by the super-powers .
291. Last but not least, may I come back to a key point which I have dwelt upon in the
present Dissenting Opinion pertaining to the opinio juris communis as to the obligation of nuclear
disarmament (cf. part XV, supra). In the evolving law of nations, basic considerations of humanity
have an important role to play. Such considerations nourish opinio juris on matters going well
beyond the interests of individual States. The ICJ has, on more than one occasion, taken into
account resolutions of the United Nations (in distinct contexts) as a means whereby international
law manifests itself.
292. In its célèbre Advisory Opinion (of 21.06.1971) on Namibia, for example, the ICJ dwelt
upon,331 particular, two U.N. General Assembly resolutions relevant to the formation of opinio
juris . Likewise, in its Advisory Opinion (of 16.10.1975) on the Western Sahara, the ICJ
considered and discussed in detail some U.N. General Assembly resolutions . In this respect,
references can further be made to the ICJ’s Advisory Opinions on Legal Consequences of the 333
Construction of a Wall in the Occupied Palestinian Territory (of 09.07.2004) , and on the
Declaration of Independence of Kosovo (of 22.07.2010) 334. In its 1996 Advisory Opinion on the
Threat or Use of Nuclear Weapons, the ICJ admitted, — even if in a rather restrictive way, — the
emergence and gradual evolution of an opinio juris as reflected in a series of resolutions of the
U.N. General Assembly (para. 70). But the ICJ could have gone (much) further than that.
293. After all, opinio juris has already had a long trajectory in legal thinking, being today
endowed with a wide dimension. Thus, already in the XIXth century, the so-called “historical
school” of legal thinking and jurisprudence (of F. K. von Savigny and G. F. Puchta) in reaction to
the voluntarist conception, gradually discarded the “will” of the States by shifting attention to
opinio juris, requiring practice to be an authentic expression of the “juridical conscience” of
nations and peoples. With the passing of time, the acknowledgment of conscience standing above
the “will” developed further, as a reaction against the reluctance of some States to abide by norms
addressing matters of general or common interest of the international community.
294. This had an influence on the formation of rules of customary international law, a much
wider process than the application of one of its formal “sources”. Opinio juris communis came
329
For an account, cf., e.g., inter alia, J. Lukacs, L’héritage de la Seconde Guerre Mondiale, Paris, Ed.
F.-X. de Guibert, 2011, pp. 38-39, 55, 111 and 125-148 ; and cf. I. Kershaw, To Hell and Back — Europe 1914-1949,
London, Penguin, 2016, pp. 7, 356, 407, 418, 518 and 521.
33R. Aron, Paz e Guerra entre as Nações [1962], Brasília, Edit. Universidade de Brasília, 1979, pp. 413, 415,
421-422 and 610. R. Aron’s book contains his reflections on the new age of nuclear weapons, amidst the tensions of the
cold-war era, and the new challenges and dangers it imposed, — persisting to date, — for the future of humankind; cf.,
for the French edition, R. Aron, Paix et guerre entre les nations, 8th ed., Paris, Éd. Calmann-Lévy, 2015, pp. 13-770.
33On the principle of self-determination of peoples, namely, G.A. resolutions 1514(XV) of 14.12.1960,
and 2145(XXI) of 27.10.1966; cf. I.C.J. Reports 1971, pp. 31, 45 and 49-51.
33Cf. I.C.J. Reports 1975, pp. 20, 23, 26-37, 40, 57 and 67-68.
333
Cf. I.C.J. Reports 1975, pp. 171-172, paras. 86-88.
33Cf. I.C.J. Reports 2010, p. 437, para. 80 (addressing a General Assembly resolution “which reflects customary
international law”). - 80 -
thus to assume “a considerably broader dimension than that of the subjective element constitutive
335
of custom” . Opinio juris became a key element in the formation itself of international law, a law
of conscience. This diminished the unilateral influence of the most powerful States, fostering
international law-making in fulfilment of the public interest and in pursuance of the common good
of the international community as a whole.
