Disarmament Obligations Research Articles

China and the international debate on no first use of nuclear weapons

ABSTRACT China is the only nuclear-armed country in the world that has an unconditional No First Use (NFU) of nuclear weapons policy. China’s practice of this policy and its impact on international security have important implications for the international debate around NFU and inform other countries’ potential consideration of NFU. Whether NFU policy could deliver the expected benefits of reducing the role of nuclear weapons, containing nuclear arms competition, and mitigating the risk of nuclear proliferation depends on the perceived credibility by other countries of such policy. This paper examines a number of internal challenges that may affect the perceived credibility of China’s NFU policy. One of them is Chinese military strategists’ expressed interest in threatening nuclear use in a conventional conflict under certain conditions through the so-called “lower the nuclear coercion threshold” operation. The others include the lack of institutional constraint in the Chinese system to ensure implementation of NFU and the growing ambiguities about the NFU policy’s applicability in specific scenarios as a result of new technological development. The paper offers recommendations on how China can address these challenges and work with other countries to create the conditions for the international adoption of NFU, including how to address the concerns of nonnuclear weapons states about the conventional-level security consequences. It concludes by discussing how China and the other nuclear-armed states can better fulfill their disarmament obligations by strengthening the existing NFU policy and promoting credible NFU policy more broadly.

Norm Exemption in States’ NPT Nuclear Disarmament Obligations

The Nuclear Nonproliferation Treaty (NPT) is highly appreciated for its ability to stop further nuclear proliferation in the world. Since its existence, this treaty has been said to be successful in preventing potential states from possessing weapons of mass destruction. At least, there are more than 40 states who have the capability to develop their own nuclear programmes, although such programmes are restrained from coming to fruition. However, this successful story has not taken place in the area of nuclear disarmament. None of its nuclear weapon-owning members seem to proceed with realising a full disarmament aim. This raises the question of why the NPT is unable to achieve success in the field of nuclear disarmament as it has in the field of nuclear non-proliferation. The NPT does not only contain the idea of nuclear non-proliferation, but also the idea of nuclear disarmament. In understanding this question, using a political psychology approach, this study finds that nuclear-weapon states face the so-called moral dilemma between the desire to achieve national interests and the desire to fulfil social demands required by the international norm. By taking advantage of the shortcomings in the NPT narrative as well as relevant world situations, these states attempt to be exempted from dismantling nuclear weapons under their possession.

The Binding Force of the Nuclear Disarmament Obligation upon North Korea and Its Legal Implication under International Law

Article VI of the 1968 Nuclear Non-Proliferation Treaty (NPT) requires all state parties to disarm nuclear weapon. Following its official withdrawal from NPT in 2003, North Korea maintains to develop its nuclear weapon and conducts several nuclear tests. Moreover, it even proudly declared as a nuclear state in its Constitution's preamble. It also argues that the nuclear weapon developments and tests were conducted within their territory and, currently, North Korea is not bound by any treaty prohibiting such developments and tests. The statement is strongly opposed by the international community, particularly their neighboring states: Japan and South Korea. This article argues that the obligation to disarm nuclear weapon deriving from the NPT still binds North Korea since such obligation has reached the status of customary international law and consequently binds every state unless such state persistently objects the rule from the beginning of its formation. In this case, North Korea has failed to prove itself as a persistent objector due to the fact it used to be a party to the NPT. This article also argues that, according to 2001 ILC Articles, Japan and South Korea still have a proper legal basis to claim for reparation against North Korea despite the fact that they are not specifically affected by North Korea’s conducts.

