!
!
INTERNATIONAL COURT OF JUSTICE
OBLIGATIONS CONCERNING NEGOTIATIONS RELATING TO CESSATION OF
THE NUCLEAR ARMS RACE AND TO NUCLEAR DISARMAMENT
(Marshall Islands v. United Kingdom)
MEMORIAL
OF
THE MARSHALL ISLANDS
16 March 2015 TABLE OF CONTENTS
PART 1 –INTRODUCTION 12!
General Observations and Summary 12!
General observations on the present Memorial 17!
The Nuclear Sword of Damocles 19!
PART 2 –F ACTS 22!
The UK’s current nuclear arsenal 22!
Nuclear policy, doctrine and expenditure 24!
Current plans for modernization and qualitative improvements of the UK’s nuclear
arsenal 27!
The UK and nuclear disarmament 35!
History and general policy regarding negotiation of nuclear disarmament 35!
The UK’s opposition to the negotiation of a Nuclear Weapons Convention 39!
PART 3 –JURISDICTION AND ADMISSIBILITY 42!
Jurisdiction 42!
The existence of a “dispute” 42!
Locus standi 46!
PART 4 –H ISTORICAL DEVELOPMENT OF THE O BLIGATIONS RELATING TO NUCLEAR
D ISARMAMENT AND CESSATION OF THE NUCLEAR ARMS R ACE IN THEUNITED N ATIONS AND
UNDER THE N UCLEAR N ON-PROLIFERATION TREATY 50!
Early UN General Assembly resolutions 50!
The Nuclear Non-Proliferation Treaty 51!
Negotiation of the NPT 51!
Review Conferences 56!
Non-Implementation of NPT Conference Outcomes 59!
The 1978 General Assembly Special Session on Disarmament 60!
General Assembly resolutions adopted post-Advisory Opinion 62!
UN Security Council resolutions 63!
PART 5 –A RTICLE VIOF THE NUCLEAR NON -PROLIFERATION T REATY 65!
The content of Article VI 65!
General principles concerning the interpretation of Article VI 66!
The three components of Article VI 70!
(i) Effective Measures Relating to Cessation of the Nuclear Arms Race at an Early Date
70!
(ii) Effective Measures Relating to Nuclear Disarmament 72!
(iii) A Treaty on General and Complete Disarmament 72!
The Content of the Obligation in Article VI as a Whole 73!
The obligation to pursue negotiations in good faith 75!
Introduction 75!
The obligation to pursue negotiations 75!
In good faith 76!
An obligation of result not merely of conduct 80!
2!
!PART 6 –THE EXISTENCE OF AO BLIGATION UNDERCUSTOMARY NTERNATIONAL L AW TO
NEGOTIATE ING OODF AITHFOR NUCLEAR D ISARMAMENT 82!
Introduction 82!
The norm-creating character of Article VI 82!
The 1996 Advisory Opinion 85!
General Assembly and Security Council resolutions recognizing the existence of an
obligation upon all States to negotiate in good faith for nuclear disarm86!nt
PART 7 –UKB REACHES OF OBLIGATIONSC ONCERNING NEGOTIATIONSR ELATING TO
CESSATION OF THENUCLEAR ARMS R ACE AND TONUCLEAR DISARMAMENT 90!
Introduction 90!
Article VI of the NPT 90!
Nuclear Disarmament 90!
Cessation of the Nuclear Arms Race 93!
Customary International Law 95!
Good Faith 95!
Frustration of Fulfillment of Obligations by Non-Nuclear Weapon States 96!
PART 8 –SUMMARY 98!
PART 9 –SUBMISSIONS 100!
3!
! L IST OA NNEXES
VOLUME I
PART 1
ANNEX 1– Hansard, HL Deb, 28 October 1996, vol. 575, col. 134,
http://hansard.millbanksystems.com/lords/1996/oct/28/address-in-reply-t…
ANNEX 2 – J. Rotblat, Science and Nuclear Weapons: Where Do We Go From Here? (The
Blackaby Papers) (Abolition 2000 UK, No. 5 2004) p. 7,
http://www.abolition2000uk.org/Blackaby%205.pdf
ANNEX 3– D. Blair, ‘UN nuclear watchdog: Trident is hypocritical’, Daily Telegraph, 20
February 2007
http://www.telegraph.co.uk/news/uknews/1543248/UN-nuclear-watchdog-call…-
hypocritical.html
ANNEX 4– Statement by Hon. Mr. Phillip Muller, Minister for Foreign Affairs Republic of the
Marshall Islands, UN High Level Meeting on Nuclear Disarmament 26 September 2013,
http://www.un.org/en/ga/68/meetings/nucleardisarmament/pdf/MH_en.pdf
ANNEX 5– Letter dated 22 June 1995 from the Permanent Representative of the Marshall Islands
to the United Nations, together with Written Statement of the Government of the Marshall
Islands, http://www.icj-cij.org/docket/files/95/8720.pdf
ANNEX 6 – T. Ruff, “The health consequences of nuclear explosions,” in B. Fihn, ed.,
Unspeakable suffering – the humanitarian impact of nuclear weapons (Reaching Critical Will,
2013),
http://www.reachingcriticalwill.org/images/documents/Publications/Unspe…
df
ANNEX 7– President Barack Obama, Prague speech, April 5, 2009,
https://www.whitehouse.gov/the_press_office/Remarks-By-President-Barack…-
As-Delivered
ANNEX 8– Report and Summary of Findings of the Conference presented under the sole
responsibility of Austria, Vienna Conference on the Humanitarian Impact of Nuclear Weapons, 8
to 9 December 2014,
http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abr…
NW14_Chair_s_Summary.pdf
ANNEX 9– M.J Mills et al., “Multi-decadal Global Cooling and Unprecedented Ozone Loss
Following a Regional Nuclear Conflict”, Earth’s Future Research Paper 2014, at p. 161,
http://climate.envsci.rutgers.edu/pdf/MillsNWeft224.pdf
4!
!PART 2
ANNEX 10– House of Commons Defence Committee, ‘The Future of the UK’s Nuclear
Deterrent: the White Paper’ (HC 225-1), Vol. 1, ch. 2
ANNEX 11– House of Commons Defence Committee, Session 2005-06, Eighth Report, para. 21
www.publications.parliament.uk/pa/cm200506/cmselect/cmdfence/986/986.pdf
ANNEX 12– J. Ainslie, “United Kingdom” in Assuring Destruction Forever: Nuclear Weapon
Modernization Around the World, Reaching Critical Will, 2012, p. 68. Available online at
http://www.reachingcriticalwill.org/images/documents/Publications/moder…-
destruction-forever.pdf
ANNEX 13– The Strategic Defence Review, published on 8 July 1998 Cm 3999
ANNEX 14 – Ministry of Defence, Statement on the Defence Estimates 1995, Cm 2800 (HMSO:
London, 1995),
https://www.gov.uk/government/uploads/system/uploads/attachment_data/fi…
ANNEX 15 – The Strategic Defence and Security Review, published on 19 October 2010 Cm
7948,
https://www.gov.uk/government/uploads/system/uploads/attachment_data/fi…-
defence-security-review.pdf
ANNEX 16 – Stockholm International Peace Research Institute (SIPRI)
http://www.sipri.org/research/armaments/nuclear-forces
ANNEX 17 – Hansard, HC, 20 January 2015, col. 4WS (HCWS210),
http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm150120/wms…
01.htm#15012039000023
ANNEX 18 – Hansard, HC Deb, 20 January 2015, col. 105,
http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm150120/deb…-
0002.htm
ANNEX 19 – Hansard, HC Deb, 18 October 1993, col. 34,
http://www.publications.parliament.uk/pa/cm199293/cmhansrd/1993-10-18/D…
ANNEX 20 – Text of Letters exchanged between the Prime Minister and the President of the
United States and between the Secretary of State for Defence and the US Secretary of Defense.
The letters are reproduced in ‘Polaris Sales Agreement between the United States and the United
Kingdom’ signed in Washington on 6 April 1963,
www.nuclearinfo.org/sites/default/files/Polaris%20Sales%20Agreement%201…
ANNEX 21 – “The Alliance’s Strategic Concept”, NATO Press Release NAC-S(99)65, April 24
1999,
www.nato.int/cps/en/natolive/official_texts_27433.htm
5!
!ANNEX 22 – Hansard, HC, 22 May 2006, col. 1331W,
http://www.publications.parliament.uk/pa/cm200506/cmhansrd/vo060522/tex…
#06052325000141
ANNEX 23 – Hansard, HC Deb, 4 December 1997, cols. 576-577,
http://www.publications.parliament.uk/pa/cm199798/cmhansrd/vo971204/deb…
ANNEX 24 – Strategic Defence Review, New Chapter, 18 July 2002, Vol.1, para. 22,
http://www.publications.parliament.uk/pa/cm200203/cmselect/cmdfence/93/…
ANNEX 25 – The Future of the UK’s Nuclear Deterrent: the White Paper, Ninth Report of
Session 2006-07,
Https://www.gov.uk/government/publications/the-future-of-the-united-kingdoms-nu…-
deterrent-defence-white-paper-2006-cm-6994
ANNEX 26 – House of Commons Defence Committee, The Future of the UK’s Nuclear
Deterrent: the White Paper, Ninth Report of Session 2006-07 Vol. I
http://www.publications.parliament.uk/pa/cm200607/cmselect/cmdfence/225…
ANNEX 27 – Hansard, HL, 7 June 2010, col. WA28,
http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/100607w…
000742
ANNEX 28 – HC, 20 December 2012, col. 908W,
http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121220/tex…
m#12122061000114
ANNEX 29 – Public Expenditure Statistical Analysis 2011, Departmental Budgets, HM Treasury,
table 1.3a, available at http://www.hm-treasury.gov.uk/d/pesa_2011_chapter1.pdf
ANNEX 30 – UK nuclear weapons R&D spending: Addendum AA1 to Offensive Insecurity,
February 2014, available at http://www.sgr.org.uk/publications/uk-nuclear-weapons-rd-spending
ANNEX 31 – Ministry of Defence (2011) Initial Gate Parliamentary Report (London: Ministry of
Defence),
https://www.google.nl/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCE…
=https%3A%2F%2Fwww.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattac
hment_data%2Ffile%2F27399%2Fsubmarine_initial_gate.pdf&ei=bD4BVZnWOYb7PMCOgdg
B&usg=AFQjCNHLD_OML9ovvtYhgZu4_Hxt7H6-6g&sig2=9DdXQijRIKRUXK8S31-
oBw&bvm=bv.87920726,d.ZWU
ANNEX 32 – Hansard, HC Deb, 14 March 2007, cols. 298-407,
http://www.publications.parliament.uk/pa/cm200607/cmhansrd/cm070314/deb…-
0004.htm#07031475000005
6!
!ANNEX 33 – Briefings on Nuclear Security, ‘Trident: The Initial Gate Decision’,
http://www.britishpugwash.org/documents/Briefing%203%20-%20Initial%20Ga…
ANNEX 34 – “The United Kingdom’s Future Nuclear Deterrent: The Submarine Initial Gate
Parliamentary Report” (May 2011),
https://www.gov.uk/government/uploads/system/uploads/attachment_data/fi…
initial_gate.pdf
ANNEX 35 – Hansard, HC Deb, 18 May 2011, col. 352,
http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110518/deb…-
0001.htm#11051871001523
ANNEX 36 – http://www.number10.gov.uk/news/uk-france-summit-press-conference/
ANNEX 37 – http://www.reachingcriticalwill.org/images/documents/Disarmament-
fora/npt/prepcom12/statements/30April_UK.pdf
ANNEX 38 – http://www.reachingcriticalwill.org/images/documents/Disarmament-
fora/cd/2013/Statements/5March_UK.pdf
ANNEX 39 – http://www.basicint.org/sites/default/files/ingramcommentary-tar-jul201…
ANNEX 40 – T. Fenwick, “Retiring Trident: an alternative proposal for UK nuclear deterrence”,
CentreForum, (2015),
http://www.centreforum.org/assets/pubs/retiring-trident.pdf
ANNEX 41 – Hansard, HC Deb, 6 March 2014, cols. 1077-1078,
http://www.publications.parliament.uk/pa/cm201314/cmhansrd/cm140306/deb….
htm#14030652000003
ANNEX 42 – Hansard, HC Deb, 20 January 2015, col. 183,
http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm150120/deb…-
0003.htm
ANNEX 43 – Hansard, HC, 20 January 2015, col. 4WS (HCWS210),
http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm150120/wms…
01.htm#15012039000001
V OLUME II
ANNEX 44 – R. Norton-Taylor, “Trident more effective with US arming device, tests suggest”,
The Guardian, 6 April 2011, http://www.theguardian.com/uk/2011/apr/06/trident-us-arming-
system-test
ANNEX 45 – Hansard, HC, 8 December 2009, col. 214W,
7!
!http://www.publications.parliament.uk/pa/cm200910/cmhansrd/cm091208/tex…
#09120870000086
ANNEX 46 – Hansard, HC Deb, 28 November 2012, col. 353W,
http://www.publications.parliament.uk/pa/cm201213/cmhansrd/cm121128/tex…
m#12112886000058
ANNEX 47 – T. Postol, ‘How the Obama Administration Learned to Stop Worrying and Love the
Bomb,’ The Nation, 10 December 2014
http://www.thenation.com/article/192633/how-obama-administration-learne…-
and-love-bomb
ANNEX 48 – France No. 01 (2010):
http://www.ukdf.org.uk/assets/downloads/UKFranceDefenceCooperationTreat…
ANNEX 49 – http://www.ukdf.org.uk/assets/downloads/UKFranceNuclearTreaty.pdf
ANNEX 50 –
https://www.gov.uk/government/uploads/system/uploads/attachment_data/fi…-
UK_Summit-Declaration_on_Security_and_Defence.pdf
ANNEX 51 – http://nuclearinfo.org/article/government-development-awe-aldermaston/u…-
france-extend-warhead-research-collaboration.
ANNEX 52 – “Interim Agreement between the United States of America and the Union of Soviet
Socialist Republics on Certain Measures with respect to the Limitation of Strategic Offensive
Arms”, Unilateral Statement by Minister Semenov, May 17, 1972,
http://www.state.gov/t/isn/4795.htm
ANNEX 53 – “The Future United Kingdom Strategic Nuclear Deterrent Force”, Defence Open
Government Document 80/23, Ministry of Defence, July 1980,
http://fc95d419f4478b3b6e5f-
3f71d0fe2b653c4f00f32175760e96e7.r87.cf1.rackcdn.com/800710%20MT%20to%20Giscard%
20%28417-181%29.pdf
ANNEX 54 – “The United Kingdom Trident Programme”, Defence Open Government Document
82/1, Ministry of Defence, Cm 8517, March 1982
ANNEX 55 - “Progress of the Trident Programme”, 422 of 1987-88, HMSO, May 11 1988
ANNEX 56 – Statement by Ambassador David Broucher, NPT Preparatory Committee 2004,
Cluster I, May 3 2004,
http://ploughshares.ca/wp-content/uploads/2009/05/UK04-1.pdf
ANNEX 57 – 10 Downing Street, Press Notice, Speech on Nuclear Energy and Proliferation, 17
March 2009,
8!
!http://image.guardian.co.uk/sys-
files/Politics/documents/2009/03/17/PMSPEECH170309.pdf?guni=Article:manual-
trailblock%20package:Position3
ANNEX 58 – Hansard, HC Deb, 6 July 2010, col. 159W,
http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm100706/tex…
m#10070652000026
ANNEX 59 – Statement by Ambassador John Duncan to the 2010 Non-Proliferation Treaty
Review Conference: http://www.un.org/en/conf/npt/2010/statements/pdf/uk_en.pdf
ANNEX 60 – http://www.reachingcriticalwill.org/images/documents/Disarmament-
fora/1com/1com12/eov/L46_France-UK-US.pdf
ANNEX 61 – Hansard, HL Deb, 15 July 2013, col. WA93,
http://www.publications.parliament.uk/pa/ld201314/ldhansrd/text/130715w…
000440
ANNEX 62 – Statement by Susan le Jeune d’Allegeershecque, UK Permanent Representative to
the UN in Vienna, at the Vienna Conference on the Humanitarian Impact of Nuclear Weapons, 9
December 2014,
https://www.gov.uk/government/world-location-news/uk-intervention-at-th…-
on-the-humanitarian-impact-of-nuclear-weapons
ANNEX 63 – Written Question 907116, answered on 20 January 2015,
www.parliament.uk/business/publications/written-questions-answers-state…-
question/Commons/2015-01-14/907116/
ANNEX 64 –
https://www.gov.uk/government/news/joint-statement-from-the-nuclear-wea…-
london-p5-conference
ANNEX 65 – "The United Nations and Security in a Nuclear-Weapon-Free World,” 24 October
2008, http://www.un.org/apps/news/infocus/sgspeeches/search_full.asp?statID=3…
ANNEX 66 – Nuclear Disarmament and the NPT: The Responsibility of the Nuclear-Weapon
States, at “Global Summit for a Nuclear Weapon-Free World: Laying the Practical, Technical,
and Political Groundwork”, Campaign for Nuclear Disarmament and Acronym Institute for
Disarmament Diplomacy, London, 16 February 2008,
http://www.un.org/disarmament/HomePage/HR/docs/2008/2008Feb16_London.pdf
ANNEX 67 – Foreign and Commonwealth Office, Lifting the Nuclear Shadow, 2009,
http://carnegieendowment.org/files/nuclear-paper.pdf
ANNEX 68 – Hansard, HL Deb, 9 June 2010, col. 641,
http://www.publications.parliament.uk/pa/ld201011/ldhansrd/text/100609-
0001.htm#10060950000327
9!
!ANNEX 69 – http://www.reachingcriticalwill.org/images/documents/Disarmament-
fora/HLM/26Sep_UKUSFrance.pdf [accessed on 1 March 2015].
PART 3
ANNEX 70 - Article 36 para. 2 Declarations of The Republic of the Marshall Islands and the
United Kingdom of Great Britain and Northern Ireland
ANNEX 71 – Statement by Hon. Mr. Phillip Muller, Minister of Foreign Affairs of the Republic
of the Marshall Islands, 26 September 2013,
http://www.un.org/en/ga/68/meetings/nucleardisarmament/pdf/MH_en.pdf
ANNEX 72 – Marshall Islands Statement, Second Conference on the Humanitarian Impact of
Nuclear Weapons Nayarit, Mexico, 13-14 February 2014,
http://www.reachingcriticalwill.org/images/documents/Disarmament-fora/n…-
2014/statements/MarshallIslands.pdf
PART 4
ANNEX 73 – T. Graham, Correspondence, “The Origin and Interpretation of Article VI”, 15
Nonproliferation Review 7, 9 (2008), available at
http://cns.miis.edu/npr/pdfs/151_correspondence.pdf
ANNEX 74 – W. Potter, et al, “The 2010 NPT Review Conference: Deconstructing Consensus”,
CNS Special Report, James Martin Center for Non-proliferation Studies, June 17, 2010, p. 8,
http://cns.miis.edu/stories/pdfs/100617_npt_2010_summary.pdf
ANNEX 75 – H. Blix (Chairman), ‘Weapons of Terror: Freeing the World of Nuclear, Biological
and Chemical Arms”, The Weapons of Mass Destruction Commission, (2006), p. 94,
http://www.un.org/disarmament/education/wmdcommission/files/Weapons_of_…
ANNEX 76 – G. Mukhatzhanova, “Implementation of the Conclusions and Recommendations for
Follow-on Actions Adopted at the 2010 NPT Review Conference: Disarmament Actions 1-22”,
2014 Monitoring Report, James Martin Center for Non-proliferation Studies, (2014), p. 1,
http://www.nonproliferation.org/wp-content/uploads/2014/04/CNS-Monitori…-
Report_2014_web.pdf
ANNEX 77 – G. Evans, T. Ogilvie-White and R. Thakur, Nuclear Weapons: The State of Play
2015 (Centre for Nuclear Non-Proliferation and Disarmament, February 2015),
https://cnnd.crawford.anu.edu.au/publication/cnnd/5328/nuclear-weapons-…
PART 5
ANNEX 78 – Hansards, HC Deb, 27 November 1968, vol. 774, cc501-5501,
http://hansard.millbanksystems.com/commons/1968/nov/27/non-proliferatio…
10!
!A NNEX 79 – International Panel on Fissile Materials, Global Fissile Material Report 2013, p. 3,
http://ipfmlibrary.org/gfmr13.pdf
A NNEX 80 – Statement by H.E. Mr. Edi Yusup, Ambassador and Deputy Permanent
Representative of the Republic of Indonesia in Geneva, on behalf of the Group of Member States
of the Non-Aligned Movement Parties to the [NPT], Cluster 1 Specific Issues, Nuclear
disarmament and security assurance, 25 April 2013, Geneva, pp. 1-2,
http://www.reachingcriticalwill.org/images/documents/Disarmament-
fora/npt/prepcom13/statements/25April_NAM.pdf
A NNEX 81 – J. Ruzicka and N.J. Wheeler, “The Puzzle of Trusting Relationships in the Nuclear
Non-Proliferation Treaty”, International Affairs, Vol. 86(1) (2010),
http://www.posse.gatech.edu/sites/posse.gatech.edu/files/The%20puzzle%2…
elationships%20in%20the%20Nuclear%20Nonproliferation%20Treaty.pdf
A NNEX 82 – A. Cassese, The Israel-PLO Agreement and Self-Determination, 4 European Journal
of International Law 567 (1993),
http://www.ejil.org/pdfs/4/1/1219.pdf
PART 6
A NNEX 83 – UN Secretary-General, Message to the Vienna Conference on the Humanitarian
Impact of Nuclear Weapons, Vienna, 8 December 2014.
http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abr…
NW14_Message_from_UN_Secretary_General.pdf
PART 7
A NNEX 84 – Hansard, HC Deb, 19 June 1989, vol. 155, cc.31-3W,
http://www.publications.parliament.uk/pa/cm198889/cmhansrd/1989-06-19/W…
A NNEX 85 – Yearbook of the International Law Commission. 1966, Volume II, p. 211:
commentary on draft Article 23 (Pacta Sunt Servanda), para. 4,
http://legal.un.org/ilc/publications/yearbooks/Ybkvolumes%28e%29/ILC_19…
11!
! P ART 1
I NTRODUCTION
General Observations and Summary
1. It is a most fundamental legal and moral principle that bargains should be kept. This is
1
embedded in international law through the principle of pacta sunt servanda. The bargain
which this Memorial concerns is that embodied in the 1968 Treaty on the Non-
2
Proliferation of Nuclear Weapons (hereafter “the Treaty” or “the NPT”), whereby the
non-nuclear-weapon States have agreed not to acquire nuclear weapons and the NPT
nuclear-weapon States have agreed to negotiate their elimination.
2. These proceedings are not an attempt to re-open the question of the legality of nuclear
weapons addressed by this Court in its Advisory Opinion of 8 July 1996 on the Legality
3
of the Threat or Use of Nuclear Weapons. Rather, the focus of this Memorial is the UK’s
failure to fulfil the obligations enshrined in Article VI of the NPT and customary
international law; and particularly the failure of the Respondent to keep its part of the
strategic bargain and do what the Court unanimously called for based on its analysis of
Article VI, namely “pursue in good faith and bring to a conclusion negotiations leading to
nuclear disarmament in all its aspects under strict and effective international control”. 4
3. In its Advisory Opinion, the Court observed that “[t]he destructive power of nuclear
weapons cannot be contained in either space or time” and that such weapons “have the
potential to destroy all civilization and the entire ecosystem of the planet”. It
acknowledged “the unique characteristics of nuclear weapons, and in particular their
destructive capacity, their capacity to cause untold human suffering, and their ability to
6
cause damage to generations to come”.
1
Expressed in Article 26 of the Vienna Convention on the Law of Treaties 1969.
2The Treaty on the Non-Proliferation of Nuclear Weapons, London, Moscow , and Washington DC, 1
July 1968, in force March 5 1970, 729 UNTS 161.
3Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons I.C.J. Reports
4996, p. 226.
Ibid., para. 105, point 2F.
5Ibid., para. 35.
6Ibid., para. 36.
12!
! 4. Unless the required negotiations, aimed at reaching the required conclusions, take place,
we shall continue to face the very real prospect of the “devastation that would be visited
upon all mankind by a nuclear war”. We shall also continue to face the possibility, even
8
the likelihood, of nuclear weapons being used by accident, miscalculation or design, and
of their proliferation. As Nobel Peace Laureate Sir Joseph Rotblat pointed out: “If some
nations – including the most powerful militarily – say that they need nuclear weapons for
their security, then such security cannot be denied to other countries which really feel
insecure. Proliferation of nuclear weapons is the logical consequence of this nuclear
9
policy” (Annex 2).
5. In its Advisory Opinion, the Court observed: “In the long run, international law, and with
it the stability of the international order which it is intended to govern, are bound to suffer
from the continuing difference of views with regard to the legal status of weapons as
10
deadly as nuclear weapons”. A coherent legal system cannot countenance its own
destruction or that of the community whose activities it seeks to regulate. That is why
fulfilment of the 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” is so important.
6. Equally, a coherent and civilized legal system cannot tolerate unacceptable harm to
humanity. A lawful and sustainable world order is predicated on a civilizational right to
7 nd
Supra, n. 2, preamble, 2 paragraph.
8In 1996 Lord Carver, former UK Chief of the Defence Staff (the professional head of the UK’s armed
forces and the principal military adviser to the Secretary of State for Defence and to the UK Government)
stated that “the indefinite deployment of nuclear weapons carries a high risk of their ultimate use -
intentionally, by accident or inadvertence”. See Hansard, HL Deb, 28 October 1996, vol. 575, col. 134
(Annex 1).
9J. Rotblat, Science and Nuclear Weapons: Whe re Do We Go From Here? (The Blackaby Papers)
(Abolition 2000 UK, No. 5 2004) p. 7. In February 2007, Mohamed ElBaradei, then Director General of
the IAEA, said that Britain cannot “modernise its Trident submarines and then tell everyone else that
nuclear weapons are not needed in the future”. See David Blair, ‘UN nuclear watchdog: Trident is
hypocritical’, Daily Telegraph, 20 February 2007 (Annex 3).
10
11Supra, n. 3, para. 98.
As B.S. Chimni has stated, “No legal system can confer on any of its members the right to annihilate
the community which engenders it and whose activities it seeks to regulate”. B.S. Chimni, “Nuclear
Weapons and International Law: Some Reflections”, in International Law in Transition: Essays in
Memory of Judge Nagendra, 1992, p. 142. Quoted by Judge Weeramantry in Section V.1 of his
Dissenting Opinion in the Advisory Opinion in Legality of the Threat or Use of Nuclear Weapons , supra,
n. 3, at p. 522; see also the Dissenting Opinion of Judge Shahabuddeen, ibid., p. 393: “Thus, however far-
reaching may be the rights conferred by sovereignty, those rights cannot extend beyond the framework
within which sovereignty itself exists; in particular, they cannot violate the framework. The framework
shuts out the right of a State to embark on a co urse of action which would dismantle the basis of the
framework by putting an end to civilization and annihilating mankind”.
! 13! 12
survival rooted in “the principles of humanity” and “elementary considerations of
humanity” which help to shape an emerging “law of humanity”, the international law
for humankind of which the nuclear disarmament obligation is a key element. Yet it is
now more than 69 years since the very first United Nations General Assembly Resolution
sought to put in motion the elimination from national arsenals of nuclear weapons and
15
other weapons of mass destruction, over 45 years since the NPT entered into force and
nearly 20 years since the Court delivered its Advisory Opinion. The long delay in
fulfilling the obligations enshrined in Article VI of the NPT constitutes a flagrant denial
of human justice. 16
7. Inspired and guided by these principles and values, the underlying claims, described in
more detail herein, are that the UK, an NPT nuclear-weapon State, is: (i) in continuing
breach of its obligations under Article VI of the NPT, including specifically its obligation
to pursue in good faith negotiations to cease the nuclear arms race at an early date, as
well as to pursue in good faith negotiations leading to nuclear disarmament in all its
aspects under strict and effective international control; (ii) in continuing breach of
customary international law with respect to the same obligations; and (iii) in continuing
breach of its obligation to perform its international legal obligations in good faith.