295. The foundations of the international legal order came to be reckoned as independent
from, and transcending, the “will” of individual States; opinio juris communis came to give
expression to the “juridical conscience”, no longer only of nations and peoples — sustained in the
past by the “historical school” — but of the international community as a whole, heading towards
the universalization of international law. It is, in my perception, this international law of
conscience that turns in particular towards nuclear disarmament, for the sake of the survival of
humankind.
296. In 1983, Wang Tieya wrote against minimizing the legal significance of resolutions of
General Assembly, in particular the declaratory ones. As they clarify principles and rules of
international law, he contended that they “cannot be said to have no law-making effect at all merely
because they are not binding in the strict sense. At the very least, since they embody the
convictions of a majority of States, General Ass336ly resolutions can indicate the general direction
in which international law is developing” . He added that those General Assembly resolutions,
reflecting the position of “an overwhelming majority of States”, have “accelerated the development
337
of international law”, in helping to crystallize emerging rules into “clearly defined norms” . In
the same decade, it was further pointed out that General Assembly resolutions have been giving
expression, along the years, to “basic concepts of equity and justice, or of the underlining spirit and
338
aims” of the United Nations .
297. Still in the eighties, in the course I delivered at the Institute of Public International Law
and International Relations of Thessaloniki, in 1988, I began by pondering that customary and
conventional international law are interrelated, — as acknowledged by the ICJ itself 339— and
33A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra
n. (111), p. 137, and cf. p. 138;and cf. R. Huesa Vinaixa, El Nuevo Alcance de la ‘Opinio Juris’ en el Derecho
Internacional Contemporáneo, Valencia, Tirant lo Blanch, 1991, pp. 30-31 and 36-38, and cf. pp. 76-77, 173, 192, 194, 199
and 204-205; R. E. Piza Escalante, “La ‘Opinio Juris’ como Fuente Autónoma del Derecho Internacional (‘Opinio Juris’ y
‘Jus Cogens’)”, 39 Relaciones Internacionales — Heredia/C.R. (1992) pp. 61-74; J. I. Charney, “International Lawmaking —
Article 38 of the ICJ Statute Reconsidered”, in New Trends in International Lawmaking — International ‘Legislation’ in the
Public Interest (Proceedings of the Kiel Symposium, March 1996), Berlin, Duncker & Humblot, 1997, pp. 180-183
and 189-190.
336
Wang Tieya, “The Third World and International Law”, in The Structure and Process of International Law:
Essays in Legal Philosophy Doctrine and Theory (eds. R.St.J. Macdonald and D.M. Johnston), The Hague, M. Nijhoff,
1983, p. 964.
33Ibid., pp. 964-965.
33B. Sloan, “General Assembly Resolutions Revisited (Forty Years Later)”, 58 British Year Book of
International Law (1987) p. 80, and cf. pp. 116, 137 and 141.
339
For example, in the course of the proceedings in the Nuclear Tests cases (1973-1974), one of the applicant
States (Australia) recalled, in the public sitting of 08.07.1974, that the ICJ had held, in the North Sea Continental Shelf
cases (I.C.J. Reports 1969, p. 41), that a conventional norm can pass into the general corpus of international law thus
becoming also a rule of customary international law; cf. ICJ, Pleadings, Oral Arguments, Documents— Nuclear Tests
cases (vol. I: Australia versus France, 1973-1974), p. 503. In effect, — may I add, — just as a customary rule may later
crystallize into a conventional norm, this latter can likewise generate a customary rule. International law is not static (as
legal positivists wrongfully assume); it is essentially dynamic. - 81 -
U.N. General Assembly resolutions contribute to the emergence of opinio juris communis 340. I
stood against the “strictly voluntarist position” underlying the unacceptable concept of so-called
“persistent objector”, and added that dissent from “one or another State individually cannot prevent
the creation of new customary rules” or obligations, ensuing from opinio juris communis and not
from voluntas .341
298. In the evolution of international law in time, — I proceeded, — voluntarist positivism
has shown itself “entirely incapable” of explaining the consensual formation of customary
international obligations; contrary to “the pretensions of positivist voluntarism” (with its stubborn
emphasis on the consent of individual States), “freedom of spirit is the first to rebel” against
immobilism, in devising responses to new challenges affecting the international community as a
whole, and acknowledging obligations incumbent upon all States . 342
299. In my “repudiation of voluntarist positivism”, I concluded on this point that the
attention to customary international law (“incomparably less vulnerable” than conventional
international law to voluntarist temptations) is in line with the progressive development (moved by
conscience) of international law, so as to provide a common basis for the fulfilment of the needs
and aspirations of all peoples 343. Today, almost three decades later, I firmly restate, in the present
Dissenting Opinion, my own position on the matter, in respect of the customary and conventional
international obligation to put an end to nuclear weapons, so as to rid the world of their inhuman
threat.
