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IN THE INTERNATIONAL COURT OF JUSTICE
AT THE PEACE PALACE
THE HAGUE, THE NETHERLANDS
THE QUESTION ON THE OBLIGATION OF STATES UNDER INTERNATIONAL
LAW ON NUCLEAR WEAPONS AND TECHNOLOGICAL DISARMAMENT
_________________________________________________
REQUEST FOR ADVISORY OPINION SUBMITTED BY
THE NON-NUCLEAR WEAPON STATES (NNWS)
MEMORIAL FILED ON BEHALF OF THE NNWS
2nd
Antonio Oposa Intergenerational
Moot Court Workshop
IUCN-AEL 15th
Annual Colloquim
Memorial on behalf of the NNWS
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TABLE OF CONTENTS
TABLE OF CONTENTS ……………………………………………………………………. 1
INDEX OF AUTHORITIES ………………………………………………………………… 3
I. STATEMENT OF JURISDICTION……………………………………...................... 7
II. INTRODUCTION…………………………………………………………………….. 8
III. IN CONTEXT…………………………………………………………………………
A. The theory of deterrence………………………………………………...…..
B. States and nuclear weapons…………………………………………..……..
9
9
10
IV. THE USE OF NUCLEAR WEAPONS IS PROHIBITED UNDER
INTERNATIONAL LAW………………………………………………………….....
13
A. Non-Proliferation Treaty ……..…………………………………………….. 13
B. The United Nations Charter prohibits member States from using threat or
use of force over other States. ……………………………………………....
15
1.Even under the concept of self-defense, the use of nuclear weapons is
not allowed under general principles of international humanitarian
law……………………………………………………………………..
16
C. Use of nuclear weapons even in times of war is prohibited under
international law………………………………………………………..........
17
1. 1. The duty not to cause widespread, long-term, and severe damage to
the natural environment under the Geneva Convention is a customary
norm……………………………...........................................................
18
i. There is significant state practice………………………………. 18
ii. There is opinio juris. ………………………………………….. 19
2.This obligation requires NWS to disarm since use of nuclear weapons
cause irreversible environmental damage which has widespread,
long—lasting and severe effects………………………………………
20
V. NUCLEAR WEAPON STATES HAVE THE DUTY TO DISARM TO COMPLY
WTH THEIR TREATY LAW OBLIGATIONS UNDER INTERNATIONAL
HUMAN RIGHTS LAW……………………………………………………………...
21
A. States have the duty to comply with the obligations under the Universal
Declaration of Human Rights………………………………………………….
21
B. States have a treaty obligation under the ICCPR to protect the right to life….. 22
1. Arbitrary deprivation of human life is prohibited under
international law………………………………………...…………
22
2. States have the obligation to uphold the Right to Peace………….. 22
VI. NUCLEAR WEAPON STATES HAVE THE DUTY TO DISARM TO COMPLY
WITH THEIR CUSTOMARY OBLIGATIONS UNDER INTERNATIONAL
ENVIRONMENTAL LAW. ……………………………………………….…………
24
A. States have the obligation to protect the environment. ………………...…... 24
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1. This obligation is customary under international law…………….. 25
i. There is sufficient state practice………….……………... 25
ii. Existing state practice is coupled with opinio juris… 26
2. Any use of nuclear weapons is harmful to the
environment. ………………………………………...…………..
26
B. NWS have the duty to prevent transboundary harm...……………................ 27
1. NWS‘ nuclear testing activities violate their duty to prevent
transboundary harm ……………………………………………..
27
2. The transboundary harm by using these weapons is sufficiently
significant to constitute a departure from the obligation of
states……………………………………………………………..
28
C. Even mere possession of nuclear weapons violates the prevention
principle……………………………………………………………………...
29
1. The duty to prevent irreversible damage is a customary
norm……………….…………………………………………….
29
2. Possession even without the use of nuclear weapons violates the
obligation to prevent harm. ……………………………………..
30
VII. THE PROHIBITION ON THE USE AND POSSESSION OF NUCLEAR
WEAPONS HAS RIPENED INTO A CUSTOMARY NORM. …………..................
30
A. There is evidence of state practice…...…………………………………… 30
1. Multilateral Treaties…………………………………………... 31
2. State Pronouncements and Practices………………………….. 32
3. UN General Assembly Resolutions……………………………. 33
B. State practice is coupled with opinion juris………………….…………... 34
VIII. REVISITING THE NUCLEAR DISARMAMENT REGIME………………………. 35
A. The NPT has gaps which prevents its effective enforcement…..…………
IX. MOVING FORWARD……………………………………………………………….. 36
A. Codifying the norm of the obligation for complete nuclear
disarmament……………………………………........................................
36
X. ALSO, SUSTAINABLE DEVELOPMENT CAN BE ACHIEVED IF STATES
COMPLY WITH THEIR OBLIGATION TO DISARM……………………………..
37
A. Apart from the obligations established under the principle of Sustainable
Development, NWS must also act in accordance with the Principle of
Intergenerational Equity.…………………………………………………..
38
XI. CONCLUSION AND PRAYER……………………………………………………… 40
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INDEX OF AUTHORITIES
TREATIES AND CONVENTIONS
Convention for the Prohibition of Military or other Hostile Use of Environmental Modification
Techniques, Article I, 1108 UNTS 151 / [1984] ATS 22 (1976).International Covenant on Civil
and Political Rights, 999 U.N.T.S. 171 (1966).
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection
of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3/ 1991 ATS No 29/ 16
ILM 1391 (1977).
Treaty on the Non-proliferation of Nuclear Weapons, July 1, 1968, U.S.T.1968.
United Nations Charter
Vienna Convention on the Law of Treaties, May 23, 1969, U.S.T.1969.
JUDICIAL DECISIONS
Assessment of Compensation, (United Kingdom v. Albania) 15 XII 49, ICJ, December 15, 1949.
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I. C.
J. Reports (1992).
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Reports (1997)
_______ibid. Separate opinion of Judge Weeramantry.
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Request for
advisory opinion, 9 July 2004 ICJ Rep 136 (2004).
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 8 July 1996.
Military and Paramilitary Activities (Nicaragua v. USA) Merits. J. 27.6.1986 I.C.J. Reports (1986).
Nuclear Tests (Australia v. France; New Zealand v. France), Order of 22 June 1973, I. C. J. Reports 1973.
Zambrano Vélez et al. v. Ecuador, Judgment (Series C No. 166), 4 July 2007.
BOOKS, ARTICLES AND JOURNALS
Alyn Ware, Health and Environmental Effects of the Production and Testing of Nuclear Weapons.
B. and M.-T. Danielsson, Poisoned Reign: French Nuclear Colonialism in the Pacific, Hardmondsworth
(Penguin Books, 1986).
Binod Prasad Sharma, Constitutional Provisions Related to Environment Conservation: A Study. Policy
Brief (2010).
Boulden, Jane, Ramesh Thakur, and Thomas Weiss. 2009. The United Nations And Nuclear Orders.
Ebook. 1st ed. United States of America: United Nations University Press.
Casey-Maslen, Stuart. 2015. "The Use Of Nuclear Weapons And Human Rights". International Review
Of The Red Cross 97 (899): 663-680.
David R. Boyd, The Constitutional Right to a Healthy Environment. The Environment Science and Policy
for Sustainable Development, July-August 2012
Donish Khan, Nuclear Non Proliferation Treaty, (Stanford University 2012).
Eleanor Ross, The Nine Countries that have Nuclear Weapons, Independent, January 6, 2016.
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Francis Gavin, Same as It Ever Was, 34 MIT Press Journals 3, 13 (2010).
Hisashi Owada, International Environmental Law and the International Court of Justice: Inaugural
Lecture at the Fellowship Programme on International and Comparative Environmental Law.
Iustum Aequum Salutare II. 2006/3–4.
J. R. McNeill & Erin Stewart Mauldin, A Companion to Global Environmental History (John Wiley &
Sons 2012).
James Conca, The Nuclear Weapons States - Who Has Them And How Many, Forbes, Sep. 25, 2014.
Jean-Marie Henckaerts, Louise Doswald-Beck. Customary International Humanitarian Law:
Volume 1, Rules. International Committee of the Red Cross, Cambridge University Press (2005).
John Borrie et al., A Prohibition on Nuclear Weapons, ILPI/UNIDIR, Feb. 2016.
Julia Choe, “Problems of Enforcement,‖ Harvard International Review (2007) (last accessed May 1,
2017).