8. The Republic of the Marshall Islands (the “Marshall Islands”, “RMI” or “Applicant”) is a
non-nuclear-weapon State Party to the NPT. The Marshall Islands acceded to the Treaty
on 30 January 1995 and has continued to be a Party to it since that time.
9. While cessation of the nuclear arms race and nuclear disarmament are vitally important
objectives for the entire international community, the Marshall Islands has a particular
12From the Martens Clause as expressed in Article 1, paragraph 2 of Protocol I 1977 Additional to the
Geneva Conventions 1949: “In cases not covered by this Protocol or by other international agreements,
civilians and combatants remain under the protection and authority of the principles of international law
derived from established custom, from the principles of humanity and from the dictates of public
conscience”.
13Corfu Channel Case (United Kingdom v. Albania), Judgment, 1949, I.C.J. Reports 1949 p. 22.
14
See e.g. the Opinion of the Tribunal in the Opinion of the Tribunal in the Einsatzgruppen case (Case 9)
8 April 1948, Military T ribunal II (1948): “[An] evaluation of international right and wrong, which
heretofore existed only in the heart of mankind, has now been written into the books of men as the law of
humanity. This law is not restricted to events of war. It envisages the pr otection of humanity at all times”.
United States of America v. Otto Ohlendorf, et al, Military Tribunal II, Case No. 9 (1948), in Trials of
War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10 , Vol. IV,
Nuernberg, October 1946 – April 1940 (U.S. Government Printing Office, 1950 -872486), p. 497,
available at http://www.loc.gov/rr/frd/Military_Law/pdf/NT_war -criminals_Vol-IV.pdf.
15UNGA Resolution A/RES/1(1), 24 January 1946.
16
Cf. Judge Cançado Trindade’s remarks in Section XIII of his Separate Opinion in Questions Relating to
the Obligation to Prosecute or Extradite (Belgium v. Senegal) , I.C.J. Reports 2012, pp. 544-548;
especially at para. 145 where he contrasts “the brief time of human beings ( vita brevis) and the often
prolonged time of human justice”.
14!
! awareness of the dire consequences of nuclear weapons. The Marshall Islands was the
location of repeated nuclear weapons testing from 1946 to 1958, during the time that the
international community had placed it under the trusteeship of the United States
17
(“U.S.”). During those 12 years, 67 nuclear weapons of varying explosive power were
detonated in the Marshall Islands, at varying distances from human population. 18
According to the 3 September 2012 Report of Calin Georgescu, a Special Rapporteur to
the UN Human Rights Council on the implications for human rights of the
environmentally sound management and disposal of hazardous substances and wastes,
the devastating adverse impact on the Marshall Islands of those nuclear substances and
19
wastes continues to this day.
10. With regard to the RMI’s interest in bringing this case to the Court, the following should
be added. It is well known that over recent years the RMI has been preoccupied with
combating the extremely harmful consequences that the effects of climate change have
for its very survival. While focusing on the problem of climate change, the RMI has
come to realize that it cannot ignore the other major threat to its survival: the ongoing
threat posed by the existence of large arsenals of nuclear weapons the use of which,
according to the Court, “seems scarcely reconcilable with respect for […] requirements
20
[of the principles and rules of law applicable in armed conflict]”. It is obvious that the
RMI’s participation in the common struggle against climate change needs to lead to firm
commitments by all States, which commitments must include not only moral, but also
legal obligations aimed at realizing concrete, clear-cut goals in order to remove the threat
of devastation caused by continued reliance on the use of fossil fuel energy sources. It is
from this perspective of striving to reach agreement on such commitments in the struggle
against climate change that the RMI has concluded that it is no longer acceptable simply
to be a party to the NPT while total nuclear disarmament pursuant to Article VI and
customary international law remains at best a distant prospect. This Application seeks to
ensure that the legal obligations undertaken 45 years ago by the UK in the context of the
NPT do indeed deliver the promised result.
11. One of the reasons why the RMI became a Party to the NPT is that this Treaty is the key
instrument of the international community for ridding the world of nuclear weapons.
At the UN High-Level Meeting on Nuclear Disarmament, 26 September 2013, Hon. Mr.
Phillip Muller, Minister of Foreign Affairs, Republic of the Marshall Islands, stated that
17
Report of the Special Rapporteur on the implications for human rights of the environmentally sound
management and disposal of hazardous substances and wastes, Calin Georgescu; Addendum, Mission to
the Marshall Islands (27-30 March 2012) and the United States of America (24 -27 April 2012): 3
September 2012, Doc. A/HRC/21/48/Add.1.
18Ibid., paras. 1-18.
19Ibid., para. 19.
20
Supra, n. 3, para. 95.
15!
! the RMI’s “deeper purpose” is “that no nation and people should ever have to bear
witness to the burden of exposure to the devastating impacts of nuclear weapons” (Annex
4). This is entirely consistent with the RMI’s Written Statement submitted to the Court
in the Advisory proceedings regarding the Legality of the Threat or Use of Nuclear
Weapons, in which the RMI stated:
“Given its extensive first hand experience with adverse impacts of nuclear
weapons, Marshall Islands’ decision to ratify the Nuclear Non-Proliferation
Treaty this year is understandable. This objective of the treaty of "the cessation of
the manufacture of nuclear weapons, the liquidation of all their existing
stockpiles, and the elimination from national arsenals of nuclear weapons" is
wholly consistent with Marshall Islands' foreign policy of peaceful co-existence
as well as with the overarching goal of the international community to achieve
global peace” (Annex 5). 22
The Treaty contains this solemn promise and legal obligation of the nuclear weapon
States to sit down and negotiate towards total nuclear disarmament. That promise has
been broken and that obligation has not been met.
12. Article VI of the Treaty states, in its entirety, as follows:
“Each of the Parties to the Treaty undertakes to pursue negotiations in
good faith on effective measures relating to cessation of the nuclear arms
race at an early date and to nuclear disarmament, and on a treaty on
general and complete disarmament under strict and effective international
control.”
13. As previously stated, the Court concluded its Advisory Opinion of 8 July 1996 by
unanimously holding that “[t]here exists an obligation to pursue in good faith and bring to
a conclusion negotiations leading to nuclear disarmament in all its aspects under strict
23
and effective international control”.
14. Nearly five decades after signing and ratifying the NPT, the UK is still maintaining and
continuously modernizing its nuclear arsenal.
21
Statement by Hon. Mr. Phillip Muller, Minister for Foreign Affairs Republic of the Mars hall Islands,
UN High Level Meeting on Nuclear Disarmament 26 September 2013,
http://www.un.org/en/ga/68/meetings/nucleardisarmament/pdf/MH_en.pdf [accessed on 10 March 2015].
22Letter dated 22 June 1995 from the Permanent Representative of the Marshall Islands to the United
Nations, together with Written Statement of the Government of the Marshall Islands, http://www.icj-
cij.org/docket/files/95/8720.pdf [accessed on 10 March 2015].
23
Supra, n. 3, para. 105, point 2F.
16!
! 15. The UK has not pursued in good faith negotiations to cease the nuclear arms race at an
early date through comprehensive nuclear disarmament or other measures, and instead is
taking actions to improve its nuclear weapons system and to maintain it for the indefinite
future.
16. Similarly, the UK has not fulfilled its obligation to pursue in good faith negotiations
leading to nuclear disarmament in all its aspects under strict and effective international
control and instead has opposed the efforts of the great majority of States to initiate such
negotiations.
17. These obligations are not limited to the States Parties to the Treaty, but also apply to all
States as a matter of customary international law.
18. Further, the obligation of a State to perform its legal obligations in good faith, whether
arising under a Treaty or pursuant to customary international law, is itself a legal
obligation that the UK has breached.
General observations on the present Memorial
19. In this Memorial the Marshall Islands will, in accordance with Article 49, para. 1 of the
Rules of Court, present its case by stating the relevant facts and the law that lead it to its
Submissions. In doing so, the RMI will also state why the Court has jurisdiction to
adjudge this case and why its claims are admissible.
20. The subject matter of the present dispute brought before the Court by the Marshall
Islands is the failure of the UK to honour its obligation towards the Marshall Islands (and
other States) 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. This
obligation to negotiate a nuclear disarmament includes, in the first place, the obligation to
negotiate in good faith to cease the nuclear arms race by each of the States that are in
possession of nuclear weapons. These obligations are expressed in Article VI of the
24
NPT . The breaches alleged by the RMI of the UK’s Article VI obligations are central to
the present case. In addition, in order to provide for the wider legal context, the RMI has
chosen to set out the fact that the obligations that are central in this case are also
25
obligations of customary international law.
24
Supra, n. 2; United Kingdom - Signed: 1 July 1968, Ratified: 27 November 1968; Marshall Islands -
25cession: 30 January 1995.
See Part 6 of this Memorial.
17!
! 21. On 24 April 2014 the RMI submitted nine Applications to the Court. Each Application,
filed against a different Respondent State, presented a different general background and
was based on a different set of facts. The subject matter of all Applications related to the
similar, individual, failure of each and every one of these nine States to live up to its
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.
22. Only three of the nine States involved currently recognize, as compulsory and without
special agreement, the jurisdiction of the Court by means of a declaration under Article
36, para. 2 of the Statute of the International Court of Justice. Those three States are the
UK, the Republic of India and Pakistan. Each of those States recognizes the Court’s
jurisdiction on its own terms and conditions. In the Applications relating to the other six
States the RMI has included an invitation as foreseen in Article 38, para. 5 of the Rules of
Court.
23. To date, only the People’s Republic of China has formally notified the Court that it does
not consent to the jurisdiction of the Court. The other five States – the U.S., the French
Republic, the Russian Federation, the State of Israel and the Democratic People's
Republic of Korea – have not formally responded to the RMI’s Applications.
24. The fact that not all of the nine States are accepting to actually appear in their respective
cases before the Court cannot be deemed an obstacle for the Court to consider and
adjudge each one of the three cases that are proceeding (the present case against the
United Kingdom as well as the cases against India and Pakistan). Each of the other six
States may be able to frustrate the case against itself by not appearing before the Court.
However, it would not be acceptable to allow this non-appearance of third States in cases
brought against them to have a negative impact on the RMI’s right to pursue the
enforcement of the obligations involved by submitting the present case to the Court.
25. The Marshall Islands will demonstrate in this Memorial that the United Kingdom is
continuously and actively opposing efforts of a great majority of the States of the world
to initiate negotiations that are to lead to total nuclear disarmament. It consistently votes
against the General Assembly Resolution that is proposed and passed each year since the
Court delivered its Advisory Opinion on the Legality of the Threat or Use of Nuclear
26
Weapons. It also objects strongly to an initiative of the General Assembly to initiate
deliberations on proposals that would get started multilateral disarmament negotiations.
This initiative was named the Open Ended Working Group; the UK not only voted
against the initiative but also announced that it would not support any outcome that this
26See section titled ‘The UK and nuclear disarmament’ in Part 2 of this memorial.
18!
! 27
working group might produce. At no point did the UK propose an alternative initiative
to pursue and conclude negotiations on total nuclear disarmament. For years the UK
merely mentions its being in favour of a “step-by-step approach” without ever clarifying
what that approach might involve and how it would lead to the conclusion of negotiations
on total nuclear disarmament.
The Nuclear Sword of Damocles
26. This case involves obligations of an erga omnes character, engaging RMI as a member of
the international community. RMI’s interests – even its existential interests – are also
engaged by the issues at stake. One or a few nuclear explosions anywhere in the world,
certainly in urban areas, would have devastating humanitarian effects which, given its
experience with the health and environmental consequences of nuclear testing, the
Marshallese naturally desire to prevent, as RMI emphasized in its written submission in
29
Legality of Threat or Use of Nuclear Weapons. Any such explosion would also have
adverse effects on the global economy and likely on the global political and legal order, 30
and therefore on the Marshall Islands. In general, as observed in the Summary of
Findings of the recent Vienna Conference on the Humanitarian Impacts of Nuclear
Weapons:
“The impact of a nuclear weapon detonation, irrespective of the cause, would not
be constrained by national borders and could have regional and even global
consequences, causing destruction, death and displacement as well as profound
and long-term damage to the environment, climate, human health and well-being,
27
See para. 76 of this memorial.
28See T. Ruff, “The health consequences of nuclear explosions,” in Beatrice Fihn, ed., Unspeakable
suffering – the humanitarian impact of nuclear weapons (Reaching Critical Will, 2013),
http://www.reachingcriticalwill.org/images/documents/Publications/Unspe… le.pdf
[accessed on 11 December 2014] (Annex 6). Tilman Ruff is Associate Professor, Nossal Institute for
Global Health, University of Melbourne, and Co -President, International Physicians for the Prevention of
Nuclear War.
29Letter dated 22 June 1995 from the Permanent Representative of the Marshall Islands to the United
Nations, together with Written Statement of the Government of the Marshall Islands, http://www.icj-
cij.org/docket/files/95/8720.pdf [accessed on 11 December 2014].
30Cf. President Barack Obama, Prague speech, April 5, 2009: “One nuclear weapon exploded in one city
– be it New York or Moscow, Islamabad or Mumbai, Tokyo or Tel Aviv, Paris or Prague – could kill
hundreds of thousands of people. And no matter where it happens, there is no end to what the
consequences might be for our global safety, our security, our society, our economy, to our ultimate
survival” (Annex 7).
http://www.whitehouse.gov/the_press_office/Remarks -By-President-Barack-Obama-In-Prague-As-
Delivered [accessed on 11 December 2014].
19!
! socioeconomic development, social order and could even threaten the survival of
humankind.” (Annex 8) 31
27. Regarding climate consequences, a nuclear exchange involving detonations in dozens of
cities would have severe effects on the climate directly and substantially affecting the
Marshall Islands. That risk is a stunning illustration of the Court’s finding, quoted in
para. 1 of the Application, that “the destructive power of nuclear weapons cannot be
32
contained in either space or time”. The scale of this threat was recently demonstrated in
a study in which the outcome of a nuclear exchange totalling 100 15-kiloton weapons
33
was modelled (Annex 9). This study demonstrates that the effects of such a nuclear
war, using only 0.03% of the world’s nuclear arsenal, would be global and devastating. In
addition to immediately killing millions of people, it would produce a large amount of
smoke that would rise into the stratosphere, spreading globally and causing a drop in
temperature on the Earth’s surface, while heating up the stratosphere. As the smoke
absorbs the sunlight it will heat up and damage the ozone layer, which will result in
harmful UV rays reaching the surface. The damage to human health, agriculture, and sea
life would be immense. The study suggests a number of detrimental consequences,
including the global food supply being threatened.
28. The UK's maintenance and qualitative improvement of nuclear forces presenting all the
threats outlined above, taking place at the same time as the UK is failing to live up to its
central 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, in
itself is a clear demonstration of the scale and the nature of the dispute that exists
between the two Parties to the present case. For all of these reasons, a clear interest of the
RMI in bringing this case against the United Kingdom is engaged. This interest derives in
the first place from the RMI's former experience with nuclear explosions. Second, It
derives from its status as party to an interdependent treaty - the NPT - a treaty whose
breach is "of such a character as radically to change the position of all the other States to
which the obligation is owed with respect to the further performance of the obligation".
31
Report and Summary of Findings of the Conference presented under th e sole responsibility of Austria,
Vienna Conference on the Humanitarian Impact of Nuclear Weapons, 8 to 9 December 2014,
http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abr…
Chair_s_Summary.pdf [accessed on 8 January 2015].
32Supra, n. 3, para. 35.
33
M.J Mills et al., “Multi-decadal Global Cooling and Unprecedented Ozone Loss Following a Regi onal
Nuclear Conflict”, Earth’s Future Research Paper 2014, at p. 161. For a presentation based on the study
with additional information, see Dr. Michael J. Mills, National Centre for Atmospheric Research, “Global
Famine after a Regional Nuclear War: Overv iew of Recent Research,” Vienna Conference on the
Humanitarian Impacts of Nuclear Weapons, 8 December 2014,
http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abr…
s/HINW14_S1_Presentation_Michael_Mills.pdf [accessed on 12 March 2015].
20!
! Finally, it derives from its status as a member of the international community reacting
against a breach of an erga omnes obligation.
21!
! P ART 2
F ACTS
The UK’s current nuclear arsenal
29. The UK’s nuclear weapons system is based upon the submarine-launched Trident D5
34
missile (Annex 10). It is the UK’s third-generation strategic nuclear weapon system.
Trident was procured during the final decade of the Cold War and was brought into
35
service to replace Polaris over a six-year period beginning in December 1994. It is now
the UK’s only nuclear weapons system, the UK having retired its air-launched WE177
free-fall nuclear bombs and repatriated forward-deployed U.S. tactical nuclear weapons
36
operated by UK forces under dual-key arrangements in the 1990s.
37
30. The Trident nuclear weapons system has three technical components :
a) The Vanguard-class nuclear-powered ballistic submarines (SSBN), of
which the UK has four: HMS Vanguard, HMS Victorious, HMS Vigilant and
HMS Vengeance, designed and built in the UK by Vickers Shipbuilding and
Engineering Ltd (VSEL), now BAE Systems Maritime, in Barrow-in-Furness,
Cumbria. Refit and maintenance are carried out by Babcock Marine Limited
at HMNB Devonport, Plymouth, UK. 38
b) The Trident D5 submarine-launched intercontinental ballistic missile
(ICBM), manufactured in the U.S. by Lockheed Martin. Under the Polaris
Sales Agreement as modified for Trident, the UK has title to 58 missiles
34
See House of Commons Defence Committee, ‘The Future of the UK’s Nuclear Det errent: the White
Paper’ (HC 225-1), Vol. 1, ch. 2.
35HMS Vanguard, the first Trident missile-carrying submarine, was commissioned on 14 August 1993
and sailed on the first Trident operational patrol in December 1994. HMS Repulse returned to Faslane on
13 May 1996 at the end of the final Polaris operational patrol, marking the end of Polaris’ 27 years of
continuous patrols. See P. Hennessy, Cabinets and the Bomb , (The British Academy, 2007) p. 18.
36Supra, n. 34, Vol.1, para. 8.
37Ibid., paras. 9-10.
38Babcock International Group bought Devonport Dockyard from Devonport Management Limited
39ML) in June 2007.
The Polaris Sales Agreement was signed in Washington DC on 6 April 1963. On 30 September 1980 an
exchange of diplomatic notes incorporated the Triden t sale into the Polaris Sales Agreement.
! 22! 40
(Annex 11). Aside from those currently deployed, the missiles are held in a
communal pool at the U.S. Strategic Weapons facility at King’s Bay, Georgia,
U.S. Each submarine is capable of carrying up to 16 Trident D5 missiles.
c) The components for the nuclear warheads, including qualitative
improvements to them, are made in the UK at the Atomic Weapons
Establishment (AWE) Aldermaston, Berkshire, and assembled at nearby
AWE Burghfield. There is extensive collaboration between the UK and the
U.S. on the production of the UK’s warheads under the Mutual Defence
Agreement, “which provides for extensive cooperation on nuclear warhead
and reactor technologies, in particular the exchange of classified information
concerning nuclear weapons to improve ‘design, development and fabrication’
41
capability and the transfer of nuclear warhead-related materials.” As a result,
some components of the UK warheads are manufactured, and undergo
42
qualitative improvements, in the U.S. (Annex 12).
31. The submarine fleet is supported by an extensive onshore infrastructure. The Vanguard-
class submarines are based at HM Naval Base Clyde, Faslane, Scotland. Nuclear
warheads are fitted to the D5 missiles at the Royal Naval Armaments Depot Coulport
(part of HM Naval Base Clyde). The warheads are transported by road from AWE
Burghfield to Coulport, where they are placed in underground bunkers in the Trident
Area. When required they are taken to the Explosive Handling Jetty where they are fitted
onto the missiles on the Vanguard-class submarines.
43
32. The Strategic Defence Review, published on 8 July 1998, affirmed the Government’s
commitment to maintaining a nuclear weapons system but made a number of changes to
it. The warhead stockpile was to be cut from the ceiling of up to 300 warheads
maintained by the previous government to fewer than 200 operationally available
warheads (Annex 13). The patrol cycle of the Trident submarines was also relaxed with
normally only one submarine on patrol at any one time. As with pre-Chevaline
45
Polaris, each submarine would now carry a maximum of 48 warheads, rather than the
40House of Commons Defence Committee, Session 2005-06, Eighth Report, para. 21.
41
N. Ritchie, A Nuclear Weapons-Free World? Britain, Trident and the Challenges Ahead (Palgrave
Macmillan 2012) p. 92 . Ritchie goes on to state that “Britain remains highly dependent on the US for
nuclear weapon systems, technology, and support”: ibid., p. 95.
42J. Ainslie, “United Kingdom,” in Assuring Destruction Forever: Nuclear Weapon Modernization
Around the World, Reaching Critical Will, 2012, p. 68,
http://www.reachingcriticalwill.org/images/documents/Publications/moder… -destruction-
forever.pdf [accessed on 12 March 2015].
43The Strategic Defence Review, published on 8 July 1998 Cm 3999 .
44Ibid., para. 66.
45See para. 36 of the Memorial.
23!
! 46
previous Government’s declared ceiling of up to 96 (Annex 14). The Trident
submarine’s alert status was also to be reduced. Missiles had not been targeted for some
years but, in addition, submarines would normally now be at several days’ rather than 15
minutes’ notice to fire. A requirement for an additional seven Trident missile bodies
was cancelled, leaving a new total of 58.
33. The Strategic Defence and Security Review (“SDSR”) (Annex 15), published on 19
October 2010, reaffirmed the UK’s commitment to a submarine-launched nuclear
weapons system on continuous alert based on the Trident missile delivery system, and
announced that: the number of warheads on board each deployed submarine would be
reduced from 48 to 40; the requirement for operationally available warheads would be
reduced from fewer than 160 to no more than 120; the number of operational missiles on
the Vanguard-class submarines would be reduced to no more than 8; and the UK’s
overall nuclear weapons stockpile would be reduced from not more than 225 to no more
49
than 180 by the mid-2020s.
34. On 20 January 2015 in a written statement, the Secretary of State for Defence, Michael
Fallon, informed the House of Commons that the programme for implementing the 2010
SDSR warhead reductions had been completed (Annex 17). 50
Nuclear policy, doctrine and expenditure
35. The Royal Navy has maintained unbroken nuclear weapon patrols since 1968. The 1998
Strategic Defence Review stated that the UK would continue to maintain these
continuous-at-sea nuclear-armed patrols.
36. Trident is the UK’s most advanced nuclear weapon system to date. With a range of
between 6,500 kilometres and 12,000 kilometres, depending on payload, Trident’s greater
speed, accuracy and multiple independently targetable warheads distinguish it from, and
enable it to reach more targets than, its predecessor, Polaris Chevaline.
37. As the Defence Select Committee noted in 1994:
46Ministry of Defence, Statement on the Defence Estimates 1995, Cm 2800 (HMSO: London, 1995), p.
39.
47Supra, n. 43 para. 68.
48
49The Strategic Defence and Security Review, published on 19 October 2010 Cm 7948.
Ibid., para. 3.11. In January 2014, the Stockholm International Peace Research Institute (SIPRI)
reported that the UK had a total inventory of 225 w arheads, including 160 deployed warheads,
http://www.sipri.org/research/armaments/nuclear -forces [accessed on 12 March 2015] (Annex 16).
50Hansard, HC, 20 January 2015, col. 4WS (HCWS210); and HC Deb, 20 January 2015, col. 105 (Annex
18).
24!
! “Trident’s accuracy and sophistication in other respects does - and was
always intended to - represent a significant enhancement of the UK’s
nuclear capability. We have invested a great deal of money to make it
possible to attack more targets with greater effectiveness using nominally
equivalent explosive power”. 51
38. Trident was originally designed as a strategic nuclear system with respect to threats posed
by the Soviet Union. In 1993, however, following the end of the Cold War, the then
Secretary of State for Defence announced that in future Trident’s role would be to deter
“potential aggressors” from threatening UK “vital interests”. In order to do this, Trident
was assigned an additional “sub-strategic” role (Annex 19): 52
“The ability to undertake a massive strike with strategic systems is not enough to
ensure deterrence. An aggressor might, in certain circumstances, gamble on a
lack of will ultimately to resort to such dire action. It is therefore important for
the credibility of our deterrent that the United Kingdom also possesses the
capability to undertake a more limited nuclear strike in order to induce a political
decision to halt aggression by delivering an unmistakable message of our
willingness to defend our vital interests to the utmost”. 53
39. As part of the agreement under which the UK procured Polaris and subsequently Trident
missiles from the U.S., UK Trident forces are assigned to NATO to be used for the
defence of the Alliance “except where the UK government may decide that supreme
54
national interests are at stake” (Annex 20). The UK is therefore committed to NATO’s
nuclear policy, which since the mid-1960s has been based on a doctrine of “flexible
55
response” (Annex 21). One of the key elements of NATO’s nuclear doctrine is that the
51Defence Select Committee HC 297 of Session 1993 -94, p. xiv.
52Hansard, HC Deb, 18 October 1993, col. 34 . The UK’s sub-strategic capability was at that time
provided by the soon to be retired WE177 bom b carried on Tornado aircraft.
53
M. Rifkind, “UK Defence Strategy; A Continuing Role for Nuclear Weapons” , Centre for Defence
Studies, King’s College London, (1993). Supra, n. 43, para. 63: “The credibility of deterrence also
depends on retaining an option for a limited strike that would not automatically lead to a full scale nuclear
exchange. Unlike Polaris and Chevaline, Trident must also be capable of performing this ‘sub -strategic’
role.”
54
The British Strategic Nuclear Force: Text of Letters exchanged between the Prime Minister and the
President of the United States and between the Secretary of State for Defence and the U.S. Secretary of
Defense. The letters are reproduced in ‘Polaris Sales Agreement between the United States and the United
Kingdom’ signed in Washington on 6 April 1963.
55“The Alliance’s Strategic Concept”, NATO Press Release NAC -S(99)65, April 24 1999.
25!
! Alliance refuses to rule out the first use of NATO nuclear weapons, thereby allowing its
nuclear planners to prepare for that option (Annex 22). 56
40. Similarly, the UK has always refused to rule out the first use of its nuclear weapons,
especially in cases where biological or chemical weapons may have been used. For
example, shortly after the 1997 general election, the then Minister of State Dr John Reid
stated:
“The role of deterrence…must not be overlooked. Even if a potential
aggressor has developed missiles with the range to strike at the United
Kingdom, and nuclear, biological or chemical warheads to be delivered by
those means, he would have to consider – he would do well to consider –
the possible consequences of such an attack…It seems unlikely that a
dictator who was willing to strike another country with weapons of mass
destruction would be so trusting as to feel entirely sure that that c57ntry
would not respond with the power at its disposal.” (Annex 23)
41. Following the terrorist attacks on the U.S. in September 2001, a new chapter of the
Strategic Defence Review extended the role of nuclear weapons further to include
allegedly deterring terrorist organisations:
“The UK’s nuclear weapons have a continuing use as a means of deterring
major strategic military threats, and they have a continuing role in
guaranteeing the ultimate security of the UK. But we also want it to be
clear, particularly to the leaders of states of concern and terrorist
organisations, that all our forces play a part in deterrence, and that we
have a broad range of responses available.” (Annex 24) 58
The implication is that the UK is willing, if deemed to be necessary, to use its nuclear
59
weapons against States of concern and terrorist organisations (Annex 25).
56
In 2006 the then Defence Secretary, Des Browne, stated: “ A policy of no first use of nuclear weapons
would be incompatible with our and NATO’s doctrine of deterrence,” Hansard, HC , 22 May 2006, col.
1331W.
57Hansard, HC Deb, 4 December 1997, cols. 576-577.
58
59Strategic Defence Review, New Chapter, 18 July 2002, Vol.1, para. 22.
The 2006 White Paper on The Future of the United Kingdom’ s Nuclear Deterrent stated, at 3-11: “We
know that international terrorists are trying to acquire radiological weapons. In future, there are risks that
they may try to acquire nuclear weapons. While our nuclear deterrent is not designed to deter non -state
actors, it should influence the decision -making of any state that might consider transferring nuclear
weapons or nuclear technology to terrorists.”
26!
! 42. The 2010 Strategic Defence and Security Review stated that the UK “would only
consider using nuclear weapons in extreme circumstances of self-defence, including the
defence of our NATO allies”, adding: “we remain deliberately ambiguous about precisely
60
when, how and at what scale we would contemplate their use.”