Правові аспекти роззброєння України відповідно до Конвенції про заборону протипіхотних мін

Автор досліджує суспільні відносини у сфері роззброєння, зокрема протимінної діяльності в сучасних умовах, а також аналізує результати Оглядової конференції з питань розмінування, що відбулася 25–29 листопада 2019 року в Осло. У статті розкрито зміст прийнятих Плану дій Осло та Проекту декларації Осло про світ, вільний від мін. Відзначено причини невиконання Україною статті 5 Оттавської конвенції. Висвітлено оцінки критеріїв здатності України до проведення розмінування.
 Обґрунтовується зміна змісту виконання міжнародних зобов’язань України із роззброєння до 2014 року, що зумовило сьогодні перегляд правових підходів до забезпечення розмінування. Відзначається, що сфера протимінної діяльності становить самостійний предмет правового регулювання, а також достатність підстав для прийняття окремого закону та подальшого розвитку законодавства у цій сфері.
 Метою статті є наукове обґрунтування та визначення правових аспектів роззброєння України, зокрема у сфері протимінної діяльності, шляхом висвітлення положень Конвенції про заборону застосування, накопичення запасів, виробництва і передачі протипіхотних мін та про їхнє знищення 1997 року, а також аналізу стану її виконання Україною у контексті постановки завдань розвитку національного законодавства з означених питань.
 Наукова новизна дослідження полягає у представленні автором обґрунтованих результатів та висновків самостійного дослідження стану виконання Україною міжнародних зобов’язань за Оттавською конвенцією, використання яких у законотворчій практиці сприятиме забезпеченню створення адекватного правового регулювання протимінної діяльності на національному рівні, з урахуванням притаманних лише Україні особливостей.
 Висновки. Перед Україною постали нові виклики законодавчого оновлення регулювання роззброєння як в цілому, так і з урахуванням фактору воєнної агресії з боку РФ, що триває з 2014 року. На загальному рівні перспективним вбачається розвиток досліджень стану виконання міжнародних зобов’язань із роззброєння з огляду на необхідність забезпечення захисту державного суверенітету. Констатовано відсутність національного стратегічного плану щодо протимінної діяльності, консолідації національної інформаційної системи протимінної діяльності, гендерної політики у цій сфері та відповідних програм, точної інформації щодо площі і місць знаходження протипіхотних мін та звітів про це. Україна поки не встала на шлях реалізації положень Оттавської конвенції.

Is the NPT Still Relevant? – How to Progress the NPT’s Disarmament Provisions

ABSTRACTThe Nuclear Non-Proliferation Treaty is the cornerstone of the global non-proliferation regime. However, the question is the NPT still relevant? may suggest that the importance of NPT has been forgotten. Indeed, lack of progress in nuclear disarmament has led some critics to question the value of the NPT. While frustration at the failure of the nuclear-weapon states to meet their NPT disarmament obligations is understandable, political attacks on the NPT itself are extremely short-sighted. Non-proliferation and nuclear disarmament are inextricably linked, there will be no disarmament if there is no confidence in non-proliferation, and weakening the non-proliferation regime is in no-one’s interest. The absence of disarmament efforts has prompted the negotiation of the Treaty on the Prohibition of Nuclear Weapons. This treaty has reinvigorated discussion on nuclear disarmament, but its impact is uncertain. Disarmament requires a collaborative approach between the nuclear-armed states and the non-nuclear-weapon states. A major diplomatic effort is needed on these issues: all states need to be more aware of the security benefits they derive from the NPT; and the nuclear-armed states must make a serious commitment to reducing the risks of nuclear weapons and pursuing disarmament, not only to meet NPT commitments but because disarmament is in their own interest.

The World Court's Jurisdictional Formalism and its Lost Market Share: TheMarshall IslandsDecisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes

AbstractOn 5 October 2016, the International Court of Justice (ICJ, the Court) rendered three judgments declining to take jurisdiction in theMarshall Islandscases, in which that state alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the Treaty on the Non-Proliferation of Nuclear Weapons and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated inGeorgiav.Russiaand confirmed in bothBelgiumv.Senegaland theAlleged Violations (Nicaraguav.Colombia)judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court's judgments within the context of the law of state responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court's formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The article then turns to the broader implications of these decisions for state responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, state responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the article highlights the importance of identifying creative solutions in a post-Marshall Islandsworld, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

The Nuclear Disarmament Cases: Is Formalistic Rigour in Establishing Jurisdiction Impeding Access to Justice?

