Conference on International Law and Nuclear Weapons
Hosted by New York State Bar Association, International Section
I want to personally thank the International Law Section of the State Bar of New York and my colleagues who organized today’s event, Ed Lenci, Charles Moxley, and John Burroughs and Carra Forgea for their hard work.
Good faith adherence to solemnly made and formally adopted international agreements, treaties, is necessary for global security. Confidence in such legal instruments is the foundation of the rule of law. Without the rule of law the quest for power always results in systemic injustice. And by rule of law we mean the orderly, transparent, accountable application of equity and justice in both domestic and international affairs. Advancing these principles is part of the DNA the American Bar Association and part of the international advocacy agenda one of today’s sponsoring organizations, its International Law Section, as well as the Global Security Institute, which focuses specifically on the issue of the rule of law as applied to nuclear weapons.
In that regard let me remind the many lawyers here today of the most ancient of legal maxims. Pacta Sunt Servanda, Latin for “Agreements Must Be Kept.” Without its good faith application, the tools of law—words and agreements—become empty and entire social edifices collapse. International stability, good governance and development at every level, including addressing poverty and protecting financial systems, as well as the natural environment and security environment depend on this principle.
When words amongst nations, when promises become empty, bullets become verbs. And the bullets of nuclear weapons must never be permitted to fly.
That is why this conference is so important. Understanding the relationship between law and nuclear weapons may not be appreciated in our popular or political culture as essential for a sustainable future, but it is.
How the most powerful behave is copied by others and thus American lawyers have a special responsibility to ensure that our nation exemplifies the conduct we want others to follow. We must make sure our nation leads in fulfilling promises made, particularly those with existential impact on the survival of humanity, particularly agreements made regarding nuclear weapons. The alternative to ignoring the law is not acceptable.
Today we will gain tools necessary to be effective advocates for our most important clients, future generations.
Appendix A. Commitments Made Pursuant to Nuclear Nonproliferation Treaty
1995 NPT Commitments
Source: Randy Rydell, “Looking Back: The 1995 Nuclear Nonproliferation Treaty Review and Extension Conference” Arms Control Association. 2005.https://www.armscontrol.org/act/2005-04/looking-back-1995-nuclear-nonproliferation-treaty-review-extension-conference
Original Source: Decisions and Resolutions Adopted at the 1995 NPT Review and Extension Conference, 1995 NPT Review Conference, https://media.nti.org/pdfs/npt95rc.pdf
Decision 1—Strengthening the Review Process
This decision provided for five-year review conferences, each preceded by three sessions of a PrepCom.These conferences would have three main committees, which could have “subsidiary bodies” on specific issues. It also clarified that in the future the review process would examine “principles, objectives, and ways,” including those in Decision 2, and would “look forward as well as back.” As Canadian Ambassador Christopher Westdal put it, the goal was “permanence with accountability.”
Decision 2—Principles and Objectives
The second decision set forth some “principles and objectives” for assessing progress in the following areas: universality; nonproliferation; disarmament; nuclear-weapon-free zones; security assurances; safeguards; and the peaceful uses of nuclear energy.
For example, the decision laid out a “program of action” for disarmament, including the CTBT, a fissile materials treaty, and the “determined pursuit” by the nuclear-weapon states of “systematic and progressive efforts” to reduce nuclear arsenals. It called for “further steps” to assure non-nuclear-weapon states-parties against the threat of nuclear attack. It anticipated today’s worries over the proliferation risks of advanced fuel cycles by clarifying that the treaty’s “inalienable right” to peaceful uses of nuclear energy must be applied “in conformity with Articles I, II as well as III of the [t]reaty.”It also expanded support for the principle that new nuclear “supply arrangements” should require full-scope IAEA safeguards “as a necessary precondition” (i.e., safeguards over all nuclear materials of the importing, non-nuclear-weapon state). India and Pakistan—both NPT nonparties—have been seeking to avoid this precondition.
Decision 3—Indefinite Extension
The crucial third decision was based on a simple declaratory statement that, “as majority exists” among the parties to extend the treaty indefinitely, the treaty shall continue in force indefinitely. The decision’s preamble contained language “emphasizing” the other decisions, which further affirmed the linkages in the package deal.
Resolution on the Middle East
The last key component of the package deal was the Resolution on the Middle East, which, inter alia, endorsed the creation of a Middle Eastern “zone free of nuclear weapons as well as other weapons of mass destruction,” (WMD) including “their delivery systems.” The NPT’s indefinite extension without a vote would not have been possible without addressing this issue—a long-standing goal of the Arab states and many other parties.
