IN THE INTERNATIONAL COURT OF JUSTICEblog.hawaii.edu/elp/files/2018/02/Memorial-on... · Memorial on behalf of the NNWS 3 INDEX OF AUTHORITIES TREATIES AND CONVENTIONS Convention

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

1

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


2

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


3

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.


4

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


5

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).


6

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>


7

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.


8

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.


9

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).


10

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.


11

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.


12

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).


13

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.


14

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).


15

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.


16

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



17

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.


18

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).


19

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


20

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.


21

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



22

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).


23

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.


24

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).


25

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).


26

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.


27

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.


28

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.


29

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).


30

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.


31

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


92

John Borrie et al., A Prohibition on Nuclear Weapons, ILPI/UNIDIR, Feb. 2016, at 15.

93

supra note at 2.


32

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].


33

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>.


34

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



35

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.


36

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).


37

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").


38

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


39

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.


40

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,


41

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.

Documents

IN THE INTERNATIONAL COURT OF JUSTICEblog.hawaii.edu/elp/files/2018/02/Memorial-on... · Memorial on behalf of the NNWS 3 INDEX OF AUTHORITIES TREATIES AND CONVENTIONS Convention