<p class="p1">Nuclear disarmament falls within the purview of the purposes envisaged in Article 1 of the United Nations Charter. The International Court of Justice (ICJ) in 1996 delivered an advisory opinion on legality of use of nuclear weapons and has stated that the states in good faith must strive towards nuclear disarmament. In the <em>Marshall Islands Cases</em>, 20 years later the ICJ had the opportunity to address questions relating to cessation of the nuclear arms race and nuclear disarmament. However, the ICJ has failed to foster nuclear disarmament within the international community. The ICJ dismissed Marshall Islands’ application on jurisdictional grounds because there was no legal dispute between the parties. The ICJ in determining the existence of a dispute introduced a subjective <em>awareness</em> test. In this case note, we aim to examine the awareness test and its politico-legal effects in the development of international law. While doing so, we also argue that the test has further rendered the enforcement of nuclear disarmament obligations arduous.

The World Court's Jurisdictional Formalism and Its Lost Market Share: The Marshall Islands Decisions and the Quest for a Suitable Dispute Settlement Forum for Multilateral Disputes

On 5 October 2016, the International Court of Justice rendered three judgments declining to take jurisdiction in the Marshall Islands cases, in which that State alleged that India, Pakistan, and the United Kingdom violated their nuclear disarmament obligations under the NPT Treaty and customary international law. In declining to take jurisdiction, the Court further confirmed its recent shift to jurisdictional formalism, initiated in Georgia v Russia and confirmed in both Belgium v Senegal and its Alleged Violations judgment. What is more, the Court heightened the burden of proving the existence of a dispute by incorporating an ‘objective awareness’ requirement in its analysis. The present contribution critically situates the Court’s judgments within the context of the law of State responsibility and global security, with particular emphasis on the broader implications going forward. It first explores the principal features of the Court’s formalistic shift on jurisdictional matters in the cases, setting the stage for the subsequent discussion. The paper then turns to the broader implications of these decisions for State responsibility, taking into consideration that the ‘disputes’ submitted to the Court are not strictly bilateral in nature. My ambition is also to highlight the nexus between jurisdictional issues, State responsibility law, and broader questions of access to justice in multilateral disputes. By way of conclusion, the paper highlights the importance of identifying creative solutions in a post-Marshall Islands world, suggesting the UN General Assembly as a law-making facilitator and the UN Security Council as an alternate – albeit imperfect – dispute settlement forum to tackle multilateral disputes with global security implications.

TOWARDS FULFILLMENT OF FUNDAMENTAL RULES OF HUMANITARIAN LAW IN THE CONTEXT OF THE NUCLEAR NON-PROLIFERATION TREATY

The Non-Proliferation Treaty (NPT) is an international treaty that should be implemented during both peace and wartime. However, the obligations included in the treaty are dependent upon states' attitudes regarding other issues. Non-use of nuclear weapons is directly related to negotiations done for the purpose of non-proliferation of nuclear weapons, non-production or accumulation by other means and disarmament. In our day, prevention of the proliferation of nuclear weapons has been one of the issues of international law. The present study is of crucial significance due to its endeavor to clarify the general principles of Humanitarian Law in a relationship to the threat of nuclear weapons' up to now, a special norm; significantly limiting or completely prohibiting the use of nuclear weapons, has not been accepted in international law. However, customary international humanitarian law regarding the use of nuclear weapons holds great value because of its purpose in eliminating nuclear weapons as a means of war through ascertaining their non-use and also appeasing the importance of nuclear ascendancy. In this respect, the NPT regime and its relationship with international humanitarian law will be discussed. Firstly, the NPT background, formation, main objectives and principles will be analyzed. In order to evaluate the relationship between the NPT and humanitarian law, the humanitarian obligations in general, humanitarian obligations in the context of the NPT and fulfillmen t of these obligations under the NPT should be studied. One of the main parts of the study is nuclear disarmament obligation included in the NPT. In this section, nuclear disarmament obligation in the context of the NPT and the legal framework of possible, general and comprehensive disarmament will be examined.