43. The Strategic Defence and Security Review reaffirmed in modified form existing
assurances to non-nuclear-weapon States Parties to the NPT. It stated “that the UK will
not use or threaten to use nuclear weapons against non-nuclear weapon states parties to
the NPT” but notes that “this assurance would not apply to any state in material breach of
those non-proliferation obligations.” It also noted that “while there is currently no direct
threat to the UK or its vital interests from states developing capabilities in other weapons
of mass destruction, for example chemical and biological, we reserve the right to review
this assurance if the future threat, development and proliferation of these weapons make
61
it necessary.”
44. The UK has continued to maintain and modernize its nuclear forces with annual
expenditure on capital and running costs at around 5 to 6 per cent of the UK defence
62
budget (Annex 26). This does not include costs for recapitalising the Trident system
estimated to be £25 billion at outturn prices (Annex 31). 63
Current plans for modernization and qualitative improvements of the UK’s nuclear
arsenal
45. In December 2006 the UK Government published a White Paper that formally opened the
process to replace the UK’s Trident nuclear weapons system. The White Paper was
endorsed by the House of Commons on March 14, 2007 when the following motion was
carried by 409 votes to 161:
60Supra, n. 48, 3.5.
61Ibid., 3.7.
62
House of Commons Defence Committee, The Future of the UK’s Nuclear Dete rrent: the White Paper,
Ninth Report of Session 2006 -07, paras. 149, 152. See also Hansard, HL, 7 June 2010, col. WA28
(Annex 27); HC, 20 December 2012, col. 908W (Annex 28). In 2010-11 the defence resource budget was
c £28bn: Public Expenditure Statistic al Analysis 2011, Departmental Budgets, HM Treasury, table 1.3a,
available at http://www.hm-treasury.gov.uk/d/pesa_2011_chapter1.pdf [accessed on 12 March 2015]
(Annex 29). A recent analysis by Scientists for Global Responsibility has revealed that the UK
Government spent an average of £327 million per year on nuclear weapons research and development
over the three years from 2008 to 2011. See UK nuclear weapons R&D spending: Addendum AA1 to
Offensive Insecurity , February 2014, available at http://www.sgr.org.uk/publications/uk -nuclear-weapons-
63-spending [accessed on 12 March 2015] (Annex 30).
Ministry of Defence (2011) Initial Gate Parliamentary Report (London: Ministry of Defence), p. 10.
64Ministry of Defence and Foreign and Commonwealth Office, The Future of the United Kingdom’s
Nuclear Deterrent, Cm 6994.
27!
! “That this House supports the Government’s decisions, as set out in the
White Paper The Future of the United Kingdom’s Nuclear Deterrent (Cm
6994), to take the steps necessary to maintain the UK’s minimum strategic
nuclear deterrent beyond the life of the existing system and to take further
steps towards meeting the UK’s disarmament responsibilities under
65
Article VI of the Non-Proliferation Treaty.”
46. According to British Pugwash, the effect of that vote and its present and future
consequences are as follows:
“Parliament voted to authorize the initial ‘Concept’ phase of the Trident
replacement system. The next major milestone, known as the ‘Initial
Gate’ decision, was to move to the ‘Assessment’ phase, involving further
detailed refinement of a set of design options to enable selection of a
preferred solution. The government announced the Initial Gate decision
on May 18, 2011. The next big decision to move to the ‘Demonstration
and Manufacture’ phase is the Main Gate’ decision, now scheduled for
2016 (delayed from 2014 in October 2010). That is supposed to be the
key decision-point when the finalized submarine design is adopted;
contracts to build the new boats are then tendered, and billions more
pounds will be irrevocably committed to construction of a new generation
of nuclear weapons. (Annex 33)” 66
47. On 18 May 2011, when informing Parliament that the Government had approved the
67
‘Initial Gate’ for the nuclear weapons system successor programme, the Secretary of
State for Defence explained:
“We have now agreed the broad outline design of the submarine, made
some of the design choices—including the propulsion system and the
common US-UK missile compartment—and the programme of work we
need to start building the first submarine after 2016. We have also agreed
the amount of material and parts we will need to buy in advance of the
65Hansard, HC Deb, 14 March 2007, cols. 298-407 (Annex 32).
66
Briefings on Nuclear Security, ‘Trident: The Initial Gate Decision’,
http://www.britishpugwash.org/documents/Briefing%203%20 -%20Initial%20Gate.p df [accessed on 1
March 2015].
67i.e. the Initial Gate investment stage for the procurement of the successor submarines to the Vanguard -
class SSBNs. See further “The United Kingdom’s Future Nuclear Deterrent: The Submarine Initial Gate
Parliamentary Report” (May 2011),
https://www.gov.uk/government/uploads/system/uploads/attachment_data/fi…
ate.pdf [accessed 1 March 2015] (Annex 34).
28!
! main investment decision… Between now and main gate we expect to
spend about 15% of the total value of the programme.” (Annex 35) 68
48. Although the Secretary of State for Defence denied that the Government was “locked into
any particular strategy before main gate in 2016” and stated that he would “assist the
69
Liberal Democrats in making the case for alternatives”, he declared:
“I am absolutely clear that a minimum nuclear deterrent based on the
Trident missile delivery system and continuous-at-sea deterrence is right
for the United Kingdom and that it should be maintained, and that remains
Government policy.” 70
49. On the same day, the Prime Minister told Parliament:
“the Government’s policy is absolutely clear: we are committed to
71
retaining an independent nuclear deterrent based on Trident.”
50. On 30 April 2012, at the First Preparatory Committee for the Ninth Review Conference
of the NPT, the Head of the UK Delegation stated:
“As long as large arsenals of nuclear weapons remain and the risk of
nuclear proliferation continues, the UK’s judgment is that only a credible
nuclear capability can provide the necessary ultimate guarantee to our
national security. The UK Government is therefore committed to
maintaining a minimum national nuclear deterrent, and to proceeding with
the renewal of Trident and the submarine replacement programme.” 72
68Hansard, HC Deb, 18 May 2011, col. 352.
69In order to satisfy Liberal Democrat concerns, the government’s Coalition Agreement negotiated after
the 2010 general election stated that “we will maintain Britain’s nuclear deterrent, an d have agreed that
the renewal of Trident should be scrutinized to ensure value for money. Liberal Democrats will continue
to make the case for alternatives.” In May 2011 agreement was reached that the government would
conduct a formal 18-month assessment of “credible alternatives” to a like -for-like replacement led by the
Cabinet Office. See below, paras. 55-56.
70
71Supra, n. 68, col. 352.
Ibid., col. 338. See also the Prime Minister’s statement at a press conference on 2 November 2010 after
the UK-France summit at which the Treaty for Defence and Security Cooperation was concluded: “while
we will always retain an independent nuclear deterrent, it is right that we look for efficiencies the
infrastructure required to develop and sustain our separate dete rrents...”,
http://www.number10.gov.uk/news/uk -france-summit-press-conference/ [accessed 1 March 2015]
(Annex 36).
72http://www.reachingcriticalwill.org/images/documents/Disarmament -
fora/npt/prepcom12/statements/30April_UK.pdf [accessed 1 March 2015] (Annex 37).
29!
! 51. On 5 March 2013, in a Statement on Nuclear Disarmament, the UK’s Permanent
Representative to the Conference on Disarmament declared:
“In 2007, the United Kingdom Parliament debated, and approved by a
clear majority, the decision to continue with the program to renew the
UK’s nuclear deterrent. The Government set out in the 2010 Strategic
Defence and Security Review that the UK would maintain a continuous
submarine-based deterrent and begin the work of replacing its existing
submarines which are due to leave service in the 2020s. This remains the
UK Government’s policy”. (Annex 38) 73
52. On 5 June 2013, in response to a question in Parliament, the Prime Minister stated:
“I am strongly committed to the renewal of our deterrent on a like-for-like
74
basis. I think that is right for Britain.”
53. The Trident Alternatives Review was published on 16 July 2013. 75 It had been tasked to
answer three questions:
“a. Are there credible alternatives to a submarine-based deterrent?
b. Are there credible submarine-based alternatives to the current
proposal, e.g. Astute with cruise missiles?
c. Are there alternative nuclear postures, i.e. non-continuous-at-sea
deterrence (“CASD”), which could maintain credibility?”
54. The Trident Alternatives Review concluded:
“None of these alternative systems and postures offers the same degree of
resilience as the current posture of Continuous at Sea Deterrence, nor
76
could they guarantee a prompt response in all circumstances.”
73http://www.reachingcriticalwill.org/images/documents/Disarmament -
74ra/cd/2013/Statements/5March_UK.pdf [accessed 1 March 2015].
Hansard, HC Deb, 5 June 2013, col. 1518.
75https://www.gov.uk/government/uploads/system/uploads/attachment_data/fi…
nt_Alternatives_Study.pdf [accessed on 12 March 2015]. For a commentary on the review, see
http://www.basicint.org/sites/default/files/ingramcommentary -tar-jul2013.pdf [both accessed 1 March
7615] (Annex 39).
Trident Alternatives Review (TAR), Executive summary, para 32. The Review also concluded that
“transitioning to any of the realistic alternative systems is now more expensive than a 3 or 4 -boat
Successor SSBN fleet”: ibid., para. 34. For a critique of the TAR, see T. Fenwick, “Retiring Trident: an
alternative proposal for UK nuclear deterrence”, CentreForum, (2015) p. 32:
http://www.centreforum.org/assets/pubs/r etiring-trident.pdf [accessed 1 March 2015] (Annex 40).
30!
! 55. On 6 March 2014, the Secretary of State for Defence, Philip Hammond, informed the
House of Commons that he had “decided to refuel the nuclear reactor in HMS Vanguard,
one of the UK’s 4 ballistic missile submarines, during its planned deep maintenance
period, which begins in 2015” and that “[t]he refuelling will increase our confidence that
Vanguard will be able to operate effectively and safely until the planned fleet of
Successor submarines begins to be delivered from 2028.” (Annex 41). 77
56. On 18 December 2014 the UK Government’s 2014 Update to Parliament on Trident was
78
published. It stated that since publication of the 2013 report, and with agreement from
HM Treasury, the Ministry of Defence had “re-profiled £261M of funding into the
Assessment Phase in order to bring forward essential elements of the programme and
offer better overall value for money”. In other words, a further £261 million has been
rescheduled to be spent on the project ahead of the Main Gate stage, when MPs will
decide whether to authorise the construction of new submarines. The total Assessment
79
Phase approval is now £3.3Bn.
80
57. The 2014 Update indicated that the Main Gate decision is to be reached in early 2016. It
also confirmed the Government’s planning assumptions and overall policy:
“Current planning assumptions are based on a future four boat SSBN deterrent
fleet, but a final decision on the number of submarines needed to maintain
continuous at sea deterrent patrols will be taken in 2016 at the end of the
Assessment Phase, when the necessary information on the maintenance
requirements of the new submarine design becomes available.
[…]
In July 2013, the Government published the Trident Alternatives Review, a
Cabinet Office led study into alternative deterrent systems and postures. The
Review demonstrated that no alternative system is as capable, or cost effective, as
a Trident-based deterrent. It showed that there are alternative non-continuous
postures that could be adopted, although none that would offer the same degree of
resilience as continuous at sea deterrence. Government policy remains to maintain
77
78Hansard, HC Deb, 6 March 2014, cols. 1077-1078.
“The United Kingdom’s Future Nuclear Deterrent: 2014 Update to Parliament”. This was the third
annual report since the Assessment Phase began in 2011. The main purpose of the Assessment Phase is
“to refine the design of the submarine and mature the costs in order to make a ‘Main Gate’ investment
decision in 2016”, ibid.
79Ibid.
80
“We plan to next report to Parliament at Main Gate in early 2016”, ibid.
31!
! a continuous at sea deterrent and proceed with the Assessment Phase programme
to build a new fleet of ballistic missile submarines.” 81
58. On 20 January 2015, MPs debated the renewal of Trident in the House of Commons. The
motion-“That this House believes that Trident should not be renewed” was defeated
(Annex 42). On the same day, the Secretary of State for Defence, Michael Fallon,
stated:
“The nuclear deterrent remains to serve as the ultimate means to deter the most
extreme threats. The Government continues to plan to renew the UK’s
independent strategic nuclear deterrent, though the Liberal Democrats will
continue to make the case for alternatives. A ‘Main Gate’ investment decision
will be required in 2016 to replace the four Vanguard-class SSBNs currently in
service. At the same time, as a responsible nuclear weapon state and party to the
Treaty on the Non-Proliferation of Nuclear Weapons (NPT) the UK remains
committed to creating the conditions for a world without nuclear weapons. The
completion of these reductions is a key milestone, demonstrating the UK’s
83
continued leadership within the NPT.” (Annex 43)
59. In terms of the UK’s Trident nuclear warheads, the Strategic Defence and Security
Review 2010 stated:
“Under the 1958 UK-US Agreement for Cooperation on the Uses of
Atomic Energy for Mutual Defence Purposes (the ‘Mutual Defence
Agreement’) we have agreed on the future of the Trident D5 delivery
system and determined that a replacement warhead is not required until at
least the late 2030s. Decisions on replacing the warhead will not therefore
be required in this Parliament. This will defer £500 million of spending
84
from the next 10 years.”
81Ibid.
82Hansard, HC Deb, 20 January 2015, col. 183; Division No. 133: Ayes 35 votes, Noes 364 votes. During
the debate, the Parliamentary Under-Secretary of State for Defence, Philip Dunne, stated: “The
Government White Paper presented to Parliament in 2006 estimated a cost of £15 billion to £20 billion, at
2006 prices, for the Successor submarine infrastructure and refurbishment of warheads. We remain within
these initial estimates, which in 2011 were updated for the capital costs of Successor submar ines to £25
billion at outturn prices”, ibid., col. 182.
83
84Hansard, HC, 20 January 2015, col. 4WS (HCWS210).
“Securing Britain in an Age of Uncertainty: The Strategic Defence and Security Review’, October
2010 (Cm 7948), 3.12:
http://www.direct.gov.uk/prod_consum_dg/groups/dg_digitalassets/@dg/@en… dg_
191634.pdf [accessed 1 March 2015]. The Mutual Defence Agreement has been extended a number of
times throughout its history, most recently in 2014; see para 62 of this Memorial.
32!
! 60. Under the UK-US Mutual Defence Agreement, a new “arming, fusing and firing system”
85
developed by the U.S. is to be used in current UK warheads (Annex 44). The system
would improve the nuclear warhead’s effectiveness against hardened targets. The Trident
II D5 missile can carry two types of re-entry vehicle that house each nuclear warhead: the
Mark 4 for the U.S. W76 warhead and the Mark 5 for the more modern and higher yield
W88 warhead. The UK purchased the Mark 4 RV and designed a warhead to meet Mk4
RV specifications in terms of weight, size, shape, centre of gravity, and centre of inertia.
The U.S. is modernizing its W76 warheads and Mk4 re-entry vehicles, including
launcher, navigation, fire control, guidance, and re-entry systems. The modernized
87
W76-1 and Mk4A RV have improved the accuracy of the warheads. These
improvements have cascaded through to the UK’s Trident warhead and re-entry vehicle. 88
89
The UK government has acknowledged procurement of the Mk4A RV. Preliminary
work on a successor warhead is also underway under the Nuclear Warhead Capability
Sustainment Programme at AWE Aldermaston. 90A life-extended Trident II missile is
91
being developed by the U.S. and will be deployed on UK submarines. It will have a
guidance system designed to provide flexibility for new missions and make the missile
93
more accurate.92 The replacement submarine will be quieter and stealthier. All of these
efforts confirm that the UK continues to be actively engaged in qualitative improvements
to its nuclear weapons system.
61. The Mutual Defence Agreement referred to above was originally concluded in 1958 and
has been extended several times throughout its history, most recently in 2014. The
85R. Norton-Taylor, “Trident more effective with US arming device, tests suggest”, The Guardian, 6
April 2011, http://www.theguardian.com/uk/2011/apr/06/trident -us-arming-system-test [accessed 12
March 2015]; see also H.M. Kristensen and R.S. Norris, “British Nuclear Forces”, Bulletin of the Atomic
Scientists, Vol. 67(5) (2011), http://bos.sagepub.com/content/67/5/89.full#ref -24 [accessed 12 March
2015].
86Supra, n. 42, at pp. 71-72.
87
Ibid., at p. 72; H.M Kristensen, “Administration Incre ases Submarine Nuclear Warhead Production
Plan”, FAS Blog, Federation of American Scientists, (2007),
http://www.fas.org/blog/ssp/2007/08/us_tripples_submarine_warhead.php [accessed 1 March 2015].
88
Ibid. See also H.M. Kristensen, “British Submarines, to Receive Upgraded US Nuclear Warhead”, FAS
Blog, Federation of American Scientists, (2011), http://www.fas.org/blog/ssp/2011/04/britishw76 -1.php
[accessed 1 March 2015].
89Ibid., pp. 68-69; Hansard, HC, 8 December 2009, col. 214W (Annex 45).
90
91Ibid., pp. 70-71; Hansard, HC Deb, 28 November 2012, col. 353W (Annex 46).
H.M Kristensen and R.S. Norris, “US nuclear forces, 2014”, Bulletin of the Atomic Scientists , Vol.
70(1) (2014), p.85, 91, http://bos.sagepub.com/content/70/1/85.full.pdf+html [accessed 1 March 2015].
92
Ibid.; T. Postol, ‘How the Obama Administration Learned to Stop Worrying and Love the Bomb,’ The
Nation, 10 December 2014, “Upgrades to the submarine-launched Trident II dramatically improve the US
capacity to destroy Russian silo -based ICBMs, and with less warning time.”,
http://www.thenation.com/article/192633/how-obama-administration-learne…-
93mb; supra, n. 42, at pp. 71-72 (Annex 47).
Ibid., at pp. 72-73.
! 33! renewal of the MDA is itself inconsistent with Article VI of the NPT because it is
directed towards the continuation and enhancement of the UK's nuclear capability. 94
62. The development of a successor nuclear warhead is being facilitated by research
conducted jointly by the UK and France. On 2 November 2010, the UK and France
concluded a bilateral Treaty for Defence and Security Cooperation. Article 1 of the
Treaty provides, inter alia:
“The Parties, building on the existing strong links between their respective
defense and security communities and armed forces, undertake to build a
long-term mutually beneficial partnership in defense and security with the
aims of:
[…]
Ensuring the viability and safety of their national deterrents, consistent
with95he Treaty on the Non-Proliferation of Nuclear Weapons.” (Annex
48)
63. On November 2, 2010, the UK and France also concluded a Treaty on Joint
Radiographic/Hydrodynamics Facilities to build joint nuclear warhead diagnostic and
development facilities at the Valduc site of the Commissariat à l’Energie Atomique et
aux Energies Alternatives – Direction des Applications Militaires (CEA-DAM) and at
96
AWE Aldermaston (Annex 49).
64. Co-operation between the UK and France on nuclear warhead research was subsequently
extended under an agreement reached by Prime Minister David Cameron and President
François Hollande at their summit at RAF Brize Norton on 31 January 2014. Under the
new arrangements, co-operation and information sharing will now take place over a
wider range of scientific matters than was specified in the 2010 Treaty. The Declaration
on Security and Defence issued after the summit announced that the UK and France had
94The Agreement between the UK and the USA for Cooperation in the Uses of Atomic Energy for
Mutual Defence Purposes. This was one of the conclusions of an opinion by Rabinder Singh QC and
Professor Christine Chinkin, 21 July 2008, available at http://www.acronym.org.uk/proliferation -
challenges/nuclear-weapons-possessors/united-kingdom/trident/legal-opinion-mutual-defence-agreement-
and-nuclear-no?page=show. On the 2014 renewal of the MDA, see further
http://www.parliament.uk/business/publications/research/briefing -papers/SN03147/ukusa-mutual-
defence-agreement
95Treaty between the United Kingdom of Great Britain and Northern Ireland and the French Republic for
Defence and Security Co -operation, France No. 01 (2010):
http://www.ukdf.org.uk/assets/downloads/UKFranceDefenceCooperationTreat… [accessed 1March
2015].
96http://www.ukdf.org.uk/assets/downloads/UKFranceNuclearTreaty.pdf [accessed 1 March 2015].
97https://www.gov.uk/government/uploads/system/uploads/attachment_data/fi… rance-
UK_Summit-Declaration_on_Security_and_Defence.pdf [accessed 1 March 2015].
34!
! “agreed to subject more of the technical and scientific data that underpins warhead
certification to peer review; to work together on developing energetic materials for the
future; and to conduct joint research at the laser facilities located at AWE Orion and
98
CEA/DAM - LMJ.” (Annex 50).
The UK and nuclear disarmament
History and general policy regarding negotiation of nuclear disarmament
65. As set forth in more detail below, the UK has refused to enter the Trident system (or its
predecessors) into nuclear disarmament negotiations despite requests to do so.
66. During the 1970s and 1980s, the UK repeatedly refused to enter its nuclear weapon
systems into the disarmament negotiations of that time. During the SALT I and SALT II
talks in the 1970s, the UK’s refusal to allow Polaris to be considered caused problems
during negotiations. The Soviet Union repeatedly called for the ballistic missile
submarines of U.S. allies in NATO to be taken into consideration and argued that if “US
allies in NATO should increase the number of their modern submarines… the Soviet
Union will have the right to a corresponding increase in the number of its submarines”
(Annex 52). 99
67. When the UK first announced its decision to procure the Trident I C4 nuclear weapon
system in 1980, it argued that Trident was compatible with the UK’s arms control
obligations on the grounds that it was “fully consistent with the terms of the SALT II
Treaty”; that “the scale of our new capability will in no way disturb existing and
prospective East/West relativities”; and that “Britain’s strategic SLBM force lies outside
the category of those United States and Soviet long-range, land-based theatre nuclear
98
Ibid., para. 30. AWE Orion is the ‘Orion’ nuclear test laser at AWE Aldermaston and CEA/DAM –
LMJ is the ‘Laser Mégajoule’ at the CEA -DAM Cesta site near Bordeaux. The fir st experimental firing of
the Laser Mégajoule took place on October 23, 2014: see http://nuclearinfo.org/article/gover nment?
development?awe?aldermaston/uk?and?france?extend?warhead?research?collaboration (Annex 51).
The NIS commentary explains: “High powered superlasers such as Orion and the Laser Mégajoule allow
researchers to conduct experiments which subject warhead m aterials and components to pressures and
temperatures similar to those encountered during a nuclear test, generating results which can be used to
model how a nuclear warhead would behave as it exploded. Such experiments have become increasingly
important to nuclear-armed states following agreement of the Comprehensive Nuclear Test -Ban Treaty,
which prohibits the underground ‘live’ testing of nuclear weapons.”
99“Interim Agreement between the United States of America and the Union of Soviet Socialist Republ ics
on Certain Measures with respect to the Limitation of Strategic Offensive Arms”, Unilateral Statement by
Minister Semenov, May 17, 1972.
35!
! forces about whose limitation the United States… invited the Soviet Union to negotiate”
(Annex 53). 100
68. Similarly, when the UK announced that it was changing to procure the Trident II D5
system in 1982, it argued that the deployed Polaris system and planned Trident system
were not relevant to the INF and START negotiations. The government argued that its
strategic nuclear weapon systems were not relevant because these negotiations were
“bilateral”, aimed at achieving a “level of strategic parity” between the U.S. and the
Soviet Union. The UK argued that the “British strategic force will account for no more
than a very small fraction of the total size of the strategic nuclear forces maintained by
101
the United States and the Soviet Union” (Annex 54).
69. The end of the Cold War resulted in massive cuts to Soviet/Russian military capabilities,
in particular reductions in nuclear weapons. However, the UK Government would not
allow the UK’s nuclear weapons to be included in the negotiations on reductions. In 1987
Presidents Reagan and Gorbachev signed the Intermediate Range Nuclear Forces Treaty
(“INF”). The Soviet Union had tried to involve UK nuclear weapons in the INF
negotiations, but the UK, backed by its NATO allies, opposed this. Prime Minister
Margaret Thatcher’s response to INF was that she believed that nuclear arms cuts in
Europe had gone far enough: “I will never give up Britain’s independent nuclear
deterrent”, she told the media. 102
70. According to the Defence Select Committee, as U.S. and Soviet nuclear reductions
gathered pace, Mrs. Thatcher “sought and received assurances from the United States that
the supply of Trident missiles to the UK will in no way be affected by any future arms
103
control agreement.” (Annex 55).
71. The Strategic Defence Review 1998 stated:
“The Government wishes to see a safer world in which there is no place for
nuclear weapons. Progress on arms control is therefore an important objective of
104
foreign and defence policy.”
100“The Future United Kingdom Strategic Nuclear Deterrent Force”, Defence Open Government
Document 80/23, Ministry o f Defence, July 1980.
101
“The United Kingdom Trident Programme”, Defence Open Government Document 82/1, Ministry of
102ence, Cmnd 8517, March 1982.
N. Ashford and A. Chancellor, “Arms reduction accord threatens UK deterrent”, The Independent, 22
September 1987.
103“Progress of the Trident Programme”, 422 of 1987-88, HMSO, May 11 1988.
104Supra, n. 43, at para. 60.
36!
! 72. However, the UK continued to make negotiations on nuclear disarmament a long-term
aspiration rather than an immediate policy objective. The Strategic Defence Review
continued: “while large nuclear arsenals and risks of proliferation remain, our minimum
deterrent remains a necessary element of our security.” 105It essentially ruled out any
further reductions in UK nuclear weapons until the U.S. and Russia had made further
reductions.
73. This has remained the UK Government’s position. In his speech to the 2004 NPT
PrepCom, the UK Ambassador stated:
“We have consistently stated that when we are satisfied that sufficient
progress has been made – for example, in further deep cuts in their nuclear
forces by the US and Russia – to allow us to include the UK’s nuclear
weapons in any multilateral negotiations, without endangering our security
interests, we will do so.” (Annex 56) 106
74. On 17 March 2009, after observing that between them the U.S. and Russia retained
around 95% of the nuclear weapons in the world and that the START Treaty, “the
mainstay of their bilateral arms control effort”, would expire later that year, the then
Prime Minister, Gordon Brown stated:
“For our part - as soon as it becomes useful for our arsenal to be included
in a broader negotiation, Britain stands ready to participate and to act.”
(Annex 57) 107
75. On 6 July 2010, the then Secretary of State for Defence, Dr Liam Fox, reiterated the
previous government’s position that “as soon as it becomes useful for the UK to include
its nuclear stockpiles in broader disarmament negotiations, we stand ready to participate
108
and to act” (Annex 58).
76. On 3 January 2012, the UN General Assembly decided to establish an Open-Ended
Working Group (OEWG) to develop proposals to take forward multilateral nuclear
disarmament negotiations for the achievement and maintenance of a world without
105Ibid.
106Statement by Ambassador David Broucher, NPT Preparatory Committee 2004, Cluster I, May 3 2004.
107
10 Downing Street, Press Notice, Speech on Nuclear Energy and Proliferation, 17 March 2009:
http://image.guardian.co.uk/sys -
files/Politics/documents/2009/03/17/PMSPEECH170309.pdf?guni=Article:manual -trailblock
package:Position3 [accessed on 1 March 2015] .
108Hansard, HC Deb, 6 July 2010, col. 159W. See also the Statement by Ambassador John Duncan to the
2010 Non-Proliferation Treaty Review Conference:
http://www.un.org/en/conf/npt/2010/statements/pdf/uk_en.pdf [accessed on 1 March 2015] (Annex 59).
37!
! nuclear weapons. 109 However, the UK voted against the resolution 110 and did not attend
111
any of the Working Group’s meetings.
