World Court Advisory Opinion (A/C.1/53/L.45)

Since the 52nd General Assembly there has been minimal progress in the reduction of risks from existing nuclear arsenals. While the UK has taken some dealerting steps, this has not been replicated by the other nuclear weapon states and over 5000 nuclear weapons remain on high alert. Policies of first-use of nuclear weapons, and for their indefinite possession, remain unaltered, and in some cases reaffirmed at the highest level. START II remains unratified. Research and testing of nuclear weapons by sophisticated methods, including sub-critical experiments and computer simulations, continue. In fact new research and development facilities are leading to capabilities for new "improved" weapons systems.

Nuclear testing in South Asia during the year has now burst the proliferation bottle, increasing the threat of weaponization and a nuclear exchange in that region, and making further proliferation more possible.

In this context, the need for progress towards nuclear disarmament becomes more urgent. As noted in the Report of the Canberra Commission, "the proposition that nuclear weapons can be retained in perpetuity and never used - accidentally or by decision - defies credibility. The only complete defence is the elimination of nuclear weapons and assurance that they will never be produced again."

"The international community must not enter the thrid millenium with the prospect that the maintenance of these weapons will be considered legitimate for the indefinite future, when the present juncture provides a unique opportunity to eradicate and prohibit them for all time."

Certain nuclear weapon states support a step-by-step approach to nuclear disarmament where-by the focus of negotiations is on the next step, currently the fissile material cut-off negotiations. Other states, including most non-aligned states, support the consideration of a phased program for complete nuclear disarmament within a specified framework of time.

Draft resolution L.45 takes a middle road between these extremes. It looks towards the final goal, the elimination of nuclear weapons through a nuclear weapons convention, but calls only for negotiations which will lead us down that road. Malaysia, which introduced the resolution, notes that "the road towards the total elimination of nuclear weapons will be a long and arduous one and would be best travelled through a series of well-defined stages, accompanied by proper verification and control mechanisms," and that "such an approach is, therefore, not imcompatible with the step-by-step, incremental approaches already mooted by others."

The resolution however suggests a certain way of travelling the step-by-step road. Certain nuclear weapon states appear to be travelling in a jalopy with a broken steering wheel, no idea of the final destination and no commitment to reaching the end of the road. This resolution calls for a commitment to the final goal, some consideration of what that goal may be and upgrading the engine to current standards.

The complete prohibition of nuclear weapons will require an international agreement affirming such a prohibition and providing for monitoring, verification and enforcement of their elimination. Whether such a convention is merely a "wrap-up" convention of a series of agreements on various aspects of nuclear disarmament, or whether it is an omni-bus resolution establishing the obligations and implementation measures required, is not necessary to determine at this stage. What is important is to agree with the goal of an agreed, verifiable, monitored and enforceable prohibition and elimination of nuclear weapons. That is what Resolution L.45 is calling for.

The possibility of achieving such a goal has been demonstrated in many different ways, most notably in the Model Nuclear Weapons Convention submitted to the United Nations by Costa Rica on October 31, 1997, and distributed as document A/C.1/52/7.

In 1997 the U.S. asserted that the resolution is "... a repetition of calls made earlier in other resolutions for immediate multi-lateral negotiations on the time-bound elimination of nuclear weapons." (U.S., Explanation of Vote, 10 November 1997.)

Unlike the Group of 21 proposal which proposed a timeframe for the elimination of nuclear weapons, L.45 calls for the commencement of multi-lateral negotiations leading to the conclusion of a nuclear weapons convention without proposing a timeframe for either conclusion of the negotiations or the actual elimination of nuclear weapons. New Zealand, in supporting the resolution in 1996, explained that this "allows for [such] a programme of intermediate steps towards the final goal of a convention banning nuclear weapons. It does not seek to impose a timebound framework on these negotiations."

In 1997 the UK explained their abstention on operative paragraph 1, saying that "the draft resolution contains highly selective quotations from the Court’s advisory opinion."

It is true that the resolution is selective. Although it cites the entire decision of the International Court of Justice, the resolution highlights the Court’s unanimous conclusion that "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."

Of all the conclusions of the Court, this has the most relevance for the UN Disarmament Committee and is the most clear in suggesting an appropriate course of action for the UN Disarmament Committee to take, i.e. calling for disarmament negotiations leading to complete nuclear disarmament.

The resolution does not pretend that this is the only conclusion of the Court that could have an influence on disarmament policy, nor that there are not other actions which could be taken in light of the Court’s decision. Ireland, in explaining their vote in favor in 1996, for example, noted that the Court’s decision has "provided compelling arguments for further and deeper consideration of the moral and legal framework on which the possible use of nuclear weapons has been premised in the postwar period."

In 1997 Norway expressed concern that the resolution locks disarmament negotiations into the Conference on Disarmament, which could prevent progress in the near future. (Norwegian Foreign Minister Mr Knut Vollebek. Response to a question in Parliament, 5 November 1997).

This is not correct. Although the resolution notes in the preamble that the Conference on Disarmament holds a central role in nuclear disarmament negotiations, it does not limit such negotiations to the CD.

The resolution also affirms, for example, the bilateral negotiations which are occurring outside the CD and the value of deliberations in the Non Proliferation Treaty Review process.

The ICJ resolution provides an effective middle-of-the-road approach to disarmament negotiations which could help move the disarmament process forwards.

Its basis in international law, as affirmed in the solemn pronouncement of the International Court of Justice, provides additional rationale for all States to take it seriously and make progress on its implementation.