Deception and Britain’s road to war in Iraq

Abstract Ever since the 2003 invasion of Iraq, there has been a widely shared public perception in the United Kingdom and beyond that the British government lied in making the case for war. One major theme has been the view that the Blair government lied about the strength of the intelligence about alleged Iraqi weapons of mass destruction (WMD) and the extent of the WMD capabilities claimed by that intelligence. A second theme that has received less attention has been the view that the Blair government lied in claiming that its actions at the United Nations (UN) were aimed at securing peaceful Iraqi compliance with its disarmament obligations. Instead, most think that the United Kingdom was actually committed to a policy of regime change by force and did not want the ‘UN route’ to produce a peaceful outcome. The article argues that the conceptual focus of the discussion needs to be broadened from lying to also considering deception by omission and deception by distortion as part of a campaign of organized political persuasion. It argues that, on the WMD intelligence, it is now apparent that a campaign of deceptive organized political persuasion was conducted by UK officials. With respect to the UN route, there is mounting evidence that the Blair government ran a campaign of deception on this issue as well in order to pave Britain’s road to war in Iraq.

The Humanitarian Impacts of Nuclear Weapons: an Imperative for Achieving Disarmament

Moral arguments have been a driving force for public movements advocating nuclear disarmament since people first learned of the massive levels of death, destruction, suffering and long-term impacts caused by the atomic bombs used in 1945 on Hiroshima and Nagasaki. Humanitarian-based arguments have been employed for over 150 years in diplomatic initiatives to question military justifications and get legal agreements to prohibit and eliminate certain kinds of weapons and practices deemed inhumane. In the past few years these two approaches have begun to come together in a potentially game-changing strategy aimed at achieving a universally applicable international treaty to ban the use, deployment, production, acquisition, transferring and stockpiling of nuclear weapons and require their total elimination. Such a treaty would not replace the existing 1968 Non-Proliferation Treaty (NPT), but build on it in three important ways. First, a global, non-discriminatory nuclear ban regime would reinforce the non-proliferation and disarmament obligations in Articles I, II and VI of the NPT, which are widely regarded as insufficiently spelled out and implemented

Nuclear Powers' Disarmament Obligation under the Treaty on the Non-Proliferation of Nuclear Weapons and the Comprehensive Nuclear Test Ban Treaty: Interactions between Soft Law and Hard Law

AbstractThe Comprehensive Nuclear Test Ban Treaty (CTBT) will not be effective until all the 44 states listed in its Annex 2 ratify it. A special link has been established between the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and the CTBT. The disarmament obligation set by Article VI of the NPT, which has not yet been complied with, remains highly controversial. The relevant subsequent practice of the states parties to the NPT shows that the ratification of the CTBT is to be considered the first of the practical steps towards compliance with Article VI. However, as the practical steps do not set any legally binding norms, there is no legal obligation to ratify the CTBT, not even for the 44 states listed in Annex 2 whose ratification is essential. The paper deals with the position of nuclear powers party to the NPT that have not yet ratified the CTBT (most prominently the US and China) and demonstrates that these states should at least provide detailed motivation for their conduct. Otherwise, other states parties to the NPT could consider them as not complying in good faith with Article VI of the NPT and invoke theinadimplenti non est ademplendumrule to justify breaches of their own obligations under the same treaty.

Towards a Nuclear-Weapon-Free World: How Can the World Resolve the Disharmony Between the UNSC and UNGA?

Global momentum towards a "Nuclear-Weapon-Free World" (NWFW) has been growing since the end of the Cold War. Nevertheless, in the international community, it is still difficult to discern a unified voice about how to approach a NWFW, utilising international law. This is possibly because of ongoing disagreement between nuclear weapon States (NWS) and non-nuclear weapon States (NNWS), particularly the non-aligned countries. The issue revolves around the understanding of the Nuclear Non-Proliferation Treaty (NPT), especially art 6 of that treaty which sets out the contracting parties' nuclear disarmament obligations. Reflecting the discord between the NWS and NNWS, this article sheds light on the gap between the United Nations Security Council (UNSC) and the United Nations General Assembly (UNGA)'s perceptions of, and actions taken towards, the realisation of a NWFW. The article calls for the minimisation of disharmony by reinvestigating the roles of the United Nations system and the NPT in establishing a NWFW, and through observing the UNGA's current position.