M.D. Merlin and R.M. Gonzales, ―Environmental Impacts of Nuclear Testing in Remote Oceania, 1946-
1996,‖ in McNeill and Unger (eds.), Environmental Histories.
M.E. Villiger, Customary International Law and Treaties, A Study of their Interactions and
Interrelations with Special Consideration of the 1969 Vienna Convention on the Law of Treaties
(Martinus Nijhoff Publishers 1985).
Malcolm N. Shaw, International Law 93 (2008).
Non-Nuclear-Weapon States Urge New Global Order, while Nuclear-Armed Countries Defend
Need for „Safe and E ective‟ Arsenals, in First Committee Debate, U.N. GA First Committee, 70th
session, 4th meeting, Meeting Coverage, U.N. Doc GA/DIS/3522 (2015).
Nuclear Disarmament, France Diplomatie (Ministry for Europe and Foreign Affairs, France), 2017.
O. B. Toon , A. Robock, & R. Turco, The Environmental Consequences of Nuclear War, 61 Physics
Today, (2008).
Peter Malanczuk, Akehurst‘s Modern Introduction to International Law 348 (1997).
Radioactive Heaven and Earth, International Physicians for the Prevention of Nuclear War (Apex Press.
New York 1991).
Robert P. Haffa, Jr. et al., Deterrence and Defense in “The Second Nuclear Age”, Analysis Center
Papers, March 2009.
S. Firth, Nuclear Playground, Honolulu, University of Hawai‘I Press (1987).
Salra Bano, ―Is the NPT Irrelevant?‖ International Policy Digest (2014).
Samuel Glasstone & Philip J. Dolan, Effects of Nuclear Weapons (3rd
ed.) (United States Department of
Defense and the Energy Research and Development Administration1977).
Samuel Kane, Preventing Nuclear Terrorism: Nuclear Security, The Nonproliferation Regime, and the
Threat of Terrorist Nukes (2012).
Steven Pifer et al., U.S. Nuclear and Extended Deterrence: Considerations and Challenges, 3 Arms
Control Series 2010.
Steven Sarr, Consequences of Nuclear Weapons.
Takahashi, H., Fūinsareta Hiroshima, Nagasaki: Bei kaku jikken to minkan bōei keikaku (2012), Shinatei
Zōhoban.
The Effects Of Nuclear Weapons Under International Law. Article36, December 2014.
Tina Hunter, Equality for the Earth- The Role of Intergenerational Equity and Customary International
Law, 17 The National Legal Eagle Art.6 (2011).
Tom de Castella, How did we forget about mutually assured destruction?, BBC, Feb. 15, 2012, available
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at http://www.bbc.com/news/magazine-17026538.
Towards a Treaty Banning Nuclear Weapons: A Guide to Government Positions on a Nuclear Weapons
Convention, International Campaign to Abolish Nuclear Weapons (ICAN) (2012).
Treaty on the Non-proliferation of Nuclear Weapons,UNODA (2016).
Ved Nanda and George (Rock) Pring, International Environmental Law & Policy for the 21st Century,
2nd Revised Edition (Martinus Nijhoff Publishers 2012).
Ward Wilson, The Myth of Nuclear Deterrence, 15 Nonproliferation Review 3, 1 (2008).
What‟s the damage? Greenpeace International (2006).
Winston P. Nagan, Simulated ICJ Judgment: Revisiting the Lawfulness of the Threat or Use of Nuclear
Weapons, 1 Cadmus Journal 4, 100 (2012).
Xin Hanquin, Transboundary Damage in International Law (Cambridge University Press 2003).
UNITED NATIONS AND OTHER INTERNATIONAL DOCUMENTS
2000 Review Conference of the Parties to the Treaty on the Non-proliferation of Nuclear
Weapons, UNODA, 2000 Review Conference, Annex 1, at 2, ¶5, U.N. Doc. 00-41196 (E) (2000).
Disarmament Comm. 1993 Substantive Sess. A/CN.10/181 available at <https://disarmament-
library.un.org/UNODA/Library.nsf/0bb8a163b66d627f85256beb0073f596/7490a91d282813b185
25786b0053e5f9/$FILE/A-CN10-181.pdf>.
Draft Articles on the Prevention of Transboundary Harm from Hazardous Activities, 12 December 2001,
GA Res. 56/82, UN Doc. A/RES/56/82, (2001).
Draft Declaration of Principles on Human Rights and the Environment (1994).
G.A. Res. 1653 (XVI), 24 November 1961, UNYb 1961.
G.A. Res. 39/11, U.N. GAOR, 39TH Sess., U.N. Doc. A/RES/39/11 (1984).
G.A. Res. 47/37, U.N.GA, 73rd Plenary Meeting, Protection of the Environment in Times of
Armed Conflict, U.N. Doc. A/RES/47/37 (1992).
G.A. Res. 808 (IX). Regulation, limitation and balanced reduction of all armed forces and all armaments:
report of the disarmament commission; conclusion of an international convention (treaty) on the
reduction of armaments and the prohibition of atomic, hydrogen and other weapons of mass
destruction, 497th Plenn. Meeting, 1954.
G.A. Res., U.N. GAOR, Report of the World Commission on Environment and Development, 96th
Plenary Meeting, UN Doc A/Res/42/187(1987).
Human Rights Committee General Comment 14, Article 6 of the International Covenant on Civil and
Political Rights, 23rd Sess., U.N. Doc. HRI/GEN/1/Rev.1 (1994).
Report of the International Law Commission, U.N. GAOR, 56th Sess., Supp. No. 10, at 150-151, UN
Doc. A/56/10 (2001) [56th ILC Report].
Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I) (1992).
U.N. GA First Committee, 70th session, 4th meeting, Meeting Coverage at 1, ¶55, U.N. Doc
GA/DIS/3522 (2015).
U.N. GA, General and complete disarmament: taking forward multilateral nuclear disarmament
negotiations, Seventy-first session First Committee, A/C.1/71/L.41(2016).
U.N. General Assembly, United Nations Conference on the Human Environment, A/RES/2994, (1972).
United Nations Convention on the Law of the Non-Navigational Uses of International Watercourses, 21
May 1997, 36 ILM 700, (1997).
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MISCELLANEOUS
Arms Race, bitesize, 2014, available in http://www.bbc.co.uk/bitesize/intermediate2/history.
Barrack Obama, The Prague Speech, Address at the Hradcany Square, Prague, Czech Republic (April 5,
2009) (transcript available in https://obamawhitehouse.archives.gov).
______ibid. (9th ed. 2009).
BLACK‘S LAW DICTIONARY (8th ed. 2004).
Carey Sublette, Section 7.0 Nuclear Weapon Nations and Arsenals Nuclear Weapons Frequently Asked
Questions (2001) available at <http://nuclearweaponarchive.org/Nwfaq/Nfaq7-4.html>.
Lawrence Freedman, Treaty on the Non-proliferation of Nuclear Weapons, Encyclopedia Britannica, May
2017, available in Britannica.com.
Message from the President of the Federative Republic of Brazil, Dilma Rousseff, for the IV Nuclear
Security Summit (2016), available at <http://www.nss2016.org/document-center-
docs/2016/4/1/national-statement-brazil>.
Robert Norris and Thomas Cochran, Nuclear Weapon: Other Countries, Encyclopedia Britannica, (2017)
available at <https://www.britannica.com/technology/nuclear-weapon/Other-countries>
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I. STATEMENT OF JURISDICTION
The Representative of Non-Nuclear Weapon States submits this memorial in
response to the request for advisory opinion of the International Court of Justice (―The
Court‖) concerning the obligations and responsibilities of states under existing treaties
and rules of international law regarding the use and possession of nuclear weapons and
nuclear disarmament, consistent with paragraph 2 of Article 65 and paragraph 4 of
Article 66 of the Statute of the International Court of Justice (ICJ Statute). This
submission is recognition of The Court‘s jurisdiction pursuant to Article 36, paragraph 1
of the ICJ Statute.
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II. INTRODUCTION
The present time has been dubbed as the Second Nuclear Age, wherein there has been
a shift from a bipolar competition between two technologically advanced states, the US and
the Former Soviet Union, to a multipolar world with many emerging threats and unstable
actors.1 This was largely due to the development of nuclear weapons and military
modernization done by most states in the post-cold war era.
The arms race during the cold war was caused by the fear that each side of the bipolar
world felt towards each other. As a result, they started to build up their armies and weapons.
