The Nuclear Non-Proliferation Treaty and the Rule of Law

March 2000

Weapons of mass or indiscriminate destruction are now the object of a planetary taboo rooted in the conscience of humankind and articulated through binding law. As the International Court of Justice (ICJ), the judicial branch of the United Nations, affirmed in its 1996 advisory opinion on nuclear weapons, under humanitarian law governing the conduct of warfare states "must never use weapons that are incapable of distinguishing between civilian and military targets" (emphasis added). The Court held the threat or use of nuclear weapons to be generally illegal under humanitarian and other law.

The possession of biological weapons, chemical weapons, and landmines is prohibited by global treaties to which most states are parties (the Biological Weapons Convention, the Chemical Weapons Convention, and the Ottawa Mine Ban Treaty).

The possession of nuclear weapons for all but a handful of states is prohibited by the Nuclear Non-Proliferation Treaty (NPT). Those few states possessing nuclear weapons are under a legal obligation, set forth in Article VI of the NPT, 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". As authoritatively interpreted by the ICJ, this obligation requires states "to bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control." Also important is the sometimes overlooked phrase "cessation of the arms race at an early date", e.g. ending the development of modified or new design nuclear weapons.

The NPT aimed to stop the spread of nuclear weapons by brokering a deal between the Nuclear Weapon States (NWS) and the Non-Nuclear Weapon States (NNWS). The NWS pledged to negotiate nuclear disarmament, while the NNWS pledged not to acquire nuclear weapons. As an incentive, the NNWS were promised assistance with research, production and use of nuclear energy for peaceful purposes "without discrimination". Each NNWS also agreed to accept "safeguards" under the auspices of the International Atomic Energy Agency. These safeguards do not apply to the NWS. The treaty defined a NWS as one which had manufactured and exploded a nuclear weapon or other nuclear explosive device prior to January 1, 1967, thus effectively limiting membership in the exclusive "nuclear club" to the U.S., the Soviet Union (and its successor state, Russia), the United Kingdom, France and China.

The NPT was signed in 1968 and entered into force in 1970. Its initial duration was 25 years. In 1995 it was extended indefinitely, with a review conference to be held every five years. Nearly every country in the world -- 187 in all -- is a party to the NPT, with three very notable exceptions: India, Israel and Pakistan, each of which possesses nuclear weapons. However, under the ICJ opinion the obligation to negotiate elimination of nuclear arsenals applies to those states as well as the NPT NWS.

In the "Principles and Objectives adopted as part of the extension decision in 1995, the NPT disarmament obligation was reaffirmed and given some content. The document called for negotiation of a Comprehensive Test Ban Treaty by 1996, "immediate commencement and early conclusion of negotiation" of a ban on production of fissile materials for nuclear weapons use, and "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, and by all States of general and complete disarmament under strict and effective international control."

Since 1995, support for compliance with the NPT disarmament obligation has been expressed in forums of every kind and at every level, from organizations to professional associations to networks to towns to cities to national parliaments to the European Parliament to the United Nations.

In a 1999 resolution following up on the ICJ opinion, the United Nations General Assembly, by an overwhelming majority, called for "all States to immediately fulfill [the nuclear disarmament obligation affirmed by the ICJ] by commencing multilateral negotiations in 2000 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".

In another 1999 resolution sponsored by the New Agenda Coalition, also passed by an overwhelming majority, the General Assembly called upon "the Nuclear-Weapon States to make an unequivocal undertaking to accomplish the speedy and total elimination of their nuclear arsenals and to engage without delay in an accelerated process of negotiations, thus achieving nuclear disarmament, to which they are committed under article VI of the NPT".

Citizens' direct actions in support of nuclear disarmament since the ICJ opinion was delivered in 1996 have increased in number and some court have recognized the legality of such actions. In October 1999, a Scottish judge dismissed a prosecution of women who had caused damage to the research infrastructure for the UK's nuclear-armed submarine program, relying in part on the ICJ opinion. In June 1999, a jury in the United States, relying on international law including the ICJ opinion, found activists who had blocked traffic into a nuclear-armed submarine base not guilty.

Despite the Principles and Objectives, the ICJ opinion, the General Assembly resolutions, and support for disarmament expressed by civil society and governments throughout the world, the NWS have failed to comply with the NPT disarmament obligation since 1995. There are no formal multilateral negotiations on nuclear disarmament of any kind underway. Most NWS refuse the formation of a committee to undertake multilateral negotiations on nuclear disarmament on in the Conference on Disarmament in Geneva. There has been no progress in bilateral reductions between the United States and Russia, and no formal bilateral negotiations exist. The last US-Russian arms reduction agreement, START II, was negotiated during the Bush Administration, and is yet to enter into force or be implemented. While the Comprehensive Test Ban Treaty was adopted in 1996, India and Pakistan subsequently conducted nuclear test detonations, and the US Senate rejected ratification of the treaty in 1999. Programs for the expansion of experimental and computing capabilities to replace underground testing demonstrate a commitment to indefinite maintenance of nuclear arsenals and to further design and development. Given the clarity of the NPT as interpreted by the ICJ and by states party to the NPT, this lack of compliance is nothing less than the defiance of the rule of law in international affairs - an ideal to which all states say they are committed.

- March 2000

Relevant Texts

1. Treaty on the Non-Proliferation of Nuclear Weapons, entered into force March 5, 1970, Article VI:

"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control."

2. International Court of Justice, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, July 8, 1996:

"There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control." Para. 105(2)(F).

"The legal import of [the NPT Article VI] 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." Para. 99.

"States must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets". Para. 78 (emphasis added). This "cardinal" rule of humanitarian law is "fundamental" and "intransgressible". Paras. 78, 79.

"[T]he threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law. However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitely whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defense, in which the very survival of a State would be at stake." Para. 105(2)(E).

3. United Nations General Assembly resolutions:

Follow-up to the advisory opinion of the International Court Justice, res. 54/54 Q (1 December 1999, yes 114, no 28, abstain 22): "2. Calls once again upon all States to immediately fulfill [the nuclear disarmament obligation affirmed by the ICJ] by commencing multilateral negotiations in 2000 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."

Towards a nuclear-weapon-free world: the need for a new agenda, res. 54/54 G (1 December 1999, yes 111, no 13, abstain 39): "1. Calls upon the Nuclear-Weapon States to make an unequivocal undertaking to accomplish the speedy and total elimination of their nuclear arsenals and to engage without delay in an accelerated process of negotiations, thus achieving nuclear disarmament, to which they are committed under article VI of the NPT."

Declaration on the Prohibition of the Use of Nuclear and Thermonuclear Weapons, res. 1653 (1961, yes 55, no 20, abstain 26): Use of nuclear weapons is "contrary to the spirit, letter and aims of the United Nations and, as such, a direct violation of the Charter of the United Nations," "contrary to the rules of international law and to the laws of humanity," and "a crime against mankind and civilization".