Em nome da autonomia e do desenvolvimento: Brasil e a não-proliferação, o desarmamento e os usos pacíficos da energia nuclear

The objective is to examine the positions adopted by Brazil on nuclear non-proliferation, disarmament and peaceful uses of nuclear energy in the beginning of this century. The central argument indicates that Brazil aims to pressure the nuclear-weapon states to fulfill their disarmament obligations, while seeks to preserve autonomy to develop peaceful nuclear activities.

THE BRAZILIAN WAY

This article examines the positions held by Brazil under the administration of Luiz Inácio Lula da Silva (2003–present) on nuclear nonproliferation, arms control, and disarmament regimes and on contentious issues in those areas. Under Lula's government, Brazil has wanted to mediate between nuclear weapon and non-nuclear weapon states to consolidate its position as a strong negotiator and to benefit from the possible gains of this position in terms of greater participation in international institutions. It has also wanted to pressure nuclear weapon states to fulfill their disarmament obligations in order to reduce asymmetries in its relations with powerful nuclear weapon countries. At the same time, Brazil has tried to preserve its autonomy and flexibility to protect commercial secrets and preserve national security in relation to its own nuclear program.

Iraq, 1990-2006: a diplomatic history through documents

Volume 1 Introduction 1. Prelude: U.S.-Iraqi relations prior to the Gulf War 2. August 1, 1990 to January 16, 1991: Iraq invades Kuwait 3. January 16, 1991 to February 27, 1991: the Gulf War 4. March 1-20, 1991: a failed uprising in the south 5. April 3, 1991 to August 22, 1995: Iraq fails to comply with U.N. Security Council resolutions, mobilizes troops 6. November 10, 1995 to October 24, 1997: the U.N. and Iraq agree on terms for 'oil-for-food' program, Iraq gestures toward compliance with sanctions 7. October 29 to December 22, 1997: Iraq and U.N. engage one another over limits of access for weapons inspectors 8. January 12 to December 15, 1998: United Nations weapons inspectors leave Iraq 9. December 16-23, 1998: U.S. and U.K. mount 70-hour aerial assault on Iraqi military targets 10. January 1999 to August 2001: Saddam and the U.N. at a stalemate. Volume 2 Introduction 1. September 11-December 17, 2001: the September 11 attacks and their immediate aftermath 2. January 23-August 21, 2002: Bush administration redirects focus of 'war on terrorism' towards Iraq 3. August 26-October 10, 2002: 'the danger to our country is grave ...': the Bush administration presses Congress to authorize use of force in Iraq 4. October 10-November 7, 2002: Congress authorizes use of force, U.S. intensifies diplomatic efforts at the United Nations 5. November 8-December 18, 2002: United Nations Security Council Resolution 1441 affords Iraq a 'final opportunity' to comply with disarmament obligations 6. December 19, 2002-February 4, 2003: the U.S. declares Iraq to be in 'material breach' of U.N. Security Council Resolution 1441, France and Germany lead opposition to military action as divisions among NATO allies sharpen 7. February 5-March 5, 2003: Secretary of State Powell brings the case against Saddam Hussein to the U.N. Security Council 8. March 6-19, 2003: the U.S. and U.K. put forth, then withdraw, a draft U.N. Security Council resolution authorizing war, Bush issues a 48-hour ultimatum. Volume 3 Introduction 1. March 19-May 2, 2003: war: U.S. and U.K. forces enter Iraq, remove Saddam Hussein from power 2. May 1-August 15, 2003: Bush announces end to 'major combat operations' coalition provisional authority assumes control 3. August 19-December 11, 2003: bombing of United Nations headquarters kills special envoy, attacks by insurgents intensify 4. December 14, 2003-June 27, 2004: Saddam Hussein captured 5. June 28, 2004-January 29, 2005: Iraq regains sovereignty 6. January 20, 2005-December 13, 2005: Iraqis hold national elections 7. December 15, 2005-April 30, 2006: bombing in Samarra escalates sectarian violence, Iraqi Interim Government cedes power to National Unity Government.