Eventually, the United States felt more threatened that the Former Soviet Union was leading
in terms of military advantage, which fueled the arms race further.2 At the time, the main
consideration was the principle of mutual deterrence, often referred to as ―mutual assured
destruction‖ [MAD]. In the context of the US-Soviet Union Arms race, ―in essence it meant
stockpiling a huge nuclear arsenal. In the event of a Soviet attack the US would have enough
nuclear firepower to survive a first wave of nuclear strikes and strike back. The response
would be so massive that the enemy would suffer ‗assured destruction‘.‖3
Since then, the principle of deterrence has been used by states as a reason for their
reluctance to commit to absolute nuclear disarmament policy. The United States vowed not
to use or threaten to use nuclear weapons against non-nuclear weapons states and observe a
policy of ―no first use‖ of nuclear weapons, which meant that the United States would only
1Robert P. Haffa, Jr. et al., Deterrence and Defense in “The Second Nuclear Age”, Analysis Center Papers, March
2009, at 1.
2 Arms Race, bitesize, 2014, available in http://www.bbc.co.uk/bitesize/intermediate2/history.
3 Tom de Castella, How did we forget about mutually assured destruction?, BBC, Feb. 15, 2012, available in
http://www.bbc.com/news/magazine-17026538.
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use nuclear weapons in response to a nuclear attack on the United States, its allies or
partners.4 In the same token, the Democratic People‘s Republic of Korea said that its nuclear
deterrence was not a bargaining chip but a means to defend its sovereignty.5
III. IN CONTEXT
A. The Theory of deterrence
The rise of nuclear technology motivated states to modernize their military
capabilities and rely on the principle of deterrence, exemplified by the cold war. This led to
an increase in the number of nuclear weapon states and those wanting to develop such
technology.
Although the theory of deterrence has been the main consideration of the increase in
military arsenals and acquisition of nuclear weapons, there has been doubt as to its
effectiveness in maintaining security and stability even during the cold war.
The efficacy of nuclear deterrence is doubtful because the characteristic attack
threatened in most nuclear deterrence scenarios — city attack — is not militarily effective or
likely to be decisive; 2) the psychology of terror that is supposed to work in nuclear
deterrence‘s favor actually creates the circumstances for unremitting resistance; and 3) even
though the field is mostly conjectural, what little unambiguous evidence does exist
contradicts the claim that nuclear deterrence works.6
4 Steven Pifer et al., U.S. Nuclear and Extended Deterrence: Considerations and Challenges, 3 Arms Control Series
2010.
5 U.N. GA First Committee, 70
th session, 4
th meeting, Meeting Coverage at 1, ¶55, U.N. Doc GA/DIS/3522 (2015).
6 Ward Wilson, The Myth of Nuclear Deterrence, 15 Nonproliferation Review 3, 1 (2008).
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More so in the second nuclear age, today‘s ―rogue‖ states and terrorist
organizations…may not be as deterrable as the Soviets and the Americans were during the
first nuclear age.7 The rise of transnational actors, including terrorist organizations, in the
second nuclear age has brought the principle of deterrence into question.8
B. States and Nuclear Weapons
Due to the serious threat brought about by nuclear arsenals and other various actors,
some states moved for total disarmament or reduction of nuclear weapons in the form of
bilateral and multilateral/regional treaties. At present, a total of nine [9] countries around the
world are believed to have access to nuclear weapons.9 All in all, there are 16, 300 nuclear
weapons between the nuclear weapons states as of 2014. The nuclear weapons states include
the United States, Russia, UK, France, China, India, Pakistan, Israel and North Korea.10
Some states including, South Africa, Kazakhstan, Belarus and Ukraine dropped their nuclear
weapons and opted for disarmament.11
Over the last decade, there have been proposals toward a more concrete and feasible
nuclear disarmament regime.12
Yet, there has been no worldwide absolute commitment to
such effect. There are only bilateral and regional treaties entered into by states across the
globe. As of 2016, 122 states have stated their intention ‗to identify and pursue effective
measures to fill the legal gap‘ in the nuclear non-proliferation regime through their
7 Francis Gavin, Same as It Ever Was, 34 MIT Press Journals 3, 13 (2010).
8 supra note 1at 6.
9 Eleanor Ross, The Nine Countries that have Nuclear Weapons, Independent, January 6, 2016, 1.
10
Ibid.
11
James Conca, The Nuclear Weapons States - Who Has Them And How Many, Forbes, Sep. 25, 2014, at 1.
12
The Effects of Nuclear Weapons under International Law, Article36, Dec. 2014, at 2.
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endorsement of the humanitarian pledge, a document introduced by the Austrian hosts of the
Third Conference on the Humanitarian Impact of Nuclear Weapons in December 2014.13
The nuclear non-proliferation regime refers mainly to the non-proliferation treaty
which prevents non-nuclear weapon state parties from receiving nuclear weapons or having
any control over them. Likewise, ‗nuclear-weapon States Parties‘ are prohibited from
transferring nuclear weapons or control over such weapons to any recipient and from
assisting any non-nuclear-weapon state in manufacturing or acquiring such weapons.
Amidst the legal framework of the nuclear weapons disarmament and non-
proliferation, non-nuclear weapons states [NNWS] urge States to affirm their commitments
towards global nuclear disarmament, despite the reshuffling of powers in the international
arena. This is to avoid the catastrophic consequences that would result from deadly weapons
falling into the wrong hands, or a scenario known as the ―black swan of our age‖.14
Some of
the nuclear weapon states expressed their intention towards the attainment of such goal. The
United States expressed the need for the conventions to establish verification capabilities and
build the security conditions needed to advance disarmament. Also, France is actively and
concretely committed to disarmament at both national and international level.15
The issue of the legality of the use or possession of such weapons has always been a
controversial one. The ICJ on the Legality of Nuclear Weapons found that there is neither in
customary nor conventional law ‗any specific authorization of the threat or use of nuclear
13
John Borrie et al., A Prohibition on Nuclear Weapons, ILPI/UNIDIR, Feb. 2016, at 11.
14
Non-Nuclear-Weapon States Urge New Global Order, while Nuclear-Armed Countries Defend Need for „Safe and
E ective‟ Arsenals, in First Committee Debate, U.N. GA First Committee, 70th
session, 4th
meeting, Meeting
Coverage at 1, ¶ 10, U.N. Doc GA/DIS/3522 (2015).
15
Nuclear Disarmament, France Diplomatie (Ministry for Europe and Foreign Affairs, France), 2017, at 1.
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weapons‘ (unanimously), but also no ‗comprehensive and universal prohibition‘ (by eleven
votes to three).16
The court however refused to rule definitely on the legality of the use of nuclear
weapons in extreme cases of self-defense. The decision was rendered on 1996 and in
consideration of the growing sentiment of nuclear disarmament and humanitarian pledges, it
is more than enough to impose an obligation on states to a complete disarmament.
16
Peter Malanczuk, Akehurst‘s Modern Introduction to International Law 348 (1997).
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IV. THE USE OF NUCLEAR WEAPONS IS PROHIBITED UNDER
INTERNATIONAL LAW
Treaty provisions entered by states impose binding obligations upon them under
international law. The obligatory nature of treaties is founded upon the customary
international law principle pacta sunt servanda.17
Thus, agreements must be complied
with in good faith.
A. Non-Proliferation Treaty [NPT]
The NPT was a treaty originally entered into by UK, US and the Soviet
Union [Russia] with fifty-nine [59] other states.18
The NPT aims to prevent the
spread of nuclear weapons and weapons technology, to foster the peaceful uses of
nuclear energy, and obliges state parties to further the goal of disarmament.19
In
2016, there are ninety-three [93] signatory states and one hundred ninety one
[191] state parties20
, who gather every five [5] years to review the operation of the
treaty, in the NPT Review Process.21
The relevant state obligations are as follows:
1. Article I & II of the NPT, imposes an obligation upon nuclear
weapon state parties not to transfer such weapons to non-nuclear
weapon states on one hand, and a correlative obligation for non-
17
Malcolm N. Shaw, International Law 93 (2008).
18
Lawrence Freedman, Treaty on the Non-proliferation of Nuclear Weapons, Encyclopedia Britannica, May 2017,
available in Britannica.com.
19
Treaty on the Non-proliferation of Nuclear Weapons, (hereinafter ―NPT‖), July 1, 1968, Preamble, U.S.T. 1968.
20
Treaty on the Non-proliferation of Nuclear Weapons,UNODA, 2016, at 1.
21
NPT, Art. 8.
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nuclear weapon state parties not to receive the transfer of such
weapons from any transferor or to seek the manufacture thereof.22
2. Under the preamble of the NPT, the state parties affirm the
principle that peaceful applications of nuclear technology for
peaceful purposes shall be available to all parties to the treaty.