77. In a statement made jointly with France and the U.S. in the UN General Assembly First
Committee on 6 November 2012, the UK declared that it was “unable to support this
resolution, the establishment of the OEWG and any outcome it may produce” (Annex 60,
emphasis added). 112
78. The UK Government “considers that a practical step by step approach is needed, using
existing mechanisms such as the Non - Proliferation Treaty and the Conference on
Disarmament.” (Annex 61) 113
79. On 9 December 2014 at the third International Conference on the Humanitarian Impact of
Nuclear Weapons, hosted by the Austrian Foreign Ministry in Vienna, the UK delegation
stated:
“The UK agrees that we must also pursue the goal of a world without nuclear
weapons, and we are active here too. Some have argued that the way to this goal
is to ban nuclear weapons now, or to fix a timetable for their elimination. The UK
considers that this approach fails to take account of, and therefore jeopardises, the
stability and security which nuclear weapons can help to ensure. The UK believes
that the step-by-step approach through the NPT is the only way to combine the
114
imperatives of disarmament and of maintaining global stability.” (Annex 62)
80. On 14 January 2015, when answering a question in Parliament about the Vienna
Conference on the Humanitarian Impact of Nuclear Weapons, Foreign and
Commonwealth Office minister, Tobias Ellwood, declared: “as stated at the Conference,
the UK will continue to follow the step-by-step approach to disarmament through the
existing UN disarmament machinery and the Nuclear Non-Proliferation Treaty.” (Annex
115
63).
109
UNGA Resolution A/RES/67/56, 4 January 2013, “Taking forward multilateral nuclear disarmament
negotiations for the achievement and maintenance of a world without nuclear weapons” (147 -4-31).
110Along with France, the Russian Federation and the U.S.: UNGA Resolution A/67/PV.48, 3 December
1112, pp. 20-21.
Hansard, HL Deb, 15 July 2013, col. WA93.
112http://www.reachingcriticalwill.org/images/documents/Disarmament -
fora/1com/1com12/eov/L46_France-UK-US.pdf [accessed on 1 March 2015].
113Hansard, HL Deb, 15 July 2013, col. WA93.
114
Statement by Susan le Jeune d’Allegeershecque, UK Permanent Represe ntative to the UN in Vienna,
at the Vienna Conference on the Humanitarian Impact of Nuclear Weapons, 9 December 2014.
115Written Question 907116, answered on 20 January 2015.
! 38! 81. On 4-5 February 2015 the UK hosted the sixth Conference of the P5 Nuclear Weapon
States in London. 116 In a Joint Statement issued at the conclusion of the Conference, the
P5 “restated their belief that the Non-Proliferation Treaty remains the essential
cornerstone for the nuclear non-proliferation regime and the foundation for the pursuit of
nuclear disarmament”; but “reaffirmed that a step-by-step approach to nuclear
disarmament that promotes international stability, peace and undiminished and increased
security for all remains the only realistic and practical route to achieving a world without
117
nuclear weapons.” (Annex 64).
The UK’s opposition to the negotiation of a Nuclear Weapons Convention
82. The UK has always voted against the UN General Assembly’s Resolution on “Follow-up
to the advisory opinion of the International Court of Justice on the Legality of the Threat
or Use of Nuclear Weapons”. The Resolution, adopted every year since 1996, 118
underlines the ICJ’s unanimous conclusion that there is an obligation to pursue
negotiations leading to nuclear disarmament and calls on all States to immediately fulfil
that obligation by commencing multilateral negotiations leading to the early conclusion
of a Nuclear Weapons Convention.
83. In 1997, at the request of Costa Rica, the UN Secretary-General circulated to all UN
119
Member States a Model Nuclear Weapons Convention. Costa Rica submitted the
Model Convention as “an effective and helpful instrument in the deliberative process for
the implementation of” the annual resolution on follow-up to the ICJ Advisory
Opinion. 120In 2008, at the request of Costa Rica and Malaysia, the Secretary-General
121
circulated an updated version of the Model Convention. The Secretary-General later
described the Model Convention as “a good point of departure” for negotiation of a
Nuclear Weapons Convention (Annex 65). 122
84. The Model Convention applies the approach taken by the Chemical Weapons
Convention. The Model Convention provides general obligations regarding the non-use
and non-possession of nuclear weapons and their verified dismantlement; sets out phases
116
This was the sixth P5 Conference since 2009 and the last before the NPT Review C onference in April
2015.
117https://www.gov.uk/government/news/joint -statement-from-the-nuclear-weapon-states-at-the-london-
p5-conference [accessed on 1 March 2015].
118
119Most recently on December 2 2014, UNGA Resolution A/RES/69/43.
Letter dated October 31, 1997 from the Charge d’affaires a.i. of the Permanent Mission of Costa Rica
to the United Nations Addressed to the Secretary -General, U.N. Doc. A/C.1/52/7, 17 November 1997.
120Ibid.
121Letter dated 17 December 2007 from the Permanent Representatives of Costa Rica and Malaysia to the
122ted Nations Addressed to the Secretary -General, UN Doc. A/62/650 (Jan. 18, 2008).
Press Release, Secretary-General Ban Ki-moon, The United Nations and Security in a Nuclear -
Weapon-Free World, U.N. Doc. SG/SM/11881 (Oct. 24, 2008),
http://www.un.org/News/Press/docs/2008/sgsm11881 .doc.htm [accessed 1 March 2015].
39!
! of elimination; provides for multiple means of reporting, monitoring and verification,
from declarations of states to satellite observation; prohibits production of fissile material
for nuclear weapons; requires national implementation measures; provides for
prosecution of individuals accused of committing crimes proscribed by the convention;
establishes an implementing agency; and establishes mechanisms for dispute resolution
and compliance inducement and enforcement. The Model also builds upon existing
nuclear non-proliferation and disarmament regimes and verification and compliance
arrangements, including the NPT, International Atomic Energy Agency safeguards, the
International Monitoring System for the Comprehensive Nuclear-Test Ban Treaty
(“CTBT”), regional nuclear weapon-free zones, UN Security Council Resolution 1540,
the International Convention for the Suppression of Acts of Nuclear Terrorism, and
bilateral nuclear force reduction agreements between Russia and the U.S.
85. Despite the annual UN General Assembly resolution discussed above, there have been no
inter-governmental negotiations or deliberations in any official forum leading toward the
adoption of a Nuclear Weapons Convention, except in the above-mentioned Open-Ended
Working Group in which the UK and the other NPT nuclear weapon States refused to
participate.
86. In February 2008, the UN High Representative for Disarmament Affairs, Sergio Duarte,
condemned the great powers’ “refusal to negotiate or discuss even the outlines of a
123
nuclear-weapons convention” as “contrary to the cause of disarmament.” (Annex 66).
87. The UK Government officially expresses opposition to a Nuclear Weapons Convention.
A 2009 policy paper provided that while a Nuclear Weapons Convention will “likely be
necessary to establish the final ban on nuclear weapons”, it is “premature and potentially
counter-productive” to prioritise such a convention “when the many other conditions
necessary to enable a ban have yet to be put in place” (Annex 67). 124
88. In June 2010, Lord Howell of Guildford (Minister of State, Foreign and Commonwealth
Office) stated:
123Nuclear Disarmament and the NPT: The Responsibility of the Nuclear -Weapon States, at “Global
Summit for a Nuclear Weapon -Free World: Laying the Practical, Technical, and Political Groundwork”,
Campaign for Nuclear Disarmame nt and Acronym Institute for Disarmament Diplomacy, London, 16
February 2008: http://www.un.org/disarmament/HomePage/HR/docs/2008/2008Feb16_London.pdf
124cessed 1 March 2015].
Foreign and Commonwealth Office, Lifting the Nuclear Shadow , 2009, p. 34.
40!
! “The idea of a nuclear weapons convention is a fine one, but… [a] whole series of
things need to be done before one comes to the happy situation where the nuclear
world is disarmed and a convention could then get full support”. (Annex 68) 125
89. In August 2011, the Prime Minister stated that he disagreed “that negotiations now on a
nuclear weapons convention should be the immediate means of getting us to a world free
of nuclear weapons”. 126While he acknowledged that a Nuclear Weapons Convention
“could ultimately form the legal underpinning for this end point”, he considered that the
prospects of reaching agreement on a convention “are remote at the moment”. 127
90. The first-ever UN General Assembly High-Level Meeting on Nuclear Disarmament was
held on 26 September 2013, pursuant to a 2012 resolution which was opposed by the
128
UK. At that meeting the UK representative delivered a statement on behalf of the UK,
France and the U.S. in which they welcome “the increased energy and enthusiasm around
the nuclear disarmament debate” but “regret that this energy is being directed toward
initiatives such as this High-Level Meeting, the humanitarian consequences campaign,
the Open-Ended Working Group and the push for a Nuclear Weapons Convention.”
(Annex 69). 129
91. The UK subsequently voted against a new UN General Assembly resolution following up
130
the High-Level Meeting. The resolution called for “the urgent commencement of
negotiations, in the Conference on Disarmament, for the early conclusion of a
comprehensive convention” to prohibit and eliminate nuclear weapons.
92. Similarly, in December 2014 the UK voted against the successor UN General Assembly
resolution following up the 2013 High-Level Meeting. The resolution endorsed a
comprehensive convention on nuclear weapons and called for the urgent commencement
131
of negotiations in the Conference on Disarmament for that purpose.
125
Hansard, HL Deb, 9 June 2010, col. 641: answer to a question by Baroness Williams of Crosby
(Liberal Democrat), who had pointed out that “ the great bulk of non -nuclear powers decided to press for
a nuclear weapons convention to abolish nuclear weapons completely by 2025”.
126
127Letter from the Prime Minister to Jeremy Corbyn MP, 15 August 2011.
Ibid.
128UNGA Resolution A/RES/67/39, 3 December 2012.
12Open Ended Working Group hereafter “OEWG”,
http://www.reachingcriticalwill.org/images/documents/Disarmament -fora/HLM/26Sep_UKUSFrance.pdf
130cessed on 1 March 2015].
UNGA Resolution A/RES/68/32, 5 December 2013.
131UNGA Resolution A/RES/69/58, 2 December 2014.
! 41! P ART 3
J URISDICTION AND A DMISSIBILITY
Jurisdiction
93. The Republic of the Marshall Islands rests its claim of jurisdiction in these proceedings
on Article 36, paragraph 2 of the Statute of the Court and on the Declarations of the RMI
and the United Kingdom Recognizing the Jurisdiction of the Court as Compulsory. The
Declaration of the Marshall Islands was deposited on 24 April 2013 and the relevant
132
Declaration of the United Kingdom was deposited on 5 July 2004 (Annex 70).
94. The Declarations of each party accept the jurisdiction of this Court (with exceptions not
apposite in these proceedings) by using the general words “in conformity with paragraph
2 of Article 36 of the Statute of the Court”.
The existence of a “dispute”
95. The Marshall Islands has a legal dispute with the United Kingdom, as required by Article
36(2) of the Statute of the Court. The dispute concerns the United Kingdom’s non-
compliance with its legal obligations under Article VI of the NPT and 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.
96. The Court has identified clear parameters for determining the existence of a dispute.
According to the established case law of the Court, “[a] dispute is a disagreement 133a
point of law or fact, a conflict of legal views or of interests between two persons.”
Moreover, “[w]hether there is a dispute in a given case is a matter for ‘objective
134
determination’ by the Court” and “[t]he Court’s determination must turn on an
132
On 31 December 2014, the United Kingdom deposited a revised Declaration that has no application to
133 present proceedings.
Mavrommatis Palestine Concessions, Judgment No. 2, 1924, P.C.I.J., Series A, No, p. 11; most
recently, Application of the Internat ional Convention on the Elimination of All Forms of Racial
Discrimination (Georgia v. Russian Federation), Preliminary Objections, Judgment, I.C.J. Reports 2011
(I), p. 84, para. 30.
134Interpretation of Peace Treaties with Bulgaria, Hungary and Romania, Fi rst Phase, Advisory Opinion,
I.C.J. Reports 1950, p. 74.
42!
! 135
examination of the facts. The matter is one of substance, not of form.” In particular,
what must be shown is “that the claim of one party is positively opposed by the other”. 136
However, the opposition to the claim of one party may also be inferred from the attitude
taken by the other party in respect to such claim. As the Court has stated, “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
137
party”.
97. These criteria are fulfilled in the present case. The statements and conduct of the parties
reflect the existence of a legal dispute between the United Kingdom and the RMI over
whether the United Kingdom is complying with its 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.
98. As set out in its Application and in the Introduction to the present Memorial, the RMI is
particularly aware of the potentially dire consequences of nuclear weapons and in recent
years has enhanced its commitment to promoting greater global progress to nuclear
disarmament. On several occasions, and in different fora, it has asked States possessing
nuclear weapons to abide by their obligations to take action towards nuclear
disarmament. For instance, on 26 September 2013, at the occasion of the UN High Level
Meeting on Nuclear Disarmament, the Minister of Foreign Affairs for the RMI urged “all
nuclear weapons states to intensify efforts to address their responsibilities in moving
towards an effective and secure disarmament” (Annex 71). 138 Marshall Islands invites
the Court to compare the RMI statement with the statement made by the United Kingdom
on that occasion, regretting the energy “being directed toward initiatives such as this
High-Level Meeting, the humanitarian consequences campaign, the Open-Ended
Working Group and the push for a Nuclear Weapons Convention.” 139 The Marshall
Islands submits that the United Kingdom’s statement, while paying lip service to the
obligations under the NPT and under customary international law, demonstrates a
fundamental disagreement, a dispute, with the Marshall Islands concerning the correct
135Supra, n. 133, para. 30.
136South West Africa (Ethiopia v. South Africa; Liberia v. South Africa), Preliminary Objections,
Judgment, I.C.J. Reports 1962 , p. 328, and most recently supra, n. 16, at para. 46.
137
Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v. Nigeria), Preliminary
138ections, Judgment, I.C.J. Reports 1998 , p. 315, paras. 89 ff.
Statement by Hon. Mr. Phillip Muller, Minister of Foreign Affairs of the Republic of th e Marshall
Islands, 26 September 2013, http://www.un.org/en/ga/68/meetings/nucleardisarmament/pdf/MH_en.pdf
[accessed on 2 March 2015].
139See para 77 & 225 of this Memorial .
43!
! understanding of those obligations and the extent to which the United Kingdom is
fulfilling them.
99. On 13 February 2014, at the Second Conference on the Humanitarian Impact of Nuclear
Weapons, the RMI reiterated its position and expressly stated that the failure of States
possessing nuclear weapons to engage in negotiations leading to nuclear disarmament
amounted to a breach of their international obligations. It observed that:
“(…) 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
140
customary international law.” (Annex 72)
100. This unequivocal statement confirmed to States possessing nuclear weapons, including
the United Kingdom, that the RMI believes that their failure to engage seriously in
multilateral negotiations amounts to a breach of their international obligations under the
Non-Proliferation Treaty and under customary international law. This public statement,
as well as the overall position taken by the RMI on this issue over recent years, is clear
evidence that the RMI had raised a dispute with each and every one of the States
possessing nuclear weapons, including with the United Kingdom. The subject matter of
this dispute is the same as that later submitted to the Court through the RMI’s
Application. In its judgment in the case concerning the Application of the International
Convention on the Elimination of All Forms of Racial Discrimination (Georgia v.
Russian Federation) the Court recognized:
“[w]hile it is not necessary that a State must expressly refer to a specific treaty in
its exchanges with the other State to enable it later to invoke that instrument
before the Court (Military and Paramilitary Activities in and against Nicaragua
(Nicaragua v. United States of America), Jurisdiction and Admissibility,
Judgment, I.C.J. Reports 1984, pp. 428 - 429, para. 83), the exchanges must refer
to the subject-matter of the treaty with sufficient clarity to enable the State against
which a claim is made to identify that there is, or may be, a dispute with regard to
that subject-matter”. 141
14Marshall Islands Statement, Second Conference on the Humanitarian Impact of Nuclear Weapons
Nayarit, Mexico, 13 -14 February 2014,
http://www.reachingcriticalwill.org/images/documents/Disarmament -fora/nayarit-
1414/statements/MarshallIslands.pdf , [accessed on 1 March 2015].
Supra, n. 133 para. 30.
44!
! While this statement refers to a dispute with regard to compliance with a Treaty, the same
also applies to disputes under customary international law. In the present case there is no
doubt that the RMI referred to the subject matter of its claims against the United
Kingdom with sufficient clarity to enable the United Kingdom “to identify that there is,
or may be, a dispute with regard to that subject-matter”. Thus, the United Kingdom
cannot now seriously contend that the RMI failed to raise a dispute with it over the
United Kingdom’s non-fulfilment of its Treaty and customary international law
obligations to engage in negotiations leading to nuclear disarmament.
101. It can hardly be denied that the RMI’s claims have been positively opposed by the United
Kingdom. The United Kingdom’s opposition to such claims can be inferred from its
conduct. While in public statements the United Kingdom has frequently reaffirmed its
commitment to the goal of a nuclear weapon free world, 142its conduct, which has
continued unchanged despite the RMI’s claims and requests, reveals that the United
Kingdom is not fulfilling its obligation under the Non-Proliferation Treaty and 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. Instead, the United Kingdom opposes initiation of multilateral negotiations on
nuclear disarmament and continues to engage in a course of conduct consisting of the
long-term maintenance and qualitative improvement of its nuclear arsenal, which is
contrary to the objective of nuclear disarmament. In Part 2 of this Memorial, the RMI has
set out the United Kingdom’s opposition to multilateral negotiations on nuclear
disarmament and its current plans for the long-term maintenance and improvement of its
nuclear arsenal. What must be emphasized is that the United Kingdom’s conduct
provides clear evidence of its opposition to the RMI’s claims. As this Court said, when it
comes to determining the existence of a dispute, “[t]he matter is one of substance, not of
143
form”. And the substance is that the United Kingdom continues to engage in conduct
that is contrary to its Treaty and customary international legal obligations 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.
102. It may be concluded that, as demonstrated above and also in Part 2, especially under the
heading The UK’s opposition to the negotiation of a Nuclear Weapons Convention, the
RMI and the United Kingdom, by their opposing statements and conduct, have
manifested the existence of a dispute over the United Kingdom’s non-compliance with its
Treaty and customary international law obligations to pursue in good faith, and bring to a
142
E.g., statement at the Vienna Conference on the Humanitarian Impact of Nuclea r Weapons, supra n.
143
Supra, n. 3.
45!
! conclusion, negotiations leading to nuclear disarmament in all its aspects under strict and
effective international control.
Locus standi
103. The RMI has explained in Part 1 of this Memorial its own particular experience of
nuclear weapons testing and also in this Memorial has set forth its interests in ending the
nuclear threat (“Nuclear Sword of Damocles,” supra). Because of these interests, there is
little doubt that the RMI has locus standi to bring a case against the United Kingdom for
breaches of the obligations set forth in Article VI of the NPT. The RMI can be qualified
as an injured State within the definition provided by Article 42 (b) (ii) of the International
Law Commission’s Articles on Responsibility of States for Internationally Wrongful
Acts.144 However, this is not the only ground which can justify the existence of a locus
standi in the present case. The RMI submits that every State has locus standi to seek to
enforce the obligations 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” since this obligation is an obligation erga omnes (or “opposable erga omnes”, as
President Bedjaoui put it). 145 As such, every State has a legal interest in its timely
performance.
104. The Marshall Islands draws attention to the following language in the decision of this
Court in its judgment concerning the Barcelona Traction, Light and Power Company,
146
Limited:
“[…] an essential distinction should be drawn between the obligations of a State
towards the international community as a whole, and those arising vis-à-vis
another State in the field of diplomatic protection. By their very nature the former
are the concern of all States. In view of the importance of the rights involved, all
States can be held to have a legal interest in their protection; they are obligations
erga omnes.
Such obligations derive, for example, in contemporary international law, from the
outlawing of acts of aggression, and of genocide, as also from the principles and
rules concerning the basic rights of the human person, including protection from
slavery and racial discrimination. Some of the corresponding rights of protection
have entered into the body of general international law (Reservations to the
Convention on the Prevention and Punishment of the Crime of Genocide,
144UNGA Resolution A/RES/56/83, 28 January 2002.
145Supra, n. 3, p. 274.
146
Barcelona Traction, Light and Power Company, Limited (Belgium v. Spain); Second Phase , Judgment
of 5 February 1970, I.C.J. Reports 1970, p. 3.
46!
! Advisory Opinion, I.C.J. Reports 1951, p. 23); others are conferred by
international instruments of a universal or quasi-universal character.” 147
105. A striking feature of this statement bears emphasizing at the outset. Namely, as the Court
asserts in its reference to genocide, obligations erga omnes, and corresponding rights of
protection, can arise under customary international law as well as under Treaty law. The
obligation involved in the proceedings that the RMI has brought against all those States
possessing nuclear weapons illustrate the overlap between these two sources. Insofar as a
State is a party to the NPT, the obligation can clearly be regarded as a Treaty obligation.
But in respect of each of the four non-party States, the obligation is only customary in
nature and constitutes, to use the Barcelona Traction expression, “general international
law”. 148
106. It is true that this Court may have to elaborate on the nature of the obligations that are
owed erga omnes partes and/or erga omnes. It is equally the case that in Barcelona
Traction the Court was not setting out a closed list of the obligations to which it was
referring, but rather giving examples. As the list is not exhaustive, it should also include
an issue which is fundamental to the very survival of humanity, and which has been on
the agenda of the United Nations since its inception – the abolition of nuclear weapons. 149
As the Court said in its Advisory Opinion of 8 July 1996:
“The destructive power of nuclear weapons cannot be contained in either space or
time. They have the potential to destroy all civilization and the entire ecosystem
150
of the planet.”
107. The RMI is a small island State whose only power is the power of the law. Surely it must
have standing to enforce existing Treaty and customary international law obligations to
pursue and conclude negotiations leading to the elimination of nuclear weapons that have
“the potential to destroy all civilization and the entire ecosystem of the planet”.
108. There is a close analogy here with the obligations that this Court has previously
addressed concerning genocide and torture. In Questions relating to the Obligation to
Prosecute or Extradite, this Court posed the question “whether being a party to the
147Ibid., p. 32.
148
To the extent that the customary law obligations are parallel to those in a Treaty, it is worth noting that
the Genocide Convention has 146 parties, the Convention against Torture has 156 and the NPT has 189.
This overwhelming support for the NPT might, of itself, suggest that article VI has become a source of
customary law. See Part 6 of this Memorial.
149See the discussion of the General Assembly’s first resolution on any subject and subsequent practice in
paras. Supra, n. 3, at paras. 100-103.
150
Ibid., at para. 35.
47!
! [Torture] Convention is sufficient for a State to be entitled to bring a claim to the Court
concerning the cessation of alleged violations by another State party of its obligations
under that instrument”. 151 The Court held:
“68. As stated in its Preamble, the object and purpose of the Convention [against
Torture] is “to make more effective the struggle against torture . . . throughout the
world”. The States parties to the Convention have a common interest to ensure, in
view of their shared values, that acts of torture are prevented and that, if they
occur, their authors do not enjoy impunity. . . . All the other States parties have a
common interest in compliance with these obligations by the State in whose
territory the alleged offender is present. That common interest implies that the
obligations in question are owed by any State Party to all the other States parties
to the Convention. All the States Parties “have a legal interest” in the protection
of the rights involved (Barcelona Traction, Light and Power Company Limited
(Belgium v. Spain), Second Phase, Judgment, I.C.J. Reports 1970, p. 32, para.
33). These obligations may be defined as “obligations erga omnes partes” in the
sense that each State party has an interest in compliance with them in any given
case. In this respect, the relevant provisions of the Convention against Torture are
similar to those of the Convention on the Prevention and Punishment of the Crime
of Genocide, with regard to which the Court observed that: “In such a convention
the contracting States do not have any interest of their own; they merely have, one
and all, a common interest, namely, the accomplishment of those high purposes
which are the raison d’être of the Convention.” (Reservations to the Convention
on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion,
I.C.J. Reports 1951, p. 23.).
69. The common interest in compliance with the relevant obligations under the
Convention against Torture implies the entitlement of each State party to the
Convention to make a claim concerning the cessation of an alleged breach by
another State party. If a special interest were required for that purpose, in many
cases no State would be in a position to make such a claim. It follows that any
State party to the Convention may invoke the responsibility of another State party
with a view to ascertaining the alleged failure to comply with its obligations erga
omnes partes, such as those under Article 6, paragraph 2, and Article 7, paragraph
1, of the Convention, and to bring that failure to an end.” 152
151
152Supra, n. 16, para. 67.
Ibid., pp. 449-450.
48!
!109. The same is true here. The very Treaty that contain153 “recognition . . . of an obligation to
negotiate in good faith a nuclear disarmament” has the parties asserting in the
Preamble, inter alia, the following underpinnings of that obligation:
“Considering the devastation that would be visited upon all mankind by a nuclear
war and the consequent need to make every effort to avert the danger of such a
war and to take measures to safeguard the security of peoples,
[…]
Declaring their intention to achieve at the earliest possible date the cessation of
the nuclear arms race and to undertake effective measures in the direction of
nuclear disarmament,
[…]
Desiring to further the easing of international tension and the strengthening of
trust between States in order to facilitate the cessation of the manufacture of
nuclear weapons, the liquidation of all their existing stockpiles, and the
elimination from national arsenals of nuclear weapons and the means of their
delivery pursuant to a treaty on general and complete disarmament under strict
and effective international control.” 154
110. For the reasons set forth in the previous paragraphs, it should be concluded that the RMI
has locus standi in the present proceedings and that its position on standing finds support
in Article 42 and Article 48 of the International Law Commission’s Articles on
Responsibility of States for Internationally Wrongful Acts. 155
153Supra, n. 3, at para. 99.
154Supra, n. 2, Preamble.
155
Supra, n. 144.
49!
! PART 4
H ISTORICAL D EVELOPMENT OF THE O BLIGATIONS R ELATING TO N UCLEAR
D ISARMAMENT AND C ESSATION OF THE N UCLEAR ARMS R ACE IN THE UNITED
N ATIONS AND UNDER THE N UCLEAR NON -PROLIFERATION T REATY
111. The focus of the RMI’s case is Article VI of the NPT but it is important to contextualize
the Treaty in relation to the development of the relevant norms, including international
customary law, within the United Nations. The following section provides an overview
of this context, before and after the adoption of the NPT, as well as the negotiation of the
Treaty.
Early UN General Assembly resolutions
112. Five months after the U.S. nuclear bombings of Hiroshima and Nagasaki, in its very first
resolution, unanimously adopted on 24 January 1946 at the London session, the United
Nations General Assembly established a commission to make specific proposals for,
among other things, "the elimination from national armaments of atomic weapons and of
all other major weapons adaptable to mass destrThe Atomic Energy
Commission so created was then presented with conflicting proposals from the United
States and the Soviet UniIn response, on 14 December 1946, the General Assembly
unanimously adopted a resolution recommending that the United Nations Security
Council “facilitate the work of the Commission” and also that the Council “expedite
consideration of a draft convention or conventions for the creation of an international
system of control and inspection, these conventions to include the prohibition of atomic
and all other major weapons adaptable now and in the future to mass destruction and the
control of atomic energy to the extent necessary to ensure its use only for peaceful
purposes.”5The resolution further recommended that the Council, in accordance with
Article 26 of the United Nations Charter, formulate plans for the “general regulation and
159
reduction of armaments and armed forceIn the end the Council took no action
156
UNGA Resolution A/RES/1 (I), 24 January 1946, cited in the Court’s Advisory Opinion on nuclear
weapons, supra n. 2, para. 101.
157E.L. Meyrowitz, Prohibition of Nuclear Weapons: The Relevance of International Law (Transnational
Publishers, 1990) pp. 106 .
158UNGA Resolution A/RES/41 (1), 14 December 1946.
159
Ibid.
50!
! regarding elimination of nuclear and other weapons of mass destruction, nor did the
Council formulate plans for general disarmament. The Atomic Energy Commission was
160
dissolved in 1952.
113. The General Assembly remained seized of these matters. Thus in a resolution
unanimously adopted on 4 November 1954, it concluded:
“that a further effort should be made to reach agreement on comprehensive and
co-ordinated proposals to be embodied in a draft international disarmament
convention providing for
(a) The regulation, limitation and major reduction of all armed forces and all
conventional armaments;
(b) The total prohibition of the use and manufacture of nuclear weapons and
weapons of mass destruction of every type, together with the conversion of
existing stocks of nuclear weapons for peaceful purposes;
(c) The establishment of effective international control, through a control organ
with rights, powers and functions adequate to guarantee the effective observance
of the agreed reductions of all armament and armed forces and the prohibition of
nuclear and other weapons of mass destruction, and to ensure the use of atomic
energy for peaceful purposes only”. 161
The Nuclear Non-Proliferation Treaty
Negotiation of the NPT
114. In 1961, the General Assembly unanimously adopted an Ireland-sponsored resolution
calling for conclusion of an international agreement to prevent an imminent increase in
162
the number of States possessing nuclear weapons. Consistently with the terms of that
resolution, in the summer of 1965 the Soviet Union and the U.S. introduced draft treaties
in the Eighteen Nation Disarmament Committee (ENDC) prohibiting the acquisition of
160UNGA Resolution A/RES/502 (VI), 11 January 1952, which created the Disarmament Commission.
