John Burroughs, Lawyers Committee on Nuclear Policy

NUCLEAR WEAPONS AND INTERNATIONAL LAW 2020

NEW YORK STATE BAR ASSOCIATION

NOVEMBER 12, 2020

REMARKS OF DR. JOHN BURROUGHS

SENIOR ANALYST, LAWYERS COMMITTEE ON NUCLEAR POLICY

I appreciate the remarks of UN Under-Secretary-General Izumi Nakamitsu and Allison Pytlak of Reaching Critical Will/WILPF. And I want to acknowledge that UN Secretary-General António Guterres has been vocal on the subject of nuclear weapons. Recently in welcoming the entry into force of the Treaty on the Prohibition of Nuclear Weapons he reaffirmed that nuclear disarmament is the highest disarmament priority of the United Nations. His predecessors – Ban Ki-Moon and Kofi Annan – were similarly outspoken.

I will take as my starting point the 1996 nuclear weapons advisory opinion of the judicial branch of the United Nations – the International Court of Justice, the highest court in the world on general questions of international law. The opinion resulted from a major collaborative effort between states – mostly from the Non-Aligned Movement, a very large group of mostly Global South states – and civil society in the form of the World Court Project, a coalition of over 700 groups. I’ll address two strands of the Court’s opinion, the first regarding use of nuclear arms, the second regarding the disarmament obligation.

The legality of use of nuclear weapons has been considered by the United Nations General Assembly since 1961, when the body adopted resolution 1653 by a divided vote. The resolution declared that such use “is contrary to the rules of international law and to the laws of humanity.” But the General Assembly’s 1994 resolution requesting the International Court of Justice to render an advisory opinion on the matter set in motion an entirely different, extraordinary process. The General Assembly asked the Court to opine on the following question: “Is the threat or use of nuclear weapons in any circumstance permitted under international law?”

Over two weeks of dramatic hearings in November 1995, 22 states made oral arguments. Another 23 made written submissions only. Altogether, 45 states participated, the largest number to do so in International Court of Justice proceedings to that date.

In its opinion released in July 1996, early on the Court acknowledged “the unique characteristics of nuclear weapons, and in particular their destructive capacity, their capacity to cause untold human suffering, and their ability to cause damage to generations to come.” In a key passage, the Court observes that the “overriding consideration of humanity” is at the “heart” of the law of armed conflict. It goes on to state that under that law:

methods and means of warfare, which would preclude any distinction between civilian and military targets, or which would result in unnecessary suffering to combatants, are prohibited. In view of the unique characteristics of nuclear weapons, … the use of such weapons in fact seems scarcely reconcilable with respect for such requirements.

The Court accordingly found that the threat or use of nuclear arms is “generally” contrary to international humanitarian law. However, the Court declined to assess the legality of use of low-yield nuclear weapons in remote areas and of use of nuclear arms in reprisal against a nuclear attack or when a state’s survival is endangered. While the Court’s opinion thus was not definitive, it is also fair to say that the thrust of its reasoning was toward illegality in all circumstances.

This strand of the Court’s opinion has reemerged in developments since then. Notably, in the final document of the 2010 NPT Review, the “Conference expresses its deep concern at the catastrophic humanitarian consequences of any use of nuclear weapons and reaffirms the need for all States at all times to comply with applicable international law, including international humanitarian law.”

The TPNW, negotiated in 2017, was animated by a recognition of the unacceptable consequences of use of nuclear weapons. An operative provision prohibits any threat or use of nuclear weapons by a state party. And the treaty’s preamble recites rules and principles of international humanitarian law applicable, as it notes, to all states, and “considers” that “any” use of nuclear weapons violates that law. The view taken in the TPNW thus goes beyond the ICJ’s finding of general illegality and rules out use in all circumstances. At a minimum, the TPNW is an important contribution to the ongoing process of delegitimizing nuclear weapons.

