|I.||Substantive International Law - First Part|
|1.||THE FOUNDATIONS OF INTERNATIONAL LAW|
Legality of the Threat or Use
of Nuclear Weapons
Advisory Opinion of 8 July 1996
I.C.J. Reports 1996, p. 226
[pp. 263-264] 98. Given the eminently difficult issues that arise in applying the law on the use of force and above all the law applicable in armed conflict to nuclear weapons, the Court considers that it now needs to examine one further aspect of the question before it, seen in a broader context.
In the long run, international law, and with it the stability of the
international order which it is intended to govern, are bound to suffer from the
continuing difference of views with regard to the legal status of weapons as
deadly as nuclear weapons. It is consequently important to put an end to this
state of affairs: the long-promised complete nuclear disarmament appears to be
the most appropriate means of achieving that result.
99. In these circumstances, the Court appreciates the full importance of the recognition by Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons of an obligation to negotiate in good faith a nuclear disarmament. This provision is worded as follows:
"Each of the Parties to the Treaty undertakes 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, and on a treaty on general and complete disarmament under strict and effective international control."
The legal import of that obligation goes beyond that of a mere obligation of conduct; the obligation involved here is 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.
[pp. 273-274 Decl. Bedjaoui] 23. As the Court has acknowledged, the obligation to negotiate in good faith for nuclear disarmament concerns the 182 or so States parties the Non-Proliferation Treaty. I think one can go beyond that conclusion and assert that there is in fact a twofold general obligation, opposable erga omnes, to negotiate in good faith and to achieve the desired result. Indeed, it is not unreasonable to think that, considering the at least formal unanimity in this field, this twofold obligation to negotiate in good faith and achieve the desired result has now, 50 years on, acquired a customary character. For the rest, I fully share the Court's opinion as to the legal scope of this obligation. I would merely stress once again the great importance of the goal to be attained, particularly in view of the uncertainties which still persist. The Court patently had to say this. Owing to the, by the nature of things, very close link between this question and the question of the legality or illegality of the threat or use of nuclear weapons, the Court cannot be reproached for having reached a finding ultra petita, a notion which in any event is alien to the advisory procedure.