The World vs. Kim Jong-il: The Legal Case Against a Nuclear-Armed North Korea

This paper focuses on the international legal issues surrounding the alleged nuclear-weapon program of the Democratic People's Republic of Korea, or North Korea. The DPRK has withdrawn from the Treaty on the Non-Proliferation of Nuclear Weapons, the first country to do so, and apparently is proceeding with the development of nuclear weapons. The regional Six-Party Talks, discussing North Korea's nuclear disarmament, have been unproductive. The international community, led by the United States, is verging on more coercive, even punitive, action. Before legally taking those actions, a case probably will be presented to a world forum that North Korea has violated international law. The relevant issues involve the right to withdraw from the NPT, the continued relevance of the 1994 U.S.-DPRK Agreed Framework, legal structures established by the United Nations and United States to control the spread of weapons of mass destruction, and the UN Security Council's general powers to preserve international peace. The case against North Korea has strengths, but so does North Korea's legal defense, including allegations that the nuclear non-proliferation regime is inconsistently applied and that the nuclear powers have failed to comply with their disarmament obligations. At issue is not merely the DPRK's nuclear-weapon program but the continued significance of the current non-proliferation system.

Managing biological disarmament: the UK experience

The UK committed itself to biological disarmament under the 1972 Biological Weapons Convention (BWC). Disarmament is not, however, something achieved at a specific point in time; it is a process of constant management of an obligation undertaken. Since 1975, when biological disarmament took effect, implementation of the Convention has altered to address the dynamic nature of threats, changes in political circumstances, and scientific and technological developments. In this article the approach of the UK to the BWC is studied to provide one lens on how a state implements and manages its biological disarmament obligation. Through an examination of the international, regional, and national policies adopted by the UK a process of continuous oversight is identified to deal with external threats from states, internal threats from terrorists, and the coordination of policy with many actors to maintain an effective biological disarmament architecture. Copyright , Beech Tree Publishing.

Can the NPT Survive? The Theory and Practice of US Nuclear Non-proliferation Policy after September 11

This article examines the prospects for survival of the Nuclear Non-Proliferation Treaty in the post-9/11 world, arguing that American non-proliferation policy and the future of the NPT are inextricably linked. It discusses the shift from the Clinton administration's nuclear arms control and disarmament agenda of the mid-1990s to the Bush administration's preference for informal arms control regimes and the new policy of non-proliferation exceptionalism that distinguishes between good proliferators (India, Pakistan) and bad proliferators (North Korea, Iran). The Bush administration's penchant for unilateral foreign security policies and its double standards in implementing export restrictions on sensitive technologies while disavowing American nuclear disarmament obligations undermine the NPT bargain and endanger the treaty. The Bush administration's security-oriented strategy and acceptance of selective proliferation for balance of power purposes may lead to the emergence of a silent crowd armed with nuclear weapon capabilities. The key to preserving the relevance of the NPT is to reconnect nuclear non-proliferation with nuclear disarmament, while strengthening the treaty's enforcement machinery against non-compliers.

KEEPING THE NPT TOGETHER

The Nonproliferation Review (NPR) recently interviewed Ambassador Sergio de Queiroz Duarte of Brazil, who presided over the 2005 Seventh Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Ambassador Duarte discussed his views on the outcome of the conference and the future of the treaty. He provided NPR with valuable insights into the outcome of the conference and also shared his thoughts on some of the most pressing issues confronting the NPT today, including the Middle East, nuclear terrorism, elimination of the threat of highly enriched uranium in the civilian nuclear sector, proposals to limit access to the nuclear fuel cycle, nuclear disarmament, and negative security assurances. Blaming the failed conference on a general lack of political commitment among states parties and their unwillingness to negotiate common solutions, Ambassador Duarte stressed that “the conference should face squarely its own failure without my attempting to disguise or sugarcoat the deep differences of view, which must be resolved with courage and determination by the states parties if they want the treaty to remain effective.” He emphasized that if states fail to act on their overriding interest in upholding the NPT, especially if states parties continue to ignore or disregard their nonproliferation and nuclear disarmament obligations, some states might come to believe that their security interests are no longer served by the treaty. The future prospects of the NPT would then “look dire indeed.”