13 Practical Steps from the 2000 NPT Review Conference
Source: “U.S. Implementation of the “13 Practical Steps on Nonproliferation and Disarmament” Agreed to at the 2000 NPT Review Conference.” Arms Control Association.April 4, 2000. https://www.armscontrol.org/pressroom/2002-04/us-implementation-13-practical-steps-nonproliferation-disarmament-agreed-2000-npt
- Comprehensive Nuclear Test Ban Treaty
The importance and urgency of signature and ratification, without delay and without conditions and in accordance with constitutional processes, to achieve the early entry into force of the Comprehensive Nuclear Test Ban Treaty.
- Nuclear Test Moratorium
A moratorium on nuclear weapon test explosions or any other nuclear explosions pending entry into force of that Treaty.
- Fissile Material Cutoff Treaty
The necessity of negotiations in the Conference on Disarmament on a non-discriminatory, multilateral and internationally and effectively verifiable treaty banning the production of fissile material for nuclear weapons or other nuclear explosive devices in accordance with the statement of the Special Coordinator in 1995 and the mandate contained therein, taking into consideration both nuclear disarmament and nuclear non-proliferation objectives. The Conference on Disarmament is urged to agree on a programme of work, which includes the immediate commencement of negotiations on such a treaty with a view to their conclusion within five years.
- Nuclear Disarmament Discussions
The necessity of establishing in the Conference on Disarmament an appropriate subsidiary body with a mandate to deal with nuclear disarmament. The Conference on Disarmament is urged to agree on a programme of work which includes the immediate establishment of such a body.
- Irreversibility of Nuclear Reductions
The principle of irreversibility to apply to nuclear disarmament, nuclear and other related arms control and reduction measures.
- Elimination of Nuclear Arsenals
An unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals leading to nuclear disarmament to which all States parties are committed under Article VI.
- The START II, START III, and ABM Treaties
The early entry into force and full implementation of START II and the conclusion of START III as soon as possible while preserving and strengthening the ABM Treaty as a cornerstone of strategic stability and as a basis for further reductions of strategic offensive weapons, in accordance with its provisions.
- Securing Excess Nuclear Material
The completion and implementation of the Trilateral Initiative between the United States of America, the Russian Federation and the International Atomic Energy Agency.
- Other Nuclear-Weapon States’ Actions
Steps by all the nuclear-weapon States leading to nuclear disarmament in a way that promotes international stability, and based on the principle of undiminished security for all:
– Further efforts by the nuclear-weapon States to reduce their nuclear arsenals unilaterally
– Increased transparency by the nuclear-weapon States with regard to the nuclear weapons capabilities and the implementation of agreements pursuant to Article VI and as a voluntary confidence-building measure to support further progress on nuclear disarmament
– The further reduction of non-strategic nuclear weapons, based on unilateral initiatives and as an integral part of the nuclear arms reduction and disarmament process
– Concrete agreed measures to further reduce the operational status of nuclear weapons systems
– A diminishing role for nuclear weapons in security policies to minimize the risk that these weapons ever be used and to facilitate the process of their total elimination
– The engagement as soon as appropriate of all the nuclear-weapon States in the process leading to the total elimination of their nuclear weapons
- Excess Fissile Material
Arrangements by all nuclear-weapon States to place, as soon as practicable, fissile material designated by each of them as no longer required for military purposes under IAEA or other relevant international verification and arrangements for the disposition of such material for peaceful purposes, to ensure that such material remains permanently outside of military programmes.
- General and Complete Disarmament
Reaffirmation that the ultimate objective of the efforts of States in the disarmament process is general and complete disarmament under effective international control.
- Regular Reports on Disarmament Progress
Regular reports, within the framework of the NPT strengthened review process, by all States parties on the implementation of Article VI and paragraph 4 (c) of the 1995 Decision on “Principles and Objectives for Nuclear Non-Proliferation and Disarmament,” and recalling the Advisory Opinion of the International Court of Justice of 8 July 1996.
The further development of the verification capabilities that will be required to provide assurance of compliance with nuclear disarmament agreements for the achievement and maintenance of a nuclear-weapon-free world.
2010 NPT Review Conference
I. 2010 NPT Review Conference: Action Plans related to Nuclear Disarmament
Source: “ 2010 NPT Review Conference 64-point action plan” Shared on Canada’s MOFA website. https://www.international.gc.ca/world-monde/issues_development-enjeux_developpement/peace_security-paix_securite/action_plan-2010-plan_d_action.aspx?lang=eng. Original can be found here: Final Document of the 2010 NPT Review Conference (Parts I and II) (NPT/CONF.2010/50 (Vol. I)) pp. 19-29.
Action 1: All States parties commit to pursue policies that are fully compatible with the Treaty and the objective of achieving a world without nuclear weapons.
Action 2: All States parties commit to apply the principles of irreversibility, verifiability and transparency in relation to the implementation of their treaty obligations.