Regarding UN efforts relating to general and complete disarmament prior to negotiation of the NPT, see
Randy Rydell, “Nuclear Disarmament and General and Complete Disarmament,” in D. Krieger, ed., The
Challenge of Abolishing Nuclear Weapons (Transaction Publishers 2009), pp. 229-234, available at
http://www.un.org/disarmament/content/speeches/oda -ny/rydell/. Rydell was Senior Political Affairs
Officer in the Office of the High Representative for Disarmament Affairs .
161UNGA Resolution A/RES/808 A (IX), 4 November 1954, cited in Nuclear Weapons Advisory
Opinion, supra, n. 2, para. 101.
162UNGA Resolution A/RES/1665 (XVI), 4 December 1961. An earlier resolution sponsored by Ireland
on the same subject was adopted in 195 9. UNGA Resolution A/RES/1380 (XIV), 20 November 1959.
51!
! 163
nuclear weapons by and transfer of such weapons to non-possessing States. While there
were preambular references, varying between the drafts, to cessation of the nuclear arms
race and nuclear disarmament, and to peaceful uses of nuclear energy, the drafts
contained no operative provisions on those matters.
115. The eight non-aligned members of the ENDC produced a joint memorandum in response
to the drafts.It stated:
“measures to prohibit the spread of nuclear weapons should be coupled with or
followed by tangible steps to halt the nuclear arms race and to limit, reduce and
eliminate the stocks of nuclear weapons and the means of their delivery." 164
Later that year, a General Assembly resolution formulated the five principles on which
the Treaty should be based;they included:
“b. The treaty should embody an acceptable balance of mutual responsibilities and
obligations of the nuclear and non-nuclear Powers;
c. The treaty should be a step toward the achievement of general and complete
disarmament and, more particularly, nuclear disarmament.” 165
116. Subsequently, India, Brazil, Scandinavian States, Canada, the United Arab Republic and
the Federal Republic of Germany “brought strong pressure upon the [U.S. and Soviet]
Co-chairmen to obtain some statement within the treaty concerning nuclear
166
disarmament.” In August 1967, the Soviet Union and the U.S. put forward a new draft
that, inter alia, included Article IV recognizing the right to peaceful uses of nuclear
energy. 167References to cessation of the nuclear arms race and nuclear disarmament
168
remained preambular. In response, reflecting in part earlier discussions in the ENDC,
Mexico proposed an obligation as follows, taking language regarding measures from the
preamble and adding a measure regarding the prohibition of nuclear weapons tests:
163ENDC/152, 17 August 1995 (U.S.) and A/5976, 24 September 1965 (Soviet), reproduced in M.I.
Shaker, The Nuclear Non-Proliferation Treaty: Origin and Implementation, 1959–1979 (London: Oceana
Publications, Vol. III 1980) pp. 937 -943.
164ENDC/158, 15 Sept. 1965, reproduced in Shaker, Vol. I, p. 55. The eight non-aligned members of the
ENDC were Brazil, Burma, Ethiopia, India, Mexico, Nigeria, Sweden, and the United Arab Republic.
165
UNGA Resolution A/RES/2028 (XX), 19 November 1965, adopted by a vote of 93 to zero, with five
abstentions.
166E. Firmage, “The Treaty on the Non -Proliferation of Nuclear Weapons”, 63 American Journal of
International Law (1969) 711, 732.
167ENDC/192, 24 August 1967 (US) and ENDC/193, 24 August 1967 (Soviet), reproduced in Shaker,
168ra, n. 163, Vol. III, at pp. 946-950.
The eight non-aligned members of the ENDC, India and Sweden jointly and separately, and Romania
all made proposals relating to nuclear disarmament and cessation o f the nuclear arms. Ibid.,Vol. II, pp.
565-572.
52!
! “Each nuclear-weapon State Party to this Treaty undertakes to pursue negotiations
in good faith, with all speed and perseverance, on agreements regarding the
prohibition of all nuclear weapons tests, the cessation of the manufacture of
nuclear weapons, the liquidation of all their existing stockpiles, the elimination
from national arsenals of nuclear weapons and the means of their delivery, as well
as to reach agreement on a treaty on general and complete disarmament under
strict and effective international control.” 169
Brazil described the U.S.-Soviet draft as “one-sided and discriminatory.” 170 It proposed
as Article II (A):
“Each nuclear-weapon State Party to this Treaty undertakes the obligation to
negotiate at the earliest possible date a Treaty for the cessation of nuclear arms
race and for the eventual reduction and elimination of their nuclear arsenals and
the means of delivery of their nuclear weapons.” 171
117. A January 1968 draft put forward by the Soviet Union and U.S. strengthened Article IV
by adding an obligation regarding cooperation in development of peaceful uses of nuclear
energy. It also contained new provisions, promising non-nuclear weapon States access to
any benefits of “peaceful nuclear explosions” (Article V), recognizing the right of States
to form regional nuclear-weapon-free zones (Article VII), providing for a decision as to
extension of the Treaty 25 years after entry into force (Article X (2)), and Article VI
largely as it was finally agreed. 172Article VI included the obligation to pursue
negotiations in good faith as proposed by Mexico but made no reference to specific
measures, which remained in the preamble. In accordance with a Swedish proposal, “at
an early date” was subsequently added after “cessation of the nuclear arms race,”
“nuclear” was inserted prior to disarmament in the phrase “effective measures relating to
… disarmament”, and a Treaty comprehensively banning nuclear test explosions was
referenced in the preamble. 173The inclusion of Article X (2) reflected among other things
the view of some non-nuclear weapon States that they should not be permanently bound
169Final Verbatim Record of the 331 Meeting of the Eighteen-Nation Committee on Disarmament, 19
170tember 1967, ENDC/PV.331, p. 10.
Final Verbatim Record of the 327th Meeting of the Eighteen -Nation Committee on Disarmament, 31
August 1967, ENDC/PV.327, p. 4.
171Final Verbatim Record of the 343d Meeting of the Eighteen -Nation Committee on Disarmament, 31
October 1967, ENDC/PV.343, p. 5. India and Romania also made proposals. Supra n. 163, at pp. 557,
172-571, 574-575.
ENDC/192/Rev. 1, 18 January 1968 (U.S.) and ENDC/193/ Rev. 1, 18 January 1968 (Soviet), supra,
n. 163, Vol. III, at pp. 951 -956.
173Final Verbatim Record of the 363d Meeting of the Eighteen -Nation Committee on Disarmament, 31
October 1967, ENDC/ PV.363, pp. 6-7; Supra n. 163, Vol. II, at pp. 576-577.
53!
! if disarmament measures are not implemented. 174After some further adjustments to the
draft, the General Assembly adopted a resolution endorsing the Treaty on 12 June
1968. 175
118. The negotiating history confirms that Article VI is “a provision essential to the
176
accomplishment of the object or purpose of the [NPT]”, reflecting a “strategic bargain”
between States that renounced acquisition of nuclear arms and States possessing them
177
(Annex 73). According to one scholar:
“The fact that Article VI has its place in the treaty is a testament to the tenacity of
the non-nuclear-weapon States in demanding some form of quid pro quo for their
renunciation of nuclear weapons.” 178
The history further shows not only the centrality of Article VI to adoption of the Treaty
but also that implementation of Article VI was expected to yield results in a timely
manner. Mohamed Shaker, a member of the delegation of the United Arab Republic to
the ENDC during the negotiations, noted in his three-volume study of the NPT that a
number of non-nuclear weapon States “generally felt that negotiating was not an end in
179
itself but a means to achieving concrete results.” Commenting on the January 1968
draft, the UK Minister of State for Foreign Affairs, Frederick Mulley, stated:
“Article VI concerns what is certainly the most important by-product of the treaty
and one of its most important provisions. Most of us have spoken at one time or
another on the need for a link between this treaty and further measures of
174
Supra n. 163, Vol. II, at pp. 860 -862. Switzerland commented in an aide -memoire that “the non -
nuclear-weapon States certainly cannot take the responsibility of tying their hands indefinitely if the
nuclear-weapon States fail to arrive at positive results in that direction [limitation of armaments].Ibid. at
p. 861, citing ENDC/204, 24 November 1967. The United Kingdom stated that Article X(2) “takes into
account the concern of many countries that c ircumstances might alter and that a treaty of this importance
should be open to termination in due course if its wider purposes, including the need for further
disarmament measures, are not being achieved.” Final Verbatim Record of the 358h Meeting of the
Eighteen-Nation Committee on Disarmament, 23 January 1968, ENDC/PV.358, pp. 9 -10 (Minister of
175te for Foreign Affairs Frederick Mulley).
UNGA Resolution A/RES/2373 (XXII), 12 June 1968, adopted by a vote of 94 to 4 (Albania, Cuba,
Tanzania, and Zambia), with 21 abstentions.
176Article 60(3)(b) of the Vienna Convention on the Law of Treaties 1969.
177
T. Graham, Correspondence, “The Origin and Interpretation of Article VI”, 15 Nonproliferation
Review 7, 9 (2008), available at http://cns.miis.edu/npr/pdfs/151_correspondence.pdf [accessed on 1
March 2015]. Graham was the U.S. Special Representative for Non -Proliferation at the 1995 NPT Review
and Extension Conference.
178Supra n. 166, at p. 733. See also supra n. 163, at p. 564 (responsibility of nuclear -weapon States under
Article VI “was looked upon by the non -nuclear-weapons States not only in the context of achieving a
more secure world but as a quid pro quo for the latter’s renunciation of nuclear weapons”).
179Supra, n. 163, at p. 572.
! 54! disarmament …. One way of providing this necessary, balancing obligation
between the nuclear and non-nuclear signatories was to write the undertaking into
the body of the treaty…. [M]y Government accepts the obligation to participate
fully in the negotiations required by article VI; and it is our desire that these
negotiations should begin as soon as possible and should produce speedy and
successful results. There is no excuse now for allowing a long delay to follow the
signing of this treaty, as happened after the [1963 signing of the] partial test-ban
180
treaty …, before further measures can be agreed and implemented.”
119. The Treaty was opened for signature on 1 Jul181968 and entered into force on 5 March
1970. It currently has 189 States Parties.
120. In general terms, the obligations imposed by the Treaty are the following. Article I
obligates NWS not to transfer nuclear weapons to “any recipient whatsoever”. Under
Articles II and III, NNWS are obligated not to acquire nuclear weapons and to accept
monitoring of their civilian nuclear programs through safeguards administered by the
International Atomic Energy Agency (IAEA). Article IV recognizes the right “to
develop research, production and use of nuclear energy for peaceful purposes” and
obligates States to cooperate in the development of such peaceful uses, especially in
NNWS. Article VI requires the pursuit of negotiations in good faith on effective
measures relating to cessation of the nuclear arms race and to nuclear disarmament, and
on a Treaty on general and complete disarmament. Other provisions include Article VIII,
which provides for convening of a conference every five years to review the operation of
the Treaty, and Article X(2), which provides for a conference 25 years after entry into
force to decide the terms on which the Treaty should be extended. A brief account of the
history of negotiation of the NPT and of key review conferences follows, centred on
Article VI.
121. Soon after the Treaty was opened for signature, on 13 August 1968, Mexico stated that
non-nuclear weapon States “made their signature of the treaty depend on one condition,
… that the nuclear Powers should within a reasonable time fulfil the two basic
commitments assumed by them” in Article VI and Article IV. 182
180Final Verbatim Record of the 358th Meeting of the Eighteen -Nation Committee on Disarmament, 23
January 1968, ENDC/PV.358, pp. 9 -10.
181
UN Office for Disarmament Affairs, Treaty on the Non -Proliferation of Nuclea r Weapons, Status of
the Treaty, available at http://www.un.org/disarmament/treaties/t/npt.html [accessed on 12 March 2015].
The Office for Disarmament Affairs lists the number of States Part ies as 190 because it includes the
Democratic People’s Republic of Korea (DPRK). Although the DPRK announced its withdrawal from
the NPT on 10 January 2003, States Parties continue to express divergent views regarding its status under
the Treaty.
182Final Verbatim Record of the 389th Meeting of the Eighteen -Nation Committee on Disarmament, 13
August 1968, ENDC/PV.389, p. 17.
55!
!122. On 15 August 1968, the ENDC adopted an agenda whose first item was listed under a
heading taken from Article VI:
“1. Further effective measures relating to the cessation of nuclear arms race at an
early date and to nuclear disarmament. Under this heading members may wish to
discuss measures dealing with the cessation of testing, the non-use of nuclear
weapons, the cessation of production of fissionable materials for weapons use, the
cessation of manufacture of weapons and reduction and subsequent elimination of
nuclear stockpiles, nuclear-free zones, etc.
2. Non-nuclear measures. Under this heading, members may wish to discuss
chemical and bacteriological warfare, regional-arms limitations, etc.
3. Other collateral measures. Under this heading, members may wish to discuss
prevention of an arms race on the sea-bed, etc.
4. General and complete disarmament under strict and effective international
183
control.”
Item 1 encapsulated multilateral measures contemplated during negotiation of the NPT
for the fulfilment of the Article VI obligations as to cessation of the nuclear arms race
and nuclear disarmament. It includes reduction and subsequent elimination of nuclear
stockpiles as an effective measure.
Review Conferences
123. Review Conferences were convened regularly every five years following the NPT’s entry
into force in 1970. The 1975 and 1985 conferences reached agreement on substantive
final documents. 184Regarding Article VI, the two conferences paid special attention to
U.S.-Soviet negotiations on strategic arms limitations and to a comprehensive ban on
nuclear testing. The 1985 conference in addition called for the commencement of
185
multilateral negotiations on nuclear disarmament in the Conference on Disarmament.
183Final Verbatim Record of the 390th Meeting of the Eighteen -Nation Committee on Disarmament, 15
August 1968, ENDC/PV.390, p. 30.
184NPT/CONF/35/1, 30 May 1975; NPT/CONF.III/64/1, 25 September 1985. Both final documents are
available at http://www.un.org/disarmament/WMD/Nuclear/NPT_Review_Conferences.sht ml [accessed
185March 2015].
The 1985 Final Document states: “The Conference urges the Conference on Disarmament, as
appropriate, to proceed to early multilateral negotiations on nuclear disarmament in pursuance of
paragraph 50 of the Final Document of the First Special Session of the
General Assembly of the United Nations devoted to disarmament.” NPT/CONF.III.64/1, supra n. __,
Annex I, Final Declaration, p. 13.
56!
!124. In 1995, pursuant to Article X, the Review and Extension Conference decided to extend
the Treaty’s duration indefinitely. 186 In connection with that decision, the Conference
187
adopted procedures to strengthen the review process; Principles and Objectives on
Nuclear Non-Proliferation and Disarmament; 188and a resolution on the Middle East
calling for efforts to make that region free of nuclear weapons and other weapons of mass
destruction. 189
125. The 2000 NPT Review Conference “agree[d]” on “practical steps for the systematic and
progressive efforts to implement article VI … and paragraphs 3 and 4(c) of the [1995
Principles and Objectives].” 190 The practical steps include Step 6 setting forth an
“unequivocal undertaking by the nuclear-weapon States to accomplish the total
elimination of their nuclear arsenals leading to nuclear disarmament, to which all States
parties are committed under article VI.” Also included is Step 9, which sets forth a
number of “[s]teps by all the nuclear-weapon States leading to nuclear disarmament …”:
• further efforts to reduce nuclear arsenals unilaterally;
• increased transparency;
• further reduction of non-strategic nuclear weapons;
• “[c]oncrete agreed measures to further reduce the operational status of nuclear
weapons systems”;
• “[a] diminishing role for nuclear weapons in security policies to minimize the risk
that these weapons will ever be used and to facilitate the process of their total
elimination”;
• “engagement as soon as appropriate of all the nuclear-weapon States in the process
leading to the total elimination of their nuclear weapons”.
Separately from the practical steps, the “Conference reaffirm[ed] that the total
elimination of nuclear weapons is the only absolute guarantee against the use or threat of
191
use of nuclear weapons.”
126. The 2005 Review Conference failed to reach agreement on a substantive Final
Document. In its Final Document, 192the 2010 Review Conference reaffirmed the
186Final Document, 1995 NPT Review and Extension Conference, NPT/CONF.1995/32 (Part I), Annex ,
pp. 12-13, available at http://www.un.org/disarmament/WMD/Nuclear/NPT_Review_Conferences.shtml
187cessed 12 March 2015].
188Ibid, at p. 8.
Ibid, at pp. 9-12.
189Ibid, at pp. 13-14.
190NPT/CONF.2000/28 (Parts I and II), pp. 14-15, http://www.un.org/disarmament/WMD/Nuclear/2000 -
191/pdf/FD-Part1and2.pdf [accessed on 1 March 2015].
Ibid, at p. 15.
192NPT/CONF.2010/50 (Vol. I),
http://www.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2010/50%20(VOL… ) [accessed 1 March
2015].
57!
! 193
practical steps adopted in 2000, and, building on the practical steps, adopted an “action
plan on disarmament” setting forth 22 actions, including:
• “Action 2. All states parties commit to apply the principles of irreversibility,
verifiability and transparency in relation to the implementation of their treaty
194
obligation.
• Action 3. In implementing the unequivocal undertaking by the nuclear-weapon
States to accomplish the total elimination of their nuclear arsenals, the nuclear-
weapon States commit to undertake further efforts to reduce and ultimately
eliminate all types of nuclear weapons, deployed and non-deployed, including
through unilateral, bilateral, regional and multilateral measures. 195
• Action 5. The nuclear-weapon states commit to accelerate concrete progress on
the steps leading to nuclear disarmament, contained in the [2000 Final
196
Document].”
A number of steps are identified in Action 5 as to which the nuclear-weapon States “are
called upon to promptly engage”. They include: “[r]apidly moving toward the reduction
of the overall global stockpile of all types of nuclear weapons” and to “further diminish
the role and significance of nuclear weapons”.
127. Also in the 2010 Final Document, a provision reflecting the CTBT preamble, but not
previously included in NPT conference outcomes, “recognizes the legitimate interests of
non-nuclear-weapon states in the constraining by the nuclear-weapon States of the
development and qualitative improvement of nuclear weapons and ending the
197
development of advanced new types of nuclear weapons.” Another innovative
provision expresses the Conference’s “deep concern at the catastrophic humanitarian
consequences of any use of nuclear weapons, and reaffirms the need for all states at all
times to comply with applicable international law, including international humanitarian
198
law.” The 2010 Final Document additionally includes a general commitment “to
pursue policies that are fully compatible with the Treaty and the objectives of achieving a
199
world without nuclear weapons”. It “affirms that all States need to make special efforts
to establish the necessary framework to achieve and maintain a world without nuclear
weapons,” coupled with an acknowledgement of the UN Secretary-General’s proposal for
193
The Final Document states: “The Conference reaffirms the continued validity of the practical steps
agreed to in the Final Document of the 2000 Review Conference.” Ibid at p. 19.
194Ibid., at p. 20.
195Ibid.
196
197Ibid., at p. 21.
Ibid., at p. 20.
198Ibid., at p. 19.
199Ibid., at p. 20 (Action 1).
58!
! negotiation of a convention or framework of instruments to that end. 200Early in the
Review Conference, a draft of the action plan on nuclear disarmament included a
provision for an international conference in 2014 to “consider ways and means to agree
on a roadmap for the complete elimination of nuclear weapons within a specified
timeframe, including by means of a universal, legal instrument.” 201 That provision had
disappeared by the end of the Conference due to opposition from some of the nuclear-
weapon States (Annex 74). 202
Non-Implementation of NPT Conference Outcomes
128. The commitments made at the 1995 Review and Extension Conference, and the 2000 and
2010 Review Conferences, 203have largely not been fulfilled. In 2006, The Weapons of
Mass Destruction Commission, chaired by Hans Blix, observed that “it is easy to see that
the nuclear-weapon states parties to the NPT have largely failed to implement” the
commitment made in the 1995 Principles and Objectives to pursue “systematic and
progressive efforts to reduce nuclear weapons globally” and “have failed to ‘pursue
negotiations in good faith’ on nuclear disarmament as required of them under the NPT.”
204
(Annex 75). “Indeed,” the Commission added, “all states that have nuclear weapons
are still seeking to modernize their nuclear capabilities.” 205 The Commission also referred
to a “failure of the nuclear-weapon states … to honour their additional commitments to
disarmament made at the 1995 and 2000 NPT Review Conferences”. 206 The picture is the
same regarding commitments made at the 2010 Review Conference, which as noted
above mostly repeat those made in 2000. A report released in 2014 by The James Martin
200
Ibid. The Secretary-General’s proposal is contained his address, "The United Nations and Security in a
Nuclear-Weapon-Free World,” 24 October 2008,
http://www.un.org/apps/news/infocus/sgspeeches/search_full.asp?statID=3… [accessed 12 March 2015].
201
Report of Main Committee I: Chairman’s Draft on Substantive Elements,
NPT/CONF.2010/mc.1/CRP.2, 14 May 2010, Action 7, p. 8,
http://www.reachingcriticalwill.org/images/documents/Disarmament -fora/npt/revcon2010/MCI-
ChairsDraft.pdf [accessed on 1 March 2015].
202W. Potter, et al, “The 2010 NPT Review Conference: Deconstructing Consensus”, CNS Special
Report, James Martin Center for Non -proliferation Studies, June 17, 2010, p. 8,
http://cns.miis.edu/stories/pdfs/100617_npt_2 010_summary.pdf. The report states that the proposal for
an international conference was opposed by the U.S., France, and Russia. The report indicates that until
late in the Conference, the UK delegation took no position as it did not have instructions f rom its newly-
203med government.
Supra, paras. 123 – 127 of the Memorial.
204H. Blix (Chairman), ‘Weapons of Terror: Freeing the World of Nuclear, Biological and Chemical
Arms”, The Weapons of Mass Destruction Commission, (2006), p. 94,
http://www.un.org/disarmament/education/wmdcommission/files/Weapons_of_… [accessed on 1
205ch 2015].
Ibid.
206Ibid., p. 53.
! 59! Center for Nonproliferation Studies assesses that “Overall progress in implementing
207
disarmament action items since 2010 has been very limited.” (Annex 76).
The 1978 General Assembly Special Session on Disarmament
129. The 1978 Special Session of the General Assembly established the UN disarmament
machinery in its current form, with a reformed Conference on Disarmament devoted to
negotiations, the Disarmament Commission devoted to deliberation, and the First
Committee of the General Assembly exclusively devoted to questions of disarmament
and related international security questions. The Special Session’s unanimously adopted
Final Document thus carries additional weight, compared to other General Assembly
resolutions, in interpreting Article VI and the customary international law obligation of
208
nuclear disarmament. In the Final Document, the General Assembly observed that
“[n]uclear weapons pose the greatest danger to mankind and to the survival of
209
civilization,” and made several statements emphasizing the need to halt and reverse the
nuclear arms race, prevent proliferation and achieve the elimination of nuclear
210
weapons. The Assembly identified general and complete disarmament under effective
international control as the “ultimate objective”, 211and gave first priority in negotiations
to nuclear weapons, followed by other weapons of mass destruction; conventional
weapons, including any which may be deemed to be excessively injurious or to have
212
indiscriminate effects; and reduction of armed forces.
130. Regarding negotiations on nuclear weapons, the General Assembly stated:
207G. Mukhatzhanova, “Implementation of the Conclusions and Recommendations for Follow -on Actions
Adopted at the 2010 NPT Review Conference: Disarmament Actions 1 -22”, 2014 Monitoring Report,
James Martin Center for Non -proliferation Studies, (2014), p. 1, http://www.nonproliferation.org/wp -
content/uploads/2014/04/CNS -Monitoring-Report_2014_web.pdf [accessed 1 March 2015]. See also,
e.g., G. Evans, T. Ogilvie-White and R. Thakur, Nuclear Weapons: The State of Play 2015 (Centre for
Nuclear Non-Proliferation and Disarmament, February 2015),
https://cnnd.crawford.anu.edu.au/publication/cnnd/5328/nu clear-weapons-state-play-2015 [accessed 4
March 2015], a report that assesses implementation of 2010 NPT Review Conference and other
commitments. The report states, “While the need for total nuclear disarmament is more urgent than ever,
its achievement remains little or no closer ….” Ibid., p. 3 (Annex 77).
208
Final Document of the Tenth Special Session of the General Assembly, adopted by A/RES/S -10/2, 30
June 1978, without a vote.
209Ibid., para. 47.
210E.g., ibid., at para. 20: It is “imperative to remove the threat of nuclear weapons, to halt and reverse the
nuclear arms race until the total elimination of nuclear weapons and their delivery systems has been
211ieved, and to prevent the proliferation of nuclear weapons.”
Ibid., para. 19.
212Ibid., para. 45.
! 60! “50. The achievement of nuclear disarmament will require urgent negotiation of
agreements at appropriate stages and with adequate measures of verification
satisfactory to the States concerned for:
(a) Cessation of the qualitative improvement and development of nuclear-weapon
systems;
(b) Cessation of the production of all types of nuclear weapons and their means of
delivery, and of the production of fissionable material for weapons purposes;
(c) A comprehensive, phased programme with agreed time-frames, whenever
feasible, for progressive and balanced reduction of stockpiles of nuclear weapons
and their means of delivery, leading to their ultimate and complete elimination at
213
the earliest possible time.”
The 1985 NPT Review Conference quoted this paragraph in its entirety in its Final
Document and urged the Conference on Disarmament to proceed to early multilateral
214
negotiations on nuclear disarmament in pursuance of the paragraph.
131. The Assembly also referred to the importance of concluding negotiations on a Treaty
comprehensively banning testing of nuclear weapons 215and of concluding existing U.S.-
Soviet negotiations on strategic nuclear arms limitations and pursuing further such
negotiations. 216 The Assembly also specified that “[q]ualitative and quantitative
disarmament measures are both important for halting the arms race,” and added that
“[e]fforts to that end must include negotiations on the limitation and cessation of the
qualitative improvement of armaments, especially weapons of mass destruction and the
development of new means of warfare.” 217
132. The Assembly further stated:
“In order to create favourable conditions for success in the disarmament process,
all States should strictly abide by the provisions of the Charter of the United
Nations, refrain from actions which might adversely affect efforts in the field of
disarmament, and display a constructive approach to negotiations and the political
will to reach agreements.” 218
213Ibid., para. 50.
214
215Supra n. 184, pp. 11, 13.
Final Document of the Tenth Special Session of the General Assembly , supra n. 208, at para. 51.
216Ibid., para. 52.
217Ibid., para. 39.
218Ibid., para. 41.
61!
! General Assembly resolutions adopted post-Advisory Opinion
133. On 8 July 1996 this Court delivered its Advisory Opinion on the Legality of the Threat or
Use of Nuclear Weapons in response to the request by the UN General Assembly on 15
219
December 1994. The General Assembly’s Resolution on “Follow-up to the advisory
opinion of the International Court of Justice on the Legality of the Threat or Use of
220
Nuclear Weapons” was first adopted in 1996, shortly after the Opinion was delivered,
and has been adopted every year since then. 221 Its lead sponsor is Malaysia. It underlines
the ICJ’s unanimous conclusion that there is an obligation to pursue in good faith and
conclude negotiations leading to nuclear disarmament and calls on all States to
immediately fulfil that obligation by commencing multilateral negotiations leading to the
early conclusion of a Nuclear Weapons Convention.
134. No such multilateral negotiations have been commenced in any forum. The Conference
on Disarmament, which operates on the basis of consensus, has been stalemated since the
conclusions of negotiations on a CTBT in 1996, and has not conducted any discussions,
deliberations, or negotiations on complete nuclear disarmament pursuant to an agreed
programme of work. In response to the stalemate, in recent years the General Assembly
has sought to revitalize the UN disarmament machinery. Notably, in 2012 the General
Assembly, by resolution sponsored by Austria, Mexico, and Norway, decided to establish
the Open-Ended Working Group – as briefly referred to in paragraph 90 of this memorial
– in 2013 to develop proposals to take forward multilateral nuclear disarmament
222
negotiations for the achievement and maintenance of a world without nuclear weapons.