Then in 2018, the UN Human Rights Committee adopted General Comment 36, which addresses a wide range of issues relating to the right to life set out in Article 6 of the International Covenant on Civil and Political Rights. The Committee’s finding regarding nuclear weapons is powerful and unambiguous: “The threat or use of weapons of mass destruction, in particular nuclear weapons, which are indiscriminate in effect and are of a nature to cause destruction of human life on a catastrophic scale, is incompatible with respect for the right to life and may amount to a crime under international law.”

Despite these developments, in the two-plus decades since the International Court of Justice rendered its opinion, nuclear-armed states have done little to reduce the role of nuclear weapons in their security postures, let alone acknowledge that their use is incompatible with the law of armed conflict. On the positive side, nuclear weapons have not been detonated in war, and non-nuclear weapon states and civil society are exposing the contradiction between reliance on nuclear arms and what the Court called “elementary considerations of humanity” with renewed energy.

There is a second strand to the Court’s opinion, just as important or possibly more important than the first strand. It concerns a question which the Court was not asked, the nature of the disarmament obligation set forth in Article VI of the Non-Proliferation Treaty and other international law. Article VI requires the pursuit of negotiations in good faith on effective measures relating to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control. Based on its analysis, the Court unanimously concluded: “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.”

The Court’s construction of Article VI clarifies that negotiation of an instrument or instruments eliminating nuclear arms would advance the objective of general and complete disarmament in the same way that the conventions on biological and chemical weapons advance that objective. The Court also explained that the obligation is one of result, nuclear disarmament, as well as conduct, good-faith negotiations. Essentially the same approach to interpretation of Article VI was taken by the 2000 NPT Review Conference when it adopted an “unequivocal undertaking by the nuclear weapon States to accomplish the total elimination of their nuclear arsenals”.

Also important is that while the Court did not explicitly say so, its reasoning strongly implies that the obligation is universal, extending to those nuclear-armed states not party to the NPT, India, Israel, North Korea, and Pakistan.

Let me make a point that the lawyers participating in this conference will appreciate. The reference to good faith contained in Article VI of the NPT and the Court’s formulation of the disarmament obligation is not rhetoric; it is a legal requirement with concrete implications. Not only is there an obligation to commence negotiations; they must be conducted in good faith. That requires among other things making the negotiations meaningful, showing willingness to compromise, avoiding delay, and generally negotiating with a genuine intent to achieve a positive result.

In an annual resolution following up on the ICJ opinion first adopted in 1996, the General Assembly called for all states to negotiate a comprehensive convention providing for elimination of nuclear weapons. The Chemical Weapons Convention would have provided a starting point for such negotiations. The US, UK, France and Russia showed no interest. The TPNW, championed by non-nuclear weapons states, was a response to this stalemate. It provides a framework, but not detailed provisions, for an elimination process.

Another initiative was the nuclear disarmament cases brought in the International Court of Justice by the Marshall Islands in 2014. They focused on the failure of the nine nuclear-armed states to comply with the disarmament obligation as stated by the Court. However, the cases were dismissed on procedural grounds. You will hear more about this initiative from Laurie Ashton this afternoon.

I will close with the observation that the advisory opinion came at a high point of multilateral disarmament diplomacy. The Chemical Weapons Convention had been negotiated; the NPT had been indefinitely extended; and negotiation of a Comprehensive Nuclear Test Ban Treaty was nearly complete. Since then, efforts toward consolidating a multilateral nuclear disarmament regime have been stymied. The test ban treaty has not been brought into force, due in part to US failure to ratify. No multilateral negotiations with the participation of nuclear-armed states relating to control and elimination of nuclear weapons have taken place. Nuclear-armed states are planning for maintenance and upgrading of their arsenals for decades to come.

Despite all this, I believe that there will be a return to disarmament diplomacy. That’s because there is no avoiding that nuclear weapons pose a threat to every nation and person on earth and control and elimination of the weapons is necessary to ending that threat.