Action 3: In implementing the unequivocal undertaking by the nuclear-weapon States to accomplish the total elimination of their nuclear arsenals, the nuclear-weapon States commit to undertake further efforts to reduce and ultimately eliminate all types of nuclear weapons, deployed and non-deployed, including through unilateral, bilateral, regional and multilateral measures.
Action 4: The Russian Federation and the United States of America commit to seek the early entry into force and full implementation of the Treaty on Measures for the Further Reduction and Limitation of Strategic Offensive Arms and are encouraged to continue discussions on follow-on measures in order to achieve deeper reductions in their nuclear arsenals.
Action 5: The nuclear-weapon States commit to accelerate concrete progress on the steps leading to nuclear disarmament, contained in the Final Document of the 2000 Review Conference, in a way that promotes international stability, peace and undiminished and increased security. To that end, they are called upon to promptly engage with a view to, inter alia:
- (a) Rapidly moving towards an overall reduction in the global stockpile of all types of nuclear weapons, as identified in action 3;
- (b) Address the question of all nuclear weapons regardless of their type or their location as an integral part of the general nuclear disarmament process;
- (c) To further diminish the role and significance of nuclear weapons in all military and security concepts, doctrines and policies;
- (d) Discuss policies that could prevent the use of nuclear weapons and eventually lead to their elimination, lessen the danger of nuclear war and contribute to the non-proliferation and disarmament of nuclear weapons;
- (e) Consider the legitimate interest of non-nuclear-weapon States in further reducing the operational status of nuclear weapons systems in ways that promote international stability and security;
- (f) Reduce the risk of accidental use of nuclear weapons; and
- (g) Further enhance transparency and increase mutual confidence.
The nuclear-weapon States are called upon to report the above undertakings to the Preparatory Committee at 2014. The 2015 Review Conference will take stock and consider the next steps for the full implementation of article VI.
Action 6: All States agree that the Conference on Disarmament should immediately establish a subsidiary body to deal with nuclear disarmament, within the context of an agreed, comprehensive and balanced programme of work.
Action 7: All States agree that the Conference on Disarmament should, within the context of an agreed, comprehensive and balanced programme of work, immediately begin discussion of effective international arrangements to assure non-nuclear-weapon States against the use or threat of use of nuclear weapons, to discuss substantively, without limitation, with a view to elaborating recommendations dealing with all aspects of this issue, not excluding an internationally legally binding instrument. The Review Conference invites the Secretary-General of the United Nations to convene a high-level meeting in September 2010 in support of the work of the Conference on Disarmament.
Action 8: All nuclear-weapon States commit to fully respect their existing commitments with regard to security assurances. Those nuclear-weapon States that have not yet done so are encouraged to extend security assurances to non-nuclear-weapon States parties to the Treaty.
Action 9: The establishment of further nuclear-weapon-free zones, where appropriate, on the basis of arrangements freely arrived at among States of the region concerned, and in accordance with the 1999 Guidelines of the United Nations Disarmament Commission, is encouraged. All concerned States are encouraged to ratify the nuclear-weapon-free zone treaties and their relevant protocols, and to constructively consult and cooperate to bring about the entry into force of the relevant legally binding protocols of all such nuclear-weapon-free zones treaties, which include negative security assurances. The concerned States are encouraged to review any related reservations.
Action 10: All nuclear-weapon States undertake to ratify the Comprehensive Nuclear-Test-Ban Treaty with all expediency, noting that positive decisions by nuclear-weapon States would have the beneficial impact towards the ratification of that Treaty, and that nuclear-weapon States have the special responsibility to encourage Annex 2 countries, in particular those which have not acceded to the Treaty on the Non-Proliferation of Nuclear Weapons and continue to operate unsafeguarded nuclear facilities, to sign and ratify.
Action 11: Pending the entry into force of the Comprehensive Nuclear-Test-Ban Treaty, all States commit to refrain from nuclear-weapon test explosions or any other nuclear explosions, the use of new nuclear weapons technologies and from any action that would defeat the object and purpose of that Treaty, and all existing moratoriums on nuclear-weapon test explosions should be maintained.
Action 12: All States that have ratified the Comprehensive Nuclear-Test-Ban Treaty recognize the contribution of the conferences on facilitating the entry into force of that Treaty and of the measures adopted by consensus at the Sixth Conference on Facilitating the Entry into Force of the Comprehensive Nuclear-Test-Ban Treaty, held in September 2009, and commit to report at the 2011 Conference on progress made towards the urgent entry into force of that Treaty.
Action 13: All States that have ratified the Comprehensive Nuclear-Test-Ban Treaty undertake to promote the entry into force and implementation of that Treaty at the national, regional and global levels.