The OEWG met in Geneva during the summer of 2013 and delivered a report on its
223
deliberations to the General Assembly that October. The Assembly adopted a
resolution welcoming the report and leaving open the possibility of re-establishing the
224
OEWG.
135. Also in response to the stalemate in the Conference on Disarmament, and the general lack
of progress on nuclear disarmament, the first-ever UN General Assembly High-Level
Meeting on Nuclear Disarmament was held on 26 September 2013 pursuant to a 2012
resolution.225A new General Assembly resolution, sponsored by Indonesia on behalf of
219
220UNGA Resolution A/RES/49/75 K, 15 December 1994.
221UNGA Resolution A/RES/51/45 M, 10 December 2006 ( 115-22-32).
Most recently on December 2, 2014 (A/RES/69/43, 134-23-23).
222UNGA Resolution A/RES/67/56, 3 December 2012, “Taking forward multilateral nuclear
disarmament negotiations for the achievement a nd maintenance of a world without nuclear weapons”
2237-4-31).
UNGA Resolution A/68/514, 9 October 2013.
224UNGA Resolution A/RES/68/46, 10 December 2013, “Taking forward multilateral nuclear
disarmament negotiations” ( 158-4-20).
225UNGA Resolution A/RES/67/39, 3 December 2012.
62!
! 226
the Non-Aligned Movement, followed up on the High-Level Meeting. It called for “the
urgent commencement of negotiations, in the Conference on Disarmament, for the early
conclusion of a comprehensive convention” to prohibit and eliminate nuclear weapons,
and further decided to convene, no later than 2018, a UN high-level international
conference (not meeting) on nuclear disarmament to review progress.
136. The General Assembly has adopted several series of resolutions relating to the outcomes
of the 2000 and 2010 NPT Review Conferences. Notably, in October 2000 the Assembly
adopted a resolution 227sponsored by the New Agenda group of states (Brazil, Egypt,
Ireland, Mexico, New Zealand, South Africa, and Sweden) that had taken a leading role
in negotiating with the nuclear-weapon States the practical steps for disarmament set
forth in the Final Document adopted by the 2000 NPT Review Conference. The
resolution incorporated the practical steps and went further to affirm “that a nuclear-
weapon-free world will ultimately require the underpinnings of a universal and
multilaterally negotiated legally binding instrument or a framework encompassing a
228
mutually reinforcing set of instruments.” In subsequent years the New Agenda group
has sponsored similar resolutions focusing on disarmament commitments made in the
2000 and 2010 NPT Review Conferences, most recently one entitled “Towards a nuclear-
weapon-free world: accelerating the implementation of nuclear disarmament
229
commitments”. Another series of resolutions relating to Review Conference outcomes,
addressing both non-proliferation and disarmament commitments, has been championed
by Japan; the most recent is entitled “United action towards the total elimination of
nuclear weapons”. 230A series of resolutions entitled “Nuclear disarmament” combines
references to NPT Review Conference commitments and calls for agreement on a time-
231
bound program on elimination of nuclear weapons and a comprehensive convention.
That series is sponsored by a large number of Non-Aligned Movement states.
UN Security Council resolutions
137. The UN Security Council has called for the implementation of Article VI, by NPT States
232
Parties and by third States as well.In resolution 984 of 11 April 1995, the Council:
226UNGA Resolution A/RES/68/32, 5 December 2013 (137 -28-20). A successor resolution to the same
227s was adopted on 2 December 2014, UNGA Resolution A/RES/69/58 ( 139-24-19).
UNGA Resolution A/RES/55/33C, “Towards a Nuclear-Weapon-Free World: The Need for a New
Agenda,” 20 November 2000 (154 -3-8). China, the U.S., and the UK voted for the resolution; France and
Russia abstained; India, Israel, and Pakistan voted no.
228Ibid., at para. 18.
229
230UNGA Resolution A/RES/69/37, 2 December 2014 (169-7-5).
UNGA Resolution A/RES/69/52, 2 December 2014 (170 -1-14)
231Most recently, UNGA Resolution A/RES/69/48, 2 December 2014 (121 -44-17).
232Supra n. 3, para. 103.
63!
! “8. Urges 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.”
In resolution 1887 of 24 September 2009, the Council, in the first preambular paragraph,
resolves:
“to seek a safer world for all and to create the conditions for a world
without nuclear weapons, in accordance with the goals of the Treaty on the
Non-Proliferation of Nuclear Weapons (NPT), in a way that promotes
international stability, and based on the principle of undiminished security for
all[.]”
In an operative provision of resolution 1887, the Council
“5. Calls upon the Parties to the NPT, 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, and on a Treaty on general and
complete disarmament under strict and effective international control, and calls
on all other States to join in this endeavor[.]”
The Council has also repeatedly determined that the proliferation of weapons of mass
233
destruction is a threat to international peace and security.
233
E.g., Security Council Resolution 1887 of 24 September 2009, fourth preambular para.
64!
! P ART 5
ARTICLE VI OF THE N UCLEAR N ON -P ROLIFERATION T REATY
The content of Article VI
138. Article VI provides:
“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith
on effective measures relating to cessation of the nuclear arms race at an early
date and to nuclear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control.”
234
139. As stated above, Article VI constitutes a provision essential to the accomplishment of
the NPT’s object or purpose. Its importance has been recognized by commentators. It has
been called “the single most important provision of the treaty … from the standpoint of
235
long-term success or failure of its goal of proliferation prevention”.
140. In the Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons this
Court also recognized the significance of Article VI, declaring that:
"Each of the Parties to the [NPT] Treaty undertakes to pursue negotiations in good
faith on effective measures relating to cessation of the nuclear arms race at an early
date and to nuclear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control.
The legal import of that obligation goes beyond that of a mere obligation of conduct;
the obligation involved here is an obligation to achieve a precise result - nuclear
disarmament in all its aspects - by adopting a particular course of conduct, namely,
the pursuit of negotiations on the matter in good faith.”
141. The Court further observed that “fulfilling the obligation expressed in Article VI …
remains without any doubt an objective of vital importance to the whole of the
international community today.”37
23See para. 118 of the Memorial.
23Supra, n. 166, p. 732.
23Supra, n. 3, para. 99.
237
Ibid., para. 103.
65!
!142. As previously noted, the UN General Assembly has adopted an annual resolution
238
underlining the unanimous conclusion of this Court in its Advisory Opinion. It has also
consistently reiterated that each article of the NPT is “binding on the States parties at all
times and in all circumstances and that all States parties should be held fully accountable
with respect to strict compliance with their obligations under the Treaty.” 239 In particular
the Assembly recalls “the specific reaffirmation of the unequivocal undertaking of the
nuclear-weapon States to accomplish the total elimination of their nuclear arsenals
leading to nuclear disarmament, to which all States parties are committed under article VI
of the Treaty, recalls the commitment of the nuclear-weapon States to accelerate concrete
progress on the steps leading to nuclear disarmament, and calls upon the nuclear weapon
States to take all steps necessary to accelerate the fulfilment of their commitments”. 240
143. The UN Security Council has also added its voice, unanimously calling upon “the Parties
to the NPT, 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, and
on a Treaty on general and complete disarmament under strict and effective international
control, and [calling] on all other States to join in this endeavour”. 241
144. Through these resolutions the Security Council and General Assembly are emphasizing
the importance of the obligations that the UK has incurred under Article VI. Needless to
say, the RMI considers that the UK is not properly living up to these obligations and thus
seeks to make it accountable for its failure to comply with them.
General principles concerning the interpretation of Article VI
145. Article VI is subject to the over-riding principle applicable to all treaties that it is binding
and must be performed by the States Parties to them in good faith: pacta sunt
servanda. 242Further, under the terms of the Vienna Convention on the Law of Treaties,
1969 it must be “interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and
243
purpose.” This Court has recently reaffirmed that Treaty provisions must be
238Supra, n. 118. Follow-up to the advisory opinion of the International Court of Justice on the legality of
239 threat or use of nuclear weapons, 11 De cember 2014 is the most recent of these Resolutions.
Supra, n. 229, Towards a nuclear-weapon-free world: accelerating the implementation of nuclear
disarmament commitments, operative para. 1. In 2014 the UNGA adopted 21 texts on nuclear
disarmament.
240Ibid, 12 preambular para.
241
242UNSC Resolution 1887, 24 September 2009, operative para. 5.
Supra, n. 1, Article 26.
243Ibid., Article 31 (1). The VCLT, articles 31-33 provide the basic principles of treaty interpretation that
are widely accepted as consti tuting customary international law; see e.g. Kasikilil Sedudu Island
(Botswana v. Namibia) Judgment, I. C. J. Reports 1999, p. 1045, para. 18.
66!
! “interpreted in light of the object and purpose of the Convention and taking into account
other provisions of the Convention”. 244 The RMI submits that, as shown by the history of
245
the negotiation of the NPT, Article VI is clearly an integral part of the NPT: enshrining
the “strategic bargain” or quid pro quo demanded by the non-nuclear weapon states for
their renunciation of nuclear weapons.
146. It is thus necessary to determine the ordinary meaning of the terms of Article VI in light
of the object and purpose of the NPT. The VCLT, Article 31(2) makes it clear that: “The
context for the purpose of the interpretation of a treaty” includes “its preamble and
246
annexes”. The NPT, article VIII (3), spells out the important role of the preamble in
clarifying the purposes of the Treaty and the linkage between it and the operative articles
of the Treaty. Article VIII (3) provides that “Five years after the entry into force of this
Treaty, a conference of Parties to the Treaty shall be held … in order to review the
operation of this Treaty with a view to assuring that the purposes of the Preamble and the
provisions of the Treaty are being realized.”
147. The preamble to the NPT is lengthy and sets out in its first paragraph the context for its
adoption:
“Considering the devastation that would be visited upon all mankind by a nuclear
war and the consequent need to make every effort to avert the danger of such a
war and to take measures to safeguard the security of peoples”.
Preambular paragraph 8 declares the parties’ intention “to achieve at the earliest possible
date the cessation of the nuclear arms race and to undertake effective measures in the
direction of nuclear disarmament,” and preambular paragraph 12 identifies the objective
of “the elimination from national arsenals of nuclear weapons and the means of their
delivery”. Thus the function of the NPT is to protect the planet and all of humanity by
providing a legal framework designed to avoid a nuclear war; with the over-arching
purpose of the establishment of a more secure world free from nuclear weapons. 247 The
measures set out in the Treaty are directed towards this end and centrally concern the
non-proliferation and disarmament of nuclear weapons.
244Whaling in the Antarctic (Australia v. Japan: New Zealand intervening) Judgment, I.C.J. Reports
2014, p. 1, para. 55.
245
246See paras. 114 – 122 of this Memorial.
247There are no Annexes to the NPT.
Supra, n. 241.This is affirmed by the UN Security Council which resolved “to seek a safer world for
all and to create the conditions for a world without nuclear weapons, in accordance with the goals of the
Treaty on the
Non-Proliferation of Nuclear Weapons (NPT), in a way that promotes international stability, and based on
the principle of undiminished security for all.”
67!
!148. The Vienna Convention on the Law of Treaties, Article 32 allows for recourse to
“supplementary means of interpretation, including the preparatory work of the treaty and
the circumstances of its conclusion, in order to confirm the meaning resulting from the
application of article 31”. Accordingly, in interpreting the UK’s obligations under Article
VI of the NPT, the RMI makes reference to the negotiating history to provide
confirmation of the meaning of the text.
149. The Vienna Convention on the Law of Treaties Article 31 (3) provides that any
subsequent agreement between the parties, or subsequent practice “which establishes the
agreement of the parties regarding its interpretation” may be taken into account in
interpretation. The RMI makes reference to the successive Review Conferences that have
taken place between States Parties in accordance with the NPT, Article VIII (2). The
objective of a Review Conference is to determine whether the purposes of the Treaty (as
expressed in the preamble) and its provisions are being complied with. The Decision on
Strengthening the Review Process adopted at the 1995 Review and Extension Conference
provided also:
“Review Conferences should look forward as well as back. They should evaluate
the results of the period they are reviewing, including the implementation of
undertakings of the States parties under the Treaty, and identify the areas in
which, and the means through which, further progress should be sought in the
future.”248
150. The 2000 and 2010 Review Conferences were collaborative efforts to assess achievement
of Treaty’s objectives and to map further action to meet those objectives. Final
Documents adopted at the Review Conferences represent the participating States Parties’
understanding, at a particular point in time, of what is reasonable and practicable, for
instance the thirteen steps agreed at the 2000 Review Conference as “practical steps for
the systematic and progressive efforts” for the implementation of Article VI of the NPT.
Commitments made at the Review Conferences do not relieve States Parties of their legal
obligations under Article VI. The RMI also notes that as explained above, 249the UK
250
accepted in 1968 that Article VI imposed a “firm commitment” (Annex 78); any
weakening of its position at Review Conferences cannot detract from its continuing
Treaty obligation.
248
1995 Review Conference of the Parties to the Treat y on the Non-Proliferation of Nuclear Weapons,
http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N95/178/16/PDF/N9517816.pdf?… [accessed
on 10 March 2015].
24See paragraph 118 of the Memorial.
250“One of the important aspects of the Treaty is the firm commitment to further measures of nuclear
disarmament.” Mr Frederick Mulley, Minister for Disarmament, HC Deb, 27 November 1968, vol. 774,
cc501-5501.
68!
!151. The RMI considers that such Final Documents, which are adopted by consensus,
substantiate, support and reinforce the ordinary meaning of Article VI. In this sense they
carry “considerable weight in the interpretation of the Convention”. 251
152. This is supported by the language of the Final Documents, for instance by the
“unequivocal undertaking by the nuclear-weapon states to accomplish the total
elimination of their nuclear arsenals leading to nuclear disarmament to which all States
252
Parties are committed under Article VI.” This is a collective confirmation by NPT
States Parties that the obligation of Article VI is indeed to accomplish the elimination of
nuclear weapons, and furthermore that it need not be accomplished through a Treaty on
general and complete disarmament or in the context of general and complete
disarmament.
153. Other language that supports the RMI’s position that the Final Documents of the Review
Conferences reinforce the meaning of Article VI is that of “reaffirmation”, as in the one
adopted at the 2010 Review Conference:
“79. The Conference notes the reaffirmation by the nuclear-weapon States of their
unequivocal undertaking to accomplish, in accordance with the principle of
irreversibility, the total elimination of their nuclear arsenals leading to nuclear
disarmament, to which all States parties are committed under article VI of the
Treaty.” 253
154. This Court too accorded weight to the documentation of the NPT Review Conference
process when it noted that the 1995 Review Conference had reaffirmed the importance of
fulfilling the obligation of the NPT, Article VI in its determination that the obligation
“remains without any doubt an objective of vital importance to the whole of the
international community today.” 254
251T. Aust, Modern Treaty Law and Practice, (Cambridge University Press, 3 rded 2013) 212 -6; see also
the opinion that documents adopted at the review conferences have “juridical significance ‘ as a source of
authoritative interpretation of the treaty. ’ B. Carnahan, “Treaty Review Conferences”, American Journal
of International Law, Vol. 81 (1987) 226, 229.
2522000 Review Conference of the Parties to the Treaty on the Non -Proliferation of Nuclear Weapons
(Thirteen Steps), Step 6, http://www.un.org/disarmament/WMD/Nuclear/2000 -NPT/pdf/FD-
253t1and2.pdf [accessed on 10 March 2015].
2010 Review Conference of the Parties to the Treaty on the Non -Proliferation of Nuclear Weapons ,
Article VI and eighth to twelfth preambular paragraphs, para. 79,
http://www.un.org/ga/search/view_doc.asp?symbol=NPT/CONF.2010/50%20%28V… [accessed
on 1 March 2015].
254Supra, n. 3, at para. 103.
69!
!155. The RMI also submits that the resolutions of the General Assembly discussed above
reinforce and support its interpretation of NPT Article VI.
The three components of Article VI
(i) Effective Measures Relating to Cessation of the Nuclear Arms Race at an Early Date
156. The NPT preamble underlines that cessation of the nuclear arms race is to be
accomplished, soon. In it, the States concluding the Treaty declare “their intention to
achieve at the earliest possible date the cessation of the nuclear arms race.” This is
repeated in Article VI: “at an early date”.
157. As a matter of ordinary meaning, the term “nuclear arms race” has both qualitative and
quantitative elements. The NPT negotiating history confirms this. In negotiating the NPT,
States understood cessation of the nuclear arms race at an early date as ending the
quantitative build-up and qualitative improvement of nuclear arsenals prior to
255
negotiations on their elimination.
158. The principal means of cessation were understood as a ban on nuclear testing, addressed
to the qualitative arms race, and a ban on production of fissile materials for nuclear
weapons, and strategic nuclear ar256limitation agreements, capping build-ups, between
the U.S. and the Soviet Union, addressed to quantitative aspects.
159. At the 1995 Review and Extension Conference, the bans on testing and production of
fissile materials were still on the table. The Principles and Objectives for Nuclear Non-
Proliferation and Disarmament adopted by the Conference in connection with the
decision to extend the Treaty indefinitely set out a programme of action including the
completion of negotiations on the CTBT no later than 1996, and the “immediate
commencement and early conclusion” of a convention banning the production of fissile
material for nuclear weapons.
160. Negotiations on the latter convention, a Fissile Material Cut-off Treaty, have yet to be
commenced. As now conceived it would prevent quantitative arms racing only by non-
NPT nuclear-armed states and possibly China. 257The CTBT was adopted in 1996, but has
255Supra, n. 163, vol. 2, pp. 572 –580, 583–585.
256Ibid., Cessation of manufacture of nuclear weapons was also considered by some States as a step to be
257en early, prior to the final elimination of nuclear arsen als.
Four of the NPT nuclear -weapon States (UK, France, Russia, U.S.) have built up very large stocks of
weapons-grade fissile materials and are no longer producing such materials; this is probably also true of
China. See International Panel on Fissile Materials, Global Fissile Material Report 2013 , p. 3,
http://ipfmlibrary.org/gfmr13.pdf [accessed on 12 March 2015] (Annex 79). A verified ban on
production of fissile materials for nuclear weapons, as a st and-alone Treaty or as part of a comprehensive
convention on nuclear disarmament, would be an essential element of the architecture of a nuclear
weapons-free world, and may also help build the trust needed for reduction and elimination of nuclear
70!
! 258
yet to enter into force. It is a measure that impedes the nuclear arms race. As a
preambular recital “recogniz[es]”, an end to nuclear explosions will “constrain […] the
development and qualitative improvement of nuclear weapons.” However, a halt to
testing does not comprehensively prevent modernization adding to military capabilities.
Among other things, it does not affect improvements in missile capability and accuracy
of warhead delivery.
161. Non-nuclear weapon States maintained shortly after the NPT was signed, 259and have
continued to maintain, that measures in addition to the CTBT are needed to prevent
qualitative development of nuclear warheads and delivery systems. The Final Document
of the 2010 NPT Review Conference “recognizes” the “legitimate interest” of non-
nuclear weapon States in “constraining” the development of nuclear weapons. 260 At the
2013 preparatory meeting for the 2015 review, the Indonesian delegate, speaking on
behalf of Non-Aligned Movement NPT States Parties, stated that:
“In order to comply with their obligations under Article VI of the Treaty, as well
as with their commitments under the 13 practical steps and 2010 Action Plan on
nuclear disarmament, the NWS must immediately cease their plans to further
invest in modernizing, upgrading, refurbishing, or extending the lives of their
nuclear weapons and related facilities.” (Annex 80) 261
162. The commitment to a “diminishing role of nuclear weapons in security policies to
minimize the risk that these weapons ever be used and to facilitate the process of their
total elimination” 262 adopted at the 2000 Review Conference also bears upon the
qualitative aspect of cessation of the nuclear arms race. Improvements in military
capabilities of nuclear forces imply an expanding, not diminishing, role of nuclear
weapons – operational, if not doctrinal – in security policies.
arsenals. But, it is no longer crucial to preventing arms racing among the NPT nuclear -weapon States.
Contrary to the intention when the NPT was negotiated, that race with respect to production of fissile
materials has occurred.
258The UK ratified the CTBT on 6 Apri l 1998.
259An agenda proposed in 1968 after the NPT was signed by non -nuclear-weapons States for the
Eighteen-Nation Committee on Nuclear Disarmament lists as its first item: “the prevention of the further
development and improvement of nuclear weapons and their delivery systems”. Final Document of the
Conference of Non-Nuclear-Weapon States (A/CONF.35/10, 1 Oct. 1968), Resolution C, p. 8), cited in
supra n. 163, Vol. 2, p. 579.
260Supra, n. 253.
261Statement by H.E. Mr. Edi Yusup, Ambassador and Deputy Perman ent Representative of the Republic
of Indonesia in Geneva, on behalf of the Group of Member States of the Non -Aligned Movement Parties
to the [NPT], Cluster 1 Specific Issues, Nuclear disarmament and security assurance, 25 April 2013,
Geneva, pp. 1-2, http://www.reachingcriticalwill.org/images/documents/Disarmament -
fora/npt/prepcom13/statements/25April_NAM.pdf.
262Supra, n. 252.
71!
! (ii) Effective Measures Relating to Nuclear Disarmament
163. The second distinct component of Article VI is the negotiation of “effective measures
relating … to nuclear disarmament”. The NPT negotiating history, and the establishment
of an agenda for the ENDC shortly after the NPT was signed, 263demonstrate that
“effective measures” refers to both the reduction and the elimination of nuclear arsenals.
164. The 1995 Principles and Objectives likewise are consistent with understanding “effective
measures” as concerning both the reduction and elimination of nuclear arsenals. In its
paragraph 3, “the nuclear-weapon States reaffirm their commitment, as stated in article
VI, to pursue in good faith negotiations on effective measures related to nuclear
disarmament.” The next paragraph specifies “measures” whose “achievement … is
important in the full realization and effective implementation of Article VI,” including
“(c) The determined pursuit by the nuclear-weapon States of systematic and progressive
efforts to reduce nuclear weapons globally, with the ultimate goals of eliminating those
weapons …”
165. The Practical Steps agreed at the 2000 NPT reinforce and strengthen the obligation under
Article VI and the Principles and Objectives in this regard. The Practical Steps include:
“6. An unequivocal undertaking by the nuclear-weapon States to accomplish the
total elimination of their nuclear arsenals leading to nuclear disarmament, to
which all States parties are committed under article VI.”
(iii) A Treaty on General and Complete Disarmament
166. Thirdly, Article VI requires the pursuit of “negotiations in good faith … on a treaty on
general and complete disarmament under strict and effective international control.” The
preamble refers to “elimination from national arsenals of nuclear weapons and the means
of their delivery pursuant to a Treaty on general and complete disarmament under strict
and effective international control.”
167. When the NPT was negotiated, such a Treaty was understood, as set out in General
Assembly resolution 808(A) of 4 November 1954, as providing for the prohibition and
elimination of nuclear weapons and other weapons of mass destruction, the limitation and
reduction of armed forces and conventional armaments, and the establishment of
effective international control through an organ. Subsequent to entry into force of the
NPT, the practice of States has been to negotiate separate conventions on prohibition and
elimination of weapons of mass destruction, with the 1972 Biological Weapons
Convention and the 1993 Chemical Weapons Convention. The Court took note of this
263See paras. 114 – 122 of the Memorial.
72!
! practice, stating that “The pattern until now has been for weapons of mass destruction to
264
be declared illegal by specific instruments.” The practice of States has also been to
negotiate separate treaties on other types of weapons, such as anti-personnel landmines
and cluster munitions. All of these matters are considered by the General Assembly under
the rubric of “general and complete disarmament.”
168. In light of this history, a comprehensive convention on nuclear disarmament (or
instruments to the same end) would, like the conventions on chemical weapons and
biological weapons, partially fulfil the general and complete disarmament prong of
Article VI. It could be considered a Treaty on general and complete nuclear disarmament
to accompany the treaties on general and complete disarmament of biological and
chemical weapons. The Review Conference Final Documents in 1995, 2000, and 2010
accord with this view. The 1995 Principles and Objectives distinguish between the “goal
of eliminating [nuclear] weapons,” whose “determined pursuit” is a responsibility of the
nuclear-weapon States, and “general and complete disarmament” to be pursued by all
265
States. Similarly, in the 2000 Practical Steps, step 6, “An unequivocal undertaking by
the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals
….”, is set out separately from step 11, “Reaffirmation that the ultimate objective of the
efforts of States in the disarmament process is general and complete disarmament under
effective international control.”
169. The practice of States parties and the agreements reached in the Final Documents adopted
by NPT Review Conferences demonstrate that the third component of Article VI cannot
be interpreted as requiring that nuclear disarmament is to be implemented through one
Treaty covering other weapons and armed forces generally. Rather a nuclear disarmament
convention (or similar instrument or instruments), like the conventions on biological and
chemical weapons, would be a contribution to the objective of general and complete
disarmament.
The Content of the Obligation in Article VI as a Whole
170. The RMI submits that Article VI must be understood in the context of the NPT, not
solely as a contract between States Parties but as a regime founded upon the three pillars
of non-proliferation of nuclear weapons, peaceful use of nuclear energy and nuclear
disarmament. 266
264
Supra, n. 3, para. 57.
265Supra, n. 186, para. 4(c).
266In its Final Document, supra, n. 184, Annex I, Final Declaration, p. 1, the 1985 Review Conference
identified the three objectives of the NPT as “ the prevention of proliferation of nuclear weapons …; the
cessation of the nuclear arms race, nuclear disarmament and a Treaty on general and complete
disarmament; and the promotion of co -operation between States Parties in the field of the peaceful uses of
nuclear energy.” The Principles and Objectives for Nuclear Non -Proliferation and Disarmament adopted
73!
!171. At its core is the key objective of Article VI: complete nuclear disarmament. The NPT is
a powerful legal regime in that it provides specific obligations and non-nuclear weapon
States have sacrificed the right to nuclear armament in the expectation of compliance
with Article VI by the nuclear weapon states. All of its Articles are equally essential to
the effective operation of this regime, 267which cannot operate effectively unless all States
Parties act in conformity with all its provisions. Failure to do so weakens the
effectiveness of the regime to the detriment of all.
172. The objective of complete nuclear disarmament is affirmed by the preamble and
negotiating history of the NPT, as supported and reinforced by subsequent Final
Documents and United Nations resolutions. Cessation of the nuclear arms race is an
objective, whose early achievement is to facilitate the reduction and elimination of
nuclear arsenals. Complete nuclear disarmament can be considered both an “effective
measure” under the second component of Article VI, and as partial fulfilment of the
objective of general and complete disarmament of the third prong.
173. The Court’s formulation of the nuclear disarmament obligation is in harmony with this
interpretation of Article VI. The Court unanimously concluded:
“There exists an obligation to pursue in good faith and bring to a conclusion
negotiations on nuclear disarmament in all its aspects under strict and effective
international control.”
The obligation so stated encompasses both the second component of Article VI referring
to nuclear disarmament and the third component referring to disarmament “under strict
and effective international control”. As a subsidiary obligation, cessation of the nuclear
arms race is an “aspect” of nuclear disarmament.
174. Regarding the Court’s inclusion of an obligation of result, to “bring to a conclusion
negotiations on nuclear disarmament in all its aspects,” it is supported by the action-
oriented language in the preamble: “to achieve cessation of the nuclear arms race,” “to
at the NPT Review and Extension Confer ence, supra, n. 186, refer in the third preambular paragraph to “a
set of principles and objectives in accordance with which nuclear non -proliferation, nuclear disarmament
and international cooperation in the peaceful uses of nuclear energy should be vigor ously pursued.” See
also UNSC Resolution. 1887, 24 September 2009: “Underlining that the NPT remains the cornerstone of
the nuclear non-proliferation regime and the essential foundation for the pursuit of nuclear disarmament
267 for the peaceful uses of nu clear energy, …”.
Supra, n. 244, diss op Judge Owada, para. 11, “It is therefore of cardinal importance that the Court
understands this object and purpose of the Convention in its proper perspective, which defines the
essential characteristics of the rég ime established under the [Whaling] Convention”.
74!