Moreover, Article III (1) provides that the state parties shall accept
the safeguards system provided by the International Atomic
Energy Agency [IAEA] ―with a view to preventing diversion of
nuclear energy from peaceful uses to nuclear weapons or other
nuclear explosive devices.‖23
Article IV(1) also talks about the
inalienable right of all the parties to develop research, production
and use of nuclear energy for peaceful purposes without
discrimination and in conformity with the treaty.
3. Another object of the NPT is to foster the use of nuclear energy for
peaceful purposes and for nuclear weapons disarmament. The
ordinary meaning of the word ―peace‖ is the termination or
absence of armed conflict between states; or freedom from civil
disturbance.24
By analogy, under the NPT, the use or threat of use
of nuclear weapons is not permitted for it will run counter to the
object of the treaty; which is the beneficial use of nuclear
22
NPT, Art. 1.
23
NPT, Art. 3.
24
Black‘s Law Dictionary 1244 (9th
ed. 2009).
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technology for peaceful purposes and nuclear weapons
disarmament. States have an obligation not to defeat the object and
purpose of a treaty when it has expressed its consent to be bound
by it.25
4. States have a positive obligation to pursue negotiations in good
faith towards nuclear disarmament.
Article VI of the NPT provides that the parties to the treaty
undertake 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.
The ICJ stated that this obligation went ―beyond…a mere
obligation of conduct‖ and was 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.‖26
B. The United Nations Charter prohibits member States from using threat
or use of force over other States
The Charter provides that member states shall refrain in their international
relations from the threat or use of force against the territorial integrity or political
25
Vienna Convention on the Law of Treaties, May 23, 1969, Art. 18 ¶ a, U.S.T., at 8.
26
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996 (I), at 264.
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independence of any state.27
Thus, generally, the threat or use of nuclear weapons
as a military tool is not allowed under international law because the use of force
per se is proscribed.
1. Even under the concept of self-defense, the use of nuclear weapons
is not allowed under general principles of international
humanitarian law.
The inherent right of self-defense under Article 51 of the UN
Charter is an exception to the general rule under Article 2(4) and under
the rule of interpretation, exceptions to a principle should be
interpreted restrictively.28
The prohibition against the use of force was
considered as a peremptory norm29
, thus the right to self-defense must
be strictly construed. Any ambiguity as to the legality of the use of
nuclear weapons in self-defense must be construed against it.
Furthermore, the force used in self-defense must be necessary,
immediate and proportional to the seriousness of the armed attack.30
Though the ICJ held in an advisory opinion in The Legality of Nuclear
Weapons31
that the proportionality principle may thus not in itself
exclude the use of nuclear weapons in self-defense in all
27
U.N. Charter, Art. 2, ¶ 4.
28
supra note 16 at 312.
29
Military and Paramilitary Activities (Nicaragua. v. U.S.A.), 1986 I.C.J. 4 (June 27).
30
Nicaragua v. USA, at 94 and 122–3; see also Malanczuk (1987), op. cit., 253–5, 278, 280–2; Ibid., 94; J.G.
Gardam, Proportionality and the Use of Force in International Law, AJIL 87 (1993), 391–413; Randelzhofer, Article
51, op. cit., 677.
31
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 8 July 1996.
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circumstances, self-defense must also meet the requirements of the law
in armed conflict and rules of humanitarian law.32
i. Principle of Distinction/Discrimination
Under International Humanitarian Law, combatants must
distinguish between military and non-military objectives and
attack only military objectives.33
ii. The Rule on Protection of Non-Combatants.
Complementary to the principle of distinction under
IHL is the rule on protection of non-combatants.34
In an armed
conflict, non-combatants, including hors de combat must be
spared.
iii. Principle of Humanity and Necessity
This principle provides the limits on the means and
methods of warfare which aims to eliminate unnecessary injury
or suffering.
iv. The corollary rule of Controllability
This rule provides the prohibition against the usage of
weapons, the effects of which cannot be controlled.
If an envisaged use of weapons would not meet the requirement of
IHL, a threat of such use would also be contrary to that law.35
Thus, the
use of nuclear weapons as a tool of aggression or self-defense would be
contrary to the general principles of IHL.
C. Use of nuclear weapons even in times of war is prohibited under
international law.
32
Ibid.
33
Miša Zgonec-Rožej et al., International Criminal Law Manual at 88.
34
Ibid.
35
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 8 July 1996 at 78.
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It is widely accepted norm that environmental law treaties and principles
remains enforceable even in times of armed conflict.36
This has been
impliedly recognized by the ICJ in its opinion in expressing that
environmental law indicates important factors that has to be considered in the
implementation of the rules applicable in armed conflict.37
1. The duty not to cause widespread, long-term, and severe damage
to the natural environment under the Geneva Convention, a
customary norm.
i. There is significant state practice.
There is significant state practice to the effect that the
prohibition against causing ―widespread38
, long—lasting39
or
severe40
effects‖ on the natural environment as embodied in
Articles 35(3) and 55(1) of Additional Protocol I to the Geneva
Convention have become customary. The military manuals41
and
36
supra note 9.
37
Nuclear Tests Case (New Zealand v. France) 57 ILR 605.
38
Widespread: encompassing an area of several hundred square kilometers.
39
Long-lasting: lasting for a period of months, or approximately a season.
40
Severe: involving serious or significant disruption or harm to human life, natural and economic resources or other
assets.
41
As cited in Jean-Marie Henckaerts, Louise Doswald-Beck. Customary International Humanitarian Law: Volume
1, Rules. International Committee of the Red Cross, Cambridge University Press (2005).
see, e.g., the military manuals of Argentina (ibid., § 163), Australia (ibid., §§ 164–165), Belgium (ibid., § 166),
Benin (ibid., § 167), Canada (ibid., § 168), Colombia (ibid., § 169), France (ibid., § 170), Germany (ibid., §§ 171–
173), Italy (ibid., § 174), Kenya (ibid., § 175), Netherlands (ibid., §§ 176–177), New Zealand (ibid., § 178), Russia
(ibid., § 179), Spain (ibid., § 180), Sweden (ibid., § 181), Switzerland (ibid., § 182), Togo (ibid., § 183), United
Kingdom (ibid., § 184), United States (ibid., §§ 185–186) and Yugoslavia (ibid., § 187).
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legislation of numerous States42
treating the matter as an offense
shed light upon this well established state practice. And these state
practices show the widespread, representative and virtually
uniform acceptance of the customary law nature of said rules.43
Further, for a rule to be established as customary, the
corresponding practice need not be in absolute rigorous conformity
with the rule44
. Hence, practice by a few states though contrary is
not enough to prevent the emergence of this customary norm.45
ii. There is opinio juris.
The duty not to bring about widespread, long-term and
severe damage to the environment in times of armed conflict has
been incorporated in legal systems of several States and in various
conventions,46
statements and declaration of States.47
The ICJ48
42
See, e.g., the legislation of Australia (ibid., § 190), Azerbaijan (ibid., § 191), Belarus (ibid., § 192), Bosnia and
Herzegovina (ibid., § 193), Canada (ibid., § 195), Colombia (ibid., § 196), Congo (ibid., § 197), Croatia (ibid., §
198), Georgia (ibid., § 201), Germany (ibid., § 202), Ireland (ibid., § 203), Mali (ibid., § 206), Netherlands (ibid., §
208), New Zealand (ibid., § 209), Norway (ibid., § 211), Slovenia (ibid., § 213), Spain (ibid., § 214), United
Kingdom (ibid., § 218) and Yugoslavia (ibid., § 220); see also the draft legislation of Argentina (ibid., § 188),
Burundi (ibid., § 194), El Salvador (ibid., § 199), Nicaragua (ibid., § 210) and Trinidad and Tobago (ibid., § 216).
43
Jean-Marie Henckaerts, Louise Doswald-Beck. Customary International Humanitarian Law: Volume 1, Rules.
International Committee of the Red Cross, Cambridge University Press (2005).
44
Nicaragua v. USA § 98.
45
infra at 23.
46
Convention for the Prohibition of Military or other Hostile Use of Environmental Modification
Techniques, Article I, 1108 UNTS 151 / [1984] ATS 22 (1976); Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Article
35(3) & Article 55(1), 1125 UNTS 3/ 1991 ATS No 29/ 16 ILM 1391 (1977).