Action 14: The Preparatory Commission for the Comprehensive Nuclear-Test-Ban Treaty Organization is to be encouraged to fully develop the verification regime for the Comprehensive Nuclear-Test-Ban Treaty, including early completion and provisional operationalization of the international monitoring system in accordance with the mandate of the Preparatory Commission, which should, upon entry into force of that Treaty, serve as an effective, reliable, participatory and non-discriminatory verification system with global reach, and provide assurance of compliance with that Treaty.
Action 15: All States agree that the Conference on Disarmament should, within the context of an agreed, comprehensive and balanced programme of work, immediately begin negotiation of a treaty banning the production of fissile material for use in nuclear weapons or other nuclear explosive devices in accordance with the report of the Special Coordinator of 1995 (CD/1299) and the mandate contained therein. Also in this respect, the Review Conference invites the Secretary-General of the United Nations to convene a high-level meeting in September 2010 in support of the work of the Conference on Disarmament.
Action 16: The nuclear-weapon States are encouraged to commit to declare, as appropriate, to the International Atomic Energy Agency (IAEA) all fissile material designated by each of them as no longer required for military purposes and to place such material as soon as practicable under IAEA or other relevant international verification and arrangements for the disposition of such material for peaceful purposes, to ensure that such material remains permanently outside military programmes.
Action 17: In the context of action 16, all States are encouraged to support the development of appropriate legally binding verification arrangements, within the context of IAEA, to ensure the irreversible removal of fissile material designated by each nuclear-weapon State as no longer required for military purposes.
Action 18: All States that have not yet done so are encouraged to initiate a process towards the dismantling or conversion for peaceful uses of facilities for the production of fissile material for use in nuclear weapons or other nuclear explosive devices.
Action 19: All States agree on the importance of supporting cooperation among Governments, the United Nations, other international and regional organizations and civil society aimed at increasing confidence, improving transparency and developing efficient verification capabilities related to nuclear disarmament.
Action 20: States parties should submit regular reports, within the framework of the strengthened review process for the Treaty, on the implementation of the present action plan, as well as of article VI, paragraph 4 (c), of the 1995 decision entitled “Principles and objectives for nuclear non-proliferation and disarmament”, and the practical steps agreed to in the Final Document of the 2000 Review Conference, and recalling the advisory opinion of the International Court of Justice of 8 July 1996.
Action 21: As a confidence-building measure, all the nuclear-weapon States are encouraged to agree as soon as possible on a standard reporting form and to determine appropriate reporting intervals for the purpose of voluntarily providing standard information without prejudice to national security. The Secretary-General of the United Nations is invited to establish a publicly accessible repository, which shall include the information provided by the nuclear-weapon States.
Action 22: All States are encouraged to implement the recommendations contained in the report of the Secretary-General of the United Nations (A/57/124) regarding the United Nations study on disarmament and non-proliferation education, in order to advance the goals of the Treaty in support of achieving a world without nuclear weapons.
Appendix B. The International Court of Justice
1996 International Court of Justice Advisory Opinion
Source: Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, July 8, 1996, ICJ Rep. 1996, p. 226; available on http://www.icj-cij.org]
LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS
Advisory Opinion of 8 July 1996
The Court handed down its Advisory Opinion on the request made by the General Assembly of the United Nations on the question concerning the Legality of the Threat or Use of Nuclear Weapons. The final paragraph of the Opinion reads as follows:
“For these reasons,
(1) By thirteen votes to one,
Decides to comply with the request for an advisory opinion;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Guillaume, Shahabuddeen, Weeramantry, Ranjeva, Herczegh, Shi, Fleischhauer, Koroma, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judge Oda.
(2) Replies in the following manner to the question put by the General Assembly:
There is in neither customary nor conventional international law any specific authorization of the threat or use of nuclear weapons;
- By eleven votes to three,
There is in neither customary nor conventional international law any comprehensive and universal prohibition of the threat or use of nuclear weapons as such;
IN FAVOUR: President Bedjaoui; Vice-President Schwebel; Judges Oda, Guillaume, Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo, Higgins;
AGAINST: Judges Shahabuddeen, Weeramantry, Koroma.
A threat or use of force by means of nuclear weapons that is contrary to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the requirements of Article 51, is unlawful;
A threat or use of nuclear weapons should also be compatible with the requirements of the international law applicable in armed conflict particularly those of the principles and rules of international humanitarian law, as well as with specific obligations under treaties and other undertakings which expressly deal with nuclear weapons;
- By seven votes to seven, by the President’s casting vote,
It follows from the above-mentioned requirements that the 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 definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake;
IN FAVOUR: President Bedjaoui; Judges Ranjeva, Herczegh, Shi, Fleischhauer, Vereshchetin, Ferrari Bravo;
AGAINST: Vice-President Schwebel; Judges Oda, Guillaume, Shahabuddeen, Weeramantry, Koroma, Higgins.
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.” (emphasis added)