300. May I here, furthermore, ponder that U.N. General Assembly or Security Council
resolutions are adopted on behalf not of the States which voted in favour of them, but more
precisely on behalf of the United Nations Organization itself (its respective organs), being thus
valid for all U.N. member States. This applies to the resolutions surveyed in the present Dissenting
Opinion. It should be kept in mind that the U.N. is endowed with an international legal personality
of its own, which enables it to act at international level as a distinct entity, independently of
individual member States; in this way, it upholds the juridical equality of all States, and mitigates
the worrisome vulnerability of factually weaker States, such as the NNWS; in doing so, it aims —
by multilateralism — at the common good, at the realization of common goals of the international
community as a whole , such as nuclear disarmament.
301. A small group of States — such as the NWS — cannot overlook or minimize those
reiterated resolutions, extended in time, simply because they voted against them, or abstained.
Once adopted, they are valid for all U.N. member States. They are resolutions of the
United Nations Organization itself, and not only of the large majority of U.N. member States which
voted in favour of them. U.N. General Assembly resolutions, reiteratedly addressing matters of
concern to humankind as a whole (such as existing nuclear weapons), are in my view endowed
340
A.A. Cançado Trindade, “Contemporary International Law-Making: Customary International Law and the
Systematization of the Practice of States”, in Sources of International Law (Thesaurus Acroasium, vol. XIX), Thessaloniki,
Instituteof Public International Law and International Relations, 1992, pp. 68 and 71.
341
Ibid., pp. 78-79.
34Ibid., pp. 126-129
343
Ibid., pp. 128-129. And cf., more recently, in general, A.A. Cançado Trindade, “The Contribution of
Latin American Legal Doctrine to the Progressive Development of International Law”, 376 Recueil des Cours de
l’Académie de Droit International de La Haye (2014) pp. 9-92, esp. pp. 75-76.
344
Cf., in this sense, A.A. Cançado Trindade, Direito das Organizações Internacionais, 6th rev. ed.,
Belo Horizonte/Brazil, Edit. Del Rey, 2014, pp. 51 and 530-531. - 82 -
with normative value. They cannot be properly considered from a State voluntarist perspective;
they call for another approach, away from the strict voluntarist-positivist one.
302. Conscience stands above the “will”. The universal juridical conscience stands well
above the “will” of individual States, and resonates in resolutions of the U.N. General Assembly,
which find inspiration in general principles of international law, which, for their part, give
expression to values and aspirations of the international community as a whole, of all
345
humankind . This — may I reiterate — is the case of General Assembly resolutions surveyed in
the present Dissenting Opinion (cf. supra). The values which find expression in those prima
principia inspire every legal order and, ultimately, lie in the foundations of this latter.