47
See e.g. 9 Yugoslavia, Appeals and Letter of the Federal Ministry for Development, Science and the Environment;
Iraq, Letter to the UN Secretary-General; Kuwait, Letter to the UN Secretary-Genera; Sweden, Statement before the
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found that States must abide by their ‗general obligation to protect
the natural environment against widespread, long-term and severe
environmental damage.‘ The court adds that methods and means of
warfare which are intended, or may be expected to cause such
damage are also prohibited.49
This pronouncement furthers the
point that the obligation to protect the environment is enforceable
at all times.
2. This obligation requires NWS to disarm since use of nuclear
weapons cause irreversible environmental damage which has
widespread, long—lasting and severe effects.
The General Assembly in its resolution50
affirms further the general
view that environmental considerations form part of the elements to be taken
into account in the implementation of the principles and rules of law
applicable in armed conflict.51
Taken altogether, these instruments embody
the general obligation of all States to protect the natural environment against
widespread, long-term and severe environmental damage. States can only do
this by disarming and totally prohibiting the use of nuclear weapons which
are expected to bring about such destruction.
Sixth Committee of the UN General Assembly; Canada, Statement before the Sixth Committee of the UN General
Assembly; OECD, Declaration of the Ministers of Environment.
48
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 8 July 1996 § 31.
49
Id.
50
G.A. Res. 47/37, U.N.GA, 73rd
Plenary Meeting, Protection of the Environment in Times of Armed Conflict, U.N.
Doc. A/RES/47/37 (1992).
51
Hisashi Owada, International Environmental Law and the International Court of Justice: Inaugural Lecture at the
Fellowship Programme on International and Comparative Environmental Law. Iustum Aequum Salutare
II. 2006/3–4, § 5–32.
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V. NUCLEAR WEAPON STATES HAVE THE DUTY TO DISARM TO COMPLY
WTH THEIR TREATY LAW OBLIGATIONS UNDER INTERNATIONAL
HUMAN RIGHTS LAW.
A. States have the duty to comply with the obligations under the Universal
Declaration of Human Rights.
Article 3 of the Universal Declaration of Human Rights provides that
everyone has the right to life, liberty and security of person. This right exists both in
times of peace and in times of armed conflict.52
The catastrophic humanitarian consequence of nuclear weapons is
uncontested. According to the World Health Organization [WHO], the use of a
single nuclear weapon or one involving multiple weapons would cause deaths
varying from 1 million to 1 billion.53
This estimate is without regard to the
possibilities of a nuclear winter, and radiation poisoning. Similarly, the World
Commission on the Environment and Development expressed its concern against the
threat of nuclear weapons by stating that “the likely consequences of nuclear war
make other threats to the environment pale into insignificance.”54
The ICJ has held
on the consequences of the use of nuclear weapons in the Nuclear Weapons Case55
,
to wit:
―the radiation from nuclear weapons is not containable in space or
time and unique as a source of ―continuing danger to human health, even
52
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Request for advisory
opinion, 9 July 2004 ICJ Rep 136 (2004).
53
Winston P. Nagan, Simulated ICJ Judgment: Revisiting the Lawfulness of the Threat or Use of Nuclear Weapons,
1 Cadmus Journal 4, 100 (2012).
54
Ibid.
55
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J. Reports 1996, 8 July 1996.
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long after its use,‖ given the half-lives in the many thousands of years of the
by-products of a nuclear explosion.‖
Thus, the usage of nuclear weapons would constitute human rights violations in a
large scale.
B. States have a treaty obligation under the ICCPR to protect the right to life.
The International Covenant on Civil and Political Rights (hereinafter
―ICCPR‖) was entered into force on March 23, 1976. ICCPR‘s goal is the promotion
of universal respect for, and observance of, human rights and freedoms.56
The ICCPR
has 169 parties and 74 signatories including nuclear weapons states specifically
United States, Britain, France, Israel, Russia, Pakistan, North Korea, China and India.
The ICCPR is enforceable in times of peace and of war.
The current threat of nuclear weapons is conflicting with several
international conventions on human rights. The ICCPR imposes the obligation to
secure the right to life which is inherent to every human being. It also prohibits the
arbitrary deprivation of human life. 57
Consistent with this mandate, the states are
encouraged to uphold its commitment in the ICCPR.
1. Arbitrary deprivation of human life is prohibited under
international law.
56
International Covenant on Civil and Political Rights, 999 U.N.T.S. 171 (1966).
57
Ibid, Art.6 (1).
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International law has advocated the prohibition of arbitrary deprivation of
human life. Arbitrary is defined as procedures or law of a judicial decision
founded on prejudice or preference rather than on reason or fact.58
In Zambrano
Vélez et al. v. Ecuador before the Inter-American Court of Human Rights, the
court maintained that there is arbitrary deprivation of life when excessive force is
used. This is based on the state of absolute necessity in relation to the force or
threat to be repealed. 59
States have the obligation to uphold the right to life through the
prohibition of arbitrary deprivation of human life. The force employed through
the use of nuclear weapons does not distinguish if it would be used on non-
combatants or combatant or civilians even in times of peace.60
Further, it has been
observed that the use of nuclear force could never reach as a minimum necessary
force.61
2. States have the obligation to uphold the Right to Peace.
States also have the obligation in the maintenance and preservation of
peace which is a fundamental obligation of every State contained in the General
58
BLACK‘S LAW DICTIONARY (8th ed. 2004).
59
IACtHR, Zambrano Vélez et al. v. Ecuador, Judgment (Series C No. 166), 4 July 2007, § 84, with other
references.
60
Boulden, Jane, Ramesh Thakur, and Thomas Weiss. 2009. The United Nations And Nuclear Orders. Ebook. 1st
ed. United States of America: United Nations University Press.
https://collections.unu.edu/eserv/UNU:2540/ebrary9789280811674.pdf.
61
Casey-Maslen, Stuart. 2015. "The Use Of Nuclear Weapons And Human Rights". International Review of The
Red Cross 97 (899): 663-680. doi:10.1017/s1816383116000096.
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Assembly Resolution 39/11.62
The possession of states with nuclear weapons
coupled with the threat or use of nuclear weapons is a harm to the right to peace.
Further emphasis is placed on the elimination of the threat of nuclear war as a
policy of every state.63
Compliance with this obligation is done by several states in the regional
level such as the Treaty of Tlatelolco (1967) which prohibits nuclear weapons in
Latin America and the Caribbean, the Treaty of Rarotonga (1985) in the South
Pacific, the Treaty of Bangkok (1995) in Southeast Asia, the Treaty of Pelindaba
(1996) in Africa, and the Treaty of Semipalatinsk (2006) in Central Asia.64
The
remaining challenge is to strengthen peace in a an international level by the
complete nuclear disarmament of every state.
VI. NUCLEAR WEAPON STATES HAVE THE DUTY TO DISARM TO COMPLY
WITH THEIR OBLIGATIONS UNDER INTERNATIONAL ENVIRONMENTAL
LAW.
A. States have the obligation to protect the environment.
Nuclear weapons are the greatest environmental threat in history.65
Evidence from
several scientific research66
supports the view that nuclear weapons pose a serious threat
62
G.A. Res. 39/11, U.N. GAOR, 39th
Sess., U.N. Doc. A/RES/39/11 (1984).
63
Ibid.
64
supra note 12.
65
J. R. McNeill & Erin Stewart Mauldin, A Companion to Global Environmental History (John Wiley & Sons
2012).
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of devastation to humanity and the environment. The United Nations Human Rights
Committee confirmed this and noted that it is not only the use but the production, testing,
possession and deployment of nuclear weapons that should be prohibited and recognized
as against humanity.67
Therefore, it is imperative for NWS to disarm to make sure that
the environment is protected and their obligations complied.
1. This obligation is customary under international law.
i. There is sufficient state practice.
The duty to protect the environment is a customary norm. State practice is
shown by 177 of the world's 193 UN member nations recognizing this through
their constitution, environmental legislation, court decisions, or ratification of
international agreements.68
Numerous treatises69
espousing this obligation are
signed and ratified by numerous states including both nuclear and non-nuclear
66
Takahashi, H., Fūinsareta Hiroshima, Nagasaki: Bei kaku jikken to minkan bōei keikaku (2012), Shinatei
Zōhoban; O. B. Toon , A. Robock, & R. Turco, The Environmental Consequences of Nuclear War, 61 Physics
Today, (2008) at 37-42.
67
Human Rights Committee General Comment 14, Article 6 of the International Covenant on Civil and Political
Rights, 23rd
Sess., U.N. Doc. HRI/GEN/1/Rev.1 (1994) at 18.