! 268
undertake effective measures” of nuclear disarmament. It is also supported by the
preamble’s identification of results, which leaves no doubt whatever that the objective is
complete nuclear disarmament: “the cessation of the manufacture of nuclear weapons, the
liquidation of all their existing stockpiles, and the elimination from national arsenals of
nuclear weapons and the means of their delivery”.
The obligation to pursue negotiations in good faith
Introduction
175. The obligation to pursue negotiations in good faith is spelled out both in the NPT, Article
VI and by the ICJ in its Advisory Opinion on the Legality of the Threat or Use of Nuclear
269
Weapons. The obligation of good faith has long been integral to the law of treaties,
from their conclusion through to their execution. 270 Specifically under the Vienna
Convention on the Law of Treaties, 1969, Article 26 requires the performance of treaties
in good faith 271and, as discussed above, Article 31 requires that treaties be interpreted in
272
good faith. The obligation under Article 26 applies to all provisions of the NPT and
accordingly to Article VI, and in addition Article VI itself requires negotiations to be
pursued in good faith.
The obligation to pursue negotiations
176. The essence of negotiations is communication and discussion:
“Negotiations are discussions held with a view to reaching a mutually acceptable
settlement of some matter in issue between two (or more) states.” 273
The RMI refers to the Court’s recognition that negotiations are “distinct from mere
protests or disputations.” They require “at the very least — a genuine attempt by one of
the disputing parties to engage in discussions with the other disputing party, with a view
268Emphasis added.
269O. Connor, Good Faith in International Law (Dartmouth, 1991).
270
E Zoller, La Bonne Foi en Droit International Public (Pedone 1977) p. 48 (conclusion); p. 78
(exécution).
271Supra, n. 1 Article 26: “Every treaty in force is binding upon the parties to it and must be performed by
them in good faith.”
272Ibid., Article 31 (1): “A treaty shall be interpreted in good faith in accordance with the ordinary
273ning to be given to the terms of the treaty in their context and in the light of its object and purposeth
Sir R. Jennings and Sir A. Watts (eds), Oppenheim’s International Law (Oxford University Press, 9
ed. 1992) p.1182, para. 573.
75!
! 274
to resolving the dispute.” Whether negotiations have taken place is a matter of fact “for
consideration in each case.” 275
177. The RMI accepts that in the case of the Application of the International Convention on
the Elimination of All Forms of Racial Discrimination the Court spelled out its
understanding of what constitutes negotiations in a dispute resolution context –
interpretations of the requirements of the compromissory clause contained in Article 22
of the Convention on the Elimination of All Forms of Racial Discrimination as a pre-
condition for the jurisdiction of the Court. The present case concerns negotiations
towards a specified goal, in accordance with a prior agreement, the NPT. However, the
RMI recalls that the Court has held that the “meaning of negotiations for the purposes of
dispute settlement, or the obligation to negotiate has been clarified” through its own
276
jurisprudence and that of the PCIJ and arbitral bodies. The RMI therefore submits that
the Court’s ruling that “negotiations must relate to the subject-matter of the treaty” is
equally relevant to the present context: States parties to the NPT must actively “pursue
negotiations” that “concern the substantive obligations contained in the treaty in
question”, 277 cessation of the arms race and nuclear disarmament.
In good faith
178. This Court will read into a Treaty an obligation on the parties to negotiate in good faith
even when it contains no express requirement to that effect. 278 The NPT, Article VI
explicitly spells out this obligation: to pursue negotiations in good faith. Under Article
VI, every State Party is under the same obligation to pursue in good faith negotiations
leading to nuclear disarmament; the obligation thus lies on all States Parties to the NPT.
It applies to the UK, as it applies to each and every other State Party, irrespective of the
attitudes of the other States in respect to the same obligation. In other words, the fact that
other States may have breached the obligation to negotiate does not and cannot exclude
the possibility for the Court to assess independently whether the UK is complying with
the same obligation.
179. The RMI submits that a Treaty requirement to negotiate in good faith is “perfectly in
keeping with the requirements of international law on the subject, since the mechanism
for co-operation between States is governed by the principle of good faith.” 279In Pulp
Mills this Court recalled that: “One of the basic principles governing the creation and
274Supra, n. 133, para. 157.
275
276Ibid., at para. 160.
Application of the Interim Accord of 13 September 1995 (the former Yugoslav Republic of Macedonia
v. Greece), Judgment of 5 December 2011, I.C.J. Reports 2011 , p. 644, para. 132.
277Supra, n. 133 para. 161.
278Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 268, para 145.
279Supra, n. 287, para 145.
76!
! performance of legal obligations, whatever their source, is the principle of good faith.
Trust and confidence are inherent in international co-operation, in particular in an age
when this co-operation in many fields is becoming increasingly essential.” 280
180. There can be few more important areas in international relations where co-operation, trust
281
and confidence are essential than in nuclear issues. The non-nuclear states entered into
the NPT in the trust that all States parties would meet the promise of Article VI. The
indefinite extension of the NPT in 1995 was agreed in the same expectation of fulfilment
of the obligations undertaken under the Treaty.
181. Ruzicka and Wheeler argue that “[t]he basic bargain of the NPT thus represents a trusting
relationship. There would have been little incentive for those who signed the Treaty to do
so if they thought they could not trust the other parties…. all states that are party to the
NPT, irrespective of their nuclear status, enter into a trusting relationship with each other.
The difference is in the degree of vulnerability to which the two groups of states are
282
exposed as a result of exhibiting trust.” (Annex 81). Negotiations in good faith on
effective measures for nuclear disarmament in accordance with Article VI are the means
whereby that trust is to be vindicated.
182. The principle of good faith is unarguably a “fundamental principle of international
law.” 283 It is normative 284and a general principle of law under the Statute of the ICJ,
285
Article 38 (1) (c) “of overriding importance”. It encapsulates the essence of the rule of
286
law in international society; even “[i]n many respects, [constituting] the postulate on
280
Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment, I.C.J. Reports 2010 , p. 14, para
145; Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974 , p. 268, para. 46; Nuclear Tests
(New Zealand v. France), Judgment, I.C.J. Reports 1974 , p. 473, para. 49.
281Supra, n. 2, preamble, 11 preambular paragraph: “Desiring to further the easing of international
tension and the strengthening of trust between States in order t o facilitate the cessation of the manufacture
of nuclear weapons, the liquidation of all their existing stockpiles, and the elimination from national
arsenals of nuclear weapons and the means of their delivery pursuant to a Treaty on general and complete
disarmament under strict and effective international control,…”.
282
J. Ruzicka and N.J. Wheeler, “The Puzzle of Trusting Relationships in the Nuclear Non -Proliferation
Treaty”, International Affairs, Vol. 86(1) (2010) p. 69.
283R. Kolb, “La bonne foi en droit international public: contribution à l’étude des principes généraux du
droit”, (Presses Universitaires de France, 2001) pp. 112-113.
284
Good faith is a topic which “on the one hand is not open to serious question, yet on the other hand is
imprecise and even fluid, defying formal definition … Yet it is a rule of law, and has been so stated not
only by the International Court of Justice itself, but also by major international plenipotentiary
conferences and by the International Law Commission, throughout th e twentieth century.” A.M. Stuyt,
285od and Bad Faith”, Netherlands International Law Review , Vol. 83 (1981) p. 54.
Supra, n. 273, p 38; Supra, n. 276, para 28, per Diss. Op. Judge ad hoc Roucounas.
286V. Lowe, International Law (Oxford University Press, 2007), p. 116.
! 77! 287
which this order rests in its entirety.” It is a foundational principle of the United
Nations Organization. The UN Charter, Article 2 requires that “All Members, in order to
ensure to all of them the rights and benefits resulting from membership, shall fulfil in
good faith the obligations assumed by them in accordance with the present Charter.” The
UN General Assembly has affirmed the Charter obligations and also affirmed that States
have the duty to fulfil in good faith their obligations under international agreements valid
under “generally recognized principles and rules of international law”, 288which is
indisputably the case of the NPT. It is thus a legal requirement underpinning the carrying
out of an existing obligation.
183. The issue is therefore to determine the meaning of the obligation to negotiate in good
faith. This Court and its predecessor, the PCIJ, have on many occasions stated that good
faith with respect to negotiations requires States “not only to enter into negotiations, but
289
also to pursue them as far as possible, with a view to concluding agreements”. Further,
the Court has emphasized that after engaging in discussions (entering into negotiations)
for the ensuing negotiations to be understood as being undertaken in good faith, they
must be “meaningful”, 290 that is the discussions must comprise more than merely going
291
through a formal process. “To be meaningful, negotiations have to be entered into with
a view to arriving at an agreement.” 292
184. A number of elements are identified that constitute “meaningful negotiations” pursued in
good faith:
• The duty to pursue negotiations in good faith requires first entering into negotiations:
“Nor should we overlook the psychological value of the opening of negotiations …
the opening of negotiations is often a decisive step toward the conclusion of an
293
agreement.” It thus “requires — at the very least — a genuine attempt by one of the
287M. Virally, “Good Faith in Public International Law”, American Journal of International Law , Vol. 11
(1983) p. 130, 132.
288UNGA Resolution 2625 (XXV), 24 October 1970, Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the Charter of the
United Nations.
289Railway Traffic between Lithuania and Poland , Advisory Opinion, 1931, P.C.I.J., Series A/B, No. 42 ,
p. 116; Supra, n. 273, para 132.
290
291Supra, n. 280, para 146.
North Sea Continental Shelf (Federal Republic of Germany/Denmark; Federal Republic of
Germany/Netherlands), Judgment, I.C.J. Reports 1969 , p. 47, para. 85; “Consultations and negotiations
between the two States must be genuine, must comply with the rule s of good faith and must not be mere
formalities.” Lac Lanoux Arbitration (France v. Spain) (1957) 12 R.I.A.A. 281; 24 I.L.R. 101 16
292ember, 1957 p. 16.
Claims arising out of Decisions of the Mixed Graeco -German Arbitral Tribunal Set Up under Article
304 in Part X of the Treaty of Versailles (Greece v. Germany) 19 R.I.A.A (1972) para. 65.
293Supra, n. 136, para. 188, Dissenting Opinion Judge De Visscher.
78!
! disputing parties to engage in discussions with the other disputing party, with a view
to resolving the dispute.” 294
• Once negotiations have been entered into, this Court has explained further that good
faith is not satisfied where States parties “obstruct negotiations, for example, by
interrupting communications or causing delays in an unjustified manner or
disregarding the procedures agreed upon.” 295The Arbitral Tribunal in Lake Lanoux,
also ruled that good faith would be violated by an “unjustified breaking off of the
discussions, abnormal delay, disregard of the agreed procedures, [and] systematic
296
refusals to take into consideration adverse proposals”. The RMI submits that the
notion of undue or abnormal delay applies both to such delay in commencing
negotiations, and in sustaining them.
• This Court has emphasized a further condition that must be satisfied for negotiations
to be meaningful: “Negotiations with a view to reaching an agreement also imply that
297
the parties should pay reasonable regard to the interests of the other.” Thus
negotiations are not “meaningful”, for example, where either of the parties refuses to
compromise and “insists upon its own position without contemplating any
modification of it”. 298A party cannot simply ignore the interests of the other party,
nor impose its own view as to how this might be achieved. Such behaviour is against
the essence of negotiation. In similar language the Aminoil Arbitration explained “the
general principles that ought to be observed in carrying out an obligation to negotiate,
- that is to say, good faith as properly to be understood; sustained upkeep of the
negotiations over a period appropriate to the circumstances; awareness of the interests
299
of the other party; and a persevering quest for an acceptable compromise.”
• States subject to an obligation of negotiation “are not allowed … to accomplish acts
which defeat the object and purpose of the future treaty.” (Annex 82). 300 In general,
the principle of “[g]ood faith forbids contracting parties to behave in any way that is
294Supra, n. 133, para 157.
295
Supra, n. 276; Fisheries Jurisdiction (United Kingdom v. Iceland), Merits, Judgment, I.C.J. Reports
1974, p. 33, para. 78.
296Supra, n. 291, Lac Lanoux p. 23.
297Supra, n. 276, para 132.
298
299Supra, n. 291, North Sea Continental Shelf para. 85; see also supra, n. 280, Pulp Mills para. 146.
Arbitration between Kuwait and Ame rican independent Oil Company (AMINOIL), 24 March 1982 21
ILM 976, para 70. The arbitrators were Professor Paul Reuter (President), Professor Hamed Sultan and
Sir Gerald Fitzmaurice, Q.C.
300A. Cassese, The Israel-PLO Agreement and Self -Determination, European Journal of International
Law Vol. 567(4) (1993), http://www.ejil.org/pdfs/4/1/1219.pdf. Cf. Hisashi Owada, “Pactum de
contrahendo, pactum de negotiando,” Max Planck Encyclopedia of Public International Law (article last
updated April 2008), para. 34, citing General Assembly resolution A/RES/53/101, 8 December 1998,
“Principles and guidelines for international negotiations.”
79!
! intended to frustrate the meaning and purpose of a treaty.” 301 This Court has asserted
that “it is the purpose of the Treaty, and the intentions of the parties in concluding it,
which should prevail over its literal application. The principle of good faith obliges
the Parties to apply it in a reasonable way and in such a manner that its purpose can
be realized.’ 302Importantly the obligation of good faith does not require “actual
damage. Instead its violation may be demonstrated by acts and failures to act which,
taken together render the fulfilment of specific treaty obligations remote or
303
impossible.” Accordingly the UK must not by its acts or omissions frustrate the
purpose of the NPT, including the purpose of Article VI as core to the strategic
bargain.
An obligation of result not merely of conduct
185. The ICJ, following its predecessor, has noted in general that the requirement of
meaningful negotiations does not mean that there is “an obligation to reach an
304
agreement.” The fact that there is no satisfactory outcome does not of itself mean that
the obligation to negotiate in good faith was violated. As previously noted, however, in
its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons the ICJ
asserted that in the context of NPT, Article VI there “is an obligation to achieve a precise
result - nuclear disarmament in all its aspects - by adopting a particular course of conduct,
namely, the pursuit of negotiations on the matter in good faith.” 305 There is thus a two-
fold obligation on each of the States parties to the Treaty: both conduct (negotiation in
good faith) and result (“nuclear disarmament in all its aspects”). 306
186. In the dispositif the Court unanimously continued this approach, concluding that “[t] here
exists an obligation to pursue in good faith and bring to a conclusion negotiations leading
307
to nuclear disarmament in all its aspects under strict and effective control.” This
holding “recognizes that the provisions of Article VI…go beyond mere obligations of
conduct - to pursue nuclear disarmament negotiations in good faith - and actually involve
an obligation of result, i.e., to conclude those negotiations.” 308
301Muller, “Article 2 (2)” in Bruno Simma et al The Charter of the United Nations A Commentary,
(Oxford University Press, 3 rded. 2012).
302
Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgment, I.C.J. Reports 1997, p. 7
para. 142.
303G.G. Gill, “State Responsibility and the ‘Good Faith’ Obligation in International Law”, in M.
Fitzmaurice and D. Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions
304ifford Chance Series Volume VII, 2004) p. 75 at 84.
Supra, n. 289, p. 116; see also supra, n. 280, Pulp Mills, para. 150.
305Supra, n. 3, para. 99.
306Ibid.
307Supra, n. 3, para. 105 (2)(F).
308
M.M. Bosch, The Non-Proliferation Treaty and its Future’, in L. Boisson de Chazournes and P. Sands,
eds, International Law, the International Court of Justice and Nuclear Weapons, (Cambridge University
Press, 1999), p. 375.
! 80!187. The fact that the Court has differentiated between obligations of conduct and of result in
other decisions makes it clear that this is a well-considered statement. For instance, in the
Genocide case it expressly stated the obligation under the Genocide Convention to be one
of conduct:
“the obligation in question is one of conduct and not one of result, in the sense
that a State cannot be under an obligation to succeed, whatever the circumstances,
in preventing the commission of genocide: the obligation of States parties is rather
to employ all means reasonably available to them, so as to prevent genocide so far
as possible. 309
188. The Court’s holding on Article VI was essential to the Advisory Opinion as a whole. The
Court introduced the part of its Advisory Opinion relating to Article VI by presenting it
squarely as a “part of the question before it”. It placed it in the broader context of the
threat to the stability of the international legal system caused by the diversity of views
about the legality of nuclear weapons and regarded the obligations incurred under Article
310
VI as the appropriate way of putting an end to this situation.
309
Application of the Convention o n the Prevention and Punishment of the Crime of Genocide (Bosnia
and Herzegovina v. Serbia and Montenegro), Merits, Judgment, I.C.J. Reports 2007, p. 43, para. 430 ; see
also Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on
Human Rights, Advisory Opinion, 1999 I.C.J. Reports, p. 62, para. 57 ; See also para. 62: Malaysia
argued that there was an obligation of result, not of conduct; the Court determined the obligation to be
one of conduct.
310
Supra, n. 3, para. 98.
81!
! PART 6
THE E XISTENCE OF AN O BLIGATION UNDER C USTOMARY INTERNATIONAL LAW
TO N EGOTIATE IN G OOD FAITH FOR NUCLEAR D ISARMAMENT
Introduction
189. Since the UK and the RMI are both parties to the NPT, the obligation set forth in Article
VI of the NPT applies to them irrespective of whether that obligation corresponds to
customary international law. However, for the sake of completeness, the RMI asks the
Court to adjudge and declare that the UK has violated and continues to violate 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. As this Court put it in its Judgment in the Military and
Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America) case, the fact that principles of customary and general international law “have
been codified or embodied in multilatera311onventions does not mean that they cease to
exist and to apply as principles of customary law.”
190. The purpose of this Part is to demonstrate the existence under customary international
law of 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. This will be done by focusing, in particular, on three elements:
1) the “norm-creating character” of Article VI of the NPT;
2) the Court’s 1996 Advisory Opinion on the Legality of the Threat or Use of
Nuclear Weapons;
3) UN General Assembly’s and Security Council’s resolutions recognizing that all
States have the obligation to negotiate in good faith to achieve nuclear
disarmament.
The norm-creating character of Article VI
311
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Jurisdiction and Admissibility, Judgment, I.C.J. Reports 1984 , p. 424, para. 73.
82!
!191. In its Judgment in the North Sea Continental Shelf Cases (Federal Republic of Germany
312
v Denmark; Federal Republic of Germany v Netherlands) the International Court of
Justice used the notion of “norm-creating provision” in order to refer to a provision
contained in a multilateral Treaty, “which has constituted the foundation of, or has
generated a rule which, while only conventional or contractual in its origin, has since
passed into the general corpus of international law, and is now accepted as such by the
opinio juris, so as to have become binding even for countries which have never, and do
not, become parties to the Convention”. According to the Court, “[t]here is no doubt that
this process is a perfectly possible one and does from time to time occur”. The Court
identified three requirements: first, “the provision concerned should, at all events
potentially, be of a fundamentally norm-creating character such as could be regarded as
forming the basis of a general rule of law”; secondly, “even without the passage of any
considerable period of time, a very widespread and representative participation in the
convention might suffice of itself, provided it included that of States whose interests were
specially affected”; thirdly, “State practice, including that of States whose interests are
specially affected, should have been both extensive and virtually uniform in the sense of
the provision invoked; - and should moreover have occurred in such a way as to show a
general recognition that a rule of law or legal obligation is involved”.
192. There is no doubt that Article VI can be regarded as forming the basis of a general rule.
By its very content, the obligation to negotiate in good faith for nuclear disarmament is
aimed at protecting a collective interest of the international community as a whole. The
negotiation to which this provision refers is relevant to all States, and not merely the
States parties to the NPT. As the Court put it, “any realistic search for general and
complete disarmament, especially nuclear disarmament, necessitates the co-operation of
313
all States”. This point is made clear by the preamble of the NPT, where it is established
that:
“The States concluding this Treaty, hereinafter referred to as the Parties to the
Treaty,
[…]
Declaring their intention to achieve at the earliest possible date the cessation of
the nuclear arms race and to undertake effective measures in the direction of
nuclear disarmament,
Urging the co-operation of all States in the attainment of this objective,” (italics
added)
312
313Supra, n.291, North Sea, paras 70-71.
Supra, n. 3, para. 100.
83!
!193. Moreover, the norm-creating character of the rule set forth in Article VI is confirmed by
the way in which this provision is formulated. In particular, the obligation to negotiate is
not made subject to other conditions or to the exhaustion of other procedures applicable
in the relation between the parties to the NPT, nor is it subject to any express provision
that allows for derogation by the parties.
194. As for the second requirement, the very widespread and representative participation in
the NPT is a matter of fact. There are 189 States Parties to the NPT. Very few
multilateral treaties have had the same success in terms of number of States parties. Two
examples are the UN Charter and a few international humanitarian law conventions. With
regard to the UN Charter, this Court recognized that customary international law “has in
the subsequent four decades developed under the influence of the Charter, to such an
extent that a number of rules contained in the Charter have acquired a status independent
of it”.14With regard to international humanitarian law conventions, it observed that
“[t]he extensive codification of humanitarian law and the extent of the accession to the
resultant treaties, as well as the fact that the denunciation clauses that existed in the
codification instruments have never been used, have provided the international
community with a corpus of treaty rules the great majority of which had already become
customary and which reflected the most universally recognized humanitarian
principles.”315 The same conclusion applies to the NPT, particularly as far as Article VI is
concerned. With regard to this provision, the general attitude of States, including States
that are not parties to the NPT, appears to be a decisive element. While four nuclear-
armed States – India, Pakistan, Israel, and the Democratic People’s Republic of Korea
(DPRK) – are not parties to the NPT, virtually all States have generally manifested their
commitment to engage in negotiation with a view to nuclear disarmament. This
commitment has been expressed in many ways, including, as it will be shown, by
supporting resolutions of international organizations expressly referring to the obligation
of all States to participate to negotiation with a view to disarmament. The widespread and
representative participation in the NPT, combined with the lack of any opposition by
States not parties to the NPT against the existence of the obligation set forth in Article
VI, are clear indications of the customary nature of that obligation.
195. Finally, there is no need to spend many words on the last requirement. Practice in this
area can be deduced from the countless initiatives, taken at both the universal and the
regional level, aimed at progressing towards the goal of global nuclear disarmament. On
the other hand, the recognition that a rule of law or legal obligation is involved can be
deduced, inter alia, from the widespread support of UN General Assembly and Security
314
315Supra, n. 311, pp. 96-97.
Supra, n. 3, p. 258.
84!
! Council resolutions recognizing the existence of an obligation to negotiate for nuclear
disarmament.
The 1996 Advisory Opinion
196. This Court’s 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear
Weapons constitutes the most authoritative recognition of the customary status of the
obligation“recognized” 316and “expressed 31” in Article VI of the NPT. While the subject-
matter of the question requested to the Court concerned the permissibility under
international law of the threat or use of force, several States referred in their pleadings to
the rule contained in Article VI of the NPT. Support was also expressed to the view that
that provision corresponds to a rule of customary international law. Thus, for instance,
Australia observed that “[a]ll States, including the nuclear weapon States are prohibited
by customary international law from engaging in any action inconsistent with [the
318
commitment to complete nuclear disarmament].”
197. Unanimously, the Court found that “[t]here exists an obligation to pursue in good faith
and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects
319
under strict and effective international control” (Annex 83). While the Court did not
expressly say that the rule contained in Article VI of the NPT has customary status, the
recognition of such status can be inferred from the Court’s reasoning. In particular, the
Court appeared to base such a view mainly on the norm-creating character of Article VI
and on the unanimous adoption of General Assembly resolutions concerning nuclear
disarmament. The Court observed:
“This twofold obligation to pursue and to conclude negotiations formally
concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear
Weapons, or, in other words, the vast majority of the international community.
316Supra, n. 3, para 99
317Ibid., para. 102.
318
I.C.J. Verbatim Record, CR 1995/22 ¶ 56 (Oct. 30, 1995) (public sitting held at 10 a.m. at the Peace
Palace, President Bedjaoui presiding).
319I.C.J. Reports 1996, p. 267. In a recent statement, the UN Secretary -General interpreted the Court’s
conclusion as follows: “No country disputes the desirability of achieving a nuclear -weapon-free world.
After all, this was the very first objective identified by the Unite d Nations General Assembly. The
universal acceptance of this goal led the International Court of Justice to determine that the disarmament
obligation transcends any treaty and is a requirement under customary international law.” UN Secretary -
General, Message to the Vienna Conference on the Humanitarian Impact of Nuclear Weapons, Vienna, 8
December 2014.
http://www.bmeia.gv.at/fileadmin/user_upload/Zentrale/Aussenpolitik/Abr…
essage_from_UN_Secretary_General.pdf .
85!
! Virtually the whole of this community appears moreover to have been involved
when resolutions of the United Nations General Assembly concerning nuclear
disarmament have repeatedly been unanimously adopted.” 320
198. The customary status of the obligation contained in Article VI found confirmation in the
Declaration of the President of the Court, Bedjaoui. As he observed, “it is not
unreasonable to think that, considering the at least formal unanimity in this field, this
twofold obligation to negotiate in good faith and achieve the desired result has now, 50
years on, acquired a customary character”. 321
General Assembly and Security Council resolutions recognizing the existence of an
obligation upon all States to negotiate in good faith for nuclear disarmament
199. As recognized by this Court,
“General Assembly resolutions, even if they are not binding, may sometimes have
normative value. They can, in certain circumstances, provide evidence important
for establishing the existence of a rule or the emergence of an opinio juris. To
establish whether this is true of a given General Assembly resolution, it is
necessary to look at its content and the conditions of its adoption; it is also
necessary to see whether an opinio juris exists as to its normative character. Or a
series of resolutions may show the gradual evolution of the opinio juris required
for the establishment of a new rule.” 322
200. Several General Assembly resolutions contain a reference to the obligation of States to
pursue in good faith negotiations to achieve nuclear disarmament. Since 1997, the
General Assembly has each year adopted a resolution entitled “Follow-up to the advisory
opinion of the International Court of Justice on the legality of the threat or use of nuclear
weapons”. Paragraphs 1 and 2 of this resolution are formulated as follows:
“The General Assembly,
(…)
1. Underlines once again the unanimous conclusion of the International Court of
Justice that there exists an obligation to pursue in good faith and bring to a
320
Supra, n. 3, para. 100. Today this number stands at 189 – supra, n. 181.
321Supra, n. 3, p. 274. Vice-president Schwebel took a mo re cautious position. It must be noted, however,
that he did not rule out the possibility that Article VI reflected a rule of customary international law. He
mainly criticized the Court for not having subjected its conclusion to a “demonstration of authty” or to
a “test of advocacy”. Ibid., p. 329.
322
Ibid., p. 254-255.
86!
! conclusion negotiations leading to nuclear disarmament in all its aspects under
strict and effective international control;
2. Calls once again upon all States to fulfil immediately that obligation by
commencing multilateral negotiations in 1999 leading to an early conclusion of a
nuclear weapons convention prohibiting the development, production, testing,
deployment, stockpiling, transfer, threat or use of nuclear weapons and providing
for their elimination”.323(italics added)
201. The same concept has been reiterated in different form in other resolutions. For instance,
General Assembly resolution 56/24R on “Nuclear disarmament” contains in its preamble
a paragraph having this content:
“Recalling the advisory opinion of the International Court of Justice on the
Legality of the Threat or Use of Nuclear Weapons, issued on 8 July 1996, and
welcoming the unanimous reaffirmation by all Judges of the Court that there
exists an obligation for all States to pursue in good faith and bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and
324
effective international control”. (italics added)
202. By relying on paragraph 2F of the operative part of the Court’s opinion, the General
Assembly has recognized that there is an obligation to negotiate in good faith for nuclear
disarmament and that this obligation is incumbent on all States, and not merely on States
parties to the NPT. In other words, the Assembly recognizes the customary status of this
obligation. The fact that these resolutions receive support from a great number of States,
including from India, Pakistan, and the DPRK, three of the four nuclear-armed States
323
SeeforinstanceA/RES/52/38,adoptedon8January1998,pp.23 -24; A/RES/53/77, adopted on 12
January 1999, p. 35; A/RES/54/54, adopted on 10 January 2000, p. 34; A/RES/55/33, adopted on 12
January 2001, p. 41; A/RES/56/24, adopted on 10 January 2002, p. 32; A/RES/57/85, adopted on 9
January 2003; A/RES/58/46, adopted on 8 January 2004; A/RES/59/83, adopted on 16 December 2004;
A/RES/60/76, adopted on 11 January 2006; A/RES/61/83, adopt ed on 18 December 2006; A/RES/62/39,
adopted on 8 January 2008; A/RES/63/49, adopted on 12 January 2009; A/RES/64/55, adopted on 12
January 2010; A/RES/65/76, adopted on 13 January 2011; A/RES/66/46, adopted on 12 January 2012;
A/RES/67/33, adopted on 4 Ja nuary 2013; A/RES/68/42, adopted on 10 December 2013; A/RES/69/43,
adopted on 11 December 2014..