303. The general principles of law (prima principia), in my perception, confer upon the
(national and international) legal order its ineluctable axiological dimension. Notwithstanding,
legal positivism and political “realism”, in their characteristic subservience to power, incur into
their basic mistake of minimizing those principles, which lie in the foundations of any legal system,
and which inform and conform the norms and the action pursuant to them, in the search for the
realization of justice. Whenever that minimization of principles has prevailed the consequences
have been disastrous .46
304. They have been contributing, in the last decades, to a vast corpus juris on matters of
concern to the international community as a whole, such as nuclear disarmament. Their
contribution to this effect has overcome the traditional inter-State paradigm of the international
legal order . This can no longer be overlooked in our days. The inter-State mechanism of the
contentieux before the ICJ cannot be invoked in justification for an inter-State reasoning. As “the
principal judicial organ” of the United Nations (U.N. Charter, Article 92), the ICJ has to bear in
mind not only States, but also “we, the peoples”, on whose behalf the U.N. Charter was adopted.
In its international adjudication of contentious cases, like the present one of Obligations
Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to Nuclear
Disarmament, the ICJ has to bear in mind basic considerations of humanity, with their incidence on
questions of admissibility and jurisdiction, as well as of substantive law.
XXI. E PILOGUE : A R ECAPITULATION
305. Coming to the end of the present Dissenting Opinion, I feel in peace with my
conscience: from all the preceding considerations, I trust to have made it crystal clear that my own
position, in respect of all the points which form the object of the present Judgment on the case of
Obligations Concerning Negotiations Relating to Cessation of the Nuclear Arms Race and to
Nuclear Disarmament, stands in clear and entire opposition to the view espoused by the Court’s
majority that the existence of a legal dispute has not been established before it, and that the Court
has no jurisdiction to consider the Application lodged with it by the Marshall Islands, and cannot
thus proceed to the merits of the case. Not at all: in my understanding, there is a dispute before the
Court, which has jurisdiction to decide the case. There is a conventional and customary
international law obligation of nuclear disarmament. Whether there has been a concrete breach of
this obligation, the Court could only decide on the merits phase of the present case.
345
A.A. Cançado Trindade, International Law for Humankind — Towards a New Jus Gentium, op. cit. supra
n. (111), pp. 129-138.
34A.A. Cançado Trindade, A Humanização do Direito Internacional, 2nd rev. ed., Belo Horizonte/Brazil, 2015,
pp. 6-24; A.A. Cançado Trindade, Os Tribunais Internacionais e a Realização da Justiça, op. cit. supra n. (234),
pp. 410-418.
34A.A. Cançado Trindade, Direito das Organizações Internacionais, op. cit. supra n. (344), pp. 530-537. - 83 -
306. My dissenting position is grounded not only on the assessment of the arguments
produced before the Court by the contending parties, but above all on issues of principle and on
fundamental values, to which I attach even greater importance. As my dissenting position covers
all points addressed in the present Judgment, in its reasoning as well as in its conclusion, I have
thus felt obliged, in the faithful exercise of the international judicial function, to lay on the records,
in the present Dissenting Opinion, the foundations of my dissenting position thereon. I deem it fit,
at this last stage, to recapitulate all the points of my dissenting position, expressed herein, for the
sake of clarity, and in order to stress their interrelatedness.
307. Primus: According to the jurisprudence constante of the Court, a dispute is a
disagreement on a point of law or fact, a conflict of legal views or interests; The existence of an
international dispute (at the time of lodging a claim) is a matter for the objective determination of the
Court. The existence of a dispute may be inferred. Secundus: The objective determination of a
dispute by the Court is not intended to protect respondent States, but rather and more precisely to
secure the proper exercise of the Court’s judicial function. Tertius: There is no requirement of prior
notice of the applicant State’s intention to initiate proceedings before the ICJ, nor of prior “exhaustion”
of diplomatic negotiations, nor of prior notification of the claim; it is, in sum, a matter for objective
determination of the Court itself.
308. Quartus: The Marshall Islands and the United Kingdom/India/Pakistan have pursued
distinct arguments and courses of conduct on the matter at issue, evidencing their distinct legal
positions, which suffice for the Court’s objective determination of the existence of a dispute. Quintus:
There is no legal ground for attempting to heighten the threshold for the determination of the existence
of a dispute; in its jurisprudence constante, the Court has expressly avoided a formalistic approach on
this issue, which would affect access to justice itself. The Court has, instead, in its jurisprudence
constante, upheld its own objective determination of the existence of a dispute, rather than relying—
as it does in the present case — on the subjective criterion of “awareness” of the respondent States.