68
David R. Boyd, The Constitutional Right to a Healthy Environment. The Environment Science and Policy for
Sustainable Development, July-August 2012; Binod Prasad Sharma, Constitutional Provisions Related to
Environment Conservation: A Study. Policy Brief (2010).
69
The Vienna Convention for the Protection of the Ozone Layer, 22 March 1985, art. 2, 1513 UNTS 293 / [1988]
ATS 26 / 26 ILM 1529 (1987); United Nations Framework Convention on Climate Change, 21 Mar 1994, 1771
UNTS 107 / [1994] ATS 2 / 31 ILM 849 (1992); Convention on Biological Diversity, 29 December 1993, [1993]
ATS 32 / 1760 UNTS 79 / 31 ILM 818 (1992); Basel Convention on the Control of Transboundary Movements of
Hazardous Wastes and Their Disposal, 5 May 1992, 1673 UNTS 57/ [1992] ATS 7/ 28 ILM 657 (1989).
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weapon states. It is also found in many international instruments such as the
Stockholm Declaration70
and Rio Declaration.71
ii. Existing state practice is coupled with opinio juris.
The ICJ stated that the States‘ consent to and attitude towards the text of a
resolution evidence opinion juris.72
The abovementioned covenants and
declarations prove that there is already an expectation of compliance among
states, which together with ensuing practice establishes the obligation to protect
the environment as a customary norm. And as a binding norm, States are bound
not to engage in activities harmful to the environment.
2. Any use of nuclear weapons is harmful to the environment.
Of all activities concerning nuclear weapons, nuclear testing has been the
most destructive of human health and the environment.73
Before nuclear-testing
freeze conventions came into effect, locations such as Soviet sites in Central Asia
and Britain‘s testing grounds in central Australia became uninhabitable for almost
all forms of life. In the southern Pacific Ocean, islands and their coastal reefs
likewise became unfit for life as a result of American and French nuclear-
70
UN General Assembly, United Nations Conference on the Human Environment (hereinafter Stockholm
Declaration), 15 December 1972, A/RES/2994.
71
Rio Declaration on Environment and Development, UN Doc. A/CONF.151/26 (vol. I)(1992), Principle 4,
Principle 7 and Principle 111; See also Draft Declaration of Principles on Human Rights and the Environment, Part
2 (5), Part 4(21 & 22) (1994).
72
Nicaragua v. USA § 99-101.
73
Alyn Ware, Health and Environmental Effects of the Production and Testing of Nuclear Weapons Available at
http://www.nuclearfiles.org/menu/key-issues/nuclear-weapons/issues/effects/effects-of-nuclear-weapons.htm.
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weapons testing.74
The global fallout resulting from these activities will lead to
over 2 million cancer fatalities alone, not counting other health effects.75
Certainly, the effects of the use of nuclear weapons do not respect borders and
brings unwanted changes in the conditions in violation of the affected State‘s
rights under international law.
B. NWS’ have the duty to prevent transboundary harm.
1. NWS’ nuclear testing activities violate their duty to prevent
transboundary harm.
The no-harm principle, as embodied in many international instruments76
and upheld by ICJ decisions in cases such as the Trail Smelter arbitration77
, Corfu
Channel78
, and Nuclear Tests Cases79
prohibits States from conducting activities
within their territories without due regard to the rights of other States or for the
protection of the environment. A State which is responsible for the administration
of territory is under an obligation not to bring about changes in the conditions of
74
S. Firth, Nuclear Playground, Honolulu, University of Hawai‘I Press (1987); B. and M.-T. Danielsson, Poisoned
Reign: French Nuclear Colonialism in the Pacific, Hardmondsworth (Penguin Books, 1986); M.D. Merlin and R.M.
Gonzales, ―Environmental Impacts of Nuclear Testing in Remote Oceania, 1946-1996,‖ in McNeill and Unger
(eds.), Environmental Histories, at 167-202.
75
Radioactive Heaven and Earth, International Physicians for the Prevention of Nuclear War, (Apex Press. New
York 1991).
76
Stockholm Declaration (1972), Principle 21, UN Doc A/CONF.48/14/Rev1, 11 ILM 1416; Rio Declaration
(1992) A/CONF.151/26 (Vol. I); Draft Articles on the Prevention of Transboundary Harm from Hazardous
Activities, 12 December 2001, GA Res. 56/82, UN Doc. A/RES/56/82, Art. 2(a); see also United Nations
Convention on the Law of the Non-Navigational Uses of International Watercourses, 21 May 1997, 36 ILM 700,
Art. 7(1).
77
U.S. and Canada (1938/1941) 3 R.I.A.A. 1905.
78
Assessment of Compensation, (United Kingdom v. Albania) 15 XII 49, ICJ, December 15, 1949.
79
Nuclear Tests (Australia v. France; New Zealand v. France), Order of 22 June 1973, I. C. J. Reports 1973, § 106
and 142.
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the territory which will cause irreparable damage to, or substantially prejudice,
the existing or contingent legal interest of another State.80
A nuclear winter, which occurs after a detonation of nuclear weapons, can
affect noncombatant countries and threaten the world population by the effects of
global climate.81
Scientific estimates also show that a regional war between India
and Pakistan will dramatically damage Europe, the US, and other regions through
global ozone loss and climate change.82
Due to the nature of nuclear weapons, its
effects can never be contained and it will always bring changes in the territory of
others thus affecting their interests that are protected under international law.
Also, implicit under this doctrine is the denial of the existence of a
sovereign ―right‖ to engage in or allow activities having harmful transboundary
effects.83
Thus, NWS can never use their sovereignty as a defense.
2. The transboundary harm by using these weapons is sufficiently
significant to constitute a departure from the obligation of states.
The International Law Commission has recognized the threshold as
―significant‖ and emphasized that the harm must lead to a real detrimental effect
on matters such as human health, industry, property, environment or agriculture in
80
Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, Judgment, I. C. J. Reports
1992, § 243–244.
81
C. Sagan, Foreign Affairs. 62, 257 (983/84).
82
Id.
83
Ved Nanda and George (Rock) Pring, International Environmental Law & Policy for the 21st Century, 2nd
Revised Edition (Martinus Nijhoff Publishers 2012) § 23.
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other States.84
To be legally relevant, damage should at least be ―greater than the
mere nuisance or insignificant harm which is normally tolerated.85
In the case of nuclear weapons, the scientific community is one in saying
that it can bring serious irreversible harm not only to humanity but to the
environment as well.86
Having the ability to bring changes across border, the
extent and intensity of harm these nuclear weapons bring is significant enough to
permit no other conclusion than that its use constitute a departure from the
obligation of States not to cause transboundary harm.
C. Even mere possession of nuclear weapons violates the prevention
principle.
1. The duty to prevent irreversible damage is a customary norm.
The prevention principle as a customary principle, which binds all
states, highlights the obligation to prevent damage to the environment. The
ICJ established the customary nature of this principle in its Advisory opinion
on the Legality of Nuclear Weapons and subsequently in the Gabčíkovo-
Nagymaros Project case, affirming that ―in the field of environmental
84
Report of the International Law Commission, U.N. GAOR, 56th Sess., Supp. No. 10, at 150-151, UN Doc.
A/56/10 (2001) [56th ILC Report].
85
supra note 17.
86
Steven Sarr, Consequences of Nuclear Weapons; O. B. Toon , A. Robock, & R. Turco, The Environmental
Consequences of Nuclear War, 61 Physics Today, (2008) § 37-42; Samuel Glasstone & Philip J. Dolan, Effects of
Nuclear Weapons (3rd
ed.) (United States Department of Defense and the Energy Research and Development
Administration 1977).
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protection, vigilance and prevention are required on account of the often
irreversible character of damage to the environment.‖87
2. Possession even without the use of nuclear weapons violates the
obligation to prevent harm.
Possession of nuclear weapons even without actually using them is
still harmful. This is shown in nuclear weapon production where facilities
have already polluted vast amounts of soil and water.88
The substances
obtaining from these things are carcinogenic and mutagenic and remain
hazardous for hundreds of thousands of years. Disposal of nuclear wastes
and its safe containment continue to be a big problem considering there are
currently no technologies that can clean up radiation.89
And this is currently
confronting States such as the United States and Germany.
These events establish that actual harm comes not only by using but
even its mere possession. Therefore, not possessing these weapons and
disarming them complies with the obligation to prevent the irreversible
damage.
VII. THE PROHIBITION ON THE USE AND POSSESSION OF NUCLEAR
WEAPONS HAS RIPENED INTO A CUSTOMARY NORM.
