Rules Of State Responsibility On Nuclear Disarmament
The law of state responsibility is concerned with the determination of whether a state has committed a wrongful act for which it is to be held responsible, what the legal consequences of it are and how such international responsibility may be implemented.[1]
The rules of state responsibility were drafted to determine liability and responsibility of state in case of an internationally wrongful act committed by it. These rules do not set forth particular obligations, instead they provide a guideline as to what steps must be taken if there is a breach of any obligation contained in a relevant treaty or customary law.
The first Article of the draft rules on Responsibility of States for Internationally Wrongful Acts 2001 states that every internationally wrongful act of any state entails international responsibility. The ‘internationally wrongful act’ is defined in Article 2, paragraph(b) of the same rules which states that the breach of an obligation, by which the state deems itself bound[2], constitutes an internationally wrongful act. A state is bound by every obligation incorporated in a treaty to which it is a party.[3] The relationship between the law of state responsibility and treaty law was taken into account in Rainbow Warrior Arbitration between France and New Zealand in 1990. The arbitration tribunal decided that remedies regarding breach of law relating to treaties were subjects of customary law of state responsibility.[4]
Obligations and Responsibilities of States Regarding Nuclear Disarmament in Contrast with Customary Law of State Responsibility
i. Treaty on Non-Proliferation of Nuclear Weapons
The pioneer law with regard to nuclear disarmament is the Nuclear Non-Proliferation Treaty of 5 March, 1970. Articles 1, 2, 3 and 6 of this Treaty set out strict obligations regarding nuclear disarmament and cessation of the nuclear arms race. The obligations set out under Article 1 and 2 of this Treaty include not receiving from any nuclear weapon state or transferring to any non-nuclear weapon state, any kind of nuclear explosive device or weapon or allowing control over nuclear weapons to any other state.[5] Moreover, the Treaty includes an obligation for non-nuclear weapon states to not manufacture any kind of nuclear weapons or explosive devices.[6] Article 3 imposes an obligation on every state to not provide any source or special fissionable material or equipment or material specially designed or prepared for the processing or production of special fissionable material.[7] Article 6, which is the crux of the nuclear disarmament debate, imposes on states the obligation to pursue negotiations on measures relating to nuclear disarmament and the cessation of the nuclear arms race.[8] There are 190 parties to this Treaty and all of them are bound to these obligations in light of Article 26 of the Vienna Convention on the Law of Treaties of 24 October, 1970. A breach of these obligations will entail responsibility under Articles 1, 2, 12 and 13 of the draft rules of Responsibility of States for Internationally Wrongful Acts 2001.
ii. Stance of the International Court of Justice
ICJ’s Advisory Opinion on the Legality of Threat or Use of Nuclear Weapons appreciated the full importance of the recognition by Article 6 of the Treaty of an obligation to negotiate nuclear disarmament in good faith.[9] In contrast to the customary law of state responsibility, ICJ states in its Advisory Opinion that the legal impact of this obligation (created under Article 6 of the Treaty) goes beyond that of a mere obligation of conduct – this obligation is to achieve a precise result i.e. nuclear disarmament in all its aspects.[10] Furthermore, the ICJ in its judgment in the Nuclear Tests Case (Australia v. France) emphasized on the fulfillment of this obligation in light of the law of state responsibility that one of the basic principles governing the creation and performance of legal obligations, whatever their source, was the principle of good faith.[11] In the court’s view, such an objective is undoubtedly of vital importance to the whole of the international community today.[12]
iii. Resolutions of the United Nations General Assembly and Security Council
The very first Resolution of the General Assembly passed in London on 24 January 1946 set up a commission to deal with the problem of uncontrolled use of atomic energy for weapons. Its terms of reference included ‘the elimination from national armaments of atomic weapons and of all other weapons adaptable to mass destruction.’[13] Another Resolution of the General Assembly in 1954 concluded with the undertaking to totally prohibit the use and manufacture of nuclear weapons and weapons of mass destruction of every type, together with the conversion of existing stocks of nuclear weapons for peaceful purposes.[14] The Security Council also urged all states to pursue negotiations in good faith on effective measures relating to nuclear disarmament, including a treaty regarding general and complete disarmament under strict and effective international control, which remains a universal goal as provided for in Article 6 of the Non-Proliferation Treaty.[15]
According to the debates of the ICJ and other organs of the United Nations, nuclear disarmament is one of the most important and alarming issues facing the world today. As discussed, since nuclear disarmament is an obligation of states in the international domain, its violation or non-fulfillment, which amounts to an internationally wrongful act, entails responsibility under Article 1 of the draft rules on Responsibility of States for Internationally Wrongful Acts as well as falls under the umbrella of customary law of obligations.
————
References:
[1] Akehurst, Modern Introduction to International Law (First Published in 1970 by HarperCollins, 7th Edition, Routledge 1997) 254.
[2] Responsibility of States for Internationally Wrongful Acts 2001, Art. 13.
[3] Vienna Convention on the Law of Treaties of 23 May 1969, Art. 26; Declaration on Friendly Relations between States [resolution 2625 (XXV) of 24 October 1970].
[4] Malcolm N. Shaw, International Law (First Published in 2008, 6th edition, Cambridge University Press) 779.
[5] Treaty on the Non-Proliferation of Nuclear Weapons, Art. 1 & 2.
[6] Id
[7] Treaty on the Non-Proliferation of Nuclear Weapons, Art. 3.
[8] Treaty on the Non-Proliferation of Nuclear Weapons, Art. 6.
[9] Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, I.C.J Reports 1996, p. 263 para. 99.
[10] Id
[11] Nuclear Tests (Australia v. France), Judgement, I.C.J. Reports 1974, p. 268 para. 46.
[12] Supra note 9.
[13] Establishment of Commission to deal with the Problems raised by Discovery of Atomic Energy, Resolution 1(1), 24 January 1946, para. 5(c).
[14] Regulation, Limitation and balanced reduction of armed forces and all armaments, Resolution 808 A (IX), 4 November 1954, para 1(b).
[15] Security assurances against the use of nuclear weapons to non-nuclear weapon states, Resolution 984, 11 April 1995, para. 8.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any other organization with which he might be associated.