309. Sextus: The distinct series of U.N. General Assembly resolutions on nuclear disarmament
along the years (namely, warning against nuclear weapons, 1961-1981; on freeze of nuclear weapons,
1982-1992; condemning nuclear weapons, 1982 2015; following-up the ICJ’s 1996 Advisory
Opinion, 1996-2015) are endowed with authority and legal value. Septimus: Their authority and legal
value have been duly acknowledged before the ICJ in its advisory proceedings in 1995. Octavus:
Like the General Assembly, the Security Council has also expressed its concern on the matter at issue,
in its work and its resolutions on nuclear disarmament.
310. Nonus: The aforementioned United Nations resolutions, in addition to other initiatives,
portray the longstanding saga of the United Nations in the condemnation of nuclear weapons.
Decimus: The fact that weapons of mass destruction (poisonous gases, biological and chemical
weapons) have been outlawed, and nuclear weapons, far more destructive, have not been banned yet, is
a juridical absurdity. The obligation of nuclear disarmament has emerged and crystallized nowadays
in both conventional and customary international law, and the United Nations has, along the decades,
been giving a most valuable contribution to this effect.
311. Undecimus: In the cas d’espèce, the issue of United Nations resolutions and the
emergence of opinio juris communis in the present domain of the obligation of nuclear disarmament
has grasped the attention of the contending parties in submitting their distinct arguments before the
Court. Duodecimus: The presence of evil has marked human existence along the centuries. Ever
since the eruption of the nuclear age in August 1945, some of the world’s great thinkers have been
inquiring whether humankind has a future, and have been drawing attention to the imperative of - 84 -
respect for life and the relevance of humanist values. Tertius decimus: Also in international legal
doctrine there have been those who have been stressing the needed prevalence of human conscience,
the universal juridical conscience, over State voluntarism.
312. Quartus decimus: The U.N. Charter is attentive to peoples; the recent cycle of World
Conferences of the United Nations has had, as a common denominator, the recognition of the
legitimacy of the concern of the international community as a whole with the conditions of living and
the well-being of peoples everywhere. Quintus decimus: General principles of law (prima principia)
rest in the foundations of any legal system. They inform and conform its norms, guide their
application, and draw attention to the prevalence of jus necessarium over jus voluntarium.
313. Sextus decimus: The nature of a case before the Court may well require a reasoning going
beyond the strictly inter-State outlook; the present case concerning the obligation of nuclear
disarmament requires attention to be focused on peoples, in pursuance of a humanist outlook, rather
than on inter-State susceptibilities. Septimus decimus: The inter-State mechanism of adjudication of
contentious cases before the ICJ does not at all imply that the Court’s reasoning should likewise be
strictly inter-State. Nuclear disarmament is a matter of concern to humankind as a whole.
314. Duodevicesimus: The present case stresses the utmost importance of fundamental
principles, such as that of the juridical equality of States, following the principle of humanity, and of
the idea of an objective justice. Undevicesimus: Factual inequalities and the strategy of “deterrence”
cannot be made to prevail over the juridical equality of States. Vicesimus: “Deterrence” cannot keep
on overlooking the distinct series of U.N. General Assembly resolutions, expressing an opinio juris
communis in condemnation of nuclear weapons. Vicesimus primus: As also sustained by general
principles of international law and international legal doctrine, nuclear weapons are in breach of
international law, of IHL and the ILHR, and of the U.N. Charter.
315. Vicesimus secundus: There is need of a people-centred approach in this domain, keeping
in mind the fundamental right to life; the raison d’humanité prevails over the raison d’État. Attention
is to be kept on the devastating and catastrophic consequences of the use of nuclear weapons.