A. There is evidence of state practice.
87
Gabčíkovo-Nagymaros Project (Hungary v. Slovakia), Judgment, ICJ Reports (1997) § 7.
88
What‟s the damage? Greenpeace International (2006)
<http://www.greenpeace.org/international/en/campaigns/peace/abolish-nuclear-weapons/the-damage/.> (last
accessed April 30, 2017).
89
Ibid.
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1. Multilateral Treaties
Treaties can be evidence of customary international law.90
This is
so even if the treaty has not received enough ratifications to come into
force.91
Various regional and multilateral treaties have been created to
address the obligation of states toward nuclear disarmament. Showing a
widespread and consistent state practice.
To pursue a nuclear free world, various states intend on forming
nuclear weapon-free zones [NWFZ]. Examples include the Treaty of
Tlatelolco in Latin America, Treaty of Pelindaba in Africa, Treaty of
Semey / Semipalatinsk in Central Asia, Bangkok Treaty in Southeast Asia,
and Rarotonga Treaty in South Pacific.92
These treaties prohibit nuclear
weapons within the zone, including the production, testing, receipt,
stationing, storage or use of nuclear weapons.
Similarly, there is a customary prohibition against nuclear testing
which was manifested by multilateral treaties like Partial Test Ban Treaty
(1963), the implicit prohibition under the Non-proliferation Treaty, the
prohibitions under Nuclear Weapons-Free Zones Treaties, and the
Comprehensive Test Ban Treaty (1996).93
Furthermore, the customary
prohibition on nuclear testing was manifested when the nuclear testing by
90
M.E. Villiger, Customary International Law and Treaties, A Study of their Interactions and Interrelations with
Special Consideration of the 1969 Vienna Convention on the Law of Treaties (Martinus Nijhoff Publishers 1985). 91
supra note 16 at 131.
92
John Borrie et al., A Prohibition on Nuclear Weapons, ILPI/UNIDIR, Feb. 2016, at 15.
93
supra note at 2.
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Democratic People‘s Republic of Korea in 2006, 2009 and 2013 met with
strong condemnation.94
2. State Pronouncements and Practices
In the 2000 Review Conference of the Parties to the Treaty on the
Non-Proliferation of Nuclear Weapons, the letter presented by the
representatives of the recognized NWS, speaks of their “unequivocal
commitment to the ultimate goals of the complete elimination of nuclear
weapons and a treaty on general and complete disarmament”95
Moreover, the 2000 Review Conference of NPT agreed on
―Principles and Objectives for Nuclear Non-Proliferation and
Disarmament‖ thirteen [13] steps, which include a moratorium on nuclear
weapon tests explosions and an unequivocal undertaking by NWS toward
disarmament.96
As to state practices, South Africa has voluntarily destroyed its
nuclear arsenals in 1991 and joined the NPT as a NNWS. The letter of the
Permanent Representative of South Africa to the United Nations addressed
to the Chairman of the Disarmament Commission in 1993 acknowledged
94
supra note at 3.
95
2000 Review Conference of the Parties to the Treaty on the Non-proliferation of Nuclear Weapons, UNODA,
2000 Review Conference, Annex 1, at 2, ¶5, U.N. Doc. 00-41196 (E) (2000).
96
https://www.ipinst.org/wp-content/uploads/2010/04/pdfs_docchapt.pdf [2] [6].
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the existence of the “global disarmament obligations” of states.97
Also, in
the Prague Speech by former President Obama of the United States, he
condemned the nuclear testing done by North Korea in violation of
existing regimes and urged that “the path to security and respect will
never come through threats and illegal weapons”98
In the early 1990s, Argentina and Brazil abandoned their nuclear
programs and signed the NPT as a NNWS.99
The National Statement of
Brazil in the IV Nuclear Security Summit, referred to nuclear weapons as
―detrimental to the most elementary foundations of international
humanitarian law.‖100
Other states who abandoned nuclear weapon
programs include, Sweden and Switzerland.101
These state practices shows
the recognized illegality of the use of nuclear technology other than
peaceful for a peaceful purpose.
3. UN General Assembly Resolutions
In the 497th
plenary meeting of the United Nations General
Assembly, ―the total prohibition of the use and manufacture of nuclear
97
Disarmament Comm. 1993 Substantive Sess. A/CN.10/181 available at <https://disarmament-
library.un.org/UNODA/Library.nsf/0bb8a163b66d627f85256beb0073f596/7490a91d282813b18525786b0053e5f9/$
FILE/A-CN10-181.pdf>.
98
Barrack Obama, The Prague Speech, Address at the Hradcany Square, Prague, Czech Republic (April 5, 2009)
(transcript available in https://obamawhitehouse.archives.gov).
99
Robert Norris and Thomas Cochran, Nuclear Weapon: Other Countries, Encyclopedia Britannica, (2017)
available at <https://www.britannica.com/technology/nuclear-weapon/Other-countries>.
100
Message from the President of the Federative Republic of Brazil, Dilma Rousseff, for the IV Nuclear Security
Summit (2016), available at <http://www.nss2016.org/document-center-docs/2016/4/1/national-statement-brazil>.
101
Carey Sublette, Section 7.0 Nuclear Weapon Nations and Arsenals Nuclear Weapons Frequently Asked
Questions (2001) available at <http://nuclearweaponarchive.org/Nwfaq/Nfaq7-4.html>.
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weapons and weapons of mass destruction of every type,‖ was adopted
unanimously as one of the three points of a coordinated programme of
disarmament102
The prohibition in the resolution was then later on cited on
the preambular portion of the Treaty of Tlatelolco.
Also, The United Nations General Assembly passed a resolution in
1961 declaring that the use of nuclear weapons was illegal.103
Fifty-five
states (consisting mainly of communist and Third World countries) voted
in favor of the resolution, twenty states (consisting mainly of Western
countries) voted against, and twenty-six states (consisting mainly of Latin
American countries) abstained.104
This shows that the sentiment of nuclear
weapons being illegal was not new, especially today where even the Latin
America is a Nuclear Weapons-free Zone, and most states support nuclear
disarmament.
B. State practice is coupled with opinio juris
In the case of nuclear disarmament and prohibition, such recognition of
the obligatory character of nuclear disarmament has been expressly acknowledged
in Nuclear Weapons-Free Zones Treaties such as the Treaty of Pelindaba, Treaty
of Semipalatinsk, and the Treaty of Rarotonga. These treaties both recognize the
102
G.A. Res. 808 (IX). Regulation, limitation and balanced reduction of all armed forces and all armaments: report
of the disarmament commission; conclusion of an international convention (treaty) on the reduction of armaments
and the prohibition of atomic, hydrogen and other weapons of mass destruction, 497th
Plenn. Meeting, 1954.
103
G.A. Res. 1653 (XVI), 24 November 1961, UNYb 1961, 30–1.
104
supra note 16 at 346.
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common end of a complete nuclear disarmament and also the positive obligation
of states to contribute to such end.
VIII. REVISITING THE NUCLEAR DISARMAMENT REGIME
A. The NPT has gaps which prevents its effective enforcement.
There is a broad consensus among scholars that the NPT has either failed or is on
the verge of failure.105
There are several reasons:
First, it lacks a universal, non-discriminatory verification and treatment. Nations,
particularly India, never complied with the treaty because of the lack of fairness for
already nuclear nations to impose limiting sanctions on nuclear weapon development
while they observe no signs of disarmament and liquidation of nuclear stockpiles from
NWS.106
Second, its lacks safeguards for transparency. The International Atomic Energy
Agency (IAEA) is the body which acts as a nuclear inspectorate and verifies whether
states are obeying the terms of the treaty.107
However, it is the Additional Protocol that
grants the IAEA extensive access to a country‘s nuclear program and allows a
comprehensive and thorough inspection. But since it relies upon the consent of member
states, it becomes difficult for the IAEA to definitively confirm that a nuclear weapons
105
Salra Bano, ―Is the NPT Irrelevant?‖ International Policy Digest (2014)
<https://intpolicydigest.org/2014/11/29/is-the-npt-irrelevant/>.
106
Donish Khan, Nuclear Non Proliferation Treaty, (Stanford University 2012).
107
Samuel Kane, Preventing Nuclear Terrorism: Nuclear Security, The Nonproliferation Regime, and the Threat of
Terrorist Nukes (2012) § 32.
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state‘s nuclear materials are being properly managed, or that a non-nuclear weapons
state‘s civilian program is not actually being used for non-peaceful purposes.