324A/RES/51/45,adoptedon10January1997,p.27;A/RES/52/38,adoptedon8January1998,p.17;
A/RES/53/77, adopted on 12 January 1999, p. 37; A/RES/54/54, a dopted on 10 January 2000, p. 30;
A/RES/55/33, adopted on 12 January 2001, p. 33; A/RES/56/24, adopted on 10 January 2002, p. 28;
A/RES/57/79, adopted on 8 January 2003; A/RES/58/56, adopted on 17 December 2003; A/RES/59/77,
adopted on 16 December 2004; A/ RES/60/70, adopted on 6 January 2006; A/RES/61/78, adopted on 18
December 2006; A/RES/62/42, adopted on 8 January 2008; A/RES/63/46, adopted on 12 January 2009;
A/RES/64/53, adopted on 12 January 2010; A/RES/65/56, adopted on 13 January 2011; A/RES/66/51,
adopted on 12 January 2012; A/RES/67/60, adopted on 4 January 2013; A/RES/68/47, adopted on 10
December 2013; A/RES/69/48, adopted on 11 December 2014.
87!
! which are not parties to the NPT, is to be underlined. As the Court put it, “[t]he effect of
consent to the text of such resolutions cannot be understood as merely that of a
‘reiteration or elucidation’ of the treaty commitment…. the attitude referred to expresses
an opinio juris respecting such rule (or set of rules), to be thenceforth treated separately
from the provisions, especially those of an institutional kind, to which it is subject on the
treaty-law plane”. 325 Moreover, while there are a number of States abstaining or voting
against these resolutions, the opposition of these States generally is not directed against
the recognition of an obligation to pursue in good faith and conclude negotiations on
326
nuclear disarmament.
203. There are also Security Council resolutions that, by referring to the obligation contained
in Article VI of the NPT, call upon all States to comply with what is required by that
provision. Thus, in Resolution 984 (1995), which is also mentioned in the 1996 Advisory
Opinion, the Security Council urged “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”. 327Resolution 1887 (2009) addressed to both Parties and non-
Parties of the NPT the request to comply with the obligation contained in Article VI. In
particular, it called upon “the Parties to the NPT, 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, and on a Treaty on general and complete disarmament
under strict and effective international control”, and called on “all other States to join in
this endeavour”. 328
204. Finally, reference must be made to the fact that, in the debate leading to the adoption of
resolutions dealing with matters related to nuclear weapons, States have recognized that
the rule contained in Article VI of the NPT corresponds to a customary international rule
and therefore that it imposes an obligation which is incumbent on all States. In particular,
there are cases in which States parties to the NPT expressly request States which are not
325
326Supra, n. 311, p. 100.
This is demonstrated by the votes in the General Assembly in 2006 on “Follow -up to the advisory
opinion of the International Court of Justice on the legality of threat or use of nuclear weapons,”
A/RES/61/83, 6 December 2006. That year, a separate vote was taken on operative paragraph one
welcoming the Court’s conclusion regarding the disarmament obligation. The paragraph was approved by
a vote of 168 to 3 (Israel, Russia, U.S.) with 5 abstentions (Belarus, France, Latvia, Kyrgzstan, UK). In
contrast, the resolution as a whthe was approved by a vote of 118 to 27 with 26 abstentions . See Official
Records, General Assembly, 67 plenary meeting, 6 December 2006, A/61/PV.67, pp. 26 -27,
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/61/PV.67&Lang=E . Japan's explanation of its
abstention in the vote on the resolution as a whole in the First Committee, taken 11 October 2006, is
illustrative. It states that Japan supported the ICJ’s conclusion regarding the disarmament obligation but
differed with other aspects of the resolution. Explanation of Vote by Japan,
http://reachingcriticalwill.org/images/documents/Disarmament -fora/1com/1com06/EOV/L.44japan.pdf.
327UNSC Resolution S/RES/984 (1995), para. 8 of the operative part. (italics added).
328UNSC Resolution S/RES/1887 (2009), para. 5 of the operative part. (italics added).
88!
! parties to abide by this obligation. Thus, in the debate leading to the adoption of
resolution 1172 (1998), in which the Security Council condemned nuclear tests
conducted by India and by Pakistan, several States asked Pakistan and India to comply
with the obligation contained in Article VI. Such claims are based on the assumption that
this provision has customary status. For instance, the delegate of New Zealand in the
Security Council made the following statement:
“The International Court of Justice has confirmed, in a unanimous decision, the
obligation to pursue in good faith and bring to a conclusion negotiations leading
to nuclear disarmament in all its aspects and under strict and effective
international control. That obligation applies just as much to India and Pakistan as
329
it does to other States.
Similarly, according to the delegate of Mexico,
“The commitment of all States to nuclear disarmament does not stem solely from
the provisions of the Non-Proliferation Treaty. In fact, the historic advisory
opinion of the International Court of Justice, of 8 July 1996, establishes
unambiguously the obligation to pursue in good faith and to bring to a conclusion
negotiations leading to nuclear disarmament in all its aspects under strict and
330
effective international control”.
205. These declarations, formulated as it were in clear legal terms and related to a specific
conduct of two States which are not parties to the NPT, provide important evidence of the
opinio juris of States as to the customary nature of the obligation contained in Article VI.
Significantly, the delegate of Pakistan did not oppose these statements. 331
206. Taking into account all these elements, it must be concluded, as this Court did in 1996,
that there exists under customary international law “an obligation to pursue in good faith
and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects
332
under strict and effective international control”.
329S/PV. 3890, p. 23.
330Ibid., p. 24.
331Ibid., pp. 28-32. India did not request an invitation to participate in the discussion.
332
Supra, n. 3, p. 267.
89!
! P ART 7
UK B REACHES OF O BLIGATIONS C ONCERNING N EGOTIATIONS R ELATING TO
C ESSATION OF THE N UCLEAR ARMS R ACE AND TO N UCLEAR D ISARMAMENT
Introduction
207. The International Law Commission’s Articles on Responsibility of States for
Internationally Wrongful Acts, Article 12, states:
”There is a breach of an international obligation by a State when an act of that
State is not in conformity with what is required of it by that obligation, regardless
of its origin or character.”
The ILC’s Commentary to Article 2 of the Articles explains that “breach of an
international obligation of the State is used … to cover both treaty and non-treaty
333
obligations.”
208. The RMI asserts that the UK is not acting in conformity with its obligations under Article
334
VI of the NPT.
Article VI of the NPT
Nuclear Disarmament
209. As set forth abovethe Court has provided an authoritative analysis of the nuclear
disarmament component of the obligations laid down by Article VI. It has held that “the
obligation involved here is an obligation to achieve a precise result - nuclear disarmament
in all its aspects - by adopting a336rticular course of conduct, namely, the pursuit of
negotiations on the matter in good fIn the dispositif of its Advisory Opinion the
Court concluded unanimously:
3http://legal.un.org/ilc/texts/instruments/english/commentaries/9_6_2001… , [accessed on 12 March
2015].
33Supra, n. 276, para 134.
33See para. 140 – 141 of the Memorial.
336
Supra, n. 3, para. 99.
90!
! “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
337
effective international control”.
210. The UK has breached this obligation in the first place by failing to pursue negotiations on
nuclear disarmament. No such negotiations exist or have existed, and the UK has failed to
seek to bring them into existence. Indeed, the UK has actively opposed the
commencement of such negotiations as well as the UN General Assembly’s effort to
facilitate their commencement. It opposes General Assembly resolutions calling for
338
negotiations to begin. The UK also refused to support the establishment of the Open-
Ended Working Group to develop proposals to take forward multilateral nuclear
disarmament negotiations for the achievement and maintenance of a world without
nuclear weapons, declared pre-emptively that it would not support “any outcome it may
339
produce”, and did not participate in the working group’s deliberations. Such acts
reflect stated UK policy. The UK Government has stated that “it is premature and
340
potentially counter-productive” to prioritize a Nuclear Weapons Convention. At the
2013 High-Level Meeting on Nuclear Disarmament, the UK representative delivered a
joint statement in which the UK, France, and U.S. “regret” that “energy is being directed
toward initiatives such as this High-Level Meeting, the humanitarian consequences
campaign, the Open-Ended Working Group and the push for a Nuclear Weapons
Convention”. 341Later that year and again in 2014, the UK voted against UN General
342
Assembly resolutions following up the High-Level Meeting.
211. Not only has the UK rejected such initiatives; it has not offered any meaningful
alternative proposals. Although it has stated that it will only work through existing
mechanisms such as the Conference on Disarmament, it voted against the 2013 and 2014
General Assembly resolutions that called for negotiations in that body.
343
212. The ordinary meaning of “pursue” includes: “To seek to reach or attain”; “To try to
obtain or accomplish, to work to bring about, to strive for (a circumstance, event,
344
condition, etc.); to seek after, aim at.” The UK has failed to “pursue” negotiations on
337Ibid., para.105, point 2F.
338See paras. 65 – 81 of the Memorial.
339
340Ibid.
See para. 25 of the Memorial.
341Available at http://www.reachingcritica lwill.org/images/documents/Disarmament-
fora/HLM/26Sep_UKUSFrance.pdf, [accessed on 1 March 2015].
342UNGA Resolution A/RES/68/32, 5 December 2013 and UNGA Resolution A/RES/69/58, 2 December
3434.
Supra, n. 1, Article 31(1).
344OED Online, available at http://www.oed.com/view/Entry/155076?redirectedFrom=pursue#eid.
[accessed on 11 March 2015].
91!
! nuclear disarmament under any of these definitions; thus it has failed to work to bring
them about. Moreover, for Article VI negotiations to be conducted in good faith, they
must first begin. Accordingly, the duty to pursue negotiations requires first a good-faith
effort to enter into negotiations. As the Court has stated, appositely though in a different
context, “the concept of ‘negotiations’ … requires — at the very least — a genuine
attempt by one of the disputing parties to engage in discussions with the other disputing
345
party, with a view to resolving the dispute”. The UK’s failure to seek to engage in
negotiations, and its opposition to efforts by other States to begin or facilitate
negotiations, is thus a breach of Article VI.
213. Forty-five years after entry into force of the NPT, the UK’s delay in fulfilling its
obligation to pursue negotiations on nuclear disarmament is manifestly unreasonable.
214. The UK’s breach of its obligation under Article VI concerning negotiation of nuclear
disarmament is in the first instance a breach of an obligation of conduct, the failure to
pursue in good faith negotiations on nuclear disarmament. It also is a breach of an
obligation of result for which the UK shares responsibility: negotiations on nuclear
disarmament have not been concluded. Consequently, an objective of the NPT as set
forth in its preamble, “the elimination from national arsenals of nuclear weapons and the
means of their delivery”, the “precise result” of “nuclear disarmament in all its aspects”
346
referred to by the Court, has not been achieved, nor is it in sight. Further reinforcing
the breach is the UK’s planning and budgeting to maintain its nuclear weapon system for
many decades to come, actions that undermine and frustrate achievement of the objective
of nuclear disarmament. 347As the UK Government’s 2014 Update to Parliament makes
clear, “Government policy remains to maintain a continuous at sea deterrent and proceed
with the Assessment Phase programme to build a new fleet of ballistic missile
348
submarines.”
215. The UK has special responsibilities in this regard. As one of the NPT’s three Depositary
Governments, 349it is responsible for preserving the integrity and stability of the Treaty,
350
which is a pillar of international peace and security (Annex 84). The UK is also a
345
Supra, n. 133, para. 157. This Court, and its predecessor the PCIJ, have on many occasions stated that
good faith with respect to negotiations requires States “not only to enter into negotiations , but also to
pursue them as far as possible, with a view to concluding agreements” (emphasis supplied). Supra, n. 289,
p. 116; Supra, n. 276, para 132.
346Supra, n. 3, para. 99.
347
348See paras. 45 – 64 of the Memorial.
“The United Kingdom’s Future Nuclear Deterrent: 2014 Update to Parliament”, supra, n. 64.
349Supra, n 2, Article IX.2.
350The UK’s special responsibilities as a Depositary have been recognized in exchanges in Parliament.
See e.g. Hansard, HC Deb, 19 June 198 9, vol. 155, cc.31-3W.
92!
! permanent member of the Security Council, 351 which has primary responsibility for the
.352
maintenance of international peace and security In breaching its obligation under
Article VI concerning negotiation of nuclear disarmament, therefore, the UK is also
failing to meet these special responsibilities.
Cessation of the Nuclear Arms Race
216. Article VI of the NPT also requires States Parties to “pursue negotiations in good faith on
effective measures relating to cessation of the nuclear arms race at an early date”. The
NPT’s preamble declares the “intention to achieve at the earliest possible date the
353
cessation of the nuclear arms race”. The original aim was to end the quantitative build-
up and qualitative improvement of nuclear arsenals prior to negotiations on their
elimination. 354
217. The UK and other nuclear-weapon States Parties to the NPT, with the possible exception
of China, have ceased the quantitative build-up of nuclear arsenals through expansion of
the number of warheads and the stocks of weapons-grade fissile materials. That is not
true with respect to qualitative improvement. In the case of the UK, upgrades to its
nuclear weapons system adding military capabilities are clearly underway in multiple
355
respects.
218. A new “arming, fusing and firing system” developed by the US is to be used in current
UK warheads. 356 The system would improve the nuclear warhead’s effectiveness against
hardened targets. The UK has purchased from the U.S. the Mark 4 Reentry Vehicle and
designed a warhead to meet Mk4 RV specifications in terms of weight, size, shape, centre
of gravity, and centre of inertia. The U.S. is modernizing its W76 warheads and Mk4 re-
entry vehicles, including launcher, navigation, fire control, guidance, and re-entry
systems. 357The modernized W76-1 and Mk4A RV have improved the accuracy of the
358
warheads. These improvements have cascaded through to the UK’s Trident warhead
and re-entry vehicle. 359 The UK government has acknowledged procurement of the
351Article 23(1) of the U.N. Charter.
352
353Ibid., Article 24(1).
Emphasis added.
354Supra, n. 163, vol. 2, pp. 572–580, 583–585.
355See paras. 45 – 64 of the Memorial.
356
R. Norton-Taylor, ‘Trident more effective with US arming device, t ests suggest,’ The Guardian, 6
April 2011, http://www.theguardian.com/uk/2011/apr/06/trident -us-arming-system-test [accessed on 1
March 2015]; see also Hans M. Kristensen and Robert S. Norris, “British Nuclear Forces,” Bulletin of the
Atomic Scientists, September/October 2011 vol. 67 no. 5, 89 -97,
http://bos.sagepub.com/content/67/5/89.full#ref -24 [accessed on 1 March 2015].
357
358Supra, n. 42, at pp. 71-72.
Ibid., at p. 72; supra, n. 87.
359Supra, n. 42; See also supra, n. 88.
! 93! Mk4A RV. 360Preliminary work on a successor warhead is also under way under the
361
Nuclear Warhead Capability Sustainment Programme at AWE Aldermaston. It is
reasonable to assume that the development of a successor warhead will also be facilitated
362
by the research being conducted jointly by the UK and France.
219. A life-extended Trident II missile is being developed by the U.S. and will be deployed on
363
UK submarines. It will have a guidance system designed to provide flexibility for new
missions and make the missile more accurate. 364The replacement submarine will be
365
quieter and stealthier.
220. All of these efforts and actions confirm that the UK continues to be actively engaged in
qualitative improvements to its nuclear weapons system.
221. The most straightforward way to bring to an end the qualitative improvement of the UK’s
nuclear weapons system would be to eliminate the system. The UK’s failure to pursue
negotiations on nuclear disarmament is therefore also a violation of the subsidiary
obligation to pursue negotiations on cessation of the nuclear arms race at an early date.
The UK is additionally in breach of the obligation relating to cessation of the nuclear
arms race because it is not pursuing negotiations on any measures short of complete
366
nuclear disarmament that would halt qualitative improvement of nuclear forces. Forty-
five years after entry into force of the NPT, the UK’s delay in fulfilling its obligation to
pursue negotiations on cessation of the nuclear arms race is manifestly unreasonable.
360
Ibid., pp. 68-69; Hansard, HC, 8 December 2009, col. 214W.
361Ibid., pp. 70-71; Hansard, HC Deb, 28 November 2012, col. 353W.
362See para. 64 of the Memorial.
363
364Supra, n. 91, p. 85.
Ibid.; T. Postol, ‘How the Obama Administration Learned to Stop Worrying and Love the Bomb,’ The
Nation, 10 December 2014 (“Upgrades to the submarine-launched Trident II dramatically improve the US
capacity to destroy Russian silo -based ICBMs, and with less warning time.”),
http://www.thenation.com/article/192633/how -obama-administration-learned-stop-worrying-and-love-
bomb [accessed on 10 March 2015]; supra, n. 42, 71-72.
365Supra n. 42, at pp. 72-73.
366For example, a ban on equipping missiles with multiple independently targetable warheads (MIRVs)
could be negotiated. See Z. Keck, ‘Breaking the nuclear gridlock: it’s time to ban land-based MIRVs,’
Bulletin of the Atomic Scientists , 17 June 2014, http://thebulletin.org/breaking -nuclear-gridlock-
it%E2%80%99s-time-ban-land-based-mirvs7245 [accessed on 10 March 2015]. It would directly help to
prevent arms racing, in particular but not only among Asian nuclear -armed states whose missiles are
currently not MIRVed. It would also reduce militar y capability of other states, including the UK, whose
missile are MIRVed, and thus contribute to disarmament. Another example: A nuclear weapons
accountability agency or mechanism could be created that would among other things monitor a freeze on
qualitative improvements and other arms racing. Cf. J. Burroughs, “International Law,” in Assuring
Destruction Forever: Nuclear Weapon Modernization Around the World (Reaching Critical Will, 2012),
p. 122, http://www.reachingcriticalwill.org/images/documents/Publications/moder… -
destruction-forever.pdf [accessed on 1 March 2015].
! 94!222. The UK’s breach of the Article VI obligation concerning negotiation of cessation of the
nuclear arms race is, in the first instance, a breach of an obligation of conduct, the failure
to pursue in good faith negotiations on cessation of the nuclear arms race. It also is a
breach of an obligation of result for which the UK shares responsibility: negotiations
have not been concluded on all aspects of cessation of the nuclear arms race.
Consequently, an objective of the NPT set forth in its preamble, “to achieve at the earliest
possible date the cessation of the nuclear arms race”, has not been met, nor is it in sight.
Further reinforcing the breach are the projected improvements of military capability of
the UK’s nuclear weapon system, including the submarine, missile, re-entry vehicle, and
warhead, actions that undermine achievement of the objective of cessation of the nuclear
arms race.
Customary International Law
223. For the reasons set out above, 367the obligations enshrined in Article VI of the NPT are
not merely Treaty obligations; they also exist separately under customary international
law. On the same grounds as those relied on above with respect to Article VI, the
Respondent has breached and continues to breach its obligations under customary
international law with regard to nuclear disarmament and the cessation of the nuclear
arms race at an early date.
Good Faith
224. The Respondent has breached its obligation to act in good faith in respect of its
performance of its Treaty and customary international law obligations regarding nuclear
disarmament and cessation of the nuclear arms race at an early date.
225. The Respondent has displayed unwillingness to compromise and a lack of awareness of
the interests of other States in its opposition to their efforts to facilitate or begin
negotiations on nuclear disarmament by General Assembly resolutions and the OEWG.
The UK’s lack of good faith is particularly evident with respect to the OEWG. The
OEWG was engaged in the exercise of pursuing multilateral negotiations on nuclear
disarmament in the sense of developing proposals that would make their commencement
possible. It thus was entirely in harmony with the spirit and letter of Article VI and the
customary international law obligation relating to nuclear disarmament. While openness
to compromise and awareness of interests of other parties are requirements of good faith
ordinarily applied to the conduct of negotiations, they are equally appropriate in the
36See Part 6 of the Memorial.
95!
! context of pre-negotiation discussions of the type held in the OEWG. By refusing to
participate, and by pre-emptively declaring it would not accept “any outcome” of the
OEWG, 368 the UK violated those requirements.
226. The Respondent is also engaged in activities that render remote or impossible the
achievement of the objectives of nuclear disarmament and cessation of the nuclear arms
race. In its planning, budgeting, and preparations, 369it is projecting the retention of its
nuclear weapon system for decades to come, the very opposite of accomplishment of
nuclear disarmament in a reasonable timeframe. The UK is also engaged in vertical
proliferation by modernizing and improving its nuclear weapon system, including the
submarine, the missile, the re-entry vehicle, and the warhead, the very opposite of
cessation of qualitative nuclear arms racing. Those activities retard, rather than advance,
the objectives of nuclear disarmament and cessation of the nuclear arms race. Their
vigorous and well-funded prosecution undermines the trust that is necessary for a
successful collective disarmament enterprise in accordance with Treaty and customary
obligations. They are thus contrary to the object and purpose of the NPT, the
establishment of a safer, nuclear weapons free world through compliance with non-
proliferation and disarmament obligations, and to the object and purpose of a future
disarmament agreement. The lack of good faith is reinforced by the fact that at the same
time that the UK is modernizing its nuclear weapon system and planning to retain it over
the long term, it is opposing the commencement of multilateral negotiations on nuclear
disarmament.
Frustration of Fulfillment of Obligations by Non-Nuclear Weapon States
227. The United Kingdom is also failing to perform in good faith its obligations under the
NPT by effectively preventing the non-nuclear-weapon States Parties to the Treaty from
fulfilling their obligations under Article VI to negotiate for nuclear disarmament and
cessation of the nuclear arms race at an early date. As noted above, “all States need to
make special efforts to establish the necessary framework to achieve and maintain a
world without nuclear weapons” 370and all States Parties to the NPT are committed to
371
nuclear disarmament under Article VI.
228. The duty not to obstruct the non-nuclear-weapon States’ fulfilment of their obligations
under the NPT is implicit in the UK's obligation to perform in good faith its own
368See para. 77 of the Memorial.
369The May 2011 Initial Gate report states that the submarines will be operational “until the 2060s”.
Supra, n. 63, at p. 75.
370See para. 127 of the Memorial.
371
See paras. 138 - 144 of the Memorial.
96!
! 372
obligations under the NPT, because such obstruction frustrates the object and purposes
of the Treaty. In its commentary on the Draft Articles on the Law of Treaties, the
International Law Commission said:
"Some members felt that there would be advantage in also stating that a party
must abstain from acts calculated to frustrate the object and purposes of the treaty.
The Commission, however, considered that this was clearly implicit in the
373
obligation to perform the treaty in good faith..." (Annex 85)
372Supra, n. 1, Article 26.
373
Yearbook of the International Law Commission. 1966, Volume II, p. 211: commentary on draft Article
23 (Pacta Sunt Servanda), para. 4,
http://legal.un.org/ilc/publicatio ns/yearbooks/Ybkvolumes%28e%29/ILC_1966_v2_e.pdf [accessed on 10
March 2015].
97!
! P ART 8
S UMMARY
229. In accordance with the Court’s Practice Direction II the Marshall Islands provides the
following short summary of its reasoning.
230. The Applicant provides in this Part of this Memorial, in conformity with the Court’s
Practice Direction II, a short summary of the reasoning followed by RMI in this
Memorial. Whenever it would appear that there would be a discrepancy between this
Summary and the full text of this Memorial, the full text prevails.
231. The Court’s jurisdiction is based on declarations - made in accordance with Article 36(2)
of the Statute of the Court - that each of the Parties has deposited with the Secretary
General of the United Nations. Given the immeasurable destructive consequences of even
a limited nuclear war and given the erga omnes character of the obligations at stake in
this case the Applicant has locus standi and the Application is admissible.
232. Central to this case is the “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.”74
233. Specifically, the Applicant alleges that the Respondent acts in violation of Article VI of
the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) which reads:
“Each of the Parties to the Treaty undertakes to pursue negotiations in good faith
on effective measures relating to cessation of the nuclear arms race at an early
date and to nuclear disarmament, and on a treaty on general and complete
disarmament under strict and effective international control.”75
Both the Applicant and the Respondent are a Party to the NPT together with 187 other
States.
374
Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear WeaI.C.J.
375orts 1996, p. 226, para. 105, point 2F.
Treaty on the Non-Proliferation of Nuclear Weapons 1968 729 UNTS 161, Article VI.
98!
!234. In this Memorial the Applicant also asserts that the said obligation is not only a central
provision of the NPT, but that it is also firmly based in customary international law.
235. The Respondent is a nuclear-weapon State. The Applicant has shown in this Memorial
that the Respondent is not only maintaining its nuclear arsenal, but is also engaging in the
modernization of said arsenal. As a result of this modernization process the military
capabilities of the Respondent’s nuclear weapons will be increased; they will become
even more effective as weapons.
236. The Respondent has also been explicit about its not being prepared to engage in
negotiations leading to the conclusion of establishing nuclear disarmament in all its
aspects under strict and effective international control. In other words, the Respondent
has been taking and continues to take the position that it is not going to honour its
obligations under Article VI of the NPT, nor its obligations under customary international
law.
237. As demonstrated in this Memorial the Respondent is clearly not performing its
obligations under the NPT in good faith, and is far from good faith negotiating as
required by the aforementioned obligations.
238. The Applicant cannot be expected to accept the continuance of this situation. As such,
and “Considering the devastation that would be visited upon all mankind by a nuclear
war and the consequent need to make every effort to avert the danger of such a war and to
take measures to safeguard the security of peoples,” 376it has therefore submitted the
present case to this Court.
376Preamble to the NPT.
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SUBMISSIONS
239. On the basis of the foregoing statement of facts and law, The Republic of the Marshall
Islands requests the Court
to adjudge and declare
a) that the United Kingdom has violated and continues to violate its international
obligations under the NPT, more specifically under Article VI of the Treaty,
by failing 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;
b) that the United Kingdom has violated and continues to violate its international
obligations under the NPT, more specifically under Article VI of the Treaty,
by taking actions to qualitatively improve its nuclear weapons system and to
maintain it for the indefinite future, and by failing to pursue negotiations that
would end the nuclear arms race through comprehensive nuclear disarmament
or other measures;
c) that the United Kingdom has violated and continues to violate its international
obligations under customary international law, by failing 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;
d) that the United Kingdom has violated and continues to violate its international
obligations under customary international law, by taking actions to
qualitatively improve its nuclear weapons system and to maintain it for the
indefinite future, and by failing to pursue negotiations that would end the
nuclear arms race through comprehensive nuclear disarmament or other
measures;
e) that the United Kingdom has failed and continues to fail to perform in good
faith its obligations under the NPT and under customary international law by
modernizing, updating and upgrading its nuclear weapons capacity and
maintaining its declared nuclear weapons policy for an unlimited period of
100!
! time, while at the same time failing to pursue negotiations as set out in the
four preceding counts; and
f) that the United Kingdom has failed and continues to fail to perform in good
faith its obligations under the NPT and under customary international law by
effectively preventing the great majority of non-nuclear-weapon States Parties
to the Treaty from fulfilling their part of the obligations under Article VI of
the Treaty and under customary international law with respect to nuclear
disarmament and cessation of the nuclear arms race at an early date.
240. In addition, The Republic of the Marshall Islands requests the Court
to order
the United Kingdom to take all steps necessary to comply with its obligations
under Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons
and under customary international law within one year of the Judgment,
including the pursuit, by initiation if necessary, of negotiations in good faith
aimed at the conclusion of a convention on nuclear disarmament in all its
aspects under strict and effective international control.
16 March 2015
___________________________ _________________________
Tony A. de Brum Phon van den Biesen
Co-Agent of the Republic of Co-Agent of the Republic of
the Marshall Islands the Marshall Islands
before the International Court of Justice before the International Court of Justice
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Memorial of the Marshall Islands