Vicesimus tertius: In the path towards nuclear disarmament, the peoples of the world cannot remain
hostage of individual State consent. The universal juridical conscience stands well above the “will” of
the State. Vicesimus quartus: The absolute prohibitions of arbitrary deprivation of human life, of
infliction of cruel, inhuman or degrading treatment, and of infliction of unnecessary suffering, are
prohibitions of jus cogens, which have and incidence on ILHR and IHL and ILR, and foster the current
historical process of humanization of international law.
316. Vicesimus quintus: The positivist outlook unduly overlooks the opinio juris communis as
to the illegality of all weapons of mass destruction, including [and starting with] nuclear weapons, and
the obligation of nuclear disarmament, under contemporary international law. Vicesimus sextus:
Conventional and customary international law go together, in the domain of the protection of the
human person, as disclosed by the Martens clause, with an incidence on the prohibition of nuclear
weapons. Vicesimus septimus: The existence of nuclear weapons is the contemporary tragedy of the
nuclear age; today, more than ever, human beings need protection from themselves. Nuclear weapons
have no ethics, and ethics cannot be separated from law, as taught by jusnaturalist thinking.
317. Vicesimus octavus: Humankind, a subject of rights, has been a potential victim of nuclear
weapons already for a long time. Vicesimus nonus: The law of nations encompasses, among its
subjects, humankind as a whole (as propounded by the “founding fathers” of international law).
Trigesimus: This humanist vision is centred on peoples, keeping in mind the humane ends of States. - 85 -
Trigesimus primus: Opinio juris communis necessitatis, upholding a customary and conventional
obligation of nuclear disarmament, has been finding expression in the NPT Review Conferences, in
the relevant establishment of nuclear-weapon-free zones, and in the recent Conferences of
Humanitarian Impact of Nuclear Weapons, — in their common cause of achieving and maintaining
a nuclear-weapon-free world. Trigesimus secundus: Those initiatives have gone beyond the
State-centric outlook, duly attentive to peoples’ and humankind’s quest for survival in our times.
318. Trigesimus tertius: Opinio juris communis — to which U.N. General Assembly
resolutions have contributed — has a much broader dimension than the subjective element of custom,
being a key element in the formation of a law of conscience, so as to rid the world of the inhuman
threat of nuclear weapons. Trigesimus quartus: U.N. (General Assembly and Security Council)
resolutions are adopted on behalf of the United Nations Organization itself (and not only of the States
which voted in their favour); they are thus valid for all U.N. member States.
319. Trigesimus quintus: The United Nations Organization, endowed with an international
legal personality of its own, upholds the juridical equality of States, in striving for the realization of
common goals such as nuclear disarmament. Trigesimus sextus: Of the main organs of the
United Nations, the contributions of the General Assembly, the Security Council and the
Secretary-General to nuclear disarmament have been consistent and remarkable along the years.
320. Trigesimus septimus: United Nations resolutions in this domain address a matter of
concern to humankind as a whole, which cannot thus be properly approached from a State voluntarist
perspective. The universal juridical conscience stands well above the “will” of individual States.
Trigesimus octavus: The ICJ, as the principal judicial organ of the United Nations, is to keep in
mind basic considerations of humanity, with their incidence on questions of admissibility and
jurisdiction, as well as of substantive law. Trigesimus nonus: In sum, the ICJ has jurisdiction to
consider the cas d’espèce, and there is a conventional and customary international law obligation of
nuclear disarmament; whether there has been a breach of this obligation, the Court could only decide
on the merits phase of the present case.
321. Quadragesimus: A world with arsenals of nuclear weapons, like ours, is bound to destroy
its past, dangerously threatens the present, and has no future at all. Nuclear weapons pave the way into
nothingness. In my understanding, the International Court of Justice, as the principal judicial organ of
the United Nations, should, in the present Judgment, have shown sensitivity in this respect, and should
have given its contribution to a matter which is a major concern of the vulnerable international
community, and indeed of humankind as a whole.
(Signed) Antônio Augusto C ANÇADO TRINDADE .
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Dissenting opinion of Judge Cançado Trindade