|I.||Substantive International Law - First Part|
|4.||SUBJECTS OF INTERNATIONAL LAW|
|4.2.5.||Fundamental Rights and Obligations|
|220.127.116.11.||Obligations of Cooperation and Negotiation|
Legality of the Threat or Use
of Nuclear Weapons
Advisory Opinion of 8 July 1996
I.C.J. Reports 1996, p. 226
[pp. 263-265] 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
100. This twofold obligation to pursue and to conclude negotiations formally concerns the 182 States parties to the Treaty on the Non-Proliferation of Nuclear Weapons, or, in other words, the vast majority of the international community.
Virtually the whole of this community appears moreover to have been involved when resolutions of the United Nations General Assembly concerning nuclear disarmament have repeatedly been unanimously adopted. Indeed, any realistic search for general and complete disarmament, especially nuclear disarmament, necessitates the co-operation of all States.
101. Even the very first General Assembly resolution, unanimously adopted on 24 January l946 at the London session, set up a commission whose terms of reference included making specific proposals for, among other things, "the elimination from national armaments of atomic weapons and of all other major weapons adaptable to mass destruction". In a large number of subsequent resolutions, the General Assembly has reaffirmed the need for nuclear disarmament. Thus, in resolution 808 A (IX) of 4 November l954, which was likewise unanimously adopted, it concluded
"that a further effort should be made to reach agreement on comprehensive and co-ordinate proposals to be embodied in a draft international disarmament convention providing for: .... (b) The total prohibition of 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."
The same conviction has been expressed outside the United Nations context in
102. The obligation expressed in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons includes its fulfillment in accordance with the basic principle of good faith. This basic principle is set forth in Article 2, paragraph 2, of the Charter. It was reflected in the Declaration on Friendly Relations between States (resolution 2625 (XXV) of 24 October 1970) and in the Final Act of the He1sinki Conference of 1 August 1975. It is also embodied in Article 26 of the Vienna Convention on the Law of Treaties of 23 May 1969, according to which "[e]very treaty in force is binding upon the parties to it and must be performed by them in good faith".
Nor has the Court omitted to draw attention to it, as follows:
"One of the basic principles governing the creation and performance of legal obligations, whatever their source, is the principle of good faith. Trust and confidence are inherent in international co-operation, in particular in an age when this co-operation in many Fields is becoming increasingly essentia1." (Nuclear Tests (Australia v. France), Judgment, I.C.J. Reports 1974, p. 268, para. 46.)
103. In its resolution 984 (1995) dated 11 Apri1 1995, the Security Council took care to reaffirm "the need for all States Parties to the Treaty on the Non-Proliferation of Nuclear Weapons to comply fu11y with all their obligations" and urged
"all States, as provided for in Article VI of the Treaty on the Non-Proliferation of Nuclear Weapons, to pursue 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 which remains a universal goal".
The importance of fulfilling the obligation expressed in article of the
Treaty on the Non-Proliferation of Nuclear Weapons was also reaffirmed in the
final document of the Review and Extension Conference of the parties to the
Treaty on the Non-Proliferation of Nuclear Weapons, held from 17 April to 12 May
In the view of the Court, it remains without any doubt an objective of vital importance to the whole of the international community today.