Third, the NPT does not contain a standardized framework for dealing with
violators, as a result, the treaty faces difficulties in dissuading non-compliance, and in
building consensus among signatories regarding how to impose compliance.108
Lastly, the
treaty itself allows discretionary withdrawal of its members ―if it decides that
extraordinary events…have jeopardized its supreme interests.‖109
This provision only
makes exploitation possible and thus places the whole nuclear regime at stake.
IX. MOVING FORWARD
A. Codifying the norm of the obligation for complete nuclear disarmament
The ICJ in one case110
stated that the States‘ consent to and attitude towards the
text of a resolution evidence opinio juris. The UNGA, in a resolution which enjoyed
favor among 123 states called for a world free of nuclear weapons.111
It adopted another
resolution to advance a legally binding instrument to prohibit nuclear weapons which also
gained consistent predominant acceptance from NNWS and nuclear-reliant countries
alike. Indeed, in these instances, the endorsement by a number of these countries
indicates that nuclear disarmament has become a norm under international law. And the
108
ibid at 33.
109
ibid.
110
Military and Paramilitary Activities (Nicaragua/United States of America) Merits. J. 27.6.1986 I.C.J. Reports
(1986) § 99-101.
111
UNGA, General and complete disarmament: taking forward multilateral nuclear disarmament negotiations,
Seventy-first session First Committee, A/C.1/71/L.41(2016).
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near-universal participation by States implies that there is a widespread acceptance for its
codification.112
The NPT though binding on nuclear-weapon States still proves to be inefficient
and ineffective in achieving its goal of disarmament because of the inherent weakness in
its provisions. Thus, a new and comprehensive treaty reflecting customary international
law on nuclear prohibition is vital. With government support for a nuclear weapons
convention to outlaw and eliminate nuclear weapons having grown considerably,113
achieving this end is not impossible.
X. ALSO, SUSTAINABLE DEVELOPMENT CAN BE ACHIEVED IF STATES
COMPLY WITH THEIR OBLIGATION TO DISARM.
The principle of Sustainable Development is defined as a ―development that meets
the needs of the present without compromising the ability of future generations to meet their
own needs”. 114
This principle is established in international law.115
According to Judge
Weeremantry,116
whether in the field of multilateral treaties,117
international declarations118
112
Julia Choe, “Problems of Enforcement,‖ Harvard International Review, (2007) (last accessed May 1, 2017). 113
Towards a Treaty Banning Nuclear Weapons: A Guide to Government Positions on a Nuclear Weapons
Convention, International Campaign to Abolish Nuclear Weapons (ICAN) (2012) § 2.
114
G.A. Res., U.N. GAOR, Report of the World Commission on Environment and Development, 96th
Plenary
Meeting, UN Doc A/Res/42/187(1987).
115
see Foundation for International Environmental Law and Development, ―Report of the Consultation on
Sustainable Development: The Challenge to International Law 3 (1994); see also Rio Declaration Principle 27. 116
Separate opinion of Judge Weeremantry in Gabcikovo-Nagymaros Project (Hung. v. Slovk.) 1997 I.C.J. 7
(September 25) § 90.
117
For example, the United Nations Convention to Combat Desertification (The United Nations Convention to
Combat Desertification in those Countries Experiencing Serious Droughts and or Desertification, Particularly in
Africa), Preamble, Art. 9 (1) (1994); the United Nations Framework Convention on Climate Change, 1992 (ILM.
1992, Vol. XXXI, at 849. Arts. 2 and 3); and the Convention on Biological Diversity (ILM, 1992. Vol. XXXI, at
818, Preamble, Arts. I and 10 - "sustainable use of biodiversity").
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or State practice, 119
there is a wide and general acceptance of the concept. In the present
case, possession and use of nuclear weapons totally runs counter to achieving the goal of
sustainable development. With the increase in the number of countries possessing weapons
and are planning to develop one, tensions also develop making nuclear conflict more
likely.120
Thus, it is only logical to conclude that States can only fulfill this obligation by
disarming to eliminate any risk that comes along with the possession of these harmful
weapons.
Warfare is inherently destructive of sustainable development. States shall therefore
respect international law providing protection for humanity and the environment in times of
armed conflict and cooperate in its further development.121
1. Apart from the obligations established under the principle of Sustainable
Development, NWS must also act in accordance with the Principle of
Intergenerational Equity.
118
For example, the Rio Declaration on Environment and Development, 1992, emphasizes sustainable development
in several of its Principles (e.g., Principles 4, 5, 7, 8, 9, 20, 21, 22. 24 and 27 refer expressly to "sustainable
development" which can be described as the central concept of the entire document); and the Copenhagen
Declaration, 1995 (paras. 6 and 8). following on the Copenhagen World Summit for Social Development, 1995.
119
For example, in 1990. the Dublin Declaration by the European Council on the Environmental
Imperative stated that there must be an acceleration of effort to ensure that economic development in the
Community is "sustainable and environmentally sound" (Bulletin of' the European Communities, 6, 1990, Ann. II.
p.18). It urged the Community and Member States to play a major role to assist developing countries in their efforts
to achieve "long-term sustainable development" It said, in regard to countries of Central and Eastern Europe, that
remedial measures must be taken "to ensure that their future economic development is sustainable" (ibid.). It also
expressly recited that :
"As Heads of State or Government of the European Community, . . . [w]e intend that action by the
Community and its Member States will be developed . . . on the principles of sustainable development and
preventive and precautionary action." (Ibid., Conclusions of the Presidency. Point 1.36, pp. 17-18.)
120
O. B. Toon , A. Robock, and R. Turco, The Environmental Consequences of Nuclear War, 61 Physics Today
(2008) §42.
121
Principle 24 Rio Declaration
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Closely connected with the principle of Sustainable development is the principle of
Intergenerational Equity (IE). It is an equitable principle that all generations are partners
for caring and using the earth. It places the obligation on the present generation to
conserve and maintain the present resources by minimizing long-term and irreversible
damage to the environment through conservation.122
Its development as a customary
norm was further demonstrated by the ICJ in the Case Concerning the Gabcikovo-
Nagymaros Project and in the Case Concerning Pulp Mills on the River Uruguay.
Exposure to nuclear and chemical contamination can last for generations.123
The
effects stay with the victim for years and even decades to come or enter the genetic chain
and affect later generations. To secure the present and future generations and to comply
with its obligations, all States must therefore disarm and eliminate all nuclear armaments.
122
Tina Hunter, Equality for the Earth- The Role of Intergenerational Equity and Customary International Law, 17
The National Legal Eagle Art.6 (2011) § 20.
123
supra note 42 § 88.
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XI. CONCLUSION AND PRAYER
There has been unanimous recognition by states of the destructiveness and far
reaching implications of nuclear weapons, yet there is a lack of codified regimes and
jurisprudence concerning the issue. For several years, the NPT comprises the bulk of the
nuclear non-proliferation and disarmament regime. Despite its inherent weakness, it
embodies binding obligations of states that needs to be complied with under the context
of international law such as the obligation to pursue negotiations in good faith towards
total disarmament, and the limited use of nuclear energy for peaceful purposes.
Consistently, other relevant treaties and conventions affirm the view that the use
of nuclear weapons is not sanctioned by international law. This includes the UN Charter,
Rio Declaration, Sustainable Development Goals (SDGs), International Convention on
Civil and Political Rights (ICCPR), and the Universal Declaration of Human Rights
(UDHR). Nevertheless, there is a customary norm against the possession and use of
nuclear weapons as reflected in the uniform state practices and recognition of the positive
obligation of states toward disarmament. It also runs counter to the rudimentary
obligations and principles of international humanitarian law, and environmental law.
Thus, there is a necessity to codify the existing customary norm against the use
and possession of nuclear weapons, consistent with the recognized end of nuclear
disarmament. This would not only comply with state obligations that were already
existing but also reflect the unanimous sentiment of the community of nations vis-à-vis
the principles of international law. Further, the it would determine the responsibilities,
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obligations and liabilities of states that would be vital for existing jurisprudence and as a
guiding principle for future actions that are yet to be taken.
In consideration of the weight of the dangers and indiscriminate effects of the use
of nuclear weapons that lasts for ages, and the shift of the political dynamics of the
international arena, the significance of the policy of deterrence pales into comparison.
It is then our prayer that this Honorable Court lay down and determine the
responsibility of states so as to ensure compliance of the states‘ obligation and the extent
of their liability for its failure to act with regard to the climate crisis for the benefit of
ours and that of the future generations.